The government's JobMaker wage subsidy legislation looks set to pass Parliament, but crossbencher Rex Patrick has warned approving the legislation in its current form would be in breach of the Constitution.
Announced as part of the budget, the JobMaker scheme would pay employers up to $200 a week for each new employee they hire under the age of 35 who was on an unemployment benefit.
The detail of the legislation gives Treasurer Josh Frydenberg significant power to change rules around eligibility and other details of the program, powers Senator Patrick said shouldn't be allowed since there was no longer the urgency of the early days of the pandemic.
"This is an extraordinary piece of legislation through which the Australian Parliament would abrogate its constitutional responsibility to decide legislation to an executive government that is already notoriously secret and very adverse to parliamentary and media scrutiny," Senator Patrick said.
"The JobMaker Hiring Credit Bill in its current form - with a head of power granting largely unconstrained control and discretion to the executive - should not be passed by the Parliament without the rules governing the JobMaker scheme being included in the legislation."
Mr Frydenberg was given similar discretion to decide the eligibility rules for the JobKeeper program, with such elements of the bill subject to disallowance motions in the Senate. Labor and the Greens attempted to widen eligibility for the program in the Senate, but failed to get all crossbenchers onside.
Despite noting significant concerns with the bill in additional comments to a Senate committee report, Labor was part of a bipartisan recommendation the bill be passed, continuing a pattern of not standing in the way of stimulus measures aimed at curbing the effect of the pandemic on jobs and the economy.
Senators Alex Gallacher, Jenny McAllister and Louise Pratt said Labor "appreciates the need for some flexibility", saying: "However, the use of delegated legislation means the only option for Parliament to deal with objectionable new rules or unintended consequences is by a disallowance motion, rather than targeted amendments as normal legislative processes would allow."
Industry peak bodies and unions told the Senate committee scrutinising the legislation it was difficult to properly assess and give feedback on the scheme, because the bill and explanatory memorandum were so brief, and the rules to go with the scheme weren't available when the legislation was first introduced.
While the bipartisan committee noted the lack of detail, it recommended the bill be passed due to the need to support those out of work due to the pandemic.
Senator Patrick used his dissenting report to say members of Parliament wouldn't be doing their jobs properly if they allowed the bill to become law.
"If it does pass as it stands it will be because those members and senators that voted for it abdicated their responsibilities," he wrote.
"They will have placed themselves in the unenviable position of not being Members of Parliament, rather reckless Jobfakers."