Explanatory Memorandum
(Circulated by the authority of the Minister for Families, Community Services and Indigenous Affairs, the Hon Mal Brough MP)Schedule 2 - Amendments relating to assurance of support
Summary
This measure is aimed at improving the operation of the AoS scheme and simplifying arrangements for people seeking to provide an AoS.
Background
The Government announced, as part of its 2007-08 Budget, a number of measures designed to simplify application requirements for potential assurers and improve the efficiency of the AoS scheme.
The AoS scheme allows entry to Australia by migrants who are more likely than others to claim social security payment, while protecting social security outlays. These migrants are permitted to migrate to Australia on condition that the person providing the assurance (the assurer) undertakes:
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- financial responsibility for the new arrival's (the assuree's) support for the duration of the AoS period; and
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- responsibility for the repayment of any recoverable social security payments which may be paid to the assuree during the AoS period.
Responsibility for the AoS scheme was transferred from the Department of Immigration and Citizenship (DIAC) to the Department of Families, Community Services and Indigenous Affairs (FaCSIA) on 1 July 2004. Chapter 2C of the Social Security Act now provides for the implementation and administration of the AoS scheme under the social security law, although DIAC continues to determine when new migrants are to be subject to an AoS.
Explanation of the changes
Amendments to the Social Security Act
Item 1 inserts paragraph 729(2)(h), which sets out an additional condition that must be satisfied for the Secretary to exercise his or her discretion to determine that a person is entitled to a special benefit for a period. Paragraph (h) provides the requirement that an AoS does not apply to the person at any time during that period.
Item 2 inserts subsection 729(2C), which (for the purposes of paragraph 729(2)(h)) disqualifies a person from special benefit at a particular time if an assurance of support is in force in respect of the person at that time, the assurer was willing and able to provide an adequate level of support to the assure, and it was reasonable for the assuree to accept that support
This new subsection includes a note signposting the definition of 'assurance of support' in subsection 23(1).
Item 3 provides an application provision, setting out that the amendments to section 729 of the Social Security Act apply in relation to claims for special benefit where the start day for the benefit is on or after 1 January 2008.
Item 4 repeals subsection 1061ZZGE(3) (including the note) and substitutes a new subsection (3). This new subsection requires the Secretary to notify the assurer, in writing, of the fact that an assurance of support has ceased to be in force in respect of the assuree at a time determined by the Secretary under subparagraph 1061ZZGF(1)(b)(ii) or new subparagraph (iii).
Item 5 inserts new section 1061ZZGEA, which provides that, once an assurance has been accepted under Chapter 2C of the Social Security Act and the person who is the subject of that assurance becomes a holder (under the Migration Act) of a visa granted in connection with the assurance, the assurance cannot be withdrawn by the person who gave that assurance. Section 1061ZZGEA prevents an assurer from withdrawing an assurance which has been accepted under Part 2C.2 once a visa has been issued to the assuree by DIAC. This rule will apply even if the assurance is not yet in force.
For example, if an assurance of support has been accepted for a migrant and DIAC has subsequently granted the visa, the assurer may not then decide that they wish to withdraw the assurance of support prior to the migrant's arrival in Australia.
Item 6 provides an application provision, which sets out that section 1061ZZGEA only applies to assurances that are accepted on or after 1 January 2008.
Item 7 makes a minor consequential amendment, substituting the words 'the earlier' with 'the earliest'. This is due to a new subparagraph being inserted in paragraph 1061ZZGF(1)(b). The effect of the amendment is that an assurance remains in force until the earliest of the times specified in this paragraph.
Item 8 inserts a new subparagraph 1061ZZGF(1)(b)(iii), which provides a further provision relating to how long an assurance remains in force. Subparagraph 1061ZZGF(1)(b)(iii) provides that, if the Secretary determines a time at which an assurance ceases because of a circumstance specified in a determination under section 1061ZZGH, the assurance remains in force until that time. This is subject to that time being the earliest time under paragraph 1061ZZGF(1)(b).
Item 9 repeals subsection 1061ZZGF(4) and inserts a new subsection (4). New subsection 1061ZZGF(4) provides that, except as provided by paragraph 1061ZZGF(1)(b), an assurance of support that came into force in respect of a person under paragraph 1061ZZGF(1)(a) remains in force in respect of the person, regardless of any change of circumstances that may occur (including any purported withdrawal of an assurance). As a result of the operation of this provision, the assurance cannot be withdrawn after the assurance has come into force except in circumstances that are specified in a determination under 1061ZZGH.
Item 10 inserts a new item 6 into the table in subsection 1061ZZGH(1), which requires that the Minister must specify circumstances in which assurances accepted under Chapter 2C cease to be in force under new subparagraph 1061ZZGF(1)(b)(iii) in respect of persons for whom the assurances were given.