Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001 (Cth)

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Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001

No. 18, 2001

Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001

No. 18, 2001

An Act to amend the social security law and certain other laws in relation to residence requirements, and for related purposes

Contents

Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001

No. 18, 2001

An Act to amend the social security law and certain other laws in relation to residence requirements, and for related purposes

[Assented to 30 March 2001]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001.

2Commencement
  1. (1)

    Subject to this section, this Act commences on the day on which it receives the Royal Assent.

  2. (2)

    If this section commences before, or at the same time as, the commencement of the Social Security Legislation Amendment (Concession Cards) Act 2001, Part 2 of Schedule 1 and item 18 of Schedule 2 commence immediately after the commencement of that Act.

  3. (3)

    If this section commences at the same time as, or after, the commencement of the Social Security Legislation Amendment (Concession Cards) Act 2001, items 14, 15, 16, 17 and 18 of Schedule 1 and Part 2 of Schedule 2 do not commence.

3Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Social Security Act 1991

Part 1Amendments commencing on Royal Assent

1

Subsection 7(1)

Insert:

protected SCV holder has the meaning given by subsections (2A), (2B), (2C) and (2D).

2

Subparagraph 7(2)(b)(iii)

Repeal the subparagraph, substitute:

  1. (iii)

    a special category visa holder who is a protected SCV holder.

3

After subsection 7(2)

Insert:

  1. (2A)

    A person is a protected SCV holder if:

    1. (a)

      the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or

    2. (b)

      the person had been in Australia for a period of, or for periods totalling, 12 months during the period of 2 years immediately before 26 February 2001, and returned to Australia after that day.

  2. (2B)

    A person is a protected SCV holder if the person:

    1. (a)

      was residing in Australia on 26 February 2001; and

    2. (b)

      was temporarily absent from Australia on 26 February 2001; and

    3. (c)

      was a special category visa holder immediately before the beginning of the temporary absence; and

    4. (d)

      was receiving a social security payment on 26 February 2001; and

    5. (e)

      returned to Australia before the later of the following:

      1. (i)

        the end of the period of 26 weeks beginning on 26 February 2001;

      2. (ii)

        if the Secretary extended the person’s portability period for the payment under section 1218C—the end of the extended period.

  3. (2C)

    A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if:

    1. (a)

      the time is during the period of 3 years beginning on 26 February 2001; or

    (b) the time is after the end of that period, and either:

    1. (i)

      a determination under subsection (2E) is in force in respect of the person; or

    2. (ii)

      the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.

  4. (2D)

    A person who, on 26 February 2001:

    1. (a)

      was residing in Australia; and

    2. (b)

      was temporarily absent from Australia; and

    3. (c)

      was not receiving a social security payment;

is a protected SCV holder at a particular time if:

  1. (d)

    the time is during the period of 12 months beginning on 26 February 2001; or

  2. (e)

    the time is after the end of that period, and either:

    1. (i)

      at that time, a determination under subsection (2E) is in force in respect of the person; or

    2. (ii)

      the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.

  1. (2E)

    A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that:

    1. (a)

      the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; or

    2. (b)

      the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001.

  2. (2F)

    If a person makes an application under subsection (2E), the Secretary must make the determination if:

    1. (a)

      the Secretary is satisfied that paragraph (2E)(a) or (2E)(b) applies to the person; and

    2. (b)

      the application was made within whichever of the following periods is applicable:

      1. (i)

        if paragraph (2E)(a) applies to the person—the period of 12 months beginning on 26 February 2001;

      2. (ii)

        if paragraph (2E)(b) applies to the person—the period of 3 years beginning on 26 February 2001.

The Secretary must give a copy of the determination to the person.

  1. (2G)

    The Secretary must make a determination under this subsection in respect of a person if the person is a protected SCV holder because of subsection (2B). If the Secretary is required to make such a determination:

    1. (a)

      the determination must state that the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; and

    2. (b)

      the determination must be made within the period of 6 months of the person’s return to Australia; and

    3. (c)

      a copy of the determination must be given to the person.

