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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend the following veterans’ affairs legislation
to modernise and streamline its operation:
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Portfolio
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Veterans' Affairs
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Introduced
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House of Representatives on 25 May 2023
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Bill status
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Before the Senate
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2.158 Subsection 8(8AC) of the Social Security Act 1991 (Social Security Act) currently allows the Secretary of the Employment Department (the Secretary) to, by notifiable instrument, make determinations in relation to employment programs as exempt income for the purposes of the Social Security Act. Item 1 of Schedule 2 to the bill seeks to substitute subsection 8(8AC) to extend this arrangement to provide that the Secretary can also make determinations in relation to employment programs for the purposes of the Veterans' Entitlements Act 1986.
2.159 As instruments made under subsection 8(8AC) are specified to be notifiable instruments, they are not subject to the tabling, disallowance or sunsetting requirements that apply to legislative instruments. As such, there is no parliamentary scrutiny of notifiable instruments.
2.160 In Scrutiny Digest 6 of 2023 the committee requested the minister's advice as to:
• why it is considered appropriate that instruments made under subsection 8(8AC) of the Social Security Act 1991 are notifiable instruments; and
• whether the bill could be amended to provide that these instruments are legislative instruments to ensure that they are subject to appropriate parliamentary oversight.[77]
Minister for Veterans' Affairs' response[78]
2.161 The Minister for Veterans' Affairs (the minister) advised that the bill seeks to rely upon the same instruments as under the Social Security Act but for the purposes of equivalent Department of Veterans' Affairs payments. The minister advised that this is a minor amendment to ensure veterans undertaking employment programs have the same beneficial income-testing treatment as other Australians. The minister further advised that it is the government's intention that these schedules commence as soon as possible to ensure that veterans and their families are not disadvantaged. As such, the current design of the provision allows the Secretary to quickly determine an employment program is exempt to ensure that vulnerable groups receiving income support payments are not adversely affected.
2.162 The minister also noted the correspondence previously undertaken between the former Minister for Employment, Education and Skills and the committee when the arrangement was first introduced in the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021.
Committee comment
2.163 The committee thanks the minister for this response.
2.164 While the committee notes the minister's advice that this amendment expands an existing arrangement and is intended to be beneficial for eligible veterans, as the committee previously stated in its concluding entry for the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021, the committee does not consider the fact that an instrument may have a beneficial effect or that similar powers are available in existing legislation to be a sufficient justification for not providing that instruments will be subject to disallowance.[79]
2.165 Disallowance is the primary means by which the Parliament exercises control over the legislative power that it has delegated to the executive. Exempting an instrument from disallowance therefore has significant implications for parliamentary scrutiny. In June 2021, the Senate acknowledged these implications and resolved that delegated legislation should be subject to disallowance unless exceptional circumstances can be shown which would justify an exemption. In addition, the Senate resolved that any claim that circumstances justify such an exemption will be subject to rigorous scrutiny, with the expectation that the claim will only be justified in rare cases.[80]
2.166 The committee also does not consider the fact that it is desirable that an instrument be made quickly to be a sufficient justification for providing that an instrument will be notifiable rather than legislative. The committee notes that legislative and notifiable instruments follow the same registration process,[81] and both commence at the start of the day after the instrument is registered (unless the instrument provides otherwise).[82]
2.167 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of expanding the Secretary of the Employment Department's power under subsection 8(8AC) of the Social Security Act 1991 to make determinations which are not legislative instruments and therefore not subject to disallowance.
[74]75 This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Veterans’ Affairs Legislation Amendment (Miscellaneous Measures No. 2) Bill 2023, Scrutiny Digest 8 of 2023; [2023] AUSStaCSBSD 135.
[76] Schedule 2, item 1, proposed subsection 8(8AC). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).
[77] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2023 (14 June 2023) pp. 25–26.
[78] The minister responded to the committee's comments in a letter dated 20 June 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.
[79] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 11 of 2021 (4 August 2021) pp. 29–30.
[80] Senate resolution 53B. See Journals of the Senate, No. 101, 16 June 2021, pp. 3581–3582
[81] Legislation Act 2003, section 15H.
[82] Legislation Act 2003, subsection 12(1).
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2023/135.html