Attachment A

 

Details of the Financial Framework (Supplementary Powers) Amendment (Home Affairs Measures No. 6) Regulations 2023

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Home Affairs Measures No. 6) Regulations 2023.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after registration 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

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Part 1--Amendments

 

Item 1 - Part 4 of Schedule 1AA (table item 417.013)

 

This item repeals table item 417.013 - Refugee and humanitarian passage, associated costs and related services.

 

This amendment is consequential to item 3 below. This is a technical amendment to repeal a redundant item, which is superseded by a new table item 634.

 

Item 2 - Part 4 of Schedule 1AB (table item 524)

 

This item repeals table item 524 - Assisted Passage Program.

 

This amendment is consequential to item 3 below. This is a technical amendment to repeal a redundant item, which is superseded by a new table item 634.

 

Item 3 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds two new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending for certain activities administered by the Department of Home Affairs (the department).

 

New table item 634 establishes legislative authority for government spending on the expansion of the Assisted Passage (AP) Program with provision of services, which are integral to the successful delivery and integrity of the offshore component of Australia's Humanitarian Program (Humanitarian Program).

 

The AP Program is a long-standing, successful program that provides assisted passage, medical and related services for Australian Government-funded Refugees and limited services to Special Humanitarian Program visa holders to resettle in Australia. The program ensures that entry to Australia under the offshore Humanitarian Program is managed through a planned and orderly process. This is consistent with the Australian Government's broader objectives to deter people smuggling and irregular entry to Australia.

 

Legislative authority for the original AP Program was provided by existing item 417.013 of Schedule 1AA and item 524 in Schedule 1AB which allow individuals to access services under the AP Program post-visa grant. However, services such as medical screening and Deoxyribonucleic acid (DNA) testing need to be conducted pre-visa grant, along with other activities that have been added to the AP Program due to the evolving needs and requirements of persons who would generally be resettled under the program. Current eligibility for the AP Program excludes evacuees who were granted a Humanitarian Stay (Temporary) (Subclass 449) visa in response to the fall of Kabul in August 2021.

 

New legislative authority under table item 634 will cover the full range of services and activities funded under the expanded AP Program to eligible offshore Refugee and Humanitarian visa holders, pre- as well as post-visa grant. Item 634 will also enable the remaining Afghan nationals who have been granted or have been invited to apply for Subclass 449 visas to access relevant services under the AP Program.

 

Existing funding for the AP Program will provide the following services without additional costs resulting from the expanded services:

*         medical screening for Refugee and Special Humanitarian Program (SHP) visa applicants before a visa is granted and for visa holders prior to their departure for Australia;

*         travel for Refugee visa holders from their usual place of residence to their final destination in Australia;

*         transit assistance to support Refugee visa holders travel to Australia, including flights to Australia post visa grant;

*         escort services for Refugee visa holders in specific circumstances, such as significant medical needs;

*         DNA tests for refugee visa applicants to determine family composition during the visa application process;

*         approved medical treatment for Refugee and SHP visa holders; and

*         other related services, such as delivery of the Australian Migration Status ImmiCard as directed by the department.

 

The AP Program operates globally, directly supporting the delivery of the offshore Humanitarian Program. The intake for the offshore Humanitarian Program (and thereby the intake for the AP Program) is drawn from a range of nationalities and ethnic and religious groups, reflecting global displacement arising from conflict and persecution. It operates flexibly to respond effectively to evolving humanitarian emergencies, such as Afghanistan, and global resettlement needs.

 

The offshore humanitarian program comprises two categories: Refugee and SHP.

 

The refugee category provides resettlement opportunities for persons who are subject to persecution in their home country and who are typically outside that country and in need of resettlement. The Australian Government covers the majority of costs associated with this visa (pre and post-visa application), primarily through the AP Program.

 

The SHP is for persons who are outside their home country and subject to substantial discrimination amounting to gross violation of their human rights in their home country. The applicant's entry must be proposed by an Australian citizen or permanent resident, an eligible New Zealand citizen or an organisation that is based in Australia. The Australian Government only funds very limited services for the SHP, with the majority of costs expected to either be self-funded or covered by the proposer.

 

Services under the AP Program are provided to eligible individuals holding the following offshore refugee and humanitarian visa subclasses:

*         Refugee (Subclass 200) visa;

*         In-country Special Humanitarian (Subclass 201) visa;

*         Global Special Humanitarian (Subclass 202) visa (medical screening and travel assistance to medical screening/appointments only);

*         Emergency Rescue (Subclass 203) visa;

*         Women at Risk (Subclass 204) visa; and

*         Humanitarian Stay (Temporary) (Subclass 449) visa.

 

Services under the AP Program are provided on behalf of the department by a contracted service provider.

 

The department has been conducting a procurement process for the AP Program. On 18 February 2021, the department approached the market through an open Request for Tender (RFT) process for the provision of a range of services to support the offshore Humanitarian Program. The scope of services under the program remains unchanged, and includes:

*         access to all medical services and medical escort services in overseas regions;

*         travel and non-medical escort services for Refugee visa holders;

*         general requirements;

*         data deliverables; and

*         additional services.

 

The overall objective of the RFT is to enter into a new contract between the Commonwealth and the successful tenderer for the provision of high quality services under the AP Program that represents overall best value for money to the Commonwealth.

 

The department is conducting the RFT in accordance with the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Commonwealth Procurement Rules and the department's Accountable Authority Instructions.

 

Information about the tender and the resultant contract/s will be publicly available on AusTender (www.tenders.gov.au) once the contract is signed. Procurement decisions will be based on value for money, including capability and capacity to deliver, and price and risk considerations. 

 

The new contract between the Commonwealth and the service provider (the successful tenderer) will depend on the outcome of the RFT process. However, it will include strengthened reporting and performance monitoring requirements, which will bolster the department's ability to drive service provider efficiency and improve cost effectiveness, and more closely monitor and manage service provider performance.

 

Final spending decisions, including entering into a contract with the successful tenderer, will be made by the Associate Secretary Immigration Group, a delegate of the Secretary of the department, who has responsibility for immigration and settlement services.

 

Procurement decisions made in connection with the RFT process are not considered suitable for independent merits review, as they are decisions relating to the allocation of a finite resource. In addition, any funding that has already been allocated would be affected if the original decision was overturned. The Administrative Review Council (ARC) has recognised that it is justifiable to exclude merits review in relation to decisions of this nature. (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review? (ARC guide)).

 

The remaking of a procurement decision after entry into a contractual arrangement with a successful service provider is legally complex, impractical, and could result in delays to providing relevant services to humanitarian visa holders. The Government Procurement (Judicial Review) Act 2018 enables service providers to challenge some procurement processes for alleged breaches of certain procurement rules. This legislation might provide an additional avenue of redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

 

The department has undertaken comprehensive and extensive consultation with relevant stakeholders as part of the procurement process, to ensure the provision of services continues to meet the program objectives and deliverables.

 

Each year the department undertakes extensive consultation on the Humanitarian Program, including:

*         state and territory governments and Commonwealth agencies; peak refugee and humanitarian organisations; and the United Nations High Commissioner for Refugees (UNHCR); and

*         meetings held by the Minister for Immigration, Citizenship and Multicultural Affairs with peak refugee and humanitarian interest groups and community organisations.

 

As part of the composition process for Australia's Humanitarian Program, the Government seeks public views on Program priorities, and specific issues relating to Humanitarian Program composition and policy settings. This includes publishing a Program discussion paper for comment on the department's website, and hosting a number of community consultation meetings, which can be viewed at https://www.homeaffairs.gov.au/reports-and-publications/submissions-and-discussion-papers/australias-humanitarian-program-2023-24.

 

The consultations and discussion paper provide community stakeholders with the opportunity to raise any issues related to the Humanitarian Program. No issues were raised relating to the AP Program by the community or in any of the submissions as related to the AP Program during the consultations for the 2023-24 Humanitarian Program.

 

Each year, the Minister for Immigration, Citizenship and Multicultural Affairs decides the composition of the Humanitarian Program. The department's staff at diplomatic posts located offshore process visa applications to deliver the program.

 

Funding of $553.6 million in 2023-24 has been allocated for the AP Program under Program 2.3: Refugee, Humanitarian Settlement and Migrant Services, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2023-24, Budget Related Paper No. 1.10, Home Affairs Portfolio at page 39.

 

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 immigration and emigration power (section 51(xxvii)); and

*       the external affairs power (section 51(xxix)).

 

Aliens power

 

Section 51(xix) of the Constitution empowers the Parliament to make laws with respect to 'naturalization and aliens'.

 

The AP Program will fund the provision of services to persons who are not Australian citizens and who have applied for, or been granted, certain visas.

 

Immigration and emigration power

 

Section 51(xxvii) of the Constitution empowers the Parliament to make laws with respect to 'immigration and emigration'.

 

The AP Program involves the provision of services to facilitate certain persons immigrating to Australia.

 

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 with respect to matters or things outside the geographical limits of Australia.

 

Some services under the AP Program will be delivered to persons while they are outside of Australia. For example, health screening may be undertaken while a visa applicant remains in their home country (or a third country).

 

New table item 635 establishes legislative authority for government spending on the settlement support programs, which encompasses Settlement Engagement and Transition Support (SETS), National Community Hubs Program (NCHP) and Youth Transition Support (YTS) programs.

 

Grants for settlement are a longstanding arrangement (dating back to the 1990s). The SETS, NCHP and YTS are a core component of Australia's settlement framework. These longstanding programs play a critical role in supporting successful settlement of humanitarian arrivals and other eligible migrants in Australia. These programs focus on supporting social participation, economic well-being, independence, personal well-being and community connectedness, and are delivered by service providers on behalf of the Australian Government.

 

Legislative authority for the programs is provided under table item 42 in Part 4 of
Schedule 1AB, which restrict eligibility for those programs to humanitarian entrants and other eligible migrants who have been in Australia fewer than five years. The Australian Government has historically limited access to Commonwealth-funded settlement services to migrants who have been in Australia fewer than five years because this is generally considered to be the settlement period when migrants are adjusting to their life in Australia and acquiring the necessary skills to successfully integrate and gain independence in the community.

 

However, while five years of access to settlement services is generally sufficient for the majority of migrants to achieve self-reliance and obtain Australian Citizenship, some migrants with complex needs require ongoing settlement assistance beyond this period and settlement providers continue to receive requests for assistance from 'ineligible' migrants who have been in Australia longer than five years with unresolved settlement-related needs.

 

In addition, a number of settlement programs have grown in the last few years, both in number of providers and scope of services, and are increasingly finding they need to continue supporting humanitarian entrants and other vulnerable migrants beyond the first five years of settlement.

 

Legislative authority under new table item 635 is required to remove the five year maximum duration of eligibility for the SETS, NCHP and YTS programs, to improve settlement outcomes by enabling settlement service providers to provide targeted support to non-citizens with complex needs outside the five year window.

 

The SETS (then the Settlement Grants Program) commenced in July 2006, following a recommendation of the Report of the Review of Settlement Services for Migrants and Humanitarian Entrants, May 2003.

 

SETS aims to equip and empower humanitarian entrants, other eligible permanent migrants and their communities to address their settlement needs in order to improve social and economic participation, and community connectedness. Services are flexible, tailored and needs based - SETS provides support to clients who may not seek support from mainstream organisations (e.g. due to language and cultural barriers, mistrust of government).

 

SETS includes two components:

*         SETS - Client Services provide clients with settlement-related information, advice, advocacy, and assistance to access mainstream and other relevant services. Services are delivered in accordance with a needs-based approach; and

*         SETS - Community Capacity Building helps new and emerging community groups and organisations support their specific communities towards collectively increasing their economic and social participation to ensure that positive settlement outcomes are sustained in the long-term. Activities include providing training in organisational governance, project management, leadership skills and mentoring for community leaders.

 

The NCHP (also referred to as Community Hubs) began in 2010 with the Scanlon Foundation, Australian and Victorian governments and the Hume City council partnering to fund a formal trial of early years hubs in local primary schools. This led to a three year trial of nine Community Hubs in the Hume local government area in Victoria.

 

Community Hubs provide tailored, in-community support to migrants and humanitarian entrants, with a focus on helping migrant women and their families. The Community Hubs model uses familiar and culturally safe community facilities, usually schools, to create spaces to help migrant and refugee women with young children to learn English, develop new skills, find employment and to access government support services.

 

The Community Hubs are now funded through an established public/private and philanthropic community partnership model and have expanded to almost 100 locations in New South Wales, Queensland, South Australia and Victoria.

 

Community Hubs are designed to deliver on a range of Australian Government priorities, including employment, English language acquisition, social participation and family safety policy.

 

The NCHP focuses on four priority areas:

• engaging and connecting families;
• preparing children for school;
• building English language skills; and
• building pathways to volunteering and employment.

 

NCHP activities are targeted at migrants and refugee families, particularly women with young children.

 

The YTS was initially established in the 2015-16 Budget with funding allocated from 2015-16 to 2016-17 to pilot the Transition Support for Young Refugees and Other Vulnerable Migrants measure, as part of the Government's Youth Employment Strategy.

 

YTS Services support young humanitarian entrants and migrants aged 15-25, in areas of either high social disadvantage, high migrant population or both, to address barriers and prepare for employment, education and training, and support their social integration and participation. YTS services provide intensive holistic assistance to help young people to stay engaged in education and make successful transitions into employment through improving their workplace readiness, providing access to vocational opportunities, and creating strong social connections and confidence through education and sports engagement. YTS also works to complement and refer migrant young people to initiatives, supports and programs that are provided by Commonwealth, state and territory and local governments.

 

Six YTS service providers deliver a range of YTS services in select locations in Sydney, Melbourne and Southern Queensland with identified participation and social cohesion issues. Each provider partners with other settlement services, employers, schools, TAFEs, universities, and other community and sporting organisations in their local area to deliver outcomes for clients.

 

Under the settlement support programs, the Government will continue to provide grant funding to successful grant applicants who provide certain services. This will involve funding organisations for the purposes of supporting their administrative costs associated with services provided as currently funded for the SETS, NCHP and YTS.

 

Eligibility for settlement support programs are outlined in the respective programs' grant opportunity guidelines and include the following:

*         humanitarian entrants;

*         family stream migrants with low English proficiency;

*         spouse and child dependants of working and skilled visa holders in rural and regional areas with low English proficiency; and

*         selected temporary residents in rural and regional areas with low English proficiency.

 

Settlement service providers continue to receive requests for assistance from migrants who have been in Australia longer than five years with unresolved settlement-related needs. This commonly includes:

*         women, who due to their numerous responsibilities, only manage to prioritise their individual settlement needs outside the five-year window; once their obligations in the home subside and children begin schooling. In addition, many women experiencing domestic and family violence also begin to seek help a number of years after arriving in Australia;

·         migrant youth who have been in Australia for a number of years but may require adult specific services once they turn 18; and

*         migrants with low levels of literacy and English language proficiency who face additional barriers to economic participation compared to previous generations of migrants owing to the changing nature of Australia's economy and lower demand for unskilled or low skilled industrial labour where high level English proficiency is not required.

 

Settlement grants programs fund a range of activities through the provision of grants to not-for-profit, community and local government organisations to support the provision of services to eligible individuals. Grant funding decisions will be made at various times throughout the funding period. The department will engage a mix of selection processes to achieve the objectives and priorities of the settlement support programs. These selection processes include open competitive selection processes, restricted non-competitive processes and direct selection processes.

 

The grant will be administered in accordance with the Commonwealth resource management framework, including the PGPA Act and the Commonwealth Grants Rules and Guidelines 2017.

 

Information about the grant will be made available on the GrantConnect website (www.grants.gov.au), and the grant will be administered by the Community Grants Hub, which is part of the Department of Social Services. A delegate of the Secretary of the department under the Financial Framework (Supplementary Powers) Act 1997 who is SES Band 1 level and has the appropriate skills and experience will be responsible for approving Commonwealth funding provided for SETS, NCHP and YTS.

 

Funding decisions made in connection with the grants are not suitable for independent merits review as there is an allocation of finite resources and an allocation that has already been made to another party would be affected by overturning the original decision. Since there will be limited funds available for the settlement support programs, only some service providers will receive funding. The remaking of a decision under merits review may affect funding provided to other applicants and cause delays in finalising funding decisions for other providers, which would affect the timely delivery of services to vulnerable people. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the ARC guide).

 

The right to review under section 75(v) of the Constitution and review under section 39B of the Judiciary Act 1903 may be available. Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

 

The department consulted widely with the settlement sector on this change. A survey of needs was distributed to all providers of the potentially impacted settlement programs: SETS, YTS and NCHP, and was distributed to the three Settlement Peak Bodies: The Social Policy Group; Multicultural Youth Advocacy Network; and Settlement Council of Australia. The majority of respondents supported amending the five year rule eligibility settings.

 

Funding of $2.1 billion over four years from 2023-24 for the programs is provided under Program 2.3: Refugee, Humanitarian Settlement and Migrant Services, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2023-24, Budget Related Paper No. 1.10, Home Affairs Portfolio at page 39.

 

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)).

 

Aliens power

 

Section 51(xix) of the Constitution empowers the Parliament to make laws with respect to 'naturalization and aliens'. The programs are directed at supporting non-citizens in settling within Australia.

 

The SETS program aims to support non-citizens by providing them with settlement-related information, advice, advocacy and assistance initiatives, as well as funding community groups and organisations to improve their social participation and economic and personal wellbeing.

 

The NCHP assists humanitarian entrants and migrants who are non-citizens to increase self-reliance and participation in Australian society by funding various school-based services to help them learn English, develop new skills, find employment and access Government support services.

 

The YTS program supports non-citizens aged 15-25 by funding organisations that deliver services to address barriers to and prepare for their employment, education and training, and support their social integration and participation.

 

Immigration power

 

Section 51(xxvii) empowers the Parliament to make laws with respect to 'immigration and emigration'.

 

The programs will fund the delivery of activities and services to migrants to Australia.

 

Part 2--Transitional provisions

 

Item 4 - In the appropriate position in Part 3

 

Item 4 inserts new Division 6 in Part 3 of the Principal Regulations. Division 6 contains section 31 "Power to vary or administer grants of arrangements".

 

This transitional provision continues the operation of the two redundant items being repealed, table item 417.013 in Part 4 of Schedule 1AA and table item 524 in Part 4 of Schedule 1AB, for the purposes of the Act to permit the administration or variation of grants or arrangements which were made before the repeal under those items. The inclusion of this provision does not have the effect of authorising any new spending by the Commonwealth.

 

 

 

 

Attachment B

 

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. 6) Regulations 2023

 

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 FFSP Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FFSP 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 FFSP Regulations specify the arrangements, grants and programs. The powers in the FFSP Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by 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. 6) Regulations 2023 (the Regulations) amend Schedule 1AB to the FFSP Regulations to establish legislative authority for government spending on certain activities administered by the Department of Home Affairs.

 

The Regulations add the following table items to Part 4 of Schedule 1AB:

• table item 634 'Assisted Passage Program'; and
• table item 635 'Settlement support programs'.

 

The Regulations also make minor consequential amendments to the FFSP Regulations to repeal provisions made redundant after the insertion of new table item 634:

*         table item 417.013 in Schedule 1AA 'refugee and humanitarian passage, associated costs and related services'; and

*         table item 524 in Schedule 1AB 'Assisted Passage Program'.

 

Table item 634 - Assisted Passage Program

 

Table item 634 establishes legislative authority for government spending on the expanded scope of the Assisted Passage (AP) Program. Services delivered under the AP Program are integral to the delivery and integrity of the offshore component of Australia's Humanitarian Program.

 

The AP Program is a long-standing, successful program that provides assisted passage, medical and related services for Australian Government-funded Refugees and limited services to Special Humanitarian Program visa holders to resettle in Australia.

 

The AP Program ensures that entry to Australia under the Humanitarian Program is managed through a planned and orderly process. This is consistent with the Australian Government's broader objectives to deter people smuggling and irregular entry to Australia.

 

Existing funding of $553.6 million from the AP Program will provide the following services:

*         medical screening for Refugee and SHP visa applicants before a visa is granted and for visa holders prior to their departure for Australia;

*         travel for Refugee visa holders from their usual place of residence to their final destination in Australia;

*         transit assistance to support Refugee visa holders travel to Australia, including flights to Australia post visa grant;

*         escort services for Refugee visa holders in specific circumstances, such as significant medical needs;

*         DNA tests for Refugee visa applicants to determine family composition during the visa application process;

*         approved medical treatment for Refugee and SHP visa holders; and

*         other related services, such as delivery of the Australian Migration Status ImmiCard as directed by the department.

 

Human rights implications

 

Table item 634 may engage the following right:

• the right to attain the highest standard of physical and mental health - Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2.

 

Right to health

 

Article 2 of the ICESCR recognises that each State Party to the 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, including particularly the adoption of legislative measures'.

 

Article 12 states that States Parties to the Covenant 'recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health'. Under Article 12(2)(c), steps to be taken to achieve the full realisation of the right to health include those steps necessary for the prevention, treatment and control of epidemic, endemic, occupational and other diseases.

 

Table item 634 engages the right to health by supporting visa applicants to obtain health checks the extent that an applicant in Australia is required to meet public interest criteria for the purposes of a humanitarian visa, the AP Program will provide medical treatment if their Immigration Medical Examination indicates that they would otherwise not satisfy certain public interest criteria for the visa. The majority of AP program services are delivered outside Australia.

Conclusion

Table item 634 is compatible with human rights as it may promote the right to health in certain circumstances.

 

Table item 635 - Settlement support programs

 

Table item 635 establishes legislative authority for government spending on the settlement support programs, which encompass Settlement Engagement and Transition Support (SETS), National Community Hubs Program (NCHP) and Youth Transition Support (YTS) programs.

 

Table item 635 removes the existing five year maximum duration of eligibility for services under the SETS, NCHP and YTS programs (for eligible people with unresolved settlement related needs).

 

The SETS, NCHP and YTS programs are a core component of Australia's settlement framework. These longstanding programs play a critical role in supporting the successful settlement of humanitarian arrivals and other eligible migrants in Australia. Eligibility for SETS, NCHP and YTS are outlined in the respective programs' grant opportunity guidelines and include the following:

*         humanitarian entrants;

*         family stream migrants with low English proficiency;

*         spouse and child dependants of working and skilled visa holders in rural and regional areas with low English proficiency; and

*         selected temporary residents in rural and regional areas with low English proficiency.

 

Funding of $2.1 billion over four years from 2023-24 will provide settlement supports, which may include:

*         individuals who are currently, have previously, or may be at risk of, experiencing family or domestic violence;

*         individuals who require one-off or short-term support with a significant life change or event;

*         dependants, often women, who have otherwise prioritised the needs of their family and delayed their own engagement with settlement services;

*         individuals with prolonged issues of low literacy and English language proficiency; and/or

*         individuals with critical settlement needs where there are no other available settlement or mainstream services through which they can receive support for their needs.

 

Human rights implications

 

Table item 635 engages the following rights:

*         the rights of women to non-discrimination in education and employment - Articles 10 and 11 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read with Article 2;

*         the right to work - Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2;

*         the right to an adequate standard of living - Article 11 of the ICESCR and Article 27 of the Convention on Rights of the Child (CRC), read with Article 4;

*         the right to education - Article 13 of the ICESCR and Article 28 of the CRC.

 

Rights of women to non-discrimination in education and employment

 

Article 2 of the CEDAW requires States Parties to condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women.

 

Article 10 of the CEDAW requires States Parties to take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education including the same conditions for career and vocational guidance, access to the same opportunities in relation to scholarships and other study, and access to programmes of continuing education, including adult and functional literacy programmes, particularly those aimed at reducing, at the earliest possible time, any gap in education existing between men and women.

 

Article 11 of the CEDAW requires States Parties to take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure the same rights, including employment opportunities; free choice of profession and employment, promotion, job security, and all benefits and conditions of service and the right to receive vocational training and retraining.

 

Female migrants are at a particular disadvantage in accessing settlement services and often delay their access to settlement services in their first five years of being in Australia; for reasons including:

*         family breakdown and domestic and family violence (DFV)

*         caregiving responsibilities in the home

*         social isolation and untreated trauma

*         low English proficiency as a result of not being able to attend Adult Migrant English Program (AMEP) classes

*         costs related to matters such as driving lessons and acquiring licences and citizenship applications.

 

Due to numerous barriers and responsibilities, many refugee and humanitarian entrant women and other eligible migrants only manage to prioritise their individual settlement needs outside the five-year window; once their responsibilities in the home subside and children begin schooling. In addition, many women experiencing social isolation, DFV or untreated trauma only begin to seek help a number of years after arriving in Australia.

 

Table item 635 promotes women's rights to non-discrimination in education and employment by removing the five year maximum eligibility period for access to settlement services, to ensure that settlement programs are more aligned with the complexity, multiplicity and longevity of the settlements needs of refugee and humanitarian entrant women and those of other eligible female migrants, removing an existing barrier to female participation in such activities.

 

Under the SETS program, SETS Client Services provide clients with settlement-related information, advice, advocacy, and assistance to access mainstream and other relevant services. Services are delivered in accordance with a needs-based approach. Activities can include employment readiness sessions, homework clubs, conversational English classes, health workshops, delivering training and information on respectful relationships, Australian laws, values and sources of support for instances of DFV, driver training classes and a range of activities to reduce social isolation.

 

The NCHP provides tailored, in community support to migrants and humanitarian entrants, with a focus on helping migrant women and their families. Examples of NCHP programs and activities that support refugee and humanitarian entrant women include: volunteering opportunities and employment support; formal vocational training in partnership with TAFEs and registered training organisations; English classes and conversation programs; informal skills development workshops; special interest and social groups, field trips and group excursions; and service referrals.

 

Removing the five year limitation for access to settlement services supports CEDAW's requirement that States Parties take all appropriate measures to ensure women equal rights with men in the fields of education and employment by ensuring appropriate referrals, advice and advocacy can be provided to refugee and humanitarian entrant women, and other eligible migrant women, at a time when they are most likely to be looking to pursue their own education and employment opportunities.

 

Right to work

 

Article 2 of the ICESCR requires States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means.

 

Article 6 of the ICESCR provides that States Parties recognise the right to work and will take appropriate steps to safeguard and achieve the full realisation of the right to work, including through policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

 

Migrants with low levels of literacy and English language proficiency face additional barriers to economic participation compared to previous generations of migrants owing to the changing nature of Australia's economy and lower demand for unskilled or low skilled industrial labour where high level English proficiency is not required.  Migrants who wish to improve their training, education and English language skills may still need access to these settlement programs after five years to support their engagement with mainstream training and education.

 

SETS Client Services provide clients with a range of settlement-related information, advice, advocacy, and assistance to access mainstream and other relevant services. Services are delivered in accordance with a needs-based approach. Activities can include employment sessions.

 

NCHP activities are targeted at migrants and refugee families, particularly women with young children. Community Hubs are based in primary schools, serving as gateways to connect families with each other, with their school and with existing services. Hubs assist developing new skills, finding employment and to access Government support services.

 

Migrant youth who have been in Australia for a number of years may require adult specific services once they turn 18. Many young people who are eligible for the YTS program are still addressing the disruptive impacts of their refugee and migration experiences. Young adults can have the highest support needs as they often need to combine pressures to find work.

 

Migration experiences can also delay young people's engagement with YTS services with many struggling during their initial settlement period and still striving to identify how to develop work readiness skills, or enter the Australian job market.

 

YTS services support young humanitarian entrants and migrants aged 15-25 in areas of either high social disadvantage, high migrant population or both, to address barriers and prepare for employment including partnerships for employment to improve work readiness.

 

Right to an adequate standard of living

 

Article 11 of the ICESCR provides that States Parties recognise the right of everyone to an adequate standard of living, and to the continuous improvement of living conditions.

 

Article 4 of the CRC requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the CRC.

 

Under Article 27 of the CRC, States Parties recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development and that the State, in accordance with national measures and within their means, should help families who cannot afford to provide this.

 

Migrants with low levels of literacy and English language proficiency face additional barriers to economic participation compared to previous generations of migrants owing to the changing nature of Australia's economy and lower demand for unskilled or low skilled industrial labour where high level English proficiency is not required.  Migrants who wish to improve their training, education and English language skills may still need access to these settlement programs after five years to support their engagement.

 

SETS Client Services provide clients with a range of settlement-related information, advice, advocacy, and assistance to access mainstream and other relevant services. Services are delivered in accordance with a needs-based approach. Activities can include health workshops, delivering training and information on respectful relationships, Australian laws, values and sources of support for instances of domestic and family violence, driver training classes and a range of activities to reduce social isolation.

 

NCHP activities are targeted at migrants and refugee families, particularly women with young children. Community Hubs are based in primary schools, serving as gateways to connect families with each other, with their school and with existing services. Hubs assist participants with learning English, developing new skills, finding employment and to access Government support services.

 

Migrant youth who have been in Australia for a number of years may require adult specific services once they turn 18. Many young people who are eligible for the YTS program are still addressing the disruptive impacts of their refugee and migration experiences. Young adults can have the highest support needs as they often need to combine pressures to find work, undertake study, as well as caring responsibilities for family members.

 

Migration experiences can also delay young people's engagement with YTS services with many struggling during their initial settlement period and still striving to identify how to understand their future options.

 

YTS services support young humanitarian entrants and migrants aged 15-25 in areas of either high social disadvantage, high migrant population or both, to address barriers and prepare for employment, education and training, and support their social integration and participation. Services include: partnerships for employment to improve work readiness; connections to support ongoing engagement with education; vocational opportunities; and sports engagement.

 

A number of settlement programs have grown in the last few years both in number of providers and scope of services, and are increasingly finding they need to continue supporting humanitarian entrants and other vulnerable migrants beyond the first five years of settlement. In addition having only a five year window to access services can be inadequate to address the complex and varied transition points that occur across childhood.

 

Table item 635 promotes the rights of the child in Article 27 by allowing these settlement programs to provide services beyond five years to support child clients more in line with their particular education and development needs and to provide greater service continuity across critical childhood transition points.

 

Right to an education

 

Article 13 of the ICESCR provides that States Parties recognise the right of everyone to an education and will take appropriate steps to achieve the full realisation of this right, including by making vocational education available and accessible to all.

 

Article 28 of the CRC recognises a child's right to an education.

 

In accordance with Article 1 of the CRC, the rights in the CRC apply to children under the age of 18. These rights are therefore relevant in situations where settlement services are provided to children under this age, including through their families.

 

Migrants with low levels of literacy and English language proficiency face additional barriers to economic participation compared to previous generations of migrants owing to the changing nature of Australia's economy and lower demand for unskilled or low skilled industrial labour where high level English proficiency is not required.  Migrants who wish to improve their training, education and English language skills may still need access to these settlement programs after five years to support their engagement with mainstream training and education.

 

SETS Client Services provide clients with a range of settlement-related information, advice, advocacy, and assistance to access mainstream and other relevant services. Services are delivered in accordance with a needs-based approach. Activities can include homework clubs and conversational English classes.

 

Migrant youth who have been in Australia for a number of years may require adult specific services once they turn 18. Many young people who are eligible for the YTS program are still addressing the disruptive impacts of their refugee and migration experiences. Young adults can have the highest support needs as they often need to combine pressures to find work, undertake study, as well as caring responsibilities for family members.

 

Migration experiences can also delay young people's engagement with YTS services with many struggling during their initial settlement period and still striving to identify how to navigate the education system.

 

YTS services support young humanitarian entrants and migrants aged 15-25 in areas of either high social disadvantage, high migrant population or both, to address barriers and prepare for education and training and provide connections to support ongoing engagement with education.

 

NCHP activities are targeted at migrants and refugee families, particularly women with young children. Community Hubs are based in primary schools, serving as gateways to connect families with each other, with their school and with existing services. Hubs assist participants with learning English, and outcomes of the program include improving language, literacy and learning for migrants, including for isolated migrant mothers.

 

Previously, there were very few National Community Hubs and the ones that did exist were focused more specifically on initial settlement. Since then NCHPs have expanded to over 100 and have expanded service delivery to include an additional emphasis on community cohesiveness and capacity building, which often extends beyond the first five years of settlement.

 

In addition, the COVID-19 pandemic resulted in significant disruptions for children to early learning and study commenced as a child. During the pandemic all NCHP services were delayed in resuming face to face services as schools maintained the requirement for no outside visitors for a longer duration than most other services. This represented a significant loss of access to NCHP services over many years for children and their families during the pandemic. Enabling programs to continue to provide services beyond five years will provide greater flexibility to support clients who have had their access disrupted. It will also enable greater flexibility in to the future, noting significant disruption to education is likely to be a more frequently occurring possibility due to an increased use of the remote learning model to respond to any range of challenges now that the community has been habitualised to its use.

 

Table item 635 promotes the rights of the child in Article 28 by allowing these settlement programs to provide services beyond five years to support child clients more in line with their particular education and development needs and to provide greater service continuity across critical childhood transition points.

 

Conclusion

 

Table item 635 is compatible with human rights as it promotes the protection of human rights.

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance