Social Security Legislation Amendment (Remote Engagement Program) Bill 2021 [2021] AUSStaCSBSD 207 (16 September 2021)

• Social Security Legislation Amendment (Remote Engagement Program) Bill 2021
• Significant matters in delegated legislation52

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Social Security Legislation Amendment (Remote Engagement Program) Bill 2021

Purpose	Parts 1 and 2 of Schedule 1 to the Bill seek to amend the Social Security Act 1991 and the Social Security (Administration) Act 1999 to: · establish a new payment under the remote engagement program, (i.e. the ‘remote engagement program payment’), which will be set at a rate between $100 and $190 per fortnight, for a maximum continuous period of 104 weeks; · establish high-level qualifying criteria for the remote engagement program payment; · establish that participation in the remote engagement placement is voluntary and a person can volunteer to leave the placement if they choose; and · enable the minister to make legislative instruments that specify additional qualification criteria, determine circumstance in which the remote engagement program payment is not payable, and fix the rate of the remote engagement program payment. Parts 3 and 4 of Schedule 1 to the bill contain amendments to repeal or omit sections of the Social Security Act 1991 applying to past Australian Government programs that have now closed.
Portfolio	Indigenous Australians
Introduced	House of Representatives on 1 September 2021

Significant matters in delegated legislation^[52]

1.75 Item 7 to Schedule 1 to the bill seeks to insert Part 2.13 into the Social Security Act 1991 to establish the remote engagement program payment. Proposed subsection 661A(1) sets out the circumstances where a person will qualify for a remote engagement program payment. This includes that the person satisfies the qualification requirements determined by the minister, by legislative instrument, under proposed paragraph 661A(2)(c).

1.76 Additionally, proposed section 661C provides that the minister may, by legislative instrument, specify the circumstances in which a remote engagement program payment is not payable to a person.

1.77 The committee's view is that significant matters, such as when a person will be eligible or ineligible for a payment, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In relation proposed subsection 661A(2), the explanatory memorandum states:

The purpose of this is to provide flexibility and enable further specificity in relation to the qualification criteria if required following the co-design process. Any additional criteria must be made by legislative instrument and will therefore be subject to the scrutiny of, and disallowance by, the Parliament.^[53]

1.78 In relation to proposed section 661C, the explanatory memorandum states:

The purpose of this section is to afford sufficient flexibility in the design of the remote engagement placement, to accommodate:
· the outcomes of the co-design process with community; and
· improvements in the design of the remote engagement placement, identified through feedback from participants and remote engagement program providers.^[54]

1.79 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. It is unclear to the committee why at least high-level guidance in relation to additional qualification requirements and the circumstances in which a remote engagement program payment will not be payable to a person cannot be provided on the face of the bill. Additionally, the committee considers that providing the minister with the ability to determine that a remote engagement program payment is not payable in circumstances where there is no guidance on the face of the primary legislation provides the minister with a broad discretionary power. 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.

1.80 In light of the above, the committee requests the minister's detailed advice as to:

· why it is considered necessary and appropriate to leave matters relating to when a person will be eligible or ineligible for the remote engagement program payment to delegated legislation; and

· whether the bill can be amended to include at least high-level guidance in relation to:

· what additional qualification requirements may be determined under proposed paragraph 661A(2)(c); and

· what circumstances in which a remote engagement program payment will not be payable to a person may be specified in a legislative instrument made under proposed subsection 661C(2).

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^[52] Schedule 1, item 7, proposed paragraph 661A(2)(c) and proposed section 661C. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

^[53] Explanatory memorandum, p. 9.

^[54] Explanatory memorandum, p. 11.