EXPLANATORY STATEMENT
Issued by the authority of the Minister for Social Services
Social Security Act 1991
Social Security (Specified Class of Persons in Australia—Health Care Card) Amendment Declaration 2015
Purpose
The purpose of this Declaration is to declare that holders of a Subclass 790 (Safe Haven Enterprise) visa qualify for a health care card under subsection 1061ZO(7) of the Social Security Act 1991 (the Act).
Background
The Subclass 790 visa is a subclass of the Safe Haven Enterprise (Class XE) visa. It is a temporary protection visa and can be granted to an illegal maritime arrival who:
- has been assessed as engaging Australia’s protection obligations;
- has fulfilled health, character, security and identity checks; and
- has indicated in writing an intention to work or study in regional Australia.
Subsection 1061ZO(1) of the Act provides that a person is qualified for a health care card on a day if section 1061ZO applies to the person on that day. Subsections 1061ZO(2) to (7) provide for when section 1061ZO applies to a person on a day. Relevantly, subsection 1061ZO(7) provides that the Minister may, by legislative instrument, declare that a person who: (a) is included in a specified class of persons; and (b) is, or has been, in Australia in specified circumstances, is a person to whom the section applies. A person to whom the section applies is deemed to qualify for a health care card.
The Social Security (Specified Class of Persons in Australia—Health Care Card) Declaration 2003 (the 2003 Declaration) specifies classes of persons and specified circumstances for the purpose of subsection 1061ZO(7). Section 4 of the 2003 Declaration provides that certain temporary visa holders qualify for a health care card. The Social Security (Specified Class of Persons in Australia—Health Care Card) Amendment Declaration 2015, which amends the 2003 Declaration, extends access to a health care card to holders of a Subclass 790 visa.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Commencement
The Declaration 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 (Migration Amendment Act) 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.
Consultation
The Department of Human Services was consulted in relation to this Declaration to ensure a consistent approach between government agencies.
Public consultation was considered to be unnecessary as this Declaration is purely beneficial in character, extending access to a health care card to a person who holds a particular visa class.
Regulation Impact Statement (RIS)
The Declaration does not require a Regulation Impact Statement because the Declaration 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 sets out the name of the Declaration.
Section 2 provides that the Declaration 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.
Section 3 provides that Subclass 790 (Safe Haven Enterprise) is a class of visa for the purpose of subsection 1061ZO(7) of the Act. The effect of this is that Subclass 790 visa holders will be entitled to access to a health care card.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Specified Class of Persons in Australia in Specified Circumstances − Health Care Card) Amendment Declaration 2015
The Social Security (Specified Class of Persons in Australia in Specified Circumstances − Health Care Card) Amendment Declaration 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 (Specified Class of Persons in Australia in Specified Circumstances − Health Care Card) Amendment Declaration 2015 is made under subsection 1061ZO(7) of the Social Security Act 1991.
The purpose of the Declaration is to allow the holders of a Subclass 790 (Safe Haven Enterprise) visa to qualify for a health care card
Human rights implications
This Declaration 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 Declaration will assist Australia to meet its international obligations under the UN Refugees Convention and Protocol, the ICESCR and the CRPD by allowing the specified visa holders to qualify for a health care card. The Declaration will also promote an adequate standard of living for those who are granted the specified visa.
Conclusion
This Determination is compatible with human rights as it promotes the right to social security and an adequate standard of living for the specified visa holders.
Scott Morrison, Minister for Social Services