Financial Framework (Supplementary Powers) Amendment (Health and Aged Care Measures No. 2) Regulations 2022

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Finance

Financial Framework (Supplementary Powers) Act 1997

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 (Health and Aged Care Measures No. 2) Regulations 2022 (the Regulations) amend Schedule 1AB to the Principal Regulations to establish legislative authority for government spending on certain activities to be administered by the Department of Health and Aged Care:

Funding is provided for:

a grant to The Shepherd Centre (TSC) – for deaf children to establish TSC facilities and expand TSC’s HearHub digital health platform to provide clinical support and other resources to support children with hearing loss ($6.5 million over three years from 2022-23);
a grant to the World Wellness Group Limited for upgrades to the existing infrastructure and facilities at its multicultural health clinic in Brisbane to support improved access to health services (including general practice, mental health and allied health services) for people of culturally and linguistically diverse backgrounds ($0.1 million in 2022-23); and
the National Nurse and Midwife Health Service to fund services (including counselling and other support services, and referral services) for nurses and midwives, and nursing and midwifery students, experiencing health issues ($25.2 million over five years 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 Department of Health and Aged Care.

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

(Health and Aged Care Measures No. 2) Regulations 2022

Section 1 – Name

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Health and Aged Care 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 3 of Schedule 1AB (table)

This item adds two new table items to Part 3 of Schedule 1AB to establish legislative authority for government spending on certain activities to be administered by the Department of Health and Aged Care (the department).

New table item 61 establishes legislative authority for the Government to provide a grant to The Shepherd Centre (TSC) – for deaf children, which will enable the establishment of TSC facilities and expansion of the TSC’s HearHub digital health platform to provide clinical support and other resources to support children with hearing loss.

The grant to TSC will implement the Government’s Better Care for Australian Children with Hearing Loss election commitment. The funding will support children with hearing loss and their families by establishing TSC facilities to provide services including speech and communication skills development, life skills and emotional resilience.

Hearing loss is the most common disability diagnosed at birth, rising from 1 in 1000 at birth to 1 in 300 by school age due to acquired and developing hearing loss. TSC has provided services to support children with hearing loss for over 50 years. TSC is part of the First Voice network, which includes South Australia’s Can do Group, Queensland’s Hear and Say Centre, Western Australia’s Telethon Speech and Hearing and Victoria’s Next Sense.

Funding of $6.5 million over three years from 2022-23 will be provided to TSC to:

establish TSC facilities in the Macarthur Region (Oran Park - New South Wales), Launceston and Hobart (Tasmania); and
expand TSC’s HearHub digital health platform to provide clinical support and resources for children with hearing loss (aged 0-18).

These new TSC facilities will ensure children with hearing loss in the Macarthur region and Tasmania can access early support to ensure full engagement with education, employment and community. Each new service will be state-of-the-art and equipped with specially designed clinical facilities.

The new facility in Macarthur will address a gap in services for children and young people with hearing loss in South West Sydney. The Macarthur facility is expected to support more than 2,500 local region children with a hearing loss and their families over the next decade. Funding will support:

the purchase of property in Oran Park;
fit-out capital costs;
start-up professional services; and
upgrade TSC’s Liverpool site to support the new Macarthur centre.

The two facilities in Tasmania will provide a comprehensive reach across the state and will support over 50 children and their families per year within three years of establishment. Funding will support:

the purchase of suitable properties;
fit-out for the facilities;
professional services required for the construction of the centres; and
furnishing, communications, physical accessibility and clinical and office equipment for the facilities.

The HearHub is expected to support over 9,000 Australian children with hearing loss and related communication difficulties such as autism spectrum disorder. Funding would increase the number of clinical and educational resources available from 4 to over 40. Funding will support:

software development, to optimise data sharing through the HearHub platform, and to establish functionalities which integrate HearHub with systems used by client organisations (for example, clinical databases);
development, testing, evaluation and refinement of clinical tools and programs for use on HearHub. This includes expenditure on content development by TSC’s clinical experts, software design and development, content production (for example multimedia tutorials for users), and testing/evaluation by TSC’s Clinical and Research teams; and
commercial scaling and export activities for HearHub, including crucial localisation strategies for target regions.

The department will provide funding to TSC through a non‑competitive grant process. The grant opportunity guidelines and the grant agreement 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 grant will be made available on the GrantConnect website (www.grants.gov.au), and the grant will be administered by the Community Grants Hub, which is part of the Department of Social Services. The Assistant Secretary, Hearing Services and Chronic Conditions Branch, as 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 TSC.

Independent merits review is not considered suitable for decisions made for the grant to the recipient as the grant will be closed, non-competitive and for a specific purpose and entity. The grant involves an allocation of a finite resource to TSC for the specific purpose of establishing new TSC facilities and expand the TSC HearHub digital platform. Further, TSC has a proven history of establishing new facilities, with multiple facilities currently operational. Therefore, it is unlikely that review of the decision would result in another service provider being selected and the process of seeking a review application would delay the channelling of funds into the program, which would then delay the establishment of TSC and the provision of care to participants in the program. 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’s guide))

Consultation has occurred directly with TSC to understand their existing services and the department will continue to consult and work with TSC on the establishment of the facilities and expansion of the HearHub to ensure they meet with the program’s objective.

Funding of $6.5 million to TSC is included in the 2022-23 October Budget under the measure ‘Shepherd Centres – better care for Australian children with hearing loss’ for a period of three years commencing in 2022-23. Details are set out in Budget October 2022-23, Budget Measures, Budget Paper No. 2 at page 138.

Funding for this item will come from Program 2.2: Hearing Services, which is part of Outcome 2. Details are set out in the Budget October 2022-23, Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.9, Health and Aged Care Portfolio at page 78.

Noting that it is not a comprehensive statement of relevant constitutional considerations, the purpose of the item references the following powers of the Constitution:

the external affairs power (section 51(xxix));
the communications power (section 51(v)); and
the social welfare power (section 51(xxiiiA)).

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 Rights of Persons with Disabilities [2008] ATS 12 (CRPD)

Australia is a party to the CRPD. States Parties to the CRPD are required to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability (Art 4(1)).

Article 25(a) provides that States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability, including the same range, quality and standard of free or affordable health care and programmes as provided to other persons.

The funding to TSC for the establishment of TSC’s facilities, and the expansion of the HearHub digital platform, will contribute to the provision of health services needed by persons with disabilities specifically because of their disabilities (ie hearing loss), including early identification and intervention.

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

Australia is a party to the CRC. Article 4 imposes a general obligation on States Parties to implement, through appropriate legislative or administrative measures, the rights set out in the CRC, and in particular its obligations to:

ensure the extension of assistance to a child with a disability (ie hearing loss) which is appropriate to the child’s condition (Art 23(2));
design such assistance to ensure the disabled child has effective access to education, training, health care services etc in a manner conducive to social integration and individual development (Art 23(3)); and
ensure the provision of necessary medical assistance and health care (Art 24(2)(b)).

The funding to TSC for the establishment of TSC’s facilities, and the expansion of the HearHub digital platform, will ensure children with a hearing loss have access to appropriate services, education etc in a manner conducive to social integration and individual development.

International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR)

Australia is a party to the ICESCR. States Parties to the ICESCR are required to take steps with a view to achieving progressively the full realisation of the rights recognised in the Covenant by all appropriate means (Art 2(1)).

Article 12 provides:

The steps to be taken by States Parties to achieve the full realisation of the right to enjoyment of the highest attainable standard of physical and mental health (as required by Art 12(1) are specified in Art 12(2)) and include:

steps necessary for ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’ (Art 12(2)(c)); and
steps necessary for ‘the creation of conditions which would assure to all medical service and medical attention in the event of sickness’ (Art(2)(d)).

The funding to TSC for the establishment of TSC’s facilities, and the expansion of the HearHub digital platform, will contribute to the delivery of services at the facilities and via the digital platform that are directed at treating a disease (ie hearing loss).

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 funding to TSC will expand the HearHub digital platform by improving system capability and developing content and tools to be delivered online.

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 medical services (not so as to authorise any form of civil conscription).

The funding to TSC for the establishment of TSC’s facilities, and the expansion of the HearHub digital platform, will contribute to the provision of Commonwealth-funded medical services at the facilities.

New table item 62 establishes legislative authority for the Government to provide a grant to the World Wellness Group Limited for upgrades to the existing infrastructure and facilities at its multicultural health clinic in Brisbane. The upgrades will provide improved access to health services, including gender specific services, to support people of culturally and linguistically diverse (CALD) backgrounds including general practice, mental health, allied health, asylum health care, as well as community education and resources.

The initiative is part of the Government’s $349.9 million package for the Investing in Our Communities Program to deliver small scale community, sport and infrastructure projects across Australia. This is a closed grants program to deliver the Government’s election commitments.

The initiative aligns with the Australian Government’s primary care reforms and priorities to promote health equity and deliver better health and wellbeing outcomes for all Australians. Equitable access to better health care and support services for people from CALD backgrounds is a key focus under the Government’s program of primary care reform.

The Australian healthcare system can be difficult to navigate for some population groups, including people from CALD backgrounds. This is highlighted in the Australian Government’s Future focused primary health care: Australia’s Primary Health Care 10 Year Plan 2022–2032, which focused on strengthening primary health care as part of the health system and providing an agenda for primary health care reform over a decade. Details of the Australia’s Primary Health Care 10 year plan is available at https://www.health.gov.au/resources/publications/australias-primary-health-care-10-year-plan-2022-2032.

The World Wellness Group, established in 2011 in Brisbane by health workers with
not-for-profit and public sector has experienced in multicultural and mental health with a goal to deliver high quality, accessible and affordable multicultural health and wellbeing services for migrants, refugees and people seeking asylum. The World Wellness clinic provides bulk billing general practice services including women’s health services to a diverse patient group.

People from CALD communities in Australia often experience inequities in health and health care as they face a range of barriers to accessing appropriate healthcare. These include language barriers, cultural perceptions of mental illness and stigma and negative past experiences including exposure to trauma and racism. Culturally appropriate care is important to achieving good health outcomes for people from CALD communities. This was highlighted during the COVID-19 pandemic as these communities tended to experience higher infection rates and poorer health outcomes.

The department will provide funding to the World Wellness Group through a one-off, closed non-competitive grant process. The grant will be administered in accordance with the Commonwealth resource management framework, including the PGPA Act and the CGRGs.

Grant opportunity guidelines will be developed and information about the grant will be made available on the GrantConnect website (www.grants.gov.au). The grant will be administered by the Community Grants Hub. A delegate of the Secretary of the department will be responsible for approving Commonwealth funding provided to the World Wellness Group for the upgrades. The delegate (at the SES level) will have the appropriate skills, experience and knowledge of the grant in accordance with the department’s Accountable Authority Instructions and the FF(SP) Act.

Independent merits review of decisions made in connection with the grant would not be considered appropriate because these decisions involve an allocation of a finite resource and the provision of a one-off grant to a certain service provider, over other service providers. The World Wellness Group were chosen as the staff have 30 years’ worth of experience in terms of providing health supports to multicultural communities across a breadth of services and accreditation that includes Social Enterprises certification by Social Traders, Australian Charities and not-for-profit accreditation.

The World Wellness Group was determined to be an appropriate organisation to pursue a one‑off grant. 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 ACR’s guide).

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 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.

Consultation with the World Wellness Group commenced following the 2022-23 October Budget and the department will continue to work with the World Wellness Group to ensure arrangements include appropriate safeguards to ensure the funding is spent appropriately and in line with the program’s objective.

Funding of $0.1 million in 2022-23 to the World Wellness Group is included in the
2022-23 October Budget under the measure ‘Responsible Investment to Grow Our Regions’. Details are set out in Budget October 2022-23, Budget Measures, Budget Paper No. 2
2022-23 at page 163.

Funding for this item will come from Program 1.5: Preventive Health and Chronic Disease Support, which is part of Outcome 1. Details are set out in the Budget October 2022-23, Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.9, Health and Aged Care Portfolio at page 51.

Noting that it is not a comprehensive statement of relevant constitutional considerations, the purpose of the item references the following powers of the Constitution:

the external affairs power (section 51(x0xix)); and
the social welfare power (section 51(xxiiiA).

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.

International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR)

Australia is a party to the ICESCR. Pursuant to Article 2(1), States Parties to the ICESCR are required to ‘take steps…to the maximum of its available resources, with a view to achieving progressively the full realization’ of this right by all appropriate means. Article 12(2) further provides a non-exhaustive list of ‘steps’ to be taken by States Parties to achieve the full realisation of the right to health, including:

steps necessary for ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’ (Art 12(2)(c)); and
steps necessary for ‘the creation of conditions which would assure to all medical service and medical attention in the event of sickness’ (Art 12(2)(d)).

The grant to the World Wellness Group to fund upgrades will provide improved access to services to support people of culturally and linguistically diverse backgrounds including general practice, mental health, allied health, and asylum healthcare, with a view to preventing, treating and controlling diseases and assuring medical services and attention in the event of sicknesses.

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 ‘medical and dental services (but not so as to authorise any form of civil conscription)’.

The grant to the World Wellness Group will enhance Commonwealth-funded medical services provided by the clinic.

Item 2 – In the appropriate position in Part 4 of Schedule 1AB (table)

This item adds one new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on an activity administered by the department.

New table item 571 establishes legislative authority for government spending on the National Nurse and Midwife Health Service (NNMHS).

The Government will invest $25.2 million over five years to establish and deliver the NNMHS to provide counselling and health support services to nurses, midwives and nursing and midwifery students. This delivers on the Government’s election commitment published in Labor’s Plan for a Better Future.

The objective of the NNMHS is to ensure that nurses and midwives and nursing and midwifery students can access the health support they require. This is required to address reported escalating rates of fatigue, stress and burnout experienced during the COVID-19 pandemic. Investing in health and wellness support for nurses and midwives will also contribute to a stronger, more resilient workforce.

The NNMHS will provide a welcoming, soft entry point for participants with a range of health concerns. Participants will have access to free, confidential and independent advice, support, information, treatment and specialist referrals. The services will be delivered to participants by registered nurses, enrolled nurses, nurse practitioners and midwives – referred to in total as clinicians. The clinicians will provide participants with a tailored, case managed service. When participants require assistance outside the scope of the clinician’s practice or beyond the scope of the health service, clinicians will assist participants to access the support they require, including referral to medical specialists (for example, a psychiatrist), allied health professionals (for example, a psychologist), specialist family violence service providers or specialist drug and alcohol clinics.

The NNMHS will be accessible nationally via telephone and, in some areas, in person at central hubs and regional offices. The national rollout is expected to include four central hub locations and two to three regional offices. The central hubs will include:

Victoria and Tasmania;
New South Wales and Australian Capital Territory;
South Australia and Western Australia; and
Queensland and Northern Territory.

Funding will be provided to the Australian Nursing and Midwifery Federation (ANMF) to deliver the program nationally. The program will be modelled on the Nursing and Midwifery Health Program Victoria (NMHPV), a not-for-profit service helping nurses in Victoria since 2006. It is envisaged that the NNMHS will operate alongside the NMHPV.

The department will deliver the NNMHS through a procurement and grant in accordance with the Commonwealth resource management framework, including the PGPA Act, the Commonwealth Procurement Rules (CPRs) and the CGRGs. The national rollout of the NNMHS will commence with the establishment phase (November 2022 to 30 June 2023) followed by the program delivery phase (1 July 2023 to 30 June 2027).

In the establishment phase of the NNMHS, the ANMF will be engaged to provide project planning services through a procurement. The ANMF will be approached via a limited tender process due to an absence of competition for technical reasons. This is based on ANMF’s national reach (eight state and territory branches with more than 310,000 members), significant nursing and midwifery expertise, established networks including strong relationships with NMHPV and the department, existing infrastructure and demonstrated capability and capacity to establish and deliver the program in line with government requirements.

The project planning services provided by the ANMF will involve the development of a detailed implementation plan for the program based on consultation with key stakeholders including the Australian and state and territory government, service providers and nursing peak bodies. The implementation plan will outline: governance structure, reporting hierarchy, reporting database, monitoring and evaluation plan, financial costings, communications strategy and recruitment plan.

The contract will be reported on the department’s website and on AusTender within 42 days of entering into the contract.

The Minister for Health and Aged Care (the Minister) or the appropriate delegate will be responsible for the final decision relating to the procurement process, consistent with the PGPA Act. The delegate (at Executive Level 2 or above) will have the relevant skills, qualification and understanding of the program in order to perform this administrative function, including the assessment and approval of the procurement and entry into the administration of the procurement agreement.

The program delivery phase will be enabled via a grant process in accordance with the CGRGs. This will involve a restricted non-competitive selection process whereby the ANMF will be invited to submit an application for the grant. The reason for this approach is consistent with procurement as outlined above.

The department will develop grant opportunity guidelines which will be available online on GrantConnect. The grant will be administered by the Community Grants Hub.

The program delivery phase will involve the ANMF coordinating the delivery of the NNMHS across Australia. This will include managing the central hubs and regional offices (including initial set-up), employing and training staff, establishing and maintaining networks, developing and maintaining strong stakeholder relationships, implementing the communications strategy, complying with reporting obligations, ensuring appropriate risk management and allocating financial resources. The ANMF will ensure an effective national governance structure supports the NNMHS including a Board of directors. The Board’s composition will comprise of experts from relevant professions as well as representatives from a First Nations peak body, the Government and the ANMF.

The Minister or the appropriate delegate will be responsible for the final decision relating to the grant process, consistent with the FF(SP) Act. The delegate (at the SES level) will have the relevant skills, qualification and understanding of the program in order to perform this administrative function, including the assessment and approval of the grant and entry into the administration of the grant agreement.

The decisions to fund the ANMF through a procurement and grant are not suitable for an independent merits review. Both decisions involve an allocation of a finite resource and the provision of one-off funding 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).

Following a due diligence process, it was determined that the ANMF was best positioned to receive one‑off funding to initially provide project planning services for the establishment of the NNMHS (procurement) and then to the deliver the NNMHS (grant). The ANMF is in a unique position based on its national reach (eight state and territory branches with more than 310,000 members), significant nursing and midwifery expertise, established networks including strong relationships with NMHPV and the department, existing infrastructure and demonstrated capability and capacity to establish and deliver the program in line with government requirements. There is no other organisation that can compete with the ANMF’s capabilities.

The review and audit process undertaken by the 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.

The department has consulted with the ANMF and NMHPV in relation to the NNMHS. During the establishment phase, the ANMF (supported by NMHPV) will develop a detailed implementation plan for the program based on consultation with key stakeholders including the Australian and state and territory government, service providers and nursing peak bodies.

This consultation is expected to occur in early 2023.

Funding of $19.2 million for the NNMHS is included in the 2022-23 October Budget under the measure ‘National Nurse and Midwife Health Support’ for a period of four years commencing in 2022-23. An additional funding of $6 million will be available in 2026-27. Details are set out in the Budget October 2022-23, Budget Measures, Budget Paper No. 2 at page 133.

Funding for this item will come from Program 1.4: Health Workforce, which is part of Outcome 1. Details are set out in the Budget October 2022-23, Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.9, Health and Aged Care Portfolio at page 51.

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 (section 51(xxiiiA); and
the external affairs power (section 51(xxix)).

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 medical services.

Expenditure on the NNMHS would involve the delivery of services by clinicians acting within the scope of their practice involving the treatment of medically recognised conditions or the assessment of medically recognised conditions with a view to providing medical treatment and improving the quality and effectiveness of nurse and midwife medical services.

External affairs power

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

Australia is a party to the CEDAW. Article 2 condemns discrimination against women; Article 5(a) provides that States Parties modify the social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices; Article 16 provides that States Parties take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family matters.

Expenditure on the NNMHS would support services to assist women experiencing domestic or family violence.

International Covenant on Civil and Political Rights [1980] ATS 23 (ICCPR)

Australia is a party to the ICCPR. Article 2 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 by the Covenant. Article 7 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment of punishment. Article 17 provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation.

Expenditure on the NNMHS would support family violence services directed to male nurses and midwives in some contexts.

International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR)

steps necessary for ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’ (Art 12(2)(c)); and
steps necessary for ‘the creation of conditions which would assure to all medical service and medical attention in the event of sickness’ (Art 12(2)(d)).

Expenditure on the NNMHS would involve support of services aimed at preventing or treating mental health diseases, or services that assure medical service and attention in the event of sickness.

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 (Health and Aged Care 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 (Health and Aged Care Measures No. 2) Regulations 2022 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities administered by the Department of Health and Aged Care.

This disallowable legislative instrument makes the following amendments to Part 3 of Schedule 1AB:

adds table item 61 ‘Grant to The Shepherd Centre – for deaf children’; and
adds table item 62 ‘Grant to World Wellness Group Limited’.

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

adds table item 571 ‘National Nurse and Midwife Health Service’.

Table item 61 - Grant to The Shepherd Centre – for deaf children

Table item 61 establishes legislative authority for the Government to provide a grant to The Shepherd Centre (TSC) – for deaf children, which will support the establishment of TSC facilities and expansion of the TSC’s HearHub digital health platform to provide clinical support and other resources to support children with hearing loss.

Funding of $6.5 million over three years from 2022-23 will be provided to TSC to:

establish clinical centres in the Macarthur Region (Oran Park - New South Wales), Launceston and Hobart (Tasmania); and
expand TSC’s HearHub digital health platform to provide clinical support and resources for children with hearing loss (aged 0-18).

The Macarthur facility is expected to support more than 2,500 local region children with a hearing loss and their families. The two facilities in Tasmania will provide a comprehensive reach across the state and will support over 50 children and their families per year within three years of establishment. The HearHub is expected to support over 9,000 Australian children with hearing loss and related communication difficulties (such as autism spectrum disorder).

Human rights implications

Table item 61 engages the following human rights:

the right of the disable child to special care – Article 23 of the Convention on the Rights of the Child (CRC), read with Article 4;
the right to medical assistance and health care – Article 24 of the CRC; and
the right to the enjoyment of the highest attainable standard of health – Article 25 of the Convention on the Rights of Persons with Disabilities (CRPD), read with Article 4.

Right of the disable child to special care

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.

Article 23 of the CRC recognises that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community. It further recognises the right of the disabled child to special care and encourages assistance which is appropriate to the child's condition and to the circumstances (Article 23(2)). It also allows a disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development (Article 23(3)).

TSC facilities provide specialist listening and spoken language therapies to help children learn to speak and communicate as effectively as a child with typical-hearing. Child and family counselling is also provided to develop children’s social skills, and support the emotional wellbeing of the child and their parents, to help navigate the challenges of a hearing disability.

Right to medical assistance and health care

Article 24 of the CRC recognises the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. In particular, to ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care (Article 24(2)(b)).

TSC services include (but are not limited to) paediatric audiology; a cochlear implant program and specialist listening and spoken language therapy. Children are provided the support they need to enjoy the highest attainable standard of health. TSC is also an approved National Disability Insurance Scheme (NDIS) provider.

Right to the enjoyment of the highest attainable standard of health

Article 4 of the CRPD requires States Parties to undertake to ensure and promote the full realisation of all human rights for those with a disability without discrimination.

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.

