Details of the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 3) Regulations 2017

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 3) Regulations 2017.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after registration on the Federal Register of Legislation. 

 

Section 3 - Authority

 

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

 

Section 4 - Schedules

 

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

 

Schedule 1 - Amendments

 

Item 1 - 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 administered by the Department of Social Services.

 

New table item 234 establishes legislative authority for government spending on the Employer-Nominated Initiatives program under the New Disability Employment Framework.

 

The New Disability Employment Framework, which will commence when the current arrangements expire in June 2018, is an improved model of the Disability Employment Services program.  The program provides specialist employment assistance to help people with disability, injury or health condition find and retain sustainable employment in the open labour market.   

 

The Employer-Nominated Initiatives program is part of the Building Employer Demand package, which aims to engage with employers on the employment of people with disability; create more employer demand for people with disability; increase placements of people with disability into employment more broadly; and promote and support good practice in employing people with disability across the community.

 

The program aims to encourage employers to consider including people with disability in their workplace, dismantling negative stereotypes, and building awareness in the workplace of the merits of employment of people with disability and the government support available to do so.

 

The Employer-Nominated Initiatives will be a grants-based program, where employers will be eligible for funding to assist in removing barriers in employing people with disability, and to support embedding improved recruitment and engagement practices in disability employment.  Employers will need to outline how the funding will be utilised, how it will lead to employment opportunities for people with disability, and how the proposed initiative may be replicable by other employers. 

 

Funding will be allocated to employers, who demonstrate an ability and willingness to employ people with disability, for initiatives such as developing proactive disability employment strategies, increasing employer demand and developing the business case for employing people with disability, supporting staff with disability awareness training, or for the promotion of employment of people with disability in the wider workforce.  It is anticipated that the program will be open for a competitive grants round early in 2017-18.

 

Funding of $3 million for the Employer-Nominated Initiatives was included in the 2016-17 Mid-Year Economic and Fiscal Outlook under the measure 'Disability Employment Services - increasing employment projects' for a period of two years commencing in 2016-17.  Details are set out in the Mid-Year Economic and Fiscal Outlook 2016-17, Appendix A: Policy decisions taken since the 2016 PEFO at page 191.

 

The Department of Social Services will manage the grants through its Community Grants Hub.  Advice and information about how to apply for a grant, along with the guidelines, frequently asked questions and the selection criteria, will be published at www.dss.gov.au. 

Assessment of applications will be against nominated and advertised selection criteria.  Employers applying for funding will be able to review the selection criteria before submitting the proposal for funding.

 

The assessment process will be undertaken by departmental staff and additional assessment staff contracted by the department as required.  Probity advice and oversight will be provided by the Australian Government Solicitor.  The Group Manager for Disability, Employment and Carers will be the delegate of the Secretary of the Department of Social Services for approving grants under the Employer-Nominated Initiatives program.

 

There will not be set amounts for individual grants.  Employers will apply for funding based on their organisational requirements, provide a project plan outline and respond to selection criteria.  The department will publish the outcomes of the grant process and provide updates on the projects as they progress at www.dss.gov.au.  Feedback will be made available to all applicants under the Employer-Nominated Initiatives program. 

 

There will not be a formal merits review process for grant decisions made under the Employer-Nominated Initiatives program.  The transparency of the decision-making process will ensure that decisions on grants are made in accordance with probity.  Decisions will also be made in accordance with the applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines.  The guaranteed right of review under section 75(v) of the Australian Constitution, and review under section 39B of the Judiciary Act 1903, would still be available.  Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

 

Grant funding decisions made in connection with the Employer-Nominated Initiatives program are not suitable for independent merits review.  Since there will be limited funds available for the program, only some applications may receive funding.  The re-making of a decision under merits review may affect funding provided to other applicants and may result in delays in the funding of the disability employment projects.

 

Funding for the Employer-Nominated Initiatives will come from Sub-program 3.1.3: Disability Employment, which is part of Program 3.1: Disability Mental Health and Carers under Outcome 3.  Details are set out in the Portfolio Budget Statements 2017-18, Budget Related Paper No. 1.15, Social Services Portfolio at page 77.

 

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.

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'.  The external affairs power supports legislation implementing treaties to which Australia is a party.  Australia has treaty obligations regarding the rights of people with disabilities, including under Article 27 of the Convention on the Rights of Persons with Disabilities.  Article 27 requires States Parties to take appropriate steps to promote employment opportunities and career advancement for persons with disabilities in the labour market, and the employment of persons with disabilities in the private sector.

 

Under the Employer-Nominated Initiatives program, funding will be provided to encourage employers to develop, trial and share improved practices relating to the employment of persons with disabilities.

 

New table item 235 establishes legislative authority for government spending on the targeted communications campaign under the New Disability Employment Framework.

 

The targeted communications campaign, which is part of the Building Employer Demand package, aims to engage with employers to raise the profile of disability employment, address misconceptions and biases of Australian employers about employing people with disability, and promote the government support available to employers.  The campaign proposes to target employers; however, further research will refine this target audience.

 

The communications activities may include development of campaign materials, education/training resources and training programs.  The outcomes of these activities will be promoted through JobAccess, the national hub for workplace and employment information for people with disability, employers and service providers, and other advertising media.  Employers will be consulted in the development of resources and promotional materials.  The specifics of the communications mechanism will be finalised following consultations with the sector on the best way to engage employers.  The communications activities are expected to commence early in 2017-18.

 

Funding of $4 million for the targeted communications campaign was included in the 2016-17 Mid-Year Economic and Fiscal Outlook under the measure 'Disability Employment Services - increasing employment projects' for a period of two years commencing in 2016-17.  Details are set out in the Mid-Year Economic and Fiscal Outlook 2016-17, Appendix A: Policy decisions taken since the 2016 PEFO at page 191.

 

The Department of Social Services will be responsible for the implementation of the targeted communications campaign.  Third-party service providers may be engaged through existing panel arrangements for the development of discrete employer engagement elements of the campaign.  The Employment Reform Working Group of the National Disability Carers and Advisory Council will also be consulted to ensure that views of employers are represented. 

 

Any engagement of third-party providers for the development of activities and resources under the targeted communications campaign will be undertaken through the department's existing procurement panel arrangements, or where appropriate, an open procurement process.  All responses received from potential suppliers will be assessed by departmental representatives.  Final decisions will be made by a delegate of the Secretary of the Department of Social Services.  Information about procurement opportunities and decisions will be published on the AusTender website at www.tenders.gov.au.

 

Decisions made in connection with the targeted communications campaign will not be subject to merits review arrangements as they will relate to procurement activities to be conducted in accordance with the Commonwealth Procurement Rules.  Suppliers will be selected on the basis of technical expertise, capability and value for money.

 

Funding for the targeted communications campaign will come from Sub-program 3.1.3: Disability Employment, which is part of Program 3.1: Disability Mental Health and Carers under Outcome 3.  Details are set out in the Portfolio Budget Statements 2017-18, Budget Related Paper No. 1.15, Social Services Portfolio at page 77.

 

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.

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'.  The external affairs power supports legislation implementing treaties to which Australia is a party.  Australia has treaty obligations regarding the rights of people with disabilities, including under Article 27 of the Convention on the Rights of Persons with Disabilities.  Article 27 requires States Parties to take appropriate steps to promote employment opportunities and career advancement for persons with disabilities in the labour market, and the employment of persons with disabilities in the private sector.

 

Under the targeted communications campaign, funding will be provided to encourage public and private sector employers to adopt policies likely to improve employment outcomes for persons with disabilities.

 

New table item 236 establishes legislative authority for government spending on the Boosting the Local Care Workforce program.

 

The program is a 2016 election commitment which will support the delivery of government disability initiatives and aged care services, including the rollout of the National Disability Insurance Scheme (NDIS).  It will target workforce requirements in regions that are poised for particular workforce growth as a result of the NDIS rollout.  There will be a focus on creating job opportunities for people within local communities, particularly in regional, rural and outer suburban areas.  The program will assist in linking job seekers to local disability and aged care sector employers who will provide on-the-job training, support and coaching.  

 

The program will help service providers build their business skills so that they have the capacity to operate effectively in the disability and aged care service sectors, and grow their workforce as demand for workers in both sectors continues to grow.  It will help employers increase the supply of care workers to meet the needs of the NDIS participants and aged care clients.  With a broad focus on the care workforce, the program will ensure a coordinated approach between the two sectors so that neither sector is competing with the other for similar workers. 

 

The program has three elements:

*         the Care Workforce Regional Coordinator Initiative;

*         the Specialist Coordinator Initiative; and

*         the Sector Transition and Employer Support Initiative. 

 

The program will also contribute to the development of an evidence base to identify where staffing gaps are evident and to inform workforce and market support activities.  A lead organisation will be engaged to deliver the program nationally, with support activities expected to be delivered over two years commencing in late 2017.  An independent evaluation will be used to determine the program effectiveness.

 

Under the Care Workforce Regional Coordinator Initiative, a group of up to 25 skilled Care Workforce Regional Coordinators will be engaged by the lead organisation to work in selected Australian locations.  The Regional Coordinators will operate in regions for a period of up to two years to work with existing local disability and aged care service providers and businesses entering the disability market in order to help them adapt to the demands of an open, consumer-driven market.

 

The Regional Coordinators will boost the workforce by supporting disability and aged care service providers to improve their workforce planning, modelling and development capability, including recruitment models.  They will also establish links with the Department of Employment's Employer Liaison Officers, jobactive and the Disability Employment Services providers, the National Disability Insurance Agency and disability and aged care service providers/employers or service outlets in each target region.  These links will help prepare and screen suitable job seekers and then provide those job seekers with on-the-job skills and training, buddying/mentoring, support and coaching. 

 

The Employer Liaison Officers are located in the Department of Employment's state and territory regional offices around the country as part of the Employer Mobilisation Strategy.  They engage stakeholders at a local level to generate opportunities for job seekers. 

 

A network of jobactive providers operates across 1,700 locations in Australia to provide employment services to employers and job seekers.  Employers can get help from jobactive providers to source and recruit employees who meet their business needs.  Job seekers can get help from jobactive providers to find and keep a job.  Jobactive providers work closely with employers to understand their recruitment needs and tailor their services to ensure employers get the help they need to find staff.

 

The Disability Employment Services program provides eligible job seekers, who have a disability, injury or health condition, with access to individually tailored employment services suited to their needs.  These services also have strong links to training and skills development.

 

Funding of over $9.1 million has been allocated to the Care Workforce Regional Coordinator Initiative expected to be delivered over two years commencing in late 2017.  Some administration costs will be shared with the Specialist Coordinator Initiative.

 

Under the Specialist Coordinator Initiative, a group of up to 10 nationally focused Specialist Coordinators will be engaged by the selected lead organisation.  The Specialist Coordinators will operate for a period of up to two years to assess and respond to changes in the disability and aged care sectors.  The Coordinators will work with key industry stakeholders to identify and analyse risks, including observing consumer demand versus provider supply and identifying gaps in the market, before making recommendations to the Department of Social Services.  Some priority areas that the Specialist Coordinators will focus on include, but are not limited to participants with high support needs; specialist disability accommodation providers; supporting market development in remote areas; and encouraging more Indigenous-owned organisations to register as NDIS providers.  The Specialist Coordinators and the Regional Coordinators will be engaged by the same organisation for continuity.  Both coordinator groups will work closely together. 

 

Funding of close to $4.1 million has been allocated to the Specialist Coordinator Initiative expected to be delivered over two years commencing in late 2017.  Some administration costs will be shared with the Care Workforce Regional Coordinator Initiative.

 

Under the Sector Transition and Employer Support Initiative, small and medium-sized, existing or new disability service providers will be able to access business assistance, including grants of up to $10,000 for tailored business advice, to adapt their business models to the individualised funding environment of the NDIS.  A range of providers can access this assistance if they meet the grant funding criteria, including aged care service providers that also provide services under the NDIS.  

 

The lead organisation will identify potential eligible providers through outreach activities and workshops.  Some providers may be identified based on the knowledge and information received through the Care Workforce Regional Coordinator Initiative and the Specialist Coordinator Initiative, as well as referrals from the Employer Liaison Officers.  Providers will also be able to nominate themselves to receive assistance.

 

Disability service providers who wish to access grant funding will need to assess their NDIS readiness using an online readiness tool to identify gaps in their current business model and generate an individual NDIS Readiness Action Plan.  The lead organisation will assess their eligibility based on this information.  Those providers, who have been assessed as eligible and who have an agreed action plan with the lead organisation, will be able to seek grant funding for the type of assistance outlined in their action plans.  Grants will be contingent on the provider completing the NDIS Readiness Action Plan.  The amount of each grant will be determined by the lead organisation based on written advice from the Department of Social Services and the level of need identified in the NDIS Readiness Action Plan. 

 

Up to 720 individual disability service providers each year will benefit from business advice and grants for professional business assistance to be provided either by the lead organisation or another organisation.  The types of assistance for which grant funding may be used include, but are not limited to, business modelling; financial management; coaching or mentoring services; communications and marketing; office administration and bookkeeping; IT equipment; and other services and equipment.

 

Funding of around $19.8 million has been allocated to the Sector Transition and Employer Support Initiative expected to be delivered over two years commencing in late 2017.

 

Total funding of $33 million for the Boosting the Local Care Workforce program was included in the 2017-18 Budget under the measure 'Boosting the Local Care Workforce' for a period of three years commencing in 2017-18.  Details are set out in Budget 2017-18, Budget Measures, Budget Paper No. 2 2017-18 at page 145.

On 7 June 2016, the Minister for Social Services, the Hon Christian Porter MP, announced funding to support the disability services sector's transition to the NDIS (https://www.liberal.org.au/latest-news/2016/06/07/supporting-jobs-and-growth-through-ndis).

 

A restricted selection grant process will be undertaken to select a single lead organisation to implement and manage all three initiatives under the program.  The Department of Social Services, in consultation with the Department of Health and the Department of Employment, will conduct a selection process with clear deliverables, reporting requirements, selection criteria and a requirement for the selected organisation to demonstrate the necessary business skills and sector transition expertise, as well as the ability to quickly develop an understanding of the care workforce market. 

 

The selection documentation will be published on the department's Community Grants Hub website at www.communitygrants.gov.au.  The Deputy Secretary, Disability and Carers Stream, the delegate of the Secretary of the Department of Social Services, will approve the selection of the lead organisation.  Information about the successful lead organisation will be published at www.dss.gov.au/grants/grants-funding, in line with the reporting requirements outlined in the Commonwealth Grants Rules and Guidelines.

 

The selected lead organisation will then engage the Regional Coordinators, the Specialist Coordinators and provide grants to providers under the Sector Transition and Employer Support Initiative.  The selection criteria to appoint the coordinators will be determined by the department.  The criteria for decisions about which providers receive grants will be outlined in the grant funding agreement between the department and the lead organisation.

 

The NDIS Programme Transition guidelines, available at www.dss.gov.au/sites/default/files/ndis_programme_guideline_0.pdf, will apply to the program.  These guidelines provide a starting point for parties considering whether to apply for funding and are the basis for a business relationship between the department and funding recipients.

 

The eligibility criteria and the process for nominations to receive support and grants under the Sector Transition and Employer Support Initiative will be published on the department's website at www.communitygrants.gov.au.

 

While there will be no formal merits review process, grant decisions will be made in accordance with probity and the Commonwealth Grants Rules and Guidelines.  Unsuccessful applicants can request feedback from the department.

 

The selected lead organisation will be required to comply with the requirements of the Public Governance, Performance and Accountability Act 2013.  The department will also require the lead organisation to maintain a complaints resolution function.  The guaranteed right of review under section 75(v) of the Australian Constitution, and review under section 39B of the Judiciary Act 1903, would still be available.  Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

 

Decisions on grants to disability service providers are not suitable for independent merits review.  Since there will be limited funds available for the program, only some providers will receive funding.  The re-making of a decision under merits review may affect funding provided to other providers and cause delays in finalising funding decisions for other providers, which would affect the timely provision of support to disability service providers.

