EXPLANATORY STATEMENT
Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2009
Purpose
The purpose of this Determination is to identify the visa subclasses specified in subsection 4(1) of the Determination that are subject to the newly arrived resident’s waiting period under paragraph 739A(3)(b) and to exempt the visa subclasses specified in subsection 4(2) of the Determination from the newly arrived resident’s waiting period under subsection 739A(6) of the Social Security Act 1991.
This Determination is required to give effect to the amendments that will be made to the Migration Regulations 1994 coming in to operation from 1 July 2009 which will substitute the term "spouse" with the term "partner" to ensure consistency with changes made by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008.
Background
On 1 July 2009, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 amends various Acts to recognise same-sex relationships broadly. Same-sex relationships will be treated in the same way as opposite sex relationships to give equivalent access to benefits and remove discrimination in these contexts. As a result, visa subclasses that have in their name the word “spouse” will be issued under the new name of “partner”.
As a result of these changes, the following visa subclasses under which a spouse or partner could have applied for a visa to enter Australia will be redundant from 1 July 2009:
- subclass 309–Spouse (Provisional);
- subclass 310–Interdependency (Provisional);
- subclass 820–Extended eligibility (spouse); and
- subclass 826–Interdependency (Provisional).
Any applications lodged under the above visa subclasses prior to 1 July 2009 will be processed by the Department of Immigration and Citizenship and these visas may be granted even after 1 July 2009.
From 1 July 2009, partner visa applicants (same sex or otherwise) will be able to apply for:
- provisional visa subclass 309—Partner (Provisional) leading up to a permanent visa subclass 100—Partner; or
- provisional visa subclass 820—Extended eligibility (partner) leading up to a permanent visa subclass 801—Partner.
The 2000 Determination
The Social Security (Declaration of Visa in a class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2000 (the 2000 Determination) declared the following visa subclasses under paragraph 739A(3)(b) of the Social Security Act 1991 as being subject to the newly arrived resident’s waiting period:
- subclass 309—Spouse (Provisional);
- subclass 310—Interdependency (Provisional);
- subclass 820—Extended eligibility (spouse);
- subclass 826—Interdependency (Provisional);
This Determination also declared the following visa subclasses under subsection 739A(6) of the Social Security Act 1991 to be exempt from the newly arrived resident’s waiting period:
- subclass 785 (Temporary Protection);
- subclass 786 (Class UO) Temporary (Humanitarian Concern);
- subclass 832—Close ties; and
- subclass 833—Certain unlawful citizens
The 2001 Determination
The Social Security (Declaration of Visa in a class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2001 (the 2001 Determination), made under subsection 739A(6) of the Act, declared two further visa subclasses to be exempt from the newly arrived resident’s waiting period:
- subclass 447 (Secondary Movement Offshore Entry (Temporary)) (Class XB); and
- subclass 451 (Secondary Movement Relocation (Temporary)) (Class XB).
The 2009 Determination
The Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2009 (the 2009 Determination) revokes the 2000 Determination and the 2001 Determination then declares all of the classes of visas that were previously included in the 2000 Determination and the 2001 Determination. It also declares visa subclasses 309 and 820 where the description has changed from ‘spouse’ to ‘partner’.
The 2009 Determination commences on the later of 1 July 2009 or the day after it is registered.
Explanation of the provisions
Section 1 of the Determination states the name of the legislative instrument
Section 2 states that the Determination commences on 1 July 2009 or the day after it is registered, whichever is the later.
Section 3 of the Determination states that the Social Security (Declaration of Visa in a class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2000 and the Social Security (Declaration of Visa in a class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2001 are revoked.
Subsection 4(1) provides that the following visa subclasses are declared for the purposes of paragraph 739A(3)(b) of the Social Security Act 1991 the classes of visas are:
(i) subclass 309—Partner (Provisional);
(ii) subclass 309—Spouse (Provisional);
(iii) subclass 310—Interdependency (Provisional);
(iv) subclass 820—Extended eligibility (partner);
(v) subclass 820—Extended eligibility (spouse); and
(vi) subclass 826—Interdependency (Provisional);
Subsection 4(2) provides that the following visa subclasses are declared for the purposes of subsection 739A(6) of the Social Security Act 1991 the classes of visas are:
(i) subclass 447 (Secondary Movement Offshore Entry (Temporary)) (Class XB);
(ii) subclass 451 (Secondary Movement Relocation (Temporary)) (Class XB);
(iii) subclass 785 (Temporary Protection);
(iv) subclass 786 (Class UO) Temporary (Humanitarian Concern);
(v) subclass 832—Close ties; and
(vi) subclass 833—Certain unlawful citizens.
Consultation
This Determination was prepared in consultation with the Department of Immigration and Citizenship.