EXPLANATORY STATEMENT
Issued by the authority of the Minister for Social Services
Social Security Act 1991
Social Security (Class of Visas – Qualifying Residence Exemption) Determination 2015
Purpose
The purpose of this Determination is to determine classes of visas, such that a person who holds or was the former holder of a visa in a determined class has a qualifying residence exemption under subsection 7(6AA) of the Social Security Act 1991 (the Act) for a social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance or a seniors health card.
Background
In general, a person is subject to a newly arrived resident’s waiting period for a social security benefit (other than special benefit), a pension PP (single), carer payment, a mobility allowance or a seniors health card. No such waiting period applies if a person has a qualifying residence exemption.
Paragraph 7(6AA)(f) of the Act provides that a person has a qualifying residence exemption if the person holds, or was the former holder of, a visa that is in a class of visas determined, by legislative instrument, by the Minister for the purposes of that paragraph.
The Social Security (Class of Visas – Qualifying Residence Exemption) Determination 2009 (2009 Determination) currently determines visas for the purposes of paragraph 7(6AA)(f) of the Act. This Determination revokes and replaces the 2009 Determination to include the Subclass 852 (Referred Stay (Permanent)) visa and remove redundant visa classes. A Subclass 852 (Referred Stay (Permanent)) visa may be granted to a person who made a contribution to, and cooperated closely with, an investigation or prosecution of a person who was alleged to have engaged in human trafficking, slavery or slavery-like practices, and would be in danger if he or she returned to his or her home country.
Commencement
This Determination commences on 1 January 2016.
Consultation
The Department of Immigration and Border Protection was consulted to assist with ensuring that the visa classes determined by this Determination are correct and current.
Members of the National Roundtable on Human Trafficking and Slavery recommended that holders of a Subclass 852 (Referred Stay (Permanent)) visa be exempt from a newly arrived resident’s waiting period for a broader and more appropriate range of social security payments, such as newstart allowance and austudy payment.
Regulation Impact Statement (RIS)
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.
Explanation of the provisions
Section 1
This section provides how the Determination is to be cited, that is, as the Social Security (Class of Visas – Qualifying Residence Exemption) Determination 2015.
Section 2
This section provides that the Determination commences on 1 January 2016.
Section 3
This section revokes the 2009 Determination.
Section 4
Section 4 determines classes of visas for the purposes of paragraph 7(6AA)(f) of the Act. The classes of visas are:
- Subclass 100 (Partner);
- Subclass 110 (Interdependency);
- Subclass 801 (Partner);
- Subclass 814 (Interdependency); and
- Subclass 852 (Referred Stay (Permanent)).
The holder or former holder of one of the visas determined has a qualifying residence exemption and is not subject to a newly arrived resident’s waiting period for a social security benefit (other than special benefit), a pension PP (single), carer payment, a mobility allowance or a seniors health card.
Subclasses 100, 110, 801 and 814 were included in the 2009 Determination. This Determination also includes Subclass 852 (Referred Stay (Permanent)). This will allow holders of a Subclass 852 (Referred Stay (Permanent)) visa immediate access to a broader and more appropriate range of social security payments, such as newstart allowance and austudy payment, which will assist them to obtain full-time study or work.
Subclass 832 (Close Ties) and Subclass 833(Certain Unlawful Non-citizens) were determined in the 2009 Determination but have not been included in this Determination because those subclasses have been repealed.
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 – Qualifying Residence Exemption) Determination 2015
The Social Security (Class of Visas – Qualifying Residence Exemption) 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 – Qualifying Residence Exemption) Determination 2015 is made under paragraph 7(6AA)(f) of the Social Security Act 1991.
The purpose of this Determination is to grant a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance, a seniors health card or a health care card to the holders of a Subclass 852 (Referred Stay) (Permanent) visa.
Visas classes that were determined in the Social Security (Class of Visas – Qualifying Residence Exemption) Determination 2009 have been included in this Determination, with the exception of Subclass 832 (Close Ties) and Subclass 833 (Certain Unlawful Non-citizens). These visa subclasses have been repealed.
Human rights implications
This Determination engages or gives effect to the following human rights:
- the right to social security contained in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Articles 11(1)(e) and 14(2)(c) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and Article 28 of the Convention on the Rights of Persons with Disabilities (CRPD); and
- the right to an adequate standard of living contained in Article 11(1) of the ICESCR, Article 14(2)(h) of the CEDAW and Article 28 of the CRPD.
The Determination will assist Australia to meet its international obligations under the ICESCR, the CEDAW and the CRPD by providing a qualifying residence exemption for a range of social security payments to Subclass 852 (Referred Stay) (Permanent) visa holders. The Determination will also ensure an adequate standard of living for those who are granted a Subclass 852 (Referred Stay) (Permanent) visa and require appropriate financial assistance by providing more immediate access to social security payments.
Conclusion
This Determination is compatible with human rights as it promotes the right to social security and an adequate standard of living for Subclass 852 (Referred Stay) (Permanent) visa holders.
The Hon Christian Porter MP, Minister for Social Services