EXPLANATORY STATEMENT
Social Security (Declaration of Visa in a class of Visas—Special Benefit Activity Test) Determination 2005
The Social Security (Declaration of Visa in a class of Visas—Special Benefit Activity Test) Determination 2005 (the Determination) is made under subparagraph 729(2)(f)(v) of the Social Security Act 1991 (the Act).
Purpose
The Determination provides that any person who is the holder of a subclass 070 (Bridging (Removal Pending)) (Class WR) visa, who qualifies for special benefit may be required to satisfy the activity test as provided for in section 731A of the Act.
The holders of these subclass 070 visas are unlawful non-citizens who have been held in detention centres for extended periods because of a variety of reasons that have made their removal from Australia difficult. The holders of these subclass 070 visas are not refugees.
Background
Section 729 of the Act provides the qualification requirements for special benefit. Subparagraph 729(2)(g)(i) provides that a person who is the holder of a visa included in a class of visas that is issued for temporary protection, humanitarian, or safe haven purposes and that is determined by the Minister to be a class of visas to whom this subparagraph applies then subsection 729(2A) of the Act applies to that person and the person is also required to meet the additional criteria set out in subsection 729(2B) of the Act.
Subsection 729(2A) of the Act provides that subparagraph 729(2)(g)(i) applies only if the person would not qualify for a disability support pension if they were an Australian resident, the person has attained the minimum age for youth allowance but has not reached pension age and either the claim for special benefit is not continuous with any previous grant of special benefit or the person had not, before 1 January 2003, attained the minimum age for youth allowance and is receiving a special benefit granted before, or continuous with special benefit granted before, that date.
Subsection 729(2B) of the Act primarily requires the person to enter into a Special Benefit Activity Agreement, or at least be prepared to enter into such an agreement, in order to be entitled to receive a special benefit.
Consultation
No consultation in relation to the Determination was undertaken because this legislative instrument is of a minor or machinery nature that does not substantially alter existing arrangements.
Explanation of the provisions
Section 1 of the Determination states the name of the determination.
Section 2 states that the Determination commenced on the day on which it is signed.
Section 3 provides that for the purposes of subparagraph 729(2)(g)(i) of the Act a class of visas is subclass 070 (Bridging (Removal Pending)) (Class WR).
Overview
The Social Security (Declaration of Visa in a class of Visas—Special Benefit Activity Test) Determination 2005 was enacted to address a specific gap in the eligibility criteria for special benefits under the Social Security Act 1991. This determination was made under subparagraph 729(2)(f)(v) of the Social Security Act by the Parliament of Australia, with the objective of ensuring that holders of subclass 070 (Bridging (Removal Pending)) (Class WR) visas, who are unlawful non-citizens detained for extended periods, satisfy the activity test for special benefit eligibility. This addresses the need to align the requirements for these particular visa holders with the broader criteria for special benefit qualification, ensuring that the assistance provided is consistent with the policy intent of the Social Security Act.
Scope and Application
The Social Security (Declaration of Visa in a Class of Visas—Special Benefit Activity Test) Determination 2005 applies to holders of subclass 070 (Bridging (Removal Pending)) (Class WR) visas, who qualify for special benefit under the Social Security Act 1991. This legislation specifically targets unlawful non-citizens held in detention centres for extended periods due to various reasons that have made their removal from Australia difficult, and who are not classified as refugees. The primary purpose of the Determination is to mandate that these individuals meet the activity test outlined in section 731A of the Act. This requirement is integral to ensuring that those who are granted special benefit engage in approved activities, aligning with the broader objectives of the Social Security Act.
The Determination has a national jurisdictional reach within Australia and operates under the legislative framework established by the Social Security Act 1991. There are no explicit exclusions or thresholds specified in the Determination itself, but it operates in conjunction with other sections of the Act, such as 729(2)(g)(i), 729(2A), and 729(2B), which detail the eligibility criteria and the need for individuals to enter into a Special Benefit Activity Agreement. The Determination does not substantially alter existing arrangements and is considered of a minor or machinery nature, with no consultation undertaken as a result.
Key Provisions
The main operative sections of the Social Security (Declaration of Visa in a Class of Visas—Special Benefit Activity Test) Determination 2005 (the Determination) are section 1, which provides the name of the Determination, and section 3, which declares that subclass 070 (Bridging (Removal Pending)) (Class WR) visas fall under subparagraph 729(2)(g)(i) of the Social Security Act 1991 (the Act). This means that holders of these visas, who qualify for special benefit, may be required to satisfy the activity test as provided for in section 731A of the Act. This class of visas pertains to unlawful non-citizens held in detention centres for extended periods due to difficulties in their removal from Australia, and who are not refugees.
The Determination imposes certain obligations on the holders of subclass 070 visas who are seeking special benefit. These individuals must meet the additional criteria set out in subsection 729(2B) of the Act, which primarily requires them to enter into a Special Benefit Activity Agreement, or at least be prepared to do so. This agreement ensures that they are actively participating in activities that contribute to their self-sufficiency and integration into Australian society, in line with the purpose of the special benefit scheme.
Any breach of the obligations outlined in the Determination may result in a range of consequences. Under section 731A of the Act, failure to satisfy the activity test could result in the cessation of special benefit payments. The Determination does not specify explicit criminal or civil penalties for non-compliance; however, continued non-compliance could lead to further administrative action by the Department of Social Services, including the potential revocation of visa status for those on subclass 070 visas, as their visa conditions are contingent upon meeting certain social security obligations.
It is important to note that the Determination is made under subparagraph 729(2)(f)(v) of the Act, which allows for the declaration of certain visa classes that may be subject to the special benefit activity test. This ensures that the scheme operates within the legislative framework provided by the Act and allows for targeted measures to be applied to specific visa classes, such as subclass 070, where the need for such measures is identified.