Treasury Laws Amendment (2020 Measures No 4) Bill 2020 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 15 (29 January 2021)

• Treasury Laws Amendment (2020 Measures No. 4) Bill 2020
• Power for delegated legislation to modify the operation of primary legislation (akin to Henry VIII clause)20

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Treasury Laws Amendment (2020 Measures No. 4) Bill 2020

Purpose	Schedule 1 to this bill seeks to amend the income tax law to ensure that no tax is payable on refunds of large-scale generation certificate shortfall charges Schedule 2 to this bill seeks to facilitate the closure of the Superannuation Complaints Tribunal and any associated transitional arrangements Schedule 3 to this bill seeks to enable the government to establish a more effective enforcement regime to encourage greater compliance with the franchising code by increasing the maximum civil pecuniary penalty available for a breach of an industry code, and increasing the civil pecuniary penalties for breaches of the franchising code accordingly Schedule 4 to this bill seeks to extend the operation of a temporary mechanism put in place during the coronavirus pandemic, to respond to the ongoing challenges posed by social distancing measures and restrictions on movement and gathering in Australia and overseas
Portfolio	Treasury
Introduced	House of Representatives on 28 October 2020
Bill status	Before the House of Representatives

Power for delegated legislation to modify the operation of primary legislation (akin to Henry VIII clause)^[20]

2.50 In Scrutiny Digest 16 of 2020 the committee requested the Assistant Treasurer's advice as to whether the bill could be amended to remove the ability of the Assistant Treasurer to, by legislative instrument, extend the operation of the modification power in Schedule 5 of the Act beyond 31 March 2021.^[21]

Assistant Treasurer's response^[22]

2.51 The Assistant Treasurer advised:

The unpredictable nature of the COVID 19 pandemic poses particular risks to ensuring timely Government responses to the pandemic without flexible mechanisms in place. The types of determinations that are, or would be, made under this Schedule are in the nature of providing greater flexibility for individuals and businesses to comply with requirements under Commonwealth legislation via allowing additional acceptable mechanisms for compliance, with no disadvantage or detrimental effects on individuals or entities. Instead, enabling Australians to fulfil document requirements through alternative means, including electronically, is necessary to ensure that individuals, particularly vulnerable Australians, can continue to access government services without unnecessary difficulty in the face of social distancing restrictions.
Due to the COVID 19 pandemic, it is not unforeseeable that there could be further disruptions or changes to the Parliamentary sitting schedule in 2021, which would heighten the risks around progressing amendments to primary legislation swiftly in such circumstances.
I note that under Schedule 4 to the Bill the designated Minister will only be able to extend the modification power, if they are satisfied it is in response to the circumstances relating to the COVID 19 pandemic. As such, the power is for a specific purpose and is restrictive rather than perpetual in nature. Additionally, the designated Minister may only extend the modification power by a legislative instrument which would be subject to the scrutiny of the Parliament and disallowable. As such, Parliament will continue to have oversight of any further extensions of the modification power beyond 31 March 2021 and will have the ability to disallow the extension.
In summary, the Attorney-General's Department have advised that it is critical to retain the ability for the Attorney-General to extend the operation of the mechanism by ministerial determination.

Committee comment

2.52 The committee thanks the Assistant Treasurer for this response. The committee notes the Assistant Treasurer's advice that the types of determinations that are, or would be, made under this Schedule are in the nature of providing greater flexibility for individuals and businesses to comply with requirements under Commonwealth legislation and that under Schedule 4 to the bill the designated minister will only be able to extend the modification power if they are satisfied it is in response to the circumstances relating to the COVID-19 pandemic.

2.53 The committee also notes the Assistant Treasurer's advice that the designated minister may only extend the modification power by a disallowable legislative instrument, which would therefore be subject to the scrutiny of the Parliament, and that this power is for a specific purpose and is restrictive rather than perpetual in nature.

2.54 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.55 The committee draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

2.56 In light of the information provided, the committee makes no further comment on this matter.

2.57

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[20] Schedule 4, item 1, proposed subitems (7) and (8) of section 1 of Schedule 5, and item 2, proposed subsections 1, 2 and 3 of Schedule 5, section 1. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[21] Senate Scrutiny of Bills Committee, Scrutiny Digest 16 of 2020, pp. 26-28.

[22] The Assistant Treasurer responded to the committee's comments in a letter dated 7 December 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 18 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest.