EXPLANATORY STATEMENT
Social Security (Disaster Recovery Allowance) (Prescribed Payments)
Determination 2022
Social Security Act 1991
Issued by authority of the Minister for Emergency Management
- The instrument, Departmental reference LIN 22/104, is made under subsection 1061KA(5) of the Social Security Act 1991 (the Act).
- The instrument repeals the Social Security (Disaster Recovery Allowance) (Prescribed Payments) Determination 2013 and the Social Security (Disaster Recovery Allowance) (Prescribed Payments) Determination 2015 in accordance with subsection 33(3) of the Acts Interpretation Act 1901, which provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument.
- The instrument commences on the day after it is registered and is a legislative instrument for the Legislation Act 2003.
- A person may qualify for a Disaster Recovery Allowance if they meet the criteria in subsection 1061KA(1) of the Act, including a requirement that the person does not already receive a ‘social security entitlement’ or another prescribed payment (see paragraphs 1061KA(1)(g) and (h) respectively).
- Subsection 23(1) of the Act defines a ‘social security entitlement’ to include the age pension, disability support pension, carer and parenting payments, youth allowance, austudy payment, job search allowance, and the jobseeker payment.
- Subsection 1061KA(5) provides that the Minister may, by legislative instrument, prescribe payments for the purpose of paragraph 1061KA(1)(h).
- The Social Security (Disaster Recovery Allowance) (Prescribed Payments) Determination 2022 (the Determination) prescribes the same payments which were prescribed by the Social Security (Disaster Recovery Allowance) (Prescribed Payments) Determination 2015, with the addition of veteran payment under Part IIIAA of the Veteran’s Entitlements Act 1986. The Determination removes references to payments no longer in effect (partner and sickness allowances) and removes payments to coincide with the commencement of the relevant provisions of the Social Security Amendment (Welfare Reform) Act 2019 (bereavement and farm household allowance).
- Section 1 of the Determination specifies the name of the determination.
- Section 2 of the Determination provides that the Determination commences on the day after it is registered.
- Section 3 of the Determination provided that each of the following payments are prescribed payments:
(a) parental leave pay under the Paid Parental Leave Act 2010;
(b) dad and partner pay under the Paid Parental Leave Act 2010;
(c) service pension within the meaning of subsection 5Q(1) of the Veteran’s Entitlements Act 1986;
(d) income support supplement under Part IIIA of the Veteran’s Entitlements Act 1986;
(e) special benefit under Part 2.15 of the Act;
(f) ABSTUDY Living Allowance under the ABSTUDY Scheme (also called the Aboriginal and Torres Strait Islander Study Assistance Scheme);
(g) veteran payment under Part IIIAA of the Veteran’s Entitlements Act 1986.
11. Section 4 of the Determination provides that the Social Security (Disaster Recovery Allowance) (Prescribed Payments) Determination 2013 and the Social Security (Disaster Recovery Allowance) (Prescribed Payments) Determination 2015 are repealed.
12. The Department of Home Affairs has received advice from the Office of Best Practice Regulation that a regulation impact statement was not required before making this instrument, as the proposed change appears to be machinery in nature and no further analysis (in the form of a Regulatory Impact Statement) is required (OBPR ID: 26476).
13. The Determination is a legislative instrument for the purposes of the Legislation Act 2003, but is exempt from disallowance under section 42 of that Act (see subsection 1061KA(7) of the Act).
Overview
The Social Security (Disaster Recovery Allowance) (Prescribed Payments) Determination 2022 was enacted to update the list of prescribed payments that would disqualify individuals from receiving the Disaster Recovery Allowance under the Social Security Act 1991. This determination, issued by the authority of the Minister for Emergency Management, replaces previous determinations from 2013 and 2015. The primary objective of this determination is to ensure that the list of prescribed payments remains current and reflective of the current social security landscape, thereby maintaining the integrity of the Disaster Recovery Allowance scheme. It specifies various payments that, if received by an individual, would render them ineligible for the Disaster Recovery Allowance. The determination also introduces new payments, such as the veteran payment under Part IIIAA of the Veteran’s Entitlements Act 1986, and removes outdated references to payments like partner and sickness allowances. This legislative instrument is designed to provide clarity and precision in the application of the Disaster Recovery Allowance, ensuring that it is accessible to those who genuinely need it following a disaster event.
Scope and Application
The Social Security (Disaster Recovery Allowance) (Prescribed Payments) Determination 2022 applies to individuals who may qualify for a Disaster Recovery Allowance under the Social Security Act 1991. This allowance is available to those who meet specific criteria, including the requirement that they do not currently receive a social security entitlement or another prescribed payment. The prescribed payments listed include parental leave pay, dad and partner pay, service pension, income support supplement, special benefit, ABSTUDY Living Allowance, and veteran payment. The Determination specifies the prescribed payments that exclude individuals from qualifying for the Disaster Recovery Allowance and repeals previous determinations from 2013 and 2015, updating them to reflect current payments and remove outdated references. This legislative instrument is made under subsection 1061KA(5) of the Act and commences on the day after it is registered, serving as a legislative instrument under the Legislation Act 2003.
Key Provisions
The Social Security (Disaster Recovery Allowance) (Prescribed Payments) Determination 2022 (the Determination) lists specific payments that are prescribed for the purposes of the Social Security Act 1991 (the Act). Section 3 of the Determination enumerates the payments, including parental leave pay and dad and partner pay under the Paid Parental Leave Act 2010, service pension and income support supplement under the Veteran’s Entitlements Act 1986, special benefit under the Act, ABSTUDY Living Allowance, and veteran payment under the Veteran’s Entitlements Act 1986 (subsection 3(a)–(g)). Section 4 of the Determination repeals the Social Security (Disaster Recovery Allowance) (Prescribed Payments) Determination 2013 and the Social Security (Disaster Recovery Allowance) (Prescribed Payments) Determination 2015, replacing them with the current Determination.
The Determination imposes certain obligations on the entities and individuals it governs. For example, the Department of Social Services must ensure that the list of prescribed payments is accurately maintained and updated as necessary. Individuals who apply for a Disaster Recovery Allowance must declare that they do not already receive any of the prescribed payments listed in the Determination (subsection 1061KA(1)(h)). Additionally, the Determination requires that the payments listed must be current and in effect at the time of application for the allowance (subsection 1061KA(1)(g) and (h)).
There are no explicit offences or penalties outlined in the Determination itself, but the Social Security Act 1991 provides for a range of civil and criminal penalties for breaches of its provisions. For example, making a false statement or providing false information in an application for a social security benefit can result in a civil penalty of up to 20 penalty units, or in the case of a corporation, up to 100 penalty units (subsection 114A(1) of the Act). Criminal penalties can also apply, including imprisonment for up to two years, for knowingly making a false statement or providing false information (subsection 114A(3) of the Act). The maximum penalties are set out in the Crimes Act 1914.
The Determination is a legislative instrument made under the authority of the Minister for Emergency Management, and it is subject to the provisions of the Legislation Act 2003. It is exempt from disallowance under section 42 of that Act, as specified in subsection 1061KA(7) of the Social Security Act 1991. The Determination was not subject to a regulation impact statement, as advised by the Office of Best Practice Regulation, due to its machinery nature. The Determination commenced on the day after it was registered, as per Section 2 of the Determination.