Details of the Financial Framework (Supplementary Powers) Amendment
(Social Services Measures No. 5) Regulations 2021

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 5) Regulations 2021.

 

Section 2 - Commencement

 

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

 

Section 3 - Authority

 

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

 

Section 4 - Schedules

 

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

 

Schedule 1 - Amendments

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

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

 

New table item 526 establishes legislative authority for government spending on the establishment and maintenance of a website to provide information about market demand and supply to the care and support sector, including providers of one or more of the following services:

*         disability care and support services;

*         care and support services for veterans; and

*         aged care and support services.

 

As part of Australia's Care and Support Workforce Package in the 2020-21 Budget, the Government agreed to assist providers across the care and support sector through the provision of market demand and supply information. The Package, which is part of the Government's JobMaker Plan, aims to boost jobs and encourage innovation, better service delivery and a more sustainable workforce.

 

Market information for the care and support sector will be delivered through the extension of the National Disability Insurance Scheme (NDIS) Demand Map which was developed as part of the Boosting the Local Care Workforce program. The NDIS Demand Map is an interactive geospatial tool, designed to grow supply to meet forecast demand for NDIS services by showing business opportunities (by location and service type) for new and prospective providers to enter and expand their service offering within the market.

 

The Care and Support Sector Demand Map will show aggregate supply and demand information for the care and support sector as a whole. The Australian Government is the primary funder of care and support services and collects and holds substantial market information. Linking these data with other sources to offer aggregated and forecast demand as well as supply gap information to providers (consolidated across aged, disability and veterans' care and support sector) would help better target sector workforce capacity and assist organisations to make business decisions to:

*         adjust and innovate their models in line with the needs of the market;

*         expand their service offering across government programs;

*         build scale and scope across the care and support services; and

*         support NDIS providers.

 

The department will procure a suitable supplier to undertake data modelling, design and build a geospatial data visualisation tool to deliver the Care and Support Sector Demand Map, in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Commonwealth Procurement Rules (CPRs) and the department's Accountable Authority Instructions. The procurement will be undertaken through an open tender process using the Digital Transformation Agency's Digital Marketplace Panel (SON3413842). Information about the procurement and the contract awarded will be published on AusTender, in accordance with the CPRs.

 

Decisions in relation to the procurement process and expenditure will be made by the Secretary of the department, or an appropriate delegate, in accordance with the Commonwealth resource management framework, including the PGPA Act and the CPRs. The level of the delegate will depend on the value of the procurement, in accordance with the Secretary's financial resource management delegations. The Secretary, or delegate, will consider the advice of the evaluation committee in the evaluation report when making a decision. This will include whether the procurement represents value for money; the department has the appropriate authority to undertake the procurement; and the procurement is aligned to the broader objectives of the Government.

 

Funding decisions made in connection with the Care and Support Sector Demand Map are not considered suitable for independent merits review, as they are decisions relating to the allocation of a finite resource, 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?).

 

The remaking of a procurement decision after entry into a contractual arrangement with a successful provider is legally complex, impractical, and could result in delays to delivering the Care and Support Sector Demand Map. 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 department has consulted with the Department of Health and the Department of Veterans' Affairs in relation to the delivery of the Care and Support Sector Demand Map. The department has also consulted with the care and support sector through the Advisory Group on Market Oversight (AGMO), which provides advice on policies and settings to facilitate the development and sustainability of the care and support sector market and workforce. The AGMO is comprised of experts from the sector, including Chief Executive Officers and other senior executives from not-for-profit providers, newly emerging for-profit providers, and groups that represent key workforce segments, such as Aboriginal and Torres Strait Islander peoples, regional and remote communities, and health professionals. Through the AGMO, the department will survey care and support service providers to understand what market information is most valued by the sector. 

 

Funding for this initiative of $2.4 million was included in the 2020-21 Budget under the measure 'Australia's Care and Support Workforce Package' for a period of two years commencing in 2021-22. Details are set out in Budget 2020-21, Budget Measures, Budget Paper No. 2 2020-21 at page 150.

 

Funding will come from Program 3.2: National Disability Insurance Scheme and Program 3.3: Program Support for Outcome 3, which are part of Outcome 3. Details are set out in the Portfolio Budget Statements 2020-21, Budget Related Paper No. 1.12, Social Services Portfolio at pages 27 and 77.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the communications power (section 51(v)) of the Constitution.

 

Communications power

 

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

 

This initiative will deliver detailed supply and demand market information through the Care and Support Sector Demand Map, which is an online service.

 

 

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. 5) Regulations 2021

 

This disallowable legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the legislative instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

 

The Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 5) Regulations 2021 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on a certain activity that will be administered by the Department of Social Services.

 

As part of Australia's Care and Support Workforce Package in the 2020-21 Budget, the Government agreed to assist providers across the care and support sector through the provision of market demand and supply information. The Package, which is part of the Government's JobMaker Plan, aims to boost jobs and encourage innovation, better service delivery and a more sustainable workforce.

 

Government funding of $2.4 million over two years from 2021-22 will be provided for the establishment and maintenance of a website to make market demand and supply information available to the care and support sector, including providers of one or more of the following services:

*         disability care and support services;

*         care and support services for veterans; and

*         aged care and support services.

 

Up-to-date market demand and market supply gap information will be published online using a geospatial data visualisation tool, to support providers to enter and grow in areas of unmet demand across care and support sector, particularly in thin markets.

 

 

Human rights implications

 

This disallowable legislative instrument engages the following rights:

*         the right of persons with disabilities to equal access to the physical environment, transportation, information and communications and the identification and elimination of any such barriers and obstacles to accessibility - Article 9 of the Convention on the Rights of Persons with Disabilities (CRPD), read with Article 4;

*         the right of all persons with disabilities to live in the community, with choices equal to others, and of full enjoyment of this right and their full inclusion and participation in the community - Article 19 of the CRPD, read with Article 4;

*         the right of persons with disabilities to have access to a range of in-home, residential and other community support services, including personal assistance to support living and inclusion in the community, and to prevent isolation and segregation from the community - Article 19(b) of the CRPD, read with Article 4;

*         the right to the enjoyment of the highest standard of health without discrimination on the basis of disability - Article 25 of the CRPD, read with Article 4;

*         the appropriate collection and use of information, suitably safeguarded and disaggregated when necessary, to assist in meeting the obligations of the CRPD - Article 31 of the CRPD, read with Article 4; and

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

 

CRPD

 

Article 4 of the CRPD requires States Parties undertake to take steps to ensure and promote the full realisation of all human rights for those with a disability without discrimination. Articles 9, 19, 25 and 31 are considered below with these general obligations in mind.

 

Article 9 of the CRPD requires States Parties to take appropriate measures to enable persons with disabilities can access, on an equal basis with others, facilities, services and information in both urban and rural areas and providing for training for stakeholders on accessibility issues facing persons with disabilities.

 

The initiative engages the right of people with disability to have the same accessibility to facilities, services and information as the general community in accordance with Article 9 as market needs in this area will be identified and services facilitated and provided by service providers.

 

Article 19 of the CRPD requires States Parties to take appropriate measures to ensure that persons with disabilities have full enjoyment of their right to live in the community, with choices equal to others and with their full inclusion and participation in the community, including by ensuring that they have opportunity to choose their place of residence and who they live with; have access to a range of community support services to support their inclusion in the community; and have equal opportunity to community services and facilities made available for the general population.

 

The initiative engages the right of people with disability to live and participate in the community in accordance with Article 19 as market needs in particular areas and for particular services to support people with disability to engage with the community will be identified and services facilitated and provided by service providers.

 

Article 25 of the CRPD requires States Parties to take all appropriate measures to ensure that health services offered to people with disabilities are of the same range, quality and standard offered to the general population; are tailored to their disability when necessary; are provided as close as possible to their own community and that they do not suffer discrimination on the basis of their disability in respect of treatment from health professionals and insurers.

 

The initiative engages the right of people with disability to enjoy quality health care under Article 25 as market needs in particular areas and for particular health care and medical services to be identified, and services facilitated and provided by service providers.

 

Article 31 of the CRPD requires States Parties to undertake to collect appropriate information, including statistical and research data to enable them to formulate and implement policies to give effect to the Convention.

 

The initiative is in accordance with the obligations of Article 31 as the Government will use this data to formulate and implement policies to give effect to the CRPD, and will do so in accordance with the obligations to maintain privacy and safeguard the information of people with disabilities.

 

The initiative is an extension of the existing National Disability Insurance Scheme (NDIS) Demand Map, an online interactive geospatial tool that provides information to new and prospective disability service providers as to business opportunities by location and service type. This disallowable legislative instrument allows for expenditure on further market information provided by way of a Care and Support Sector Demand Map that will show aggregate supply and demand information held by the Australian Government for the care and support sector as a whole. The provision of this data can forecast demand for particular services as well as identify gaps which would allow service providers to make business decisions in accordance with the needs of the market, expand their service offerings across government programs and build scale and scope across care and support services.

 

This disallowable legislative instrument promotes rights under the CRPD as expenditure on the initiative will assist disability service providers to increase the supply and quality of health and support services for people with disability in areas of need.

 

ICESCR

 

Article 2 of the ICESCR provides that each State Party undertakes to take steps to the maximum of its available resources with a view to achieving progressively the full realisation of the rights recognised in the Covenant, by all appropriate means.

 

Article 12 of the ICESCR recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This Article requires the States Parties create conditions which would assure to all medical service and medical attention in the event of sickness.

 

This disallowable legislative instrument promotes the right to health by improving supply of and access to high quality health care services for people with disability. The initiative engages the right of people with disability to enjoy quality health care under Article 12 as market needs in particular areas and for particular health care and medical services to be identified, and services facilitated and provided by service providers.

 

Conclusion

 

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

 

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance