Details of the Financial Framework (Supplementary Powers) Amendment

(Health Measures No. 8) Regulations 2021

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Health Measures No. 8) 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 - In the appropriate position in Part 3 of Schedule 1AB (table)

 

This item adds a new table item to Part 3 of Schedule 1AB to establish legislative authority for government spending on an activity administered by the Department of Health (the department).

 

New table item 55 establishes legislative authority for the Government to provide a grant to the Australian Olympic Committee Inc. (AOC) to fund the costs associated with the completion of mandatory quarantine by the Australian Olympic Team (including athletes and officials) on their return to Australia following their participation in the Tokyo 2020 Olympic Games.

 

On 18 March 2020 in response to the COVID-19 pandemic outbreak in Australia, the Governor-General declared a human biosecurity emergency. The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 was made under section 475 of the Biosecurity Act 2015. The Australian Government further agreed that all travellers arriving in Australia would be required to undertake mandatory 14-day quarantine at designated facilities.

 

On their return to Australia following participation in the Tokyo 2020 Olympic Games in late August 2021, the Australian Olympic Team (comprising 740 athletes and officials) was required to undertake mandatory quarantine at designated facilities across Australia. The costs of mandatory quarantine were paid by the AOC. These costs were part of a suite of measures that helped ensure all athletes could compete and return safely. The AOC has subsequently sought financial support from the Australian Government for the costs of mandatory quarantine.

 

The department will provide a one-off, ad hoc grant to the AOC to cover quarantine costs for the Australian Olympic Team. The grant will be administered in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 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 department.

 

The Assistant Secretary, Policy and Programs Branch, Office for Sport, a delegate of the Secretary of the department under the Financial Framework (Supplementary Powers) Act 1997, will be responsible for approving grant funding to be provided to the AOC. This position has a delegation of the Secretary to approve up to $50 million in administered funds as they have the required level of skills, training and experience to make decisions of this nature.

 

Merits review of decisions made in connection with the grant is not considered appropriate because these decisions relate to the provision of a one-off grant to a certain service provider, over other service providers. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.16 to 4.19 of the guide, What decisions should be subject to merit review?).

 

The AOC was determined to be an appropriate organisation to receive a one-off, ad hoc grant as the independent body responsible for the Australian Olympic Team, including travel and quarantine arrangements for their participation in the Tokyo 2020 Olympic Games.

 

Engagement with the AOC was initiated in August 2021 when they submitted a funding proposal to cover the costs for mandatory quarantine of the Australian Olympic Team. The AOC's proposal outlined the number of individuals who quarantined on return and quarantine costs per jurisdiction where quarantine was undertaken. Based on the proposal, the Government considered that the AOC was best placed to make individual payments to the 740 Australian Olympic athletes and officials to cover the mandatory quarantine costs incurred upon returning home from the Tokyo 2020 Olympic Games.

 

Funding of $2.1 million in 2021-22 is expected to be included in the 2021-22 Mid-Year Economic and Fiscal Outlook and the Portfolio Additional Estimates Statements for the Health Portfolio. Funding will come from Program 4.1: Sport and Recreation, which is part of Outcome 4.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the purpose of the item references the express incidental power and the executive power (sections 51(xxxix) and 61) of the Constitution, 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 initiative involves funding to cover the costs of mandatory return quarantine undertaken by Australian athletes and officials as a condition of participation in the Olympics during a national emergency, being the COVID-19 pandemic.

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. 8) 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 (Health Measures No. 8) Regulations 2021 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on a certain activity administered by the Department of Health.

 

The Government will provide a grant of $2.1 million in 2021-22 to the Australian Olympic Committee Inc. (AOC) to fund the costs associated with the completion of mandatory quarantine by the Australian Olympic Team (including athletes and officials) on their return to Australia following their participation in the Tokyo 2020 Olympic Games.

 

Human rights implications

 

This disallowable legislative instrument does not engage any of the applicable human rights or freedoms, such as the right to the highest attainable standard of physical and mental health, recognised in Article 12 of the International Covenant on Economic, Social and Cultural Rights. That is because, although the return quarantine was undertaken to prevent the spread of COVID-19, it was a condition of participation in the Tokyo Olympics during the COVID-19 pandemic and therefore would have been undertaken regardless of the funding provided under this initiative. This is particularly the case as the funding under this initiative will be retrospectively provided to the AOC to cover the costs it incurred to enable members of the Australian Olympic Team to undertake the quarantine.

 

 

Conclusion

 

This disallowable legislative instrument is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance