EXPLANATORY STATEMENT
Social Security (Declaration of Visa in a class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2001
The Social Security and Veterans' Affairs Legislation Amendment (Miscellaneous Matters) Act 2000 (Act Number 94 of 2000) amended the Social Security Act 1991 (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, Act Number 94 of 2000 amended the Act by repealing section 25A and repealing and substituting subsection 739A(6).
Prior to this change to the Act, 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 enabled that specified visa to 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 subclass 447 (Secondary Movement Offshore Entry) (Temporary)) (Class XB) and subclass 451 (Secondary Movement Relocation) (Temporary)) (Class XB) 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 to those visas previously specified.
The purpose of this new visa regime is to provide for the grant of a temporary visa to:
- a non-citizen who entered Australia at an excised offshore place after the relevant excision time without a visa (subclass 447); and
- a non-citizen who is outside his or her home country and is not a non‑citizen who entered Australia at an excised offshore place after the relevant excision time without a visa (subclass 451).
This new visa regime is intended to deter further movement from, or the bypassing of, other safe countries.
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 2001 was enacted to amend the Social Security Act 1991 by clarifying the rules regarding the waiting period for special benefits for newly arrived residents. The determination was made under the Social Security and Veterans' Affairs Legislation Amendment (Miscellaneous Matters) Act 2000, which was passed by the Australian Parliament to streamline the visa recognition process. The primary objective of this legislation is to facilitate the exemption of certain visa holders from the newly arrived resident’s waiting period for special benefits, thereby simplifying the eligibility criteria for social security benefits. This change was designed to address the complexity in determining which visas qualify for immediate access to special benefits, thus ensuring that eligible non-citizens can access benefits without unnecessary delays.
Scope and Application
The Social Security (Declaration of Visa in a class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2001 applies to individuals holding or who have held specified temporary visas under the new subclass 447 (Secondary Movement Offshore Entry) and subclass 451 (Secondary Movement Relocation) classes. This Determination, made under the Social Security Act 1991, simplifies the rules regarding the waiting period for special benefits for newly arrived residents. Specifically, it exempts holders of these visas from the newly arrived resident’s waiting period for special benefits. This change aligns with the legislative amendments introduced by the Social Security and Veterans' Affairs Legislation Amendment (Miscellaneous Matters) Act 2000, which sought to streamline the visa recognition process for special benefits eligibility. The Determination applies nationally across Australia and comes into effect from the date of its gazette, thereby extending the application of the Social Security Act to include these new temporary visa subclasses.
Key Provisions
The Social Security (Declaration of Visa in a Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2001 primarily serves to amend the Social Security Act 1991 by clarifying the waiting period for special benefits for newly arrived residents, particularly in relation to specified temporary visas (sections 25A and 739A(6)). This determination specifically addresses the waiting period for special benefits by declaring that holders or former holders of the subclass 447 (Secondary Movement Offshore Entry) (Temporary) (Class XB) and subclass 451 (Secondary Movement Relocation) (Temporary) (Class XB) visas will not be subject to the waiting period. These visas cater to non-citizens who entered Australia without a visa from excised offshore places or are relocating from outside their home country under specific conditions.
The obligations imposed by this Determination on the parties involved are primarily focused on ensuring that eligible visa holders are correctly identified and that the appropriate benefits are extended without the need to satisfy the waiting period. The Department of Social Services, as the administering body, must ensure that the criteria for these visas are met and that the relevant exemptions are applied correctly to eligible individuals. Visa holders, on the other hand, must meet the eligibility requirements and provide accurate information regarding their visa status and residence history to qualify for the special benefit exemptions.
Breaches of the provisions outlined in the Determination can lead to significant legal consequences. While the Determination itself does not explicitly list specific offences or penalties, contravention of the Social Security Act 1991, which this Determination amends, can result in both civil and criminal penalties. Civil penalties may include fines, while criminal penalties could involve imprisonment, depending on the nature and severity of the breach. The maximum penalties would be as prescribed under the Social Security Act 1991, which can vary based on the specific contravention, including fines and imprisonment terms as stipulated in the Act. It is crucial for all parties to adhere to the requirements to avoid these potential legal repercussions.