Coronavirus Economic Response Package Omnibus (Measures No 2) Bill 2020 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 102 (10 June 2020)

• Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020
• Broad discretionary powers
• Significant matters in delegated legislation 6

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Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020

Purpose	This bill implements changes to various Acts in relation to the coronavirus economic response
Portfolio	Treasury
Introduced	House of Representatives on 8 April 2020
Bill status	Received the Royal Assent on 9 April 2020

Broad discretionary powers
Significant matters in delegated legislation ^[6]

2.18 In Scrutiny Digest 6 of 2020 the committee requested the Minister for Industrial Relations’ advice as to why it is necessary and appropriate to provide the minister with broad discretionary powers to exempt employers from provisions of the bill in circumstances where there is no guidance on the face of the bill regarding the circumstances in which these powers are to be exercised.^[7]

Minister’s response^[8]

2.19 The Minister advised:

The Committee has sought advice on s 789GX of the Bill (the provision), which temporarily amends the Fair Work Act 2009 (FW Act) to provide the Minister with the power to exclude specified employers from seeking to apply any of sections 789GDC, 789GE, 789GF, 789GG and 789GJ of the FW Act, as introduced by the Bill.
As the Committee notes, the provision is a limited regulation-making power, which only enables the Minister, by legislative instrument, to exclude one or more specified employers from applying any or all of the sections in the FW Act that authorise a JobKeeper enabling direction or agreement. The explanatory memorandum also notes that this might be done in circumstances that include where an employer contravenes a civil remedy provision.
The provision is an integrity measure designed to protect employees. It can only operate to restrict an employer's access to the JobKeeper enabling direction or agreement provisions in the Bill. That is, the powers cannot expand the application of the JobKeeper enabling direction or agreement provisions in the Bill in any way. I consider the provision is an appropriate safeguard that will enable the Government to swiftly address any emerging issues in the operation of the provisions pertaining to instances of misuse, such as where an employer has contravened the new civil penalty provisions in sections 789GD, 789GDA, 789GDB, 789GU, 789GW or 789GXA.
The provision supports the overall intent of the Bill's temporary amendments to the FW Act, which is to support the practical operation of the JobKeeper scheme in Australian workplaces in the national system and to keep Australians employed.
My department is progressing guidelines on how this power may be exercised by the Minister. I also note that these powers, which must be exercised by legislative instrument, would be subject to Parliamentary scrutiny.

Committee comment

2.20 The committee thanks the minister for this response. The committee notes the minister’s advice that section 789GX is an integrity measure, designed to protect employees, and can only operate to restrict an employer's access to the JobKeeper enabling direction or agreement provisions elsewhere in the Act. It cannot expand the application of those provisions in any way. The committee also notes the minister's advice that section 789GX is an appropriate safeguard that will enable the Government to address any 'emerging issues' in the operation of the provisions pertaining to instances of misuse—such as where an employer has contravened one of the new civil penalty provisions.

2.21 The committee further notes the minister's advice that his department is progressing guidelines on how the power in section 789GX may be exercised. Finally, the committee notes the advice that these powers, which must be exercised by legislative instrument, would be subject to parliamentary scrutiny.

2.22 While noting this advice, from a scrutiny perspective, the committee remains concerned that section 789GX confers on the minister a broad power to exempt employers from provisions of the bill, in circumstances where there is no guidance on the face of the bill as to how those powers are to be exercised. In this respect, the committee acknowledges that the guidance to be prepared by the department, and the requirement that the power in section 789GX be exercised by legislative instrument, may help guard against the arbitrary exercise of broad administrative powers. However, the committee remains of the view that it would be more appropriate for guidance as to how the power in section 798GX is to be exercised to be set out on the face of the Act.

2.23 The committee draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation and the Senate Select Committee on COVID-19.

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[6] Schedule 1, item 5, proposed section 789GX. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii) and (iv).

[7] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2020, pp. 9-10.

[8] The minister responded to the committee's comments in a letter dated 29 May 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest