Details of the Financial Framework (Supplementary Powers) Amendment
(Social Services Measures No. 2) 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. 2) 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 - In the appropriate position in Part 4 of Schedule 1AB

 

This item adds a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on a certain activity administered by the Department of Social Services (the department).

 

New table item 550 establishes legislative authority for government spending on the Cashless Welfare Support Services - Jobs and Infrastructure program (the program) to support employment in Cashless Debit Card (CDC) sites by funding infrastructure projects, including the funding of equipment associated with these types of projects that will create jobs and training opportunities in those areas.

 

The program forms part of the Cashless Welfare Support Services program (targeting assistance towards participants on the CDC program), which supports individuals, families and communities in places where high levels of welfare dependence co-exist with high levels of social harm. Legislative authority for the Cashless Welfare Support Services program is currently provided under table item 510 in Part 4 of Schedule 1AB.

 

The CDC commenced on 1 February 2016 with the objective of ensuring that welfare payments are spent in responsible and meaningful ways, to reduce high levels of social harm. The expected outcomes of the CDC program are to reduce community harm, increase the level of employment and improve child health outcomes through responsible management of welfare recipients' spending.

 

The CDC currently operates in the regional areas of East Kimberley and Goldfields in Western Australia, Ceduna in South Australia, Bundaberg and Hervey Bay and the Cape York in Queensland, and the Northern Territory. The Government has allocated funds in each region where the trials are taking place to boost support services.

 

Under the Cashless Welfare Support Services program, the Government has worked collaboratively with local leaders and existing service providers to identify critical issues and support needs in the community. Funding (of $82 million in the 2020-21 Budget and $17.5 million in the 2019-20 Budget) has already been provided to deliver support services including drug and alcohol rehabilitation, mental health services, additional family support services, targeted youth activities, digital connectivity and financial counselling services.

 

Legislative authority under table item 550 is required to support grants funding infrastructure projects in CDC program areas, with the aim of providing jobs and training opportunities for CDC participants.

 

Proposed activities and projects would focus on employment and training opportunities through infrastructure projects including associated equipment specifically for CDC participants in remote CDC locations. This may include work in constructing certain infrastructure projects, purchase of equipment as well as projects that will ultimately construct facilities to provide further employment or training opportunities for CDC participants. For example, a proposal for a community arts centre would provide work opportunities in constructing the centre. Once operating, the centre could provide administrative, tourism, technical, maintenance, education, gardening and marketing jobs for CDC participants, as well as opportunities for CDC participants to educate, display and sell their artwork. It is envisaged that initiatives could range from $5,000 to $5 million each over the two years, depending on size, scope and participant numbers of each initiative.

 

Funding will be provided through open competitive and one off, ad-hoc grants opportunities to external organisations made in accordance with the Commonwealth Resource Management Framework (RMF), including the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). 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 Senior Executive Service (SES) officers and will have appropriate skills, qualifications and experience, with a strong understanding of the objectives of the program and the relevant legislation.

 

Eligible funding recipients will be required to nominate projects they intend to spend the grant money on in a work schedule, which will need to be approved before funding is provided. Approval will be based on whether the work schedule complies with the requirements set out in the grant agreement and the grant opportunity guidelines. The department will set up a Selection Advisory Panel (SAP) that will provide strategic oversight, advice and recommendations to the decision maker under the FF(SP) Act, who will be responsible for approving the grant expenditure.

 

The SAP will be made up of departmental officers who manage the stakeholder engagement, delivery, research, analysis and subsequent policy development for the program as well as officials from other government agencies such as the National Indigenous Australians Agency, the Department of Education, Skills and Employment and the Department of Infrastructure, Transport, Regional Development and Communications. Where possible, representatives and experts from CDC communities may also sit on an Advisory Group to provide relevant information to the SAP.

 

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 the grant opportunity guidelines and produce grant round specific documentation.

 

The grant opportunity guidelines will also 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. The department's Community Grants Hub will administer the grants. Grants awarded will be published on GrantConnect within 21 days of a grant agreement taking effect.

 

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 apply to all aspects of the department's resource management, including grants administration. Grants administration is undertaken proportionately to the risks identified and outcomes sought, ensuring that it is consistent with the RMF and the CGRGs.

 

Funding decisions made in connection with the program are not considered suitable for independent merits review, as they are decisions relating to the allocation of a finite resources, from which all potential claims for a share of the resources 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 has been in consultation with stakeholders from the CDC regions on the implementation of cashless welfare support services since the 2021-22 Budget was announced in May 2021 and $82 million was allocated for the Cashless Welfare Economic and Employment Support Services Package. CDC support services are place-based and community-led, with local leaders and existing service providers involved in identifying critical issues and support needs in the community. Stakeholders, including Indigenous experts, local community leaders and Empowered Communities, have welcomed the opportunity to ensure there is a cohesive and coordinated approach to the design, selection and delivery of initiatives. Consultation will be ongoing, including with employment organisations, until the conclusion of the program and will inform which grants are approved.

 

Due to the COVID-19 pandemic, the department is complying with the Australian Government's public health recommendations to reduce travel. The department will continue to consult with CDC sites on the expenditure and rollout of programs via virtual conferencing where required.

 

Funding for the program of approximately $22 million over two years from 2022-23 will come from the existing Jobs Fund and job ready initiative (part of the Cashless Welfare Support Services program) and the Northern Territory and Cape York support package.

 

Funding for this item will come from Component 12 (Income Management Balancing Appropriation) of Program 2.1 Families and Communities: Cashless Welfare Support Services - Jobs and Infrastructure program], which is part of Outcome 2. Details are set out in the Portfolio Additional Estimates Statements 2021-22, Social Services Portfolio at page 71.

 

Noting that it is not a comprehensive statement of the relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

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

*         the territories power (section 122).

 

External Affairs

 

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.

 

Australia has international obligations relating to the 'right to health' under the International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR). In particular:

• Article 2 requires States Parties to take steps with a view to achieving progressively the full realization of the rights recognized in the ICESCR by all appropriate means, including particularly the adoption of legislative measures.
• Article 6(1) states that States Parties 'recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right'. Article 6(2) states that the steps taken to achieve full realisation of this right 'shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual'.

 

This program will create training and employment opportunities through infrastructure initiatives for CDC participants, thereby supporting their right to work under the ICESCR.

 

Australia has obligations under International Labour Organization's Convention concerning Employment Policy (ILO Convention 122). In particular:

• Article 1 states that 'with a view to stimulating economic growth and development, raising levels of living, meeting manpower requirements and overcoming unemployment and underemployment, each Member shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment'; and
• Article 2 states that each Member 'shall, by such methods and to such extent as may be appropriate under national conditions - (a) decide on and keep under review within the framework of a coordinated economic and social policy, the measures to be adopted for attaining the objectives specified in Article 1; (b) take such steps as may be needed including when appropriate the establishment of programmes, for the application of these measures'.

 

This program will fund infrastructure initiatives that create training and employment opportunities to assist CDC participants who are either unemployed or underemployed to obtain skills and employment.

 

Territories Power

 

Section 122 of the Constitution empowers the Parliament to 'make laws for the government of any territory'.

 

This program will also fund projects in the Northern Territory.

 

 

 

 

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. 2) 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. 2) Regulations 2022 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on the Cashless Welfare Support Services - Jobs and Infrastructure program (the program) to support employment in Cashless Debit Card (CDC) sites by funding infrastructure projects, including the funding of equipment associated with these types of projects that will create jobs and training opportunities in those areas. The program is administered by the Department of Social Services.

 

The program forms part of the Cashless Welfare Support Services program (targeting assistance towards participants on the CDC program), which supports individuals, families and communities in places where high levels of welfare dependence co-exist with high levels of social harm.

 

The CDC commenced on 1 February 2016 with the objective of ensuring that welfare payments are spent in responsible and meaningful ways, to reduce high levels of social harm. The expected outcomes of the CDC program are to reduce community harm, increase the level of employment and improve child health outcomes through responsible management of welfare recipients' spending.

 

The CDC currently operates in the regional areas of East Kimberley and Goldfields in Western Australia, Ceduna in South Australia, Bundaberg and Hervey Bay and the Cape York in Queensland, and the Northern Territory. The Government has allocated funds in each region where the trials are taking place to boost support services.

 

Legislative authority under table item 550 is required to support grants funding for infrastructure projects in CDC program areas, with the aim of providing jobs and training opportunities for CDC participants. Proposed activities/projects should focus on employment and training opportunities specifically for CDC participants in all CDC locations.

 

Human rights implications

 

This disallowable legislative instrument engages the following right:

*         the right to work - Articles 6, 7 and 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2 and Article 1 of the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122).

 

Right to work

 

Article 2 of the ICESCR requires that each State Party to the Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, 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, including particularly the adoption of legislative measures.

 

Article 6 of the ICESCR provides that the States Parties recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

 

The steps to be taken by a State Party to achieve the full realisation of this right shall include technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedom to the individual.

 

Article 7 of the ICESCR provides that the States Parties recognise the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular:

(a)        remuneration which provides all workers, as a minimum, with:

(i)                 fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii)               a decent living for themselves and their families in accordance with the provisions of the Covenant;

(b)        safe and healthy working conditions;

(c)        equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; and

(d)       rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

 

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

 

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'.

 

This program will promote the right to work by providing opportunities for employment in CDC communities, including 'on the job' training to give CDC participants skills and capacity to enable them to find further employment.

 

Conclusion

 

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

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance