FINANCIAL FRAMEWORK (SUPPLEMENTARY POWERS) AMENDMENT (EMPLOYMENT, SKILLS, SMALL AND FAMILY BUSINESS MEASURES NO. 5) REGULATIONS 2019 (F2019L01637) EXPLANATORY STATEMENT

Details of the Financial Framework (Supplementary Powers) Amendment
(Employment, Skills, Small and Family Business Measures No. 5) Regulations 2019

Section 1 - Name

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Employment, Skills, Small and Family Business Measures No. 5) Regulations 2019.

Section 2 - Commencement

This section provides that the Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.

Section 3 - Authority

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

Section 4 - Schedules

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

Schedule 1 - Amendments

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

This item adds four new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on four initiatives. The Department of Employment, Skills, Small and Family Business (the department) will have policy responsibility for the initiatives.

New table item 386 establishes legislative authority for government spending on the Commonwealth Scholarships Program for Young Australians (the scholarships program).

The scholarships program will provide around 400 scholarships for eligible Vocational Education and Training (VET) students to undertake study in one of ten regions across Australia. Those regions are in Grafton, Gosford, Alice Springs, Maryborough, Townsville, Port Pirie, Burnie, Shepparton, Wanneroo and Armadale. The scholarships program will commence in January 2020 and will conclude in June 2022 (after the commencement of semester 2).

The scholarships program will support students in regions with above average levels of youth unemployment to enter the VET sector and gain qualifications in areas of current skill shortage and in growth industries. The intention of the scholarships program is to ensure that young Australians have access to the skills they need to participate and thrive in a modern and strong economy.

The scholarships program will be available for successful applicants aged 15-24 years who are not in full-time work at the time of applying. Priority will be given to eligible Indigenous young Australians, young Australians with a disability, young Australians from culturally and linguistically diverse (CALD) backgrounds, and individuals who have exited the Australian Defence Force (ADF) in the previous two years (noting that the age criteria will not apply to ADF applicants).

Scholarships of up to $5,000 per annum will be made available for the VET course being undertaken. The scholarships will be available for students studying a course from
Certificate III to Advanced Diploma level, which leads to an eligible occupation. The list of eligible occupations will be agreed to by the responsible Minister and the Prime Minister, and will be detailed in the scholarships program guidelines.

The maximum scholarship amount (for a two year full-time qualification) will include up to:

* $10,000 for the student to contribute towards educational and training related expenses, including but not limited to, tuition fees, textbooks, and tools and equipment;

* $3,000 for the student for a paid internship or mandatory work placement; and

* $500 to the host organisation as a one-off administration payment for the internship placement.

As part of the scholarships program, students will be required to undertake a paid internship equivalent to 20 business days, unless a mandatory work placement is part of their Approved Program of Study. The internships will provide real world experience and opportunity to build partnerships with host organisations to support learning and provide students with industry experience. The internships will prepare students for long-term employment following completion of their study. During this time, students will receive $3,000 for a completed internship with a host organisation. Host organisations who host an intern will receive a one-off payment of $500 as a contribution towards the costs of providing students with an internship. Where a student's study includes a mandatory work placement, the student will not be required to participate in an additional internship. These students will be eligible to receive a one-off payment of $3,000 in lieu of participation in an internship.

The department will run an open tender process to procure a service provider to administer aspects of the scholarships program. These services include coordinating scholarship application rounds including shortlisting applicants, recruiting students, administering scholarship funding, monitoring student enrolments, sourcing host organisations for internships, coordinating internship placements, providing support to students during placements and monitoring and reporting on program implementation to the department.

The department will publish a competitive tender in late 2019 at AusTender (https://www.tenders.gov.au) and select one service provider to deliver the scholarships program. The resultant contract will be available on the AusTender website after signing.

The successful service provider will be contracted from December 2019 to allow them to prepare for the scholarship application round opening in January 2020. The service provider will be contracted for three months beyond the duration of the scholarships program, to approximately September 2023, in order to participate in the evaluation of the scholarships program and acquittal of the scholarship program's funds.

The service provider will be responsible for promoting the scholarships in each of the regional areas. Application rounds for scholarships will be open for a minimum specified period as agreed with the department.

The procurement process will be undertaken in accordance with the applicable requirements under the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Commonwealth Procurement Rules (CPRs) and the department's Secretary Instructions, to ensure a robust and transparent procurement decision that provides value for money to the Commonwealth.

The decision on the successful tenderer will be made by a departmental official, the delegate of the Secretary of the department. As it will not be a decision under an enactment that affects a person's legal rights or liabilities, it will not be subject to external merits review. The re-making of a procurement decision after entering into a contract with a successful tenderer is legally complex, impractical, and could result in unacceptable delays in implementing the scholarship program. However, the department will provide an opportunity for tenderers to make inquiries and complaints, and provide feedback to unsuccessful tenderers.

The Government Procurement (Judicial Review) Act 2018 enables suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. This legislation might provide an additional avenue of redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

Applications for scholarships will be open in January 2020, with assessment of the applications taking place in February 2020. All applications for scholarships will be assessed by the service provider in accordance with the scholarships program guidelines (which will be available prior to the scholarships program commencing) and take into account the distribution of scholarships, proportional to the youth unemployment rate in each region. The service provider will be required to provide a shortlist of ranked applicants to the department for a decision to be made by the departmental program delegate.

