Residence

Australian resident

7.31 A general principle of Australia’s social security system is that, to qualify for a social security payment or entitlement, a person must be an Australian resident.^[26] In other words, a person must reside in Australia and be either:

• an Australian citizen;
• a holder of a permanent visa; or
• a protected Special Category visa holder.^[27]

7.32 Exceptions to this principle are limited to Special Benefit, Crisis Payment and family payments.

7.33 To qualify for Special Benefit or Crisis Payment, a person must be either an Australian resident or the holder of a specified subclass of visa.^[28] For family payments, there are no residential requirements.

7.34 The Minister of FaHCSIA has power to make determinations to allow the holders of particular temporary visas to meet the residence requirements for Special Benefit and, consequently, Crisis Payment. Currently, determinations are in force for ten types of temporary visa.^[29] However, this power cannot be used on an individual or case-by-case basis. Exceptions can only be made for an entire class, or subclass, of visa by ministerial determination.^[30]

7.35 Accordingly, a person who is neither an Australian resident nor the holder of a specified subclass of visa, does not qualify for Special Benefit or Crisis Payment.

Protected Special Category visa holders

7.36 New Zealand citizens may enter Australia as holders of Special Category visas, or as holders of permanent visas under the migration program. A Special Category visa is granted to a New Zealand citizen who does not hold a visa on arrival in Australia, and who presents his or her New Zealand passport.

7.37 Before 26 February 2001, holders of Special Category visas could meet the definition of an Australian resident under social security law if they were residing in Australia, and likely to remain permanently. However, from that date, holders of Special Category visas no longer satisfy the definition of an Australian resident for social security purposes, unless they belong to a ‘protected’ group.

7.38 The protected groups include Special Category visa holders who:

• were in Australia on 26 February 2001;
• had been in Australia for at least 12 months in the two years immediately before 26 February 2001 and returned to Australia after that day;
• were residing in Australia on 26 February 2001 but were temporarily absent on that day; or
• commenced (or recommenced) residing in Australia within three months of that day.^[31]

Qualifying Australian residence

7.39 In addition to the legislative requirement to be an Australian resident at the time of making a claim, some social security payments—generally, the ‘pension’ type payments that are intended as long-term support—require that a person has been an Australian resident for a certain period of time.^[32] This is called a ‘qualifying residence requirement’. The following qualifying residence requirements apply:

• Age Pension (10 years);
• Disability Support Pension (10 years);
• Widow Allowance (two years); and
• Parenting Payment (two years).

7.40 The effect of a qualifying residence period is that a person must have lived in Australia as a permanent resident for a specified period of time before they qualify for the social security payment. A person may, however, have a ‘qualifying residence exemption’.

7.41 The categories of people who have a qualifying residence exemption vary from payment to payment. Generally, refugees and former refugees and their family members have a qualifying residence exemption.^[33] Holders of a visa of a subclass determined by the Minister of FaHCSIA are also exempt.^[34]

Newly Arrived Resident’s Waiting Period

7.42 Although a person may meet the residential criteria to qualify for a payment, the payment may not be payable if the person is subject to a waiting period—called a ‘Newly Arrived Resident’s Waiting Period’ (the waiting period). The waiting period applies to persons who have not been Australian residents but have resided in Australia for a period of, or periods totalling, 104 weeks (two years).^[35] Generally, the ‘allowance’ type payments, which are intended as shorter-term income support, have a waiting period, including:

• Carer Payment;
• Youth Allowance;
• Austudy Payment;
• Newstart Allowance;
• Sickness Allowance;
• Special Benefit;
• Partner Allowance;
• Mobility Allowance;
• Pensioner Education Supplement;
• Commonwealth Seniors Health Care Card; and
• Health Care Card.

7.43 Crisis Payment does not have a Newly Arrived Resident’s Waiting Period.

Exemptions

7.44 A person may be exempt from the waiting period if they have a ‘qualifying residence exemption’, discussed above. In addition, certain people are exempt from the waiting period, including:

• current and former holders, and their family members, of a permanent refugee visa or a specified subclass of special humanitarian visa;
• current and former holders of a visa Subclass 832 and 833—that is, young people who have lived in Australia in their formative years and are granted permanent residence when they reach 18 years of age;
• former holders of spouse and interdependency provisional visas (Subclasses 309, 310, 820 and 826), once they hold a permanent visa;
• a person whose migration is approved on the basis that he or she will act as a carer for a disabled relative; and
• Australian citizens and their immediate family members, and family members of a permanent resident who has at least two years of residence in Australia.^[36]

7.45 A ‘family member’ includes the person’s partner or their dependent child or another person who, in the opinion of the Secretary of FaHCSIA, should be treated for the purposes of this definition as a family member.^[37]

Special Benefit

7.46 Exemption from the Newly Arrived Resident’s Waiting Period is slightly different for Special Benefit. A person is exempt from the waiting period for Special Benefit if he or she:

• has suffered a substantial change in circumstances beyond their control;^[38]
• holds, or is the former holder of, a visa of a subclass exempted from the waiting period;^[39] or
• is an Australian citizen or a member of their immediate family, or a family member of a permanent resident who has at least two years of residence in Australia.

7.47 A holder of a temporary spouse visa, who is still in a relationship with his or her spouse, is generally automatically exempted from the waiting period as a family member of an Australian citizen or long term resident and therefore could receive Special Benefit immediately upon arrival in Australia.

7.48 However, as of 1 January 2012, holders of Provisional Partner visas,^[40] who would have been exempt from the waiting period as a family member, will be required to serve the waiting period before they can be eligible for income support unless they experience a substantial change in circumstances. As part of this measure, an Assurance of Support will no longer be required for some Provisional Partner Visa applicants.^[41]

Substantial change in circumstances

7.49 The Newly Arrived Resident’s Waiting Period also does not apply to Special Benefit if the person has suffered a ‘substantial change in circumstances beyond his or her control’.^[42] A sponsored resident is considered to have a substantial change in circumstances if he or she had arrived in Australia and was:

• a victim of domestic violence; and
• the abuse is substantiated by documentary evidence from police, an apprehended violence order (AVO) or a medical report.^[43]

7.50 The Guide to Social Security Law notes that many changes in circumstances apply equally to non-sponsored and sponsored residents.^[44]

Submissions and consultations

7.51 In the Social Security Issues Paper, the ALRC asked what reforms, if any, should be considered in relation to qualifying residence requirements and the Newly Arrived Resident’s Waiting Period, for victims of family violence.^[45]

7.52 In response, stakeholders noted concerns with the residence requirements for victims of family violence in relation to the definition of ‘Australian resident’, qualifying residence requirements, and the waiting period. Concerns were also raised in Family Violence and Commonwealth Laws—Immigration Law (the Immigration Law Issues Paper)^[46] in relation to the limited ability for temporary visa holders to access social security payments and entitlements.^[47]

7.53 For example, Domestic Violence Victoria and others in a joint submission submitted that, in their experience:

Access to health, counselling, family violence and sexual assault services is variable and changeable for women on temporary visas. Each visa category carries different entitlements and these entitlements change regularly. … [T]he lack of housing options, ineligibility for public and community housing and lack of income support all limit the capacity of family violence services to support women without residency rights.^[48]

7.54 These concerns were captured in a case study provided in the submission from Women Everywhere Advocating Violence Elimination (WEAVE):^[49]

Definition of ‘Australian resident’

7.55 In their study—Seeking Security—the Australian Domestic and Family Violence Clearinghouse (ADFVC) found that many migrant women had experienced significant financial hardship while waiting to qualify for residence periods:

In particular, women who were unable to access the Special Benefit and unable to work due to visa restrictions were placed in extremely vulnerable situations, entirely reliant on family (if they had any in Australia) or on charities and services. A lack of income leaves many of these women unable to access accommodation provided by refuges.^[50]

7.56 A case study provided by the Welfare Rights Centre NSW explained the difficulties experienced by some New Zealand citizens in Australia who experienced family violence:^[51]

7.57 To address such concerns, the Welfare Rights Centre Inc Queensland supported the removal of the distinction between permanent residents, citizens and Special Category (non-protected) visas in situations where there is family violence.^[52] However, the Centre cautioned that any exemption or waiver of residence requirements could lead to abuse of the system and claims of family violence being falsified or manipulated in order to obtain social security payments and entitlements.^[53]

Qualifying residence requirements

7.58 Some stakeholders indicated that the 10 year qualifying residence requirement for Disability Support Pension is too long, particularly because it is known that people with disability experience higher rates of family violence.^[54]

7.59 The Multicultural Disability Advocacy Association (MDAA) referred to its report—Violence Through Our Eyes—which found that the effect of denying the Disability Support Pension resulted in the inability to access other services, such as equipment such as Post-School Options Programs, Home and Community Care and the Program of Appliances for Disabled Peopled.^[55]

7.60 The MDAA also noted that the qualifying residence period for Disability Support Pension becomes more complicated if the person is in Australia on a dependant visa because the person is dependent on the ‘abusive partner for residence, communication, housing and financial support’.^[56]

7.61 Both the ADFVC and the MDAA supported streamlining, and making the qualifying residence period for Disability Support Pension and Age Pension comparable to other Centrelink social security payments.^[57]

Newly Arrived Resident’s Waiting Period

7.62 Some stakeholders suggested that the two year waiting period may be too long for victims of family violence^[58] and recommended that it should either be abolished,^[59] or minimised,^[60] in circumstances of family violence.

ALRC’s views

7.63 As discussed previously, a two stage process must generally be satisfied for residence requirements. First, a person must be an ‘Australian resident’ and have satisfied any ‘qualifying residence requirement’ and secondly, a person must have satisfied the waiting period (where applicable).

7.64 Concerns were raised by stakeholders in relation to both the qualification requirement—that is, to be an Australian citizen, permanent resident or a protected Special Category visa holder and satisfy any qualifying residence requirement—and payability requirements—that is, to serve the waiting period.

Australian resident requirements

7.65 To maintain the integrity of the social security system, residence requirements are necessary before a person qualifies for a social security payment or entitlement. In addition, the ALRC recognises that the Minister of FaHCSIA may make a determination that certain Special Category visa holders are considered to be an ‘Australian resident’ for the purposes of social security law.^[61] This power to make a determination exists in relation to Special Category visas—that is, New Zealand citizens who arrived after 26 February 2011. This may be seen as an example of the theme of ‘fairness’ discussed in Chapter 2—to ensure that Australia’s resources are fairly distributed to those in genuine need. For Special Benefit, and consequently Crisis Payment, the Minister of FaHCSIA has the power to make a determination that persons on a ‘specified subclass of visa’ are an ‘Australian resident’ for the purposes of those payments.

7.66 However, some victims of family violence, who have lived in Australia for a length of time, may be unable to access any social security support—thus jeopardising his or her safety. This is particularly so for Special Benefit, which is intended as a safety net payment, and Crisis Payment, intended to provide assistance in circumstances of crisis such as family violence.

7.67 In Chapter 20, the ALRC makes a proposal to create a new temporary visa for holders of Prospective Marriage (Subclass 300) visas who are victims of family violence.^[62] The purpose of this temporary visa is to enable such visa holders to make arrangements to leave Australia, or to apply for a different class of visa.

7.68 To ensure that persons holding this new temporary visa have access to independent financial assistance through income support, the ALRC considers that it may be appropriate to include these new temporary visas as a ‘specified subclass of visa’ to enable them to access either Special Benefit or Crisis Payment.

7.69 However, victims of family violence who hold other types of visas may not be able to meet the ‘Australian resident’ requirement and will not fall under a ‘specified subclass of visa’. While there is a genuine need to ensure that social security payments are limited by certain residence requirements, there is also a genuine need to ensure that victims of family violence are able to access independent financial assistance to enable them to leave a violent relationship. The ALRC therefore seeks stakeholder comment as to whether other visa holders should be included as a specified subclass of visa for Special Benefit, or alternatively, what other mechanisms might be used to ensure that the safety of other visa holders who are experiencing family violence is protected.

Qualifying residence requirements

7.70 The purpose of the long residence requirements for Age and Disability Support Pensions reflects the theme of ‘fairness’ discussed in Chapter 2. That is, to ensure that these payments for the long-term contingencies of life are only granted to people who have a genuine, long-term connection with Australia and that this is considered necessary to protect Australian Government funds, which come from general revenue’.^[63]

7.71 However, migrants with disability experiencing family violence may be unable to access Disability Support Pension because of the 10 year qualifying residence requirement and, as a result, he or she may have no option but to remain in the violent relationship. The ALRC notes that people with disability are particularly vulnerable due to dependency on carers—who may be the person using family violence—and difficulties in accessing services and support.

7.72 One solution proposed by stakeholders would be to reduce the qualifying residence period for Disability Support Pension to two years in circumstances of family violence. This may, however, raise concerns of a two-tier system in that a similar provision does not also exist for other vulnerable migrants with disability. It may also provide an incentive to make a claim of family violence—possibly falsely—in order to gain early access to Disability Support Pension.

7.73 It may be that certain subclasses of visas should be exempt from the qualifying residence period for Disability Support Pension. The ALRC seeks stakeholder comment as to the best way not only to preserve the integrity of the social security system, but also to ensure that victims of family violence with disability are able to access Disability Support Pension to enable them to leave a violent relationship.

Newly Arrived Resident’s Waiting Period—Special Benefit

7.74 Victims of family violence may be residentially qualified, but a social security payment is not payable due to the Newly Arrived Resident’s Waiting Period. This may result in victims of family violence having to remain in violent relationships because they are unable to access independent financial assistance through income support to enable them to leave.

7.75 As discussed above, the ALRC makes a proposal in Chapter 20 to create a new temporary visa for holders of Prospective Marriage (Subclass 300) visas who are victims of family violence. To ensure that persons holding this new temporary visa have access to independent financial assistance, the ALRC considers that it may be appropriate to include these new temporary visas as a ‘specified subclass of visa’ thatare exempt from the waiting period.

7.76 Victims of family violence who hold other types of visa may not be able to meet the Australian resident requirement and will not fall under a ‘specified subclass of visa’. Family violence is not expressly referred to in the Guide to Social Security Law as a ‘substantial change in circumstances’ for non-sponsored residents. The ALRC considers that victims of family violence (whether sponsored or non-sponsored) should therefore be able to access Special Benefit due to a substantial change in circumstances and makes a proposal to amend the Guide to Social Security Law to that effect.

7.77 However, care must be taken to ensure that, where family violence is disclosed to access social security payments, ‘the disclosure of violence and loss of relationship does not also result in loss of residency’.^[64] This may occur, for example, where a person who is on a visa within a specified class for Special Benefit, claims family violence as a ‘substantial change in circumstances’.

7.78 Information about exemptions from the waiting period for Special Benefit on the basis of ‘substantial change in circumstances’ should be included in Proposals 4–8 and 20–5 to ensure that victims of family violence are aware of the exemption.

Newly Arrived Resident’s Waiting Period—other payments

7.79 Those who are qualified for other social security payments and entitlements still face a barrier in relation to the waiting period. Special Benefit would not provide relief in such circumstances as it is only available to people who are not eligible for any other pension or allowance.

7.80 To create a waiver of the waiting period in circumstances of family violence would create concerns of a two-tier system and incentivisation. However, it may be necessary to create a waiver category for persons experiencing family violence to ensure that they are able to access financial assistance to leave a violent relationship and do not have to remain in a violent relationship for the length of the waiting period. The ALRC seeks stakeholder comment as to the best way to ensure that this balance is achieved.