Introductory Info

Date introduced: 24 June 2021
House: House of Representatives
Portfolio: Social Services
Commencement: Part 1 of Schedule 1, Schedule 2 and Schedule 3 commence on 1 January 2022 if the Act receives Royal Assent on or before 3 December 2021; otherwise on the first 1 January or 1 July to occur after one month beginning on the day of Royal Assent. The commencement of Part 2 of Schedule 1 is dependent on the date of commencement of Schedule 1 to the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021, if enacted.

The Bills Digest at a glance

• The Social Services Legislation Amendment (Consistent Waiting Periods for New Migrants) Bill 2021 (the Bill) seeks to deliver net savings of $672 million over five years from 2020–21 to 2024–25 by applying a four-year (208 week) waiting period for newly arrived migrants to access a number of payments where a Newly Arrived Resident’s Waiting Period (NARWP) either does not apply or is currently shorter than four years (set out in Table 1).

Table 1: proposed changes to newly arrived resident’s waiting periods

Payment	Proposed changes to NARWPs
	From	To
Carer Payment	104 weeks	208 weeks
Carer Allowance	52 weeks	208 weeks
Family Tax Benefit Part A	52 weeks	208 weeks
Family Tax Benefit Part B	None	208 weeks
Parental Leave Pay	104 weeks	208 weeks
Dad and Partner Pay	104 weeks	208 weeks

• Similar measures were first announced as part of the 2018–19 Budget. With the ‘Encouraging Self-Sufficiency for Newly Arrived Migrants — extension’ budget measure the Turnbull Coalition Government sought to apply a consistent four-year waiting period to most Australian Government payments and concession cards.
• During negotiations over legislation for this budget measure in 2018, the Government made a number of concessions. These were included in the Social Services and Other Legislation Amendment (Promoting Sustainable Welfare) Act 2018.
• The measures proposed in the Bill were announced in the 2021–22 Budget.
• Opponents of extensions to the NARWP argue that it exposes newly arrived residents and their children to a risk of hardship. Supporters argue that it is fair and reasonable to expect new migrants to support themselves and their children when they arrive.

Purpose of the Bill

The purpose of the Social Services Legislation Amendment (Consistent Waiting Periods for New Migrants) Bill 2021 (the Bill) is to amend the Social Security Act 1991 (the SS Act), the Social Security (International Agreements) Act 1999, the A New Tax System (Family Assistance) Act 1999 (the FA Act) and the Paid Parental Leave Act 2010 (the PPL Act) to:

• extend the Newly Arrived Resident’s Waiting Period (NARWP) from two years (104 weeks) to four years (208 weeks) for Carer Payment, Parental Leave Pay (PLP) and Dad and Partner Pay (DaPP)
• extend the NARWP from one year (52 weeks) to four years (208 weeks) for Carer Allowance and Family Tax Benefit (FTB) Part A
• introduce a NARWP of four years (208 weeks) for FTB Part B
• extend the NARWP from two years (104 weeks) to four years (208 weeks) for the Low Income Health Care Card and Commonwealth Seniors Health Card and
• remove the redundant two year (104 week) qualifying residence period for Parenting Payment and make a number of other minor technical and consequential amendments.

If the Bill passes Parliament and receives Royal Assent before 3 December 2021, the changes will apply from 1 January 2022 and affect new permanent residents and some temporary visa holders. If the Bill is not passed prior to 3 December 2021, the measures will take effect on the first 1 January or 1 July to occur after one month from Royal Assent.

Structure of the Bills Digest

The first sections of this Bills Digest provide summary information on Parliamentary committee consideration of the Bill, financial implications and the Statement of Compatibility with Human Rights.

The Bills Digest then provides background information on residency requirements and waiting periods for new migrants, followed by consideration of the Bill’s key issues and provisions, and the positions of non-government parties and interest groups.

Committee consideration

The Bill has been referred to the Senate Community Affairs Legislation Committee for inquiry and report by 14 September 2021. Details of the inquiry are at the inquiry homepage.[1]

The Senate Standing Committee for the Scrutiny of Bills has no comment on the Bill.[2] The Parliamentary Joint Committee on Human Rights did not reach a firm conclusion on the Bill stating that further information is required.[3]

Financial implications

According to the Explanatory Memorandum, the changes in the Bill are expected to result in total net savings of around $672 million over five years from 2020–21 to 2024–25.[4]

Table 2 sets out the savings anticipated from each Schedule, showing that the changes to FTB NARWPs will have the most significant fiscal impact.

Table 2: financial impact of each Schedule to the Bill

Measure	Savings over the forward estimates (DSS administered savings only)
Schedule 1—Social security amendments	$64.9 m
Schedule 2—Family assistance amendment	$515.5 m
Schedule 3—Paid parental leave amendments	$71.9 m

Source: Explanatory Memorandum, Social Services Legislation Amendment (Consistent Waiting Periods for New Migrants) Bill 2021, p. 5.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[5]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights did not reach a firm conclusion on whether the Bill is compatible with Australia’s human rights obligations and has sought more information from the Minister.[6]

The Committee noted that the measure engages and limits the rights to social security, adequate standard of living, health, maternity leave and equality and non-discrimination as well as the rights of the child. It raised questions relating to whether the measure’s limitation of these rights was in pursuit of a legitimate objective and was proportional:

The committee considers the objectives of ensuring a financially sustainable social security system and targeting those most in need may be capable of constituting legitimate objectives, although some questions remain as to whether this measure would, in practice, promote general welfare for the purpose of international human rights law. Regarding proportionality, the committee notes that while the measure appears to be accompanied by an important safeguard, notably the broad range of exemptions to the waiting period, questions remain as to whether this safeguard is sufficient in practice and whether there are less rights restrictive alternatives.[7]

Background

Income support payments are generally restricted to permanent residents and Australian citizens who are residing permanently in Australia. In addition, most of those who arrive as permanent migrants are not able to claim income support payments straight away. There are two ways the government delays access to payments:

• qualifying residence requirements—to qualify for payment, most claimants for the Age Pension and Disability Support Pensions must have resided in Australia for at least ten years with at least one consecutive period of five years or more.[8] The other example is the Parenting Payment which has a shorter two-year (104 weeks) qualifying residence requirement[9]
• NARWP—a waiting period is applied to qualified claimants for income support payments. The NARWP applies to people without a minimum period of residence in Australia. This minimum varies by payment.[10]

The rules for NARWPs are complicated. Australian citizens are exempt, as are refugees and former refugees. There are a number of other exemptions which can vary by visa category, with some applying to particular payments (such as Special Benefit).[11] To add an extra layer of complexity, the rules have changed over time and migrants who were granted a visa before the change may be eligible for payment under the old rules.[12]

Another tool the Australian Government uses is the Assurance of Support scheme. Under the scheme Australian residents make a legally binding commitment to cover the cost of certain social security payments paid to migrants for a period after the migrant’s arrival. An Assurance of Support period can be 12 months, two years or ten years.[13] The Department of Home Affairs requires an Assurance of Support for some visa types.

Rationale for the NARWP

In a 2010 paper, Australian legal academic Ben Saul outlined the thinking behind the NARWP:

Conceptually the waiting periods rest upon a political judgment that ‘new’ members of the Australian community naturally possess a lesser entitlement to social security than more ‘settled’ members of the community. That judgment in turn rests upon a set of additional assumptions: 1) that ‘full’ membership of the community is ‘earned’ over time, rather than immediately enjoyed; 2) that new members are expected to make positive economic contributions before they are a ‘drain’ on the system; 3) that the immediate costs of resettlement should be borne by the migrant rather than by the Australian community; and 4) that waiting periods remove the incentive to migrate in order to receive welfare benefits.[14]

Opponents of policies such as the NARWP sometimes refer to the approach as ‘welfare chauvinism’.[15] Welfare chauvinism has been defined as ‘the opinion that immigrants are less entitled to welfare benefits and services than the native population’.[16]

Some supporters of these kinds of policies have argued that they enable governments to maintain public support for high levels of immigration. In the United States, classical liberal advocates of open immigration policies have sometimes argued that popular resistance can be defused by ‘building a wall around the welfare state, not around the country’.[17] In Australia, Chris Berg of the Institute of Public Affairs argued that Australia’s NARWP embodies this approach and could help enable a more liberal approach to immigration.[18] However, some supporters of the NARWP also favour a more restricted immigration intake.[19]

Payments and cards with a NARWP

Since 1 January 2019, almost all Australian Government payments have either a qualifying residence requirement or a NARWP. An exception is Family Tax Benefit Part B (the current Bill seeks to change this).[20]

As shown in Table 3, NARWPs vary from one year (52 weeks) to four years (208 weeks). The Bill seeks to apply a single waiting period of four years (208 weeks) to all payments.

Table 3: Australian Government payments with NARWPs by duration

52 weeks	104 weeks	208 weeks
Carer Allowance	Carer Payment	JobSeeker Payment
Family Tax Benefit Part A	Parental Leave Pay	Youth Allowance
	Dad and Partner Pay	Parenting Payment
		Special Benefit
		Austudy
		Mobility Allowance
		Pensioner Education Supplement
		Farm Household Allowance
		Commonwealth Seniors Health Card
		Low Income Health Care Card

Source: Services Australia (SA), A guide to Australian Government payments 1 July 2021 to 19 September 2021, SA, Canberra, 2021.

Exemptions from the NARWP

Some newly arrived migrants are exempt from the NARWP. These include:

• Australian citizens
• refugees or former refugees
• family members of refugees or humanitarian migrants (where the person is still a family member when they claim, or where the refugee has died, the person was a family member immediately before the refugee's death).[21]

There are a number of other exemptions that apply to specific payments. These are shown in Appendix A.

A newly arrived migrant can also be exempt from the NARWP for Special Benefit and the Low Income Health Care Card if they have experienced a substantial change in circumstance beyond their control since the start of the NARWP, and are in financial hardship.[22]

New Zealand citizens

Generally, temporary visa holders are not affected by the NARWP because they are not eligible for social security or family payments. An exception to this is any New Zealand citizen who holds a Special Category visa (SCV).

New Zealand citizens with a valid New Zealand passport do not need to apply for a visa before coming to Australia. Those who are eligible are issued a temporary visa — the SCV subclass 444.[23] This visa allows the person to remain in Australia indefinitely and has no work restrictions.

Special social security rules apply to New Zealand citizens who enter Australia on a SCV. The rules that apply depend on when the person arrived in Australia.

Up until 26 February 2001, the SS Act treated SCV holders as permanent residents. However, after 26 February 2001, the social security rules for SCV holders changed and most SCV holders arriving after this date were no longer treated as permanent residents.[24]

SCV holders who resided in Australia prior to the change are still treated as permanent residents. These SCV holders are known as protected SCV holders.[25] Protected SCV holders are eligible for the same range of payments as Australian citizens and holders of permanent visas.

Protected SCV holders are subject to a two-year (104 week) NARWP for working age payments (such as JobSeeker Payment), Carer Payment, Low Income Health Care Card and Commonwealth Seniors Health Care Card. They are not subject to a NARWP for Carer Allowance, Family Tax Benefit Part A, Parental Leave Pay, Dad and Partner Pay or Parenting Payment.[26]

Other SCV holders (non-protected SCV holders) are not treated as permanent residents and have limited access to benefits.[27] Non-protected SCV holders are eligible for Special Benefit, the Low Income Health Care Card, Commonwealth Seniors Health Card, FTB-A, FTB-B, PLP and DaPP.

Non-protected SCV holders are subject to a two-year (104 week) NARWP for the Low Income Health Care Card and Commonwealth Seniors Health Care Card. They are not subject to a NARWP for FTB-A, PLP and DaPP.[28]

Non-protected SCV holders who have lived in Australia for a continuous period of at least ten years since 26 February 2001 can access a once-only payment of JobSeeker Payment or Youth Allowance for a maximum continuous period of six months.[29] The six-month period does not start until any relevant waiting and/or preclusion/exclusion periods have been served and payments commence. Transfer between payments is not permitted under this residence exemption.[30]

History

Up until the early 1990s, permanent migrants were subject to qualifying residence periods for pensions but no waiting periods for social security benefits such as unemployment and sickness benefits. In 1975 the Henderson Commission of Inquiry into Poverty recommended that pensions should be available to all permanent residents.[31]

Proposals to restrict new migrants’ access to income support emerged in the late 1980s.[32] During this period public support for immigration declined with surveys showing an increasing proportion of survey respondents saying the Government was allowing too many migrants.[33]

Opposition to immigration levels reached a peak during the recession of the early 1990s.[34] The 1988 FitzGerald Report on immigration reported that some Australians believed immigration policies had created ‘an underclass of Australians who are propped up by a skewed social security system’.[35]

When it was first introduced in 1993 the NARWP was set at six months (26 weeks) and applied only to unemployment and sickness payments.[36] Incremental extensions to the NARWP became a source of budget savings. Now many payments have a four-year waiting period.

1988–90: Coalition policy proposals

In 1988 the Coalition policy document Future directions outlined a general principle that ‘Australia should not admit for settlement people who would represent an economic burden to Australia through inordinate claims on welfare, health or other resources …’[37]

The Coalition went to the 1990 federal election promising that ‘new migrants (excluding refugees), will not have access to unemployment, sickness benefits or invalid pensions for 12 months after arrival in Australia’.[38] According to a 1989 policy statement:

Migrants coming to work in Australia (excluding refugees) should be expected to support themselves for at least 12 months. Illegal migrants should not be entitled to any benefits including legal aid.

Except where reciprocal bilateral treaties otherwise provide (i.e. New Zealanders), new migrants (excluding refugees), will not have access to unemployment, sickness benefits or invalid pensions for 12 months after arrival in Australia.

Australian residents who wish to sponsor family members or others to reside in Australia under certain categories of the family reunion schemes are required to lodge an Assurance of Support guarantee on their behalf. A Liberal/National Government will strictly enforce these guarantees.

The Secretary of the Department of Social Security will have the power to exempt persons in cases of extreme hardship.[39]

When a Greek community group criticised the proposal, Opposition social security spokesman David Connolly argued that the policy merely enforced existing assurance of support guarantees.[40]

The Coalition’s policy on waiting periods was part of a broader plan to reduce government spending. Their Economic action plan estimated that the 12-month residency requirement would produce savings of $45 million.[41] The Labor Government contested this and released an estimate of savings by the Department of Finance of $32 million.[42]

1991: Coalition Fightback! policy proposals

The Coalition strengthened its position in a 1991 Fightback! policy document by announcing plans for a two-year waiting period:

The Coalition will not permit future migrants access to benefits for two years after they first arrive, unless they are given refugee or humanitarian entry status. Access to Family Allowances will however be maintained.

• The Department of Social Security has estimated the total value of social security payments made in 1990-91 to overseas born clients who have been in Australia for two years or less to be $399 million. This did not include Family Allowance nor Family Allowance Supplement.
• The Coalition's immigration program will be structured in such a way to minimise the number of new entrants who would go onto Special Benefits if their access to social security was restricted, resulting in a saving of $250 million would be achievable.[43]

The Labor Government contested the Opposition’s savings claim and released an alternative estimate by the Department of Finance that showed full savings would not be reached until the third year of implementation.[44]

Then Prime Minister Paul Keating attacked the policy saying ‘in a society with one of the most sophisticated and effective social security systems in the world, the Tories want to introduce measures characteristic of societies in decay’. As part of a list of measures he added ‘they'll make migrants wait two years before they can claim benefits of any kind’.[45]

1992: Keating Labor Government introduces six-month waiting period

As part of the 1992–93 Budget, the Keating Labor Government announced a six-month (26 week) waiting period for unemployment and sickness payments. The measure excluded refugees and humanitarian migrants and allowed access to Special Benefit for those who suffered hardship during the waiting period.[46]

Labor Minister for Immigration, Gerry Hand, stated that ‘immigration should neither add to net levels of unemployment nor push new arrivals into dependency on government support beyond what other residents can expect’.[47]

With unemployment high due to the recession, the then Minister for Social Security, Neal Blewett, supported the Immigration Minister’s position and voiced concern in Cabinet about the impact of immigration on the social security budget with ‘one in four immigrants over the last two years on benefits’.[48]

Shadow Minister for Immigration, Philip Ruddock, claimed that Labor had adopted the Coalition’s policy and argued that the waiting period should be extended to two years as proposed in Fightback![49]

The six-month waiting period was legislated in the Social Security Legislation Amendment Act (No. 3) 1992.

The estimated savings from this measure were $6.75 million in the first year and $29.10 million in the second year.[50] The smaller savings estimates for the Labor policy are a result of two differences from the proposed Coalition policy — the shorter waiting period and the more limited number of payments affected.

1993–1996: Coalition proposes a two-year waiting period

In opposition, the Coalition continued its support for a two-year waiting period. In a 1993 policy document, the Coalition argued:

The immediate availability of social security benefits to new arrivals has been a significant ‘pull factor’, attracting people who could achieve a higher standard of living than they could in their country of origin.[51]

In 1996, before the election, the Coalition released Meeting our commitments, a policy document that provided detailed costings. The document announced that under a Coalition Government: ‘Access to welfare benefits for migrants other than refugee and humanitarian migrants will be available after two years’.

The document did not list the payments that would be subject to the two-year waiting period but did state that there would be no waiting period for Family Allowance.

Savings were estimated as $84 million in the first year rising to $252 million and $280 million in the next two years.[52]

1996: Howard Coalition Government introduces a two-year waiting period

In April 1996, the new Minister for Social Security, Jocelyn Newman, announced:

Migrants who enter Australia from today will be subject to a minimum two year waiting period. This will extend the current provision that new migrants should wait 26 weeks before they get access to Social Security payments, which was introduced by the Keating Government.[53]

The Bill for this measure, the Social Security Legislation Amendment (Newly Arrived Resident's Waiting Periods and Other Measures) Bill 1996, applied the waiting period to a broader range of payments than the existing 26-week policy.[54]

The Labor Party opposed the Bill arguing that the changes went beyond what the Coalition promised during the election campaign. In a September 1996 interview Labor Senator John Faulkner said:

We've accepted that the Government campaigned in the election on a two-year waiting period but we have not accepted the sneaky trick of the Government to extend this migrant two-year waiting period to a range of other benefits that weren't anticipated to be included in the first place.[55]

Earlier, Labor Party frontbencher Peter Baldwin said, ‘the Prime Minister and his party believe that this is the sort of thing you can do without significant electoral cost’ and accused the Government of pandering to talkback radio and tabloid media audiences.[56]

The Bill was passed as the Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997.

1998–2018: Removal of exemptions and other changes

Between 1997 and 2018 governments made only minor changes to the NARWP. These included:

• applying the two-year (104 week) waiting period to newly arrived residents from New Zealand[57]
• removing the family member exemption from the NARWP served before Special Benefit is payable[58]
• removing the exemption from the NARWP for social security payments and benefits for new migrants who are family members of Australian citizens or long-time permanent residents.[59]

2016: Controversy over leaked visa reform proposals

In November 2016 a controversy over a Department of Immigration and Border Protection (DIBP) proposal for provisional visas erupted after Fairfax Media published a leaked government document.[60] The proposal would have further delayed migrants’ access to income support.

The document was prepared by the Department of Social Services (DSS) ahead of a meeting between the DSS and DIBP secretaries. It dealt with a larger visa reform proposal, an element of which was to implement a provisional visa stage for all or most permanent visas, removing direct access to permanent residence.

According to the leaked document ‘DIBP are depending on savings from reduced access to social security payments to partially offset what we understand are huge costs of their proposal …’ The document stated:

DSS is concerned that the proposed reforms risk undermining Australia’s social cohesion (and potentially increase the risk factors that may lead to violent extremism) by creating double standards treating migrants and citizens very differently.[61]

Labor’s Shadow Minister for Immigration and Border Protection, Shayne Neumann, noted these comments in a 2018 speech but did not take a position aside from saying: ‘Any proposed changes to Australia's immigration program must not undermine its strength - its non-discriminatory nature’.[62]

2018: Coalition Government attempts to introduce consistent four-year waiting periods

In 2018 the Turnbull Coalition Government increased the NARWP for some payments to four years. Legislation for these changes passed with the support of the Labor Party.

The Government initially proposed a three-year waiting period but later extended this to a proposal for a consistent four-year waiting period. The resulting Act—the Social Services and Other Legislation Amendment (Promoting Sustainable Welfare) Act 2018—represented a compromise.

The Government’s first proposal was included in the 2017–18 Mid-Year Economic and Fiscal Outlook (MYEFO). The Turnbull Coalition Government announced an intention to:

• extend the two-year waiting period on a range of payments to three years
• apply a three-year waiting period to FTB, PPL and Carers Allowance.[63]

These measures were incorporated into the Social Services Legislation Amendment (Encouraging Self-sufficiency for Newly Arrived Migrants) Bill 2018.[64] The Bill was introduced in February 2018 but was not debated in the House of Representatives until November 2018.

In the 2018–19 Budget (released in May 2018) the Government proposed a four-year waiting period:

The Government will achieve savings of $202.5 million over five years from 2017–18 by increasing the waiting period for newly arrived migrants to access certain welfare benefits from three years to four years from 1 July 2018. This measure also clarifies the application of the waiting period and exemptions for certain welfare benefits.[65]

Labor responded by entering into negotiations with the Government. Shadow ministers then announced that they had ‘secured major concessions to protect vulnerable people, families and children’.[66] These concessions included preventing the Government from introducing a waiting period for FTB-B, preventing an increase in the length of the waiting period for Carer Payment and Widow Allowance, and reducing the length of the new waiting periods introduced for a number of other payments (see Table 4).

The Bill was revised to include these changes and renamed the Social Services and Other Legislation Amendment (Promoting Sustainable Welfare) Bill 2018.

Table 4: changes to the NARWP made by the Social Services and Other Legislation Amendment (Promoting Sustainable Welfare) Act 2018

Payment	Changes to the NARWP
	From	To
Newstart Allowancea	2 years (104 weeks)	4 years (208 weeks)
Youth Allowance	2 years (104 weeks)	4 years (208 weeks)
Sickness Allowanceb	2 years (104 weeks)	4 years (208 weeks)
Special Benefit	2 years (104 weeks)	4 years (208 weeks)
Austudy	2 years (104 weeks)	4 years (208 weeks)
Mobility Allowance	2 years (104 weeks)	4 years (208 weeks)
Pensioner Education Supplement	2 years (104 weeks)	4 years (208 weeks)
Farm Household Allowance	2 years (104 weeks)	4 years (208 weeks)
Commonwealth Seniors Health Card	2 years (104 weeks)	4 years (208 weeks)e
Low Income Health Care Card	2 years (104 weeks)	4 years (208 weeks)e
Bereavement Allowancec	None	4 years (208 weeks)
Parenting Paymentc	None	4 years (208 weeks)
Carer Payment	2 years (104 weeks)	2 years (104 weeks)
Widow Allowanced	2 years (104 weeks)	2 years (104 weeks)
Parental Leave Pay	None	2 years (104 weeks)
Dad and Partner Pay	None	2 years (104 weeks)
Carer Allowance	None	1 year (52 weeks)
Family Tax Benefit Part A	None	1 year (52 weeks)
Family Tax Benefit Part B	None	None

1. Newstart Allowance ceased on 20 March 2020 and was replaced by JobSeeker Payment.
2. Sickness Allowance ceased on 20 September 2020.
3. Bereavement Allowance was closed to new entrants from 20 March 2020. It ceased when the bereavement period of all recipients ended (the allowance was paid for up to 14 weeks). Prior to the 2018 changes, Bereavement Allowance and Parenting Payment had two-year residency period requirements rather than a NARWP.
4. Widow Allowance was closed to new entrants on 1 July 2018 and will cease completely on 1 January 2022.
5. 104 weeks for Special Category visa holders.

Source: Department of Human Services (DHS), A guide to Australian Government payments: 20 September–31 December 2018, DHS, Canberra, 2018; Social Services and Other Legislation Amendment (Promoting Sustainable Welfare) Act 2018; Department of Social Services (DSS), Fact Sheet – Cessation of Newstart Allowance, DSS, Canberra, 2020; DSS, Fact Sheet - Cessation of Bereavement Allowance, DSS, Canberra, 2020; DSS, Fact Sheet – Cessation of Sickness Allowance, DSS, Canberra, 2020; DSS, Fact Sheet – Cessation of Widow Allowance, DSS, Canberra, 2020.

In her second reading speech on the Bill, Labor’s Shadow Minister for Families and Social Services, Linda Burney, explained the Opposition’s approach saying, ‘we could not leave this to One Nation and the Senate crossbench to decide’.[67]

Australian Greens’ MP Adam Bandt criticised the Bill in the House of Representatives saying that it would ‘create an underclass of migrants in this society and will result in second-class citizens who will now have to wait longer to get the kind of support that most people—other people in this country—are entitled to’.[68]

A number of crossbench senators criticised the agreement between the Government and Opposition claiming that the Bill would not have passed the Senate without Labor’s support.[69] Centre Alliance Senator Stirling Griff told the Senate that the ‘Government and Labor are treating migrants as piggy banks by doubling the amount of time they will have to wait for benefits, without any thought whatsoever to the hardship this can cause’.[70]

Commenting on Labor’s position, Senator Pauline Hanson remarked ‘I am so proud of the Labor Party that you're now going to support this because you can see some common sense.’[71] Commentary on the One Nation web site claimed the Bill’s passage as a win for One Nation because ‘the Labor party publicity admitted that it was the influence of One Nation that forced them to support the legislation’.[72]

Key issues and provisions

Extensions to the duration and scope of the NARWP have become a source of budget savings. When a six-month waiting period was first applied in the early 1990s, the Sydney Morning Herald reported that the Department of Finance had been pushing for the measure against resistance from the Social Security and Immigration departments.[73] It is possible that future governments will seek to achieve further savings by continuing to incrementally extend the NARWP.

Effect of the Bill

As shown in Table 5, the major effect of the Bill is to lengthen the NARWP for Carer Payment, Carer Allowance, FTB-A, PLP and DaPP; and to apply a NARWP to FTB-B.

As part of the 2018–19 Budget, the Coalition Government sought to apply a four-year waiting period for these payments with the ‘Encouraging Self-Sufficiency for Newly Arrived Migrants — extension’.[74] However, as discussed above, during negotiations over legislation for this measure, the Government made a number of concessions. With the amendments proposed in the Bill, the Government is again seeking to implement a four-year waiting period for these payments.

Table 5: key changes to NARWPs proposed by the Social Services Legislation Amendment (Consistent Waiting Periods for New Migrants) Bill 2021

Payment	Proposed changes to NARWPs
	From	To	Items in Bill
Carer Payment	104 weeks (2 years)	208 weeks (4 years)	Schedule 1, items 5–6 Amends: Social Security Act 1991
Carer Allowance	52 weeks	208 weeks	Schedule 1, items 13–14 Amends: Social Security Act 1991
Family Tax Benefit Part A	52 weeks	208 weeks	Schedule 2, items 2–5 Amends: A New Tax System (Family Assistance) Act 1999
Family Tax Benefit Part B	None	208 weeks
Parental Leave Pay	104 weeks	208 weeks	Schedule 3, items 1–6 Amends Paid Parental Leave Act 2010
Dad and Partner Pay	104 weeks	208 weeks

The Department of Social Services estimates that in 2024–25, around 45,000 families will be affected by the proposed FTB NARWP changes and 13,200 individuals will be affected by the changes to other waiting periods.[75] According to data provided by the Department of Social Services, the greatest impact would be on families who would be denied access to Family Tax Benefit. The numbers affected are shown in Table 6.

Table 6: estimated number of people affected by payment type

Payment type	2021–22	2022–23	2023–24	2024–25
Carer Payment	0	0	632	1 859
Carer Allowance	0	1 017	3 643	7 295
Parental Leave Pay	0	0	1 388	3 902
Dad and Partner Pay	0	0	641	1 951
Family Tax Benefit Part A (families)	0	6 307	21 580	39 754
Family Tax Benefit Part B (families)	4 950	16 892	31 106	45 020

Note: These figures cannot be totalled as payments are not mutually exclusive and a person may be affected in relation to more than one payment type. Figures are based on the 2021–22 Migration Program planning levels and reflect future permanent visa grants.

Source: DSS, Submission to Senate Community Affairs Committee, Inquiry into the Social Services Legislation Amendment (Consistent Waiting Periods for New Migrants) Bill 2021, 30 July 2021, p. 5.

Currently the NARWP for the Low Income Health Care Card and Commonwealth Seniors Health Card is four years (208 weeks). However, SCV holders and Temporary Partner visa holders currently have a two-year (104 week) waiting period for these concession cards. The Bill extends the NARWP for these visa holders to four years (208 weeks).

The Bill also makes a number of technical and consequential amendments. These are adequately explained in the Explanatory Memorandum.

The risk of hardship

Opponents of extensions to the NARWP have argued that it exposes newly arrived migrants and their children to a risk of hardship.[76] During debate on the 2018 Bill Greens Senator Nick McKim claimed that the measure would ‘inflict poverty, misery, destitution and homelessness on many thousands of people who are trying to get by and who have come here to make a contribution to our community’.[77]

Defending Labor’s decision to negotiate amendments to the 2018 Bill, Shadow Minister for Families and Social Services Linda Burney argued that the Government’s proposed changes ‘would have caused significant hardship for thousands of vulnerable individuals, families and children’.[78]

The Government has not presented any data or research to rebut claims that increases in the NARWP are likely to lead to hardship. However, the Senate Committee examining the 2018 Bill noted that the exemptions from the NARWP preserved by the Bill would ‘maintain a safety net for migrants who find themselves in need and are supported by departmental processes to refer people to appropriate support services and prioritise applications where necessary’.[79]

In a submission to the Senate committee inquiry into the 2018 Bill, the Australian Council of Social Service (ACOSS) argued that the safety net for newly arrived migrants is not adequate, arguing that it was difficult for newly arrived migrants to access Special Benefit and, even when they could, were likely to find themselves in deep poverty.[80] In its submission on this Bill, ACOSS argued that:

The denial of Family Tax Benefit for four years from when a permanent visa is granted will hurt children born in Australia who have migrant parents. These children will likely live in poverty as a result, as Family Tax Benefit is a critical payment for low-income families, including families in low-paid work.[81]

Fairness

Defenders of the NARWP have argued that it is reasonable to expect new migrants to support themselves and their children.[82] In the Senate, One Nation’s Pauline Hanson defended the 2018 Bill saying:

I don't think it is unreasonable to ask these people to wait an extra year. The Australian people are paying taxes in this country for migrants who come here of their own choice. I don't think it's unreasonable to say to the migrants: 'Make sure you can provide for yourself. You've really given nothing to this country, so don't expect to come here and have all the handouts.'[83]

In contrast, in a submission on the 2018 Bill the Brotherhood of St Laurence cited the Department of Home Affairs’ claim that ‘overall, migrants contribute more in taxes than they consume in benefits and government goods and services’.[84]

Waiting periods for labour-force and student payments compared to those for carers

Prior to 2018, changes to waiting periods focused on income support payments intended to support those not working or who were undertaking study (such as JobSeeker Payment and Austudy). The 2018 changes saw the extension of waiting periods to new categories of payments. These were: to those caring for someone with disability or illness, to supplementary payments for carers (including those who work), and to payments for families. This marked a change from expecting new migrants in the labour force to be self-sufficient to also expecting new migrants to care for children, disabled and the sick without accessing any financial assistance from the Australian Government.

While in many cases having children is planned, in some cases it is unexpected. The onset of illnesses or accidents giving rise to disability can also be unexpected and sudden. Partly in recognition of this fact, the ten-year residency requirement for access to Disability Support Pension does not apply where the person’s inability to work arises when they were an Australian resident.[85] The NARWP for Carer Payment and Carer Allowance applies regardless of whether a person’s caring responsibilities have only arisen as a result of a sudden, unexpected event or illness.

Existing exemptions remain

According to the Explanatory Memorandum for the Bill, existing exemptions from the NARWP will continue to apply to payments that are currently subject to the NARWP and will also apply to FTB‑B.[86]

Behavioural change

As raised in the Bills Digest for the Social Services Legislation Amendment (Encouraging Self-sufficiency for Newly Arrived Migrants) Bill 2018, the proposed changes to NARWPs could lead to certain behavioural change from migrants.[87] As Australian citizens are exempt from the NARWP, the Bill creates an additional incentive for new migrants to seek Australian citizenship.

Currently, to become a citizen by conferral, the general residency requirement must be met (unless exempt). This requires an individual to:

• have been living in Australia on a valid visa (including temporary visas) for the past four years and
• have been a permanent resident or eligible New Zealand citizen for the past 12 months and
• not have been away from Australia for more than 12 months in total over the previous four years, including no more than 90 days in total for the previous 12 months.[88]

Unlike the requirements for the NARWP, the citizenship residency requirement only has a requirement for an individual to have been a permanent resident for 12 months. Those who have been in Australia on temporary visas prior to being granted a permanent visa could meet the citizenship requirement much faster than a four-year NARWP.

While there is an application fee for citizenship by conferral, the amount—$490 for an adult—could be much less than the benefit gained by a person being able to access payments such as FTB or PPL.[89]

Key provisions

Social Security Act 1991

Item 5 of Schedule 1 to the Bill amends the NARWP requirement for Carer Payment at paragraph 201AA(1)(b) of the SS Act so that it applies to those who have not been an Australian resident and in Australia for 208 weeks. The current requirement is 104 weeks.

Item 6 increases the NARWP duration for Carer Payment at paragraph 201AB(b) from 104 weeks to 208 weeks.

Item 8 repeals paragraph 500(1)(d) which provides a 104-week residency requirement for Parenting Payment. The residency requirement is redundant due to a 208-week NARWP also applying to Parenting Payment. Items 9–12 are consequential amendments to item 8 removing notes and provisions relevant to the residency requirement.

Item 13 amends the NARWP requirement for Carer Allowance at paragraph 966(1)(b) so that it applies to those who have not been an Australian resident and in Australia for 208 weeks. The current requirement is 52 weeks.

Item 14 increases the NARWP duration for Carer Allowance at subsection 967(2) from 52 weeks to 208 weeks.

Subitem 17(1) provides for the application of the proposed amendments affecting Carer Payment and Carer Allowance to apply in relation to individuals who become the holder of a permanent visa on or after commencement. However, under subitem 17(2), the proposed amendments to the Carer Payment NARWP do not apply to those who, on or after commencement of the changes, become the holder of one of the following visas: subclass 117 (Orphan Relative), subclass 837 (Orphan Relative), subclass 115 (Remaining Relative) or subclass 835 (Remaining Relative). These visa holders will still be subject to a 104-week NARWP. Application provisions under item 21 of Schedule 1 to the Social Services and Other Legislation Amendment (Promoting Sustainable Welfare) Act 2018 provide that the Carer Allowance NARWP does not apply to these visa subclasses.

Subitem 17(4) also provides that the amendments in Part 1 of Schedule 1 do not apply to special category visa holders who are protected SCV holders.

Subitem 17(5) provides that the amendments to the NARWP for the Commonwealth Seniors Health Card and the Low Income Health Card made by the Social Services and Other Legislation Amendment (Promoting Sustainable Welfare) Act 2018 apply in relation to first-time SCV holders on commencement of Part 1 of Schedule 1 to the Bill, unless the person is a protected SCV holder. This means that new SCV holders will be subject to the 208-week NARWP for these concession cards, rather than the previous 104-week waiting period.

Subitem 17(6) provides for the amendments to the NARWP for the Low Income Health Card made by the Social Services and Other Legislation Amendment (Promoting Sustainable Welfare) Act 2018 to apply to those granted a subclass 309 (Partner (Provisional)) or subclass 820 (Partner) visa for the first time on or after the commencement of Part 1 of Schedule 1 to the Bill.[90] This means that new holders of these temporary visas will be subject to a 208-week waiting period for the Low Income Health Care Card rather a 104-week waiting period.

Social Security (International Agreements) Act 1999

Item 18 of Schedule 1 to the Bill repeals subparagraph 10(1)(d)(ii), and item 19 repeals and substitutes subsection 10(2) of the Social Security (International Agreements) Act 1999 to remove references to the residency requirement for Parenting Payment, repealed by item 8.

A New Tax System (Family Assistance) Act 1999

Item 2 of Schedule 2 to the Bill amends subsection 61AA(1) of the FA Act so that a NARWP applies to both FTB-A and FTB-B. Currently, only FTB-A is subject to a NARWP. For days during an individual’s NARWP, their rate of FTB-A or FTB-B is zero.

Items 3–5 extend the duration of any applicable NARWP for FTB from 52 weeks to 208 weeks.

Subitem 6(1) provides for these amendments to apply to those who become the holder of a permanent visa or a temporary visa eligible for Special Benefit on or after the commencement of Schedule 2 to the Bill (this includes temporary partner visas and some temporary humanitarian visas).[91] The amendments will not apply to the following visas: subclass 117 (Orphan Relative), subclass 837 (Orphan Relative), subclass 115 (Remaining Relative) or subclass 835 (Remaining Relative).

Subitem 6(2) provides that the amendments do not apply in relation to a person who on or after 1 January 2019, and before the commencement of Schedule 2 to the Bill, became the holder of a temporary visa eligible for Special Benefit. This means that those granted one of these temporary visas after 1 July 2019 but before the commencement of Schedule 2 may be subject to a 52-week NARWP and will not be subject to a 208-week NARWP if they are later granted a permanent visa.

Paid Parental Leave Act 2010

Items 1–3 of Schedule 3 to the Bill extend the duration of the NARWP that applies for PPL—set at paragraphs 31A(2)(e) and 31A(3)(d) and subsection 31A(4) of the PPL Act—from 104 weeks to 208 weeks.

Items 4–5 extend the duration of the NARWP that applies for DaPP—set at paragraphs 115CBA(2)(e) and 115CBA(3)(d)—from 104 weeks to 208 weeks.

Subitem 7(1) provides for the amendments to the PPL NARWP to apply to those who become the holder of a permanent visa or a temporary visa eligible for Special Benefit on or after the commencement of Schedule 3 to the Bill.[92] The amendments will not apply to the following visas: subclass 117 (Orphan Relative), subclass 837 (Orphan Relative), subclass 115 (Remaining Relative) or subclass 835 (Remaining Relative).

Subitem 7(2) provides that the amendments to the PPL NARWP do not apply in relation to a person who on or after 1 January 2019, and before the commencement of Schedule 3 to the Bill, became the holder of a temporary visa eligible for Special Benefit. This means that those granted one of these temporary visas after 1 July 2019 but before the commencement of Schedule 3 may be subject to a 104-week NARWP but will not be subject to a 208-week NARWP if they are later granted a permanent visa.

Subitem 7(3) provides for these amendments to the DaPP NARWP to apply to those who become the holder of a permanent visa or a temporary visa eligible for Special Benefit on or after the commencement of Schedule 3 to the Bill.[93] The amendments will not apply to the following visas: subclass 117 (Orphan Relative), subclass 837 (Orphan Relative), subclass 115 (Remaining Relative) or subclass 835 (Remaining Relative).

Subitem 7(4) provides that the amendments to the DaPP NARWP do not apply in relation to a person who on or after 1 January 2019, and before the commencement of Schedule 3 to the Bill, became the holder of a temporary visa eligible for Special Benefit. This means that those granted one of these temporary visas after 1 July 2019 but before the commencement of Schedule 3 may be subject to a 104-week NARWP but will not be subject to a 208-week NARWP if they are later granted a permanent visa.

Policy position of non-government parties/independents

At the time of writing, non-government parties and independents have not commented on the Bill. The background section of this Bills Digest discusses the policy positions political parties and independents have taken on similar Bills in the past.

Position of major interest groups

Most interest groups oppose the measures with some such as ACOSS and the Committee for Economic Development of Australia (CEDA) calling for a reduction in NARWP.[94] Responding to the budget announcement, CEDA senior economist Gabriela D’Souza said: ‘To me it seems like a blatant money grab from people who can’t vote’.[95]

Not all groups were opposed to the measure. A submission by the National Council of Women Australia stated that the organisation: ‘supports the changes contained in the bill providing a consistent approach across all relevant payments’.[96]

Lack of reasonable protection against risk

The Government’s position is that if someone chooses to migrate to Australia permanently, it is their responsibility to make sure they can support themselves and their families for a reasonable period of time after they arrive.[97] Some interest groups argue that there are some major risks beyond migrants’ control.

Carers Australia is ‘opposed to the principle of waiting periods for carers that are set on the basis of length of Australian residency’ arguing:

Anyone can become a carer at any time. Migrants seeking to make Australia their home are not anticipating that this will happen to them. It may come about as a result of a serious accident to a family member or the diagnosis of a serious illness; possibly affecting the major income earner of the family. It may occur through the birth of a child with a disability. In many cases it may result in the loss of the carer’s own employment due to providing increasing or constant care. At the same time, it will involve the necessity to meet a range of additional costs, including medical costs.[98]

Impact on women and children

According to Settlement Services International (SSI):

The bulk of the savings of over $500m come from cutting the support to families which suggests that it is parents, especially sole parents or single income households, and their children who are most likely to be impacted by these proposed changes.[99]

ACOSS also highlighted the impact on women and children arguing that the measure would ‘target women (and their children) as the payments affected are overwhelmingly received by women providing care’.[100] The ACOSS submission also argued that denying women family and carer payments would prevent them from leaving abusive partners and expose them to the risk of domestic violence.[101]

Long term impacts of child poverty

The Centre for Excellence in Child and Family Welfare argued that additional waiting periods would increase child poverty and that this, in turn, would lead to long-term harms:

Imposing additional waiting periods to access social security benefits will push already at-risk families to the brink. Without the critical payments of FTB Part A which is paid per child, and the FTB Part B which is paid to low income families (many of whom are single parents), many children will be forced to live in poverty. The impact of poverty on young children in already highly vulnerable families has been linked to negative impacts on children’s health, social, emotional and cognitive development and educational outcomes.[102]

Impact on skills mismatch

Some groups argue that access to unemployment payments would give new migrants a better chance of finding a job that matched their skills rather than taking the first available job. They argue that this would benefit both migrants and the Australian economy.

For example, prior to the release of the 2021–22 Budget, CEDA recommended reducing the NARWP for unemployment benefits to six months ‘to give permanent skilled migrants a better chance to find the right job’.[103]

SSI opposed the budget measure when it was announced. CEO Violet Roumeliotis argued that increased wait times ‘would undermine efforts for new arrivals to find suitable long-term employment’. SSI endorsed CEDA’s argument that the NARWP should be reduced.[104]

Appendix A: selected NARWP exemptions by benefit

Some newly arrived migrants are exempt from the NARWP for all payments and cards. These are:

• Australian citizens
• refugees or former refugees
• family members of refugees or humanitarian migrants (where the person is still a family member when they claim, or where the refugee has died, the person was a family member immediately before the refugee's death).[105]

Other exemptions apply to particular payments. Some of the main exemption categories are set out in Table A1.

Table A1: current exemptions from the NARWP by payment category

Benefit	Carer visas, subclass 104 or 806(a)	Carers visa, subclass 116 or 836(b)	Orphan relative & remaining relative visas(c)	Temporary Humanitarian visa(d)	Principal carer/lone parent(e)	Special Category Visa (SCV)(f)
Family Tax Benefit Part A			✓	✓		✓
Carer Allowance		✓	✓
Carer Payment	✓	✓
Parental Leave Pay			✓	✓		✓
Dad and Partner Pay			✓	✓		✓
JobSeeker Payment					✓
Youth Allowance (Student & apprentice)
Youth Allowance (other)					✓
Parenting Payment					✓
Special Benefit				✓
Austudy
Mobility Allowance
Pensioner Education Supplement
Farm Household Allowance					✓
Commonwealth Seniors Health Card				✓
Low Income Health Care Card				✓

Notes:

1. These visas could be issued to carers. Visa subclasses 104 (Preferential Family) and 806 (Family) have been closed to new applicants since November 1999.
2. Visa subclasses 116 and 836 are the currently available carer visas.
3. Visa subclass 117 and 837. These visas allow a child who is single to stay with a relative if their parents are dead, cannot care for them or cannot be found.
4. This exemption is given to holders of a number of temporary humanitarian visas.
5. This exemption is given to a person who is the principal carer of one or more children; is not a member of a couple; and at the start of the person's current period of Australian residence, the person was not a lone parent.
6. Special Category Visa (SCV) is a temporary visa that allows New Zealand citizens to visit, study, stay, and work in Australia.

Sources: Services Australia (SA), ‘Exemptions to the newly arrived resident's waiting period’, SA website, last updated 8 April 2021; DSS, ‘3.1.2.43 Exemptions for the NARWP’, Social security guide, DSS website, last reviewed 20 March 2020; Explanatory Statement, Migration Amendment Regulations 1999 (No. 13); Department of Home Affairs (DHA), ‘Visa list’, DHA website, 18 March 2021.