Details of the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 1) Regulations 2018

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 1) Regulations 2018.

 

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)

 

This item adds two new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on certain activities that will be administered by the Department of Social Services (DSS).

 

New table item 270 establishes legislative authority for the Government to fund the Integrated Carer Support Service (ICSS) program.

 

The ICSS program is the third and final stage of the implementation of the Integrated Plan for Carer Support Services (the Plan).  The Plan was introduced as part of the 2015-16 Budget when the Government committed $33.7 million over four years for the creation of a national gateway for carers to access information, support and referral to carer specific supports and services.

 

The development and implementation of the Plan has been undertaken in two stages to date.  Stage One delivered Carer Gateway (a website and national 1800 number) which commenced on 14 December 2015.  Stage One also included the consolidation of existing aged care, disability and mental health Commonwealth funded carer programs (excluding planned respite) into the DSS.  Stage Two involved a comprehensive co-design process with the carer sector and carers to develop a service delivery model (finalised in February 2017) for a new service delivery model for carer support services. 

 

The ICSS program will help carers access and receive support through new online services and Regional Delivery Partners (RDPs) earlier in their caring role and on a more proactive basis.  The role of the ICSS program will be to:

• proactively support carers earlier and build their capacity to sustain their caring role;
• provide support where carers are in, or at risk of, a crisis which might adversely affect their caring role;
• streamline the provision of carer support services and change the type and mix of support services for carers, as well as how those services are delivered;
• provide support for carers to improve their long-term social and financial outcomes; and
• support carers to participate in everyday activities such as education and the workforce.

 

The ICSS program will consolidate a number of existing Commonwealth funded carer support programs, including:

*         short-term and emergency respite;

*         the National Carer Counselling Program;

*         the Carer Information and Support Service;

*         Carer Directed Respite Care;

*         Dementia Education and Training for Carers; and

*         the Young Carer Bursary Program.

 

The ICSS program will also aim to enable more services to be delivered to more carers and drive additional economic and social participation through:

• increasing participation (economically and socially) by targeting and prioritising financial supports and respite to carers with the most need.  This includes those seeking to return to employment, young carers at risk of leaving education and carers at risk of ending their employment due to caring commitments;
• helping to retain informal care by increasing access to services such as coaching and counselling which prevent, delay or reduce the risk of needing replacement (or respite) care for the person they care for;
• improving the general wellbeing and health of carers by reaching them earlier in their caring role and providing services such as information, education, training, and peer support services that are proven to increase their capacity to provide more effective care and sustain them in their caring role; and
• targeting awareness-raising for priority cohorts such as young carers through schools, carers at risk of leaving employment, and new carers through the primary health and acute care systems.

 

Additional funding of $85.6 million to the existing funding for DSS carer services will be provided for the ICSS program over four years commencing in 2017-18 (excluding funding transitioning into the National Disability Insurance Scheme).  Funding will come from Program 3.1: Disability Mental Health and Carers, which is part of Outcome 3: Disability and Carers.  Details will be set out in the Portfolio Budget Statements 2018-19, Social Services Portfolio.

 

RDPs form a critical component of the delivery of the ICSS program where they are predominantly the first point of contact, and the primary source of information and assistance for carers.  RDPs will work closely with carers to identify their needs, provide information and facilitate and/or deliver a range of support services.  RDPs will be selected through a competitive open grant opportunity.  They will operate at a regional level and will need to have a detailed understanding of the services available at local levels in order to coordinate access for carers to those local services.

