Social Security (Mandatory Reviews) Amendment Bill

Members, we now come to Part 2. This is the debate on clauses 6 to 8, “Other amendments to principal Act”, and the Schedule. The question is that Part 2 stand part.

This is a short part, but it does have some of the most concerning elements of this legislation in it. I will draw the committee’s attention to the Schedule, actually. So going straight to Part 2—sorry, it’s new section 438A, inserted by clause 6. This is about the regulations required for specified benefits.

We’ve spoken a little bit about the fact that there is an issue with regulation-making powers in this legislation, but we haven’t offered fulsome contributions because we were aware it was in Part 2. But under this section, particularly in new section 438A(1)(a) in Part 2 where it designates “the benefits or kinds of benefits that are a specified benefit or specified benefits for the purposes of Subpart 3A of Part 6.” The problem with this is I see the word “designating”, so I’m hoping that the Minister for Social Development and Employment can clarify that this is the designation only, not creation of the benefits that are specified. Even then, it’s problematic to go into regulations, but it would be great to have that in the Hansard. There are two issues. One is that it’s in regulations, as I’ve said, and the other one is that it’s the kinds of benefits, which means that it’s opening the door to saying that there could be other benefits that are not currently even thought of or created that might suddenly find themselves being made in secondary legislation.

Now I’d like to turn to the Legislation Design and Advisory Committee’s Legislation Guidelines: 2021 Edition—it’s known as the LDAC. For people at home, this is the Bible, if you like, of how to write proper laws. In 14.1, it’s really clear that “Legislation should not delegate a power to make secondary legislation in respect of matters that are more appropriate for an Act.” In it, it talks specifically about how it’s OK if it’s minor or technical details for the implementation and operation of the ACT, but matters that affect fundamental human rights in a significant way should not be included. Yes, it admits that there are some grey areas, but I would submit that does not apply in this case. If we look at it, it’s teased out, it talks about “matters of significant policy” and “matters significantly affecting fundamental human rights”.

Now, when we’re talking about benefits, we’re talking about people’s ability to live quality lives, to not be on the street, to have food on the table, and to have lives with dignity. I don’t think there would be any dispute that when we’re talking about housing, food, shelter, and those fundamental things in the hierarchy of human needs, that those are fundamental human rights. So, clearly, this should not be relegated to regulation.

It’s been done very deliberately. If I look at some of the benefits that are not captured by the exemption—and we’ve seen amendments on them: Working for Families; the winter energy payment, that’s about people being warm; the widow’s benefit; the supported living benefit, which we still don’t have clarity about; jobseeker support; the special disability allowance; the student allowance; the young parent allowance; sole parent support; young parents. These currently are not exempted. They are in the designated regulations that is going to happen in this empowering provision new section 438A, inserted by clause 6. That’s a problem to us because those, even if they’re in the exemptions, should be specified, and, if they’re not, that should be clear, rather than relegating that. At the moment, the door is wide open.

There is also the question of the words “kinds of benefits”. Now, I’m hoping the Minister will say that designating does exclude creating, but the “kinds of benefits”, if we could cut that out, that would maybe close that door a little. It doesn’t really resolve the problem, but this is wide open now to give this Government, which doesn’t like beneficiaries, lots of power to be able to put a whole lot of other things in there, call them benefits and say, “We are now going to capture those.” in the new bill that is being slammed through urgency today. That is completely unacceptable, and in my view, goes against the LDAC.

So I’d like to see what the Minister has to say about that. Coming up, I think there are also going to be some other really important questions about retrospectivity and the application of this Act, so bear with us, Mr Chair.

Thank you, Mr Chair. I also have a question for the Minister for Social Development and Employment around new section 438A, inserted by clause 6, but I’m coming at regulations from a different angle, and particularly when it comes to regulation-making power (RMP).

One of the things that we have seen, particularly with bills under urgency, is that they don’t have the chance to even go through a vetting process or review process from some of committees here in Parliament itself, one of them being the Regulations Review Committee, which does oversee some of the secondary legislation. Now, the reason I mention this is because when we are looking at the way that this particular bill is worded, what we are risking is potentially elements of ultra vires. I was wondering whether the Minister or officials have considered in their analysis around instances or risk of ultra vires and what that would mean from a perspective of either judicial review or—let’s say, for example—a complaint to the Regulations Review Committee under Standing Order 327(2)(c), to give an example. So my question for the Minister is: when something like this is drafted, has the Minister considered the potential risks and the scope of the regulation-making power in this particular provision?

Also, this is something that we see in other legislation, particularly legislation under urgency—because, again, I understand there are certain requirements, etc. But what we also see in some of this other legislation around regulation-making power is the ability for there to be a review within a certain period of time. That is also something that we’re not seeing in this specific section 438A.

I also want to ask a follow-on from my previous question around the scope of the regulation-making power and the potential risks of the regulation-making power and whether the Minister would then consider my amendment, which is to introduce a new subclause (1A), which allows there to be a provision for review no later than four years after this particular section being introduced. That’s a very reasonable amendment, because it allows sufficient time for anything to be vetted, for this to be fully implemented by the commencement date, and for there to be a number of years for us to be able to track some of that data. And, indeed, in some of the legislation we’re introducing RMP, particularly as secondary legislation, we do see that review as a baseline safety net for anything that potentially might happen.

So those are my three questions on the specificity of the regulation-making power. I know other people may have questions around the specificity around the designation of certain kinds of benefit, but my question is on the risks, the possibility of ultra vires, the possibility of a judicial review or of a complaint to the Regulations Review Committee under Standing Order 237, and whether the Minister would consider my amendment.

I do want to just remind members that the list of benefits that’s included is very clear because they are payments that don’t expire. So I was surprised when members were considering changes to this, that benefits that are due to expire were included in some of the amendments. I can assure the committee in terms of the Labour member’s question that the design of the regulation-making power has been aligned with the Legislation Design Advisory Committee guidelines and passes that threshold.

Thank you, Mr Chair. I wanted to take a call on the Schedule—this is the “New Part 11 inserted into Schedule 1”. I wanted to look at clause 105, and this is the “First mandatory review … for specified benefit granted and commences before commencement date”. The way I read this is that—and even the other provisions in Part 2 as well—it’s creating the potential as well that if a new benefit where there’s not a review, as she just outlined, is introduced by the Minister for Social Development and Employment—say she decides to introduce a new type of benefit—some of this can be used, which then begs the question as to whether she has any intention of introducing any new types of benefit. That’s how I’m reading it, and therefore, you know, I’d be keen to get some clarification about this.

This is particularly important—and her official’s giving some notes—because, you know, for example, when we were discussing the Social Security Amendment Bill that had provisions around automatic decision-making, the Minister didn’t tell us at the time that she intended to use this piece of legislation following up the Social Security Amendment Bill that broadened the use of automatic decision-making. So now I wonder if I’m interpreting the Schedule correctly—whether, then, she also has an intention to introduce new types of benefits that don’t have a review to which this could then apply. If that is the case, I’d be keen to give the Minister the opportunity to offer some transparency to the committee.

I say this because we didn’t get engagement in the previous debate around, for example, the breakdown around the savings and where they’re going to be coming from, the breakdown around the benefit types. We didn’t get engagement around the algorithm and presenting it to the committee. And we didn’t get any engagement from the Minister around giving us the unredacted part of the regulatory impact statement. So I’m really keen to get some engagement from the Minister around whether she intends to add any new types of benefits that are not reviewed and therefore would then be captured with this, and, if so, what are they and whether any work’s started around this.

Then, following up on my colleague Lawrence Xu-Nan’s questions in relationship to the broader sort of reviews, I did want to ask whether the Ministry of Social Development (MSD) already did an analysis on the potential staffing utilisation that could occur as part of MSD as part of these reviews, and, if so, what is the intended potential cost that could arise from that? If she has any information from whatever MSD has produced as a result, that would be really, really useful.

I say this again because, looking at the budget lines, it seems like MSD isn’t getting—well, the way I read it, and we didn’t have a lot of time because we, basically, jumped straight into this debate, is that there doesn’t seem to be a huge increase in staffing capacity at MSD. I note as well from questions I asked under, I think, the Official Information Act, there still remains a large amount of vacancies being unfilled by MSD. So I do wonder, in terms of the sort of reviews in Part 2, whether the Minister is confident that there will be enough capacity for MSD to progress with those.

But just to recap, I’m keen to hear around the Schedule in new Part 11 as to whether she intends to introduce any new types of benefits that could be captured, and the second part. Thank you.

I want to just confirm to the committee that the regulation-making power has been carefully designed so there is no “Henry VIII” clause. For the previous member, the primary legislation specifically includes benefits that can’t be included in regulations, which protects parliamentary sovereignty. I have already answered questions around resources, front line, efficiency, and gains from automated decision-making.

CHAIRPERSON (Teanau Tuiono): Members, the time has come for me to leave the Chair. This House will resume at 7 p.m.

Sitting suspended from 5.57 p.m. to 7 p.m.

Members, the committee is resumed on the Social Security (Mandatory Reviews) Amendment Bill. When we rose for the dinner break, we were debating Part 2. Once again, the question is that Part 2 stand part.

Thank you, Madam Chair. Thank you very much. I’m really pleased to be standing to speak to Part 2 and ask some questions to the Minister for Social Development and Employment as I have been waiting a little while—we were voting on that last round for quite some time. I’m presenting some new questions for the Minister as they pertain to Part 2, clause 8, the amendments to Schedule 2, particularly subclause (1). We have reference here to automated electronic systems.

I do want to refer, first of all, to the Ministry of Social Development’s regulatory impact statement (RIS). We have some really useful information on pages 16 and 17 regarding human oversight and standard requirements. In regards to automated electronic systems, I would like to ask the Minister around the provision that is assured in this regulatory impact statement of providing a channel for challenging or appealing decisions made using automation, and how this channel must be made easily visible and accessible to the individuals impacted by the decision.

We know through the RIS that there are some risks around the impacts that will be disproportionately affecting Māori communities. As this bill has come through under urgency, we have not had a chance to debate or tease this out in a select committee as would be standard. So we do need to present these questions here in the committee and go through them methodically and try really to earnestly get some responses from the Minister.

The bill talks about automated electronic systems, which are a reference to artificial intelligence (AI), effectively. The Minister might be able to give assurances around what information she has received from community, from experts, from researchers in the field around the requirement in the RIS, or the promise that it will be made—the safeguards will be in place around the use of AI. We know that community have provided their thoughts and recommendations despite there not being a select committee in order to hear from community.

I am referring to the report that was released or presented publicly by Mana Raraunga, which is the Māori Data Sovereignty Network. This is a new point that has not been explored in any part of this debate yet—data sovereignty for Māori—and it’s essential, as it is a part of a guarantee under article 2 of Te Tiriti o Waitangi: tino rangatiratanga over ngā taonga katoa. Data is a taonga. It is a protected right under Te Tiriti o Waitangi, and Mana Raraunga outline in their principles document, Principles of Māori Algorithmic Sovereignty as it pertains to the use—

Hon Member: What?

Hon Member: Are you kidding me?

BENJAMIN DOYLE: Yes. You wouldn’t know much about that on the other side, I assume. Automatic—

CHAIRPERSON (Maureen Pugh): I’m sorry to interrupt the member. Can you just refer me to the clause you’re—

BENJAMIN DOYLE: Certainly. Thank you. Part 2, clause 8(1), the amendment to Schedule 2, which is around automated electronic systems, which is a reference to the algorithmic programming and machines used to process data. Did you find the clause?

CHAIRPERSON (Maureen Pugh): No.

BENJAMIN DOYLE: It’s on page 8, around line 25.

So automated electronic systems is a reference to algorithmic data collection and use. Mana Raraunga references principles of good algorithmic data sovereignty in their report presented publicly. I would like to know if the Minister has made any consideration to the principles of Māori algorithmic sovereignty as they pertain to the use of AI in data.

CHAIRPERSON (Maureen Pugh): Can I just remind the member that that clause that you’re referring to is a cross-reference in in terms of Part 2. It’s not actually a debate on the detail that the member is—

BENJAMIN DOYLE: Sure. May I reiterate my question to the Minister pertaining to that?

CHAIRPERSON (Maureen Pugh): You’ve got 22 seconds.

BENJAMIN DOYLE: Fabulous. Thank you.

So my question is around what information or advice has the Minister been given regarding the use of automated electronic systems as it pertains to Māori data sovereignty? Thank you, Madam Chair.

I move, That the committee report progress.

Hon Kieran McAnulty: Point of order, Madam Chair. Can you please confirm to the committee that it is appropriate for a Minister in the chair to move that when there are speakers that were seeking the call?

CHAIRPERSON (Maureen Pugh): Yes. This is a motion to report progress; it’s not a closure motion. The question is that the motion be agreed to.

Motion agreed to.

House resumed.

Madam Speaker, the committee has considered the Social Security (Mandatory Reviews) Amendment Bill and reports that it has made progress on the bill. I move, That the report be adopted.

Motion agreed to.

Report adopted.

The bill is set down for third reading immediately. [Interruption] Oh, have I got the wrong—oh, OK. The bill is set down for further consideration next sitting day. I think something’s changed on us, so that’s OK. We’ve done that bit right. Just a moment. Let me get on the right page here. I’m going to call the Hon Simon Watts, which is what I’ve got on this one.