EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Finance

Financial Framework (Supplementary Powers) Act 1997

Financial Framework (Supplementary Powers) Amendment

(Attorney-General’s Portfolio Measures No. 2) Regulations 2022

The Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) confers on the Commonwealth, in certain circumstances, powers to make arrangements under which money can be spent; or to make grants of financial assistance; and to form, or otherwise be involved in, companies. The arrangements, grants, programs and companies (or classes of arrangements or grants in relation to which the powers are conferred) are specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the Principal Regulations). 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 Principal Regulations are exempt from sunsetting under section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015 (item 28A). If the Principal Regulations were subject to the sunsetting regime under the Legislation Act 2003, this would generate uncertainty about the continuing operation of existing contracts and funding agreements between the Commonwealth and third parties (particularly those extending beyond 10 years), as well as the Commonwealth’s legislative authority to continue making, varying or administering arrangements, grants and programs.

Additionally, the Principal Regulations authorise a number of activities that form part of intergovernmental schemes. It would not be appropriate for the Commonwealth to unilaterally sunset an instrument that provides authority for Commonwealth funding for activities that are underpinned by an intergovernmental arrangement. To ensure that the Principal Regulations continue to reflect government priorities and remain up to date, the Principal Regulations are subject to periodic review to identify and repeal items that are redundant or no longer required.

Section 32B of the FF(SP) Act authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Principal Regulations. Section 32B also authorises the Commonwealth to make, vary and administer arrangements for the purposes of programs specified in the Principal Regulations. Section 32D of the FF(SP) Act confers powers of delegation on Ministers and the accountable authorities of non-corporate Commonwealth entities, including subsection 32B(1) of the Act. Schedule 1AA and Schedule 1AB to the Principal Regulations specify the arrangements, grants and programs.

Section 65 of the FF(SP) Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Financial Framework (Supplementary Powers) Amendment (Attorney-General’s Portfolio Measures No. 2) Regulations 2022 (the Regulations) amend Schedule 1AB to the Principal Regulations to establish legislative authority for government spending on certain activities administered by the Attorney-General’s Department.

Funding is provided for the:

Justice Services—education and training for the justice sector on family, domestic and sexual violence program to support the education and training of persons involved in the enforcement and administration of the law (including legal practitioners, judicial officers, court administrators and law enforcement officers) about family, domestic and sexual violence ($6.7 million over five years from 2022-23); and
Justice Services—justice reinvestment program to reduce the incarceration of Aboriginal and Torres Strait Islander people by funding justice reinvestment initiatives ($81.5 million over four years from 2022-23).

Details of the Regulations are set out at Attachment A. A Statement of Compatibility with Human Rights is at Attachment B.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The Regulations commence on the day after registration on the Federal Register of Legislation.

Consultation

In accordance with section 17 of the Legislation Act 2003, consultation has taken place with the Attorney-General’s Department.

A regulation impact statement is not required as the Regulations only apply to non‑corporate Commonwealth entities and do not adversely affect the private sector.

Details of the Financial Framework (Supplementary Powers) Amendment

(Attorney-General’s Portfolio Measures No. 2) Regulations 2022

Section 1 – Name

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Attorney-General’s Portfolio Measures No. 2) Regulations 2022.

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 administered by the
Attorney-General’s Department (the department).

New table item 565 establishes legislative authority for government spending on the Justice Services—education and training for the justice sector on family, domestic and sexual violence program (the program). The program aims to support the education and training of persons involved in the enforcement and administration of the law about family, domestic and sexual violence (FDSV).

The program forms part of the Women’s Safety measure towards initiatives to reduce all forms of FDSV against women and children. These measures will form part of the Commonwealth’s contribution to implementation of the National Plan to End Violence Against Women and Children 2022-2032 (the National Plan), available at https://www.dss.gov.au/women-programs-services-reducing-violence/the-national-plan-to-end-violence-against-women-and-children-2022-2032.

The education and training developed under the program will be made available to professionals in the justice sector, including law enforcement, judicial officers, legal practitioners and family law professionals. The education and training will improve participants’ understanding of the nature and impacts of FDSV, enhance their capacity to address FDSV offending, and enable them to engage with victim-survivors of FDSV and their families with a trauma-informed approach.

Targeted training and education of professionals in the justice sector will benefit
victim-survivors of FDSV and their communities by reducing the risks of re-traumatisation during interactions with the legal system, and therefore aid in their journey towards recovery. Professional and effective training supports and reinforces other changes to address FDSV (for example legislative change) that can vary across jurisdictions and otherwise fail without the necessary accompanying changes to culture and practice.

The program will receive funding of $6.7 million over five years from 2022-23 to deliver national training and educational resources to enhance justice sector understanding and capability around engagement with victim-survivors of FDSV and their families. The program will include existing and new education and training as follows.

