EXPLANATORY STATEMENT
Issued by the authority of the Minister for Social Services
Social Security Act 1991
Social Security (Declaration of Visa in a Class of Visas – Special Benefit Activity Test) Determination 2015
Purpose
The purpose of this Determination is to provide that a person who is a Subclass 790 (Safe Haven Enterprise) visa holder may be required to satisfy the activity test in order to be qualified for Special Benefit.
Background
A person may be qualified for Special Benefit if, among other things, they are an Australian resident or the holder of a visa that is in a class of visas determined by the Minister for the purpose of subparagraph 729(2)(f)(v) of the Social Security Act 1991 (the Act). The Social Security (Class of Visas – Qualification for Special Benefit) Determination 2015 determines Subclass 790 (Safe Haven Enterprise) visa as a class of visas for the purpose of subparagraph 729(2)(f)(v).
Paragraph 729(2)(g) of the Act provides a further qualification criterion for Special Benefit where the person is:
(i) the holder of a visa included in a class of visas that is issued for temporary protection, humanitarian, or safe haven purposes which is determined by the Minister for the purposes of that subparagraph; and
(ii) a person to whom subsection 729(2A) applies.
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.
Such a person must meet the additional criteria in subsection 729(2B) of the Act.
The additional criteria in subsection 729(2B) of the Act is that the person will be qualified for Special Benefit only if the person:
- satisfies the activity test in section 731A (unless they are in a class of persons who is not required to satisfy the activity test);
- is prepared to enter into a Special Benefit Employment Pathway Plan (SBEPP), or enter another such plan instead of any existing plan that is in force;
- enters into a SBEPP when required to do so by the Secretary (or delegate); and
- satisfies the Secretary that they are complying with the requirements of a SBEPP that is in force.
Generally, a person satisfies the activity test in section 731A of the Act if the person is:
- actively seeking and willing to undertake paid work in Australia (other than unsuitable work);
- complying with a requirement to undertake particular paid work; or
- in certain circumstances, complying with the requirements of a SBEPP.
Subdivision AB in Part 2.15 of the Act provides for SBEPPs, including the requirement to enter into such plans and the terms of SBEPPs. Generally, an Employment Pathway Plan is an agreement that outlines an individual’s requirements and obligations under the activity test.
Sanctions may be imposed on a person who does not comply with their mutual obligation requirements in accordance with Division 3A of Part 3 of the Social Security (Administration) Act 1999.
Summary
The effect of this Determination is that Subclass 790 visa holders may be required to satisfy the activity test in order to be qualified for Special Benefit. This will ensure that Subclass 790 visa holders are treated in the same way as persons who hold other classes of visas that may qualify them for Special Benefit.
This Determination is a legislative instrument for the purpose of the Legislative Instruments Act 2003.
Explanation of the provisions
Section 1 sets out the name of the Determination.
Section 2 provides that the Determination commences immediately after Division 2 of Part 1 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legal Caseload) Act 2014 commences. This Division inserts the Subclass 790 visa into the Migration Regulations 1994. That Division commences on a single day to be fixed by Proclamation or 6 months after the day on which the Migration Amendment Act receives the Royal Assent, whichever occurs first. The Migration Amendment Act received the Royal Assent on 15 December 2014.
Section 3 provides that Subclass 790 (Safe Haven Enterprise) is a class of visa for the purpose of subparagraph 729(2)(g)(i) of the Act. The effect of this is that Subclass 790 visa holders may be required to satisfy the activity test in order to be qualified for Special Benefit.
Consultation
The Department of Employment, Department of Human Services and Department of Immigration and Border Protection were consulted in relation to this Determination to ensure a consistent approach between Australian Government agencies.
Public consultation was considered to be unnecessary as this Determination ensures that Subclass 790 (Safe Haven Enterprise) visa holders who are qualified for Special Benefit are treated in the same manner as other visa holders who are qualified for Special Benefit.
Regulation Impact Analysis
The Determination does not require a Regulation Impact Statement because the Determination is not regulatory in nature, will not impact on business activity and will have no or minimal compliance costs or competition impact.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Declaration of a Visa in a Class of Visas – Special Benefit Activity Test) Determination 2015
The Social Security (Declaration of a Visa in a Class of Visas – Special Benefit Activity Test) Determination 2015 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 Social Security (Declaration of a Visa in a Class of Visas – Special Benefit Activity Test) Determination 2015 is made under subparagraph 729(2)(g)(i) of the Social Security Act 1991.
The purpose of the Determination is to provide that Subclass 790 (Safe Haven Enterprise) visa holders may be subject to mutual obligation arrangements similar to those expected for other temporary protection/humanitarian visa holders, in order to be qualified for Special Benefit. The mutual obligation arrangements generally require that a person:
- satisfies the activity test (unless the person is in a class of persons who is not required to satisfy the activity test);
- is prepared to enter into a Special Benefit Employment Pathway Plan (SBEPP), or enter another such plan instead of any existing plan that is in force;
- enters into a SBEPP when required to do so by the Secretary (or delegate); and
- satisfies the Secretary that they are complying with the requirements of a SBEPP that is in force.
Generally, a person satisfies the activity test if the person is:
- actively seeking and willing to undertake paid work in Australia (other than unsuitable work);
- complying with a requirement to undertake particular paid work; or
- in certain circumstances, complying with the requirements of a SBEPP.
A person who does not comply with their mutual obligation requirements may be penalised in accordance with Division 3A of Part 3 of the Social Security (Administration) Act 1999.
Human rights implications
This Determination engages or gives effect to the following human rights:
- the right to social security as recognised in Article 24 of the United Nations (UN) 1951 Convention and 1967 Protocol Relating to the Status of Refugees and Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
- the right to an adequate standard of living in Article 11 of the ICESCR and Article 28 of the Convention on the Rights of Persons with Disabilities (CRPD).
The Determination will assist Australia to meet its international obligations under the UN Refugees Convention and Protocol, the ICESCR and the CRPD. Imposing mutual obligation requirements on Subclass 790 visa holders in order for them to be qualified for Special Benefit is consistent with the mutual obligations imposed on other persons who hold other classes of visas which may qualify the person for Special Benefit.
To the extent that the Determination limits the right to social security and an adequate standard of living by imposing mutual obligations on Subclass 790 visa holders, there is no incompatibility with human rights because the limitation is legitimate, reasonable, necessary and proportionate.
The limitation is legitimate because Subclass 790 visa holders commit to work or study in regional Australia and mutual obligations support Subclass 790 visa holders in receipt of social security payments to find employment and facilitate their participation in, and contribution to, Australian society and the economy.
The limitation is reasonable because it is reasonable to expect that recipients of social security payments undertake activities and programmes that will increase their chances of finding and maintaining employment. There are also exemptions from participating in activity testing for those considered to be too aged, those with caring responsibilities and those who have an illness or disability.
The limitation is necessary because without mutual obligations a person is less likely to participate in activities and programmes that will increase their chances of finding and maintaining employment.
The limitation is proportionate because a Subclass 790 visa holder who is qualified for Special Benefit will not have the rate of their payment affected if they comply with their mutual obligations and there are exemptions from complying with the mutual obligations for certain persons.
Conclusion
This Determination is compatible with human rights because to the extent that it may have an impact on human rights, that impact is legitimate, reasonable, necessary and proportionate.
Scott Morrison, Minister for Social Services