I have previously reported on the Commonwealth’s scheme to compensate firefighters for lost income during the current fires in New South Wales – see Commonwealth to pay NSW to reimburse firefighters (December 29, 2019).

It has been reported that this is not the first time this has happened. 9News said (‘Morrison under pressure to offer income payments to volunteer firefighters’ (27 December 2019)), before the announcement was made:

Prime Minister Scott Morrison is under pressure to follow in the wake of former Prime Ministers by offering relief payments to volunteers fighting the country’s bushfires.

Under the Social Security Act of 1991, an Australian government can provide a form of income support for firefighters if a major disaster is declared.

In 1994, then-PM Paul Keating used the law to pay firefighters after bushfires in Sydney saw more than 200 home lost and four people killed.

In 2001, Liberal PM John Howard used the law to compensate volunteers who suffered a loss of income following the devastating Black Christmas fires.

I have tried to find some reference to those earlier payments.

1994

In an interview on 10 January 1994, then Prime Minister Keating said:

The Government has today substantially increased the disaster relief payment under the social security system, which will triple it in many cases for families, to just under $2000 and over $1000 for a single person. Now, this will be paid to people who have had their homes damaged or whose income has been severely dislocated – for instance firefighters who’ve not been paid by their employers would qualify.

During the interview he was asked:

J: How will people be assessed?

PM: This payment is not income tested or asset tested. It Is only on the basis of whether their homes have been damaged or destroyed, whether they have suffered material income loss in the course of the fire or fighting the fire. So, for instance, it won’t be paid to somebody who has simply been evacuated and is coming back t0 their house which is undamaged. But it would be paid to others who have suffered an employment loss or loss of Income.

J: will this include volunteer firefighters who have lost income?

PM: It will include volunteer firefighters who have lost income. Volunteer firefighters who’ve income or have not been paid by their employer – we would be able to pay them this payment.

(I infer “J”, in infer, means ‘journalist, as the person conducting the interview is not named).

The Disaster Relief Payment was provided for in the Social Security Act 1991 (Cth). In 1994 the Act provided a person qualified for a disaster relief payment if, as a result of a major disaster, ‘there is a significant interruption to a person’s source of livelihood’ (s 1061K; as at 10 January 1994). As the Prime Minister noted, the value of the payment was based on ‘a formula and It would depend on whether someone is single, married or with children and it rises accordingly. With two children under 13 it’s about $ 2000, roughly.’

It would appear that in 1994 there was no a specific move to ‘extend’ payments to firefighters. Once the fires were declared to be a major disaster, firefighters were eligible to claim the money if they could show a significant interruption to [their]… source of livelihood’. In the interview cited above, the Prime Minister was announcing an increase in the value of the payment, not an extension of who was eligible.

2001

The only reference I can find to these payments is in a ruling, issued on 13 June 2003 by the Australian Tax Office (the ATO), on whether benefits paid under the Volunteer Firefighters Emergency and General Assistance payment were taxable. That ruling says (emphasis added):

Ex gratia payments were made by the Department of Family and Community Services, through Centrelink, under a Volunteer Firefighters Assistance Package.

These payments were made as Emergency and General Assistance payments and were paid at the rate of $160 per day. They were paid to compensate volunteer firefighters for the loss of income they sustained while fighting bushfires in New South Wales.

The payments were made to those firefighters who met the following criteria:

  • they were a member of a recognised firefighting organisation
  • they suffered a loss of income while fighting the fires, and
  • they fought the fires during the ‘declared period’ of 24 December 2001 to 16 January 2002.

The taxpayer was a volunteer firefighter who met these criteria and received an Emergency and General Assistance payment from Centrelink.

The ATO’s ruled that payments received by firefighters were counted as taxable income.  The ruling said:

As an Emergency and General Assistance payment made under the Voluntary Firefighters Assistance package is paid as compensation to replace income, the payment acquires the character of income.

Accordingly, a Voluntary Firefighters Assistance payment is ordinary income and is therefore assessable.

There is some discussion about this scheme in the Parliament’s official record, Hansard.  In the debate on the Appropriation (Parliamentary Departments) Bill (No. 2) 2001-2002; Appropriation Bill (No. 3) 2001-2002 and Appropriation Bill (No. 4) 2001-2002 (ie the Bills to allocate the money from consolidated revenue rather than the Bills to actually authorise the payments) Senator West made the criticism that, like current payments, it was restricted to RFS volunteers and not those in the SES or other agencies and also not in all fires that burned that year (Commonwealth, Parliamentary Debates, Senate, 21 March 2002, p. 1314 (Senator West)).

I cannot find a reference in the legislation now, or at the time to ‘Emergency and General Assistance payments’ so it’s not clear what those payments were.

Today

Social Security Act

Under the current version of the Act the Commonwealth pays a Disaster Recovery Allowance and a Disaster Recovery Payment.

Disaster Recovery Allowance

The Disaster Recovery Allowance is an ongoing payment to deal with lost income (and would appear to replace the Disaster Relief Payment discussed by Prime Minister Keating).  Both in 1994 and today, a major disaster is an event that the Minister has declared is a major disaster (ss 36 (1994 and current) and 36A (current)). Today a person has to demonstrate that they have ‘suffered a loss of income as a direct result of the’ declared major disaster (s 1061KA(1)(f)) and that they meet any other eligibility requirements in the Minister’s declaration (s 1061KA(1)(i)).

I cannot find the current declaration from the Minister but the Departmental website says that to be eligible a person has to:

  • get an income by working in an affected Local Government Area or live in an affected Local Government Area
  • lose income as a direct result of the NSW Bushfires in August, September, October, November and December 2019

A firefighter responding in the local government area where he or she lives, or works may be eligible for this benefit, but it would not extend to those providing out of area assistance.

Disaster Recovery Payment

The Disaster Recovery Payment is a one-off payment for a person adversely affected by a major disaster. The payments are $1000 per adult and $400 per child (s 1061M). To be eligible a person has to meet the definition of ‘adversely affected’ as set out in the Minister’s declaration (s 1061L).  Again I cannot find the current declaration but the Departmental website says that to be eligible a person has to:

… have been adversely affected by the fire. For example:

  • you have been seriously injured
  • you’re the immediate family member of an Australian citizen or resident who died
  • your principle place of residence has been destroyed or must be demolished
  • the interior of your principal place of residence has sustained major damage
  • damage from the fire has exposed the interior of your principal place of residence to the elements
  • your principle place of residence has been declared structurally unsound
  • the interior of your residence has been affected by sewerage contamination
  • you’re the principal carer of a dependent child who has experienced any of the above.

That could extend to firefighters who have been injured and the families of those firefighters who have tragically lost their lives.

It should be noted that these payments are not state specific.  Declarations have been made for fires in many states – see https://www.humanservices.gov.au/individuals/help-emergency.

Crisis payments

The Social Security Act 1991 (Cth) provides for crisis payments (as did the version of the Act in force in early 2003).  Qualifications are for a crisis payment are (ss 1061JG to 1061JI) release from gaol or psychiatric confinement, extreme circumstances forcing departure from home, remaining in home after removal of family member due to domestic or family violence or a humanitarian entrant to Australia.  A person eligible for a disaster relief payment is not eligible for a crisis payment (s 1061JJ).  Crisis payments do not equate to ‘Emergency and General Assistance payments’ as described in the 2003 ATO ruling.

The current payments to firefighters

In my post Commonwealth to pay NSW to reimburse firefighters (December 29, 2019) I said:

The details, not surprisingly, are not fleshed out in a news report and given the statement ‘The Federal Government payments will be administered by New South Wales and are expected to be made available before the end of January’ it is likely the details have not yet been fully fleshed out.

There are now some more details available on Services NSW website and the Commonwealth’s Disaster Assist website.  That now says that to receive the payments an applicant needs to be:

A volunteer firefighter who:

  • is from a recognised firefighting organisation in NSW
  • has been volunteering as part of an operational response to bushfires for more than 10 days since 1 July 2019. This can include reasonable travel and recovery time but does not include training or participating in non-emergency operations (for example, hazard reduction burns).
  • is self-employed or employed by a small or medium business, and has lost income.

I cannot find a definition of ‘recognised firefighting organisation in NSW’ which is troubling as it is a phrase that I’m sure I have seen before. Even so I cannot find a definition in current or repealed NSW or Commonwealth legislation or regulations, the NSW EM or Bush-Fire Plan or on the RFS website. It may be that the term has just been picked up from the 2001 scheme.  If anyone can point me (and the readers of this blog) to a definition that would be most helpful (and please don’t just suggest what it means, I’m looking for a definition in a legal instrument).

In my post I suggested that this payment may be made by way of tied grant to the States (Australian Constitution s 96).  I can still find no definitive statement as to how the grants are being managed.  In the Prime Minister’s media release (New Payments To Support Nsw Volunteer Firefighters (29 December 2019)) NSW Premier Gladys Berejiklian is quoted as saying:

 “We are now pleased to provide administrative support to the Commonwealth to compensate our brave volunteers for loss of income.”

The reference to administrative support could suggest that it is still a commonwealth payment to individuals just managed by the states.  I suppose speculation doesn’t help and the exact legal arrangements don’t really matter at this time.  In due course the details of how the payments are being managed will become clear.

Another interesting quote from the NSW Premier is the statement that:

“The NSW Government already provides unlimited paid leave to all state public service employees who volunteer with the RFS or the other emergency services.

“On top of that, NSW public service employees are able to take rest leave to allow time for their recovery before returning to work….

I understand that SA has signed off for the same benefits for its firefighters (Cathy Van Extel, ‘SA signs off on compensation deal to pay volunteer firefighters up to $6000’ ABC Radio National Breakfast, 30 December 2019) and Victoria has ruled it out (Rebecca Urban ‘Victoria CFA chief slams plan to compensate volunteer firefighters’ The Australian (Online) 29 December 2019).