Social Services and Other Legislation Amendment (Supporting Retirement Incomes) Bill 2018 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 16 (13 February 2019)

• Social Services and Other Legislation Amendment (Supporting Retirement Incomes) Bill 2018
• Delegated legislation not subject to disallowance38

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Social Services and Other Legislation Amendment (Supporting Retirement Incomes) Bill 2018

Purpose	This bill seeks to amend the Social Security Act 1991 and the Veterans' Entitlements Act 1986 to: • provide new means test rules to encourage the take-up of lifetime retirement income products; • amend the Pension Loans Scheme; and • amend the pension work bonus
Portfolio	Families and Social Services
Introduced	House of Representatives on 29 November 2018
Bill status	Before the House of Representatives

Delegated legislation not subject to disallowance^[38]

2.68 In Scrutiny Digest 15 of 2018 the committee requested the minister's advice as to why it is appropriate to make a number of instruments under the bill notifiable instruments rather than legislative instruments, which are not subject to disallowance or sunsetting.^[39]

Minister's response^[40]

2.69 The minister advised:

There are two notifiable instrument making powers in the first schedule of the Bill, which are mirrored in the amendments to the Social Security Act 1991 (SSA) and the Veterans' Entitlements Act 1986 (VEA).
In both cases, an instrument made under these provisions would not be a legislative instrument, as it does not purport to determine or alter the content of the law, or have the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.
Notifiable instruments are instruments that are not appropriate to be registered as legislative instruments, but for which public accessibility and centralised management is desirable. I understand that the main criterion, when considering whether an instrument that if not legislative in character should be a notifiable instrument, is whether the public in general, or a member of the public, would benefit from access to an authoritative form of the instrument from a centrally managed source.
The Bill uses notifiable instruments to allow the new means test rules to refer to specific pieces of external information integral to the rules. The Office of Parliamentary Counsel consulted with the Attorney-General's Department when drafting the Bill and obtained approval for the use of notifiable instrument making powers for this purpose.
A notifiable instrument has been used in proposed subsections 1120AB(8) of the SSA and 52BAB(9) of the VEA to define the relevant considerations for the making of an administrative decision and is therefore not legislative in character. This instrument simply allows the new means test rules to refer to a piece of external information, the public accessibility and centralised management of which is desirable for the purposes of the SSA and VEA.
The Bill states the condition of release identified by the Secretary (or Commission) must also be conditions of release in the Superannuation Industry (Supervision) Regulations 1994. The explanatory memorandum to the Bill clarifies that this notifiable instrument should mirror the specific conditions of release currently outlined in sub-regulation 16A(3)(a) of the Superannuation Industry (Supervision) Regulations 1994.
A notifiable instrument has been used in proposed subsections 1120AB(11) of the SSA and 52BAB(12) of the VEA to specify the number that should be used when referring to the expected age of death of a 65-year-old male, which is relevant when calculating a person's 'threshold day'. This is in order to refer directly to the information in a centrally managed source, to ensure consistency if the location of the information changes in the future (e.g. if the Australian Government Actuary publishes their life tables in different format). These Australian Government Actuary's life tables are also large and complex, therefore from a clearer law perspective, it is desirable to replicate the relevant information in a notifiable instrument.
For this instrument, the Bill states the Secretary (or Commission) must have regard to the most recent life tables published by the Australian Government Actuary and the expected age at death of a 65-year-old male detailed therein.
Given the constraints above, and that the both these instruments are designed to only point to available external information to allow for the proper application of policy, the use of notifiable instruments was considered appropriate.

Committee comment

2.70 The committee thanks the minister for this response. The committee notes the minister's advice that the notifiable instruments used in the bill do not purport to determine or alter the content of the law and are therefore not legislative in character.

2.71 The committee also notes the minister's advice that the notifiable instruments in the bill are designed to provide an easily accessible reference to other available external information to allow for the proper application of policy.

2.72 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.73 In light of the information provided, the committee makes no further comment on this matter.

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[38] Schedule 1, item 36, proposed subsections 1120AB(8) and (11); Schedule 1, item 77, proposed subsections 52BAB(9) and (12). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(v).

[39] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2018, pp. 44 to 45.

[40] The minister responded to the committee's comments in a letter dated 9 January 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest