Legislation (Deferral of Sunsetting—Social Security (Administration) (Ending Unemployment Non-payment Periods—Classes of Persons) Specifications) Certificate 2019
EXPLANATORY STATEMENT
Issued by the Attorney-General in compliance with
section 15G of the Legislation Act 2003
INTRODUCTION
The Legislation (Deferral of Sunsetting—Social Security (Administration) (Ending Unemployment Non‑payment Periods—Classes of Persons) Specifications) Certificate 2019 (the certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003. It is a legislative instrument for the purposes of the Legislation Act and must be registered on the Federal Register of Legislation. The certificate is subject to the disallowance provisions of the Legislation Act as the deferred sunsetting day specified in the certificate is after the first anniversary of the sunsetting day, which means that subsection 51(4) of that Act (which provides an exemption from disallowance for deferrals of 12 months or less) does not apply.
OUTLINE
Sunsetting is the automatic repeal of legislative instruments after a fixed period. The Australian Government’s sunsetting framework is established under Part 4 of Chapter 3 of the Legislation Act. The purpose of the sunsetting framework is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed.
Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on the 1 April or 1 October immediately on or following the tenth anniversary of its registration, unless it was registered on 1 January 2005. Legislative instruments registered on 1 January 2005 are subject to the staggered sunsetting timetable set out in subsection 50(2) of the Legislation Act.
Under paragraph 51(1)(c) of the Legislation Act the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of six, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.
This allows instruments to continue to be in force for a further but limited period of time when they would otherwise sunset. This removes the administrative burden of replacing instruments which would have a limited duration prior to repeal and potential replacement, or where circumstances prevent the making of replacement instruments prior to the sunsetting day.
The certificate defers the sunsetting date of the following instruments from 1 October 2019 to 1 October 2021:
(a) Social Security (Administration) (Ending Unemployment Non-payment Periods—Classes of Persons) (DEEWR) Specification 2009 (No. 1), and
(b) Social Security (Administration) (Ending Unemployment Non-payment Periods—Classes of Persons) (FaHCSIA) Specification 2009 (No. 1)
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Legislation (Deferral of Sunsetting—Social Security (Administration) (Ending Unemployment Non-payment Periods—Classes of Persons) Specifications) Certificate 2019 (the certificate) is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Human Rights Act).
Overview of the Certificate
This certificate is made under paragraph 51(1)(c) of the Legislation Act. Under that paragraph the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of six, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the certificate instead of the scheduled sunsetting day. The instruments specified in this certificate are the:
(a) Social Security (Administration) (Ending Unemployment Non payment Periods—Classes of Persons) (DEEWR) Specification 2009 (No. 1), and
(b) Social Security (Administration) (Ending Unemployment Non payment Periods—Classes of Persons) (FaHCSIA) Specification 2009 (No. 1)
(together, the Specifications).
The Specifications provide for persons for whom the unemployment non-payment period can be ended in cases of severe financial hardship. The only relevant classes of persons are persons serviced by a Community Development Program (CDP). It is proposed to reform the CDP to ensure all job seekers are subject to the compliance framework. Some of these reforms were included in legislation, which lapsed with the prorogation of Parliament for the 2019 General Election. The deferral of the sunsetting date of the Specifications will allow the Government to pursue its reform agenda and determine whether the instruments need to be replaced or can be repealed without replacement.
The certificate allows the Specifications to continue to be in force for a further but limited period of time when they would otherwise sunset. This removes the administrative burden of replacing instruments which would have a limited duration prior to repeal and potential replacement, or where circumstances prevent the making of replacement instruments prior to the sunsetting day.
Human Rights Implications
Before issuing the certificate, the Attorney-General was satisfied that the Specifications would, apart from the operation of the sunsetting provisions, cease to be in force within 24 months of their sunsetting day. Issuing a certificate of deferral therefore avoids the need to remake the Specifications in their current form for a short period of time before they are expected to be repealed or repealed and replaced.
The Statement of Compatibility for a certificate of deferral of sunsetting focuses on the effect of the deferral instrument, rather than the substantive effect of continuing the instruments that have been deferred.
Instruments that are replaced will be subject to parliamentary scrutiny and oversight through the disallowance processes unless otherwise exempt. The human rights impact of the instruments will be individually assessed at that time, including through the requirement to prepare the Statements of Compatibility with Human Rights.
Conclusion
This certificate is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights Act by ensuring that any proposal to make replacement instruments that unduly limit human rights and freedoms will be subject to parliamentary oversight and scrutiny.
PROCESS BEFORE CERTIFICATE WAS MADE
Regulatory impact analysis
Certificates of deferral of sunsetting are machinery of government instruments, and are therefore not subject to the regulatory impact assessment requirements set out by the Office of Best Practice Regulation (OBPR). The OBPR reference for this standing exemption is ID19633.
Consultation before making
Before the certificate was issued, the Attorney‑General considered the general obligation to consult imposed by section 17 of the Legislation Act.
The Secretary of the Department of Employment, Skills, Small and Family Business, Ms Kerri Hartland, advised the Attorney-General of the reasons in support of issuing the certificate. The Secretary is the person currently authorised to make the Specifications, and is therefore the relevant rule-maker for the purposes of section 6 of the Legislation Act.
The certificate is consistent with the policy intent of the sunsetting arrangements and does not significantly alter existing arrangements. Accordingly, further consultation was unnecessary.
Statutory preconditions relevant to the certificate
If the statutory conditions in section 51 of the Legislation Act are met, an instrument’s sunsetting day can be deferred for six, 12, 18 or 24 months by means of a certificate made under that section. In terms of process, the Legislation Act requires:
(a) the responsible rule-maker to apply to the Attorney-General in writing, and
(b) the Attorney-General to be satisfied that:
(i) the instrument would (apart from the operation of the sunsetting provisions) be likely to cease to be in force within 24 months after its sunsetting day
(ii) the proposed replacement instrument will not be able to be completed before the sunsetting day for reasons that the rule maker could not have foreseen and avoided
(iii) the dissolution or expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make a replacement instrument before a new government is formed, or
(iv) the Attorney-General has approved Part 4 of Chapter 3 of the Legislation Act (Sunsetting) not applying to the instrument, and
(c) the Attorney-General to issue a certificate. The explanatory statement for the certificate must include a statement of reasons for the issue of the certificate.
The rule-maker for this instrument, the Secretary of the Department of Employment, Skills, Small and Family Business, provided a written application to the Attorney‑General seeking a deferral of sunsetting days for the Specifications. On the basis of the information contained in the statement of reasons below, the Attorney‑General is satisfied that the Specifications would, apart from the operation of Part 4 of Chapter 3 of the Legislation Act, be likely to cease to be in force within 24 months after their sunsetting day. As such, the criterion in subparagraph 51(1)(b)(i) of the Legislation Act is met.
Statement of Reasons for issuing of the Certificate
For the purposes of subsection 51(5) of the Legislation Act, this section sets out the statement of reasons for the issue of the certificate.
The Specifications are made under the Social Security (Administration) Act 1999 (the Act). Under subsection 42S(1) of Division 3A of Part 3 of the Act, if the Secretary determines that a person is unemployed because of a voluntary act of the person or the person’s misconduct as an employee, the person is not paid their participation payment for a period (the unemployment non-payment period).
The Secretary can end the unemployment non-payment period for a person if the Secretary determines that serving the period would cause the person to be in severe financial hardship and the person is in a class of person specified by legislative instrument. The Specifications prescribe classes of person for whom that period can be ended by the Secretary.
Division 3A of Part 3 of the Act contains the compliance framework for participation payment recipients who are declared program participants. Relevantly, the only declared program participants are persons serviced by a Community Development Program (CDP) provider. Other persons with participation payment obligations are subject to the targeted compliance framework in Division 3AA of Part 3 of the Act.
The Government announced reforms to the CDP in the 2018-2019 Budget. These reforms include making all job seekers subject to the same compliance framework. Before Parliament was prorogued for the May 2019 election, some of these reforms were embodied in the Social Security Legislation Amendment (Community Development Program) Bill 2018 that, had it proceeded, would have repealed Division 3A of Part 3 of the Act. The Specifications only operate in respect of Division 3A of Part 3 of the Act and, if that Division is repealed, the Specifications will become redundant.
The Government is likely to pursue reforms to the CDP, including possible legislation. Deferral of the sunsetting of the Specifications will give the Government time to pursue its reform agenda and determine whether the Specifications need to be replaced, or can proceed to be repealed without replacement. In either case, it is expected that once deferred, the Specifications will cease to be in force by 1 October 2021 either through prior active repeal or through their sunsetting on that day.
As such, deferral of the sunsetting date of the Specifications is consistent with the policy intent of the sunsetting regime, that legislative instruments should be kept up to date and only remain in force so long as they are needed.
More information
Further details on the provisions of the certificate are provided in Attachment A.
The Specifications which are the subject of the certificate, and which will now sunset at a later day as prescribed by the certificate, are available on the Federal Register of Legislationhttp://www.comlaw.gov.au.
Further information may be requested from the Attorney-General’s Department about the operation of the certificate, and from the Department of Employment, Skills, Small and Family Business about the Specifications to which the certificate applies.
ATTACHMENT A
NOTES ON THE CERTIFICATE
Section 1 Name
This section provides that the certificate is named Legislation (Deferral of Sunsetting—Social Security (Administration) (Ending Unemployment Non-payment Periods—Classes of Persons) Specifications) Certificate 2019. The certificate may be cited by that name.
Section 2 Commencement
This section provides for the certificate to commence on the day after it is registered.
Section 3 Authority
This section provides that the certificate is made under paragraph 51(1)(c) of the Legislation Act.
Section 4 Deferral of sunsetting
This section provides that the Social Security (Administration) (Ending Unemployment Non-payment Periods—Classes of Persons) (DEEWR) Specification 2009 (No. 1) and the Social Security (Administration) (Ending Unemployment Non-payment Periods—Classes of Persons) (FaHCSIA) Specification 2009 (No. 1), for which the sunsetting day is 1 October 2019, are taken to be repealed under section 51 of the Legislation Act on 1 October 2021.
Section 5 Repeal of this instrument
This section provides that the certificate is repealed at the start of 2 October 2021.