Social Security (Specified Class of Persons in Australia in Specified Circumstances—Health Care Card) Amendment Declaration 2015

Administered by Department of Social Services

Legislation au F2015L00535 Not in force Legislative Instrument

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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

Overview

The Social Security (Specified Class of Persons in Australia in Specified Circumstances − Health Care Card) Amendment Declaration 2015 was enacted to amend the Social Security Act 1991, specifically addressing the gap in access to health care cards for holders of a Subclass 790 (Safe Haven Enterprise) visa. This subclass of visa, introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legal Caseload) Act 2014, is a temporary protection visa for illegal maritime arrivals who meet certain criteria, including health, character, security, and identity checks, and an intention to work or study in regional Australia. The amendment was introduced to ensure that these visa holders, who are deemed to be in Australia under specified circumstances, are eligible for a health care card, thereby aligning with Australia’s international obligations under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of Persons with Disabilities. This amendment was issued under the authority of the Minister for Social Services and is intended to facilitate access to essential health care services for this group of visa holders.

Scope and Application

The Social Security (Specified Class of Persons in Australia in Specified Circumstances − Health Care Card) Amendment Declaration 2015 applies to holders of a Subclass 790 (Safe Haven Enterprise) visa, a subclass of the Safe Haven Enterprise (Class XE) visa, which is a temporary protection visa granted to an illegal maritime arrival who has been assessed as engaging Australia’s protection obligations, fulfilled health, character, security and identity checks, and indicated in writing an intention to work or study in regional Australia. This legislative instrument extends the eligibility for a health care card to these visa holders, in alignment with the objectives outlined in the Social Security Act 1991. The Declaration is applicable nationally within Australia and comes into effect immediately after the relevant provisions of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legal Caseload) Act 2014 are enacted, which introduced the Subclass 790 visa into the Migration Regulations 1994. There are no stated exclusions or thresholds within the Declaration, but it may be subject to amendments or variations as per the powers conferred under the Acts Interpretation Act 1901.

Key Provisions

The main operative sections of the Social Security (Specified Class of Persons in Australia—Health Care Card) Amendment Declaration 2015 (the Declaration) are found in Section 3. This section declares that holders of a Subclass 790 (Safe Haven Enterprise) visa are a specified class of persons for the purposes of subsection 1061ZO(7) of the Social Security Act 1991 (the Act). This means that these visa holders are eligible to apply for a health care card under the Act. The Declaration effectively extends the eligibility criteria for health care cards to include holders of this particular visa subclass, thereby facilitating access to healthcare services for this group. The obligations and requirements imposed by the Declaration primarily concern the eligibility criteria for health care cards under the Act. By declaring that Subclass 790 visa holders are a specified class of persons, the Declaration aligns with the provisions outlined in subsection 1061ZO(7) of the Act, thereby making these visa holders eligible for a health care card. This aligns with the purpose of the Declaration, which is to extend the eligibility criteria to include this specific visa subclass. The Department of Human Services was consulted to ensure consistency with other government agencies, reflecting a coordinated approach in administering these benefits. The Declaration itself does not create any new offences or penalties. However, it is important to note that misuse or fraudulent claims for health care cards could lead to criminal charges and penalties under the Social Security Act 1991. For instance, section 144 of the Act outlines various offences related to false statements or providing false documents to obtain benefits, which can incur substantial penalties. Although the Declaration does not introduce new penalties, it serves as a framework that could be subject to the existing regulatory and penal provisions of the Social Security Act. The Declaration also ensures compatibility with human rights obligations under international instruments. By extending eligibility for health care cards to Subclass 790 visa holders, it aligns with the right to social security and an adequate standard of living, as recognised in various international agreements such as the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees, and the International Covenant on Economic, Social and Cultural Rights. This aligns Australia with its international commitments and promotes the welfare of the specified visa holders. While the Declaration itself does not specify penalties for non-compliance with human rights, the broader legislative framework under which it operates may include such consequences.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.