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Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Bill 2003
Schedule 3 Assurances of support

Part 1 Main amendment

Social Security Act 1991

1  After Chapter 2B

Insert:

Chapter 2C Assurances of support

Part 2C.1 Giving assurances

   

1061ZZGA   What is an assurance of support?

                   In this Chapter:

assurance of support means an undertaking by a person under this Chapter that the person will pay the Commonwealth an amount equal to the amount of social security payments that are:

                     (a)  received in respect of a period by another person who:

                              (i)  is identified in the undertaking; and

                             (ii)  becomes the holder under the Migration Act 1958 of a visa granted in connection with the undertaking (whether or not the person continues to hold the visa throughout the period); and

                     (b)  specified in a determination in force under section 1061ZZGH when the payments are received.

Note:          An assurance of support may relate to social security payments received by 2 or more persons. See paragraph 23(b) of the Acts Interpretation Act 1901 .

1061ZZGB   Who may give an assurance of support?

                   A person may give an assurance of support only if the requirements specified for the purposes of this section in a determination under section 1061ZZGH are met in relation to the person.

Note 1:       If a person who does not meet the requirements gives an undertaking purporting to be an assurance of support, the undertaking is not an assurance of support (because it is not under this Chapter) and the Secretary is not required either to accept or to reject the purported assurance.

Note 2:       This section lets 2 or more persons give an assurance of support if they all meet the requirements specified in a determination under section 1061ZZGH. See paragraph 23(b) of the Acts Interpretation Act 1901 .

1061ZZGC   How to give an assurance of support

             (1)  A person gives an assurance of support by:

                     (a)  delivering the assurance in writing in accordance with a form approved by the Secretary:

                              (i)  to a person apparently performing duties at a place approved for the purpose by the Secretary; or

                             (ii)  to a person approved for the purpose by the Secretary; or

                            (iii)  in a manner, and to a place, approved for the purpose by the Secretary; or

                     (b)  giving the assurance in a manner approved by the Secretary for the purposes of this paragraph.

Note:          If an undertaking purporting to be an assurance of support is given in some other way, the undertaking is not an assurance of support (because it is not under this Chapter) and the Secretary is not required either to accept or to reject the purported assurance.

             (2)  A form approved for the purposes of paragraph (1)(a) may include other undertakings as well as the assurance of support.

             (3)  A place or person approved for the purposes of paragraph (1)(a) may be in or out of Australia.

             (4)  The Secretary’s power to approve for the purposes of paragraph (1)(b) is not limited by any other provision of this section.

Material to accompany assurance of support

             (5)  When a person is giving an assurance of support, the person must also give the following material in a way in which an assurance of support may be given under subsection (1):

                     (a)  information specified in a form approved by the Secretary;

                     (b)  documents specified by the Secretary.

             (6)  If the person giving the assurance of support contravenes subsection (5), the assurance is taken not to have been given.

Part 2C.2 Acceptance of assurances

   

1061ZZGD   Accepting or rejecting an assurance of support

             (1)  If an assurance of support is given under this Chapter, the Secretary must accept or reject the assurance.

Accepting the assurance

             (2)  The Secretary may accept the assurance, but only if:

                     (a)  he or she is satisfied that the requirements that are specified for the purposes of this paragraph in a determination under section 1061ZZGH and relate to the person who gave the assurance are met; and

                     (b)  the requirements in subsection (3) are met, if the assurance is in respect of:

                              (i)  a visa of a kind that can be granted under the Migration Act 1958 only if an assurance of support is accepted; and

                             (ii)  another person who was at least 18 at the time of the application for the visa;

                            (whether or not the assurance is also in respect of someone else who was under 18 at the time of the application for the visa).

Note 1:       The Secretary may accept an assurance given by 2 or more persons only if satisfied that the requirements specified in a determination under item 3 of the table in subsection 1061ZZGH(1) and relating to all of them are met. See paragraph 23(b) of the Acts Interpretation Act 1901 .

