Social Security (Waiver of Debts — Disasters) (FaHCSIA) Specification 2011

Administered by Department of Social Services

Legislation au F2011L01536 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Social Security (Waiver of Debts – Disasters) (FaHCSIA) Specification 2011

 

Made under section 1237AB of the Social Security Act 1991

 

Background

 

Subsection 1237AB(1) of the Social Security Act 1991 (the Act) provides that the Secretary may decide to waive the Commonwealth’s right to recover debts arising under the Act that are included as a class of debts specified by the Minister by legislative instrument.

 

The purpose of this instrument is to specify a class of debts that may be waived. This would enable the Secretary to waive the Commonwealth’s right to recover debts arising under the Act, incurred by persons who were adversely affected by flooding disasters in late 2010 and early 2011. A mirror instrument under the family assistance law has also been made to enable the waiver of debts arising from similar circumstances under the family assistance law.

 

The 2010 and 2011 disasters have impacted physically and emotionally on disaster victims and their families. The reason for the making of this instrument is to ease the physical and emotional impact on a victim of the disasters, who unintentionally is receiving an incorrect social security payment.

 

Explanation of this instrument

 

Section 1 sets out the name of the instrument, being the Social Security (Waiver of Debts — Disasters) (FaHCSIA) Specification 2011.

 

Section 2 provides that the instrument commences on the day after the end of the period for disallowing it, in accordance with section 42 of the Legislative Instruments Act 2003. Subsection 1237AB(3) of the Act provides that an instrument made under subsection 1237AB(1) does not take effect until the time allowed for its disallowance has passed. This instrument will commence on the day after the end of the disallowance period.

 

Section 3 contains definitions relevant to the Specification. Significantly, the term disaster is defined as:

  • the heavy rainfall, storm damage and associated flooding in Queensland that began in November 2010 and continued into January 2011;
  • the flooding in New South Wales determined to be a major disaster on 14 January 2011; and
  • the flooding in Victoria determined to be a major disaster on 19 January 2011; and
  • the severe weather, storm surges and flooding in Queensland that resulted from Tropical Cyclone Yasi.

 

Section 4 specifies the class of debt that may be waived. A debt is in a specified class if:

  • the debt was incurred by a person, and the person was adversely affected by the disasters during the disaster period (the period beginning 1 November 2010 and ending at 19 March 2011); and
  • the debt was for a period that occurred either wholly or partly during the disaster period; and
  • if the debt was incurred for a period which occurred only partly during the disaster period, then it is the part of the debt that is attributable to days occurring in the disaster period.

 

Section 5 provides for when a person is considered ‘adversely affected’ by a disaster. A person is adversely affected if, as a direct result of a disaster:

  • the person was seriously injured; or
  • an affected family member of the person was killed; or
  • an affected family member of the person was seriously injured; or
  • the person’s principal place of residence was destroyed; or
  • the person’s principal place of residence sustained major damage; or
  • the person was unable to return to his or her principal place of residence for at least 24 hours; or
  • a utility failure occurred in the person’s principal place of residence; or
  • the person experienced psychological trauma.

It is intended that a causal relationship must exist between the disaster and any of the circumstances listed above. For example, the utility failure must be caused by the disaster.

 

The term ‘seriously injured’ is defined in section 3. A person is seriously injured if they sustained injury and was admitted to hospital. It also includes the circumstance where a person would require admittance to hospital for their injury under normal circumstances, but due to the disaster conditions, this was not possible.

 

The terms ‘affected family member’ and ‘destroyed’ are also defined in section 3.

 

Subsections 5(2) to 5(6) provide further definitions relevant to determining when a person is adversely affected.

 

A person is taken to have experienced ‘psychological trauma’ (as defined in subsection 5(6)) if they were in the immediate area of the disaster and one of the circumstances under paragraph 5(6)(b) was met. It is not necessary that a person has been medically diagnosed with psychological trauma, nor otherwise to prove that a person has actually experienced psychological trauma.

 

Section 6 provides two exceptions to the class of debts specified in section 4. That is, the following types of debts are excluded from the class of debts which may be waived:

  • a debt that is incurred wholly or partly due to the person, or another person, knowingly making a false statement or a false representation or failing or omitting to comply with a provision of the social security law; and
  • a debt incurred under the compensation recovery regime under Division 5 of Part 3.14 of the Act. Compensation recovery debts do not fall within the class of debts specified by the Minister in this instrument, hence the Secretary does not have the discretion to waive compensation recovery debts under section 1237AB. Compensation recovery debts may occur where individuals and/or their partners have received income support and subsequently receive a compensation payment for economic loss related to a personal injury.

 

Consultation

 

Public consultation has not been undertaken as this instrument is of a purely beneficial character. Consultation was undertaken with the Department of Education, Employment and Workplace Relations (DEEWR) in relation to this instrument. DEEWR has also consulted Centrelink on this issue. A mirror instrument has been made by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations to allow the waiver of debts for which the Minister has responsibility.

 

Regulatory Impact Statement

 

A Regulatory Impact Statement and a Business Costs Calculator are not required as the waiver of the Commonwealth’s right to recovery social security debts will have no regulatory or competition impacts, and will not impose compliance costs on businesses.

 

 

Overview

The Social Security (Waiver of Debts – Disasters) (FaHCSIA) Specification 2011 was enacted to address the financial burden on individuals adversely affected by the flooding disasters that occurred in late 2010 and early 2011 in Queensland, New South Wales, and Victoria. The legislation was introduced under the Social Security Act 1991 by the Australian Government and aims to provide relief to those who inadvertently received incorrect social security payments due to the disaster. This instrument allows the Secretary to waive the Commonwealth's right to recover certain debts, thereby easing the physical and emotional impact on disaster victims. The instrument specifies a class of debts that may be waived, including those incurred by individuals who were directly affected by the disaster, such as through injury, loss of residence, or psychological trauma. This measure was made without public consultation as it is considered beneficial and has been coordinated with relevant departments to ensure consistency across related laws. The instrument was developed in consultation with the Department of Education, Employment and Workplace Relations and Centrelink, and a mirror instrument has been created under family assistance law for consistency. It does not impose any regulatory or compliance costs on businesses, and thus a Regulatory Impact Statement and Business Costs Calculator were deemed unnecessary.

Scope and Application

The Social Security (Waiver of Debts – Disasters) (FaHCSIA) Specification 2011 applies to the Commonwealth's right to recover debts arising under the Social Security Act 1991, specifically targeting individuals who were adversely affected by the heavy rainfall, storm damage, and associated flooding in Queensland, New South Wales, and Victoria, as well as the severe weather and flooding resulting from Tropical Cyclone Yasi, occurring between 1 November 2010 and 19 March 2011. The instrument aims to waive debts for those who were directly impacted by these disasters, such as those who were seriously injured, had family members killed or seriously injured, lost their principal place of residence, or experienced other significant hardships. This waiver is intended to alleviate the physical and emotional burden on victims who have unintentionally received incorrect social security payments due to the disasters. Notably, the instrument does not extend to debts incurred due to knowingly making false statements or representations or failing to comply with social security law, nor does it cover debts under the compensation recovery regime. The Specification applies nationally, as it is made under section 1237AB of the Social Security Act 1991, which is a Commonwealth Act. This means the waiver applies to all affected individuals across Australia, provided they meet the criteria set out in the instrument. The Specification does not specify any exclusions beyond those mentioned, and it does not create new substantive rights or obligations beyond the waiver of debts in the specified circumstances. Any further implementation details or additional measures may be detailed in subordinate instruments or administrative guidelines issued by the Secretary under the authority of the Act.

Key Provisions

The Social Security (Waiver of Debts – Disasters) (FaHCSIA) Specification 2011 (the Specification) under the Social Security Act 1991 (the Act) specifies the class of debts that may be waived by the Secretary. This is pursuant to section 1237AB(1) of the Act, which allows for the waiver of debts incurred by persons adversely affected by certain disasters. The instrument is aimed at providing relief to those affected by the flooding disasters in late 2010 and early 2011, by potentially waiving debts that arose from these events. Section 4 of the Specification delineates the class of debts that can be waived, which includes debts incurred by individuals adversely affected by the specified disasters during the disaster period (1 November 2010 to 19 March 2011), provided the debt occurred wholly or partly during that period. Section 5 further defines what it means to be 'adversely affected' by the disaster, encompassing serious injury, loss of life in the family, destruction or major damage to the principal place of residence, inability to return home for at least 24 hours, utility failures, and psychological trauma. The instrument excludes certain debts from being waived, such as those arising from knowingly making false statements or from compensation recovery debts under the Act, as specified in Section 6. The obligations imposed by this instrument on the parties it governs include ensuring that any debts incurred by individuals affected by the specified disasters are assessed for eligibility under the waiver provisions. The Secretary is required to evaluate whether the debt falls within the class specified in Section 4 and whether the individual meets the criteria for being adversely affected as outlined in Section 5. In terms of consequences for breach, while the instrument itself does not detail specific offences, penalties, or civil/criminal consequences for non-compliance, any misuse or improper application of the waiver provisions could potentially lead to legal scrutiny or corrective actions under the Act. The intent of the Specification is to provide a straightforward pathway for waiving debts in the spirit of aiding those genuinely affected by the disasters.

Legal classification tags

Area of Law
Social Security Law
Instrument
Specification
Concepts
Definitions & Interpretation
Regulatory Standards
Enforcement Powers

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.