Details of the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 4) 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. 4) 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 a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on an activity that will be administered by the Department of Social Services (DSS).
New table item 298 establishes legislative authority for government spending on the National Disability Insurance Scheme (NDIS) Jobs and Market Fund (the Fund) announced in the 2018-19 Budget.
The aim of the Budget measure is to support the disability workforce and market to meet the growing demand as the NDIS is fully rolled out by 2020-21.
The Fund will build on the NDIS Sector Development Fund which ended on 30 June 2018. The Sector Development Fund, which was established in 2012-13, has funded projects totalling more than $110 million to support people with disability, providers and the workforce to transition to the NDIS. The Fund will shift the focus to prioritising opportunities for workforce and market growth.
The Productivity Commission's 2017 Review of NDIS Costs found that the supply of disability supports and workforce will not be sufficient to meet full scheme demand without intervention. At this critical stage in the NDIS's development, and with the conclusion of the Sector Development Fund, further funding is required to make evidence-based strategic investments in market and workforce growth.
The objective of the Fund is to provide targeted funding to support the rapid growth of the NDIS workforce and market, including investment to help overcome current barriers. These barriers include lack of market intelligence; low awareness of, and misperceptions about, NDIS job opportunities; under-developed service provision in rural and remote areas; and under-developed business capability to build and scale up enterprises. The Fund will prioritise projects that grow the provider market and workforce in number and capability, and have a lasting impact. Projects will be strategically targeted to address the workforce and market gaps identified through detailed market analysis.
Examples of projects that may be funded include:
* work to support the development of an e-marketplace;
* initiatives to support Aboriginal and Torres Strait Islander organisations becoming NDIS-registered providers;
* programs that link school leavers and Vocational Education and Training/university students with NDIS career opportunities;
* online training modules to train NDIS workers; and
* projects to develop new delivery models in rural and remote areas.
The Fund will be supported by communication activity to raise awareness of the opportunities for workers in the sector; change perceptions about disability care work; and encourage and educate workers to participate in the NDIS. A key outcome will be to communicate that the NDIS has jobs available across the Australian workforce for people of all cultural backgrounds including Indigenous people; skilled and unskilled workers; and those in metropolitan, rural and regional areas.
Funding of $64.3 million was included in the 2018-19 Budget under the measure 'National Disability Insurance Scheme Jobs and Market Fund', including $45.6 million administered for the Fund, $13.7 million for broader communication activity and $5.0 million for departmental expenses, for a period of four years commencing in 2017-18. Details are set out in Budget 2018-19, Budget Measures, Budget Paper No. 2 2018-19 at pages 176 to 177.
Funding will come from Program 3.2: National Disability Insurance Scheme, which is part of Outcome 3: Disability and Carers. Details are set out in the Portfolio Budget Statements 2018-19, Budget Related Paper No. 1.15, Social Services Portfolio at pages 17 and 80.
The decision to expend funds on projects under the Fund will be determined by the delegate of the Secretary of DSS. The types of projects funded through the Fund will be encompassed in the Fund's strategy and guidelines which will also set out the Fund's aims and objectives, target areas for funding, and operational elements. The strategy and guidelines will be made publicly available on the DSS website (www.dss.gov.au).
Selection processes will include open and restricted grant rounds and a number of procurement processes, conducted in accordance with applicable grants and procurement rules. Assessment processes for grants and procurements will be undertaken by departmental staff to determine which projects represent best value for money against the requirements, in accordance with the Fund's strategy and guidelines and specific guidelines for grant and procurement opportunities.
Grant Opportunity Guidelines and other relevant documentation, including the outcomes of all grant round processes, will be published on the Community Grants Hub website (www.communitygrants.gov.au).
Procurement documentation and details regarding the outcomes of all procurement processes will be published on the Government's AusTender website (www.tenders.gov.au).
There will be no independent review for procurement funding decisions made under the Fund. Funding decisions for the procurement of goods and services under the Fund 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.
There will be no independent review for grant funding decisions made under the Fund. The delegate of the Secretary of DSS will make the final decisions in all matters including approval of the grant opportunity, associated funding amount to be awarded and its terms and conditions. All decisions regarding grant funding will be made in accordance with the 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.
Funding under the Fund involves an allocation of finite resources. Furthermore, if decisions to expend funds were to be overturned, other decisions to expend funds could be affected, thereby making it unsuitable for merits review.
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 DSS (this will be undertaken by departmental officers). Where appropriate, applicants will have recourse to the Commonwealth Ombudsman if they consider that the response provided by DSS 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 treaty implementation aspect of the external affairs power (section 51(xxix));
* the social welfare power (section 51(xxiiiA));
* the communications power (section 51(v)); and
* the Commonwealth executive power and the express incidental power (section 61 and section 51(xxxix)).
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 has obligations under the Convention on the Rights of Persons with Disabilities, in particular Articles 3, 4, 9, 19, 20, 25 and 26.
Articles 3 and 4 set out the general principles and obligations of States Parties which include that States Parties 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 9 provides that States Parties shall enable persons with disabilities to live independently and participate fully in all aspects of life by taking appropriate measures to ensure the identification and elimination of obstacles and barriers to accessibility. The Budget measure seeks to increase the size, capacity and sustainability of the disability workforce to better support persons with disabilities. By increasing the size and capacity of the disability workforce the Fund will thereby help support and promote the rights of persons with disabilities to access and more fully participate in all aspects of life.
Articles 19 and 20 provide that States Parties are to recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and to ensure personal mobility with the greatest possible independence for persons with disabilities. The Fund is designed to create a sustainable workforce that can meet the growing demands of the NDIS provider market. By enhancing the capabilities of the NDIS workforce the Fund is directed toward ensuring persons with disabilities will have access to community support services and facilities that are available to the general population. The Fund will also fund certain training for NDIS workers, to help ensure the NDIS workforce have the skills to appropriately assist and support persons with disabilities and thereby promote the greatest possible independence for those persons.
Articles 25 and 26 recognise that persons with disabilities have the right to enjoy the highest attainable standard of health without discrimination on the basis of disability, and for States Parties to take effective and appropriate measures to enable persons with disabilities to attain and maintain maximum independence and full inclusion and participation in all aspects of life, including through the provision of habilitation and rehabilitation services and programs. A key goal of the Budget measure is to spread economic opportunity for employment within the sector across Australia, including in rural and remote Australia, and to promote employment opportunities within the NDIS for people of all cultural backgrounds including Indigenous people. In this way, funding under the Budget measure is directed toward ensuring persons with disabilities can access appropriate services and programs that are as close as possible to people's own communities, including in rural areas.
Social welfare power
The social welfare power in section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of various social welfare benefits including pharmaceutical, sickness and hospital benefits and medical and dental services (but not as to authorise any form of civil conscription). Under the Fund, funding will be provided:
* to increase the number and capability of disability support providers and workers; and
* to ensure that there are sufficient disability support providers and workers to service all areas of need.
Communications power
Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'. To support the Fund, funding will be provided to support a communication campaign to raise awareness about the opportunities for workers in the disability services sector. The Fund will also fund the delivery of online training modules to train NDIS workers.
Communication activity will include mass media advertising, public relations, and customised approaches for identified target audiences including providers, current workers in allied sectors and the unemployed and underemployed.
Executive power and express incidental power
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, the express incidental power supports activities that form part of the ordinary and well-recognised functions of government.
The Fund will, for example, include the Commonwealth taking steps to engage with providers, current workers in allied sectors, the unemployed and underemployed, Indigenous Australians and people from culturally and linguistically diverse backgrounds, to inform its policy development.
Commonwealth Numbered Regulations - Explanatory Statements