EXPLANATORY STATEMENT
Social Security (Class of Visas—Qualification for Special Benefit) Determination 2005 (No. 2)
The Social Security (Class of Visas—Qualification for Special Benefit) Determination 2005 (No. 2) (the determination) is made under subparagraph 729(2)(f)(v) 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 070 (Bridging (Removal Pending)) (Class WR) visa to be able to qualify for special benefit.
The holders of these subclass 070 visas are unlawful non-citizens who have been held in detention centres for extended periods because of a variety of reasons that have made their removal from Australia difficult. The holders of subclass 070 visas are not refugees.
Background
Section 729 of the Act provides the qualification requirements for special benefit. Subparagraph 729(2)(f)(v) provides that a person does not have to be an Australian resident to qualify for a special benefit provided that the person becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph.
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 commenced on the day on which it is signed.
Section 3 provides that for the purposes of subparagraph 729(2)(f)(v) of the Act a class of visas is subclass 070 (Bridging (Removal Pending)) (Class WR).
Overview
The Social Security (Class of Visas—Qualification for Special Benefit) Determination 2005 (No. 2) was enacted to address a specific gap in the Social Security Act 1991 by enabling individuals holding a subclass 070 (Bridging (Removal Pending)) (Class WR) visa to qualify for special benefits. This subclass pertains to unlawful non-citizens who have been detained in Australian centres for extended periods due to various reasons that complicate their removal from the country, and who are not classified as refugees. The objective of this determination is to ensure that these individuals, despite not being Australian residents, can access special benefits under the Act. The determination was made by the Minister for Social Services under subparagraph 729(2)(f)(v) of the Act, which allows for the specification of visa classes that qualify individuals for special benefits. Notably, the determination was of a minor nature and did not require consultation as it did not substantially alter existing arrangements. The determination officially came into effect on the day it was signed, with subclass 070 (Bridging (Removal Pending)) (Class WR) being the specified class of visa for eligibility.
Scope and Application
The Social Security (Class of Visas—Qualification for Special Benefit) Determination 2005 (No. 2) applies to individuals who hold a subclass 070 (Bridging (Removal Pending)) (Class WR) visa, which pertains to unlawful non-citizens detained in Australia who are not refugees. These individuals, despite not being Australian residents, are granted the ability to qualify for special benefits under the Social Security Act 1991. The determination is made under subparagraph 729(2)(f)(v) of the Act, which outlines that a person does not have to be an Australian resident to qualify for a special benefit if they hold a specific class of visa determined by the Minister. This legislation aims to provide essential support to individuals in a unique immigration status, ensuring they are not left without necessary assistance during their detention and pending removal proceedings. The jurisdictional reach of this determination is federal, governed by the Commonwealth of Australia. The legislation does not include any stated exclusions or exemptions, and its application is strictly limited to the specified subclass 070 visa holders. The determination does not extend or restrict its application through subordinate instruments.
Key Provisions
The main operative sections of the Social Security (Class of Visas—Qualification for Special Benefit) Determination 2005 (No. 2) are found in section 3, which specifies that subclass 070 (Bridging (Removal Pending)) (Class WR) visas qualify for special benefit under the Social Security Act 1991. This means that individuals who hold a subclass 070 visa, who are unlawful non-citizens held in detention for extended periods, can now qualify for special benefit even if they are not Australian residents. This provision is specifically designed to address the needs of these individuals who are not refugees but have been in detention for various reasons that have complicated their removal from Australia.
The Act imposes specific obligations on the parties involved. Firstly, it requires the Department of Social Services to recognise and process applications for special benefits from holders of subclass 070 visas, ensuring these individuals can access the benefits they are entitled to under the Act. Additionally, holders of these visas must comply with all other relevant requirements for special benefits, such as providing necessary documentation and meeting any other conditions set by the Department. This ensures that the benefits are distributed fairly and only to those who qualify under the new provisions.
In terms of consequences for breach, the determination does not explicitly outline specific offences, penalties, or consequences within its text. However, the overarching Social Security Act 1991 provides a framework for dealing with breaches. For instance, fraudulent claims or misrepresentation of facts to obtain special benefits could result in civil or criminal penalties under the Act. Penalties can include fines and, in severe cases, imprisonment. The maximum penalties for such offences are stipulated in the Social Security Act 1991, which could include fines up to a certain amount and imprisonment for a specified period, depending on the nature and severity of the offence.