Economic Recovery Package (Jobmaker Hiring Credit) Amendment Bill 2020 [2020] AUSStaCSBSD 183 (11 November 2020)

• Economic Recovery Package (JobMaker Hiring Credit) Amendment Bill 2020
• Significant matters in delegated legislation52

---

Economic Recovery Package (JobMaker Hiring Credit) Amendment Bill 2020

Purpose	Schedule 1 to this Bill seeks to amend the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 to facilitate the JobMaker Hiring Credit scheme.
Portfolio	Treasury
Introduced	House of Representatives on 7 October 2020

Significant matters in delegated legislation^[52]

1.60 The bill seeks to insert proposed subsection 7(1A) into the Coronavirus Economic Response Package (Payments and Benefits) Act 2020. This would allow the Treasurer to make rules for the provision for and in relation to the JobMaker Hiring Credit Scheme. Proposed paragraph 7(1A)(a) provides that the rules may provide for one or more kinds of payments by the Commonwealth to an entity for the purpose of improving the prospects of individuals getting employment in Australia^[53] or to increase workforce participation.^[54] Such payments must be in relation to a relevant period that occurs from 7 October 2020 to 6 October 2022. Proposed paragraph 7(1A)(b) provides that the rules may also make provision for the establishment of a scheme to provide for matters relating to such payments and matters relating to the scheme.

1.61 The explanatory memorandum provides details in relation to what it is intended will be included in the rules:

The amendments are restricted to facilitating payments under the JobMaker Hiring Credit scheme, which will support businesses to hire additional employees and expand their organisation to ensure young people can access new employment opportunities as the economy recovers from the Coronavirus
Rules will be made by the Treasurer to establish the JobMaker Hiring Credit scheme, including setting out:

• which employers qualify for the payment;

• the employees to which payments relate;

• the amount payable and timing of payments; and

• the obligations for recipients of the payment.^[55]

1.62 The committee has consistently drawn attention to framework bills which contain only the broad principles of a legislative scheme and rely heavily on delegated legislation to determine the scope and operation of the scheme. The committee considers that such an approach considerably limits the ability of Parliament to have appropriate oversight over new legislative schemes. Consequently, the committee's view is that significant matters, such as details of the operation of significant COVID-19 response measures, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.

1.63 In this instance, the explanatory memorandum provides no explanation as to why these matters are left to delegated legislation. It is unclear to the committee why at least high level guidance cannot be included in the primary legislation, particularly noting that details of the operation of the scheme appear to have been finalised.^[56] In this regard, the committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.64 The committee's view is that significant matters, such as the core elements of the new JobMaker Hiring Credit Scheme, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.

1.65 The committee therefore requests the minister's detailed advice as to:

• why it is considered necessary and appropriate to leave virtually all of the details of the operation of this new scheme to delegated legislation; and

• whether the bill can be amended to prescribe at least broad guidance in relation to:

- which employers will qualify for payment under the scheme;

- which employees will be eligible employees for the purposes of the scheme;

- the amount payable and timing of payments; and

- the obligations for recipients of the payment.

---

[52] Schedule 1, item 3, proposed subsection 7(1A). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[53] Proposed subparagraph 7(1A)(a)(i).

[54] Proposed subparagraph 7(1A)(a)(ii).

[55] Explanatory memorandum, p. 7.

[56] See, for example, JobMaker Hiring Credit, https://budget.gov.au/2020-21/content/factsheets/download/jobmaker_hiring_credit_factsheet.pdf, and Australian Taxation Office, JobMaker Hiring Credit, https://www.ato.gov.au/General/New-legislation/The-Australian-Government-s-economic-response-to-coronavirus/JobMaker-Hiring-Credit/.