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1996
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
STUDENT
AND YOUTH ASSISTANCE AMENDMENT (WAITING PERIOD)
BILL
1996
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Employment, Education, Training and Youth
Affairs, Senator the Hon Amanda Vanstone)
78935 Cat. No. 96 5140 3 ISBN 0644 478934
STUDENT AND YOUTH ASSISTANCE AMENDMENT (WAITING
PERIOD)
BILL 1996
OUTLINE
The legislation amends the Student and Youth Assistance Act 1973
(“the Act”).
As part of its 1996 election policy commitments,
the Government announced its intention to introduce a two year waiting period
before newly arrived migrants could access certain social security payments.
This policy was extended to AUSTUDY as a 1996-97 Budget measure.
This
Bill introduces a two year (104 week) waiting period for access to AUSTUDY which
will apply, with limited exceptions, to all migrants who arrive in Australia on
or after 1 January 1997. It will also apply to New Zealand citizens who
permanently settle in Australia on or after 1 January 1997. The
present six month waiting period will continue to apply to New Zealand citizens
who permanently settle in Australia before 1 January 1997.
The Bill makes
special provision for migrants who are New Zealand citizens because, unlike
other migrants who must hold a permanent visa to settle permanently in
Australia, New Zealand citizens enter Australia on a “special category
visa” which entitles them to remain here indefinitely. In other words a
special category visa does not distinguish between entry as a permanent settler
and entry in a temporary capacity. However, it is intended that as far as
practicable migrants from New Zealand should have the new two year waiting
period applied to them in the same manner as it is applied to migrants from
other countries.
The waiting period will not apply to permanent resident
refugee and humanitarian migrants and their immediate family members, former
holders of a subclass 820 [Extended eligibility (spouse)] or a subclass 826
[Interdependency] visa, holders of a subclass 832 [Close ties] or a subclass 833
[Certain unlawful non-citizens] visa and certain migrants whose circumstances
change significantly and for reasons beyond their control after their arrival in
Australia.
The AUSTUDY waiting period:
• for persons who
enter Australia as permanent visa holders, will start on the day on which the
person enters Australia and will end on the day on which the person has been in
Australia for a period of, or periods totalling, 104 weeks;
• for
persons who acquire a permanent visa after entering Australia, will start on the
day on which the person is granted a permanent visa and will end on the day on
which the person has been in Australia for a period of, or periods totalling,
104 weeks after that date [However, where a person who acquires a permanent visa
after entering Australia is granted that permanent visa on appeal against an
earlier decision not to grant a permanent visa, the AUSTUDY waiting period
starts on the date of the primary decision; ie. the date the person’s
application for a permanent visa was first rejected];
• for New
Zealand citizens, will start on the day on which the person permanently settles
in Australia and will end on the day on which the person has been in Australia
for a period of, or periods totalling, 104 weeks after that date.
FINANCIAL IMPACT
The introduction of the AUSTUDY waiting period is expected to reduce outlays
on AUSTUDY by $6.0 million in 1996-97, $12.3 million in 1997-98 and $12.6
million in
1998-99.
NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 sets out the short title
of the proposed Act.
Clause 2 -
Commencement
Clause 2 provides for the commencement of the
proposed Act on the day it receives the Royal Assent.
Clause 3 -
Schedule
Clause 3 provides that each Act specified in a
Schedule to this Act is amended or repealed as set out in the applicable items
in the Schedule concerned, and any other item in a Schedule to this Act has
effect according to its terms.
SCHEDULE 1 - AMENDMENTS TO THE STUDENT AND YOUTH
ASSISTANCE ACT 1973
Student and Youth Assistance Act 1973
The
Student and Youth Assistance Act 1973 (the Act) makes provision for
certain benefits to students and young people. Part 2 of the Act deals with the
AUSTUDY scheme.
Item 1 - Subsection 3(1) (definition of permanent
resident of Australia)
Item 1 repeals the definition of
“permanent resident of Australia”.
Item 2 - After Section
6
Item 2 inserts nine new sections, eight of which define
terms to be used in the Act in respect of the application of the new two year
waiting period for newly arrived migrant access to AUSTUDY and one section
(section 6J) which specifies that certain determinations are disallowable
instruments.
Section 6A defines the terms “Australian
resident”, “exempt resident”, “family member”,
“holder”, “parent”, “partner”,
“permanent protection visa”, “permanent visa”
“special category visa” and “visa” for the purposes of
Part 2 of the Act.
Section 6B provides that a person is not to be treated
as residing in Australia (for the purposes of the definition of
“Australian resident” in section 6A) unless the person intends to
remain permanently in Australia and goes on to list some non-exhaustive criteria
for deciding whether or not a person intends to remain permanently in
Australia.
Section 6C defines “refugees” who are exempt from
the waiting period by virtue of paragraph 8(2)(a).
Section 6D defines
“dependent child” for the purposes of the definition of
“family member” in section 6A.
Section 6E defines
“member of a couple” for the purposes of the definitions of
“partner” and “family member” in section
6A.
Section 6F defines a “change of circumstances resident”.
Change of circumstances residents are exempt from the waiting period while they
remain a change of circumstances resident (see paragraph
8(2)(d)).
Section 6G defines a “post-1996 Australian
resident”. Post-1996 Australian residents are subject to a waiting period
unless specifically exempt under subsection 8(2).
Section 6H defines a
“pre-1997 Australian resident” as any Australian resident (other
than a New Zealand citizen) who is not a post-1996 Australian resident. For New
Zealand citizens who are not post-1996 Australian residents, subsection (2)
provides for retention of the current “6 month” waiting period
before such New Zealand citizens permanently residing in Australia are eligible
for AUSTUDY. The 6 month waiting period for access to AUSTUDY for New Zealand
citizens is currently provided for by Regulation (Regulation 4 of the AUSTUDY
Regulations) and it is intended to repeal the Regulation after the commencement
of the Student and Youth Assistance Amendment (Waiting Period)
Act.
Item 3 - Subsection 7(1)
Item 3 has, in
conjunction with the new subsection 7(1A), the effect of providing that a person
subject to a waiting period in accordance with new sections 8 and 9 must not be
granted an AUSTUDY benefit until their waiting period has ended.
Item
4 - Paragraph 7(1)(a)
Item 4 replaces the current paragraph
with a new paragraph to reflect the change in terminology for classes of persons
who may receive an AUSTUDY benefit provided for by this Act. It removes
references to “permanent resident of Australia” (a definition
repealed by Item 1) and inserts references to “a pre-1997 Australian
resident” and “a post-1996 Australian resident” made necessary
by the introduction of those terms by the new sections 6G and 6H.
Item
5 - After Subsection 7(1)
Item 5 inserts a new subsection
7(1A) which provides that a person subject to a waiting period in accordance
with new sections 8 and 9 must not be granted an AUSTUDY benefit until their
waiting period has ended.
Item 6 - After Section 7
Item
6 inserts two new sections (sections 8 and 9) relating to the application of
a 104 week waiting period before certain post-1996 Australian residents are
entitled to AUSTUDY benefits.
Subsection 8(1) provides that a post-1996
Australian resident is subject to a waiting period while subsection (2) lists
those post-1996 Australian residents who are exempt from the waiting
period.
Section 9 specifies the duration of a waiting period and the day
from which any waiting period begins to run for New Zealand citizens and other
post-1996 Australian residents. The waiting period for New Zealand citizens
runs from the day they become an Australian resident (subsection 9(2)) and the
waiting period for other post-1996 Australian residents runs from the day they
enter Australia or the day they are granted a permanent visa, whichever is the
later (subsection 9(1)). Periods of absence from Australia do not count towards
any waiting period being served by a post-1996 Australian
resident.
Subsection 9(3) provides that where a person who acquires a
permanent visa after entering Australia is granted that permanent visa on appeal
from an earlier decision not to grant them a permanent visa, the day on which
the person is deemed to have been granted a permanent visa for the purposes of
subparagraph 9(1)(a)(ii) is the date of the primary decision not to grant them a
permanent visa.