Attachment A

 

Details of the Financial Framework (Supplementary Powers) Amendment (Foreign Affairs and Trade Measures No. 2) Regulations 2023

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Foreign Affairs and Trade Measures No. 2) Regulations 2023.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after registration 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

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - Part 4 of Schedule 1AB (table item 542, column headed "Objective(s)")

 

Table item 542 in Part 4 of Schedule 1AB establishes legislative authority for government spending on the Pacific Australia Labour Mobility Scheme (PALM scheme), which is administered by the Department of Foreign Affairs and Trade (the department).

 

Item 1 amends table item 542 by inserting the word "circular" before the word "mobility” in the column headed "Objective(s)". The amendment reflects the intent of the PALM scheme as a circular labour mobility program. The concept of circular labour mobility captures the idea of temporary, repeat migration, allowing destination countries to benefit from the opportunity to fill labour and skills gaps, whilst encouraging/ensuring that foreign workers return to their country of origin as well as contribute their skills back to their home countries. 

 

Item 2 - Part 4 of Schedule 1AB (table item 542, column headed "Objective(s)")

 

Item 2 amends table item 542 by omitting the words "in Australia" and substituting the words "in Australia, including by providing assistance to those workers, and their families, to support or otherwise enable those workers to do one or more of the following: (a) deploy to Australia; (b) participate in the program while in Australia; (c) reintegrate into their home country." in the column headed "Objective(s)". The amendments will extend the types of assistance which will be available to workers and their families who take up work opportunities in Australia. The expanded PALM scheme will assist workers and their families deploy to Australia, participate in the program while in Australia, and reintegrate into their home country.

 

The PALM scheme was established in September 2021 as a result of the merger of the
short-term Seasonal Worker Programme and the long-term Pacific Labour Scheme.

 

The PALM scheme is an important temporary migration program to address unskilled,
low-skilled, and semi-skilled workers across rural and regional Australia, and agriculture nationally. It allows eligible Australian businesses to hire workers from nine Pacific Island countries (Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu) and Timor-Leste to fill demonstrated workforce shortages, primarily in rural and regional Australia. It facilitates circular migration that seeks to boost vital remittance flows to the Pacific and Timor-Leste; upskill PALM scheme workers; meet Australia's labour shortages; and create people-to-people connections within the region.

 

As part of the Government's plan to Build a Stronger Pacific Family, the Australian Government made a commitment to expand and improve the PALM scheme, including to address negative social impacts of long-term family separation and to maximise benefits for participants.

 

The expanded and improved PALM scheme will include:

• support for an initial cohort of 200 long-term PALM scheme workers to be accompanied by their partners and children (Family Accompaniment pilot); and
• support for unaccompanied workers and their families to prepare for PALM scheme deployments and support for both accompanied and unaccompanied workers on their return home to capitalise on new skills and savings (Family Readiness and Reintegration Support).

 

Family Accompaniment pilot

 

Family Accompaniment will allow long-term PALM scheme workers (on one to four year placements) to bring their immediate family to Australia, subject to employer sponsorship.

 

The department is responsible for the design and planning of the Family Accompaniment pilot, in consultation with other Commonwealth departments that will have a role in implementation, including the Department of Employment and Workplace Relations, the Department of Home Affairs, the Department of Education, the Department of Health, the Department of Social Services and Services Australia. 

 

Family Accompaniment will commence with a pilot to allow for settings to be tested and adjusted where necessary to ensure a positive experience for PALM scheme families, and to determine longer-term implementation arrangements. It will commence with an initial cohort of 200 families in 2023-24. Eligibility criteria and the process for selecting the 200 workers able to bring their families to Australia is still to be determined.

 

While in Australia, accompanying family members will be able to take up paid work and children will be able to go to school. Subject to the passage this year of the Social Services and Other Legislation Amendment (Australia's Engagement in the Pacific) Bill 2023, eligible PALM scheme families will have access to the Family Tax Benefit and the Child Care Subsidy to provide financial assistance while they are raising their children in Australia and reduced barriers to workforce participation by family members.

 

The department may conduct multiple procurements for service providers to deliver different components of the design and initial implementation of the Family Accompaniment pilot. A program of work will be developed and undertaken in close consultation with
whole-of-government partners, approved employers and participating countries to inform the design, draw on research, reduce risk, develop operational guidance and policies, and engage directly with workers to help them to plan, prepare for and support arriving family members.

 

This will include work to design and deliver pre-departure briefings for family members prior to their travel to Australia; recruitment of additional staff in Labour Sending Units (LSUs) in participating countries to manage additional workload and complexities associated with family accompaniment; development and dissemination of communication materials for families with information on settling in Australia and accessing support; and expansion of information technology platforms to provide functionality required to manage the family accompaniment program.

 

Family Readiness and Reintegration Support

 

The Family Readiness and Reintegration Support expenditure will further address the social impacts of family separation and maximise the benefits of participation in the PALM scheme. These measures are intended to better prepare all PALM scheme workers and their families for deployments, including those families not coming to Australia under the Family Accompaniment pilot, and to support workers on their return home to reintegrate and to capitalise on the new skills and savings accrued while in Australia.

 

This will include delivery of pre-departure workshops designed for workers to participate with their families. It will also include engagement of a service provider to implement pilots to test potential approaches for reintegration on the workers return, including in relation to programs which foster entrepreneurship among returned PALM scheme workers. The Family Readiness and Reintegration Support may involve the department conducting multiple procurements of service providers to deliver programs co-designed with labour-sending countries.

 

The department will be responsible for procuring service providers to deliver components of the Family Accompaniment pilot and the Family Readiness and Reintegration Support. Expenditure in relation to these procurements will be managed primarily by the department however other Commonwealth departments may be responsible in the future for delivering aspects of the PALM scheme. Some design elements will be delivered by a contractor under an existing deed for implementation of PALM scheme activities.

 

Funding will be administered in accordance with the Commonwealth resource management framework, including the Public Performance and Accountability Act 2013, and the Commonwealth Procurement Rules (CPRs).

 

The services for the Family Accompaniment pilot and the Family Readiness and Reintegration Support will be procured either under an existing deed of standing offer which the department has with a supplier for services related to the PALM scheme (that was selected through a competitive open tender process) or through other competitive open tender processes advertised on AusTender.

 

Where a competitive open tender process is conducted, the decision maker will be the delegate of the Secretary of the department in accordance with the department's Public Governance and Accountability (DFAT Secretary to DFAT Officials) 2022 (No. 1) Delegation Instrument, which provides delegation to department officials to approve spending or enter into an arrangement, in accordance with that Instrument.

 

The only decision-making process inherent in this early phase of the Family Accompaniment pilot and Family Readiness and Reintegration Support activities which has not previously been considered by the department's delegated decision makers as part of the PALM scheme is the engagement of service providers for each of the activities. Regardless, independent merits review is not an appropriate remedy because it would be slower, more administratively burdensome and more costly than relying on the existing complaints handling and judicial review processes available to tenderers.

 

Merits review of decisions made in connection with a procurement would not be considered appropriate because these decisions relate to the provision of a series of contract awards to a series of service providers, over other service providers. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.16 to 4.19 of the guide, What decisions should be subject to merit review?).

 

A limited pool of resources will be allocated to funding the relevant organisations. Prospective service providers who are tendering for a portion of these resources will have to do so in accordance with prescribed eligibility criteria, advertised as part of the procurement process, in accordance with the CPRs, as applicable. Once a successful tenderer is in place, any subsequent decision to overturn the original decision and nominate an alternative tenderer, may result in a smaller pool of resources being available for subsequent tenderers. This may unduly impact on the ability of those tenderers to satisfy the original requirements, and their ability to deliver the expected outcomes of the funding.

 

The eligibility criteria for participation in the initial stage of the Family Accompaniment pilot are still being designed. The selection process is also still under development and will inform the process for eligible families to make applications to the Department of Home Affairs for the provision of visas. 

 

While judicial review is not ordinarily available to tenderers in a procurement process an aggrieved tenderer may challenge the department's decisions in accordance with the Government Procurement (Judicial Review) Act 2018 (GPJR Act). 

 

Where the parties are unable to resolve the tenderer's concerns through the complaints handling process, the GPJR Act enables suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. The GPJR Act applies to any procurement decisions made under the instrument, where such decisions are 'covered procurements' within the meaning of section 5 of the Act.

 

The department has a Complaints Handling Policy (available at www.dfat.gov.au/about-us/publications/complaint-handling-procedures-procurement) that sets out the process for responding to any procurement complaints received. This includes investigations to resolve the complaint by reaching a fair and independent view on the issues raised by the complainant. If the department finds a complaint has merit and the complainant has been inconvenienced or disadvantaged through their interactions with the department, an apology or other form of suitable remedy such as providing additional information, changing or reconsidering a decision or expediting action may be appropriate. If the complainant is still not satisfied with the response, they may seek an internal review of how the complaint was managed. If the complainant is still dissatisfied, the option to seek independent review is available from the Commonwealth Ombudsman or the Federal Court. In this case, all information about the complaint and proposed resolution must be provided by the department, when requested.

 

The review and audit process undertaken by the Australian National Audit Office also provides a mechanism to review the department's spending decisions and report any concerns to the Parliament. These requirements and mechanisms help to ensure the proper use of Commonwealth resources and appropriate transparency around decisions relating to making, varying or administering arrangements to spend relevant money.

 

The Family Accompaniment pilot and Family Readiness and Reintegration Support are being designed in close consultation with whole-of-government partners (including the Departments of Home Affairs, Employment and Workplace Relations, Education, Health and Aged Care, Social Services and Services Australia). 

 

The department is also consulting with Pacific and Timor-Leste Governments, including with labour-sending units in those countries and with their Heads of Mission in Australia on the design and individual country participation in the initial stage.

 

Approved Employers and peak industry bodies are being consulted regarding their obligations under the Family Accompaniment pilot and broader settings.

 

Funding of $67.5 million for expanding and improving the PALM scheme, including the Family Accompaniment pilot was included in the 2022-23 October Budget under the measure 'Enhancing the Pacific Australia Labour Mobility Scheme' for a period of four years commencing in 2022-23. Details are set out in the Budget October 2022-23, Budget Measures, Budget Paper No. 2 at page 111. 

 

Additional funding of $370.8 million for the PALM scheme, including for Family Readiness and Reintegration Support was included in the 2023-24 Budget under the measure 'Enhancing Pacific Engagement' for a period of four years commencing in 2023-24. Details are set out in the Budget 2023-24, Budget Measures, Budget Paper No. 2 at page 119.

 

Funding for this item will come from Program 1.1: Foreign Affairs and Trade Operations and Program 1.2: Official Development Assistance which is part of Outcome 1. Details are set out in the Portfolio Budget Statements 2023-24, Budget Related Paper No. 1.8, Foreign Affairs and Trade Portfolio at pages 26, 29 and 30.

 

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 aliens power (section 51(xix));

*         the immigration or emigration power (section 51(xxvii));

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

*         the Pacific relations power (section 51(xxx)).

 

Aliens power

 

Section 51(xix) of the Constitution empowers the Parliament to make laws with respect to 'naturalization and aliens'.

 

Expanding the PALM scheme will support bringing to Australia the families of foreign workers from Timor-Leste and the Pacific.

 

Immigration and emigration power

 

Section 51(xxvii) of the Constitution empowers the Parliament to make laws with respect to 'immigration and emigration'.

 

Bringing to Australia the families of foreign workers from Timor-Leste and the Pacific may provide a pathway to permanent residency in certain circumstances.

 

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 with respect to matters or things outside the geographical limits of Australia.

 

The PALM scheme, once expanded, will support bringing to Australia the families of foreign workers from places external to Australia.

 

Pacific relations power

 

Section 51(xxx) of the Constitution empowers the Parliament to make laws with respect to 'the relations of the Commonwealth with the islands of the Pacific'.

 

Expanding the PALM scheme will support bringing to Australia the families of foreign workers from participating Pacific Island countries.

Attachment B

 

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 (Foreign Affairs and Trade
Measures No. 2) Regulations 2023

 

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 Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by 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 (Foreign Affairs and Trade Measures No. 2) Regulations 2023 (the Regulations) amend table item 542 in Part 4 of Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on the Pacific Australia Labour Mobility Scheme (PALM scheme), which is administered by the Department of Foreign Affairs and Trade.

 

The PALM scheme is an existing government initiative which allows employers to recruit workers from nine Pacific countries and Timor-Leste for short-term work placements of up to nine months, and long-term placements of one to four years. All PALM scheme workers enter Australia under the PALM stream in the subclass 403 (Temporary Work (International Relations)) visa. The PALM stream is being amended to allow primary subclass 403 visa holders participating in the PALM scheme on long-term placements to bring their partners and children to Australia, where approved. This will commence with an initial cohort of 200 families in the fourth quarter of 2023.

 

As part of the Government's plan to Build a Stronger Pacific Family, the Australian Government made a commitment to expand and improve the PALM scheme, including to address negative social impacts of long-term family separation and to maximise benefits for participants.

 

Funding of $370.8 million was agreed in the 2023-24 budget to expand and improve the PALM scheme, which will include:

• support for an initial cohort of 200 long-term PALM scheme workers to be accompanied by their partners and children (Family Accompaniment pilot); and
• support for unaccompanied workers and their families to prepare for PALM scheme deployments and support for both accompanied and unaccompanied workers on their return home to capitalise on new skills and savings (Family Readiness and Reintegration Support).

 

Human rights implications

 

This disallowable legislative instrument engages the following human rights:

• the right to respect for the family - Articles 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR), read with Article 2; and Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2;
• the rights of parents and children - Article 3 of the Convention on the Rights of the Child (CRC), read with Article 4; and Article 24 of the ICCPR;
• the rights to equality and non-discrimination - Article 2 of the ICESCR and Article 26 of the ICCPR; and
• the right to work and rights at work - Articles 6, 7 and 8 of the ICESCR.

 

Right to respect for the family

 

Article 2 of the ICCPR requires that each State Party to the Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

Each State Party undertakes to take the necessary steps to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the Covenant.

 

Article 2 of the ICESCR requires that each State Party to the Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognized in the Covenant by all appropriate means, including particularly the adoption of legislative measures.

 

Articles 17 and 23 of the ICCPR and article 10 of the ICESCR refers to the right to protection of the family and requires the State not to arbitrarily or unlawfully interfere in family life; and to adopt measures to protect the family, including by funding or supporting bodies that protect the family.

 

This disallowable legislative instrument engages the right to respect for the family in that it adopts measures which will provide active support to family members and children when accompanying PALM scheme workers and positively facilitates family unification and the right to family life by supporting families in their transition to and from Australia.

 

Where family members are not accompanying PALM scheme workers, the instrument will enable funding to design and implement a program of work that will reduce the negative social impacts of long periods of family separation. Providing pre-departure support for workers and their families will equip them with the necessary skills to maximise socio-economic benefits of labour mobility and sustain health family relationships during the period of separation.

 

Rights of parents and children

 

Article 4 of the CRC requires that States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.

 

Article 3 of the CRC and article 24(1) of the ICCPR recognise the rights of parents and children. In addition to the rights enjoyed by all persons under human rights treaties, parents and children enjoy special rights, particular to their status. Under the CRC, countries are required to apply the principle of the best interests of the child. The principle applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and wellbeing, as well as measures to support and assist parents and others who have day-to-day responsibility for ensuring recognition of children's rights. It requires all legislative, administrative and judicial bodies and institutions to systematically consider how children's rights and interests are or will be affected directly or indirectly by their decisions and actions'.

 

This disallowable legislative instrument promotes these rights as it enables families and children to accompany PALM scheme workers to Australia and provides them with the skills and knowledge to actively participate, and receive the benefits of living, studying and working in Australia. The instrument will enable children to accompany the PALM scheme workers to Australia and provide support in accessing the Australian education system for those children. This engages the right in that children will be able to obtain the full benefits of education whilst accompanying their parents in the scheme and benefit from the financial supports in which the instrument will facilitate for workers.

 

This disallowable legislative instrument also promotes this right in that it facilitates direct funding for pre-departure workshops that support workers and their partners to prepare for participation in labour mobility programs and sustain health family relationships through periods of separation.  

 

Rights to equality and non-discrimination

 

Article 2(2) of the ICESCR and article 26 of the ICCPR recognise rights to equality and protection against discrimination on any ground. Equality affirms that all human beings are born free and equal. Equality presupposes that all individuals have the same rights and deserve the same level of respect. All people have the right to be treated equally.

 

Non-discrimination is an integral part of the principle of equality. It ensures that no one is denied their rights because of factors such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or birth. In addition to those grounds, discrimination on certain other grounds may also be prohibited. These grounds include age, nationality, marital status, disability, place of residence within a country and sexual orientation.

 

This disallowable legislative instrument engages the right to equality and non-discrimination as it facilitates access to families to equally participate in the PALM scheme and reduces the risk that only those who are not accompanied by dependents will seek to participate in the PALM scheme.

 

To the extent that the disallowable legislative instrument limits the right to equality and
non-discrimination in that it is only available to workers from the Pacific Islands and
Timor-Leste and not open to workers from other countries, this is reasonable and proportionate to achieving the legitimate purposes of the Family Accompaniment and Family Readiness and Reintegration Support activities. The disallowable legislative instrument is designed to address the social impacts of long periods of family separation and build relationships with participating Pacific Island countries and Timor-Leste. The instrument is designed to enhance and encourage greater cultural, business, and educational exchange with Australia's Pacific neighbours and facilitate circular migration to boost vital remittance flows; upskill PALM scheme workers; meet Australia's labour shortages; and create people-to-people connections within the region.

 

Right to work and rights at work

 

The right to work and rights at work is contained in Articles 6(1), 7 and 8(1)(a) of the ICESCR. The right to work is a right of all people to have the opportunity to gain their living by work they freely choose, allowing them to live in dignity. It is a right to decent work, providing an income that allows the worker to support themselves and their family, which respects fundamental human rights and provides safe and healthy conditions of work. It is a right to choose an occupation and engage in work. It applies to all types of work, both in the public and private sectors, and to the formal and informal labour market.

 

This disallowable legislative instrument engages the right to work and rights at work in that it facilitates information for PALM scheme workers and their accompanying adult family members that will assist them to seek to gain and access paid work while in Australia. The right to work will further be enabled in a process separate to this disallowable legislative instrument that will provide the right to work as a condition of the secondary visas (granted to eligible family members) under the PALM stream in the subclass 403 (Temporary Work (International Relations)) visa.

 

Conclusion

 

This disallowable legislative instrument is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance