Veterans' Affairs Legislation Amendment (Miscellaneous Measures No 2) Bill 2023 [2023] AUSStaCSBSD 93 (14 June 2023)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Purpose	This bill seeks to amend the following veterans’ affairs legislation to modernise and streamline its operation: • Veterans’ Entitlements Act 1986; • Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988; and • Military Rehabilitation and Compensation Act 2004.
Portfolio	Veterans' Affairs
Introduced	House of Representatives on 25 May 2023

Instruments not subject to an appropriate level of parliamentary oversight^[83]

1.90 Item 1 of Schedule 2 to the bill seeks to substitute subsection 8(8AC) of the Social Security Act 1991 (Social Security Act) to provide that the Secretary of the Employment Department (the Secretary) may, by notifiable instrument, determine programs to be employment programs for the purposes of paragraphs 8(8)(zv) and (zw) of the Social Security Act and paragraphs 5H(8)(zzf) and (zzg) of the Veterans' Entitlements Act 1986 (Veterans' Entitlements Act). The effect of determining a program to be an employment program is that income generated by that program will not be considered income for income testing purposes under these Acts.

1.91 The power to determine programs to be employment programs under the Social Security Act is not a new power. Subsection 8(8AC) currently allows the Secretary to make determinations in relation to employment programs as exempt income for the purposes of the Social Security Act. However, this provision seeks to extend this arrangement regarding what is considered income to eligible veterans under the Veterans' Entitlements Act.

1.92 Item 2 of Schedule 2 to the bill seeks to insert paragraphs 5H(8)(zzf) and (zzg) into the Veterans' Entitlements Act to provide that a payment made by the Commonwealth (or a state or territory) to an individual under a program that is established by the Commonwealth (or a state or territory), and is determined in an instrument under subsection 8(8AC) of the Social Security Act to be an employment program, is not considered income in relation to a person for the purposes of the Veterans' Entitlements Act.

1.93 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. Given the impact on parliamentary scrutiny, the committee expects the explanatory materials to include a justification for why instruments made under subsection 8(8AC) are not legislative in character. The explanatory memorandum provides no justification as to why these instruments should be notifiable rather than legislative.

1.94 The committee previously commented on the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2022, which introduced the power for the Secretary to determine programs to be employment programs by notifiable instrument.^[84] In Scrutiny Digest 11/2021, the committee considered that the minister had not sufficiently justified why the instrument was a notifiable instrument and considered that the bill should be amended to provide that instruments made under subsection 8(8AC) are legislative instruments to ensure that they are subject to appropriate parliament oversight.^[85]

1.95 Noting the previous correspondence on this issue, the committee expresses its disappointment that subsection 8(8AC) of the Social Security Act is not proposed to be amended such that determinations made are legislative instruments, and that no justification is included in the explanatory memorandum as to why it is considered appropriate that the instruments are notifiable instruments.

[82] 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 6 of 2023; [2023] AUSStaCSBSD 93.

[83] 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).

[84] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 8 of 2021 (16 June 2021) pp. 43-44, Scrutiny Digest 10 of 2021 (13 July 2021) pp. 59-60, and Scrutiny Digest 11 of 2021 (4 August 2021) pp. 28-30.

[85] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 11 of 2021 (4 August 2021) p. 30.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests