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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SERVICES LEGISLATION AMENDMENT
(CONSISTENT WAITING PERIODS FOR NEW MIGRANTS) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families and Social Services and Minister for Women's Safety,
Senator the Hon Anne Ruston)
SOCIAL SERVICES LEGISLATION AMENDMENT
(CONSISTENT WAITING PERIODS FOR NEW MIGRANTS) BILL 2021
OUTLINE
This Bill:
Applies a consistent four-year Newly Arrived Resident's Waiting Period
(NARWP) from 1 January 2022 for carer payment, parental leave pay (PLP)
and dad and partner pay (DaPP), extending the NARWP from 104 weeks
(two years) to 208 weeks (four years) for new permanent residents and
relevant temporary visa holders;
Applies a consistent four-year NARWP from 1 January 2022 for carer
allowance and family tax benefit (FTB) Part A, extending the NARWP from
52 weeks (one year) to 208 weeks (four years) for new permanent residents
and relevant temporary visa holders;
Applies a consistent four-year NARWP from 1 January 2022 for FTB Part B,
introducing the NARWP of 208 weeks (four years) for new permanent
residents and relevant temporary visa holders;
Applies a consistent four-year NARWP from 1 January 2022 for the low
income health care card and Commonwealth seniors health card, extending
the NARWP from 104 weeks (two years) to 208 weeks (four years) for
relevant new temporary visa holders;
Removes from 1 January 2022 the 104-week (two-year) qualifying residence
period for Parenting Payment and makes a number of other minor technical
and consequential amendments to clarify the current administration of the
relevant social security and family assistance laws.
Background
Unlike the systems that operate in most other countries, Australia's social security
system is a non-contributory, residence-based system. Waiting periods and
qualifying residence periods for newly arrived migrants are a long-standing feature of
the social security system and reflect the expectation that new migrants make
provision to be self-sufficient when they first settle permanently in Australia.
A 208-week (four-year) NARWP currently applies to jobseeker payment, youth
allowance, austudy, parenting payment, special benefit, mobility allowance and
pensioner education supplement. A 208-week (four-year) NARWP also applies to the
low income health care card and Commonwealth seniors health card, except in the
case of certain temporary visa holders who have a 104-week (two-year) NARWP for
these concession cards.
1
The duration of the NARWP varies across other payments. Currently, there is a
104-week (two-year) NARWP for carer payment, PLP and DaPP, and there is a
52-week (one-year) NARWP for carer allowance and FTB Part A payments. There is
currently no waiting period for FTB Part B payments.
The current rules generally apply to people who, on or after 1 January 2019,
become:
- an Australian permanent visa holder, or
- in relation to certain payments and concession cards, an SCV holder or the
holder of a visa that results in qualification for special benefit under the Social
Security Act (that is, the holder of a temporary partner visa).
People who became an Australian resident, SCV holder, or temporary partner visa
holder prior to 1 January 2019 remain subject to the rules in place prior to 1 January
2019.
From 1 January 2022, the Government will make the NARWP consistent for all
payments and concession cards to simplify the welfare payment system, reinforce
existing expectations that new permanent migrants will be self-sufficient, and
maintain the sustainability of the welfare payment system. The length of the NARWP
will be consistently 208 weeks, regardless of the payment or concession card type.
In the context of the current welfare payment system and migrant program settings
and objectives, four years is considered a reasonable period to expect migrants to
support themselves and their families before accessing most Australian welfare
payments. There will continue to be an extensive range of exemptions and
safeguards in place for those who may need immediate access to certain payments,
depending on their circumstances.
Summary
Waiting period changes
This Bill extends, from 1 January 2022, the existing NARWP for carer payment, PLP,
DaPP from 104 weeks (two years) to 208 weeks (four years). This aligns the
NARWP for these payments with the existing NARWP for working age social security
payments and concession cards.
This Bill also applies, from 1 January 2022, the existing 208-week (four-year)
NARWP for the low income health care card and Commonwealth seniors health card
to SCV holders and temporary partner visa holders, to achieve consistency with
current rules for these concession cards for permanent visa holders. These
temporary visa holders currently have a 104-week (two-year) NARWP for
concession cards.
Finally, this Bill extends, from 1 January 2022, the existing NARWP for carer
allowance and FTB Part A from 52 weeks (one year) to 208 weeks (four years), and
introduces a 208-week (four-year) NARWP to FTB Part B where there is currently no
NARWP.
2
These amendments are intended to standardise the NARWP across all relevant
payments, making the system simpler and easier for new migrants to understand.
In relation to permanent residents, the application provisions in this Bill mean the
above changes will only apply to a person who becomes the holder of a permanent
visa or relevant temporary visa on or after commencement (intended to be 1 January
2022).
A person who becomes the holder of a permanent visa prior to 1 January 2022 will
continue to be subject to the current rules. For example, a person who becomes the
holder of a permanent visa on or after 1 January 2019, but before 1 January 2022,
will be subject to the rules introduced in the Social Services and Other Legislation
Amendment (Promoting Sustainable Welfare) Act 2018. A person who became the
holder of a permanent visa prior to 1 January 2019 will be subject to the rules in
place before January 2019, that is, a 104-week (two-year) NARWP for most working
age social security payments and concession cards but no NARWP for carer
allowance, FTB, PLP or DaPP.
Migrants on a permanent Orphan or Remaining Relative visa will be excluded from
the changes to the NARWP in this Bill, irrespective of when their visa is granted.
Consistent with the approach taken in the Social Services and Other Legislation
Amendment (Promoting Sustainable Welfare) Act 2018, these visa holders will
remain subject to the NARWP rules in place prior to 1 January 2019.
While most temporary visa holder do not have access to Australian payments, some
temporary visa holders can access family payments and certain concession cards,
subject to meeting an applicable NARWP. These include temporary partner visa
holders and New Zealanders on an SCV. In relation to these temporary visa holders,
the application provisions mean the changes to the NARWP for family payments and
concession cards will only apply to a person who first becomes the holder of a
relevant temporary visa on or after commencement (intended to be 1 January 2022).
In addition, people who held a relevant temporary visa prior to 1 January 2022 but
are granted a permanent visa on or after this time will continue to be subject to the
rules that applied for family payments and concession cards when their temporary
visa was granted. That is, the NARWP for family payments and concession cards will
not restart or increase if a relevant temporary visa holder is granted a permanent
visa. For example, a person granted a temporary partner visa on 1 July 2021 would
be subject to a 104-week NARWP for PLP, DaPP and the low income health care
card, a 52-week NARWP for FTB Part A and no waiting period for FTB Part B. If that
person was later granted a permanent partner visa on or after 1 January 2022, those
waiting period rules will continue to apply and they will not become subject to the
208-week NARWP for family payments and concession cards. They will however
have the 208-week NARWP for other payments, including jobseeker payment,
parenting payment, carer payment and carer allowance.
Applying this measure only to those who become a relevant visa holder on or after
1 January 2022 is intended to ensure individuals and families are aware of the new
rules so they can make informed decisions when deciding to apply for or accept a
visa, including about how they will support themselves during the waiting period.
3
Existing exemptions and safeguards
Existing exemptions from the NARWP will continue to apply to the payments
currently subject to a NARWP and will also apply to the NARWP for FTB Part B.
These exemptions are already contained in the Social Security Act 1991, A New Tax
System (Family Assistance) Act 1999 and Paid Parental Leave Act 2010 and
amendments are not required to retain these exemptions or apply them to FTB
Part B.
Exemptions are available for all payments and concession cards for migrants who
become an Australian citizen whilst they are serving the NARWP as well as
for humanitarian entrants and their families.
There are also exemptions for specific payments and concession cards for:
- holders of certain Carer visas (carer payment and carer allowance),
- migrants who become a lone parent after becoming an Australian resident
(parenting payment, jobseeker payment and youth allowance),
- migrants who experience a substantial change in circumstances, such as
domestic violence, illness/injury, or the death of a partner or sponsor (special
benefit and low income health care card), and
- New Zealanders who are a current or former holder of a SCV (FTB, PLP,
DaPP).
People granted an income support payment (such as parenting payment or special
benefit) due to one of these exemptions are automatically exempt from the NARWP
for carer allowance, FTB, PLP and DaPP, enabling them to access this support
where eligible if they have caring responsibilities for a child and/or person with
disability.
Families with a child otherwise eligible for FTB will also continue to be exempt from
the four-year NARWP for the low income health care card, where eligible, enabling
them to access this concession card while they are serving the NARWP for FTB.
These arrangements will continue to provide a safety net, including for migrants in
potentially vulnerable circumstances and those who are unable to support
themselves or be supported by family as planned for reasons beyond their control.
Families where at least one parent is an Australian citizen, or permanent resident
who has already served the waiting period, will still be able to access FTB, even if
the other parent is serving a NARWP for that payment.
The NARWP for FTB will not affect a person's entitlement to double orphan pension
or stillborn baby payment. This ensures migrants who have a stillborn child or are
caring for a child who has lost both parents still have access to financial support to
ensure they can meet any costs associated with these circumstances.
There will continue to be no waiting period for child care subsidies to facilitate new
migrants' participation in the labour force. This is consistent with the general
expectation new migrants will support themselves and their families, including
through work.
4
Minor and technical amendments
This Bill removes, from 1 January 2022, the current 104-week (two-year) qualifying
residence period for parenting payment. This qualifying residence period is
considered no longer necessary as it runs concurrently with the existing 208-week
(four-year) NARWP for parenting payment.
Finally, this Bill provides a number of other minor technical and contingent
amendments designed to clarify the current administration of and achieve
consistency throughout the social security, family assistance and paid parental leave
laws.
Schedule 1 - Social security amendments
This Schedule extends from 1 January 2022 the existing NARWP to 208 weeks (four
years) for carer payment and carer allowance and removes the qualifying residence
period for parenting payment. This Schedule also provides minor technical
amendments.
Schedule 2 - Family assistance amendments
This Schedule extends from 1 January 2022 the existing NARWP to 208 weeks (four
years) for FTB Part A and introduces a NARWP of 208 weeks (four years) for FTB
Part B.
Schedule 3 - Paid parental leave amendments
This Schedule extends from 1 January 2022 the existing NARWP to 208 weeks (four
years) for parental leave pay and dad and partner pay.
FINANCIAL IMPACT STATEMENT
The changes in this Bill are expected to result in total net savings of around
$672 million over five years from 2020-21 to 2024-25.
MEASURE FINANCIAL IMPACT OVER THE FORWARD
ESTIMATES (DSS administered savings
only)
Schedule 1 - Social security Savings of $64.9 million
amendments
Schedule 2 - Family assistance Savings of $515.5 million
amendments
Schedule 3 - Paid parental leave Savings of $71.9 million
amendments
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statements of compatibility with human rights appears at the end of this
explanatory memorandum.
5
SOCIAL SERVICES LEGISLATION AMENDMENT
(CONSISTENT WAITING PERIODS FOR NEW MIGRANTS) BILL 2021
NOTES ON CLAUSES
Abbreviations and Acronyms used in this explanatory memorandum
Social Security Act means the Social Security Act 1991;
International Agreements Act means the Social Security (International
Agreements) Act 1999;
Family Assistance Act means the A New Tax System (Family Assistance)
Act 1999;
Paid Parental Leave Act means the Paid Parental Leave Act 2010;
DaPP means Dad and Partner Pay;
FTB means Family Tax Benefit;
PLP means Parental Leave Pay;
NARWP means newly arrived resident's waiting period; and
SCV means special category visa.
Clause 1 sets out how the new Act is to be cited - that is, as the Social
Services Legislation Amendment (Consistent Waiting Periods for New Migrants)
Act 2021.
Clause 2 provides a table setting out the commencement dates of the various
sections in, and Schedules to, the Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule, and any other item in a Schedule to the Act has
effect according to its terms.
1
Schedule 1 - Social security amendments
Schedule 1 - Social security amendments
Summary
This Schedule will extend, from 1 January 2022, the existing newly arrived resident's
waiting period (NARWP) for carer payment and carer allowance from 104 weeks
(two years) and 52 weeks (one year) respectively to 208 weeks (four years).
Part 1 also applies the existing 208-week (four-year) NARWP for the low income
health care card and Commonwealth seniors health card to relevant temporary visa
holders (SCV holders and temporary partner visa holders) to achieve consistency
with current rules for these concession cards for permanent visa holders.
Under the amendments in this Schedule, individuals who become the holder of a
permanent visa, or relevant temporary visa, on or after 1 January 2022 will be
required to wait until they have been an Australian resident or relevant temporary
visa holder and in Australia for a period of, or periods totalling, 208 weeks (four
years) before they can be paid carer payment or carer allowance or issued with a
relevant concession card, unless an exemption applies.
Part 1 also makes a number of minor technical amendments to the Social Security
Act and two minor consequential amendments to the International Agreements Act.
Part 2 makes a minor contingent amendment that is required following amendments
made to the Social Security Act by a separate and unrelated Bill.
Explanation of the changes
Part 1 - Main amendments
Social Security Act 1991
Items 1 to 4 are technical amendments to the dictionary of the Social Security Act at
subsection 23(1), which remove some paragraphs of the definitions of newly arrived
resident's waiting period and waiting period. The paragraphs being removed are no
longer required because the relevant terms are either adequately defined within the
corresponding provisions of the Social Security Act or are no longer current because
the associated payments are no longer available.
Item 1 is a technical amendment to the dictionary of the Social Security Act at
subsection 23(1). Item 1 repeals paragraph (b) of the definition of newly arrived
resident's waiting period relating to bereavement allowance, which is no longer
required because bereavement allowance is no longer available.
Item 2 is a technical amendment to the dictionary at subsection 23(1). Item 2
removes the reference to section 732 from paragraph (g) of the definition of newly
arrived resident's waiting period as the cross-reference to section 732 (which deals
with special benefits) is no longer required. Section 739A currently provides the
definition and duration of the NARWP for the purposes of special benefit.
2
Schedule 1 - Social security amendments
Item 3 is a technical amendment to the dictionary at subsection 23(1). Item 3 repeals
paragraph (ab) of the definition of waiting period, which is no longer required
because bereavement allowance is no longer available.
Item 4 is a technical amendment to the dictionary at subsection 23(1). Item 4
removes the reference to section 732 from paragraph (ka) of the definition of waiting
period as the cross-reference to section 732 (which deals with special benefit) is no
longer required because section 739A provides the definition and duration of the
NARWP for special benefit.
Items 5 and 6 amend sections 201AA 'Newly arrived resident's period' and 201AB
'Duration of newly arrived resident's period', which relate to the payability of carer
payment. Items 5 and 6 extend the existing 104-week (two-year) NARWP for carer
payment to 208 weeks (four years) to align with the existing 208-week (four-year)
NARWP for working-age payments. The exemptions to the NARWP for the purposes
of carer payment provided at subsections 201AA(2) to (5A) will continue.
Item 5 amends paragraph 201AA(1)(b) by removing the reference to "104" weeks
and substituting "208" weeks.
Item 6 amends paragraph 201AB(b) by removing the reference to "104" weeks and
substituting "208" weeks.
Items 7 to 11 amend section 500 'Qualification for parenting payment' by removing
the qualifying residence period and the associated qualifying residence exemptions
for parenting payment. Parenting payment is already subject to a 208-week (four-
year) NARWP, which includes the same exemptions.
Item 7 is a consequential amendment to section 500 'Qualification for parenting
payment' removing a semi-colon and inserting a full-stop after paragraph 500(1)(ca).
This consequential amendment is required as a result of the amendment made by
item 8.
Item 8 amends section 500 'Qualification for parenting payment' by removing the
104-week (two-year) qualifying residence period for parenting payment provided at
subparagraph 500(1)(d)(ii). It also removes the associated qualifying residence
exemptions set out at subparagraphs 500(1)(d)(i), (iii) and (iv). Paragraph 500(1)(d)
requires a person to satisfy one of four conditions to qualify for parenting payment,
requiring that they had been in Australia for periods adding up to at least 104 weeks
(two years), or became a lone parent after becoming an Australian resident, or are
the family member of a refugee, or otherwise have a qualifying residence exemption.
Given parenting payment is already subject to a 208-week (four-year) waiting period
and the lone parent and qualifying residence exemptions are currently included as
NARWP exemptions under subsections 500X(3) to (5), the additional qualifying
residence requirement provided by paragraph 500(1)(d) is no longer necessary.
Item 9 amends subsection 500(1) by amending note 1 (which refers to the definition
of qualifying residence exemption). The reference to qualifying residence exemption
is no longer required following the repeal of paragraph 500(1)(d) by item 8.
3
Schedule 1 - Social security amendments
Item 10 amends subsection 500(1) by removing note 3 (which refers to the
definitions of lone parent and member of a couple) as this note is no longer required
following the repeal of paragraph 500(1)(d) by item 8.
Item 11 amends section 500 'Qualification for parenting payment' by removing the
qualifying residence exemption in relation to parenting payment provided at
subsections 500(3) and (4). Subsections 500X(3) to (5) currently set out the lone
parent and qualifying residence exemptions to NARWP for parenting payment
purposes and accordingly subsections 500(3) and (4) are not required.
Item 12 amends paragraph 665M(a) which deals with qualification for education
entry payment for special benefit recipients. Item 12 is a consequential amendment
that removes the reference to paragraph 500(1)(d) from paragraph 665M(a) as this
reference is no longer required following the repeal of paragraph 500(1)(d) by item 8.
Items 13 and 14 amend section 966 'Newly arrived resident's period' and section
967 'Duration of newly arrived resident's period', which relate to the payability of
carer allowance, to align with the current 208-week (four-year) NARWP for
working-age payments. The exemptions to the NARWP for the purposes of carer
allowance provided at subsections 966(2) to (5) will continue.
Item 13 amends paragraph 966(1)(b) by removing the reference to "52" weeks and
substituting "208" weeks.
Item 14 amends subsection 967(2) by removing the reference to "52" weeks and
substituting "208" weeks.
Items 15 to 16 are technical amendments clarifying the current operation of section
1061ZI (which provides the duration of NARWP for the purposes of the
Commonwealth seniors health card) and section 1061ZR (which provides the
duration of NARWP for the purposes of the low income health care card) where a
person moves from being a SCV holder to being an Australian resident (that is, an
Australian citizen or permanent visa holder residing in Australia). The policy intent is
that time in Australia as both a SCV holder and an Australian resident counts
towards the NAWRP for these concession cards and the NARWP does not restart on
becoming an Australian resident. This is consistent with the way sections 1061ZI and
1061ZR are currently administered.
Item 15 is a technical amendment that removes and replaces the existing content of
paragraph 1061ZI(b). Item 15 clarifies that the NARWP for the Commonwealth
seniors health card may consist of an aggregate of any period or periods totalling
208 weeks in which the person has been an Australian resident and in Australia or a
SCV holder residing in Australia and in Australia. The total NARWP can currently be
served by a person counting any combination of such periods. This maintains the
existing operation of the NARWP for SCV holders for the purposes of the
Commonwealth seniors health card and clarifies the way that section 1061ZI is
currently administered.
4
Schedule 1 - Social security amendments
Item 16 is a technical amendment that removes and replaces the existing contents
of paragraph 1061ZR(1)(b). Item 16 clarifies that the NARWP for the low income
health care card may consist of an aggregate of any period or periods totalling 208
weeks in which the person has been an Australian resident and in Australia or a SCV
holder residing in Australia and in Australia. The total NARWP can currently be
served by a person counting any combination of such periods. This maintains the
existing operation of the 208-week (four-year) for SCV holders for the purposes of
the low income health care card and clarifies the way that section 1061ZR is
currently administered.
Item 17 provides for the application and transitional effects of the amendments made
by this Part, which apply prospectively.
Subitem 17(1) provides that the amendments made by items 5 to 6 to sections
201AA and 201AB in relation to carer payment and by items 13 to 14 to sections 966
and 967 in relation to carer allowance apply in relation to a person who becomes the
holder of a permanent visa on or after the commencement of the items (proposed to
be 1 January 2022).
Subitem 17(2) provides that the amendments made by items 5 to 6 to sections
201AA and 201AB in relation to carer payment do not apply to a person who
becomes the holder of an orphan relative or remaining relative visa on or after
commencement of the items. This ensures these visa holders retain the existing 104-
week NARWP for carer payment. Specific application provisions for carer allowance
are not required for these visa holders. Under the application provisions in the Social
Services and Other Legislation Amendment (Promoting Sustainable Welfare) Act
2018 (the 2018 Act), these visa holders do not currently have a NARWP for carer
allowance.
The prospective application of the amendments made by this Schedule to sections
201AA, 201AB, 966 and 967 means persons who become the holder of a permanent
visa prior to commencement will not be affected by these amendments. Persons who
become the holder of a permanent visa on or after 1 January 2019 and before
commencement of this Part will still be subject to the 104-week NARWP for carer
payment and 52-week NARWP for carer allowance. Persons who became the holder
of a permanent visa before 1 January 2019 will still be subject to the rules in place
prior to January 2019 in accordance with the application provisions in the 2018 Act.
This will also continue to be the case for holders of an orphan or remaining relative
visa, irrespective of when that visa was granted.
Temporary visa holders are generally not qualified for carer payment and carer
allowance and therefore are not affected by these amendments regardless of this
application provision. The one exception is for protected special category visa
holders, which is covered by a separate application provision at subitem 17(4).
Subitem 17(3) provides that the amendments made by items 7 to 11 to remove the
qualifying residence period and associated exemptions for parenting payment apply
in relation to claims for parenting payment made on or after the commencement of
these items (proposed to be 1 January 2022).
5
Schedule 1 - Social security amendments
Subitem 17(4) provides that the amendments made by this Part do not apply in
relation to protected SCV holders. This subitem ensures that the exclusion of
protected SCV holders from the changes in the 2018 Act will also to apply in relation
to the amendments in this Part. That is, protected SCV holders will continue to have
the pre-2019 rules of a 104-week NARWP for carer payment and no NARWP for
carer allowance.
Subitem 17(5) provides that the amendments made by Part 1 of Schedule 1 to the
2018 Act in relation to sections 1061ZH, 1061ZI, 1061ZQ and 1061ZR apply
prospectively to first-time holders of an SCV on or after the commencement of this
item, unless the person is a protected SCV holder subject to the exclusion under
subitem 21(6) of the 2018 Act. Subitem 17(5) in effect applies the existing 208-week
NARWP for the Commonwealth seniors health card and low income health care card
to non-protected SCV holders, consistent with current rules for permanent visa
holders..
As New Zealand citizens are issued a new SCV every time they come to Australia,
only those who are issued their first SCV on or after 1 January 2022 will be affected
under subitem 17(5) by the amendments made by the 2018 Act.
The prospective application of these amendments to SCV holders means persons
who become a SCV holder prior to 1 January 2022 are not affected and remain
subject to the 104-week (two-year) NARWP for these concession cards. The
amendments made by items 15 to 16 to paragraphs 1061ZI(b) and 1061ZR(1)(b) of
the Social Security Act above are technical in nature and clarify that SCV holders
(whether subject to a 104-week NARWP or 208-week NARWP) do not have to
restart their NARWP if they subsequently become an Australian resident, which is
how these provisions are currently administered.
Subitem 17(6) provides that the amendments made by Part 1 of Schedule 1 to the
2018 Act in relation to section 1061ZR apply in relation to a person who is granted a
visa covered by paragraph 739A(3)(b) of the Social Security Act for the first time, on
or after the commencement of this item. Subitem 17(6) in effect applies the existing
208-week NARWP for the low income health care card to temporary partner visa
holders, consistent with current rules for permanent visa holders.
The prospective application of these amendments to temporary partner visa holders
means persons who become the holder of such a visa prior to 1 January 2022 are
not affected and continue to be subject to the 104-week (two-year) NARWP for the
low income health care card. Under existing subsection 1061ZR(2), temporary
partner visa holders (whether subject to a 104-week NARWP or 208-week NARWP)
do not have to restart their NARWP if they subsequently become an Australian
resident.
Social Security (International Agreements) Act 1991
Items 18 and 19 amend subsections 10(1) and 10(2) of the International
Agreements Act to remove the references to paragraph 500(1)(d) of the Social
Security Act, which are no longer required following the repeal of paragraph
500(1)(d) by item 8.
6
Schedule 1 - Social security amendments
Item 18 amends subsection 10(1) of the International Agreements Act removing
subparagraph 10(1)(d)(ii) which is no longer required given item 8 removes
paragraph 500(1)(d) of the Social Security Act in its entirety.
Item 19 amends subsection 10(2) by removing and replacing the existing content of
subsection 10(2) with substitute provisions that remove reference to former
subparagraph 500(1)(d)(ii) of the Social Security Act but retain the other relevant
elements of the existing content of subsection 10(2). New subsection 10(2) has the
effect that if a person who is in Australia lodges a claim for parenting payment under
a scheduled international agreement and that person is not a member of a couple
and qualifies for parenting payment under that agreement, then, if the parenting
payment is payable to the person, the payment is deemed to be payable under the
relevant international agreement.
Item 20 provides for the application of the amendments made by items 18 and 19,
which apply prospectively. Item 20 provides that the amendments made by items 18
and 19 to section 10 of the International Agreements Act apply in relation to claims
for parenting payment made by a person on or after the commencement of these
items, in line with subitem 20(3) above in relation to the amendments to paragraph
500(1)(d) of the Social Security Act.
Part 2 - Contingent amendments
This Part effects a contingent amendment which may be required as a consequence
of separate unrelated amendments proposed to be made to the Social Security Act
by the proposed Social Security Legislation Amendment (Streamlined Participation
Requirements and Other Measures) Act 2021. If that proposed Act is enacted
following the passage of this Bill, this Part will only commence if the Social Security
Legislation Amendment (Streamlined Participation Requirements and Other
Measures) Act 2021 commences.
Social Security Act 1991
Item 21 is a technical amendment removing "; and" and substituting "." at the end of
paragraph 500(1)(ca). If item 18 Schedule 1 of the Social Security Legislation
Amendment (Streamlined Participation Requirements and Other Measures) Act 2021
remains as proposed, item 21 would reverse the amendments effected above by
item 7, which reflects the repeal of paragraph 500(1)(d).
7
Schedule 2 - Family assistance amendments
Schedule 2 - Family assistance amendments
Summary
This Schedule extends from, 1 January 2022, the existing NARWP for FTB Part A
payments from 52 weeks (one year) to 208 weeks (four years).
This Schedule also introduces a 208-week (four-year) NARWP for FTB Part B, which
currently has no NARWP.
Under the amendments in this Schedule, individuals who become the holder of a
permanent visa or a temporary partner visa on or after 1 January 2022 will be
required to wait until they have been in Australia for a period of, or periods totalling
208 weeks (four years) before they can be paid FTB Part A and Part B, unless an
exemption applies.
Explanation of the changes
A New Tax System (Family Assistance) Act 1999
Item 1 removes the existing heading to section 61AA and substitutes a new heading:
'Rate of family tax benefit is nil for a day in newly arrived resident's waiting period'.
This makes it clear the section relates to FTB Part A and Part B.
Item 2 amends subsection 61AA(1) by removing the words 'Despite Parts 2 to 3A of
Schedule 1, an individual's Part A rate' and substituting the words 'An individual's
rate'. The effect of the substitution of these words is that subsection 61AA(1) is
amended to include FTB Part B in the operation of section 61AA (rather than limit the
application of section 61AA to FTB Part A as it is currently). This ensures a NARWP
is applied to both FTB Part A and FTB Part B payments.
Items 3, 4 and 5 amend paragraphs 61AA(3)(e), 61AA(4)(d) and subsection
61AA(5) which relate to the length of the NARWP, to extend the existing 52-week
(one-year) NARWP to 208 weeks (four years). In conjunction with subsection
61AA(1) as amended by item 2, this provides that the rate of both FTB Part A and
Part B will be nil for the duration of the NARWP. The amendments made by items 3
to 5 will align the NARWP for these payments with the current 208-week (four-year)
NARWP for most social security payments and concession cards.
Item 3 amends paragraph 61AA(3)(e) by removing the reference to "52" weeks and
substituting "208" weeks.
Item 4 amends paragraph 61AA(4)(d) by removing the reference to "52" weeks and
substituting "208" weeks.
Item 5 amends subsection 61AA(5) by removing the reference to "52" weeks and
substituting "208" weeks.
8
Schedule 2 - Family assistance amendments
Item 6 provides for the prospective application of the amendments effected by this
Schedule. The amendments made by this Schedule will apply to individuals who
become the holder of a visa covered by paragraph 61AA(2)(a) (that is, the holder of
a temporary partner visa) or paragraph 61AA(2)(b) (that is, the holder of a
permanent visa, other than an orphan relative or remaining relative visa), on or after
commencement.
This means an individual who becomes the holder of a relevant visa prior to the
commencement date will continue to be subject to the current rules. For example,
persons who become the holder of a relevant visa between 1 January 2019 and
31 December 2021 will still be subject to the 52-week NARWP for FTB Part A, with
no NARWP for FTB Part B. Persons who became the holder of a relevant visa
before 1 January 2019 will still be subject to the rules in place prior to January 2019
(no NARWP for FTB Parts A and B), in accordance with the application provisions in
the 2018 Act.
Subitem 6(1) provides that the amendments made by this Schedule will apply to
individuals who first become the holder of a visa covered by paragraph 61AA(2)(a) or
(b) of the Family Assistance Act on or after commencement (proposed to be 1
January 2022).
Subitem 6(2) provides that the amendments made by this Schedule do not apply to
those persons who became the holder of a visa covered by paragraph 61AA(2)(a)
(that is, a temporary partner visa) on or after 1 January 2019 and before
commencement of this Part.
This means that temporary partner visa holders granted that visa prior to
commencement and who are therefore subject to a 52-week NARWP will not have a
208-week NARWP applied to them if they are subsequently granted a permanent
visa.
9
Schedule 3 - Paid parental leave amendments
Schedule 3 - Paid parental leave amendments
Summary
This Schedule extends from 1 January 2022 the existing newly arrived resident's
waiting period (NARWP) for paid parental leave payments from 104-weeks (two-
years) to 208 weeks (four years).
Under the amendments in this Schedule, individuals who become the holder of a
permanent visa, or temporary partner visa, on or after 1 January 2022 will be
required to wait until they have been in Australia for a period of, or periods totalling,
208 weeks (four years) before they can be paid PLP or DaPP, unless an exemption
applies.
Explanation of the changes
Paid Parental Leave Act 2010
Items 1 to 6 amend section 31A, which provides the definition and duration of
NARWP for PLP, and section 115CBA, which provides the definition and duration of
NARWP for DaPP, to extend the existing 104-week (two-year) NARWP for these
payments to 208 weeks (four years).
Item 1 amends paragraph 31A(2)(e) by removing the reference to "104" weeks and
substituting "208" weeks.
Item 2 amends paragraph 31A(3)(d) by removing the reference to "104" weeks and
substituting "208" weeks.
Item 3 amends subsection 31A(4) by removing the reference to "104" weeks and
substituting "208" weeks.
Item 4 amends paragraph 115CBA(2)(e) by removing the reference to "104" weeks
and substituting "208" weeks.
Item 5 amends paragraph 115CBA(3)(d) by removing the reference to "104" weeks
and substituting "208" weeks.
Item 6 amends subsection 115CBA(4) by removing the reference to "104" weeks
and substituting "208" weeks.
Item 7 provides for the prospective application of the amendments effected by this
Schedule. The amendments made by this Schedule will apply to individuals who
become the holder of a relevant visa on or after commencement.
This means that an individual who became the holder of a relevant visa prior to the
commencement date will continue to be subject to the current rules. For example,
persons who become the holder of a relevant visa between 1 January 2019 and
31 December 2021 will still be subject to the 104-week NARWP for PLP and DaPP.
Persons who became the holder of a relevant visa before 1 January 2019 will still be
10
Schedule 3 - Paid parental leave amendments
subject to the rules in place prior to January 2019 (no NARWP for PLP and DaPP),
in accordance with the application provisions in the 2018 Act.
Subitem 7(1) provides that the amendments made by this Schedule to section 31A
will apply to individuals who first become the holder of a visa covered by paragraph
31A(1)(a) (that is, a temporary partner visa) or paragraph 31A(1)(b) (that is, a
permanent visa, other than an orphan or remaining relative visa) on or after
commencement (proposed to be 1 January 2022).
Subitem 7(2) provides that the amendments made by this Schedule to section 31A
do not apply to those persons who became the holder of a visa covered by
paragraph 31A(1)(a) (that is, a temporary partner visa) on or after 1 January 2019
and before commencement of this Part. This means that temporary partner visa
holders granted that visa prior to commencement and who are therefore subject to a
104-week NARWP will not have a 208-week NARWP applied to them if they are
subsequently granted a permanent visa.
Subitem 7(3) provides that the amendments made by this Schedule to section
115CBA will apply to individuals who first become the holder of a visa covered by
paragraph 115CBA(1)(a) (that is, a temporary partner visa) or paragraph
115CBA(1)(b) (that is, a permanent visa, other than an orphan or remaining relative
visa) on or after commencement (proposed to be 1 January 2022).
Subitem 7(4) provides that the amendments made by this Schedule to section
115CBA do not apply to those persons who became the holder of a visa covered by
paragraph 115CBA(1)(a) on or after 1 January 2019 and before commencement of
this Part.
This means that temporary partner visa holders granted that visa prior to
commencement and who are therefore subject to a 104-week NARWP will not have
a 208-week NARWP applied to them if they are subsequently granted a permanent
visa.
11
Statement of compatibility with human rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
SOCIAL SERVICES LEGISLATION AMENDMENT
(CONSISTENT WAITING PERIODS FOR NEW MIGRANTS) BILL 2011
This Bill 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.
The following instruments are considered to be impacted by the Schedules:
the International Covenant on Civil and Political Rights (ICCPR);
the International Covenant on Economic, Social and Cultural Rights
(ICESCR);
the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD);
the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW);
the Convention on the Rights of the Child (CRC); and
the Convention on the Rights of Persons with Disabilities (CRPD).
Overview of the Bill
The Bill implements the 2021-22 Budget measure Applying a Consistent Four-Year
Newly Arrived Resident's Waiting Period Across Payments (the measure).
It is important the Australian welfare payment system encourages people to support
themselves where they are able so the system remains sustainable into the future.
This includes migrants settling permanently in this country.
Waiting periods for newly arrived migrants are a long-standing feature of the
Australian welfare payment system and reflect the reasonable expectation new
migrants will make arrangements to support themselves and their families when they
first settle permanently in Australia.
Currently, the length of the Newly Arrived Resident's Waiting Period (NARWP) varies
from one to four years, depending on the payment. The current rules were
introduced from 1 January 2019 as part of the Social Services and Other Legislation
Amendment (Promoting Sustainable Welfare) Act 2018. That Act extended the
existing NARWP for a range of payments from two to four years and introduced a
new NARWP of one or two years for most other payments.
The measure in this Bill builds on the previous structural changes to the NARWP
introduced from 1 January 2019. It seeks to standardise the NARWP by applying a
consistent four-year NARWP across all relevant payments and concession cards,
while maintaining appropriate exemptions and safeguards.
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Statement of compatibility with human rights
This will ensure a consistent approach to access to social security, family assistance
and paid parental leave payments for new migrants and create a simpler system that
is easier for migrants to understand.
The Schedules in this Bill will:
increase the existing NARWP for carer payment and carer allowance from
104 weeks to 208 weeks, (Schedule 1);
remove the 104-week qualifying residency requirement for parenting payment
as this payment already has a 208-week NARWP (Schedule 1);
ensure the existing 208 week NARWP applies to relevant temporary visa
holders for the low income health care card and commonwealth seniors health
card, consistent with the existing rules for permanent visa holders (Schedule
1);
increase the existing NARWP for family tax benefit Part A from 52 weeks to
208 weeks (Schedule 2);
introduce a new NARWP of 208 weeks for family tax benefit Part B (Schedule
2); and
increase the existing NARWP for parental leave pay and dad and partner pay,
from 104 weeks to 208 weeks (Schedule 3).
The effect of these Schedules will be that people granted a permanent visa (or in
some cases, certain temporary visas) on or after commencement will not be able to
receive the affected payments and concession cards until they have served the
NARWP, unless an exemption applies.
The comprehensive range of existing exemptions from the NARWP will continue to
be available, including for individuals and families in particularly vulnerable
circumstances, such as humanitarian entrants and their families and those who have
experienced a change of circumstance and can no longer support themselves as
planned. Those exempt will have immediate access to the relevant payments or
concession cards, provided they are otherwise eligible.
Human rights implications
These Schedules have considered the human rights implications particularly with
reference to:
the right to social security as contained within article 9 under the ICESCR;
the right to maternity leave as contained within article 10(2) of the ICESCR
and article 11(2)(b) of the CEDAW;
the right to an adequate standard of living, including food, water and housing
as contained within article 11 of the ICESCR;
the right to health as contained in article 12(1) of the ICESCR;
the right to equality and non-discrimination as contained in articles 2, 16 and
26 of the ICCPR;
the right to protection against exploitation, violence and abuse as contained in
article 20(2) of the ICCPR, and article 19(1) of the CRC and article 16(1) of
the CRPD;
13
Statement of compatibility with human rights
the right to respect for the family as contained in articles 23 and 17(1) of the
ICCPR;
the rights of parents and children as contained in article 3 of the CRC and
article 24(1) of the ICCPR; and
the right to work and rights at work as contained in articles 6(1), 7 and 8(1)(a)
of the ICESCR.
These Schedules are compatible with these human rights. To the extent that a
human rights obligation is engaged or limited, the impact is reasonable and
proportionate in achieving the objectives of the measure and the welfare payment
system more broadly.
Rights to Social Security and to an adequate standard of living
The right to social security requires a system be established under domestic law,
and public authorities must take responsibility for the effective administration of the
system. The social security scheme must provide a minimum essential level of
benefits to all individuals and families that will enable them to cover essential living
costs.
The CRC requires countries to recognise the right of the child to benefit from social
security. Benefits should take into account the resources and circumstances of the
child and persons having responsibility for the maintenance of the child.
The right to an adequate standard of living, including food, water and housing
provides that everyone is entitled to adequate food, clothing and housing and to the
continuous improvement of living conditions.
The primary purpose of Australia's welfare payment system - encompassing social
security payments, family assistance payments and paid parental leave payments -
is to provide financial support for individuals and families who are unable to fully
support themselves. The welfare payment system is designed to target payments to
those most in need and encourage those who are able to support themselves to do
so.
The Australian welfare payment system is based on the key concepts of residency
and need. For this reason, payments are already subject to residency qualification
requirements designed to direct payments to people who are residing in Australia
and who have an established and ongoing connection to Australia, that is, Australian
citizens, holders of permanent visas and, in some limited circumstances, holders of
certain temporary visas.
Waiting periods for newly arrived migrants already exist for most welfare payments,
as part of the residency requirements that apply to these payments. These waiting
periods reflect the expectation that new permanent residents should be able to
support themselves when they first settle here.
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Statement of compatibility with human rights
The waiting period applies primarily to new migrants settling in Australia under the
skilled and family streams of Australia's migration program - those who are well
placed to support themselves and their families, through existing resources,
employment or support from family already in Australia.
This is reflected in the eligibility criteria for permanent residency through the skilled
and family visa streams of the migration program:
The skilled visa stream provides a pathway for skilled overseas workers with
skills needed in Australia to settle permanently in Australia with the
expectation that they will support themselves and their families through work.
The family visa stream provides a pathway for existing Australian citizens and
permanent residents to bring family members to Australia with the expectation
that they will support those family members.
It is important that Australia's Social Security system continues to provide the best
possible encouragement for people, including new permanent residents, to support
themselves where they are able.
In this context, it is reasonable to increase the existing waiting period for carer and
family payments to four years to align with the waiting period that already applies to
most working age payments and concession cards. This will provide more consistent
rules and enable clearer messaging for new permanent migrants regarding the need
to support themselves and their families when they first settle permanently in
Australia. Ultimately, this will help to ensure the Social Security system remains
sustainable for current and future generations.
The Schedules to this Bill do not affect eligibility for social security pensions or
benefits, rather they affect the rules governing when those eligible for certain
payments can start receiving their entitlements. The amendments focus on
promoting self-support by requiring claimants to meet their own living costs for a
consistent four-year period.
The impact of this measure will only be felt by those future migrants who would have
otherwise sought and received certain payments during the extended waiting period.
The overall financial impact on affected individuals will depend on their
circumstances and the payments they would otherwise have received.
The measure is not retrospective and will apply to people granted a permanent visa
(or in some cases, certain temporary visas) on or after commencement. This timing
is designed to enable individuals and families to make informed decisions prior to
applying for or accepting a visa, including making arrangements to support
themselves and their families during the waiting period.
Migrants already granted permanent residency (or a relevant temporary visa) before
commencement will not be affected. This means that no one who is already serving
a waiting period under the current rules will have their waiting period extended and
no one who is already eligible for or receiving payments will have those entitlements
taken away.
15
Statement of compatibility with human rights
Importantly, there is a comprehensive range of exemptions and other exclusions
from the NARWP which are being maintained under this measure. These
exemptions and exclusions will continue to provide a safety net for those who find
themselves in need. Some exemptions and exclusions apply to all payments, while
others apply to specific payments based on the nature of the payment. All existing
exemptions are being maintained and relevant exemptions will be extended to family
tax benefit Part B.
Permanent humanitarian migrants and their family members will continue to be
exempt from the existing waiting periods for all social security, family assistance and
paid parental leave payments including carer payment, carer allowance, family tax
benefit part A, parental leave pay and dad and partner pay. They will also be exempt
from the new waiting period for family tax benefit part B.
Generally, temporary visa holders do not have access to payments under Australia's
residence-based system. However, certain temporary humanitarian visa holders
(such as temporary protection and safe haven enterprise visa holders) can access
special benefit, the low income health care card, family tax benefit, parental leave
pay and dad and partner pay. These temporary humanitarian visa holders are
exempt from the NARWP for these payments and concession cards and this will
continue to be the case.
These exemptions for permanent and temporary humanitarian visa holders
recognise that refugees and their family members are often particularly vulnerable
and are not usually in a position to make plans for their own support prior to applying
for a humanitarian visa.
There are also exemptions for people whose circumstances change after becoming
a permanent resident and who may no longer be able to support themselves as they
planned.
Migrants who become a lone parent after becoming an Australian resident will
continue to be exempt from the waiting period for the main payments for principal
carers of a dependent child (parenting payment, jobseeker payment and youth
allowance). Those granted one of these payments are also exempt from the waiting
period for family tax benefit Part A and carer allowance and will also be exempt from
the new waiting period for family tax benefit Part B. Those who subsequently have a
new child as a lone parent will also be able to transfer to parental leave pay if they
are otherwise qualified. This provides parents who lose the support - financial and
otherwise - of a partner with access to support for themselves and their children.
In addition, migrants who experience other substantial changes in circumstances will
continue to be exempt from the waiting period for special benefit. A substantial
change in circumstances can include illness, injury, job loss, death of a partner or
sponsor, or family and domestic violence. The exemption recognises that migrants
who have made the decision to settle permanently in Australia and made plans to
support themselves may experience a substantial change of circumstances that
prevents them from realising those plans and ensures they can access alternative
support through special benefit where eligible.
16
Statement of compatibility with human rights
Special benefit is a payment of last resort that provides a safety net for people in
hardship who are not otherwise eligible for other payments. Special benefit provides
a basic level of support, usually equal to jobseeker payment (or youth allowance if
the person is aged under 22 years). Supplementary payments such as rent
assistance, may also be paid in addition to these basic rates. Recipients of special
benefit are also entitled to an automatic health care card or pensioner concession
card, depending on their circumstances. Those who are granted special benefit
under this exemption and have dependent children and/or caring responsibilities for
a person with disability will also be exempt from the waiting period for family tax
benefit (both Part A and Part B) and carer allowance.
There will also continue to be other exemptions in relation to specific payments:
Holders of certain Carer visas who have come to Australia to care for an
Australian resident with no reasonable access to other care options in
Australia will continue to be exempt from the waiting period for carer payment
and carer allowance. This will ensure they, and the Australian resident they
are caring for, can receive appropriate support.
Families with a family tax benefit eligible child will continue to be exempt from
the waiting period for the low income health care card. The exemption means
that they can still receive a concession card where eligible and access
associated health concessions, including discounted items under the
Pharmaceutical Benefits Scheme, while they are serving the waiting period for
family tax benefit.
Finally, New Zealand citizens on a Special Category Visa (SCV) will continue to be
exempt from the waiting period for family tax benefit, parental leave pay and dad and
partner pay. This exemption only applies for certain payments as SCV holders are
generally not eligible for other payments and reflects the residency-based nature of
the Australian social security system. This exemption means that New Zealand
citizens in Australia will continue to have access to the same benefits they currently
do. SCV holders who later move to a permanent visa will continue to be eligible for
this exemption, ensuring they can continue to receive these payments while serving
the waiting period for other payments. These arrangements recognise the unique
visa arrangements in place under the Trans-Tasman Travel arrangements between
Australia and New Zealand.
In addition to the above exemptions, there are also some exclusions from the
measure which apply to certain visa cohorts. These visa cohorts are migrants who
hold an Orphan Relative or Remaining Relative visa. This exclusion means these
visa holders are not subject to the changes contained in this Bill. These cohorts were
also excluded from the previous changes made from January 2019, which means
they are currently and will continue to be covered by the rules in place prior to 2019.
They will continue to have a two-year waiting period for working age payments and
concession cards, rather than the increased four year waiting period, and will have
no waiting period for family payments and carer allowance. This exclusion
recognises that these visa holders are often young people who have refugee-type
experiences and may be disproportionately disadvantaged compared to other skilled
and family visa holders if subject to the measure.
17
Statement of compatibility with human rights
In addition to the above exemptions and exclusions, the waiting period applied to
family tax benefit will not affect a person's entitlement to double orphan pension or
stillborn baby payment. This means migrants who have a stillborn child or are caring
for a child who has lost both its parents will still have access to financial support to
assist them in meeting any costs associated with these circumstances.
Families with at least one parent who is an Australian citizen or permanent resident
who has already served their NARWP will continue to be able to access family tax
benefit part A and B through that parent, even if the other parent is still serving the
waiting period.
These exemptions and exclusions ensure the welfare payment system will continue
to provide a safety net for potentially vulnerable individuals and families, including
those who may be less able to support themselves so they are supported to meet
their basic living costs.
In addition, permanent migrants will still have access to broader Government-funded
services to support their integration and wellbeing, including Medicare, the National
Disability Insurance Scheme, employment services, schools and tertiary education.
Access to child care services will also be available for those who work or study and
have children. There is no waiting period for child care subsidies, consistent with the
expectation new migrants are working to support themselves and their families.
As noted above, the changes in this measure are an extension of the Government's
existing policy on waiting periods. Providing more consistent waiting period rules
across payments and concession cards is designed to strengthen the expectation
that people who decide to settle permanently in Australia will take steps to provide
for their own financial support during their initial settlement period. In this way, the
amendments help to target access to payments to those most in need, in line with
the fundamental principles underpinning Australia's welfare payment system.
To the extent that this measure places any limitation on the rights to social security
and to an adequate standard of living, this limitation is reasonable and proportionate
in the context of achieving the legitimate policy objectives of both the measure and
the welfare payment system more broadly, while ensuring a safety net and broader
Government supports remain available.
Right to maternity leave
The right to maternity leave includes an entitlement for working mothers to paid
leave or social security benefits during a reasonable period before and after
childbirth. It also requires countries, as a measure of prevention of discrimination
against women, to provide maternity leave with pay or with comparable social
benefits without loss of former employment or seniority. The right to maternity leave
is contained in article 10(2) of the ICESCR and article 11(2)(b) of the CEDAW.
The Paid Parental Leave Act 2010 provides for the Paid Parental Leave scheme,
comprised of Parental Leave Pay and Dad and Partner Pay, which complements
employer based schemes and the entitlement to unpaid leave under the National
Employment Standards in the Fair Work Act 2009.
18
Statement of compatibility with human rights
The Government remains committed to assisting parents to balance their work and
family responsibilities through a range of programs and payments. However, this
must be balanced with the responsibility to ensure taxpayer funded payments are
well targeted and sustainable.
The changes detailed in this Bill do not interfere with the existing rights and
protections under the Fair Work Act 2009, including access to 12 months of unpaid
parental leave without loss of employment or seniority within the workplace. Many
employers, including the Australian, state and territory governments also provide
paid parental leave entitlements. The changes do not limit parents' ability to access
employer-provided paid leave following the birth or adoption of a child.
In addition, parents who do return to work or study or other approved activities and
are using approved child care will continue to have access to child care subsidies.
A waiting period for new migrants already exists for paid parental leave payments
and other payments available to new parents, including parenting payment and
family tax benefit part A. These waiting periods reflect the expectation that new
permanent residents should make plans to support themselves and their families.
While it is acknowledged that the upbringing of children requires a sharing of
responsibility between men, women and society as a whole, it is reasonable to
expect that migrants who make the decision to have or adopt a new child during their
initial settlement period should allow for the costs of supporting themselves and their
children during the waiting period.
Increasing the waiting period for parental leave pay and dad and partner pay to align
with the waiting period that already applies to parenting payment and other working
age payments is consistent with the existing principle of self-reliance for new
migrants.
Families where at least one parent is an Australian citizen or permanent resident
who has already served the NARWP will still be able to access family payments,
including family tax benefit. Families that are receiving family tax benefit but are not
eligible for parental leave pay due to the waiting period will be able to access the
newborn upfront payment and newborn supplement through family tax benefit to
assist with the costs of their new child.
This measure does not affect humanitarian migrants and their family members who
will continue to have access to parental leave pay and dad and partner pay without a
waiting period, in recognition of their particularly vulnerable circumstances.
There will also continue to be a number of other key exemptions to the NARWP for
migrants with children who are unable to support themselves as originally planned,
including those who become a lone parent after arrival and no longer have the
support of their partner, and those who experience a substantial change in
circumstances and are in financial hardship.
19
Statement of compatibility with human rights
These exemptions provide migrants in these situations, particularly migrant women,
with access to financial support through payments, such as parenting payment or
special benefit, where eligible. Those who are granted one of these payments under
an exemption will also be exempt from the waiting period for parental leave pay, dad
and partner pay, family tax benefit and carer allowance. This means that migrants
with dependent children or caring responsibilities for a person with disability can also
access additional support where eligible. For example, a woman granted special
benefit because she is in hardship due to a change in circumstances would also be
able to receive family tax benefit for any eligible children and would also be able to
transfer to parental leave pay if she has a new baby and meets all the requirements.
Access to a range of other government funded benefits and services, including,
health care and education has also been retained for newly arrived migrants.
The measure provides for a safety net for the most vulnerable through a
comprehensive range of exemptions and does not affect other non-Government
funded parental leave which will continue to be available.
Right to health
The right to health is the right to the enjoyment of the highest attainable standard of
physical and mental health and is contained in article 12(1) of the ICESCR.
The Bill engages the right to health through the extension of the waiting period for
the low income health care card and Commonwealth seniors health card from two to
four years for certain temporary visa holders (those on a SCV or temporary partner
visa).
Delayed access to a concession card will not affect entitlement to benefits under the
Medicare Benefits Scheme (MBS) and the Pharmaceutical Benefits Scheme (PBS).
MBS benefits include a Medicare card, free treatment for public patients in a public
hospital and rebates on MBS listed health services. PBS benefits include access to
subsidised medicines through a 'co-payment', with further subsidies applying once a
person has reached the relevant PBS safety-net threshold. The affected temporary
visa holders will continue to have access to the MBS and PBS benefits.
A four-year waiting period already applies to the low income health care card and
Commonwealth seniors health card in relation to permanent visa holders. This
reflects the expectation that new migrants will support themselves and their health
costs during their first four years of permanent residency.
It is reasonable to also expect this of New Zealanders who chose to come to
Australia on an SCV and other migrants too who seek to come to or remain in
Australia on a temporary partner visa in order to be with their Australian partner.
The changes in this Bill will apply prospectively to standardise the waiting period for
SCV and temporary partner visa holders so they have a waiting period consistent
with what they would serve as a permanent visa holder. Importantly, SCV holders
and temporary partner visa holders who go on to become permanent visa holders
will not have to re-start or re-serve the waiting period for these concession cards.
20
Statement of compatibility with human rights
There is a range of exemptions that enable those who have limited means and may
face difficultly meeting health costs without concessional assistance to access a
concession card.
New Zealand citizens on a SCV with children will continue to have access to family
tax benefit and those on low incomes will also retain access to an automatic health
care card as part of their family tax benefit entitlement.
Temporary partner visas are granted to people who are partnered to an Australian
citizen or permanent resident. This means they have the potential for two incomes to
contribute to meeting their living and health costs. Their Australian citizen or
permanent resident partner will also continue to have access to family tax benefit if
the couple have children, including the automatic health care card where eligible.
These arrangements will allow low-income families to access the associated
concessional health benefits.
Temporary partner visa holders who experience a substantial change of
circumstances (for example, they experience family and domestic violence or their
partner dies or loses their job) can be exempt from the waiting period for special
benefit if they find themselves in hardship and will also have access to a concession
card as part of their payment.
Right to equality and non-discrimination
This measure engages the rights of equality and non-discrimination contained in
articles 2, 16 and 26 of the ICCPR. Equality affirms that all human beings are born
free and equal. Equality presupposes that all individuals have the same rights and
deserve the same level of respect. All people have the right to be treated equally.
Non-discrimination is an integral part of the principle of equality. It ensures that no
one is denied their rights because of factors such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property or birth. In
addition to those grounds, discrimination on certain other grounds may also be
prohibited. These grounds include age, nationality, marital status, disability, place of
residence within a country and sexual orientation.
These Schedules engage the right to equality and non-discrimination as they will
result in direct or indirect differential treatment on the basis of national origin and visa
class.
Under existing rules, humanitarian migrants and their families are exempt from the
waiting periods for all social security payments and family payments, and will
continue to be exempt under the measure. They will also be exempt from the new
waiting periods for family tax benefit Part B. These exemptions acknowledge that
welfare payments are key to the successful long term settlement of humanitarian
entrants as they are particularly vulnerable, generally have no other means of
support and are not usually in a position to make plans for their own support prior to
applying for a visa. The differential treatment conferred to humanitarian migrants is
considered legitimate for the purpose of addressing the interests of a particularly
disadvantaged community group.
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Statement of compatibility with human rights
Orphan and Remaining Relative visa holders are excluded from changes in this Bill
in recognition that these visa holders are often young people who have experienced
refugee-type experiences or other trauma. The differential treatment for these visa
holders is considered legitimate on the basis that this cohort may be
disproportionately disadvantaged compared to other skilled and family visa holders if
subject to the changes.
Under the Trans-Tasman Travel Arrangement (TTTA) introduced in 1973, Australian
and New Zealand citizens are able to enter each other's country to visit, live and
work indefinitely, without the need to apply for prior authority. New Zealand is the
only country in the world that has such an arrangement with Australia.
In recognition of the unique arrangements between Australia and New Zealand
under the long-standing TTTA, New Zealand citizens in Australia on a SCV were
exempt from the waiting period for family payments as part of the 2019 changes.
This exemption will remain in place. This means that New Zealanders on an SCV will
retain access to the same payments they can currently access. To the extent that
differentiation of treatment on the basis of national origin is applied to this cohort, it is
considered reasonable and proportionate and reaffirms the positive and important
role that freedom of Trans-Tasman movement plays in strengthening the bilateral
relationship between Australia and New Zealand.
Protection against exploitation, violence and abuse
Numerous provisions in human rights treaties require countries to take measures to
protect persons from exploitation, violence and abuse. The right to protection against
exploitation, violence and abuse is contained in article 20(2) of the ICCPR, and
article 19(1) of the CRC and article 16(1) of the CRPD.
The UN Committee on the Elimination of all Forms of Discrimination against Women
has stated that gender-based violence, including domestic violence is a form of
discrimination that seriously inhibits women's ability to enjoy rights and freedoms on
a basis of equality with men.
This measure maintains all existing exemptions and safeguards, including the
exemption from waiting period for special benefit for those migrants who experience
a substantial change in circumstances and are in financial hardship. This exemption
provides a critical safety net in circumstances such as family and domestic violence.
The broader protections from exploitation, violence and abuse provided through the
justice and industrial relations systems as well as through anti-discrimination
legislation will also continue to apply.
Rights to respect for the family and of parents and children
The right to respect for the family and freedom from interference with the family is
contained in articles 23 and 17(1) of the ICCPR. In addition to the rights enjoyed by
all persons under human rights treaties, parents and children enjoy special rights,
particular to their status. The rights are contained in article 3 of the CRC and article
24(1) of the ICCPR.
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Statement of compatibility with human rights
Many permanent skilled and family visa types also allow applicants to include
dependent children in their visa applications. It is reasonable to expect that
permanent migrants choosing to bring their family with them to Australia or to have
children after arriving should be in a position to support their family as well as
themselves.
The measure reinforces this expectation by building on the existing waiting period
required before a migrant can access family payments and aligning them with the
waiting period for other payments.
Existing exemptions and safeguards will remain available to enable families to
access financial support should they experience a substantial change in
circumstances resulting in financial hardship.
Families where at least one parent is an Australian citizen or permanent resident
who has served the waiting period will continue to be able to access family tax
benefit, even if the other parent is still serving the waiting period.
In addition, the waiting period applied for family tax benefit will not affect a person's
entitlement to double orphan pension or stillborn baby payment. This provides
migrants who have a stillborn child or are caring for a child who has lost both its
parents with access to financial support so they can meet any costs associated with
these circumstances.
The CRC recognises the principle that both parents have common responsibilities for
the upbringing and development of the child. It also provides that there should be
appropriate assistance to parents and legal guardians in the performance of their
child-rearing responsibilities, in particular to ensure that children of working parents
have the right to benefit from child-care services and facilities for which they are
eligible.
Access to child care subsidies will be retained for newly arrived migrants to help
families to participate in work, study, training or other recognised activities. In
addition there is a range of government funded payments and services which are
made available to support participation, social cohesion, integration and wellbeing,
such as health care and education, which contribute to safeguarding these rights.
The rights relating to refugee children (and their families) are addressed through the
continuation of existing exemptions from waiting periods for all social security
payments.
Right to work and rights at work
The right to work includes the right of everyone to the opportunity to gain his or her
living by work which he or she freely chooses or accepts. Rights in work include the
enjoyment of just and favourable conditions of work and to form and join trade
unions. The right to work and rights in work is contained in articles 6(1), 7 and 8(1)(a)
of the ICESCR.
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Statement of compatibility with human rights
Permanent visa holders under the skilled and family migration program, including
those subject to a waiting period for welfare payments, will continue to have the right
to work in Australia and will continue to be covered by the workplace protections
provided by federal legislation, such as the Fair Work Act 2009, as well as state and
territory based legislation.
A four-year waiting period already applies to most working age payments, including
jobseeker payment. No additional changes are being made to the waiting period for
working age payments or other supports for people who are unemployed.
Migrants continue to be able to access the child care subsidies to help families to
participate in work, study, training or other recognised activities.
These arrangements mean that migrants will continue to be eligible for assistance to
find and maintain work, as well as reasonable conditions and protections in the
workplace.
Conclusion
It is important that Australia's welfare payment system provides the best possible
encouragement for people to support themselves where they are able. It is
reasonable to expect that people choosing to become permanent residents of
Australia should support themselves and their families through their existing
resources, through work or through support from family members already in
Australia.
The Schedules in this Bill support the Government's commitment to a sustainable,
fair and needs-based welfare payment system. Introducing these changes will
reinforce the existing expectations of self-reliance for new permanent migrants by
standardising the waiting period rules and making them easier for migrants to
understand. The changes are the least restrictive approach to achieving these
reasonable objectives.
Importantly, a number of exemptions and protections will remain in place to enable
potentially vulnerable groups to be appropriately supported through the welfare
payment system.
The Schedules in this Bill are compatible with human rights. To the extent that a
human rights obligation is engaged or limited, the impact is for a legitimate objective,
and is reasonable, necessary and proportionate as outlined above.
Circulated by the authority of the Minister for Families and Social Services and
Minister for Women's Safety, the Hon Senator Anne Ruston]
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