EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Finance
Financial Framework (Supplementary Powers) Act 1997
Financial Framework (Supplementary Powers) Amendment
(Health Measures No. 2) Regulations 2019
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 FF(SP) Act applies to Ministers and the accountable authorities of non‑corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.
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.
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. Schedule 1AA and Schedule 1AB to the Principal Regulations specify the arrangements, grants and programs.
The Financial Framework (Supplementary Powers) Amendment (Health Measures No. 2) Regulations 2019 (the Regulations) amend Schedule 1AB of the Principle Regulations to establish legislative authority for government spending to provide in hospital and at home support for women and their families after a stillbirth, miscarriage or newborn death. The Department of Health has administrative responsibility for the spending activity.
On 4 July 2019, the Minister for Health, the Hon Greg Hunt MP, announced the stillbirth package including piloting support services by SANDS.
The announcement was in response to the Senate Select Committee on Stillborn Research and Education Report, which made 16 recommendations on the continuum of care and support to reduce the rates of stillbirth in Australia – ranging from prevention, education, research and appropriate support following an episode.
The pilot services will be provided at over five hospital sites around Australia and will be available to hospitals that have previously identified a gap in their level of support to families immediately after the loss of their babies.
Funding of $1.3 million over two years from 2019-20 was included in the 2019-20 Budget under the measure ‘Supporting our Hospitals – Community Health and Hospitals Program’.
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 the instrument is registered 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.
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 Measures No. 2) Regulations 2019
Section 1 – Name
This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Health Measures No. 2) Regulations 2019.
Section 2 – Commencement
This section provides that the Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.
Section 4 – Schedules
This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.
Schedule 1 – Amendments
Item 1 – In the appropriate position in Part 4 of Schedule 1AB (table)
This item adds a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on an initiative that will be administered by the Department of Health (the department).
New table item 390 establishes legislative authority for government spending to provide in hospital and at home support for women and their families after a stillbirth, miscarriage or newborn death.
The Government will provide funding to SANDS to pilot the services in response to the Senate Select Committee on Stillborn Research and Education Report, which made 16 recommendations on the continuum of care and support to reduce the rates of stillbirth in Australia – ranging from prevention, education, research and appropriate support following an episode. The outcome of the pilot will inform future Government decisions.
SANDS is a registered charity organisation. Established in 1979, SANDS operates across Australia and is currently funded by the Government to provide a 24/7 phone support line, web chat, men’s support line and local face-to-face support in certain states. State governments and public hospitals, such as Queensland and the Royal Women’s Hospital in Melbourne, refer to SANDS as a key avenue of support for women coping with stillbirth or miscarriage.
The services provided by SANDS will include delivering an intensive support service for women and their families to improve their health outcomes while reducing the incidence of mental illness and the impost on primary care service providers. The support services will be provided in-hospital and post discharge.
The support services will be targeted at women immediately after an acute or secondary treatment for a stillbirth, miscarriage or a newborn death. These women and their families will be referred to the services by their treating physician and/or midwife at the hospital.
The services provided will commence in the hospital and continue when the woman and/or their family returns home. The support provider will have a first visit with the woman in hospital and a handover will occur between the midwife and the support worker.
Services will include up to ten visits over three months by a fully trained support worker, with links to health and medical services, who knows how to navigate the health system.
On referral to the services, a case plan will be prepared for each client in consultation with their treatment teams (i.e. physician, midwife, bereavement counsellor). The services will include:
- medical support – organising follow-up medical visits (supporting women to attend medical appointments), providing support during the post-mortem process and explaining the report findings, and organising appointments with other practitioners such as psychologists, counsellors, geneticists, reproductive health specialists or hospital administrators; and
- in-hospital support – will be aimed at reducing physiological distress on the client, such as funeral arrangements, memory making arrangements (e.g. take home the blanket, holding the baby, etc.), collection of ashes, and cancelling antenatal classes.
During the last month of the support service, assistance will be provided to the family to engage with other programs if needed (for example, support to access other Government programs, such as a one-off stillborn payment through Services Australia for eligible clients) and referral to other services including medical services as required. Feedback will be provided to the referring clinician/midwife as appropriate.
Peripheral services, through counsellors, would also be provided to assist affected mothers, and members of their families in transitioning back into the workforce; and/or supporting other children to cope with the loss and transition back to school. These services and appropriate communication with the school and teachers will ensure the best support for the grieving child is provided to reduce the risk of future mental health impacts.
Under the pilot, services will be provided via phone or video conferencing for rural/regional sites. A single visit will be offered if the location is within three hours of driving.
The pilot services will be provided at the following five hospital sites around Australia:
- Joan Kirner Women’s and Children’s Hospital – Western Health Victoria;
- Auburn Hospital – Western Sydney Local Health District;
- King Edward Memorial Hospital – Perth;
- The Royal Brisbane and Women’s Hospital – Brisbane; and
- Women’s and Children’s Hospital – Adelaide.
The five sites have been chosen based on population growth patterns over the years. The hospitals have previously identified a gap in their level of support to families immediately after the loss of their baby and had expressed keen interest to participate in the pilot.
SANDS will have a memorandum of understanding with the five trial hospitals and will also have program guidelines in place which are specific to each hospital.
Support workers will be appropriately trained and the clinical guidelines developed will encompass the principal of providing the right service(s) at the right time and in the right place for the best outcome.
Evaluation processes will be embedded within the service delivery model. The evaluation of the services will be independent and likely to be conducted by a tertiary institution or a Centre of Research Excellence.