 

In addition to RDPs, the other key carer support components of the program include:

• counselling which is a free service that will operate across two channels - digital (phone and online) and in person.  A digital counselling service provider will be sourced through an open market tender process and will operate on a national level, while in person counselling will be provided by RDPs (through sub-contracting arrangements) at the regional and local level;
• coaching which is a free service that will operate across two channels - in person and online.  A service provider selected through an open market tender process will design a national coaching program for both channels and will run a national pilot phase.  Following the pilot phase, RDPs will provide a face-to-face coaching service at the regional and local level;
• free respite services, with RDPs continuing to coordinate access to respite services on behalf of carers.  Respite services will continue to be provided at the local level by local service providers; 
• peer support which is a free service that will operate across two channels - in person and online.  The online channel will operate on a national level with a service provider sourced through an open market tender approach.  In person peer support will be operated by RDPs at a regional and local level.  RDPs may also coordinate access for carers to other existing peer support services at the local level; and
• financial packages which will be provided by RDPs at the regional level.  These packages (with the exception of Young Carer Bursaries) do not involve the giving of funds directly to carers but will fund respite-like services and other services that would support participation in education and employment, as agreed with the RDP.  In line with the current practice, the Young Carer Bursary funding will be provided directly to young carers on a quarterly basis.

 

RDPs will also play an important role in establishing and maintaining relationships with social, health, education, and cultural regional delivery and community groups to understand regional needs and promote awareness of the important role of informal carers and the services available to them.

 

The work of RDPs will be underpinned by, and build on, the existing Carer Gateway information service which will be refreshed and expanded to include the new digital services, online counselling, education and peer support. 

 

The ICSS program will be implemented in two phases, commencing with new national online services including digital counselling, online peer support and online coaching to roll out from September 2018, followed by the introduction of new RDP services from September 2019. 

 

An open competitive grant round will be conducted for the establishment and operation of the RDP network, and a range of goods and services will be obtained through a number of competitive procurement processes.  Procurements will be undertaken to engage an online counselling provider and coaching service design provider, as well as engaging organisations to develop the program outcomes framework and online peer support forum. 

 

DSS will undertake the grant process, with the grant opportunity, including the grant opportunity guidelines and other relevant documentation, being released through the Community Grants Hub (www.communitygrants.gov.au).

 

The grant round will be run in accordance with the Commonwealth Grants Rules and Guidelines 2017.  A delegate of the Secretary of DSS will be responsible for making final decisions in relation to the grant expenditure.

 

Details regarding the outcomes of the open grant round processes will be published on the Community Grants Hub website (www.communitygrants.gov.au) following the conclusion of the grant funding round.  Any significant grant variations or payments of additional money will also be published.

 

The ICSS program is not suitable for the independent review of decisions.  The funding for this program is limited and a key objective will be to streamline the provision of carer support services. 

 

The operational implementation of the full ICSS program from September 2019 is also dependent on the execution of grant agreements, and the establishment and transition of RDP organisations to the new service arrangements.  The reconsideration of funding decisions under independent review may delay the execution of grant agreements and the launch of the full ICSS program from September 2019. 

 

DSS will undertake open market Request for Tender (RFT) processes for the procurement of the digital counselling, online peer support and coaching providers.  The RFT documentation will be made publicly available on AusTender (www.tenders.gov.au).  The outcomes and recommendations of the RFT processes will be approved by the expenditure delegate - a senior departmental official who is a delegate of the Secretary.

 

Details regarding the outcomes of all procurement processes will be published on the AusTender website (www.tenders.gov.au) following the conclusion of the procurement processes.  

 

Funding for the procurement of goods and services under the ICSS program and spending decisions will be made in accordance with the requirements of the Commonwealth's resource management framework, including the Commonwealth Procurement Rules and the Public Governance, Performance and Accountability Act 2013.  Given the targeted purpose and nature of the expenditure, independent review of spending decisions for the procurement of goods and services is not appropriate.

 

In the event that a tenderer has a complaint about an RFT process, the tenderer can raise the complaint (verbally or in writing) with the departmental RFT officer.  If the tenderer remains unsatisfied following the response by DSS, the tenderer may lodge a request for further examination of the issue.  DSS will then arrange for an internal independent review of a complaint to be conducted. 

 

There will be no secondary or external merits review for decisions to approve or not approve a grant under the ICSS program.  The program involves allocation of finite resources that have been specifically allocated.  A merits review of a decision made in relation to one grant would affect decisions in relation to others because if a review of an application were successful, this could require a reduction in funding to other grant recipients.

