Details of the Financial Framework (Supplementary Powers) Amendment
(Home Affairs Measures No. 2) Regulations 2020

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Home Affairs Measures No. 2) Regulations 2020.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after they are registered on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section provides that the Regulations are 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 Schedule to the Regulations.

 

Schedule 1 - Amendments

 

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

 

This item adds two new table items to Part 4 of Schedule 1AB.

 

New table items 398 and 399 establish legislative authority for government spending on support services for post-traumatic stress disorder (PTSD) and other mental illnesses, and to establish a support and mental health literacy network for emergency services workers, which will be administered by the Department of Home Affairs (the department).

 

Both items reflect the Government's commitment to ensuring emergency services workers and their families are receiving the necessary support to prevent and treat PTSD and other mental illnesses.

 

The first item addresses immediate needs by funding select and specialist organisation/s to provide support services for PTSD and other mental illnesses to those emergency services workers who responded to bushfires across Australia in 2019-20 and their immediate families who are also adversely affected by the bushfires.

 

The second item addresses the preparedness and sustainability of our emergency services sector over the longer term through a support and mental health literacy network, which extends to immediate family members. This network will connect those persons who are in need of clinical and non-clinical support services in relation to PTSD and other mental illnesses, including suicidality, with appropriate access to social connections, information and medical treatment and/or resources.

 

The items will provide benefit both volunteers and career personnel - and their families/kinship groups - involved in delivering emergency services across Australia. Improving mental health literacy of emergency services workers and their families and kinship groups, will result in improved capacity to share knowledge and lessons and provide informed support.

 

The program will complement the Minister for Health's standalone 2020-21 Mental Health and Suicide Prevention Package.

 

The program is expected to commence within the 2019-20 financial year.

 

The department will use a grant process for the funding in relation to these items in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs).

 

In accordance with the CGRGs, grant guidelines will be developed in collaboration with the Department of Social Services Community Grant Hub. The grant guidelines will outline the objectives and outcomes of the government funding and the deliverables, including eligibility and sections processes. The grant guidelines will be made publicly available on GrantConnect (www.grants.gov.au), together with information on the grant. Successful applicants will be published on the GrantConnect website.

 

The department will be supported by the Community Grant Hub to administer and deliver the grant Program under a Memorandum of Understanding between the two entities.

 

The department will establish a Selection Advisory Panel to review and assess all project grant applications and make recommendations to the delegate for funding. The Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management will make the final decisions in all matters, including the approval of the grant, the funding amount to be awarded and the terms and conditions of the grant.

 

Grant decisions under the Program will involve the allocation of finite resources, and as such, are not suitable for independent merits review because an overturned decision may affect an allocation that has already been made to another party. Decisions will be made in accordance with the CGRGs and the PGPA Act. The review and audit process undertaken by the Australian National Audit Office also provides a mechanism to review Government spending decisions and report any concerns to Parliament. Judicial review may also be available under section 39B of the Judiciary Act 1903 and section 75(v) of the Australian Constitution.

 

In administering this grants Program, administrative accountability will be achieved by ensuring that:

*         the process of allocating funds is fair;

*         the criteria for funding are made clear; and

*         decisions are made objectively.

 

Funding of $11.5 million will be available for a period of three years from 2019-20.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item 398 references the following powers of the Constitution:

*         the medical services and sickness benefits powers (section 51(xxiiiA));

*         the external affairs power (section 51(xxix)); and

*         the express incidental power and the executive power (sections 51(xxxix) and 61), including the nationhood aspect.

 

Medical services and sickness benefits powers

The social welfare power in section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits, in particular with respect to medical services and sickness benefits.

 

The Government will fund select and specialist organisation/s to provide support services for post-traumatic stress disorder (PTSD) (including prevention of PTSD) and other mental illnesses to emergency services workers who responded to bushfires across Australia in the 2019-20 bushfire season. These services will also extend to available to immediate family members of emergency services workers.

 

The funding may be directed to medical services including services provided by medically-trained health professionals, with a particular focus on the prevention and treatment of PTSD or the assessment of a person's medical condition with a view to preventing or treating PTSD and other mental health issues.

 

External affairs power

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation implementing Australia's international obligations under treaties to which it is a party.

 

Australia is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Under the ICESCR, Australia is under an obligation under article 2 to 'take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized', including 'the right recognised in article 12 of 'everyone to the enjoyment of the highest attainable standard of physical and mental health'.

 

The Government is providing funding for support services that are specifically directed towards improving the health of people with PTSD and other mental health issues and ensuring that they receive appropriate and adequate health services treatment by, e.g., connecting those in need of clinical services. The funding will help emergency services workers and their immediate families adversely affected by the bushfires to build and/or improve their resilience and being able to enjoy the highest attainable standard of mental health by ensuring that there are accessible and appropriate medical services and support services, which are focused on prevention and/or treatment of PTSD and other mental health issues.

 

Express incidental power and the executive power

The express incidental power in section 51(xxxix) of the Constitution empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested in the Parliament, the executive or the courts by the Constitution. Section 61 of the Constitution supports activities that are peculiarly adapted to the government of a nation and cannot be carried out for the benefit of the nation otherwise than by the Commonwealth.

 

With respect to the support services for PTSD and other mental health issues, given the scale of the current bushfire emergency in Australia, a national, immediate and short-term bushfire response is required to support the recovery of emergency services workers who responded to the bushfires across Australia in 2019-20 bushfire season, and their immediate family members. Funding for the support services is targeted to address the 'immediate needs' of those emergency services workers and their families.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item 399 references the following powers of the Constitution:

*         the medical services and sickness benefits powers (section 51(xxiiiA));

*         the external affairs power (section 51(xxix)); and

*         the communications power (section 51(v)).

 

Medical services and sickness benefits powers

The social welfare power in section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits, in particular with respect to medical services and sickness benefits.

 

The Government will fund the establishment of a pilot program to provide a support and mental health literacy network for emergency services workers and their families and/or their kinship groups. This pilot program will connect those people who are in need of clinical and non-clinical services in relation to PTSD and other mental illnesses, including suicidality. The pilot program is directed at addressing and improving the preparedness and sustainability of Australia's emergency services sector over the long-term, by:

*         motivating actions to connect, talk about and seek help for mental health distress and suicidality;

*         integrating existing specialist prevention and treatment services;

*         reducing organisational and social stigma;

*         raising the knowledge of the emergency services workers and their families of mental health issues; and

*         improving organisational mental health knowledge, capabilities, regulation and practices.

 

The funding is aimed at alleviating the stress and likelihood of illnesses in the emergency services sector, their families and their kinship groups who have been adversely affected by the current bushfire season, and manage their level of mental health over time.

 

External affairs power

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation implementing Australia's international obligations under treaties to which it is a party.

 

Australia is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Under the ICESCR, Australia is under an obligation under article 2 to 'take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized', including 'the right recognised in article 12 of 'everyone to the enjoyment of the highest attainable standard of physical and mental health'.

 

The Government is providing funding for the Support Network, which is specifically directed towards improving the health of emergency service workers, families and/or kinship groups with PTSD and other mental illnesses. The Support Network is aimed at ensuring that they receive appropriate and adequate health services treatment (by e.g. connecting those in need of clinical services), to improve mental health literacy amongst emergency services workers and their families, and to motivate people to connect, talk about and seek help for mental health distress and suicidality. The Support Network targets available resources to facilitate the enjoyment of the highest attainable standard of mental health by these people over time.

 

Communications power

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'

 

The Government will fund the development and delivery of materials and contents, which will be made available through a range of online communication and networking activities, informational/educational resources, and services. For example, emergency services workers, their families and/or kinship groups will be able to access information and resources about the Support Network and other matters relating to mental health (in particular, PTSD) on a website.

 

 

 

 

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

(Home Affairs Measures No. 2) Regulations 2020

 

This disallowable legislative instrument 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 FF(SP) 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.

 

The Financial Framework (Supplementary Powers) Amendment (Home Affairs
Measures No. 2) Regulations 2020 amend Schedule 1AB to the FF(SP) Regulations to add two new table items (398 and 399) to Part 4 of that schedule. The new table items establish legislative authority for government spending on support services for post-traumatic stress disorder and other mental illnesses, and to establish a support and mental health literacy network, which will be administered by the Department of Home Affairs.

 

The support services for post-traumatic stress disorder and other mental illnesses will be available to emergency services workers who responded to the 2019-20 Australian bushfires, and their immediate family members. The funding will also establish a support and mental health literacy network to provide support for emergency services workers (including volunteers and former emergency services workers) and their families (including kinship groups), which is aimed at lowering suicide rates and improve mental health outcomes.

 

Human rights implications

 

This legislative instrument engages Articles 2(1) and 12(1) and (2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

Article 2(1) of the ICESCR provides:

 

            'Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means ... .'

 

Articles 12(1) and (2) of the ICESCR provide:

 

            '1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.'

 

The UN Committee on Economic, Social and Cultural Rights in their General Comment No. 14 explain that Article 12 (2)(c) and Article 12 (2)(d) of ICESCR includes the provision of mental health treatment and care as well as health education.

 

This legislative instrument promotes the right to the highest attainable standard of mental health for emergency services workers who responded to the 2019-20 Australian bushfires and their immediate family members. The link between the complexity of Australia's mental health services system and the stigma attached to admitting to and reporting mental health conditions has consequently led to high rates of mental health issues and suicide within the emergency services workforce. Investing in mental health services through the Program will ensure Australia is able to adequately plan for, respond to and recover from emergencies in the future and provide support for emergency services workers and their families.

 

The legislative instrument supports this right to the extent that is directed towards improving the health of people working in emergency services during the 2019-20 Australian bushfires, and their immediate family members, with PTSD and other mental illnesses by ensuring that they receive appropriate and adequate health services treatment by, for example, connecting those in need of clinical services.

 

The legislative instrument seeks to fund services that improve mental health literacy amongst emergency services workers and their families, and to motivate people to connect, talk about and seek help for mental health distress and suicidality.

 

Conclusion

 

This instrument is compatible with human rights as it supports the human rights obligations discussed above

 

 

Senator the Hon Mathias Cormann

Minister for Finance