Interesting Bits
of the
1991 Social Security Act (amended)
The Social Security Act 1991 (SSA) is a mammoth piece of legislation. The piece of most interest for New Zealanders is the addition of a definition of a "Protected Special Category Visa Holder" - or in other words, a Kiwi who has not lost the right to access sickness and unemployment benefits. This definition can be found within Section 7(2) of the SSA- the relevant subsections are reproduced below.
The definition of a Protected Special Category Visa Holder does not make for light reading, so I will attempt a simplified summary:
Most Kiwis probably don't realise it, but by receiving an arrival stamp in their passports they are also being invisibly issued with a Special Category Visa (SCV). Prior to the amendments below, this visa more or less entitled you to pretty much all the rights of a Permanent Resident - without all the associated hassle of qualifying as such under Australias strict immigration policy.
Prior to September 1994 New Zealanders arriving in Australia were considered exempt non-citizens upon arrival. In September 1994 the number of New Zealanders travelling to Australia to seek medical treatment prompted the introduction of the Special Category Visa - with one of the visa conditions being that the applicant should not be a health concern.
This refusal of entry due to medical grounds applies to any Kiwi upon re-entering Australia - regardless of their current or previous resident status. All SCV Holders (protected or otherwise) are still subject to this visa condition.
Subsection 7(2) of the Act introduces the concept of a Protected SCV Holder. Only Protected SCV Holders now qualify as an Australian resident for the purposes of social security. i.e. if you are just a plain old SCV Holder (in other words: an Unprotected Kiwi), then you are now no longer considered an Australian resident under the Act. You are also no longer considered a Permanent Resident under the Citizenship Act, and thus, as an Unprotected Kiwi, are also no longer eligible to ever become a citizen.
In summary, you are most likely automatically a Protected SCV Holder if:
- You were in Australia on the 26 February 2001, or
- You were in Australia for 12 or more months between 26 February 1999-2001, or
- You were ever on social security on or after 26 February 2001.
You could apply to qualify as a Protected SCV Holder if:
- You were residing permanently in Australia, but were temporarily absent on the 26 February 2001, or
- You arrived to reside permanently in the 3 months after 26 February 2001, and
- You received a determination as such prior to the specified deadlines (which have now all expired).
Aside from the fact that you just don't qualify as an Australian resident if you arrived after 25th May 2001, the most crucial strings in the Act are the deadlines for determinations to be made found in Subsection 7(2F)
(click here to see how these now expired deadlines were advertised).
Ironically, in an attempt to minimise social security expenditure, the Act actually rewards Kiwis that applied for, and received social security with Protected SCV Status, and penalises those who work and pay taxes by stripping them of their rights through poorly advertised deadlines. In fact the only reliable way of discovering these deadlines would have been in applying for social security!
Extract of Section 7 of the 1991 Social Security Act No. 46
7(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
Note: For holder and permanent visa see subsection (1).
7(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.
7(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.
7(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.
7(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.
7(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.
7(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.
7(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.
7(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s assets located in Australia; and
(e) the frequency and duration of the person’s travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
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