COVID-19 Disaster Payment (Funding Arrangements) Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 190 (25 August 2021)

• COVID-19 Disaster Payment (Funding Arrangements) Bill 2021
• Significant matters in delegated legislation
• Parliamentary scrutiny9

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COVID-19 Disaster Payment (Funding Arrangements) Bill 2021

Purpose	This bill seeks to provide time-limited financial assistance to eligible workers who are unable to earn their usual income as a result of public health restrictions, such as public health orders imposed by State or Territory governments, and where the Commonwealth Chief Medical Officer has determined the location to be a COVID-19 hotspot for the purposes of Commonwealth support
Portfolio	Agriculture, Drought and Emergency Management
Introduced	House of Representatives on 16 June 2021
Bill status	Act

Significant matters in delegated legislation
Parliamentary scrutiny^[9]

2.18 In Scrutiny Digest 9 of 2021 the committee requested the minister's advice as to:

• why it is considered necessary and appropriate to leave the amount of, and eligibility requirements for, the COVID-19 Disaster Payment to delegated legislation and non-legislative guidelines; and

• whether the bill can be amended to include at least high-level guidance regarding the payment and the associated annual reporting obligation on the face of the primary legislation.^[10]

Minister's response^[11]

2.19 The minister advised:

The COVID-19 Disaster Payment (the Payment) was established in recognition that extended periods of public health measures restricting the movement of people (lockdowns) can have serious financial implications for workers who are unable to go to work and earn their usual income. The Payment was to encourage workers to comply with the health orders and prevent them from taking any unnecessary risks as a result of financial stress, thereby controlling the spread of COVID-19.
The Payment was provided in the first instance to Greater Melbourne, which was subject to a two week lockdown in June 2021 due to an outbreak of the Delta variant of COVID-19. Given the need to implement a rapid solution, as well as the absence of a readily available legislative mechanism to make the Payments, placing the authority for making the Payment in delegated legislation was considered the most appropriate mechanism.
It is standard practice for grant programs to set the eligibility criteria in grant guidelines, in accordance with the Commonwealth Grant Rules and Guidelines. The longer that lockdowns are required to contain COVID-19 outbreaks, the greater the economic strain experienced by people in the lockdown areas. In response to the current extended outbreak and resulting original payment amount to ensure that those subjected to continued lockdown restrictions are supported. The multiple variables associated with the COVID-19 pandemic mean that it is necessary that the payment amount remain flexible and not enshrined in primary legislation.
The Australian Government intends to introduce primary legislation to support the Payment as soon as possible in the spring sitting period. The primary legislation will include the scope and broad eligibility parameters for disaster payments made available in response to pandemics.
The COVID-19 Disaster Payment (Funding Arrangements) Bill 2021 (the Bill) was introduced urgently to provide for a special appropriation from the Consolidated Revenue Fund to pay eligible claims for the Payment for the 2021-22 financial year. Due to the urgent introduction of this Bill to establish the special appropriation prior to the end of financial year and its scope, the Bill was not considered an appropriate mechanism to provide for the Payment in primary legislation.
As mentioned above, the Government intends introducing primary legislation to support the Payment in the spring sitting period.

Committee comment

2.20 The committee thanks the minister for this response. The committee notes the minister's advice that given the need to implement a rapid solution, as well as the absence of a readily available legislative mechanism to make COVID-19 Disaster Payments, placing the authority for making the payment in delegated legislation was considered the most appropriate mechanism. The committee also notes the minister's advice that it is standard practice for grant programs to set the eligibility criteria in grant guidelines, in accordance with the Commonwealth Grant Rules and Guidelines.

2.21 The committee also notes the minister's advice that multiple variables associated with the COVID-19 pandemic mean that it is necessary that the payment amount remain flexible and not enshrined in primary legislation.

2.22 While noting this explanation, the committee has generally not accepted a desire for administrative flexibility to be a sufficient justification, of itself, for leaving significant matters to delegated legislation or non-legislative guidelines. While the committee acknowledges that some flexibility may be required, it remains unclear why at least high-level guidance in relation to amount of, and eligibility requirements for, the payment cannot be provided on the face of the bill.

2.23 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. Moreover, non-legislative guidelines are not subject to any level of parliamentary scrutiny or oversight.

2.24 The committee welcomes the minister's advice that the government intends to introduce primary legislation to support the COVID-19 Disaster Payment as soon as possible in the spring sitting period and that the primary legislation will include the scope and broad eligibility parameters for disaster payments made available in response to pandemics.

2.25 However, from a scrutiny perspective, the committee considers that this bill should have included additional high-level guidance regarding the amount of, and eligibility requirements for, the Payment on the face of the primary legislation.

2.26 The committee also 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.

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

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[9] Schedule 1, item 1. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

[10] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2021, pp. 1-3.

[11] The minister responded to the committee's comments in a letter dated 11 August 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 13 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.