Health ref. no.808
AUSTRALIAN GOVERNMENT
HEALTH INSURANCE ACT 1973
Health Insurance (Eligible persons unauthorised maritime arrivals and holders of Humanitarian Stay (Temporary) visa) Order 2017
I, GREG HUNT, Minister for Health, pursuant to subsection 6(1) of the Health Insurance Act 1973 (the Act) hereby DECLARE that:
(a) Every person included in the specified class of persons:
(i) who is an unauthorised maritime arrival or who was not immigration cleared on their last entry to Australia; and
(ii) who is the holder of a Humanitarian Stay (Temporary) visa (Subclass 449),
being a person who, but for this Order, would not be an eligible person for the purposes of the Act shall, during any period in which the person is in Australia, be treated as being an eligible person for the purposes of the Act.
(b) In this Order the terms unauthorised maritime arrival and immigration cleared have the meanings given by the Migration Act 1958, as in force from time to time.
(c) This Order shall have effect from the date of signature.
Dated this 26th day of October 2017
GREG HUNT
MINISTER FOR HEALTH
ATTACHMENT - STATEMENT OF REASONS
Health Insurance Act 1973
Class Order under Subsection 6(1)
ORDER NO: 808
DATE OF ORDER: 2017
RELATED ORDER: 779, 792
NAME OF PERSON/GROUP: Unauthorised maritime arrivals holding a Humanitarian Stay (Temporary) visa (Subclass 449)
REASON FOR APPROVAL:
The Humanitarian Stay (Temporary) visa (Subclass 449) (HSTV) is a subclass of the Temporary Safe Haven (Class UJ) visa. It is a generic humanitarian visa that provides temporary stay in Australia primarily for persons displaced or likely to be displaced and who have grave fears for their personal safety.
The Government has decided that people who are not immigration cleared or who are illegal arrivals to Australia who are found to engage Australia’s protection obligations and satisfy certain legislative criteria are eligible for temporary humanitarian visas. The Minister for Immigration and Border Protection has decided that an available option for illegal arrivals, who are found to engage Australia’s protection obligations and satisfy the legislative criteria, is either Ministerial Intervention or to accept a Government offer to grant of a HSTV, which is a prerequisite to the grant of a Temporary (Humanitarian Concern) visa subclass 786 (THCV), if all other legislative criteria are met. At present, HSTVs are granted for up to 12 months from the date of grant, but it is anticipated that many of these can be transitioned to a THCV during this period if they satisfy necessary checks.
As the Government has acknowledged that these cohorts, once checks are satisfied, have engaged Australia’s protection obligations, there are certain provisions under the Refugees Convention that must be met. This includes social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme). Therefore, to ensure Australia meets its obligations it is necessary to ensure that there is Medicare eligibility attached to both the HSTV and THCV. A separate subsection 6(1) order is already in place for the THCV.
Note: The name of this instrument was amended on registration as the instrument as lodged did not have a unique name (see subsection 10(2), Legislation Rule 2016).
Overview
The Health Insurance (Eligible persons unauthorised maritime arrivals and holders of Humanitarian Stay (Temporary) visa) Order 2017 was enacted by the Australian Government in 2017 to address a gap in the eligibility criteria for Medicare under the Health Insurance Act 1973. This order was introduced to ensure that unauthorised maritime arrivals who hold a Humanitarian Stay (Temporary) visa (Subclass 449) are treated as eligible persons for the purposes of the Act. The order was made by Greg Hunt, the Minister for Health, under subsection 6(1) of the Act. The policy objective of this order is to ensure that Australia meets its obligations under the Refugees Convention, particularly in respect of social security provisions, by providing Medicare eligibility to these individuals.
This legislative instrument aims to bridge the gap for those who, without this order, would not qualify for Medicare, ensuring they receive necessary healthcare services during their stay in Australia. The order aligns with the government's commitment to provide temporary humanitarian visas to individuals who engage Australia's protection obligations and satisfy certain legislative criteria, thereby ensuring that these individuals are not only provided with a pathway to stay in Australia but also with the essential healthcare benefits provided under the Medicare system.
Scope and Application
The Health Insurance (Eligible persons unauthorised maritime arrivals and holders of Humanitarian Stay (Temporary) visa) Order 2017 applies to individuals who are either unauthorised maritime arrivals or holders of a Humanitarian Stay (Temporary) visa (Subclass 449) who were not immigration cleared on their last entry to Australia. These persons are treated as eligible for the purposes of the Health Insurance Act 1973 during their stay in Australia. The Order is made pursuant to subsection 6(1) of the Act and provides a clear delineation of the class of persons who qualify for Medicare under the legislative framework. The terms "unauthorised maritime arrival" and "immigration cleared" are defined by the Migration Act 1958, ensuring that the Order aligns with broader immigration legislation. The Order extends its application nationally, reflecting the federal nature of health insurance regulation in Australia, and it came into effect from the date of signature.
Key Provisions
The main operative sections of this Order (section (a)) declare that certain individuals, specifically unauthorised maritime arrivals or those who were not immigration cleared on their last entry to Australia, and who hold a Humanitarian Stay (Temporary) visa (Subclass 449), shall be treated as eligible persons under the Health Insurance Act 1973 during their stay in Australia. These individuals are to be considered eligible for the purposes of the Act, regardless of their immigration status, thereby ensuring they have access to necessary healthcare services. The terms "unauthorised maritime arrival" and "immigration cleared" are defined in accordance with the Migration Act 1958. This Order, effective from the date of signature, ensures that the government’s obligations under international refugee conventions are met by providing these individuals with Medicare eligibility.
The Order imposes specific obligations on the government and relevant authorities to ensure that individuals falling within the specified class are treated as eligible persons under the Health Insurance Act 1973. This includes the responsibility of the Minister for Health to declare the eligibility of these individuals, thereby facilitating their access to Medicare. The Minister for Immigration and Border Protection also has the responsibility to assess and grant Humanitarian Stay (Temporary) visas to those who meet the legislative criteria, ensuring these individuals are not only protected under Australian immigration laws but also have access to healthcare services. This dual responsibility ensures a coordinated approach to fulfilling both immigration and health obligations.
Breach of the provisions outlined in this Order could result in significant consequences, although specific offences, penalties, or consequences are not detailed in the Order itself. However, under the Health Insurance Act 1973, any failure to provide the necessary healthcare services to eligible persons could result in civil or criminal penalties. Similarly, under the Migration Act 1958, any improper issuance of visas or failure to comply with immigration laws could lead to penalties. Although the maximum penalties are not specified within this Order, they can be substantial under the respective Acts. The overarching intent is to ensure that these vulnerable individuals receive the necessary healthcare services without any legal impediments.