Training on how to identify and support victims of family violence (including victims of coercive control)

The measure includes training for legal practitioners on how to effectively identify and support victim-survivors of family violence, with a particular focus on coercive control. A provider will be engaged through a grants process, with the specific method yet to be determined. The objective of the training is to enhance legal practitioners’ knowledge about family safety and thereby improve the experience of FDSV victim-survivors when they engage with the justice system. The training would embed the National Principles to Address Coercive Control (expected to be finalised in 2023) as a common national foundation for legal practitioners and, subject to the design process, is expected to be delivered live online or in‑person over one full day.

Training for law enforcement officers on how to identify and respond appropriately to family, domestic and sexual violence

The measure will be achieved through the development and delivery of a national best practice package of educational materials that seek to train law enforcement on a series of complex FDSV-related matters. The training will have a focus on five separate FDSV streams: coercive control, sexual assault, child safety, technology-facilitated abuse, and attitudes and behaviours related to FDSV.

The training across all five streams will also deliver culturally-appropriate content, ensuring a focus on Aboriginal and Torres Strait Islander women and children, in recognition of the disproportionately high rates at which they experience FDSV when compared to non‑Indigenous Australians.

The objectives of the measure will ensure:

coordinated training across government agencies to ensure basic minimum standards, consistency in content and effective delivery methods;
collaboration between law enforcement and FDSV experts to develop a training package that uses innovative delivery methods and encourages maximum participation; and
recognition that while police jurisdictions have differing laws across these crime types, consistent training on identification and victim-centric, trauma-informed approaches is still needed.

A provider will be engaged through a procurement process to co-design and deliver the training package face-to-face to law enforcement officers over a two-year period, which includes a pilot program, followed by evaluation, before national roll out.

Training for judicial officers to be delivered by the National Judicial College of Australia

The measure includes professional development training (Family Violence in the Court) for judicial officers to be provided by the National Judicial College of Australia (NJCA). This measure will continue the existing Family Violence in the Court training initiative, by expanding the focus on coercive control and reflecting the new resources being created through the other initiatives in the program, such as the sexual assault and law enforcement training.

The Family Violence in the Court training initiative has previously been delivered by the NJCA to improve competency of judicial officers dealing with family law and family violence matters. Under this initiative, training will be delivered in all Australian jurisdictions on a regular, biannual basis with 17 to 25 participants per session. The sessions currently run for one full day. The NJCA has also developed online eLearning modules for judicial officers unable to attend the face-to-face sessions, and will continue developing modules as new content arises.

Maintaining the National Domestic and Family Violence Bench Book by the Australasian Institute of Judicial Administration

The measure includes maintaining and updating the National Domestic and Family Violence Bench Book (the Bench Book) by the Australasian Institute of Judicial Administration (AIJA), which will be engaged through a closed, non-competitive grants process. Established in 2017, the Bench Book is a national online resource for judicial officers which promotes best practice and consistency in judicial decision making in cases involving family and domestic violence. Regular updates to the Bench Book are required to reflect the latest academic literature, legislation, legal processes and case law relating to family and domestic violence, with a focus on developments in regards to coercive control. Future updates will also reflect the new resources being created through this new Justice Services – education and training program, such as the sexual assault and law enforcement training.

Education, training or information on the nature and impacts of family, domestic and sexual violence

The measure includes education, training or information on the nature and impacts of FDSV. This includes a national foundational education resource for the justice sector on myths and misconceptions relating to sexual assault. A provider will be engaged through a targeted procurement process to develop the educational resource. The resource will be made available to the justice sector online, and may be distributed to judicial officers who attend the training and/or the conference mentioned below.

The NJCA will be engaged to develop and deliver a national training package for judicial officers on the myths, misconceptions, and drivers of sexual assault. The training program will enhance judicial understandings of sexual assault and its impacts on victim-survivors, and the importance of adopting a trauma-informed approach. The training will be delivered across Australian jurisdictions twice a year, with the duration of the training program to be determined through its development. An online component will also be developed, for judicial officers unable to attend in person.

The AIJA will be engaged through a closed, non-competitive grants process to develop and deliver a national conference for judicial officers on the nature and impacts of sexual assault. The conference will complement the judicial training package outlined above, and will contribute to the knowledge base around the nature and impacts of sexual assault, thereby enhancing the capability of judicial officers to engage with victim-survivors of sexual assault in a trauma-informed manner.

The service providers engaged to deliver the above elements of the program will be required to demonstrate the uptake and effective implementation of the program activities, which will contribute to the National Plan’s monitoring and evaluation framework.

The department will engage a number of service providers through a mixture of grant processes and procurements of services with funding:

for judicial training on the myths, misconceptions and drivers of sexual assault to be provided to the NJCA, a specialist organisation that provides national judicial education programs to enhance judicial skills, knowledge and performance through a closed, non‑competitive grants process;
for the national conference for judicial officers on the nature and impacts of sexual assault to be provided to the AIJA, a national institute that focuses on educational programs for judicial officers and other legal professionals, as a closed,
non-competitive grants process;
for the continued maintenance of the Bench Book to be provided to the AIJA through a closed, non-competitive grants process;
for the continued delivery of the Family Violence in the Court Training to be provided to the NJCA through a closed, non-competitive grants process; and
for the development and delivery of a coercive control training package for legal practitioners to be provided via a grant agreement to the successful applicant of a grants process. The specific grant method is yet to be determined.

The 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 (CGRGs).

Information about the grants, including the grant opportunity guidelines, will be made publicly available on the Government’s GrantConnect website (www.grants.gov.au), and the grants will be administered by the Community Grants Hub, which is part of the Department of Social Services (DSS). A delegate of the Secretary of the department under the Financial Framework (Supplementary Powers) Act 1997 (FF(SP) Act) will be responsible for approving Commonwealth funding provided to the selected service providers, including the NJCA and AIJA.

The delegate of the Secretary will be determined based on the monetary amount of the grant in question, as set out in the grant opportunity guidelines, once established. The guidelines will provide that:

if a grant application is below $5 million, the First Assistant Secretary, First Nations and Justice Policy Division in the department will make the final decision about the application;
if a grant application exceeds $5 million and is less than $10 million, the Deputy Secretary, Justice and Communities Group in the department will make the final decision about the application; and
if a grant application exceeds $10 million, the Secretary of the department will make the final decision about the application.

The department will procure the services of expert research and training bodies to develop and deliver the foundational educational resource on sexual assault myths and misconceptions for the justice sector, and to deliver the enhanced training for law enforcement on FDSV.

These procurements will be undertaken in accordance with applicable legislative requirements under the PGPA Act, the Commonwealth Procurement Rules (CPRs) and the department’s Accountable Authority Instructions.

For the foundational justice sector educational resource, a targeted procurement round will be used to ensure the provider selected has the specialised expertise required to produce a resource on sexual assault myths and misconceptions tailored to the justice sector, and in particular the judiciary.

For the enhanced training for law enforcement program, a range of procurement methods may be used, including open and limited tenders or procurements under existing arrangements. The selection of which procurement method to use for the law enforcement training has not yet been determined.

The approval of procurements will be made by the Secretary of the department or an appropriate spending delegate as determined by the financial limits set out in the spending delegations as detailed in the Public Governance, Performance and Accountability Financial Delegation which allow for:

EL2 – up to the limit of $250,000;
SES Band 1 – up to the limit of $2,500,000;
SES Band 2 – up to the limit of $5,000,000;
SES Band 3 – up to the limit of $10,000,000; and
Secretary – up to the limit of the total available appropriation and other resources available to the department.

The department will procure providers for the following services:

design, development and delivery of the foundational educational resource on sexual assault;
consultation with key justice sector stakeholders on the design of the foundational educational resource;
co-design and development of the law enforcement training package;
delivery of the law enforcement training pilot program;
evaluation of the law enforcement training pilot program; and
implementation of the national roll out of the law enforcement training package.

The department will, in relation to the procured services:

manage the contracts for the above procured services;
manage relationships with justice sector and FDSV stakeholders to promote the successful development and implementation of the law enforcement training package and of the educational resource;
undertake relevant reporting obligations;
manage feedback from recipient organisations of the law enforcement training package, and
mediate any issues arising between the contracted provider and recipient organisations of the law enforcement training package.

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.

Funding and procurement decisions made in connection with the program 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 (ARC) 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? (ARC’s guide)).

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 providing services and resources to users. 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.

Merits review of decisions made in connection with the grants under the program would not be considered appropriate because these decisions relate to the provision of a one-off grant to a certain service provider, over other service providers. The 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 ARC’s guide).

For the judicial training and judicial conference centred around improving the capability of judicial officers to manage sexual assault proceedings and engage with victim-survivors, the NJCA and the AIJA were determined to be appropriate organisations to pursue one-off,
ad hoc grants. The NJCA and AIJA are also considered to the most appropriate organisations to provide grants for the continued delivery of the Family Violence in the Court Training and the Bench Book. The NJCA and AIJA were determined to be the most appropriate organisations as they are the only organisations operating in Australia with a national remit and a proven capacity to develop and deliver specialised educational and training programs appropriately tailored to judicial officers, ensuring the delivery and uptake of the education and training, and its benefits, will be realised quickly. Due diligence processes will be conducted throughout the grants processes, prior to the distribution of any funds. This process will involve the verification of claims in the NJCA and AIJA’s project proposals, and the development of appropriate assessment methodologies.

The review and audit process undertaken by the Australian National Audit Office (ANAO) 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.

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 Government has consulted widely on addressing FDSV throughout extensive consultations on the development of the National Plan, which comprised the following key stages:

the House Standing Committee on Social Policy and Legal Affairs Inquiry into Family, Domestic, and Sexual Violence;
a public consultation, in the form of an online survey, hosted on the DSS Engage platform;
workshops and interviews throughout July, August, and September 2021 with 492 stakeholders;
a National Summit on Women’s Safety held from 6-7 September 2021, and
dedicated consultation with victim-survivor advocates.

The National Plan Stakeholder Consultation Report (the Report), prepared by Monash University, highlighted stakeholder views that there is a lack of specialised understanding of FDSV in the justice sector, including law enforcement and the courts, and pointed to the importance of education and training to provide the foundation for a shared understanding of FDSV. The Report also emphasised women’s lack of trust in the justice system, and the need for action to ensure a trauma-informed, culturally safe, and person-centred justice response to FDSV. The activities supported by this new Justice Services – education and training program respond to these stakeholder views.

The program was developed by the department in consultation with DSS, the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, and the Office of the eSafety Commissioner.

As part of the scoping study and development of the training package, Government will engage in extensive consultation with law enforcement agencies, government departments, and FDSV and child abuse experts to ensure national minimum basic standards are met and that the training appropriately and effectively addresses each stream. There will also be a requirement to consult with representatives of target cohorts, such as First Nations people, culturally and linguistically diverse communities, LGBTQIA+ people, and people with a disability to ensure training is built to appropriately consider the distinct needs and experiences of these cohorts.

Professional development on family violence and coercive control

The Standing Council of Attorneys-General officials-level Family Violence Working Group has conducted preliminary consultations on family violence training for legal practitioners with law societies, bar associations and the Law Council of Australia, who have indicated strong support for this idea. Further consultation with these bodies will occur once the National Principles to Address Coercive Control are finalised. Recommendation 26 of the Inquiry into Family, Domestic and Sexual Violence 2021 by the House Standing Committee on Social Policy and Legal Affairs also recommended that the Australian Government, and state and territory governments, develop and provide funding for training for the identification of coercive and controlling behaviour for police, justice and legal sector practitioners.

Consultation on the Bench Book occurred with an Advisory Board comprised of state and territory representatives and key stakeholders, including the Australian Institute of Family Studies and National Legal Aid. Consultation with the AIJA and the NJCA has also occurred. In 2021, the department funded the AIJA to conduct consultation with judicial officers on the coercive control content of the Bench Book.

Consultation with state and territory justice officials on education and training for the justice sector on sexual assault, including myths and misconceptions, has been undertaken via the Standing Council of Attorneys-General officials-level Working Group on Criminal Justice Responses to Sexual Assault. In addition, several state and territory-led consultation mechanisms have pointed to the need for justice sector education relating to sexual assault. For example, the Victorian Law Reform Commission 2021 Report Improving the Justice System Response to Sexual Offences recommended education for police, lawyers, judges and magistrates around sexual violence and the effects of trauma.

Consultation with the AIJA and the NJCA, as well as with a number of specialised FDSV research organisations and experts has also occurred. The department will continue to consult all relevant stakeholders throughout the design and delivery of these initiatives.

Service providers will also be required to engage with key stakeholders in the justice sector to ensure the products delivered are fit for purpose. The details of this consultation will form part of the contract negotiation process between the selected service providers and the department.

Funding of $4.1 million over four years from 2022-23 is included in the 2022-23 March Budget. Funding for the item will come from Program 1.4: Justice Services, which is part of Outcome 1. Details are set out in Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.2, Attorney-General’s Portfolio at pages 22-23.

Additional funding of $2.6 million for the program in included in the 2022-23 October Budget under the measure ‘Women’s Safety’ for a period of five years commencing in 2022-23. Details are set out in Budget October 2022-23, Budget Measures, Budget Paper No. 2 at pages 186-187.

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 external affairs power (section 51(xxix));
the express incidental power and the executive power (sections 51(xxxix) and 61), including the nationhood aspect; and
the express incidental power to the extent it relates to the Federal Judicature
(section 51(xxxix)).

Communications power

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

The education and training supported by the program may be provided using such services.

External affairs power

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation implementing Australia's obligations under international treaties to which it is a party.

Convention on the Elimination of All Forms of Discrimination against Women [1983] ATS 9 (CEDAW)

Australia has international obligations under the CEDAW. Gender-based violence, including FDSV, is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men.

In particular, Article 2 requires States Parties to ‘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 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 take 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’.

The program is directed at addressing FDSV (which would encompass such violence against women).

Convention on the Rights of the Child [1991] ATS 4 (CRC)

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

The program is directed at addressing FDSV (which would encompass such violence against children).

Executive power and express incidental power, including the nationhood aspect

The express incidental power in section 51(xxxix) of the Constitution empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested in 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.

The education and training supported by the program may be provided by entities that have a nationwide focus and that education and training relates to matters of national significance.

Express incidental power

The express incidental power in section 51(xxxix) of the Constitution relevantly empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested in the Federal Judicature by the Constitution.

Some of the education and training supported by the program will be provided by the Australasian Institute of Judicial Administration and National Judicial College of Australia for judicial officers who are part of the federal judicature or part of State Courts exercising federal jurisdiction.

New table item 566 establishes legislative authority for government spending on the Justice Services—justice reinvestment program (the program).

The program will deliver on the Government’s election commitment Justice Reinvestment – Turning the tide on incarceration and deaths in custody, to expand justice reinvestment initiatives across the country and help turn the tide on the disproportionately high rates of Aboriginal and Torres Strait Islander incarceration and deaths in custody.

In the 2022-23 October Budget, the Government committed $69 million over four years from 2022‑23 for multi-year justice reinvestment grants to enable up to 30 communities to establish locally tailored initiatives that address the underlying causes of incarceration and deaths in custody.

Supported initiatives may include First Nations community-led rehabilitation services, family and domestic violence support, mental health or homelessness supports, and school retention programs. In some cases, approved initiatives may include the purchase of assets or infrastructure, if directly related to enabling the effective delivery of justice reinvestment initiatives in communities. Funding may also be provided to assist in capacity building for communities to enable and inform future applications for justice reinvestment programs.

Existing community-led justice reinvestment models in Australia, such as those in Bourke (New South Wales) and Halls Creek (Western Australia), have proven successful in reducing incarceration and re‑offending by providing targeted supports and services in their communities. A 2017 KPMG assessment of the Maranguka Justice Reinvestment Project in Bourke found that the program delivered a 23 per cent reduction on recorded incidents of domestic violence, a 38 per cent reduction in charges across the top five juvenile categories, a 14 per cent reduction in bail breaches and a 42 per cent reduction in days spent in custody.

The Government has also committed $12.5 million over four years from 2022-23 to support the design and management of the national justice reinvestment program, and to establish an independent National Justice Reinvestment Unit (the Unit). Once established, and subject to final design, the Unit would likely perform the following critical functions:

providing practical support to First Nations communities to access funding and other resources to develop evidence-based justice reinvestment plans and strategies in local sites;
stakeholder and First Nations community engagement; and
technical data analysis, economic cost-benefit analysis, project monitoring, evaluation and research, and creating and sustaining partnerships across sectors, including federal, state and local governments, non-government organisations, private and philanthropic organisations.

Establishing the Unit was a key recommendation of the Australian Law Reform Commission’s (ALRC) 2018 Pathways to Justice report (Recommendation 4-2). The program will also implement the ALRC’s recommendation that Commonwealth, state and territory governments support justice reinvestment initiatives in partnership with Aboriginal and Torres Strait Islander communities (Recommendation 4-1) (https://www.alrc.gov.au/wp-content/uploads/2019/08/final_report_133_amended1.pdf).

The program was one of the Government’s First Nations Justice election commitments as part of its broader First Nations reform agenda. The program closely aligns with the aspirations of the Uluru Statement from the Heart (the Statement), as well as the National Agreement on Closing the Gap (the National Agreement) targets 10 and 11, which seek to reduce the overrepresentation of Aboriginal and Torres Strait Islander adults and young people in the criminal justice system. Both the Statement and National Agreement call for genuine partnership between First Nations people and the Government.

The Government is committed to working in true partnership with First Nations people, in line with Priority Reform One of the National Agreement, to implement these measures, and the voices of First Nations communities and justice reinvestment experts will be central to the design and implementation of the Unit and program. The Unit, once established, will be primarily responsible for the management of the $69 million of administered funding for the program over the four years, as well as the $20 million per year ongoing funding from 2026‑27.

Funding for these initiatives, and associated services partnerships, will be provided to successful applicants through a grants program administered by the Community Grants Hub. Grant opportunity guidelines will be developed by the department – in partnership with First Nations representatives – which will set out program objectives and grant selection processes, including eligibility and selection criteria. Once the guidelines are approved, they will be advertised, assessed and awarded in a manner consistent with the PGPA Act and the CGRGs.

Assessment of grant applications will be on its merits, based on how well they meet selection criteria published in the grant opportunity guidelines and whether it represents value with relevant money. Applications will be assessed by a panel of representatives with appropriate justice reinvestment expertise and including First Nations representation. Information about the grant program will be made available on the GrantConnect website (www.grants.gov.au).

A delegate of the Secretary of the department under the FF(SP) Act will be responsible for approving Commonwealth funding provided to successful applicants under the program, based on the recommendations of the panel and the availability of funds in the grant program.

The delegate of the Secretary will be determined based on the monetary amount of the grant in question, as set out in the guidelines for the program. The guidelines will provide that:

if a grant application is below $0.25 million, the Director, Justice Reinvestment Section in the department will make the final decision about the grant application;
if a grant application is below $2.5 million, the Assistant Secretary, Criminal Justice Reform Taskforce in the department will make the final decision about the grant application;
if a grant application is below $5 million, the First Assistant Secretary, First Nations and Justice Policy Division in the department will make the final decision about the grant application;
if a grant application exceeds $5 million and is less than $10 million, the Deputy Secretary, Justice and Communities Group in the department will make the final decision about that application; and
if a grant application exceeds $10 million, the Secretary of the department will make the final decision about that application.

The following approaches may be used to provide grant funding under the program:

a closed, non-competitive selection process. For example, applicants or organisations may be invited by the department to submit applications for a particular activity. In this case, the applications or proposals are not assessed against other applicants’ submissions but assessed individually against separate criteria that will be made available at the time of the process;
targeted or restricted non-competitive funding rounds. These funding rounds would be open to a small number of potential grant recipients based on the specialised requirements of the granting activity or project under consideration; and
an open, non-competitive funding round.

Funding of $12.5 million will support the design and management of the program, and establish an independent national justice reinvestment unit as recommended by the ALRC. The department may procure a number of partnership services to deliver this aspect of the program, in accordance with applicable legislative requirements under the PGPA Act, the CPRs and the department’s Accountable Authority Instructions.

The approval of procurements will be made by a spending delegate as determined by the financial limits set out in the spending delegations as detailed in the Public Governance, Performance and Accountability Financial Delegation which allow for:

EL2 – up to the limit of $250,000;
SES Band 1 – up to the limit of $2,500,000;
SES Band 2 – up to the limit of $5,000,000;
SES Band 3 – up to the limit of $10,000,000; and
Secretary – up to the limit of the total available appropriation and other resources available to the department.

A range of procurement methods may be used such as open and limited tenders or procurements under existing arrangements. The selection of which procurement method to use will depend on the activity. Final spending decisions will be made by the Secretary of the department or an appropriate delegate, as outlined above.

Funding decisions made in connection with the program are not considered suitable for independent merits review, as they will be decisions by government to allocate funding to programs or initiatives as a whole, and therefore budgetary decisions of a policy nature, rather than decisions immediately affecting any particular person's interests.

Further, both funding and procurement decisions for the program will relate to the allocation of a finite resource, from which all potential claims for a share of the resource cannot be met. Any funding that has already been allocated would be affected if the original decision was overturned. The ARC 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 ARC’s guide).

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 providing services to platform users. 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 Government will work with states and territories, First Nations people and other key stakeholders, including Change the Record, Just Reinvest NSW and the broader Justice Reinvestment Network Australia (JRNA), to identify further existing justice reinvestment initiatives which can be supported or expanded for early investment. This will support broader implementation by providing early data and evaluations to help inform future site selection and design.

An intersectional approach to consultation and co-design of the program will also ensure measures respond to the diverse needs of First Nations communities and peoples, including (but not limited to) Aboriginal and Torres Strait Islander children and young people, women, and people with a disability.

Funding of $81.5 million for the program is included in the 2022-23 October Budget under the measure ‘First Nations Justice’ for a period of four years commencing in 2022-23. Details are set out in Budget October 2022-23, Budget Measures, Budget Paper No. 2 at page 49.

Funding for this item will come from Program 1.6: Criminal Justice, which is part of Outcome 1. Details are set out in Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.2, Attorney-General’s Portfolio at page 24.

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

Race power

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

The program aims to benefit Aboriginal and Torres Strait Islanders by supporting justice reinvestment activities that address the underlying causes of the disproportionate incarceration of Aboriginal and Torres Strait Islander people.

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 (Attorney-General’s Portfolio Measures No. 2) Regulations 2022

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 (Attorney-General’s Portfolio Measures No. 2) Regulations 2022 (the Regulations) amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for Government spending on certain activities administered by the Attorney-General’s Department.

This disallowable legislative instrument makes the following amendments to Part 4 of Schedule 1AB:

adds table item 565 ‘Justice Services—education and training for the justice sector on family, domestic and sexual violence’; and
adds table item 566 ‘Justice Services—justice reinvestment’.

Table item 565 – Justice Services—education and training for the justice sector on family, domestic and sexual violence

Table item 565 establishes legislative authority for government spending on the Justice Services—education and training for the justice sector on family, domestic and sexual violence program (the program). The program aims to support the education and training of persons involved in the enforcement and administration of the law about family, domestic and sexual violence (FDSV).

The program forms part of the Women’s Safety measure towards initiatives to reduce all forms of FDSV against women and children. These measures will form part the Commonwealth’s contribution to the first plan of the National Plan to End Violence Against Women and Children 2022-2032.

The education and training developed under the program will be made available to professionals in the justice sector, including law enforcement, judicial officers, legal practitioners and family law professionals. The education and training will improve participants’ understanding of the nature and impacts of FDSV, enhance their capacity to address FDSV offending and enable them to engage with victim-survivors of FDSV and their families with a trauma-informed approach.

training for law enforcement officers on FDSV;
professional development for legal practitioners and the judiciary on family violence and coercive control; and
education and training for the justice sector on the nature and impacts of sexual assault.

Human rights implications

Table item 565 engages the following rights:

the right to equality and non-discrimination against women – Article 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read with Article 2;
the right to a fair hearing – Article 14 of the International Covenant on Civil and Political Rights (ICCPR), read with Article 2; and
the right to special care, assistance and protection of a child on dissolution of a marriage – Articles 3 and 19 of the Convention on the Rights of the Child (CRC), read with Article 4 and Articles 23 and 24 of the ICCPR.

