Details of the Financial Framework (Supplementary Powers) Amendment
(Social Services Measures No. 1) Regulations 2022

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 1) Regulations 2022.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

 

Schedule 1 - Amendments

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - Part 4 of Schedule 1AB (table item 298)

 

This item amends table item 298 in Part 4 of Schedule 1AB by repealing and substituting the full text of the item. The amended table item 298 establishes legislative authority for government spending on the Jobs and Market Fund (JMF), which is administered by the Department of Social Services (the department).

 

The amended table item 298 will expands the National Disability Insurance Scheme (NDIS) JMF to enable more funded projects to support the broader care and support sector, including aged care and veterans' care.

 

The JMF was announced as a terminating measure in the 2018-19 Budget to ensure the disability workforce and market can meet growing demand as the NDIS reaches full capacity. The Government invested $64.3 million over four years from 2017-18, of which $45.6 million was provided to support the growth of the NDIS provider market and workforce in capacity and capability to meet the needs of NDIS participants.

 

In March 2021, the JMF was extended for a further three years to 2023-24 to support the implementation of the NDIS National Workforce Plan: 2021-2025 (the Workforce Plan) and to address relevant recommendations made by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) and the Royal Commission into Aged Care Quality and Safety (Aged Care Royal Commission) that impact the care sector market and workforce.

 

The Workforce Plan (https://www.dss.gov.au/disability-and-carers-publications-articles/ndis-national-workforce-plan-2021-2025) outlines the Australian Government's commitment to work with NDIS participants, industry and other stakeholders to grow a responsive and capable care and support workforce, and to strengthen the sector to meet the needs and aspirations of Australians with disability. The initiatives in the Workforce Plan will also strengthen the broader care and support sector, ensuring more sustainable and high-quality services for older Australians and veterans.

 

In addition, some of the initiatives in the Workforce Plan anticipate the recommendations of the Disability and Aged Care Royal Commissions, such as pricing, alignment of worker regulation and worker screening across the sector and greater support for allied health professionals. The findings from the two Royal Commissions and the initiatives under the Workforce Plan will have lasting impacts across the care and support sector.

 

The JMF makes evidence based strategic investments in growing a strong care and support workforce and market, including overcoming current barriers that prevent the market from independently meeting the increased demand as the NDIS continues to mature, such as lack of market intelligence, low awareness of and misperceptions about job opportunities across the care and support sector, under-developed business capability to build and scale up enterprises. The JMF aims to shift focus from participant and existing provider readiness to prioritising opportunities for growth in responding to rising demand for services. The JMF also complements the Boosting the Local Care Workforce program.

 

The JMF prioritises projects that address the current barriers to the NDIS market, meet the increased demand, grow the provider market and workforce in number and capacity, and have a lasting impact. Criteria for programs and expenditure of the JMF is designed to support and promote sustainable growth, rather than only address short-term transition issues. Projects currently funded by the JMF include: supporting Aboriginal Community Controlled Health Organisations to deliver culturally appropriate NDIS services, workshops to educate school leavers about the disability sector opportunities and change perceptions of working in the disability sector and developing and delivering training resources to frontline leaders in the disability sector.

 

In maximising the jobs and growth across the care and support sector, the JMF connects to the Australian Government's ongoing economic reform, jobs and deregulation agenda. Disability support, aged care and veterans' care programs are highly connected. Around 85 per cent of veterans' care providers are registered for the NDIS and/or aged care and 36 per cent of aged care providers are registered for NDIS and/or veterans' care.

 

Like the disability sector, the aged care sector will also need to grow in the years ahead. By 2024, the sector is expected to grow by almost 20 per cent, equivalent to 57,000 people, to meet the needs of an ageing population. Based on an interpretation of Productivity Commission's growth estimates of workforce headcount, as at 2020.

 

Although there are some important differences in the workforce requirements across the NDIS, aged care and veterans' care programs, there are also many common elements and opportunities to increase regulatory alignment for providers and workers across the sector. Some of the key job roles are also common to all three programs. Strengthening the care and support sector as a whole will increase productivity and consistency across the entire sector to meet demand, and grow the pool of available workers in order for disability support, aged care and veterans' care programs to meet demand.

 

The amended table item 298 aims to expand the funding authority of the JMF to include commissioning of projects that support the strengthening of the care and support sector market and workforce in capability and capacity. Potential future projects include providing support to front line Disability Support Workers to work as part of multi-disciplinary teams to implement Behaviour Support Plans and supporting projects aimed at improving informal supports for NDIS participants in particular training in supported decision making for existing natural supports.

 

In addition, there are a number of initiatives from the Workforce Plan that have a current focus on the disability sector, but could be broadened to include veterans' care and aged care as part of a phase two expansion.. These projects include:

*         work with the care and support sector to establish a skills passport;

*         develop micro-credentials and update nationally recognised training to improve the quality of supports and enhance career pathways; and

*         support the care and support sector to develop a Care and Support Worker Professional Network.

 

The objective of the JMF going forward is to fund projects that contribute to the growth of an effective care and support sector market and workforce comprising the following outcomes:

• NDIS participants exercise choice and control;
• NDIS participants receive reasonable and necessary supports where and when they need them;
• aged care clients and veterans' care clients receive care in accordance with their care plan;
• care and support sector service providers are delivering supports and services efficiently and sustainably; and
• care and support sector service providers are able to access the workforce needed to meet participant demand.

 

The department will deliver projects under the JMF through a mix of procurement and grant processes. Initiatives from the Workforce Plan that have a current focus on the disability sector, that could broadened to include veterans' and aged care will be delivered through grants. Procurement and grant funding decisions will be made in accordance with the Commonwealth Resource Management Framework (RMF), including the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Commonwealth Procurement Rules (CPRs) and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). Procurements will only be considered if a grant funding arrangement does not meet the RMF.

 

The department will provide an opportunity for suppliers and tenderers to make complaints if they wish, and to receive feedback. These complaints and inquiries can be made at any time during the procurement process, and will be handled in accordance with probity requirements. Information about the tender and the resultant contracts will be made available on AusTender (www.tenders.gov.au) once the contracts are signed. Procurement decisions will be based on value for money, including capability and capacity to deliver, and price and risk considerations.

 

The department's policy area will work with the Grants Services Office (GSO) within the Community Grants Hub to inform the design and implementation of grant opportunities and produce grant round specific documentation, as well as to ensure that grants are designed and implemented in line with the CGRGs. Information about the grants, including grant opportunity guidelines will be available on the GrantConnect website (www.grants.gov.au).

 

Final funding decisions will be made by the delegates (SES officers) who will have appropriate skill, qualification and experience with a strong understanding of the objectives of the JMF and the relevant legislation. Departmental officers (APS and EL level) who manage the stakeholder engagement, research, analysis and subsequent policy development for the program will support the delegates to make informed funding decisions. The departmental officers will have the skills and knowledge needed to provide effective advice to the SES officer about funding decisions.

 

There are a variety of safeguards and limitations that apply to the exercise of delegated powers under the FF(SP) Act, including the requirement that delegates comply with any directions of the Minister or Secretary given for the purposes of subsections 34D(2) and (4) of the FF(SP) Act. Under the PGPA Act, the accountable authority must govern the affairs of the entity in a way that promotes proper use and management of public resources for which the accountable authority is responsible, and implement measures to ensure that officials of the entity comply with Finance law. These duties applies to all aspects of the department's resource management, including grants administration and procurement. Grants and procurement administration is undertaken proportionately to the risks identified and outcomes sought, ensuring that it is consistent with the RMF and the CGRGs.

 

Procurement and grant funding decisions made in connection with the JMF 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 (ARC) 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? (ARC guide)).

 

The re-making of a procurement decision after entry into a contractual arrangement with a successful provider is legally complex, impractical, and could result in delays to providing services to platform users. 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, in consultation with the Department of Health and the Department of Veterans' Affairs, will fund and deliver activities that meet the needs and objectives of the care and support sector.

 

The department has consulted the care and support sector through the Advisory Group on Market Oversight (AGMO). AGMO met four times in 2021 and members were provided presentations and their feedback and insights were sought the scope and activities of the JMF including:

• the NDIS National Workforce Plan and stakeholder briefing sessions;
• Training and support for frontline leaders;
• developing micro credentials;
• Workforce labour market survey;
• NDIS Workforce Plan Skills and Training initiatives;
• the NDIS Ready project; and
• Care and Support Sector Demand Map.

 

Members are supportive of the expanded scope of the JMF and the department is investigating what other areas of the Care and Support Sector should be represented at future meetings to ensure that the perspectives from industry, enablers, workers and participants peaks (including cultural diverse groups) are considered. The department will survey care and support service providers to understand what market development activities and information is most valued by the sector. The outcomes of these surveys will be used to inform the development of grant opportunity guidelines and criteria.

 

Funding of $64.3 million for the program was included in the 2018-19 Budget under the measure 'National Disability Insurance Scheme Jobs and Market Fund' for a period of four years commencing in 2017-18. Details are set out in Budget 2018-19, Budget Measures, Budget Paper No. 2 2018-19 at page 176.

 

Funding for this item will come from Component 2 (Sector Development Fund and Jobs and Market Fund) of Program 3.2: National Disability Insurance Scheme, which is a part of Outcome 3. Details are set out in the Portfolio Additional Estimates Statements 2021-22, Social Services Portfolio at page 89.

 

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 defence power (section 51(vi));

*         the social welfare power (section 51(xxiiiA))

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

*         the race power (section 51(xxvi)); and

*         the executive power and the express incidental power (sections 61 and 51(xxxix)).

 

Communications power

 

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

 

Certain aspects of the JMF may involve the utilisation of online platforms, such as a potential trial of an Integrated Care model in the Kimberley which proposes to remove barriers created by inconsistent interfaces and complexities in government systems.

Defence power

 

Section 51(vi) of the Constitution empowers the Parliament to make laws with respect to 'the naval and military defence' of the Commonwealth and States, and 'the control of the forces to execute and maintain the laws of the Commonwealth'.

 

The JMF may fund programs that support veteran's care.  

 

Social welfare power

 

The social welfare power in section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits including, relevantly, sickness and hospital benefits, medical and dental services and benefits to students.

 

The JMF may fund projects relating to the aged care sector and veteran's care sector. It may also fund projects relating to certain students, for example students seeking to enter the care and support workforce.

 

External affairs power

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'.

 

Australia has obligations under the Convention on the Rights of Persons with Disabilities [2008] ATS 12 (CRPD). In particular:

*         Article 3 of the CRPD sets out a list of the general principles of the CRPD;

*         Article 4 of the CRPD sets out a list of the general obligations that the States Parties undertake to ensure and promote the realization of human rights and freedoms for persons with disabilities without discrimination of any kind on the basis of disability;

*         Article 9 of the CRPD requires States Parties to enable persons with disabilities to live independently and participate fully in all aspects of life, including ensuring accessibility of the physical environment, transportation, information, facilities and services;

*         Article 19 of the CRPD requires States Parties facilitate the right of persons with disabilities to live independently and be included in the community;

*         Article 20 of the CRPD requires States Parties to take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities;

*         Article 25 of the CRPD request States Parties to take all appropriate measures to ensure that people with disability can attain the highest possible standard of health;

*         Article 26 of the CRPD requires that States Parties to take effective and appropriate measures to enable persons with disabilities to attain and maintain independence, full physical, mental, social and vocational ability, and inclusion and participation in all aspects of life by organising, strengthening and extending comprehensive habilitation and rehabilitation services and programs.

 

The JMF helps realise rights of people with disability by improving and expanding the care and support workforce, including in rural and remote areas where services and awareness of job opportunities may be under developed. By improving the care and support workforce, and reducing barriers, the JMF will promote accessibility to services thereby promoting independence, ability and health of persons with disability.

 

Race 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 JMF may fund projects directed to supporting Aboriginal and Torres Strait Islander people, including the delivery of culturally appropriate NDIS services.

 

Executive power and 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. The executive power in section 61 of the Constitution supports the execution and maintenance of the Constitution, and the laws of the Commonwealth.

 

The JMF may assist the Commonwealth to gather information and develop policy relating to the care and support sector workforce.

 

Item 2 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds two new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on certain activities administered by the department.

 

New table item 538 establishes legislative authority for government spending on the National Disability Data Asset (NDDA), which will deliver the next phase of a data asset linking Commonwealth and state and territory data to provide insights on the outcomes of people with disability and their pathways through services. The underlying infrastructure is designed to be scalable, so in future it can be used to host a range of integrated data assets across multiple service domains.

 

The NDDA, originally established as a pilot in 2019 by the then Disability Reform Council, aimed to deliver an enduring NDDA, integrating datasets from multiple levels of government.

 

The pilot ran from April 2020 and concluded on 31 December 2021. It was led by a National Project Team based in the NSW Department of Premier and Cabinet. In addition to the Commonwealth (represented by the department, the Department of the Prime Minister and Cabinet (PMC), the Australian Bureau of Statistics (ABS), the Australian Institute of Health and Welfare (AIHW) and the National Disability Insurance Agency (NDIA)) five jurisdictions (New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory) actively participated in the pilot. The pilot successfully tested a range of data linkage methodologies and delivered a final high-level blueprint for national data linkage infrastructure, and associated governance, based on the collective lessons. The pilot learnings informed the proposal the Commonwealth has now funded.

 

On 3 December 2021, Senator the Hon Anne Ruston, the Minister for Families and Social Services, announced the landmark strategy to support Australians with disability as part of the Australia's Disability Strategy 2021-2031 (the Strategy), which included funding of $40 million to extend the NDDA. The media release is available at https://ministers.dss.gov.au/media-releases/7796.

 

The NDDA is critical infrastructure to support the measurement of outcomes under the Strategy (https://www.disabilitygateway.gov.au/ads/glance), as it will bring together de-identified Australian Government data, NDIS data and service system data from states and territories. The NDDA is also a key component of the data improvement plans under the Strategy to improve data and data sharing, and it gives life to the new Intergovernmental Agreement on data sharing between Commonwealth and State and Territory governments (https://federation.gov.au/about/agreements/intergovernmental-agreement-data-sharing) which seeks to improve data sharing between the Commonwealth and state and territory Governments.

 

After the interim period, the NDDA will overcome the existing problem of fragmented and poor-quality data relevant to understanding the outcomes of people with disability. The insights provided by the NDDA will enable policy development and investment decisions by governments to be based on better evidence. These insights will also inform Australian research efforts with timely and quality data, and provide people with disability better information to assist with decisions on seeking services.

 

The NDDA will be co-designed and co-governed with state and territory governments and the disability sector. Building on existing investment in Commonwealth and state and territory data linkage capability, it is anticipated over 200 datasets will eventually be linked, providing jurisdictions with access to data at an unprecedented level subject to strong privacy protection and ethical oversight.

 

The Commonwealth's commitment of up to $40 million for the NDDA including $3.1 million for additional analytic capacity, represents 50 per cent of the potential total establishment. State and territory governments will also co-fund the NDAA, taking the full cost of the NDDA to $73.8 million.

 

Commonwealth partners in the project are the department, the ABS and the AIHW. ABS will lead on the technical build and AIHW will lead on the data linkage. Commonwealth officials from the department, in partnership with officials from PMC, ABS and AIHW, will lead the NDDA project in the initial period, before permanent operational arrangements and governance structures are established, and report to Disability Reform Ministers through the National Disability Strategy (NDS) tasking group.

 

The department, along with the ABS and AIHW, will negotiate with states in the early phase of the NDDA project on matters of cost-sharing and data supply, and outcomes from these negotiations and the final design will be brought to Disability Ministers in mid-2022, and captured in bilateral agreements - potentially sitting under the Intergovernmental Agreement on Data Sharing.

 

Funding will be provided to the ABS and AIHW within the mechanisms stipulated in the existing Memorandum of Understanding that the department has with those agencies.

 

The ABS and AIHW were selected as the department's technical partners in this project as they are considered the primary Commonwealth Accredited Integrating Authorities. These two authorities currently hold and manage the key Commonwealth data collections that will form the basis of the NDDA linkage.

 

Further, these trusted authorities have established digital environment management arrangements subject to the Five Safes Framework (for disclosure risk management) and the legislative frameworks of the ABS, AIHW and data custodians. Utilising the ABS and AIHW leverages existing infrastructure and builds on what has been created in the 18-month NDDA pilot and through previous Government investment, such as the Data Integration Partnership for Australia.

 

A final determination has not been made regarding whether the funding for the NDDA will take the form of a grant or a procurement. Regardless of the funding mechanism, decisions will be made in accordance with the Commonwealth RMF, including the PGPA, the CPRs and the CGRGs.

 

Information about the tender and the resultant contracts will be made available on AusTender (www.tenders.gov.au) once the contracts are signed. Procurement decisions will be based on value for money, including capability and capacity to deliver, and price and risk considerations. Information about the grants, including grant opportunity guidelines will be available on the GrantConnect website (www.grants.gov.au).

 

The Minister, the Secretary of the department or a delegate will be responsible for approving Commonwealth funding for the program in accordance with the Financial Framework (Supplementary Powers) Act 1997 (FF(SP) Act). 

 

All delegates responsible for making funding decisions will be SES officers and will have appropriate skill, qualification and experience with a strong understanding of the objectives of the NDDA and the relevant legislation. Departmental officers (APS and EL level) who manage the stakeholder engagement, research, analysis and subsequent policy development for the NDDA will support the delegates to make informed funding decisions. The departmental officers will have the skills and knowledge needed to provide effective advice to the SES officer about funding decisions.

 

Funding decisions made in connection with the NDDA 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 ARC 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 ARC guide).

 

Extensive consultation with multiple stakeholders was conducted during the NDDA pilot - including with Commonwealth and state and territory data custodians and policy development areas within government. Structured engagement with the disability sector occurred throughout the pilot.

 

 

The NDDA pilot was guided by a Disability Advisory Council (DAC), chaired by Dr Ben Gauntlett, Disability Discrimination Commissioner at the Australian Human Rights Commission. The Council supported engagement with the disability community to build awareness and trust in the NDDA and provided guidance to the project team throughout the pilot phase. The DAC final recommendations to government on the NDDA design will form the interim governance structures for the NDDA once agreed.

 

To help form their advice to government, the NDDA National Project Team, based in the NSW Department of Premier and Cabinet, provided the DAC with information collected from over 85 consultations with disability community organisations and a handful of researchers and government disability officials.

 

The three jurisdictions that did not participate in the pilot (Western Australia, Northern Territory and Tasmania) were engaged bilaterally at key points - initially on their data and information needs for an enduring NDDA, then on the linkage design, and finally on the overall design - and kept informed of the pilot objectives and progress.

 

During preparation of the NDDA funding proposal, the department consulted extensively with the Digital Transformation Agency to ensure the proposal was appropriately aligned to Australian Government digital investment priorities and met assurance requirements.

 

The result of the consultation was the development of the high level design building blocks for the NDDA, which have been presented to State and Territory Disability Ministers for endorsement. Consultation of the kind conducted during the pilot and involving the same categories of stakeholders will be ongoing. Consultation around the NDDA will be ongoing as the enduring asset is developed. Consultation is intended to be a 'business as usual' feature of the measure, both through formal governance structures, as well as information-sharing and engagement with the public.

 

Funding of $40 million was included in the 2021-22 Mid-Year Economic and Fiscal Outlook under the measure 'Australia's Disability Strategy' for a period of four years commencing in 2021-22. Details are set out in the Mid-Year Economic and Fiscal Outlook 2021-22, Appendix A: Policy decisions taken since the 2021-22 Budget at page 291.

 

Funding for this item will come from Component 2 (Disability and Carer Support) of Program 3.1: Disability and Carers, which is part of Outcome 3. Details are set out in the Portfolio Additional Estimates Statements 2021-22, Social Services Portfolio at page 88.

 

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)); and

*         the executive power (section 61).

 

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 NDDA will be an online database and will be used or made available to others through online mechanisms.

 

Census and statistics power

 

Section 51(xi) of the Constitution empowers the Parliament to make laws with respect
to 'census and statistics'.

 

A substantial purpose of the NDDA is to facilitate the collection and dissemination
of statistical research.

 

Executive 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. The executive power in section 61 of the Constitution supports activities that form part of the ordinary and well-recognised functions of government.

 

The NDDA will be used to inform the Government on outcomes for people with disability. This information will then be used to form future government policy on disability service provision, including where and how to target services and supports. 

 

New table item 539 establishes legislative authority for government spending on the Information, Linkages and Capacity Building program (the ILC program), which will fund a diverse range of activities that enable people with a disability to overcome barriers to reach fuller participation in the community and support families and carers to assist them in this endeavour.

 

The ILC program commenced in 2016-17 and was administered by the National Disability Insurance Agency (NDIA). During this period, spending was authorised under the National Disability Insurance Scheme Act 2013. The ILC program is currently under the administration of the department.

 

The ILC Policy Framework outlines the purpose and scope of the ILC program. The former Council of Australian Governments (COAG) Disability Reform Council (DRC) endorsed the ILC Policy Framework (https://www.dss.gov.au/sites/default/files/documents/10_2020/ndia-website-ilc-policy-framework.pdf) in August 2015 for implementation by the NDIA.

 

The NDIA Board released Strengthening Information, Linkages and Capacity Building (ILC) - A national strategy towards 2022 (current ILC strategy) in December 2018, providing funding priorities and parameters for ILC activities. The current ILC strategy can be found at https://www.dss.gov.au/sites/default/files/documents/10_2020/ndia-website-ilc-investment-strategy.pdf.

 

The strategy outlines the current directions of the ILC program. In December 2019, the Disability Reform Council agreed the NDIA would develop a new evidence-based ILC strategy commencing with an initial review of existing arrangements under the current ILC investment strategy.

 

Legislative authority under the new table item 539 will allow for a more diverse range of funded activities that may include:

*         activities that support future policy development and implementation such as research and analysis, evaluation (of funded activities) and consultation with stakeholders, for example to refine needs identification and design appropriate policy responses;

*         capacity-building of organisations that are eligible to apply for and manage ILC grants so they achieve outcomes for people with disability; and

*         targeted assistance to particular disability categories, particular populations and/or in particular locations, or specific outcomes, such as contributing to people with disability being more independent or more employable.

 

Activities that support future policy development include:

• research and collaboration with academic institutions to inform future program design for Commonwealth purposes. This will involve the procurement of services to conduct activities to assess project-level and program-level outcomes to identify successful approaches, identify emerging needs in the sector and prioritise future program activities for the Commonwealth's information. Relevant information on outcomes to date is limited and building a comprehensive evidence base is fundamental to designing and implementing effective social policy for all people with disability;
• evaluation activities to assess whole-of-program effectiveness and inform future policy development for the Commonwealth. Prior to proposing a new strategy for the ILC program, the department is undertaking an evaluation of existing projects to provide an evidence base for future decision making. Evaluation expertise will be procured for the planning and execution of a holistic program evaluation, contributing to the evidence base for ILC effectiveness and informing future investment of program funds;
• facilitation of workshops or focus groups to engage more directly with people with disability, families and carers to co-design programmatic and policy responses for the benefit of the Commonwealth. Collaboration on and co-design of future disability policy requires input from a wide range of stakeholders, most importantly, the department needs to engage with people with disability in a meaningful way to ensure that future policy is based on their experience and needs; and
• establishment of a data management process for the Commonwealth to assist in the development of policy.

 

Activities to support capacity-building of organisations will be provided through grants and procurements and include:

• development and provision of resources and activities that will support the capacity of prospective applicants to apply for funding and for successful applicants to administer grant activities
• funding and facilitation of conference or workshop activities will allow ILC funding recipients to share with each other experiences and lessons gained from their implementation of services and facilitate connections between organisations. Providing linkages and enabling people with disability with access to disability, community and mainstream supports is fundamental to the purpose of the ILC program. Feedback from organisations in the disability sector indicates there are limited opportunities for cross-sector collaboration and sharing the successes of ILC programs.

 

The ILC program provides funding to organisations to deliver projects in the community that benefit all Australians with disability, their carers and families. These activities aim to build the knowledge, skills and confidence of people with disability, and seek to improve their access to community and mainstream services.

 

Eligibility criteria varies slightly between grant streams, and rounds within each stream. Generally, however, eligibility is limited to the following legal entity types:

• Cooperative;
• Corporate State or Territory Entity;
• Incorporated Association;
• Indigenous Corporation;
• Local Government;
• Statutory Entity;

• Non-Corporate State or Territory Entity; and
• Non-Corporate State or Territory Statutory Authority.

 

Some grant rounds under the ILC are further restricted to organisations which meet the following criteria:

• 50 per cent of their board is made up of people with disability; or
• 50 per cent of their board is made up of family members of people with disability; or
• 50 per cent of their board is made up of members of their targeted priority cohort (for example, culturally and linguistically diverse or Aboriginal and Torres Strait Islander peoples).

 

Whether or not the current eligibility criteria will apply to future funding rounds is currently for consideration, and criteria may vary depending on the specific purpose of the round. For example, ILC activities have included the creation of national online spaces to house information for people and/or children with disability, their families and carers, covering such subjects as work, study, sport, mental health, relationships and making informed choices. ILC also provides access to peer support, mentoring and other skills building to build workforce capacity for people with disability. Other projects also include developing multimedia resources and video scenarios to educate health professionals about disability to improve communication between people with disability and health professionals and so to enhance accessibility of mainstream services for people with disability.

 

The department will deliver the ILC program through a suite of procurements and grants processes in accordance with the Commonwealth RMF, including the PGPA Act, the CGRGs, the CPRs and the department's Accountable Authority Instructions.

 

Where grants are used as the appropriate financial arrangement, grants to organisations providing the services will be administered by the Community Grants Hub in accordance with the CGRGs. Grant selection process will utilise the standard grant model of the Community Grants Hub. Information on grant availability and processes, including eligibility criteria and the application process, will be published on the website of the Community Grants Hub at www.communitygrants.gov.au.

 

The outcome of all grants awarded and funding rounds are published on GrantConnect no later than 21 working days after the grant agreement takes effect, in accordance with the CGRGs.

 

Where procurement processes are used, a range of procurement methods may be used such as open and limited tenders or procurements under existing arrangements. The selection of which procurement method to use will depend on the activity.

 

Examples of activities regarding the procurement process include:

• collection and analysis of data for developing policy;
• supporting eligible (or an identified subset of) potential grant applicants to develop their capability to apply for grants;
• supporting (or an identified subset of) grant recipients to develop their capability to administer grant activities;
• facilitating the sharing of success stories, knowledge and experiences of successful grant recipients with other ILC-funded grant recipients (establishment of communities of practice).

 

Procurement decisions will be made in accordance with the PGPA Act and the CPRs. The department will provide an opportunity for suppliers and tenderers to make complaints if they wish, and to receive feedback. These complaints and inquiries can be made at any time during the procurement process, and will be handled in accordance with probity requirements. Information about the tender and the resultant contracts will be made available on AusTender (www.tenders.gov.au) once the contracts are signed. Procurement decisions will be based on value for money, including capability and capacity to deliver, and price and risk considerations.

 

The Minister or the Secretary of the department will be responsible for approving Commonwealth funding for the program in accordance with the FF(SP) Act, unless this decision is delegated.

 

The delegates will be SES officers who will be responsible for making funding decisions and will have appropriate skill, qualification and experience with a strong understanding of the objectives of the ILC and the relevant legislation. Departmental officers (APS and EL level) who manage the stakeholder engagement, research, analysis and subsequent policy development for the program will support the delegates to make informed funding decisions. The departmental officers will have the skills and knowledge needed to provide effective advice to the SES officer about funding decisions.

 

There are a variety of safeguards and limitations that apply to the exercise of delegated powers under the FF(SP) Act, including the requirement that delegates comply with any directions of the Minister or Secretary given for the purposes of subsections 34D(2) and (4) of the FF(SP) Act. Under the PGPA Act, the accountable authority must govern the affairs of the entity in a way that promotes proper use and management of public resources for which the accountable authority is responsible, and implement measures to ensure that officials of the entity comply with the finance law. These duties applies to all aspects of the department's resource management, including grants administration and procurement. Grants and procurement administration is undertaken proportionately to the risks identified and outcomes sought, ensuring that it is consistent with the RMF, the CGRGs and the CPRs.

 

Merits review of decisions made in connection with ILC grants are not considered appropriate as such decisions relate to the provision of one-off grants to certain service providers over other service providers. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature relating to one-off payments (see: paragraphs 4.16 to 4.19 of the ARC guide).

 

Likewise, procurement decisions made in connection with the ILC program are not considered suitable for independent merits review, as they relate to the allocation of a finite resource from which all potential claims for a share of the resource cannot be met. Further, any funding already allocated by a procurement decision would require amendment if the original decision was overturned. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions relating to the allocation of a finite resource (see paragraphs 4.11 to 4.19 of the ARC guide).

 

The re-making of a procurement decision after entry into a contractual arrangement with a successful provider is legally complex, impractical, and could result in delays with respect to providing services to ILC providers.

 

The Australian National Audit Office conducts a review and audit process to review Australian Government spending decisions and report any concerns to Parliament. This process helps to safeguard the proper use of Commonwealth resources, and promote appropriate transparency surrounding decisions relating to making, varying or administering arrangements to spend relevant money.

 

The guaranteed right of review under section 75(v) of the Constitution, and review under section 39B of the Judiciary Act 1903, will also be available. 

 

ILC is an existing program announced in the 2013-14 Budget. Consultation in the development of a new ILC strategy with key stakeholders, including Commonwealth Government agencies, state and territory governments, people with disability and organisations within the disability sector is ongoing. Previous consultations with key stakeholders identified a number of areas for improvement such as better targeting of funding and more flexible funding approaches. Stakeholder feedback will inform the future directions of the new ILC program in alignment with Australia's Disability Strategy 2021-2031.

 

Funding of approximately $136 million per annum for this item will come from Component 4 (National Disability Insurance Scheme Information, Linkages and Capacity Building) of Program 3.2: National Disability Insurance Scheme, which is part of Outcome 3. Details are set out in the Portfolio Additional Estimates Statements 2021-22, Social Services Portfolio at page 89. The ILC is an ongoing program.

 

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

 

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 international obligations under treaties to which it is a party, including the Convention on the Rights of Persons with Disabilities [2008] ATS 12 (CRPD).

 

The activities of the ILC fulfil Australia's treaty obligations under the CRPD, in particular the following obligations:

• Article 1 states that the purpose of the CRPD is to "promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity";
• Article 8 of the CRPD requires States Parties to undertake to adopt "immediate, effective and appropriate measures" to, among other things, raise awareness regarding people with disability, to foster respect for their rights, to combat stereotypes, prejudices and harmful practices relating to people with disability and to promote awareness of capabilities and contributions of people with disability;
• Article 9 of the CRPD requires States Parties to take appropriate measures to, among other things, ensure that people with disability have access on an equal basis with others to the physical environment, transportation, information, and other facilities and services open or provided to the public;
• Article 19 of the CRPD requires States Parties to recognise the equal right of people with disability to live in the community with choices equal to others, and to put into place measures to facilitate the enjoyment of this right;
• Article 20 of the CRPD requires States Parties to take effective measures to ensure personal mobility for people with disability;
• Article 21 of the CRPD requires States Parties to take all reasonable measures to, among other things, ensure that people with disability have a right to express themselves and to seek and receive information and ideas on an equal basis with others, including via the provision of information in accessible formats, technologies and languages;
• Article 24(5) of the CRPD requires States Parties to ensure that people with disability have access to general tertiary education, vocational training, adult education and lifelong learning on an equal basis with others;
• Article 25 of the CRPD requires States Parties to recognise the right of people with disability to enjoy the highest attainable standard of health without discrimination on the basis of disability, and to take all appropriate measures to ensure access for people with disability to health services that are gender-sensitive;
• Article 29 of the CRPD requires States Parties to guarantee that persons with disability have political rights and the opportunity to enjoy them on an equal basis with others.

 

The ILC helps realise the rights of people with disability by providing information and capacity building supports. The ILC creates connections between people with disability and the communities they live in; builds the knowledge, skills and confidence of people with disability; and improves their access to community and mainstream services.

 

 

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 (Social Services
Measures No. 1) Regulations 2022

 

This disallowable legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the legislative instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

 

The Financial Framework (Supplementary Powers) Amendment (Social Services
Measures No. 1) Regulations 2022 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities administered by the Department of Social Services.

 

This disallowable legislative instrument makes the following amendments to Part 4 of Schedule 1AB:

*         repeals and substitutes table item 298 'Jobs and Market Fund';

*         adds table item 538 'National Disability Data Asset'; and

*         adds table item 539 'Information, Linkages and Capacity Building'.

 

Table item 298 - Jobs and Market Fund

 

This item amends table item 298 in Part 4 of Schedule 1AB by repealing and substituting the full text of the item. The amended table item 298 establishes legislative authority for government spending on the Jobs and Market Fund (JMF), which expands the National Disability Insurance Scheme (NDIS) JMF to also fund projects supporting the aged and veterans' care and support workforce.

 

The JMF makes evidence-based strategic investments in growing a strong care and support workforce and market, including overcoming current barriers that prevent the market from independently meeting the increased demand as the NDIS continues to mature, such as lack of market intelligence, low awareness of and misperceptions about job opportunities across the care and support sector, under-developed business capability to build and scale up enterprises.

 

The amended table item 298 aims to expand the funding authority of the JMF to include commissioning of projects that support the strengthening of the care and support sector market and workforce in capability and capacity. The expanded JMF will support the implementation of the NDIS National Workforce Plan: 2021-2025 (the Workforce Plan) and address relevant recommendations made by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and the Royal Commission into Aged Care Quality and Safety that impact the care sector market and workforce.

 

There are a number of initiatives from the Workforce Plan that have a current focus on the disability sector, but could be broadened to include Veterans' and Aged Care as part of a phase two expansion. These projects include:

*         work with the care and support sector to establish a skills passport;

*         develop micro-credentials and update nationally recognised training to improve the quality of supports and enhance career pathways; and

*         support the care and support sector to develop a Care and Support Worker Professional Network.

 

Human rights implications

 

The amended table item 298 engages the following rights:

*         the right of people with disability - Articles 9, 14, 19 and 25 of the Convention on the Rights of Persons with Disabilities (CRPD), read with Article 4; and

*         the right of people with disability, older people and veterans - Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2.

 

Right of people with disability

 

Article 4 of the CRPD requires States Parties undertake to take steps to ensure and promote the full realisation of all human rights for those with a disability without discrimination.

 

Article 9 of the CRPD requires States Parties to take appropriate measures to ensure persons with disabilities can access, on an equal basis with others, facilities, services and information in both urban and rural areas and providing for training for stakeholders on accessibility issues facing persons with disabilities.

 

Article 14 of the CRPD requires States Parties to ensure that persons with disabilities, on an equal basis with others, enjoy the right to liberty and security of person, and are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law and that the existence of a disability shall in no case justify a depravation of liberty.

 

Article 19 of the CRPD requires States Parties to take appropriate measures to ensure that persons with disabilities have full enjoyment of their right to live in the community, with choices equal to others and with their full inclusion and participation in the community, including by ensuring that they have opportunity to choose their place of residence and who they live with; have access to a range of community support services to support their inclusion in the community; and have equal opportunity to community services and facilities made available for the general population.

 

Article 25 of the CRPD requires States Parties to take all appropriate measures to ensure that health services offered to people with disabilities are of the same range, quality and standard offered to the general population, are tailored to their disability when necessary; are provided as close as possible to their own community and that they do not suffer discrimination on the basis of their disability in respect of treatment from health professionals and insurers.

 

The amended table item 298 promotes the right under the CRPD as expenditure under the JMF will assist disability service providers to increase the supply and quality of health and support services for people with disability in areas of need.

 

Right of people with disability, older people and veterans

 

Article 2 of the ICESCR provides that each State Party undertakes to take steps to the maximum of its available resources with a view to achieving progressively the full realisation of the rights recognised in the Covenant, by all appropriate means.

 

Article 12 of the ICESCR recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This Article requires the States Parties create conditions which would assure to all medical service and medical attention in the event of sickness.

 

The amended table item 298 promotes the right to health by improving supply of and access to high quality health care services for people with disability, older people and veterans. The program engages the right of people with disability, older people and veterans to enjoy quality healthcare under Article 12 as market needs in particular areas and for particular healthcare and medical services to be identified, and services facilitated and provided by service providers.

 

Conclusion

 

The amended table item 298 is compatible with human rights because it promotes the protection of human rights.

 

Table item 538 - National Disability Data Asset

 

New table item 538 establishes legislative authority for government spending on the National Disability Data Asset (NDDA), which will deliver the next phase of a data asset linking Commonwealth and state and territory data to provide insights on the outcomes of people with disability and their pathways through services. The underlying infrastructure is designed to be scalable, so in future it can be used to host a range of integrated data assets across multiple service domains.

 

The original NDDA, established as a pilot in 2019 aimed to deliver an enduring NDDA, integrating datasets from multiple levels of government. The pilot, which concluded in December 2021, successfully tested a range of data linkage methodologies and delivered a final high-level blueprint for national data linkage infrastructure, and associated governance, based on the collective lessons.

 

The next phase of the NDDA will seek to overcome the existing problem of fragmented and poor-quality data relevant to understanding the outcomes of people with disability. The insights provided by the NDDA will enable policy development and investment decisions by governments to be based on better evidence. These insights will also inform Australian research efforts with timely and quality data, and provide people with disability better information to assist with decisions on seeking services.

 

The NDDA will be co-designed and co-governed with state and territory governments and the disability sector. Building on existing investment in Commonwealth and state and territory data linkage capability, it is anticipated over 200 datasets will eventually be linked, providing jurisdictions with access to data at an unprecedented level subject to strong privacy protection and ethical oversight.

 

Human rights implications

 

Table item 538 engages the following right:

• the right to statistics and data collection - Article 31 of the CRPD, read with
  Article 4;

 

Right to statistics and data collection

 

Article 4 of the CRPD requires States Parties to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the CRPD.

 

The NDDA promotes this obligation since the insights it will provide will enable policy development and investment decisions by the Australian government to be based on better evidence. Insights enabled through the NDDA will also inform Australian research efforts with timely and quality data, and provide people with disability better information to assist with decisions on seeking services.

 

Article 31 of the CRPD requires States Parties to collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the CRPD.

 

The NDDA brings together de-identified Australian Government data, NDIS data and service system data from states. The data collected can produce insights on the outcomes of people with disability and their pathways through services.

 

Conclusion

 

Table item 538 is compatible with human rights because it promotes the protection of human rights.

 

Table item 539 - Information, Linkages and Capacity Building

 

New table item 539 establishes legislative authority for government spending on the Information, Linkages and Capacity Building program (the ILC program), which will fund a diverse range of activities that enable people with a disability to overcome barriers to reach fuller participation in the community and support families and carers to assist them in this endeavour.

 

The ILC program commenced in 2016-17 and was administered by the National Disability Insurance Agency. During this period, spending was authorised under the National Disability Insurance Scheme Act 2013. The ILC program is currently under the administration of the department.

 

Legislative authority under the new table item 539 will allow for a more diverse range of funded activities that may include:

*         activities that support future policy development and implementation such as research and analysis, evaluation (of funded activities) and consultation with stakeholders, for example to refine needs identification and design appropriate policy responses;

*         capacity-building of organisations that are eligible to apply for and manage ILC grants so they achieve outcomes for people with disability; and

*         targeted assistance to particular disability categories, particular populations and/or in particular locations, or specific outcomes, such as contributing to people with disability being more independent or more employable.

 

Human rights implications

 

Table item xxx engages the following right:

• the right of people with disability - Articles 8, 9, 19, 20, 21, 24, 25 and 29 of the CRPD, read with Article 4.

 

Right of people with disability

 

Article 4 of the CRPD requires States Parties undertake to take steps to ensure and promote the full realisation of all human rights for those with a disability without discrimination.

 

Article 8 of the CRPD requires States Parties to adopt "immediate, effective and appropriate measures" to raise awareness of regarding people with disability, to foster respect for their rights, to combat discrimination and to promote awareness of capabilities and contributions of people with disability.

 

Article 9 of the CRPD enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure persons with disabilities can access, on an equal basis with others, to the physical environment, to transportation, to information and communications, and to other facilities, services and information in both urban and rural areas and providing for training for stakeholders on accessibility issues facing persons with disabilities.

 

ILC activities under the Individual Capacity Building stream have been funded that include workshops to build confidence to speak up in the community, educating people with disability on their legal rights, including young people at risk of engaging with the justice system, and online hubs for signing up to social activities and groups.

 

ILC activities under the National Information Program steam include the creation of national online spaces to house information for people and/or children with disability, their families and carers. The spaces hold a range of resources including fact sheets, webinars and podcasts covering such subjects as safe and accessible transport, work, study, sport, mental health, relationships and making informed choices.

 

Article 19 of the CRPD requires States Parties to recognise the equal right of persons with disabilities to live independently and in the community, and shall put into place measures to facilitate enjoyment of this right and inclusion.

 

ILC activities under the Individual Capacity Building stream seek to enable access to peer support, mentoring and other skills building for people with disability, their families and carers. Activities build the capacity of people with disability to participate in and contribute to the community.

 

Article 20 of the CRPD requires States Parties to ensure personal mobility for persons with disability.

 

ILC activities under the Economic and Community Participation stream focusses on improving pathways to employment and increasing participation by people with disability. Activities include improving accessibility to community and sporting activities for people with disability.

 

Article 21 of the CRPD states that persons with disability have a right to express themselves, including via accessible technologies and languages.

 

ILC activities under the Individual Capacity Building stream have been funded that include leadership courses to bridge skills gaps, workshops to build confidence to speak up in the community and supporting people with disability to use technology as a tool for self-advocacy.

 

Article 24(5) of the CRPD requires States Parties to ensure that persons with disabilities have access to general tertiary education, vocational training, adult education and lifelong learning without discrimination.

 

ILC activities under the Mainstream Capacity Building stream focus on improving the capacity of mainstream services to respond to and include people with disability, increasing accessibility and use of mainstream services. Activities have been funded that focus on developing 'soft' skills, career guidance, education to work transition and vocational training.

 

Article 25 of the CRPD requires States Parties to take all appropriate measures to ensure that people with disability can attain the highest possible standard of health. It requires States Parties to take all appropriate measures to ensure that health services offered to people with disabilities are of the same range, quality and standard offered to the general population, are tailored to their disability when necessary; are provided as close as possible to their own community and that they do not suffer discrimination on the basis of their disability in respect of treatment from health professionals and insurers.

 

ILC activities under the Mainstream Capacity Building stream focus on improving the capacity of mainstream services to respond to and include people with disability, increasing accessibility and use of mainstream services. Successful projects include training and multimedia resources to educate health professionals about disability to improve communication between people with disability and health providers.

 

Article 29 of the CRPD requires States Parties to guarantee that persons with disability have political rights and the opportunity to enjoy them on an equal basis with others.

 

ILC activities under the Individual Capacity Building stream have been funded that include workshops to build confidence to speak up in the community, educating people with disability on their rights, and online hubs for signing up to social activities and groups.

 

Conclusion

 

Table item 539 is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance