Financial Framework (Supplementary Powers) Amendment (Health Measures No 1) Regulations 2017 [F2017L00211]-Response required [2017] AUSStaCSDLM 125 (29 March 2017)

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Instrument	Financial Framework (Supplementary Powers) Amendment (Health Measures No. 1) Regulations 2017 [F2017L00211]
Purpose	Establishes legislative authority for spending activities administered by the Department of Health
Last day to disallow	20 June 2017
Authorising legislation	Financial Framework (Supplementary Powers) Act 1997
Department	Finance
Scrutiny principle	Standing Order 23(3)(a)

Constitutional authority for expenditure

Scrutiny principle 23(3)(a) of the committee's terms of reference requires the committee to ensure that an instrument is made in accordance with statute. This principle requires that instruments are made in accordance with their authorising Act as well as any constitutional or other applicable legal requirements.

The committee notes that, in Williams No. 2,^[1] the High Court confirmed that a constitutional head of power is required to support Commonwealth spending programs. As such, the committee requires that the ES for all instruments specifying programs for the purposes of section 32B of the Financial Framework (Supplementary Powers) Act 1997 explicitly state, for each new program, the constitutional authority for the expenditure.

The Financial Framework (Supplementary Powers) Amendment (Health Measures No. 1) Regulations 2017 [F2017L00211] (the regulation) adds new items 203 and 204 to Part 4 of Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997 (FFSP Regulations) which seek to establish legislative authority for Commonwealth government spending for the Suicide Prevention Research Fund and Suicide Prevention Trials.

The committee notes that the objectives of new items 203 and 204 each include the following reference to measures:

peculiarly adapted to the government of a nation and that cannot otherwise be carried out for the benefit of the nation.

The ES for the regulation identifies the constitutional basis for expenditure in relation to each program as follows:

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:
• the communications power (section 51(v));
• the defence power (section 51(vi));
• the races power (section 51(xxvi));
• the external affairs power (section 51(xxix)); and
• the territories power (section 122).

The ES also identifies the social welfare power (section 51(xxiiiA)) as supporting the Suicide Prevention Trials program.

The objectives of these programs appear to reference the Commonwealth executive power and the express incidental power (sections 61 and 51(xxxix)). However, these powers are not identified as supporting heads of power in relation to these items in the ES. It is therefore unclear to the committee as to whether the regulation is seeking to rely on these heads of legislative power to authorise the addition of items 203 and 204 to Schedule 1AB (and therefore the spending of public money under these items).

With reference to the committee's ability to effectively undertake its scrutiny of regulations adding items to Part 4 of Schedule 1AB to the FFSP Regulations, the committee notes its preference that an ES to a regulation include a clear and explicit statement of the relevance and operation of each constitutional head of power relied on to support a program or initiative.

The committee requests the advice of the minister in relation to the above.

Scrutiny principle 23(3)(d) of the committee's terms of reference requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via principal rather than delegated legislation).

New table items 203, 204, 206 and 207 to Part 4 of Schedule 1AB to the FFSP Regulations appear to authorise expenditure not previously authorised by legislation. These items establish legislative authority for the Commonwealth government to fund the Suicide Prevention Research Fund; Suicide Prevention Trials; the Lifeline text service; and the Digital technologies for mental health program. In relation to the source of funding for each of the programs the ES states:

The...mental health care initiatives are part of the Government’s announcement in the 2016-17 Mid-Year Economic and Fiscal Outlook of $194.5 million for initiatives to strengthen mental health care in Australia.
...Funding for this item will come from Program 2.1: Mental Health, which is part of Outcome 2: Health Access and Support Services, as set out in the Portfolio Additional Estimates Statements 2016-17, Health Portfolio at page 38.

The committee considers that, prior to the enactment of the Financial Framework Legislation Amendment Act (No. 3) 2012, these programs would properly have been contained in an appropriation bill not for the ordinary annual services of government, and subject to direct amendment by the Senate. The committee will draw this matter to the attention of the relevant portfolio committee.

The committee draws the above to the minister's attention and the expenditure authorised by this instrument to the attention of the Senate.

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[1] Williams v Commonwealth (No. 2) [2014] HCA 23; (2014) 252 CLR 416.