Social Security Legislation Amendment (Community Development Program) Bill 2018 [2018] AUSStaCSBSD 206 (12 September 2018)

• Social Security Legislation Amendment (Community Development Program) Bill 2018
• Significant matters in delegated legislation 10

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Social Security Legislation Amendment (Community Development Program) Bill 2018

Purpose	This bill seeks to amend the Social Security Act 1991 and the Social Security (Administration) Act 1999 to introduce the Targeted Compliance Framework to Community Development Programme (CDP) participants in remote Australia, with the exception of CDP participants undertaking subsidised employment
Portfolio	Indigenous Affairs
Introduced	Senate on 23 August 2018

Significant matters in delegated legislation ^[10]

1.15 The bill seeks to amend the Social Security Act 1991 and the Social Security (Administration) Act 1999 (Administration Act) to extend the Targeted Compliance Framework (TCF) in the Administration Act to Community Development Programme (CDP) participants in remote Australia. As a result, CDP participants would be subject to the targeted compliance requirements in the TCF; however, participants undertaking 'subsidised employment' would be exempt from these requirements.

1.16 Proposed subsection 42AEA(1) provides that 'subsidised employment' means employment in relation to which a subsidy of a kind prescribed in subsection 42AEA(2) is payable or has been paid by the Commonwealth. Subsection 42AEA(2) provides that the secretary may, by legislative instrument, determine a kind of subsidy for the purposes of subsection 42AEA(1).

1.17 The committee's view is that significant matters, such as determining what constitutes 'subsidised employment' (which relates to whether the targeted compliance framework for social security payments applies), should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum explains that the government is finalising the detail of the subsidised jobs package in consultation with communities, and the ability to determine a kind of subsidy by legislative instrument will 'provide the government with the flexibility to specify the subsidy arrangement at a later date'.^[11] However, the committee notes that it does not generally consider administrative flexibility to be sufficient justification for including significant matters in delegated legislation rather than in primary legislation.

1.18 The committee draws its concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of allowing delegated legislation to prescribe what constitutes 'subsidised employment' (which relates to whether the targeted compliance framework for social security payments applies).

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[10] Schedule1, item 26, proposed subsection 42AEA. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

[11] Explanatory memorandum, p. 12.