Coronavirus Economic Response Package Omnibus Bill 2020 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 84 (13 May 2020)

• Coronavirus Economic Response Package Omnibus Bill 2020
• Henry VIII clauses—modification of primary legislation by delegated legislation 7
• Delegation of legislative power
• Broad discretionary powers10

---

Coronavirus Economic Response Package Omnibus Bill 2020

Purpose	This bill is part of a legislation package which seeks to amend various Acts to provide an economic response, and deal with other matters, relating to the coronavirus
Portfolio	Treasury
Introduced	House of Representatives on 23 March 2020
Bill status	Received Royal Assent on 24 March 2020

Henry VIII clauses—modification of primary legislation by delegated legislation ^[7]

2.15 In Scrutiny Digest 5 of 2020 the committee requested the Minister for Families and Social Services' advice as to why it is necessary and appropriate to include broad powers in the bill which allow delegated legislation to amend the operation of the social security law, and the circumstances in which it is envisaged that these powers are likely to be used.^[8]

Minister's response^[9]

2.16 The Minister for Families and Social Services advised:

I note the issues the Committee has outlined in Scrutiny Digest 5 of 2020, particularly in relation to item 40A of Schedule 11 to the Act, which provides me the power to modify social security law by legislative instrument to vary provisions on a temporary basis relating to the qualifications of persons for social security payments and the rate of social security payments.
I appreciate the need for scrutiny around a provision such as item 40A of Schedule 11 and I note the Committee's concerns in relation to the Explanatory Memorandum. This power will allow the Government to act rapidly to ensure appropriate support is provided to those in need during the unprecedented and rapidly changing circumstances we are experiencing in respect of the Coronavirus outbreak. It also allows the Government to address any unintended consequences in the application of legislation as changes to social security payments are implemented. I have provided some additional information below in relation to its inclusion, for the Committee's consideration.
The Committee requested advice on the circumstances in which the power in item 40A of Schedule 11 would be used.
By way of example, the item 40A of Schedule 11 power has been used to:
• provide additional financial support to students
• extend the period that applicants for social security payments have to lodge a claim after submitting an intent to claim, to address the unprecedented number of applications for social security made to Services Australia
• reduce the partner income test taper rate for JobSeeker Payment from 60 cents in the dollar to 25 cents in the dollar.
As the Committee notes, item 40A of Schedule 11 will be repealed on 31 December 2020 and all instruments made under the item will cease having effect on that date. In addition, before making temporary modifications to social security law under item 40A of Schedule 11, I must be satisfied that the modifications are in response to circumstances relating to COVID-19.

Committee comment

2.17 The committee thanks the minister for this response. The committee notes the minister's advice that item 40A of Schedule 11 will allow the government to act rapidly to ensure appropriate support is provided to those in need during the unprecedented and rapidly changing circumstances experienced in respect of the coronavirus outbreak.

2.18 The committee also notes the minister’s advice regarding the circumstances where the power at item 40A has been used, including to extend the period that applicants for social security payments have to lodge a claim after submitting an intent to claim.

2.19 While the committee welcomes this additional information, the committee takes this opportunity to reiterate that 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.

2.20 The committee considers that if the Parliament is sitting changes to, or exemptions from, primary legislation should be made by introducing a bill for consideration by the Parliament, rather than relying on the use of a Henry VIII clause.

2.21 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.

Delegation of legislative power
Broad discretionary powers^[10]

2.22 In Scrutiny Digest 5 of 2020 the committee requested the Minister for Families and Social Services' advice as to why it is necessary and appropriate to provide the minister with broad discretionary powers to alter or extend the operation of supplement payments in the Social Security Act 1991, including the appropriateness of allowing the minister to set the amount of supplement below the amount provided for by the Parliament in the primary legislation.^[11]

Minister's response

2.23 The minister advised:

The Committee has also raised concerns regarding my ability to alter or extend the operation of supplement payments, including allowing the amount of the Supplement to be set below the amount provided for by the Parliament in the primary legislation.
The Government has announced the Supplement will be paid at the rate of $550 per fortnight, and will be paid from 27 April 2020. As the situation develops, the Government will review the settings associated with income support to ensure we are responding to circumstances as they arise. Flexibility around the timing and scope of payments is required given the uncertainty over the length and severity of the economic impacts of the Coronavirus, and how we emerge from the crisis.
Providing additional financial support through social security is just one of the ways we are helping support individuals, communities and the economy during these testing times.

Committee comment

2.24 The committee thanks the minister for this response. The committee notes the minister's advice that the government will review the settings associated with income support to ensure they are responding to circumstances as they arise. The committee also notes the minister's advice that flexibility around the timing and scope of payments is required given the uncertainty over the length and severity of the economic impacts of the coronavirus, and how we emerge from the crisis.

2.25 While the committee acknowledges this advice, the committee has generally not accepted administrative flexibility as a sufficient justification for broad discretionary powers to modify significant schemes by delegated legislation, particularly when there is limited guidance on the face of the primary legislation as to when these powers should be exercised.

2.26 The committee considers that if the Parliament is sitting changes to the COVID-19 supplement scheme should be made by introducing a bill for consideration by the Parliament, rather than relying on the use of the broad discretionary power to modify the scheme by delegated legislation.

2.27 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.

2.1

---

[7] Schedule 8, item 1 and Schedule 11, item 40A. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[8] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2020, pp. 13-14.

[9] The minister responded to the committee's comments in a letter dated 6 May 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 6 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest

[10] Schedule 11, items 12, 13, 21, 22, 30, 34 and 39. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii) and (iv).

[11] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2020, pp. 14-15.