Details of the Financial Framework (Supplementary Powers) Amendment

(Prime Minister and Cabinet Measures No. 9) Regulations 2021

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 9) Regulations 2021.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after the instrument is 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

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - Part 4 of Schedule 1AB (at the end of the cell at table item 492, column headed "Objective(s)")

 

Table item 492 in Part 4 of Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997 establishes legislative authority for government spending on the COVID-19 Disaster Payment (the payment). The National Recovery and Resilience Agency has policy responsibility for the payment. Individual payments are administered by Services Australia.

 

Under the payment, eligible recipients have received $750 per week if they lost 20 hours or more of work, $450 per week if they lost between 8 and 20 hours or a full day's work, and $200 per week for those on income support payments who lost at least 8 hours of work or a full day's work. The payment has supported over 2 million Australians, with more than $10 billion in payments made since it was announced in June 2021.

 

On 29 September 2021, the Treasurer, the Hon Josh Frydenberg MP, and the Minister for Emergency Management and National Recovery and Resilience, Senator the Hon Bridget McKenzie, jointly announced that the payment will taper and cease, in line with the movement into next phases of the National Plan to transition Australia's National COVID-19 Response (the National Plan). The media release is available at https://ministers.pmc.gov.au/mckenzie/2021/covid-19-disaster-payment.

 

Once a state or territory reaches 70 per cent full vaccination of its adult population (16 years and older), the current automatic renewal of the payment will end and eligible individuals will have to reapply each week that a declaration by the Commonwealth Chief Medical Officer of a COVID-19 hotspot for the purposes of Commonwealth support (the Commonwealth hotspot) remains in place.

 

Where a state or territory reaches 80 per cent full vaccination of its adult population, the payment will phase out over two weeks, after which period the payment will no longer be available in that jurisdiction:

*         If the state or territory health order restricting the movement of people and the Commonwealth hotspot declaration are lifted part way through a seven-day payment period, eligible individuals will continue to receive the full payment they would have been due for that week.

*         For the first full week after a state or territory has reached 80 per cent vaccination of its adult population, individuals not on income support who are eligible for the payment immediately before this vaccination level was reached, will receive a flat rate of $450 if they have lost at least 8 hours of work. Those on income support will receive $100 for that week. People will still have to apply for the payment to confirm their eligibility, even if one of the previous eligibility criteria for the payment, such as the Commonwealth hotspot declaration, no longer applies.

*         For the second full week after a state or territory has reached 80 per cent vaccination of its adult population, individuals not on income support who are eligible for the payment immediately before this vaccination level was reached, will receive a flat rate of $320 payment (in line with JobSeeker Payment). Those on income support will not be eligible for the payment for this week. People will still have to apply for the payment to confirm their eligibility, even if one of the previous eligibility criteria for the payment, such as the Commonwealth hotspot declaration, no longer applies.

*         After this period, the payment will no longer be available in that state or territory. However, in line with the current administrative requirements, claims for the final payments can be lodged until the date specified on the Services Australia website, which will vary depending on the location.

 

Precise eligibility criteria for the payment, payment rates and the process for making claims, including the period during which claims can be made, are published on the Services Australia website (www.servicesaustralia.gov.au). The COVID-19 Disaster Payment Guidelines are available on the GrantConnect website (www.grants.gov.au).

 

These transitional arrangements recognise potential delays in people receiving their first instalment of income as movement restrictions are lifted and they return to work or onto other forms of government assistance such as JobSeeker Payment.

 

Item 1 in Schedule 1 to the Regulations gives effect to the above transitional arrangements by adding a new (fourth) objective "Certain persons previously eligible for financial assistance under another objective" at the end of the cell at table item 492 in the column headed "Objective(s)". This new objective will provide legislative authority for the Government to make up to two further payments to individuals who were eligible for the payment under a different objective of table item 492 at the time their state or territory reached 80 per cent vaccination but then are no longer eligible under that original objective, due to the state or territory public health order and/or the Commonwealth hotspot declaration no longer being in place.

