Social Security (Australian Government Disaster Recovery Payment - Western Australia) (Ex-Tropical Cyclone Ellie - December 2022 to January 2023) Determination (LIN 23/009) 2023

Explanatory Statement

Social Security (Australian Government Disaster Recovery Payment - Western Australia) (Ex-Tropical Cyclone Ellie - December 2022 to January 2023) Determination (LIN 23/009) 2023

Social Security Act 1991

Issued by authority of the Minister for Emergency Management

1.           The Australian Government Disaster Recovery Payment (the AGDRP) provides an immediate, one-off payment to a person adversely affected by a major disaster.
2.           Section 1061K of the Social Security Act 1991 (the Act) specifies the qualification criteria for the AGDRP. One of the qualification criteria requires a person to be ‘adversely affected by a major disaster’.
3.           Subsection 1061L(1) of the Act provides that, for the Act, a person is adversely affected by a major disaster if the person is affected by the disaster in a way determined by the Minister for the disaster.
4.           Subsection 1061L(2) of the Act provides that the Minister may determine in writing, for a major disaster, the circumstances in which persons are to be taken to be adversely affected by the disaster.
5.           Subsection 36(1) of the Act empowers the Minister to determine in writing that an event is a major disaster if the Minister is satisfied that an event is a disaster that has such a significant impact on individuals that a government response is required.
6.           The Minister has made a determination under subsection 36(1) of the Act that applies only to ex-tropical cyclone Ellie that crossed into Western Australia on 28 December 2022 and brought severe weather and flooding that continued in December 2022 and January 2023 affecting the local government area of Derby West Kimberley.
7.           The Social Security (Australian Government Disaster Recovery Payment - Western Australia) (Ex-Tropical Cyclone Ellie - December 2022 to January 2023) - Determination (LIN 23/009) 2023 (the Determination) sets out the circumstances in which a person is to be ‘adversely affected’ by the major disaster.
8.           Section 1 specifies the name of the Determination.
9.           Section 2 provides that the Determination commences on the day it is signed. For section 12 of the Legislation Act 2003, the Determination may commence before it is registered as it will not disadvantage any persons adversely affected by the disaster.
10.       Section 3 provides definitions relevant to the Determination, including destroyed, immediate family member, major asset or assets, major damage and seriously injured and principal place of residence.
11.       Subsection 4(1) provides that the Determination applies to the major disaster being ex-tropical cyclone Ellie that crossed into Western Australia on 28 December 2022 and brought severe weather and flooding that continued in December 2022 and January 2023 affecting the local government area of Derby West Kimberley.
    
     
12.       Subsection 4(2) provides that the circumstances in which a person is taken to be adversely affected by the major disaster described in subsection 4(1) are if:

(a) the person is seriously injured as a direct result of the disaster (paragraph 4(2)(a)); or

(b) the person is an immediate family member of an Australian citizen or resident who is killed as a direct result of the disaster (paragraph 4(2)(b)); or

(c) the person’s principal place of residence has been destroyed or has major damage as a direct result of the disaster (paragraph 4(2)(c)); or

(d) a major asset or assets of the person has or have been destroyed or suffered major damage as a result of the disaster; or

(e) the person is a principal carer of a child to whom paragraphs 4(2)(a), (b), (c) or (d) apply (paragraph 4(2)(e)).

13.         The terms ‘destroyed’, ‘immediate family member’, ‘major asset or assets’, ‘major damage’ and ‘seriously injured’ are defined in subsection 3(1) of Determination. Subsection 3(2) defines what a ‘principal place of residence’ is.

14.         Subsection 1061L(3) of the Act provides that a determination under section 1061L is a legislative instrument. However, the Determination is not subject to disallowance by the Parliament as subsection 1061L(3) of the Act provides that section 42 of the Legislation Act 2003 does not apply to it.

15.         Formal consultation has not been undertaken as the Determination was required to commence as a matter of urgency.