Social Security (Exemptions from Non-payment and Waiting Periods-Activities) Specification 2017 [F2017L00719]-Response required [2017] AUSStaCSDLM 239 (8 September 2017)

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Instrument	Social Security (Exemptions from Non-payment and Waiting Periods - Activities) Specification 2017 [F2017L00719]
Purpose	Revokes and replaces the Social Security (Exemptions from Non-payment and Waiting Periods – Activities) Specification 2015 to reflect the extension of the ordinary waiting period to new payment types from 1 July 2017
Authorising legislation	Social Security Act 1991
Department	Social Services
Disallowance	15 sitting days after tabling (tabled Senate 8 August 2017) Notice of motion to disallow currently must be given by 16 October 2017
Scrutiny principle	Standing Order 23(3)(a)

Manner of incorporation

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.

With reference to the above, the committee notes that the definition of Stream C employment services in section 5 of the instrument incorporates the jobactive Deed 2015-2020. However, neither the instrument nor the ES state the manner in which this document 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 a particular time). 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 of documents published on the committee's website.^[1]

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

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available (i.e. without cost) to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that the instrument incorporates the jobactive Deed 2015-2020. However, the ES does not contain a description of this document, or indicate how the document may be obtained.

In this instance, the committee notes that the jobactive Deed 2015-2020 is available for free online.^[2] Where an incorporated document is available for free online, the committee considers that a best-practice approach is for the ES to an instrument to provide details of the website where the document can be accessed.

The committee's expectations in this regard are set out in the guideline on incorporation of documents published on the committee's website.^[3]

The committee draws the above to the minister's attention.

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^[1] See Regulations and Ordinances Committee, Guideline on incorporation of documents, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_ Ordinances/Guidelines/Guideline_on_incorporation_of_documents.

^[2] Department of Employment, Document library - jobactive Deed 2015-2020, https://docs. employment.gov.au/documents/final-jobactive-deed-2015-2020 (accessed 4 August 2017).

^[3] See Regulations and Ordinances Committee, Guideline on incorporation of documents, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_ Ordinances/Guidelines/Guideline_on_incorporation_of_documents.