Overview

The Social Security (LIN 19/250: Australian Government Disaster Recovery Payment—New South Wales Bushfires) Determination 2019 (No. 9), enacted under the Social Security Act 1991, was introduced to address the urgent need to provide financial assistance to individuals adversely affected by the major disaster of the New South Wales bushfires of 2019. This legislation was enacted by the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management, in response to the significant impact of the bushfires on individuals and communities. The policy objective of the determination is to ensure that those who have been seriously injured, lost immediate family members, suffered destruction or major damage to their principal place of residence, or are principal carers of affected individuals, receive the necessary support through the Australian Government Disaster Recovery Payment. This determination outlines the specific circumstances under which a person is considered to be adversely affected by the disaster, providing clarity and expediting the delivery of assistance. Notably, the determination was made without formal consultation due to the urgency of the situation, yet it is not subject to disallowance by Parliament, as stipulated under section 1061L(3) of the Act. This ensures that the financial support can be provided promptly and efficiently to those in need.

Scope and Application

The Social Security (LIN 19/250: Australian Government Disaster Recovery Payment—New South Wales Bushfires) Determination 2019 (No.9) applies to individuals who have been adversely affected by the major disaster, specifically the bushfires in New South Wales during August, September, October, and November 2019, within the designated local government areas. The determination outlines the criteria for adversely affected status, which includes being seriously injured, being an immediate family member of a victim killed by the disaster, having one's principal residence destroyed or significantly damaged, or being a principal carer of a child meeting the aforementioned criteria. This instrument does not extend to any other events or geographical areas beyond those specified. Notably, this determination is a legislative instrument under the Social Security Act 1991 and, as such, is not subject to disallowance by the Parliament, although it is exempt from the disallowance process under section 42 of the Legislation Act 2003.

Key Provisions

Section 1061K of the Social Security Act 1991 outlines the qualification criteria for the Australian Government Disaster Recovery Payment (AGDRP), which is a one-off payment provided to individuals adversely affected by a major disaster. The Act specifies that to be eligible, a person must be adversely affected by such a disaster, which is further defined in section 1061L. According to subsection 1061L(1), a person is adversely affected by a major disaster if they are affected by it in a manner determined by the Minister. The Minister has the authority under subsection 1061L(2) to specify in writing the conditions under which a person is deemed to be adversely affected by a disaster. Additionally, section 36 empowers the Minister to declare an event as a 'major disaster' if it significantly impacts individuals to the extent that a government response is necessary. In this context, the Minister has issued a determination that applies to the bushfires that occurred in New South Wales from August to November 2019, affecting specific local government areas. The Social Security (LIN 19/250: Australian Government Disaster Recovery Payment—New South Wales Bushfires) Determination 2019 (No. 9) provides more specific details on the circumstances under which a person is considered adversely affected by the bushfires in question. Section 4(2) of the Determination identifies four scenarios that qualify an individual as adversely affected: being seriously injured as a direct result of the disaster, being an immediate family member of someone killed as a result of the disaster, having one's principal place of residence destroyed or significantly damaged as a result of the disaster, or being the principal carer of a child affected by any of the previous conditions. The definitions of key terms such as 'destroyed', 'immediate family member', 'major damage', and 'seriously injured' are provided in section 3 of the Determination. The Act imposes several obligations on the parties involved. The Minister is required to determine if an event constitutes a major disaster and specify the conditions under which a person is adversely affected. The Department of Social Services must ensure that the AGDRP is administered in accordance with the Act and the Determination. Recipients must provide accurate information to qualify for the payment, and failure to do so could result in the repayment of the amount received. The Act also mandates that the Minister's determinations are legislative instruments but are not subject to disallowance by the Parliament, as specified in subsection 1061L(3). Breaches of the provisions outlined in the Act and the Determination may lead to various consequences. The most immediate consequence for individuals is the potential disqualification from receiving the AGDRP if they provide false or misleading information. Under subsection 1061N(2) of the Act, if a person intentionally provides false or misleading information, they may be liable to a civil penalty. The maximum penalty for such an offence is 50 penalty units, which equates to approximately $11,000 under the Commonwealth Penalties Act. Additionally, knowingly making false statements can result in criminal charges, leading to fines or imprisonment, as prescribed by the Criminal Code Act 1995.