EXPLANATORY STATEMENT
Social Security (Class of Visas—Qualifying Residence Exemption) Determination 2009
Purpose
The purpose of this Determination is to grant a qualifying residence exemption under subsection 7(6AA) of the Social Security Act 1991 for a social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance or a seniors health card for holders of visa subclasses specified in section 4 of the Determination.
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 a partner could have applied for a visa to enter Australia will be redundant from 1 July 2009.
- subclass 100—Spouse;
- subclass 110—Interdependency;
- subclass 801—Spouse; and
- subclass 814—Interdependency.
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 2003 Determination
The Social Security (Declaration of Visa in a class of Visas—Qualifying Residence Exemption) Determination 2003 (the 2003 Determination) revoked the 2000 Determination. The 2003 Determination provided that all holders of permanent spouse or interdependency visa subclasses 100, 110, 801, 814, 832 and 833 have a qualifying residence exemption irrespective of what (if any) previous visas were held.
The 2009 Determination
The Social Security (Class of Visas—Qualifying Residence Exemption) Determination 2009 (the 2009 Determination) revokes the 2003 Determination and declares all of the visa subclasses that were included in the 2003 Determination. It also declares visa subclasses 801 and 100 where the description has changed from ‘spouse’ to ‘partner’ to have a qualifying residence exemption under paragraph 7(6AA)(f) of the Social Security Act 1991.
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 – Qualifying Residence Exemption) Determination 2003 is revoked.
Section 4 provides that the following visa subclasses are declared for the purposes of paragraph 7(6AA)(f) of the Social Security Act 1991:
(i) subclass 100—Partner;
(ii) subclass 100—Spouse;
(iii) subclass 110—Interdependency;
(iv) subclass 801—Partner;
(v) subclass 801—Spouse;
(vi) subclass 814—Interdependency;
(vii) subclass 832—Close ties; and
(viii) subclass 833—Certain unlawful non-citizens
Consultation
This Determination was prepared in consultation with the Department of Immigration and Citizenship.