Details of the Financial Framework (Supplementary Powers) Amendment (Attorney-General's Portfolio Measures No. 3) Regulations 2018
Section 1 - Name
This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Attorney-General's Portfolio Measures No. 3) Regulations 2018.
Section 2 – Commencement
This section provides that the Regulations commence on the day after they are 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 - Table item 87 in Part 4 of Schedule 1AB (table)
Table item 87 in Part 4 of Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997 establishes legislative authority for the Government to fund the Community Legal Services Program (CLSP).
The CLSP is a small, nationally focussed discretionary grants program administered by the Attorney-General's Department (the department). The purpose of the CLSP is to contribute to achieving a national legal assistance sector that is integrated, efficient and effective, and is focussed on improving access to justice and maximising service delivery within available resources.
This item amends table item 87 in Part 4 of Schedule 1AB by repealing and substituting a new table item 87 to clarify the legislative authority for government spending on the program.
Since 1 July 2015, state and territory governments have been responsible for the administration of the majority of Commonwealth funding for the delivery of legal assistance services by legal aid commissions and community legal centres. This funding is provided through the National Partnership Agreement on Legal Assistance Services (the NPA). Under the NPA, a collaborative service planning process informs the distribution of both Commonwealth and state funding to legal aid commissions and community legal centres within each jurisdiction. After receiving a payment from the Commonwealth, states enter into individual funding agreements with legal aid commissions and community legal centres to distribute Commonwealth and state funding.
The objective of the CLSP is to improve and support the provision of legal assistance to the community. The Commonwealth Government provides funding to eligible organisations for national service delivery projects, innovative pilot programs, and program support activities, that complement the delivery of community legal services by the states and territories.
The CLSP supports a range of initiatives to guide legal assistance policy development, service delivery and sector planning. To facilitate access to justice, legal assistance services should work with a range of organisations, both in and outside the sector, to pursue the development of an integrated system of legal assistance. Initiatives under the CLSP contribute to achieving outcomes under the NPA. The CLSP funds initiatives that are not suitable for funding under the NPA or other programs.
There are three key funding priorities under the CLSP: national service delivery; innovative service delivery; and program support and development activities.
National service delivery
National service delivery supports projects funded under the CLSP to deliver and support national legal assistance and achieve outcomes nationwide. For example, funding is provided to promote and support pro bono work across the legal assistance sector.
Innovative service delivery
Innovative pilot program activities under the CLSP deliver innovative ways to address service delivery challenges in the legal assistance sector by introducing or testing new practices, concepts or technologies. Projects under this key funding priority must contribute to evidence of legal assistance best practice and have clear strategies for improving frontline service delivery; for example, the provision of funding to establish an Online Dispute Resolution System. Under this category, organisations are encouraged to consider partnerships, including with other legal or non-legal assistance providers, universities, research institutions, or the private sector.
Program support and development
Projects for program support activities complement community legal services provided by the states and territories under the NPA. Funding may support activities such as training, evaluations, meetings, websites, and strategic planning, advisory and support services to the community legal centre sector.
Consistent with the NPA, CLSP funding may be utilised by organisations for community legal education or where a legal assistance service provider makes a submission to a government or parliamentary body to provide factual information and/or advice with a focus on systemic issues affecting access to justice. CLSP funding cannot be used to lobby governments or to engage in public campaigns.
The CLSP is a program for discretionary spending relating to legal assistance improvement and support and spending on discrete nation-wide legal assistance services that are not funded under the NPA. The substituted table item 87 clarifies that the legislative authority for government spending applies for initiatives that improve and support the provision of legal assistance. The revised table item removes objectives that were relevant to specific grants that have been completed and instead specifies the CLSP's broader objectives for which grants may be provided. The amendments to table item 87 reflect the objectives of the CLSP more accurately.
Funding of $13.8 million over four years from 2018-19 for the CLSP will come from Program 1.4: Justice Services, which forms part of Outcome 1. Details are set out in the Portfolio Budget Statements 2018-19, Budget Related Paper No. 1.2, Attorney-General's Portfolio at page 17. Funding for the CLSP for previous years is set out in the department's relevant Portfolio Budget Statements and Portfolio Additional Estimates Statements.
The following approaches may be used by the department to determine funding under the CLSP:
* a closed, non-competitive selection process. For example, applicants may be invited by the department to submit applications for a particular activity. In this case, the applications or proposals are not assessed against other applicants' submissions but assessed individually against separate criteria that will be made available at the time of the process;
* targeted or restricted competitive funding rounds. These funding rounds would be open to a small number of potential grant recipients based on the specialised requirements of the granting activity or project under consideration; and
* an open, competitive funding round.
Organisations funded under the CLSP may include:
* not-for-profit organisations;
* local governments; and
* universities and/or research bodies undertaking work that supports evidence-based practice in the legal assistance sector and that meets the purpose and objectives of the CLSP.
Under the CLSP, grant opportunities are identified each financial year, with funding rounds established on an ad-hoc basis. Opportunities may be identified in response to a particular community need or emerging issues. Some grants are awarded over a number of years (multi-year grant agreements) and others as one-off payments.
Funding decisions for the CLSP are made by the Attorney-General or a nominated departmental delegate of the Attorney-General in accordance with the Public Governance, Performance and Accountability Act 2013.
The decision-making and assessment processes, eligibility, funding priorities and selection criteria are detailed in the CLSP guidelines, which are available at www.ag.gov.au/LegalSystem/Legalaidprogrammes/LegalServicesProgram/Pages/default.aspx.
As funds become available, the department may conduct a funding round. In accordance with the CLSP decision-making process, the department will call for applications under any of the priority funding categories via the department's website at www.ag.gov.au. Details on how to apply for funding are made available on the website at the time.
The department assesses and prioritises applications and submissions for funding in accordance with the eligibility and selection criteria and considers factors including the demonstrated need for the proposed activity, ability to undertake the proposed activity and ability to manage funding.
The department will provide its assessment to the Attorney-General or departmental delegate for consideration. The Attorney-General or the appropriate departmental delegate will make the final decision on successful applications and the allocation of government funding. All grants approved for funding under the CLSP will be published, no later than within 21 days of funding agreements being executed, on the department's website at www.ag.gov.au.
There is no merits review process available for either the selection of service providers or amounts of funding granted. Decisions on the awarding of CLSP grants are made by the Attorney-General or the appropriate departmental delegate. Grants under the CLSP involve the allocation of a finite resource between government and community organisations and an allocation that has already been made to another party would be affected by overturning the original decision. A decision made in relation to funding under the CLSP is final.
The CLSP, in accordance with the Administrative Review Council's views on the appropriateness of merits review, is excluded from merits review because formal merits review would only promote competition among community groups and would not provide an effective remedy, as a successful application for review by one service provider would require a reduction in funding to other service providers.
Whilst decisions in relation to the CLSP are not suitable for a merits review process, the decision may be reviewed by the Commonwealth Ombudsman, who may make recommendations, but cannot overturn decisions. The department provides feedback to unsuccessful funding applicants directly.
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 census and statistics power (section 51(xi));
- the races power (section 51(xxvi));
- the express incidental power and the executive power (sections 51(xxxix) and 61); and
- the territories power (section 122).
Communications power
Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic, and other like services'.
The CLSP engages the communications power as it supports activities providing legal assistance services, including advice, online dispute resolution and legal support online or via the telephone or email.
Census and statistics power
Section 51(xi) of the Constitution empowers the Parliament to make laws with respect to 'census and statistics'. The CLSP engages the census and statistics power where the activity assists the Commonwealth in the compilation and analysis of relevant data from the legal assistance sector.
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 CLSP is supported by the races power where the CLSP activity relates to the provision of legal assistance and legal resources specifically for Indigenous Australians; for example, activities to protect Indigenous artistic and cultural practices or intellectual property.
Executive power and the express incidental power
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. Together with the executive power in section 61 of the Constitution, the express incidental power extends to a range of matters, including:
* activities that form part of the ordinary and well-recognised functions of government; and
* the execution and maintenance of the Constitution and the laws of the Commonwealth.
The CLSP engages the express incidental power where the legal assistance or service relates to proceedings in federal jurisdiction, or giving advice in relation to Commonwealth laws.
The CLSP is supported by the executive power read with the express incidental power where the funding by the Commonwealth relates to research and law reform activities used to inform Commonwealth policies.
Territories power
Section 122 of the Constitution empowers the Parliament to make laws 'for the government of any territory'. The CLSP engages the territories power where the program supports activities in the territories.
Item 2 - 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 activity that will be administered by the department.
New table item 294 establishes legislative authority for government spending on the Elder Abuse Service Trials.
The More Choices for a Longer Life - protecting older Australians package was announced in the 2018-19 Budget. The package will deliver measures to assist Australians to make the most of the opportunities a longer life provides by assisting them to prepare early to be healthy, independent, connected and safe as they age.
As part of this package, the Government will provide up to $22 million in funding over the next four years from 2018-19 to 2021-22 to establish trials of specialist frontline elder abuse services in selected areas to support older people and their families seeking help with elder abuse. Details of the measure are set out in the Budget 2018-19, Budget Measures, Budget Paper No. 2 2018-19 at pages 76 and 77.
Implementation of the service trials provides for three types of specialist support services: specialist elder abuse units; health justice partnerships; and case management and mediation services.
The Government is committed to protecting older Australians from abuse. The new services will significantly expand the practical support on offer to help older Australians experiencing abuse and their families and carers.
The trials will test the effectiveness of the following models to address elder abuse.
Specialist elder abuse units: The units will comprise lawyers, social workers and other specialist and support staff (for example, financial counsellors, Aboriginal and Torres Strait Islander liaison officers) who will work side by side with each client to develop a case plan and to respond to the individual's needs. Services will be tailored to individual needs and may include provision of advice (including legal), referral and support to access other services, or counselling.
Health justice partnerships: Older persons in the health care system, identified by health care workers and social workers as being at risk or potentially subjected to elder abuse, will be able to access specialised legal support services working in partnership with the health system and related referral agencies (for example, community aged care services). Early evidence suggests this model reaches very vulnerable people who are not otherwise identified, such as those experiencing neglect and/or isolation. Under this model, health care and social workers will be trained to identify vulnerable or at-risk individuals and the appropriate legal support services to which they should be referred. In some locations, legal support services may be co-located at the health care facility.
Case management and mediation services: Case management and mediation services will work with the older person, and their family as a whole, to find solutions to the underlying problems driving abuse. Elder abuse can have its roots in complex family relationships, where there is conflict between adult children, family breakdown, family violence and mental health problems. This model recognises that older people may place maintaining their relationship with their children and grandchildren above their own safety. This intervention targets perpetrator behaviour, while empowering and protecting older people and their assets, and assisting with issues related to their financial security.
Primary beneficiaries include older Australians, their families, carers and supporters.
At the core of this model is ensuring the voice of the older person is heard and empowering them to be involved in decisions regarding their care. A range of service options could be used including: a thorough holistic initial assessment; advocacy (for example, where a service provider will negotiate with the banks, on behalf of an older person, to defer repayment of debts arising from financial abuse); coaching and counselling; facilitated family meetings; financial counselling; mediation; therapeutic counselling; and care coordination.
Funding will be provided to existing services to expand their organisational capacity to add or further develop specialist frontline services.
The Government will work with state and territory governments to develop a transparent approach to identifying locations for the Elder Abuse Service Trials, which will include urban and regional areas. In order to identify the most appropriate locations for the services, a needs analysis may need to be undertaken.
Funding for the trials will come from Program 1.4: Justice Services, which is part of Outcome 1. Details are set out in the Portfolio Budget Statements 2018-19, Budget Related Paper No. 1.2. Attorney-General's Portfolio at pages 13 and 18. Funding for the More Choices for a Longer Life - protecting older Australians package is appropriated to the department under the Protecting the Rights of Older Australians (PROA) Program.
A delegate of the Secretary of the department will oversee the policy and administrative arrangements to deliver the Elder Abuse Service Trials. Decisions made under the program are predominantly grants with some procurement decisions.
The majority of the funding for the Elder Abuse Service Trials will be provided to service providers as grants for the provision of services. Existing service providers, such as community legal centres, legal aid commissions, health care facilities and mediation services, are likely to be among those organisations funded under the program. The department will promote open, transparent and equitable access to grants through competitive funding rounds, which may or may not have eligibility restrictions imposed, in accordance with the Commonwealth Grants Rules and Guidelines 2017 (CGRGs).
Grant agreements for the delivery of the Elder Abuse Service Trials will be administered on behalf of the department by the Department of Social Services (DSS) through the Community Grants Hub under the PROA Program. Program guidelines will be available at https://www.communitygrants.gov.au.
Grant decisions will be made by the Attorney-General or an appropriate delegate within the department as consistent with criteria to be developed in the PROA Program Guidelines and consistent with the Financial Framework (Supplementary Powers) Act 1997.
Once grant applications have been assessed by the department after initial assessment by staff of the Community Grants Hub, funding agreements will be executed between successful applicants and the department before funds can be received and work can commence. Grant payments will be linked to completion of project milestones and key deliverables. Funding recipients will be required to provide appropriate activity and financial reporting throughout the duration of the project.
Grant opportunities will be published by the DSS on behalf of the department on the DSS Community Grants Hub website at https://www.communitygrants.gov.au. This ensures compliance with whole-of-government grants reporting requirements in line with the CGRGs. Final grant decisions will be published on the Community Grants Hub website.
Other aspects of the program may be funded under a contract rather than under a grant agreement. For example, whole-of-program workshops with grantees to allow them to share experiences across the trial locations, or the procurement of capacity building services to assist grantees to build the required skills to build relationships, or undertake management financial and performance reporting through the grants hub, would be progressed as procurements. Procurements and contract management will be carried out consistent with the Public Governance, Performance and Accountability Act 2013 (the PGPA Act), the Commonwealth Procurement Rules, the Secretary's instructions and departmental guidelines, with appropriate senior oversight and accountability.
Procurement activities to deliver the Elder Abuse Service Trials will use competitive tender methods commensurate with the value and nature of the procurement activity. Where possible, the department seeks tenders from the whole-of-government panel arrangements (that is, the Department of Human Services Information and Communications Technology contractor services panel) or pre-qualified tenderers where the Secretary has authorised an exemption to undertake a limited tender. Procurement-related opportunities and spending decisions valued over $10,000 are advertised and reported on AusTender at (https://www.tenders.gov.au/).
The decision-maker for all procurements will be an officer within the department with the appropriate financial delegation as set out in the Secretary's Public Governance, Performance and Accountability Financial Delegation 2017. This officer is a delegate of the Secretary of the department.
Decisions on awarding grants are made by the Attorney-General or an appropriate delegate within the department. All of the grant decisions involve allocating a finite resource between competing government and community organisations and an allocation made to another party which would be affected by overturning the original decision.
A decision made about funding in a selection process through the DSS Community Grants Hub is final. Therefore, decisions in relation to expenditure under the Elder Abuse Service Trials are not suitable for merits review. However, these decisions may be investigated by the Commonwealth Ombudsman, who may make recommendations, but cannot overturn decisions. The department (or DSS in the case of competitive funding rounds for the Elder Abuse Service Trials), will provide feedback to unsuccessful grant applicants.
Feedback summaries may be made available for open grant rounds, and if requested, individual feedback can be provided. Advice on each grant round will be made available on the DSS website at https://www.dss.gov.au/grants/closed-funding-rounds.
Spending on procurements for the Elder Abuse Service Trials will not be subject to merits review arrangements as the procurement activities will be conducted in accordance with the Commonwealth's resource management framework, including the PGPA Act and the Commonwealth Procurement Rules. Participants or tenderers will be selected on the basis of technical expertise, capability and value for money.
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 external affairs power (section 51(xxix));
* the races power (section 51(xxvi)); and
* the territories power (section 122).
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.
Australia has obligations relevant to elder abuse under the International Covenant on Civil and Political Rights (ICCPR). Article 2 of the ICCPR provides that each State Party 'undertakes to take the necessary steps ... to adopt such legislative or other measures as may be necessary to give effect to the rights' recognised in the Covenant.
Article 7 of the ICCPR provides that 'no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'. By enabling people who are experiencing elder abuse to access specialist services, the Elder Abuse Service Trials will assist in preventing the physical or severe psychological abuse of older people.
Article 17(1) of the ICCPR provides that no one 'shall be subjected to arbitrary or unlawful interference' with his or her 'privacy, family, home or correspondence'. Article 17(2) provides that everyone 'has the right to the protection of the law against such interference'.
Older persons are often the victims of an arbitrary or unlawful use or disclosure of personal information such as the inappropriate accessing of financial, health or social welfare records, whether by coercion or subterfuge. The Elder Abuse Service Trials will enable people who are experiencing this form of elder abuse to access specialist services, including legal services.
Article 26 of the ICCPR provides that all persons are 'equal before the law and are entitled without any discrimination to the equal protection of the law'. Further, 'the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination' on a range of grounds, including race, sex or 'other status' such as age. The Elder Abuse Service Trials aim to address discrimination older people may face in accessing services by assisting older people to access specialist services.
Australia has obligations under the Convention on the Rights of Persons with Disabilities (CRPD) relevant to older persons with disabilities and older persons who develop age-related disabilities. Article 4 of the CRPD provides that States Parties undertake to 'adopt all appropriate legislative, administrative and other measures for the implementation of the rights' recognised in the Convention.
Article 8(1)(b) of the CRPD provides that States Parties 'undertake to adopt immediate, effective and appropriate measures' to 'combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life'. The objective of the Elder Abuse Service Trials is to provide older Australians experiencing elder abuse with assistance. This will include providing victims or others with information to combat stereotypes and prejudice against older people.
Article 16(1) of the CRPD requires States Parties to take all appropriate measures to 'protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse'. In addition, States Parties are required to 'take all appropriate measures to prevent all forms of exploitation, violence and abuse' including by ensuring appropriate forms of 'age-sensitive assistance and support for persons with disabilities' (Article 16(2)).
States Parties are also required to 'take all appropriate measures' to promote the 'recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse' taking into account 'age-specific needs' (Article 16(4)). The Elder Abuse Service Trials will assist in preventing the perpetration of exploitation, violence and abuse against older people with disabilities, including frailty, reduced cognitive capacity or other age-related impairments. The Elder Abuse Service Trials will directly assist victims of elder abuse, including people with a disability, to access specialist services or supports to address and recover from abuse.
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 Elder Abuse Service Trials will provide services specifically targeted at combatting elder abuse in Indigenous communities.
Territories power
Section 122 of the Constitution empowers the Parliament to make laws 'for the government of any territory'. Aspects of the trials will be conducted in a territory.
Commonwealth Numbered Regulations - Explanatory Statements