Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet's Portfolio Measures No. 3) Regulations 2022  

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet's Portfolio
Measures No. 3) Regulations 2022.

 

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

 

This item adds a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on the Australian Government Disaster Recovery Payment (Special Supplement) (the Special Supplement). The National Recovery and Resilience Agency (NRRA) has policy responsibility for the Special Supplement. Individual payments under the Special Supplement will be administered by Services Australia.  

 

New table item 549 establishes legislative authority for the Government to provide the Special Supplement to eligible persons who have been directly affected by the major disaster in New South Wales and Queensland and who reside in significantly flood-affected areas.

 

On 9 March 2022, the Prime Minister, the Hon Scott Morrison MP, the Minister for Emergency Management and National Recovery and Resilience, Senator the Hon Bridget McKenzie, and the Minister for Government Services, Senator the Hon Linda Reynolds CSC, jointly announced a support package for further assistance to communities affected by the devastating floods in New South Wales and Queensland in February and March 2022. The media release is available at https://www.pm.gov.au/media/more-support-nsw-and-queensland-flood-zones.

 

The Special Supplement aims to provide additional support to eligible individuals and families living in the most significantly impacted local government areas, or part thereof, to give them some certainty as they start to rebuild their lives. The payments will be available to individuals who have qualified (or will qualify for) the Australian Government Disaster Recovery Payment (AGDRP), or the New Zealand Disaster Recovery Payment (NZDRP), for the flooding in New South Wales and Queensland in February and March 2022 and resided in the local government areas (LGAs), or part thereof, determined as most significantly impacted.

 

Currently, under the Social Security Act, a person can only receive one payment of the AGDRP per major disaster and the rate of payment cannot be amended in the current financial year. Legislative authority under table item 549 will enable eligible individuals and families to receive an additional two lots of payments on top of the payment under the AGDRP or the NZDRP. The payment is not income replacement but will alleviate hardship by providing for immediate recovery needs of the individual. Those needs are determined by the individual but could include household goods and furniture, school uniforms and supplies or electrical appliances.

 

Effective from 15 March 2022, the Special Supplement will be automatically available for those individuals who have already claimed and received the AGDRP, and resided in LGAs, or part thereof, determined as most significantly impacted, at the current rate of $1,000 per adult and $400 per child. A second payment will be made from 22 March 2022.

 

The Special Supplement will also be available to New Zealand citizens (holding a Special Category (Subclass 444) visa) who are adversely affected while residing in Australia. This is to ensure consistent application with those who are in receipt of the NZDRP in the same significantly flood-affected LGAs, or part thereof.

 

Services Australia will administer the payments on behalf of the NRRA as demand-driven grants, in accordance with the Commonwealth Grants Rules and Guidelines 2017 and the Public Governance, Performance and Accountability Act 2013. Eligible persons who have already received the AGDRP will not need to reapply--the additional payments will be automatically paid into the person's Australian bank account once they have qualified for the AGDRP.

 

Grant opportunity guidelines for the Special Supplement will be developed and made available on the GrantConnect website (www.grants.gov.au). There will be no written grant agreement for the payment. Aggregated information on the number of claims granted and the total expenditure will be published on GrantConnect. Individual claimants will not be identified.

 

As a payment legislated under the Social Security Act, AGDRP is subject to merits review through the Administrative Appeals Tribunal (AAT). As such, if a person appeals a decision and qualifies for AGDRP, the person would also qualify for the Special Supplement if they reside in a significantly flood-affected area. Independent merits review is not considered suitable for decisions made in connection with the Special Supplement as such decisions may be described as automatic or mandatory in nature - the payment is automatically made based on qualifying for the AGDRP which is subject to merits review. The decision making process is procedural. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraph 3.8 of the guide, What decisions should be subject to merit review?).

 

The audit process undertaken by the Australian National Audit Office also provides a mechanism to review government spending decisions and report any concerns to the Parliament. Judicial review may also be available under section 39B of the Judiciary Act 1903 and section 75(v) of the Australian Constitution.

 

The NRRA consulted with Commonwealth entities, including the Department of the Prime Minister and Cabinet and Services Australia in relation to the design and implementation of the Special Supplement.

 

Funding of up to $200 million in 2021-22 for the Special Supplement payments will be included in the 2022-23 Budget and the Portfolio Budget Statement of the Prime Minister and Cabinet portfolio. Funding for this item will come from Program 1.2: Australian Government Disaster and Emergency Financial Support, which is part of Outcome 1.

 

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

 

Executive power and express incidental power, 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.

 

The item supports Special Supplement payments to persons in significantly affected areas, in the immediate aftermath of any natural disaster of national significance such as floods. The payments are intended to provide one-off financial assistance to help eligible individuals and families living in the most significantly flood-affected local government areas, or part thereof, and to give them some certainty as they start to rebuild their lives.

 

 

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's Portfolio Measures No. 3) Regulations 2022

 

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's Portfolio Measures No. 3) Regulations 2022 (the Regulations) amend Schedule 1AB to the Principal Regulations to establish legislative authority for government spending on the Australian Government Disaster Recovery Payment (Special Supplement) (the Special Supplement). The National Recovery and Resilience Agency has policy responsibility for the Special Supplement. Individual payments under the Special Supplement will be administered by Services Australia.

 

On 9 March 2022, the Government announced a support package for further assistance to communities affected by the devastating floods in New South Wales and Queensland in February and March 2022.

 

The support package includes an additional two weekly automatic Special Supplement for eligible individuals and families residing in significantly flood-affected local government areas (LGAs), or part thereof, determined as most significantly impacted who have already claimed and received the Australian Government Disaster Recovery Payment.

 

The Special Supplement will also be available to New Zealand citizens (holding a Special Category (Subclass 444) visa) who are adversely affected while residing in Australia. This is to ensure consistent application with those who are in receipt of the New Zealand Disaster Recovery Payment in the same significantly flood-affected LGAs, or part thereof.

 

Current funding of up to $200 million in 2021-22 is available for this demand driven initiative and is uncapped to meet the needs of more families who resided in significantly flood-affected LGAs, or part thereof.

 

Human rights implications

 

This disallowable legislative instrument engages the following rights:

• the right to freedom from discrimination in Article 26 of the International Covenant on Civil and Political Rights (ICCPR);
• the right to education in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 28 of the Convention on the Rights of the Child (CRC); and
• the right to an adequate standard of living in Article 11 of the ICESCR.

 

Right to freedom from discrimination

 

Article 26 of the ICCPR states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

In its General Comment 18, the UN Human Rights Committee stated that:

The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

 

Similarly, in its General Comment on Article 2 of the ICESCR (E/C.12/GC/20), UNCESCR has stated (at 13) that:

Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the Covenant rights and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realized and the measures or omissions and their effects.

 

The Special Supplementwill be available to eligible Australian citizens and permanent residents. They will also be available to eligible New Zealand citizens who have the right to reside in Australia indefinitely as holders of a Special Category Visa (which is not a permanent visa) and who are contributing to the tax system. 

 

They are also available to certain other temporary visa holders in Australia such as holders of partner visas and temporary protection visas. This means that the payments may not be available to other temporary residents in Australia. This, however, is broadly consistent with social security measures where some differentiation is permitted for the benefit of the general welfare of society through a sustainable social security system. This differentiation also does not limit any current rights of persons who are not eligible for this additional payment. Rather, the payment is intended as an additional benefit for persons residing in Australia permanently or who are in certain other similar circumstances.

 

Right to education

 

Article 13 of ICESCR and Article 28 of CRC provide for a right of everyone to education.

 

This disallowable legislative instrument supports access of school children to the right to education by assisting the parents and guardians of school children under the age of 16 who have been adversely affected by the floods and who have received, or are eligible to receive, the Australian Government Disaster Recovery Payment, to receive two additional supplementary payments of $400 (total supplementary payments of $800). The payment will support families to meet the costs associated with those children returning to school, such as acquiring uniforms, books, supplies and stationery that may have been lost in the floods. While the right to education is not limited by the current flood crisis, the effect of the disallowable legislative instrument will be to assist families, through the Special Supplement, to better support affected school children to exercise this right.

 

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. [ ... ]

 

The Special Supplement assists in promoting the right to an adequate standard of living for those persons who are, or were, significantly affected by the floods to help them cover the cost of replacing personal items or cover the cost of temporary housing.

 

Conclusion

 

This disallowable legislative instrument is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance