Social Services and Other Legislation Amendment (Extension of Coronavirus Support) Bill 2020 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 29 (3 February 2021)

• Social Services and Other Legislation Amendment (Extension of Coronavirus Support) Bill 2020
• Power for delegated legislation to modify primary legislation (akin to Henry VIII clause)
• Retrospective application
• Significant matters in delegated legislation26

---

Social Services and Other Legislation Amendment (Extension of Coronavirus Support) Bill 2020

Purpose	This bill seeks to allow for the extension of temporary Coronavirus supplements, and to modify provisions and discretionary powers in relation to the Government's legislative framework responding to the COVID-19 pandemic
Portfolio	Social Services
Introduced	House of Representatives on 12 November 2020
Bill status	Received Royal Assent on 17 December 2020

Power for delegated legislation to modify primary legislation (akin to Henry VIII clause)
Retrospective application
Significant matters in delegated legislation^[26]

2.61 In Scrutiny Digest 17 of 2020 the committee requested the minister's advice as to:

• why it is considered necessary and appropriate for proposed section 1262 to provide for the modification of primary legislation by delegated legislation, particularly in circumstances where regular parliamentary sittings have recommenced; and

• why it is considered necessary and appropriate to specify that a determination may provide that a person is taken to have done a specified thing on a day before the determination commences, including whether any persons are likely to be adversely affected by this provision and the extent to which their interests are likely to be affected.^[27]

Minister's response^[28]

2.62 The minister advised:

Modification of primary legislation by an instrument during parliamentary sittings
The instrument-making power specified in section 1262 is a much narrower power than item 40A of Schedule 11 to the Coronavirus Economic Response Package Omnibus Act 2020 (item 40A), which is automatically repealed on 31 December 2020. Section 1262 only allows certain specified provisions of social security law to be modified, if it is appropriate to respond to future impacts of COVID-19. Item 40A provides a far wider power encompassing unspecified modifications to the social security law, in response to COVID-19 impacts. I intend to use the new power under section 1262 to continue those beneficial measures currently in place under instruments made under item 40A, by making a new disallowable legislative instrument commencing on 1 January 2021. This instrument would give effect to the temporary extensions of COVID-19 measures announced by the Prime Minister and myself on 10 November 2020.
The future impacts of COVID-19 are unpredictable and, while the Parliament has returned to a normal sitting pattern, the Government considers that it is prudent to retain a power such as section 1262 until the end of March 2021. The Parliament is not sitting in January 2021 and it is unlikely that any new primary legislation could be passed until mid-February 2021, at the earliest. Section 1262 will assist the Government to respond to any COVID-19 circumstances early in 2021. The Government accepts that the duration of this power should be strictly limited, which is why the Bill provides for the power to cease after 31 March 2021.
Allowing a determination before commencement
Subsection 1262(5) has been included in the Bill to ensure that there is flexibility available for a determination to be drafted in the way that is most appropriate to deliver beneficial measures.
It has been necessary for some 40A instruments to regulate events or actions that occurred before those instruments commenced, for the benefit of those affected. For example, the Social Security (Coronavirus Economic Response—2020 Measures No. 11) Determination 2020 applies from 22 June 2020 to ensure that people who cease to be payable due to employment income can continue to access certain ancillary benefits (such as concession cards). This determination deems eligible individuals to be receiving a social security payment for the period 22 June 2020 to 31 December 2020 (inclusive). As the instrument has been amended, the amendments have applied to nil rate periods that were in place on 22 June 2020 (and later) so that people who actually stopped receiving their payment can continue to be treated as 'receiving' their payment going forward, for the purposes of the social security law.
By way of further example, the Social Security (Coronavirus Economic Response—2020 Measures No. 10) Determination 2020 applies to people who arrive in Australia during the period 11 March 2020 to 31 December 2020 (inclusive). This instrument, among other things, ensures the Secretary can make determinations that treat certain Age Pension recipients and Disability Support Pension recipients as eligible for a higher rate of payment despite the recipient otherwise exceeding the standard overseas payment portability requirements for their payment. This instrument had a period of retrospective operation to benefit some people, as it was made after 11 March 2020 but applies to a person whose standard portability period ended on that date (or a later date).
Proposed subsection 1262(5) is intended to allow beneficial temporary modifications to be made to the social security law that may require a person to be deemed to have done something prior to commencement of a section 1262 determination to better adapt the temporary modification to the concepts and structure of social security law. However, the subsection is not intended to permit determinations to have any form of retrospective effect that disadvantages or imposes any liabilities as a result of a person being deemed to have done something prior to the commencement of the determination.

Committee comment

2.63 The committee thanks the minister for this response. The committee notes the minister's advice that, in contrast with item 40A of Schedule 11 to the Coronavirus Economic Response Package Omnibus Act 2020, which provided a broad power to make unspecified modifications to the social security law, proposed section 1262 only allows for certain specified provisions of social security law to be modified, if it is appropriate to respond to future impacts of COVID-19. The committee also notes the minister's advice that it is intend the new power under section 1262 will be used to continue those beneficial measures currently in place under instruments made under item 40A.

2.64 In relation to the retrospective application of determinations made under proposed subsection 1262(5), the committee notes the minister's advice that proposed subsection 1262(5) is intended to allow beneficial temporary modifications to be made to the social security law that may require a person to be deemed to have done something prior to commencement of a section 1262 determination to better adapt the temporary modification to the concepts and structure of social security law.

2.65 The committee also notes the minister's advice that subsection 1262(5) is not intended to permit determinations to have any form of retrospective effect that disadvantages or imposes any liabilities as a result of a person being deemed to have done something prior to the commencement of the determination.

2.66 The committee notes, however, that information relating to the intended beneficial nature of any modifications to the social security law is not included on the face of the bill or in the explanatory memorandum.

2.67 The committee remains of the view that significant matters, such as modifications to the social security law to address the consequences of a national pandemic, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. However, in this regard, the committee notes the minister's advice that the bill provides for the power to cease after 31 March 2021, acknowledging that the duration of such a power should be strictly limited.

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

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

---

[26] Schedule 1 item 44 proposed section 1262. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (iv).

[27] Senate Scrutiny of Bills Committee, Scrutiny Digest 17 of 2020, pp. 21-22.

[28] The minister responded to the committee's comments in a letter dated 18 December 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.