 

All decisions regarding grant funding made under the ICSS program will be made in accordance with principles of probity and fairness, and relevant requirements set out in the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017.  An independent, external probity advisor will be engaged to ensure that the probity and fairness of the process is maintained.

 

The guaranteed right of review under section 75(v) of the Constitution and section 39B of the Judiciary Act 1903 will still be available to applicants.  The grant opportunity guidelines will also allow applicants to lodge a written complaint regarding the process or grant funding outcomes, which will undergo formal review and consideration by departmental officials.  Where appropriate, applicants will have recourse to the Commonwealth Ombudsman if they consider that the response provided by the department is unsatisfactory.  Written feedback will be provided to all unsuccessful applicants following execution of the grant agreements.

 

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 unemployment benefits, sickness benefits, and benefits to students aspects of the social welfare power (section 51(xxiiiA));
• the external affairs power (section 51(xxix));
• the territories power (section 122); and
• the Commonwealth executive power (section 61).

 

Communications power

 

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'.  Under the ICSS program, funding will be provided for online and telephone-based communications.  For example, counselling and coaching services for carers will be delivered through online and telephone services.  Online and phone-based information services will also be funded to link carers to other supports provided through the ICSS program.

 

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 including unemployment benefits, sickness benefits and benefits to students.  Under the ICSS program, funding will be provided:

• to improve the wellbeing and health of persons who are supported by carers by providing services that are proven to enhance the carer's ability in their caring role;
• to provide access to support services for carers who are suffering from, or at risk of, mental illness;
• to deliver online and in person education and training focused on improving a carer's skills and capacity in their caring role;
• targeting carers who are students, in support of their schooling; and
• to improve assistance offered to unemployed carers to access appropriate employment.

 

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 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 (ICESCR). 

 

Article 12(1) of the ICESCR recognises the 'right of everyone to the enjoyment of the highest attainable standard of physical and mental health'.  Pursuant to Article 2(1), Australia relevantly undertakes 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.  Article 12(2) provides a non-exhaustive list of 'steps' to be taken by States Parties to achieve the full realisation of the right to health recognised in Article 12(1).  These include:

*         Article 12(2)(c) which provides that States Parties take necessary steps for 'the prevention, treatment and control of epidemic, endemic, occupational and other diseases'; and

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

 

The ICSS program provides supports to carers who are assessed as being at risk of suffering from adverse mental health consequences connected with, or that may affect, their caring role.  The ICSS program seeks to improve the health of carers by reaching them earlier in their caring role and providing lower cost services such as information, education, training, and peer support services that are proven to improve long-term health outcomes.

 

Australia also has obligations under the Convention on the Rights of the Child (CRC). Article 28(1) of the CRC provides that 'States Parties recognize the right of the child to education'.  Pursuant to Article 4, Australia is required to 'undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention'.  Article 28(1)(e) provides that States Parties will 'take measures to encourage regular attendance at schools and the reduction of drop-out rates'.

 

The program will provide funding to support young carers who are assessed as being at risk of failing to complete, or falling out of, education due to their caring duties.  The funding will be directed to improving the ability of young carers to stay in school and complete their education.

 

Territories power

 

The provision of funding for activities in or in relation to a Territory is supported by section 122 of the Constitution.  The ICSS program will assist carers access and receive supports, including in the Northern Territory and the Australian Capital Territory.

 

 

Commonwealth executive power

 

The Commonwealth executive power in section 61 of the Constitution supports activities that form part of the ordinary and well-recognised functions of government.  The ICSS program will, for example, include the Commonwealth taking steps to engage with local communities and carers to inform its policy development.

 

New table item 271 establishes legislative authority for government spending on the Social Impact Investment Sector Readiness Fund (the Fund) to allow the Government to build the capability of organisations with a social purpose to bring projects to the social impact investing (SII) market.

 

SII aims to create measurable improvements in social or environmental outcomes, along with a financial return when successful.  This is an innovative method of financing interventions to address social or environmental problems by bringing together governments, service providers and investors.  

 

There is a nascent SII market in Australia due to significant barriers in capability preventing many investment opportunities from coming to market.  A material gap has formed between investor demand for impact investment products and current supply.  The Fund is intended to address this gap by enhancing sector capability to overcome barriers to entering the market.  Under the Fund, grants will be provided for capability building activities to assist organisations to bring ideas and products to the SII market. 

 

The SII Package was announced in the 2017-18 Budget, with funding of $20.2 million over ten years from 2017-18 to support social impact investment opportunities and develop the market.  The SII Package, which includes $8 million over four years from 2017-18 for the Fund, is also complemented by new principles for the Government's involvement in SII.  These principles were announced on 8 August 2017 by the Treasurer, the Hon Scott Morrison MP, and the then Minister for Social Services, the Hon Christian Porter MP (www.sjm.ministers.treasury.gov.au/media-release/068-2017).

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The Housing Package announced in the 2017-18 Budget committed a further $10.2 million to support homelessness social impact investments to complement the SII Package.  Details are set out in the measures 'Social Impact Investing Market - trials' and 'Reducing Pressure on Housing Affordability - Social Impact Investments' in Budget 2017-18, Budget Measures, Budget Paper No. 2 2017-18 at pages 156 to 157.

 

Funding for the SII Package, including the Fund, will come from Program 1.10: Working Age Payments, which is part of Outcome 1.  Program details are set out in the Portfolio Budget Statements 2017-18, Budget Related Paper No. 1.15, Social Services Portfolio at pages 43 to 45.

 

The Fund will be delivered by a fund administrator who will have experience in the SII market.  The administrator will assess and select grant recipients, determine which capability building activities the Fund should support, allocate funding to eligible organisations and manage the Fund.  The use of an expert fund administrator will allow DSS to capitalise on the existing expertise in the SII sector and ensure value for money in the disbursement of funds.

 

Decisions regarding the selection of a fund administrator will occur following a grant process conducted in accordance with the Commonwealth Grants Rules and Guidelines 2017.  The fund administrator will be selected through an open competitive grant process, and will be responsible for delivering the primary components of the Fund, including allocating grants to organisations. 

 

The selection of a fund administrator will be facilitated by the Community Grants Hub.  All documentation regarding the selection of a fund administrator, including eligibility criteria, will be advertised on GrantConnect and the Community Grants Hub at www.communitygrants.gov.au.  The outcome of the selection of the fund administrator will be published on the DSS website at www.dss.gov.au/grants/grants-funding no later than 14 days after the grant agreement is in place.

 

Applications for the fund administrator grant opportunity will undergo a two-tier assessment process and the Minister for Social Services or their delegate will be responsible for decisions relating to the selection of the fund administrator.  First, the applications will undergo a merit assessment by the Community Grants Hub based on meeting weighted selection criteria outlined in the grant opportunity guidelines.  This decision will then be reviewed and finalised by an expert panel of DSS officials.

 

There will be no secondary or external merits review for the selection of a fund administrator.  The program involves the allocation of finite resources (grant of up to $480,000 to administer the Fund) that have been specifically allocated across each financial year directed at one organisation.  A merits review of the decision made in relation to the grant would not be appropriate as funding is finite and only one fund administrator will be selected to ensure more efficient implementation.  If a decision were remade on review, this means reduced funding would be available which would likely reduce the effectiveness of the Fund.

 

The selection of a fund administrator will 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 2017.  The guaranteed right of review under section 75(v) of the Constitution, and review under section 39B of the Judiciary Act 1903, would still be available.  Applicants will be notified in writing of the outcomes of their applications.  Unsuccessful applicants will be offered feedback on their applications.  Persons affected by the selection of a fund administrator would also have recourse to the Commonwealth Ombudsman where appropriate.

 

The delivery of the Fund involves the allocation of funding to a single, external fund administrator to disburse Commonwealth funding to organisations to build the capability to seek investment in the SII market.

 

Individual grants to organisations of approximately $100,000 will enable them to access expert advice and intermediaries capable of delivering capability building activities which address the barriers to participation in the market.  The final grant recipients and grant amounts from the Fund will be determined by the fund administrator on a case-by-case basis.  While specific capability building activities supported by the Fund will be at the discretion of the fund administrator, they may include but are not limited to:

*         business planning;

*         financial modelling;

*         financial structuring;

*         capital raising advice;

*         tendering support;

*         contract negotiation support;

*         legal support; or

*         other specialist advice including measurement, evaluation and governance.

 

The selection process to award grants to grant recipients of the Fund will be determined by the fund administrator who will have expertise in this field.  Some eligibility criteria for grants from the Fund will be set by the Government to ensure the Fund supports areas of Commonwealth responsibility and policy priorities.  These criteria will include organisations needing to have well-designed projects that address social outcomes within the social services portfolio and that have been tested in the market and have a good chance of attracting investment once capability building activities are complete.  Additional eligibility criteria will be at the discretion of the fund administrator.  The fund administrator will also be responsible for ensuring organisations meet the requirements set by the Government.  The final list of eligibility requirements will be advertised by the fund administrator once the Fund is established.

 

Decisions made by the fund administrator to grant funds to organisations for capability building will be made in accordance with the Government's eligibility criteria and any additional criteria the fund administrator considers appropriate.  These decisions will not be subject to independent review by DSS or an external organisation.  A merits review of a decision made in relation to one grant would affect decisions in relation to others because if a review of an application were successful, this could require a reduction in funding to other grant recipients.  The fund administrator would be required to provide feedback to unsuccessful grant applicants.

 

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 aliens power (section 51(xix));

*         the social welfare power (section 51(xxiiiA));

*         the races power (section 51(xxvi));

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

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

 

Communications power

 

Section 51(v) of the Constitution empowers Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'.

 

Funding may be directed at projects supporting better outcomes for vulnerable people that are delivered online or through a telephone service.  For example, funded projects could include online support services for people transitioning out of the prison system or families in financial crisis.  Other examples could include online programs to foster inter-generational and inter-cultural community inclusion, or telephone and online support services providing evidence-based information on drug and alcohol misuse.

 

Aliens power

 

Section 51(xix) of the Constitution empowers the Parliament to make laws with respect to 'naturalization and aliens'.  The aliens power supports legislation with respect to non-citizens.

 

Funding may be provided to projects which improve the wellbeing and encourage the participation of non-citizens in Australian society.  For example, projects could include those providing services, English language training or employment support for newly arrived migrants.  Other examples could include projects meeting the safety, security and health needs of non-citizens who have been victims of human trafficking, slavery or forced labour in Australia.

 

Social welfare power

 

Section 51(xxiiiA) of the Constitution gives the Parliament the power to make laws with respect to various social welfare services and benefits, including unemployment benefits and medical services.

 

Funding may be provided to projects that support unemployed and underemployed people into employment, for example by providing education, training and support to improve their employment opportunities.  Other examples could include projects supporting carers who are not in paid employment to find paid employment while in their caring role, or to prepare for paid employment when their caring role ends.  Projects could also be funded which support the unemployed or underemployed people to attain sustainable self-employment.

 

Funded projects could also support the provision of medical services such as mental health services for disadvantaged young people or services for people affected by drug or alcohol misuse.

 

Races power

 

Section 51(xxvi) of the Constitution empowers the Parliament to make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws'.  The section supports legislation with respect to Aboriginal and Torres Strait Islander peoples.  Funding may be provided for projects which address specific needs of Aboriginal and Torres Strait Islander peoples. 

 

External affairs power

 

Section 51(xxix) of the Constitution gives the Parliament the power 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.

 

Convention on the Elimination of All Forms of Discrimination Against Women

 

Australia has obligations relating to the elimination of all forms of discrimination against women under the Convention on the Elimination of All Forms of Discrimination Against Women.  In particular:

*         Under Article 2, States Parties 'condemn discrimination against women in all its forms' and 'agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women'.  Article 2(b) provides that States Parties undertake to adopt 'appropriate legislative and other measures' to this end.

*         Article 3 requires States Parties to take 'all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men'.

*         Article 5(a) requires States Parties to take 'all appropriate measures' to 'modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women'.

*         Article 16 requires States Parties to 'take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations'.

 

Funding may be provided to projects directed at preventing or addressing issues of discrimination and violence against women.  For example, projects could include: those providing support for women in exercising their rights and freedoms on an equal basis with men; projects supporting women to escape situations of domestic and family violence; or projects working to change social and cultural patterns based on the idea of inferiority or the superiority of any sex, or on stereotyped roles for genders.

 

Convention on the Rights of the Child

 

Australia also has obligations regarding the rights of the child under the Convention on the Rights of the Child.  In particular:

*         Article 4 requires States Parties to undertake 'all appropriate legislative, administrative, and other measures for the implementation of the rights recognized' in the Convention.

*         Article 6(2) requires States Parties to 'ensure to the maximum extent possible the survival and development of the child'.

*         Article 18(2) requires States Parties to 'render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities' and to 'ensure the development of institutions, facilities and services for the care of children'.

*         Article 19 requires States Parties to 'take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child'.

*         Under Article 27(1), States Parties recognise 'the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development'.  Article 27(3) requires States Parties to take 'appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing'.

*         Under Articles 28 and 29, States Parties recognise 'the right of the child to education' and agree that the education of the child shall be directed to 'the development of the child's personality, talents and mental and physical abilities to their fullest' and to the 'development of respect for the child's parents'.

 

Funding may be provided to projects directed at supporting or improving the development and wellbeing of children, including vulnerable and at-risk children.  For example, funding may be provided to projects directed to providing support for children to escape situations of domestic and family violence.  Funding could also be provided to projects directed at providing housing or accommodation for families or children at risk of homelessness, or programs aiming to strengthen the family unit by building the skills of parents or guardians to support childhood development.

 

Convention on the Rights of Persons with Disabilities

 

Australia also has obligations regarding the rights of persons with disabilities, including those set out in the Convention on the Rights of Persons with Disabilities.  In particular:

*         Article 4 requires States Parties to undertake 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.

*         Article 8(1) requires States Parties 'to adopt immediate, effective and appropriate measures' to raise awareness of the capabilities and contributions of people with disabilities, to foster respect for their rights and dignity, and to combat stereotypes, prejudices and harmful practices.

*         Article 16(1) requires States Parties to 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'.

*         Article 19 requires States Parties to 'recognize the equal right of all persons with disabilities to live in the community, with choices equal to others' and requires them to 'take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community'.

*         Article 26(1) requires that States Parties to take effective and appropriate measures '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'.

*         Article 27 requires that States Parties 'recognize the right of persons with disabilities to work, on an equal basis with others'.

 

Projects may be funded that are targeted at promoting, protecting and securing the rights of people with disability, as well as ensuring their full and equal participation in society.  For example, projects may be directed to enabling people with disability to become and remain independent, or to preventing violence against or abuse of people with disability.  Projects could, for example, also be directed to increasing the effective participation in society of people with long-term mental impairments on an equal basis with others.

 

International Convention on the Elimination of All Forms of Racial Discrimination

 

Australia also has obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.  In particular:

*         Under Article 2(1) States Parties 'condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races'.  Under Article 2(2), States Parties are required to 'take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms'.

*         Article 7 requires States Parties 'to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups'.

 

Projects may be funded which seek to eliminate racial discrimination and promote inclusion, harmony and understanding between cultures.  For example, projects funded under this measure could include social integration of diverse social, cultural and religious groups in a community or building strong and inclusive communities.

 

International Covenant on Economic, Social and Cultural Rights

 

Australia also has obligations under the International Covenant on Economic, Social and Cultural Rights.  In particular:

*         Article 2(1) requires States Parties to take steps to achieve the full realisation of the rights recognised in the Covenant 'by all appropriate means, including particularly the adoption of legislative measures'.

