EXPLANATORY STATEMENT
Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2004
The Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2004 (the determination) is made under subsection 739A(6) of the Social Security Act 1991 (the Social Security Act).
Purpose
The purpose of the determination is to enable certain non-citizens who are assisting in the administration of criminal justice in relation to the offence of people trafficking, sexual servitude or deceptive recruiting to be able to access special benefit without having to serve the newly arrived resident’s waiting period of 104 weeks.
Background
Subsections 739A(1) and (5) of the Social Security Act provide that a person is subject to a newly arrived resident’s waiting period of 104 weeks if that person enters Australia on or after the commencement of subsection 739A(1) of the Social Security Act, or becomes the holder of a permanent visa, or becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of subparagraph 739A(1)(e) of the Social Security Act. Subsection 739A(1) of the Social Security Act commenced on 4 March 1997.
Subsection 739A(6) of the Social Security Act enables the Minister to make a determination that neither subsection 739A(1) nor (2) of the Social Security Act applies to a person who holds a visa in a class of visas for the purposes of this subsection.
People trafficking, sexual servitude or deceptive recruiting are fundamental abuses of human rights.
The internationally agreed definition of trafficking in persons is contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (the Protocol). Australia signed the Protocol in December 2002. The Protocol defines trafficking in persons as:
the recruitment, transportation, transfer, harbouring or receipt of persons; by means of the threat or use of, force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation. (Article 3, paragraph (a)).
The main focus in Australia at the present time is trafficking of women for the purposes of sexual exploitation, but trafficking can occur for other purposes as well.
Enabling victims of trafficking who are cooperating in the administration of criminal justice in relation to people trafficking offences to access special benefit without having to serve the newly arrived resident’s waiting period of 104 weeks, will assist in their recovery and rehabilitation. It will also contribute to the apprehension and conviction of traffickers by providing victims with a means of financial support to enable them to remain in Australia to assist authorities.
The victim support program initiated by the Australian Government will fund contract case managers to deliver a comprehensive suite of support measures for victims. Case managers will provide individualised care and support which will link victims to secure accommodation; access to medical treatment including through Medicare and the Pharmaceutical Benefits Scheme; training such as English language and skills development courses; access to legal services; and social support.
Those victims who agree to stay in Australia to assist authorities with criminal investigations will receive, in addition to the above range of support services, income support in the form of special benefit payments under the social security law. The Minister has determined under subparagraph 729(2)(f)(v) of the Social Security Act that any person who is the holder of a criminal justice stay visa granted under the Migration Act 1958 for the purposes of assisting in the administration of criminal justice in relation to the offences of people trafficking, sexual servitude and deceptive recruiting will be able to access special benefit.
The Minister has also determined under subparagraph 739A(6) of the Social Security Act that neither subparagraph 739A(1) or (2) of the Social Security Act would apply to these people. Therefore they will not be subject to a newly arrived resident’s waiting period and special benefit will be payable immediately rather than after the person has been in Australia for 104 weeks.
Explanation of the provisions
Section 1 of the determination states the name of the determination.
Section 2 states that the determination commences on gazettal.
Section 3 provides that any person who is the holder of a criminal justice stay visa granted under the Migration Act 1958 for the purposes of assisting in the administration of criminal justice in relation to the offence of people trafficking, sexual servitude or deceptive recruiting will not be subject to a newly arrived resident’s waiting period.