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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This legislative instrument amends the Social Security Act 1991
to:
• make 31 March 2024 the new repeal date of the Social Security
(Assurances of Support) Determination 2018 (the Determination);
• clarify the values of securities for bodies under section 20
of the Determination, where the assurance period is for four years; and
• replace references to newstart allowance with jobseeker
payment
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Portfolio
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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 in the House of Representatives and
the Senate on 15 March 2021). Notice of motion to disallow
must be given by 1
June 2021 in the House of Representatives and 4 August in the
Senate[2]
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Rights
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Protection of the family and rights of the child
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1.63 This instrument extends by three years an existing determination which specifies requirements to be met for assurances of support. An assurance of support is an undertaking by a person (the assurer) that they will repay the Commonwealth the amount of any social security payments received during a certain period by a migrant seeking to enter Australia.[3] This period could be up to ten years. This would appear to include any class of visa, including child and parent visas. The Social Security (Assurances of Support) Determination 2018, which this instrument extends, specifies the social security payments subject to these assurances of support;[4] the requirements that assurers must meet to give assurances of support; the period for which assurances of support remain valid; and the value of securities to be given. In particular, it specifies that the period the assurances of support remain valid range from 12 months to 10 years, with most valid for 4 years.[5] In addition, it specifies that the value of securities to be provided by an individual (i.e. payment of an upfront bond) for a parent visa is up to $10 000, and for all other types is up to $5 000.[6]
1.64 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 requirement for an assurance of support include child visas and adoption visas, the measure also engages the rights of children.
1.65 An important element of protection of the family[8] is to ensure family members are not involuntarily separated from one another. 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]
1.66 These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
1.67 The statement of compatibility states that the primary objective of the assurance of support scheme is to 'protect social security outlays while allowing the migration of people who might otherwise not normally be permitted to come to Australia'.[10] These may be capable of constituting legitimate objectives under international human rights law and the measure appears to be rationally connected to that objective.[11]
1.68 In respect of proportionality it is necessary to consider if there is flexibility to treat different cases differently and safeguards to help to protect the right to protection of the family and the rights of the child. The statement of compatibility does not provide any detail in relation to this. It states that migrants will continue to be able to apply for a visa to come to, or remain in, Australia permanently (including to reunite with family) and have their visa application granted, 'subject to meeting the eligibility criteria including, where relevant, obtaining an assurance of support'. It states that to the extent that the assurance of support scheme limits the right to the protection of the family, and rights of parents and children, this is reasonable and proportionate to achieving the legitimate purpose of the scheme.[12]
1.69 However, the statement of compatibility does not explain how the measure is proportionate. In particular, it is not clear what visa types this measure applies to. When the committee has previously examined the assurance of support scheme and sought advice from the relevant minister, the minister had advised that an assurance of support may be mandatory or discretionary, depending on the visa type. Specifically it was advised that 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.[13] However, this did 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 not clear how visa types are specified as being subject to the mandatory or discretionary assurances of support, and whether the rights to protection of the family and the rights of the child are considered when requiring a person to provide an upfront bond. It is therefore unclear, in practice, if 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.[14]
1.70 Further information is required to assess the compatibility of this measure with the right to protection of the family and the rights of the child, in particular:
(a) what visa categories are subject to the assurance of support scheme;
(b) what visa categories are subject to a mandatory assurance of support and what visa categories are subject to discretionary assurances of support (and how is this determined);
(c) what criteria does the Department of Home Affairs rely on to determine when it should use its discretionary powers to require an assurance of support (and where are these found);
(d) does the department consider the right to the protection of the family and the rights of the child when determining whether to require payment of an upfront bond, and what safeguards exist to ensure dependent family members are not involuntarily separated if family members cannot afford to provide an assurance of support.
1.71 The committee notes this legislative instrument extends by three years an existing determination that specifies matters relating to the assurance of support scheme. An assurance of support is an undertaking by a person (the assurer) that they will repay the Commonwealth the amount of any social security payments received during a certain period by a migrant seeking to enter Australia.
1.72 The committee notes that requiring the payment of an upfront bond may limit the ability of certain family members, including potentially children, to join others in Australia. This would appear to limit the right to protection of the family, and insofar as the visa classes affected by the requirement for an assurance of support include child visas and adoption visas, also engages the rights of children. These rights may be permissibly limited where a limitation is shown to be reasonable, necessary and proportionate.
1.73 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this legislative instrument, and as such seeks the minister's advice as to the matters set out at paragraph [1.70].
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Social Security (Assurances of Support Amendment Determination 2021 [F2021L00198], Report 5 of 2021; [2021] AUPJCHR 47.
[3] 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, jobseeker allowance, mature age allowance, sickness allowance, special benefit and partner allowance.
[4] Recoverable social security payments for the purpose of assurances of support include widow allowance, parenting payment, youth allowance, Austudy payment, jobseeker payment, mature age allowance, sickness allowance, special benefit and partner allowance. Social Security (Assurances of Support) Determination 2018, section 6.
[5] For an assurance of support for aged parent visas, the period is 10 years; for an assurance of support for a Community Support Programme entrant, the period is 12 months; for an assurance of support for remaining relative, and orphan relative visas, the period is 2 years; and in any other case the period is 4 years. Social Security (Assurances of Support) Determination 2018, section 24.
[6] Social Security (Assurances of Support) Determination 2018, section 19.
[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 articles 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR) and article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
[9] Article 3(1) and 10 of the Convention on the Rights of the Child.
[10] Statement of compatibility, p. 6.
[11] The committee has previously considered the assurance of support scheme, see Parliamentary Joint Committee on Human Rights, Report 5 of 2018 (19 June 2018) pp. 41–46, Report 7 of 2018 (14 August 2018) pp. 126–133, Report 2 of 2019 (2 April 2019) pp. 83–89 and Report 5 of 2019 (17 September 2019) pp. 76–83.
[12] Statement of compatibility, p. 8.
[13] See minister's response in Parliamentary Joint Committee on Human Rights, Report 5 of 2019 (17 September 2019) pp. 76–83.
[14] See articles 17 and 23 of the ICCPR and article 10 of the ICESCR.
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