Social Security (Class of Visas — Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2004

Administered by Department of Social Services

Legislation au F2007B00207 Not in force Legislative Instrument

Legislation content

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.

 

Overview

The Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2004 was enacted to address a significant gap in the social security provisions for non-citizens assisting in the administration of criminal justice, particularly in cases involving people trafficking, sexual servitude, or deceptive recruiting. This determination was made under subsection 739A(6) of the Social Security Act 1991, with the intent of enabling victims of these heinous crimes to access special benefit without having to serve the standard 104-week waiting period applicable to newly arrived residents. The enactment of this legislation by the Australian Parliament reflects a policy objective to support and rehabilitate victims of trafficking, thereby facilitating their cooperation with authorities in apprehending and convicting traffickers. This determination ensures that victims who agree to stay in Australia to assist with criminal investigations receive immediate income support through special benefit payments, thus contributing to both their recovery and the broader goal of combating human trafficking.

Scope and Application

The Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2004 applies to non-citizens who hold a criminal justice stay visa under the Migration Act 1958, specifically for those assisting in the administration of criminal justice in relation to the offences of people trafficking, sexual servitude or deceptive recruiting. These individuals are exempt from the newly arrived resident’s waiting period of 104 weeks, which is typically required before they can access special benefits under the Social Security Act 1991. This determination enables immediate access to special benefit, providing financial support that is crucial for their recovery and rehabilitation, and facilitating their continued cooperation with authorities in criminal investigations. The determination operates within the Commonwealth jurisdiction and is an extension of the Social Security Act, allowing for flexibility and adaptation through subordinate instruments as needed to meet evolving circumstances and ensure comprehensive support for victims of trafficking.

Key Provisions

The Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2004 primarily exempts non-citizens assisting in the administration of criminal justice related to people trafficking, sexual servitude, or deceptive recruiting from the 104-week waiting period for special benefits (Section 3). This is achieved by ensuring that these individuals do not fall under the purview of subsections 739A(1) or (2) of the Social Security Act. This determination is grounded in the recognition that these individuals, who are often victims themselves, need immediate financial support to facilitate their recovery and enable them to assist law enforcement agencies effectively. Under this determination, any person holding a criminal justice stay visa for assisting in the administration of criminal justice concerning people trafficking, sexual servitude, or deceptive recruiting is eligible for special benefit without the requisite waiting period (Section 3). This allows immediate access to income support, which is crucial for their stability and ability to contribute to ongoing investigations. The support extends beyond financial assistance to include access to medical treatment, language and skills training, legal services, and social support, ensuring a comprehensive recovery and rehabilitation process. The obligations imposed by this Act are primarily on the Australian Government and the Department of Social Services, ensuring that eligible individuals are swiftly identified and provided with the necessary support. Contract case managers, funded by the government's victim support program, are responsible for delivering this support, which includes linking victims to secure accommodation, medical treatment, and other essential services. The Department of Home Affairs also plays a role by granting the necessary visas and ensuring that these individuals are recognised and supported in their efforts to assist with criminal justice processes. Failure to comply with the provisions of this determination can result in administrative penalties or other legal consequences. While the determination itself does not explicitly outline penalties for non-compliance, breaches of related provisions in the Social Security Act or Migration Act could incur fines or other sanctions. It is critical that all parties involved adhere to the guidelines set forth to ensure the effective implementation of this support mechanism for victims of human trafficking and related offences.

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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.