Details of the Financial Framework (Supplementary Powers) Amendment

(Prime Minister and Cabinet Measures No. 1) Regulations 2022

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 1) Regulations 2022.

 

Section 2 - Commencement

 

This section provides that the Regulations commence immediately 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 (the FF(SP) Act).

 

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 - At the end of Part 3

 

This item adds new Division 4 - Amendments made by the Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 1) Regulations 2022 - at the end of Part 3 of the Principal Regulations. Part 3 deals with transitional and application provisions.

 

New regulation 29 (power to vary or administer grants or arrangements) ensures that, despite the repeal and substitution of table item 434 in Part 4 of Schedule 1AB by Schedule 1 to the Regulations, the repealed version of that item continues in force for the purposes of sections 32B (power to make, vary and administer arrangements and grants) and 32C (terms and conditions for grants) of the FF(SP) Act, should the need for such action arise in the future. For example, there could be outstanding claims for pandemic leave disaster payments (pandemic payments) made against prior isolation and other eligibility requirements that need to be processed after table item 434 has been repealed. However, the transitional provisions do not authorise the Commonwealth to make pandemic payments against the updated eligibility requirements in reliance on the repealed version of that table item.

 

 

 

Item 2 - Part 4 of Schedule 1AB (table item 434)

 

This item repeals table item 434 in Part 4 of Schedule 1AB and substitutes a new table item to reflect recent changes to pandemic payments agreed by the National Cabinet. The National Recovery and Resilience Agency (NRRA) has policy responsibility for pandemic payments. Individual payments will continue to be administered by Services Australia.

 

The substituted version of table item 434 establishes legislative authority for the Government to make pandemic payments to eligible individuals unable to earn income because they have tested positive for COVID-19, or are a close contact of someone who has tested positive for COVID-19 (consistent with the definition of a close contact agreed by the National Cabinet), or are required to care for someone who has tested positive for COVID-19 or who is a close contact. On 30 December 2021, the National Cabinet agreed that close contacts will be defined, except in exceptional circumstances, as those who usually live with or who have stayed in the same household for more than four hours as a case during their infectious period.

 

Effective from 18 January 2022, pandemic payments will be scaled based on the number of hours of work the individual has lost or expects to lose during an isolation period of up to seven days:

*         individuals who have lost or expect to lose 20 hours of work or more will continue to be eligible for a pandemic payment of $750; and

*         individuals who have lost or expect to lose at least a day of work or up to 20 hours will be eligible for a pandemic payment of $450.

 

A financial hardship test will also be introduced with individuals who have available funds of $10,000 or more ineligible for pandemic payments to ensure the taxpayer funded payments are targeted to those who need them most.

 

Claimants will also be able to self-declare that they have been required to isolate because they have tested positive for COVID-19 or are a close contact consistent with the definition of a close contact agreed by the National Cabinet.

 

Pandemic payments will continue to be available to persons who are at least 17 years old and who are either Australian citizens, or Australian permanent residents, or holders of a temporary visa who have the right to work in Australia. Individuals will have 14 days from the commencement of their isolation period to claim the payment, which can be done online in myGov or by telephone. Detailed information about eligibility criteria for pandemic payments, the payment rates, and the process for making claims will be published on the Services Australia website (https://www.servicesaustralia.gov.au/pandemic-leave-disaster-payment).

 

A claim will be assessed by Services Australia against the eligibility criteria before making the payment and claimants will be notified by letter if their claim has been granted or rejected.

Where requested, a claimant may also need to provide evidence of meeting the eligibility criteria for the payment. Depending on individual circumstances, payments may be released in real time to the claimant's Australian bank account.

 

Pandemic payments will continue to be administered by Services Australia as demand-driven grants, in accordance with the Commonwealth Grants Rules and Guidelines 2017 and the Public Governance, Performance and Accountability Act 2013. The new Pandemic Leave Disaster Payment Guidelines will be made available on the GrantConnect website (www.grants.gov.au). There will be no written grant agreement for the payment. Aggregated information on the number of claims granted and the total expenditure will be published on GrantConnect. Individual claimants will not be identified.

 

Independent merits review is not considered suitable for decisions made in connection with pandemic payments as such decisions may be described as automatic or mandatory in nature. The decision making process is procedural. Self-declaration is the primary method of a claimant demonstrating they have met the eligibility criteria. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraph 3.8 of the guide, What decisions should be subject to merit review?).

 

In the case of a rejected claim, details on the review process by Services Australia will be described in the letter to the claimant. If a claimant does not understand the reason/s for a Services Australia's decision, they can ask for an explanation of the decision. An explanation of the decision will be provided by a Subject Matter Expert (SME). The SME will investigate the decision, correct any identified errors, undertake any reassessment and contact the claimant to explain the decision. Services Australia may seek input from the NRRA at any point in this process prior to finalising the review. The internal review process in Services Australia provides a robust means of addressing errors that might occur in the decision making process. Given these are beneficial and not complex decisions, the internal review process conducted by Services Australia provides an effective means of efficiently arriving at the preferable decision.

 

If the claimant does not agree with the way Services Australia has handled their complaint, they may complain to the Commonwealth Ombudsman. The Ombudsman will not usually look into a complaint unless the matter has first been raised directly with Services Australia.

 

The audit process undertaken by the Australian National Audit Office also provides a mechanism to review government spending decisions and report any concerns to the Parliament. Judicial review may also be available under section 39B of the Judiciary Act 1903 and section 75(v) of the Australian Constitution.

 

Changes to pandemic payments reflect consultation with states and territories through the National Cabinet. Broader public consultation was not considered appropriate as changes were agreed by the National Cabinet as part of the response to COVID-19 and the Omicron variant. As a benefit paid to individuals, pandemic payments impose no regulatory burden on businesses.

 

Pandemic payments are being jointly funded by the Australian and state and territory governments. Funding of $166.8 million for the continuation of pandemic payments until 30 June 2022 was included in the 2021-22 Mid-Year Economic and Fiscal Outlook under the measure 'COVID-19 Response Package - National COVID-19 Disaster Payment'. Details are set out in the Mid-Year Economic and Fiscal Outlook 2021-22, Appendix A: Policy decisions taken since the 2021-22 Budget at pages 286 to 287. To support the Government's decision regarding the extension of the payment, additional funding of $66 million was provided to the NRRA through the Advance to the Finance Minister mechanism in December 2021.

 

Funding for this item comes from component 6: Pandemic Leave Disaster Payment of Program 1.2: Australian Government Disaster and Emergency Financial Support, which is part of Outcome 1 of the NRRA. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.11, Prime Minister and Cabinet Portfolio at page 261.

 

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

 

Executive power and express incidental power, including the nationhood aspect 

 

The express incidental power in section 51(xxxix) of the Constitution empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested in the Parliament, the executive or the courts by the Constitution. Section 61 of the Constitution supports activities that are peculiarly adapted to the government of a nation and cannot be carried out for the benefit of the nation otherwise than by the Commonwealth.

 

The COVID-19 pandemic is a health emergency that is presently impacting on sectors of the economy, and as a result, there is a continuing need for immediate or short-term responses to those impacts. Pandemic leave disaster payments contribute to national efforts to limit the effects of COVID-19 on the national economy.

 

 

 

 

 

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 (Prime Minister and Cabinet Measures No. 1) Regulations 2022

 

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 (Prime Minister and Cabinet Measures No. 1) Regulations 2022 (the Regulations) amend the FF(SP) Regulations to repeal and substitute table item 434 in Part 4 of Schedule 1AB, which establishes legislative authority for government spending on pandemic leave disaster payments (pandemic payments). The National Recovery and Resilience Agency has policy responsibility for pandemic payments. Individual payments will continue to be administered by Services Australia.

 

The substituted version of table item 434 reflects recent changes to isolation requirements agreed by the National Cabinet. Following these changes, pandemic payments will remain available to eligible individuals unable to earn income because they have tested positive for the coronavirus known as COVID-19, or are a close contact of someone who has tested positive for COVID-19 (consistent with the definition of a close contact agreed by the National Cabinet), or are required to care for someone who has tested positive for COVID-19 or who is a close contact. On 30 December 2021, the National Cabinet agreed that close contacts will be defined as household or household-like contacts of a confirmed case.

 

The COVID-19 pandemic is a health emergency that is presently impacting on sectors of the economy, and as a result, there is a continuing need for immediate or short-term responses to those impacts. Pandemic leave disaster payments contribute to national efforts to limit the effects of COVID-19 on the national economy.

 

 

Human rights implications

 

This disallowable legislative instrument engages the following rights:

*         the right to health in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2; and

*         the right to an adequate standard of living in Article 11 of the ICESCR.

 

Right to health

 

Article 2 of the ICESCR requires the States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means.

 

Article 12 of the ICESCR states, in part:

 

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: [ ... ]

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; [ ... ].

 

Pandemic payments are targeted at those who are unable to work because of isolation requirements or recommendations and who do not have an entitlement to paid sick leave or another means of income support for the period of isolation. This measure promotes public health by ensuring that economic pressure is not a reason for persons to break state or territory public health orders and risk spreading COVID-19 to others.

 

Right to an adequate standard of living

 

Article 11(1) of the ICESCR states:

 

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. [ ... ]

 

Similarly, this measure assists in promoting the right to an adequate standard of living for those persons who are unable to work because of isolation requirements and who do not have an entitlement to paid sick leave or another means of income support for the period of isolation.

 

Conclusion

 

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

 

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance