Liam Thatcher
@lthat.ch
No relation. NDIS policy and supporting disability advocacy. Account is in personal capacity.
he/him
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Reposted by Liam Thatcher
The Commonwealth argued in this hearing that the High Court appeal should not proceed, as the retrospective measures in the bill resolve any legal questions.
They may have had a point, had the bill been passed. I'm not sure it would have been a good one. In any event, the appeal will now be heard 🙂
They may have had a point, had the bill been passed. I'm not sure it would have been a good one. In any event, the appeal will now be heard 🙂
![Enacted and foreshadowed legislation limits the public importance of the matter
23 In its application, Legal Aid contends that the “public importance” of the proceeding for the purposes of s 35A(a)(i) of the Judiciary Act 1903 (Cth) lies in the significance of the interpretative question to a large cohort of social security debts calculated under affected provisions of the SSA: SLA[18].
24 Two legislative developments mean that there is no such issue of public importance.
25 First, the Social Services and Other Legislation Amendment (Simplifying Income Reporting and Other Measures) Act 2020 (Cth) (2020 Amendment Act) carved employment income out of point 1067G-H23 (and similar provisions relating to social security payments other than Youth Allowance) and made fresh, specific provision for the allocation of employment income to instalment periods. The 2020 Amendment Act commenced on 7 December 2020. The issue of statutory construction in this proceeding only affected the calculation of social security entitlements by reference to employment income prior to that date. It is for this reason that the cohort of persons identified by LegalAid as affected by this proceeding are those with historic social security debts that arose prior to 7 December 2020: SLA[18].
26 Secondly, the 2025 Bill would render the issues of statutory construction raised in Ground 2 of the special leave application irrelevant to the resolution of questions about historic entitlements under the SSA. That is because the Bill would provide that those questions are to be resolved by reference to the methodology for the allocation of employment income set out in proposed s 1117D of the SSA (Sch 1 of the Bill), rather than the provisions in issue in this proceeding: see proposed s 1117D(14).](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:ixeh4sx7e2e5z5ugpmkrptee/bafkreibmqwcwcuodkpj5ld2xam7lfhlfrcyf7lvinlscbpoeormmqdtkla@jpeg)
![The proposed appeal raises issues of public importance
16. The Secretary has not shown that the proposed appeal lacks public importance. The 2025 Bill is not an Act and has no bearing on whether special leave should be granted. The courts “can only act upon the law as it is” and do not “speculate upon alterations in the law that may be made in the future”. The Secretary invites the Court to engage in that kind of speculation: see RS2 [17]. In any event, the Secretary has not explained how it is said the Bill (if enacted in its current form) would “determine” the issues raised by the proposed appeal: RSI [3]; RS2 [4].
Disposition
17. Special leave should be granted. If special leave is refused, there should be no order for costs (which the Secretary has not sought).
Dated 18 September 2025
Kateena O’Gorman Laura Hilly Tim Farhall Glyn Ayres
James Hogan
Victoria Legal Aid
Solicitors for the Applicant](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:ixeh4sx7e2e5z5ugpmkrptee/bafkreia44q5tntqv6faqivvoa7mfuwrdqn2j5hsoytujz7zusz3dxjhdou@jpeg)
November 7, 2025 at 3:30 AM
The Commonwealth argued in this hearing that the High Court appeal should not proceed, as the retrospective measures in the bill resolve any legal questions.
They may have had a point, had the bill been passed. I'm not sure it would have been a good one. In any event, the appeal will now be heard 🙂
They may have had a point, had the bill been passed. I'm not sure it would have been a good one. In any event, the appeal will now be heard 🙂