Veterans' Affairs Legislation Amendment (Exempting Disability Payments From Income Testing and Other Measures) Bill 2021 [2021] AUSStaCSBSD 244 (24 November 2021)

• Veterans' Affairs Legislation Amendment (Exempting Disability Payments from Income Testing and Other Measures) Bill 2021
• Significant matters in delegated legislation53

---

Veterans' Affairs Legislation Amendment (Exempting Disability Payments from Income Testing and Other Measures) Bill 2021

Purpose	This bill seeks to amend the Social Security Act 1991 to exempt certain Department of Veterans’ Affairs payments known collectively as Adjusted Disability Pension (ADP) from the social security income test. This bill also seeks to repeal the collective definition of ADP from the Veterans’ Entitlements Act 1986 and as a result of the social security income test exemption removes the need for the Defence Force Income Support Allowance as social security payments will increase as a result of the exemption. This bill also repeals the operation and definition of the DFISA and DFISA Bonus from the Veterans’ Entitlements Act 1986 and consequentially removes all references to it from Commonwealth primary legislation.
Portfolio	Veterans’ Affairs
Introduced	House of Representatives on 21 October 2021

Significant matters in delegated legislation^[53]

1.120 Schedule 5 to the bill seeks to insert proposed Part 2A of Chapter 3 into the Military Rehabilitation and Compensation Act 2004 to establish a pilot for non-liability rehabilitation for current or former members of the Defence Force. Proposed section 53D provides that the Military Rehabilitation and Compensation Commission may, by legislative instrument, determine a number of matters in relation to the program. This includes classes of persons to whom Part 2A applies, the conditions in relation to the provision of a rehabilitation program and the limits (whether financial or otherwise) in relation to the provision of a rehabilitation program.

1.121 The committee's consistent scrutiny view is that significant matters, such as the key details of rehabilitation programs, should be included in primary legislation unless a sound justification for the use of delegated legislation has been provided. In this instance, the explanatory memorandum states:

This enables a flexible and responsive mechanism for the MRCC to set out relevant considerations in the provision of rehabilitation support under the pilot to meet the rehabilitation needs of relevant members and former members without delay.^[54]

1.122 The committee has generally not accepted a desire for administrative flexibility as a sufficient justification of itself for leaving significant matters to delegated legislation. 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. It is unclear to the committee why at least high-level guidance regarding these matters could not be provided on the face of the primary legislation.

1.123 The committee notes that the explanatory memorandum states that the pilot program is intended to operate for two years. However, this is not provided for on the face of the primary legislation. From a scrutiny perspective, the committee considers that it would be more appropriate if the bill provided that the provisions only operate for the intended length of the pilot program. In this regard, the committee notes that if it were necessary to extend the pilot program, or to make it ongoing, it would be appropriate for this to be achieved through future amendments to the primary legislation.

1.124 The committee requests the minister's more detailed advice as to:

• why it is considered necessary and appropriate to leave the key details of the non-liability rehabilitation pilot program to delegated legislation; and

• whether the bill could be amended to:

• include at least high-level guidance regarding these matters on the face of the primary legislation; and

• provide that proposed Part 2A of Chapter 3 is repealed after two years.

---

[53] Schedule 5, item 5, proposed section 53D. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[54] Explanatory memorandum, p. 22.