Note 2:       Subparagraph (2)(b)(i) does not apply to a visa of a kind in relation to which there is a discretion to request an assurance of support, because a visa of that kind can be granted without accepting an assurance if one is not requested (even if, in a case in which an assurance is requested, acceptance of the assurance is a condition for the grant of the visa).

             (3)  At least one person who gave the assurance must have given the Secretary a single security for the liability that may be incurred, under section 1061ZZGG in connection with the assurance and a social security payment received by anyone identified in the assurance, by everyone who gave the assurance. The security must:

                     (a)  be in a form approved by the Secretary; and

                     (b)  be of a value specified for the purposes of this paragraph in a determination under section 1061ZZGH.

Rejecting the assurance

             (4)  The Secretary may reject the assurance.

             (5)  The circumstances in which the Secretary may reject the assurance include failure of the person giving the assurance to attend an interview relating to the assurance as requested by the Secretary. This subsection does not limit subsection (4).

1061ZZGE   Notices relating to an assurance of support

             (1)  If the Secretary accepts or rejects an assurance of support, he or she must give written notice of the acceptance or rejection to:

                     (a)  the person who gave the assurance; and

                     (b)  the Minister administering section 65 of the Migration Act 1958 .

The notice must name the person in respect of whom the assurance was given.

             (2)  If:

                     (a)  the Secretary has accepted an assurance of support given by a person (the assurer ) in respect of another person and a visa; and

                     (b)  the Secretary is informed that the other person:

                              (i)  is a holder under the Migration Act 1958 of the visa; and

                             (ii)  has entered the migration zone (as defined in that Act) before, on or after becoming the holder of the visa;

the Secretary must give the assurer written notice of the period for which the assurance is in force in respect of the other person.

Note:          Section 1061ZZGF explains when an assurance of support is in force in respect of the other person.

             (3)  If the assurance of support ceases to be in force in respect of the other person at the time described in subparagraph 1061ZZGF(1)(b)(ii), the Secretary must give the assurer written notice of the fact.

Note:          That subparagraph is about an assurance ceasing to be in force in respect of the other person when another assurance of support comes into force in respect of him or her.

Part 2C.3 Effect of accepted assurances

   

1061ZZGF   When an accepted assurance is in force

             (1)  For the purposes of this Act, an assurance of support that has been given in respect of a person identified in the assurance and has been accepted under this Chapter:

                     (a)  comes into force in respect of the person at the later of the following times:

                              (i)  the time at which the person becomes under the Migration Act 1958 the holder of the visa that was granted under that Act in connection with the assurance;

                             (ii)  the time at which the person enters the migration zone (as defined in that Act) as the holder of the visa; and

                     (b)  remains in force in respect of the person until the earlier of the following times:

                              (i)  the end of the period specified for the purposes of this subparagraph in a determination under section 1061ZZGH;

                             (ii)  the time (if any) determined by the Secretary under subsection (2).

Note:          An assurance of support given in respect of 2 or more persons may be in force at different times in respect of each of those persons.

             (2)  The Secretary may determine that the assurance of support ceases to be in force in respect of the person at the time (which may be before the determination is made) another assurance of support comes into force in respect of the person.

             (3)  For the purposes of this Act, an assurance of support (as defined in section 1061ZZGA) is in force in respect of a person only for the period for which it is in force in respect of the person under subsection (1) of this section.

             (4)  An assurance of support that is in force in respect of a person under subsection (1) remains in force in respect of the person under that subsection in spite of any change in circumstances whatsoever (including the withdrawal, however described, of the assurance).

1061ZZGG   Liability to pay for social security payments

             (1)  This section has effect if:

                     (a)  a person (the assurer ) has given an assurance of support that has been accepted under this Chapter; and

                     (b)  a social security payment is received, by another person who is identified in the assurance, in respect of all or part of the period for which the assurance is in force in respect of the other person; and

                     (c)  the social security payment is specified for the purposes of this section in a determination in force under section 1061ZZGH when the payment is received.

             (2)  The assurer is liable to pay the Commonwealth the amount of the social security payment.

             (3)  If the assurance was given by more than one person, all of the persons who gave it are jointly and severally liable to pay the Commonwealth the amount of the social security payment.

Part 2C.4 Determinations

   

1061ZZGH   Determinations

             (1)  The Minister must make a written determination specifying, for the purposes of the provisions mentioned in the table, the things in the table.

 

Determinations

 

Provision(s)

Things to be specified

1

Definition of assurance of support in section 1061ZZGA and section 1061ZZGG

Social security payments

2

Section 1061ZZGB

Requirements to be met in relation to persons for them to be permitted by section 1061ZZGB to give assurances of support

3

Paragraph 1061ZZGD(2)(a)

Requirements to be met in relation to persons giving assurances of support for the Secretary to be permitted by subsection 1061ZZGD(2) to accept such assurances

4

Paragraph 1061ZZGD(3)(b)

Values of securities to be given for the Secretary to be permitted to accept assurances of support

5

Subparagraph 1061ZZGF(1)(b)(i)

Periods for which assurances of support accepted under this Chapter remain in force in respect of persons under section 1061ZZGF

Note 1:       A determination may specify matters and things by reference to classes and may make different provision with respect to different matters or classes of matters. See the Acts Interpretation Act 1901 .

Note 2:       The Minister may amend a determination by another written determination. See the Acts Interpretation Act 1901 .

             (2)  A determination may specify, as a requirement to be met in relation to a person (the assurer ) giving an assurance of support for the Secretary to be permitted by subsection 1061ZZGD(2) to accept the assurance, a requirement that relates to:

                     (a)  the members of a couple consisting of the assurer and the assurer’s partner; or

                     (b)  the assurer’s partner.

This subsection does not limit the requirements that may be specified under item 3 of the table in subsection (1) of this section.

             (3)  Before making a determination specifying a thing described in item 4 or 5 of the table in subsection (1), the Minister must ask the Minister administering section 65 of the Migration Act 1958 for comments on the things that should be specified and consider the comments (if any) received.

             (4)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

Part 2C.5 Assurances by unincorporated bodies

   

1061ZZGI   Application of social security law to unincorporated bodies

             (1)  This Chapter, and the rest of the social security law so far as it relates to this Chapter, apply to an unincorporated body or association (the body ) as if it were a person other than an individual, but they apply with the following changes.

Acts of certain persons treated as acts of the body

             (2)  One change is that anything done or omitted by or in relation to:

                     (a)  if the body is a partnership—a partner; or

                     (b)  in any other case—a member of the committee of management of the body;

on behalf of the body is taken to have been done or omitted by the body.

Imposition of obligations and liabilities

             (3)  Another change is that obligations, or liabilities under section 1061ZZGG, that would be imposed on the body are imposed instead on:

                     (a)  if the body is a partnership—each partner; or

                     (b)  in any other case—each member of the committee of management of the body;

but they may be discharged by any of the partners or any of those members.

The body cannot commit an offence

             (4)  Another change is that if, apart from this subsection, the body would commit an offence, the body does not commit the offence.

Example:    Subsection (1) applies section 217 of the Social Security (Administration) Act 1999 to the body as if it were a person. That section provides that a person who contravenes certain provisions of that Act about false or misleading statements is guilty of an offence. The body does not commit an offence if it contravenes those provisions by making a false or misleading statement.

Limit on scope of changes

             (5)  Subsections (2) and (3) do not affect:

                     (a)  whether, for the purposes of section 1061ZZGB (about giving an assurance of support), the requirements specified in a determination under section 1061ZZGH are met in relation to the body; or

                     (b)  whether, for the purposes of paragraph 1061ZZGD(2)(a) (about accepting an assurance of support), the requirements specified in a determination under section 1061ZZGH are met in relation to the body.

Note:          Whether the body may give an assurance of support and whether such an assurance may be accepted depend on whether the requirements specified in relation to the body are met, rather than whether requirements relating to a person who is a partner or member of the body’s management committee are met in relation to that partner or member.

             (6)  A determination under section 1061ZZGH (applying in accordance with this section) may specify, for the purposes of section 1061ZZGB or paragraph 1061ZZGD(2)(a) (as so applying in relation to the body), a requirement that relates to:

                     (a)  one or more of the partners, if the body is a partnership; or

                     (b)  some or all of the members of the body or of its committee of management, if the body is not a partnership.

This subsection does not limit the requirements relating to the body that may be specified.



 

Part 2 Consequential amendments

Migration Act 1958

2  After subsection 504(5)

Insert:

          (5A)  The following have effect only in relation to assurances of support that were given before 1 July 2004 and are not assurances of support in relation to which Chapter 2C of the Social Security Act 1991 applies or applied:

                     (a)  subsection (5) of this section;

                     (b)  regulations made under paragraph (1)(g) (whether before, on or after the commencement of this subsection) providing for:

                              (i)  the enforcement of assurances of support; or

                             (ii)  the imposition on persons who give assurances of support of liabilities in respect of the maintenance of, and other expenditure in connection with, the persons in respect of whom the assurances of support are given.

Social Security Act 1991

3  Subsection 23(1) (definition of assurance of support )

Repeal the definition, substitute:

assurance of support means an assurance of support within the meaning of:

                     (a)  the Migration (1989) Regulations; or

                     (b)  the Migration (1993) Regulations; or

                     (c)  Subdivision 2.7.1 or 2.7.2 of the Migration Regulations 1994 as in force on or after 1 September 1994; or

                     (d)  Chapter 2C.

4  Subsection 23(1) (definition of assurance of support debt )

Repeal the definition, substitute:

assurance of support debt has the meaning given by subsection 1227(2).

5  Subsection 1222(2) (table item 14)

Repeal the item, substitute:

 

14

1227

(assurance of support debt)

enforcement of security

deductions

legal proceedings

garnishee notice

repayment by instalments

1230C

1231, 1234A

1232

1233

1234

6  Section 1227 (note)

Repeal the note.

7  At the end of section 1227

Add:

             (2)  In this Chapter:

assurance of support debt means:

                     (a)  a debt due and payable by a person to the Commonwealth, or a liability of a person to the Commonwealth, because of the operation of:

                              (i)  subregulation 165(1) of the Migration (1989) Regulations as in force on or before 19 December 1991; or

                             (ii)  regulation 164C of the Migration (1989) Regulations as in force after 19 December 1991 and before 1 February 1993; or

                            (iii)  Part 5 of the Migration (1993) Regulations as in force on or after 1 February 1993; or

                            (iv)  Division 2.7 of the Migration Regulations 1994 as in force on or after 1 September 1994;

                            in respect of the payment to another person of a social security payment of a kind mentioned in subregulation 2.38(1) of the Migration Regulations 1994 ; or

                     (b)  a liability of a person to the Commonwealth because of the operation of section 1061ZZGG.

8  At the end of section 1230C

Add:

             (5)  This section does not prevent the recovery of an assurance of support debt by the enforcement at any time of a security given in connection with the relevant assurance of support. It does not matter:

                     (a)  whether or not the enforcement involves legal proceedings; or

                     (b)  whether the enforcement occurs before or after seeking to recover the debt by means of another method described in this section.

9  Subsection 1236A(1)

Omit “and 1237AAD”, substitute “, 1237AAD and 1237AAE”.

10  At the end of subsection 1237(1)

Add “and, if the debt is an assurance of support debt, subject to section 1237AAE”.

11  At the end of sections 1237AAA and 1237AAB

Add:

Note:          Section 1237AAE limits the circumstances in which an assurance of support debt may be waived under this section, and the amount of the debt that may be waived.

12  Section 1237AAD (note)

Omit “Note:”, substitute “Note 1:”.

13  At the end of section 1237AAD

Add:

Note 2:       This section has effect subject to section 1237AAE in relation to an assurance of support debt.

14  After section 1237AAD

Insert:

1237AAE   Extra rules for waiver of assurance of support debts

             (1)  This section affects waiver under some other provisions of this Part of an assurance of support debt in connection with an assurance of support given by one or more persons (the assurers ), by setting out extra rules limiting the circumstances in which waiver may occur and the extent of waiver.

             (2)  The Secretary may waive under section 1237AAD the right to recover all or part of the debt only if the Secretary is satisfied that the waiver is justified on grounds other than one or more of the assurers being unaware of the effect of section 1061ZZGG, or of regulations made under the Migration Act 1958 , in connection with the assurance.

             (3)  If the Secretary has been given a security that meets the requirements of subsection 1061ZZGD(3) in connection with the assurance, the Secretary may waive under section 1237AAA, 1237AAB or 1237AAD the right to recover an amount of the debt that is not greater than the difference (if any) between:

                     (a)  the debt; and

                     (b)  the amount that can be:

                              (i)  obtained by enforcing the security; and

                             (ii)  applied to reduce the debt.

Note:          An amount that can be obtained by enforcing the security cannot be applied to reduce the debt if it is applied to reduce another assurance of support debt connected with the assurance of support.

             (4)  If 2 or more assurers are jointly and severally liable for the debt, the Secretary may waive under section 1237AAD the right to recover an amount of the debt that is not greater than the amount (which may be a nil amount) of the debt that the Secretary is satisfied cannot be recovered from any of the assurers.

             (5)  If subsections (3) and (4) apply, the Secretary may waive under section 1237AAD the right to recover an amount of the debt that is not greater than the amount (if any) of the debt that may be waived taking into account both of those subsections.

Social Security (Administration) Act 1999

15  After paragraph 144(d)

Insert:

                   (da)  a decision under section 1061ZZGC of the 1991 Act;

16  After paragraph 151(2)(b)

Insert:

                   (ba)  section 1061ZZGC of the 1991 Act; or

17  At the end of section 192

Add:

                    ; (j)  the question whether an assurance of support given under Chapter 2C of the 1991 Act should be accepted or rejected.



 

Part 3 Application and transitional provisions

18  Application and transitional provisions

Application provisions for Chapter 2C of Social Security Act 1991

(1)       Chapter 2C of the Social Security Act 1991 (as amended by this Schedule) applies in relation to:

                     (a)  the giving of assurances of support (as defined in that Chapter) after the commencement of this Schedule; and

                     (b)  the acceptance of assurances of support (as defined in that Chapter) given after the commencement of this Schedule; and

                     (c)  the acceptance of assurances of support (as defined in Subdivision 2.7.2 of the Migration Regulations 1994 ) that:

                              (i)  were given to the Minister (the Migration Minister ) administering the Migration Act 1958 before the commencement of this Schedule; and

                             (ii)  the Migration Minister had neither accepted nor decided not to accept, before the commencement of this Schedule; and

                     (d)  the effect of assurances of support accepted under that Chapter.

(2)       That Chapter applies in relation to assurances of support described in paragraph (1)(c) as if they had been given to the Secretary under that Chapter.

Transitional provisions

(3)       As soon as practicable after the commencement of this Schedule, the Migration Minister must give to the Secretary of the Department, for the purposes of the provisions of the social security law relating to assurances of support, all assurances of support described in paragraph (1)(c) and any information that the Migration Minister proposed to consider in deciding whether to accept the assurances.

Note:       Subitem (3) requires the disclosure of personal information relevant to a decision whether to accept the assurances of support, so that the disclosure is not prevented by the Privacy Act 1988 .

(4)       The requirements in subsection 1061ZZGD(3) of the Social Security Act 1991 are taken to be met in relation to an assurance of support described in paragraph (1)(c) of this item if one or more persons who gave the assurance under the Migration Regulations 1994 complied with regulation 2.39 of those Regulations before the commencement of this Schedule.

Note:       This may allow the Secretary of the Department to accept the assurance under Chapter 2C of the Social Security Act 1991 , even though a security has not been given as required by subsection 1061ZZGD(3) of that Act, if one or more bonds were lodged in connection with the assurance under regulation 2.39 of the Migration Regulations 1994 .

Application of some other amendments

(5)       The amendments of the Social Security Act 1991 made by Part 2 of this Schedule apply in relation to assurance of support debts arising before, on or after the commencement of this Schedule. This does not limit the application of the definition of assurance of support included in section 23 of that Act by that Part.