EXPLANATORY STATEMENT
Issued by the authority of the Minister for Social Services
Social Security Act 1991
Social Security (Class of Visa – Automatic Issue Health Care Card – Residence Requirement) Declaration 2018
Purpose
The Social Security (Class of Visa – Automatic Issue Health Care Card – Residence Requirement) Declaration 2018 (the Declaration) is made under subparagraph 1016ZN(1)(a)(ii) of the Social Security Act 1991 (the Act).
The purpose of the Declaration is to provide for holders of certain visas to qualify for an automatic issue health care card under sections 1061ZK, 1016ZM and 1061ZMA of the Act on a day on which the person is in Australia. The Declaration enables prescribed visa holders to qualify for a card when they satisfy the requirements in section 1061ZK, but does not, of itself, make them eligible.
Background
Section 1061ZN of the Act provides that sections 1061ZK, 1061ZM and 1061ZMA only have effect in relation to a person on a day on which the person is in Australia and is, among other things the holder of a visa that is in a class of visas determined by the Minister for the purposes of subparagraph 1061ZN(1)(a)(ii).
Subsection 1061ZK(1) provides that a person is qualified for an automatic issue Health Care Card if section 1061ZK applies to the person on that day. Subsections 1061ZK(2) to (7) provide for when section 1061ZK applies to a person on a day, including if the person is, on that day, receiving (among others) a Newstart Allowance, Sickness Allowance or Special Benefit.
Sections 1061ZM and 1061ZMA respectively provide for the continuation and extension of a person’s qualification for an automatic issue Health Care Card where commencement of employment by, or employment income of, the person or their partner would otherwise result in a loss of qualification for the Health Care Card.
In practice, this Declaration enables temporary visa holders who are granted Special Benefit or Family Tax Benefit Part A by instalment to qualify for an automatic Health Care Card. In addition, this instrument will enable temporary visa holders granted Special Benefit to retain their Health Care Card for a period (generally 26 weeks) following cancellation of Special Benefit due to them or their partner either commencing employment or increasing their employment income.
Due to an oversight, this Declaration has not previously been made. As Health Care Cards are issued on an annual basis, the effect of the Declaration will be retrospective to ensure that current holders of automatic issue Health Care Cards are not adversely affected by operation of this Declaration. The Declaration is beneficial in nature and will not adversely impact any individuals.
Health Care Card holders may receive medicines listed on the Pharmaceutical Benefit Scheme at the concessional rate, bulk-billed General Practitioner (GP) appointments, at the discretion of the GP, and a reduction in the cost of out-of-hospital medical expenses, above a concessional threshold, through access to the lower threshold of the Extended Medicare Safety Net.
Explanation of Provisions
Section 1 provides the name of the Declaration.
Section 2 provides that the Declaration commences on 1 April 2017. The Declaration has been backdated to commence on this date to ensure that cards issued for the current year will be validated. Cards issued prior to this time will have expired. This Declaration has retrospective effect, but as it is beneficial in nature does not adversely impact on any individual.
Subsection 12(3) of the Legislation Act 2003 (Legislation Act) permits legislative instruments to commence before they are registered, subject to subsection 12(2). Subsection 12(2) of the Legislation Act applies to this Declaration but would not invalidate the retrospective application due to the matters set out in the following paragraph.
It is necessary and appropriate to backdate commencement of the Declaration to 1 April 2017. This will validate existing automatically issued Health Care Cards.
Retrospective commencement will not affect the rights of any person so as to disadvantage the person or impose any liabilities on any person in respect of anything done or omitted to be done before that day. Rather, it will ensure that certain people will continue to have access to certain benefits.
Section 3 provides that the authority for making this Declaration is subparagraph 1061ZN(1)(a)(ii) of the Act.
Section 4 defines Act as the Social Security Act 1991.
Section 5 determines classes of visas for the purposes of subparagraph 1061ZN(1)(a)(ii) of the Act. The classes of visas are:
(a) Subclass 060 (Bridging F);
(b) Subclass 070 (Bridging (Removal Pending));
(c) Subclass 309 (Partner (Provisional));
(d) Subclass 449 (Humanitarian Stay (Temporary));
(e) Subclass 785 (Temporary Protection);
(f) Subclass 786 (Temporary (Humanitarian Concern));
(g) Subclass 790 (Safe Haven Enterprise); and
(h) Subclass 820 (Partner).
Consultation
The Department of Home Affairs was consulted to ensure that the visa classes determined by this Declaration are correct and current. The Department of Human Services was also consulted regarding the classes of visas under which these Health Care Cards are issued. Public consultation was considered unnecessary because this Declaration is administrative in nature. There are no substantive changes to the law as a result of this determination.
Regulation Impact Statement (RIS)
The Declaration does not require a Regulation Impact Statement because it is not regulatory in nature, will not impact on business activity and will have no or minimal compliance costs or competition impact.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Class of Visa – Automatic Issue Health Care Card – Residence Requirement) Declaration 2018
The Social Security (Class of Visa – Automatic Issue Health Care Card – Residence Requirement) Declaration 2018 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.
Overview of the Legislative Instrument
The Social Security (Class of Visa – Automatic issue Health Care Card – Residence Requirement) Declaration 2018 (the Declaration) is made under subparagraph 1016ZN(1)(a)(ii) of the Social Security Act 1991 (the Act).
This Declaration enables temporary visa holders who are granted Special Benefit or Family Tax Benefit Part A by instalment to qualify for an automatic Health Care Card. In addition, this instrument will enable temporary visa holders granted Special Benefit to retain their Health Care Card for a period (generally 26 weeks) following cancellation of Special Benefit due to them or their partner either commencing employment or increasing their employment income.
Health Care Card holders may receive medicines listed on the Pharmaceutical Benefit Scheme at the concessional rate, bulk-billed General Practitioner (GP) appointments at the discretion of the GP, and a reduction in out-of-hospital medical expenses, above a concessional threshold, through access to the lower threshold of the Extended Medicare Safety Net.
Human rights implications
This Declaration is compatible with and does not detract from any of the applicable rights or freedoms of recipients. Members of the designated groups will benefit positively in terms of their right to health by having access to concessional rates of health care and pharmaceuticals. As the measure also applies to persons holding designated humanitarian visas, it enhances the affordability of health care to this group and increases their quality of life and standard of living. The absence of this measure will deny these rights to certain vulnerable groups of people in the community.
The measure provides access to a Health Care Card under the right to health incorporated in relevant conventions to which Australia is a party, as listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
As Health Care Cards are generally issued on an annual basis, the effect of the Declaration will be retrospective to ensure that the rights of current holders of automatic issue Health Care Cards are not affected in a way that would disadvantage or impose any liabilities on them.
Conclusion
This Declaration is compatible with human rights as it does not raise any human rights issues and, in effect, enhances the rights of beneficiaries to accessible and affordable health care.
The Hon Dan Tehan, Minister for Social Services