According to the ABC:
Residents who stayed to defend their homes during the Sampson Flat bushfires in the Adelaide Hills have been told they are not eligible for the $700 state government emergency relief grant. (Brett Williamson, ‘Sampson Flat bushfire property defenders not eligible for SA government emergency grant’ ABC Online, 27 January 2015).
This caused me to question the law relating to the SA State Emergency Relief Grant, law that is not easy to find.
The webpage for the Department for Communities and Social Inclusion makes reference to various types of emergency relief. Primarily there is the grants from the Commonwealth Department of Social Security, the Australian Government Disaster Recovery Payment (AGDRP). That payment is provided for in the Social Security Act 1991 (Cth) ss 1061K to 1061P. Fundamentally eligibility for this payment depends upon the Commonwealth Minister declaring that the event is a major disaster and also determining the eligibility criteria.
On 6 January 2015 Michael Keenan, Minister for Justice declared that ‘he bushfire that commenced on 2 January 2015 at Sampson Flat and affected the Mount Lofty Ranges region in South Australia’ was a ‘major disaster’ (Social Security (Australian Government Disaster Recovery Payment) Determination 2015 (No. 1)).
For the purpose of the benefit a person has to be ‘adversely affected’ by the disaster and for this event that means:
(i) the person is seriously injured; or
(ii) the person is an immediate family member of an Australian who is killed; or
(iii) the person’s principal place of residence has been destroyed or has sustained major damage; or
(b) the person is the principal carer of a child to whom paragraph (a) applies.
The problem with this scheme is that the definition of ‘adversely affected’ is not set out in the legislation but is determined by the minister on a ‘disaster by disaster’ basis (Social Security Act 1991 (Cth) s 1061L), so the eligibility may not be the same from one event to the next. The Productivity Commission in their draft report on disaster relief funding (Productivity Commission, Draft Report: Natural Disaster Funding Arrangements Vol I, (2014, Commonwealth of Australia))had this to say (at p 40) on the subject:
Eligibility criteria for the AGDRP tend to be adjusted following a major natural disaster and have progressively become broader in their scope. Ministerial discretion over the eligibility criteria has led to inconsistent and inequitable treatment of people in comparable circumstances and has contributed to increased program costs..
Their draft recommendation 3.5 (p 40) says that the Government should:
legislate the eligibility criteria for the AGDRP and the Disaster Recovery Allowance and make these not subject to Ministerial discretion
This was a Draft Report. The Final Report has been completed and delivered to the government but not yet released to the public so at the time of writing it is not known whether this draft recommendation has become a final recommendation or what is the government’s response to the recommendation.
The amount of the AGDRP is $1000 for each adult and $400 for each child Social Security Act 1991 (Cth) s 1061M).
Clearly this Commonwealth scheme is not the scheme being discussed in the article referred to. So where is there a $700 state scheme?
The webpage for the Department for Communities and Social Inclusion refers to the State Emergency Relief Fund. This fund is established by the Emergency Management Act 2004 (SA) s 37. Money that is donated is received into this fund to be distributed by the Minister or a committee appointed by the Minister, and subject to the directions of the Governor. The Governor’s Directions to the Members of the Committee Appointed to Administer the State Emergency Relief Fund: Directions in Relation to the Emergency Arising from the Sampson Flat Bushfires appear in the South Australian Government Gazette of 22 January 2015, at p 33. These directions are general in nature directing the Committee to consider various issues, they do not specify specific purposes for which the funds may be used or the size of particular grants.
There is available an application for relief funding from the SERF, but it gives no indication of what relief is available or the amount of that relief. In a press release dated 4 January 2015 it is said:
Premier Jay Weatherill said emergency grants of up to $700 are available to help people with essential items such as food and clothing.
“The emergency grants help with immediate and essential needs when families or individuals are unable to provide for themselves,” he said.
“The grants provide for up to $280 per adult, and up to $140 per child, to a maximum of $700 per family.”
Minister for Communities and Social Inclusion Zoe Bettison said the State Government will also assist with up to two weeks emergency accommodation for people unable to return to their homes.
That release gives no details of the legal basis of these payments and appears inconsistent with the statement, reported on the ABC, that
Minister for Communities and Social Inclusion, Zoe Bettison, told 891 Breakfast the funding was available for emergency relocation payments.
“Usually the trigger would be home inaccessibility,” Ms Bettison said.
According to the initial press release the grant of $700 per family appears to be on top of accommodation assistance.
It has been announced that relief is being provided by the State and Federal governments under the Natural Disaster Relief and Recovery arrangements. Those arrangements provide for the Commonwealth to reimburse the states for eligible expenditure which includes
Category A: assistance to individuals to alleviate personal hardship or distress arising as a direct result of a disaster. Category A assistance is provided automatically by the states without requiring approval from the Australian Government. (Natural Disaster Relief and Recovery Arrangements, 22 December 2014).
Here it is up to the States, not the Commonwealth to determine what payments are made so there is nothing in the NDRRA that says who is eligible, or the value of payments under Category A.
As a lawyer it is disturbing to think that the SA government is paying $700 per family without any clear criteria for that payment. Whilst one would not expect the Minister to give legal advice in his or her media release or expect the government to maintain a website to inform unaffected commentators like me, the fact remains that the statements reported by the Minister on ABC radio appear to conflict with the earlier press release. Whilst I’m sure it’s all above board the fact that the Minister doesn’t appear to know the criteria (“”Usually the trigger would be home inaccessibility,” Ms Bettison said”) or that emergency relocation appears to be separate to ‘grants help with immediate and essential needs when families or individuals are unable to provide for themselves’ suggest at least some poor policy work and implementation.
In the absence of any easy to find explanation of eligibility criteria, or the legal basis for the payment, it must be difficult for anyone to advise or assist those affected. It must also make it impossible for those affected to be able to confirm or understand the advice they have been given and can well explain the frustration reported in the ABC news story.