The department will use a closed, non-competitive process to award the grant in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). In accordance with the CGRGs, grant guidelines will be developed and details of the grant will be made publicly available on GrantConnect (www.grants.gov.au). The SANDS proposal was assessed against the eligibility and assessment criteria in the grant guidelines. Following assessment of the proposal on its merit, the Minister for Health
(the Minister) made the final decision to approve funding. The department will be supported by the Community Grants Hub in the Department of Social Services to deliver the grant.
The Minister will be supported by a delegate from the department to consider whether any specific requirements need to be imposed as a condition of funding. The decision of the delegate is final in all matters, including the approval of the grant, the funding amount to be awarded and the terms and conditions of the grant.
The grant decision to support women and their families after a stillbirth will not be subject to independent merits review because the expenditure is one-off, time limited, for a specific purpose and to be delivered by a specific entity, SANDS. The grant will be directly negotiated and agreed with SANDS. No third party’s interests will be affected by the making of the grant to SANDS.
Funding of $1.3 million was included in the 2019-20 Budget under the measure ‘Supporting our Hospitals – Community Health and Hospitals Program’ for a period of 2 years commencing in 2019-20. Details are set out in Budget 2019-2020, Budget Measures,
Budget Paper No. 2 at page 107.
Noting that it is not a comprehensive statement of the relevant constitutional considerations, the objective of the item references the following powers of the Constitution:
- the external affairs power (s 51(xxix))
- the social welfare power (s 51(xxiiiA))
- the communications power (s 51(v)).
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.
Australia is a party to the International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR). Article 12(1) of the ICESCR recognises the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. Pursuant to Article 2(1), State 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 the State 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))
- 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)).
Under the pilot, grants will be provided for services to provide in hospital and at home support following stillbirth. This will include delivering an intensive support service by a physician or midwife for women and their families at risk of developing a mental health condition. The services are designed to provide particular kinds of support to women and families directed at reducing contributing factors to those mental health issues (e.g. stigma and isolation).
Australia is a party to the Convention on the Rights of the Child [1991] ATS 4 (CROC). Pursuant to Article 4, State parties to the CROC are required to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the Convention. Article 24 further provides that ‘State parties recognise 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…’
Under the pilot, grants will be provided for services to provide in hospital and at home support following stillbirth. This will include delivering an intensive support service by a physician or midwife for children whose mothers have had a stillbirth, and are at risk of developing a mental health condition. These services are designed to reduce the risk of mental health impacts on affected children.
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)’.
Under the pilot, grants will be provided for services to provide in hospital and at home support following stillbirth. This will include delivering an intensive support service for women and their families that have been medically diagnosed with a mental health condition or who are at risk of developing a mental health condition.
Communications power
Section 51(v) of the Constitution empowers the Parliament to make laws with respect to ‘postal, telegraphic, telephonic and other like services’.
Under the pilot, grants will be provided for services delivered online or by telephone to provide in hospital and at home support for women and their families following a stillbirth, miscarriage or newborn death.
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 Measures No. 2) Regulations 2019
This disallowable legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the FF(SP) Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The FF(SP) Act applies to Ministers and the accountable authorities of non‑corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.
The Financial Framework (Supplementary Powers) Amendment (Health Measures No. 2) Regulations 2019 amend Schedule 1AB to the FF(SP) Regulations to add a new table item 390 to Part 4 of that schedule. The new table item establishes legislative authority for the Government to provide funding to pilot services for in hospital and at home support following stillbirth, miscarriage and newborn death.
The support services will be targeted at women immediately after an acute or secondary treatment for a stillbirth, miscarriage or a newborn death. These women and their families will be referred to the services by their treating physician and/or midwife at the hospital.
The services provided will commence in the hospital and continue when the woman and/or their family returns home. The services will include:
- medical support – organising follow-up medical visits (supporting women to attend medical appointments), providing support during the post-mortem process and explaining the report findings, and organising appointments with other practitioners such as psychologists, counsellors, geneticists, reproductive health specialists or hospital administrators; and
- in-hospital support – will be aimed at reducing physiological distress on the client, such funeral arrangements, memory making arrangements (e.g. take home the blanket, holding the baby etc.), collection of ashes, and cancelling antenatal classes.
Peripheral services, through counsellors, would also be provided to assist affected women, and members of their families in transitioning back into the workforce; and/or supporting other children to cope with the loss and transition back to school. These services and appropriate communication with the school and teachers will ensure the best support for the grieving child is provided to reduce the risk of future mental health impacts.
Human rights implications
This instrument engages the following rights:
- International Covenant on Economic, Social and Cultural Rights (ICESCR)
Article 12(1) of the ICESCR recognises the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.
Grants will fund services in hospital and at home support following stillbirth. This will include delivering an intensive support service by a physician or midwife for women and their families at risk of developing a mental health condition. The services are designed to provide particular kinds of support to women and families directed at reducing contributing factors to those mental health issues (e.g. distress, sense of loss, stigma and isolation). Support would also be provided to assist affected women and members of their families to transition back into the workforce.
- Convention on the Rights of the Child [1991]
Under Article 4, parties are required to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the Convention.
Grants will fund services in hospital and at home support following stillbirth. This will include delivering an intensive support service for children whose mothers have had a stillbirth, and are considered by a physician or midwife to be at risk of developing a mental health condition. These services are designed to reduce the risk of mental health impacts on affected children. These services will also include appropriate communication with the school and teachers to ensure best support for the grieving child is provided to reduce the risk of future mental health impacts.
Conclusion
This instrument is compatible with human rights because it promotes the protection of human rights.
Senator the Hon Mathias Cormann
Minister for Finance