Social Security (AGDRP—Victoria—Bushfires) Determination (No. 9) 2026

The instrument relies on a handful of tightly defined, operational concepts that determine who is treated as adversely affected. The definitions in s 4 are the core legal constructs that convert on‑the‑ground events into status for the Act.

• Major disaster: The instrument identifies the relevant major disaster as the bushfires that commenced on 7 January 2026 and continued through February 2026 in Victoria, and which affect the areas listed in Schedule 1 (s 5(1)). The instrument therefore ties temporal and geographic boundaries to the concept of "major disaster" in the Act.

• Adversely affected (deeming): For the purpose of s 1061L(2) of the Act, subsection 5(2) sets out five alternative circumstances each of which, if satisfied, means the person is taken to be adversely affected: (a) seriously injured as a direct result; (b) immediate family member of an Australian citizen or resident who is missing and presumed killed, or killed, as a direct result; (c) principal place of residence destroyed or having major damage as a direct result; (d) major asset destroyed or with major damage as a direct result; (e) a carer of a child to whom paragraph (a), (b), (c) or (d) applies (s 5(2)(a)-(e)).

• Immediate family member: The instrument defines "immediate family member" more broadly than some statutory contexts and explicitly notes it is used differently to the Act (s 4(1)). It includes partner, natural/adoptive/step‑child, natural/adoptive/step‑parent, legal guardian, and brothers/sisters/step‑siblings (s 4(1) definitions).

• Major asset and value threshold: A "major asset" is an asset with market value of at least $20,000 located at the person’s principal place of residence, or assets with a combined market value of at least $20,000 located there. Examples in the instrument include building, large fixed structure, motor vehicle, caravan, water tank, large scale machinery, heavy equipment (s 4(1), definition of major asset and attached note).

• Destroyed and major damage: "Destroyed" for a residence means it must be demolished; for a major asset, "destroyed" means unusable (s 4(1), definition of destroyed). "Major damage" for a residence is set out as several alternative facts: interior damage, structural unsoundness, exposure of interior to elements, or sewage contamination; for major assets (other than water tanks), it is damage by fire/heat/ash/smoke to the extent replacement is needed; for water tanks it is damage requiring repair or cleaning, or replacement of contained water (s 4(1), definition of major damage).

• Seriously injured: The instrument sets a two‑part test: person has sustained an injury, and because of it was admitted to hospital or, under normal circumstances, would have been admitted (s 4(1), definition of seriously injured).

• Principal place of residence: The instrument supplies an objective multi‑part test: regular residence with a degree of settled purpose; lawful right to reside there; and the place is not a prison/place of detention nor a secondary holiday residence (s 4(2)). The instrument notes a person may have more than one principal place of residence.

These concepts function as thresholds administrators must assess. The monetary threshold for major assets ($20,000) and the demolition requirement for a residence to be "destroyed" are concrete, quantifiable triggers. The instrument therefore translates physical losses and personal injury into administrative facts that enable application of s 1061L(2).

The instrument is both geographically and categorically limited. Geographically, it applies only to the bushfires that began 7 January 2026 and continued through February 2026 in Victoria and only for the suburbs/localities and local government areas listed in Schedule 1 (s 5(1); Schedule 1). Schedule 1 names 77 items across multiple local government areas and multiple suburbs. That list is the exclusive geographic trigger in the instrument; persons outside those listed localities are not captured by this determination regardless of proximity to affected areas.

Categorically, the instrument deems the following persons to be adversely affected for the purposes of s 1061L(2) of the Act (s 5(2)):

• Persons who are seriously injured as a direct result of the disaster (s 5(2)(a)), where "seriously injured" requires injury plus hospital admission or a hypothetical admission "under normal circumstances" (s 4(1), seriously injured).

• Immediate family members of an Australian citizen or resident who are missing and presumed killed, or killed, as a direct result (s 5(2)(b)). Notably, the instrument requires that the missing or killed person be an Australian citizen or resident; immediate family members of non‑citizens/non‑residents are therefore not captured under this head. The instrument’s own definition of "immediate family member" is broader than some statutory formulations and includes partners, children (natural/adoptive/step), parents (natural/adoptive/step), legal guardians, and siblings/step‑siblings (s 4(1)).

• Persons whose principal place of residence has been destroyed or has major damage as a direct result of the disaster (s 5(2)(c)). The instrument defines "destroyed" for a residence as requiring demolition, and "major damage" using four alternative conditions including interior damage, structural unsoundness, exposure to elements, and sewage contamination (s 4(1), definitions; s 4(2) defines principal place of residence).

