FINANCIAL FRAMEWORK (SUPPLEMENTARY POWERS) AMENDMENT (HEALTH MEASURES NO. 2) REGULATIONS 2020 (F2020L00392) EXPLANATORY STATEMENT

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

Section 1 - Name

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

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

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 an initiative that will be administered by the Department of Health (the department).

New table item 406 establishes legislative authority for government spending on the Youth Whole of Government Framework and Sector Support - Youth Action Support Project Grants Scheme (the program).

The program aims to improve outcomes for Australia's young people, with a focus on priority groups who may experience disadvantage. The overall desired program outcome is to ensure that programs and policies are appropriately designed to target and address areas of youth vulnerability.

The program will provide interim funding to address immediate gaps in the support for organisations that facilitate the government engagement while the Youth Policy Framework is being developed. The program will aim to improve the outcomes of youth vulnerable to "falling through the gaps" during the transition from childhood to adulthood, particularly in the areas of health, economic wellbeing, and their future life course.

The Youth Policy Framework will be a whole of government policy framework that identifies priority areas and guides the development of new policies that impact Australian youth.

Grant funding will be provided to organisations that work with marginalised youth through two streams of activities:

Youth Advocacy Support Grants Scheme

This is an advocacy grant scheme to fund the formation of national network/s to ensure the voice of young people, particularly those marginalised, is heard in the policy making process. The advocacy grant scheme would be contingent on states and territories maintaining existing funding to state and territory representative organisations. The scheme will be designed using the information gathered through consultations with stakeholders to date, and in consultation with states and territories to ensure that it does not duplicate any existing initiatives funded by states and territories.

The advocacy support funding will assist organisations with a youth advocacy role to participate in policy development initiatives, including by enabling them to create new networks and/or use new technologies to allow young people, particularly disadvantaged young people, to have a voice in policy development.

Youth Action Support Project Grants Scheme

A project grant scheme to fund one-off or small scale innovative projects for mechanisms to assist youth experiencing disadvantage, with a specific focus on:

* young Indigenous people;

* young people at risk of homelessness;

* young people suffering from (or at risk of) mental illness;

* young people with disabilities to the extent that the projects relate to independent living;

* young newly arrived migrants (non-citizens);

* young women and those under 18 experiencing domestic violence; and/or

* young people who are unemployed or at risk of unemployment in transitioning from school.

With respect to other disadvantaged youth outside these groups, the project grants scheme will be confined to the provision of services by means of technology (apps, websites, call centres).

This grant scheme will provide funding for a period of 12 months and will enable proof of concept projects at the local/community level. It is anticipated that each project will be funded to a level of $10,000 to $20,000.

The department will use an open, competitive process to award grants in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017.

Following assessment of each proposal on its merit, the delegate of the Secretary of the department will make the final decision to approve funding. The Secretary's delegate will consider whether the proposal represents an efficient, effective, ethical and economical use of Commonwealth resources, and whether any specific requirements need to be imposed as a condition of funding.

The decision of the Secretary's delegate is final in all matters, including:

* the approval of the grant;

* the grant funding amount to be awarded; and

* the terms and conditions of the grant.

The grant guidelines, assessment criteria and information about the grant decisions will be available on the Community Grants Hub website.

Due care would be given in the grant application assessment process to avoid duplication of existing activities. Where successful projects show merit, advice will be sought from the relevant portfolio (including states and territories) to ensure alignment with policy priorities.

The provision of funds through the Youth Action Support Project Grants Scheme is not considered suitable for independent review because the grant/s will be short-term, time-limited and one-off payments offered within one financial year, and to reconsider these decisions under independent review would substantially delay implementation of the activity which is a pilot scheme.

The department has consulted with the following affected entities in the development of the program: the Department of Education, Skills and Employment; the Department of Social Services; the National Indigenous Australians Agency; the Department of Veterans' Affairs; and the Department of Home Affairs.

