Mallard Trevor: Social Security (Commencement of Benefits) Amendment Bill — First Reading Second Reading In Committee Third ReadingText is incorporated into the Bound VolumeMallard Trevor: Social Security (Commencement of Benefits) Amendment Bill — First Reading Second Reading In Committee Third Reading[Sitting date: 17 November 2015. Volume:710;Page:8211. Text is incorporated into the Bound Volume.]s the Social Security Act of 1964. I am going to refer in many of the comments that I make to the actual original Act in the part that we are amending. But I do want to note at the outset that the Ministry of Social Development website notes that there is actually a full rewrite of that legislation under way and that it is due in the House by the end of 2015. I wonder in fact whether that has highlighted other areas that might need to be addressed which the Minister may want to alert the Committee to.The reason that I am referring to the principal Act is that I wanted to check with the Minister on what basis the Government is claiming that the wording in the Act was inconsistent with the policy intent at the time the original amendments in 1998 were passed. The reason that I ask that is that we are amending clause 80BA(4) and if you look at 80BA(3) the clause immediately prior to that—The CHAIRPERSON (Hon Trevor Mallard): The section.CHRIS HIPKINS: What was that?The CHAIRPERSON (Hon Trevor Mallard): The section.CHRIS HIPKINS: The section—sorry—immediately prior to that that defines when a stand-down period begins. The sections that we are amending amend when a stand-down period ends but if you look at when a stand-down period begins it is actually very clear: “… if the person’s employment terminated or the person is given notice of termination of employment before he or she applied for the benefit the day after the date the person’s employment ceased.” So in that section it is very clear that it is the day after that that the stand-down period begins. But then the very next subsection which was in exactly the same amendment—the same legislation that amended the Act which is what we are now amending—it goes on to say that benefits commence on the day on which the stand-down period ends. It seems to me that if the policy intent in the original drafting was to make that differentiation or it was to make no differentiation why was a different form of words used in the drafting of the Act?So really the question that I have for the Minister is on what basis is the Government claiming that the legislation was incorrect not that the application of the legislation was incorrect? If the application had been incorrect then I do not think that there is any justification for the Government to retrospectively go back and try to change the law to make right an incorrect interpretation of the Act as intended by the agency that was implementing it. On the other hand there may be some justification if it was a genuine drafting error in the legislation but I struggle to accept that when the subsection immediately prior makes a clear differentiation between the “day on which” and the “day after”.For anyone following along at home they will probably think “What on earth is he talking about?” but actually it is quite important because it comes down to the issue of fairness and whether in fact this was a mistake by the agency implementing the law in that it interpreted the law incorrectly or whether it was a mistake made in the passage of the law in the first place. I think given very careful scrutiny of the original Act I am actually falling in the category that it is the former which is that it is actually a mistake in the way the law has been interpreted by the ministry in its implementation. Therefore I do not think that there are good grounds to retrospectively change.If the Government is saying it is now changing the policy intent to bring those two things into line that is a legitimate call for the Government to make. It can pass that legislation going forward into the future which would make the two clauses consistent but what is the rationale other than it being a fiscal cost to the Government because the agency implementing this has made a mistake in incorrectly interpreting the law? There cannot actually be a justification for amending the law retrospectively in the way that the Government is seeking to do through this bill because the mistake is in the interpretation of the law not in the law as passed. The law as passed it seems to me made a clear differentiation in its intent and in the way it was drafted between the stand-down period beginning and the stand-down period commencing. That is specified very clearly that the stand-down period commenced the day after somebody’s employment ceased but that the stand-down period ended on the day the stand-down period ended.Therefore I do not think that there is a case to be made to say that it was a drafting error because the sections are inconsistent. That must have been picked up at the time. This went through a full scrutiny process I presume at the time and therefore trying now to say that the policy was not incorrectly implemented by the drafting of the law I do not think stands. I think it is perfectly legitimate for the Minister to say that the law was incorrectly applied by the agency responsible for paying out the benefits but frankly I think who should wear that liability? It was not the mistake of the beneficiaries receiving the money. It was the mistake of the agency. So who should bear the liability for that? Should that liability be with the Crown the Government or the agency responsible or should that liability be with the recipients? If it was the incorrect application of the law I do not think it should be the recipients who bear the liability. I think it should be the Crown the Government and the people who made the mistake who bear the liability for that. I would be interested in hearing further comments from the Minister on that.