Chapter 3
3.1 A number of other issues were also raised, including:
- Whether social security policies were being used to solve problems
with the migration program.
- The nature and application of the guidelines used to determine eligibility
for Special Benefit.
- The attitudes of Department of Social Security/Centrelink staff
- Discrimination
Social Security being used to amend immigration policies
3.2 FECCA and other organisations do not believe that the two year waiting
period is acceptable, believing that the imposition of a two year period
and emphasis on the need for settlement capital (enough funding to survive
for two years or so) is not a matter for social security but for immigration.
[1] The Committee notes that it is important
for migration policies to be re-enforced by social security policies.
3.3 It is argued that, if it is expected that people will need this type
of funding in order to migrate, then any advice on employment options
and general viability of the immigration policy would have to take this
into account.
3.4 The Committee has addressed aspects of this issue in Chapter 2. The
Committee believes that there appear to be some problems with the information
provided by DIMA and, most importantly, in the timing of the provision
of this advice. The Committee does emphasise that information about migration
and what it means must address issues that could have a substantial effect
on attitudes concerning the decision to proceed with migration.
3.5 Linked to this consideration (in some circumstances) is the issue
of the extent to which events which have occurred after a commitment to
migration has been made can be considered to have been events sufficient
to constitute a change in circumstances. Two at least of the AAT decisions
refer to the problems experienced by people in obtaining accurate information
about what was required to live in Australia and indeed the extent to
which the information about skills and qualifications required and acceptable
was appropriate and relevant. [2]
Guidelines
3.6 Section 739A(7) of the Social Security Act 1991 grants power to the
Secretary of the department to make a grant of Special Benefit `if the
person, in the Secretary's opinion, has suffered a substantial change
in circumstances beyond the person's control.' This power must be exercised
in accordance with guidelines - see subsections 737B and 739C.
3.7 The Guidelines gazetted on 21 March 1997 (see Appendix 3) were disallowed
by the Senate on 25 June 1997. In a sense they have been replaced by what
are described as the Secretary's guidelines (see Appendix 4). These do
not have the force of law but should be taken into account by delegates
when making a determination. Decisions not to grant Special Benefit were
made both under the first set of guidelines [3]
and also under the Secretary's guidelines.
3.8 It has been argued that in many cases the interpretation of the guidelines
has been disadvantageous to newly arrived migrants because it has emphasised
that any change of circumstances must have occurred subsequent to arrival
in Australia.
3.9 There is nothing in the legislation requiring this, reference being
made only to `circumstances beyond the person's control.' Emphasis on
the Australian source of a change in circumstances has led to convoluted
arguments, but has not precluded a successful appeal where a person's
inability to gain employment adequate for sustenance and his subsequent
malnutrition were seen as a substantial change in circumstances beyond
his control, occurring since arrival in Australia. [4]
3.10 The Committee notes the various AAT cases which have considered
this issue, especially the various interpretations of `substantial'. [5]
Departmental attitudes and management
3.11 The Committee notes that there may be a possibility of uneven interpretation
of the guidelines, although this can occur in any event because of the
nature of delegation and the independence of the delegate. However, where
such variation is due to an explicit ignoring of the guidelines, this
is a matter which the Department and Centrelink should address.
3.12 In the absence of detailed information it is not possible to determine
if other migrants are being disadvantaged by other actions of Centrelink
staff – for example, not being made aware of appeal rights or not
having an application accepted. Reference was made to applications for
benefits not having been accepted, and to the fact that this is no longer
allowed, if it had been a problem. [6] Information
on appeal rights was not specified, although such information is usually
provided in letters advising of the rejection of an application. Evidence
given suggested that people were afraid to exercise their appeal rights
and that they might instead keep putting in applications, on the grounds
that their circumstances were changing substantially for the worse. [7]
3.13 It is important for personal attitudes not to affect the operation
of programs, and the Committee would expect Centrelink to monitor staff
attitudes towards customers.
3.14 To effectively monitor the program, it is important for Centrelink
to have accurate and up to date advice on the extent of a problem, since
it may be that the issue is not extensive. The Committee notes that multiple
applications may not only distort the appeals issue but distort information
on numbers of persons affected, as opposed to number of cases. Accurate
information must be available on the number of individuals applying, including
any multiple applications, as opposed to total number of applications;
and on the full cost of any changes (not just payment of special benefit).
[8] Without such information it is difficult
to measure the real effect of these changes. The ready availability of
such data, and of data on the background of those experiencing the most
difficulty, would help provide an appropriate context for consideration
of the issue.
Discrimination, and unlawful discrimination
3.15 Witnesses suggested that the two year waiting period was discriminatory
because it imposed on some people requirements that others did not have
to meet. FECCA believed that these provisions made a clear distinction
between Australian residents. [9]
3.16 The Human Rights & Equal Opportunity Commission (HREOC) suggested
that the provisions of the Social Security Legislation Amendment (Newly
Arrived Resident's Waiting Periods and Other Measures) Act 1997 (Cth),
could be discriminatory, because of the test for Special Benefit being
more rigorous for newly arrived migrants than for other persons. [10]
It is argued by HREOC that Special Benefit could be interpreted as a service
which is to be provided on an equal basis to all residents. The test for
Special Benefit was more onerous not because a person had to prove that
an event occurred after arrival, but because people who were not newly
arrived migrants did not have to demonstrate that other events had affected
their capacity to provide for themselves:
As a consequence of the application of the RDA [Racial Discrimination
Act] to the Social Security Legislation Amendment (Newly Arrived
Resident's Waiting Periods and Other Measures) Act 1997 (Cth), The
provisions of that Act that discriminate against immigrants in the provision
of `services' may be unlawful. In the context of special benefits, this
may mean that the requirement of the Act that immigrants demonstrate
they have experienced a substantial change of circumstances beyond their
control before they are eligible to receive the special benefit is unlawful.
If access to special benefits is capable of characterisation as a `service',
the RDA would require that access by immigrants to this service be on
the same basis as other persons permanently resident in Australia. [11]
3.17 Further, HREOC was concerned that some groups of migrants may be
disadvantaged more than others; if there is a disparate impact this may
constitute racial discrimination `in accordance with the international
definition of racial discrimination contained in the Racial Discrimination
Act 1975 and the CERD [Convention on the Elimination of All Forms of Racial
Discrimination]. [12]
3.18 The Committee notes the points made by HREOC. The submission was
received during the course of the public hearing on 27 March 1998 and
it is expected that a detailed response will be provided from the Attorney
General's department if required.
The Committee has considered information provided on the extension of
the waiting period from 6 months to 2 years for newly arrived migrants.
It is of the opinion that there is currently no need to vary the provisions
regarding access to Special Benefit, given the exceptional circumstances
regime.
In saying this the Committee notes the importance of providing accurate
and timely information to intending or prospective migrants, especially
those in less developed areas; in countries where restrictions exist on
taking out capital or accessing funds from overseas; and countries where
residency or citizenship difficulties may affect people planning to migrate.
Factors of this nature may require special consideration in the migration
program.
Footnotes
[1] Submission No. 5, Federation of Ethnic
Communities' Council of Australia Inc, p. 2; Evidence, p. 32 (FECCA).
[2] See in particular Re Secretary, DSS and
Tadros, AAT, No. N97/1383, 26 February 1998, para. 21.
[3] The word `substantial' is also related to
events occurring prior to departure for Australia (or, presumably, prior
to arrival in Australia since this could be different) as well as measuring
`substantial' in the context of the society in which the applicant was
living. It includes a perception of what is substantial; thus in the context
of a few thousand dollars, the loss of most of this would be a substantial
change, even though in an Australian context the original sum may have
been seen as inadequate and therefore a loss of most of it irrelevant.
[4] Evidence, pp. 26, 41 (Welfare Rights
Centre).
[5] Zoarder v DSS, AAT, No. N97/945,
18 February 1998; Chelechkov v DSS, AAT, No. N97/1271, 18 February
1998; Re Secretary, DSS and Tadros, AAT, No. N97/1383, 26 February
1998; Re DSS and Singh and Pal Kaur, AAT, N97/1703, 2 March 1998;
Fomin and Fomina v DSS, AAT, No. N97/421, 12 March 1998.
[6] Evidence, p. 14 (Department of Social
Security); p. 43 (FECCA).
[7] Evidence, pp. 29, 38 (Welfare Rights
Centre).
[8] See Evidence, pp. 5-7, 22, 23-24
for discussion with departmental officers of the data currently available.
Further data was provided to the Committee in response to questions taken
on notice at the hearing: see Submission No. 11, Department of
Social Security.
[9] Submission No. 5, Federation of Ethnic
Communities' Council of Australia Inc, p. 2.
[10] Submission No. 7, Human Rights
& Equal Opportunity Commission.
[11] Submission No. 7, Human Rights
& Equal Opportunity Commission, para. 31.
[12] Submission No. 7, Human Rights
& Equal Opportunity Commission, para. 6.