• Persons with a major asset destroyed or with major damage as a direct result (s 5(2)(d)). "Major asset" requires market value of at least $20,000, and may be a single asset meeting the threshold or a combination of assets at the principal place of residence with combined market value at least $20,000 (s 4(1), definition of major asset). Examples in the instrument include motor vehicles, caravans, heavy equipment, water tanks (special rule for water tanks within major damage definition) (s 4(1)).

• Carers of a child to whom paragraphs (a)-(d) apply (s 5(2)(e)). The instrument treats a carer of an affected child as themselves "adversely affected" where the child qualifies under one of the earlier paragraphs.

The instrument therefore affects a set of people defined by the intersection of geography, event timing, and one of the above personal/asset/injury conditions. It does not on its face extend to businesses that suffered wider commercial losses off the principal place of residence, nor to people affected in localities not listed in Schedule 1. The instrument’s definitions also create specific exclusions: for example, secondary holiday residences and prisons are excluded as principal places of residence (s 4(2)(c)(i)-(ii)).

The instrument itself creates no ongoing duties on private citizens; instead, it creates legal status that an administering agency must recognise for the purposes of s 1061L(2) of the Act. The immediate administrative duty created by the instrument is on the decision‑makers who apply the Act: they are required to treat persons meeting the instrument’s criteria as "adversely affected" when considering the operation of subsection 1061L(2) (s 5(2)). The instrument thus converts specified facts into legal consequences for Act administration.

Operational duties that follow from that are implicit:

• Administrative recognition duty: From commencement (immediate on signing, s 2), agency staff must apply the instrument’s definitions when assessing claims under s 1061L(2) of the Act, treating persons satisfying the instrument’s circumstances as adversely affected (s 5). That will require caseworkers to test factual predicates against the instrument’s definitions.

• Recordkeeping and evidentiary duty: While the instrument does not specify evidentiary procedures, the administering agency will need to gather and retain sufficient documentation to show that a person satisfied an element such as demolition of a residence, hospital admission, market valuation of major assets at or above $20,000, lawful right to reside at the principal place of residence, or carer relationship. The instrument’s definitions make these the operative facts (s 4).

• Temporal duty: The instrument is time‑limited. It repeals the prior Determination No. 8 on commencement (s 6(1)) and will itself be repealed automatically the day after two years from commencement (s 6(2)). Agencies must manage claims in that window and any transition or legacy issues created by the repeal of No. 8.

Rights the instrument creates are status rights for the purposes of s 1061L(2). The instrument does not itself spell out entitlements (for example, payment sums or procedural rights). Instead, it defines who is to be treated as adversely affected under s 1061L(2). Any rights that flow from that status are governed by the Act and the administrative framework established under it. The instrument narrows or expands eligibility facts that determine whether a person can be treated as "adversely affected" for those statutory purposes.

The instrument confers no enforcement powers or penalties itself. It is a targeted, procedural legal instrument that alters how facts are to be viewed within the social security administrative regime. It imposes on decision‑makers an obligation to apply its definitions and geographic temporal scope when processing relevant claims.

The instrument contains no express criminal penalties, civil fines, or administrative sanctions. There are no provisions in the text that create enforcement machinery directed at private parties, nor any express remedies contained within the instrument itself. Its legal effect is a deeming of status for the limited purpose of s 1061L(2) of the Act (s 5), not a standalone enforcement code.

Consequently, any enforcement or penalty consequences would be sourced in the Act or other legislation, not in this instrument. The instrument’s role is declaratory and classificatory: it instructs administrators to treat people who meet the listed criteria as adversely affected. If, in administering the Act, an agency determines that a person has made a false statement or provided false evidence in order to obtain relief that is available only to those who are "adversely affected", any penalty or sanction for that conduct would rely on the Act’s enforcement provisions or other applicable laws, not on this instrument. The instrument itself does not specify the evidentiary standard, application process, or sanctions.

From an administrative perspective, the lack of express procedural or penalty provisions in the instrument places on administrators the responsibility to rely on existing Act provisions governing decisions, review, recovery of overpayments, and sanctions where relevant. The instrument’s immediate commencement (s 2) and repeal mechanics (s 6) also create an enforcement and compliance timeline: administrators must apply the instrument when making decisions during its operative period and be attentive to how reprocessing or legacy liabilities are dealt with after repeal. Any questions about improper application or administrative error would arise under the Act’s decision‑making and review frameworks rather than this instrument.

