FINANCIAL FRAMEWORK (SUPPLEMENTARY POWERS) AMENDMENT (SOCIAL SERVICES MEASURES NO. 2) REGULATIONS 2020 (F2020L00792) EXPLANATORY STATEMENT

Details of the Financial Framework (Supplementary Powers) Amendment
(Social Services Measures No. 2) Regulations 2020

Section 1 - Name

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 2) Regulations 2020.

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

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 initiative that will be administered by the Department of Social Services (the department).

New table item 43 establishes legislative authority for the Government to provide a grant of $400,000 in 2020-21 to Anti-Slavery Australia (ASA) to support its Complex Violence Intervention (Forced Marriage) Project (the Project).

Funding for this initiative will be provided under the Government's $150 million Coronavirus Domestic Violence Support Package, part of a broader $1.1 billion package of measures to support more mental health, Medicare and domestic violence services during the coronavirus (COVID-19) pandemic. This funding package was announced on 29 March 2020. Details of the announcement are available at https://www.pm.gov.au/media/11-billion-support-more-mental-health-medicare-and-domestic-violence-services-0.

The Project will address the impact of isolation created by the COVID-19 pandemic response on young people at risk of complex forms of violence, including forced marriage, by addressing the gendered drivers of forced marriage, servitude and human trafficking. Specifically, the Project will address the vulnerability of young people to forced marriage through the provision of:

* a community engagement strategy targeting at-risk young people and communities;

* an online forum for peer-to-peer discussions around preventing forced marriage;

* a national framework and program for champions and survivors to shape discussions and change narratives around forced marriage; and

* online and face-to-face training of key community workers to provide information and education on rights around bodily autonomy and choice to marry/not marry, modern slavery and trauma support.

ASA is based at the Faculty of Law of the University of Technology Sydney. It is the only specialist legal practice, research and policy centre focused on modern slavery in Australia.

ASA has been selected to undertake this work on the basis of its extensive expertise and experience in the prevention of human trafficking and forced marriage, its existing education function and strong relationships with victims of modern slavery, and community, government and industry partners which places it in a unique position to undertake the project activities.

ASA provides:

* free legal advice and migration services to people who are experiencing, or who are at risk of, modern slavery in Australia;

* representation of victims of modern slavery in Australia;

* research and advocacy covering modern slavery, human trafficking, forced marriage, dowry abuse, online sexual exploitation of children, asylum seeker exploitation, survivors perspectives and modern slavery reporting requirements;

* training and advisory services to frontline service providers, business, law enforcement, community and government, the health care sector, not-for-profit organisations, students and educators.

ASA also has a well-recognised existing online platform My Blue Sky, which is dedicated to providing information, referrals and legal advice with respect to forced marriage prevention. It has undertaken a number of collaborative prevention projects with the Australian Federal Police and the Department of Home Affairs. The Project will complement work undertaken by those agencies.

As part of the Project, ASA will specifically focus on:

* educating key community leaders to recognise and understand the difference between consent and coercion in the home with a focus on forced marriage, servitude and trafficking;

* supporting and promoting champions in communities with a focus on young people to challenge gender stereotypes and encourage non-violent attitudes towards women, children and young people;

* strengthening the capacity of faith leaders who do not support or promote forced marriage to lead and influence changes in community culture;

* exploring practices, behaviours and choices that reinforce gendered structures and norms;

* promoting women and girls bodily autonomy, independence and decision making in private life and relationships; and

* challenging rigid stereotypes and roles of women and girls in personal relationships.

The Project is complementary to the Fourth Action Plan (2019-2022) of the National Plan to Reduce Violence against Women and their Children 2010-2022 which specifically prioritises 'better equipping the service system and communities to address complex forms of violence and harmful cultural practices, including early and forced marriage, female genital mutilation/cutting, dowry abuse and human trafficking' (Priority 12).

Grant funding to support the Project also addresses the following actions of the Fourth Action Plan:

* Action 10 - Implement community-led and tailored initiatives to address unique experiences and needs of communities;

* Action 13 - Prevent sexual violence before it happens through national and targeted initiatives that promote information consent, bodily autonomy and respectful relationships;

* Action 14 - Deliver client-centred, trauma-informed specialised and consistent support to victims and survivors of sexual violence; and

* Action 15 - Strengthen the capacity of all sectors to address sexual violence.

The grant for the Project will be administered by the Community Grants Hub in accordance with the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). The selection process will utilise the standard grant model of the Community Grants Hub for an ad-hoc, closed non-competitive grant. Information about the grant will be published on GrantConnect at www.grants.gov.au.

The Minister for Families and Social Services or the Minister's delegate will be the decision maker for funding under this grant process.

ASA is the only organisation that will be invited to submit an application for this grant funding because of the skills, knowledge and expertise their staff have in the sector. The department will assess the application and, as part of the evaluation report, make a recommendation to the decision maker. The applicant will be notified in writing of the outcome of their application.

Funding decision made in connection with the Project will not be subject to independent review. Funds will be allocated through an ad-hoc, closed non-competitive grant process based on ASA's specialised experience, record of high performance and expertise in addressing forced marriage, and it would be impractical and inefficient to select new organisations to deliver the activity. The re-making of a decision under merits review would delay administration of the grant and affect the timely delivery of the activity, which falls within the timeframes of the COVID-19 response.

There is only a finite amount of resources available and an allocation that has been made to another party would be affected by a review overturning the original decision. Any delay to the administration of the funding would undermine the grant process and negatively impact the security of future funding for the successful applicant. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see items 4.11 to 4.19 of the document What decisions should be subject to merit review?).

Applicants have the option of recourse via the department's complaints management system (https://www.dss.gov.au/contact/feedback-compliments-complaints-and-enquiries/complaints-page). Applicants also have recourse to the Commonwealth Ombudsman if they are not satisfied with the response (http://www.ombudsman.gov.au). The guaranteed right of review under section 75(v) of the Constitution, and review under section 39B of the Judiciary Act 1903, would still be available.

Reliance on the Financial Framework (Supplementary Powers) Regulations 1997 for legislative authority for a grant to ASA to support the delivery of the Project is considered appropriate as the grant is of ad-hoc nature, involves relatively minor expenditure, and has a limited purpose and expenditure criteria which can be clearly described.

ASA will be required to comply with the Privacy Act 1988 and must ensure the protection of individuals' personal information. The collection, use, storage and disclosure of information in connection with any activity associated with this Project must not breach the Australian Privacy Principles.

The department has consulted with ASA as they are the experts in the development of responses to forced marriage and human trafficking. ASA expressed concerns that the isolation created by the response to the COVID-19 pandemic has increased pressure on young people at risk of forced marriage at this time and reduced their ability to access support.

An extensive consultation process was not undertaken as the review of the Support for Trafficked People Program, undertaken by independent researchers in 2019, identified the need for greater community awareness and education and for upskilling of first responders and service providers in the identification and response to forced marriage. The Program provides assistance to all victims of human trafficking, slavery and slavery-like practices, including forced marriage and forced labour, who meet the eligibility criteria. The Program is administered by the department.

Funding for the $150 million Coronavirus Domestic Violence Support Package will be included in the 2020-21 Budget and the Portfolio Budget Statements 2020-21 for the Social Services Portfolio. Funding of $400,000 in 2020-21 for this initiative will come from Component 5 (National Initiatives) of Program 2.1: Families and Communities, which forms part of Outcome 2.

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 communications power (section 51(v)); and

* the external affairs power (section 51(xxix)).

Communications power

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

The Project includes the ongoing administration of an online forum involving the delivery of community support and engagement with individuals on issues relevant to forced marriage.

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 obligations under treaties to which it is a party.

Australia is party to treaties, which give rise to obligations in relation to forced marriage, in particular:

* Articles 2, 3 and 16 of the Convention on the Elimination of All Forms of Discrimination against Women [1983] ATS 9 (the CEDAW);

* Articles 4, 32, 34, 35 and 36 of the Convention on the Rights of the Child (the CRC) [1991] ATS 4;

* Articles 2 and 23 of the International Covenant on Civil and Political Rights [1980] ATS 23 (the ICCPR); and

* Article 1 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery [1958] ATS 3 (the Supplementary Convention).

CEDAW

Articles 2, 3 and 16(1)(b) of the CEDAW require States Parties to take appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations - in particular, to ensure on a basis of equality of men and women, the same right to freely choose a spouse and to enter into marriage only with their full and free consent.

Funding of the Project would help to ensure that women enjoy the same right as men to freely choose a spouse and to enter into marriage only with their full and free consent.

CRC

Various Articles of the CRC may offer supplementary support to expenditure for the Project. Although the CRC does not specifically refer to forced marriage, Article 4 requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the CRC.

Articles 32, 34, 35 and 36 of the CRC recognise the right of the child to protection from sexual and other exploitation prejudicial to the child's welfare, as well as requiring States Parties to take measures to prevent the abduction, sale or traffic of children for any purpose whatsoever.

The proposed expenditure seeks to protect children (i.e. those aged under 18 years) against risks of exploitation associated with forced marriage.

ICCPR

Article 23(3) of the ICCPR provides that 'no marriage shall be entered into without the free and full consent of the intending spouses'. Under Article 2(2), States Parties are required to 'adopt such laws or other measures as may be necessary to give effect' to the rights recognised by the ICCPR.

The proposed expenditure for the Project is directed to ensuring that at-risk groups enter marriage exercising free and informed consent.

Supplementary Convention

Article 1(c) of the Supplementary Convention requires States Parties to take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the abolition or abandonment of any institution or practice whereby:

(i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or

(ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or

(iii) A woman on the death of her husband is liable to be inherited by another person ...

The Project aims to deliver activities to address the vulnerability of young people to forced marriage due to the isolation created by the COVID-19 pandemic response, and is directed at bringing about the abandonment of forced marriage practices.

Item 2 - 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 initiative that will be administered by the department.

New table item 423 establishes legislative authority for government spending on the establishment and ongoing costs of the National Centre for the Prevention of Child Sexual Abuse (the National Centre).

The National Centre will be established in response to Recommendation 9.9 of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission), which recommended that the 'Australian Government, in conjunction with state and territory governments, should establish and fund a national centre to raise awareness and understanding of the impacts of child sexual abuse, support help seeking and guide best practice advocacy and support and therapeutic treatment'. The Royal Commission recommended that an initial investment of $45 million would provide adequate resources for the National Centre to be established and to successfully achieve its initial priorities.

The Prime Minister committed to establishing the National Centre in his National Apology to the victims and survivors of institutional child sexual abuse on 22 October 2018. The Australian Government has committed $22.5 million in the 2019-20 Budget towards the establishment and ongoing costs of the National Centre, and has requested state and territory governments match this commitment and work in partnership with the Australian Government.

A multi-stage procurement process, comprising an initial open approach to market with a Request for Expression of Interest (REOI) followed by a limited Request for Tender (RFT) for shortlisted applicants, will be undertaken to select a suitable supplier to establish the National Centre during the 2020-21 financial year.

The National Centre aims to carry out the functions set out in Recommendation 9.9 of the Final Report of the Royal Commission, and to assist in responding to and preventing child sexual abuse.

As such, the National Centre will provide national leadership to raise community awareness and reduce stigma about child sexual abuse; increase practitioners' knowledge and competence in responding to child and adult victims and survivors; and lead the development of better service models and interventions through coordinating a national research agenda and conducting high-quality program evaluation. This will support the needs of victims and survivors and build sector capability through evidence based, trauma informed and responsive services and best practice models for working with victims and survivors, as well as perpetrators of child sexual abuse, including children with inappropriate or harmful sexual behaviours and child perpetrators.

The form of the National Centre will be subject to outcomes from the procurement process. Tenderers will be able to propose a governance model underpinned by recommended principles-based governance standards that must ensure the National Centre is accountable, transparent and efficient in its dealings. The successful tenderer will be required to implement the National Centre and deliver on its agreed scope and functions.

It is proposed that the National Centre's core functions will be to:

* raise community awareness about the nature and impacts of child sexual abuse;

* promote destigmatising messages to help victims and survivors overcome the shame of abuse and seek help;

* increase practitioner, parent, organisational and community knowledge and competence in preventing and responding to child sexual abuse;

* inform the development of better primary prevention, secondary support and tertiary intervention service models through high quality research and evaluation;

* build the capability of organisations to provide culturally safe and trauma informed services to victims and survivors of child sexual abuse; and

* build the capability of organisations to treat perpetrators, including children with inappropriate or harmful sexual behaviours and child perpetrators.

The target cohort is child and adult victims and survivors of child sexual abuse, perpetrators of child sexual abuse, including children with inappropriate or harmful sexual behaviours and child perpetrators, organisations and practitioners involved in direct and indirect service delivery (such as educators and health practitioners), parents/caregivers and community leaders.

At this time, it is proposed that the National Centre is to be established in February 2021. The National Centre will be delivered in the 2020-21 financial year. The successful supplier will be expected to engage with the department through contractual and reporting arrangements. In addition, the successful supplier will be expected to work within national frameworks such as the National Strategy to Prevent Child Sexual Abuse, to be implemented by the National Office for Child Safety in the Department of the Prime Minister and Cabinet, and engage with the Australian Government and state and territory departments through its governance structure, such as advisory committees.

Decisions about funding for the National Centre will be through a multi-stage procurement process. The tender will be listed on AusTender and stakeholders will be advised via email and on the departmental website at https://www.dss.gov.au/families-and-children-programs-services-children/national-centre-for-the-prevention-of-child-sexual-abuse.

The decision maker on final selection outcomes for this procurement will be either the Minister for Families and Social Services, or a delegate of the Secretary of the department (Deputy Secretary of the Families and Communities Group). The successful supplier will be informed of the outcome of the tender directly, and following execution of the contract unsuccessful tenderers will be notified via email, with an opportunity provided for a formal debrief of their tender. Announcement of the successful tenderer will be made via AusTender, the departmental website and ministerial media release.

The successful supplier will be responsible for establishing and leading the work of the National Centre to:

* provide high profile national leadership to direct and sustain the momentum and focus driven by the Royal Commission inquiry;

* undertake national strategic awareness raising and stigma reducing activities to better support victims and survivors and foster help seeking behaviours;

* provide national leadership in knowledge translation and build the capacity and capability of the workforce, families and communities by promoting best practice in education and training and by driving nationally consistent practice guidelines and standards; and

* promote, drive and disseminate strategically important research and evaluation to address gaps in knowledge and drive continuous improvement.

Independent review of the funding decision is not appropriate as the final decision is subject to a comprehensive procurement selection process in accordance with the Commonwealth Procurement Rules (CPRs) under the Public Governance, Performance and Accountability Act 2013.

Commonwealth funding for the National Centre is a finite resource that will be allocated to one successful applicant across five financial years ($4.4 million to be provided annually over five years from 2020-21, with an additional $400,000 provided in year two for evaluation activities). There is only a finite amount of resources available and an allocation that has been made to another party would be affected by a review overturning the original decision. Any delay to the administration of the funding would undermine the procurement process and negatively impact the security of future funding for the successful applicant. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see items 4.11 to 4.19 of the document What decisions should be subject to merit review?).

On 15 December 2017, the Royal Commission presented a final report to the Governor-General, detailing the culmination of a five-year inquiry into institutional responses to child sexual abuse and related matters. The Royal Commission focussed on systemic issues informed by an understanding of individual cases, and made findings and recommendations to better protect children against sexual abuse and alleviate the impact of abuse on victims and survivors as well as children when it occurs. The Royal Commission conducted public hearings, private sessions and a policy and research program.

The National Centre will be established in response to Recommendation 9.9 of the Royal Commission. In designing the National Centre, the department undertook an extensive national consultation program, which ensured that the design was informed by the views of victims and survivors and those who work with children and families.

The department held 19 targeted consultation workshops across all jurisdictions between October and December 2019. These consultations engaged with a broad range of stakeholders including victims and survivors, child safety advocates, researchers, national and local service providers, peak bodies and government.

In February 2020, an online survey was released through the DSS Engage website to provide opportunity for all Australians to have their say on the scope, functions and priorities for the National Centre. Around 427 survey responses were received.

Workshop participants and survey respondents shared a belief in the need for the National Centre. While participants emphasised that there is a lot of good work being done, there was strong support for the National Centre to maintain and expand on the impetus for change and to be delivered with the same level of care and sensitivity as the Royal Commission.

Funding of $25.5 million was included in the 2019-20 Budget under the measure 'Establishing the National Centre for the Prevention of Child Sexual Abuse' for a period of six years commencing in 2019-20. This includes funding of $22.5 million over five years from 2020-21 for the establishment of the National Centre. Details are set out in Budget 2019-20, Budget Measures, Budget Paper No. 2 2019-20 at page 159.

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 2019-20, Budget Related Paper No. 1.15, Social Services Portfolio at pages 24 and 61.

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 external affairs power (section 51(xxix)); and

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

External affairs power

Australia has obligations regarding the rights of the child under the Convention on the Rights of the Child [1991] ATS 4. In particular:

* Article 19 requires States Parties to 'take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child'.

* Article 39 requires States Parties to 'take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child'.

The measure aims to provide funding for the establishment and ongoing costs of a national centre to carry out the functions set out in Recommendation 9.9 of the Final Report of the Royal Commission, and to assist in responding to and preventing child sexual abuse.

Express incidental power and the executive 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 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 Final Report of the Royal Commission included the following recommendation to establish a national centre:

Our analysis of submissions, the policy and research work we have conducted and the consultations we undertook support the conclusion that a dedicated agency is needed to provide national leadership and to drive practice and policy improvement for victims and survivors of child sexual abuse (vol. 9, p. 203).

The establishment of the National Centre is a co-operative endeavour with the states and territories that will build the capability of organisations across the country. This will support the needs of victims and survivors and build sector capability for working with perpetrators, children with inappropriate or harmful sexual behaviours and child perpetrators.

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. 2) Regulations 2020

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 FF(SP) Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The FF(SP) Act applies to 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. 2) Regulations 2020 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on two initiatives that will be administered by the Department of Social Services (the department).

This instrument adds:

* table item 43 to Part 3 of Schedule 1AB for a grant to Anti-Slavery Australia (part of the University of Technology Sydney) to support its Complex Violence Intervention (Forced Marriage) Project, which aims to address the impact of isolation created by the coronavirus (COVID-19) pandemic response on young people at increased risk of forced marriage through the development of an online forum, a co-designed community engagement strategy, a national champions program, and training for community workers ($400,000 in 2020-21); and

* table item 423 to Part 4 of Schedule 1AB for funding towards the establishment and ongoing costs of the National Centre for the Prevention of Child Sexual Abuse which will provide national leadership to raise community awareness and reduce stigma about child sexual abuse; increase practitioners' knowledge and competence in responding to child and adult victims and survivors; and lead development of better service models and interventions through research and program evaluation ($22.5 million over five years from 2020-21).

Table item 43 - Grant to University of Technology Sydney for Anti-Slavery Australia - Complex Violence Intervention (Forced Marriage) Project

Table item 43 establishes legislative authority for the Government to provide a grant of $400,000 in 2020-21 to Anti-Slavery Australia (ASA) to support its Complex Violence Intervention (Forced Marriage) Project (the Project). ASA is based at the Faculty of Law of the University of Technology Sydney.

Funding for this initiative will be provided under the Government's $150 million Coronavirus Domestic Violence Support Package which was announced on 29 March 2020.

This grant will support activities to address the vulnerability of at-risk young people to complex forms of violence, including forced marriage, during and beyond the period of social isolation created by the COVID-19 pandemic response. Activities include the provision of:

* a community engagement strategy targeting at-risk young people and communities;

* an online forum for peer-to-peer discussions around preventing complex violence and forced marriage;

* a national framework and program for champions and survivors to shape discussions and change narratives around forced marriage; and

* training of key community workers to provide information and education on rights around bodily autonomy and choice to marry/not marry, modern slavery and trauma support.

The grant will better equip the service system and communities to address complex forms of violence and harmful cultural practices, including early and forced marriage, female genital mutilation/cutting, dowry abuse and human trafficking (Priority 12 of the Fourth Action Plan of the National Plan to Reduce Violence against Women and their Children 2010-2022).

Human rights implications

Table item 43 engages the following rights:

* the commitment to abolish and abandon debt bondage, serfdom, servile marriage and child servitude - Article 1 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery [1958] ATS 3 (the Supplementary Convention);

* the right to protection from harmful work, sexual abuse, prevention of sale and trafficking, and protection from exploitation - Articles 4, 32, 34, 35 and 36 of the Convention on the Rights of the Child [1991] ATS 4 (the CRC);

* the right to marry - Articles 2(2) and 23(3) of the International Covenant on Civil and Political Rights [1980] ATS 23 (the ICCPR); and

* the right to choose a spouse and enter marriage with consent - Articles 2, 3 and 16(1)(b) of the Convention on the Elimination of All Forms of Discrimination against Women [1983] ATS 9 (the CEDAW).

Supplementary Convention

Article 1 of the Supplementary Convention requires States Parties to take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the abolition or abandonment of any institution or practice whereby:

(i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or

(ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or

(iii) A woman on the death of her husband is liable to be inherited by another person ...

CRC

Article 4 provides:

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.

Article 32 provides:

1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.

2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:

(a) Provide for a minimum age or minimum ages for admissions to employment;

(b) Provide for appropriate regulation of the hours and conditions of employment;

Article 34 provides:

State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, State Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practises;

Article 35 provides:

States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.

Article 36 provides:

States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.

ICCPR

Article 2(2) provides:

Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

Article 23(3) provides:

No marriage shall be entered into without the free and full consent of the intending spouses.

CEDAW

Article 2 provides:

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women

Article 3 provides:

States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, 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 16(1)(b) provides:

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

...

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; ...

Conclusion

Table item 43 is compatible with human rights because it will promote the protection of human rights of young people particularly young women and girls.

Table item 423 - National Centre for the Prevention of Child Sexual Abuse

Table item 423 establishes legislative authority for government spending on the establishment and ongoing costs of the National Centre for the Prevention of Child Sexual Abuse (the National Centre).

The National Centre will give effect to Recommendation 9.9 of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission), which recommended that the 'Australian Government, in conjunction with state and territory governments, should establish and fund a national centre to raise awareness and understanding of the impacts of child sexual abuse, support help seeking and guide best practice advocacy and support and therapeutic treatment'.

The Prime Minister committed to establishing the National Centre in his National Apology to the victims and survivors of institutional child sexual abuse on 22 October 2018. The Government has committed $22.5 million in the 2019-20 Budget towards the establishment and ongoing costs of the National Centre, and has requested state and territory governments match this commitment and work in partnership with the Australian Government.

A multi-stage procurement process will be undertaken to select a suitable supplier to establish the National Centre during the 2020-21 financial year. The form of the National Centre will be subject to outcomes from the procurement process.

It is proposed that the National Centre's core functions will be to:

* raise community awareness about the nature and impacts of child sexual abuse;

* promote destigmatising messages to help victims and survivors overcome the shame of abuse and seek help;

* increase practitioner, parent, organisational and community knowledge and competence in preventing and responding to child sexual abuse;

* inform the development of better primary prevention, secondary support and tertiary intervention service models through high quality research and evaluation;

* build the capability of organisations to provide culturally safe and trauma informed services to victims and survivors of child sexual abuse; and

* build the capability of organisations to treat perpetrators, including children with inappropriate or harmful sexual behaviours and child perpetrators.

Human rights implications

Table item 423 engages the following rights of the Convention on the Rights of the Child [1991] ATS 4 (CRC):

* the right to protection from violence - Article 19 of the CRC; and

* the right to recovery and regeneration - Article 39 of the CRC.

Article 19 provides:

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Article 39 provides:

States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment, which fosters the health, self-respect and dignity of the child.

Conclusion

Table item 423 is compatible with human rights because it promotes the protection of human rights and does not limit human rights.

Senator the Hon Mathias Cormann

Minister for Finance

Commonwealth Numbered Regulations - Explanatory Statements