Details of the Financial Framework (Supplementary Powers) Amendment

(Prime Minister and Cabinet Measures No. 7) Regulations 2021

 

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. 7) Regulations 2021.

 

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.

 

Section 4 - Schedules

 

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

 

Schedule 1 - Amendments

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - Part 4 of Schedule 1AB (table item 492, column headed "Objective(s)", subparagraph (g)(i))

 

Table item 492 in Part 4 of Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997 establishes legislative authority for government spending on the COVID-19 Disaster Payment (the payment). The National Recovery and Resilience Agency (NRRA) has policy responsibility for the payment. Individual payments are administered by Services Australia.

 

Item 1 repeals subparagraph (g)(i) from the first objective of table item 492 in column headed "Objective(s)". This subparagraph referred to receiving Commonwealth income support payments or payments of a similar nature as a restriction on the payment to certain persons residing or employed in a COVID-19 hotspot unable to earn usual income. The amendment will enable the payment to be made to recipients of Commonwealth income support payments or payments of a similar nature in this cohort of eligible persons.

 

The first objective of table item 492 refers to eligible persons who are, or were, unable to earn their usual income as a result of a state or territory public health order restricting the movement of persons for a period in a location in Australia determined by the Commonwealth Chief Medical Officer to be a COVID-19 hotspot for the purposes of Commonwealth support.

 

Item 2 - Part 4 of Schedule 1AB (table item 492, column headed "Objective(s)", subparagraph (i)(i))

 

Item 2 repeals subparagraph (i)(i) from the second objective of table item 492 in column headed "Objective(s)". This subparagraph referred to receiving Commonwealth income support payments or payments of a similar nature as a restriction on the payment to certain persons previously in a COVID-19 hotspot unable to earn usual income. The amendment will enable the payment to be made to recipients of Commonwealth income support payments or payments of a similar nature in this cohort of eligible persons.

 

The second objective of table item 492 refers to eligible persons who are, or were, unable to earn their usual income as a result of being present in a location in Australia at a time that it was subject to a state or territory public health order (the second public health order) restricting the movement of persons for a period because they were previously present in a Commonwealth hotspot area.

 

Item 3 - Part 4 of Schedule 1AB (table item 492, column headed "Objective(s)", subparagraph (h)(i))

 

Item 3 repeals subparagraph (h)(i) from the third objective of table item 492 in column headed "Objective(s)". This subparagraph referred to receiving Commonwealth income support payments or payments of a similar nature as a restriction on the payment to certain persons residing or employed in a state or territory but outside COVID-19 hotspot unable to earn usual income. The amendment will enable the payment to be made to recipients of Commonwealth income support payments or payments of a similar nature in this cohort of eligible persons.

 

The third objective of table item 492 refers to eligible persons in a state or territory, which has agreed to reimburse the Commonwealth for the costs of financial assistance, who are or were unable to earn their usual income as a direct or indirect result of the restrictions imposed by a state or territory public health order. This may cover the circumstances where persons are prevented from working because of the restrictions imposed by a state or territory public health order, or where persons are not prevented from working but experience a downturn in trade and/or a reduction in working hours because of the effect of a state or territory public health order on the activities of other persons.

 

The above amendments to table item 492 reflect changes to the payment announced by the Australian Government on 28 July 2021. These changes will result in increased financial support for persons unable to earn their usual income as a result of movement restrictions imposed by a state or territory public health order, which affects the ability of these persons to work in their usual employment either directly or indirectly. While New South Wales will be the first jurisdiction to receive increased support due to the extended lockdown, the payment will continue to support workers in every state and territory who lose hours due to a state or territory lockdown or public health order. Media statement is available at https://www.pm.gov.au/media/covid-19-disaster-support-payment-boosted.

 

Eligible workers will receive the payment at an increased rate of $750 per week if they lose 20 or more working hours while those that lose between eight and less than 20 working hours, or a full day of work, will receive the payment at an increased rate of $450 per week. The new rates will apply to payments processed the week commencing 2 August 2021. Changes in payment rates do not require amendments to table item 492.

 

The amendments to table item 492 will also enable the payment to be extended to persons who receive Commonwealth income support payments or payments of a similar nature. These persons will receive a weekly payment of $200, in addition to their existing income support payment, if they can demonstrate that that have lost eight hours or more of work, or at least one full day, and meet other eligibility requirements for the payment. The payment will be made as long as the relevant lockdown and Commonwealth hotspot determination remain in place.

 

Precise eligibility criteria for the payment, new payment rates and the process for making claims will be published on the Services Australia website (www.servicesaustralia.gov.au). Eligibility criteria will also be updated in the COVID-19 Disaster Payment Guidelines, which will be made available on the GrantConnect website (www.grants.gov.au).

 

The payment will continue to be administered by Services Australia as a demand driven (eligibility based) grant and paid directly to eligible persons. Claimants will be required to complete and submit a claim via their myGov account. Claims will only be accepted by telephone in limited circumstances. 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. If the assessment process identifies unintentional errors in an application, the claimant may be contacted to correct or explain the information. Where requested, a claimant may also need to provide evidence of meeting the eligibility criteria for the payment. There will be no written grant agreement for the payment, or associated eligible grant activities. Proof of expenditure of the grant will not be required.

 

Grants will be administered in accordance with the Commonwealth Grants Rules and Guidelines 2017 and the Public Governance, Performance and Accountability Act 2013. Decisions about Commonwealth expenditure in connection with the payment will be made by a Services Australia delegate of the Coordinator-General of the NRRA. The aggregated information on the number of claims granted and the total expenditure will be published on GrantConnect. Individual claimants will not be identified.

 

The COVID-19 Disaster Payment (Funding Arrangements) Act 2021 also creates an obligation on the Coordinator-General of the NRRA to include in the NRRA's annual report for the reporting period commencing on 1 July 2021, information that relates to payments made in that period. This information may include:

*         the total amount of payments for the reporting period;

*         the number of payments granted, and the number of applications that were not granted;

*         if payments are required for multiple events in the reporting period - the amount paid and number of claims for each event; and

*         qualitative information to assist with the interpretation of the above mentioned quantitative information.

 

Independent merits review is not considered suitable for decisions made in connection with the payment, as such decisions are automatic or mandatory in nature. The eligibility criteria are simple factual matters. Where the applicant is eligible, the decision involves no discretion.

 

Further, the payment will be administered in a beneficial way that promotes compliance with health objectives and ensures financial support is available. Declaration is the primary method of a person 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 paragraphs 3.8 to 3.11 of the guide, What decisions should be subject to merit review?).

 

Decisions to reject a person's claim for the payment will be subject to review processes within Services Australia at a claimant's request. If a person does not understand the reason(s) for a decision made by Services Australia, they can ask for an explanation of the decision. This explanation will be provided by a Subject Matter Expert (SME). The SME will investigate the decision, correct any identified errors, undertake any re-assessment and contact the customer to explain the decision. All customer consultations will be managed by Services Australia, which 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.

 

The payment will be subject to the oversight by the Commonwealth Ombudsman. 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.

 

Administrative accountability for the payment will be achieved by ensuring that:

*         the process of allocating funds is fair;

*         the criteria for the payment are made clear; and

*         decisions are made objectively.

 

The NRRA has undertaken consultation with Services Australia, the Department of the Prime Minister and Cabinet, the Department of the Treasury, the Department of Finance and the Department of Social Services. Consultation has also occurred between the Australian Government and the New South Wales Government.

 

The changes to the payment supported by amendments to table item 492 broaden the group of individuals who will be able to apply for the payment. They reflect the Government's continued support to vulnerable Australians facing the economic consequences of extended lockdowns. The new rates of the payment also recognise the significant impact that the new COVID-19 Delta strain is having on communities, businesses and workers. As a benefit paid to individuals, it imposes no regulatory burden on businesses, therefore broader consultation was not required in this instance.

 

From 1 July 2021 until 30 June 2022, the payment will be funded through an unlimited special appropriation established in the COVID-19 Disaster Payment (Funding Arrangements) Act 2021. This period reflects the time-limited nature of Commonwealth income support for the COVID-19 pandemic.

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. 7) Regulations 2021

 

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

 

Overview of the legislative instrument

 

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

 

The Financial Framework (Supplementary Powers) Amendment (Prime Minister and Cabinet Measures No. 7) Regulations 2021 (the Regulations) amend table item 492 in Part 4 of Schedule 1AB to the FF(SP) Regulations, which establishes legislative authority for government spending on the COVID-19 Disaster Payment (the payment). The National Recovery and Resilience Agency has policy responsibility for the payment. Individual payments are administered by Services Australia.

 

On 28 July 2021, the Australian Government announced changes to the payment, which will result in increased financial support for persons unable to earn their usual income as a result of movement restrictions imposed by a state or territory public health order, which affects the ability of these persons to work in their usual employment either directly or indirectly. While New South Wales will be the first jurisdiction to receive increased support due to the extended lockdown, the payment will continue to support workers in every state and territory who lose hours due to a state or territory lockdown or public health order.

 

Eligible workers will receive the payment at an increased rate of $750 per week if they lose 20 or more working hours while those that lose between eight and less than 20 working hours, or a full day of work, will receive the payment at an increased rate of $450 per week. The new rates will apply to payments processed the week commencing 2 August 2021. Changes in payment rates do not require amendments to table item 492.

 

The payment will also be extended to persons who receive Commonwealth income support payments or payments of a similar nature. These persons will receive a weekly payment of $200, in addition to their existing income support payment, if they can demonstrate that that have lost eight hours or more of work, or at least one full day, and meet other eligibility requirements for the payment.

 

Currently, table item 492 does not enable the payment to be made to persons who receive Commonwealth income support payments or payments of a similar nature during the period of the restrictions. The amendments to table item 492 remove these payment restrictions for eligible recipients who live or work in locations where the costs of financial assistance are met by the Commonwealth (for example, Commonwealth hotspot areas) and in locations where a state or territory has agreed to reimburse the Commonwealth for the costs of financial assistance. The payment will be made as long as the relevant lockdown and Commonwealth hotspot determination remain in place.

 

Precise eligibility criteria for the payment, new payment rates and the process for making claims will be published on the Services Australia website (www.servicesaustralia.gov.au). Eligibility criteria will also be updated in the COVID-19 Disaster Payment Guidelines, which will be made available on the GrantConnect website (www.grants.gov.au).

 

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; [ ... ].

 

This disallowable legislative instrument broadens the group of individuals who are able to apply for the payment. This 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 disallowable legislative instrument promotes the right to an adequate standard of living as it broadens the group of individuals who are able to apply for the payment. This will ensure a greater number of vulnerable Australians are able to access financial support during a state or territory lockdown.

 

Conclusion

 

This disallowable legislative instrument is compatible with human rights because it promotes the rights to health and to an adequate standard of living.

 

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance