Details of the Financial Framework (Supplementary Powers) Amendment (Foreign Affairs and Trade Measures No. 1) Regulations 2023

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Foreign Affairs and Trade Measures No. 1) Regulations 2023.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after registration on the Federal Register of Legislation.

 

Section 3 - Authority

 

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

 

Section 4 - Schedules

 

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

 

Schedule 1 - Amendments

 

Financial Framework (Supplementary Powers) Regulations 1997

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

 

This item adds two new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on programs administered by the Department of Foreign Affairs and Trade (the department).

 

New table item 593 establishes legislative authority for government spending on the Vietnamese labour mobility for work in relation to primary industries in Australia program (the program).

 

On 28 March 2022, the Australia Government signed a Memorandum of Understanding (MoU) with Vietnam to support the recruitment of workers from Vietnam by eligible Australian employers in the agricultural sector under the Australian Agricultural Visa (AAV) program, which was established in August 2021.

 

The Government has since announced the relocation of the AAV program within the Pacific Australia Labour Mobility (PALM) scheme and has committed to honouring the MoU with Vietnam (www.pennywong.com.au/media-hub/media-statements/labor-s-plan-for-a-stronger-pacific-family/). 

 

The MoU will allow for up to 1,000 workers from Vietnam to be in Australia at any point in time to undertake seasonal and non-seasonal agriculture-related work for up to four years. This cap will be reviewed annually. Vietnamese workers will be employed in primary industry sectors, including horticulture, meat processing, fisheries (including aquaculture) and forestry.

 

An offshore provider will work with the Governments of Australia and Vietnam to provide assurance of the recruitment models in Vietnam. The department will also work with the Government of Vietnam on recruitment processes and operations related to the services of the offshore provider.

 

Funding will provide for the establishment and ongoing operation of this service, which will be delivered by a United Nations organisation specialising in labour migration and ethical recruitment. Funding will also support the recruitment for a senior policy officer position in Australia and ongoing contract management and oversight by staff in Hanoi post.

 

When Vietnamese workers arrive in Australia, the Department of Employment and Workplace Relations (DEWR) will be responsible for welfare and worker support onshore and compliance and assurance through the PALM scheme.

 

Only employers who are approved to recruit workers under the PALM scheme will be eligible to recruit workers from Vietnam under the MoU. This process requires rigorous upfront checks of compliance criteria - the Migration Act 1958, the Fair Work Act 2009 and financial viability of businesses. It is considered a necessarily high bar to assure the integrity of recruitments and protection of workers.

 

The department will manage the MoU and will also be responsible for development and international relations, policy, coordination and engagement. DEWR will be responsible for operational policy and program delivery in Australia, managing welfare and worker support and compliance and assurance. The Department of Home Affairs (Home Affairs) will process all Temporary Activity Sponsor and visa applications. The Australian Border Force and the Fair Work Ombudsman will support delivery of the visa by ensuring adherence to the Migration Act 1958 and the Fair Work Act 2009 and workplace compliance respectively.

 

The department will deliver the program through either a grant or procurement process. Expenditure will be managed by the department, with up to two external providers engaged to deliver labour sending integrity services in accordance with the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs) or the Commonwealth Procurement Rules (CPRs).

 

Where a grant process is utilised, the department will develop appropriate grant opportunity guidelines in accordance with the CGRGs, which will be made available on GrantConnect (grants.gov.au). Where a procurement process is required, funding decisions will be made in accordance with the CPRs and information on the program will be made available on AusTender (www.tenders.gov.au).

 

A delegate of the Minister for Foreign Affairs will be responsible for approving Commonwealth expenditure. The delegate will be the Assistant Secretary (SES Band 1) who, as a senior officer with responsibility for all aspects of the implementation and operation of the program, has the appropriate skills, qualifications and experience to perform this function.

 

Funding decisions made in relation to the program for in-country service providers will not be suitable for an independent merits review because it would be slower, more administratively burdensome and more costly than relying on the existing complaints handling and judicial review processes available to tenderers and/or grant applicants.

 

In addition, a limited pool of resources will be allocated to securing these in-country service providers. Prospective tenderers or grantees applying or tendering for a portion of these resources will have to do so in accordance with prescribed eligibility criteria, advertised as part of the grant or procurement process. Once a successful tenderer or grantee is in place, any subsequent decision to overturn the original decision and nominate an alternative service provider or grantee, may result in a smaller pool of resources being available for subsequent grant applicants or tenderers. This would unduly impact on third party tenderers/applicants, while also failing to deliver any tangible efficiencies. 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? (ARC guide)).

 

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

 

While judicial review is not ordinarily available to grant applicants, tenderers in procurement processes may challenge the department's decisions in accordance with the Government Procurement (Judicial Review) Act 2018 (GPJR Act).

 

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

 

The department consulted with the Government of Vietnam and the Vietnamese embassy in Canberra in relation to the MoU. Australian businesses were not consulted as only employers who are approved to recruit workers under the PALM scheme will be eligible to recruit workers from Vietnam under the MoU.

 

Funding of $15.7 million for the PALM scheme was included in the 2022-23 October Budget under the measure 'Enhancing the Pacific Australia Labour Mobility Scheme' for a period of four years commencing in 2022-23. Details are set out in Budget October 2022-23, Budget Measures, Budget Paper No. 2 at pages 111 and 112. The program is funded from this measure.

 

Funding for this item will come from Program 1.1 Foreign Affairs and Trade Operations - Administered, which is part of Outcome 1. Details are set out in the Portfolio Budget Statements 2022-23 October Budget, Budget Related Paper No. 1.18 Foreign Affairs and Trade Portfolio at page 27.

 

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

*      the aliens power (section 51(xix)), and

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

 

Aliens power

 

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

 

Funding will be provided consistent with the MoU for activities and projects to assist with the development and implementation of visa programs which are, or will be, available to aliens.

 

External affairs power

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation with respect to:

*       matters or things outside the geographical limits of Australia

*       matters concerning Australia's relations with other nations.

 

Funding will be provided consistent with the MoU for activities and projects to assist with the development and implementation of visa programs which are relevant to Australia's agricultural trade relationship with foreign states and potential foreign workers. Expenditure would also affect persons who are geographically external to Australia such as the labour support services carried out in Vietnam.

 

New table item 594 establishes legislative authority for government spending on the Pacific Engagement Visa (PEV) to fund a broad range of services to support citizens of Pacific island countries and Timor-Leste and members of their immediate family to find employment and settle in Australia.

 

The PEV responds to the Government election commitment to build a stronger Pacific family and boost Pacific permanent migration to Australia. Specifically, the PEV aims to grow Australia's Pacific and Timor-Leste diaspora and encourage greater cultural, business, and educational exchange.

 

Through the PEV, the Government is committed to:

*         providing a sustainable migration program, with robust integrity, governance and social support measures to grow a healthy and prosperous Pacific and Timor-Leste diaspora;

*         support participants to achieve basic levels of economic security and drive positive settlement outcomes; and

*         work closely with Pacific partners to ensure the program meets shared needs and priorities in support of a peaceful, prosperous, and resilient Pacific.

 

The PEV will operate through a ballot system, anticipated to commence in July 2023 and will be available to 3,000 Pacific island and Timor-Leste citizens (including, if applicable, a partner and legal dependents) each year.

 

To ensure successful implementation of the PEV, funding will be provided across multiple government entities to deliver a broad range of services, including to Home Affairs, which has legislative responsibility for issuing visas under the Migration Act 1958. The department will be responsible for the provision of offshore support to potential PEV applicants, including connecting ballot winners with employers in Australia.

 

The decision to establish offshore support resources was the result of consultation with Pacific partners and Timor-Leste. The offshore resources will provide ongoing dissemination of accurate and timely information about the program, application process and life in Australia.

 

The offshore resource will work directly with successful ballot applicants to connect them with employers in Australia, providing access to a variety of roles at a range of skill levels. The offshore resource will also guide successful applicants through the visa application process, deliver culturally and language-relevant program outreach, and inform applicants about life in Australia.

 

Funding of $11.4 million has been allocated to the department to support ongoing consultations with partner governments, monitoring and evaluation, and to engage an external service provider that will:

• provide offshore education and marketing services to ensure realistic expectations about the PEV process and life in Australia. Initially the contractor will be provided a range of resources and materials to assist, however, the contractor will expand on these materials as the program progresses. The contractor will run seminars and information sessions to talk about the PEV program in detail and share experiences of people who have relocated to Australia;
• work individually with successful ballot applicants, who plan to lodge an application for the PEV. The service provider will also assist in the creation of a curriculum vitae and connect ballot winners with Australian employers to enable PEV applicants to secure a job offer, which is a requirement of the PEV. There will be no requirements for PEV holders to reside in particular regions or work in specific industries as they will be permanent residents on arrival in Australia; and
• develop connections with Australian employers to create a bank of opportunities that offshore PEV applicants may choose to select from. Potential employers will need to meet Australian labour market requirements to engage with the program. The services will be provided on an opt-in basis as there is no requirement for applicants to access the service.

 

Resources will be located across the Pacific, Timor-Leste and potentially Australia to provide the best coverage of the region, create connections with Australian employers, and maximise the provision of job matching services to PEV applicants.

 

The department will engage the external service provider through an open tender procurement process in accordance with the PGPA Act and the CPRs, to ensure value for money. The PEV will be administered by the department in accordance with the Commonwealth resource management framework, including the information on the tender which is published on the AusTender website www.tenders.gov.au. An evaluation panel will assess proposals in accordance with selection criteria as per the approved procurement plan, including probity assurances.

 

A delegate of the Secretary of the department, under the Financial Framework (Supplementary Powers) Act 1997 will be responsible for approving Commonwealth funding provided to the selected service provider. The delegate (Assistant Secretary, Education and Integration Branch) will take into consideration the price, risk and value for money as part of the decision-making process and will have the capability and capacity to monitor and evaluate the delivery of the PEV offshore services program. Home Affairs will be responsible for the implementation of the visa. The contract is anticipated to run through to June 2025 with a potential one-year extension at the department's discretion.

 

Independent merits review is not an appropriate remedy in relation to the procurement of external services providers for the PEV, because it would be slower, more administratively burdensome and costly. A limited pool of resources will be allocated to securing these
in-country service providers. Prospective suppliers tendering for a portion of these resources will have to do so in accordance with prescribed eligibility criteria, advertised as part of the procurement process, in accordance with the CPRs. Once a successful tenderer is in place, any subsequent decision to overturn the original decision and nominate an alternative service provider may result in a smaller pool of resources being available for future tenderers. This would unduly impact on third party tenderers, while also failing to deliver any tangible efficiencies. 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 ARC guide).

 

Some decisions in relation to the broader PEV program may be eligible for review. If a decision is made to refuse a PEV applicant who has applied from within Australia, the decision may be reviewable under the Migration Act 1958. An eligible applicant is entitled to apply to the Administrative Appeals Tribunal to seek merits review of the decisions. Unlike other Commonwealth labour mobility programs (such as the PALM scheme), PEV applicants will not be restricted to applying for work with Commonwealth approved employers. As such, no reviewable decisions will be made by the Commonwealth in relation to organisations employing PEV participants.

 

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

 

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

 

The department has consulted with Pacific and Timor-Leste Governments, including with Heads of Mission in Australia. The PEV has also been raised in the context of changes to the PALM scheme. These consultations included Australian employers and peak employment bodies. Through consultations, it became evident that PEV ballot entrants and PEV applicants require education about the program and support to secure employment in Australia.

 

Consultations included an early lessons learnt mission to New Zealand which provided an insight into the programs offered by the New Zealand Government, and informed the design of the PEV. The consultation team met with participants of the New Zealand programs, who echoed the need for support services.

 

Implementation of the PEV support program will include further consultations to ensure the program meets the shared needs and objectives of Australia, the Pacific and Timor-Leste.

 

The department was allocated funding of $11.4 million for the PEV in the 2022-23 October Budget under the measure 'Pacific Engagement Visa' for a period of four years commencing in 2022-23. Details are set out in Budget October 2022-23, Budget Measures, Budget Paper No. 2 at pages 29 and 150.

 

Funding for this item will come from Program 1.1: Foreign Affairs and Trade Operations, which is part of Outcome 1. Details are set out in Portfolio Budget Statements 2022-23 October Budget, Budget Related Paper No. 1.18, Foreign Affairs and Trade Portfolio at page 19.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objectives of the items reference the following powers of the Constitution:

*         the aliens power (section 51(xix)), and

*         the immigration and emigration power (section 51 (xxvii)).

 

Aliens power

 

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

 

Funding will be provided under the PEV for activities and projects to assist with the development and implementation of visa programs which are, or will be, available to people who are not citizens of Australia.

 

Immigration and emigration power

 

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

 

Funding will be provided under the PEV for activities and projects to assist with the development and implementation of visa programs which are, or will be, available to people who are not citizens of Australia.

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Foreign Affairs and Trade Measures No. 1) Regulations 2023

 

This disallowable legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the legislative instrument

 

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

 

The Financial Framework (Supplementary Powers) Amendment (Foreign Affairs and Trade Measures No. 1) Regulations 2023 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities administered by the Department of Foreign Affairs and Trade.

 

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

*           table item 593 'Vietnamese labour mobility for work in relation to primary industries in Australia'; and

*           table item 594 'Pacific Engagement Visa'.

 

Table item 593 - Vietnamese labour mobility for work in relation to primary industries in Australia.

 

Table item 593 establishes legislative authority for government spending on the Vietnamese labour mobility for work in relation to primary industries in Australia program (the program).

 

On 28 March 2022, the Australia Government signed a Memorandum of Understanding (MoU) with Vietnam to support the recruitment of workers from Vietnam by eligible Australian employers in the agricultural sector under the Australian Agricultural Visa (AAV) program. The Government has since announced the relocation of the AAV program within the Pacific Australia Labour Mobility (PALM) scheme and has committed to honouring the MoU with Vietnam.

 

The MoU will allow for up to 1,000 workers from Vietnam to be in Australia at a time to undertake seasonal and non-seasonal agriculture-related work for up to four years. Vietnamese workers will be employed in primary industry sectors, including horticulture, meat processing, fisheries (including aquaculture) and forestry.

 

Funding will provide for the establishment and ongoing operation of an offshore provider to provide assurance of recruitment models in Vietnam as well as ongoing contract management and oversight by staff in the Hanoi post.

 

Funding for the program will form part of the PALM scheme of $15.7 million over four years from 2022-23.

 

Human rights implications

 

Table item 593 engages the following rights:

*           the right to work and rights at work - Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2 and Articles 1 and 2 of the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122).

 

Right to work and rights at work

 

Article 2 of the ICESCR requires that each State Party to the Covenant undertakes to take steps to the maximum of its available resources, especially economic and technical, to realise the rights recognised in the Covenant, particularly through legislative measures. Article 7 of the ICESCR recognises the right of everyone to the enjoyment of just and favourable conditions of work, including through fair wages, equal remuneration and provision of a decent living. It also includes safe and healthy working conditions, equal opportunity for promotion and availability of rest, leisure and holidays.

 

Article 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 2 requires Members to maintain measures to attain the objectives of the Convention and take necessary steps for the application of the measures, including the establishment of programmes.

 

Table item 593 positively engages the right to work and rights at work visa holders under this program, including initiatives, such as education, information dissemination, and inquiries and investigations, directed at addressing worker exploitation and ensuring compliance with relevant workplace standards.

 

Conclusion

Table item 593 is compatible with human rights because it promotes the protection of human rights.

 

Table item 594 - Pacific Engagement Visa

 

Table item 594 establishes legislative authority for government spending on the Pacific Engagement Visa (PEV) to fund a broad range of services to support citizens of Pacific Island countries and Timor-Leste and members of their immediate family to find employment and settle in Australia.

 

The PEV responds to the Government election commitment to build a stronger Pacific family and boost Pacific permanent migration to Australia. Specifically, the PEV aims to grow Australia's Pacific and Timor-Leste diaspora and encourage greater cultural, business, and educational exchange.

 

Through the PEV, the Government is committed to:

• providing a sustainable migration program, with robust integrity, governance and social support measures to grow a healthy and prosperous Pacific and Timor-Leste diaspora;
• supporting participants achieve basic levels of economic security and drive positive settlement outcomes; and
• working closely with Pacific partners to ensure the program meets shared needs and priorities in support of a peaceful, prosperous, and resilient Pacific.

 

Funding of $11.4 million over four years from 2022-23 has been allocated to the department to support ongoing consultations with partner governments, monitoring and evaluation, and engage an external provider to deliver a range of offshore support services. The offshore resource will deliver culturally and language relevant program outreach and inform applicants about life in Australia, work directly with successful ballot applicants to connect them with employers in Australia, providing access to a variety of roles at a range of skill levels. The offshore resource will also guide successful applicants through the visa application process.

 

Human rights implications

 

Table item 594 does not engage any of the applicable rights or freedoms.

 

Conclusion

 

Table item 594 is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance