Attachment A

 

Details of the Financial Framework (Supplementary Powers) Amendment

(Social Services Measures No. 5) 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. 5) 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 two new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on certain activities to be administered by the Department of Social Services (the department).

 

New table item 631 establishes legislative authority for government spending on the Behaviour Support Training Program (the program).

 

The program is a component of the measure: Support for Clinical Placements and Targeted Training in the Care and Support Mental Health Sector (Targeted Training for Disability Support Workers), which forms part of the Government's broader ageing and aged care suite of training package to implement restrictive training in the aged care and mental health sectors. The Department of Health and Aged Care is responsible for provision of training in the aged care and mental health sectors and the department will focus on training to disability support workers.

 

The program will develop targeted behaviour support training for workers and providers, who deliver supports to National Disability Insurance Scheme (NDIS) participants with a psychosocial disability. The aim of the program is to increase the capability of disability support workers to implement behaviour support plans and increase the quality of life of NDIS participants with psychological disability through the provision of safe and
high-quality positive behaviour support services.

 

The program responds to the issues raised by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission), such as the use of restrictive practices in education, residential, health and detention settings. Restrictive practice means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability. The Disability Royal Commission panel also sought submissions about restrictive practices through the Restrictive Practices Issues Paper available at https://disability.royalcommission.gov.au/publications/restrictive-practices. This paper identified restrictive practices can be prevented, or avoided, and that 'better training for service providers and other professionals' may be a way to reduce and address the causes of using restrictive practices.

 

This will directly align with Principle 6, actions 12 and 13 of the NDIS Psychosocial Disability Recovery Framework 2021 (https://www.ndis.gov.au/understanding/how-ndis-works/mental-health-and-ndis#new-psychosocial-recovery-oriented-framework), which outlines implementing learning and development strategies for psychosocial disability services as well as competencies and skills required for National Disability Insurance Agency (NDIA) and partner staff that will strive for a stronger NDIS recovery-orientated and trauma informed workforce.

 

The behaviour support function of the program aims to improve the quality of life for NDIS participants through the creation of individualised strategies that are responsive to the individual's needs and reduce and eliminate the use of restrictive practices. The participants will benefit from higher quality care and greater access to workers who are appropriately skilled to implement behaviour support plans and manage behaviours of concern.

 

Targeted training will increase capacity of the NDIS workforce and market to deliver behaviour support services. The program will also inform the expansion of behaviour support training across the care and support sector and aim to address concerns of the limited number of competent disability support workers with appropriate skills to support NDIS participants with behaviour support plans.

 

The department will work with the NDIS Quality and Safeguards Commission (NDIS Commission) to deliver the training. The program will extend upon the work the NDIS Commission has undertaken to consider the education, training and professional development for the providers and workers supporting people with disability who present with behaviours of concern. Development of the training will involve consultation with the disability sector and training bodies to help inform the training materials and delivery modes. This may include, but not be limited to, online, face to face and through contracted parties that are yet to be determined. 

 

The length and the mode of delivery for the training will take into consideration availability of workers, the need to be flexible and how to get the best learning outcomes for workers. Currently, the program is expected to conclude by 30 June 2024.

 

Funding for the program will be delivered through a non-competitive procurement process. The NDIS Commission will deliver the program and may choose to procure a range of specialised services such as ICT support, graphic designers, researchers and facilitators to deliver training materials. The procurements will be undertaken 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.

 

As the NDIS Commission is a portfolio Agency, the department and the NDIS Commission will establish a Memorandum of Understanding (MoU). The MoU will provide the department oversight of program delivery, including departmental representation on further procurement selection processes. The authority for the endorsement and management of the MoU will be held at the Group Manager level.

 

Governance arrangements will be set out in the MoU to ensure departmental staff are able to monitor program progress and delivery. The NDIS Commission will oversee stakeholder engagements and the delivery of training, including the procurement of external suppliers as needed. Procurement will be undertaken in accordance with applicable legislative requirements under the PGPA Act and the CPRs. Decision making relating to procurement activity will be undertaken in accordance with overarching legislation at the appropriate level, noting the Behaviour Support subject matter expect at the NDIS Commission is at the Senior Executive Service (SES) Band 2 level.

 

The department would undertake an internal evaluation for the program, retaining funding for evaluation and executive reserve. The evaluation will be used within the department and the NDIS Commission to understand how the training impacts worker skills and translates to improvements in the implementation of behaviour support plans for people with psychosocial disability. It may also inform future proposals on the expansion of the training across the care and support sector.

 

Information about the tender and the resultant contracts will be made available on AusTender (www.tenders.gov.au) once the contracts are signed. Procurement decisions will be based on value for money, including capability and capacity to deliver, and price and risk considerations.

 

Funding decisions in relation to the program are not suitable for independent merits review as these decisions are about a one-off procurement process with a certain organisation, over other organisations. The Administrative Review Council (ARC) has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.16 to 4.19 of the guide, What decisions should be subject to merit review? (ARC guide)).

 

It is essential that behaviour support training is developed and delivered by an appropriately qualified organisation to ensure a nationally consistent understanding and approach to implementing behaviour support plans for NDIS participants with psychosocial disability.

 

The NDIS Commission is the subject matter expert in positive behaviour support and the regulation of restrictive practices nationally. The NDIS Commission also works in close collaboration with state and territory governments. The NDIS Commissioner's behaviour support function is led by the Senior Practitioner and is responsible for:

• overseeing NDIS behaviour support practitioners and providers who use behaviour support strategies and regulated restrictive practices;
• providing best practice advice to practitioners, providers, participants, families and carers;
• receiving and review provider monthly reports on the use of regulated restrictive practices; and
• following up on reportable incidents that suggest there are unmet behaviour support needs.

 

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

 

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

 

The procurement process will be subject to financial accountability safeguards, as it will be undertaken in accordance with the requirements of the PGPA Act, the CPRs and the Accountable Authority Instructions. Complaints mechanisms will be available in respect of any procurement processes that is a 'covered procurement' as defined in the Government Procurement (Judicial Review) Act 2018.

 

The following Government department and agencies have been consulted on the development of the program:

• Department of Education;
• Department of Employment and Workplace Relations;
• Department of Finance;
• Department of Health and Aged Care;
• Department of Veterans' Affairs;
• NDIA; and
• NDIS Commission.

 

As part of the development of the program, the NDIS Commission will undertake consultation with the disability sector and training bodies and state and territory governments, to ensure the design and content of the course is appropriate for the workforce.

 

Funding of $3.5 million over two years from 2022-23 for the item comes from
Program 3.2 - National Disability Insurance Scheme: 3.2.2 - Component 2 (Sector Development Fund and Jobs and Market Fund), which is part of outcome 3. Details are set out in the Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.12, Social Services Portfolio at page 61.

 

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

 

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 Convention on the Rights of Persons with Disabilities (CRPD) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

CRPD

 

Australia has obligations to promote and protect the human rights and fundamental freedoms of all persons with disabilities and to promote respect for their inherent dignity. In particular:

• 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.' States Parties must adopt 'appropriate legislative, administrative and other measures' to this end. States parties should also undertake to 'promote the training of professionals and staff working with persons with disabilities ... so as to better provide the assistance and services' to this end.

 

• Article 25 requires States Parties to recognise that 'persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. Furthermore, States Parties 'shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender sensitive, including health-related rehabilitation. Specifically:
• Article 25(b) provides that States Parties shall 'provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons.'
• Article 25(d) provides that States Parties shall 'require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care.'

 

• Article 26 requires States Parties to 'take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.' To that end, States Parties should organise, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services, in such a way that these services and programmes: (a) begin at the earliest possible stage and are based on the multidisciplinary assessment of individual needs and strengths and (b) support participation and inclusion in the community, are voluntary  and are available to persons with disabilities as close as possible to their own communities, including in rural areas.'
• Article 26(2) also provides that States Parties shall 'promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services.'

 

The program will promote the realisation of these rights, by providing training to disability workers and providers who deliver supports to the relevant NDIS participants. The participants will benefit from higher quality care and greater access to workers who are appropriately skilled to implement behaviour support plans and manage behaviours of concern. This training will reduce and eliminate the need for workers to use restrictive practices for persons with disabilities and instead provide habilitation and rehabilitation services to relevant individuals.

 

ICESCR

 

Australia has obligations under the ICESCR, including in relation to the right to health. In particular:

• Article 2 requires States Parties to 'take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised', therein, 'by all appropriate means, including particularly the adoption of legislative measures.'

 

• Article 12 requires States Parties to 'recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.' The steps to be taken by States Parties include 'the creation of conditions which would assure to all medical service and medical attention in the event of sickness.'

 

The program will take steps to achieve the full realisation of these rights, through the development of targeted behaviour support training for workers and providers, who deliver supports to NDIS participants with a psychosocial disability. The program aims to improve the quality of life for these participants and in turn aid their right to the highest attainable standard of mental health.

 

New table item 632 establishes legislative authority for government spending on the Volunteering Awareness Campaign (the campaign) which aims to remove barriers to volunteering by raising awareness and improving understanding of volunteering amongst the public.

 

The campaign aligns with the department's Outcome 2.1.6 – Volunteering and Community Connectedness - Strong and Resilient Communities (SARC) - Expansion Fund, a key activity under the department's Families and Communities Program. The SARC - Expansion Fund aims to support vulnerable and disadvantaged people feel connected with their local community.

 

Volunteers play a vital role in improving the health and wellbeing of families across Australia and volunteering is pivotal to strengthening the Australian community. Volunteering also increases community participation and sense of belonging and reduces social isolation. Recent research conducted to inform the development of the National Strategy for Volunteering 2023-2033 (National Strategy) has shown a substantial decline in volunteering from 20.7 per cent in 2016 to 15.1 per cent in 2021, with COVID-19 contributing significantly to this decline.

 

On 13 February 2023, the Minister for Social Services, the Hon Amanda Rishworth MP, announced that the National Strategy had been launched by Volunteering Australia. The National Strategy was funded by the department and developed by Volunteering Australia in consultation with the volunteering sector. The media release is available at https://ministers.dss.gov.au/media-releases/10246.

 

The National Strategy highlighted a multitude of factors threatening the sustainability of volunteering in Australia. Some of these factors include declining numbers of formal volunteers, barriers to participating in volunteering and reliance on volunteers to deliver essential services.

 

Volunteering has been identified to:

• promote individual wellbeing through offering a sense of purpose and opportunities for social connection and can promote physical and mental health and support an individual's connection to place;
• promote community wellbeing through building social capital (the networks and relationships between people). Volunteers are part of the social fabric of communities, and participation in volunteering is an indicator of social cohesion and the wider health of civil society; and
• contribute to progress on many national priorities, including tackling mental health issues, reducing social isolation, responding to crises (such as national disasters and health emergencies), and addressing climate change.

 

Funding of $3.0 million in 2023-24 has been allocated from the SARC - Expansion Fund to support the campaign responding to the emerging and urgent need to enable vulnerable and disadvantage cohorts of people to engage with their community through volunteering.

 

The campaign seeks to address this declining rate of volunteering and encourage greater social and civic participation through volunteering as identified by the National Strategy by:

• encouraging more people, including First Nations peoples and newly arrived migrants, to become volunteers;
• highlighting the various ways in which people can contribute their time and skills to volunteering; and
• demonstrating the benefits of, and positive impact volunteering can have in creating thriving communities.

 

The campaign will be delivered as a multi-faceted approach, which includes online advertising, promoting and demonstrating the benefits of volunteering, which will be further enhanced with targeted public relations activities.

 

The primary target audience of the campaign will be young people aged 15 to 18 years, with a focus on those who are, or are at risk of, being disengaged, marginalised and/or having limited engagement with education/training.

 

There was an increase in volunteering amongst young adults aged 15-19 years and
20-24 years from 2006 to 2016, but then a big drop between 2016 and 2021. For those over 25 years of age there were relatively small changes in the rates of volunteering between 2006 and 2016, but, similar to young adults, there was a substantial decline in volunteering between 2016 and 2021.

 

Additionally, research undertaken as part of the development of the National Strategy identified particular barriers to volunteering for some key groups. To break down some of these barriers, engagements through this campaign may be targeted towards First Nations peoples, newly arrived migrants and people with disability.

 

Consideration will be given to the accessibility needs for people with disability and low literacy levels. Cultural practices and understandings around the concept of volunteering will be explored in the research phase and will inform the campaign's development, as it is recognised that First Nations and CALD communities already have a strong culture of helping each other.

 

Research shows that First Nations peoples face multiple barriers to economic participation and a multi-faceted approach is needed to advance their economic inclusion. Many First Nations peoples and communities perceive volunteering differently to non-Indigenous people, with volunteering opportunities often more fluid, local and responsive to community needs rather than structure and targeted. There are also structural disadvantages that impact on the ability of First Nations people to participate in 'formal' volunteering, with mainstream volunteering programs typically not tailored for specific needs of First Nations people.

 

Similarly, Volunteering Australia research has pointed to lower levels of formal volunteering among multicultural and multifaith populations in Australia. The reasons for this underrepresentation are complex and include socio-economic, cultural, and often language and settlement related factors. Research acknowledges that it is vital for the Australian volunteering ecosystem to address these factors and make volunteering spaces more inclusive to increase volunteering among people from diverse backgrounds. According to research conducted by Volunteering Australia and the Settlement Council of Australia, volunteering has been found to have direct positive benefits for new arrivals physical and mental health, improved access to healthcare and promoted cultural and social integration. These factors have a direct correlation to successful settlement and subsequently improves the overall wellbeing of individuals.

 

The department will provide one-off funding through procurements to whole-of-government suppliers for media placement; and benchmarking, tracking and evaluation research. The Department of Finance's Communication Advice Branch has assigned the communication suppliers that will assist in the development of the campaign, which includes:

*         developmental research;

*         media buy;

*         public relations;

*         First Nations communication;

*         culturally and linguistically diverse communication; and

*         benchmarking, tracking, and evaluation research

 

The campaign will be developed in accordance with Australian Government Advertising Campaign Governance Arrangements and the Guidelines on Information and Advertising Campaigns by non-corporate Commonwealth entities.

 

The department will manage all contracts for the above services and evaluate and report on the performance of the campaign. Universal McCann, the Australian Government's master media agency under the Central Advertising System (CAS), will provide a proposed media strategy. Hall and Partners will conduct benchmarking, tracking and evaluation research services under a Deed of Standing Offer with the Commonwealth.

 

The Government Communications Sub-committee will provide oversight of the campaign with the certification of the campaign provided by the Secretary of the department.

 

Procurement decisions will be made in accordance with the Commonwealth resource management framework, including the PGPA Act and the CPRs. The department will provide an opportunity for suppliers and tenderers to make complaints if they wish, and to receive feedback. These complaints and inquiries can be made at any time during the procurement process and will be handled in accordance with probity requirements. Information about the tender and the resultant contracts will be made available on AusTender (www.tenders.gov.au) once the contracts are signed. Procurement decisions will be based on value for money, including capability and capacity to deliver, and price and risk considerations.

 

Final procurement and spending decisions for the campaign will be made by a delegate of the Secretary of the department. Future procurement and spending decisions for the campaign extension will be made by the Secretary of the department or by an appropriate SES official with relevant knowledge and experience, including in relation to campaigns.

 

Independent merits review would not be appropriate for this program because decisions made with respect to the procurement relate to the allocation of a finite resource from which all potential claims for a share of the resource cannot be met. A reallocation of funding that has already been made to another party would be affected by overturning the original decision. In addition, these decisions are budgetary decisions of a policy nature, rather than decisions immediately affecting any particular person's interests. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.14 to 4.18 of the ARC guide).

 

In addition, the re-making of a procurement decision after entry into a contractual arrangement with a successful provider is legally complex, impractical, and could result in delays to delivery of the campaign which involves a significant public interest element. 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.

 

Procurement decisions made in connection with the campaign must be consistent with the Government's campaign advertising framework. This framework requires all campaign advertising to be placed through the CAS using the master media agency, Universal McCann; campaigns to be evaluated by Hall and Partners using the whole-of-government campaign evaluation framework; and communication suppliers to be engaged through the Government Communications Campaign Panel, a mandatory whole-of-government panel of communication suppliers. A decision to use a communication supplier is therefore procedural in nature and the review of such a decision would not result in a different outcome. The ARC has recognised that it is justifiable to exclude such decisions as they are automatic or mandatory in nature and there is nothing on which a merits review can operate (see paragraphs 3.8 to 3.12 of the ARC guide).

 

The department has consulted with the Department of Finance, Volunteering Australia and the specialist communications suppliers assigned to the campaign regarding the best approach and target audience for the campaign.

 

Funding of $3.0 million in 2023-24 for the campaign will come from Program 2.1.6: Volunteering and Community Connectedness, 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 52.

 

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));

*         the race power (section 51(xxvi));

*         the immigration power (section 51(xxvii)); and

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

 

Communications power

 

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

 

The campaign will be delivered through a range of communication channels that may include the internet (for example social media), television, radio, Google search ads, and other digital platforms. This will be informed by outcomes of the development research.

 

Race 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 the campaign will be used to encourage the take up of volunteering to benefit Aboriginal and Torres Strait Islander peoples.

 

Immigration power

 

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

 

Moving to a new country can be a difficult and stressful experience. The campaign will be used to encourage the participation of newly arrived migrants in volunteering. This in turn will assist them build their lives in finding, and engaging in, community.

 

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.

 

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

 

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

 

In particular, Article 3 requires States Parties to take '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'.

 

The campaign aims to facilitate the advancement of women by removing barriers to their participation in volunteering.

 

CRPD

 

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

*         Article 4 of the CRPD 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 19 of the CRPD provides that States Parties to the Convention 'recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community.

 

The campaign will fund activities aimed at removing barriers to volunteering for people with disability, which will facilitate the full inclusion and participation of persons with disability in the community.

 

Convention on the Rights of the Child (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. In particular, Article 6(2) of the CRC provides that States Parties ensure to the maximum extent possible the survival and development of the child.

 

Through the campaign, targeted public relations activities will occur to highlight how young people under 18 can participate in volunteering as a way to engage with their communities. The campaign promotes Articles 4 and 6(2) of the CRC as it will be aimed at removing barriers to volunteering for children. This in turn will facilitate the development and wellbeing of the child and provide opportunities for a child's development that they would otherwise lack.

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. 5) 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 FFSP Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FFSP 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 FFSP Regulations specify the arrangements, grants and programs. The powers in the FFSP 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 2023 amend Schedule 1AB to the FFSP Regulations to establish legislative authority for government spending on certain activities to be administered by the Department of Social Services.

 

This disallowable legislative instrument adds the following table items to Part 4 of
Schedule 1AB:

• table item 631 'Behaviour Support Training Program'; and
• table item 632 'Volunteering Awareness Campaign'.

 

Table item 631 - Behaviour Support Training Program

 

Table item 631 establishes legislative authority for government spending on the Behaviour Support Training Program (the program).

 

The program will develop targeted behaviour support training for workers and providers, who deliver supports to National Disability Insurance Scheme (NDIS) participants with a psychosocial disability. The aim of the program is to increase the capability of disability support workers to implement behaviour support plans and increase the quality of life of NDIS participants with psychological disability through the provision of safe and high-quality positive behaviour support services.

 

The behaviour support function aims to improve the quality of life for NDIS participants through the creation of individualised strategies that are responsive to the individual's needs and reduce and eliminate the use of restrictive practices. Restrictive practice means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability. The participants will benefit from higher quality care and greater access to workers who are appropriately skilled to implement behaviour support plans and manage behaviours of concern.

 

Funding of $3.5 million over two years from 2022-23 will be available for the development and implementation of the program through the NDIS Quality and Safeguards Commission.

 

Human rights implications

 

Table item 631 engages the following rights:

• the right to health - Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2 and Article 25 of the Convention on the Rights of Persons with Disabilities (CRPD), read with Article 4;
• the right to liberty of movement and security of person - Article 14 of the CRPD; and
• the right to habilitation and rehabilitation - Article 26 of the CRPD.

 

Right to health

 

Article 2 of the ICESCR requires that each State Party to the Covenant undertake steps, to the maximum of its available resources, especially economic and technical, to realise the rights recognised in the Covenant, particularly through legislative measures.

 

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

 

Article 4 of the CRPD 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 25 of the CRPD recognises that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation.

 

The program promotes the right to health, by using the resources available to allow NDIS participants with a psychosocial disability, to enjoy the highest attainable standard of mental health. The behavioural support function aims to improve the quality of life for NDIS participants through the creation of individualised strategies that are responsive to the individual's needs and reduce and eliminate the need the use of restrictive practices. The participants will benefit from higher quality care and greater access to workers who are appropriately skilled to implement behaviour support plans and manage behaviours of concern.

 

Right to liberty of movement and security of person

 

Article 14 of the CRDP requires States Parties to ensure that persons with disabilities, on an equal basis with others, enjoy the right to liberty and security of person and are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

 

The program will support the right to liberty of movement and security of person, by enabling disability providers and workers to have the appropriate capabilities to deliver behaviour support. This will reduce the need for NDIS participants with a psychosocial disability to be subject to restrictive practices, which is a practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability.

 

Right to habilitation and rehabilitation

 

Article 26 requires States Parties to take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.

 

To that end, States Parties should organise, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services, in such a way that these services and programmes:

 

(a)    begin at the earliest possible stage and are based on the multidisciplinary assessment of individual needs and strengths and (b) support participation and inclusion in the community, are voluntary and are available to persons with disabilities as close as possible to their own communities, including in rural areas.'

 

The program will support the right to habilitation and rehabilitation by reducing and eliminating the need for disability providers and workers to use restrictive practices for persons with psychosocial disabilities and instead provide appropriate habilitation and rehabilitation services. It will also inform the expansion of behaviour support training across the care and support sector and aim to address concerns of the limited number of competent disability support workers with appropriate skills to support NDIS participants with behaviour support plans.

 

Conclusion

 

Table item 631 is compatible with human rights because it promotes the protection of human rights.

 

Table item 632 - Volunteering Awareness Campaign

 

Table item 632 establishes legislative authority for government spending on the Volunteering Awareness Campaign (the campaign) which aims to remove barriers to volunteering by raising awareness and improving understanding of volunteering amongst the public.

 

Volunteers play a vital role in improving the health and wellbeing of families across Australia and volunteering is pivotal to strengthening the Australian community. Volunteering also increases community participation and sense of belonging and reduces social isolation. Recent research conducted to inform the development of the National Strategy for Volunteering 2023-2033 (National Strategy) has shown a substantial decline in volunteering from 20.7 per cent in 2016 to 15.1 per cent in 2021, with COVID-19 contributing significantly to this decline.

 

The campaign seeks to address this declining rate of volunteering and encourage greater social and civic participation through volunteering as identified by the National Strategy by:

• encouraging more people, including First Nations peoples and newly arrived migrants, to become volunteers;
• highlighting the various ways in which people can contribute their time and skills to volunteering; and
• demonstrating the benefits of, and positive impact volunteering can have in creating thriving communities.

 

Funding of $3.0 million will fund a communications campaign for the delivery of a multi-faceted approach, which includes online advertising, promoting and demonstrating the benefits of volunteering, which will be further enhanced with targeted public relations activities for the following groups:

• people with disability;
• First Nations people;
• newly arrived migrants;
• women, to facilitate their advancement by removing barriers to their participation in volunteering; and
• children aged under 18.

 

Human rights implications

 

Table item 632 engages the following rights:

• the right to participate in recreational activities, sports and all aspects of cultural life - Articles 13 and 14 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read with Article 3;
• the right to the maximum extent possible the survival and development of the child - Article 6 of the Convention on the Rights of the Child (CRC), read with article 4; and
• the right of all persons with disabilities to live in the community, with choices equal to others - Article 19 of the CRPD; read with Article 4.

 

Right to participate in recreational activities, sports and all aspects of cultural life.

 

The CEDAW requires States Parties to take a number of measures to protect the rights of women, including the right to equality with men, including in the fields of education and healthcare. States parties are also required to take into account the particular problems faced by women living in rural areas.

 

• 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 13(c) requires States Parties to 'take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular the right to participate in recreational activities, sports and all aspects of cultural life.
• Article 14(f) requires States Parties to take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural area to participate in all community activities.

 

The campaign promotes the rights of women by removing barriers to their participation in volunteer activities, in an equal manner to men, including women living in rural areas who often face particular barriers to participation in community activities and training. In addition, the diversity and inclusion aspects of the campaign activities are aimed at removing barriers to volunteering for women, which will facilitate the advancement of women by providing opportunities they do not otherwise enjoy.

 

Right to the maximum extent possible the survival and development of the child

 

The CRC requires States Parties to take a number of measures to protect the rights of children, including the right to life, survival and development, the right to health and education, and the right to engage in recreational activities and to participate in cultural life and the arts.

 

Australia has obligations to promote and protect the human rights and fundamental freedoms of the child. In particular:

• Article 4 requires States Parties to 'undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention'.
• Article 6(2) requires States Parties to 'ensure to the maximum extent possible the survival and development of the child'.

 

The campaign promotes the rights of children to develop to their fullest potential by removing barriers they face to volunteering. Thereby facilitating their development and wellbeing through participation in community and cultural activities, as well as educational opportunities.

 

Right of all persons with disabilities to live in the community, with choices equal to others

 

The CRPD requires States Parties to take a number of measures to protect the rights of people with disabilities, including promoting awareness of the capabilities and contributions of persons with disabilities, the right to health, education, work, inclusion and participation in the community and in cultural life and the arts.

 

Australia has obligations to promote and protect the human rights and fundamental freedoms of all persons with disabilities and to promote respect for their inherent dignity. In particular:

• 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 'all appropriate legislative, administrative and other measures' to implement rights recognized in this Convention.
• Article 19 requires States Parties to 'facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community'.

 

The campaign promotes the rights of disabled persons by providing them with the right to live in the community, with choices equal to others, to participate in the community, via volunteering. This will be facilitated by identifying barriers that may prevent this cohort from participating in volunteering in community, and educating organisations on what they can do to ensure that this cohort are able to effectively participate through volunteering.

 

Conclusion

 

Table item 632 is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance