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1998-1999-2000-2001
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAMILY AND COMMUNITY SERVICES LEGISLATION AMENDMENT (NEW ZEALAND CITIZENS) BILL 2001
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Family and
Community Services,
Senator the Hon Amanda
Vanstone)
ISBN: 0642 46605X
FAMILY AND COMMUNITY SERVICES LEGISLATION AMENDMENT (NEW ZEALAND CITIZENS) BILL 2001
This Bill gives effect to the changes announced by the Prime Minister
on 26 February 2001 that will provide a fair and mutually beneficial
approach to the costs of supporting people in need while preserving the common
labour market and free movement of people currently available through the
Trans-Tasman travel arrangements.
It will place New Zealand citizens
taking up residence in Australia on the same basis as other migrants by
restricting access to social security payments unless the person meets normal
migration selection criteria or the payment is covered by a social security
international agreement.
The Bill achieves this by amending the
definition of Australian resident for the purposes of the social
security law.
The changes will not apply to any child related payments
under the social security law and the family assistance law. Likewise, access
to concession cards under the social security law and the Health Insurance
Act 1973 will not be affected.
The Bill provides that the changes
will not apply to New Zealand citizens who were resident in Australia on 26
February 2001, or who are temporarily absent from Australia
and who have been in Australia for a period, or periods, of 12 months in the
previous 2 years immediately before 26 February
2001.
For those New Zealand citizens
who are intending to reside in Australia, a 3 month period of grace will apply
from 26 February 2001. A 6 month period of grace will apply to those New
Zealand citizens temporarily absent from Australia on 26 February 2001 and
who are in receipt of a social security payment under the portability
arrangements that apply under the social security law. A longer 12 month period
of grace will apply to those New Zealand citizens, resident in Australia but
temporarily absent, who are unable to return to Australia in the 3 month period
and are not in receipt of a social security payment.
Financial
impact:
2001-02 - $26.6m (savings)
2002-03 - $42.9m
(savings)
2003-04 - $118.5m (savings)
The measures in this Bill
impact on the following legislation:
• Social Security Act
1991;
• Social Security (Administration) Act
1999;
• A New Tax System (Family Assistance Act)
1999; and
• Health Insurance Act 1973.
PRELIMINARY
Clause 1 of the Family and Community Services Legislation
Amendment (New Zealand Citizens) Bill 2001 sets out how the Act is to be
cited.
Clause 2 provides that the Act will commence on the day it
receives the Royal Assent and also for the commencement of the Schedules
(including various items in the Schedules) in the amending Act.
Clause
3 provides that each Act specified in a Schedule is amended or repealed as
set out in the applicable items in that Schedule.
The following amendments are made by Part 1 of Schedule
1:
• a new definition of protected SCV holder is
inserted in section 7 of the Social Security Act 1991 (the Social
Security Act);
• the definition of Australian resident
is amended so that only a holder of a special category visa who is a
protected SCV holder will be considered an Australian
resident for the purposes of the social security
law;
• provisions that allow the Secretary to make a determination
about protected SCV holders;
• provisions that will allow payment
of newstart allowance, youth allowance and sickness allowance for a one-off
period of up to 6 months to New Zealand citizens who are not protected
SCV holders but who resided in Australia for a continuous period of at least 10
years since 26 February 2001;
• amendments to ensure that the new
residence rules do not restrict access to double orphan pension or to a seniors
health care card; and
• a savings provision.
The proposed
amendments will achieve the required restriction to access to social security
payments for New Zealand citizens who reside in Australia but who do not become
permanent residents or Australian citizens. The amendments also ensure that the
changes do not apply to child related social security payments and access to
concession cards for all suitably qualified New Zealand citizens.
Section 7 of the Social Security Act provides for Australian residence
definitions that apply to all social security payments and also to the family
assistance law. Subsection 7(1) of the Social Security Act provides for
relevant definitions relating to residence. Item 1 inserts a new
definition of protected SCV holder that will have the meaning
given by new subsections 7(2A), (2B), (2C) and (2D) of the Social Security
Act.
Currently, an Australian resident is a person who
resides in Australia and is either an Australian citizen (subparagraph
7(2)(b)(i)), or the holder of a permanent visa (subparagraph 7(2)(b)(ii)), or
the holder of a special category visa who is likely to remain permanently in
Australia (subparagraph 7(2)(b)(iii)). This definition is amended by item
2 by repealing subparagraph 7(2)(b)(iii) of the Social Security Act and
substituting the requirement that the person is a special category visa holder
who is a protected SCV holder.
Item 3 inserts new subsections
7(2A), (2B), (2C), (2D), (2E), (2F) and (2G) into the Social Security
Act.
New subsection 7(2A) of the Social Security Act provides that a
person is a protected SCV holder if the person:
• was
in Australia on 26 February 2001 and held a special category visa on that day;
or
• had been in Australia for a period, or periods, of 12 months
in the 2 years immediately before the 26 February 2001 and returned to Australia
after that day.
New subsection 7(2B) of the Social Security Act provides
that a person is a protected SCV holder if the
person:
• was residing in Australia on 26 February 2001 (this
requirement is determined by regard to those matters specified in subsection
7(3) of the Social Security Act); and
• was temporarily absent from
Australia on 26 February 2001; and
• was a special category visa
holder immediately before their temporary absence; and
• was
receiving a social security payment on 26 February 2001;
and
• returned to Australia before the end of the period that
begins on 26 February 2001 and ends either 26 weeks later (this is the
usual portability period for a social security payment) or such longer period as
determined under section 1218C of the Social Security Act.
New subsection
7(2C) of the Social Security Act provides that a person is a protected SCV
holder if the person commenced, or recommenced, residing in Australia
during the period of 3 months beginning on 26 February 2001 at a particular time
if:
• the time is during the period of 3 years beginning on 26
February 2001; or
• the time is after the end of the period of 3
years and either a determination under new subsection 7(2E) of the Social
Security Act is in force or the person has claimed a social security payment
that has been granted on the basis that the person is a protected SCV
holder.
New subsection 7(2D) of the Social Security Act provides that a
person is a protected SCV holder if the person was residing in
Australia on 26 February 2001 but was temporarily absent and not in receipt of a
social security payment on that day if:
• the time is during the
period of 12 months beginning on 26 February 2001; or
• the time is
after the end of the period of 12 months and either a determination under new
subsection 7(2E) of the Social Security Act is in force or the person has
claimed a social security payment that has been granted on the basis that the
person is a protected SCV holder.
New subsection 7(2E) of the Social
Security Act provides that a person who is residing in Australia and is in
Australia may apply to the Secretary for a determination that will
state:
• the person was residing in Australia on 26 February 2001
but was temporarily absent on that day; or
• the person commenced,
or recommenced, residing in Australia during the period of 3 months beginning on
26 February 2001.
New subsection 7(2F) of the Social Security Act
provides that if a person applies to the Secretary for a determination (a copy
of which must be given to the person) under new subsection 7(2E) that the
Secretary must make the determination if:
• the Secretary is
satisfied that new paragraphs 7(2E)(a) or (b) applies to the person;
and
• the application is made either within 12 months beginning on
26 February 2001 if paragraph 7(2E)(a) applies or within 3 years beginning on 26
February 2001 if paragraph 7(2E)(b) applies.
New subsection 7(2G) of the
Social Security Act provides that the Secretary must make a determination
in respect of a person if the person is a protected SCV holder because of new
subsection 7(2B). If a determination is made it must state that the person was
residing in Australia on 26 February 2001 but was temporarily absent on that
day. The determination must be made within 6 months of the
person’s return to Australia and a copy must be given to the
person.
Item 4 inserts new subsection 7(7) of the Social Security
Act that provides, for the purposes of qualification for youth allowance
(paragraph 540(d)), qualification for newstart allowance (subparagraph
593(1)(g)(ii)) and qualification for sickness allowance (paragraph 666(1)(g)),
that a person is exempt from the residence requirement in respect
of a period if the person was the holder of a special category visa and
immediately before the period commenced, the person had resided in Australia for
a continuous period of 10 years that commenced on or after
26 February 2001. This new subsection will also provide that this
exemption will only apply once only and for a continuous period of up to 6
months.
Items 5, 6 and 9 are technical amendments, respectively,
to paragraph 540(d), subparagraph 593(1)(g)(ii) and paragraph 666(1)(g) of the
Social Security Act that arise because of the amendment made by item
4.
Items 7, 8, 10, 11, 13 and 16 are technical amendments,
respectively, to paragraphs 623A(5)(b), 660YCFA(5)(b), 696B(6)(b),
771HNA(5)(b), 1039AA(5)(b) and 1061ZA(7)(b) of the Social Security Act that
ensure that the changes do not apply New Zealand citizens from the newly arrived
resident’s waiting period in certain circumstances. The amendment made
replaces “the day this subsection commences” with “1 February
2000” being the day proclaimed by the Governor-General for these
subsections to commence.
Items 12, 14 and 17, respectively, amend
subparagraph 999(1)(d)(i) (qualification for double orphan pension), paragraph
1061ZA(1)(b) (qualification for seniors health card) and paragraph 1061ZAA(a)
(duration of a newly arrived resident’s waiting period in respect of a
seniors health care card) to ensure that for these provisions, a person who is a
special category visa holder residing in Australia is not affected by the
application of the new definition of Australian
resident.
Item 15 repeals and substitutes paragraph
1061ZA(2)(b) of the Social Security Act so that a person is subject to a newly
arrived resident’s waiting period for the purposes of a seniors health
care card if they are in Australia and have not been an Australian resident or a
special category visa holder residing in Australia, for a period of, or periods
totalling, 104 weeks.
Paragraph 1061ZAA(b) of the Social Security Act is
repealed and substituted by item 18 so that the duration of a newly
arrived resident’s waiting period for the purposes of a seniors health
care card is 104 weeks if the person is an Australian resident or a special
category visa holder residing in Australia.
A savings provision is
inserted into the Social Security Act at item 19. New clause 133 of
Schedule 1A of the Social Security Act will ensure that the definition of
Australian resident if it required to be applied at a time,
or throughout a period, will be the definition that was in place before the
commencement of Part 1 of this Schedule and that the definition as amended by
item 2 will not apply.
These measures commence on Royal Assent of
the Bill except for items 14 to 18 which do not commence if clause
2 of the Bill commences at the same time as, or after, the commencement of
the Social Security Legislation Amendment (Concession Cards) Act
2001.
Part 2 of Schedule 1 makes amendments to the Social Security Act
that are necessary as a result of proposed amendments to be made by the
Social Security Legislation Amendment (Concession Cards) Act 2001
(currently a Bill before the Parliament).
The proposed amendments ensure
that the changes do not apply to restrict access to concession cards for all
suitably qualified New Zealand citizens.
Items 20, 22 and 24 to 32 are amendments, respectively, to
paragraphs 1061ZG(1)(b), 1061ZI(a), subparagraphs 1061ZN(1)(a)(i),
1061ZO(2)(a)(i), 1061ZO(2)(a)(ii), 1061ZO(2)(b)(ii), paragraphs 1061ZO(3)(a),
1061ZO(4)(a), 1061ZO(5)(b), 1061ZQ(2)(c) and 1061ZR(a) of the Social Security
Act from 1 July 2001 after the Social Security Legislation Amendment
(Concession Cards) Act 2001 commences. The amendments will allow New
Zealand citizens, irrespective of their residence status as special category
visa holders, to be able to continue to qualify for health care cards (the
amendments made to sections 1061ZN and 1061ZO) and will also enable this
status to count towards the 104 weeks Australian resident requirement for the
purposes of the newly arrived resident’s waiting period (amendments to
sections 1061ZQ and 1061ZR).
Item 21 repeals and substitutes
paragraph 1061ZH(1)(b) of the Social Security Act so that a person is subject to
a newly arrived resident’s waiting period for the purposes of a seniors
health card if they are in Australia and have not been an Australian resident or
a special category visa holder residing in Australia, for a period of, or
periods totalling, 104 weeks.
Paragraphs 1061ZI(b) and 1061ZR(b) of the
Social Security Act are repealed and substituted by items 23 and 33 so
that the duration of a newly arrived resident’s waiting period for the
purposes of a seniors health card and for a health care card is 104 weeks if the
person is an Australian resident or a special category visa holder residing in
Australia.
These measures commence immediately after the commencement of
the Social Security Legislation Amendment (Concession Cards) Act
2001.
SCHEUDLE 2—AMENDMENT OF OTHER ACTS
PART 1—A NEW TAX SYSTEM (FAMILY ASSISTANCE) ACT 1999
Part 1 of Schedule 2 makes amendments to the A New Tax
System (Family Assistance) Act 1999 (the Family Assistance Act) that are
necessary as a result of the proposed amendment to be made to the definition of
Australian resident in the Social Security Act because that
definition is applicable to the family assistance law.
The proposed
amendments ensure that the changes do not apply to child related payments for
all suitably qualified New Zealand citizens under the family assistance
law.
Explanation of the changes
Item 1 inserts a definition of holder in
subsection 3(1) of the Family Assistance Act in the same terms as that
definition appears in subsection 7(1) of the Social Security Act.
Item
2 inserts a definition of resides in Australia in subsection
3(1) of the Family Assistance Act so that it has the same meaning as in the
Social Security Act.
Item 3 inserts a definition of special
category visa in subsection 3(1) of the Family Assistance Act in the
same terms as that definition appears in subsection 7(1) of the Social Security
Act.
Section 21 of the Family Assistance Act provides for the criteria
for the eligibility for family tax benefit (FTB) in normal circumstances. This
provides, in part, that the person is an Australian resident, which has the same
meaning as in the Social Security Act. Item 4 inserts new
subparagraph 21(1)(b)(ia) to ensure that a person who is a special category
visa holder residing in Australia is, subject to other criteria, eligible for
FTB in normal circumstances.
Section 22 of the Family Assistance Act
provides for a situation where an individual is an FTB child of another
individual. This provides, in part, that the person (being the FTB child) is an
Australian resident, which has the same meaning as in the Social Security Act or
is living with the adult. Item 5 amends paragraph 22(2)(d) to
ensure that an FTB child who is not living with the adult and is a special
category visa holder residing in Australia is not affected by the amendment made
to the definition of Australian resident in the Social Security
Act. Similar amendments are made to paragraphs 22(3)(e), (4)(d), (5)(c) and
(6)(c) respectively by items 6 to 9.
Section 42 of the Family
Assistance Act provides for the criteria for conditional eligibility for child
care benefit (CCB) by fee reduction for care provided by an approved child care
service. This provides, in part, that the individual, or the individual’s
partner, is an Australian resident, which has the same meaning as in the Social
Security Act. Item 10 inserts new subparagraph 42(1)(b)(ia) to
ensure that an individual, or the individual’s partner, who is a special
category visa holder residing in Australia retains, subject to other criteria,
conditional eligibility for CCB by fee reduction for care provided by an
approved child care service.
Section 44 of the Family Assistance Act
provides for the criteria for the eligibility for CCB for a past period for care
provided by an approved child care service. This provides, in part, that the
individual, or the individual’s partner, is an Australian resident, which
has the same meaning as in the Social Security Act. Item 11 inserts new
subparagraph 44(1)(d)(ia) to ensure that an individual, or the
individual’s partner, who is a special category visa holder residing in
Australia retains, subject to other criteria, eligibility for CCB for a past
period for care provided by an approved child care service.
Section 45 of
the Family Assistance Act provides for the criteria for the eligibility for CCB
for a past period for care provided by a registered carer. This provides, in
part, that the individual, or the individual’s partner, is an Australian
resident, which has the same meaning as in the Social Security Act. Item
12 inserts new subparagraph 45(1)(f)(ia) to ensure that an individual,
or the individual’s partner, who is a special category visa holder
residing in Australia retains, subject to other criteria, eligibility for CCB
for a past period for care provided by a registered carer.
These measures
commence on Royal Assent of the Bill.
Part 2 of Schedule 2 makes amendments to the Health
Insurance Act 1973 (the Health Insurance Act) that are necessary as a
result of the proposed amendment to be made to the definition of
Australian resident in the Social Security Act.
The
proposed amendments ensure that the changes do not apply to restrict access to
concession cards for low income earners for all suitably qualified New Zealand
citizens.
Explanation of the changes
Section 5BA of the Health Insurance Act provides for a newly arrived
disadvantaged low income resident’s waiting period. In order to meet the
requirements of the waiting period a low income resident must be an Australian
resident, which has the same meaning as in the Social Security
Act.
Item 13 repeals and substitutes paragraph 5BA(2)(c) of the
Health Insurance Act so that a person is subject to a newly arrived
resident’s waiting period for the purposes of access to a concession card
for low income resident’s if they are in Australia and have not been an
Australian resident or a special category visa holder residing in Australia, for
a period of, or periods totalling, 104 weeks.
Item 14 amends
paragraph 5BA(3)(a) to ensure that the waiting period starts on the day the
person first became an Australian resident or a special category visa holder
residing in Australia.
Paragraphs 5BA(3)(b) of the Health Insurance Act
is repealed and substituted by item 15 so that the duration of a
newly arrived resident’s waiting period for the purposes of a concession
card for a low income resident is 104 weeks if the person is an Australian
resident or a special category visa holder residing in Australia.
These
measures commence on Royal Assent of the Bill but do not commence if clause
2 of the Bill commences at the same time as, or after, the commencement of
the Social Security Legislation Amendment (Concession Cards) Act
2001.
Part 3 of Schedule 2 makes amendments to the Social
Security (Administration) Act 1999 (the Social Security (Administration)
Act) that are necessary as a result of the proposed amendment to be made to the
definition of Australian resident in the Social Security
Act.
The proposed amendments will ensure that access to concession cards
under the social security law for all suitably qualified New Zealand citizens is
maintained. They will also ensure that a person who is a special category visa
holder will be able to make a claim for a social security payment so that a test
of their qualification for that payment can be decided.
Explanation of the changes
Item 17 inserts new section 31A in the Social Security
(Administration) Act to ensure that a New Zealand citizen who is a special
category visa holder but not a protected SCV holder will be able to lodge
a claim for a social security payment or a concession card, as the case
requires. Item 18 makes a technical amendment to section 29 of the
Social Security (Administration) Act as a result of the insertion of new section
31A.
New section 240B of the Social Security (Administration) Act, to be
inserted by the Social Security Legislation Amendment (Concession Cards)
Act 2001, provides for certain restrictions on the listing of dependants
on a seniors health card. This provides, in part, that a person who has a
partner and the partner is in Australia and is either an Australian resident, or
the holder of a visa included in a class of visas determined by the Minister, or
a person declared by the Minister. Item 16 inserts
subparagraph 240B(4)(a)(ia) to ensure that the partner can also be a
special category visa holder residing in Australia ensuring that the changes
made to the definition of Australian resident do not
apply.
These measures commence on Royal Assent except for item 18,
which commences immediately after the commencement of the Social Security
Legislation Amendment (Concession Cards) Act 2001.