*         Article 6 recognises 'the right to work' and requires States Parties to 'take appropriate steps to safeguard this right' including the implementation of 'programmes ... to achieve ... full and productive employment'. 

*         Article 11(1) recognises 'the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions'.  Article 11(1) also requires States Parties to 'take appropriate steps to ensure the realization of this right'.

*         Article 12 requires States Parties to 'recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health'.  Article 12(2)(c) requires States Parties to take steps necessary for 'the prevention, treatment and control of epidemic, endemic, occupational and other diseases' and to take 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) requires States Parties to take steps necessary for the 'creation of conditions which would assure to all medical service and medical attention in the event of sickness'.

*         Article 13 requires States Parties to 'recognize the right of everyone to education' and requires States Parties to take steps to realise this right.

 

Funding may be provided to projects directed at fulfilling the rights of individuals to health, education, work, and an adequate standard of living.  For example, projects may be funded that are directed to treating health conditions arising from drug or alcohol misuse, or to supporting unemployed or underemployed people into employment.  Projects may also be funded which are directed at reducing homelessness and malnutrition, for example, by supporting access to adequate accommodation or affordable, adequate and nutritious food.  Projects may also be funded to improve educational outcomes for disadvantaged children and children living in remote and regional communities.

 

International Labour Organization's Conventions

 

Australia also has obligations under the International Labour Organization' Conventions concerning Employment Policy (ILO Convention 122), and Vocational Guidance and Vocational Training in the Development of Human Resources (ILO Convention 142).  In particular, Articles 1 and 2 of the ILO Convention 122 require States Parties to pursue 'an active policy designed to promote full, productive and freely chosen employment'.  Further, Articles 1 to 4 of the ILO Convention 142 oblige States Parties to adopt policies and programs of vocational guidance and training, linked with employment.

 

Projects may be funded that are directed at supporting people into employment by providing unemployed and underemployed people with educational and training programs and necessary support which is directly related to improving a person's opportunity to find paid employment.

 

International conventions regarding narcotic drugs and psychotropic substances

 

Australia has obligations regarding drug control under the Single Convention on Narcotic Drugs, the Convention on Psychotropic Substances, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.  In particular:

*         Under Article 38 of the Single Convention on Narcotic Drugs, States Parties are required to 'give special attention to and take all practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved and shall co-ordinate their efforts to these ends'.

*         Under Article 20 of the Convention on Psychotropic Substances, States Parties are required to 'take all practicable measures for the prevention of abuse of psychotropic substances and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved, and shall co-ordinate their efforts to these ends'.

*         Article 14(4) of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires States Parties to 'adopt appropriate measures aimed at eliminating or reducing illicit demand for narcotic drugs and psychotropic substances, with a view to reducing human suffering and eliminating financial incentives for illicit traffic'.

 

Funding may be provided for projects directed at reducing the impact of substance misuse on individuals, families, carers and communities.  For example, projects could include the provision of drug and alcohol treatment services, including through prevention, diagnosis and early intervention activities or treating health conditions arising from drug or alcohol misuse.

 

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

 

The express incidental power (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 (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.

 

Under the Fund, funding may be provided for projects directed at reducing racial, cultural and religious intolerance and strengthening social cohesion, community harmony and cross-cultural understanding.

 

 

 

 

 

 

 

 

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. 1) Regulations 2018

 

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. 

 

Schedule 1 to the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 1) 2018 amends Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government expenditure on two initiatives that will be administered by the Department of Social Services.

 

The initiatives are:

*         the Integrated Carer Support Service program to help carers access and receive support through new online services and Regional Delivery Partners earlier in their caring role and on a more proactive basis, with funding of $85.6 million over four years from 2017-18; and

*         the Social Impact Investment Sector Readiness Fund to allow the Government to build the capability of organisations with a social purpose to bring projects to the social impact investing market.

 

Funding of $8 million over four years from 2017-18 for the Social Impact Investment Sector Readiness Fund was included in the 2017-18 Budget.

 

The Minister for Social Services has 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