Details of the Financial Framework (Supplementary Powers) Amendment (Health Measures No. 1) Regulations 2019

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Health Measures No. 1) 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 3 of Schedule 1AB (table)

 

This item adds a new table item to Part 3 of Schedule 1AB to establish legislative authority for government spending on an initiative that will be administered by the Department of Health (the department).

 

New table item 32 establishes legislative authority for the Government to provide grants to Orygen to support the continued operation of its National Centre of Excellence in Youth Mental Health (the Centre).

 

The Centre provides national leadership on youth mental illness, including policy advice, research, workforce training and related work.

 

Mental illness is a significant contributor to the burden of disease in Australia, with many mental health disorders emerging in late childhood and early adolescence. If untreated, these conditions can affect a young person's development, educational attainment and participation in society.

 

The Centre:

*         provides advice and support to the Government on improving services to young people affected by mental illness

*         conducts research to support better services and treatment for young people with mental illness

*         develops and provides training and information to the mental health workforce to improve the delivery of evidence-based practice.

 

The Government has provided funding to Orygen since 2014 for the establishment and operation of the Centre. An extension of funding of $13.5 million over three years from 1 July 2018 was announced by the Minister for Health, the Hon Greg Hunt MP, on 8 January 2018. 

 

On 5 September 2018, the Minister for Health announced further funding of $9 million to Orygen to support the continued operation of the Centre at current levels for an additional two years from 1 July 2021.

 

The funding comes from Program 2.1: Mental Health, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2018-19, Budget Related Paper No. 1.9, Health Portfolio at page 63.

 

Funding will be provided to Orygen through a closed, non-competitive grant process in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 (the PGPA Act) and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). The Community Grants Hub in the Department of Social Services will administer the grant, while policy responsibility will remain with the department.

 

In accordance with the CGRGs, grant guidelines will be available on GrantConnect (www.grants.gov.au). Information on the grant awarded will be published on GrantConnect no later than 21 calendar days after the grant has taken effect. The funding will be expended in accordance with the CGRGs, the Secretary's Instructions on the expenditure of relevant monies, and in accordance with the PGPA Act. The Assistant Secretary of the Mental Health and Suicide Prevention Branch will hold delegation responsibility for this grant and the associated funding.

 

The decision to provide funds to Orygen is not considered suitable for independent merits review. The expenditure is non-competitive and Orygen is uniquely placed to deliver this service.

 

The closed, non-competitive grant arrangement is considered appropriate because Orygen is the only organisation that has the demonstrated expertise to provide national leadership on youth mental health issues in Australia. To reconsider this decision under merits review would substantially delay implementation of the program in a market environment where there are no alternative providers with similar capacity to provide national leadership on youth mental health.

 

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

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

*         the Commonwealth executive power and the express incidental power (sections 61 and 51(xxxix)), including the nationhood aspect.

 

 

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 obligations under international treaties to which it is a party.

 

Australia is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 12(1) recognises the 'right of everyone to the enjoyment of the highest attainable standard of physical and mental health'. Article 2 requires each State Party to 'take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization' of this right 'by all appropriate means, including particularly the adoption of legislative measures'.

 

The steps to be taken by States Parties to achieve full realisation of the right to health are specified in Article 12(2) and include:

*         steps necessary for 'the prevention, treatment and control of epidemic, endemic, occupational and other diseases' (Article 12(2)(c))

*         steps necessary for 'the creation of conditions which would assure to all medical service and medical attention in the event of sickness' (Article 12(2)(d)).

 

The funding of research (for example, research into the causes or triggers of a particular mental illness, research specifically targeted at preventing mental illness or research examining the efficacy of a particular medication) will promote the right to health recognised in the ICESCR.

 

Commonwealth executive power and the express incidental power, including the nationhood aspect

 

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 it by the Constitution. Together with the executive power in section 61 of the Constitution, section 51(xxxix) supports activities that are peculiarly adapted to the government of a nation and cannot be carried out for the benefit of the nation otherwise than by the Commonwealth.

 

The proposed expenditure would go to mental health research and the training of a mental health workforce by the Centre to effectively treat young people with mental illness, which are matters of national importance.

 

 

 

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 (Health Measures No. 1) 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 (Health Measures No. 1) Regulations 2019 amend Schedule 1AB to the FF(SP) Regulations to add new table item 32 to Part 3 of that schedule. The new table item establishes legislative authority for the Government to provide grants to Orygen to support the continued operation of its National Centre of Excellence in Youth Mental Health (the Centre).

 

The Centre provides national leadership on youth mental illness, including policy advice, research, workforce training and related work.

 

This instrument will support the following activities of the Centre:

*         the provision of advice to the Government on improving services to young people affected by mental health issues

*         the provision of training and information to the mental health workforce

*         research in the field of youth mental health.

 

The Centre aims to enhance innovation and improve outcomes in youth mental health services through the facilitation, translation and dissemination of research into evidence-based practice and policy, and youth mental health service design and developmental activities.

 

In collaboration with the Department of Health, the Centre has developed areas of policy advice to act as an enabler of the national reforms in youth mental health policy and implementation.

 

 

Human rights implications

 

This instrument engages Articles 2(1) and 12 of the International Covenant on Economic, Social and Cultural Rights, specifically the right to the highest attainable standard of physical and mental health.

 

The Centre is funded to provide training and associated capacity development through the provision of information to the mental health workforce. Key areas of training relate to: the impact of early intervention and prevention of mental illness; management of comorbidities; and cross-sectoral interventions and approaches that support young people with mental illness.

 

Enhanced knowledge and service provision as a result of this training and workforce development positively impacts the human right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

 

Continued funding of the Centre will support the human right to health by utilising existing resources to provide information to the mental health workforce necessary for the realisation of the highest attainable standard of health.

 

Conclusion

 

This instrument is compatible with human rights because it maintains existing arrangements and protects human rights.

 

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance and the Public Service