Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I move amendment (1) on sheet 4853:

(1)    Schedule 2, item 10, page 14 (line 15), omit “notifying”, substitute “procedures to be observed by a person who is notifying”.

I want to speak briefly to this amendment and to a number of the issues that the minister put forward in her closing remarks. In the second reading debate I set out in detail the opposition’s concerns about the regulation-making power regarding procedures for notification that are contained in the bill. We acknowledge that there are competing legal interpretations of this proposed power and I set out the opposition’s concerns that arise if a broad interpretation is preferred. I want to note that an amended EM—explanatory memorandum—was introduced during debate in the other place. That fulfils the commitment made to the Senate committee that a clarification statement would be made to explicitly state that prescribed events may only be determined expressly in the regulations.

I want to make the point that when the minister says, ‘Oh, there is no problem here; there is no issue,’ the government has responded to a request that a statement be made in the EM to clarify the precise scope of the power that is being given in this bill. I also want to note that, through the inclusion of a statement in the EM, the department and the minister are in fact acknowledging the validity of the concerns raised by the opposition and other parties about the unintended consequences of this bill and the concerns raised by the Senate committee inquiry and the office of the shadow minister, the member for Jagajaga, in discussions with the department and the former minister’s office. We note that such a statement in the amended EM would be considered as relevant extrinsic material by any court considering this matter. However, we remain concerned that the express intention of the parliament is not being clearly stated in the bill itself, and we invite the Senate to consider that this is the opportunity to make that explicit intention clear in the bill, not simply in the explanatory memorandum. We would be interested in whether the officers present are able to advise the minister if the clarification statement in the explanatory memorandum has the same effective outcome as the opposition amendment moved in the Senate. I note that, in the other place, the minister was asked to explicitly state whether that statement has exactly the same effect as the substantive amendments moved by the opposition. The minister could not, in that place, provide such an assurance.

I stress that, while technical and legal in nature, the concerns that have been raised by senators in this place go to fundamental issues of the powers of parliament to adequately scrutinise legislation which impacts on the entitlement of Australians to income support benefits. Taken as a whole, this bill will enshrine a much diminished set of options for student income support against a backdrop, as I have outlined, of a government record of unalloyed policy failure when it comes to income support for students—an area that is so vital to the success of so many students who are in genuine need of assistance. Other provisions in the bill attack, in the manner I have described, the role of the parliament as a fetter on untrammelled executive power. To the opposition these are unacceptable. I invite the minister to provide the assurance that was not provided in the other place as to whether the statement has exactly the same effect as the amendment moved by the opposition.

I also want to make the point that this is not, as I understand it, an issue about payment rates. The primary concern which we have outlined and which was referred to in the Bills Digest is that the provisions of the bill as it currently stands, notwithstanding the statement in the EM, has the potential to remove certainty from the obligation and the matching offence and removes parliamentary scrutiny with respect to the scope of the obligation. That is the crux of the concerns which have been raised by the opposition and, I understand, by Senator Stott Despoja on behalf of the Democrats.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

To save time, I will address both the Labor and Democrat amendments. Obviously, in my second reading contribution I outlined some of our concerns. The Australian Democrats recognise and agree with the intent of the Labor Party amendment. I mentioned that we decided to draft it differently; Labor’s is not our preferred way. But I think we are both trying to ensure that the substance of the note inserted into the replacement explanatory memorandum is reflected in the legislation. I believe that our amendment, despite government criticisms, does that. We will be moving that amendment and asking the Senate to agree to it; in the interim we will support the Labor Party amendment as a next best try. But we recognise the view of the chamber.

In relation to the amendment that I will move, we believe the amendment clarifies the proposed subsection 48(2) in making sure that it does not include prescribed events as indicated. Again, this has been the subject of some discussion for a number of months now. Section 48 of the Student Assistance Act 1973 states:

If a prescribed event happens in relation to a person who is receiving, or entitled to receive, an amount under a financial supplement contract or a current special educational assistance scheme, the person must notify the Department, in accordance with the regulations, of the happening of the event within 14 days.

The proposed section 48(2) would allow the incorporation of an instrument ‘as in force or existing from time to time’ in regulations prescribing events for the purposes of section 48 of the act, and in accordance with section 14 of the Legislative Instruments Act 2003, which seeks to eliminate the need to make new regulations whenever the guide to Commonwealth payments is altered.

The proposed subsection should not allow changes to be made to prescribed events; however, this is not clear in the legislation. With the amendment before the chamber and the Democrat amendment we are trying to reflect in the legislation the intention, as we understand it, outlined in the replacement memorandum, because currently it is just not clear. The two amendments, and in particular the amendment that I will be moving on behalf of the Democrats, make clear that prescribed events are not included in the proposed subsection. Thus, proposed subsection 48(2) does not:

... permit the creation, determination or variation of prescribed events by extrinsic materials. Prescribed events may only be determined expressly by the regulations.

We are ensuring that ‘notifying’ does not include prescribed events.

When the time comes I will move that amendment, but I will not seek to address it or that of the Labor Party again. I also wish to give senators notice that I will seek a division on the amendment of the Democrats. I suspect the Labor Party is doing the same thing. So we are giving the Senate due warning, depending on the outcome. You never know—we might get lucky. I am feeling lucky. Go on, Amanda, make my day!

Amanda Vanstone (SA, Liberal Party, Minister for Immigration and Multicultural Affairs) Share this | Link to this | Hansard source

I can fix that, Senator! This is a technical area. Unless you were the world’s most knowledgeable person in this area you would have to agree that either side might have it wrong. But we are very strongly of the view that what Labor and the Democrats are both seeking to do—and it is clear what you are both seeking to do—you fail to do, because of a misreading of the legislation. What you would do is what I outlined in my remarks: you would require two sets of regulations—two different sets in each case, but nonetheless two. You would not achieve the aim that you are seeking to.

For, say, a bottle of good South Australian red, I will explain it to you—but not now—so that if the bill comes up again you will have the opportunity to get it right. And then the government might say yes. But you would not achieve what you are trying to with your proposed amendments. I am working on the best advice I have. We can see what you want to do, but you are not achieving it. You are doing something quite different. I have looked at this myself, and on one occasion I was able to see it and on another I had to say, ‘Talk me through it again.’ It is a bit like the candle that you look at and sometimes you can see the two faces and other times you see the candle. I am prepared to go so far as to admit that the regulation is written in such a way that makes it inextricably difficult to amend and achieve what you want to achieve. On this occasion, you have not come up with the goods.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Given that—and I thank the minister for her concession about the candle; I think it was a concession—

Amanda Vanstone (SA, Liberal Party, Minister for Immigration and Multicultural Affairs) Share this | Link to this | Hansard source

Candlestick. It was a candlestick with two faces.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Yes. I apologise for misquoting her. Will the minister give an undertaking that the power in proposed section 48(2) will not extend to the determination of prescribed events and extrinsic materials and that prescribed events may only be determined expressly in the regulations?

Amanda Vanstone (SA, Liberal Party, Minister for Immigration and Multicultural Affairs) Share this | Link to this | Hansard source

To be honest, I have not looked at the EM, but I am told that that is what it does. My advice is that that is the government’s intention, which is why we put it in the EM. So I should have answered your question, Senator Wong. You wanted me to get up and say, ‘I will guarantee that the commitment in the EM does not do the same, in effect, as your amendment would.’ I think that is what you were asking.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

No.

Amanda Vanstone (SA, Liberal Party, Minister for Immigration and Multicultural Affairs) Share this | Link to this | Hansard source

Earlier. I did not answer that. I will give you an undertaking that, to the best of my knowledge, belief and understanding, you would not achieve the same thing. I also think, to the best of my knowledge, belief and understanding, that you want to achieve the same thing—but that is my point. We can see what you are trying to do, but you just have not done it.

Question put:

That the amendment (Senator Wong’s) be agreed to.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

I move Democrats amendment 1 on sheet 4851:

(1)    Schedule 2, item 10, page 14 (line 16), after “Department”, insert “but not relating to prescribed events”.

Question put.