Details of the Financial Framework (Supplementary Powers) Amendment (Employment, Skills, Small and Family Business Measures No. 4) Regulations 2019

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Employment, Skills, Small and Family Business Measures No. 4) Regulations 2019.

 

Section 2 - Commencement

 

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

 

Section 3 - Authority

 

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

 

Section 4 - Schedules

 

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

 

Schedule 1 - Amendments

 

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

 

This item adds a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on an initiative that will be administered by the Department of Employment, Skills, Small and Family Business (the department).

 

New table item 366 establishes legislative authority for government spending on the Industry Training Hubs pilot (the pilot).

 

The Government will provide funding for the pilot to establish ten Industry Training Hubs (Training Hubs), which will be located in ten regions across Australia with high youth unemployment. The first two Training Hubs will be established from January 2020, with the remaining eight from January 2021. The pilot may be extended to other regions and, depending on the results of the pilot, Training Hubs may be implemented nationally.

 

The pilot will test approaches to eliminate persistent high youth unemployment and create sustainable employment outcomes for regions and the broader economy. The Training Hubs will better connect local industry and schools to help students transition from school to training and work.

 

The pilot aims to improve opportunities for young people in regions with high youth unemployment. The pilot will target year 11 and 12 students, and:

*         encourage young people to build skills and choose occupations in demand in their region

*         create better linkages between schools and local industry and reposition vocational education and training as a first choice option

*         help eliminate persistent high youth unemployment in regional areas.

 

The department will undertake an open tender procurement process to appoint a facilitator to deliver services in each of the ten pilot locations. Contracts with facilitators will require the facilitator to develop proposals for projects to meet particular local training requirements and submit them to the department for consideration. The department will manage a project fund for each of the pilot locations. If the department approves a project, it will make funds available accordingly.

 

In developing project proposals for the department's consideration, facilitators will be required to consult with local stakeholders such as schools, students and employers. Facilitators will have flexibility to tailor the projects to local needs. Examples of activities which the projects may involve are training for careers advisers and apprentice supervisors, workshops, information sessions, outreach strategies and advertising campaigns aimed at connecting industry, employers and schools.

 

Procurement decisions will be made in accordance with the Commonwealth's resource management framework, including the Public Governance, Performance, Accountability Act 2013 and the Commonwealth Procurement Rules 2019. 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.

 

A delegate of the Secretary of the department will be responsible for determining the successful tenderers. Information on the tender and the resultant contracts will be made available on AusTender once the contracts are signed.

 

In accordance with usual practice, procurement decisions, once made, will be final, and not subject to merits review. Re-making a procurement decision after entry into contractual arrangements with a successful proponent would be legally complex, impractical and result in delays to the commencement of facilitators. 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 for redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

 

A decision by the department not to fund a project proposed by a facilitator would not be suitable for merits review as finite resources are involved and reversing such a decision would mean that another project in the area could not be funded. In any case, not funding a project would be unlikely to have a material effect on the interests of any particular schools or employers. This is because the overall aim of the projects is to increase the capacity of the facilitator to address local requirements as they are identified.

 

In practice, most projects under the pilot will be broadly available rather than limited to one school. Projects are also likely to involve not only school students but career advisers, teachers, and others such as apprentice supervisors or parents. If a person is excluded from participating in a project, for example if a student is excluded from a project, it is likely to be because of an automatic decision, for example because the eligibility requirements for the project relate to attendance of a particular school and the student does not attend that school.

 

Also, even if there is no project at a school under this program, students at that school will still be able to access other vocational education and training initiatives at the school, meaning that it is unlikely that the interests of any particular students will be materially affected due to a decision in relation to a project.

 

Nonetheless, the department will review such a decision if requested by a person who is dissatisfied with a decision to exclude them from participating in a project.

 

In the event the request is made to the department, the department will handle the matter by acknowledging receipt of the request and contacting the individual with a view to resolving any issues as soon as practicable. The department will review the issue and work with the complainant and the facilitator to address it where needed. The department will respond to the complainant regarding the outcome of their request for review.

 

A person dissatisfied with a facilitator's decision or a decision by the department can raise the matter with the Commonwealth Ombudsman. The Ombudsman is independent of both the department and facilitators. The Ombudsman has the power to ask the department to answer questions about the treatment of the person by a facilitator or the department, or to provide records about the person's dealings with the facilitator or department, or other relevant documents or information.

 

If the Ombudsman decides to investigate in response to a complaint, and makes any recommendations, the department could require the facilitator to implement the recommendations. The department gives weight to the Ombudsman' s recommendations and is required to respond to the Ombudsman as to what it has done in response to any recommendations. Failure to adequately respond could lead to adverse public reporting by the Ombudsman.

 

Funding of $50.6 million was included in the 2019-20 Budget under the measure ' Skills Package - delivering skills for today and tomorrow' over four years from 2019-20. Details are set out in the Budget 2019-20, Budget Paper No. 2 Part 2: Expense Measures at page 69.

 

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 social welfare power (s 51(xxiiiA))

*         the external affairs power (s 51(xxix))

*         the territories power (s 122).

 

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 certain social welfare benefits, including benefits to students.

 

The Training Hubs will benefit students in the pilot regions and support school-based education, through the provision of activities such as workshops, information sessions and outreach strategies connecting industry, employers and schools.

 

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.

 

The Training Hubs pilot gives effect to Australia's obligations under the following treaties:

*         the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122), particularly Articles 1 and 2;

*         the International Labour Organization's Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources (ILO Convention 142), particularly Articles 1, 2 and 4;

*         the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Article 6; and

*         the Convention on the Rights of the Child (CRC), particularly Article 28.

 

Article 1(1) of the ILO Convention 122 requires Members to 'declare and pursue ... an active policy designed to promote full, productive and freely chosen employment.' Article 1(2) specifies that this policy shall aim to ensure that (among other things) 'there is work for all who are available for and seeking work'. Article 2 further requires Members 'decide on and keep under review ... the measures to be adopted for attaining the objectives specified in Article 1', and to 'take such steps as may be needed ... for the application of these measures'.

 

The objective of the Training Hubs pilot is consistent with the intention of improving employment outcomes for individuals. In particular, the Hubs aim to trial methods to improve the link between the training available to individuals through the vocational education and training system in Australia, and the skills that employers need. The Hubs will contribute to full, productive and freely chosen employment by increasing the opportunity for each worker to use their skills in a job to which they are well suited.

 

Article 1(1) of the ILO Convention 142 obliges Members to 'adopt and develop comprehensive and co-ordinated policies and programmes of vocational guidance and vocational training, closely linked with employment'. Article 1(2) requires that the policies and programs adopted for the purposes of Article 1(1) take due account of matters including 'employment needs, opportunities and problems, both regional and national'. Article 2 of the ILO Convention 142 obliges each Member to 'establish and develop open, flexible and complementary systems of general, technical and vocational education, educational and vocational guidance and vocational training, whether these activities take place within the system of formal education or outside it'. Article 4 of the ILO Convention 142 obliges each Member party to 'gradually extend, adapt and harmonise its vocational training systems to meet the needs for vocational training throughout the life of both young persons and adults in all sectors of the economy and branches of economic activity and at all levels of skill and responsibility'.

 

The outcomes of the Training Hubs pilot will inform government policy development, and decision-making about ways to improve existing policies of vocational guidance and training.

Article 2(1) of the ICESCR obliges each State Party to take steps 'to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures'. In particular, Article 6(1) of the ICESCR provides that States Parties recognise the 'right to work' and Article 6(2) provides that States Parties shall take steps to 'achieve full realization of this right' including 'technical and vocational guidance and training programmes, policies and techniques to achieve ... full and productive employment.'

 

The Training Hubs promote the right to work by improving opportunities for young people in regions with high youth unemployment. The Hubs will encourage young people to build skills and choose occupations in demand in their region and help eliminate persistent high youth unemployment in regional areas.

 

Article 4 of CRC obliges each State Party to undertake 'all appropriate legislative, administrative, and other measures for the implementation of the rights in the present Convention'.  Under Article 28 of the CRC, each State Party recognises the right of the child to education and is obliged to 'encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need'. 

 

The Training Hubs will target year 11 and 12 students, many of whom will be under 18 years old.

 

Territories power

 

Section 122 of the Constitution empowers the Parliament to 'make laws for the government of any territory'. The pilot will involve funding activities in or in relation to a Territory as a Training Hub would be located in Alice Springs in the Northern Territory.

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Employment, Skills, Small and Family Business Measures No. 4) Regulations 2019

 

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

 

Overview of the Legislative Instrument

 

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

 

The Financial Framework (Supplementary Powers) Amendment (Employment, Skills, Small and Family Business Measures No. 2) Regulations 2019 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on the Industry Training Hubs pilot (the pilot). The Department of Employment, Skills, Small and Family Business (the department) has administrative responsibility for this spending activity.

 

The Government will provide funding for the pilot to establish ten Industry Training Hubs (Training Hubs), which will be located in ten regions across Australia with high youth unemployment. The first two Training Hubs will be established from January 2020, with the remaining eight from January 2021. The pilot may be extended to other regions and, depending on the results of the pilot, Training Hubs may be implemented nationally.

 

The pilot will test approaches to eliminate persistent high youth unemployment and create sustainable employment outcomes for regions and the broader economy. The Training Hubs will better connect local industry and schools to help students transition from school to training and work.

 

The pilot aims to improve opportunities for young people in regions with high youth unemployment. The pilot will target year 11 and 12 students, and:

*         encourage young people to build skills and choose occupations in demand in their region

*         create better linkages between schools and local industry and reposition vocational education and training as a first choice option

*         help eliminate persistent high youth unemployment in regional areas.

 

 

Human rights implications

 

The instrument engages the following human rights:

*         the right to work; and

*         the right to education, including the right of the child to education.

 

Table item 366 gives effect to Australia's obligations under the following treaties:

*         the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122), particularly Articles 1 and 2;

*         the International Labour Organization's Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources (ILO Convention 142), particularly Articles 1, 2 and 4;

*         the International Covenant on Economic, Social and Culture Rights (ICESCR), particularly Article 6; and

*         the Convention on the Rights of the Child (CRC), particularly Article 28.

 

The right to work

 

Article 1(1) of the ILO Convention 122 requires Members to 'declare and pursue ... an active policy designed to promote full, productive and freely chosen employment.' Article 1(2) specifies that this policy shall aim to ensure that (among other things) 'there is work for all who are available for and seeking work'. Article 2 further requires Members 'decide on and keep under review ... the measures to be adopted for attaining the objectives specified in Article 1', and to 'take such steps as may be needed ... for the application of these measures'.

 

Article 2(1) of the ICESCR obliges each State Party to take steps 'to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures'. In particular, Article 6(1) of the ICESCR provides that States Parties recognise the 'right to work' and Article 6(2) provides that States Parties shall take steps to 'achieve full realization of this right' including 'technical and vocational guidance and training programmes, policies and techniques to achieve ... full and productive employment'.

 

Table item 366 promotes the right to work. In particular, the Training Hubs aim to trial methods to improve the link between the training available to individuals through the vocational education and training system in Australia, and the skills that employers need. The Training Hubs will contribute to full, productive and freely chosen employment by increasing the opportunity for each worker to use their skills in a job to which they are well suited, and thereby help to reduce youth unemployment.

 

The right to education, including the right of the child to education

 

Article 1(1) of the ILO Convention 142 obliges Members to ‘adopt and develop comprehensive and co-ordinated policies and programmes of vocational guidance and vocational training, closely linked with employment'. Article 1(2) requires that the policies and programs adopted for the purposes of Article 1(1) take due account of matters including 'employment needs, opportunities and problems, both regional and national'.

 

Article 2 of the ILO Convention 142 obliges each Member to 'establish and develop open, flexible and complementary systems of general, technical and vocational education, educational and vocational guidance and vocational training, whether these activities take place within the system of formal education or outside it'.

 

Article 4 of the ILO Convention 142 obliges each Member party to 'gradually extend, adapt and harmonise its vocational training systems to meet the needs for vocational training throughout the life of both young persons and adults in all sectors of the economy and branches of economic activity and at all levels of skill and responsibility'.

 

Article 4 of the CRC obliges each State Party to undertake 'all appropriate legislative, administrative, and other measures for the implementation of the rights in the present Convention’. 

 

Under Article 28 of the CRC, each State Party recognises the right of the child to education, and is obliged to ‘encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need'. 

 

Table item 366 promotes the right to education, including the right of the child to education. The pilot will target year 11 and 12 students and provide career advice and mentoring. The Training Hubs will also create better linkages between school and local industry and promote vocational education and training as a potential first-choice option.

 

In addition, the outcomes of the pilot will inform policy development, and decision-making about ways to improve existing policies of vocational guidance and training.

 

Conclusion

 

This instrument is compatible with human rights as the pilot promotes the right to work and the right to education, including the right of the child to education.

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance