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FAMILY AND COMMUNITY SERVICES LEGISLATION AMENDMENT (NEW ZEALAND CITIZENS) ACT 2001 NO. 18, 2001 - SCHEDULE 1
- Amendment of the Social Security Act 1991
1 Subsection 7(1) Insert: protected SCV holder has the meaning given by
subsections (2A), (2B), (2C) and (2D).
2 Subparagraph 7(2)(b)(iii)
Repeal the subparagraph, substitute:
- (iii)
- a
special category visa holder who is a protected SCV holder.
3 After subsection 7(2)
Insert:
(2A) A person is a protected SCV holder if:
- (a)
- the person was in Australia on 26 February 2001, and was a special
category visa holder on that day; or
- (b)
- the person had been in Australia for a period of, or for periods
totalling, 12 months during the period of 2 years immediately before
26 February 2001, and returned to Australia after that day.
(2B) A person is a protected SCV holder if the person:
- (a)
- was residing in
Australia on 26 February 2001; and
- (b)
- was temporarily absent from Australia on 26 February 2001; and
- (c)
- was a special category visa holder immediately before the beginning of the
temporary absence; and
- (d)
- was receiving a social security payment on 26 February 2001; and
- (e)
- returned to Australia before the later of the following:
- (i)
- the end of the period of 26 weeks beginning on 26 February 2001;
- (ii)
- if the Secretary extended the person's portability period for the payment
under section 1218C—the end of the extended period.
(2C) A person who commenced, or recommenced, residing in Australia during the
period of 3 months beginning on 26 February 2001 is a protected SCV
holder at a particular time if :
- (a)
- the time is during the period of 3
years beginning on 26 February 2001; or
(b) the time is after the end of that period, and either:
- (i)
- a determination under subsection (2E) is in force in respect of the
person; or
- (ii)
- the person claimed a payment under the social security law during that
period, and the claim was granted on the basis that the person was a protected
SCV holder.
(2D) A person who, on 26 February 2001:
- (a)
- was residing in Australia;
and
- (b)
- was temporarily absent from Australia; and
- (c)
- was not receiving a social security payment;
is a protected SCV holder at a particular time if:
- (d)
- the time is during the period of 12 months beginning on 26 February
2001; or
- (e)
- the time is after the end of that period, and either:
- (i)
- at that time, a determination under subsection (2E) is in force in
respect of the person; or
- (ii)
- the person claimed a payment under the social security law during that
period, and the claim was granted on the basis that the person was a protected
SCV holder.
(2E) A person who is residing in Australia and is in Australia may apply to
the Secretary for a determination under this subsection stating that:
- (a)
- the person was residing in Australia on 26 February 2001, but was
temporarily absent from Australia on that day; or
- (b)
- the person commenced, or recommenced, residing in Australia during the
period of 3 months beginning on 26 February 2001.
(2F) If a person makes an application under subsection (2E), the
Secretary must make the determination if:
- (a)
- the Secretary is satisfied
that paragraph (2E)(a) or (2E)(b) applies to the person; and
- (b)
- the application was made within whichever of the following periods is
applicable:
- (i)
- if paragraph (2E)(a) applies to the person—the period of 12
months beginning on 26 February 2001;
- (ii)
- if paragraph (2E)(b) applies to the person—the period of 3
years beginning on 26 February 2001.
The Secretary must give a copy of the determination to the person.
(2G) The Secretary must make a determination under this subsection in respect
of a person if the person is a protected SCV holder because of
subsection (2B). If the Secretary is required to make such a
determination:
- (a)
- the determination must state that the person was residing
in Australia on 26 February 2001, but was temporarily absent from
Australia on that day; and
- (b)
- the determination must be made within the period of 6 months of the
person's return to Australia; and
- (c)
- a copy of the determination must be given to the person.
4 At the end of section 7
Add:
(7) For the purposes of paragraph
540(d), subparagraph 593(1)(g)(ii) and paragraph 666(1)(g), a person is exempt
from the residence requirement in respect of a period if:
- (a)
- throughout the
period, the person was the holder of a special category visa; and
- (b)
- immediately before the period commenced, the person had been residing in
Australia for a continuous period of at least 10 years, being a period
commencing on or after 26 February 2001;
unless the person's exemption from the residence requirement in respect of the
period would result in the person:
- (c)
- receiving newstart allowance, sickness allowance or youth allowance for a
continuous period of more than 6 months because of this subsection; or
- (d)
- receiving newstart allowance, sickness allowance or youth allowance for
more than one non-continuous period because of this subsection; or
- (e)
- receiving more than one of those allowances because of this subsection.
5 Paragraph 540(d)
Repeal the paragraph, substitute:
- (d)
- throughout the
period, the person:
- (i)
- is an Australian resident; or
- (ii)
- is exempt from the residence requirement within the meaning of subsection
7(7).
6 Subparagraph 593(1)(g)(ii)
After "resident", insert "or is exempt from the
residence requirement within the meaning of subsection 7(7)".
7 Paragraph
623A(6)(b)
Omit "the day this subsection commences", substitute
"1 February 2000".
8 Paragraph 660YCFA(5)(b)
Omit "the day this
subsection commences", substitute "1 February 2000".
9 Paragraph
666(1)(g)
Repeal the paragraph, substitute:
- (g)
- throughout the period, the
person:
- (i)
- is an Australian resident; or
- (ii)
- is exempt from the residence requirement within the meaning of subsection
7(7).
10 Paragraph 696B(6)(b)
Omit "the day this subsection commences", substitute
"1 February 2000".
11 Paragraph 771HNA(5)(b)
Omit "the day this
subsection commences", substitute "1 February 2000".
12 Subparagraph
999(1)(d)(i)
After "resident", insert "or a special category visa holder
residing in Australia".
13 Paragraph 1039AA(5)(b)
Omit "the day this
subsection commences", substitute "1 February 2000".
14 Paragraph
1061ZA(1)(b)
After "resident", insert "or a special category visa holder
residing in Australia".
15 Paragraph 1061ZA(2)(b)
Repeal the paragraph,
substitute:
- (b)
- has not been both:
- (i)
- an Australian resident or a special category visa holder residing in
Australia; and
- (ii)
- in Australia;
for a period of, or for periods totalling, 104 weeks;
16 Paragraph 1061ZA(7)(b)
Omit "the day this subsection commences",
substitute "1 February 2000".
17 Paragraph 1061ZAA(a)
After "resident",
insert "or a special category visa holder residing in Australia".
18
Paragraph 1061ZAA(b)
Repeal the paragraph, substitute:
- (b)
- ends when the
person has been both:
- (i)
- an Australian resident or a special category visa holder residing in
Australia; and
- (ii)
- in Australia;
for a period of, or for periods totalling, 104 weeks.
19 Schedule 1A
Insert in the appropriate numerical position:
For the purposes of determining whether a person was an Australian resident at
a time, or throughout a period, occurring before the commencement of
item 2 of Schedule 1 to the Family and Community Services
Legislation Amendment (New Zealand Citizens) Act 2001 :
- (a)
- the definition
of Australian resident at that time, or throughout that period, applies; and
- (b)
- that definition, as amended by the Family and Community Services
Legislation Amendment (New Zealand Citizens) Act 2001 , does not apply.
20 Paragraph 1061ZG(1)(b)
After "resident", insert "or a special category
visa holder residing in Australia".
21 Paragraph 1061ZH(1)(b)
Repeal the
paragraph, substitute:
- (b)
- has not been both:
- (i)
- an Australian resident or a special category visa holder residing in
Australia; and
- (ii)
- in Australia;
for a period of, or for periods totalling, 104 weeks;
22 Paragraph 1061ZI(a)
After "resident", insert "or a special category visa
holder residing in Australia".
23 Paragraph 1061ZI(b)
Repeal the paragraph,
substitute:
- (b)
- ends when the person has been both:
- (i)
- an Australian resident or a special category visa holder residing in
Australia; and
- (ii)
- in Australia;
for a period of, or for periods totalling, 104 weeks.
24 Subparagraph 1061ZN(1)(a)(i)
After "resident", insert "or a special
category visa holder residing in Australia".
25 Subparagraph 1061ZO(2)(a)(i)
After "resident", insert "or a special category visa holder residing in
Australia".
26 Subparagraph 1061ZO(2)(a)(ii)
After "resident", insert "or
with a special category visa holder residing in Australia".
27 Subparagraph
1061ZO(2)(b)(i)
After "resident", insert "or a special category visa holder
residing in Australia".
28 Paragraph 1061ZO(3)(a)
After "resident", insert
"or a special category visa holder residing in Australia".
29 Paragraph
1061ZO(4)(a)
After "resident", insert "or a special category visa holder
residing in Australia".
30 Paragraph 1061ZO(5)(b)
After "resident", insert
"or with a special category visa holder residing in Australia".
31 Paragraph
1061ZQ(2)(c)
After "resident", insert ", or a special category visa holder
residing in Australia,".
32 Paragraph 1061ZR(a)
After "resident", insert "or
a special category visa holder residing in Australia".
33 Paragraph 1061ZR(b)
Repeal the paragraph, substitute:
- (b)
- ends when the person has been both:
- (i)
- an Australian resident or a special category visa holder residing in
Australia; and
- (ii)
- in Australia;
for a period of, or for periods totalling, 104 weeks.
1 Subsection 3(1) Insert: holder , in relation to a visa, has the same
meaning as in the Migration Act 1958 .
2 Subsection 3(1)
Insert: resides in Australia has the same meaning as in
the Social Security Act 1991 .
3 Subsection 3(1)
Insert: special category visa has the same meaning as in
the Migration Act 1958 .
4 After subparagraph 21(1)(b)(i)
Insert:
- (ia)
- is a special category visa
holder residing in Australia; or
5 Paragraph 22(2)(d)
After "resident", insert ", is a special category visa
holder residing in Australia".
6 Paragraph 22(3)(e)
After "resident", insert
", is a special category visa holder residing in Australia".
7 Paragraph
22(4)(d)
After "resident", insert ", is a special category visa holder
residing in Australia".
8 Paragraph 22(5)(c)
After "resident", insert ", is
a special category visa holder residing in Australia".
9 Paragraph 22(6)(c)
After "resident", insert ", is a special category visa holder residing in
Australia".
10 After subparagraph 42(1)(b)(i)
Insert:
- (ia)
- is a special
category visa holder residing in Australia; or
11 After subparagraph 44(1)(d)(i)
Insert:
- (ia)
- is a special category visa
holder residing in Australia; or
12 After subparagraph 45(1)(f)(i)
Insert:
- (ia)
- is a special category visa
holder residing in Australia; or
13 Paragraph 5BA(2)(c)
Repeal the paragraph, substitute:
- (c)
- has been both:
- (i)
- an Australian resident or a special category visa holder residing in
Australia; and
- (ii)
- in Australia;
for a period of, or for periods totalling, 104 weeks; or
14 Paragraph 5BA(3)(a)
After "resident", insert " or a special category visa
holder residing in Australia".
15 Paragraph 5BA(3)(b)
Repeal the paragraph,
substitute:
- (b)
- ends when the person has been both:
- (i)
- an Australian resident or a special category visa holder residing in
Australia; and
- (ii)
- in Australia;
for a period of, or for periods totalling, 104 weeks.
16 Subsections 29(1) and (2)
After "31", insert ", 31A".
17 After
section 31
Insert:
31A Exclusion of certain claims by special category
visa holders from section 29 residence requirement
Despite paragraph 29(1)(a), a person who is not an Australian resident may
make a claim for a social security payment or a concession card if:
- (a)
- the
person is a special category visa holder residing in Australia; and
- (b)
- in order to qualify for the payment or concession card concerned, the
person is not required to be an Australian resident if the person is a special
category visa holder residing in Australia.
18 After subparagraph 240B(4)(a)(i)
Insert:
- (ia)
- is a special category visa
holder residing in Australia; or
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