FINANCIAL FRAMEWORK (SUPPLEMENTARY POWERS) AMENDMENT (SOCIAL SERVICES MEASURES NO. 5) REGULATIONS 2019 (F2019L01462) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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FINANCIAL FRAMEWORK (SUPPLEMENTARY POWERS) AMENDMENT (SOCIAL SERVICES MEASURES NO. 5) REGULATIONS 2019 (F2019L01462)

EXPLANATORY STATEMENT

 

Issued by the Authority of the Minister for Finance

 

Financial Framework (Supplementary Powers) Act 1997

 

Financial Framework (Supplementary Powers) Amendment

(Social Services Measures No. 5) Regulations 2019

 

The Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) confers on the Commonwealth, in certain circumstances, powers to make arrangements under which money can be spent; or to make grants of financial assistance; and to form, or otherwise be involved in, companies. The arrangements, grants, programs and companies (or classes of arrangements or grants in relation to which the powers are conferred) are specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the Principal Regulations). 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.

 

Section 65 of the FF(SP) Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Section 32B of the FF(SP) Act authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Principal Regulations. Section 32B also authorises the Commonwealth to make, vary and administer arrangements for the purposes of programs specified in the Principal Regulations. Schedule 1AA and Schedule 1AB to the Principal Regulations specify the arrangements, grants and programs.

 

The Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 5) Regulations 2019 (the Regulations) amend Schedule 1AB to the Principal Regulations to establish legislative authority for government spending to establish a National Orphange Museum (the Museum). The Department of Social Services will have administrative responsibility for the Museum.

 

A one-off grant will be provided to assist with the establishment of a Museum to commemorate approximately 500,000 Australian children who grew up in orphanages, children's homes and other institutions and foster care up until 1989.

 

Funding of $2.0 million was included in the 2019-20 Budget to contribute to establishing a National Orphanage Museum, as one componment under the measure 'National Museum and memorial for Victims and Survivors of Institutional Child Sexual Abuse' for a period of one year commencing in 2019-20.

 

Details of the Regulations are set out at Attachment A. A Statement of Compatibility with Human Rights is at Attachment B.

 

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003. The Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.

 

Consultation

In accordance with section 17 of the Legislation Act 2003, consultation has taken place with the Department of Social Services.

 

A regulation impact statement is not required as the Regulations only apply to non-corporate Commonwealth entities and do not adversely affect the private sector.

 

 

 


Details of the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No.5) Regulations 2019

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 5) Regulations 2019.

 

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

 

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

 

Items 1 inserts new table item 375 in Part 4 of Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997

 

New Table item 375 establishes legislative authority for government spending to establish a National Orphanage Museum (the Museum). The Museum will commemorate approximately 500,000 Australian children who grew up in orphanages, children's homes and other institutions and foster care up until 1989.

 

The Musuem is expected to house a nationally significant collection of historic artefacts, memorabilia and documents relating to orphanages and children's homes, including a library and multifunction venue for education.

 

It is proposed this contribution is made through a grant arrangement with a reasonable payment schedule that provides assistance towards the purchase, planning, and establishment of the Musuem.

 


 

The Care Leavers Australiasia Network (CLAN) is the intended recipient of this grant. They are a national, independent, peak membership body which represents and supports people who were raised in Australian and New Zealand orphanages, children's homes and foster care. CLAN currently operate a temporary museum in Geelong housing a collection of memorabilia, objects and photographs from children's homes across the country.

 

Decisions about the expenditure under this spending activity will be made through a
non-competitive selection process and will be progressed via a reasonable payment schedule to fund activities to be delivered by a third party. The Minister is responsible for final decisions about the expenditure.

 

Independent review of the funding decision is not appropriate as the Government has decided that funding will be provided to CLAN to establish the Museum. Specifically, the funding is to be provided as a one-off grant to CLAN towards the Museum's establishment.

 

Individuals always have the option of recourse via the department's complaints management system (https://www.dss.gov.au/contact/feedback-compliments-complaints-and-enquiries/complaints-page). Clients also have recourse to the Commonwealth Ombudsman if they are not satisfied with the department's response (http://www.ombudsman.gov.au/).

 

Consultation with CLAN has been undertaken. The department's Legal Services Branch has been consulted to facilitate advice from the Australian Government Solicitor on constitutional and legislative authority risk.  The Office of Constitutional Law has also been consulted.

 

Funding of $2.0 million was included in the 2019-20 Budget for a period of one year commencing in 2019-20.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the express incidental power and the executive power (sections 51(xxxix) and 61) of the Constitution.

 

Statement of relevant and operation of constitutional heads of power

 

Executive power and express incidental power (s 61 and s 51(xxxix))

 

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 of the courts by the Constitution. Section 61 of the Constitution supports activities that are peculiarly adapted to the government of the nation and cannot be carried out for the benefit of the nation otherwise than by the Commonwealth.

 

Providing funding to a community body to establish the Museum will contribute to the preservation and accessibility of a nationally significant collection of historic artefacts, memorabilia and documents relating to orphanages and children's homes. This could not be carried out for the benefit of the nation otherwise than by the Commonwealth.

 

 

 


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. 5) Regulations 2019

 

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

 

Overview of the Legislative Instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the FF(SP) Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The 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 Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 5) Regulations 2019 inserts new table item 375 in Part 4 of Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending to establish the National Orphanage Museum (Museum). This is to commemorate the approximately 500,000 Australian children who grew up in Orphanages, Children's Homes and other institutions and foster care up until 1989. The Museum is expected to house a nationally significant collection of historic artefacts, memorabilia and documents relating to orphanages and children's homes, including a library and multifunction venue for education.

 

Human rights implications

 

This Disallowable Legislative Instrument engages Article 15 of the International Covenant on Economic, Social and Cultural Rights.

International Covenant on Civil and Political Rights

Article 15 refers to the right of all persons to take part in cultural life and requires Australia to take steps to achieve the full realisation of this right, including steps necessary for the conservation, development and the diffusion of culture.

Funding the Care Leavers Australasia Network (CLAN) to establish the National Orphanage Museum supports the right to take part in cultural life by providing for the conservation of nationally significant arterfacts that represent a period in our nationa's history.

 


 

Conclusion

 

This legislative instrument is compatible with human rights because it promotes the protection of human rights and does not limit human rights.

 

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance


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