Social Security (Crisis Payment - Qualifying Humanitarian Visas) Determination 2018

Administered by Department of Social Services

Legislation au F2018L00438 In force Legislative Instrument

Legislation content

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 Australias 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.

Overview

The Social Security (Crisis Payment – Qualifying Humanitarian Visas) Determination 2018, enacted by the Australian Parliament, was introduced to address the financial challenges faced by humanitarian visa holders during their initial settlement period in Australia. This Determination replaced the previous 2007 version, which was due to expire on 1 April 2018. The policy objective of the Determination is to ensure that humanitarian visa holders who arrive in Australia and find themselves in severe financial hardship are eligible for a crisis payment, provided they meet the specified criteria, including making a claim within seven days of arrival and qualifying for a social security pension or benefit. The Minister for Social Services is authorised to specify the qualifying humanitarian visas under section 1061JI(2) of the Social Security Act 1991, and the Determination aligns with Australia’s international human rights obligations, particularly the right to social security and an adequate standard of living.

Scope and Application

The Social Security (Crisis Payment – Qualifying Humanitarian Visas) Determination 2018 applies to individuals who hold a qualifying humanitarian visa and seeks to provide them with access to a crisis payment after their arrival in Australia, subject to certain conditions. The Determination, which commenced on 1 April 2018, replaces the earlier Social Security (Crisis Payment—Qualifying Humanitarian Visas) Determination 2007 (No. 1). To qualify for the crisis payment, an individual must be the holder of a qualifying humanitarian visa, make a claim within 7 days of their arrival in Australia, be in severe financial hardship, have made a claim for a social security pension or benefit, and be qualified for the pension or benefit. The Determination identifies specific humanitarian visa subclasses that qualify under the Act and is made pursuant to the authority provided by section 1061JI(2) of the Social Security Act 1991. The scope of the Determination is limited to humanitarian visa holders in Australia and does not extend to other visa categories or persons not meeting the specified criteria.

Key Provisions

The Social Security (Crisis Payment – Qualifying Humanitarian Visas) Determination 2018 (the Determination) sets out the criteria under which humanitarian visa holders can access a crisis payment following their arrival in Australia. Section 1 of the Determination names it as the Social Security (Crisis Payment – Qualifying Humanitarian Visas) Determination 2018. Section 2 stipulates the commencement date of the Determination as 1 April 2018. This replaces the previous Social Security (Crisis Payment – Qualifying Humanitarian Visas) Determination 2007 (No. 1), which is revoked upon the commencement of this new instrument as per Section 3. Section 4 authorises the Minister to create this Determination under subsection 1061JI(2) of the Social Security Act 1991 (the Act). Section 5 lists the qualifying humanitarian visas, thereby identifying which visa holders are eligible for a crisis payment under the Act, provided they meet other specified conditions. The Determination imposes specific obligations on humanitarian visa holders who seek a crisis payment. To qualify, the visa holder must apply for the crisis payment within 7 days of their arrival in Australia, as outlined in subsection 1061JI(1) of the Act. Additionally, at the time of their application, they must be in severe financial hardship and must have made a claim for a social security pension or benefit, for which they are qualified. These conditions ensure that the crisis payment is reserved for those who genuinely need it to support their initial settlement period in Australia. Failure to comply with the requirements of the Determination can result in civil or criminal consequences. While the Determination itself does not explicitly detail offences or penalties, it is implemented under the broader framework of the Social Security Act 1991, which includes provisions for penalties in cases of non-compliance. For instance, knowingly making a false statement to obtain a benefit can attract penalties, and in severe cases, criminal charges. The specific penalties depend on the nature of the offence and may include fines or imprisonment.

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Area of Law
Social Security Law
Instrument
Determination
Concepts
Commencement Provisions
Licensing & Registration
Human Rights Law

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