Attachment A

 

Details of the Financial Framework (Supplementary Powers) Amendment

(Social Services Measures No. 4) Regulations 2023

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 4) Regulations 2023.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after registration 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 administered by the Department of Social Services (the department).

 

New table item 625 establishes legislative authority for government spending on the National Plan to End Violence against Women and Children 2022-2032.

 

On 17 October 2022, the Australian, state and territory governments released the National Plan to End Violence against Women and Children 2022-2032 (the National Plan) (https://www.dss.gov.au/sites/default/files/documents/11_2022/national_plan_to_end_violence_against_women_and_children_2022-2032.pdf), the cornerstone of the Government's strategy to address family, domestic and sexual violence. The National Plan sets the national policy agenda for the next ten years guiding the work of Commonwealth, state and territory governments, family safety experts and front-line services. Importantly, it commits to ongoing engagement with victim-survivors in the development of policies and solutions. It builds upon and extends the National Plan to Reduce Violence against Women and their Children 2010-2022 (2010-22 National Plan).

 

The vision of the National Plan will be achieved, in part, by building the workforce, growing the evidence base and strengthening data collection systems, while delivering holistic, coordinated and integrated person-centred responses.

 

In alignment with the National Agreement on Closing the Gap, the National Plan supports measures to achieve the Closing the Gap Target 13: "By 2031, the rate of all forms of family violence and abuse against Aboriginal and Torres Strait Islander women and children is reduced by at least 50 per cent, as progress towards zero."

 

The National Plan reflects the Government's continued commitment to ending violence against women and children in one generation as outlined by the joint media release on 9 May 2023 by the Minister for Women, Minister for Social Services, and Assistant Minister for Social Services and the Prevention of Family Violence (https://ministers.dss.gov.au/ media-releases/11156/Increased support to end violence against women and children).

 

The National Plan will comprise two supporting five-year Action Plans, a dedicated Aboriginal and Torres Strait Islander Action Plan, and a commitment to a standalone First Nations National Plan. These plans are still being developed. Both the first five-year Action Plan and the Aboriginal and Torres Strait  Islander Action Plan will detail the investments, efforts and actions of the Commonwealth, states and territories to implement the National Plan. The first five-year Action Plan and the Aboriginal and Torres Strait Islander Action Plan received funding in the 2023-24 Budget. Development of the standalone First Nations National Plan will occur alongside the implementation of the dedicated Aboriginal and Torres Strait Islander Action Plan.

 

Currently, 33 initiatives form part of the implementation of the National Plan objectives. Most initiatives were announced through either the 2022-23 October Budget or the 2023-24 Budget and include certain initiatives commenced under the 2010-2022 National Plan. The implementation of all these initiatives will be through a series of grant and procurement arrangements.

 

Examples of activities to support the National Plan include:

*         research, data and evaluation - including developing a new community-led approach to measuring progress against Target 13 of Closing the Gap, funding the Australia's National Research Organisation for Women's Safety (ANROWS) and evaluating 1800RESPECT to ensure it achieves its Strategic Outcomes and has a focus on practical advice and recommendations to improve 1800RESPECT;

*         behaviour change campaigns and interventions - including a national campaign on consent to better inform young people and adults about the importance of consensual and respectful relationships, and a national primary prevention campaign to break the cycle of violence by encouraging adults to reflect on their attitudes and have conversations about respectful behaviours with young people aged 10 to 17 years;

*         prevention - including developing an evidence base for sexual violence prevention through designing, delivering and evaluating up to 10 small-scale trials that support the prevention of sexual harm and violence and funding Our Watch - the lead primary prevention organisation. This will drive a demonstrated positive change in understanding attitudes and behaviours for preventing family, domestic and sexual violence and sexual harassment, across Australia;

*         advisory groups - including a victim-survivor advisory group to ensure engagement with victim-survivors throughout the life of the First Action Plan of the National Plan. This will provide valuable insights and ensure the voices of people with experience of family, domestic and sexual violence are considered in policy development and implementation. A national Peak Body for First Nations family safety will be established to lead and coordinate efforts to ensure the safety and
well-being of First Nations individuals and families;

*         range of supports to keep victim-survivors safe and hold perpetrators to account - including services providing specialist counselling support to men who want to stop using violence in their family relationships, and to improve referrals to, and uptake of, intervention services. A national database of perpetrator support services will be developed to facilitate referrals and improve access to services. Further, a framework to support service providers in consistent identification and management of risks posed by people who use violence will be implemented;

*         training and capacity building - including building the capacity of the workforce, such as front line workers, who support victim-survivors and who are at risk of or choose to use violence;

*         crisis/emergency accommodation and housing - including providing emergency accommodation for those affected by family, domestic and sexual violence, and supports for women and their children who have experienced family and domestic violence to stay in their own home, or a home of their choice, where it is safe and appropriate to do so; and

*         early intervention, response, healing and recovery supports and interventions - including specialised services and support for victim-survivors; payment programs for people escaping violence including temporary visa holders; place-based,
trauma-aware and culturally responsive healing programs aimed at early intervention and recovery.

 

The activities will be supported by the National Plan's cross-cutting principles, specifically:

*         advancing gender equality;

*         the diverse lived experience of victim-survivors are informing policies and solutions;

*         Closing the Gap;

*         person-centred coordination and integration;

*         intersectionality; and

*         people who choose to use violence are held accountable.

 

The National Plan's definition of 'violence against women' is aligned with the United Nations Declaration on the Elimination of Violence against Women (1993), which defines violence against women as 'any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.' The National Plan treats 'violence against women' as a broad concept. It encompasses all forms of violence, harassment and abuse that women (and often young women and girls) experience. Violence can be physical, sexual, emotional, psychological, social, cultural, spiritual, financial and technology-facilitated abuse (including image-based abuse), and stalking. Terms used in the National Plan include the following which provide the context to demonstrate funding of activities to address 'violence against women' is broad in nature.

*         Intimate partner violence, also commonly referred to as 'domestic violence', refers to any behaviour within an intimate relationship (including current or past marriages, domestic partnerships or dates) that causes physical, sexual or psychological harm. This is the most common form of violence against women. Intimate partner violence can also occur outside of a domestic setting, such as in public and between two people who do not live together.

*         Family violence is a broader term than domestic violence, as it refers not only to violence between intimate partners but also to violence perpetrated by parents (and guardians) against children, between other family members and in family-like settings. This includes for example elder abuse, violence perpetrated by children or young people against parents, guardians or siblings, and violence perpetrated by other family members such as parents-in-law. Family violence is also the term Aboriginal and Torres Strait Islander peoples prefer because of the ways violence occurs across extended family networks. Family violence can also constitute forms of modern slavery, such as forced marriage and servitude.

*         Sexual violence refers to sexual activity that happens where consent is not freely given or obtained, is withdrawn or the person is unable to consent due to their age or other factors. It occurs any time a person is forced, coerced or manipulated into any sexual activity. Such activity can be sexualised touching, sexual abuse, sexual assault, rape, sexual harassment and intimidation and forced or coerced watching or engaging in pornography. Sexual violence can be non-physical and include unwanted sexualised comments, intrusive sexualised questions or harassment of a sexual nature. Forms of modern slavery, such as forced marriage, servitude or trafficking in persons may involve sexual violence.

*         Coercive control is characterised by a pattern of behaviours used by a perpetrator over time that has the effect of creating and maintaining power and dominance over another person or persons. Coercive control is often a significant part of a victim-survivor's experience of family and domestic violence. It describes someone's use of a pattern of abusive behaviours against another person over time, with the effect of establishing and maintaining power and dominance over them. Abusive behaviours that perpetrators can use as part of their pattern of abuse include physical abuse (including sexual abuse), monitoring a victim-survivor's actions, restricting a victim-survivor's freedom or independence, social abuse, using threats and intimidation, emotional or psychological abuse (including spiritual and religious abuse), financial abuse, sexual coercion, reproductive coercion, lateral violence, systems abuse, technology-facilitated abuse and animal abuse.

*         Consent is also addressed under the National Plan. Consent is where a person freely and voluntarily agrees to participate in an interaction. While consent applies to a broad range of issues, in this context it is most often physical or sexual in nature. Consent requires ongoing and mutual communication and decision-making, and can be withdrawn at any point. Legal definitions of sexual consent vary between states and territories, with reforms occurring in a number of jurisdictions to amend the legal definitions of consent, for example, to adopt an affirmative model of consent that requires a person to take active steps to say or do something to find out whether the other person consents to the sexual activity. While the age of consent differs between jurisdictions, children under the age of consent cannot consent to sex or sexual acts.

A person must also have the cognitive capacity to consent to the sexual activity at the time and must not be misled about the nature or purpose of the sexual activity, or influenced by someone abusing their position of authority, trust, or dependency. In the context of forced marriage, a person does not freely or fully consent to the marriage because of threats, deception or coercion, or because they are incapable of understanding the nature and effect of the marriage ceremony, or the individual is under the age of 16 years.

 

Under the National Plan, funded activities will focus on a holistic approach to addressing violence across the continuum from prevention, early intervention and response, through to recovery and healing. Details of the holistic approach include the following.

*         Prevention means stopping violence against women from occurring in the first place by addressing its underlying drivers. This requires changing the social conditions that give rise to this violence and reforming the institutions and systems that excuse, justify or even promote such violence. Effective prevention requires integrated and cohesive work that builds mutually reinforcing action at all levels, together with clearly defined and well-supported implementation.

*         Early intervention, also known as 'secondary prevention', aims to identify and support individuals and families experiencing, or at risk of, gender-based violence in order to stop violence from escalating, protect victim-survivors from harm and prevent violence from reoccurring.

*         Response refers to efforts and programs used to address existing violence - for example, services such as crisis counselling, financial, housing or medical assistance as well as police and justice responses including family law services and perpetrator interventions. Also known as 'tertiary prevention', these efforts aim to prevent the reoccurrence of violence by holding perpetrators of violence to account and supporting victim-survivors.

*         Recovery is an ongoing process that enables victim-survivors to be safe, healthy and resilient and to have economic security and post-traumatic growth. Victim-survivors require support and healing to recover from the financial, social, psychological, emotional and physical impacts of violence. Recovery also includes addressing the short-term, long-term and lifelong health impacts for victim-survivors, which may include physical injuries, reproductive and sexual health issues and poor mental health. Recovery also relates to the rebuilding of a victim-survivor's life, their ability to return to the workplace and community, as well as obtaining financial independence and economic security. However, it must be acknowledged that victim-survivors recover and heal in different ways, with some people being unable to return to work and requiring access to ongoing support.

 

Funding for the activities will support the National Plan by:

*         recognising violence against women and children has significant short-term and long-term effects on victim-survivors' physical and mental health and well-being. In addition, the profound impacts of violence against women and children ripple out across families, communities and society as a whole;

*         supporting collective action across society;

*         reflecting the varied and unique experiences of victim-survivors, and includes objectives of improving social, economic and health outcomes for victim-survivors;

*         ensuring that the diverse experiences of victim-survivors inform policies and solutions (one of the six cross-cutting principles of the National Plan);

*         pointing to the importance of all people experiencing family, domestic and sexual violence, including men, being supported to access services and to leave violent relationships if and when they choose to do so;

*         highlighting how positively engaging with men and boys is a critical step in ending violence, and the important role of men and boys in ending violence by drawing on strong, healthy models of masculinity and self-expression;

*         holding perpetrators to account as an underpinning principle of the National Plan and embedding perpetrator accountability across all domains on prevention, early intervention, response and recovery;

*         recognising the need to elevate the voices of children and young people as victim-survivors in their own right, and to establish appropriate supports and services that will meet their safety and recovery needs;

*         incorporating an understanding and appropriate response to the specific challenges women face, including those from diverse cultural, ethnic, religious and linguistic backgrounds and migrant and refugee women and children, including those on temporary visas, in relation to domestic, family and sexual violence;

*         recognising women with disability often experience violence that is more severe and more frequent than women without disability;

*         explicitly including LGBTIQA+ people as part of Australia's commitment to ending all forms of gender-based violence;

*         responding to violence against Aboriginal and Torres Strait Islander women and children. These activities and services will be trauma-informed, healing-focused, culturally safe, place-based centred and led by Aboriginal and Torres Strait Islander peoples;

*         recognising the increased risk and unique forms of violence experienced by women in rural and remote communities, and that some services and supports are not available in many regional and remote areas;

*         recognising women and children are not a homogenous group. They have many and varied personal identities, backgrounds, experiences and social positions. The National Plan takes an intersectional approach to addressing men's violence against women, children and LGBTIQA+ people because it is critical to success across all efforts; and

*         recognising other activities that address all forms of gender-based violence including: coercive control; intimate partner homicide; sexual violence and harassment; pornography; economic abuse including financial abuse; and technology-facilitated abuse.

 

The National Plan will be supported by an Outcomes Framework and Performance Measurement Plan that will increase the department's ability to track, monitor and report change over the life of the National Plan. The National Plan includes example indicators of success to support and help track progress in reducing the prevalence of violence. 

 

Activities under the National Plan will be delivered through a range of grants and procurements. Some of the initiatives have already commenced under the 2010-22 National Plan, while others have yet to commence.

 

All grants will be administered in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Commonwealth Grants Rules and Guidelines 2017.

 

Grant opportunity guidelines and information about grants awarded will be published on GrantConnect (grants.gov.au). The department and the Community Grants Hub will administer the programs.

 

Procurement decisions will also be made in accordance with the Commonwealth resource management framework, including the PGPA Act and Commonwealth Procurement Rules. Information about the tenders and resulting contracts will be made available on AusTender (www.tenders.gov.au) once the contracts are signed. An evaluation panel will consider the quotes and provide a recommendation to the delegate, who will make the final decision. Procurement decisions will be based on value for money, including capability and capacity to deliver, and price and risk considerations.

 

Final funding decisions for both procurements and grants will be made either by the Minister for Social Services or by an SES official with relevant knowledge and experience, including in relation to women's and family safety. Final decisions will be made publicly available for grants through GrantConnect and for procurement through AusTender.

 

While the availability of independent merits review will depend on the nature of the relevant activities, generally decisions relating to the grant opportunities and procurement for the activities under the National Plan are not considered suitable for independent merits review. This is because they are decisions relating to the allocation of finite resources, from which all potential claims for a share of the resource cannot be met. In addition, any funding that has already been allocated would be affected if the original decision was overturned. The Administrative Review Council 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?).

 

In addition, the remaking of a decision after entry into a contractual arrangement with a successful provider is legally complex, impractical, and could result in delays to providing services. The Government Procurement (Judicial Review) Act 2018 enables suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. This legislation might provide an additional avenue of redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

 

The review and audit process undertaken by the Australian National Audit Office also 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.

 

The National Plan was informed by broad consultation over a period of around two years. More than 3,000 individuals were engaged through various consultation methods to inform the development of the National Plan. This included over 30 workshops and 26 focus groups that engaged with nearly 500 individuals from nearly 350 organisations. In addition, over 1,000 survey responses and 300 written submissions were received to a public consultation on the draft National Plan, and each of these responses were considered as the National Plan was finalised.

 

Further information on the National Plan consultation can be found at: https://www.dss.gov.au/women-programs-services-reducing-violence/the-national-plan-to-end-violence-against-women-and-children-2022-2032.

 

Funding of $1.3 billion to implement the National Plan was included in the 2022-23 October Budget under the measure for 'Women's Safety' over a period of six years commencing in 2021-22. Details are set out in the Budget October 2022-23, Budget Measures, Budget Paper No. 2 at pages 186-187.

 

Funding for this item will come from Program 2.1- Families and Communities, which is part of Outcome 2 and from Program 4.1 - Housing and Homelessness, which is part of Outcome 4. Details are set out in the Portfolio Budget Statements 2022-23, Budget Related Paper
No. 1.14, Social Services Portfolio at pages 15-16, 51, 52, 72 and 73.

 

Additional funding of $589.3 million was included in the 2023-24 Budget under the measures 'Women's Safety' and 'Women's Safety - First Nations' for a period of five years commencing in 2022-23. Details are set out in Budget 2023-24, Budget Measures, Budget Paper No. 2 at pages 88-90.

 

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 2023-24, Budget Related Paper No. 1.14, Social Services Portfolio at page 50.

 

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));
• census and statistics (section 51(xi));
• aliens power (section 51 (xix));
• social welfare (section 51(xxiiiA));
• the race power (section 51(xxvi));
• the immigration power (section (xxvii));
• the external affairs power (section 51(xxix));
• the express incidental power and the executive power (sections 51(xxxix) and 61);
• the power to grant financial assistance to States (section 96); and
• the territories power (section 122).

 

Communications power

 

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

 

Funding under the National Plan will support national awareness campaigns to change violence-supportive attitudes and effectively reduce the incidence and impact of violence. These campaigns will be delivered in part through digital platforms, including TV, social media and the internet.

 

Census and statistics

 

Section 51(xi) of the Constitution empowers the Parliament to make laws with respect to 'census and statistics'.

 

Funding under the National Plan will support activities on research, data collection, and evaluation to build the evidence base on priority areas in the National Plan for example developing a new community-led approach to measuring progress against Target 13 of Closing the Gap.

 

Aliens power

 

Section 51(xix) of the Constitution empowers the Parliament to make laws with respect to naturalization and aliens.

 

This power supports laws that provide benefits to aliens. Funding under the National Plan will be used for activities that provide financial support and assistance to people who are non-citizens of Australia. This includes temporary visa holders who are experiencing family, domestic and sexual violence.

 

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

 

Activities funded under the National Plan will support and assist women and children who are at risk of, or are victims of, such violence, including by providing legal, medical, housing, financial and other support.

 

Races power

 

Section 51(xxvi) of the Constitution empowers Parliament to make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws'.

 

Funding for a range of activities will be used to prevent family, domestic, and sexual violence and reduce the effect of such violence for a number of specific cohorts from diverse cultural and ethnic backgrounds, including Aboriginal and Torres Strait Islander peoples.

 

Immigration power

 

Section 51(xxvii) of the Constitution empowers the Parliament to make laws with respect to 'immigration and emigration'.

 

Funding under the National Plan will be used for activities that provide financial support and assistance to temporary visa holders, migrants and refugee women experiencing family, domestic and sexual violence.

 

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, including the following:

• the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);
• the Convention on the Rights of the Child (CRC);
• the International Covenant on Civil and Political Rights (ICCPR);
• the Convention on the Rights of Persons with Disabilities (CRPD); and
• the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

CEDAW

 

Australia has obligations relating to the elimination of all forms of discrimination against women under CEDAW.

• Article 2 requires States Parties to 'condemn discrimination against women in all its forms' and 'agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women'.
• Article 3 requires States Parties to 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 5 requires States Parties to 'modify social and cultural patterns of conduct of men and women to eliminate prejudices' and to 'ensure that family education includes a proper understanding of maternity as a social function and recognise the common responsibility of men and women in the upbringing and development of children'.
• Article 16 requires States Parties to 'take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations'.

 

Gender-based violence, including domestic, family and sexual violence, is a form of discrimination that inhibits women's ability to enjoy rights and freedoms on a basis of equality with men. The National Plan commits to sustained action, effort and partnership across sectors and levels of government towards the vision of ending violence against women and children in one generation.

 

Funding under the National Plan will promote the elimination of discrimination against women by providing funding for a suite of activities that:

• provide support and services for women affected by family, domestic and sexual violence, including providing emergency accommodation places for these affected women and their children;
• support the collection of research and evidence base to understand and provide appropriate responses to the specific challenges women from diverse cultural, ethnic, religious and linguistic backgrounds face in relation to domestic, family and sexual violence;
• support activities that change community attitudes and other factors driving violence against women and their children, and build community awareness of violence against women and their children;
• encourage respectful relationships across all cohorts and settings; and
• promote positive male role models to encourage male perpetrators of violence to examine their behaviour and to stop further violence.

 

CRC

 

Australia has obligations regarding the rights of the child under the CRC. Article 4 of the CRC requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights in the CRC.

• Article 3 requires States Parties to undertake to ensure the child such protection and care as is necessary for his or her wellbeing and, to this end, take all appropriate legislative and administrative measures.
• 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, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child'.
• Article 34 requires States Parties to take appropriate measures to prevent 'the inducement or coercion of a child to engage in any unlawful sexual activity' and the 'exploitative use of children in pornographic performances and materials'.
• Article 36 requires States Parties to protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.

 

Funding will be provided under the National Plan for activities that support and recognise the need to elevate the voices of children and young people as victim-survivors in their own right, and establish appropriate supports and services that will meet their safety and recovery needs. An example of this activity is an early intervention trial for young men and adolescent boys who present with adverse childhood experiences including family and domestic violence, and who are at risk of perpetrating family, domestic or sexual violence.

 

ICCPR

 

Australia has obligations under the ICCPR to promote universal respect for, and observance of, human rights and freedoms.

• Article 2 of the ICCPR requires that each State Party to the ICCPR 'undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status'.
• Article 7 states that no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment, and in particular, to medical or scientific experimentation without providing their free consent.
• Article 9 recognises the right to liberty and security of person.

 

Certain activities funded under the National Plan will be directed at preventing violence such as the continuation of activities commenced under the 2010-22 National Plan. This includes the provision of specialised family violence services that will provide specific counselling services to respond to the widespread issue of family, domestic and sexual violence impacts on children to promote security. In addition, funding may be directed to research projects that examine the prevalence, drivers and interventions of specific forms of violence against individuals.

 

CRPD

 

Australia has obligations under the CRPD to promote and protect the human rights and fundamental freedoms of all persons with disabilities and to promote respect for their inherent disability.

• Article 4 requires States Parties 'to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.' Article 4(a) provides that States Parties undertake to adopt 'appropriate legislative, administrative and other measures' to this end.
• Article 6 requires States Parties to 'take all appropriate measures to ensure the full and equal enjoyment' by women and girls with disability of all human rights and fundamental freedoms, and to ensure 'the full development and advancement and empowerment of women'.
• Article 15 requires States Parties to take all effective measures to 'prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment'.
• Article 16 requires States Parties to take measures in relation to persons with disabilities.
• Article 16(1) obliges States Parties to take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects. 
• Article 16(2) requires States Parties to take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognise and report instances of exploitation, violence and abuse. State parties are to ensure that protection services are age, gender and disability sensitive.
• Article 16(5) requires State Parties to put in place effective legislation and policies, including women and child-focused legislation and policies to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.

 

Funding under the National Plan will include a range of activities that focuses on people with disability affected by family, domestic and sexual violence. This includes the provision of services and emergency accommodation places which are accessible for women and children experiencing family and domestic violence, including women and children with disability.

 

ICESCR

 

Australia has obligations under the ICESCR, including in relation to the right to health and the right to participate in cultural life.

• Article 2 requires States Parties to undertake steps to achieve the full realisation of the rights recognised in the ICESCR and to guarantee that the rights recognised therein will be exercised without discrimination.
• Article 11 requires States Parties to recognise the right of everyone to an adequate standard of living for himself and his family and to take appropriate steps to ensure the realisation of this right.
• Article 12 requires States Parties to recognise the 'right of everyone to the enjoyment of the highest attainable standard of physical and mental health' and includes obligations to take steps towards the full realisation of this right as needed for 'the prevention, treatment and control of epidemic, endemic, occupational and other diseases'.

 

Expenditure on certain activities in the National Plan proposes to target priority areas to reduce the incidence of domestic violence against women and support women who are victims of domestic violence. In doing this, the activities will help reduce the incidence of physical and mental health problems among women. Certain activities will also ensure that women and children escaping domestic violence have an adequate standard of living.

 

Express incidental power and the executive 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. 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.

 

Funding under the National Plan will support research into matters of national significance to ensure policy interventions continue to be evidence-based, open and accessible to support the priorities of the National Plan.

 

Power to grant financial assistance to the states and territories

 

Section 96 of the Constitution empowers the Parliament to 'grant financial assistance to any State on such terms and conditions as the Parliament thinks fit'. Section 122 of the Constitution empowers the Parliament to 'make laws for the government of any territory'.

 

Funding under the National Plan will involve the Commonwealth providing grants of financial assistance to the states and territories as part of the National Partnership on Family, Domestic and Sexual Violence Responses 2021-27.

 

Attachment B

 

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. 4) Regulations 2023

 

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. 4) Regulations 2023 amend Schedule 1AB to the Principal Regulations to establish legislative authority for government spending on the National Plan to End Violence against Women and Children 2022-2032 (the National Plan).

 

The National Plan commits to ten years of sustained action, effort and partnership across all relevant sectors and levels of government towards the vision of ending gender-based violence in one generation. It builds upon and extends the National Plan to Reduce Violence against Women and Children 2010-2022. In alignment with the National Agreement on Closing the Gap, the National Plan supports measures to achieve the Closing the Gap Target 13: "By 2031, the rate of all forms of family violence and abuse against Aboriginal and Torres Strait Islander women and children is reduced by at least 50 per cent, as progress towards zero."

 

The National Plan commits to ongoing engagement with victim-survivors in the development of policies and solutions. The vision of the National Plan will be achieved, in part, by building the workforce, growing the evidence base and strengthening data collection systems, while delivering holistic, coordinated and integrated person-centred responses.

 

The National Plan will comprise two supporting five-year Action Plans, a dedicated Aboriginal and Torres Strait Islander Action Plan and also outlines a commitment to a standalone First Nations National Plan. Both the first five-year Action Plan and the Aboriginal and Torres Strait Islander Action Plan will detail the investments, efforts and actions of the Commonwealth, states and territories to implement the National Plan

 

A total funding package of $1.9 billion will support 33 initiatives that form part of the implementation of the National Plan objectives.

 

Activities will be supported by the National Plan's cross-cutting principles, specifically:

• advancing gender equality;
• the diverse experience of victim-survivors are informing policies and solutions;
• Closing the Gap;
• person-centred coordination and integration;
• intersectionality; and
• that people who choose to use violence are held accountable.

 

Human rights implications

 

This disallowable legislative instrument engages the following human rights:

• the rights of women not to be discriminated against based on gender - Articles 3, 5 and 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) read with Article 2; and
• the rights to protection against exploitation, violence and abuse - Articles 3, 19, 34 and 36 of the Convention on the Rights of the Child (CRC) read with Article 4; and Articles 6, 15 and 16 of the Convention on the Rights of Persons with Disabilities (CRPD) read with Article 4.

 

Rights of women not to be discriminated against based on gender

 

The CEDAW provides that States Parties must ensure the effective protection of women against acts of discrimination. Gender-based violence, including family, domestic and sexual violence, is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men.

 

Article 2 of the CEDAW provides that 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.

 

Article 3 of the CEDAW 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 5 of the CEDAW provides that States Parties shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

 

Article 16 requires States Parties to 'take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations'.

 

This disallowable legislative instrument promotes the elimination of discrimination against women by providing funding under the National Plan for a suite of activities to prevent family, domestic, and sexual violence and reduce the incidence and impact of such violence against women. This will enable the Government to fund activities, across the continuum from prevention, early intervention and response, through to recovery and healing, for example:

• support the collection of research and evidence base to understand and provide appropriate responses to the specific challenges women from diverse cultural, ethnic, religious and linguistic backgrounds face in relation to family, domestic and sexual violence such as funding the Australia's National Research Organisation for Women's Safety;
• support activities that change community attitudes and other factors driving violence against women and their children, and build community awareness of violence against women and their children such as funding the Stop it at the Start campaign;
• build the capacity of the workforce who support victim-survivors and who are at risk of or choose to use violence, such as DV-Alert training;
• encourage respectful relationships across all cohorts and settings such as the National Consent Campaign;
• promote positive male role models to encourage male perpetrators of violence to examine their behaviour and to stop further violence such as specialist counselling support to men who want to stop using violence in their family relationships, and to improve referrals to, and uptake of, intervention services;
• a range of supports to keep victim-survivors safe and hold perpetrators to account such as the development of the perpetrator risk assessment framework and national perpetrator referral database, and delivery of specialist counselling support to men who want to stop using violence;
• reflect the varied and unique experiences of victim-survivors, and include objectives of improving social, economic and health outcomes for victim-survivors such as payment programs for people escaping violence including temporary visa holders; and
• advisory groups to ensure engagement with cohorts through the life of the National Plan for example the victim-survivor advisory groups.

 

This will also recognise that women and children are not a homogenous group. They have many and varied personal identities, backgrounds, experiences and social positions and funding under the National Plan will allow for sustained collective action, effort and partnership across all relevant sectors and levels of government towards the vision of ending gender-based violence in one generation. This in turn promotes the elimination of discrimination against women.

 

Rights to protection against exploitation, violence and abuse

 

The rights of vulnerable cohorts will be promoted under the CRC and the CRDP.

 

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

 

Article 3 of the CRC requires States Parties to undertake to ensure the child such protection and care as is necessary for his or her wellbeing and, to this end, take all appropriate legislative and administrative measures.

 

Article 19 of the CRC imposes an obligation on State Parties to take measures to protect children from all forms of physical or mental violence, injury or abuse, and to prevent such violence occurring, including through activities for their carers.

 

Article 34 of the CRC requires States Parties to take appropriate measures to prevent 'the inducement or coercion of a child to engage in any unlawful sexual activity' and the 'exploitative use of children in pornographic performances and materials'.

 

Article 36 of the CRC requires States Parties to protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.

 

Article 4 of the CRDP requires States Parties 'to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.' Article 4(a) provides that States Parties undertake to adopt 'appropriate legislative, administrative and other measures' to this end.

 

Article 6 of the CRDP requires States Parties to 'take all appropriate measures to ensure the full and equal enjoyment' by women and girls with disability of all human rights and fundamental freedoms, and to ensure 'the full development and advancement and empowerment of women'.

 

Article 15 of the CRDP requires States Parties to take all effective measures to 'prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment'.

 

Article 16 of the CRPD requires States Parties to take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.

 

This disallowable legislative instrument promotes the right to protection against exploitation, violence and abuse by enabling the Government to fund activities that protect and promote the safety and wellbeing of children and people with disability through education campaigns and appropriate support and services.

 

Examples of such activities funded under the National Plan that promotes this right include:

• recognising the need to elevate the voices of children and young people as victim-survivors in their own right, and to establish appropriate supports and services that will meet their safety and recovery needs through the review of emergency accommodation settings suitable for children, children specific counselling services, children trauma informed services, and early intervention for young men and adolescent boys;
• recognising the need to break the cycle of violence through encouraging people, including young people, to reflect on their attitudes and better inform the importance of consensual and respectful relationships. The aim is to drive positive change in behaviours and attitudes around violence against women and help to promote gender equality over time including changing attitudes and behaviours on sexual violence and harassment and to counteract the impact of pervasive pornography on young people; and
• recognising women with disability often experience violence that is more severe and more frequent than women without disability through community prevention initiatives.

 

In addition to the above, the National Plan protects the rights of other vulnerable cohorts. Examples of such activities include:

• incorporating an understanding and appropriate response to the specific challenges women face, including those from diverse cultural, ethnic, religious and linguistic backgrounds and migrant and refugee women and children, including those on temporary visas, in relation to domestic, family and sexual violence such as payment programs for people escaping violence including temporary visa holders;
• responding to violence against Aboriginal and Torres Strait Islander women and children through a number of initiatives. This includes:
• the establishment of a First Nations peak body to lead representative voice of the views and needs of the sector in relation to family safety in First Nations communities;
• the development of which is a new community-led approach, to measure progress against Target 13 of Closing the Gap;
• actions under the dedicated Aboriginal and Torres Strait Islander Action Plan for family violence to align with the National Agreement on Closing the Gap;
• the engagement of Aboriginal and Torres Strait Islander community-controlled organisation/s to assist in developing the First Nations National Plan; and
• explicitly including LGBTIQA+ people as part of Australia's commitment to ending all forms of gender-based violence through community prevention initiatives.

 

Conclusion

 

This disallowable instrument is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance