Details of the Financial Framework (Supplementary Powers) Amendment 

(Attorney-General's Portfolio Measures No. 1) Regulations 2021

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Attorney-General's Portfolio Measures No. 1) 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 Attorney-General's Department (the department).

 

New table item 51 establishes legislative authority for the Government to provide grants to working women's centres, which will support the continued operation of these organisations.

 

This initiative is part of the Government's response to the Australian Human Rights Commission's report Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (the Respect@Work report). The Government has committed to engaging with state and territory governments on funding for working women's centres in response to recommendation 49 of the Respect@Work report, which is that:

 

'Australian governments provide increased and recurrent funding to working women's centres to provide information, advice and assistance to vulnerable workers who experience sexual harassment, taking into account particular needs of workers facing intersectional discrimination. Australian governments should consider establishing or re-establishing working women's centres in jurisdictions where they do not currently exist.'

 

While this consultation occurs, the Government will provide interim funding of $0.2 million in 2021-22 to working women's centres to ensure the continued delivery of support for women on work related matters, including workplace sexual harassment. Funding will be provided via a one-off, ad hoc grant or grants, with recipients yet to be determined.

 

The Government announced its response to the Respect@Work report on 8 April 2021, reaffirming its commitment to creating a new culture of respectful behaviour in Australian workplaces. The media release is available at

https://www.pm.gov.au/media/australian-governments-response-respectatwork-report.

 

Working women's centres are not-for-profit, community organisations which currently operate in Queensland, South Australia and the Northern Territory. The grant funding will be used to provide information and advice for women in the workplace, including in relation to:

*         domestic violence and work;

*         underpayment and general protections;

*         termination;

*         discrimination;

*         parental leave; and

*         sexual harassment and bullying.

 

In addition to providing information and advice, working women's centres also refer clients to other services, and can provide representation in employment commissions (such as the Fair Work Commission and state-based employment tribunals).

 

Funding will be provided through a one-off, ad hoc grant or grants, which will be administered by the department in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017. While grant opportunity guidelines will not be published, grants awarded will be reported on the GrantConnect website (www.grants.gov.au). The Minister for Industrial Relations will be the final decision maker in relation to grant expenditure.

 

Funding decisions made in connection with the grants are not considered suitable for independent merits review, as these relate to the provision of one-off payments to certain service providers. The grants are 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?).

 

The review and audit process undertaken by the Australian National Audit Office provides a mechanism to review Australian Government spending decisions and report any concerns to the Parliament. These requirements and mechanisms help to ensure the proper use of Commonwealth resources and appropriate transparency around decisions relating to making, varying or administering arrangements to spend relevant money.

 

Further, the right to review under section 75(v) of the Constitution and review under section 39B of the Judiciary Act 1903 may be available. Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

 

In developing the Respect@Work report and its recommendations, the Australian Human Rights Commission conducted extensive consultation. This consultation is described on page 14 of the Respect@Work report:

 

The [Australian Human Rights] Commission established a Reference Group to provide advice and guidance for the Inquiry. It included members from across government, business groups, unions, academia and the legal and community sector (see Section 1.4(b) for a list of members).

 

The Commission received 460 submissions from government agencies, business groups, community bodies and, above all, victims. From September 2018 to February 2019, the Commission conducted 60 consultations as part of the Inquiry, with more than 600 individuals participating in all capital cities and some regional locations across Australia. It also held three roundtables and numerous meetings with key stakeholders.

 

The Respect@Work report recognised there is value in providing holistic services to people who have experienced sexual harassment in the workplace. Page 37 of the Respect@Work report noted that:

 

The Commission considers that support, advice and advocacy should be delivered through a holistic approach, providing as seamless an experience as possible for victims and other people affected by workplace sexual harassment.

 

This holistic approach may involve smooth and speedy referrals between services or access to an all-inclusive support, advice and advocacy service. Working women's centres are not-for-profit community organisations that are well placed to provide these services.

 

Funding of $0.2 million in 2021-22 for the initiative was included in the 2021-22 Budget under the measure 'A Roadmap for Respect - Respect@Work response implementation'. Details are set out in Budget 2021-22, Budget Measures, Budget Paper No. 2 2021-22 at page 61.

 

Funding for this item will come from Program 2.2: Workplace Support, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.2, Attorney-General's Portfolio at pages 21 and 35.

 

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 external affairs power (section 51(xxix));

*         the communications power (section 51(v));

*         the express incidental power (section 51(xxxix));

*         the executive power (section 61); and

*         the territories power (section 122).

 

 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 relating to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Labour Organization's Convention concerning Labour Administration: Role, Functions and Organisation (ILO Convention 150).

 

Article 3 of the CEDAW provides that States Parties shall take all appropriate measures, in the economic field among others, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

 

Article 11 of the CEDAW provides that States Parties shall take measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, including the right to work.

 

Article 2(1) of the ICESCR provides that the States Parties shall take steps to realise the rights recognised in the ICESCR.

 

Article 7 of the ICESCR provides that the States Parties shall recognise the right of everyone to the enjoyment of just and favourable conditions of work, including specifically identified rights.

 

Article 6(2)(d) of the ILO Convention 150 requires 'competent bodies within the system of labour administration' to make technical advice available to employers and workers and their respective organisations on their request, taking into account international labour standards.  Article 2 of the ILO Convention 150 allows Members to delegate their labour administration functions to non-government organisations.

 

Working women's centres help to ensure that women who do not have legal representation or who are not a member of a union have access to information, advocacy, support and advice on work related matters such as wages, dismissal, discrimination and workplace sexual harassment. The unique mix of services provided by working women's centres makes them a source of holistic assistance and technical advice to employees (and employers) on work related matters. The provision of grants to working women's centres would help to realise the right of people to the enjoyment of just and favourable conditions of work.

 

Communications power

 

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

 

In addition to in-person services, working women's centres provide support to women on work related matters by telephone or through the internet.

 

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 extends to a range of matters, including the execution and maintenance of the Constitution, and the laws of the Commonwealth.

  

Working women's centres provide services relating to the operation of Commonwealth laws, such as the Fair Work Act 2009, as part of the advice they provide on work related matters such as wages, dismissal, discrimination and workplace sexual harassment.

 

Territories power

 

Section 122 of the Constitution empowers the Parliament to 'make laws for the government of any territory'.

 

There is a working women's centre located and operating within the Northern Territory.

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 (Attorney-General's Portfolio Measures No. 1) 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 (Attorney-General's Portfolio Measures No. 1) Regulations 2021 (the Regulations) amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for the Government to provide grants to working women's centres, which will support the continued operation of these organisations.

 

This initiative is part of the Government's response to the Australian Human Rights Commission's report Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces. The Government has committed to engaging with state and territory governments on funding for working women's centres in response to recommendation 49 of the report. While this consultation occurs, the Government will provide interim funding of $0.2 million in 2021-22 to working women's centres to ensure the continued delivery of support for women on work related matters, including workplace sexual harassment.

 

The Attorney-General's Department has responsibility for the initiative.

 

Human rights implications

 

This disallowable legislative instrument engages the following rights:

*         the right to work and rights in work contained in Articles 6(1) and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2;

*         the right to equality and non-discrimination contained in Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR);

*         the right to protection from exploitation, violence and abuse contained in Article 20(2) of the ICCPR;

*         the right to freedom of thought, conscience and religion or belief contained in Article 18 of the ICCPR;

*         the right of persons with disabilities to work, on an equal basis with others, as contained in Article 27 of the Convention on the Rights of Persons with Disabilities (CRPD), read with Articles 4, 5, 9(1), 19, 26(1) and 33; and

*         the right to maternity leave contained in Article 10(2) of the ICESCR and Article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and

*         the right to an effective remedy contained in Article 2(3) of the ICCPR.

 

Working women's centres are not-for-profit, community organisations that provide free information, advocacy, support and advice to women on work related matters, such as workplace entitlements and rights (including wages and dismissal), discrimination and workplace sexual harassment, particularly for women who lack legal representation or are not union members.

 

Right to work and rights in work

 

Article 6(1) of the ICESCR recognises the right to work and obliges the States Parties to take appropriate steps to safeguard this right. The United Nations Committee on Economic, Social and Cultural Rights has stated that the right to work in Article 6(1) encompasses the need to provide the worker with just and favourable conditions of work.

 

Article 7 of the ICESCR requires that the States Parties recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular, remuneration that provides all workers with fair wages. Article 2 requires the States Parties to take active steps to achieving the full realisation of the rights recognised in the ICESCR.

 

By supporting working women's centres to promote women's participation in, and contributions to, the workforce, through information, advice and support services, this disallowable legislative instrument will help to achieve the realisation of the right to work, as contained in Article 6 of the ICESCR. By supporting working women's centres in promoting women's rights to just and favourable conditions of work, where entitlements and protections are recognised and upheld, this disallowable legislative instrument also promotes rights in work as contained in Article 7 of the ICESCR.

 

Other social, cultural and political rights

 

Article 26 of the ICCPR recognises the right to equality and non-discrimination on, among other grounds, sex. Article 2 of the ICCPR requires that each State Party to the Covenant undertakes to respect and ensure the rights recognised in the Covenant, adopt laws or other measures to give effect to these rights, and ensure an effective remedy to any person whose rights, as recognised in the Covenant, are violated.

 

The right to protection from exploitation, violence and abuse is contained in Article 20(2) of the ICCPR. As a party to the ICCPR and the CEDAW, Australia must take all appropriate legislative, administrative, social, educational and other measures to protect women, as persons whose rights are guaranteed by those treaties, from all forms of exploitation, violence and abuse.

 

Working women's centres provide advice, information and support to women about issues that affect women's participation in the workforce, such as domestic violence, discrimination and sexual harassment in the workplace, and pregnancy and parental status discrimination. By enabling the continued operation of these services, this disallowable legislative instrument will promote the rights to equality and non-discrimination and the right to protection from exploitation, violence and abuse as contained in Articles 20(2) and 26 of the ICCPR. By enabling working women's centres to continue to address issues of discrimination in the workplace, this disallowable legislative instrument will further promote the right to freedom of thought, conscience and religion or belief as contained in Article 18 of the ICCPR, while also promoting the rights of people with disability as contained in the CRPD.

 

By supporting working women's centres to promote awareness of, and access to, maternity leave and associated entitlements, and facilitating avenues for redress, this disallowable legislative instrument will promote the right to maternity leave contained in Article 10(2) of the ICESCR and Article 11(2)(b) of the CEDAW. Finally, by aiding women's awareness of, and access to remedies for workplace issues, the continued operation of working women's centres will promote the right to an effective remedy for victims of human rights violations, as contained in Article 2(3) of the ICCPR.

 

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