EXPLANATORY STATEMENT
Issued by authority of the Minister for Home Affairs
Social Security Act 1991
Social Security (Australian Victim of Terrorism Overseas Payment Scheme—Specified Class of Persons) Determination 2019
The Social Security (Australian Victim of Terrorism Overseas Payment—Specified Class of Persons) Determination 2019 (the Determination) is made under subsection 1061PAA(6) of the Social Security Act 1991 (the Act) by the Minister for Home Affairs.
Background
Part 2.24AA of the Act provides a scheme for financial assistance to persons who are victims of a declared overseas terrorist act, known as the Australian Victim of Terrorism Overseas Payment Scheme (AVTOP).
The Act authorises the Prime Minister to declare a ‘terrorist act’ within the meaning of section 100.1 of the Criminal Code Act 1995 (the Criminal Code) to be a ‘declared overseas terrorist act’ for the purposes of the AVTOP scheme.
Victims of ‘declared overseas terrorist acts’ who either were an Australian resident on the day the terrorist act occurred, or are covered under a determination made under subsection 1061PAA(6) of the Act, may be eligible for an AVTOP payment (see subsection 1061PAA(2)). Under subsection 1061PAA(6), the Minister may determine a specified class of persons by legislative instrument.
Eligible persons who are harmed as a direct result of a declared overseas terrorist act or whose close family member dies as a direct result of a declared overseas terrorist act can apply for financial assistance of up to $75,000 under the AVTOP scheme.
Purpose
Australian residents who are affected by a ‘declared overseas terrorist act’ as declared in accordance with subsection 35B(1) of the Act can apply for assistance under the AVTOP scheme. This instrument expands eligibility for the AVTOP scheme to primary victims who were Australian citizens, including those who were not resident in Australia on the day of the declared overseas terrorist act, who were harmed in the declared overseas terrorist act specified by the Social Security (Declared Overseas Terrorist Act—Christchurch 2019) Declaration 2019.
Explanation and effect of provisions
Section 1 – Name of Declaration
Section 1 sets out the title of this instrument as the Social Security (Australian Victim of Terrorism Overseas Payment–Specified Class of Persons) Determination 2019.
Section 2 – Commencement
Section 2 provides that this instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
Section 3 sets out that this instrument is made under subsection 1061PAA(6) of the Act.
Section 4 – Definitions
Subsection 4(1) sets out the interpretive provisions that are relevant to the Determination as follows:
- Act means the Social Security Act 1991.
- Australian citizen has the same meaning as in subsection 4(1) of the Australian Citizenship Act 2007.
- Australian resident has the same meaning as in subsection 7(2) of the Act.
- primary victim has the meaning given by subsection 1061PAA(2) of the Act.
Subsection 4(2) provides that the references to date and time in the Determination are expressed in terms of New Zealand Daylight Time. This is the local time at the location of the terrorist act determined by the Prime Minister to be a declared overseas terrorist act under subsection 35B(1) of the Act (see the Social Security (Declared overseas terrorist act—Christchurch 2019) Declaration 2019).
Section 5 – Specified class of persons
Section 5 sets out that the specified class of persons under subsection 1061PAA(6) of the Act is primary victims who, on 15 March 2019:
- were an Australian citizen (subparagraph 5(a)(i));
- were not an Australian resident (subparagraph 5(a)(ii)); and
- were located at al-Noor Mosque in Riccarton, Christchurch, New Zealand at approximately 1.40pm or at Linwood Islamic Centre in Linwood, Christchurch, New Zealand, at approximately 1.55pm (subparagraph 5(a)(iii)).
The class specified in paragraph 5(a) of the Determination extends the AVTOP scheme to primary victims who, on 15 March 2019, were Australian citizens but not resident in Australia and therefore do not fall within the definition of ‘Australian resident’ as provided in subsection 7(2) of the Act.
Consultation
Consultation on this Determination was undertaken with key stakeholders. In particular, the Department of Home Affairs consulted with:
- the Department of Human Services, and
- the Department of Foreign Affairs and Trade.
The consultation agencies were supportive of the Determination being made.
The Determination is a legislative instrument for the purpose of the Legislation Act 2003.
The Determination is compatible with the human rights and freedoms for the purpose of the Human Rights (Parliamentary Scrutiny) Act 2011. A statement of compatibility with human rights is included in the Attachment.
ATTACHMENT
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Australian Victim of Terrorism Overseas Payment—Specified Class of Persons) Determination 2019
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
Part 2.24AA of the Social Security Act 1991 (the Act) provides a scheme for financial assistance to persons who are victims of a declared overseas terrorist act, known as the Australian Victim of Terrorism Overseas Payment Scheme (AVTOP).
The Act authorises the Prime Minister to declare a ‘terrorist act’ within the meaning of section 100.1 of the Criminal Code Act 1995 (the Criminal Code) to be a ‘declared overseas terrorist act’ for the purposes of the AVTOP scheme.
Victims of ‘declared overseas terrorist acts’ who either were an Australian resident on the day the terrorist act occurred, or are covered under a determination made under subsection 1061PAA(6) of the Act, may be eligible for an AVTOP payment (see subsection 1061PAA(2)). Under subsection 1061PAA(6), the Minister may determine a specified class of persons by legislative instrument.
Eligible persons who are harmed as a direct result of a declared overseas terrorist act or whose close family member dies as a direct result of a declared overseas terrorist act can apply for financial assistance of up to $75,000 under the AVTOP scheme.
Human rights implications
This Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Terrorist attacks impose a heavy burden on those harmed by the attack as well as the family members of those harmed or killed. In some cases, the burden on both the person and the person’s family will endure for life.
Primary victims of declared overseas terrorist acts are individuals who are harmed as a direct result of the act. Such persons may:
- require medical treatment
- require ongoing domestic care and assistance
- lose some or all of their capacity to work and earn income, and
- experience mental health problems.
This Declaration takes steps to promote the economic and social rights of victims of terrorism and members of their families, specifically:
- the right to social security (Article 9, International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 26, Convention on the Rights of the Child (CRC))
- the right to family life (Article 10, ICESCR)
- the right to an adequate standard of living (Article 11, ICESCR and Article 27, CRC)
- the right to health (Article 12, ICESCR and Article 24, CRC), and
- the rights of persons with a disability under the Convention on the Rights of Persons with Disabilities (CRPD), particularly:
- Article 25 – the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability, and
- Article 26 – effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.
Right to social security in Article 9 of the ICESCR
Article 9 of ICESCR and Article 26 of the CRC require States to recognise the right of everyone to social security, including social insurance, including establishing a social security system and, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.
This Instrument promotes the rights of people who are primary victims of a declared overseas terrorist act in a number of ways, including in acknowledging a victim’s right to social security.
Under the AVTOP scheme, financial assistance to eligible persons who are harmed as a direct result of the terrorist act is awarded on a sliding scale, with larger payments being available to victims who experience physical or psychological harm that is severe and enduring. The maximum amount payable to a person in relation to the harm they suffer is $75,000.
The financial assistance provided does not replace other forms of welfare that might be available to the person. Rather, it is designed to facilitate the person’s access to necessary goods and services, including, but not limited to, health care.
The financial assistance provided to eligible persons harmed in declared overseas terrorist acts or whose close family member dies as a result of a terrorist act is not compensation or damages.
On this basis, this Instrument promotes the right to social security.
Right to family life in Article 10 of the ICESCR
Article 10(1) of the ICESCR requires States to recognise the widest possible protection and assistance to the family as the fundamental and natural unit of society, requiring the full protection of the state. Article 10(3) also recognises that States must take special measures to protect and assist children and young persons without discrimination for reasons of parentage and other conditions.
The AVTOP scheme enables financial assistance to be provided to eligible persons who are close family members of a person who died as a direct result of an overseas terrorist act. The AVTOP scheme gives priority of payment to a deceased person’s partner and child or children, followed by their parent or parents, and finally the person’s sibling or siblings.
On this basis, this Instrument promotes the right of protection of, and assistance to, the family.
Right to an adequate standard of living in Article 11 of the ICESCR
Article 11(1) of the ICESCR and Article 27 of the CRC require States to recognise and adopt measures to realise an individual and his or her family’s right to an adequate standard of living, including adequate food, clothing and housing and to the continuous improvement of living conditions.
The AVTOP scheme provides financial assistance for eligible persons, including children, who have been injured or whose close family relatives died as a direct result of a terrorist act. The AVTOP scheme acknowledges the economic impact of an injury on a primary or secondary victim’s lifestyle.
Financial assistance provided under the AVTOP scheme could be used by an individual or a family for the purposes of improving their overall living conditions, particularly where they have suffered physical or mental harm or trauma as a direct result of an overseas terrorist act.
On this basis, this Instrument promotes the right to an adequate standard of living.
Right to health in Article 12 of the ICESCR
Article 12(1) of ICESCR and Article 24 of the CRC provide for the right to the enjoyment of the highest attainable standard of physical and mental health.
The AVTOP scheme provides for a higher amount of financial assistance to be provided to victims, including children, who suffer greater harm as a direct result of the terrorist act. This includes physical injuries and emotional trauma that could require extensive and ongoing treatment, as well as domestic care and assistance. The AVTOP scheme also provides for financial assistance to be paid to secondary victims of a deceased person giving priority to the deceased person’s partner and child, followed by their parent, then sibling. The financial assistance available under the AVTOP scheme supplements other Government benefits for which the person may be eligible.
This Instrument promotes the right to the highest attainable standard of health by providing financial assistance to victims that they can use in any way, including for the purposes of medical and psychological treatment. On this basis, this Instrument promotes the right to health.
Rights of persons with a disability in Articles 25 and 26 of the CRPD
The CRPD promotes, protects and ensures the full enjoyment of all human rights and fundamental freedoms, by all persons with disabilities.
Article 25 of the CRPD requires States to promote the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability.
Article 26(1) of the CRPD requires States to adopt effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.
The AVTOP scheme does not discriminate on the basis of disability, but provides financial assistance to all eligible persons harmed as a direct result of an overseas terrorist attack or whose close family member dies as a direct result of such an attack. The financial assistance provided takes account of a person who may be harmed or disabled by physical and psychological injuries.
The AVTOP scheme does not prescribe the manner in which funds received by a victim should be used. The financial assistance may be used by the victim to enable that person to attain maximum independence, inclusion and participation in all aspects of life, following their injury sustained as a direct result of a terrorist act. The financial assistance does not replace other forms of assistance that a person with a disability may also have access to.
On this basis, this Instrument promotes the rights of persons with a disability.
Conclusion
This Instrument is compatible with human rights and specifically promotes those human rights outlined above.