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 (No. 2)
Purpose
The purpose of this Determination is to consolidate and remove redundant elements of a number of determinations made under subparagraph 729(2)(g)(i) of the Social Security Act 1991 (the Act).
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 purposes 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 (No. 2) determines classes of visas for the purposes 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 are 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 are 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);or
- complying with a requirement to undertake particular paid work; or
- in certain circumstances, complying with the requirements of a SBEPP.
Subdivision AB of Division 1 of 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.
A number of different visa classes have been determined for the purposes of subparagraph 729(2)(g)(i) of the Act in four separate determinations. This Determination revokes those separate determinations and consolidates the visa classes into one determination. Some redundant visa classes which are determined in the separate determinations have not been included in this Determination.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to revoke such instrument.
Commencement
This Determination commences on 1 October 2015.
Consultation
The Department of Immigration and Border Protection was consulted to assist with ensuring that the visa classes determined by this Determination are current.
Public consultation was considered unnecessary because this Determination is administrative in nature in consolidating current determinations. There are no substantive changes to the law as a result of this Determination.
Regulation Impact Statement (RIS)
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.
Explanation of the provisions
Section 1
This section provides how the Determination is to be cited, that is, as the Social Security (Declaration of Visa in a Class of Visas –Special Benefit Activity Test) Determination 2015 (No. 2).
Section 2
This section provides that the Determination commences on 1 October 2015.
Section 3
Section 3 provides that four determinations are revoked. Those four determinations determine visa classes for the purposes of subparagraph 729(2)(g)(i) of the Act. The visa classes determined in those determinations, and which remain in effect under the Migration Regulations 1994, are now determined in this Determination. As such, it is possible to revoke the four determinations.
The Social Security (Declaration of Visa in a class of Visas – Special Benefit Activity Test) Determination 2005 has not been revoked because that determination ceases under Part 6 of the Legislative Instruments Act 2003 (sunsetting of legislative instruments) on 1 October 2015. This is the same day that this Determination commences.
Section 4
Section 4 determines classes of visas for the purposes of subparagraph 729(2)(g)(i) of the Act. The classes of visas are:
- Subclass 070 (Bridging (Removal Pending));
- Subclass 449 (Humanitarian Stay (Temporary));
- Subclass 785 (Temporary Protection);
- Subclass 786 (Temporary (Humanitarian Concern)); and
- Subclass 790 (Safe Haven Enterprise).
The effect of this is that holders of these visas may be required to satisfy the activity test in order to be qualified for special benefit.
Some visa classes that are currently determined for the purposes of subparagraph 729(2)(g)(i) have not been included in this Determination because they have been repealed. The repealed visa classes which have not been included in this Determination are:
- Subclass 447 (Secondary Movement Offshore Entry (Temporary));
- Subclass 451 (Secondary Movement Relocation (Temporary)); and
- Subclass 695 (Return Pending).
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Declaration of Visa in a Class of Visas – Special Benefit Activity Test) Determination 2015 (No. 2)
The Social Security (Declaration of Visa in a Class of Visas – Special Benefit Activity Test) Determination 2015 (No. 2) 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 Visa in a Class of Visas – Special Benefit Activity Test) Determination 2015 (No. 2) is made under subparagraph 729(2)(g)(i) of the Social Security Act 1991.
The purpose of the Determination is to provide that holders of the determined visas may be subject to mutual obligation arrangements 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); or
- 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.
The Determination consolidates a number of determinations currently made under subparagraph 729(2)(g)(i) of the Social Security Act 1991.
Human rights implications
This Determination engages or gives effect to the following human rights:
- the right to social security contained in Article 24 of the United Nations (UN) 1951 Convention and 1967 Protocol Relating to the Status of Refugees, Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), 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 and Article 28 of the CRPD.
The Determination will assist Australia to meet its international obligations under the UN Refugees Convention and Protocol, the ICESCR and the CRPD.
To the extent that the Determination limits the right to social security and an adequate standard of living by imposing mutual obligations on holders of the determined visas, the limitation is legitimate, reasonable, necessary and proportionate.
The limitation is legitimate because mutual obligations support holders of the determined visas 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 holders of the determined visas who are 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. To the extent that it may limit human rights, that limitation is legitimate, reasonable, necessary and proportionate.
The Hon Christian Porter MP, Minister for Social Services