Dissenting report
JobFaker Legislation
Introduction
I thank the committee and the secretariat for the work they have done in relation to this brief inquiry into the Economic Recovery Package (JobMaker Hiring Credit) Amendment Bill 2020.
The legislation in its current form—a head of power granting significant control and discretion to the Executive—should not be passed without bringing the rules into the body of the bill.
Provisions in the bill
The bill does nothing more than grant a power to the Executive to make rules in relation to:
(a)
one or more kinds of payments by the Commonwealth to an entity in respect of a time that occurs during the relevant period, being payments that are primarily for the purpose of:
(i)
improving the prospects of individuals getting employment in Australia; or
(ii)
increasing workforce participation in Australia; and
(b)
the establishment of a scheme providing for matters relating to one or more of those payments, and matters relating to such a scheme.
That's it. All of the detail of the payments and the scheme are contained in the rules.
The Parliament is to make our laws
The Australian Constitution places responsibility for making laws in the hands of the Parliament.
The Parliament makes laws in public, in a manner that is subject to challenge and debate, and with an open vote for which its members are ultimately accountable back to the people for.
There are, of course, exceptions to this principle:
(a)
Parliament may delegate its legislative powers to the executive to deal with the vast amount of administrative detail that needs to be the subject of legislative provision, recognising it would be impractical for Parliament to have to enact all such provisions itself;
(b)
Emergency circumstances may arise where it might be necessary to depart from the constitutional norm.
Neither of these exceptions arise in relation to the Economic Recovery Package (JobMaker Hiring Credit) Amendment Bill 2020. The rules associated with the bill go way beyond just administrative, they authorise an estimated $4 billion in expenditure and decides which businesses benefit from it as a result of some selective characteristics of new employees—and are not being established in time of crisis.
The responsibility for passing laws does not rest with the Executive.
Recommendation
The bill should be amended to bring the rules into the body of the bill.
On 3 June 2019 the Senate’s Standing Committee on Regulations and Ordinances tabled a report on the Parliamentary scrutiny of delegated legislation. Para 1.15 of the report alarmingly stated:
Generally speaking, about half of the law of the Commonwealth by volume consists of delegated legislation (as opposed to Acts of Parliament). The volume of delegated legislation made each year has increased over time. For example, in the mid-1980s there were around 850 disallowable instruments tabled each year. By contrast, around 1 700 disallowable instruments are now made annually.
JobFaker
If the Parliament were to pass this bill in its current form it would be doing so in breach of constitutional conferral of legislative power on the Parliament. Translated into non-legal speak, if this bill were to pass in its current form it would be because members of Parliament were not doing their job.
If it does pass as it stands it will be because those members and senators that voted for it abdicated their responsibilities. They will have placed themselves in the unenviable position of not being Members of Parliament, rather reckless Jobfakers.
Senator Rex Patrick
Independent Senator for South Australia