Details of the Financial Framework (Supplementary Powers) Amendment
(Social Services Measures No. 3) Regulations 2021

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 3) Regulations 2021.

 

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

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - Part 4 of Schedule 1AB (table item 333, column headed "Program")

 

Item 1 amends table item 333 in Part 4 of Schedule 1AB by omitting "Assisting
non-government and private sector organisations to conduct and evaluate social impact investments" and substituting "Social Impact Investing" in the column headed "Program".

 

Currently, funding under the Social Impact Investing (SII) program is limited to non-government or private sector organisations. The amended table item 333 will extend eligibility for funding to Commonwealth entities, and continue to support existing arrangements under the SII program. The Department of Social Services (the department) has policy responsibility for the SII program.

 

Item 2 - Part 4 of Schedule 1AB (table item 333, column headed "Objective(s)")

 

Item 2 amends table item 333 in Part 4 of Schedule 1AB by omitting all of the words from and including "To provide" to and including "measures:" in the column headed "Objective(s)".

 

The amended table item 333 establishes legislative authority for government spending on the SII program, which supports an innovative method of financing interventions to address intractable social or environmental problems. SII brings together governments, service providers, investors and philanthropists to undertake collaborative projects that achieve improved social outcomes.

 

In the 2018-19 Budget, the Australian Government committed $6.7 million over four years (2018-19 to 2021-22) to build the Australian SII sector's capability to measure outcomes under the Outcomes Measurement Initiative. This is part of the Government's broader $57.7 million commitment to trialling SII and building the capacity of the SII sector. It is anticipated that over time the Outcomes Measurement Initiative will support the SII sector to achieve improved outcomes through building capacity to measure and communicate outcomes and impact, support funders and investors to understand the outcomes achieved and create a market environment that encourages investment.

 

SII is an outcomes-based investment model that aims to achieve social outcomes as well as a financial return. The Government is interested in SII as it provides an alternative and innovative mechanism to address social issues by leveraging government and private sector capital, building a stronger culture of robust evaluation and evidence-based decision making, and creating a heightened focus on outcomes. The Australian Government's SII agenda involves supporting the Australian SII market through capability building measures, trials, and developing an SII strategic approach.

 

Measures supported under the SII program include:

*         funding up to three organisations operating in the SII sector to support scaling of a successful business or service and analysis of its outcomes and impact, including the measurement approach taken;

*         development of longitudinal case studies on the funded organisations' outcomes and impact measurement approach, the outcomes generated by the service or business and lessons learned from scaling, to be published online to inform best practice outcomes and impact measurement across the SII sector; and

*         development of an outcomes and impact measurement approach to help the sector navigate existing measurement tools and resources.

 

The first two measures are in the process of being implemented. As part of the development of an outcomes and impact measurement approach (the third measure), the department is looking to develop two concepts under the Outcomes Measurement Initiative. These are:

*         an online outcomes and impact measurement navigation tool, developed in partnership with the sector; and

*         a data demonstration project to enhance accessibility to government data to support outcomes and impact measurement.

 

Legislative authority for government spending on the navigation tool will be provided by new table item 500 'Outcomes Measurement Initiative - Navigation Tool' in Part 4 of Schedule 1AB. The amended table item 333 will enable the provision of funding to support the data demonstration project, which will test the time, cost, process and overall suitability of two existing Commonwealth data integration expert organisations and one academic institution to work with SII participants on outcomes and impact measurement. These concepts will also enhance government understanding of practicalities of future data initiatives for the SII sector. The data demonstration project is being refined in consultation with data custodians and SII sector participants. The department is currently putting together a reference group to facilitate these consultations.

 

The department will deliver the data demonstration project through Memoranda of Understanding with eligible Commonwealth entities, such as the Australian Bureau of Statistics (ABS) and the Commonwealth Scientific and Industrial Research Organisation (CSIRO) Data 61.

 

The department will administer funding in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the department's Accountable Authority Instructions. Funding decisions will be made by a departmental official, a delegate of the Secretary of the department.

 

Funding decisions made in connection with the data demonstration project are not considered suitable for independent merits review, as they are decisions relating to the allocation of a finite resource, from which all potential claims for a share of the resource cannot be met. In addition, any funding that has already been allocated would be affected if the original decision was overturned. The Administrative Review Council (ARC) has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

 

The department has undertaken consultations with representatives from the SII sector including facilitation of a workshop on the data demonstration project on 27 May 2021. That workshop included representatives from ABS, CSIRO Data 61, the Centre for Social Impact, the Social Impact Measurement Network of Australia, the Department of the Prime Minister and Cabinet, and Social Ventures Australia.

 

Bilateral meetings with these stakeholders and other representatives from the SII sector will continue throughout the remainder of 2021 as the data demonstration project continues to be developed. Further workshops are likely in addition to the set-up of a reference group of industry experts and users who can look at the project in more detail in order to refine it into a product that maximises value for the SII sector.

 

Total funding of $6.7 million for the Outcomes Measurement Initiative was included in the 2018-19 Budget under the measure 'Social Impact Investing - Building Outcome Measurement Capacity' for a period of four years commencing in 2018-19. Details are set out in Budget 2018-19, Budget Measures, Budget Paper No. 2 2018-19 at page 177.

 

Funding of $3.2 million in 2021-22 (to be shared between a data demonstration project and a navigation tool project) will come from Component 11 (Social Impact Investing Initiative) of Program 2.1: Families and Communities, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.12, Social Services Portfolio at page 79.

 

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 census and statistics power (section 51(xi));

*         the banking power (section 51(xiii));

*         the aliens power (section 51(xix));

*         the unemployment benefits, pharmaceutical benefits, sickness benefits and medical services aspects of the social welfare power (section 51(xxiiiA));

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

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

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

*         the territories power (section 122).

 

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 to 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.

 

Under the data demonstration component of the program, funding will be provided to assist organisations conducting SII activities online to evaluate and improve those activities.

 

Census and statistics power

 

The census and statistics powers (section 51(xi)) of the Constitution supports activities for a range of information for statistical purposes, including those in connection with the collection, compilation, analysis and dissemination of statistics.

 

With respect to the census and statistics power, the item authorises expenditure on technical infrastructure and tools that integrate and link statistical data, as well as the collection of information for statistical purposes.

 

Banking power

 

Section 51(xiii) of the Constitution empowers the Parliament to make laws with respect to 'banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money'.

 

Funding may be directed to projects that involve banks supporting vulnerable people, for example, by providing no-interest loans to homeless persons to assist them to secure housing.  

 

Aliens power

 

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

 

Funding may be provided to projects that 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.

 

Under the data demonstration component of the program, funding will be provided to assist organisations conducting SII activities relating to aliens to evaluate and improve those activities.

 

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 certain social welfare benefits, including maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances.

 

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 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.

 

Under the data demonstration component of the program, funding will be provided to assist organisations conducting SII activities supported by the social welfare power to evaluate and improve those activities.

 

Race 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'. 

 

Funding may be provided to projects that address specific needs of Aboriginal and Torres Strait Islander peoples. 

 

Under the data demonstration component of the program, funding will be provided to assist organisations conducting SII activities that address the specific needs of Aboriginal and Torres Strait Islander peoples to evaluate and improve those activities.

 

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 international obligations under treaties to which it is a party.

 

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

 

Australia has obligations relating to the elimination of all forms of discrimination against women under the CEDAW [1983] ATS 9. In particular:

*         Article 2 requires States Parties to 'condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women';

*         Article 3 requires States Parties to 'take in all fields, in particular in the political, social, economic and cultural fields, 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 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' and to 'ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children';

*         Article 10 requires States Parties to 'take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education';

*         Article 11 requires States Parties to 'take all appropriate measures to eliminate discrimination against women in the field of employment'; and

*         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 providing support for women in exercising their rights and freedoms on an equal basis with men; supporting women to escape situations of domestic and family violence; or 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.

 

Under the data demonstration component of the program, funding will be provided to assist organisations conducting SII activities of the kind mentioned above to evaluate and improve those activities.

 

Convention on the Rights of the Child (CRC)

 

Australia also has international obligations regarding the rights of the child under the CRC [1991] ATS 4. 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 present Convention';

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

*         Article 18(1) requires States Parties to 'ensure recognition of the principle that both parents have common responsibilities for the upbringing and developing 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 ... ensure the development of institutions, facilities and services for the care of children'. Article 18(3) requires States Parties to 'take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.';

*         Article 19(1) requires States Parties to take all appropriate measures 'to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child'. Article 19(2) requires States Parties to establish social programs to provide support for the child and those who have care of the child;

*         Article 27(1) requires States Parties to recognise 'the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development';

*         Article 28(1) requires States Parties to recognise 'the right of every child to education'; and

*         Article 29 requires States Parties to 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 potential'; 'the development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations'; 'the development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own'; 'the preparation of the child for responsible life in a free society'; and 'the development of respect for the natural environment'.

 

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.

 

Under the data demonstration component of the program, funding will be provided to assist organisations conducting SII activities of the kind mentioned above to evaluate and improve those activities.

 

Convention on the Rights of Persons with Disabilities (CRPD)

 

Australia also has international obligations regarding the rights of persons with disabilities, including those set out in the CRPD [2008] ATS 12. In particular:

*         Article 4(1) requires States Parties to 'ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability'. Article 4(1)(a) provides that States Parties undertake to adopt 'all appropriate legislative, administrative and other measures' to implement rights recognised in this Convention;

*         Article 8(1)(a) provides that States Parties undertake to adopt measures 'to raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities'. Article 8(1)(b) also provides that States Parties undertake to adopt measures 'to combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life'. Article 8(1)(c) similarly provides that States Parties undertake to adopt measures 'to promote awareness of the capabilities and contributions of persons with disabilities';

*         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 to 'facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community'. Article 19(c) requires States Parties to ensure that '[c]ommunity services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs';

*         Article 26(1) requires 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'; and

*         Article 27(1) requires States Parties to recognise 'the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities'.

 

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 at enabling people with disability to become and remain independent, or at preventing violence against, or abuse of, people with disability. Alternatively, projects could be directed at increasing the effective participation in society of people with long-term mental impairments, on an equal basis with others.

 

Under the data demonstration component of the program, funding will be provided to assist organisations conducting SII activities of the kind mentioned above to evaluate and improve those activities.

 

International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

 

Australia also has obligations under the CERD [1975] ATS 40. In particular:

*         Article 2 requires States Parties to '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'; and

*         Article 7 provides that States Parties undertake '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, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention'.

 

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.

 

Under the data demonstration component of the program, funding will be provided to assist organisations conducting SII activities of the kind mentioned above to evaluate and improve those activities.

 

International Covenant on Economic, Social and Cultural Rights (ICESCR)

 

Australia also has international obligations under the ICESCR [1976] ATS 5. In particular:

*         Article 2 requires the States Parties to undertake to take steps to progressively achieve 'the full realisation of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures';

*         Article 6 requires the States Parties to 'recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts', and to 'take appropriate steps to safeguard this right.';

*         Article 11(1) requires the States Parties to recognise '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' and to take appropriate steps to ensure the realisation of this right;

*         Article 12(1) requires the States Parties to recognise 'the right of everyone to the enjoyment of the highest attainable standard of physical and mental health'; and

*         Article 13(1) requires the States Parties to recognise 'the right of everyone to education'.

 

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, funded projects may be directed at treating health conditions arising from drug or alcohol misuse, or 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.

 

Under the data demonstration component of the program, funding will be provided to assist organisations conducting SII activities of the kind mentioned above to evaluate and improve those activities.

 

International Labour Organization's Conventions

 

Australia also has obligations under the International Labour Organization's Convention concerning Employment Policy [1970] ATS 17 (ILO Convention 122) and Convention concerning Vocational Guidance and Training in the Development of Human Resources [1986] ATS 2 (ILO Convention 142). In particular:

*         Articles 1 and 2 of the ILO Convention 122 require Members to pursue 'an active policy designed to promote full, productive and freely chosen employment', including deciding on and keeping under review measures to attain this objective;

*         Articles 1 and 2 of the ILO Convention 142 oblige Members to adopt policies and programs of vocational guidance and training, linked with employment. These policies and programs, whether or not offered in the formal education system or outside it, should be designed to improve the ability of the individual to understand and influence the working and social environment, and should encourage and enable all persons, without discrimination, to develop and use their capabilities for work in their own best interests and aspirations, and taking into account the needs of society;

*         Article 3 of the ILO Convention 142 requires Members to extend systems of vocational guidance to ensure that comprehensive information is available to all children, young persons and adults, including appropriate programs for all handicapped and disabled persons; and

*         Article 4 of the ILO Convention 142 requires Members to extend systems of vocational training systems to meet the needs for vocational training throughout life of young persons and adults in all sectors and at all levels of skill and responsibility.

 

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.

 

Under the data demonstration component of the program, funding will be provided to assist organisations conducting SII activities of the kind mentioned above to evaluate and improve those activities.

 

International conventions regarding narcotic drugs and psychotropic substances

 

Australia has obligations regarding drug control under the Single Convention on Narcotic Drugs [1975] ATS 33 (as amended), the Convention on Psychotropic Substances [1982] ATS 14, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances [1993] ATS 4. In particular:

*         Article 4 of the Single Convention on Narcotic Drugs requires the Parties to take such measures as may be necessary to 'give effect to and carry out the provisions of this Convention within their own territories' and to 'limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs';

*         Article 38(1) of the Single Convention on Narcotic Drugs requires the Parties 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'. Article 38(3) requires the Parties to 'assist persons whose work so requires to gain an understanding of the problems of abuse of drugs and of its prevention, and shall also promote such understanding among the general public if there is a risk that abuse of drugs will become widespread'; 

*         Article 20(1) of the Convention on Psychotropic Substances requires the Parties 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'. Article 20(3) requires the Parties to promote an understanding of the problems of abuse of psychotropic substances and of its prevention among the general public if there is a risk that abuse of such substances will become widespread;

*         Article 14(2) of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires the Parties to 'take appropriate measures to prevent illicit cultivation of and to eradicate plants containing narcotic or psychotropic substances, such as opium poppy, coca bush and cannabis plants, cultivated illicitly in its territory'. Article 14(4) requires the 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.

 

Under the data demonstration component of the program, funding will be provided to assist organisations conducting SII activities of the kind mentioned above to evaluate and improve those activities.

 

Executive power and 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 the Parliament, the executive or the courts by the Constitution. Section 61 of the Constitution extends to a range of matters including:

*         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, and

*         the execution and maintenance of the Constitution, and the laws of the Commonwealth.

 

Funding may be provided for the evaluation of the outcomes and impact of funded services and businesses. Data and findings collected through these evaluations would then be used to inform future government policy on supporting SII in Australia and SII activities that are of national significance.

 

An aspect of the data demonstration component of the program will be to provide advice to the Commonwealth about how data the Commonwealth holds might be utilised to facilitate SII projects or their evaluation.

 

Territories power

 

The provision of funding for activities in or in relation to a territory is supported by section 122 of the Constitution.

 

The program will assist access and receipt of support, including in the Northern Territory and the Australian Capital Territory. 

 

Under the data demonstration component of the program, funding will be provided to assist organisations conducting SII activities in a territory to evaluate and improve those activities.

 

 

 

Item 3 - Part 4 of Schedule 1AB (table item 333, column headed "Objective(s)", subparagraph (g)(vii))

 

Item 3 amends table item 333 in Part 4 of Schedule 1AB by omitting "Article 1" and substituting "Articles 1 and 2" in subparagraph (g)(vii) of the column headed "Objective(s)". This subparagraph provides additional constitutional support to activities funded under the SII program by including reference to Articles 1 and 2 of the ILO Convention 122.

 

Item 4 - Part 4 of Schedule 1AB (table item 333, column headed "Objective(s)", subparagraph (g)(viii))

 

Item 4 amends table item 333 in Part 4 of Schedule 1AB by omitting "and 2" and substituting "2, 3 and 4" in subparagraph (g)(viii) of the column headed "Objective(s)". This subparagraph provides additional constitutional support to activities funded under the SII program by including reference to Articles 1 to 4 of the ILO Convention 142.

 

Item 5 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds five new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on certain activities administered by the department and Services Australia.

 

New table item 500 establishes legislative authority for government spending on developing, building and maintaining an online navigation tool under the Outcomes Measurement Initiative, which is part of the SII program. The tool will enable social impact organisations to access information about social impact investing. Social impact organisations are broadly characterised as organisations that operate intentionally to resolve social problems, improve communities and provide people with access to employment and training.

 

The project will facilitate the establishment of a web-based search engine to make it easier for SII organisations, intermediaries and investors to search and draw on the growing suite of international and domestic tools, resources, case studies and research on outcomes and impact measurement. The department is putting together a working group to facilitate stakeholder consultations on the design and need for a navigation tool.

 

The navigation tool could also be leveraged as a notice board, which would facilitate organisations advertising upcoming webinars, conferences and other opportunities to build a community of practice focussing on outcomes and impact measurement. An initial focus on outcomes and impact measurement could be expanded over time to incorporate broader elements of SII, depending on effectiveness, demand and available resources.

 

The department will deliver the project through the provision of grant funding to external organisations. Grants will be administered in accordance with the Commonwealth resource management framework, including the PGPA Act and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). Grant information will be made available on the GrantConnect website (www.grants.gov.au), and grants will be administered by the Community Grants Hub, part of the department. A delegate of the Secretary of the department under the Financial Framework (Supplementary Powers) Act 1997 will be responsible for approving grant expenditure.

 

Funding decisions made in connection with the navigation tool project are not considered suitable for independent merits review, as they are decisions relating to the allocation of a finite resource, from which all potential claims for a share of the resource cannot be met. In addition, any funding that has already been allocated would be affected if the original decision was overturned. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

 

The department has undertaken consultations with representatives from the SII sector, including facilitation of a workshop on the navigation tool on 27 May 2021. The workshop included representatives from the Centre for Social Impact, the Social Impact Measurement Network of Australia, Social Ventures Australia, Clear Horizon, and Think Impact.

 

Bilateral meetings with these stakeholders and other representatives from the SII sector will continue throughout the remainder of 2021 as the navigation tool project continues to be developed. Further workshops are likely in addition to the possible set-up of a working group of industry experts and users who can look at the project in more detail in order to refine it into a product that maximises value for the SII sector.

 

Total funding of $6.7 million for the Outcomes Measurement Initiative was included in the 2018-19 Budget under the measure 'Social Impact Investing - Building Outcome Measurement Capacity' for a period of four years commencing in 2018-19. Details are set out in Budget 2018-19, Budget Measures, Budget Paper No. 2 2018-19 at page 177.

 

Funding of $3.2 million in 2021-22 (to be shared between a data demonstration project and a navigation tool project) will come from Component 11 (Social Impact Investing Initiative) of Program 2.1: Families and Communities, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.12, Social Services Portfolio at page 79.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the communications power (section 51(v)) of the Constitution.

 

Communications power

 

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

 

The navigation tool is an online search engine which provides better access to SII data. The search engine will build the capacity of SII organisations to engage with and utilise online resources.

 

New table item 501 establishes legislative authority for government spending on the Children and Family Intensive Support (CaFIS) service.

 

Funding will be provided for an early intervention, intensive community-based family support service offered to highly vulnerable families living in selected communities in the Northern Territory (NT) and the Anangu Pitjantjatjara Yankunytjatjara (APY) Lands, South Australia. CaFIS will have a footprint in six regions in the NT and the APY Lands, with specific locations identified as part of the grant selection process.

 

CaFIS will replace the Intensive Family Support Service (IFSS), which was redesigned in response to the Productivity Commission's study report Expenditure on Children in the Northern Territory (Reform Area 1: Coordinated funding underpinned by regional plans). The NT Government and the Australian Government have worked collaboratively to redesign IFSS and the NT's Intensive Family Preservation Service. These two programs were identified as an opportunity where both governments could have improved joint decision making. Senior officials from the Australian and the NT Governments will participate in each other's grant processes in 2021, ensuring both governments make informed decisions about local need, reduce duplication and enhance coordination of service delivery.

 

CaFIS aligns with the National Agreement on Closing the Gap (Target 12 - to reduce the over-representation of Aboriginal and Torres Strait Islander children in out-of-home care). One of the key objectives of CaFIS is to reduce the risk of children entering the child protection system or out-of-home care placement. 

 

CaFIS will maintain the early intervention and prevention focus of IFSS, however a number of changes will be implemented including:

*         services are to be trauma-informed, child-centred and culturally appropriate;

*         providers will need to demonstrate they have cultural authority and/or community support to deliver CaFIS in their communities;

*         an annual review of activities and service locations to ensure that services remain the best fit for their communities;

*         aligning CaFIS where possible with the Family Support Services provided by the NT Government to reduce duplication and enhance coordination of services;

*         having a broader focus on child wellbeing to reflect a more strengths-based approach to service delivery (noting that IFSS had a stronger focus on reducing child neglect); and

*         a preference for Aboriginal Community Controlled Organisations to deliver services where possible and appropriate.

 

Services will be provided to build on the strengths of families and communities to care for children in their culture. CaFIS will support parents and family members to develop their confidence and capacity to bring children up strong, support co-ordinated services to meet the needs of families, and address areas of concern that impact on children's safety and wellbeing. It will be a voluntary service that works in partnership with families to achieve their goals and helps keep children safe and strong.

 

CaFIS will be part of local services that link closely with the community and are part of
co-ordinated services to enhance family functioning and increase children's safety and wellbeing. Providers will need to demonstrate they are able to provide culturally appropriate services.

 

CaFIS will be a proactive contributor to regional and local inter-agency collaboration and
co-ordination. In doing this, CaFIS will not provide centralised case coordination for clients and will not hold overall responsibility for the development and monitoring of a case coordination management approach for their clients in respect to services provided by other organisations or agencies.

 

Services will be provided on an intensive basis, which means that they last long enough and are sufficiently intense so that they build a family's capacity to focus on children's safety and wellbeing, respond to immediate challenges, and address and cope with multiple and complex issues. Ideally, services will be no longer than 12 months in total.

 

CaFIS has three shared outcomes that all providers will address and report to the department on, being:

*         children are safe and growing up strong;

*         parents/caregivers better understand and can respond to their child's health and developmental needs; and

*         parents and children have increased social/emotional wellbeing.

 

Providers will be invited to focus on additional two or three outcome areas from an agreed outcomes list enabling a tailored approach to service delivery in their communities. Additional outcome areas are:

*         children have increased attendance of early childhood education and care or school;

*         parents/caregivers are more confident in their parenting;

*         parents and children feel supported in their culture; and

*         children and families have more social and emotional supports (kin/community).

 

CaFIS will focus on working with families with children aged up to 18 years where there are:

• multiple intersecting vulnerabilities and a need for support to make things safer for children to grow up strong at home and in community;
• escalating concerns for children (for example, self-harm, alcohol and other drugs, engagement with the justice system); and
• risks of children entering the child protection system or out-of-home care placement.

 

The objectives of CaFIS are to:

• support families to create nurturing and safer environments that grow children up strong, safe and connected to culture, which can be a strong protective factor;
• address challenges in families/households that put children at risk;
• support parents and families to build strong parenting skills;
• deliver services that acknowledge and support the importance of children and families to be connected to their culture; and
• help families get access to the services and supports they need and navigate service systems. 

 

Funding for CaFIS will be allocated through a targeted competitive grant process, administered by the Community Grants Hub in accordance with the PGPA Act and the CGRGs. Information about the grant process, including grant opportunity guidelines, was made available on the GrantConnect website (www.grants.gov.au) and the Community Grants Hub website (www.communitygrants.gov.au).

 

A selection advisory panel made up of departmental officials and with support from the NT government officials, the National Indigenous Australians Agency officials and subject matter experts will provide funding recommendations to the final decision maker, the Minister for Families and Social Services. Grants awarded will be published on the GrantConnect website.

 

Funding decisions under CaFIS will not be subject to independent merits review. However, applicants have the option of recourse via the department's complaints management system (www.dss.gov.au/contact/feedback-compliments-complaints-and-enquiries/complaints-page). Applicants also have recourse to the Commonwealth Ombudsman if they are not satisfied with the response (www.ombudsman.gov.au).

 

Funding decisions made in connection to CaFIS are not considered appropriate for independent merits review as they involve the allocation of a finite resource, and an allocation that has already been made to another party would be affected by overturning the original allocation. A decision made in relation to one grant would affect decisions in relation to all others. This would also have an impact on the delivery of services to highly vulnerable clients. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?). 

 

The redesign of IFSS into CaFIS was based on the recommendations and findings of the Productivity Commission's study report Expenditure on Children in the Northern Territory and an evaluation of the IFSS program. The Productivity Commission's report was a result of significant consultation with the community, non-government sector and government. In addition, the IFSS evaluation involved an in-depth consultation with all IFSS providers, a number of families participating in the program, and other sector stakeholders.

 

In 2019-20, the department engaged the Australian Centre for Child Protection (ACCP) of the University of South Australia to develop a program model for CaFIS. ACCP held consultation workshops with current IFSS providers in September 2020. Providers were supportive of the need to redesign the program and take into account changes in the operating environment since IFSS commenced in 2010-11. Consultation assisted in shaping the redesigned program model.

 

The department has worked collaboratively with the NT Government Department of Territory Families, Housing and Communities, the Reform Management Office and the National Indigenous Australians Agency on the future of IFSS and CaFIS. The department has also engaged with the Children and Families Tripartite Forum on CaFIS.

 

Annual funding of approximately $10.0 million is available for CaFIS, which will come from Component 1 (Families and Children) of Program 2.1: Families and Communities, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.12, Social Services Portfolio at page 76. CaFIS is an ongoing program.

 

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 external affairs power (section 51(xxix)); and
• the territories power (section 122).

 

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 international obligations under treaties to which it is a party.

 

Convention on the Rights of the Child

 

Australia has obligations to promote and protect the human rights and fundamental freedoms 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 present 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';
• 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', including through the 'establishment of social programmes'; and
• Article 30 requires States Parties to ensure that children are not denied the right to enjoy their culture.

 

CaFIS enables activities that support children to develop and ideally thrive, by supporting parents and families to build strong parenting skills. CaFIS aims to address challenges in vulnerable and at-risk families with children where there are escalating concerns for children, which will facilitate the development and wellbeing of the child and provide opportunities for a child's development that the child would otherwise lack. Finally, CaFIS promotes the enjoyment of culture as it involves activities that strengthen the connection of Aboriginal and Torres Strait Islander children to their culture.

 

Territories power

 

Section 122 of the Constitution empowers the Parliament to make laws 'for the government of any territory'. The territories power supports expenditure directed towards services provided in the Commonwealth territories, including NT.

 

CaFIS will operate in certain regions within the NT, aside from the APY Lands, and will enable services to be provided in the NT.

 

New table item 502 establishes legislative authority for government spending on the Individual Placement and Support (IPS) program.

 

The IPS program forms part of the Government's broader Youth Employment Strategy aimed at tackling the problem of high youth unemployment. In the 2015-16 Budget, the Government made a decision to launch a trial of the IPS model of employment assistance to help improve employment outcomes for young people up to the age of 25 years with mental illness, who are at risk of disengaging from education and/or at risk of long-term welfare dependency. The IPS program was approved as an ongoing program in the 2020-21 Budget.

 

The objective of the IPS program is to support people with mental illness to achieve and maintain sustainable participation in competitive employment and vocational education through services that integrate employment and vocational assistance with clinical mental health and non-vocational support. The IPS program focuses on the individual needs of people with mental illness who are seeking to enter, or remain in, education and/or employment.

 

Participants can access a variety of supports including job coaching, assistance navigating community support services and Centrelink systems, targeted education and/or employment opportunities, and on-the-job support for as long as needed.

 

To be eligible to participate in the IPS program in headspace centres, people must:

*         be a young person with mental illness aged up to 25 years;

*         be an eligible client of headspace in the participating site (headspace is the National Youth Mental Health Foundation providing early intervention mental health services to young people aged 12 to 25 years);

*         have employment, education or training goals and be facing barriers to achieving these goals; and

*         be willing to participate in the service and able to make an informed decision to participate.

 

A formal diagnosis of mental illness is not required to access the IPS program. The decision that a young person has a mental illness can be established by the clinical staff of the headspace site. Clinical services are outside the scope of the IPS program and are funded through the Department of Health.

 

The IPS program was initially delivered from 14 selected headspace sites nationally, with 10 more sites added in 2019. On 29 December 2020, the Minister for Families and Social Services, Senator the Hon Anne Ruston, announced an expansion of the IPS program to a further 26 headspace sites, bringing the total number of sites to 50 (media release is available at https://ministers.dss.gov.au/media-releases/6681). These sites have been identified based on factors that ensure local areas with the greatest need are identified and targeted.

 

Factors included such things as:

*         estimated numbers of young people in the area, including those with mental health issues or behavioural problems;

*         the youth unemployment rate in the area;

*         estimated number of young Indigenous people;

*         number of businesses where young people could seek employment;

*         proximity to existing headspace sites that deliver the IPS program; and

*         availability of other mental health or vocational support for young people in locations.

 

The aim was to ensure a balanced approach across all the states and territories, as well as an appropriate mix of regional and metropolitan locations. All IPS program sites are published at https://www.dss.gov.au/mental-health-programs-services/individual-placement-support-program.

 

On 11 May 2021, the Prime Minister, the Hon Scott Morrison MP, the Minister for Health and Aged Care, the Hon Greg Hunt MP, and the Assistant Minister to the Prime Minister for Mental Health and Suicide Prevention, the Hon David Coleman MP, jointly announced additional funding for the IPS program to trial the extension of the program to support adults through two Head to Health adult treatment centres and pilot vocational peer support workers with lived experience of mental health whilst seeking employment in at least two headspace IPS sites. This measure forms part of the Government's $2.3 billion National Mental Health and Suicide Prevention Plan (media release is available at https://ministers.pmc.gov.au/coleman/2021/historic-2-3-billion-national-mental-health-and-suicide-prevention-plan).

 

The pilot of the IPS model in two (of eight) Adult Mental Health Centres, currently trialled by the Department of Health, aims to determine the appropriateness and effectiveness of the IPS model for adults with mental illness.

 

The pilot for the employment of vocational peer support workers (peer workers) in at least two headspace IPS sites aims to assess whether IPS participants achieve better and more sustained outcomes with peer support in place. Peer workers in the context of this pilot will be young people with lived experience of mental illness while looking for work. Peer workers engage and connect with a peer with similar experience and complement the vocational support and expertise they are receiving from the vocational specialist. Peer workers do not have a clinical or case management relationship with the IPS participant. A number of existing headspace IPS sites already use, or have used in the past, peer workers in the delivery of their services. Most of these have been engaged as mental health peer support workers. The pilot for the engagement of vocational peer support workers will ensure the employment and/or education outcomes remain the focus.

 

The extended program will continue to use the IPS model and provide career and development advice, and vocational assistance in tandem with clinical support and non-vocational assistance. The program is supported by an independent Fidelity Review process with bi-annual audits (to ensure adherence to the IPS model), pilot evaluations, vocational specialist and peer support worker training and development and ongoing support, a program manager who coordinates IPS sites and ensures shared learning, and a workforce development strategy to address current and future workforce needs. 

 

The quality of the IPS model being delivered will be monitored and maintained through a Fidelity Review of each IPS site using an objective, evidence-based Fidelity Scale that tests the service against 25 items that define the critical components of supported employment. The findings of the bi-annual review will be used to inform IPS program providers on how to improve and maintain fidelity. Fidelity Review process is an inherent part of the IPS model. 

 

Spending activities under the IPS program will vary, and will be managed by the department through appropriate financial arrangements (for example, grants or procurements).

 

Where grants are used as the appropriate financial arrangement, the Community Grants Hub will administer the grants to organisations providing the services, and grant opportunity guidelines will be developed and made available on GrantConnect, in accordance with the PGPA Act and the CGRGs.

