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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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Increases the assurance of support period for certain visas in line with
changes to the newly arrived resident's waiting periods under
the Social
Security Act 1991
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Portfolio
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Families and Social Services
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Authorising legislation
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Last day to disallow
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15 sitting days after tabling (tabled Senate and House of Representatives
12 February 2019)
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Rights
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Protection of the family; social security; adequate standard of living;
children's rights
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Previous reports
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Report 2 of 2019 and Report 3 of 2019
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Status
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Concluded examination
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2.132 The committee first requested a response from the minister on the Social Security (Assurances of Support) Amendment Determination 2018 (No. 2) (the determination) in Report 2 of 2019.[2] As that response had not been received at the time of the dissolution of the 45th Parliament, the committee reiterated its initial request for advice in Report 3 of 2019.[3] The full initial human rights analysis is set out in Report 2 of 2019 at pp. 85-89.[4]
2.133 The determination increases the assurance of support period for certain classes of visa from two years to four years.[5] This would appear to include classes of visas such as subclass 101 (child), subclass 102 (adoption), subclass 103 (parent) and subclass 151 (former resident). An assurance of support is a legally binding commitment by an individual or body (assurer) to financially support a migrant seeking to enter Australia on certain visa subclasses (assuree) for the duration of the assurance period, including assuming responsibility for repayment of any recoverable social security payments received by the assuree during the assurance period.[6]
2.134 The committee previously noted that a measure which limits the ability of certain family members to join others in a country is a limitation on the right to protection of the family.[7] Insofar as the visa classes affected by the increased assurance period include child visas and adoption visas, the measures also engage the rights of children.
2.135 An important element of protection of the family is to ensure family members are not involuntarily separated from one another.[8] Laws and measures which prevent family members from being together will engage this right. Additionally, Australia is required to ensure that, in all actions concerning children, the best interests of the child are a primary consideration, and to treat applications by minors for family reunification in a positive, humane and expeditious manner.[9]
2.136 The committee's initial analysis also noted that, in circumstances where an assurer becomes liable for unforeseen expenses of the assuree (including recoverable social security payments, where applicable), extending the period of assurance may limit the right to an adequate standard of living of assurers. The right to an adequate standard of living requires state parties to take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing for all people in Australia.[10]
2.137 The committee therefore sought the advice of the minister as to the compatibility of the measure with the right to protection of the family, the rights of the child and the right to an adequate standard of living (including whether assurers would be liable for the payment of any Special Benefit paid to an assuree and if there are safeguards to ensure that assurers would not be subject to financial hardship if required to repay unforeseen social security payments of the assuree).
2.138 The minister advised:
Sustainability of the Australian welfare payments system
In the 2019-20 Commonwealth Budget, Australia's expenditure on social security and welfare is estimated to account for 36 per cent of total expenditure and will be the biggest expense in the Budget. The social security and welfare function is estimated to increase by 3.6 per cent in real terms from 2019-20 to 2022-23.
The primary objective of Australia's welfare payments system is to provide financial support for individuals and families who are unable to fully support themselves. To ensure the long-term sustainability of the system, various mechanisms are in place. For example, eligibility criteria to ensure payments are provided to those most in need and waiting periods.
The concepts of waiting periods and providing assurances for migrant cohorts are both longstanding features of the Australian social security system and make a targeted contribution to the sustainability of the welfare system.
Newly Arrived Residents Waiting Period (NARWP) and Assurance of Support (AoS) scheme The NARWP is designed to ensure that migrants are able to support themselves financially upon arrival in Australia. Under changes introduced on 1 January 2019, most migrants granted permanent residency must serve a waiting period of up to four years before they can access certain welfare payments and concession cards.
The AoS scheme is designed to work in conjunction with the NARWP to allow new migrants, with a higher likelihood of needing welfare payments during the waiting period, entry into Australia, while protecting Australian Government social security outlays.
An AoS is a legally binding commitment by the assurer to provide financial support to the assuree for the duration of the assurance period. An AoS generally requires lodgement of a monetary bond, or security, which provides a source of available funds for AoS debt recovery purposes, if recoverable social security payments are made to the assuree during the AoS period. The bond is lodged and held by the Commonwealth Bank of Australia for the entire AoS period and is released to the assurer at the end of the AoS period, with the deduction of any amount needed to repay recoverable social security payments to Centrelink.
An AoS may be mandatory or discretionary, depending on the visa type. Some visas such as Visa Subclass 101 (Child) and Visa Subclass 102 (Adoption) have a discretionary AoS provision. In this circumstance, an assessment will be made as to whether an applicant is at risk of becoming a charge on Australia's welfare system. An individual giving an assurance for a discretionary AoS is not required to provide a monetary bond.
The assurance period aligns with the NARWP and residency qualification periods for social security payments that the visa subclass is most likely to access. The assurance period is deemed to start from the date the assuree arrives in Australia, or the date the relevant visa is granted, whichever occurs later.
The Social Security (Assurances of Support) Determination 2018 (the Determination) sets out the requirements that must be met for an individual or body to be permitted to give an assurance of support, such as eligibility criteria and income requirements. These requirements provide transparent and clear criteria, which assist the Commonwealth and the assurer to assess whether they can adequately support an assuree during the assurance period.
The Social Security (Assurances of Support) Amendment Determination 2018 (No.2) (the Amendment Determination)
The Amendment Determination extends the assurance period from two years to four years for specific visa subclasses. The changes introduced in the Amendment Determination align with the amendments made by the Social Services and Other Legislation Amendment (Promoting Sustainable Welfare) Act 2018, to increase existing NARWPs under the Social Security Act 1991 (the Act) for various welfare payments and concession cards.
Compatibility of the measure with the right to protection of the family and the rights of the child
Changes to the NARWP were introduced on 1 January 2019, increasing the waiting period for certain welfare payments and concession cards to four years. The alignment of the AoS period with the NARWP is necessary to achieve the purpose of the AoS scheme, that is, to recover payments made during the NARWP, consistent with the assurer's commitment to provide support.
In addition, the alignment of periods ensures equitable treatment of AoS applicants in line with the relevant NARWP rules. The Amendment Determination only applies the increased four-year assurance of support period to assurances of support given on or after 1 January 2019, the commencement of the Amendment Determination. This ensures there will be no disadvantage to a person who gave an assurance (by lodging the assurance in accordance with section 1061ZZGC of the Act) prior to commencement of the Amendment Determination.
In relation to specific concerns raised by the Committee relating to Visa Subclass 101 (Child) and Visa Subclass 102 (Adoption), both of these visa subclasses have a discretionary AoS. The inclusion of a discretionary AoS on these visas allows the Department of Home Affairs to request an assurance in cases where further evidence is required to establish that the assurer can provide an adequate standard of living for the visa applicant.
Currently, Family Tax Benefit (FTB) payments are not recoverable under the AoS scheme and an assurer is not required to repay any FTB received for any assuree, including for children in Visa Subclass 101 (Child) and Visa Subclass 102 (Adoption). This arrangement continues under the new four-year AoS.
Compatibility of the measure with the right to an adequate standard of living
An AoS is a legally binding commitment by the assurer to support the assuree for the duration of the assurance period. The Determination provides clear and transparent criteria to assist the Commonwealth and the assurer to assess whether they can provide this support.
As part of the application process, the Department of Human Services ensures the assurer understands their obligations by facilitating access to interpreters and providing comprehensive guidance material. Potential assurers must meet an income test and a bond may also be required to demonstrate that they have the capacity to repay any debts incurred as a result of the assuree accessing social security payments, including Special Benefit.
These arrangements will continue under the new four-year assurance of support that applies to specific visa subclasses. This ensures that future assurers are aware of their obligations prior to agreeing to give an assurance of support and are able to support the assuree for the four-year period.
If a debt is incurred, various safeguards exist to ensure an assurer does not suffer financial hardship while repaying the debt. In the first instance, debts are recovered from the monetary bond (if any exists) lodged upon application of the AoS. If there is no bond, or if the amount of payment provided to the assuree exceeds the bond, debt recovery action will commence to recover the amount of the outstanding liability. The debt recovery action follows the same procedure as any other social security debt to the Commonwealth.
An assurer may repay the debt through various methods, including direct deductions from their social security payments, if they receive any, or through instalments directly to the Commonwealth. Under both arrangements, the amount of the deduction or instalment will consider the assurer's financial circumstances to determine an appropriate rate of recovery. The assurer may also vary the deduction or instalment amount if their circumstances change after an instalment arrangement has been entered into.
At all stages during the AoS process, a person affected by a decision under the Act has the right of appeal to a Centrelink Authorised Review Officer and the Administrative Appeals Tribunal (AAT).
2.139 The committee thanks the minister for this response. The committee notes the minister's advice that changes were made on 1 January 2019 to increase the waiting period for newly arrived residents for certain welfare payments and concession cards to four years, and this determination, in extending the assurance period to four years, aligns the two measures. The committee also notes the advice that this alignment is necessary to achieve the purpose of the assurance of support scheme, that is to recover payments during this waiting period, and ensures equitable treatment of assurance of support applicants. The committee also notes the minister's advice that concepts of waiting periods and providing assurances for migrant cohorts are longstanding features of the Australian social security system and make a targeted contribution to the sustainability of the welfare payments system. While it could have been useful if the minister's response had provided additional information as to how the proposed measure will ensure the sustainability of the welfare payments system, such objectives would appear capable of constituting legitimate objectives for the purposes of international human rights law.
2.140 As noted in the committee's previous analysis, a measure which limits the ability of certain family members to join others in a country is a limitation on the right to protection of the family. Insofar as the visa classes affected by the increased assurance period include child visas and adoption visas, the measures also engage the rights of children. The minister's response identifies a number of factors that go to the proportionality of the measure. Firstly, an assurance of support may be mandatory or discretionary, depending on the visa type. Visa Subclass 101 (Child) and Visa Subclass 102 (Adoption) have a discretionary assurance of support provision, and therefore an assurer may not have to provide a monetary bond unless the Department of Human Services requests an assurance where further evidence is required to establish that the assurer can provide an adequate standard of living for the visa applicant. Further, this determination also only applies the increased
2.141 four-year assurance of support period to assurances of support given on or after 1 January 2019. The minister also explains that Family Tax Benefit payments are not recoverable under the scheme and therefore an assurer is not required to pay any Family Tax benefit received for any assuree. However, the committee notes that the minister's advice does not explain whether there are other visa types that could apply when an assurer is seeking to sponsor a dependent relative, which may be subject to mandatory requirements for assurances of support, and therefore the requirement to pay an upfront monetary bond. It is also unclear whether extending the support period from two years to four years would mean that the amount of any monetary bond would be higher (i.e. to cover a period that is twice as long). The committee is concerned that, in practice, there may be situations where an assurer subject to a monetary bond may be unable to provide such a bond and therefore unable to access family reunification, in circumstances that may not comply with their right to protection of the family.[12]
2.142 The initial analysis also noted that, in circumstances where an assurer becomes liable for unforeseen expenses of the assuree (including recoverable social security payments), extending the period of assurance may limit the right to an adequate standard of living of assurers. The committee notes the minister's advice that assurers would be liable for any debts incurred as a result of the assuree accessing social security payments, including any Special Benefit. In relation to the proportionality of the measure and the existence of adequate safeguards, the minister's response outlines that future assurers are made aware of these obligations prior to agreeing to give an assurance of support for the four-year period and if a debt is incurred, various methods of repayment which consider the assurer's financial circumstances to determinate an appropriate rate of recovery are available to ensure an assurer does not suffer financial hardship while repaying a debt. In light of this information, the committee makes no further comment on this matter.
2.143 The committee thanks the minister for this response. The committee notes that the minister's advice did not make clear which visa types are subject to a mandatory requirement to provide an upfront monetary bond, and whether the amendments made by this determination would increase the amount of any upfront bond.
2.144 In the absence of such information, the committee is unable to fully assess the impact the determination may have on the right to protection of the family. The committee has concluded its examination of this determination.
Mr Ian Goodenough MP
Chair
[1] This entry can be cited as: Parliamentary Joint Committee on Human rights, Social Security (Assurances of Support) Amendment Determination 2018 (No. 2) [F2018L01831], Report 5 of 2019; [2019] AUPJCHR 85.
[2] Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019) pp. 83-89.
[3] Parliamentary Joint Committee on Human Rights, Report 3 of 2019 (30 July 2019) p. 2.
[4] Parliamentary Joint Committee on Human Rights, Report 2 of 2019 (2 April 2019) pp. 85-89 at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2019/Report_2_of_2019.
[5] Other types of visas are subject to shorter or longer periods which are unchanged from the previous determination: for example for certain types of visas, including the contributory parent visa, the assurance period continues to be 10 years, and for entrants entering pursuant to a community support program the assurance period continues to be 12 months. The determination provides that for remaining relative and orphan relative visas, the assurance period continues to be two years.
[6] Section 1061ZZGA(a) of the Social Security Act 1991. Recoverable social security payments for the purpose of assurances of support include widow allowance, parenting payment, youth allowance, Austudy payment, Newstart allowance, mature age allowance, sickness allowance, special benefit and partner allowance.
[7] See, for example, Sen v the Netherlands, European Court of Human Rights Application no. 31465/96 (2001); Tuquabo-Tekle And Others v The Netherlands, European Court of Human Rights Application no. 60665/00 (2006) [41]; Maslov v Austria, European Court of Human Rights Application no. 1638/03 (2008) [61]-[67].
[8] Protected by the International Covenant on Civil and Political Rights (ICCPR), articles 17 and 23, and the International Covenant on Economic, Social and Cultural Rights (ICESCR), article 10.
[9] Convention on the Rights of the Child, article 3(1) and 10.
[10] ICESCR, article 11.
[11] The minister's response to the committee's inquiries was received on 13 August 2019. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[12] See, ICCPR, articles 17 and 23, ICESCR, article 10.
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