Coronavirus Economic Response Package (Payments and Benefits) Bill 2020 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 103 (10 June 2020)

• Coronavirus Economic Response Package (Payments and Benefits) Bill 2020
• Incorporation of external materials existing from time to time 9

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Coronavirus Economic Response Package (Payments and Benefits) Bill 2020

Purpose	This bill seeks to provide financial support to entities directly or indirectly affected by the coronavirus, 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

Incorporation of external materials existing from time to time ^[9]

2.24 In Scrutiny Digest 6 of 2020 the committee requested the Treasurer’s advice as to the type of documents that it is envisaged may be applied, adopted or incorporated by reference under subclause 20(5), whether these documents will be made freely available to all persons interested in the law and why it is necessary to apply the documents as in force or existing from time to time, rather than when the instrument is first made.^[10]

Treasurer’s response^[11]

2.25 The Treasurer advised:

As this Bill has now been enacted, I provide this advice in relation to the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (the Act).
In that letter, the Committee sought my advice as to the type of documents that it is envisaged may be applied, adopted or incorporated by reference as they exist from time to time in rules made under the Act as a result of subsection 20(5) of the Act and whether those documents would be freely available to the public.
The power to make rules that make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument as they exist from time to time was included to provide flexibility in the event unforeseen developments required urgent payments in circumstances where it may not have been possible to arrange for the sitting of Parliament. It has not been exercised in relation to the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 and it is not currently expected that it will be used.
The inclusion of the power allows, for example, a future payment to operate by reference to a concept set out in a document that was published by an international medical organisation or in a State or Territory Act or instrument, the incorporation of a definition set out in an instrument detailing the current travel restrictions applying in a State or Territory or an industry classification as set out in a publication of the Australian Statistician.
While it was not considered likely that such a reference would be required for the purposes of a future payment at this time, the need for this to occur to permit an appropriate response to unforeseen developments could not be ruled out.
Given this and the seriousness of the Coronavirus pandemic, ensuring that the rules could apply, adopt or incorporate documents as they exist from time to time was considered a reasonable precaution, noting that if such rules were needed there may be significant adverse effects from a delay.
As noted above, this power has not been exercised, however, if it were, any relevant document applied, adopted or incorporated into the relevant rules would be available to the public or made available to the public free of charge.

Committee comment

2.26 The committee thanks the Treasurer for this response. In relation to the type of documents that may be adopted, applied or incorporated by reference, the committee notes the Treasurer’s advice that the power in subclause 20(5) would allow the rules to incorporate a document published by an international medical organisation, or in a State or Territory Act or instrument. Other examples of documents that may be incorporated by reference include instruments detailing travel restrictions, and industry classifications as set out in a publication of the Australian Statistician.

2.27 As to why it is necessary to incorporate the relevant documents as in force from time to time, the committee notes the Treasurer's advice that subclause 20(5) was included to provide flexibility in the event that unforeseen developments require making urgent payments in accordance with the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020, in circumstances where it may not be possible to arrangement for the sitting of Parliament. The committee also notes the advice that while these circumstances were considered unlikely, they could not be ruled out.

2.28 Finally, the committee notes the Treasurer's advice that if the power in subclause 20(5) were used, any relevant document applied, adopted or incorporated into the relevant rules would be made available to the public free of charge.

2.29 The committee considers that it would have been useful had the information set out in the Treasurer's response been included in the explanatory memorandum.

2.30 In light of the fact that the bill has passed both Houses of the Parliament, the committee makes no further comment on this matter.

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[9] Subclause 20(5). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[10] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2020, pp. 7-8.

[11] The minister responded to the committee's comments in a letter dated 28 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