 

Funding for this item will come from Program 3.2: National Disability Insurance Scheme, which is part of Outcome 3.  Details are set out in the Portfolio Budget Statements 2017-18, Budget Related Paper No. 1.15, Social Services Portfolio at page 24.

 

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 social welfare power (section 51(xxiiiA)); and

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

 

Social welfare power

 

Section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of various social welfare services and benefits.

 

Under the program, funding will be provided to:

*         improve the immediate service delivery capacity of disability and aged care service providers by expanding their workforces;

*         link local job seekers with employers in the disability and aged care service sectors; and

*         assist service providers to prepare to provide services under the NDIS.

 

External affairs power

 

Under section 51(xxix) of the Constitution, the Commonwealth has power to legislate with respect to 'external affairs'.  The external affairs power supports legislation implementing treaties to which Australia is a party.

 

Australia has obligations regarding the right to health under Articles 2 and 12 of the International Covenant on Economic, Social and Cultural Rights.  In particular, amongst other things Australia is required to create conditions which would assure to all medical service and medical attention in the event of sickness.

 

The program will promote the expansion and training of the workforce in the aged care service sector.  A larger and more skilled care workforce will help ensure that aged care recipients receive the medical attention they need.

 

Australia also has obligations under the Convention on the Rights of Persons with Disabilities (CRPD), including under:

 

*         Article 4, which requires States Parties to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.  In particular, amongst other things, Australia is required to promote the training of professionals and staff working with persons with disabilities in the rights recognised in the CRPD, so as to better provide the assistance and services guaranteed by those rights.  Australia is also required to provide accessible information to people with disabilities about forms of assistance.

 

*         Article 19, which requires States Parties to recognize the rights of all persons with disabilities to live in the community, with choices equal to others and, amongst other things, to ensure that persons with disabilities have access to a range of community support services.

 

*         Article 20, which requires States Parties to take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities.

 

*         Article 25, which, amongst other things, requires States Parties to provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons. 

 

*         Article 26, which requires States Parties to take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.  Amongst other things, this requires States Parties to strengthen and extend comprehensive habilitation and rehabilitation services and programmes. 

 

*         Article 27, which amongst other things, requires States Parties to take appropriate steps to promote opportunities for self-employment and employment for persons with disabilities, and assistance in maintaining and returning to employment.

 

The NDIS assists persons with disabilities to exercise choice and control in:

*         the planning and delivery of their supports (in the home and in the community);

*         access to, and receipt of, health services; and

*         the pursuit of their personal and work-related goals.

 

The program will promote, through the Specialist and Regional Coordinators, the expansion and training of the workforce to implement the NDIS.  Funding will also be provided to assist disability service providers to develop and implement NDIS Readiness Action Plans, to enable them to effectively transition to the NDIS.

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. 3) Regulations 2017

 

These Regulations are 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 FF(SP) Act applies to 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 Regulations amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on a number of initiatives in the Social Services portfolio that arise from decisions in the 2017-18 Budget which was released on 9 May 2017 and the 2016-17 Mid-Year Economic and Fiscal Outlook which was released on 19 December 2016.  The initiatives will be administered by the Department of Social Services.

 

Funding will be provided for:

*         the Employer-Nominated Initiatives grant program to encourage employers to consider including people with disability in their workplace, dismantling negative stereotypes, and building awareness in the workplace of the merits of employment of people with disability and the government support available to do so;

*         the Building Employer Demand targeted communications campaign to engage with employers to raise the profile of disability employment, address misconceptions and biases of Australian employers about employing people with disability, and promote the government support available to employers; and

*         the Boosting the Local Care Workforce program to help service providers build their business skills so they have the capacity to operate effectively in the disability and aged care service sectors, and grow their workforce as demand for workers in both sectors continues to grow.

 

The Boosting the Local Care Workforce program is a 2016 election commitment.

 

The Minister for Social Services has portfolio responsibility for these matters.

 

Human rights implications

 

The Regulations do not engage any of the applicable rights or freedoms.

 

Conclusion

 

These Regulations are compatible with human rights as they do not raise any human rights issues.

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance