Chapter 1
Provisions of the Legislation
1.1 The Social Security Act 1991 was amended by the Social
Security Legislation (Newly Arrived Resident's Waiting Periods and Other
Measures) Act 1997. That legislation came into effect on 4 March
1997.
1.2 It extended from 6 months to 2 years the restricted access to a
range of benefits for all migrants except those in the humanitarian
and refugee categories. Access to Medicare and to Family Payment was
available, although access to health care cards was not. This policy
indirectly favours people with children. [1]
Access to Medicare may be ineffective if people are unable to afford
to purchase medication. [2]
1.3 The provisions of the Social Security Act 1991 do allow access
to Special Benefit for people who have no other means of supporting
themselves. Section 739A(7) states that:
"Neither subsection (1) nor (2) apply to a person if the person,
in the [Department of Social Security's] Secretary's opinion, has
suffered a substantial change in circumstances beyond the person's
control."
1.4 Subsequent to the legislation, guidelines were developed under
Section 739C. Those guidelines, gazetted on 21 March 1997, stated the
purpose of the guidelines to be:
"These Guidelines are intended to provide guidance to the Secretary
in forming an opinion, for the purposes of subsection 739A(7) of the
Act, in relation to the circumstances in which special benefits may
be accessible during a newly arrived resident's waiting period."
1.5 Section 4 of the Guidelines stated that:
Special benefit may be paid if the Secretary is satisfied that the
claimant:
a) has available funds of less than the equivalent of 2 weeks' benefit…;
and….
b) Demonstrates that financial or in-kind support cannot be obtained
from any other source.
1.6 Section 6 of the Guidelines listed the circumstances in which special
benefit could be paid.
1.7 Hence, the exceptional circumstances regime provides a safety net.
Similar provisions were made through the Secretary's guidelines issued
in July 1997 after the gazetted guidelines were disallowed.
1.8 The Committee notes that migrants are allowed into Australia on
the basis of their acceptance of government conditions. Many thousands
of people would like to be able to migrate. Those who have made a decision
not to progress with their applications because they do not believe
they will be able to support themselves for up to two years have made
a responsible choice. This choice should not be devalued by providing
benefits to people who do not responsibly assess their capacity to maintain
themselves. Further, it is important that the taxpaying community does
not have additional burdens imposed through providing for those who
have effectively made a decision not to abide by the guidelines.
Limited access to other services
1.9 State and Territory governments also provide a range of concessions
(including transport concessions) to people on different income support
benefits or pensions which increases the burden on taxpayers for people
who have undertaken to look after themselves but failed to do so. With
no official status as unemployed, sole parent, full time student etc,
but also with limited finances, many migrants may find it difficult
to attend language classes or seek work over a wide geographic area
unless they have adequate self support or sponsorship. [3]
Persons most affected
1.10 Although it was apparent that some sponsored migrants could experience
difficulties, it seems that the persons most likely to be in need of
some assistance are independent migrants who have accepted skills, but
who have limited financial resources and, in many cases, few family
or friends to provide longer term support in the event of no employment
being available. This point was made most concisely by the submission
from Legal Aid Commission of NSW:
"From our observations, the clients who approach Legal Aid for
assistance, especially in relation to an application for Special Benefit,
had a number of characteristics in common.
Most have arrived in Australia as independent migrants, having passed
a strict points test based on their skills, qualifications and/or work
experience.
As a result, they had no family and few acquaintances in Australia
on whom they could rely for assistance upon their arrival.
The clients anticipated that their skills would assist them to find
work in Australia.
Information regarding the availability of work from the Australian
immigration authorities in the overseas post was often unclear, misleading
and difficult to obtain.
They had spent large amounts of money, often constituting their life
savings, to apply for migration to Australia. Expenses included application
fees, English testing, medical examinations and air fares.
They experienced long waits before the migration application was approved.
They were unable to bring enough money from their country of origin
due to a variety of factors including poor exchange rates, relatively
low rates of pay in their own country and limits imposed on the amount
of money they could lawfully bring with them from their country of origin.
A combination of these factors has meant that many newly arrived migrants
find themselves in a desperate financial situation once they arrive
in Australia and they are unable to find employment. Their funds are
often depleted within a few months due to the costs of establishment."
[4]
1.11 The Committee believes it is important for the Department of Immigration
and Multicultural Affairs (DIMA) to provide realistic advice to prospective
migrants especially those who have already made an application to migrate.
1.12 According to the submissions made by various organisations during
the Committee's hearing on the Social Security Legislation Amendment
(Newly Arrived Resident's Waiting Periods and Other Measures) Bill 1996,
it was expected that a number of adverse consequences might follow.
In order to address these and related concerns – such as the limited
access by migrants to various labour market programs – recommendations
were made by the Committee that the impact of the restrictions be reviewed
by relevant departments. [5] The Department
of Social Security organised a seminar in January 1998 to consider the
impacts of the measures. [6]
1.13 Concerns similar to those previously raised to the earlier inquiry
were also raised in submissions and evidence given to the Committee
in the current inquiry. At the time of the hearing in March 1998 the
legislation had been in effect for just over one year. Some 780 persons
affected by the two-year waiting period had applied for special benefit;
some 45% had been successful in their application for this payment.
[7] A number of appeals had been made to the
SSAT and the AAT for a review of decisions made not to grant Special
Benefit. [8]
1.14 The issues of concern include the fact that the need for assistance
is considered to be greatest in the first two years after arrival. Such
assistance is not restricted to payments, and includes help with gaining
employment such as preparing for job interviews and preparing or translating
a cv; and access to a range of employment services. Witnesses stated
that access to employment services was already limited and was expected
to be affected by changes due to come into effect from May 1998. However,
the Committee believes it is important that the needs of newly arrived
migrants do not affect the access of others to employment services at
a time of hight unemployment.
Other factors seen to have a noticeable effect were: ill health, long
term problems, delayed settlement, pressure placed on community organisations,
pressure on other individuals and the revolving door syndrome.
Ill health
1.15 It was suggested in evidence that limited access to adequate food
and shelter may be the outcome of restrictions on access to Special
Benefit. In turn this could have an impact on the health and employability
of migrants and their dependents. Examples given were of one child of
migrants admitted to hospital and kept there because of nutritional
problems, [9] and of the malnutrition of a
successful appellant to the AAT. [10]
Long term problems
1.16 Malnutrition and other problems may have longer lasting effects.
The psychiatric disorder experienced by another appellant was noted
as having been caused directly by his worry and concern that he was
unable to support his family. [11] Therefore
it is important for intending migrants to be aware of government policy
and to accept that they will be bound by it.
Delayed settlement
1.17 In turn, these factors may inhibit the capacity of people to gain
employment or to gain employment appropriate to their skills and qualifications
– the basis on which they were admitted to the country originally.
In addition, the longer it takes for people to obtain employment in
their field of expertise (because of the above emotional, psychiatric
or physical factors or because they have not been given access to assistance
in gaining employment more directly) the greater the chance of skill
loss. The outcome is much the same – deskilled people competing
for jobs at a severe disadvantage in an unfriendly employment environment.
[12] A further effect of lack of access to
assistance in gaining employment was stated as being the exposure of
people to potential exploitation in the community. [13]
Pressure placed on community organisations
1.18 A number of witnesses and submissions also noted that the measures
placed undue pressure on community and charitable bodies such as St
Vincent de Paul, the Salvation Army and other long term or crisis care
services. These organisations provide a wide range of services for disparate
groups in the community. Government funding for crisis services, such
as refuges and shelters, and related meal and similar assistance, is
approximately $23 million per annum across Australia (under services
such as Supported Accommodation Assistance Program). By their nature
crisis services are not geared to the longer term provision of support
or of all support; and most other assistance programs, such as those
operated by the Smith Family, Salvation Army, Red Cross and St Vincent
de Paul and other groups do not aim to meet all needs but to provide
a supplement – to pay a bill, provide some food and clothing, help
with school expenses etc. [14]
Pressure on other individuals
1.19 Although some evidence was provided that people may have been
exploited by the sponsoring party [15] it
was also stated that some sponsors could not afford to maintain those
they sponsored. If this is the case, sponsors need to be aware of the
nature of their responsibility and the obligation they have undertaken.
The issue of sponsorship appears to have been affected by an inability
to enforce the provisions, which can leave a newly arrived person vulnerable
and with limited access to assistance.
1.20 There is also pressure placed on departmental staff and on the
staff of various agencies, community organisations, welfare societies
and like bodies such as St Vincent de Paul. [16]
While some of this pressure might once have been deflected by organisations
such as Legal Aid services, this is no longer possible since funding
for migration matters is not a priority. [17]
The revolving door syndrome
1.21 Organisations also stated that they were placed in the position
of having to deal with people who had already been referred on to them
by others, including the various social workers paid by government departments
to assist people who came to their offices. This put additional pressure
on the human as well as financial resources of community organisations.
[18]
Footnotes
[1] Submission No. 2, Welfare Rights
Centre, para. 6.12.
[2] Submission No. 2, Welfare Rights
Centre, para. 4.3 and Submission No. 3, Salvation Army, p. 1.
[3] Submission No. 2, Welfare Rights
Centre, paras. 1.7, 4.4; Submission No. 3, Salvation Army, p. 2.
[4] Submission No. 8, Legal Aid Commission
of NSW, pp. 2-3. See also Evidence, pp. 32-33 (FECCA).
[5] Legal and Constitutional Legislation Committee,
Report on the Social Security Legislation Amendment (Newly Arrived Resident's
Waiting Periods and Other Measures) Bill 1996, Recommendation 12 and
para. 5.7.
[6] Submission No. 2, Welfare Rights
Centre, para. 1.1.
[7] Evidence, pp. 3, 7 (Department of Social
Security). It was not clear at the hearing whether the number of applications
for benefit represented multiple applications by various individuals;
therefore the extent of the problem was not clearly identified.
[8] Evidence, Department of Social
Security, p. 4 ('…at the moment there are about 18 cases before
the SSAT and I think 26 or 27 before the AAT …') and pp. 23-24
('We actually have had handed up some figures from March last year to
March this year. Whilst these look precise, there could have been developments
in the last few days. In terms of internal reviews by authorised review
officers, 455 were sought in that 12-month period. There have been 210
appeals to the SSAT and 43 appeals to the AAT. Some of them involve
more than one person.').
[9] Evidence, p. 26 (Welfare Rights
Centre).
[10] Evidence, pp. 26, 41 (Welfare
Rights Centre). See also Submission No. 6, NSW Emergency Relief
Forum, p. 3 referring to malnutrition, child neglect and deteriorating
mental health.
[11] Zoarder v DSS, AAT, No. N97/945,
18 February 1998, para. 38. See also Submission No. 2, Welfare
Rights Centre, para. 4.3, paras. 7.13-7.17.
[12] See for example Submission No. 8,
Legal Aid Commission of NSW, para. 5.4.
[13] Evidence, p. 26 (Welfare Rights
Centre); p. 34 (FECCA).
[14] Submission No. 2, Welfare Rights
Centre, paras. 1.5, 2.18; Submission No. 5, FECCA, p. 3.
[15] Submission No. 2, Welfare Rights
Centre, para. 8.5.
[16] Submission No. 6, NSW Emergency
Relief Forum, p. 3.
[17] Submission No. 8, Legal Aid Commission
of NSW, para. 2.2.
[18] Submission No. 2, Welfare Rights
Centre, paras. 4.1-4.3 and Section 5.