The Youth Taskforce is currently analysing the available evidence and data surrounding the youth affairs space, including priority groups in the youth cohort; the international context; Commonwealth, state and territory responsibilities in youth; and data gaps. The Youth Taskforce has consulted with peak organisations and young Australians to inform a report that was provided to the Minister for Youth and Sport in December 2019, through the Secretaries Committee on Social Policy. All of this information will be used in the development and design of the grants program, including development of relevant guidelines.

Funding of $3.2 million over two years from 2019-20 will come from Program 2.4: Preventive Health and Chronic Disease Support, which is part of Outcome 2: Health Access and Support Services. Program details are set out in the Portfolio Additional Estimates Statements 2018-19, Health Portfolio at page 42.

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 communications power (section 51(v));

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

* the races power (section 51(xxvi));

* the immigration power (section 51(xxvii)); and

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

Communications power

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

Funding will be provided under the Youth Action Support Project Grants Scheme for the provision of services to disadvantaged youth by means of technology (apps, websites, call centres).

Aliens power

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

The Youth Action Support Project Grants Scheme will fund one-off or small scale innovative projects to pilot mechanisms to assist young, newly arrived migrants (non-citizens) experiencing disadvantage.

Races power

Section 51(xxvi) of the Constitution empowers the Parliament to make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws'.

The Youth Action Support Project Grants Scheme will fund one-off or small scale innovative projects to pilot mechanisms to assist young Indigenous people experiencing disadvantage.

Immigration and emigration power

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

The Youth Action Support Project Grants Scheme will fund one-off or small scale innovative projects to pilot mechanisms to assist young, newly arrived migrants experiencing disadvantage.

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 obligations under international treaties to which it is a party.

Convention on the Elimination of All Forms of Discrimination against Women

Australia is a party to the Convention on the Elimination of All Forms of Discrimination against Women [1983] ATS 9 (CEDAW). Article 2 condemns discrimination against women; Article 3 provides that States Parties take all appropriate measures, including through the implementation of legislation, to ensure the full development and advancement of women; Article 5 provides that States Parties modify the social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices; and Article 16 provides that States Parties take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations.

Article 2 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 and, to this end, undertake...

b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women...

e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women ...

Article 3 requires States Parties to:

... take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

Article 5(a) requires States Parties to:

... take all appropriate measures:

a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women ...

Article 16 requires States Parties to:

... take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women.

Convention on the Rights of Persons with Disabilities

Australia is a party to the Convention on the Rights of Persons with Disabilities [2008] ATS 12 (CRPD). Parties to the CRPD are required to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability (Article 4(1)).

Article 19 recognises the right of all persons with disabilities to live in the community and Article 26(1) recognises that States Parties take effective and appropriate measures to enable persons with disabilities to attain and maintain maximum independence.

Article 19 requires States Parties to:

... recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

Article 26 requires States Parties to:

1. take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. To that end, States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services, in such a way that these services and programmes:

a) Begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths;

b) Support participation and inclusion in the community and all aspects of society, are voluntary, and are available to persons with disabilities as close as possible to their own communities, including in rural areas.

Under the Youth Action Support Project Grants Scheme, funding will be provided for one-off or small scale innovative projects to pilot mechanisms to assist young people with disabilities to live independently.

Convention on the Rights of the Child

Australia is also a party to the Convention on the Rights of the Child [1991] ATS 4 (CROC). Article 4 imposes a general obligation on States Parties to implement, through appropriate legislative or administrative measures, the rights set out in the CROC. In particular, Article 19 provides that States Parties take all appropriate measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse.

Article 19 requires States Parties to take:

1. ... all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

International Covenant on Economic, Social and Cultural Rights

Australia is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Parties to the ICESCR are required to take steps with a view to achieving progressively the full realisation of the rights recognised in the Covenant by all appropriate means (Article 2(1)).

Article 6 provides that States Parties take appropriate steps for the full realisation of the right to work and Article 11(1) provides for the full realisation of the right to adequate standard of living.

Article 6 requires States Parties to:

1. ... recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve
the full realisation of this right shall include technical and vocational
guidance and training programmes, 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.

Article 11(1) requires States Parties to:

1. ... recognise 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 States Parties will take appropriate steps to ensure the realisation of this right, recognising to this effect the essential importance of international co-operation based on free consent.

The steps to be taken by States Parties to achieve the full realisation of the right to enjoyment of the highest attainable standard of physical and mental health (as required by Article 12(1)) are specified in Article 12(2) and include:

* steps necessary for 'the prevention, treatment and control of epidemic, endemic, occupational and other diseases' (Article 12(2)(c)); and

* steps necessary for 'the creation of conditions which would assure to all medical service and medical attention in the event of sickness' (Article 12(2)(d)).

Under the Youth Action Support Project Grants Scheme, funding will be provided for one-off or small scale innovative projects to pilot mechanisms to assist vulnerable young people, such as young people who are unemployed or at risk of unemployment in transitioning from school; young people who are homeless or at risk of homelessness; and young people who are suffering from or at risk of mental illness.

International Labour Organization's Convention concerning Employment Policy

Australia has international obligations under the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122). In particular, Articles 1 and 2 require Members to promote full, productive and freely chosen employment.

Article 1 provides that:

1. With a view to stimulating economic growth and development, raising levels of living, meeting manpower requirements and overcoming unemployment and underemployment, each Member shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment.

2. The said policy shall aim at ensuring that--

a) there is work for all who are available for and seeking work;

b) such work is as productive as possible;

c) there is freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he is well suited, irrespective of race, colour, sex, religion, political opinion, national extraction or social origin.

3. The said policy shall take due account of the stage and level of economic development and the mutual relationships between employment objectives and other economic and social objectives, and shall be pursued by methods that are appropriate to national conditions and practices.

Article 2 provides that:

Each Member shall, by such methods and to such extent as may be appropriate under national conditions--

a) decide on and keep under review, within the framework of a co-ordinated economic and social policy, the measures to be adopted for attaining the objectives specified in Article 1;

b) take such steps as may be needed, including when appropriate the establishment of programmes, for the application of these measures.

Under the Youth Action Support Project Grants Scheme, funding will be provided for one-off or small scale innovative projects to pilot mechanisms to assist young people who are unemployed or at risk of unemployment in transitioning from school.

Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources

Australia has obligations under the International Labour Organization's Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources (ILO Convention 142) (to the extent that the projects amount to or relate to vocational training). Articles 1, 2, 3 and 4 require Members to adopt policies and programmes of vocational guidance and vocational training.

Article 1 requires Members to:

1. ... adopt and develop comprehensive and co-ordinated policies and programmes of vocational guidance and vocational training, closely linked with employment, in particular through public employment services.

2. These policies and programmes shall take due account of --

a) employment needs, opportunities and problems, both regional and national;

b) the stage and level of economic, social and cultural development; and

c) the mutual relationships between human resources development and other economic, social and cultural objectives.

3. The policies and programmes shall be pursued by methods that are appropriate to national conditions.

4. The policies and programmes shall be designed to improve the ability of the individual to understand and, individually or collectively, to influence the working and social environment.

5. The policies and programmes shall encourage and enable all persons, on an equal basis and without any discrimination whatsoever, to develop and use their capabilities for work in their own best interests and in accordance with their own aspirations, account being taken of the needs of society.

Article 2 requires Members to:

... establish and develop open, flexible and complementary systems of general, technical and vocational education, educational and vocational guidance and vocational training, whether these activities take place within the system of formal education or outside it.

Article 3 requires Members to:

1. ... gradually extend its systems of vocational guidance, including continuing employment information, with a view to ensuring that comprehensive information and the broadest possible guidance are available to all children, young persons and adults, including appropriate programmes for all handicapped and disabled persons.

2. Such information and guidance shall cover the choice of an occupation, vocational training and related educational opportunities, the employment situation and employment prospects, promotion prospects, conditions of work, safety and hygiene at work, and other aspects of working life in the various sectors of economic, social and cultural activity and at all levels of responsibility.

3. The information and guidance shall be supplemented by information on general aspects of collective agreements and of the rights and obligations of all concerned under labour law; this information shall be provided in accordance with national law and practice, taking into account the respective functions and tasks of the workers' and employers' organisations concerned.

Article 4 requires each Member to:

... gradually extend, adapt and harmonise its vocational training systems to meet the needs for vocational training throughout life of both young persons and adults in all sectors of the economy and branches of economic activity and at all levels of skill and responsibility.

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 (Health 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 (Health Measures No. 2) Regulations 2020 amend Schedule 1AB to the FF(SP) Regulations to add a new table
item 406 to Part 4 of the Schedule. The new table item establishes legislative authority for government spending on the Youth Whole of Government Framework and Sector Support - Youth Action Support Project Grants Scheme (the program). The Department of Health has responsibility for the program.

The program aims to improve outcomes for Australia's young people (aged 15to 24 years), with a particular focus on priority groups who may experience disadvantage.

Government grant funding will be provided to organisations that work with marginalised youth through two streams of activities:

an advocacy grant scheme to be known as the "Youth Advocacy Support Grants Scheme" to fund the formation of national network/s to ensure the voice of young people, particularly those marginalised, is heard in the policy making process. This funding would be contingent on states and territories maintaining existing funding to state and territory representative organisations; and

* a project grant scheme to be known as the "Youth Action Support Project Grants Scheme" to fund one-off or small scale innovative projects for mechanisms to assist youth experiencing disadvantage, with a specific focus on:

o young Indigenous people;

o young people at risk of homelessness;

o young people suffering from (or at risk of) mental illness;

o young people with disabilities to the extent that the projects relate to independent living;

o young newly arrived migrants (non-citizens);

o young women and those under 18 experiencing domestic violence; and/or

o young people who are unemployed or at risk of unemployment in transitioning from school.

With respect to other disadvantaged youth outside these groups, the project grants scheme will be confined to the provision of services by means of technology (apps, websites, call centres).

Human rights implications

This instrument engages the following rights:

* Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);

* Convention on the Rights of Persons with Disabilities (CRPD);

* Convention on the Rights of the Child (CROC); and

* Declaration on the Rights of Indigenous Peoples.

Table item 406 positively affects each of the engaged rights listed above. The project grant scheme will fund one-off or small scale innovative projects to pilot mechanisms to assist youth (aged 15 to 24 years) experiencing disadvantage, with a specific focus on:

* young Indigenous people;

* young people at risk of homelessness;

* young people suffering from (or at risk of) mental illness;

* young people with disabilities to the extent that the projects relate to independent living;

* young newly arrived migrants (non-citizens);

* young women and those under 18 experiencing domestic violence; and/or

* young people who are unemployed or at risk of unemployment in transitioning from school.

The World Health Organization encourages and promotes the youth voice in international health. The United Nations encourages youth participation and engagement more broadly. The program will encourage and promote the voice of youth within the Commonwealth policy development.

The program provides the opportunity for the Government to improve its engagement and interaction with Australia's youth (this is primarily young people aged 15 to 24 years) and provides greater youth participation in national policy development in key priority areas impacting their lives, including education, employment and health outcomes.

There are a broad range of programs delivered by the Government. However, young people who are marginalised and experience multiple forms of disadvantage, can slip through the gaps. Disadvantaged youth are often underrepresented in data collection in terms of the existing government support arrangements.

The program will support the Government's ability to ensure that programs and policies are appropriately designed to target and address areas of youth vulnerability and improve outcomes for the priority groups identified above by encouraging youth engagement and involvement in policy development and funding one-off or small scale innovative projects to evaluate mechanisms to assist youth experiencing disadvantage.

Conclusion

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

Senator the Hon Mathias Cormann

Minister for Finance

Commonwealth Numbered Regulations - Explanatory Statements