Right to equality and non-discrimination against women

The CEDAW provides for key principles of equality which cover many aspects of women’s lives. In particular:

Article 2 provides that States Parties agree to pursue the elimination of discrimination against women, including by introducing new laws or policies, changing existing discriminatory laws and providing sanctions for discrimination where appropriate; and
Article 3 requires States Parties to take appropriate measures to ensure women’s full development and advancement, so that they can enjoy human rights and fundamental freedoms on the same basis as men.

Discrimination against women includes gender-based violence – that is, violence that is directed against a woman because she is a woman, or that affects women disproportionately. Although FDSV is perpetrated by people of all genders, and against people of all genders, the overwhelming majority of people who experience FDSV are women.

The education and training measures under the program seek to better protect victim-survivors of FDSV, and will therefore in turn address the impacts on women of gender-based violence. Victim-survivors of FDSV come into contact with a range of different justice professionals, from law enforcement to legal practitioners, the judiciary and the justice sector. These professionals may not always be equipped to engage with victim‑survivors in a trauma-informed manner. Upskilling a range of professionals in the justice and family law sectors will reduce the re‑traumatisation of victim-survivors of FDSV by ensuring professionals are well-equipped to respond to their needs.

Right to a fair hearing

Article 2 of the ICCPR provides that each State Party ‘undertakes to take the necessary steps … to adopt such laws or other measures as may be necessary’ to give effect to the rights recognised in the Covenant.

Article 14(1) of the ICCPR provides, amongst other things, the right to a fair hearing. This right entails that all persons are equal before courts and in the determination of a person’s rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 14(1) is designed to ensure that all parties to the proceedings in question are treated without discrimination.

The program seeks to deliver national resources and training aimed at enhancing understandings of FDSV and improving the capacity of justice sector professionals to adopt a trauma-informed approach to engagement with victim-survivors navigating the criminal law and family law systems. Engagement with the justice sector can expose victim-survivors to re‑traumatisation and can also affect their ability to fully engage with, and provide their best evidence in court processes. Upskilling justice sector professionals to respond to FDSV offences in a trauma-informed manner will enable these professionals to have a full understanding of the impacts and dynamics of FDSV, ensuring victim-survivors are appropriately supported to engage and fully participate in court processes, therefore promoting a victims’ right to a fair hearing.

Right to special care, assistance and protection of a child on dissolution of a marriage

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

The CRC recognises that children are entitled to special care and assistance, and that they should grow up in an atmosphere of happiness, love and understanding. In particular:

Article 3(1) of the CRC provides that in all actions concerning children, including by courts, the best interests of the child shall be a primary consideration;
Article 3(2) of the CRC provides that States Parties will take appropriate measures to ensure that children have the protection and care necessary for their well-being, and
Article 19(1) of the CRC provides that States Parties will take appropriate measures to protect children 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) or legal guardian(s).

The ICCPR provides for fundamental civil and political rights which derive from the inherent dignity of each person, and makes special provision for children. In particular:

Article 23(4) requires States Parties to take appropriate steps to ensure provision is made for the protection of children on the dissolution of a marriage, and
Article 24(1) provides for protection for all children, without discrimination, by virtue of their status as minors.

The program will advance the human rights outlined above as it seeks to deliver national resources and training aimed at enhancing understandings of FDSV and improving the capacity of justice sector professionals, including law enforcement, to adopt a trauma-informed approach to engagement with victim-survivors navigating family law and family violence systems, including where children are involved. Upskilling justice sector professionals will enable these professionals to have a full understanding of the impacts of FDSV, including the particular impacts upon children, and how to consider the best interests of the child in any decision making. Similarly, these measures support the provision of reliable evidence to the court, strengthening the court’s ability to protect children and make decisions in their best interests.

Conclusion

Table item 565 is compatible with human rights because it promotes the protection of human rights.

Table item 566 – Justice Services—justice reinvestment

Table item 566 establishes legislative authority for government spending on the Justice Services—justice reinvestment program (the program).

The program will deliver on the Government’s election commitment Justice Reinvestment – Turning the tide on incarceration and deaths in custody, to expand justice reinvestment initiatives across the country and help turn the tide on Aboriginal and Torres Strait Islander incarceration and deaths in custody.

Funding of $69 million over four years from 2022‑23 is provided for multi-year justice reinvestment grants to enable up to 30 communities to establish locally tailored initiatives that address the underlying causes of incarceration and deaths in custody. Supported initiatives may include First Nations community-led rehabilitation services, family and domestic violence support, mental health or homelessness supports, and school retention programs. In some cases, approved initiatives may include the purchase of assets or infrastructure, if directly related to justice reinvestment. Funding may also be provided to assist in capacity building for communities to enable and inform future applications for justice reinvestment programs.