This instrument is expressly made under subsection 1061L(2) of the Social Security Act 1991 and is confined to operating for the purposes of that subsection (s 3; s 5(2) cross‑referring to s 1061L(2)). Its interaction with other laws is therefore primarily through the Act and through the administrative procedures and enforcement frameworks created by the Act.

Direct interactions and points of legal interface in the instrument itself include:

• Subordination to the Act: The instrument is a subordinate instrument made under an Act power (s 3). It does not displace the Act; rather it specifies facts that decision‑makers must treat as true when applying s 1061L(2). Any broader entitlements, procedural rules, or enforcement engines are supplied by the Act.

• Divergence in definitions: The instrument explicitly notes that its definition of "immediate family member" is used in a different sense to that used in the Act (s 4(1) note). That creates a definitional interface: where the Act uses "immediate family member" elsewhere, administrators must take care to apply the instrument’s definition only for the purposes of s 1061L(2) as modified by this determination. The instrument also defines "principal place of residence" (s 4(2)), "major asset" (s 4(1)), and other technical terms which will interact with any definitions in the Act. Where the instrument supplies a definition for a term used in s 1061L(2), that definition must be applied; where the Act has broader application elsewhere, the Act’s definitions will continue to apply outside the instrument’s scope.

• Temporal and repealing interaction: The instrument expressly repeals the prior Social Security (AGDRP,Victoria,Bushfires) Determination 2026 (No. 8) on commencement (s 6(1)). That creates a direct interaction in the sequence of subordinate instruments; claims previously considered or governed under No. 8 may now be governed by this determination. The instrument also self‑repeals after two years (s 6(2)), which will end its deeming effect and revert the operation of s 1061L(2) to whatever the Act provides in the absence of this determination or to any subsequent determination.

• Geographic specificity: By tying the major disaster to the localities listed in Schedule 1, the instrument interacts with other legal regimes that rely on geographic definitions (for example, insurance declarations, local government disaster orders, or emergency service declarations). Those interactions are not prescribed here; the instrument simply fixes the geographic scope for the statutory purpose in s 1061L(2).

• Evidentiary and administrative interaction: Because the instrument sets factual predicates such as demolition, hospital admission, market value thresholds and lawful right to reside, it will interact practically with other regulatory regimes that produce documentary evidence of those facts: building permits and demolition orders, hospital records, valuation reports, insurance assessments, police reports for missing persons. The instrument does not mandate specific documentary proof; administrators applying the Act will need to determine what evidence suffices within the Act’s existing procedural framework.

In short, the instrument is an adjunct to the Social Security Act. It does not create standalone rights or obligations outside the Act, but it does create definitional and temporal rules that must be integrated into the Act’s decision‑making and any other laws or administrative processes that use the same underlying facts.

The instrument itself records a very limited amendment history, which is largely procedural. It is titled the Social Security (AGDRP,Victoria,Bushfires) Determination (No. 9) 2026 (s 1). The only express amendment event recorded in the text is the repeal of an earlier instrument: on commencement this Determination (No. 9) repeals the Social Security (AGDRP,Victoria,Bushfires) Determination 2026 (No. 8) (s 6(1)). That is an immediate, single‑step update replacing the prior determination.

The instrument also contains a fixed expiry: it is automatically repealed on the day after the two‑year period that begins on the day the instrument commences (s 6(2)). Thus its lifecycle is: immediate commencement when signed (s 2), immediate repeal of No. 8 (s 6(1)), operative for up to two years, automatic repeal after that period (s 6(2)). The instrument contains no staged amendments, no periodic review clauses, and no power delegated to vary the Schedule by regulation or notice. Any future change to geographic coverage, definitions, or the list of affected localities would require the making of a new determination or amendment instrument under the Act.

There is no text in the instrument indicating previous versions other than the immediately preceding No. 8 determination that is now being repealed. The Schedule lists precise localities; any future amendment changing that list would similarly need to be made by instrument under the same enabling Act provision. The instrument’s form and the inclusion of numbered determinations (No. 9 replacing No. 8) indicates an administrative sequence of determinations rather than an amending pathway internal to a single instrument. The instrument’s sunset clause imposes a maximum period of effect without further action.

The instrument itself contains no litigation history and does not record any judicial consideration. The text does not cite or refer to case law, nor does it state that any decisions under the instrument have been judicially reviewed.

Potential legal disputes that could arise from this instrument, based on its content and legal mechanics, are limited to challenges to the validity or application of subordinate legislation. Because the instrument is made under subsection 1061L(2) of the Act, any legal challenge in court would be routed to the question whether the enabling power was lawfully exercised and whether the instrument’s content stayed within the limits of that power. Typical factual and legal disputes in that space could include:

• Challenge to geographic or temporal scope: a claimant or affected person might contest whether the bushfires in question properly fall within the statutory concept of a "major disaster" for the purposes of s 1061L(2), or whether a particular locality should have been included or excluded in Schedule 1.

• Challenge to definitional application: disputes may arise over whether a person satisfies the instrument’s tests, for example whether a residence is "destroyed" (demolition requirement), whether an asset meets the $20,000 "major asset" threshold, whether damage qualifies as "major damage", or whether an injury meets the "seriously injured" test (hospital admission or hypothetical admission).

• Procedural or jurisdictional challenge: a party could contend the relevant decision‑maker misapplied the instrument or failed to follow required administrative procedures in treating a person as adversely affected or not.

The instrument does not supply examples of litigation or decisions, and no cases are named. Any actual litigation history would therefore need to be sought in the courts and administrative law decisions, but none is recorded in the text of this instrument.

The instrument contains several technical features that are easy to miss and that can affect eligibility and administration.

• Narrow geographic list: Only the suburbs and localities in Schedule 1 are covered. Even nearby properties or towns not listed are excluded regardless of the physical impact of the same fire event (s 5(1); Schedule 1). Multiple occurrences of certain locality names across different local government areas are listed; for example Simpson appears in both Colac Otway and Corangamite (Schedule 1). Administrators must map the claimant’s address against the precise Schedule 1 entries.

• Temporal cut‑off: The instrument ties the disaster to fires commencing 7 January 2026 and continuing through February 2026 (s 5(1)). Claims for events outside that time window will not be captured by this determination.

• High threshold for "destroyed" residence: For a residence to be "destroyed" it must be demolished (s 4(1), definition of destroyed). A residence that is uninhabitable but not demolished may instead meet the "major damage" tests but not the "destroyed" test. The demolition requirement can be determinative for households seeking to rely on paragraph 5(2)(c).

• Principal place of residence tests and exclusions: The instrument sets a specific test for "principal place of residence" that requires regular residence with a settled purpose and a lawful right to reside there, and expressly excludes prisons and secondary holiday residences (s 4(2)). Persons who split time between residences or who live in transient accommodation must show the criteria are met. The instrument notes a person may have more than one principal place of residence, which can complicate assessments.

• Monetary threshold for major assets: The instrument uses a $20,000 market value threshold to define a "major asset" or a combination of assets (s 4(1), major asset). That threshold is precise and can exclude otherwise significant losses below that valuation. Valuation method and date may be points of contention.

• Different treatment of water tanks: Water tanks are carved out with a lower threshold for what constitutes major damage: repair, cleaning, or replacement of contained water can suffice (s 4(1), major damage, water tank paragraph). Administrators must apply the specific water tank wording rather than the general major asset test when tanks are involved.

• Definition of "seriously injured": The two‑part test requires both an injury and hospital admission, or that admission would have occurred under normal circumstances (s 4(1)). Where an injured person was treated only in outpatient settings, eligibility under s 5(2)(a) may not be satisfied.

• Citizenship/residency condition for missing/killed person: Paragraph 5(2)(b) requires that the person who is missing and presumed killed, or killed, be an Australian citizen or resident. Immediate family members of non‑citizens/non‑residents are therefore not covered under that head.

• Carer of a child clause is derivative: The carer provision in s 5(2)(e) applies only where the child qualifies under (a)-(d). The carer’s status is therefore contingent on the child meeting the instrument’s criteria.

• Repeal of prior instrument: The instrument repeals Determination No. 8 immediately on commencement (s 6(1)). Differences between No. 8 and this instrument (for example, in localities or definitions) may create transitional uncertainty for applicants whose circumstances straddle the change.

• Automatic expiry: The instrument self‑repeals after two years (s 6(2)). Claims that are late or administrative reviews that extend beyond the two‑year window may raise questions about whether the instrument’s deeming effect reached the relevant decision.

• Use of different definition than Act: The instrument’s explicit note that it uses "immediate family member" in a different sense to the Act (s 4(1) note) can create confusion when claimants or administrators attempt to reconcile the instrument with other parts of the Act or other subordinate instruments.

