Social Security Legislation Rewrite Bill – Committee Stage – Part 5 – Video 3

Social Security Legislation Rewrite Bill – Committee Stage – Part 5 – Video 3

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mr. P on the table thank you I call crispy oh thank you very much mr. chair it’s a pleasure to follow the speech by mr. Dean but a haddock to follow but I shall give it my very best specifically in relation to sorry to interrupt the member please be careful with the personal pronouns you’ll bring the cheer into the debate Thank You Christine Thank You mr. chair so mr. sir I wish to focus on section two and five types of sanction and let me proceed my comments about the amendment that’s placed before us by the minister by just looking at the significance of that clause in the context of the legislation as a whole so what we’re looking at is sanctions for failure to comply with certain obligations under the Act this is important because the Act does obviously provide certain benefits which is of course the very purpose of the thing but it does also notes that in circumstances where a person makes himself or herself ineligible the incident sanctions will apply so this is no small matter this is a very serious thing indeed for people who are caught up in such circumstances now originally subsection one had seed that the image D must under Section two one seven and I know mr. Chia those words are significant for reasons that I will come back to shortly image D must impose a fine excuse me a sanction for failure without good and sufficient reason to comply with the obligations under the sect that are specified in Section two one six now on the replacement version of that subsection we’ve got something slightly different because actually what we’re doing now is referring to the section itself in not section two one seven so the words quote under Section two one seven in quote have been replaced by quote under the section in quote it’s actually completely unnecessary for a subsection to refer to itself or indeed to refer to itself that’s because the presumption would be there for section as making certain provisions for those who are subject to the act to comply with their it would be exactly under that section then you would only say that it was section X Y or Z that’s referred to if it was a section other than the section in which those words are contained so it seems to me mr. chair but I’ll seek the advice of the Minister on whether those words are indeed redundant and in doing so perhaps confirm or deny his view on whether another aspect of the wording he agrees with as well that mr. chair is with the phrase good insufficient reason his sufficient clarity in the in this proposed law it seems to me and I might be wrong again happy to be corrected if that’s the case there the phrase is not defined in the legislation itself so my question then becomes of the minister and perhaps here officials if necessary whether this phrase has a particular meaning in the law of the land already perhaps in another piece of legislation or in cases in which such matters have been brought before the courts is there any jurisprudence in other words around the phrase good and sufficient reason why is this important I hear you ask mr. chair well the answer is because this is the determination of all the basis of the determination of the MSD according to whether a person has failed to comply with the obligations under this Act I will note in passing mr. chair that an improvement in my mind has been made in this new version of subsection 1 it talks about compliance with one or more obligations under this act whereas the previous version had simply talked about the obligations under the old version this would imply that all the obligations have to be met whereas in fact its failure to comply with just one or more that will trigger this obligation or indeed ability for MSD to be able to impose sanctions so I will give a shout-out to the minister and her various team of officials who I think in this case have made a worthwhile change from the old to the new versions my next point our mr. chair has just in a round the meaning of the word considers so a mystique considers that a person has failed I wonder if we should instead have something along the lines of reasonably considers so that a reasonable standard an objective standard is required by the legislation this will mean that it’s subject to judicial review if a person believes that he or she has been unfairly excluded unfairly sanctioned then because the requirement is explicitly mr. chair I call Chris pink Thank You mr. chair the requirements is reasonable or has to be reasonable in terms of the exercise of that power by the department by virtue of the word reasonable or perhaps some other variations such as objectively or in the honest belief perhaps these obviously have different meanings in different imports and my question to the minister is really seeking assurance that these different variations these different kinds of standard have been considered similarly there is no guidance in this particular Clause whether we’re talking about as standards based perhaps on the balance of probabilities is it the case on the balance of probabilities that are more than 50% chance in other words that a person has failed to comply with their obligations alternatively we could have a higher standard that would provide greater protection if we were to say that a masti considering the obligations not having been met would be something like quote beyond reasonable doubt and quite that particular standard is used in the criminal law my personal view is that it’s not appropriate standard for this type of legislation because we’re not talking about criminal activity we’re talking about something lower and less serious than that merely failing to meet obligations but nevertheless I think it’s a reasonable point to make mr. chair and in something that again I invite the good Minister to tune who mind to my final point I think depending on how how how well I go and expressing it in the remaining time mr. chair is perhaps a bit pedantic but as we’re frequently reminded and quite rightly words do matter words have consequences and I mention that in the sense of this debate that we’ve been having with in the debate the meta level debate about policy neutrality we’ve been invited by the minister to talk about things and proposed amendments indeed that our policy neutral she’s indicated that she won’t entertain ideas that change the policy settings as outlined and the act that much is reasonable but on this side of the house we’ve had different views about what policy neutral means and I suppose the obvious point there is that because all words have meaning and all words matter if we’re changing any words or indeed grammar punctuation and so forth then we are changing in some small way the policy so that’s the balance that we need to strike and so it is that I say and I think in a policy neutral way but will perhaps be put to the test by the minister on this debt the phrase the following phrase is ambiguous and I’ll quote it verbatim and therefore I hope that I’ll be forgiven for referring directly to the text because exactitude is important in this matter so Amos T must under the section impose a sanction of a mystique considers that a person has failed without good and sufficient reason to comply with one or more obligations under this act that are specified and so forth an alternative wording would be if MSD considers that a person has without good reason failed to comply with one or more obligations under this act the significance being that the phrase without good and sufficient reason could actually technically syntactically at least that’s possible that it could refer to the phrase and qualify the phrase if amis D considers I don’t imagine it was the tint of the Minister and her government debt would be talking about image D considering without good and sufficient reason that a person has failed etc I think it’s much more likely that she intended the wording to mean that it was the failure of the person concerned without good and sufficient reason in other words to have failed for some reason that is sufficiently strong that would justify in the circumstances and I as I say mr. chair that seems to me the logical the natural meaning the natural interpretation but in these cases mr. chair of course we are dealing not merely with my view or even indeed the personal view of the minister or any other person in this house or any other person in this government we are in fact dealing with a series of words that together have meaning in the context of this legislation they have a meaning specifically that certain benefits will accrue and miss they’re denied under the operation of the section that is why it’s so significant that is why it’s important that we have absolute clarity and a first reading is to be the subject of a test and the court of law because the reasonableness of the decision is put to the test then we must have clarity on that point now invite the minister to do so the Honourable mr. chair I find it really interesting that that member had

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