EXPLANATORY STATEMENT
Social Security (Declaration of Visa in a class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2000
Prior to 20 September 2000, the Social Security Act 1991 (the Act) provided at subparagraphs 739A(3)(b)(i) and (ii) that a person who was the holder of a subclass 820 visa—Extended eligibility (spouse) (subparagraph 739B(3)(b)(i)) or a subclass 826 visa—Interdependency (subparagraph 739B(3)(b)(ii)) was subject to a newly arrived resident’s waiting period that started on the day the person applied for the visa and ended when the person had been in Australia for a period of 104 weeks after the day the person applied for the visa. Subparagraph 739B(3)(b)(iii) of the Act provided that the Minister could determine a visa that is in a class of visas for the purposes of that subparagraph.
The Social Security and Veterans' Affairs Legislation Amendment (Miscellaneous Matters) Act 2000 (Act Number 94 of 2000) amended the Act to simplify the rules relating to a newly arrived resident’s waiting period before special benefit is payable.
As part of this simplification exercise, the amending Act repealed and substituted paragraph 739A(3)(b) of the Act. This means that the class of visas previously specified in the repealed subparagraphs would be required to be determined by the Minister under paragraph 739A(3)(b) of the Act, as in fact would any future class of visas.
The Social Security (Declaration of Visa in a class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2000 (the Determination) adds all of the class of visas that were previously included in subparagraphs 739B(3)(b)(i) and (ii) of the Act so that they are now specified under paragraph 739B(3)(b) of the Act. The Determination also includes subclass 309—Spouse (Provisional) and subclass 310—Interdependency (Provisional) visas as being visas the holder of which is subject to a newly arrived resident’s waiting period that starts on the day the person applied for the visa and ends when the person has been in Australia for a period of 104 weeks after the day the person applied for the visa.
The Determination amends the Social Security (Newly Arrived Resident’s Waiting Periods) Determination 1997 by omitting paragraph (f) of section 2 of that determination. Paragraph 2(f) applied to subparagraph 739A(3)(b)(iii) of the Act, as previously in force, so that subclass 309—Spouse (Provisional) and subclass 310—Interdependency (Provisional) visas which were visas, the holder of which was subject to a newly arrived resident’s waiting period that started on the day the person applied for the visa and ended when the person has been in Australia for a period of 104 weeks after the day the person applied for the visa. Paragraph 2(f) of the Social Security (Newly Arrived Resident’s Waiting Periods) Determination 1997 is no longer necessary because it is included in the Social Security (Declaration of Visa in a class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2000.
The Social Security and Veterans' Affairs Legislation Amendment (Miscellaneous Matters) Act 2000 (Act Number 94 of 2000) also amended the Act by repealing section 25A and repealing and substituting subsection 739A(6).
Therefore, following the changes to the Act made by the Social Security and Veterans' Affairs Legislation Amendment (Miscellaneous Matters) Act 2000 the previous declaration by the Minister under section 25A of the Act, as previously in force, are required to be continued. The Determination also repeals the Social Security (Declaration of Visas as Approved Visas) Determination No. 1 of 1999. This determination provided that subclass 785 (Temporary Protection) visa, was a visa, the holder of which, or the former holder of which, was not subject to a newly arrived resident’s waiting period for special benefit.
Previously, a determination by the Minister under section 25A allowed the Minister to declare that a person holding, or being a former holder, of a specified visa that the specified visa would be a recognised visa for the purposes of paragraph 7(6C)(c) of the Act. A person holding such a visa would meet the definition of “exempt resident” in subsection 7(6C). This allowed the person to have a qualifying residence exemption for special benefit under subsection 7(6A) of the Act. A person having a qualifying residence exemption for special benefit was not subject to a newly arrived resident’s waiting period (previously paragraph 739A(6)(a) of the Act).
The Determination adds this visa and also includes subclass 786 (Class UO) Temporary (Humanitarian Concern), subclass 832—Close ties and subclass 833—Certain unlawful citizens visas, as being visas, the holders of which, or the former holders of which, will not be subject to a newly arrived resident’s waiting period for special benefit.
The Determination commences on gazettal.
Overview
The Social Security (Declaration of Visa in a Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2000 was enacted to address gaps and issues in the Social Security Act 1991, specifically regarding the waiting period for newly arrived residents to qualify for special benefits. This determination was made under the authority of the Social Security and Veterans' Affairs Legislation Amendment (Miscellaneous Matters) Act 2000, which aimed to streamline the rules surrounding waiting periods for special benefits. This legislation was passed by the Parliament of Australia and its policy objective was to simplify and clarify the conditions under which certain visa holders are subject to a waiting period before they can access special benefits, thereby ensuring that the social security system operates efficiently and equitably. The Determination itself ensures that specific visa classes are explicitly identified for these purposes, replacing previous subparagraphs and outdated provisions to reflect current policy.
Scope and Application
The Social Security (Declaration of Visa in a Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2000 applies to individuals who hold, or are former holders of, certain classes of visas and is intended to align with the amendments made by the Social Security and Veterans' Affairs Legislation Amendment (Miscellaneous Matters) Act 2000. Specifically, it clarifies the types of visas that attract a waiting period for special benefits and those that do not. The waiting period applies to holders of subclass 820 (Extended eligibility (spouse)), subclass 826 (Interdependency), subclass 309 (Spouse (Provisional)), and subclass 310 (Interdependency (Provisional)) visas. These individuals must reside in Australia for 104 weeks after applying for their visa before they can qualify for special benefits. Conversely, the Determination exempts holders of subclass 785 (Temporary Protection), subclass 786 (Class UO) Temporary (Humanitarian Concern), subclass 832 (Close ties), and subclass 833 (Certain unlawful citizens) visas from this waiting period. The Determination operates on a national level, aligning with the federal jurisdiction of the Social Security Act 1991. It does not specify exclusions beyond those outlined but relies on subordinate instruments to maintain and update the list of affected visas as needed.
Key Provisions
The main operative sections of the Social Security (Declaration of Visa in a class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2000 (the Determination) specify which visa classes are subject to a newly arrived resident's waiting period. Section 2 of the Determination specifies that certain visas, including subclass 820 (Extended eligibility (spouse)), subclass 826 (Interdependency), subclass 309 (Spouse (Provisional)), and subclass 310 (Interdependency (Provisional)), are subject to a waiting period of 104 weeks before special benefits can be paid (section 2(1)). The waiting period commences on the day the visa is applied for and ends once the visa holder has been in Australia for 104 weeks (section 2(2)). Section 3 of the Determination outlines that certain other visas, including subclass 785 (Temporary Protection), subclass 786 (Class UO) Temporary (Humanitarian Concern), subclass 832 (Close ties), and subclass 833 (Certain unlawful citizens), are not subject to this waiting period for special benefit eligibility (section 3).
The obligations imposed by the Determination on the parties it governs primarily concern the visa holders. Visa holders subject to the waiting period must remain in Australia for the specified 104-week period following their visa application to be eligible for special benefits. Conversely, visa holders whose visas are exempt from the waiting period, as outlined in section 3, do not face this restriction and can immediately seek special benefits upon meeting other eligibility criteria. The Minister's obligation under the Determination is to declare which visa classes are subject to the waiting period and which are exempt, ensuring that the provisions of the amended Social Security Act are implemented correctly.
Breaches of the requirements set out in the Determination may have legal consequences. For instance, if a visa holder who is subject to the waiting period applies for special benefits before the 104-week period has elapsed, this could result in the refusal of the benefit claim. The Determination does not explicitly state penalties for such breaches, but under the Social Security Act, penalties for fraudulent claims or misrepresentations can include fines and, in severe cases, imprisonment. The maximum penalties for fraud under the Social Security Act can extend to $22,200 or three times the value of the benefit obtained or caused to be paid, whichever is the greater, and/or imprisonment for up to five years.