FINANCIAL FRAMEWORK (SUPPLEMENTARY POWERS) AMENDMENT (EDUCATION, SKILLS AND EMPLOYMENT MEASURES NO. 8) REGULATIONS 2020 (F2020L01585) EXPLANATORY STATEMENT

Details of the Financial Framework (Supplementary Powers) Amendment
(Education, Skills and Employment Measures No. 8) Regulations 2020

Section 1 - Name

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Education, Skills and Employment Measures No. 8) 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

Financial Framework (Supplementary Powers) Regulations 1997

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

This item adds three new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on certain activities that will be administered by the Department of Education, Skills and Employment (the department).

New table item 459 establishes legislative authority for government spending on the establishment and operation of the National Microcredentials Marketplace (the Marketplace), which will be a nationally consistent online platform for students to compare short courses against higher education provider offerings and credit point value. The Marketplace will facilitate credit recognition across the sector, support industry needs and encourage ongoing engagement in lifetime learning.

The term 'microcredentials' has been utilised over the years to refer to a variety of non-traditional short-form courses from digital badges, short courses, single-unit studies, and nano-degrees up to workshops on skills such as empathy and teamwork. Microcredentials can have a recognised credit from an institution, meaning they can be studied and used towards a qualification, such as a diploma or a degree. Some microcredentials are non-credit bearing, and they may be used more as skill badges or proof of knowledge about a topic. Some employers accept microcredentials as evidence of knowledge, skill or competency whereas others do not. This is due in part to the variation in scope and the saturation in the market of available microcredentials.

There is currently no consensus, or easily understood approach to verifying or recognising microcredentials, which in turn makes it difficult for employers to quantify or attribute value and validity of learning towards microcredentials.

The Review of the Australian Qualifications Framework Final Report 2019 (the AQF Review) has defined a microcredential as 'a certification of assessed learning that is additional, alternative, complementary to or a component part of a formal qualification'. The AQF Review (available at www.education.gov.au/australian-qualifications-framework-review-0) found that microcredentials are an emerging credential with the possibility to provide businesses with job ready skills in both the vocational education and training and higher education sectors. The AQF Review recommended the development of guidelines to facilitate the recognition of shorter form credentials (including microcredentials) for credit to allow education providers to offer short, highly targeted courses.

The Government response to the AQF Review will ensure that guidelines on credit recognition for microcredentials are developed with industry, sector and state/territory support. On 9 December 2019, the Government accepted all the recommendations of the AQF Review in relation to higher education and accepted the aims of the recommendations of the review in relation to vocational education and training, contingent on further discussions with state and territory governments.

The Minister for Education, the Hon Dan Tehan MP, and the Minister for Employment, Skills, Small and Family Business, Senator the Hon Michaelia Cash, announced the Marketplace on 22 June 2020, as part of the Government's Job-ready Graduates Package which aims to develop an educated and highly skilled workforce that would help facilitate Australia's economic recovery from the COVID-19 pandemic. Details of the ministerial announcement are available at ministers.dese.gov.au/tehan/marketplace-online-microcredentials.

The Marketplace will be incorporated into development of the Tertiary Learning Repository (TLR), an online platform for students and graduates to access, compile and display their tertiary learning achievements and wider credentials. The TLR aims to build on and complement other digital initiatives such as Course Seeker (www.courseseeker.edu.au) and the National Careers Institute's digital platform (development is currently underway).

The TLR will be delivered through the development of the National Credentials Platform (NCP). The NCP is a joint initiative between the department, Universities Australia, Universities Admissions Centre, and Higher Ed Services. It will provide learners with visibility of their academic history, including AQF and non-AQF qualifications, through a secure online platform. The Marketplace aims to incorporate a microcredentials framework that ends up being integrated into the AQF, providing consistency and longevity of microcredential study as part of the wider qualification network in Australia.

The NCP is currently in development, with the project expected to be completed by January 2022. The Marketplace will allow students to view microcredential courses from various providers across Australia, and compare which courses are recognised by other education institutions and can be used as credit towards larger qualifications. Through this tool, students will be able to consider microcredential study and how choosing to study various courses can contribute to a larger qualification, or build a particular skill set.

The Marketplace will complement the NCP by offering students, graduates and job seekers the ability to find microcredentials that supplement their education and experience. With the NCP providing a single source for a learner's tertiary education credentials, integrating the Marketplace will provide a seamless connection to short-course study options, enabling credit recognition and supporting engagement in lifelong learning. By working alongside and leveraging existing and developing Commonwealth platforms, the Marketplace will support ongoing engagement in lifelong learning by helping individuals (such as students, graduates and job seekers) identify opportunities for skills development, and provide verified recognition of prior learning to help streamline the transition between education and employment. The Marketplace will also enable and encourage industry to develop short-course programs to deliver 'real-time' skill sets based on labour market needs. More information on the Marketplace is available at www.dese.gov.au/document/better-integrated-tertiary-system-national-microcredentials-marketplace.

The Government will provide funding for the Marketplace through an open tender procurement for user research, followed by a closed non-competitive grant for ICT system development.

Procurement activities will be conducted consistent with the Commonwealth Procurement Rules, including publishing information on AusTender at www.tenders.gov.au as required.

The grant will be administered in accordance with the Commonwealth grants policy framework, including the Commonwealth Grants Rules and Guidelines 2017. The grant opportunity guidelines and information on the award of the grant will be made publicly available on GrantConnect at www.grants.gov.au. The grant will be administered by the Community Grants Hub which is part of the Department of Social Services.

Decisions as to the awarding of the procurement and grant funding will be made by a delegate of the Secretary of the department. The providers will be determined based on their ability to meet the specific needs of the project within the designated budget. The department will be responsible for the ongoing operation of the Marketplace.

Funding decisions made in connection with the procurement are not considered appropriate for merits review, as they relate to the allocation of finite resources between competing applicants and an allocation that has already been made to another party would be affected by overturning the original decision. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.14 of the guide, What decisions should be subject to merit review?).

Funding decision made in connection with the awarding of the grant is not considered appropriate for merits review, as this is a decision to provide a one-off payment 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 paragraph 4.16 of the guide, What decisions should be subject to merit review?).

In addition, re-making a funding decision after entry into contractual arrangements or a grant agreement with a recipient is legally complex, impractical, and would result in delays to the implementation of the Marketplace.

The Government Procurement (Judicial Review) Act 2018 enables suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. This legislation might provide an additional avenue of redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

The department will collaborate with education providers and the Digital Transformation Agency to create the online marketplace for mutually recognised microcredentials. This project will also be developed to align with other existing and developing government platforms, including but not limited to the Jobs and Education Data Integration project, Transforming the Collection of Student Information, Course Seeker website and the National Careers Institute's digital platform.

Funding of $4.3 million was included in the July Economic and Fiscal Update under the measure 'Higher Education Reform - more job ready graduates' for a period of three years commencing in 2020-21. Details are set out in Economic and Fiscal Update July 2020, Appendix A: Policy decisions taken since the 2019-20 MYEFO at pages 123 to 124.

Funding for this item will come from Program 2.3: Higher Education Support, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2020-21, Budget Related Paper No. 1.4, Education, Skills and Employment Portfolio at page 54.

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the communications power (section 51(v)) of the Constitution.

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 Marketplace will be an internet based service allowing students to view microcredential qualifications at Australian providers.

New table item 460 establishes legislative authority for the Government to provide one-off, non-indexed, means tested payments (Tertiary Access Payment) of up to $5,000 to eligible school leavers from outer regional or remote areas who relocate to undertake full-time, higher-level tertiary education. The Tertiary Access Payment is intended to encourage and assist outer regional and remote students to access tertiary study immediately following their completion of the final year of secondary school. An estimated 8,160 tertiary students will be eligible for this payment in the 2021 academic year.

The Tertiary Access Payment has been developed in response to Recommendation 2, proposed action 7 of the National Regional, Rural and Remote Tertiary Education Strategy final report (Napthine Review). The Napthine Review highlights that regional and remote students who relocate to undertake tertiary study face costs of up to $30,000 a year, and the current income support system does not adequately address these financial barriers. The Napthine Review also found that regional and remote students are twice as likely as those in major cities to take a gap year or years before commencing higher education, which increases their likelihood of not completing, or not returning to, further study. The Napthine Review was publicly released on 28 August 2019. It made seven recommendations and proposed 33 individual key actions aimed at improving regional and remote tertiary education outcomes. The Napthine Review is available at https://docs.education.gov.au/node/53035.

On 19 June 2020, the Minister for Education, the Hon Dan Tehan MP, announced a number of measures to support regional and remote tertiary education, including the Tertiary Access Payment, in response to the recommendations of the Napthine Review (https://ministers.dese.gov.au/tehan/tertiary-reforms-unleash-potential-regional-australia).

The Tertiary Access Payment is also expected to contribute to the Government's Closing the Gap targets, by improving participation rates of Indigenous students from outer regional and remote areas by providing improved financial support for further study.

On 25 August 2020, the Government announced that more than 7,000 payments for university students will be distributed in the 2021 academic year as a scholarship by their university (Table A and Table B providers under the Higher Education Support Act 2003). Universities will receive payments as grants under the Higher Education Support Act 2003 based on their historical enrolment of outer regional and remote students. Services Australia will administer up to 1,000 payments to eligible students at non-university higher education providers (NUHEPs) and vocational education and training (VET) providers.

New table item 460 will provide legislative authority for the Tertiary Access Payment to eligible students at NUHEPs and VET providers. The Higher Education Support Act 2003 will provide legislative authority for payments made to universities, which they will be required to distribute directly to eligible students.