 

The Minister for Families and Social Services, or their delegate, will be the decision maker for funding decisions under the grant process. The department will assess each eligible and compliant application on its individual merit and make recommendations to the decision maker. The outcomes of all grants awarded and funding rounds are published on GrantConnect at www.grants.gov.au no later than 21 working days after the grant agreement takes effect, in accordance with the CGRGs.

 

All IPS program sites are funded through grants with organisations (for example, Orygen or Youth Focus Inc). This is a combination of new grants and variations to existing grants (where applicable). Subject to approval by the Minister for Families and Social Services, the pilot of the IPS model in the Adult Mental Health Centres will be funded through a new grant process, and the pilot for the employment of peer workers in the headspace IPS sites will be funded through variations to existing grant agreements with relevant organisations.

 

Where procurements are used as the appropriate financial arrangement, they will be administered by the department, in accordance with the PGPA Act and the Commonwealth Procurement Rules (CPRs). Funding decisions will be made by the Secretary, or their delegate, in line with the PGPA Act. The outcome of all tenders subject to the CPRs will be published on AusTender (www.tenders.gov.au) where the expenditure meets the reporting thresholds as defined in the CPRs.

 

Subject to approval by the Minister for Families and Social Services, the external evaluations for the pilots and the IPS program will be funded through procurements.

 

Funding decisions made in connection to the IPS program are not subject to an independent merits review. There is only a finite amount of resources available and an allocation that has already been made to funding recipients would be affected by a review overturning the original decision. Any delay to the administration of the funding would undermine the grant process and negatively impact the security of future funding for the successful applicant. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

 

For grants, applicants will be notified in writing of the outcomes of their applications. Unsuccessful applicants will be offered feedback on their application. Persons affected by administrative decisions would also have recourse to the Commonwealth Ombudsman where appropriate. 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. 

 

Where an individual is not approved by an IPS program provider to participate in the IPS program, they can have the decision reviewed by the department.

 

Professor Patrick McGorry AO, a psychiatrist known for the scaling up of early intervention and youth mental health services, and who led advocacy which resulted in the establishment of headspace, has been supportive of the IPS program and its expansion.

 

Consultation with key stakeholders was not required on pilots under the IPS program, as people with mental illness are already able to access the support services albeit with an age limitation. Expanding the cohort to include adults would align with key stakeholders' expectations of who is in scope to have access to the services.

 

Additional funding of $5.7 million, including for the two pilots under the IPS program, was included in the 2021-22 Budget under the measure 'Mental Health' for a period of three years from 2021-22. Details are set out in Budget 2021-22, Budget Measures, Budget Paper No. 2 2021-22 at pages 117 to 120.

 

Total administered funding for the IPS program of $70.1 million over four years from 2021-22 will come from Component 2 (Disability and Carer Support) of Program 3.1: Disability and Carers, which is part of Outcome 3. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.12, Social Services Portfolio at page 98.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the external affairs power (section 51(xxix)) of the Constitution.

 

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 international obligations under treaties to which it is a party.

 

Australia has obligations under the Convention on the Rights of Persons with Disabilities [2008] ATS 12. In particular:

*         Article 1 provides that the purpose of the Convention 'is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all people with disabilities, and to promote respect for their inherent dignity'; and

*         Article 27(1) requires States Parties to recognise and promote the right of persons with disabilities to work on an equal basis with others, including by taking appropriate steps to enable access to general technical and vocational guidance programs and assistance in finding, maintaining and returning to employment.

 

The IPS program aims to provide persons with disabilities with specialist vocational and employment support in tandem with their existing clinical treatment to find and keep a job.

 

New table item 503 establishes legislative authority for government spending on the Digital Work and Study Service (DWSS). The DWSS was originally administered by the then Department of Jobs and Small Business through the 'Empowering Youth Initiatives' grant from 1 July 2016 to 30 June 2018. The service is now administered by the department as complementary to the IPS program.

 

On 25 January 2019, the then Minister for Families and Social Services, the Hon Paul Fletcher MP, and the then Assistant Minister for Social Services, Housing and Disability Services, the Hon Sarah Henderson MP, jointly announced $2.4 million in funding for the DWSS to provide work and study support via a digital platform to thousands of young Australians with mental illness. The measure formed part of a broader commitment to improving the lives of young people with mental illness (media release is available at https://formerministers.dss.gov.au/18712/innovative-online-program-to-provide-much-needed-support-to-youth-nationally/).

 

The department has since funded the DWSS through a grant agreement with the National Youth Mental Health Foundation (also known as headspace National), which delivers the service. The DWSS was approved as an ongoing program in the 2020-21 Budget.

 

The DWSS is designed in line with the eight core practice principles that underpin the IPS model by also integrating employment and vocational support with clinical mental health and non-vocational support, and focussing on individual needs of people with mental illness who are seeking to remain in employment and/or education. However, unlike the IPS program, the DWSS is delivered online and by telephone and text message.

 

The DWSS is available to any person under the age of 25 in Australia, regardless of where they live, as the program provides for online access. The main point of access for young people is through referral by another headspace service, such as a headspace centre or eheadspace. Alternatively, the service can be accessed directly without a referral, such as through the headspace website.

 

The service works through web chat, video conferencing, email and phone. This allows young people to access the service wherever they are, and in a way they prefer. It is a clinically integrated, holistic service that offers one-on-one intensive strengths-based support. Young people can access various supports through the DWSS, including weekly assistance from trained specialists, webinars, mock interviews and linked support with employment services providers and industry professionals.

 

To be eligible to participate in the DWSS, a young person must:

*         receive a referral through any headspace centre or directly access the service through the website;

*         be aged between 15 to 24 years inclusive;

*         have work or study needs; and

*         be located in Australia.

Priority access is provided to particular target cohorts, including Indigenous young people, early school leavers and young people in regional and remote locations. The service is intended to predominantly support young people with high prevalence mental health issues (depression and anxiety).

 

In 2019-20, the department commissioned an independent evaluation of the digital work and study services, which looked into the appropriateness, efficiency and effectiveness of the DWSS delivered by headspace for the period between July 2019 to March 2020. The evaluation report found that the DWSS is generally appropriate and efficient in providing employment support services to young people and effective in helping young people in achieving education and/or employment outcome. The report is available at https://www.dss.gov.au/mental-health-programs-services/digital-work-and-study-service-evaluation-2020.

 

The department will engage headspace National to continue to deliver the DWSS through a variation to the existing grant agreement. Grant funding will be administered by the Community Grants Hub in accordance with the PGPA Act and the CGRGs.

 

Funding decisions made in connection to the DWSS are not subject to an independent merits review. There is only a finite amount of resources available and an allocation that has already been made to funding recipients would be affected by a review overturning the original decision. Any delay to the administration of the funding would undermine the grant process and negatively impact the security of future funding for the successful applicant. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

 

Given the similarity of the IPS program and the DWSS, the department has undertaken the same consultation approach for both programs. That is, representations have been made by Professor Patrick McGorry AO, a psychiatrist known for supporting the scaling up of early intervention and youth mental health services, and who led advocacy which resulted in the establishment of headspace. Consultation with key stakeholders was also not required on the service, as people with mental illness are already included in the cohort able to access the service albeit with an age limitation.

 

Administered funding for the DWSS of $5.6 million over four years from 2021-22 will come from Component 2 (Disability and Carer Support) of Program 3.1: Disability and Carers, which is part of Outcome 3. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.12, Social Services Portfolio at page 98.

 

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)); and

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

 

Communications power

 

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

 

The DWSS would provide access to study and employment services by telephone, text message, web chat or email. 

 

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 international obligations under treaties to which it is a party.

 

Australia has obligations under the Convention on the Rights of Persons with Disabilities [2008] ATS 12. In particular:

*         Article 1 provides that the purpose of the Convention 'is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all people with disabilities, and to promote respect for their inherent dignity'; and

*         Article 27(1) requires States Parties to recognise and promote the right of persons with disabilities to work on an equal basis with others, including by taking appropriate steps to enable access to general technical and vocational guidance programs and assistance in finding, maintaining and returning to employment.

 

The DWSS aims to improve the employment and education outcomes of young people with mental illness by providing work and study support online and by telephone and text message, integrated with clinical support and non-vocational assistance

 

New table item 504 establishes legislative authority for government spending on the Birth of a Child project (the project) to support online platforms that will facilitate the collection and sharing of data for the purpose of enabling access to Commonwealth, state and territory services by a parent of, or a person with responsibility for, a newborn child.

 

In 2018, the Data and Digital Ministers Meeting (DDMM) identified a series of 'life events' to integrate cross-jurisdictional government services for key events in a citizen's life. The purpose of the DDMM is to establish proposals for better cross-government collaboration on data and digital transformation to drive smarter service delivery and improved policy outcomes. Meetings are held on an ongoing regular basis and involve ministerial representation from the Commonwealth, all states and territories and New Zealand.

 

Data and Digital Ministers are working to align policies and services across Australia by focussing on:

• transforming government services around life events;
• reforming cross-jurisdictional data and digital platforms, services and protocols;
• enhancing government capability to build public trust and deliver digitally; and
• delivering a seamless digital identity experience for citizens

 

The project forms part of this new national approach and was agreed by the DDMM on 6 September 2019 (https://pmc.gov.au/resource-centre/public-data/addc-communique-06-september-2019). The project, which commenced in 2020, implements the DDMM's 'life events' agenda by streamlining the registration of the birth of a child in a way that supports families and, importantly, birth mothers.

 

Under the project, Services Australia is leading improvements in government services associated with the birth of a child. The project aims to simplify a range of health and administrative activities for families and reduce the need for birth mothers to provide the same information to multiple government agencies on multiple occasions. The project will also support timely establishment of an 'identity of integrity' for the child.

 

With the birth mother's consent, Services Australia will receive birth information from participating hospitals for the purpose of:

• enabling pre-fill of Medicare and Centrelink records;
• providing relevant information to state and territory births, deaths and marriages (BDM) registries to complete birth registration; and
• establishing an effective model for cross-agency and cross-jurisdictional collaboration, delivery of pilot programs and a potential national rollout for the project.

 

Participating state and territory hospitals and BDM registries will also benefit from the project as it will help streamline their processes and reduce associated costs. Services Australia will provide select information to state and territory BDM registries to facilitate birth registration. The project is the first of its kind with involvement from state and territory health departments and BDM registries.

 

The majority of the project will be utilising internally-built and procured products that Services Australia already has in use. There are some minor additional activities that will support a state specific benefit, including:

• small additions to the question set sought from the hospital to ensure specific birth registration details are captured; and
• costs associated with the integration of agency notification via Application Programming Interface to BDM registries for birth notifications and data transmission.

 

The Chief Executive Officer of Services Australia, who is the Accountable Authority of that agency, is responsible for determining how the expenditure is made with respect to platform development. Expenditure will be made in accordance with the agency's Accountable Authority Instructions (AAIs).

 

Should further procurements be required, coordinated procurements would be used to the extent available, and where there is no whole-of-government arrangement, either open tenders or limited tenders would be undertaken consistent with the PGPA Act and the CPRs. Tender information and outcomes would be published on AusTender where the CPRs require.

 

Funding decisions made in connection to the project are not subject to independent merits reviews. Any decisions made with respect to this aspect of the project relate to the allocation of finite resources, being the funding allocated to the program as a whole.  

 

Online platform access and associated work will be developed by a combination of departmental staff and contractors engaged under the Public Service Act 1999 or in accordance with the PGPA Act and associated legislation and guidelines. These engagements are therefore subject to financial accountability safeguards.

 

Any procurement processes that are conducted will also be subject to financial accountability safeguards, as they would be undertaken in accordance with the requirements of the PGPA Act, the CPRs and the agency's AAIs. Complaints mechanisms will be available in respect of any procurement process that is a 'covered procurement' as defined in the Government Procurement (Judicial Review) Act 2018.

 

The ARC has identified that decisions by government to allocate funding to programs as a whole are not suitable for review as they are budgetary decisions of a policy nature rather than decisions immediately affecting any particular person's interest. The ARC also considers that decisions relating to allocation of a finite resource, from which all potential claims for a share of the resource cannot be met, are justifiable to exclude merits review (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

 

For completeness, it is noted that administrative decisions made pursuant to Medicare and Centrelink program legislation, which provide access to health and Centrelink entitlements, will continue to be subject to independent merits review. However the existing merits review mechanisms available in respect of Commonwealth benefits and services will not be affected by this project.

 

Extensive consultations have been undertaken with states and territories, including representatives from Australian Capital Territory (ACT) Health, ACT BDM registry, Queensland (QLD) Health and QLD BDM registry, through the agency's project team, since the DDMM approval in September 2019. Consultation has and will be ongoing until the project concludes. The project team also meets with each of the pilot participants and other state representatives as needed.

 

The project has strong support from state and territory governments, as evidenced by the ministerial approval through the DDMM and continuing effective collaboration throughout the project.

 

There has also been significant and ongoing consultation with the Commonwealth entities, specifically the Department of Social Services, the Department of Health, the Australian Digital Health Agency and the Digital Transformation Agency.

 

Community consultation will be progressed throughout 2021-22 as the project expands. In 2021-22, Services Australia will engage a consultant to develop and run a community consultation program with the assistance of state and territory jurisdictions.

 

Funding for the project of approximately $17.5 million over two years from 2020-21 will come from Program 1.1: Services to the Community - Social Security and Welfare, which is part of Outcome 1. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.12, Social Services Portfolio at page 239.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the communications power (section 51(v)) of the Constitution.

 

Communications power

 

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

 

The project involves Commonwealth expenditure for services to be delivered over the Internet.

 

 

 

 

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. 3) Regulations 2021

 

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 (Social Services Measures No. 3) Regulations 2021 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities administered by the Department of Social Services (the department) and Services Australia.

 

This disallowable legislative instrument makes the following amendments to Part 4 of Schedule 1AB:

• amends table item 333 'Assisting non-government and private sector organisations to conduct and evaluate social impact investments';
• adds table item 500 'Outcomes Measurement Initiative - Navigation Tool';
• adds table item 501 'Children and Family Intensive Support';
• adds table item 502 'Individual Placement and Support';
• adds table item 503 'Digital Work and Study Service'; and
• adds table item 504 'Birth of a Child project'.

 

Table item 333 - Assisting non-government and private sector organisations to conduct and evaluate social impact investments

 

This disallowable legislative instrument renames table item 333 to 'Social Impact Investing' and replaces the objective of the item. The amended table item 333 establishes legislative authority for government spending on the Social Impact Investing (SII) program, including a data demonstration project under the Outcomes Measurement Initiative.

 

The SII program supports an innovative method of financing interventions to address intractable social or environmental problems. It aims to achieve social outcomes as well as a financial return. In the 2018-19 Budget, the Australian Government committed $6.7 million over four years (2018-19 to 2021-22) to build the Australian SII sector's capability to measure outcomes under the Outcomes Measurement Initiative. It is anticipated that over time the Outcomes Measurement Initiative will support the SII sector to achieve improved outcomes through building capacity to measure and communicate outcomes and impact, support funders and investors to understand the outcomes achieved and create a market environment that encourages investment.

 

As part of the development of an outcomes and impact measurement approach to help the sector navigate existing measurement tools and resources, the department is looking to develop two concepts under the Outcomes Measurement Initiative. These are:

*         an online outcomes and impact measurement navigation tool, developed in partnership with the sector; and

*         a data demonstration project to enhance accessibility to government data to support outcomes and impact measurement.

 

The data demonstration project will test the time, cost, process and overall suitability of two existing Commonwealth data integration expert organisations and one academic institution to work with SII participants on outcomes and impact measurement. These concepts will also enhance government understanding of practicalities of future data initiatives for the SII sector. The data demonstration project is being refined in consultation with data custodians and SII sector participants. The department is currently putting together a reference group to facilitate these consultations.

 

Human rights implications

 

The amended table item 333 does not engage any of the applicable rights or freedoms.

 

Conclusion

 

The amended table item 333 is compatible with human rights as it does not raise any human rights issues.

 

Table item 500 - Outcomes Measurement Initiative - Navigation Tool

 

Table item 500 establishes legislative authority for government spending on developing, building and maintaining an online navigation tool under the Outcomes Measurement Initiative, which is part of the SII program. The tool will enable social impact organisations to access information about social impact investing. Social impact organisations are broadly characterised as organisations that operate intentionally to resolve social problems, improve communities and provide people with access to employment and training.

 

The project will facilitate the establishment of a web-based search engine to make it easier for SII organisations, intermediaries and investors to search and draw on the growing suite of international and domestic tools, resources, case studies and research on outcomes and impact measurement. The department is putting together a working group to facilitate stakeholder consultations on the design and need for a navigation tool.

 

The navigation tool could also be leveraged as a notice board, which would facilitate organisations advertising upcoming webinars, conferences and other opportunities to build a community of practice focussing on outcomes and impact measurement. An initial focus on outcomes and impact measurement could be expanded over time to incorporate broader elements of SII, depending on effectiveness, demand and available resources.

 

Human rights implications

 

Table item 500 does not engage any of the applicable rights or freedoms.

 

Conclusion

 

Table item 500 is compatible with human rights because it promotes the protection of human rights.

 

Table item 501 - Children and Family Intensive Support

 

Table item 501 establishes legislative authority for government spending on the Children and Family Intensive Support (CaFIS) service.

 

Funding will be provided for an early intervention, intensive community-based family support service offered to highly vulnerable families living in selected communities in the Northern Territory (NT) and the Anangu Pitjantjatjara Yankunytjatjara (APY) Lands, South Australia. CaFIS will have a footprint in six regions in the NT and the APY Lands, with specific locations identified as part of the grant selection process.

 

Services will be provided to build on the strengths of families and communities to care for children in their culture. CaFIS will support parents and family members to develop their confidence and capacity to bring children up strong, support co-ordinated services to meet the needs of families and address areas of concern that impact on children's safety and wellbeing. It will be a voluntary service that works in partnership with families to achieve their goals and help keep children safe and strong.

 

Human rights implications

 

Table item 501 engages the following rights:

• the right of children to life, survival and development - Article 6 of the Convention on the Rights of the Child (CRC), read with Article 4;
• the recognition of parents/legal guardians as having primary responsibility for the upbringing and development of the child - Article 18 of the CRC;

• the right of children to be protected from maltreatment and exploitation - Article 19 of the CRC;
• the right of children to an adequate standard of living - Article 27 of the CRC; and
• the right of children to enjoy their culture - Article 30 of the CRC.

 

Article 4 of the CRC requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the CRC.

 

Table item 501 will enable activities that support rights under the CRC.

 

 

Right to life, survival and development

 

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

 

The objective of CaFIS is to support activities focussed on childhood development. This includes activities that support children to develop and ideally thrive, and that equip families to support children's development.

 

Parental responsibility for the upbringing and development of the child

 

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

 

CaFIS provides support to parents and families to build strong parenting skills and address challenges in families/households that put children at risk.

 

Right to be protected from maltreatment or exploitation

 

Article 19 of the CRC requires States Parties to undertake all appropriate legislative, administrative, social and educational measures to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation.

 

CaFIS provides support to vulnerable families with children where there are escalating concerns for children (for example, self-harm, alcohol and other drugs, engagement with justice system) and risks of children entering the child protection system or out-of-home care placement. The objective of CaFIS is to support families to create nurturing and safer environments that grow children up strong, safe and connected to culture (which can be a strong protective factor).

 

Right to an adequate standard of living

 

Article 27 of the CRC provides for the right of children to an adequate standard of living.

 

The objective of CaFIS is to support activities that improve wellbeing outcomes. CaFIS will work with families to help them access services and supports they need and navigate service systems. For example, CaFIS may help families to access primary health care, family violence support, housing and social security where necessary.

 

Right to enjoy their culture

 

Article 30 of the CRC provides the right of children to enjoy their culture, to profess their own religion or to use their own language.Â

 

CaFIS may involve activities that strengthen the connection of Aboriginal and Torres Strait Islander children to their culture.

 

 

Conclusion

 

Table item 501 is compatible with human rights because it promotes the protection of human rights.

 

Table item 502 - Individual Placement and Support

 

Table item 502 establishes legislative authority for government spending on the Individual Placement and Support (IPS) program.

 

The objective of the IPS program is to support people with mental illness to achieve and maintain sustainable participation in competitive employment and vocational education through services that integrate employment and vocational assistance with clinical mental health and non-vocational support. The IPS program focuses on the individual needs of people with mental illness who are seeking to enter, or remain in, education and/or employment.

 

Participants can access a variety of supports including job coaching, assistance navigating community support services and Centrelink systems, targeted education and/or employment opportunities, and on-the-job support for as long as needed.

 

Human rights implications

 

Table item 502 engages the following rights:

*         the rights of persons with disability - Articles 1, 3, 19 and 27 of the Convention on the Rights of Persons with Disabilities (CRPD), read with Article 4.

 

Article 4 of the CRPD requires States Parties to undertake to ensure and promote the full realisation of all human rights for those with a disability without discrimination.

 

Article 1 of the CRPD outlines the purpose of the Convention to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

 

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

 

Through early intervention, the IPS program is an effective program designed to support people with mental illness who have disengaged from education and/or employment and are at risk of long-term welfare dependency. 

 

Article 3 of the CRPD provides the general principle of the Convention to be respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons.

 

The IPS program's core philosophy is a participant-led model ensuring services are based on the individual needs of the participant as determined by them.

 

Article 19 of the CRPD requires that States Parties take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of full inclusion and participation in the community.

 

Through ongoing and time-unlimited support, a re-engagement with education and employment provides a reconnection with community and the benefits that brings to the individual including improvements in their mental health and wellbeing.

 

Article 27 of the CRPD requires that States Parties recognise the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.

 

The article includes, inter alia, supports that enable persons with disabilities to have effective access to general technical and vocational guidance programs, placement services and vocational and continuing training; promotes employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment; and promotes vocational and professional rehabilitation, job retention and return-to-work programs for persons with disabilities.

 

The IPS model is guided by eight core practice principles that seek to address the complex interplay of individual and structural barriers to gaining and maintaining employment for people with mental health illness. The model has a focus on competitive employment, is participant-led, integrates with clinical and other supports and is time-unlimited, individualised support that provides a holistic outcome for the person. The model requires a significant amount of the vocational specialist's time to be spent in the community and with employers to address common stigma, discrimination and reluctance from employers in hiring an individual with mental illness. 

 

Conclusion

 

Table item 502 is compatible with human rights because it promotes the protection of human rights.

 

Table item 503 - Digital Work and Study Service

 

Table item 503 establishes legislative authority for government spending on the Digital Work and Study Service (DWSS), which aims to improve the employment and education outcomes of young people with mental illness by providing work and study support online and by telephone and text message, integrated with clinical support and non-vocational assistance. The DWSS program is designed in line with the eight core practice principles that underpin the IPS model

 

The DWSS is available to any person under the age of 25 in Australia, regardless of where they live, as the program provides for online access. The service works through web chat, video conferencing, email and phone. This allows young people to access the service wherever they are, and in a way they prefer. It is a clinically integrated, holistic service that offers one-on-one intensive strengths-based support.

 

Young people can access various supports through the DWSS, including weekly assistance from trained specialists, webinars, mock interviews and linked support with employment services providers and industry professionals.

 

Priority access is provided to particular target cohorts, including Indigenous young people, early school leavers, young people with mental health issues and young people in regional and remote locations. The service is intended to predominantly support young people with high prevalence mental health issues (depression and anxiety).

 

Human rights implications

 

Table item 503 engages the following rights:

*         the rights of persons with disability - Articles 1, 3, 19 and 27 of the CRPD, read with Article 4.

 

Article 4 of the CRPD requires States Parties to undertake to ensure and promote the full realisation of all human rights for those with a disability without discrimination.

 

Article 1 of the CRPD outlines the purpose of the Convention to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

 

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

 

Through early intervention, the DWSS is an effective program designed to support people with mental illness who have disengaged from education and/or employment and are at risk of long-term welfare dependency. 

 

Article 3 of the CRPD provides the general principle of the Convention to be respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons.

 

The DWSS is based on the principles of the IPS model and equally embraces the principle of autonomy of its participants. The IPS program's core philosophy is a participant-led model ensuring services are based on the individual needs of the participant as determined by them.

 

Article 19 of the CRPD requires that States Parties take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of full inclusion and participation in the community.

 

Through ongoing and time-unlimited support, a re-engagement with education and employment provides a reconnection with community and the benefits that brings to the individual including improvements in their mental health and wellbeing.

 

Article 27 of the CRPD requires that States Parties recognise the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.

 

The article includes, inter alia, supports that enable persons with disabilities to have effective access to general technical and vocational guidance programs, placement services and vocational and continuing training; promotes employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment; and promotes vocational and professional rehabilitation, job retention and return-to-work programs for persons with disabilities.

 

The DWSS is based on the eight core practice principles of the IPS model that seek to address the complex interplay of individual and structural barriers to gaining and maintaining employment for people with mental health illness. The model has a focus on competitive employment, is participant-led, integrates with clinical and other supports and is time-unlimited, individualised support that provides a holistic outcome for the person. The model requires a significant amount of the vocational specialist's time to be spent in the community and with employers to address common stigma, discrimination and reluctance from employers in hiring an individual with mental illness. 

 

Conclusion

 

Table item 503 is compatible with human rights because it promotes the protection of human rights.

 

Table item 504 - Birth of a Child project

 

Table item 504 establishes legislative authority for government spending on the Birth of a Child project (the project) to support online platforms that will facilitate the collection and sharing of data for the purpose of enabling access to Commonwealth, state and territory services by a parent of, or a person with responsibility for, a newborn child.

 

In 2018, the Data and Digital Ministers Meeting (DDMM) identified a series of 'life events' to integrate cross-jurisdictional government services for key events in a citizen's life. The project forms part of this new national approach and was agreed by the DDMM on 6 September 2019. The project, which commenced in 2020, implements the DDMM's 'life events' agenda by streamlining the registration of the birth of a child in a way that supports families and, importantly, birth mothers.

 

Under the project, Services Australia is leading improvements in government services associated with the birth of a child. The project aims to simplify a range of health and administrative activities for families and to reduce the need for birth mothers to provide the same information to multiple government agencies on multiple occasions. The project will also support timely establishment of an 'identity of integrity' for the child.

 

With the birth mother's consent, Services Australia will receive birth information from participating hospitals for the purpose of:

*         enabling pre-fill of Medicare and Centrelink records;

*         providing relevant information to state and territory births, deaths and marriages registries to complete birth registration; and

*         establishing an effective model for cross-agency and cross-jurisdictional collaboration, delivery of pilot programs and a potential national rollout for the project.

 

The project is the first of its kind with involvement from state and territory health departments and births, deaths and marriages registries.

 

Human rights implications

 

Table item 504 engages the following rights:

*         the right to privacy - Article 17 of the International Covenant on Civil and Political Rights (ICCPR), read with Article 2;

*         the right to a name and to acquire a nationality - Article 24 of the ICCPR and Article 7 of the CRC, read with Article 4;

*         the right to social security - Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2;

*         the right to maternity leave - Article 10 of the ICESCR and Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and

*         the right of a child to benefit from social security - Article 26 of the CRC; and

*         the right to health - Article 12(1) of the ICESCR.

 

Right to privacy

 

Table item 504 engages the right to privacy contained in Article 17 of the ICCPR, read with Article 2 of the ICCPR. The right to privacy encompasses respect for informational privacy, including the right to respect for private and confidential information, particularly the use and sharing of such information and the right to control dissemination of such information. Under Article 2 of the ICCPR, each State Party undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR without distinction of any kind.

 

Table item 504 engages the right to privacy because the project involves the collection, storage, security use and disclosure of personal information about the mother and her newborn child, with the mother's consent. The project does not adversely affect this right because personal information is only collected, used, stored and disclosed in accordance with the birth mother's informed consent.

 

This follows the 'privacy by design' approach and is consistent with guidance from the Office of the Australian Information Commissioner.

 

Services Australia has carefully considered its obligations under the Privacy Act 1988 and employs consent forms as well as privacy notices that are given to parents in accordance with Australian Privacy Principle 5.

 

The design of the project has been implemented in a manner that respects the right to privacy of all individuals concerned, by ensuring that any collection, use or disclosures of personal information are only undertaken with informed consent. Services Australia will take all reasonable steps to ensure that the collection and management of personal information in connection with the project will comply with the Australian Privacy Principles.

 

Right to a name and to acquire a nationality

 

Table item 504 engages the right to a name and right to acquire a nationality contained in Articles 24(2) and 24(3) of the ICCPR and Article 7 of the CRC, read with Article 4. These Articles each provide that a child shall be registered immediately after birth and shall have the right to a name from birth and the right to acquire a nationality. Article 4 of the CRC requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the CRC.

 

Table item 504 engages the right to a name and to acquire a nationality because it relates to the registration of births of children, because birth information will be transmitted to Australian births, deaths and marriages registries efficiently with the aim of improving birth registration rates.

 

The project will remove the burden of form-filling in appropriate cases by re-using information held by government agencies. The project is designed to significantly reduce the time, effort and repetition that birthing parents currently experience when registering the birth of their child and enrolling for Medicare and Centrelink services and payments. A simpler service for parents is also expected to increase the number of birth registrations in Australia.

 

Right to social security

 

Table item 504 engages the right to social security in Article 9 of the ICESCR, which recognises the 'right of everyone to social security, including social insurance'. Article 2 of the ICESCR requires States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means.

 

Table item 504 engages the right to social security because it relates to the registration for social security benefits administered by Centrelink and payments for medical benefits and hospital services administered by Medicare. 

 

A number of existing laws are relevant to the realisation of the right to social security in Australia, including the Health Insurance Act 1973 and the National Health Act 1953 relating to Medicare payments. For Centrelink payments, the relevant legislation is: the A New Tax System (Family Assistance) Act 1999; the A New Tax System (Family Assistance) (Administration) Act 1999; and the Paid Parental Leave Act 2010.

 

The right to social security is positively affected by the table item 504, because the project will make it easier for parents to apply for Medicare and Centrelink payments and services.  Earlier enrolment will reduce the risk of a parent not receiving payments in a period to which they may otherwise have been entitled.

 

Right to maternity leave

 

Table item 504 engages the right to maternity leave in Article 10(2) of the ICESCR, which provides that 'special protection should be accorded to mothers during a reasonable period before and after childbirth' and that 'during such period(s) working mothers should be accorded paid leave or leave with adequate social security benefits'. Table item 504 also engages Article 11(2)(b) of the CEDAW, which requires States Parties to take appropriate measures to 'introduce maternity leave with pay or comparable social benefits without loss of former employment, seniority or social allowances'.

 

Table item 504 engages the right to maternity leave because the improvements to birth verification information will flow on to faster access to paid parental leave. This is a significant benefit to new mothers who can pre-claim for payment and will be able to verify information and submit claims without having to visit a Centrelink office.

 

Right of a child to benefit from social security

 

Table item 504 engages the right of a child to benefit from social security in Article 26(1) of the CRC, which recognises the 'right of every child to benefit from social security, including social insurance'.

 

Table item 504 engages the right of a child to benefit from social security because it reduces the administrative and regulatory burden for families associated with claiming family assistance payments that benefit children. The project will automate and streamline the provision of proof of birth information to support new claims for family tax benefit, negating the need for families to provide this themselves. This will enable children to benefit from family assistance more quickly and easily.

 

Right to health

 

Table item 504 engages the right to health in Article 12(2) of the ICESCR, which provides that each State Party is under an obligation to take steps with a view to achieving progressively the full realisation of rights recognised by the ICESCR including 'the right of everyone to the enjoyment of the highest attainable standard of physical and mental health'.

 

Table item 504 engages the right to health because it relates to the registration for payments for medical benefits and hospital services administered by Medicare. The right to health will be positively affected by table item 504 because the project will make it easier for parents to enrol for Medicare payments. Earlier enrolment will reduce the risk of a parent not receiving payments in respect of a period to which they may otherwise be entitled.

 

Conclusion

 

Table item 504 is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance