Explanatory Statement
Issued by the authority of the Minister for Social Services
Social Security Act 1991
Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Determination 2017
Summary
Under subsection 201AA(5B) of the Social Security Act 1991 (the Act), the Minister may, by legislative instrument, determine a class of visas for the purposes of subsection 201AA(5).
The purpose of the Social Security (Class of Visas – Newly Arrived Resident’s Waiting Period for Carer Payment) Determination 2017 (the Determination) is to exempt holders of Carer visas (subclass 116) and (subclass 836) from the Newly Arrived Resident’s Waiting Period (NARWP) for carer payment.
Background
A person may be qualified for carer payment if, among other things, they are an Australian resident or the holder of a visa that is in a class of visas determined by the Minister for the purposes of subsection 201AA(5) of the Social Security Act 1991 (the Act).
Subsection 201AA(1) provides 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 a period of, or periods totalling, 104 weeks.
Subsection 201AA(5) provides that a NARWP does not apply to a person if, at the time the person made a claim for carer payment, the person holds a visa that is in a class of visas determined in an instrument under subsection 201AA(5B).
This Determination provides that at the time a claim for carer payment was made, holders of subclass 116 (carers) and subclass 836 (carers) visas, are exempt from the NARWP.
These visas are intended for individuals who have migrated to Australia for the specific purpose of caring for their relatives in Australia who are 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.
Commencement
The Determination commences on 1 October 2017, and is repealed on 1 October 2018.
This Determination will commence on 1 October 2017 immediately following the cessation of the Social Security (Declaration of Visa is a class of Visas – Newly Arrived Resident’s Waiting period for Carer Payment) Determination 2000 (the 2000 Determination) on that date. The 2000 Determination ceased operation on 1 October 2017 due to the sunsetting provisions in the Legislation Act 2003.
The Determination is a beneficial instrument and once made will have retrospective application from 1 October 2017. The Determination does not adversely affect any person’s rights so as to disadvantage the person or impose liabilities on the person. The result of the retrospective commencement will be that all claims for carer payment made since the previous instrument sunsetted by persons who are holders of the relevant visas will result in the person not be subject to a NARWP.
The Determination is repealed on 1 October 2018. Under subsection 33(3) of the Acts Interpretation Act 1901, 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.
This is a longstanding provision, having been in place since 2000 and has not been reviewed to determine its effectiveness and suitability in meeting the needs of Australian residents requiring care. The term of the current determination is limited to 12 months to allow for assessment of this exemption.
Explanation of provisions
Section 1 of the Determination states the name of the Determination.
Section 2 provides that the Determination commences on 1 October 2017
Section 3 provides that the Determination is repealed on 1 October 2018, which will take effect from the start of that day.
Section 4 provides that the authority for making this Determination is subsection 201AA(5B) of the Act.
Section 5 provides that subclass 116 (carer) and subclass 836 (carer) visas are in a class of visas for the purposes of subsection 201AA(5) of the Act. The effect of this is that a NARWP for carer payment does not apply to the holder of one of these two visa subclasses.
Consultation
The Department of Immigration and Border Protection was consulted and confirmed Carer visas (Subclassed 116 and 836) are still current.
Regulation Impact Statement OBPR ID 22651
The Office of Best Practice Regulation (the OBPR) was consulted in relation to the amendments made by the Regulations. The OBPR considers that the changes in the Regulations have minor regulatory impacts, and therefore a Regulation Impact Statement is not required.
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) Determination 2017
The 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 2017 (the Determination) is to exempt holders of Carer visas (subclass 116) and (subclass 836) from the NARWP for carer payment.
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 14(2)(h) of the CEDAW and Article 28 of the CRPD.
The Determination will provide financial assistance, in the form of more immediate access to social security payments, to those who are granted a (subclass 116) and (subclass 836) visa. As such, the Determination is consistent with Australia’s international obligations under the ICESCR, the CEDAW and the CRPD
Conclusion
This Determination is compatible with human rights.
The Hon Christian Porter MP, the Minister for Social Services.