Social Security (International Agreements) Amendment (New Zealand) Regulations 2017 [F2017L00124]-Concluded matters [2017] AUSStaCSDLM 206 (14 June 2017)

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Instrument	Social Security (International Agreements) Amendment (New Zealand) Regulations 2017 [F2017L00124]
Purpose	Amends the Social Security (International Agreements) Act 1999 to set out the terms of the Agreement on Social Security between the Governments of Australia and New Zealand
Authorising legislation	Social Security (International Agreements) Act 1999
Department	Social Services
Disallowance	15 sitting days after tabling (tabled Senate 20 March 2017) Notice of motion to disallow must be given by 19 June 2017
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 3 of 2017

Incorporation of documents

The committee previously commented as follows:

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

The Social Security (International Agreements) Amendment (New Zealand) Regulations 2017 [F2017L00124] (the regulations) insert a new Schedule 3 to the Social Security (International Agreements) Act 1999, which contains the text of

the 'Agreement on Social Security between the Government of Australia and the Government of New Zealand' (the agreement). With reference to the above,

the committee notes that Article 1 of the agreement contains definitions which rely on the social security law of New Zealand. Article 18 and Part A of the Schedule to the agreement also incorporate the New Zealand Privacy Act 1993 and New Zealand privacy laws. However, neither the text of the regulations nor the ES expressly states the manner in which this New Zealand legislation is incorporated.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee's expectations in this regard are set out in the guideline on incorporation contained in Appendix 1.

The committee requests the advice of the minister in relation to the above.

Minister's response

The Minister for Social Services advised:

I note the comments of the Committee with respect to the incorporation of documents and would like to take this opportunity to refer to a
similar request from the Committee that arose in relation to the Social Security (International Agreements) Amendment (Republic of Austria) Regulation 2016.
As noted in our previous response, section 8 of the Social Security (International Agreements) Act 1999 (the International Agreements Act) provides for regulations to add to the Act a Schedule setting out the terms of an agreement between Australia and another country if the agreement relates to reciprocity in social security or superannuation matters.
The Social Security (International Agreements) Amendment (New Zealand) Regulation 2017, which adds a new schedule 3 to the International Agreements Act, must therefore set out the exact terms of the agreement between Australia and New Zealand. The references to the New Zealand social security law contained in definitions appears in Article 1 (Definitions) and the references to the New Zealand Privacy Act 1993 and the New Zealand privacy laws appear in Article 18 (Exchange of Information)
and Part A (Terms and conditions for exchange of information for social security purposes) of the Schedule to the agreement.
Where the text of an international social security agreement is set out in
a Schedule to the Act, the provisions of the agreement have effect despite anything in the social security law (subsection 6(1) of the Act). However, this only applies to provisions of the agreement that:

• are in force; and

• affect the operation of the social security law (subsection 6(2) of the Act).

The reference to the New Zealand social security law and the New Zealand Privacy Act 1993 (including, New Zealand privacy laws) do not affect the operation of the social security law.
The Social Security (International Agreements) Amendment (New Zealand) Regulation 2017 does not therefore apply, adopt or incorporate New Zealand social security law or privacy laws (including the New Zealand Privacy Act 1993) for the purpose of section 14 of the Legislation Act 2003.
For completeness, and the Committee's further information, Article 2 of the Agreement applies the social security laws of Australia and New Zealand, as well as the New Zealand Veteran's Support Act 2014, as they apply to or affect the relevant benefits covered under the Agreement,
at the time of signing, and to any legislation that subsequently amends, supplements, consolidates or replaces them.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee also notes the minister’s previous advice provided in relation to a similar issue raised by the committee regarding the Social Security (International Agreements) Amendment (Republic of Austria) Regulation 2016 [F2016L00720].^[1]

The committee understands this advice to mean that where the text of an international social security agreement (agreement) is set out in a Schedule to the Social Security (International Agreements) Act 1999, and the content of a document included in that agreement does not affect the operation of domestic social security law, it is regarded as being 'referred to', not 'incorporated'.

The committee understands the minister's advice to be that this circumstance applies to these particular regulations, and there is no need to specify a method of incorporation because the New Zealand legislation is referred to rather than incorporated.

Where future instruments set out the text of an agreement in a Schedule to the Social Security (International Agreements) Act 1999, it would be useful for the ES to include information about whether or not the content of a document included in that agreement affects the operation of the social security law. This would assist the committee in its examination of similar instruments.

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[1] Delegated legislation monitor 7 of 2016, pp 106-108.