These features are the concrete points where disputes, administrative burden, or misapplication are most likely to arise because they involve bright lines (demolition, $20,000, Schedule 1 boundaries) and definitional departures from other statutory contexts.

For administrators and applicants the path to compliance is practical: establish that the event and location are within the instrument’s scope and that the claimant meets one of the five circumstances in s 5(2), using evidence that maps to the instrument’s definitions in s 4.

Steps for administrators

1. Confirm geographic and temporal capture: Verify the claimant’s relevant event occurred during the bushfires commencing 7 January 2026 through February 2026 and that the claimant’s residential address or affected asset is within a Schedule 1 locality (s 5(1); Schedule 1).

2. Apply the instrument’s definitions: Use the specific statutory tests in s 4 when assessing each claim:

   • For serious injury, require hospital admission records or medical evidence that admission would have occurred under normal circumstances (s 4(1), seriously injured).
   • For destroyed residences, require evidence of demolition (s 4(1), destroyed).
   • For major damage to residences, look for interior damage, structural unsoundness, exposure to elements, or sewage contamination documented by building inspectors or equivalent (s 4(1), major damage).
   • For major assets, ensure the market value meets the $20,000 threshold for single assets or combined assets located at the principal place of residence (s 4(1), major asset).
   • For water tanks, assess whether repair/cleaning or replacement of the water is required (s 4(1), major damage water tank clause).
   • For principal place of residence, test regular residency with settled purpose and lawful right to reside; exclude prisons and secondary holiday residences (s 4(2)).

3. Evidence management: Although the instrument does not specify documentary thresholds, administrators should obtain verifiable documents that align with the instrument’s criteria: hospital records, police reports for missing persons, death certificates, demolition or building inspector reports, valuations/insurance assessments, tenancy or title documents showing lawful right to reside, and evidence of carer relationship for s 5(2)(e).

4. Record the decision rationale: Document how the instrument’s specific tests were met or not met for audit and review. Because the instrument repealed No. 8 on commencement and will expire after two years, keep contemporaneous records to manage any later reviews that relate to the instrument’s operation.

5. Handle edge cases carefully: Where the applicant contends a principal residence is demolished but no demolition order exists, or where valuation of assets is contested, set out the administrative approach consistently and note that the instrument’s thresholds are the operative legal tests.

Steps for applicants

1. Establish you fall within the Schedule and timeframe: Confirm your address or the affected asset lies in a Schedule 1 locality and that the damage or injury relates to the bushfires from 7 January 2026 through February 2026 (s 5(1); Schedule 1).

2. Map your circumstances to s 5(2): Identify which paragraph applies: (a) serious injury; (b) immediate family member of an Australian citizen or resident missing/presumed killed or killed; (c) residence destroyed or major damage; (d) major asset destroyed or major damage; (e) carer of a child affected under (a)-(d).

3. Assemble documentary evidence tailored to the instrument’s definitions:

   • Hospital admission records or medical certificates for s 5(2)(a) aligned with s 4(1).
   • Police reports, coroner documents, or death certificates where s 5(2)(b) is invoked; ensure the missing/killed person is an Australian citizen or resident (s 5(2)(b)).
   • Demolition orders, builder/engineer reports, insurer assessments and dated photographs for "destroyed" or "major damage" of a residence (s 4(1)).
   • Asset valuations, receipts, registration documents, insurer assessments, or photos showing destruction/damage and demonstrating market value of at least $20,000 (s 4(1)).
   • Documents establishing lawful right to reside (title documents, tenancy agreements) and proof that the place is the principal place of residence under the instrument’s test (s 4(2)).

4. For carers: provide evidence of carer relationship to the child, and show the child meets one of (a)-(d) (s 5(2)(e)).

5. Time considerations: Apply promptly. The instrument commences immediately on signing (s 2) and expires after two years (s 6(2)); administrative delays that push decision windows beyond the sunset may complicate claims.

6. Dispute and review: If a claim is refused under the Act after application of this instrument, use the Act’s review and merits or judicial review mechanisms. Keep precise records and evidence that address the instrument’s specific legal tests; generic assertions of loss are unlikely to suffice given the concrete thresholds in s 4.

Practical evidentiary examples are not prescribed by the instrument, but applicants will best position themselves by providing contemporaneous, verifiable documents that directly correspond to the instrument’s definitions. Administrators should establish internal guidance that maps common documentary sources to each statutory test in order to achieve consistent, defensible decisions within the instrument’s operative window.