Details of the Financial Framework (Supplementary Powers) Amendment

(Social Services Measures No. 3) 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. 3) Regulations 2022.

 

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

 

Financial Framework (Supplementary Powers) Regulations 1997

 

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

 

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

 

New table item 559 establishes legislative authority for government spending on the Australia's Disability Strategy 2021-2031 (the Strategy), which aims to drive the action needed to improve mainstream services for the 4.4 million Australians with disability and create a more inclusive Australian society.

 

The Strategy (https://www.disabilitygateway.gov.au/document/3106) is Australia's national disability policy framework. It sets out a plan for continuing to improve the lives of people with disability in Australia over the next ten years. The Strategy's vision is for an inclusive society that ensures people with disability can fulfil their potential, as equal members of the community.

 

The purpose of the Strategy is to:

*         provide national leadership towards greater inclusion of people with disability;

*         guide activity across all areas of public policy to be inclusive and responsive to people with disability;

*         drive mainstream services and systems to improve outcomes for people with disability; and

*         engage, inform and involve the whole community in achieving a more inclusive society.

 

The Government will drive the implementation of the Strategy through the following streams of work:

 

Initial elements

 

These elements are commitments included in the Strategy required to drive implementation. The elements include: Targeted Action Plans (TAPs); the Strategy's Engagement Plan to better engage the disability community on implementation; and measures to improve accountability, which includes the Strategy's Outcomes Framework.

 

TAPs are a key feature of the Strategy that apply an intensive focus over one to three years to achieve specific deliverables that improve outcomes for people with disability. The first five are:

*         Community Attitudes TAP, which promotes awareness and inclusion of people with disability;

*         Employment TAP, which helps increase employment for people with disability and support young people with disability transitioning from education to employment;

*         Early Childhood TAP, which boosts services and support for parents to strengthen pathways for early detection of disability or developmental concerns in young children;

*         Safety TAP, which strengthen service systems to ensure these systems are accessible and designed to support and protect people with disability who are at risk of harm; and

*         Emergency Management TAP, which ensures disaster/emergency planning processes and management are inclusive of people with disability.

 

The Engagement Plan is also a key feature of the Strategy and will ensure people with disability are engaged over the life of the Strategy to inform its implementation, monitoring and reporting, and the future direction of policy.

 

The Engagement Plan includes:

• the Australia's Disability Strategy Advisory Council (the Advisory Council), which provides advice to Australian, state, territory and local governments, and to disability ministers on implementing and monitoring the Strategy;
• the Strategy's public forums and consultations, one of which will be held every year from 2022 to 2031 on a rotating basis;
• a commitment to involve people with disability and organisations such as the Australian Human Rights Commission, Disabled People's Organisations and Disability Representative Organisations in designing and delivering the public forums and consultations; and
• the development of Good Practice Guidelines for the Engagement of People with Disability.

 

The Strategy's Outcome Framework, aims to meet reporting and measurement commitments under the Strategy. The Outcomes Framework will measure, track and report on outcomes for people with disability. This includes measuring key systems such as employment, housing, safety and justice, transport and education. It also tracks the changes in outcomes happening over time for people with disability. The annual Outcomes Framework reports and dashboard (an interactive online reporting tool) show what progress is being made against each policy priority in the Strategy.

 

National Disability Information Gateway

 

The Gateway connects people with disability, their families and carers to information and services. The full service was released on 27 January 2021 and consists of a website, a dedicated 1800 number, a Facebook presence and specialised service finders. The Gateway provides a single entry point for access to services and support that are often fragmented. The Gateway ensures people with disability, their families, and carers can navigate and find the services they need outside of the National Disability Insurance Scheme.

 

Individual Disability Advocacy Reform

 

The Reform implements two disability advocacy initiatives - the Disability Advocacy Support Hotline (DASH) and the National Centre for Advocacy (NCA). This supports a key purpose of the Strategy to drive mainstream services and systems to improve outcomes for people with disability. It will do this by supporting advocates to improve their service offer and increasing access to advocacy through a pilot telephone advocacy service.

 

The DASH will work in partnership with existing disability advocacy providers to increase the reach and access to advocacy supports in a way which suits the needs and preferences of people with disability. There is large unmet demand for individual advocacy support to help people with disability access and obtain what they need from services. The DASH will help address and understand this unmet demand.

 

The DASH will be operated by Advocacy Law Alliance, an existing advocacy provider, and involve telephone advocacy for persons with disabilities. To access the service, individuals will use the Disability Gateway telephone line. The DASH will triage and support clients depending on their needs, with less complex cases managed on the phone, and more complex changes referred to receive face to face supports from an advocacy provider.

 

The NCA will be delivered by Disability Advocacy Network Australia. The NCA will support disability advocacy providers to develop the workforce, identify and enable best practice service models, and manage and report on demand. This is expected to improve the access to, and quality of, services provided by government funded individual advocates.

 

The NCA will also identify and elevate systemic issues which people with disability are experiencing with mainstream systems. This will inform how the Government designs and delivers advocacy services.

 

National Disability Research Partnership (NDRP)

 

Once established, the NDRP will be an independent entity that will implement a collaborative and inclusive national disability research agenda through partnerships between academics, people with disability, their families and carers, peak advocacy groups, governments and service providers. The NDRP's research agenda will be aligned with the Strategy's seven Outcome Areas and will facilitate co-designed research to build a deeper understanding of why particular outcomes are being achieved or not.

 

The NDRP will take a leading role in the translation of disability research into policy and practice and enhance the research capacity of the disability sector. The NDRP will translate evidence into usable research outputs that can support the Strategy and increase research outcomes that are of use to policy and decision makers, to help enable people with disability to participate fully in society.

 

The department will deliver the package through a mix of funding arrangements, including grants and procurements in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Commonwealth Grants Rules and Guidelines 2017 (CGRGs) and the Commonwealth Procurement Rules (CPRs).

 

A range of grant approaches will be used to advance the Strategy including open competitive and restricted competitive. Across the package, there will be approximately 20 grants issued. The department will provide grants to organisations and businesses to carry out various components, including for a number of actions under each TAP. Grants decisions will be made in accordance with the CGRGs. Information about the grant programs, including grant opportunity guidelines (except for one-off or ad hoc grants) and all grants awarded, will be made available on the GrantConnect website (www.grants.gov.au), and the grants will be administered by the Community Grants Hub, which is part of the department.

 

A delegate of the Secretary of the department (the Deputy Secretary of Disability and Carers who oversees these elements of the Strategy), acting under the Financial Framework (Supplementary Powers) Act 1997 (FF(SP) Act), will be responsible for approving Commonwealth funding provided to grant recipients.

 

In accordance with the CGRGs, the basis for recommending or rejecting applications for funding should be set out in assessment material and should reflect the particular merits of each grant activity in terms of the grant opportunity guidelines (including assessment against the selection criteria). The department will exercise best practice by providing this information to any delegate, exercising the role of a grants approver. Advice will include to:

*         explicitly state that the spending proposal being considered for approval is a 'grant';

*         provide information on the applicable requirements of the PGPA Act, the Public Governance, Performance and Accountability Rule 2014 and the CGRGs (particularly any ministerial reporting obligations), including the legal authority for the grant;

*         outline the application and selection process followed, including the selection criteria, that were used to select potential grantees; and

*         include the merits of the proposed grant or grants relative to the grant opportunity guidelines and the key principle of achieving value with relevant money.

 

The department will also procure services through open tender and closed tenders. This includes contracts for a communication campaign and development of resources for qualifications/professional development under the Community Attitudes TAP, and two contracts for developing emergency management resources under the Emergency Management TAP. Up to five procurements will be undertaken for material development and consultation under the Engagement Plan, Australia's Disability Strategy Survey will be procured in relation to the Outcomes Framework, and Funding for a fully established NDRP is intended to be through a grant directly to an independent entity.

 

Procurement decisions will be made in accordance with 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.

 

In accordance with the department's Financial Delegation procedures, the Secretary, as the accountable authority can delegate powers and functions to department officials as required.

Delegates for funding decisions on grants and procurements will be Senior Executive Service (SES) officers from the relevant parts of the department, who will have appropriate skills, qualifications and experience, with a strong understanding of the NDRP and the Strategy as a whole. Departmental officers (APS and EL level) who manage the stakeholder engagement, research, analysis and subsequent policy development for the package 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 apply to all aspects of the department's resource management, including grants administration and procurement. Administration of grants and procurement is undertaken proportionately to the risks identified and outcomes sought, ensuring that it is consistent with the CPRs and the CGRGs.

 

Merits review of decisions made in connection with the Strategy would not be considered appropriate because these decisions relate to the provision of one-off payments to selected providers, over other providers. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.16 to 4.19 of the guide, What decisions should be subject to merit review?).

 

The right to review under section 75(v) of the Constitution and review under section 39B of the Judiciary Act 1903 may be available. Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

 

The Strategy was shaped by extensive consultations implemented in two stages across three years from 2018 to 2020 and reached more than 3,000 people with disability, families, carers and representatives. Stage 1 consultations, held in 2019 informed the National Disability Strategy Position Paper (Position Paper), which proposed the core features of the Strategy. Stage 2 consultations, held in the second half of 2020 provided board support for the proposals outlined in the Position Paper including:

*         the establishment of an Outcomes Framework; and

*         an increased focus on improving community attitudes, Targeted Action Plans, and stronger engagement of people with disability in implementation. 

 

The consultation process was a key factor in ensuring people with disability had a say on a forward plan for issues that affect them. The Strategy consultation process is available at https://www.dss.gov.au/how-we-consulted-on-the-development-of-australias-disability-strategy-2021-2031.

 

The Strategy was also developed with state, territory and local governments, and drew from a range of reviews and inquiries including the Senate Inquiry into the delivery of outcomes under the National Disability Strategy and the Productivity Commission Review into the National Disability Agreement.

 

The Strategy represents all Australians with disability including Aboriginal and Torres Strait Islanders with disability, people in regional and remote Australia, and people with intellectual disability among many other groups. It includes the voices of people with disability and has a stronger policy focus on housing, safety, employment and community attitudes and on intersectionality and diversity.

 

Funding for the Strategy was provided in the 2021-22 Mid-Year Economic and Fiscal Outlook comprising of $120.3 million over four years from 2021-22 and $151.9 million from 2025-26 to 2031-32 ($11.7 million per year ongoing) to support the delivery and implementation of the Strategy.

 

Additional funding of $2.5 million over three years from 2022-23 is provided in the October 2022-23 Budget to support the work of the National Disability Research Partnership. Funding for the item will come from Program 3.1: Disability and Carers, which is part of Outcome 3. Details are set out in the October 2022-23 Budget and Portfolio Budget Statements, Social Services portfolio.

 

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.

 

Convention on the Rights of Persons with Disabilities (CRPD)

 

The Strategy will provide comprehensive support to people living with disability in Australia, and will support and implement their rights as recognised in the CRPD. These rights include:

*         equality and non-discrimination (Article 5);

*         awareness-raising (Article 8);

*         accessibility of the physical environment, transportation, information, facilities and services (Article 9);

*         access to justice and equal recognition before the law (Articles 12 and 13);

*         freedom from exploitation, violence and abuse (Article 16); 

*         education, health and employment (Article 24, 25 and 27); and

*         social protection and an adequate standard of living (Article 28).

 

More specifically, the implementation of the Strategy reflects Australia's obligations under Article 4 of the CRPD, namely the general obligation of parties to:

*         adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the Convention (Article 4(1)(a));

*         provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, as well as other forms of assistance, support services and facilities (Article 4(1)(h)); and

*         in the development and implementation of legislation and policies to implement the Convention, and in other decision-making processes concerning issues relating to persons with disabilities, consult with and actively involve persons with disabilities (Article 4(3)).

 

As detailed above, the Strategy is broken up into delivery of four independent streams of work. Each measure demonstrates linkage to the rights and obligations provided for by the CRPD as listed above.

 

The Initial Elements of Australia's Disability Strategy are targeted at improving the delivery of outcomes for people with disability in areas that correspond directly with the rights enshrined in the CRPD as listed above (Article 4(1)(a)). This includes in areas such as employment, community attitudes and safety. Relevant to Article 4(3) of the CRPD, this measure also involves consulting with, and actively involving, persons with disability in policy development.

 

The National Disability Information Gateway improves the connection of people with disability, their families and carers to disability information and services, by providing a single streamlined point of access for people to engage a range of disability services that are otherwise fragmented. This is relevant to Article 4(1)(h) of the CRPD in implementing the obligation of parties to provide and enhance accessible information to persons with disability about receiving assistance, support services and facilities.

 

The delivery of the Advocacy Reform Proposals will promote the rights of people living with disability by enhancing their experience in accessing advocacy support relevant to their disability. This is relevant to Article 4(1)(a) of the CRPD, in obliging Australia to adopt policy measures to improve and expand on the provision of services that are designed to promote the rights enshrined in the CRPD as listed above.

 

Similarly, the NDRP involves the development of a research agenda and facilitating co-designed research with people with disability to improve outcomes for individuals with a disability. Relevant to Articles 4(1)(a) and 4(3), it is arguable that the NDRP is a measure for the implementation and promotion of those rights enshrined in the CRPD as listed above.

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 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. 3) Regulations 2022 (the Regulations) amend Schedule 1AB to the Principal Regulations to establish legislative authority for government spending on the Australia's Disability Strategy 2021-2031 (the Strategy). The Strategy is administered by the Department of Social Services.

 

The Strategy aims to drive the action needed to improve outcomes for the 4.4 million Australians with disability and create a more inclusive Australian society.

 

The Government will deliver the Strategy through the following streams of work:

*         implementation of the initial elements of commitments included in the Strategy. This includes Targeted Action Plans, an engagement plan to better engage the disability community on implementation, and measures to improve accountability, which includes the Strategy's Outcomes Framework;

*         continuation of the National Disability Information Gateway to ensure people with disability, their families and carers can navigate and find services they need outside of the National Disability Insurance Scheme;

*         implementation of the Individual Disability Advocacy Reform, comprising of the Disability Advocacy Support Hotline and the National Centre for Advocacy. These initiatives are designed to help address and understand disability advocacy demand and provide people with disability with new ways of receiving advocacy support; and

*         establishment of a National Disability Research Partnership to implement a national disability research agenda and translate disability research into policy and practice to improve outcomes for people with disability under the Strategy.

 

Funding for the Strategy was provided in the 2021-22 Mid-Year Economic and Fiscal Outlook comprising of $120.3 million over four years from 2021-22 and $151.9 million from 2025-26 to 2031-32 ($11.7 million per year ongoing) to support the delivery and implementation of the Strategy.

 

Additional funding of $2.5 million over three years from 2022-23 is provided in the October 2022-23 Budget to support the work of the National Disability Research Partnership.

 

Human rights implications

 

This disallowable legislative instrument engages the following rights:

*         the right to women with disabilities - Article 6 of the Convention of the Rights of Persons with Disabilities (CRPD), read with Article 4;

*         the right to children with disabilities - Article 7 of the CRPD;

*         the right to awareness-raising - Article 8 of the CRPD; and

*         the right to freedom from exploitation, violence and abuse - Article 16 of the CRPD; and

*         the right to work and employment - Article 27 of the CRPD.

 

Right to women with disabilities

 

Article 4 of the CRPD requires States Parties to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.

 

The Strategy's vision is for an inclusive society that ensures people with disability can fulfil their potential, as equal members of the community. All measures in this package contribute to the Strategy's vision.

 

Article 6 of the CRPD requires States Parties to take measures in recognition that women and girls with disabilities are subject to multiple discrimination.

 

The Strategy and TAPs include an intersectional and diversity lens which recognises that a person or group of people can be affected by multiple forms of discrimination and disadvantage, including due to a person's sex and gender identity. Actions will be designed to include people and groups who face intersectional barriers.

 

Right to children with disabilities

 

Article 7 of the CRPD requires States Parties to take measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.

 

The Early Childhood TAP will enable early identification, clearer pathways and timely access to supports for young children with disability or developmental concerns, support families, and provide opportunities for families to build peer networks, in order to improve the lives of children with disability.

 

Right to awareness-raising

 

Article 8 of the CRPD requires States Parties to take measures to raise awareness throughout society regarding persons with disabilities and foster respect for the rights and dignity of persons with disabilities.

 

To drive improvements under the Strategy's Community Attitudes Outcome Area, the Community Attitudes TAP will promote awareness and inclusion of disability, including aiming to change employer attitudes and increase disability confidence of key professionals.

 

Right to freedom from exploitation, violence and abuse

 

Article 16 (1) of the CRPD states that States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.

 

The Safety TAP focuses on strengthening supports for people with disability at risk of harm across service systems to enable people with disability live free form harm and reach their full potential.

 

Right to work and employment

 

Article 27 (1) of the CRPD requires States Parties to recognise the right of persons with disabilities to work, on an equal basis with others.

 

The Employment TAP focuses on increasing employment for people with disability and to improve the current unemployment rate of people with disability which is more than twice the rate for other Australians. The Community Attitudes TAP will have a focus on improving attitudes of employers towards people with disability so they value the contribution people with disability make to the workforce.

 

Conclusion

 

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

 

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance