Social Services and Other Legislation Amendment (Student Assistance and Other Measures) Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 90 (21 April 2021)

• Social Services and Other Legislation Amendment (Student Assistance and Other Measures) Bill 2021
• Inappropriate delegation of legislative powers45

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Social Services and Other Legislation Amendment (Student Assistance and Other Measures) Bill 2021

Purpose	Schedules 1 and 2 to the bill seek to amend the Student Assistance Act 1973 to make the Act more consistent with social security law relating to Tax File Number collection and use, and information management. It also seeks to improve the effective administration schemes of the ABSTUDY and Assistance of Isolated Children schemes Schedule 3 to the bill makes technical amendments to social services legislation relating to the definition of 'social security law'
Portfolio	Social Services
Introduced	4 February 2021
Bill status	Before the House of Representatives

Inappropriate delegation of legislative powers^[45]

2.133 In Scrutiny Digest 3 of 2021 the committee requested the minister's advice as to why it is considered necessary and appropriate for legislative instruments made under Acts expressed to form part of the 'social security law' to be included in the new definition of 'social security law' in proposed subsection 23(17), and the practical impact of this change.^[46]

Minister's response^[47]

2.134 The minister advised:

As noted by the Committee, the current definition of 'social security law' under subsections 23(17) and (18) of the Social Security Act 1991 (the Act) provides that 'a reference in the [Act] to the social security law is a reference to a provision of this Act, the Administration Act or any other Act that is expressed to form part of the social security law'. However, the definition of 'social security law' does not expressly include legislative instruments made under an Act or a provision referred to in any of those Acts.
The Act and the Social Security (Administration) Act 1999 include frequent references to the 'social security law' in a variety of contexts, including but not limited to review of decisions, delegation of powers, obligations, offences and confidentiality provisions. Legislative instruments, such as the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 also include references to the 'social security law'. While it may be that an instrument made under the power in any of these Acts is, in effect, part of the 'social security law', there is some doubt that it may not fall within the definition, or it may not do so in some legislative contexts.
The amendments are intended to clarify and achieve certainty that the references to 'social security law' include legislative instruments made under the authority of the Acts referenced in the new subsection 23(17). It also provides clarity to tribunals and courts when deliberating on appeals before them that involve decisions made under legislative instruments.
The practical impact of this change.
The practical impact of this change is negligible. The measure clarifies current practice.

Committee comment

2.135 The committee thanks the minister for this response. The committee notes the minister's advice that the amendments are intended to clarify and achieve certainty that the references to 'social security law' include legislative instruments made under the authority of the Acts referenced in the new subsection 23(17). In addition, it provides clarity to tribunals and courts when deliberating on appeals before them that involve decisions made under legislative instruments.

2.136 The committee also notes the minister's advice that the measure clarifies current practice, and that the practical impact of the change is negligible.

2.137 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.138 In light of the information provided, the committee makes no further comment on this matter.

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[45] Schedule 3, items 1 and 2. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[46] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2021, pp. 1–2.

[47] The minister responded to the committee's comments in a letter dated 12 March 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 6 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.