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.
Overview
The Social Security (Class of Visas—Qualifying Residence Exemption) Determination 2009 was enacted to address the need for updating the terminology related to visas and residence exemptions in light of the legislative changes brought about by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008. This Determination aims to ensure that holders of certain visa subclasses, specifically those previously termed "spouse" or "partner," are granted a qualifying residence exemption under the Social Security Act 1991, thereby facilitating their eligibility for social security benefits, pensions, carer payments, mobility allowances, and seniors health cards. This legislative instrument was enacted by the Australian Government and came into effect on the later of 1 July 2009 or the day after it was registered, reflecting the policy objective to harmonise terminology and provide equal treatment under the law.
Scope and Application
The Social Security (Class of Visas—Qualifying Residence Exemption) Determination 2009 applies to holders of specified visa subclasses in Australia, including subclass 100 (Partner or Spouse), subclass 110 (Interdependency), subclass 801 (Partner or Spouse), and subclass 814 (Interdependency). This Determination grants a qualifying residence exemption under subsection 7(6AA) of the Social Security Act 1991 for social security benefits, pensions, carer payments, mobility allowances, and seniors health cards for these visa holders. The Determination is in response to the amendments made by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008, which changed the term "spouse" to "partner" in visa subclasses to recognise same-sex relationships and remove discrimination. The changes apply nationally across Australia, and the Determination revokes the 2003 Determination, which had previously declared certain visa subclasses for the purpose of granting a qualifying residence exemption. The Determination is effective from 1 July 2009 or the day after it is registered, whichever is later.
Key Provisions
The main operative sections of the Social Security (Class of Visas—Qualifying Residence Exemption) Determination 2009 (the 2009 Determination) are found in section 4. This section declares certain visa subclasses for the purposes of granting a qualifying residence exemption under subsection 7(6AA) of the Social Security Act 1991. Specifically, it declares that visa subclasses 100 (Partner), 110 (Interdependency), 801 (Partner), 814 (Interdependency), 832 (Close ties), and 833 (Certain unlawful non-citizens) are eligible for this exemption. Notably, it also recognises the change in terminology from'spouse' to 'partner' in subclasses 100 and 801, aligning with legislative changes made by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008.
The 2009 Determination imposes obligations on both the Department of Immigration and Citizenship and the Department of Human Services. For the Department of Immigration and Citizenship, it means recognising and processing applications under the new partner visa subclasses from 1 July 2009. For the Department of Human Services, it entails ensuring that individuals holding these specified visas are granted the qualifying residence exemption for certain social security benefits, as outlined in the Social Security Act 1991. These obligations ensure that the legislative changes are implemented smoothly and that affected individuals receive the appropriate social security benefits.
Breaching the provisions of the 2009 Determination may lead to legal consequences. For instance, if the Department of Human Services fails to provide the qualifying residence exemption to eligible individuals, it may be held liable for any resulting financial losses or administrative issues. Similarly, if the Department of Immigration and Citizenship does not process applications correctly under the new visa subclasses, it may face legal challenges. While the 2009 Determination itself does not specify particular penalties for breaches, any associated administrative or civil consequences would be governed by the broader legislative framework and administrative law principles in Australia.
In summary, the 2009 Determination is a critical piece of legislation that aligns social security benefits with updated visa classifications, ensuring that individuals in same-sex relationships are not disadvantaged. By declaring specific visa subclasses for the purpose of qualifying residence exemptions, it facilitates the smooth transition to the new terminology and classification system. The obligations placed on government departments ensure that these changes are effectively implemented and that individuals receive the benefits to which they are entitled. While the Determination does not specify penalties for breaches, any resulting legal or administrative consequences would be addressed within the broader legal framework.