Family Assistance Legislation Amendment (Early Childhood Education and Care Coronavirus Response and Other Measures) Bill 2021 [2021] AUSStaCSBSD 46 (24 February 2021)

• Family Assistance Legislation Amendment (Early Childhood Education and Care Coronavirus Response and Other Measures) Bill 2021
• Significant matters in delegated legislation12
• Retrospective validation13
• Broad delegation of administrative powers15

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Family Assistance Legislation Amendment (Early Childhood Education and Care Coronavirus Response and Other Measures) Bill 2021

Purpose	This bill seeks to respond to the impacts of the COVID-19 pandemic on the early childhood education and care sector and families, by expanding the circumstances in which the Commonwealth can pay business continuity payments to approved child-care providers
Portfolio	Education
Introduced	17 February 2021

Significant matters in delegated legislation^[12]

1.10 Item 17 seeks to insert proposed section 205C into the A New Tax System (Family Assistance) (Administration) Act 1999 (Administration Act) which would provide for 'business continuity payments' to be made to eligible childcare service providers during periods of emergency or disasters.

1.11 Proposed section 205C provides for a number of matters in relation to administering the provision to be provided for in delegated legislation, including the following:

• proposed paragraph 205C(1)(c) provides for business continuity payments to be made if the Secretary is satisfied of matters, including meeting eligibility criteria (if any), which can be specified in the Minister's rules;

• proposed paragraph 205C(1)(d) provides that the Minister's rules may specify the period of a payment;

• proposed paragraph 205C(1)(e) provides that the amount of payment is prescribed or determined by the Minister's rules;

• proposed subsection 205C(2) provides that what constitutes an 'emergency or disaster' is prescribed in rules or within meanings set out in the Social Security Act 1991;

• proposed subsection 205C(3) provides that the Minister's rules may prescribe any other matters relating to business continuity payments.

1.12 In addition, item 36, in relation to amounts paid under section 205A of the Administration Act, provides that the Minister may by legislative instrument make rules determining circumstances in which the whole or part of the amount is taken to be a debt due to the Commonwealth under Part 4 of the Administration Act.

1.13 The committee's view is that significant matters, such as rules relating to the manner in which business continuity payments may be made and rules determining the circumstances in which a debt will be due to the Commonwealth, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In relation to the two items above, the explanatory memorandum contains no justification regarding why it is necessary to allow such significant matters to be set out in delegated legislation.

1.14 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.

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

• why it is considered necessary and appropriate to leave significant matters such as the manner in which business continuity payments may be made and the determination of circumstances in which a debt will be due to the Commonwealth to delegated legislation;

• whether the bill can be amended to include at least high-level guidance regarding these matters on the face of the primary legislation.

Retrospective validation^[13]

1.16 Item 38 of the bill seeks to provide that paragraphs 8(1)(h) and (i) and section 47AA of the Child Care Subsidy Minister's Rules 2017 are taken to be, and always to have been, valid exercises of power under subsection 85GB(1) of the A New Tax System (Family Assistance) Act 1999.

1.17 In seeking to provide that these provisions are taken to always have been valid exercises of power, item 38 appears to seek to provide retrospective validation to these provisions. The committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as this challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

1.18 The explanatory memorandum states that item 38:

clarifies that paragraphs 8(1)(h) and (i), and section 47AA, of the Minister’s Rules are, and always were, valid exercises of the power to make those rules. During the ECEC [early childhood education and care] Relief Package, these provisions gave effect to measures to switch off eligibility for CCS [child care subsidy] and prevent providers from charging fees for care, in return for being paid BCPs.^[14]

1.19 Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected.

1.20 The committee therefore requests the advice of the minister as to:

• why retrospective validation is sought in relation to paragraphs 8(1)(h) and (i) and section 47AA of the Child Care Subsidy Minister's Rules 2017; and

• whether any persons are likely to be adversely affected by the retrospective validation of the provisions, and the extent to which their interests are likely to be affected.

Broad delegation of administrative powers^[15]

1.21 Proposed subsection 221(5) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Administration Act) would allow the secretary to delegate to an official of a non-corporate Commonwealth entity the Secretary's powers under section 85GA of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act). Section 85GA of the Family Assistance Act provides the secretary with a power to enter into, vary and administer written agreements under which the Commonwealth makes one or more grants of money for child care-related purposes.^[16]

1.22 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.

1.23 In this instance, the explanatory memorandum states that the power in section 85GA is similar to powers of secretaries to enter into and administer grant agreements under section 23 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and section 32B of the Financial Framework (Supplementary Powers) Act 2013 (FF(SP) Act). The explanatory memorandum further explains:

The Australian Government has centralised grant administration in two ‘Grants Hubs’ [administered by the Department of Social Services and the Department of Industry, Science, Energy and Resources]... Where a grants program established by a portfolio department needs to be administered by a Grants Hub, it is necessary for the Secretary of that department to delegate their powers under section 23 of the PGPA Act or section 32D of the FF(SP) Act to the employees of the Department of Social Services or the Department of Industry, Science, Energy and Resources, as the case requires.
However, under section 221 of the Family Assistance Administration Act, the Secretary of the Department of Education, Skills and Employment is unable to delegate their power under section 85GA of the Assistance Act to employees of the Department of Social Services or the Department of Department of Industry, Science, Energy and Resources. This means that the Grants Hubs are not able to administer grants programs that rely on section 85GA as their source of authority.
Accordingly, items 28 and 29 amend section 221 of the Family Assistance Administration Act to enable the Secretary to delegate his or her powers under section 85GA of the Family Assistance Act to an official of a non-corporate Commonwealth entity (within the meaning of the PGPA Act); and in exercising powers under a delegation, the delegate must comply with any directions of the Secretary.^[17]

1.24 While noting this explanation, it is not clear to the committee whether the delegation is broader than what is required for the effective administration of the grant programs. For example, it is not clear why it is necessary to be able to delegate the secretary's power to an official of a non-corporate Commonwealth entity at any level.

1.25 The committee requests the minister's advice as to:

• why it is necessary to allow the secretary's powers under section 85GA of the Family Assistance Act to be delegated to an official of any non-corporate Commonwealth entity at any level; and

• whether the bill can be amended to provide legislative guidance as to the categories of people to whom those powers might be delegated.

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[12] Items 17 and 36. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[13] Item 38. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[14] Explanatory memorandum, p. 15.

[15] Item 29. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

[16] See explanatory memorandum p. 13.

[17] Explanatory memorandum, p. 13.