EXPLANATORY STATEMENT
Social Security Act
Social Security (LIN 19/116: Australian Government Disaster Recovery Payment) Determination 2019 (No.2)
(Sections 1061K and 1061L)
- The Australian Government Disaster Recovery Payment (the AGDRP) provides an immediate, one-off payment to Australians 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 purposes of 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 in relation to the disaster”.
- Subsection 1061L (2) of the Act provides that the “Minister may determine in writing, in relation to a major disaster, the circumstances in which persons are to be taken to be adversely affected by the disaster”.
- Section 36 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.
- This instrument revokes the Social Security (Australian Government Disaster Recovery Payment) Determination 2019 (No.1).
- The Minister made a determination under section 36 of the Act that applies to the monsoonal trough which produced heavy rainfall and associated flooding that commenced from 25 January 2019 and which is expected to continue in February 2019 and affected the local government areas of Burdekin, Cook, Douglas, Townsville and Wujal Wujal in the State of Queensland.
- The Social Security (LIN 19/116: Australian Government Disaster Recovery Payment) Determination 2019 (No.2) (Determination (No. 2)) gives effect to the determination referred to above and sets out the circumstances in which a person is to be “adversely affected” by the event outcome that affected the local government areas of Burdekin, Cook, Douglas, Townsville and Wujal Wujal in the State of Queensland.
- Section 1 of Determination (No. 2) specifies the name of the determination.
- Section 2 of Determination (No. 2) provides that the Social Security (Australian Government Disaster Recovery Payment) Determination 2019 (No. 1) made by the Minister on 3 February 2019 is revoked.
- Section 3 of Determination (No. 2) provides that it commences on the day it is signed.
- Section 4 of Determination (No. 2) contains definitions relevant to Determination (No. 2)
- Section 5 of Determination (No. 2) provides that for the purposes of subsection 1061L (2) of the Act, a person is adversely affected by a major disaster mentioned in Schedule 1 if the person is affected in the way mentioned in Schedule 2.
- Section 6 of Determination (No. 2) is a transitional provision and provides that a claim made under Social Security (LIN 19/112: Australian Government Disaster Recovery Payment) Determination 2019 (No.1) is taken to have been made under this instrument.
- Schedule 1 to Determination (No. 2) applies to only the monsoonal trough which produced heavy rainfall and associated flooding that commenced from 25 January 2019 and which is expected to continue in February 2019, and affected the local government areas of Burdekin, Cook, Douglas, Townsville and Wujal Wujal in the State of Queensland.
- Schedule 2 to Determination (No. 2) provides four circumstances where a person is adversely affected by the major disaster referred to in Schedule 1.
- The first circumstance is where the person is seriously injured as a direct result of the major disaster.
- The second circumstance is where a person is an immediate family member of an Australian who is killed as a direct result of the major disaster.
- The third circumstance is where the person’s principal place of residence has been destroyed or has sustained major damage as a direct result of the major disaster.
- The fourth circumstance occurs where a person is the principal carer of a child and any of the three situations specified above apply to that child.
- The terms “Act”, “destroyed”, “immediate family member”, “major damage”, “seriously injured” and “principal place of residence” are defined in section 3 of Determination (No. 2)
- Subsection 1061L (3) of the Act provides that a determination under section 1061L is a legislative instrument.
- However, this instrument 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 the determination.
- Formal consultation has not been undertaken as Determination (No. 2) was required as a matter of urgency.
Overview
The Social Security (LIN 19/116: Australian Government Disaster Recovery Payment) Determination 2019 (No. 2) was enacted to provide a one-off payment to Australians adversely affected by the monsoonal trough which produced heavy rainfall and associated flooding that commenced from 25 January 2019 and is expected to continue in February 2019, impacting the local government areas of Burdekin, Cook, Douglas, Townsville, and Wujal Wujal in Queensland. This legislation addresses the need for immediate financial assistance to those severely impacted by the disaster, complementing the existing provisions under the Social Security Act 1991. The Australian Government Disaster Recovery Payment, as specified in the Act, requires individuals to meet certain criteria to qualify for the payment, such as being seriously injured, being an immediate family member of someone killed, having a principal place of residence destroyed or sustaining major damage, or being the principal carer of a child affected by any of these circumstances. The Minister's determination under section 36 of the Act identifies the event as a major disaster warranting government intervention, and the determination outlines the specific conditions under which an individual is considered adversely affected. This determination revokes the previous determination (No. 1) and ensures that claims made under the old determination are recognised under the new instrument.
Scope and Application
The Social Security (LIN 19/116: Australian Government Disaster Recovery Payment) Determination 2019 (No.2) applies to individuals who have been adversely affected by the specified major disaster, which in this instance is the monsoonal trough that produced heavy rainfall and flooding in certain local government areas of Queensland from 25 January 2019. The Act applies to persons who are seriously injured, are immediate family members of those killed, whose principal place of residence was destroyed or sustained major damage, or who are principal carers of children in any of these situations. The instrument revokes the earlier Social Security (Australian Government Disaster Recovery Payment) Determination 2019 (No. 1) and is not subject to disallowance by the Parliament. This instrument provides clarity on the specific circumstances in which a person qualifies for the Australian Government Disaster Recovery Payment in response to the disaster, and it is designed to offer immediate relief to those affected.
Key Provisions
The Social Security (LIN 19/116: Australian Government Disaster Recovery Payment) Determination 2019 (No.2) sets forth specific provisions regarding the Australian Government Disaster Recovery Payment (AGDRP). Section 1061K of the Social Security Act 1991 (the Act) outlines the qualification criteria for the AGDRP, with the primary requirement being that the individual must be "adversely affected by a major disaster" (s 1061K). The definition and circumstances under which a person is considered adversely affected are detailed in section 1061L of the Act. Subsection 1061L(2) allows the Minister to determine in writing the specific circumstances that constitute being adversely affected by a major disaster. This Determination revokes the previous Social Security (Australian Government Disaster Recovery Payment) Determination 2019 (No. 1) and applies specifically to the monsoonal trough and associated flooding that affected certain Queensland local government areas from 25 January 2019.
The Act imposes specific obligations on the parties involved, notably the Minister, who has the authority to declare an event a "major disaster" if they are satisfied that it requires a government response (s 36). The Minister also has the power to determine the circumstances under which individuals are adversely affected by such a disaster (s 1061L(2)). Individuals seeking the AGDRP must meet the criteria established by the Minister under the Act, including being seriously injured, being an immediate family member of someone killed, having their principal place of residence destroyed or significantly damaged, or being the principal carer of a child affected by these circumstances (Schedule 2). These obligations ensure that the payment is directed towards those most in need due to the disaster's impact.
The legislation includes provisions for offences and penalties, although specific penalties are not detailed in the Act. Subsection 1061L(3) of the Act states that a determination under section 1061L is a legislative instrument, but it explicitly excludes the application of section 42 of the Legislation Act 2003, which pertains to disallowance by Parliament. This means the determination is not subject to disallowance, ensuring its continued effect unless otherwise legally amended. The urgency of the situation led to the Determination being made without formal consultation, reflecting the necessity to provide immediate assistance to those affected by the disaster.