Social Security Legislation Amendment (Technical Changes) Bill 2025 - Initial Scrutiny [2025] AUSStaCSBSD 22 (13 February 2025)

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Purpose	The bill seeks to amend the Social Security Act 1991 to make provision for the payment of differing rates for disability support pension recipients aged under 21, depending on their circumstances.
Portfolio	Social Services
Introduced	House of Representatives on 5 February 2025
Bill status	Before the House of Representatives

Retrospective validation^[38]

1.49 The bill seeks to ensure provision for different rates of payment of the disability support pension (DSP) for recipients under 21 based on their circumstances (for example, whether living at home or independently). The bill also seeks to retrospectively validate past rate decisions, to ensure higher rates of payments are targeted to those living independently or away from home. It also seeks to apply some of these amendments retrospectively. The explanatory memorandum provides that the bill is giving effect to the original policy position, following a 2024 decision of the Administrative Appeals Tribunal which highlighted unintended consequences arising from the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005.^[39]

1.50 While the committee understands it was not intended that the 2005 amendments were meant to affect the rate of payment a DSP recipient receives, the committee notes that underlying the basic rule of law principle that all government action must be legally authorised, is the importance of enabling affected persons to rely on the law as it currently exists. Retrospective validation has the potential to undermine these values. The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

1.51 Generally, where proposed legislation will have a retrospective effect, the committee expects that the explanatory materials will set out the reasons why retrospectivity is sought, whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected. If an individual's interests will, or may, be affected by the retrospective application of a provision, the explanatory memorandum should set out the exceptional circumstances that nevertheless justify the use of retrospectivity. In this instance, the explanatory memorandum states that:

Item 2 is intended to have retrospective effect, however, it does not operate retrospectively to change anything that occurred in the past, including previous working out undertaken by Services Australia staff in respect of disability support pension recipients under 21. The validation provision cannot result in any debts arising for past periods.

The validation provision does not remove people’s rights of review or appeal in cases where decisions may have been invalid for other reasons.^[40]

Subitems 3(1) and 3(3) are intended to have retrospective effect, however, they do not operate to create any different outcomes for disability support pension recipients under 21 in the same circumstances where a relevant thing was done or purportedly done before commencement and that has been validated by item 2. The application provision cannot result in any debts arising for past periods.^[41]

1.53 While the committee notes that in some instances, the retrospective validation of actions may be justified, the committee remains concerned that the explanatory memorandum does not provide an adequate explanation as to the effect of the retrospective validation and application. The committee acknowledges the advice in the explanatory memorandum that these provisions will not result in a debt arising for past periods. The committee also notes that, given the policy intent, the recipient is unlikely to have formed a reasonable expectation of a certain rate of payment as a result of the 2005 amendments and relied on that to their detriment. However, it remains unclear if these amendments mean that some DSP recipients will no longer be entitled to a higher rate of payment which they were previously legally entitled to. The committee considers that in this case, the explanatory memorandum should have directly engaged with the question of detriment and better explained the context of the 2024 Administrative Appeals Tribunal decision.

1.54 The committee draws its long-standing scrutiny concerns regarding legislation that seeks to have a retrospective effect to the attention of senators and leaves to the Senate as a whole the appropriateness of the retrospective validation and application of the bill’s provisions.

^[38] Schedule 1, items 2 and 3. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

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