EXPLANATORY STATEMENT
Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2005
The Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2005 (the determination) is made under subsection 739A(6) of the Social Security Act 1991 (the Act).
Purpose
The purpose of the determination is to enable any person who is the holder of a subclass 787 (Witness Protection (Trafficking) (Temporary)) visa or the holder of a subclass 852 (Witness Protection (Trafficking) (Permanent)) visa to be able to access special benefit without having to serve the newly arrived resident’s waiting period of 104 weeks, provided that the person was the former holder of a criminal justice stay visa granted under subsection 155(2) of the Migration Act 1958.
The holders of these subclass 787 and 852 visas will have assisted in the administration of criminal justice in relation to the offence of people trafficking, sexual servitude or deceptive recruiting, and are at risk of significant personal danger if they were to return to their home country.
Background
Subsections 739A(1) and (5) of the 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 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 paragraph 739A(1)(e) of the Act. Subsection 739A(1) of the Act commenced on 4 March 1997.
Subsection 739A(6) of the Act enables the Minister to make a determination that neither subsection 739A(1) nor (2) of the Act applies to a person who holds a visa or was a former holder of a visa in a class of visas for the purposes of this subsection.
It is expected thatGenerally, any person granted a subclass 787 visa or a subclass 852 visa will have already been previously been granted a criminal justice stay visa and this visa has already been specified in a former subsection 739A(6) determination (see Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2004 see special gazette S 25 of 5 February 2004). This means that any person who was a former holder of a specified visa would not have to serve the 104 weeks newly arrived resident’s waiting period.On occasion proof that a person held a former specified visa may not be readily available. The Australian Government does not want any person who has assisted in the administration of criminal justice in relation to the offence of people trafficking, sexual servitude or deceptive recruiting to be disadvantaged.
This disallowable instrument will ensure that only holders of a subclass 787 or 852 visa who were former holders of a criminal justice stay visa granted under subsection 155(2) of the Migration Act 1958 will be exempt from the newly arrived residents waiting period.
The Minister has also determined under subparagraph 729(2)(f)(v) of the Act that any person who is the holder of a subclass 787 visa will be able to access special benefit provided that the person was the former holder of a criminal justice stay visa granted under subsection 155(2) of the Migration Act 1958. A person who holds a subclass 852 visa will be able to access special benefit because this visa is a permanent visa meaning that the holder of which is an Australian resident.
Consultation
No consultation in relation to the determination was undertaken because this legislative instrument is of a minor or machinery nature that does not substantially alter existing arrangements.
Explanation of the provisions
Section 1 of the determination states the name of the determination.
Section 2 states that the determination commences on the day following the registration of the determination on the Federal Register of Legislative Instruments.
Section 3 provides that any person who is the holder of a subclass 787 (Witness Protection (Trafficking) (Temporary)) visa or the holder of a subclass 852 (Witness Protection (Trafficking) (Permanent)) visa 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 2005 was enacted to address the issue of newly arrived residents who hold specific visas and face barriers in accessing special benefits due to a mandatory waiting period. This legislation is made under the authority of subsection 739A(6) of the Social Security Act 1991. Its policy objective is to ensure that individuals who hold a subclass 787 (Witness Protection (Trafficking) (Temporary)) visa or a subclass 852 (Witness Protection (Trafficking) (Permanent)) visa, having previously contributed to the administration of criminal justice in cases involving people trafficking, sexual servitude, or deceptive recruiting, can access special benefits without the requirement to serve the 104-week waiting period. These individuals are at significant risk if they were to return to their home countries, hence the need to expedite their eligibility for benefits.
Scope and Application
The Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2005 applies to individuals who hold a subclass 787 (Witness Protection (Trafficking) (Temporary)) visa or a subclass 852 (Witness Protection (Trafficking) (Permanent)) visa. These visas are granted to individuals who have assisted in the administration of criminal justice in relation to people trafficking, sexual servitude, or deceptive recruiting, and who face significant personal danger if they return to their home country. The determination exempts these individuals from the 104-week waiting period that newly arrived residents typically must serve to access special benefits under the Social Security Act 1991. This exemption applies provided the individual was a former holder of a criminal justice stay visa granted under the Migration Act 1958. The scope of this Act is national, applying across Australia, and it was designed to ensure that individuals who have made significant contributions to combating serious criminal activities are not unduly disadvantaged. The Act does not apply to any other classes of visas, and its provisions are enforced within the framework of the Social Security Act 1991, which governs social security benefits in Australia.
Key Provisions
The Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2005 (section 3) allows holders of a subclass 787 (Witness Protection (Trafficking) (Temporary)) visa or a subclass 852 (Witness Protection (Trafficking) (Permanent)) visa to access special benefits without having to serve the usual 104-week waiting period for newly arrived residents. This exemption is available to those who were former holders of a criminal justice stay visa under the Migration Act 1958. The aim of this determination is to ensure that individuals who have assisted in the administration of justice related to people trafficking, sexual servitude, or deceptive recruiting, and who are at significant risk if they return to their home country, do not face unnecessary barriers in accessing social security benefits.
The determination imposes specific obligations on the Department of Social Services and the Department of Home Affairs, requiring them to verify that an individual holds one of the specified visas and was previously a holder of a criminal justice stay visa. This verification is necessary for the individual to be eligible for the exemption from the waiting period. Furthermore, it requires these departments to ensure that only those who genuinely meet the criteria outlined in the determination are granted the exemption, thereby maintaining the integrity of the social security system.
Failure to comply with the requirements of this determination can lead to significant consequences. While the determination itself does not explicitly list specific offences or penalties, the underlying Social Security Act 1991 (section 739A) provides for potential penalties for non-compliance with social security provisions. Individuals who falsely claim eligibility for the exemption may face legal action, including fines and potential prosecution, under the broader framework of the Social Security Act. This underscores the importance of accurate and truthful information when applying for social security benefits under this determination.