Social Services and Other Legislation Amendment (Extension of Coronavirus Support) Bill 2020 [2020] AUSStaCSBSD 212 (2 December 2020)

• Social Services and Other Legislation Amendment (Extension of Coronavirus Support) Bill 2020
• Power for delegated legislation to modify primary legislation (akin to Henry VIII clause)
• Retrospective application
• Significant matters in delegated legislation1

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Social Services and Other Legislation Amendment (Extension of Coronavirus Support) Bill 2020

Purpose	This bill seeks to allow for the extension of temporary Coronavirus supplements, and to modify provisions and discretionary powers in relation to the Government's legislative framework responding to the COVID-19 pandemic
Portfolio	Social Services
Introduced	House of Representatives on 12 November 2020

Power for delegated legislation to modify primary legislation (akin to Henry VIII clause)
Retrospective application
Significant matters in delegated legislation^[1]

1.45 Item 44 of Schedule 1 seeks to insert proposed section 1262 into the Social Security Act 1991 to provide that the minister may, by legislative instrument, determine modifications to specified provisions of the social security law. These specified provisions of the social security law include special COVID-19 qualification rules for youth allowance and jobseeker payments and waiting periods for specified persons for JobKeeper payments, among others.^[2] The minister must be satisfied that the modifications are in response to circumstances relating to COVID-19.^[3]

1.46 Proposed subsection 1262(5) provides that a determination made under proposed subsection 1262(1) may provide that a person is taken to have done a specified thing on a day before the determination commences.

1.47 Proposed section 1263 provides that a determination made under proposed subsection 1262(1) may only remain in force until 31 March 2021, or 16 April 2021 for determinations which amend nil-rate provisions.

1.48 A provision that enables delegated legislation to amend or modify primary legislation is known as a Henry VIII clause. There are significant scrutiny concerns with enabling delegated legislation to override the operation of legislation which has been passed by Parliament as such clauses impact on the level of parliamentary scrutiny and may subvert the appropriate relationship between the Parliament and the Executive. As such, the committee expects a sound justification for the use of a Henry VIII clause to be provided in the explanatory memorandum.

1.49 The committee's view is that significant matters, such as modifications to the social security law to address the consequences of a national pandemic, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. Proposed section 1262 would allow modifications to be made to primary legislation in the absence of the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.50 In addition, the committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals. Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected.

1.51 In relation to the above scrutiny concerns, the committee notes that the explanatory memorandum provides little justification for the powers in proposed section 1262 of the bill beyond a description of the operation of the provision. The explanatory memorandum provides no justification as to why it is necessary and appropriate for the minister to modify the operation of social security law by delegated legislation, except to note that the bill 'allows the Minister to make temporary and targeted modifications to specified provisions of the social security law, to respond to COVID-19'.^[4] The retrospective application provided for by proposed subsection 1262(5) is also not justified in the explanatory memorandum.

1.52 In light of the above scrutiny concerns, the committee request's the minister's advice as to:

• why it is considered necessary and appropriate for proposed section 1262 to provide for the modification of primary legislation by delegated legislation, particularly in circumstances where regular parliamentary sittings have recommenced; and

• why it is considered necessary and appropriate to specify that a determination may provide that a person is taken to have done a specified thing on a day before the determination commences, including whether any persons are likely to be adversely affected by this provision and the extent to which their interests are likely to be affected.

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[1] Schedule 1 item 44 proposed section 1262. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (iv).

[2] See pages 8-9 of the explanatory memorandum for an overview of the relevant provisions of the social security law which the minister may modify under the bill.

[3] Proposed subsection 1262(3).

[4] Explanatory memorandum, p. 8.