Details of the Financial Framework (Supplementary Powers) Amendment

(Health Measures No. 2) Regulations 2021

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Health Measures No. 2) Regulations 2021.

 

Section 2 - Commencement

 

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

 

Section 3 - Authority

 

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

 

Section 4 - Schedules

 

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

 

Schedule 1 - Amendments

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - In the appropriate position in Part 3 of Schedule 1AB (table)

 

This item adds a new table item to Part 3 of Schedule 1AB to establish legislative authority for government spending on an activity that will be administered by the Department of Health (the department).

 

New table item 49 establishes legislative authority for the Government to provide one-off grant funding of $1.5 million to Odyssey House NSW to assist with the development of a new facility by the construction of buildings at Eagle Vale, NSW for the expansion of the Parent's and Children's Program to provide treatment and support services for drug and alcohol use.

 

Odyssey House NSW was founded in 1977 by Walter McGrath, following the death of his son from a heroin overdose. Odyssey House NSW is now one of Australia's largest and most successful rehabilitation services which offers a range of support and treatment services.

 

The support and treatment services offered by Odyssey House NSW include:

*         community services, such as alcohol and other drug counselling, mental health services and family and parent support programs in locations across Sydney;

*         residential services, including withdrawal and residential rehabilitation programs, mental health programs, the Parent's and Children's Program, numeracy and literacy education, family/relationship issues, domestic violence and other trauma, parental drug misuse, and physical and mental health problems; and

*         the Magistrates Early Referral Into Treatment program, which is available to eligible defendants who appear at participating Local Courts with a demonstrable drug problem, eligible and suitable for release on bail, and who are motivated to engage in treatment and rehabilitation.

 

Odyssey House currently received Commonwealth funding to deliver alcohol and other drug programs, including the Parent's and Children's Program.

 

This one-off grant funding to Odyssey House NSW will support the development of a new facility at the existing Eagle Vale site, which is one of the few drug and alcohol rehabilitation centres in Australia that allows men and women to undertake drug and alcohol treatment whilst their children (0-12 years of age) stay with them. The new facility will allow Odyssey House NSW to support the increased demand for parents requiring drug and alcohol treatment offered under the Parent's and Children's Program. The Program aims to repair the bond between parents and their children by offering services focused on physical and mental health, education, interpersonal and social skills, and child development.

 

The Parent's and Children's Program site is located at 13a Moonstone Place, Eagle Vale, NSW. The site is approximately 3.2 hectares, situated on high ground adjacent to suburban house and the existing Odyssey House NSW facility. The proposed site plan includes modular construction to house 16 families. The current accommodation is not fit for purpose and has many limitations on the number of families the program can accommodate.

 

The development of the new facility will provide additional accommodation to at least four, and up to eight, families at one time. Currently, the maximum number of families the Parent's and Children's Program can accommodate is 12 single mothers with one child. Due to limitations in the existing floor plan, adding single fathers and couples reduces the number of available rooms.

 

Funding aligns with the priorities of the National Drug Strategy 2017-2026 which is available at www.health.gov.au/resources/collections/national-drug-strategy.

 

The National Drug Strategy provides a national framework which identifies national priorities relating to alcohol, tobacco and other drugs, guides action by governments in partnership with service providers and the community, and outlines a national commitment to harm minimisation through balanced adoption of effective demand, supply and harm reduction strategies.

 

This funding contributes to the demand reduction pillar of harm minimisation by supporting people to recover from dependence through evidence informed treatment. This funding also supports the harm reduction priority by reducing the adverse health, social and economic consequences of the use of drugs and alcohol for the individuals, their families and the wider community.

 

The department will use a closed, non-competitive, one-off process to award the grant in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017. Grant opportunity guidelines will be developed and the grant will be administered through the Community Grants Hub of the Department of Social Services.

 

Odyssey House NSW's proposal will be assessed against the eligibility and assessment criteria in the grant opportunity guidelines, which will outline the objectives and outcomes of the government funding and the deliverables.

 

Following assessment of the proposal on its merit, the delegate of the Secretary of the department will make the final decision to approve funding. The Secretary's delegate will consider whether the proposal represents an efficient, effective, ethical and economical use of Commonwealth resources, and whether any specific requirements need to be imposed as a condition of funding.

 

The decision of the delegate is final in all matters, including:

*         the approval of the grant;

*         the grant funding amount to be awarded; and

*         the terms and conditions of the grant.

 

Funding decisions made in connection with the grant are not considered suitable for independent merits review, as these relate to the provision of one-off funding to certain service providers. The expenditure is one-off, time-limited and non-competitive. The Administrative Review Council has recognised it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.16 to 4.19 of the guide, What decisions should be subject to merit review?).

 

A closed, non-competitive, one-off grant arrangement is considered appropriate as Odyssey House NSW has been assessed to have the capability to deliver the project activities in the project location, existing relationships to support project activities and knowledge of and capability to deliver the project objectives and outcomes. Odyssey House NSW has established administrative arrangements and secured the commitment of funding from the state government for this project which will help the organisation to deliver the project quickly and efficiently. To reconsider this decision under merits review would substantially delay implementation of the program in a market environment where there are no alternative providers with similar capacity.

 

The department has consulted closely with Odyssey House NSW and the Office of the NSW Minister for Health and Medical Research regarding the development and implementation of this proposal. NSW Health has also committed to provide $1 million to support the development of the new facility for the Parent's and Children's Program.

 

Funding of $1.5 million in 2020-21 for this item will come from Program 2.4: Preventive Health and Chronic Disease Support, which is part of Outcome 2. Details are set out in the Portfolio Additional Estimates Statements 2020-21, Health Portfolio at page 32.

 

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

*         the social welfare power (section 51(xxiiiA)); and

*         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 certain social welfare benefits including pharmaceutical benefits, sickness benefits and medical services (but not as to authorise any form of civil conscription).

 

This initiative involves funding to support the construction of a treatment facility for the provision of pharmaceutical benefits, treatment of medically recognised health conditions, including drug or alcohol addiction, or the assessment of a person's medical condition with a view to providing medical treatment.

 

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.

 

International Covenant on Economic, Social and Cultural Rights

 

Australia is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Parties to the ICESCR are required to take steps with a view to achieving progressively the full realisation of the rights recognised in the ICESCR by all appropriate means (Article 2(1)).

 

Article 12(2)(c) of the ICESCR requires the States Parties to take steps necessary for 'the prevention, treatment and control of epidemic, endemic, occupational and other diseases'.

 

This initiative will involve funding to support the construction of a treatment facility to enable the provision of drug and alcohol treatment.

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 (Health Measures No. 2) 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 (Health Measures No. 2) Regulations 2021 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for the Government to provide one-off grant funding of $1.5 million to Odyssey House NSW to assist with the development of a new facility by the construction of buildings at Eagle Vale, NSW for the expansion of the Parent's and Children's Program to provide treatment and support services for drug and alcohol use.

 

Odyssey House NSW was founded in 1977 and offers a range of support and treatment services for those needing help for their drug and alcohol use. The one-off grant funding will support the development of a new facility at Eagle Vale, NSW, which is one of the few drug and alcohol rehabilitation centres in Australia that allows men and women to undertake drug and alcohol treatment whilst their children (0-12 years) stay with them. The new facility will allow for the expansion of the Parent's and Children's Program, which aims to repair the bond between parents and their children by offering services focused on physical and mental health, education, interpersonal and social skills, and child development.

 

The Department of Health has responsibility for the grant.

 

Human rights implications

 

This disallowable legislative instrument engages the following rights:

*         the right of the child to the enjoyment of the highest attainable standard of health - Article 24 of the Convention of the Rights of the Child (CRC), read with Article 4; and

*         the right of everyone to the enjoyment of the highest attainable standard of physical and mental health - Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2.

 

Article 4 of the CRC imposes a general obligation on States Parties to implement rights set out in the CRC.

 

Article 24 of the CRC specifies that States Parties should 'recognize the right of the child to the enjoyment of the highest attainable standard of health ... '

 

Pursuant to Article 2(1) of the ICESCR, each State Party to the ICESCR is required to 'take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights' recognised in the ICESCR by all appropriate means.

 

Article 12(1) of the ICESCR recognises the 'right of everyone to the enjoyment of the highest attainable standard of physical and mental health'. Article 12(2)(a) requires the States Parties to take steps to realise the right to health including those necessary for 'the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child'.

 

Funding will be provided to support Odyssey House NSW to develop a new facility to support families that have been adversely affected by alcohol and other drugs. The funding will improve access and availability for families and single parents requiring treatment and support for their drug and alcohol use by enabling additional accommodation at the existing site.

 

By providing additional support for parents and families, this will have positive impacts on not just the parents, but also their children as clients are equipped with the skills to maintain the appropriate health of the child and to achieve the foundations of raising a stable and safe family life.

 

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