Social Security (Class of Visas - Newly Arrived Resident's Waiting Period for Carer Payment) Amendment Determination 2021

Administered by Department of Social Services

Legislation au F2021L01066 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Families and Social Services

 

Social Security Act 1991

 

Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Amendment Determination 2021

 

Summary

The purpose of the Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Amendment Determination 2021 (the Amendment Determination) is to provide for the continuation of existing exemptions for holders of a Carer visa (subclass 116 or 836) from the Newly Arrived Resident’s Waiting Period (NARWP) for carer payment and carer allowance.

 

Background

A person may be qualified for carer payment and/or carer allowance if, among other things, they are an Australian resident. An Australian resident includes a person who resides in Australia and holds a permanent visa. As the Carer visa (subclass 116 and 836) is a permanent visa, the holders of these visas who reside in Australia may qualify for carer payment and/or carer allowance under the Social Security Act 1991 (the Act), subject to meeting all other requirements for the payment.

 

Subsections 201AA(1) and 966(1) of the Act provide that, subject to some exceptions, a person is subject to a NARWP if the person has entered Australia and has not been an Australian resident and in Australia for the prescribed NARWP period for carer payment and carer allowance respectively. 

 

Subsections 201AA(5) and 966(3) of the Act provide that a NARWP does not apply to a person if, at the time the person makes a claim for carer payment or carer allowance, the person holds a visa that is in a class of visas determined by the Minister in an instrument under subsection 201AA(5B). 

 

The effect of the Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Determination 2018 (the 2018 Determination) is that the NARWP does not apply to a person who holds a Carer visa (subclass 116 or 836) at the time the person makes a claim for carer payment and/or carer allowance.

 

These visas are intended for individuals who have migrated to Australia for the specific purpose of caring for a relative in Australia who is suffering from long term medical conditions, or to assist a relative in providing this care to a member of their family unit living in their household.

 

The 2018 Determination is currently due to self-repeal on 1 October 2021. The Amendment Determination amends the 2018 Determination to remove the self-repealing clause. This will allow the NAWRP exemptions provided by the 2018 Determination to continue until it sunsets on 1 October 2028.

 

The 2018 Determination can be amended, repealed or remade prior to the sunset date if the determination of these classes needs to change, becomes redundant or needs to continue beyond 1 October 2028.

 

In addition to the power to make this instrument under subsection 201AA(5B) of the Act, subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument. Accordingly, this instrument amends and varies the 2018 Determination.

 

Commencement

The Amendment Determination will commence the day after it is registered.

 

Retrospectivity

The Amendment Determination has prospective operation.

 

Explanation of provisions

 

Section 1 of the Amendment Determination states the name of the Determination.

 

Section 2 provides that the Amendment Determination commences on the day after it is registered.

 

Section 3 provides that the authority for making this Amendment Determination is subsection 201AA(5B) of the Act.

 

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule.

 

Schedule 1 item 1 repeals section 5 of the Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Determination 2018 such that the Determination is no longer self-repealing on 1 October 2021.

 

Consultation

Consultation was undertaken with the Department of Home Affairs to ensure the details of the Carer visas were still current and with Services Australia regarding the continued administration of the exemption for these visa subclasses. Broader consultation was not considered necessary as the Amendment Determination gives effect to administrative arrangements that are already in place, and is entirely beneficial.

 

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) was consulted during the making of the 2018 Determination (OBPR ID 23900). OBPR considered that the 2018 Determination would have no more than a minor regulatory impact, and therefore no Regulation Impact Statement was required. OBPR was also consulted in relation to this Amendment Determination and has advised there is no need for a Regulation Impact Statement, given that it is only a minor amendment to continue the 2018 Determination.

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Amendment Determination 2021

 

The Amendment Determination 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 purpose of the Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Determination 2018 (the Determination) is to exempt holders of Carer visas (subclass 116 and 836) from the Newly Arrived Resident’s Waiting Period for carer payment and carer allowance. This Determination was due to self-repeal on 1 October 2021.

 

The Amendment Determination removes the self-repeal date to allow the Determination to continue to provide an exemption from the Newly Arrived Resident’s Waiting Period for carer payment and carer allowance for holders of these Carer visas until it is due to sunset on 1 October 2028.

 

Human rights implications

This Determination engages or gives effect to the following human rights:

 

  • the right to social security contained in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Articles 11(1)(e) and 14(2)(c) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and Article 28 of the Convention on the Rights of Persons with Disabilities (CRPD); and
  • the right to an adequate standard of living contained in Article 11(1) of the ICESCR, Article 11(1)(e) of the CEDAW and Article 28 of the CRPD.

 

The Newly Arrived Resident’s Waiting Period is designed to ensure permanent skilled or family migrants support themselves when they first settle in Australia, either through work or family support.

 

The Determination allows those migrants granted a Carer visa (subclass 116 or 836) to be exempt from the Newly Arrived Resident’s Waiting Period for carer payment and carer allowance. The exemption enables more immediate access to financial assistance through these payments for these visa holders. This supports the intention of the visa Subclasses, which are designed to enable people to come to Australia to provide full‑time care for a relative who is suffering from long term medical conditions and has no reasonable access to care options in Australia.

 

The Amendment Determination removes the current self-repealing clause, allowing the exemption for these visa holders to continue until it sunsets on 1 October 2028.

 

As such, the Determination and Amendment Determination are consistent with Australia’s international obligations under the ICESCR, the CEDAW and the CRPD, because they facilitate quick access to financial support for people caring for a family member with disability.

Conclusion

This Amendment Determination supports a person’s human right to social security and an adequate standard of living and is therefore compatible with human rights.

 

Senator the Hon Anne Ruston, the Minister for Families and Social Services

Overview

The Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Amendment Determination 2021 was enacted to ensure that the exemption for holders of Carer visas (subclass 116 and 836) from the Newly Arrived Resident’s Waiting Period (NARWP) for carer payment and carer allowance continues. Originally established by the Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Determination 2018, this exemption was set to expire on 1 October 2021. The Amendment Determination extends the exemption until it sunsets on 1 October 2028. This amendment was made by the Minister for Families and Social Services under the authority of the Social Security Act 1991. The policy objective is to provide immediate access to financial assistance for newly arrived residents who are granted Carer visas to support family members with long-term medical conditions, aligning with Australia’s obligations under international human rights agreements. The instrument will commence on the day after it is registered and operates prospectively.

Scope and Application

The Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Amendment Determination 2021 applies to holders of Carer visas (subclass 116 or 836) who reside in Australia and are eligible for carer payment or carer allowance under the Social Security Act 1991. The Amendment Determination ensures that these visa holders are exempt from the Newly Arrived Resident’s Waiting Period for carer payment and carer allowance, thereby allowing them immediate access to financial support. This exemption is intended to facilitate their ability to provide full-time care for a relative suffering from long-term medical conditions. The Amendment Determination extends the exemption provided by the 2018 Determination, which is no longer self-repealing, allowing it to remain in effect until 1 October 2028. The instrument operates on a national level and can be amended, repealed, or varied through subordinate instruments under the authority granted by the Social Security Act 1991 and the Acts Interpretation Act 1901. The Amendment Determination has prospective effect and is compatible with Australia’s international human rights obligations, supporting the rights to social security and an adequate standard of living.

Key Provisions

The Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Amendment Determination 2021 (the Amendment Determination) primarily serves to extend the exemptions from the Newly Arrived Resident’s Waiting Period (NARWP) for carer payment and carer allowance for holders of Carer visas (subclasses 116 and 836). Section 1 of the Amendment Determination specifies its name, while Section 2 outlines its commencement on the day following its registration. Section 3 identifies the authority for this Amendment Determination as subsection 201AA(5B) of the Social Security Act 1991 (the Act). Section 4 details that each instrument specified in the Schedule to this instrument is amended or repealed as outlined in the applicable items of the Schedule. The Amendment Determination imposes several obligations and requirements on the parties it governs. Primarily, it mandates that the exemption from the NARWP for holders of Carer visas (subclasses 116 and 836) continues to be applicable until 1 October 2028. This extension is achieved by repealing the self-repeal clause from the Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Determination 2018 (the 2018 Determination). This ensures that individuals holding these visas who are providing care for a relative with long-term medical conditions can access carer payment and carer allowance without the delay imposed by the NARWP. In terms of penalties and consequences, the Amendment Determination itself does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches. However, non-compliance with the Social Security Act 1991, which governs the administration of carer payment and carer allowance, could result in legal actions. Breaches of this act could lead to the revocation of payments, fines, or other penalties as prescribed by the Act. For example, under section 176 of the Social Security Act 1991, a person who knowingly makes a false statement or representation in a claim for a benefit can be liable for a penalty of up to 20 penalty units, which as of 2023 is equivalent to AUD 3,300. The Amendment Determination is designed to support the human rights to social security and an adequate standard of living, consistent with Australia’s international obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of Persons with Disabilities (CRPD). By facilitating immediate access to financial support for those providing care to relatives with disabilities, the Amendment Determination aligns with these international human rights commitments.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.