Details of the Financial Framework (Supplementary Powers) Amendment (Immigration and Border Protection Measures) Regulation 2016

 

Section 1 - Name

 

This section provides that the title of the Regulation is the Financial Framework (Supplementary Powers) Amendment (Immigration and Border Protection Measures) Regulation 2016.

 

Section 2 - Commencement

 

This section provides that the Regulation commences on the day after it is registered on the Federal Register of Legislation. 

 

Section 3 - Authority

 

This section provides that the Regulation is made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedules to the Regulation.

 

Schedule 1 - Amendments

 

Item 1 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds three new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on three programs which are administered by the Department of Immigration and Border Protection (the Department).

 

New table item 187 establishes legislative authority for the Government to fund the Status Resolution and Support Services Program (SRSS Program). 

 

The SRSS Program provides needs-based support and assistance to eligible asylum seekers and other non-citizens (both in immigration detention and living in the Australian community):

*         as they seek to resolve their immigration status; and

*         once their immigration status has been resolved (whether by the grant of a substantive visa or otherwise), as they transition to mainstream services in the Australian community or make preparations to depart Australia.

 

The SRSS Program, which formally commenced on 1 January 2015, integrates four existing Programs which are specified in Schedule 1AA to the Financial Framework (Supplementary Powers) Regulations 1997 as follows:

*         community assistance support (table item 417.016);

*         community detention (table items 417.017 and 417.018);

*         asylum seekers assistance scheme (table item 417.012); and

*         services to unaccompanied minors in alternative places of detention (table items 417.017 and 417.018).

 

The types of services primarily include financial, medical, and housing.  The type and level of service is determined by the needs of the individuals and their residential status and may also include case worker and case management support.  More information about the Program can be found at www.border.gov.au.

 

People eligible for support under the SRSS programme will receive services under one of six SRSS bands, depending on:

*         the stage of visa processing;

*         any barriers that could prevent status resolution; and

*         their personal circumstances and level of need or vulnerability.

 

To be eligible for continued services under the SRSS programme, recipients must cooperate with the Department to resolve their immigration status and follow the Department's instructions.  People must also abide by certain conditions attached to their residence determination (applies to bands 2 - 3) or the Code of Behaviour for bands 4 - 6 bridging visa holders (where applicable).

 

Services under the SRSS Program are delivered via allocated service providers contracted to the Department following a competitive tender process.  Financial assistance is predominantly provided through the Department of Human Services (DHS), with service providers providing financial assistance when DHS is not in a position to make an immediate payment in an emergency situation.

 

Funding of $891.7 million from 2016-17 for four years was included in the 2016-17 Budget.

 

Funding for the SRSS Program comes from Program 1.3: Onshore Compliance and Detention, under Outcome 1: Protect Australia's sovereignty, security and safety by managing its border, including through managing the stay and departure of all non-citizens.  Details are set out in the Portfolio Budget Statements 2016-17, Budget Related Paper No. 1.11, Immigration and Border Protection Portfolio at page 26.

 

Components of the SRSS Program were funded and reported between three different Budget Programs under multiple outcomes prior to the 2016-17 Portfolio Budget Statements.  The SRSS Program was identified as a footnote in the Department's 2016-17 Portfolio Budget Statements as the Department no longer reports at the sub-Program level.

 

Spending decisions in relation to the SRSS Program are made by the appropriate Public Governance, Performance and Accountability Act 2013 financial delegate.

 

General information relating to payments for clients is available from the contracted service providers and via the DHS’s website: https://www.humanservices.gov.au/.  Information in relation to service provider contracts is available on the AusTender website: https://www.tenders.gov.au/.

 

Under the merits review process for this program, decisions in relation to payments for clients can be reviewed by DHS and/or the Department at the client's request.  Decisions in relation to payments to service providers can be reviewed through a dispute resolution process, which may include mediation or another form of alternative dispute resolution procedure.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

*         the aliens power (section 51(xix)); and

*         the immigration power (section 51(xxvii)).

 

New table item 188 establishes legislative authority for the Government to fund the Onshore Education Program.

 

The Onshore Education Program funds access to education and associated needs-based support for certain persons in Australia without authority, including unauthorised maritime arrivals.  The funding is primarily, but not exclusively, for school-aged children:

*         in immigration detention; or

*         covered by a residence determination within the meaning of the Migration Act 1958; or

*         who are unauthorised maritime arrivals and hold Bridging E visas.

 

The access will primarily include tuition and education related support.  Arrangements are in place with relevant education providers to facilitate access to education.

 

This Program is in line with Australia's obligations under the United Nations Convention on the Rights of the Child.

 

Funding of $114.2 million from 2016-17 for four years was included in the 2016-17 Budget.

 

The Onshore Education Program is funded from Program 1.3: Onshore Compliance and Detention under Outcome 1: Protect Australia's sovereignty, security and safety by managing its border, including through managing the stay and departure of all non-citizens.  Details are set out in the Portfolio Budget Statements 2016-17, Budget Related Paper No. 1.11, Immigration and Border Protection Portfolio at page 26.

 

To support the responsibility that state and territory governments have in relation to education, education providers are selected based upon geographical location and value for money.

 

Spending decisions in relation to the Onshore Education Program are made by the appropriate Public Governance, Performance and Accountability Act 2013 financial delegate.

 

All arrangements and contracts with education providers relating to the Onshore Education Program are published on the AusTender website (https://www.tenders.gov.au).

 

Under the Onshore Education Program, funding is provided to government and non-government education providers.  The Department works with education providers to confirm the eligibility of individuals under this program.  As indicated above, the funding is provided for certain persons in Australia without authority, including unauthorised maritime arrivals.  

 

There is no merits review process for the Onshore Education Program as decisions are not directed toward the circumstances of a particular person but applied to the above cohort.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

*         the aliens power (section 51(xix));

*         the social welfare power (section 51(xxiiiA)); and

*         the immigration power (section 51(xxvii)).

 

New table item 189 establishes legislative authority for the Government to fund the English as a Second Language Program. 

 

The ESL Program provides access to introductory level English as a Second Language courses for unauthorised maritime arrival adults covered by a residence determination within the meaning of the Migration Act 1958 or who hold a Bridging E Visa and have been recently released from held detention.  The purpose of the ESL Program is to develop basic English language skills to allow those individuals to function independently, develop social connections and, if permitted, find employment.

 

Arrangements are in place with service providers to facilitate access to ESL courses.

 

Funding of $3.2 million from 2016-17 for four years was included in the 2016-17 Budget.

 

The ESL Program is funded from Program 1.3: Onshore Compliance and Detention, under Outcome 1: Protect Australia's sovereignty, security and safety by managing its border, including through managing the stay and departure of all non-citizens.  Details are set out in the Portfolio Budget Statements 2016-17, Budget Related Paper No. 1.11, Immigration and Border Protection Portfolio at page 26.

 

Services under the ESL Program are delivered via allocated service providers contracted to the Department following a competitive tender process.  There are currently nine service providers.  Information in relation to service provider contracts is available on the AusTender website (https://www.tenders.gov.au).

 

Spending decisions in relation to the ESL Program are made by the appropriate Public Governance, Performance and Accountability Act 2013 financial delegate.

 

Under the merits review process for this program, decisions in relation to payments to service providers can be reviewed through a dispute resolution process, which may include mediation or another form of alternative dispute resolution procedure.  To be eligible for consideration to access an English as a Second Language course, an individual must:

*         be an adult Illegal Maritime Arrival;

*         be covered by a residence determination or the holder of a Bridging E visa;

*         demonstrate they have not previously had access to an ESL course through programs provided by the Department (this usually means that the Illegal Maritime Arrival was released from held detention after 31 December 2014); and

*         agree to attend all classes throughout the course.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

*         the aliens power (section 51(xix)); and

*         the immigration power (section 51(xxvii)).

 

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Immigration and Border Protection Measures) Regulation 2016

 

This Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the Regulations.  Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs.  The FF(SP) Act applies to Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013. 

 

Schedule 1 to the Regulation amends Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on three programs which are administered by the Department of Immigration and Border Protection. 

 

Funding will be provided for:

*         the Status Resolution and Support Services Program which provides needs-based support and assistance to eligible asylum seekers and other non-citizens (both in immigration detention and living in the Australian community) as they seek to resolve their immigration status and, once their immigration status has been resolved, as they transition to mainstream services in the Australian community or make preparations to depart Australia;

*         the Onshore Education Program which funds access to education and associated needs-based support for certain persons in Australia without authority, including unauthorised maritime arrivals; and

*         the English as a Second Language Program which provides access to introductory level English as a Second Language courses for unauthorised maritime arrivals who have been newly released from held detention into the community.

 

The Minister for Immigration and Border Protection has portfolio responsibility for these programs.

 

Human rights implications

 

The Regulation does not engage any of the applicable rights or freedoms.

 

 

Conclusion

 

This Regulation is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance