Social Security Payments - Residence Criteria
- Background - a residence-based system
- Residence and New Zealand citizens
- Exceptions to the residence rules for income support
- Periods of qualifying residence
- Exemption from periods of residence
- Newly arrived resident's waiting period
- Exemptions from the newly arrived resident's waiting period
Background - a residence-based system
The Australian income support system differs from those of most other developed countries, in that it is funded from general revenue, rather than from direct contributions by individuals and employers. Instead of reflecting the level and duration of contributions into a social insurance fund, Australian income support is based on residence and need.
In general, a person must be an "Australian resident", as defined in the Social Security Act 1991, in order to qualify for Australian social security payments. An Australian resident is a person who resides in Australia and has permission to remain permanently—either because they are: an Australian citizen; the holder of a permanent visa; or a protected Special Category Visa holder (as described below). In deciding whether a person is residing in Australia, factors such as the person's domestic, financial and family ties to Australia are taken into account, as well as the frequency and duration of any absences from Australia and the reasons for such absences.
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Residence and New Zealand citizens
Before 26 February 2001, holders of Special Category Visas (i.e. New Zealand citizens entering Australia under the Trans Tasman Travel Arrangements) could meet the definition of an Australian resident if they were residing in Australia and likely to remain permanently.
New Zealand citizens may enter Australia as a Special Category Visa holder, or on a permanent visa under the Migration Program (ie as if migrating from any other country). A Special Category Visa is granted to a New Zealand citizen who does not hold a visa on arrival in Australia, and who presents their New Zealand passport. From 26 February 2001, holders of Special Category Visas are no longer able to satisfy the definition of an Australian resident for income support purposes, unless they belong to a "protected" group. However, holders of Special Category Visas who are residing in Australia can receive family assistance and the low income Health Care Card.
The protected groups include Special Category Visa holders who:
- were in Australia on 26 February 2001; or
- 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; or
- 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.
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Exceptions to the residence rules for income support
The principle that only Australian residents should qualify for social security payments is fundamental to the Australian income support system. Exceptions to this principle are limited to Special Benefit (the "payment of last resort") and family payments (comprising Family Tax Benefit, Baby Bonus, Stillborn Baby Payment, Schoolkids Bonus, Paid Parental Leave, Child Care Benefit, Child Care Rebate and Double Orphan Pension).
Under social security law, the Minister for Social Services has authority to make determinations to allow the holders of particular temporary visas to meet the residence requirements for Special Benefit. This authority enables Australia to meet its legal and moral obligations to provide social security assistance to a particular class of people, even though those people do not have permission to remain permanently in Australia. Currently, determinations are in force for a number of temporary visas providing access to only Special Benefit. For more information on the visa types go to ‘exemptions for Special Benefit waiting period’ (please insert hyper link)
In addition, some temporary visas, such as the Special Category Visa and certain Humanitarian Visas, allow access to the range of family assistance payments.
The Minister has no power to make exceptions to the residence rules on an individual or case-by-case basis. Exceptions can only be made for an entire class (or subclass) of visa by ministerial determination.
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Periods of qualifying residence
Access to social security benefits is generally restricted to people who are Australian permanent residents or citizens residing permanently in Australia. While most income support payments have a two‑year waiting period, Age Pension and Disability Support Pension have a 10-year qualifying residence requirement. This 10‑year qualifying residence requirement aims to ensure that only those people who have established a long‑term connection with Australia are able to access Age Pension and Disability Support Pension. The 10‑year qualifying residence period must include a period of five years continuous residence in Australia. The qualifying residence period begins from the date the person starts residing in Australia as a permanent visa holder. Time spent in Australia on a temporary visa is not counted towards the qualifying residence period.
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Exemption from periods of residence
Asylum seekers who are assessed as genuine refugees and who are granted permanent visas on this basis are exempt from the qualifying residence requirements for income support payments. The Social Security Act 1991 definition of a refugee includes all people who were granted permanent residence under the Humanitarian Program – that is, those granted Refugee or Special humanitarian visas. To protect their access to benefits, such people continue to be defined as refugees for social security purposes, even if they cease to hold a refugee or humanitarian visa (e.g. if they become Australian citizens).
This "qualifying residence exemption" recognises that refugees have not had the same freedom of choice as other migrants, when making the decision to come to Australia. Refugees are not, however, exempt from the basic requirement to be an Australian resident at the time of claiming a payment.
Under social security law, the Minister for Social Services has authority to make determinations to allow the holders of particular permanent visas to meet the qualifying residence requirements for certain social security payments (other than Special Benefit). Currently, such determinations are in force for the following permanent visas:
- visa subclass 100 and 801 Spouse/Partner;
- visa subclass 110 and 814 Interdependency;
- visa subclass 832 Close ties;
- visa subclass 833 Certain unlawful non-citizens.
Where a person’s disability occurred while they were in Australia as a permanent resident or the holder of a permanent visa, they can seek an exemption from the 10-year qualifying residence requirement for Disability Support Pension.
Similarly, a woman who is widowed while she and her partner were both Australian residents does not need to wait two years for access to Widow Allowance (only available to women born on or before 1 July 1955).
A permanent Australian resident who becomes a sole parent in Australia can immediately apply for Parenting Payment Single (previously known as Sole Parent Pension). Eligibility requirements include meeting the income and assets test.
A person is exempt from the qualifying residence requirements for the Age Pension if the person:
- is a woman who was widowed in Australia, and both she and her partner were Australian residents at the time of his death, and she was an Australian resident for two years immediately prior to the claim;
- was in receipt of Widow B Pension, Widow Allowance, Partner Allowance or Mature Age Allowance immediately before turning Age Pension age.
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Newly arrived resident's waiting period
Some payments (generally, the "allowance" type payments which are intended as shorter-term income support) do not have prior residence requirements, but instead have a "newly arrived resident's waiting period". Technically, this means that a person may meet all the qualification criteria for the payment, but it may not be "payable" to them because of the waiting period.
A newly arrived resident's waiting period applies to people who have not been Australian residents and in Australia for a period of, or periods totalling, 104 weeks (i.e. two years). Periods spent in Australia as an Australian resident, at any time in a person's life, can be counted towards the waiting period.
Payments with a newly arrived resident's waiting period include Newstart Allowance, Mature Age Allowance, Partner Allowance, Youth Allowance, Mobility Allowance, Austudy Payment, Sickness Allowance, Pensioner Education Supplement, Carer Payment and Special Benefit. The waiting period also applies to the Health Care Card and the Commonwealth Seniors Health Care Card.
There is no waiting period for family assistance payments. These payments are available to all Australian residents and holders of Special Category Visas and prescribed temporary visas, (as described above), if they have children in their care and meet the relevant income tests.
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Exemptions from the Special Benefit newly arrived resident’s waiting period
As with the periods of qualifying residence for pensions (and for certain other payments), refugees are exempt from the newly arrived resident's waiting period. Their immediate family members (partners and dependent children) are also exempt. This policy recognises the fact that the sponsored family members of refugees have often been in refugee-like situations themselves, and will face the same sorts of settlement barriers.
Under a Ministerial determination the holders of permanent spouse/partner visas (visa subclasses 100 and 801) or interdependency visas (visa subclasses 110 and 814) are exempt from the newly arrived resident's waiting period (and from the two year residence requirement for Parenting Payment and Widow Allowance).
"Innocent illegals"—that is, the holders and former holders of visa subclasses 832 and 833—are also exempt from the newly arrived resident's waiting period for all payments (and from the two year qualifying residence requirement for Parenting Payment and Widow Allowance).
People whose migration to Australia is approved on the basis that they will act as a carer for a disabled relative are exempt from the newly arrived resident's waiting period for Carer Payment (but not for any other payment). These are the holders (or former holders) of family visa subclasses 104 and 806, who are defined by the Migration Regulations as either "special need relatives" or "carers". Holders of permanent carer visas (visas subclass 116 and 836), which are specifically for carers, are also exempt from the Carer Payment waiting period.
Australian citizens and their immediate family members (i.e. partners and dependent children) are exempt from the newly arrived resident's waiting period for all payments, as are family members of permanent residents who have been residing in Australia for at least two years.
Exemptions from the Special Benefit newly arrived resident’s waiting period
Most Australian social security payments have defined eligibility criteria, payment rates and means tests. The exception to this rule is the payment called Special Benefit. This "safety net payment of last resort" is paid at the discretion of the Secretary of the Department of Social Services. The legislation stipulates that Special Benefit may be payable to a permanent resident who does not residentially qualify for any income support payments provided they have served the newly arrived resident’s waiting period and they meet the following requirements:
- unable to earn a sufficient livelihood;
- in severe financial hardship, and
- experiencing a substantial change of circumstances beyond their control since arriving in Australia.
Under Ministerial Determination the following temporary visa holders may be exempt from the newly arrived resident’s waiting period and may be able to access Special Benefit if they meet the above requirements:
- visa subclass 070 (Removal Pending Bridging Visa)
- visa subclasses 309 Spouse/Partner (Provisional) (Offshore) and 820 Spouse/Partner;
- visa subclass 786 (Temporary) (Humanitarian Concern);
- visa subclass ZB 951 Criminal Justice Stay Visas relating to the offence of people trafficking, sexual servitude or deceptive recruiting.
While the following visas stopped being issued from 9 August 2008, any remaining visa holders are still covered by the Ministerial Determination which provides an exemption from the newly arrived resident’s waiting period for Special Benefit:
- visa subclasses 310 and 826 (Interdependency, provisional);
- visa subclass 447 (Secondary Movement Offshore Entry);
- visa subclass 451 (Secondary Movement Relocation);
- visa subclass 695 (Return Pending)
- visa subclass 785 (Temporary Protection);
- visa subclass 787 (Witness Protection (Trafficking) (Temporary))
This exemption is provided for by a Ministerial determination as holders of some temporary visas (including those granted under the Humanitarian Program) cannot meet the Social Security Act 1991 definition of a refugee. This exemption is consistent with the humanitarian reasons for allowing these groups to remain in Australia and receive Special Benefit.
In addition, Criminal Justice Entry Visas and Criminal Justice Stay Visas granted to those assisting in the administration of criminal justice in relation to people trafficking, sexual servitude or deceptive recruiting are also entitled to Special Benefit and are exempt from the newly arrived resident's waiting period.
The rate of Special Benefit is discretionary, but it cannot be more than the rate of Newstart Allowance and Youth Allowance that would otherwise apply to the recipient. Hardship tests, outlined in the Guide to Social Security Law, are used to decide whether a person meets the above exemption requirements. The Guide states the types of situations that would constitute financial hardship and a substantial change of circumstances.
For sponsored migrants, the situations which could constitute a substantial change in circumstances include:
- the death or permanent disability of a sponsor, or
- domestic violence perpetrated by a sponsor.
For independent migrants the situations which could constitute a substantial change in circumstances include:
- domestic violence perpetrated by a migrant’s partner (on whom the claimant was financially dependent),
- loss of savings brought to Australia through unexpected medical expenses, or
- loss of a pre-arranged job which was the reason for the person's migration.
The Guide gives examples such as these, but does not seek to predict every type of situation in which it would be appropriate to waive the waiting period. Such a decision is discretionary. However, the Guide stipulates that failure to find or keep employment cannot, of itself, be regarded as a substantial change in circumstances.
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The Department of Social Services acquired responsibility for the Assurance of Support (AoS) program from the then Department of Immigration on 1 July 2004. The AoS program is legislated under the Social Security Act 1991.
The AoS program is an integral part of the Government’s migration program. Migrants entering Australia with an Assurance of Support do so on condition that a person (the assurer) provides an assurance to undertake financial responsibility for the migrant (the assuree) for the duration of the AoS period. The AoS period is either 2 years for most visas or ten years for Contributory Parent Visas.
From 1 January 2012, the discretionary AoS requirement was removed from Partner Visas. This change means that an AoS is not required for Partner Visa applications made on or after 1 January 2012. The change also applies to Partner Visa applications made but not finally determined by 1 January 2012.
Further information on the AoS program is provided under the Assurance of Support topic.
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Australia's income support system is based on residence and need, and is paid by the Australian Government out of general revenue. Payments are usually only available to Australian residents—most migrants do not have access to income support payments for their first two years after arrival. Payments for the long-term contingencies of life, such as old age and disability, are further restricted to those people with a long-term connection with Australia (unless, in the case of Disability Support Pension, the disability occurs while the person is an Australian resident).There are exemptions from the qualifying residence requirements and from the newly arrived resident's waiting period for certain people. For people who are in hardship but cannot get any other form of income support, Special Benefit provides a safety net. A newly arrived resident's waiting period applies to Special Benefit, but this can be waived if the claimant has suffered a substantial change in circumstances beyond his or her control.
Revised: April 2014
Social Security Relationships and International Branch
Australian Government Department of Social Services
Ph: 1300 653 227