Federal Register of Legislation - Australian Government

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Declarations/Other as made
This instrument declares that the terrorist act in Nairobi 2013 is a declared overseas terrorist acts for the purposes of subsection 35B(1) of the Social Security Act 1991.
Administered by: Attorney-General's
Made 06 Oct 2013
Registered 16 Oct 2013
Tabled HR 12 Nov 2013
Tabled Senate 12 Nov 2013

EXPLANATORY STATEMENT

Social Security (Declared Overseas Terrorist Act) Declaration 2013 – Nairobi

The Social Security (Declared Overseas Terrorist Act) Declaration 2013Nairobi (the Declaration) is made under subsection 35B(1) of the Social Security Act 1991 (the Act) by the Prime Minister. 

Background

Part 2.24AA of the Social Security Act 1991 provides a scheme for financial assistance to Australians who are victims of a declared overseas terrorist act.  Victims are Australians who are harmed as a direct result of the declared overseas terrorist act or who are the close family member of a person who dies as a direct result of a declared overseas terrorist act.

The Act enables the Prime Minister to declare that an overseas terrorist incident is one to which the scheme applies.  Australians who are harmed as a direct result of such an incident will be able to claim financial assistance of up to $75,000.  In addition, Australians who are the close family member of a person who dies as a direct result of such an incident will be able to claim financial assistance of up to $75,000. 

Purpose

The Declaration triggers the application of the scheme to a specific overseas terrorist act set out in this Declaration. 

Explanation and effect of provisions

Section 1 ‑ Name of Declaration

Section 1 sets out the title of the Declaration as the Social Security (Declared Overseas Terrorist Act) Declaration 2013 – Nairobi.

Section 2 – Commencement

Section 2 provides that the Declaration commences on 21 October 2013.

Section 3 – Definitions

Section 3 sets out the interpretive provisions that are relevant to the Declaration as follows:

Act means the Social Security Act 1991.

  • terrorist act has the same meaning it has in subsection 100.1(1) of the Criminal Code.

Section 4 – Declared overseas terrorist act

Section 4 provides that the armed assault at the Westgate Shopping Mall in Westlands, Nairobi, Kenya on 21-24 September 2013 is a declared overseas terrorist act for the purposes of subsection 35B(1).

Human rights implications of the Declaration

This declaration is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

This statement has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The Declaration activates the AVTOP scheme to apply to Australian victims of the armed assault at the Westgate Shopping Mall, Westlands, Nairobi, Kenya on 21-24 September 2013.

The Declaration promotes the economic and social rights of victims of terrorism and members of their families, specifically their rights to:

  • social security (Article 9, International Covenant on Economic, Social and Cultural Rights (ICESCR)
  • an adequate standard of living (Article 11, ICESCR)
  • health (Article 12, ICESCR)
  • family life (Article 10, ICESCR), and
  • rights of persons with a disability under the Convention on the Rights of Persons with Disabilities (CRPD), particularly:
    • Article 25 – the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability, and
    • Article 26 - effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.

Terrorist attacks impose a heavy burden on victims and their families.  In some cases, this burden will endure for life.  Primary victims of declared overseas terrorist acts may:

  • lose their life
  • require medical treatment
  • require ongoing domestic care and assistance
  • lose some or all of their capacity to work and earn income, and
  • experience mental health problems.

Secondary victims of declared overseas terrorist acts may:

  • lose some or all of their family members, and
  • experience a loss of support that they received from their family member.

Right to social security

Article 9 of ICESCR requires that States establish a social security system and, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

This declaration promotes the rights of people who are primary and secondary victims of the declared overseas terrorist act in a number of ways.  The declaration enables victims to access their right to social security.  The payments to Australians who have been harmed in the declared overseas terrorist act are awarded on a sliding scale.  A larger payment is awarded to victims who experience injuries that are more significant or the loss of a close family member because of the act.  For example, a person who loses both legs is eligible for a payment of $75,000 whereas a person who has fractured their toes would only be entitled to $6,000.  AVTOP is not intended to replace other forms of government assistance.

On this basis, the declaration promotes the right to social security.

Right to health

Article 12 of ICESCR provides the right to the enjoyment of the highest attainable standard of physical and mental health.  The scheme awards a larger payment to victims who suffer serious injuries.  These types of injuries require extensive medical treatment and/or domestic care and assistance.  The scheme will promote the right to health by providing money which can be used in any way by the recipient including for medical expenses. 

The amount paid to the victim will depend on a range of factors including:

  • the nature of the victim’s injuries
  • the impact of the terrorist act on the victim’s life
  • if, and to what extent, the victim contributed to their injuries, and
  • if, and to what extent, the victim received financial assistance from a foreign country for the injury arising from the terrorist act.

On this basis, the declaration promotes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

Right to family life

The Declaration promotes the victim’s right to family life.  The family is the fundamental and natural unit of society and requires the full protection of the state.  Human rights law upholds the positive right of all peoples to marry and found a family.  The scheme awards payment to secondary victims who have a close family relationship with the deceased person.  This makes a contribution to preserving the integrity of the family unit during a difficult time.  The scheme gives priority of payment to a deceased person’s partner and child, followed by their parent, then sibling.

On this basis, the declaration promotes the right of protection of and assistance to the family. 

Conclusion

The Declaration is compatible with human rights because it promotes the protection of human rights.

Consultation

Consultation on this Declaration was undertaken with key stakeholders.  In particular consultation was undertaken with:

  • Attorney-General’s Department
  • Department of Human Services and
  • Department of Foreign Affairs and Trade.