Further funding of $12.5 million over four years from 2022-23 is provided to support the design and management of the program, and to establish an independent National Justice Reinvestment Unit (the Unit). Once established, and subject to final design, the Unit would likely perform the following critical functions:

providing practical support to First Nations communities to access funding and other resources to develop evidence-based justice reinvestment plans and strategies in local sites;
stakeholder and First Nations community engagement; and
technical data analysis, economic cost-benefit analysis, project monitoring, evaluation and research, and creating and sustaining partnerships across sectors, including federal, state and local government, non-government organisations, private and philanthropic organisations.

Human rights implications

Table item 566 engages the following rights:

the right to self-determination, enjoyment and benefit from culture – Articles 1 and 27 of the ICCPR, read with Article 2, Article 1 of the International Covenant on Economic Social and Cultural Rights (ICESCR), read with Article 2 and Article 2 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD);
the right to equality and non-discrimination – Article 26 of the ICCPR; and
the right for protection and right of liberty for children – Article 24 of the ICCPR and Article 37 of the CRC, read with Article 4.

Right to self-determination and right to enjoy and benefit from culture

Articles 1 of the ICCPR and ICESCR provide that all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 2 of the ICESCR provides that each State Party undertakes to take steps to the maximum of its resources, without discrimination to any party, to realise the rights recognised in the Covenant.

Article 27 of the ICCPR provides that in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Article 2(1) of the CERD provides that States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.

Table item 566 engages the right to self-determination as well as the right to enjoy and benefit from culture. These rights are positively engaged, as the Government will ensure funding reaches projects that are place-based, community led, and tailored to the needs of First Nations communities.

In recognition of the fact that First Nations communities are experts in their own lives, and hold the solutions to the issues that affect them, funding will support community-led and culturally-appropriate solutions to the underlying drivers and social determinants of offending and incarceration, including place-based challenges relating to family or domestic violence, youth engagement, homelessness, mental health, rehabilitation and school retention. In doing so, these measures will support First Nations communities to pursue their social and cultural development.

The voices of First Nations communities and experts will also be central to the design of the initiatives under this program, including to identify initiatives which could be supported or expanded.

Right to equality and non-discrimination

Article 26 of the ICCPR recognises the right to equality and non‑discrimination on, among other grounds: race, sex, colour, language, national origin or ‘other status’. This right is also reflected in Article 2 of the CERD.

Table item 566 engages and is consistent with Article 2(1) of the ICCPR and Article 2 of the CERD in that it recognises and responds to the overrepresentation of Aboriginal and Torres Strait Islander peoples in the criminal justice system.

As outlined below, to the extent that the measure will involve differential treatment based on Indigenous status, as beneficiaries of grants must be Aboriginal or Torres Strait Islander peoples, this can be justified because it is for a legitimate aim, based on reasonable and objective criteria, and proportionate to the aims of the measure.

As at 30 June 2021, First Nations people made up 30 per cent of the Australian prisoner population, despite comprising approximately three per cent of the Australian population. As at 31 March 2022, 512 First Nations people have died in custody since the release of the Royal Commission into Aboriginal Deaths in Custody over 30 years ago. The overrepresentation of First Nations people in the criminal justice system requires tailored and appropriate responses in order to achieve target 10 under the National Agreement to reduce the rate of Aboriginal and Torres Strait Islander adults held in incarceration by at least 15 per cent.

The program seeks to reduce the overincarceration of First Nations adults and young people through supporting community-led justice reinvestment initiatives across Australia. Successive parliamentary reports and inquiries, as well as academics and experts, have identified justice reinvestment as a key strategy for reducing the overincarceration of First Nations people, and addressing the pervasive social determinants of crime through prevention and diversion.

Right for protection and right of liberty for children

The ICCPR provides for fundamental civil and political rights which derive from the inherent dignity of each person, and makes special provision for children. In particular:

Article 24(1) provides for protection for all children, without discrimination, by virtue of their status as minors.

In addition, the following Articles of the CRC provide further protections, including:

Article 4 requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the CRC, and
Article 37(b) provides that ‘No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’.

The rates of incarceration for First Nations children, in addition to adults, remain unacceptably high. The program seeks to support the National Agreement Target 11, which aims to ensure Aboriginal and Torres Strait Islander young people are not overrepresented in the criminal justice system, and to reduce the rate of Aboriginal and Torres Strait Islander young people (10-17 years) in detention by 30 per cent by 2031.

Table item 566 engages and is consistent with Articles 24(1) of the ICCPR and 37(b) of the CRC in that it seeks to promote alternatives to the incarceration of young people, and ensure incarceration or imprisonment is a measure of last resort.

Conclusion

Table item 566 is compatible with human rights because it promotes the protection of human rights.

Senator the Hon Katy Gallagher

Minister for Finance

Financial Framework (Supplementary Powers) Amendment (Attorney-General’s Portfolio Measures No. 2) Regulations 2022

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