EXPLANATORY STATEMENT
Issued by the authority of the Minister for Social Security
Social Security Act 1991
Social Security (Crisis Payment – Qualifying Humanitarian Visas) Determination 2018
Purpose
The purpose of Social Security (Crisis Payment – Qualifying Humanitarian Visas) Determination 2018 (“the Determination”) is to repeal and replace Social Security (Crisis Payment—Qualifying Humanitarian Visas) Determination 2007 (No. 1), which was due to sunset on 1 April 2018. The Determination, like its predecessor, enables any person who is the holder of a qualifying humanitarian visa to qualify for a crisis payment after they arrive in Australia.
Background
Section 1061JI of the Social Security Act 1991 (the Act), gives effect to a 2007 Budget measure, intended to reduce the significant financial burden faced by humanitarian entrants during their initial settlement period.
Subsection 1061JI(1) of the Social Security Act 1991 (the Act) allows any person who is a holder of a qualifying humanitarian visa to qualify for a crisis payment after they arrive in Australia, provided that the holder of a qualifying visa: makes a claim for a crisis payment within 7 days of their arrival, and at the time of their application, the person is in severe financial hardship and has made a claim for a social security pension or benefit and the person is qualified for the pension or benefit.
Under subsection 1061JI(2) of the Act, the Minister may, by legislative instrument, specify which visas are qualifying humanitarian visas for the purposes of paragraph 1061JI(1)(b).
Commencement
The Determination commences on 1 April 2018.
Consultation
The Department of Home Affairs was consulted and confirmed the specified Humanitarian subclass visas continue to be available.
Regulation Impact Statement (RIS)
Regulation Impact Statement OBPR ID 23316.
The Office of Best Practice Regulation (the OBPR) was consulted in relation to the amendments made by the regulations.
The OBPR considers the Determination does not have a more than minor regulatory impact on business, community organisations or individuals.
The Determination does not require a Regulatory Impact Statement.
Explanation of the provisions
Section 1 States the name of the instrument as the Social Security (Crisis Payment - Qualifying Humanitarian Visas) Determination 2018.
Section 2 Provides that the Determination commences on 1 April 2018.
Section 3 This section provides that previous Determination, The Social Security (Crisis Payment – Qualifying Humanitarian Visas) Determination 2007 (No.1), will be revoked upon commencement of the new instrument. The decision to explicitly revoke the current instrument, rather than rely on sunsetting provisions, has been taken to remove potential ambiguity in respect of the application of the new instrument.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Section 4 This section identifies that the Minister is authorised to create this Determination by subsection 1061JI(2) of the Act.
Section 5 This section identifies the qualifying humanitarian visas for the purposes of paragraph 1061JI(1)(b) of the Act. The effect of this section is that a person who is the holder of any of the specified subclasses of visa will qualify for a crisis payment if the other relevant conditions are met.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Crisis Payment – Qualifying Humanitarian Visas) Determination 2018
The Determination 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 purpose of this Determination is to replace the Social Security (Crisis Payment—Qualifying Humanitarian Visas) Determination 2007 (No. 1), which will sunset on 1 April 2018 pursuant to section 50 of the Legislation Act 2003 (the Legislation Act). This Determination is being made in the same form as the Social Security (Crisis Payment—Qualifying Humanitarian Visas) Determination 2007 (No. 1), as there is no change to policy.
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 allows any person who is a holder of a qualifying humanitarian visa to qualify for a crisis payment after they arrive in Australia, provided that the holder of a qualifying visa: makes a claim for a crisis payment within 7 days of their arrival, and at the time of their application, the person is in severe financial hardship and has made a claim for a social security pension or benefit and the person is qualified for the pension or benefit. As such, the Determination is consistent with Australia’s international obligations under the ICESCR, the CEDAW and the CRPD.
Conclusion
This Determination is compatible with human rights as it promotes the right to social security and adequate standard of living for any person who is a holder of a qualifying humanitarian visa to qualify for a crisis payment after they arrive in Australia.
Hon Dan Tehan MP, Minister for Social Services.