House of Representatives

Addendum to the Explanatory Memorandum

(Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston)

Schedule 3 - Other amendments

Social Security Act

On page 12, immediately before the heading 'Social Security Administration Act' insert:-

The definition of 'social security law' under subsections 23(17) and (18) of the Social Security Act provides that a reference in this Act to the social security law is a reference to a provision of this Act, the Social Security (Administration) Act or any other Act that is expressed to form part of the social security law. However, the definition of 'social security law' does not expressly include legislative instruments made under those Acts or a provision referred to in any of those Acts.

The Social Security Act and the Social Security (Administration) Act include frequent references to the 'social security law' in a variety of contexts, including but not limited to review of decisions, delegation of powers, obligations, offences and confidentiality provisions. Legislative instruments, such as the Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 also include references to the 'social security law'. While it may be that an instrument made under the power in any of these Acts is, in effect, part of the 'social security law', there is some doubt that it may not fall within the definition, or it may not do so in some legislative contexts.

The amendments are intended to clarify and achieve certainty that references to 'social security law' include legislative instruments made under the authority of the Acts (and relevant provisions of Acts) referenced in the new subsection 23(17). It also provides clarity to tribunals and courts when deliberating on appeals before them that involve decisions made under legislative instruments.