Commentary on Amendments and Explanatory Materials [2018] AUSStaCSBSD 94 (28 March 2018)

• Commentary on amendments and explanatory materials
• Significant matters in delegated legislation2
• Schedule 12—establishment of a drug testing trial

---

Commentary on amendments
and explanatory materials

Communications Legislation Amendment (Deregulation and Other Measures)

Bill 2017

[Digests 5 & 7/17]

1.2 On 28 February 2018 the House of Representatives agreed to seven government amendments, the Minister representing the Minister for Communications (Mr Fletcher) presented an addendum to the explanatory memorandum and a supplementary explanatory memorandum and the bill was read a third time.

1.3 The committee has no comment on the government amendments to this bill.

1.4 The committee thanks the minister for tabling an addendum to the explanatory memorandum which includes key information previously requested by the committee.^[1]

Social Services Legislation Amendment (Welfare Reform) Bill 2017

[Digest 12/17]

1.5 On 7 December 2017 the Senate agreed to 15 government amendments, 5 government requests for amendments and the Minister for Jobs and Innovation (Senator Cash) tabled a supplementary explanatory memorandum. On 19 March 2018 the Senate agreed to 12 government amendments and the Minister for Jobs and Innovation (Senator Cash) tabled two supplementary explanatory memoranda. On 20 March 2018 the Senate agreed to two Pauline Hanson's One Nation requests for amendments (in place of two of the government requests for amendments agreed to on 7 December).

Significant matters in delegated legislation^[2]

1.6 Current sections 13 and 14 of the Social Security (Administration) Act 1999 are 'deemed claim provisions' that allow 'leniency for claimants by effectively backdating their entitlement to a payment to the date they initially contacted the Department of Human Services and indicated their intention to claim'.^[3] The bill as originally introduced sought to repeal these provisions.

1.7 The government amendments to Schedule 11 sought to amend the current deemed claim provisions so that these provisions would only apply to a person who is included in a class of persons determined by the minister in a legislative instrument made under proposed section 14A. In this regard, the supplementary explanatory memorandum suggests that although the deemed claim provisions will no longer apply to claimants generally, the amendments 'will ensure that sections 13 and 14 will continue to apply to a vulnerable claimant, being a person included in a class of persons determined by the Minister by legislative instrument'. The supplementary explanatory memorandum further suggests that examples of vulnerable circumstances will include, but not be limited to, crisis situations where the claimant is unable to fully complete a claim due to being homeless, affected by a major disaster or family and domestic violence, a recent humanitarian entrant or recently released from prison or psychiatric confinement. Vulnerable circumstances may also relate to people in ongoing situations such as young people who are unable to live at home.^[4]

1.8 The committee's view is that significant matters, such as determining the classes of persons to whom deemed claim provisions in the social security law will apply, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the committee notes that inclusion in a class of persons determined by the minister under proposed section 14A will be beneficial in that those persons will be able to access the deemed claim provisions. In this regard, the committee notes that proposed section 14A provides that the minister may, by legislative determine a class of persons to whom the deemed claim provisions will apply, however there is no requirement that the minister must make such a determination. Based on the text of the provision it appears possible that the minister could decline to make a determination and therefore no social security claimants would be able to access the deemed claim provisions.

1.9 In addition, the committee notes that while the supplementary explanatory memorandum suggests that the minister's power to make a legislative instrument under proposed section 14A will be used to define which classes of persons are to be considered 'vulnerable claimants', there is no guidance on the face of legislation to limit the minister's instrument-making power in this way.

1.10 In light of the fact that the amendments have passed both Houses of Parliament, the committee makes no further comment on this matter.

1.11 The committee draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

Schedule 12—establishment of a drug testing trial

1.12 Government amendments on sheet JC466 remove Schedule 12 (relating to the establishment of a drug testing trial) from the bill. The committee notes that provisions for the establishment of a drug testing trial substantially the same as the provisions of Schedule 12 were introduced into the House of Representatives as the Social Services Legislation Amendment (Drug Testing Trial) Bill 2018 (the Drug Testing Trial Bill) on 28 February 2018.

1.13 The committee draws to the attention of senators the comments that it made in relation to the Drug Testing Trial bill in Scrutiny Digest 3 of 2018.^[5]

1.14 The committee has no comments on amendments made or explanatory material relating to the following bills:

• Treasury Laws Amendment (Junior Minerals Exploration Incentive) Bill 2017^[6]

---

[1] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2017, 21 June 2017, pp 43–50.

[2] Government amendments to Schedule 11 on sheet JC488, proposed section 14A of the Social Security (Administration) Act 1999.

[3] Supplementary explanatory memorandum to sheet JC488, p. 1.

[4] Supplementary explanatory memorandum to sheet JC488, pp 1–2.

[5] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2018, 21 March 2018, pp 34–44.

[6] On 19 March 2018 the Senate agreed to one government amendment, two opposition amendments, one government request for an amendment and the Assistant Minister for Science, Jobs and Innovation (Senator Seselja) tabled a supplementary explanatory memorandum.