Details of the Financial Framework (Supplementary Powers) Amendment

(Social Services Measures No. 1) Regulations 2021

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Social Services 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 4 of Schedule 1AB (table)

 

This item adds a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on an activity that will be administered by the Department of Social Services (the department).

 

New table item 476 establishes legislative authority for government spending on the National Memorial for Victims and Survivors of Institutional Child Sexual Abuse (the National Memorial). This includes support to hold a ceremony to announce the design and future site of the National Memorial, hold a commemorative ceremony to mark the opening of the National Memorial, assist key stakeholders to attend the ceremonies, and establish and maintain a commemorative and educative website to complement the National Memorial.

 

The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) recommended the establishment of a national memorial in Canberra for victims and survivors of institutional child sexual abuse (recommendation 17.6). This recommendation was accepted by the Government. The Government response to the Royal Commission is available at www.childabuseroyalcommissionresponse.gov.au.

 

On 22 October 2018, the Prime Minister, the Hon Scott Morrison MP, delivered the National Apology to Victims and Survivors of Institutional Child Sexual Abuse. As part of the apology, in his address to the House of Representatives, the Prime Minister committed to establishing a museum as a place of truth and commemoration to raise awareness and understanding of the impacts of child sexual abuse. The National Apology text is available at www.childabuseroyalcommissionresponse.gov.au/national-apology. 

 

The National Memorial will offer a place for reflection and recognise victims, survivors and those affected by institutional child sexual abuse. It will also educate and raise community awareness of the issue. The delivery of the National Memorial will send a message that the Government and Australian people are committed to acknowledging, remembering and working to prevent future institutional child sexual abuse.

 

Funding of $6.7 million will be provided for the establishment of the National Memorial, which will be constructed on National Land in Canberra. The department will fund and work closely with the National Capital Authority (NCA), via a Memorandum of Understanding (MoU), to establish the National Memorial through the following activities:

*         the establishment of the National Memorial Advisory Group (NMAG);

*         the identification and approval of the site for the National Memorial by the Canberra National Memorials Committee (CNMC). On 18 February 2021, the CNMC endorsed the National Memorial site and its commemorative intent;

*         a National Memorial design brief;

*         a design competition;

*         a ground breaking event to announce the selected design and site;

*         the construction of the National Memorial;

*         a National Memorial dedication/unveiling event; and

*         the ongoing maintenance of the National Memorial.

 

The department will also work closely with an appropriate organisation to establish and host a website for the National Memorial as a commemorative and educative element to complement the National Memorial. This will likely be undertaken through a MoU following negotiations with potential website hosts.

 

New table item 476 will support spending on:

*         a ground breaking event to be held at the National Memorial site in Canberra, to announce the future site and selected memorial design;

*         a dedication event, to be held in Canberra, to unveil the National Memorial;

*         travel expenses for key stakeholders to attend the events at the Memorial site; and

*         the establishment of an associated commemorative and educative website.

 

The NMAG has been established to:

*         develop and agree the purpose and themes to be explored in the National Memorial and their relative importance;

*         provide feedback on the site and location options presented for the National Memorial;

*         agree a shortlist of the NMAG representative/s to participate as jury members for the national design competition and agree to the jury composition;

*         oversee key stages of the National Memorial's development to ensure that the concept is consistent with the original intent;

*         provide advice on the online educative component; and

*         provide advice on the form of the dedication/unveiling ceremony and invitees.

 

Membership of the NMAG does not attract remuneration. However, travel costs are reimbursed and meal allowances are provided.

 

The National Memorial design competition is proposed to be an open, single stage competition intended to culminate in the engagement of the selected designer to work with the NCA and the NMAG to design and construct the memorial. The competition design brief will be developed by the NCA and finalised in consultation with the department and the NMAG. The launch of the design competition is expected in the first half of 2021.

 

The competition will be open to all Australian design professionals to lead collaborative teams, which may include members of the general public. An Australian design professional is defined as an Australian citizen registered as an architect or landscape architect, or a professional engineer (a Chartered or Fellow member of Engineers Australia). Remuneration will be provided for the preferred design in recognition of the significant professional efforts to participate. Additional funds may also be provided to other commendable submissions at the discretion of the competition jury. The jury comprises nine members, including the eminent jury chair, the four lived experience members of the NMAG, an eminent Australian architect, an eminent Australian landscape architect, an eminent Australian artist, and a staff member of the NCA.

 

Following design selection, construction of the National Memorial is expected to commence in late 2021, noting that timing may be revised depending on the design chosen. The NCA will lead the contract management for the National Memorial construction. It is expected that a small ground breaking event will be conducted at the site of the National Memorial by the Minister for Families and Social Services, Senator the Hon Anne Ruston, and the Assistant Minister for Regional Development and Territories, the Hon Nola Marino MP, with representatives from the NMAG, jury chair, the selected design team and key stakeholders in attendance (subject to appropriate travel advice).

 

Subject to future travel advice, once the National Memorial is finalised (currently expected in 2022), a one-off dedication event, including an unveiling ceremony, will be held at the site. The department will have responsibility for managing the event, including travel expenses for key stakeholders.

 

The department will manage the MoU with the NCA, provide secretariat support to the NMAG, provide overall project management of the National Memorial package of activities including expenditure, as well as lead all event management, media and communications. Additionally, the department will work with relevant agencies and bodies to develop the educative website to complement the National Memorial.

 

The NCA will have ownership of the National Memorial once complete and will be responsible for management of ongoing maintenance. The NCA will invoice the department for work completed on behalf of the department as per the MoU.

 

It is proposed the National Memorial website would include a virtual tour of the completed

Memorial to ensure national accessibility for a significant number of potential visitors.

This includes an ageing cohort of people with lived experience of institutional child sexual abuse who may be unable to travel. The website will also complement existing digital information resources and raise public awareness of the issues of institutional child sexual abuse for future generations. Given the possible ongoing impact of the COVID-19 pandemic on travel, this would also be prudent should people with lived experience of institutional child sexual abuse not be able to travel to the National Memorial.

 

The development of the educative website will enable the Government to fulfil its commitment to establishing a museum whilst enhancing the visitor experience of the National Memorial.

 

The department is in the process of establishing whether the National Memorial website will be standalone or integrated within an existing website with linkages, such as the National Museum of Australia. This approach would minimise development costs and reduce duplication of existing available public information, in line with the Government's Digital Transformation Agenda.

 

In regard to the dedication event, the department will provide funding through a suite of procurement processes. It is anticipated that the department will procure an events coordinator or management company to facilitate the opening ceremony, by approaching a minimum of three suppliers on the Creative and Digital Communication Panel in accordance with the Commonwealth Procurement Rules. The Creative and Digital Communication Panel was established following an open tender process (refer CN3674210 on AusTender at www.tenders.gov.au). A contract notice will be reported on AusTender. Flights and accommodation for key stakeholders will be booked by the department on behalf of key stakeholders. The department will reimburse other travel expenses such as taxi fares on presentation of appropriate receipts as per departmental travel policies.

 

Decisions on expenditure for the dedication event, including event planning, catering, equipment hire and travel expenses, will be made by the Deputy Secretary, Families and Communities, as a delegate of the Secretary of the department under the Public Governance, Performance and Accountability Act 2013 (PGPA Act).  

 

Decisions on the date, attendees and agenda, including guest speakers, for the opening/dedication ceremony will be made by the Minister for Families and Social Services (the responsible Minister), on advice from the department. Attendees will include the NMAG, the eminent chair and members of the national design competition jury, the design and construction teams, relevant Ministers, persons who have played a key role in raising awareness of institutional child sexual abuse, such as the Royal Commissioners for the Royal Commission, representatives from peak and advocacy survivor organisations, and government officials. Decisions on attendees and the process for selecting individuals will be a matter for the responsible Minister, on advice from the department and the NMAG.

 

The relevant departmental delegate of the Secretary under the PGPA Act will make decisions about the expenditure on the National Memorial website activity. To avoid duplication of information, the department will collaborate with other Australian government entities with relevant websites to create a 'one stop' visitor experience. Where a third party is required for software development, the department will conduct a limited tender. If the capability is not available in-house, a consultant may also be engaged through a limited tender to test website content with end users.

 

Funding decisions made in connection with the National Memorial are not considered suitable for independent merits review, including decisions relating to the website, dedication event and payment of travel expenses for key stakeholders to attend the event.

 

There is a limited budget for the dedication event, including one-off payments for travel and accommodation. Restrictions on the number of attendees will be informed by the size of the gathering space at the National Memorial site, which is unable to be determined until the final design has been selected. To manage this risk, the department will prepare a strict invitee list as detailed above to ensure key stakeholders are able to attend the dedication ceremony. 

 

Independent review is not considered suitable, as the available funding for the dedicated event is a finite resource and payments that are made to a party to reimburse their travel costs would be affected by a review overturning the original decision. 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?).

 

Final numbers of attendees at the dedication event are not known at this stage. It is envisaged numbers will be limited due to expected site restrictions and potential COVID-19 travel and social distancing measures. It is expected there will be significant interest in the event from people with lived experience, noting 8,000 people gave evidence at the Royal Commission.

 

Given the finite resources available for the dedication event, and recognising the significance of the National Memorial for people with lived experience and their families and supports, the department will implement alternate measures to provide equitable access to the event and the Memorial. The department is considering options to record or live stream the event (pending advice from the NMAG), followed by the creation of a virtual tour, voice recording of the commemorative narrative, and photos of the completed Memorial for those who cannot attend the site in person once it is open to the general public.

 

Implementing an invitation only process, supported by digital accessibility options, will use the limited funding efficiently and effectively and minimise the risk of reviews of decisions affecting attendance for invited attendees.

 

The department will ensure that any correspondence received regarding attendance at the dedication ceremony will be reviewed and addressed on an individual basis. As the event will be held in a public location, and if the details are known, survivors may elect to attend at their own expense (subject to site number restrictions), but will not be eligible for the reimbursement of travel costs.

 

Funding decisions made in connection with the website are not considered suitable for independent review, as they relate to the allocation of a finite resource to one party. Once the allocation has been made, that party would be affected if the decision were to be overturned. 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 guide, What decisions should be subject to merit review?).

 

As part of the extensive consultation process conducted from May 2018 to July 2018 to inform the National Apology, victims and survivors provided views on whether there should be a national memorial and what form it should take. Survivors were generally supportive of a memorial. Survivors have a range of views about the form a memorial might take. The National Apology Reference Group found there was general support from victims and survivors for a national outdoor memorial in Canberra.

 

A public survey was undertaken by the department in November 2020 to seek the views, particularly of people with lived experience, on what a memorial should symbolise, and its key features and attributes. There will be a public ministerial announcement of the CNMC endorsed site and intent for the National Memorial.

 

The department has undertaken subsequent consultation with members of the National Apology Reference Group, the NCA and the public. Respondents were supportive of establishing the National Memorial and there was also strong support for an educative website. The decision to progress a national design competition is based on advice from the NCA and their extensive experience in delivering cultural heritage projects of this nature.

 

Consultation is continuing through the NMAG which will provide advice on the shape and commemorative intent of the Memorial, and content for the associated website.

 

Funding of $6.7 million was included in the 2020-21 Budget under the measure 'National Memorial for Victims and Survivors of Institutional Child Sexual Abuse' for a period of four years commencing in 2020-21. Details are set out in Budget 2020-21, Budget Measures, Budget Paper No. 2 2020-21 at page 157.

 

Funding for this item will come from Program 2.1: Families and Communities, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2020-21, Budget Related Paper No. 1.12, Social Services Portfolio at page 27.

 

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 communications power (section 51(v)); and

*         the territories power (section 122).

 

Communications power

 

Section 51(v) of the Constitution authorises the Commonwealth Parliament to legislate with respect to 'postal, telegraphic, telephonic, and other like services'.

 

The establishment of a National Memorial website will complement the National Memorial and serve as an online commemorative and educative resource.

 

Territories power

 

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

 

The National Memorial is to be established and geographically located in Canberra,

Australian Capital 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 (Social Services
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 (Social Services
Measures No. 1) Regulations 2021 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on the National Memorial for Victims and Survivors of Institutional Child Sexual Abuse (the National Memorial). This includes support to hold a ceremony to announce the design and future site of the National Memorial, hold a commemorative ceremony to mark the opening of the National Memorial, assist key stakeholders to attend the ceremonies, and establish and maintain a commemorative and educative website to complement the National Memorial.

 

The Royal Commission into Institutional Responses to Child Sexual Abuse recommended the establishment of a national memorial in Canberra for victims and survivors of institutional child sexual abuse (recommendation 17.6). This recommendation was accepted by the Government.

 

The National Memorial will offer a place for reflection and recognise victims, survivors and those affected by institutional child sexual abuse. It will also educate and raise community awareness of the issue. The delivery of the National Memorial will send a message that the Government and Australian people are committed to acknowledging, remembering and working to prevent future institutional child sexual abuse.

 

The Department of Social Services will have responsibility for the initiative.

 

 

Human rights implications

 

This disallowable legislative instrument engages the following rights:

*         the right of all persons to take part in cultural life - Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2; and

*         the right of the child to be protected from all forms of sexual exploitation and sexual abuse - Article 34 of the Convention on the Rights of the Child (CRC), read with Article 4.

 

Article 2 of the ICESCR requires the States Parties to undertake steps to realise all the rights recognised in the Covenant, which includes 'guaranteeing the rights are exercised without discrimination'.

 

Article 15 of the ICESCR requires the States Parties to 'recognise the right of everyone to take part in cultural life' and take steps to achieve the full realisation of this right, including steps necessary for the conservation, development and the diffusion of culture.

 

Article 4 of the CRC requires States Parties to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in this Convention.

 

Article 34 of the CRC requires States Parties to 'undertake to protect the child from all forms of sexual exploitation and sexual abuse'. Australia is required to take appropriate measures to protect all children from unlawful sexual activity.

 

Funding of the National Memorial ground breaking, opening and dedication event, including an unveiling ceremony, and the associated website will allow for the education on the impacts of institutional child sexual abuse and aid in the prevention of future acts. It will also allow for a place of reflection and remembrance of those who have suffered.

 

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