EXPLANATORY STATEMENT
Issued by the authority of the Minister for Social Services
Social Security Act 1991
Social Security (Class of Visas – Qualification for Special Benefit) Determination 2015
Purpose
The purpose of this Determination is to grant qualification for Special Benefit under subparagraph 729(2)(f)(v) of the Social Security Act 1991 (the Act) to holders of a Subclass 790 (Safe Haven Enterprise) visa.
Background
In broad terms, a person may be qualified for special benefit under the Act if they are:
- in severe financial hardship;
- unable to earn a sufficient livelihood for themselves and dependants due to reasons beyond their control;
- not qualified for any other income support payment; and
- an Australian resident or the holder of a temporary visa in a class of visas determined by the Minister for the purpose of subparagraph 729(2)(f)(v) of the Act.
A number of different visa classes have been determined for the purpose of subparagraph 729(2)(f)(v) of the Act. Those determinations are unaffected by this Determination.
The Subclass 790 visa is a subclass of the Safe Haven Enterprise (Class XE) visa. It is a temporary protection visa and can be granted to an illegal maritime arrival who:
- has been assessed as engaging Australia’s protection obligations;
- has fulfilled health, character, security and identity checks; and
- has indicated in writing an intention to work or study in regional Australia.
Summary
This Determination specifies Subclass 790 (Safe Haven Enterprise) visa as a class of visa for the purpose of subparagraph 729(2)(f)(v) of the Act.
This Determination is a legislative instrument for the purpose of the Legislative Instruments Act 2003.
Explanation of the provisions
Section 1 sets out the name of the Determination.
Section 2 provides that the Determination commences immediately after Division 2 of Part 1 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legal Caseload) Act 2014 commences. This Division inserts the Subclass 790 visa into the Migration Regulations 1994. That Division commences on a single day to be fixed by Proclamation or 6 months after the day on which the Migration Amendment Act receives the Royal Assent, whichever occurs first. The Migration Amendment Act received the Royal Assent on 15 December 2014.
Section 3 provides that Subclass 790 (Safe Haven Enterprise) is a class of visa for the purpose of subparagraph 729(2)(f)(v) of the Act. The effect of this is that Subclass 790 visa holders will meet the residence requirements for Special Benefit.
Consultation
The Department of Employment and the Department of Immigration and Border Protection was consulted in relation to this Determination to ensure a consistent approach between Australian Government agencies.
Public consultation was considered to be unnecessary as this Determination is purely beneficial in character, extending a payment to a visa class.
Regulation Impact Analysis
The Determination does not require a Regulation Impact Statement because the Determination is not regulatory in nature, will not impact on business activity and will have no or minimal compliance costs or competition impact.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Class of Visas – Qualification for Special Benefit) Determination 2015
The Social Security (Class of Visas – Qualification for Special Benefit) Determination 2015 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Social Security (Class of Visas – Qualification for Special Benefit) Determination 2015 is made under subparagraph 729(2)(f)(v) of the Social Security Act 1991.
The purpose of the Determination is to allow the holders of a Subclass 790 (Safe Haven Enterprise) visa to qualify for Special Benefit, and consequently, a suite of ancillary social security and family payments such as Family Tax Benefit, Education Entry Payment, Rent Assistance, Health Care Card and Pharmaceutical Allowance.
Human rights implications
This Determination engages or gives effect to the following human rights:
- the right to social security as recognised in Article 24 of the United Nations (UN)1951 Convention and 1967 Protocol Relating to the Status of Refugees and Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
- the right to an adequate standard of living in Article 11 of the ICESCR and Article 28 of the Convention on the Rights of Persons with Disabilities (CRPD).
The Determination will assist Australia to meet its international obligations under the UN Refugees Convention and Protocol, the ICESCR and the CRPD by providing that Subclass 790 visa holders meet the residence requirements for qualification for Special Benefit. The Determination will also promote an adequate standard of living for those illegal maritime arrivals whose claims for protection are found to be valid and who are granted a Subclass 790 visa.
Conclusion
This Determination is compatible with human rights as it promotes the right to social security and an adequate standard of living for Subclass 790 visa holders.
Scott Morrison, Minister for Social Services