If you were in Australia on the 26th February 2001, or at least 12 out of the previous 24 months, or either received or qualified to receive social security after this date then you probably need not worry, as you are now a "Protected Special Category Visa (SCV) Holder" (you should still read on anyway).

If you don't fit into one of the above categories then you may well find that you have unknowingly lost your entitlements to ever qualify for Australian social security payments, family sponsorship, your children becoming Australian citizens by birth, citizenship, and the associated right to vote, no matter how long you have, or will ever live and pay taxes in Australia.

The only way that you can now ever obtain such fundamental rights is to qualify as a 'Permanent Resident' under Australias' strict immigration policy. This is neither a cheap nor easy process. Unfortunately you may well find that you do not qualify in the first place.

This, in particular, will most likely come as quite a shock to a small, but still significant number of Kiwi citizens that have resided in Australia for many years, but were either absent for more than 12 months between February 26th 1999-2001(e.g. working or studying overseas), or (re)arrived in Australia between February 27th and May 25th 2001. If you arrived for the first time after May 25th 2001 then the news is most likely all bad.

When did this Happen?

In 2001 Australia and New Zealand signed a new Bilateral Social Security Agreement.

Such agreements are typically made to give citizens of either country access to social security when they are residing in the other. This agreement was no different, and specifically related to changes to the responsibility for payment of aged, disability, and carer pensions.

However, the outcome of this agreement as implemented by the Australian Government seems to be something altogether quite different:

• On the 30th March 2001 the Family and Community Services Legislation Amendment (New Zealand citizens) Act 2001 came into force. These amendments effectively stripped all Kiwis not in Australia on the 26th of February 2001, or those not resident for at least 12 months of the previous 2 years up to and including this date, of their previous (potential) entitlements to apply for citizenship, sponsor their family members to reside in Australia, and qualify for sickness and unemployment social security payments. These amendments had absolutely nothing to do with the implementation of the Bilateral Agreement itself (which was not due to come into force until mid 2002), but 'coincidentally' retrospectively became law to correspond to the same day that the intention to sign of the Bilateral Agreement was announced.

• In addition, Kiwi residents who were temporarily absent, or who arrived during the 3 month 'transition' period after 26th February 2001 were required to either be receiving a social security payment, or apply to Centrelink for a determination of eligibility to receive a social security payment, in order to avoid losing these same rights. All deadlines to receive a determination have now expired (click here to see how the Australian Government advertised such an important deadline).
  A fascinating byproduct of this is that Kiwis receiving social security benefits are rewarded with automatic eligibility for Australian Citizenship, wheras those that work for a living have most likely had this right unknowingly stripped from them. In other words, being a dole bludging Kiwi automatically qualifies you for Australian citizenship.

• The signing of the new Bilateral Agreement, together with the announcement of the above-mentioned unilateral legislation were made public via a press release on this same day by the Office of the Australian Prime Minister. In reality, the Prime Minister was actually announcing that Australia was now exposing Kiwis to this harsh new unilateral legislation.

Cynically, this has to be an example of political opportunism at its' best - whereby the Australian Government was able to portray the strong impression that the new unilateral social security legislation was actually sanctioned in some way by the New Zealand Government - when that simply was not the case.

If the Australian Government had not camouflaged their actions by pretending that all of this is as a result of the Bilateral Agreement then there most likely would have been quite an outcry. This is still in evidence today, as official Government websites and documents for citizenship and spousal visa sponsorship applications conveniently omit the fact that being unemployed or receiving a sickness benefit is also a qualifier for a Kiwi to apply for these rights.

To confirm this, ring the Australian Citizenship Hotline on 131 880 and state that you are a Kiwi that was not resident on or between the automatically qualifying dates, nor do you have a certificate from CentreLink, but you were receiving unemployment benefits sometime after Feb 26th 2001. They will eventually confirm that this does indeed make you elligible to apply for Australian citizenship.

Try the same trick with the Department of Immigration Hotline on 131 882 - ask to sponsor your foreign spouse as a permanent resident to Australia - they will also eventually confirm that being an unemployed Kiwi also entitles you to this right.

This definitely adds an exciting new dimension to the value of Australian citizenship as far as New Zealanders are concerned.

How Did this Happen?

It appears that the signing of a new bilateral agreement seemed like an opportunity too good to miss for the Australian Government to deny Kiwis the possibility of additionally ever receiving both unemployment and sickness benefit social security payments.

The additional restrictions placed upon obtaining citizenship seem to have little relation to Australias' immigration policy, but instead simply closed the only remaining loophole for a non-qualifying Kiwi to ever obtain social security payments.

The masterstroke was to add little advertised deadlines by which to qualify under the definition of an "Australian Resident for the purposes of Social Security". The last possible deadline by which to do so expired as of the 25th February 2004. If you weren't aware of any such deadlines then don't be too surprised, as hardly anyone else seems to have been aware of them either (click here to find out why).

Thus the Australian Government seems to have legitimised the Family and Community Services Legislation Amendment (New Zealand citizens) Act 2001, that denies New Zealanders access to all eligibility for social security benefits and citizenship, under the supposed auspices of the Bilateral Agreement - when in fact the agreement mentions nothing of the sort.

What Does it all Mean?

If you are a Kiwi living in Australia, and you don't qualify as a Protected SCV Holder then you do not want to become unemployed or sick for an extended period of time, as the Australian Government will provide no financial assistance whatsoever should you need it, no matter how much tax you have paid them. You may find yourself forced to sell up and return to New Zealand in order to receive the minimal financial assistance required simply for your family to survive.

You can also forget about voting or becoming a citizen. In addition, you no longer have the right to sponser your spouse or family to gain permanent residency - so don't fall in love and marry a foreigner - as they will most probably not be allowed to permanently live with you in Australia.

Finally, a child born in Australia, on or after 27 February 2001, to Unprotected SCV Holder parent/s is not an Australian citizen by birth.

Funnily enough, as a result of the Bilateral Agreement, Australian citizens residing in New Zealand manage to retain their rights to access social security, aquire citizenship, and can even vote (no taxation without representation).

What Should I Do?

If you are unsure whether you are affected then you should contact Centrelink (ring Customer Relations: FreeCALL™ 1800 050 004) and ask whether you are entitled to unemployment and sickness benefits. If you qualify, then congratulations! you are also entitled to apply for citizenship. If you are not then commiserations! You are officially an Unprotected SCV Holder, and thus not considered an Australian resident for social security purposes (see the Interesting bits of the Social Security Act for more details).

Currently, only unemployment & sickness benefits, sponsorship of family members, and the right to apply for citizenship (in order that you may never receive unemployment & sickness benefits by any other means) are affected under the current legislation. To the best of my knowledge, all other entitlements (such as Medicare) are currently still available to all New Zealand citizens residing in Australia.

In addition, acces to the aged and disability pensions are protected under the current bilateral agreement, which is what this agreement is all about - nothing more, and nothing less.

• If you are affected, but plan to return to New Zealand in the not too distant future to live permanently anyway, then in practicality you are hardly affected.

• If you are affected and have moved to Australia permanently, but don't care about Australian Citizenship and the right to vote, and are also totally financially independant (i.e. you will never need social security assistance no matter how long you may be unemployed for, or no matter how sick you may get), then practically you probably don't have too much to worry about either. On the other hand, if you are not totally financially independant then, if I were you (and I am) then I would be taking out the best private income protection insurance that I could find as soon as possible.
  
  I would, however, like to remind you that you will be forevermore an Unprotected SCV Visa Holder. There are currently many definitions of an Australian resident under numerous pieces of legislation. Most of them still include in their definitions all SCV Holders (e.g. Medicare and First Home Owners Assistance entitlements). I hope this never changes, but there is always the chance that the new definition of an Australian resident for social security purposes (i.e. a Protected SCV Holder) will be used in the future for more than qualifying for citizenship and social security payments - and as a member of a unique community in Australia that can never achieve the right to vote then there is precious little that you could do about it.

• If you are affected, have moved to Australia permanently, and care about Australian Citizenship and/or having a social security safety net should you become sick or unemployed for either the sake of yourself or your family (e.g. children now born in Australia where neither parent is a citizen or permanent resident are no longer Australian citizens by birth) then you have little option but to apply for Permanent Residency Status - and hope that you can qualify.

  Applying for Permanent Residency

  If you can meet a qualification criteria in the first place, an application for Permanent Residency will cost you upwards of $2200 Australian dollars for the application, medical examinations (for AIDS, TB etc), and other associated costs (legal assistance, criminal record searches, proof of marriage etc.). The primary qualification criteria for Permanent Residence are either via marriage to an Australian, or as a skilled migrant (e.g. possessing a university degree or trade that is in demand). I hope you can qualify!

  The trouble and expense of obtaining a spousal visa (at least initially - it typically takes 2 years of temporary residence to be granted Permanent Resident Status) simply to initially obtain even less rights than before, coupled with the complete ignorance by the general population of the implications of these new laws, probably means that the uptake of Permanent Residency Status by Kiwis will be incredibly low.

  Even more bizzarely, the primary purpose of the medical examination is to determine whether you have contageous untreated tuberculosis (both Australia & New Zealand are countries that are virtually free of this ailment), or will present an undue medical burdon to the Australian health system - but as a New Zealand citizen residing in Australia you are automatically entitled to Medicare anyway.

If this Interests You Further...

If this interests you further, then you may also wish to read the associated excerpts of the Press Release from the Office of the Prime Minister of Australia, interesting bits of the Bilateral Agreement, and the interesting bits of the Social Security act.

I would strongly urge you, at the very least, to voice your concerns to your Member of Parliament in Australia. If you sit back and do nothing, then nothing will change.

The website to locate your Australian Federal Member of Parliament in Australia can be found by clicking here.

Your Human Rights

You may be interested to know that Australia has ratified all 6 core internation human rights treaties. These treaties enshrine core human rights which include:

• The right to naturalisation
• The right to social security and social services
• Political rights - including the right to vote and hold public office
• The sanctity of the family unit
• The right to education

By ratifying these treaties Australia has promised to make these rights available to all residents on an equal footing. It seems that they have forgotten this.

If you would like to remind them then you are entitled to lodge an individual complaint of human rights violations with the Office of the United Nations High Commissioner for Human Rights. It is completely free to do so, and is highly embarassing for the Australian Government. This is perhaps the most effective mechanism to apply pressure on the Government to repeal what appear to be highly discriminatory laws.

To find out how to do so then see:

• Human Rights Issues for New Zealand Citizens Residing in Australia.
• How to lodge an individual human rights complaint against Australia