 

From 1 July 2021 until 30 June 2022, the payment is being funded through an unlimited special appropriation established in the COVID-19 Disaster Payment (Funding Arrangements) Act 2021. This period reflects the time-limited nature of Commonwealth income support for the COVID-19 pandemic.

 

Consultation has taken place with the National Recovery and Resilience Agency and Services Australia. Broader consultation in relation to the Regulations was not considered appropriate, as changes to policy settings for the payment are consistent with the National Plan and time-limited nature of Commonwealth income support for the COVID-19 pandemic. As a benefit paid to individuals, the payment imposes no regulatory burden on businesses.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the new objective of table item 492 references the following powers in the Constitution:

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

 

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.

 

Payments will be made available to eligible persons to ameliorate the impacts of the ongoing COVID-19 widespread health emergency of national significance.

 

 

 

 

 

 

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 (Prime Minister and Cabinet Measures No. 9) Regulations 2021

 

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 Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) 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 (Prime Minister and Cabinet Measures No. 9) Regulations 2021 (the Regulations) amend table item 492 in Part 4 of Schedule 1AB to the FF(SP) Regulations, which establishes legislative authority for government spending on the COVID-19 Disaster Payment (the payment). The National Recovery and Resilience Agency has policy responsibility for the payment. Individual payments are administered by Services Australia.

 

Under the payment, eligible recipients have received $750 per week if they lost 20 hours or more of work, $450 per week if they lost between 8 and 20 hours or a full day's work, and $200 per week for those on income support payments who lost at least 8 hours of work or a full day's work. The payment has supported over 2 million Australians, with more than $10 billion in payments made since it was announced in June 2021.

 

On 29 September 2021, the Australian Government announced that the payment will taper and cease, in line with the movement into the next phases of the National Plan to transition Australia's National COVID-19 Response (the National Plan).

 

Once a state or territory reaches 70 per cent full vaccination of its adult population (16 years and older), the current automatic renewal of the payment will end and eligible individuals will have to reapply each week that a declaration by the Commonwealth Chief Medical Officer of a COVID-19 hotspot for the purposes of Commonwealth support (the Commonwealth hotspot) remains in place.

 

Where a state or territory reaches 80 per cent full vaccination of its adult population, the payment rate will decrease over two weeks, after which period the payment will no longer be available in that jurisdiction. These transitional arrangements recognise potential delays in people receiving their first instalment of income as movement restrictions are lifted and they return to work or onto other forms of government assistance such as JobSeeker Payment.

 

The amendments to table item 492 give effect to the above transitional arrangements by enabling the Government to make up to two further payments to individuals who were eligible for the payment at the time their state or territory reached 80 per cent vaccination but then are no longer eligible, due to the state or territory public health order and/or the Commonwealth hotspot declaration no longer being in place.

 

Human rights implications

 

This disallowable legislative instrument engages the following rights:

*         the right to health in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2; and

*         the right to an adequate standard of living in Article 11 of the ICESCR.

 

Right to health

 

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

 

Article 12 of the ICESCR states, in part:

 

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: [ ... ]

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

 

This disallowable legislative instrument promotes public health by ensuring that economic pressure is not a reason for persons to break state or territory public health orders and risk spreading COVID-19 to others.

 

Right to an adequate standard of living

 

Article 11(1) of the ICESCR states:

 

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. [ ... ]

 

Similarly, this disallowable legislative instrument promotes the right to an adequate standard of living as transitional payments will ensure a greater number of vulnerable Australians are able to access financial support after restrictions imposed by a state or territory public health order have been lifted, while these persons return to work or onto other forms of government assistance such as JobSeeker Payment.

 

 

Conclusion

 

This disallowable legislative instrument is compatible with human rights because it promotes the rights to health and to an adequate standard of living.

 

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance