Residence requirements

7.29 As discussed in Chapter 5, an underlying principle of the social security system is residence—that in order to be entitled to receive social security payments, a threshold of Australian residence is required. Residence requirements for social security payments are generally divided into two stages. First, a person must be an ‘Australian resident’ and have satisfied any ‘qualifying residence requirement’; and, secondly, a person must have satisfied any necessary waiting period.

7.30 In this section, the ALRC identifies a number of problematic issues for people experiencing family violence and makes a number of recommendations to address them.

Australian resident

7.31 To qualify for a social security payment or entitlement, a person must be either:

• an Australian citizen;
• a holder of a permanent visa; or
• a protected Special Category Visa holder.^[33]

7.32 Residential requirements are different for Special Benefit, Crisis Payment and family payments. 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.^[34] For family payments, there are no residential requirements.

7.33 The Minister for 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.^[35] 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.^[36]

7.34 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. This raises particular concerns for non-protected Special Category Visa holders.

Protected Special Category Visa holders

7.35 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.

7.36 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 Australian resident for social security purposes, unless they belong to a ‘protected’ group.

7.37 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.^[37]

7.38 The WRC Inc (Qld) provided an example where a client was not entitled to Special Benefit as she was a ‘non-protected Special Category Visa’ holder:

After leaving a violent relationship and subsequently losing her job, she was faced with the choice of returning to New Zealand or living in her car. She chose the latter, in order to be able to continue to see her children, who had remained in the care of the perpetrator.^[38]

7.39 The WRC (NSW) submitted a similar example by way of the following case study:^[39]

7.40 To address such concerns, the AASW (Qld) and WRC Inc (Qld) recommended a special category of visa be established for those who are victims of family violence and ought not to be expected to leave Australia. This visa would enable entitlement to Special Benefit—for example, for a victim who was parenting children and needed to remain in Australia in order for the children to continue to have access to both parents.^[40]

7.41 The NWRN has previously noted inequities in the inaccessibility of social security payments for non-protected Special Category Visa holders.^[41] New Zealanders, unlike other migrants, have indefinite work rights, and the right to remain here indefinitely, contributing to compulsory superannuation and tax while working. Even if their circumstances change, such that they face destitution, New Zealanders are not eligible for Special Benefit, unlike other newly arrived residents. The NWRN argued that it is appropriate that they be distinguished from other migrants and ought to have access to the same form of social security as Australian residents, recommending that the definition of Australian Resident be amended to include Special Category Visa holders.

7.42 In noting this situation, the Administrative Appeals Tribunal (AAT) in the decision of Filipovski and Secretary, Department of Family and Community Services,^[42] was of the view that it was harsh and hard to understand why New Zealanders are precluded from obtaining Special Benefit even if there has been a ‘substantial change of circumstances beyond their control’ and social security law provides relief to other newly arrived residents in those same circumstances.

7.43 Any amendment for this cohort of people will likely affect those not affected by family violence but also others who have experienced a ‘substantial change in circumstances’. While changes to entitlements would be beyond the ALRC’s Terms of Reference, given the particular difficulties and inequities they face, the ALRC recommends consideration be given to extending access to Special Benefit for non-protected Special Category Visa holders where they have experienced a ‘substantial change in circumstances beyond their control’. This may mean amending the definition of ‘Australian resident’ in s 7(2) of the Social Security Act to include non-protected Special Category Visa holders or amending the definition of a ‘protected Special Category Visa holder’ in s 7(2A).

7.44 A further alternative suggested by the NWRN is that provision for income support to people experiencing family violence be included in Australia’s international social security agreements.^[43] Australia has formal social security agreements with particular countries to ensure social security protection when people move between the agreement countries. While this would be a considerable undertaking, and would only cover those people from countries with which Australia has an agreement, it would ‘expand the availability of social security to people experiencing family violence who are not residentially qualified and offer additional protection to Australian citizens and residents who experience family violence while abroad in agreement countries’.^[44]

7.45 The ALRC notes that from 26 February 2011, New Zealand citizens who hold a Special Category Visa and who have lived continuously in Australia for at least 10 years will be able to access a once-only payment of Newstart Allowance, Youth Allowance or Sickness Allowance for up to six months. However, this does not address the concerns raised.

Temporary visa holders

7.46 Throughout the Inquiry, stakeholders expressed considerable concern about the limited ability for temporary visa holders to access income support.^[45] These concerns were captured in a case study provided by Women Everywhere Advocating Violence Elimination (WEAVE):^[46]

7.47 In Chapter 20, the ALRC makes a recommendation to create a new temporary visa for secondary visa holders who are victims of family violence (Recommendation 20–3). 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.

7.48 To ensure that persons holding this new temporary visa have access to independent financial assistance through income support, the ALRC recommends that these new temporary visas be included as a ‘specified subclass of visa’ to enable them to be recognised as an ‘Australian resident’ for the purposes of Special Benefit and, therefore, Crisis Payment. This was supported by stakeholders.^[47] The ALRC considers that together these recommendations will address the concerns raised by the case study above.

Qualifying residence requirements

7.49 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:^[48]

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

7.50 A person may, however, have a ‘qualifying residence exemption’. Generally, refugees and former refugees and their family members have a qualifying residence exemption.^[49] Holders of a visa of a subclass determined by the Minister for FaHCSIA are also exempt for certain payments.^[50] However, exemptions do not extend to Age Pension or Disability Support Pension.

7.51 The purpose of the lengthy 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.^[51]

7.52 However, a migrant 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 a person with disability is particularly vulnerable due to dependency on a carer—who may be the person using family violence—and difficulties in accessing services and support.

7.53 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.^[52]

7.54 The 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, for example equipment such as Post-School Options Programs, Home and Community Care and the Program of Appliances for Disabled Peopled.^[53] The MDAA also noted that the qualifying residence period for Disability Support Pension becomes more complicated if the person is in Australia as a secondary visa holder because the person is dependent on the ‘abusive partner for residence, communication, housing and financial support’.^[54]

7.55 Both the Australian Domestic and Family Violence Clearinghouse (ADFVC) and the MDAA supported making the qualifying residence period for Disability Support Pension and Age Pension comparable to other Centrelink social security payments.^[55]

7.56 The ALRC is concerned that such an amendment may, however, raise concerns of a two-tier system in that a similar provision does not 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. Similar concerns would arise if any exemptions were to be made available for victims of family violence as, currently, exemptions are provided on the basis of visa class. There is no determination power in the Social Security Act to enable a subclass of visa to be exempted from the qualifying residence period for Age Pension or Disability Support Pension. The ALRC notes that this is an area of concern and considers it appropriate that such residence periods be reviewed.

Newly Arrived Resident’s Waiting Period

7.57 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).^[56] 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.

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

Exemptions

7.59 In addition to the ‘qualifying residence exemption’, 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 have at least two years of residence in Australia.^[57]

7.60 Victims of family violence who qualify for a social security payment or entitlement face a barrier in relation to the waiting period—a payability criterion. 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.

7.61 In the study, Seeking Security, the 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.^[58]

7.62 Some stakeholders suggested that the two year waiting period may be too long for victims of family violence^[59] and recommended that it should either be abolished,^[60] or minimised,^[61] in circumstances of family violence.

7.63 To create a waiver of the waiting period in circumstances of family violence would create concerns of a two-tier system and incentivisation and is therefore wider than the ALRC’s Terms of Reference. In addition, any recommendation that victims of family violence be waived or exempted from the waiting period would alter the foundation of the residential system for social security—shifting residence requirements from a basis of visa class to one of individual circumstances. Such an amendment would also be systemic across the whole social security system and may lead to other unintended consequences. However, left unchanged, the ALRC recognises that this will leave some victims of family violence unable to access social security payments.

7.64 The ALRC therefore considers that access to Special Benefit is the best avenue to pursue as it is the only payment which is not dependent on visa class for residence requirements and is designed as a safety net payment. Meeting the residential requirements for Special Benefit will also enable a person to access Crisis Payment.

Special Benefit—substantial change in circumstances

7.65 Exemption from the waiting period for Special Benefit is slightly different than for other payments. 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;^[62]
• holds, or is the former holder of, a visa of a subclass exempted from the waiting period;^[63] 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.

7.66 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.

7.67 However, as of 1 January 2012, holders of Provisional Partner visas,^[64] 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.^[65]

7.68 As discussed above, the ALRC makes a recommendation in Chapter 20 to create a new temporary visa for victims of family violence.^[66] To ensure that persons holding this new temporary visa have access to independent financial assistance, the ALRC considers it appropriate to include these new temporary visas as a ‘specified subclass of visa’ that are exempt from the waiting period for Special Benefit.

7.69 The ALRC recognises that victims of family violence who hold other classes of visa may not be able to meet the Australian resident requirement and are not declared under a ‘specified subclass of visa’.

7.70 However, the waiting period also does not apply if the person has suffered a ‘substantial change in circumstances beyond his or her control’.^[67] 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 or a medical report.^[68]

7.71 The Guide to Social Security Law notes that many changes in circumstances apply equally to non-sponsored and sponsored residents.^[69] 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 recommendation to amend the Guide to Social Security Law to that effect. This was supported by stakeholders.^[70]

7.72 However, care must be taken to ensure that, when 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’.^[71] 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’.

7.73 Information about exemptions from the waiting period for Special Benefit on the basis of ‘substantial change in circumstances’ should be provided to customers in accordance with Recommendations 4–2 and 20–6 to ensure that victims of family violence are aware of the exemption.