As noted above, TSC services include (but are not limited to) paediatric audiology; a cochlear implant program and specialist listening and spoken language therapy. Children are provided hearing care and the emotional resilience support they need to enjoy the highest attainable standard of health.

Capital funding provided through table item 61 will enable TSC to increase the number of children with hearing loss receiving TSC services, including for speech and communication skills development, life skills and emotional resilience.

Conclusion

Table item 61 is compatible with human rights because it promotes the protection of human rights.

Table item 62 - Grant to World Wellness Group Limited

Table item 62 establishes legislative authority for the Government to provide a grant to the World Wellness Group Limited for upgrades to the existing infrastructure and facilities at its multicultural health clinic in Brisbane.

The upgrades will provide improved access to health services, including gender specific services, to support people of culturally and linguistically diverse (CALD) backgrounds including general practice, mental health, allied health, asylum healthcare, as well as community education and resources.

Funding of $0.1 million in 2022-23 will be used for upgrading the health clinic in order to have equitable access to better health care and support services for people from culturally and linguistically diverse backgrounds.

Human rights implications

Table item 62 engages the following rights:

the right to the enjoyment of the highest attainable standard of physical and mental health – Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2;
the right to equality and non-discrimination – Article 26 of the International Covenant on Civil and Political Rights (ICCPR), read with Article 2 and Article 3 of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), read with Article 2; and
the right to equal access to public services and public health, medical care, social security and social service – Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), read with Article 2 and Article 25 of the International Covenant on Civil and Political Rights (ICCPR), read with Article 2.

Right to the highest attainable standard of physical and mental health

Article 2 of the ICESCR requires that each State Party to the Covenant undertakes to guarantee the rights recognised in the Covenant to be exercised without discrimination of any kind, including race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 12 of the ICESCR recognises the right of everyone to the highest attainable standard of physical and mental health and outlines the steps to be taken by States Parties to achieve the full realisation of this right which include among others: the prevention, treatment and control of epidemic, endemic, occupational and other diseases.

Table item 62 will promote the right to the highest attainable standard of physical and mental health for people from culturally and linguistically diverse communities by funding upgrades to a clinic that will improve access to specialised services for these individuals and communities in Brisbane and outreach locations in Queensland. People from culturally and linguistically diverse communities in Australia often experience inequities in health and health care and culturally appropriate care is important to achieving good health outcomes. The clinic provides trauma-informed and culturally safe and appropriate services, including gender specific services, to support people of culturally and linguistically diverse backgrounds including general practice, mental health, allied health, asylum health care, as well as community education and resources. The measure addresses barriers for culturally and linguistically diverse communities in access equity while advancing fulfilment of optimal opportunity for equitable health outcomes.

Right to equality and non-discrimination

Article 2 of the ICCPR requires that each State Party to the Covenant undertakes to respect and ensure the rights recognised in the Covenant, adopt laws or other measures to give effect to these rights, and ensure an effective remedy to any person whose rights recognised in the Covenant are violated. 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’.

Article 2 of the CEDAW requires States Parties to condemn discrimination against women in all its forms and to pursue by all appropriate means a policy of eliminating discrimination against women and to undertake amongst others to embody the principle of equality of men and women in national constitutions and to ensure through law and other appropriate means, the practical realization of this principle.

Article 3 of the CEDAW requires that States Parties take all appropriate measures, 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.

Table item 62 supports the right to equality and non-discrimination for people from culturally and linguistically diverse backgrounds by funding upgrades to a clinic that provides culturally safe and appropriate care for these individuals and communities. The organisation to be funded, the World Wellness Group, specialises in working with multicultural population groups, and provides culturally safe services that address the barriers faced by culturally and linguistically diverse communities. These include language barriers, cultural perceptions of mental illness and stigma and negative past experiences including exposure to trauma and racism.

The upgrades to the clinic will support the right to equality of men and women as the clinic provides services for both women’s and men’s health, recognising differing cultural customs, practices and values globally which require the gender segregation of services in some cases. A health justice partnership within the clinic also provides pro bono legal support for clients of the clinic who are survivors of family and domestic violence.

Right to equal access to public services and public health, medical care, social security and social service

Article 2 of the CERD requires that each State Party condemn racial discrimination and undertake to eliminate racial discrimination in all its forms and promote understanding among all races including, among others, that States Parties shall take 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.

Article 5 (iv) of the CERD requires parties to prohibit and eliminate racial discrimination without distinction as to race, colour or national or ethnic origin, to equality before the law, notably in the enjoyment of the right to public health, medical care, social security and social services.

Article 2 of the ICCPR requires that each State Party to the Covenant undertakes to respect and ensure the rights recognised in the Covenant, adopt laws or other measures to give effect to these rights, and ensure an effective remedy to any person whose rights recognised in the Covenant are violated. Article 25(c) of the ICCPR recognises the right and opportunity, without any of the distinctions in Article 2 and without unreasonable restrictions to have access, on general terms of equality to public service in this country.

Table item 62 supports the right to public services including public health, medical care, social security and social service by improving access to these services for people from culturally and linguistically diverse background. The measure addresses the inequities in access to services that individuals and communities from culturally and linguistically diverse backgrounds often experience.

The clinic includes provision of services for general family medicine along with women’s and men’s health, recognising there are differing cultural customs, practices and values globally which require the gender segregation of services in some cases. A health justice partnership within the clinic also provides pro bono legal support for clients of the clinic who are survivors of family and domestic violence.

Conclusion

Table item 62 is compatible with human rights because it promotes the protection of human rights.

Table item 571 - National Nurse and Midwife Health Service

Table item 571 establishes legislative authority for government spending on the National Nurse and Midwife Health Service (NNMHS). The Government will invest $25.2 million over five years from 2022-23 to establish and deliver the NNMHS to provide counselling and health support services to nurses, midwives and nursing and midwifery students.

The NNMHS will provide a welcoming, soft entry point for participants with a range of health concerns. Participants will have access to free, confidential and independent advice, support, information, treatment and specialist referrals. The services will be delivered to participants by registered nurses, enrolled nurses, nurse practitioners and midwives – that in total are referenced as clinicians. The clinicians will provide participants with a tailored, case managed service. When participants require assistance outside the scope of the clincian’s practice or beyond the scope of the health service, clinicians will assist participants to access the support they require, including referral to medical specialists (for example, a psychiatrist), allied health professionals (for example, a psychologist), specialist family violence service providers or specialist drug and alcohol clinics.

Victoria and Tasmania;
New South Wales and Australian Capital Territory;
South Australia and Western Australia; and
Queensland and Northern Territory.

Human rights implications

Table item 571 engages the following right:

the right of everyone to the enjoyment of the highest attainable standard of physical and mental health – Article 12 of the ICESCR, read with Article 2; Article 25 of the CRPD, read with Article 4 and Article 24 of the CRC read with Article 4.

Right of everyone to the enjoyment of the highest attainable standard of physical and mental health

Article 4 of the CRPD requires States Parties to undertake to ensure and promote the full realisation of all human rights for those with a disability without discrimination.

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.

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.

Article 24 of the CRC recognises the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health.

The health and wellbeing of nurses has been impacted by the COVID-19 pandemic with reported escalating rates of fatigue, stress and burnout. The NNMHS seeks to ensure that nurses, midwives and nursing and midwifery students have access to the support services they need to improve their health and wellbeing. This is consistent with Article 12 of the ICESCR which recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

The NNMHS will take appropriate measures to ensure that clinicians provide the same quality of care to participants with disabilities as to others. Further, it will ensure that the services are accessible to participants with disabilities. This is consistent with Article 25 of the CRPD which 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.

The NNMHS recognises that there may be nursing and midwifery students accessing the service who are children. The NNMHS will ensure that child participants are provided with the support services they require. This is consistent with Article 24 of the CRC which recognises the rights of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health.

Conclusion

Table item 571 is compatible with human rights because it promotes the protection of human rights.

Senator the Hon Katy Gallagher

Minister for Finance

Administered by Department of Finance

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