Social Security Amendment (Australian Government Disaster Recovery Payment) Bill 2023 [2023] AUSStaCSBSD 174 (13 September 2023)

• Chapter 1 : Initial scrutiny

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Chapter 1 :
Initial scrutiny

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

Social Security Amendment (Australian Government Disaster Recovery Payment) Bill 2023^[1]

Purpose	The Social Security Amendment (Australian Government Disaster Recovery Payment) Bill 2023 amends the Social Security Act 1991 to provide greater certainty in supporting automation processes and ensure the timely payment of claims for the Australian Government Disaster Recovery Payment in the 2023/24 High Risk Weather Season and beyond.
Portfolio	Home Affairs
Introduced	House of Representatives on 6 September 2023
Bill status	Before the House of Representatives

Instruments not subject to an appropriate level of parliamentary oversight^[2]

1.2 Item 2 of Schedule 1 to the bill seeks to insert proposed subparagraph 1061K(1)(b)(v) into the Social Security Act 1991 (the Act), which will have the effect of requiring anyone who is eligible for an Australian Government Disaster Recovery Payment ('AGDRP') to be covered by a determination made under proposed subsection 1061K(3A). Item 3 of Schedule 1 seeks to insert proposed subsection 1061K(3A), which allows the minister to determine, by notifiable instrument, that a person is eligible for an AGDRP if they:

• have been in Australia for a specified period, ending on the day a major disaster is determined under the Act; and

• are an Australian citizen, permanent visa holder or a protected special category visa holder.

1.3 As instruments made under proposed subsection 1061K(3A) 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. Given the impact on parliamentary scrutiny, the committee expects the explanatory materials to include a justification for why instruments made under proposed subsection 1061K(3A) are not legislative in character.

1.4 In this instance, the committee notes that the explanatory memorandum provides the following justification relating to the content of the instruments:

An instrument made under new subsection 1061K(3A) is administrative in nature as it gives content to the law, rather than prescribes a substantive exemption from the requirements of the Legislation Act.

...

In the same way the Minister may determine that an event is a major disaster in a non-legislative instrument at section 36 of the Act, the Minister may also appropriately determine the specific time period to apply to new qualification criteria for AGDRP. The determinations made for these purposes are non-legislative in nature in that they provide operational detail on how the relevant law is to be applied.^[3]

1.5 However, it is unclear to the committee that the content of an instrument under proposed subsection 1061K(3A) is administrative, rather than legislative in character. The committee first notes the instruments will determine the circumstances in which a person will have an entitlement to an AGDRP following the occurrence of a major disaster. The committee therefore considers that these instruments have the potential to directly or indirectly affect privileges or interests or create a right.^[4] In addition, the provision of the notifiable instrument which sets the time a person must be in Australia before they are entitled to a benefit appears to alter the content of the law and has the effect of affecting an interest, falling within the definition of 'legislative' in the Legislation Act 2003 (Legislation Act). The committee also notes that subsection 8(4) of the Legislation Act does not preclude the minister from prescribing these matters be set out in legislative instruments.

1.6 The committee has previously commented on the use of notifiable instruments in the context of the Act. In Scrutiny Digest 11 of 2021^[5], the committee noted that the technical nature of an instrument is not sufficient in and of itself for providing that an instrument will be notifiable, rather than legislative.

1.7 While acknowledging the justification in the explanatory memorandum, the committee reiterates its longstanding concerns regarding the inappropriate use of notifiable instruments. As noted above, notifiable instruments are not subject to parliamentary oversight and processes such as tabling, disallowance and sunsetting. The committee considers that instruments made under proposed subsection 1061K(3A) are more appropriately classified as legislative instruments given they appear to affect the content of the law and individuals' interests.

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

• why it is considered appropriate that instruments made under proposed subsection 1061K(3A) 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.

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^[1] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Social Security Amendment (Australian Government Disaster Recovery Payment) Bill 2023, Scrutiny Digest 11 of 2023; [2023] AUSStaCSBSD 174.

^[2] Schedule 1, item 3, proposed subsection 1061K(3A). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).

^[3] Explanatory memorandum, paragraphs [11] and [13].

^[4] Legislation Act 2003, paragraph 8(4)(b).

^[5] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 11 of 2021 (16 June 2021), pp. 43‑–44.