Appendix 2 - Answers to questions on notice from DEST
1. Can DEST clarify the purposes and intentions of the relevant
sections of the SALA Bill 2005 as discussed in this paper?
The purpose of the Bill is to amend Part 4A of the Student Assistance Act 1973 and Chapter 2B of the Social Security Act 1991 to make it
clear that a student cannot apply for assistance under the Student Financial Supplement
Scheme under either Act after the commencement of the Bill.
The Bill also amends both Acts to provide for the alignment of the
Student Financial Supplement Scheme repayment thresholds and indexation with
the Higher Education Loan Programme (HELP) under the Higher Education Support Act 2003 and applies the definition of
taxable income used under the HELP arrangements to the Student Financial
Supplement Scheme.
The Student Financial Supplement Scheme has been closed under
administrative arrangements since 1 January 2004 as there was no longer a
participating financial institution.
This Bill was introduced to statutorily close the scheme.
The Bill will also insert a
provision permitting the incorporation of an instrument “as in force or
existing from time to time” for the purposes of section 14 of the Legislative Instruments Act 2003.
2. Can
DEST provide to the committee the legal opinions on which the elements of the
proposed bill, as discussed in this paper, have been based?
DEST sought informal legal opinions from the Office of Parliamentary
Council (OPC) and these opinions were agreed to by DEST’s Chief Lawyer. In relation to Part 2 of Schedule 2 to the
Act, informal advice was also provided by the Office of Legislative Drafting in
the Attorney-General’s Department while they were drafting the Student
Assistance Regulations 2003.
3. Can
DEST explain why the so-called ‘broad view’ regarding the possible
interpretation of this bill does not prevail?
The department understood that the drafting of proposed subsection
48(2) was in accordance with normal drafting for this type of provision by the
Office of Parliamentary Counsel (i.e. where an express provision for exemption
from section 14 of the Legislative
Instruments Act 2003 is required).
A similarly worded provision seeking
exemption from section 49A of the Acts Interpretation Act 1901 was
included in the Student Assistance Amendment Bill 2003, which
lapsed when Parliament was prorogued for the 2004 Election.
The original Student
Assistance Regulations 2003 identified prescribed events which must be notified
for the purposes of section 48 of the Act and in doing so made reference to the
“ABSTUDY
Policy Manual”, the “AIC Policy Manual” and the “Guide to Commonwealth
Government Payments”. The two policy
manuals were referred to by date solely for the purposes of relying on defined
terms which they contained.
The Guide to Commonwealth Government Payments (the Guide) was merely
referred to in notes to the Regulations.
The notes to current regulations 122, 206 and 305 read as follows: “Note
The Guide to Commonwealth Government Payments explains concepts used in
this Part”. The Guide is a Centrelink publication which
describes the rates and thresholds of all Australian Government payments that
are delivered through Centrelink.
It is not, and was never, the Government’s intention that these
extrinsic publications would prescribe events for the purposes of section
48. In fact when it became clear that
the Student Assistance Amendment Bill 2003 would not become law the Minister
sought an amendment to the Student Assistance Regulations 2003 to reproduce in
the regulations the references (defined terms) which relied on the policy
manuals. Now only the references to the Guide
to Commonwealth Government Payments in the notes mentioned above remain in the
regulations. As the Guide is updated
quarterly, proposed subsection 48(2) is still required to allow references in
the regulations to the Guide “as amended from time to time”.
Consequently the department has only ever operated on the presumption
that the “narrow view” of the provision described in the Bills Digest would
apply. The Department does not agree
that this amendment will reduce Parliamentary scrutiny as any regulations made
relying on the power are subject to disallowance by either House of Parliament.
4. Can
DEST advise why an amendment to the Bill in the terms as set out in the
Concluding Comments would not be reasonable or desirable in the interests of
avoiding potential or actual legal ambiguity and/or uncertainty.
The recent removal from the Regulations of
references to the ABSTUDY and Assistance for Isolated Children Scheme Policy
Manuals means that the reference to ‘guidelines’ in the explanation of proposed
subsection 48(2) in the Explanatory Memorandum to the Bill is misleading.
If it will assist the Committee with their
deliberations, the Department will recommend to the Minister that he correct
the explanation and include an express statement that, to remove doubt the
power in proposed subsection 48(2) is not intended to permit the determination
of prescribed events in extrinsic materials and that prescribed events may only
be determined expressly in the Regulations.
5. When
will the Government respond to the committee's report on Student Income
Support, tabled on 23 June 2005.
The Government is examining the
recommendations of the Committee’s report on Student Income Support tabled on
23 June 2005 and will respond in due course.
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