To be eligible for the scholarships program, applicants must:

* be aged between 15 and 24 years; or

* have exited the ADF within the past two years; and

* not be employed full-time; and

* reside within one of the 10 specified regions (which the delegate has approved to be defined in accordance with the Australian Bureau of Statistics' Statistical Area Level 3 boundaries); and

* be intending to commence a Certificate III, Certificate IV, Diploma or Advanced Diploma in an approved program of study leading to an occupation in demand, as agreed by the Minister for Employment, Skills, Small and Family Business and the Prime Minister.

To receive the scholarship, applicants must have been accepted into an approved program of study leading to an occupation in demand delivered by a registered training organisation.

In selecting scholarship recipients, priority will be given to:

* Indigenous Australians;

* Australians with a disability;

* Australians from a CALD background; and

* Australians who exited from the ADF within the past two years
(irrespective of age).

It is intended that all eligible applicants who are accepted into an approved program of study will be offered a scholarship. Where demand exceeds funding in any given region, priority will be given to applications from priority cohorts (Indigenous Australians, Australians with a disability, Australians from a CALD background and Australians who exited from the ADF within the past two years).

The Service Provider will notify the successful and unsuccessful applicants of the outcome of their application in writing. Unsuccessful applicants will be provided with constructive individual feedback on why they were unsuccessful. The service provider will recommend alternative programs for language literacy and numeracy education services and/or other pathways to education, training or employment in the unsuccessful applicant's local region.

Scholarship decisions will be subject to internal departmental review, if requested by an unsuccessful scholarship applicant, by an officer who was not involved in the original decision making process. However, decisions about unsuccessful applicants will not be subject to external merits review. The scholarships will not be legal entitlements, and scholarship decisions will not be decisions under an enactment that affect any person's legal rights or liabilities. An application for merits review may also result in delays in finalising an entire scholarship round. The scholarships program is limited to $8.17 million over three years which may mean that not all successful applications will necessarily be able to be funded.

Funding of $8.2 million was included in the 2019-20 Budget under the measure 'Skills Package - delivering skills for today and tomorrow' for a period of three years from
2019-20. Details are set out in Budget 2019-20, Budget Measures, Budget Paper No. 2 2019-20 at page 70.

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

* the social welfare power (section 51(xxiiiA)

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

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 ... benefits to students'.

The scholarships program provides financial assistance to students to assist with the costs associated with undertaking relevant study, such as tuition fees.

External affairs power

Section 51(xxix) of the Constitution empowers the Parliament to make the 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 relating to the International Convention on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR), the Convention concerning Employment Policy (ILO Convention 122) and the Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources (ILO Convention 142).

Article 2 of ICESCR provides that States Parties shall take steps to adopt legislative measures to realise the rights within ICESCR including, relevantly, the right to work under article 6(2) which includes 'technical and vocational guidance and training programmes, policies and techniques to achieve... full and productive employment.' Article 13 provides that Members 'recognize the right of everyone to education', and that 'education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms'.

The scholarships program provides support through scholarships to students undertaking VET courses, which are designed to prepare them for future employment. The scholarships program contains a specific requirement for scholarship holders to undertake a paid internship to provide them with valuable work experience and prepare them for future employment.

The scholarships program provides financial support for students to contribute towards their education and training related expenses associated with undertaking VET courses.

Article 1(1) of the ILO Convention 122 requires Members to 'declare and pursue...an active policy designed to promote full, productive and freely chosen employment.' Article 1(2) specifies that this policy shall aim to ensure that (among other things) 'there is work for all who are available for and seeking work'. Article 2 further requires Members 'decide on and keep under review ... the measures to be adopted for attaining the objectives specified in Article 1', and to 'take such steps as may be needed ... for the application of these measures'.

The scholarships program would facilitate collaborative partnerships to create and implement enhanced learning pathways that would assist people to build skills and choose occupations in demand in their region, particularly those underpinned by the VET system in Australia.

Article 1(1) of the ILO Convention 142 obliges Members to 'adopt and develop comprehensive and co-ordinated policies and programmes of vocational guidance and vocational training, closely linked with employment'. Article 1(2) requires that the policies and programs adopted for the purposes of Article 1(1) take due account of matters including 'employment needs, opportunities and problems, both regional and national'.

Article 2 of the ILO Convention 142 obliges each Member to 'establish and develop open, flexible and complementary systems of general, technical and vocational education, educational and vocational guidance and vocational training, whether these activities take place within the system of formal education or outside it'.

Article 3 of the ILO Convention 142 provides that Members 'gradually extend its systems of vocational guidance, including continuing employment inform at ion, with a view to ensuring that comprehensive information and the broadest possible guidance are available to all children, young persons and adults, including appropriate programmes for all handicapped and disabled persons.'

Article 4 of the ILO Convention 142 obliges each Member party to 'gradually extend, adapt and harmonise its vocational training systems to meet the needs for vocational training throughout the life of both young persons and adults in all sectors of the economy and branches of economic activity and at all levels of skill and responsibility'.

The scholarships program promotes 'vocational guidance and vocational training, closely linked with employment'. Apart from providing financial support to students to undertake VET courses, the scholarships program also provides for a paid internship to enable students to gain valuable work experience and make industry connections, thereby providing an important link between a person's education and future employment.

The scholarships program is also designed to encourage young persons to engage with the VET sector by making it even more accessible through the availability of scholarships providing financial aid to young people who may otherwise face barriers to entering education and training programs.

Furthermore, the scholarships program is designed to be inclusive of young persons and adults (the program targets 15-24 year olds) and also provides that, among the cohorts that the scholarships program is designed to target, young Australians with a disability and those from culturally and linguistically diverse background will benefit.

Overall, the scholarships program will fund scholarships and measures to support young people to engage in vocational education and training and transition into employment. These objectives are consistent with fulfilling the rights to education and employment and supporting the use of vocational education to achieve these ends.

New table item 387 establishes legislative authority for government spending on the Harvest Trail Service - Collaborating with Industry program (the harvest program).

The Harvest Labour Service (HLS) (renamed the Harvest Trail Service (HTS)) is being expanded and the National Harvest Labour Information Service (renamed Harvest Trail Information Service (HTIS)) is being enhanced.

On 2 April 2019, the then Minister for Jobs and Industrial Relations and Minister for Women, the Hon Kelly O'Dwyer, announced the Government collaboration with industry to promote seasonal work opportunities, as well as the expansion of the existing HLS.

As part of the expansion and enhancement of those existing programs, the harvest program would make funding available from 1 July 2020 to 30 June 2022 to facilitate collaboration between the Government and the horticulture industry to develop industry-led proposals to promote seasonal work opportunities to Australian job seekers and help employers understand opportunities available to hire Australian workers.

Funding proposals would be co-funded between industry and the Government, and include promotional activities and material to encourage employers to hire Australian job seekers and highlight the benefits of seasonal work to locals.

Nationally, HLS providers have filled around 88 per cent of positions listed with them annually. Under the current arrangements, there are harvest regions with significant demand for labour that do not have a HTS provider. While there will always be a need for a range of labour sources to fill harvest work vacancies in peak seasons, the Government's focus is to ensure that Australians have greater access to local jobs. Currently, Australian job seekers receiving working age income support only represent around 5 per cent of all HLS placements. This demonstrates that there is an opportunity to increase the numbers of Australians undertaking harvest work and help reduce the pressure on employers in finding suitable workers. The collaboration with industry initiative is intended to facilitate and encourage more Australian job seekers into seasonal work, and to address grower attitudes towards hiring local workers.

Under the 2019-20 "Harvest labour Services - Reforms to encourage Australian job seekers to take up seasonal work" Budget measure, the horticulture/agriculture industry peak bodies will be invited to submit innovative ideas aimed at promoting seasonal work opportunities to local job seekers and encouraging growers to hire Australian job seekers. This element of the package aims to shift negative perceptions of seasonal work by providing positive information and experiences to job seekers and harvest employers, and recognises that the horticulture industry has an important role to play in promoting seasonal work to Australian job seekers.

There is a role for the horticulture/agriculture industry, in partnership with the Government to develop attractive career pathways in horticulture/agriculture. This would help demonstrate to Australian job seekers where a seasonal work placement could take their career and the opportunities it can provide. This package complements the Government's announcement on 5 November 2018 regarding the ongoing funding for the Fair Farms initiative which aims to give growers in the horticulture sector the tools they need to ensure workers are treated fairly and restore consumer and public confidence in the sector as an ethical employer.

The department intends to undertake a procurement process to target horticulture and agriculture industry peak bodies that have extensive knowledge of their sectors and capacity to co-design innovative approaches and provide behavioural insights into influencing harvest employers' attitudes towards local job seekers.

Procurement decisions will be made in accordance with the Commonwealth's resource management framework, including the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Procurement Rules 2019. The department will provide an opportunity for tenderers to make complaints if they wish, and to receive feedback. These complaints and inquiries can be made at any time during the procurement process, and will be handled in accordance with probity requirements.

A delegate of the Secretary of the department will be responsible for determining the successful tenderers. Information on the tender and the resultant contracts will be made available on AusTender (www.tenders.gov.au) once the contracts are signed.

In accordance with usual practice, procurement decisions, once made, will be final, and not subject to merits review. The Government Procurement (Judicial Review) Act 2018 enables suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. This legislation might provide an additional avenue of redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

In the event a request for review is made to the department, the department will acknowledge receipt of the request and refer the matter to the department's internal legal adviser. Where appropriate, the department may refer complaints to the external Probity Advisor for further investigation. The department will respond to the complainant regarding the outcome of their request for review.

Funding of $24.1 million was included in the 2019-20 Budget under the measure 'Harvest Labour Services - reforms to encourage Australian jobseekers to take up seasonal work' for a period of four years commencing on 1 July 2020. Details are set out in Budget 2019-20, Budget Measures, Budget Paper No.2 at page 149.

The Industry Engagement element was a part of that measure and has funding capped at $1.0 million across 2020-21 and 2021-22.

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

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 following treaties:

* the International Labour Organisation (ILO) Convention concerning Employment Policy ILO Conversion 122), particularly Article 1; and

* the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Articles 2 and 6.

Article 1(1) of the ILO Convention 122 requires Members to 'declare and pursue ... an active policy designed to promote full, productive and freely chosen employment. Article 1(2) specifies that this policy shall aim to ensure that (among other things) 'there is work for all who are available for and seeking work'.

The harvest program to collaborate with industry is intended to increase employers' willingness to employ local job seekers and to increase local job seekers' willingness to enter into seasonal work opportunities. As such, the harvest program is designed to promote full, productive and freely chosen employment opportunities for Australian job seekers, and to ensure that work is available and accessible to people who are seeking work.

Article 2(1) of the ICESCR obliges each State Party to take steps 'to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures'. In particular, Article 6(1) of the ICESCR provides that State Parties recognise the 'right to work' and Article 6(2) provides that State Parties shall take steps to 'achieve full realisation of this right' including 'technical and vocational guidance and training programmes and policies to achieve ... full and productive employment.'

The item provides a legislative basis upon which government funding can be directed to measures that promote the 'right to work' and which is designed to achieve full realisation of this right. The collaboration with industry is designed to general promotional activities and material to encourage employers to hire Australian job seekers and highlight the benefits of seasonal work to local Australian job seekers. Furthermore, it would help demonstrate to Australian job seekers where a seasonal work placement could take their career and the opportunities it can provide. This measure promotes the right to work so that Australian job seekers may engage in, and enjoy full and productive employment.

New table item 388 will establish legislative authority for government spending on the Jobs and Education Data Infrastructure program (the JEDI program).

The JEDI program is the development of a data engine. It brings together multiple sources of traditional and real-time data on skills demand and supply to gain detailed insights to help address the problem of skills shortages and meet the skills match challenge.

The JEDI program would support a new skills based approach to labour market analysis and provide the data insights to enable Australians to navigate the changing skills landscape and make informed decisions about their future.

The JEDI program would support multiple applications/uses and also answer the questions of different users in relation to skills, jobs, education and trends in the labour market. These include:

* For individuals, it helps identify pathways to new jobs. It shows how a person's skills could translate to growing jobs, identify gaps in knowledge, skills and experience and the qualifications people can undertake to bridge the skill gaps.

* For businesses, it would help identify the skills staff will need in the future and support employers to take a proactive approach to workforce planning.

* For education providers, it would inform the design of courses and qualifications to support an efficient and effective skills pipeline, aligned to the needs of employers and industry.

* For policy makers, it would be a data-driven evidence base to inform the policy process.

The JEDI program is being funded and developed in phases, comprising:

* Phase one is developing a job similarity algorithm that underpins the Skills Match Tool on the Job Outlook website.

* Phase two is developing a data-driven Australian skills classification and an employer-focussed tool to provide new insights about skills and the labour market.

* Phase three is developing a Tertiary Provider Tool to provide better information to tertiary providers about how their courses align to labour market need.

* Phase four would provide the supporting infrastructure and capability to produce new data-driven insights to identify real-time career pathways and course comparisons, better target Australia's skilled needs lists to labour market demand and better match job seekers to job vacancies to drive more timely employment outcomes.

Broadly, the JEDI program aims to improve:

* targeting of government programs and services (such as, to assist employment services policy and program design);

* responsiveness by education providers and employers (such as, to ensure course content is responsive to the labour market); and

* public access to data through user friendly online tools (such as, to enable the Government to create online tools to help job seekers and students make more informed choices).

The department has overall responsibility for the JEDI program, which will be delivered in partnership with other Commonwealth entities, such as the Department of Education.

Commonwealth expenditure under the JEDI program would be primarily made by the department, consistent with the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Commonwealth Procurement Rules 2019 (CPRs) and the Secretary's Instructions.

A range of procurement methods may be used throughout the implementation of the JEDI program such as open and limited tenders or procurements from existing arrangements. The selection of which procurement method to use will depend on the activity. Final spending decisions will be made by the Secretary of the department or an appropriate delegate.

Any procurement decisions will be made in accordance with the Commonwealth's resource management framework, including the PGPA Act and the CPRs. The department will provide an opportunity for suppliers and tenderers to make complaints if they wish, and to receive feedback. These complaints and inquiries can be made at any time during the procurement process, and will be handled in accordance with probity requirements.

Procurement decisions will be based on value for money, including capability and capacity to deliver, price and risk considerations.

In accordance with usual practice, procurement decisions, once made, will be final, and not subject to merits review. Re-making a procurement decision after entry into contractual arrangements with a successful proponent is legally complex, impractical, and could result in delays to implementing the JEDI program. The Government Procurement (Judicial Review) Act 2018 enables suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. This legislation might provide an additional avenue of redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

While the department will maintain overall responsibility for the JEDI program, where relevant, other Commonwealth entities (including partner entities), may be responsible for components of JEDI (such as, for example, the development and delivery of online tools, including procurement of goods and services for that purpose). In respect of other Commonwealth entities, final spending decisions will be made by delegates of responsible Ministers or delegates of accountable authorities depending on the entity.

Total funding of $9.9 million was previously provided for the first three phases of the JEDI program as follows:

* $8.1 million was included in the 2018-19 Mid-Year Economic and Fiscal Outlook under the measure 'Jobs and Education Data Infrastructure - data tool for employers and employees' for a period of four years from 2018-19. Details are set out in the Mid-Year Economic and Fiscal Outlook 2018-19, Appendix A; and

* $1.8 million was included in the 2019-20 Budget under the measure 'Skills Package - delivering skills for today and tomorrow' for a period of two years from 2019-20. Details are set out in the Budget 2019-20, Budget Paper No. 2, at page 69.

Additional funding of $18.3 million for phase four will be provided for a period of four years from 2019-20 with details to be provided in the 2019-20 Mid-Year Economic and Fiscal Outlook.

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 (s 51(v)); and

* the express incidental power and the executive power (sections 51(xxxix) and 61).

Communications power

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

Expenditure on the JEDI program would support the Commonwealth to publish the information and insights derived from the JEDI data engine online, for the benefit of employers, State and Territory governments, and other interested parties. This information will not be distributed on media which does not use the internet to distribute information.

Expenditure on the JEDI program would also support the development of various online tools which will be made available to workers, employers, education providers, students, and others about educational and employment opportunities.

Executive power and express incidental power

The express incidental power in section 51(xxxix) of the Constitution empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested in the Parliament, the executive or the courts by the Constitution. The executive power in section 61 of the Constitution supports activities that form part of the ordinary and well-recognised functions of government.

Expenditure on the JEDI program would support the (further) development and refinement of the JEDI data engine for the purposes of collating and analysing information which will be used to inform Commonwealth policy.

New table item 389 establishes legislative authority for government spending on the National Careers Institute Grants Program (the NCI grants program), which will provide funding for collaborative, locally-based partnerships between careers' stakeholders to design enhanced learning pathways.

The NCI grants program would provide funding for collaborative, locally-based projects and partnerships between careers' stakeholders to:

* design enhanced career pathways that help Australians understand the skills sought by employers and to reach their full career potential;

* showcase quality practice;

* demonstrate the value of career development; and/or

· add to the evidence base about how careers information, advice and support helps the efficient functioning of the labour market.

The design phase of the NCI grants program commenced in August 2019 and national consultations concluding in November 2019 will inform the drafting of the guidelines. The NCI grants program is scheduled to be launched in February 2020. Grant money would be distributed from 1 July 2020.

The National Careers Institute (NCI) was established on 1 July 2019, initially within the Department of Employment, Skills, Small and Family Business pending the outcomes of a co-design process to inform the future role, form and ongoing functions. The NCI will provide leadership in delivering high quality, evidence-based career development to enable Australians to make informed decisions about their learning, training and work pathways.

The NCI includes a National Careers Ambassador to assist the NCI raise the profile of career development and education pathways (the Ambassador has no role in the administration or decision-making in relation to the grants program); ongoing implementation of the Vocational Education and Training (VET) Information Strategy, aimed at growing local community and employer interest in VET; and delivering a competitive grants program.

The NCI grants program has been funded to provide $10 million to develop skills in areas of need by building collaborative partnerships between tertiary education providers (VET and Higher Education), employers, industry representative bodies, researchers, academics, policy makers, local governments, and secondary schools to design and implement innovative career pathways which are aligned to the identified skills needs of employers, and assist people to reach their full potential.

Currently, careers information is fragmented and can be difficult to access. The NCI grants program aims to address this issue by funding projects that will improve the clarity of, and access to, existing career information and increase knowledge and create greater awareness of career paths and career information with the ultimate aim of supporting better career development.

The NCI grants program would fund projects of up to $350,000 per year (limited to $3.33 million per year) to commence in 2020. Projects will create career pathways which will:

* address the skills required for new and emerging job roles including industries experiencing skills shortages;

* include all education and training streams and options;

* establish linkages between secondary, VET and Higher Education, employers and career advisors; and

* provide different entry and exit points according to individuals' needs.

Proposals that demonstrate an innovative approach to careers development and delivering careers advice would be prioritised, thereby maximising the NCI partnership grant program's effectiveness. Proposals would need to show how they build on existing evidence, information and products, and outline how they would innovate career information delivery. Innovation could be demonstrated either in the manner or method of delivering the career development information, or other ways to engage with prospective employees, including school leavers, university graduates, youth and mature-aged unemployed, people seeking to re-enter the workforce, and people seeking to re-skill or up-skill into a different job role.

Examples of grant proposals are not limited to but may include:

* building career advice capacity in schools and facilitating stronger links between schools, industry and employers;

* supporting work experience opportunities, including work tasters, demonstrations and industry experiences;

* growing career advisor industry awareness of new and emerging industries and skills in demand enhancing connections to industry and employers;

* supporting career influencers (e.g., careers advisers, parents, teachers, employers) to access careers advice and support them to help decision makers (e.g, students, career changers, job seekers) at all stages of their careers; and

* research projects to inform government policy to build the career development evidence base about why careers advice is important and what quality delivery looks like.

The NCI grants program would be administered by the Business Grants Hub, which would manage the competitive grants application process in accordance with the Commonwealth Grant Rules and Guidelines and the Public Governance, Performance and Accountability Act 2013. The NCI grants program guidelines will be developed in consultation with the Business Grants Hub and the Department of Finance.

Grant applications will be assessed against the criteria outlined in the Grant Guidelines.

These Guidelines will be developed by the Business Grants Hub in consultation with the

the department and will be available prior to the grants program commencing. All information regarding the competitive grants process, including guidelines, assessment/eligibility criteria and outcomes will be published through GrantConnect (www.grants.gov.au).

The NCI will be responsible for establishing and managing an Assessment Panel, which will determine successful applicants and make recommendations to the delegate. The delegate, currently the Assistant Secretary for the NCI, will be responsible for the final decisions regarding the awarding of grants. Final grant decisions will be published on GrantConnect.

In accordance with usual practice, grants decisions, once made, will be final and are not subject to merits review. The NCI grant program is limited to $3.33 million per year and the maximum grant amount available per project is $350,000 per year. This means that not all applications will necessarily be able to be funded and an allocation that has already been made to another party, or decisions relating to other projects, could be affected by overturning a decision not to fund a particular project or initiative. Grant applicants who are unsuccessful may ask for feedback which will be provided within one month of the request.

Complaints regarding the NCI grants program may be provided in writing to the department and/or the Business Grants Hub in accordance with the Department of Finance standard grant guidelines. If the complaint is not managed to the satisfaction of the requester, they may then complain to the Commonwealth Ombudsman.

Projects funded through the NCI grants program will be subject to monitoring and evaluation requirements, including a final evaluation of the grants program to determine the NCI grant program's overall effectiveness in achieving its objectives and the lessons learned.

The Business Grants Hub will implement an appropriate assurance process to ensure projects are delivered in accordance with grant agreements.

Funding of $525.3 million was included in the 2019-20 Budget under the measure 'Delivering Skills for Today and Tomorrow' for a period of four years from 2019-20. Details are set out in the Budget 2019-20, Budget Paper No. 2 Part 2: Expense Measures at page 69.

Of the $525.3 million, $36.3 million will support the National Careers Institute and Ambassador for a period of four years from 2019-20.

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

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 following treaties:

* the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122), particularly Articles 1 and 2

* the International Labour Organization's Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources
(ILO Convention 142), particularly Articles 1, 2 and 4

* the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Article 6.

The NCI grants program would facilitate collaborative partnerships to create and implement enhanced learning pathways that would assist people to build skills and choose occupations in demand in their region, particularly those underpinned by the VET system in Australia.

Article 1(1) of the ILO Convention 142 obliges Members to 'adopt and develop comprehensive and co-ordinated policies and programmes of vocational guidance and vocational training, closely linked with employment.' Article 1(2) requires that the policies and programs adopted for the purposes of Article 1(1) take due account of matters including 'employment needs, opportunities and problems, both regional and national'.

The NCI grants program would promote the development of innovative enhanced learning pathways and guidance, about careers information and opportunities, which would be aligned to the identified skills needs of employers. In this way, the NCI grants program would adopt and develop comprehensive and co-ordinated policies and programmes of vocational guidance and vocational training, closely linked with employment that takes account of the needs, opportunities and problems both regional and national.

Further, the NCI grants program would fund innovative proposals to either develop and/or enhance career information and opportunities within the school, VET and higher education systems, thereby assisting to establish and develop educational and vocational guidance and vocational training. Finally, it is expected that the NCI grants program would fund proposals that look to develop and enhance career opportunities in VET for young persons and adults in all sectors of the economy.

Article 2(1) of the ICESCR obliges each State Party to take steps 'to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures'. In particular, Article 6(1) of the ICESCR provides that States Parties recognise the 'right to work' and Article 6(2) provides that States Parties shall take steps to 'achieve full realization of this right' including 'technical and vocational guidance and training programmes, policies and techniques to achieve... full and productive employment.'

The NCI grants program would fund proposals that seek to develop and/or enhance career opportunities that will support people to develop the skills needed to fulfil their right to work and for full and productive employment.

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 (Employment, Skills, Small and Family Business Measures No. 5) Regulations 2019

These Regulations are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The FF(SP) Act applies to Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

The Financial Framework (Supplementary Powers) Amendment (Employment, Skills, Small and Family Business Measures No. 5) Regulations 2019 amend Schedule 1AB to the FF(SP) Regulations to add four new table items to establish legislative authority for government spending on certain activities that will be administered by the Department of Employment, Skills, Small and Family Business (the department).

This instrument adds the following table items to Part 4 of Schedule 1AB:

* table item 386 for the Commonwealth Scholarships Program for Young Australians program;

* table item 387 for the Harvest Trail Service - collaborating with industry program;

* table item 388 for the Jobs and Education Data Infrastructure program; and

* table item 389 for the National Careers Institute Grants program.

Table item 386 - Commonwealth Scholarships Program for Young Australians

Table item 386 establishes legislative authority for government spending on the Commonwealth Scholarships Program for Young Australians (the scholarships program).

The scholarships program would provide up to 400 scholarships to support young Australians to enter the vocational education and training (VET) sector, ensuring they have access to the skills they need to participate and thrive in a modern and strong economy. Scholarships would be available for VET Approved Programs of Study at the Certificate III to Advanced Diploma level, which lead to an eligible occupation.

Applications will open in January 2020 for applicants who are aged 15-24 years, are not in full-time work at the time of applying and reside within one of ten regions across Australia. Priority would be given to eligible applicants in the following cohorts:

* Indigenous young Australians,

* young Australians with a disability,

* young Australians from culturally and linguistically diverse backgrounds, and

* individuals who have exited from the Australian Defence Force (ADF) in the previous two years (the age criteria will not be applicable for ADF applicants).

The scholarships program would address skills pressures in regions experiencing high youth unemployment, low rates of economic growth and with low adaptive capacity to move to a more sustainable economic base. Scholarships would include a 20 day paid internship, which would provide students with an opportunity to gain on-the-job experience within an industry relevant to their study or training, develop skills, learn about the business in which they are placed and contribute to the host organisation. Internships prepare students for long term employment following the completion of their study or training.

Human rights implications

Table item 386 engages the following human rights:

* the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Articles 4, 28 and 29 of the United Nations Convention on the Rights of the Child (UNCRC), Article 24 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and Articles 14(2) and 21 of the United Nations Declaration on the Rights of Indigenous Peoples (DRIP); and

* the right to work - Article 6 of the ICESCR, Article 27(1) of the CRPD, and Article 21 of the DRIP.

Right to education

Table item 386 engages the right to education in Article 13 of the ICESCR. Article 13 recognises the right of everyone to education, which is directed towards the full development of the human personality and the sense of its dignity, and to enable all persons to participate effectively in society. Articles 13(2)(b) and 13(2)(c) of the ICESCR provide that vocational education is a part of secondary education and secondary education must be available and accessible to all on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education. These Articles recognise the important personal, societal, economic and intellectual benefits of education, and provide that technical and vocational education should enable students to acquire knowledge and skills which contribute to their employability and enhance their productivity.

The scholarships program would promote the right to education by providing financial assistance to approximately 400 individuals to enable them to undertake further training and study.

Table item 386 also engages the right of children to education in Articles 4, 28 and 29 of the UNCRC. Article 28 encourages the development of different forms of secondary education, including general and vocational education, and promotes the enactment of measures such as financial assistance in cases of need. Table item 386 would offer financial assistance to make vocational education and training more accessible to students, thereby engaging Article 28. The internship component of the Amendment Regulation would prepare students for long-term employment following the completion of their study or training, which supports Article 29(d) of the UNCRC, which outlines that the purpose of the education includes the preparation of the child for responsible life in a free society.

The scholarships program would prioritise young Australians with disability and Indigenous young Australians. Table item 386 therefore engages with Article 24 of the CRPD, which provides that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning, recognising that maximising academic and social development is consistent with the goal of full inclusion of persons with disabilities in a free society.

In addition, table item 386 engages with multiple Articles of the DRIP, including Article 14(2), which states that Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination. Table item 386 also engages with Article 21, which states that Indigenous persons have the right to the improvement of their economic and social conditions, including in the areas of education and vocational training and retraining, and that States should, where necessary, undertake special measures to ensure continuing improvement of their economic and social conditions, particularly for youth, children and Indigenous persons with disabilities.

Right to work

Table item 386 engages the right to work in Article 6 of the ICESCR, which includes the right of everyone to the opportunity to gain their living by work which he freely chooses or accepts. Article 6(2) provides that the steps to be taken by State Parties to achieve the full realisation of this right include providing technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedom to the individual. Table item 386 would promote the right to work by facilitating the entry of young persons into the workforce.

Table item 386 also supports the rights of Indigenous persons and persons with disabilities to work by engaging with Articles of the CRPD and DRIP. Article 27(1) of the CRPD recognises the right of persons with disabilities to work, and calls upon States to promote this right by enabling persons with disabilities to have effective access to vocational and continuing training, providing assistance to disabled persons in obtaining employment, and promoting the attainment of work experience by persons with disabilities. Article 21 of the DRIP provides that Indigenous persons have the right to the improvement of their economic and social conditions including in employment, and asserts that States should take measures to ensure this continuing improvement. By prioritising Indigenous persons and persons with disabilities participating in the Program, including the internship component, table item 386 would promote the right to work for these cohorts.

Conclusion

Table item 386 is compatible with human rights because they promote the right to education under the ICESCR and UNCRC as well as the right to work under the ICESCR.

Table item 387 - Harvest Trail Service - Collaborating with Industry

Table item 387 establishes legislative authority for government spending on the Harvest Trail Service - Collaborating with Industry program (the harvest program).

The expansion of the existing Harvest Labour Service (HLS) (renamed the Harvest Trail Service (HTS)) to include additional horticultural regions and provide outcome payments to HTS providers (which place and keep Australian job seekers in seasonal work) is intended to operate to encourage Australian job seekers to take up seasonal work and encourage employers to hire Australian workers. The Government recognises that developing a local horticulture workforce requires working in close collaboration and partnership with key stakeholders. The funding authorised under the harvest program provides for that collaboration and will encourage utilisation of the HTS.

The horticulture/agricultural industry will be invited to submit innovative proposals aimed at promoting seasonal work opportunities to local job seekers and encouraging growers to hire Australian job seekers. Successful proposals will be co-funded; half funded by industry and half by Government, and could include promotional activities and material to encourage employers to hire Australian job seekers and highlight the benefits/career opportunities of seasonal work to local job seekers.

The harvest program aims to shift negative perceptions of seasonal work by providing positive information and experiences to job seekers, and recognises that the horticulture industry has an important role to play in promoting seasonal work to Australian job seekers.

Under the harvest program, funding will be available nationally from 1 July 2020 to 30 June 2022, with Government expenditure capped at $1.0 million over two years in total. A competitive tender process will be undertaken to engage with industry to identify potential proposals. This industry collaboration will complement the expansion of the HTS and enhancement of the Harvest Trail Information Service (HTIS).

Human rights implications

Table item 387 engages the right to work and gives effect to the following treaties:

* the International Labour Organisation (ILO) Convention concerning Employment Policy (ILO Convention 122), particularly Article 1; and

* the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Articles 2 and 6.

Right to work

Table item 387 provides a legislative basis upon which government funding can be directed to measures that promote the 'right to work' and which are designed to achieve full realisation of this right. The collaboration with industry is designed to generate promotional activities and material to encourage employers to hire Australian job seekers and highlight the benefits of seasonal work to local Australian job seekers. Furthermore, it will help demonstrate to Australian job seekers where a seasonal work placement could take their career and the opportunities it can provide. Table item 387 promotes the right to work so that Australian job seekers may engage in, and enjoy full and productive employment.

Conclusion

Table item 387 is compatible with human rights because it promotes the right to work.

Table item 388 - Jobs and Education Data Infrastructure

Table item 388 establishes legislative authority for government spending on the Jobs and Education Data Infrastructure (the JEDI program).

The JEDI program is the development of a data engine. It would bring together multiple sources of traditional and real-time data on skills demand and supply to gain detailed insights to help address the problem of skills shortages and meet the skills match challenge.

The JEDI program would support a new skills based approach to labour market analysis and would provide the data insights to enable Australians to navigate the changing skills landscape and make informed decisions about their future.

The JEDI program would support multiple applications/uses including:

* For individuals, it would help identify pathways to new jobs. It would show how a person's skills could translate to growing jobs, identify gaps in knowledge, skills and experience and the qualifications people can undertake to bridge skill gaps.

* For businesses, it would help identify the skills staff will need in the future and support employers to take a proactive approach to workforce planning.

* For education providers, it would inform the design of courses and qualifications to support an efficient and effective skills pipeline aligned to the needs of employers and industry.

* For policy makers, it would be a data-driven evidence base to inform the policy process.

Human rights implications

Table item 388 engages the following rights:

* the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and

* the right to education, including the right of the child to education, in Article 13 of the ICESCR and Article 28 of the Convention on the Rights of the Child (CRC).

Right to work

Article 2 of the ICESCR relevantly states that States Parties undertake steps to achieve progressively the full realisation of the rights recognised in the ICESCR.

Article 6 of the ICESR provides that States Parties recognise the 'right to work' and will take appropriate steps to achieve the realisation of this right including through 'technical and vocational guidance and training programmes, policies and techniques to achieve ... full and productive employment'.

Table item 388 promotes the right to work because it would provide authority for government spending on the JEDI program , which would enable a better understanding of the labour market that all Australians would have access to in order to inform their decisions about their career path and the skills required to obtain a job to which they are well suited.

In addition, the insights derived from the information would assist to inform policy development, and decision-making about ways to improve existing employment policies, and thereby help reduce unemployment.

As such, the JEDI program will contribute to full, productive, and freely chosen employment. The Amendment Regulation is compatible with the right to work.

Right to education, including the right of the child to education

Article 2 of the ICESCR relevantly states that States Parties undertake steps to achieve progressively the full realisation of the rights recognised in the ICESCR.

Article 13 of the ICESCR provides that States Parties recognise the 'right of everyone to education' and will take appropriate steps to achieve the realisation of this right including through:

* 'secondary education [ ... ], including technical and vocational secondary education, [to] be made generally available and accessible to all by every appropriate means'; and

* 'higher education [to] be made equally accessible to all, on the basis of capacity, by every appropriate means'.

Article 4 of CRC obliges States Parties to undertake ‘all appropriate legislative, administrative, and other measures for the implementation of the rights in the present Convention'.

Under Article 28 of the CRC, States Parties recognise the right of the child to education, and are obliged to 'encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need'.

Table item 388 would promote the right to education, including the right of the child to education, because it would provide support for government spending on JEDI. In particular, the JEDI program would enable the Government to derive insights from information so it can develop online tools to promote or assist:

* greater accessibility of information about education and the potential pathways to employment; and

* education providers to design courses that are responsive to the needs of industry and employers.

Greater information transparency from the JEDI program would promote vocational education and training options and highlight it as a potential part of an individual's decision about their career path and the skills they will need to obtain a job to which they are well suited.

In addition, the insights derived from the information would assist to inform policy development, and decision-making about ways to improve existing policies of vocational guidance and training, higher education and schools.

Conclusion

Table item 388 is compatible with human rights because it promotes the protection of human rights.

Table item 389 - National Careers Institute Grants Program

Table item 389 establishes legislative authority for government spending on the National Careers Institute Grants Program (the NCI grants program).

The NCI grants program aims to improve access to quality career information, and increase awareness and knowledge of career paths, to support better career development.

The NCI grants program will provide $10 million to develop skills in areas of need by building collaborative partnerships between careers' stakeholders, which would include tertiary education providers (VET and higher education), employers, industry representative bodies, researchers, academics, policy makers, local governments, and secondary schools.

Projects could receive up to $350,000 per year for collaborative, locally-based projects and partnerships between careers stakeholders to:

* design enhanced career pathways that help Australians understand the skills sought by employers and to reach their full career potential;

* showcase quality practice;

* demonstrate the value of career development; and/or

* add to the evidence base about how careers information, advice and support helps the efficient functioning of the labour market.

Human rights implications

Table item 389 engages the following human rights:

* the right to work

* the right to education, including the right of the child to education.

The NCI grants program would give effect to Australia's obligations under the following treaties:

* the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122), particularly Articles 1 and 2

* the International Labour Organization's Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources (ILO Convention 142), particularly Articles 1, 2 and 4

* the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Article 6

* the Convention on the Rights of the Child (CRC), particularly Article 28.

Right to work

Article 1(1) of the ILO Convention 122 requires Members to 'declare and pursue ... an active policy designed to promote full, productive and freely chosen employment.' Article 1(2) specifies that this policy shall aim to ensure that (among other things) 'there is work for all who are available for and seeking work'. Article 2 further requires Members 'decide on and keep under review ... the measures to be adopted for attaining the objectives specified in Article 1', and to 'take such steps as may be needed ... for the application of these measures'.

The NCI grants program's objective is consistent with the intention of improving employment outcomes for individuals. The NCI grants program would assist Australians to realise their right to work through funding opportunities intended to enhance the careers development system by creating learning pathways for potential employees to jobs in local industries, including new and emerging industry sectors.

Right to education, including the right of the child to education

Article 4 of the CRC obliges each State Party to undertake 'all appropriate legislative, administrative, and other measures for the implementation of the rights in the present Convention'.

Under Article 28 of the CRC, each State Party recognises the right of the child to education, and is obliged to 'encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need'.

Table item 389 would promote the right to education, including the right of the child to education. The NCI grants program would fund innovative learning pathways that will improve the clarity of, and access to, existing career information and increase knowledge and create greater awareness of career paths and career information thereby supporting better career development, including education and training for a career. Children in secondary schooling will benefit from the projects to be funded under the NCI grants program, facilitating their right to education by providing them with more coordinated and targeted information about career pathways.

Conclusion

Table item 389 is compatible with human rights because it promotes the right to work and the right to education, including the right of the child to education.

Senator the Hon Mathias Cormann

Minister for Finance

Commonwealth Numbered Regulations - Explanatory Statements

Table item 386 - Commonwealth Scholarships Program for Young Australians

Table item 387 - Harvest Trail Service - Collaborating with Industry