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
- The Australian Government Disaster Recovery Payment (the AGDRP) provides an immediate, one-off payment to a person adversely affected by a major disaster.
- 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’.
- 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.
- 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.
- 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.
- 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.
- 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.
- Section 1 specifies the name of the Determination.
- 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.
- 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.
- 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.
- 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.
Overview
The Social Security (Australian Government Disaster Recovery Payment - Western Australia) (Ex-Tropical Cyclone Ellie - December 2022 to January 2023) Determination (LIN 23/009) 2023, enacted in 2023, was introduced to address the immediate needs of individuals adversely affected by ex-tropical cyclone Ellie in Western Australia. This legislation, issued by authority of the Minister for Emergency Management under the Social Security Act 1991, aims to provide a swift and targeted financial relief to those severely impacted by the disaster. The determination outlines specific circumstances under which a person would be considered adversely affected by the major disaster, such as being seriously injured, having a principal place of residence destroyed or significantly damaged, or being the immediate family member of someone killed as a direct result of the cyclone. This determination ensures that the Australian Government Disaster Recovery Payment is accessible to those who need it most, facilitating a rapid response to the disaster's aftermath.
Scope and Application
The Social Security (Australian Government Disaster Recovery Payment - Western Australia) (Ex-Tropical Cyclone Ellie - December 2022 to January 2023) Determination (LIN 23/09) 2023 applies to individuals who have been adversely affected by ex-tropical cyclone Ellie, which impacted Western Australia from December 2022 to January 2023, specifically within the local government area of Derby West Kimberley. The Determination outlines specific circumstances under which a person is considered adversely affected, such as being seriously injured, being a family member of someone killed, having their residence destroyed or severely damaged, experiencing major damage to significant assets, or being a principal carer for someone who meets these criteria. This legislation is a legislative instrument under the Social Security Act 1991, although it is exempt from disallowance procedures. The Determination does not extend to other disasters outside the specified timeframe and geographic area unless further determinations are made by the Minister.
Key Provisions
The Australian Government Disaster Recovery Payment (AGDRP) under the Social Security Act 1991 provides a one-off payment to individuals adversely affected by a major disaster, as specified in section 1061K. The recent Social Security (Australian Government Disaster Recovery Payment - Western Australia) (Ex-Tropical Cyclone Ellie - December 2022 to January 2023) Determination (LIN 23/009) 2023 sets out the specific circumstances for qualification for this payment in relation to ex-tropical cyclone Ellie. Under this Determination, a person is considered adversely affected if they are seriously injured (subsection 4(2)(a)), an immediate family member of a person killed (subsection 4(2)(b)), their principal place of residence is destroyed or suffers major damage (subsection 4(2)(c)), a major asset is destroyed or suffers major damage (subsection 4(2)(d)), or they are a principal carer for a child affected under any of the above criteria (subsection 4(2)(e)). Definitions for terms such as ‘destroyed’, ‘immediate family member’, ‘major asset or assets’, ‘major damage’ and ‘seriously injured’ are provided in section 3.
The Determination imposes specific obligations on individuals seeking the AGDRP. They must demonstrate that they meet one of the criteria for being adversely affected by the disaster, as outlined in the Determination. This involves providing evidence of their injury, loss, or damage. The Determination also requires that the adverse effects must be a direct result of the ex-tropical cyclone Ellie as defined in the determination. The onus is on the applicant to provide sufficient evidence to substantiate their claim of being adversely affected.
Breaching the requirements set out in the Determination or providing false information to obtain the AGDRP could lead to criminal or civil consequences. While the Determination itself does not explicitly state penalties for non-compliance, the underlying Social Security Act 1991 provides for penalties for providing false or misleading information to obtain benefits. Under section 118 of the Act, providing false information could result in a civil penalty of up to 50 penalty units (AUD 10,500 as of 2023), or in the case of corporations, up to 500 penalty units (AUD 105,000 as of 2023). Additionally, under section 121 of the Act, knowingly providing false or misleading information could lead to criminal charges, with a maximum penalty of 2,000 penalty units (AUD 420,000 as of 2023) for individuals and 10,000 penalty units (AUD 2,100,000 as of 2023) for corporations.