The Tertiary Access Payment will be made in two instalments and at different times depending on whether the student is a higher education student or a VET student. For higher education students, the instalments will be: an initial $3,000 payment to be made after the first census date in the calendar year for units of study the student is enrolled in at a registered higher education provider; and a $2,000 payment after the final census date within the same calendar year.

For VET students, where VET providers do not have set census dates, the instalments will be: an initial $3,000 payment to be made after confirmation of the student's continued enrolment, at least four weeks after the course commencement date; and a $2,000 payment following provision of an academic transcript of units attempted, at least six months following the initial payment.

Payments will be available for students who are:

* from an outer regional, remote or very remote area (as per the Australian Statistical Geography Standard (ASGS) remote classifications);

* enrolled in a Certificate IV or above qualification at a registered higher education provider or VET provider, with duration of at least one year;

* relocating to study at a registered higher education provider or VET provider at least 90 minutes by public transport from their home (either in another regional location or a metropolitan location);

* enrolled in at least 75 per cent of a fulltime study load over a 12 month period;

* accessing tertiary study in the year immediately following their completion of Year 12 or equivalent (or the first available semester of their chosen course if the course has a mid-year start); and

* from a household with a parental income below the threshold amount of $250,000.

As the payments are intended to encourage the uptake of tertiary study immediately following the completion of secondary school, students who leave school before the end of Year 12 to pursue an apprenticeship or other vocational education will not be eligible for the Tertiary Access Payment, given the range of other supports available to apprentices. Further, the payment will only be available in a student's first year of study, with no further payments made in the second year of study or beyond.

The Tertiary Access Payment targets participation in Certificate IV and higher qualifications, which the Napthine Review identified as the point at which effort is needed to bridge the gap between metropolitan and regional/remote attainment.

For eligible students also receiving dependent Youth Allowance or ABSTUDY, the payment will provide additional support to recognise the extra challenges faced by those from low income families. Students who are eligible for the Relocation Scholarship linked to Youth Allowance/ABSTUDY payments, will also be able to receive the Tertiary Access Payment. For first year students, the Relocation Scholarship is a lump sum payment of $4,626 paid at the start of the year. For these students, lump sum payments would total $9,626 in the first 12 months of study.

The payment will not be considered 'income for social security purposes' and will not affect student's eligibility for other income support payments, as long as the payment, combined with other equity or merit based scholarships paid to the student, does not equal an amount greater than the annual threshold as set out in Section 8(8)(zjd) of the Social Security Act 1991 ($8,355 in 2020, indexed 1 January each year). Commonwealth scholarships and Relocation Scholarships are not included within this threshold.

For students whose parental income means they are not eligible for any Youth Allowance/ABSTUDY payments, or the Relocation Scholarship, the Tertiary Access Payment will assist with the increased costs associated with relocating to a new city or town to undertake tertiary study, providing support to these students during their first year in a new location. This is in recognition of the Napthine Review finding that it costs as much as $30,000 a year for regional and remote students to relocate for further study. In addition, the Napthine Review highlighted that higher education outcomes are lower for regional and remote students at all income levels. University attrition (drop-out) rates for high socioeconomic status (SES) regional and remote students are comparable to low SES metropolitan students. The Tertiary Access Payment aims to address this disparity and improve outcomes for all outer regional and remote students.

While this payment is not intended to cover all costs associated with relocation, it is designed to be a contribution toward these costs, and act as an incentive to students who may be deterred from tertiary study due to the upfront costs they incur. The payments could be used to cover costs including, but not restricted to:

* a bond for accommodation;

* assistance with rent and other household bills;

* groceries; and

* textbooks and other study supplies.

Payments to eligible students relocating to study at NUHEPs and VET providers will be administered by Services Australia as demand driven grants subject to the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017. Where possible and appropriate, Services Australia will use decision making processes similar to those currently in place for income support payments to students such as Youth Allowance and ABSTUDY. Final decisions about Commonwealth expenditure on the Tertiary Access Payment to be administered by Services Australia will be made by a delegate of the Secretary of the department.

Program guidelines outlining full eligibility criteria and application process for the Tertiary Access Payment will be made publicly available later in 2020 on the departmental website at www.dese.gov.au and on GrantConnect at www.grants.gov.au, with payments to commence in 2021. Information about payment recipients will not be publicly available due to privacy constraints.

Payments will be made to students relocating to study at NUHEPs and VET providers subject to them meeting eligibility requirements within the capped amount of payments available. It is not appropriate for such decisions to be subject to independent merits review as these decisions are automatic decisions which apply to each eligible student; that is, the decisions are based on the factual determination of whether an applicant meets the objective eligibility criteria to be set out in the program guidelines. If the applicant meets these criteria, the making of a payment is mandatory, so long as the funding for payments available for administration by Services Australia has not been exhausted. As such, there are no grounds on which merits review can operate. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to automatic or mandatory decisions of this nature (see paragraphs 3.8 to 3.12 of the guide, What decisions should be subject to merit review?).

Further, decisions made in connection with the Tertiary Access Payment to eligible students relocating to study at NUHEPs and VET providers relate to the allocation of a finite resource, noting a cap on the amount of funding available for payments. Overturning a decision to make a payment to one student could affect a payment that has already been made to another student. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide).

Although external merits review will not be available, students who do not receive a payment for the following reasons will be able to seek internal review of the decision by applying to Services Australia:

* a decision that the student does not meet the eligibility criteria;

* a decision that the student was not eligible for a payment because the cap for payments has been reached (based on the date the student's application was submitted to Services Australia which will be automatically date stamped); and

* a decision that the student is not eligible for the second instalment of their payment because they are no longer considered to be enrolled in their course of study.

The department has consulted with the Department of Social Services, Services Australia, the Department of the Prime Minister and Cabinet and the Department of the Treasury in the development of the Tertiary Access Payment. The Payment is part of the Government's Job-ready Graduates Package (Package) announced by the Minister for Education, the Hon Dan Tehan MP, on 19 June 2020. A number of bodies were consulted on the regional measures in the Package, including state and territory education bodies, and peak bodies such as the Regional Universities Network and the Isolated Children's Parents' Association.

The Minister for Decentralisation and Regional Education, the Hon Andrew Gee MP, also hosted three Regional Universities Roundtables (on 8, 22 and 23 July 2020) with Australian universities and university peak bodies to hear perspectives on the unique challenges faced by the regional higher education sector. Each Roundtable addressed the Package as well as key issues for the regional higher education sector, including the Tertiary Access Payment.

In addition, there was substantial consultation on the Napthine Review which led to the recommendation of a Tertiary Access Payment, including with universities, peak bodies, think tanks, educators, government agencies, community organisations, parents and training providers. Submissions in relation to the Napthine Review are available at https://docs.education.gov.au/node/53611. The Tertiary Access Payment has support from a number of key stakeholders including the Regional Universities Network.

The department will continue to engage with Services Australia and peak bodies such as Universities Australia, as well as individual universities to develop the Tertiary Access Payment.

Initial funding for the Tertiary Access Payment of $159.1 million over five years from 2019-20 (including $1.1 million in capital funding and $43.9 million per year ongoing) was included in the July 2020 Economic and Fiscal Update under the measure 'Higher Education Reform - additional support for regional Australia'. Details are set out in the Economic and Fiscal Update July 2020, Appendix A: Policy decisions taken since the 2019-20 MYEFO at pages 121 to 122.

Further funding of $19.2 million over four years from 2020-21 (and $45.1 million over ten years to 2029-30) to revise the allocation method for the Tertiary Access Payment and to enable universities to administer payments to eligible higher education students was included in the 2020-21 Budget under the measure 'JobMaker Plan - higher education - additional support for students and education providers'. Details are set out in Budget 2020-21, Budget Measures, Budget Paper No. 2 2020-21 at pages 77 to 78.

Total funding for the Tertiary Access Payment is currently $177.8 million over four years from 2020-21. This includes $31.3 million for payments to students relocating to study at NUHEPs and VET providers and associated administration costs of Services Australia.

Funding for this item comes from Program 2.3: Higher Education Support, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2020-21, Budget Related Paper No. 1.4, Education, Skills and Employment Portfolio at pages 14 and 54.

Funding for Services Australia for this item comes from Program 1.1: Services to the Community - Social Security and Welfare, which is part of Outcome 1. Details are set out in the Portfolio Budget Statements 2020-21, Budget Related Paper No. 1.12, Social Services Portfolio at page 231.

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the student benefits aspect of the social welfare power (section 51(xxiiiA)) of the Constitution.

Social welfare power

Section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits, including benefits to students. The Tertiary Access Payment will provide payments to identified students to meet the educational needs of those students.

New table item 461 establishes legislative authority for government spending on the Pacific Labour Mobility: Safeguarding Welfare of Workers (Community Connections) project (the Community Connections project).

The Pacific Labour Mobility: Safeguarding Welfare of Workers measure (the measure) was introduced to ensure the welfare of Pacific and Timorese workers (Pacific workers) who are participating in the Seasonal Worker Program (SWP) or the Pacific Labour Scheme (PLS). This measure will support the SWP's current model to ensure the program continues to protect the welfare of Pacific workers and has the resources to accommodate the growth of the program. The measure will be reviewed after three years for its effectiveness.

The SWP assists Australian employers to meet seasonal labour needs in the agricultural sector and accommodation sector, in selected locations, when their needs are unable to be met by the Australian workforce. The program contributes to the economic development of nine Pacific Island countries: Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu as well as Timor-Leste. The SWP supports critical sectors of the Australian economy, particularly agriculture, and provides an important source of remittances which are essential to the Pacific and Timorese economies.

Employers are approved to participate in the SWP following a robust vetting process, with successful applicants invited to enter into a Deed of Agreement with the department to become Approved Employers. The SWP is a demand driven, uncapped program, which has grown by around 42 per cent a year since it commenced on 1 July 2012. In 2018-19, there were 12,202 visas granted under the program, compared to 1,473 visas in 2012-13.

Although the 2019-20 financial year was affected by international border closures due to the COVID-19 pandemic, more than 9,800 SWP visas were granted prior to the border closures. At the time of the border closures, there were around 7,000 SWP workers in Australia, out of which over 5,900 seasonal workers have been redeployed to additional placements (as at early October 2020). This has resulted in more than 15,000 seasonal worker placements across Australia (9,800 visa holders and 5,900 redeployments combined).

The number of employers accessing the SWP has increased at an annual rate of 25 per cent since the program began in 2012, and interest in the program continues to grow with 174 employers currently approved to participate in the program. The program has a national footprint, with varied employer and placement sizes across a disparate geographic spread of locations. Further information about the SWP is at https://www.employment.gov.au/seasonal-worker-programme.

The challenge of ensuring the welfare of Pacific workers participating in the SWP in Australia has grown and become more pronounced due to the unique and unanticipated difficulties caused by international border closures as a result of COVID-19. Pacific workers in Australia do not know when they will be able to return home to their families and continue to work in labour intensive jobs, to support themselves and send remittances back home. The flow of remittances back to Pacific communities makes an important contribution to their ability to withstand the economic impacts of COVID-19.

The measure has two components:

* the Pacific Labour Mobility Officers (the PLM Officers) will be established in states and territories to complement current SWP assurance and monitoring activities by undertaking additional welfare, monitoring, compliance and accommodation checks. The PLM Officers commenced in their roles from 1 November 2020. Legislative authority is not needed for government spending on the PLM Officers; and

* the Community Connections project, which will fund the not-for-profit sector to strengthen their role in connecting Pacific workers who are participating in the SWP with local community groups. Legislative authority for the Community Connections project will be provided by new table item 461.

PLM Officers

The PLM Officers will provide an on-the-ground presence and establish direct links with the SWP workers, local community groups and Approved Employers. The PLM Officers will be mainly contractors of the department who will be located in the department's state and regional offices to allow them to be flexible and more responsive to issues, and build relationships with employers and workers in their states and territories. The number and location of the PLM Officers will be based on the number and size of recruitments of the SWP workers, the geographical spread of the placements and the number of Approved Employers operating in the regions.

The role of the PLM Officers will include:

* attendance at the face-to-face arrival briefings held by Approved Employers with workers to communicate key messages and build rapport with workers;

* expanding and complementing the role of the current SWP departmental contract managers by undertaking additional monitoring visits, including checking in with workers to ensure they are being treated fairly, ad hoc payslip checks and checking that accommodation meets the program standards;

* regular welfare checks with the SWP workers;

* troubleshooting of issues, working with Approved Employers and workers to find solutions and prevent issues escalating;

* following up on allegations or concerns raised by the SWP workers or members of the community;

* liaising with local communities, councils and stakeholders to promote and build an understanding of the program and nurture relationships with Pacific workers, and work through any concerns or issues;

* identifying and promulgating best practice, including linking Approved Employers together to identify joint solutions to shared issues;

* liaising with the SWP contract managers on day-to-day issues and working closely on joint program assurance activities;

* working with the Pacific Labour Facility and providing support to the PLS workers (for example, when a rapid response is required, and a PLM Officer is located in close proximity to the worksite/worker in need of immediate support); and

* liaising with members of the Community Connections project and attending community and recreational events arranged for workers.

The PLS complements the SWP. It helps meet business needs across all sectors in rural and regional Australia. The PLS is delivered by the Pacific Labour Facility on behalf of the Department of Foreign Affairs and Trade and managed by the Palladium Group. Further information about the PLS is available at https://www.dfat.gov.au/geo/pacific/engagement/pacific-labour-mobility.

Community Connections project

The community sector in Australia is a key partner in the delivery of the SWP. Strong connections between Pacific workers and local communities have shown to be important in the welfare of workers. The SWP employers are currently obliged to connect Pacific workers with local community groups but there are varying capabilities and practices. The Community Connections project will help improve the consistency of support and the integrity of the SWP and build important connections.

Funding of $1 million over three years from 2020-21 will be provided through a procurement process to one or more not-for-profit organisations. This will enable that organisation/s to generate strong involvement of existing local community and support groups, including the Pacific diaspora, to support Pacific workers.

Small local events will be organised, such as social, sporting and cultural events outside of work hours to build inclusion and cultural awareness and foster good relations. This will provide Pacific workers who are participating in the SWP with additional links and contact points in their local communities where they are working. The SWP workers will be invited to participate in such events and activities at their own discretion, although it is expected that the not-for-profit organisation/s will canvass support from the local workers and communities prior to organising events.

Community groups would be assisted by additional understanding of and engagement with the SWP workers and the sharing of cultures and community involvement. The workers would also be supported by non-work contact points with local community groups, such as churches, sporting groups and other groups of Pacific workers in the region to help identify and discuss potential concerns.

The not-for-profit organisation will also liaise regularly with the PLM Officers to provide a joined-up and consistent approach across the program. By linking Pacific workers with local community groups, it will help to improve social cohesion and build sound ongoing relationships between regional communities and the Pacific. It will help reduce isolation of workers within a workplace, which can increase welfare risks. Strong connections with community have shown to increase worker satisfaction, reduce homesickness and other problems such as absconding and undesirable behaviours, and increase productivity.

The Community Connections project will improve Pacific workers' experiences and welfare, build upon current program protections, and allow more immediate action to be taken to resolve any issues that may arise. For example, stronger connections within regional communities will provide more points of contact and therefore support for Pacific workers who experience issues such as misunderstanding about transport arrangements or accommodation. Community groups will also liaise with the PLM Officers, providing a further avenue to resolve any issues expediently.

The SWP Approved Employers would also benefit from their workers having stronger community links and from the sharing of better practices and joined-up responses, and by having a local contact point. Industry also recognises the importance of community connections for Pacific workers. In its August 2020 submission to the Inquiry into strengthening Australia's relationships with countries in the Pacific region conducted by the Joint Standing Committee on Foreign Affairs, Defence and Trade, the Australian Fresh Produce Alliance stated that employers have highlighted that community networks such as sport and religion are key to support the adjustment of Pacific workers in Australia since they improve the links between workers and the community. The submission is available at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Foreign_Affairs_Defence_and_Trade/PacificRelationships/Submissions.

The procurement process to select a service provider for the Community Connections project will be undertaken in accordance with applicable requirements under the Public Governance, Performance and Accountability Act 2013 (the PGPA Act), the Commonwealth Procurement Rules (CPRs), and the department's Accountable Authority Instructions.

A limited tender will be run by the department to select one or more not-for-profit organisations for the Community Connections project. Not-for-profit organisations will be invited by the department to submit a tender. The organisations will be required to have a national footprint already established or be able to demonstrate they can achieve a national reach through internal arrangements. They will also have demonstrated links with the Pacific diaspora and community groups.

Decisions about the tender process, including selection of a successful tenderer, will be made by a delegate of the Secretary of the department. Information about the tender and decisions made will be published on AusTender at www.tenders.gov.au. In accordance with usual practice, procurement decisions, once made, will be final and not subject to merits review. Re-making a procurement decision after entry into contractual arrangements with a successful tenderer would be legally complex, impractical and result in unacceptable delays to the implementation of the Community Connections project.

Decisions about which organisation will be selected are not considered suitable for independent merits review, as they are decisions relating to the allocation of a finite resource, from which all potential claims for a share of the resource cannot be met. In addition, any funding that has already been allocated would be affected if the original decision was overturned. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

The department will provide an opportunity for tenderers to make inquiries and complaints and will provide feedback to unsuccessful tenderers. These complaints and inquiries can be made at any time during the procurement process and will be handled in accordance with the probity processes for the procurement, which will be made available on AusTender. There are also existing departmental processes in place to support participants who have concerns about the service they receive. Any participant or potential participant in the process who is dissatisfied with a decision can request a review of that decision by contacting the department's National Customer Service Line (NCSL). Information about the NCSL is available on the departmental website.

The Government Procurement (Judicial Review) Act 2018 enables suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. This legislation might provide an additional avenue for redress (compensation or injunction) for dissatisfied tenderers, depending on the circumstances.

Any person or organisation dissatisfied with decisions made by the department could raise the matter with the Commonwealth Ombudsman. The Ombudsman has the power to ask the department to answer questions or seek relevant documents. The department gives weight to any recommendations by the Ombudsman and is required to respond to the Ombudsman regarding what it has done in response to any recommendations. Failure to adequately respond could lead to adverse public reporting by the Ombudsman.

From January 2019 until the first quarter of 2020, the department undertook consultation with stakeholders including the SWP Advisory Group in relation to the program. This included the new SWP Deed of Agreement and Approved Employer Guidelines (that commenced on 1 January 2020) and the merits of implementing measures that provide strong connections and links between local communities and Pacific workers.

The SWP Advisory Group includes members of the Approved Employers of Australia and individual Approved Employers, industry groups, unions, community groups and churches. This advisory group operates as a key contact point for the SWP and has been consulted previously in relation to key matters, including the review of the SWP Deed of Agreement and Approved Employer obligations and program parameters.

In addition, feedback from the Pacific diaspora community groups has indicated support for better community connections. This consultation occurred informally during the course of the review of the SWP and associated Deed and Guidelines in 2019 and meetings with Pacific diaspora organised by the Department of Foreign Affairs and Trade. The department will continue to engage with the stakeholder members of the SWP Advisory Group, as well as other relevant stakeholders, throughout the implementation process.

Funding of $9 million was included in the 2020-21 Budget under the measure 'Employment Services' for a period of three years from 2020-21 to ensure the welfare of Pacific workers participating in the SWP. This includes $1 million over three years from 2020-21 for the Community Connections project. Details are set out in Budget 2020-21, Budget Measures, Budget Paper No. 2 2020-21 at pages 74 to 76.

Funding for this item will come from the SWP subprogram under Program 4.1: Employment Services, which is part of Outcome 4. Details are set out in the Portfolio Budget Statements 2020-21, Budget Related Paper No. 1.4, Education, Skills and Employment Portfolio at pages 18, 24 and 73.

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 aliens power (section 51(xix)); and

* the immigration and emigration power (section 51(xxvii)).

Aliens power

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

The Community Connections project under the measure will increase community capacity to assist Pacific and Timorese workers under the SWP through expenditure on initiatives assisting newly arrived migrants and non-citizens. The role of the not-for-profit organisation/s has been designed for the SWP workers and their welfare.

Immigration and emigration power

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

The Community Connections project under the measure is specifically focused on enabling newly arrived migrants and non-citizens to receive an increased level of welfare support throughout their involvement with the SWP.

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 (Education, Skills and Employment Measures No. 8) 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 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 (Education, Skills and Employment Measures No. 8) Regulations 2020 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities that will be administered by the Department of Education, Skills and Employment (the department).

This instrument adds the following table items to Part 4 of Schedule 1AB:

* table item 459 for the National Microcredentials Marketplace;

* table item 460 for the Tertiary Access Payment for Outer Regional and Remote School Leavers; and

* table item 461 in Part 4 of Schedule 1AB for the Pacific Labour Mobility: Safeguarding Welfare of Workers (Community Connections) project.

Table item 459 - National Microcredentials Marketplace

Table item 459 establishes legislative authority for government spending on the National Microcredentials Marketplace (the Marketplace).

The Marketplace will be a nationally consistent platform for students to compare short courses against higher education provider offerings and credit point value. The Marketplace will also contain arrangements for recognition of courses across higher education providers that will help students make decisions and understand how they can stack short courses and credentials to build credit value and contribute to a qualification or a larger skill set.

The Government recognises the increasing need for individuals to access tertiary education to upskill and reskill throughout their life, in order to meet the evolving demands of the labour market. To assist, the Government will develop the Marketplace, which will allow students to view microcredential courses from various providers across Australia, and compare which courses are recognised by other education institutions and can be used as credit towards larger qualifications.

The Marketplace will provide students with greater flexibility to consider and combine microcredential short-course programs that can contribute to a complete qualification. In addition, the Marketplace will function as a monitoring and recording system, providing valuable data on the demand and use of microcredentials.

Human rights implications

Table item 459 engages the right to education (Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2 of the ICESCR).

Right to education

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

Article 13(1) of the ICESCR provides that States Parties to the present Covenant:

recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

Article 13(2)(c) of the ICESCR provides that:

[h]igher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; ...

The Marketplace will complement the National Credentials Platform (NCP) by offering students, graduates and job seekers the ability to find microcredentials that supplement their education and experience. With the NCP providing a single source for a learner's tertiary education credentials, integrating the Marketplace will provide a seamless connection to short-course study options, enabling credit recognition and supporting engagement in lifelong learning.

By working alongside and leveraging other government platforms, the Marketplace will support ongoing engagement in lifelong learning by helping individuals identify opportunities for skills development, and provide verified recognition of prior learning to help streamline the transition between education and employment. Microcredentials can work as standalone qualifications or complement study being undertaken at the vocational education and training or higher education level, making them a stackable short course to build towards a formal qualification. The Marketplace will also help enable and encourage industry to develop short-course programs to deliver 'real-time' skill sets based on labour market needs.

Conclusion

Table item 459 is compatible with human rights because it promotes the right to education under the ICESCR.

Table item 460 - Tertiary Access Payment for Outer Regional and Remote School Leavers

Table item 460 establishes legislative authority for the Government to provide one-off, non-indexed, means tested payments (Tertiary Access Payment) of up to $5,000 to eligible school leavers from outer regional or remote areas who relocate to undertake full-time, higher-level tertiary education. The Tertiary Access Payment is intended to encourage and assist outer regional and remote students to access tertiary study immediately following their completion of the final year of secondary school.

Payments will be made in two instalments - one payment of $3,000 shortly after the student commences their first year of study, and one payment of $2,000 towards the end of the student’s first year of study. The payments are intended to encourage and assist outer regional and remote students to access higher-level (Certificate IV and above) tertiary study immediately following school.

The Government recognises the increasing need for individuals to access tertiary education to upskill and reskill throughout their life, in order to meet the evolving demands of the labour market. There continues to be a significant city-country divide in tertiary education attainment rates; individuals in regional and remote areas are half as likely as their city counterparts to obtain a university degree by the age of 35 years. The Tertiary Access Payment aims to address this disparity by providing an incentive for students to undertake further study immediately following completion of secondary school, rather than taking a gap year.

Human rights implications

Table item 460 engages the right to education in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2 of the ICESCR.

Right to education

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

Article 13(1) of the ICESCR provides that States Parties to the present Covenant:

Article 13(2)(c) of the ICESCR provides that:

[h]igher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; ...

The Tertiary Access Payment will support the right of outer regional and remote school leavers to tertiary education by providing financial assistance to these relocating students who otherwise may not be able to afford to undertake further study. It will also act as an incentive for these students to undertake a higher-level tertiary qualification immediately following school, rather than taking a gap year.

The National Regional, Rural and Remote Tertiary Education Strategy final report highlights that regional and remote students are twice as likely as those in major cities to take a gap year or years before commencing higher education, which increases their likelihood of not completing, or not returning to, further study.

Conclusion

Table item 460 is compatible with human rights because it promotes the right to education under the ICESCR.

Table item 461 - Pacific Labour Mobility: Safeguarding Welfare of Workers (Community Connections)

Table item 461 establishes legislative authority for government spending on the Pacific Labour Mobility: Safeguarding Welfare of Workers (Community Connections) project (the Community Connections project).

Employers are approved to participate in the SWP following a robust vetting process, with successful applicants invited to enter into a Deed of Agreement with the department to become Approved Employers. The SWP is a demand driven, uncapped program, which has grown by around 42 per cent a year since it commenced on 1 July 2012. The program has a national footprint, with varied employer and placement sizes across a disparate geographic spread of locations.

The measure has two components:

* the Community Connections project, which will fund the not-for-profit sector to strengthen their role in connecting Pacific workers who are participating in the SWP with local community groups.

The SWP Approved Employers would also benefit from their workers having stronger community links and from the sharing of better practices and joined-up responses, and by having a local contact point.

Human rights implications

Table item 461 engages the following rights:

the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2 of the ICESCR, and Articles 1 and 2 of the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122); and
the right to health in Article 12 of the ICESCR.

Right to work

Article 2 of the ICESCR requires that each State Party to the Covenant undertakes to take steps to the maximum of its available resources, especially economic and technical, to realise the rights recognised in the Covenant, particularly through legislative measures. Article 6 of the ICESCR recognises the right to work and provides that States Parties will take appropriate steps to achieve the realisation of the right to work, including through technical and vocational training.

Article 1 of the ILO Convention 122 provides that 'each Member shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment'. Article 2 of the ILO Convention 122 provides that each Member shall determine the measures for achieving the objectives specified in Article 1. This includes the establishment of programs for the application of these measures.

Right to health

Article 12 of the ICESCR provides that States Parties to the Covenant 'recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health'.

Promotion of the right to work and the right to health

The SWP is uniquely positioned to assist Pacific workers to obtain seasonal work in agriculture throughout Australia and accommodation in selected locations, being Western Australia, Northern Territory, tropical North Queensland and Kangaroo Island. The objective of table item 461 is to continue to strengthen the support offered to Pacific workers during their time working and living in Australia. This will be achieved through the expansion of support personnel (that is, the PLM Officers) and the development of greater connections with the communities in which Pacific workers reside.

The PLM Officers will support Pacific workers by ensuring that Pacific workers understand the requirements of their work, by undertaking regular welfare checks on Pacific workers, and by monitoring the SWP Approved Employer compliance through site visits and audits. These actions promote the right to work by providing greater support in the workplace, and enhancing Pacific workers' ability to engage in work on a sustainable basis.

The one or more not-for-profit organisations engaged to deliver the Community Connections project will directly link Pacific workers with community groups to facilitate social cohesion and build sound ongoing relationships between local communities and the Pacific. Stronger connections within local communities will complement the work of the PLM Officers by providing more points of contact to assist Pacific workers who experience issues, such as misunderstanding about transport arrangements or accommodation.

These actions promote the right to health by enhancing Pacific workers' connectedness while in Australia, reducing homesickness and other problems such as mental health issues, while increasing worker satisfaction and general wellbeing.

Conclusion

Table item 461 is compatible with human rights because it promotes the protection of human rights.

Senator the Hon Simon Birmingham

Minister for Finance

Commonwealth Numbered Regulations - Explanatory Statements