Residence requirements

Contributed by Danny Shaw and Dianne Anagnos and current to 1 September 2005

To be eligible for a pension or allowance, a person must generally be an Australian resident living in Australia at the time of making the claim.

The main exceptions to this rule are claimants for special benefit and family tax benefit, who may be eligible if they meet other, less stringent, residence requirements.

WHO IS AN AUSTRALIAN RESIDENT?

An ‘Australian resident’ is defined as a person who ‘resides in Australia’ and is either:

• an Australian citizen;
• the holder of a permanent visa; or
• the holder of a special category visa, who is a protected special category visa holder (s.7(2)). The special categories are defined in the Migration Act 1958 (Cth).

What does ‘resides in Australia’ means?

The Social Security Act prescribes the factors relevant to deciding whether someone ‘resides in Australia’ (s.7(3)). Case law has determined that a person’s ‘residence’ is the place where they live or where they have significant attachments. Generally, a person ‘resides in Australia’ if they intend making their home here, at least for the foreseeable future.

PAYMENTS TO PEOPLE WHO ARE OVERSEAS

A person can remain an Australian resident while overseas and thus continue to receive some social security payments while outside the country, unless the Social Security Act makes specific provision to either:

• require the person to be in Australia to qualify for the payment; or
• prescribe the period the payment can continue to be paid overseas.

PORTABILITY

Most pensions and benefits are portable for up to 26 weeks of a temporary absence (Part 4.2).

The age pension and the disability pension

The age pension is portable indefinitely, as is the disability support pension for people who are both ‘severely disabled’ and ‘terminally ill’ (s.1218AA)). However, for people who formerly lived overseas and have resumed residence in Australia, the age pension, disability support pension and bereavement allowance are only portable after they have lived in Australia for a further two years (s.1220(1)).

The rate of the age pension and the disability support pension payable overseas is generally determined under the proportional portability rules (based on the proportion of their working life that the person has lived in Australia – ss.1220A, 1220B, 1221), and is also affected by whether the person is in a country with which Australia has an international agreement.

The portability rules are too complicated to detail here. Readers should consult The Independent Social Security Handbook.

INTERNATIONAL AGREEMENTS

Australia is signatory to international social security agreements with several countries. Some, such as that with New Zealand, involve reciprocal arrangements for payments to people who have not lived in one country long enough to meet its eligibility requirements.

They may also allow claims for overseas social security payments to be lodged while the person is living in Australia. The agreements are included as schedules to the Social Security (International Agreements) Act 1999 (Cth).