4

At the end of section 7

Add:

  1. (7)

    For the purposes of paragraph 540(d), subparagraph 593(1)(g)(ii) and paragraph 666(1)(g), a person is exempt from the residence requirement in respect of a period if:

    1. (a)

      throughout the period, the person was the holder of a special category visa; and

    2. (b)

      immediately before the period commenced, the person had been residing in Australia for a continuous period of at least 10 years, being a period commencing on or after 26 February 2001;

unless the person’s exemption from the residence requirement in respect of the period would result in the person:

  1. (c)

    receiving newstart allowance, sickness allowance or youth allowance for a continuous period of more than 6 months because of this subsection; or

  2. (d)

    receiving newstart allowance, sickness allowance or youth allowance for more than one non‑continuous period because of this subsection; or

  3. (e)

    receiving more than one of those allowances because of this subsection.

5

Paragraph 540(d)

Repeal the paragraph, substitute:

  1. (d)

    throughout the period, the person:

    1. (i)

      is an Australian resident; or

    2. (ii)

      is exempt from the residence requirement within the meaning of subsection 7(7).

6

Subparagraph 593(1)(g)(ii)

After “resident”, insert “or is exempt from the residence requirement within the meaning of subsection 7(7)”.

7

Paragraph 623A(6)(b)

Omit “the day this subsection commences”, substitute “1 February 2000”.

8

Paragraph 660YCFA(5)(b)

Omit “the day this subsection commences”, substitute “1 February 2000”.

9

Paragraph 666(1)(g)

Repeal the paragraph, substitute:

  1. (g)

    throughout the period, the person:

    1. (i)

      is an Australian resident; or

    2. (ii)

      is exempt from the residence requirement within the meaning of subsection 7(7).

10

Paragraph 696B(6)(b)

Omit “the day this subsection commences”, substitute “1 February 2000”.

11

Paragraph 771HNA(5)(b)

Omit “the day this subsection commences”, substitute “1 February 2000”.

12

Subparagraph 999(1)(d)(i)

After “resident”, insert “or a special category visa holder residing in Australia”.

13

Paragraph 1039AA(5)(b)

Omit “the day this subsection commences”, substitute “1 February 2000”.

14

Paragraph 1061ZA(1)(b)

After “resident”, insert “or a special category visa holder residing in Australia”.

15

Paragraph 1061ZA(2)(b)

Repeal the paragraph, substitute:

  1. (b)

    has not been both:

    1. (i)

      an Australian resident or a special category visa holder residing in Australia; and

    2. (ii)

      in Australia;

for a period of, or for periods totalling, 104 weeks;

16

Paragraph 1061ZA(7)(b)

Omit “the day this subsection commences”, substitute “1 February 2000”.

17

Paragraph 1061ZAA(a)

After “resident”, insert “or a special category visa holder residing in Australia”.

18

Paragraph 1061ZAA(b)

Repeal the paragraph, substitute:

  1. (b)

    ends when the person has been both:

    1. (i)

      an Australian resident or a special category visa holder residing in Australia; and

    2. (ii)

      in Australia;

for a period of, or for periods totalling, 104 weeks.

19

Schedule 1A

Insert in the appropriate numerical position:

133Meaning of Australian resident

For the purposes of determining whether a person was an Australian resident at a time, or throughout a period, occurring before the commencement of item 2 of Schedule 1 to the Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001:

  1. (a)

    the definition of Australian resident at that time, or throughout that period, applies; and

  2. (b)

    that definition, as amended by the Family and Community Services Legislation Amendment (New Zealand Citizens) Act 2001, does not apply.

Part 2Other amendments

20

Paragraph 1061ZG(1)(b)

After “resident”, insert “or a special category visa holder residing in Australia”.

21

Paragraph 1061ZH(1)(b)

Repeal the paragraph, substitute:

  1. (b)

    has not been both:

    1. (i)

      an Australian resident or a special category visa holder residing in Australia; and

    2. (ii)

      in Australia;

for a period of, or for periods totalling, 104 weeks;

22

Paragraph 1061ZI(a)

After “resident”, insert “or a special category visa holder residing in Australia”.

23

Paragraph 1061ZI(b)

Repeal the paragraph, substitute:

  1. (b)

    ends when the person has been both:

    1. (i)

      an Australian resident or a special category visa holder residing in Australia; and

    2. (ii)

      in Australia;

for a period of, or for periods totalling, 104 weeks.

24

Subparagraph 1061ZN(1)(a)(i)

After “resident”, insert “or a special category visa holder residing in Australia”.

25

Subparagraph 1061ZO(2)(a)(i)

After “resident”, insert “or a special category visa holder residing in Australia”.

26

Subparagraph 1061ZO(2)(a)(ii)

After “resident”, insert “or with a special category visa holder residing in Australia”.

27

Subparagraph 1061ZO(2)(b)(i)

After “resident”, insert “or a special category visa holder residing in Australia”.

28

Paragraph 1061ZO(3)(a)

After “resident”, insert “or a special category visa holder residing in Australia”.

29

Paragraph 1061ZO(4)(a)

After “resident”, insert “or a special category visa holder residing in Australia”.

30

Paragraph 1061ZO(5)(b)

After “resident”, insert “or with a special category visa holder residing in Australia”.

31

Paragraph 1061ZQ(2)(c)

After “resident”, insert “, or a special category visa holder residing in Australia,”.

32

Paragraph 1061ZR(a)

After “resident”, insert “or a special category visa holder residing in Australia”.

33

Paragraph 1061ZR(b)

Repeal the paragraph, substitute:

  1. (b)

    ends when the person has been both:

    1. (i)

      an Australian resident or a special category visa holder residing in Australia; and

    2. (ii)

      in Australia;

for a period of, or for periods totalling, 104 weeks.

Schedule 2—Amendment of other Acts

Part 1A New Tax System (Family Assistance) Act 1999

1

Subsection 3(1)

Insert:

holder, in relation to a visa, has the same meaning as in the Migration Act 1958.

2

Subsection 3(1)

Insert:

resides in Australia has the same meaning as in the Social Security Act 1991.

3

Subsection 3(1)

Insert:

special category visa has the same meaning as in the Migration Act 1958.

4

After subparagraph 21(1)(b)(i)

Insert:

  1. (ia)

    is a special category visa holder residing in Australia; or

5

Paragraph 22(2)(d)

After “resident”, insert “, is a special category visa holder residing in Australia”.

6

Paragraph 22(3)(e)

After “resident”, insert “, is a special category visa holder residing in Australia”.

7

Paragraph 22(4)(d)

After “resident”, insert “, is a special category visa holder residing in Australia”.

8

Paragraph 22(5)(c)

After “resident”, insert “, is a special category visa holder residing in Australia”.

9

Paragraph 22(6)(c)

After “resident”, insert “, is a special category visa holder residing in Australia”.

10

After subparagraph 42(1)(b)(i)

Insert:

  1. (ia)

    is a special category visa holder residing in Australia; or

11

After subparagraph 44(1)(d)(i)

Insert:

  1. (ia)

    is a special category visa holder residing in Australia; or

12

After subparagraph 45(1)(f)(i)

Insert:

  1. (ia)

    is a special category visa holder residing in Australia; or

Part 2Health Insurance Act 1973

13

Paragraph 5BA(2)(c)

Repeal the paragraph, substitute:

  1. (c)

    has been both:

    1. (i)

      an Australian resident or a special category visa holder residing in Australia; and

    2. (ii)

      in Australia;

for a period of, or for periods totalling, 104 weeks; or

14

Paragraph 5BA(3)(a)

After “resident”, insert “ or a special category visa holder residing in Australia”.

15

Paragraph 5BA(3)(b)

Repeal the paragraph, substitute:

  1. (b)

    ends when the person has been both:

    1. (i)

      an Australian resident or a special category visa holder residing in Australia; and

    2. (ii)

      in Australia;

for a period of, or for periods totalling, 104 weeks.

Part 3Social Security (Administration) Act 1999

16

Subsections 29(1) and (2)

After “31”, insert “, 31A”.

17

After section 31

Insert:

31AExclusion of certain claims by special category visa holders from section 29 residence requirement

Despite paragraph 29(1)(a), a person who is not an Australian resident may make a claim for a social security payment or a concession card if:

  1. (a)

    the person is a special category visa holder residing in Australia; and

  2. (b)

    in order to qualify for the payment or concession card concerned, the person is not required to be an Australian resident if the person is a special category visa holder residing in Australia.

18

After subparagraph 240B(4)(a)(i)

Insert:

  1. (ia)

    is a special category visa holder residing in Australia; or

[Minister’s second reading speech made in—

House of Representatives on 28 February 2001

Senate on 7 March 2001]

(9/01)

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