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. 5) Regulations 2021
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.
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. 5) Regulations 2021 (the Regulations) amend table item 470 ‘Commonwealth Disability Support for Older Australians’ in Part 4 of Schedule 1AB to the Principal Regulations. This table item provides legislative authority for government spending on the Commonwealth Disability Support for Older Australians (DSOA) Program, which replaced the Commonwealth Continuity of Support (CoS) Programme from 1 July 2021.
The CoS Programme was a Council of Australian Governments (COAG) commitment for the Commonwealth, to continue to support older people who were accessing state-managed disability services and were ineligible for the National Disability Insurance Scheme (NDIS). Implementation of the CoS Programme was staged and commenced from 1 December 2016 in line with the rollout of the NDIS.
A 2020 review of the CoS Programme included consultation with providers, clients and peak bodies such as the National Disability Services. The review identified the need to modernise the Programme to better align with the NDIS pricing and service delivery rules. Changes to the CoS Programme were included in the 2020-21 Budget.
The Australian Government remains committed to continuing support for older Australians who were receiving state-based disability services but ineligible for the NDIS. Once fully rolled out, DSOA will provide improved parity with the NDIS and a more client-centred program. The NDIS Quality and Safeguards Commission will regulate DSOA service coordinators and subcontracted providers under the DSOA Program. Like the CoS Programme, DSOA remains a closed program with no new client entrants.
As part of its scrutiny of the Financial Framework (Supplementary Powers) Amendment (Health Measures No. 1) Regulations 2021 (the legislative instrument which inserted table item 470 in Part 4 of Schedule 1AB to the Principal Regulations), the Senate Standing Committee for the Scrutiny of Delegated Legislation (the Committee) raised concerns that there is no detail as to how the program would operate on the face of the instrument. The Committee therefore requested that the instrument be amended to include core details of how the DSOA Program would operate on the face of the instrument, for example, that the table item only relates to persons who had been receiving services under the CoS Programme.
While it is not the purpose of the Principal Regulations to include detailed eligibility criteria for specified grants, programs and other arrangements as this is not expressly contemplated by the FF(SP) Act, the Minister for Finance has agreed to amend table item 470 as requested by the Committee, as a gesture of good faith to help address the Committee’s concerns about the instrument. The Regulations amend table item 470 to include additional details that the objective of the DSOA Program is to provide funding for disability services to individual older people with a disability who received services under the CoS Programme. This implements the undertaking made by the Minister for Finance in response to the Committee’s correspondence dated 12 August 2021. This correspondence and the Minister’s response will be published on the Committee’s website.
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. 5) Regulations 2021
Section 1 – Name
This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Health Measures No. 5) Regulations 2021.
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
Financial Framework (Supplementary Powers) Regulations 1997
Item 1 – Part 4 of Schedule 1AB (table item 470, column headed “Objective(s)”)
Item 1 amends the objective of table item 470 in Part 4 of Schedule 1AB to the Principal Regulations to include additional details as to how the Commonwealth Disability Support for Older Australians (DSOA) Program would operate, by clarifying that DSOA only relates to individual older people with a disability who received services under the Commonwealth Continuity of Support (CoS) Programme. Table item 470 provides legislative authority for government spending on the DSOA Program, which replaced the CoS Programme from 1 July 2021. The Department of Health (the department) has responsibility for DSOA.
The amendments to table item 470 clarify that disability services may be provided to individual older people with a disability who:
(a) are ineligible for the National Disability Insurance Scheme (NDIS); and
(b) received services under any of the following programs specified in Part 4 of Schedule 1AB, which provided legislative authority for government spending on various components of the CoS Programme:
- Continuity of Support – Block-funded Activities (table item 153 inserted by the Financial Framework (Supplementary Powers) Amendment (Health Measures No. 2) Regulation 2016 [F2016L00512]);
- Continuity of Support – Individual Support Packages (table item 154 inserted by the Financial Framework (Supplementary Powers) Amendment (Health Measures No. 2) Regulation 2016 [F2016L00512]);
- Continuity of Support – Community Mental Health Services (table item 338 inserted by the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 2) Regulations 2019 [F2019L00565]); and
- Continuity of Support Fund for Clients of Programs Transitioning to the National Disability Insurance Scheme (table item 403 inserted by the Financial Framework (Supplementary Powers) Amendment (Social Services Measures No. 1) Regulations 2020 [F2020L00385]).
Further information about the above programs is available in explanatory statements for the relevant amendment instruments published on the Federal Register of Legislation.
The CoS Programme was a Council of Australian Governments (COAG) commitment for the Commonwealth, to continue to support older people who were accessing state-managed disability services and were ineligible for the NDIS. Implementation of the CoS Programme was staged and commenced from 1 December 2016 in line with the rollout of the NDIS.
A 2020 review of the CoS Programme included consultation with providers, clients and peak bodies such as the National Disability Services. The review identified the need to modernise the Programme to better align with the NDIS pricing and service delivery rules. Changes to the CoS Programme were included in the 2020-21 Budget.
The Australian Government remains committed to continuing support for older Australians who were receiving state-based disability services but ineligible for the NDIS. Once fully rolled out, DSOA will provide improved parity with the NDIS and a more client-centred program through:
- funding for disability services being better aligned with market pricing and consistency across states and territories;
- moving all clients to an Individual Support Package (ISP) overseen by a single DSOA service coordinator for each client, which will refocus service delivery on individual client needs; and
- meeting the Commonwealth commitment to continue supporting DSOA clients with complex needs to live at home or in supported accommodation, and to access increased support as their needs change.
The NDIS Quality and Safeguards Commission will regulate DSOA service coordinators (organisations funded to oversee the delivery of disability support services) and subcontracted providers under the DSOA Program. Like the CoS Programme, DSOA remains a closed program with no new client entrants as the NDIS is now fully rolled out.
DSOA is not a structural part of the Commonwealth response to disability services. In the long term, people with similar levels of functional impairment over their lifetime are likely to become the NDIS participants and will remain in the NDIS beyond age 65, unless they elect to transfer to the aged care system.
More information about the DSOA Program is available on the departmental website at https://www.health.gov.au/initiatives-and-programs/disability-support-for-older-australians-dsoa-program/funding-for-the-disability-support-for-older-australians-program and in the explanatory statement for the Financial Framework (Supplementary Powers) Amendment (Health Measures No. 1) Regulations 2021 [F2021L00290] published on the Federal Register of Legislation.
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. 5) Regulations 2021
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 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 Measures No. 5) Regulations 2021 (the Regulations) amend table item 470 ‘Commonwealth Disability Support for Older Australians’ in Part 4 of Schedule 1AB to the FF(SP) Regulations. This table item provides legislative authority for government spending on the Commonwealth Disability Support for Older Australians (DSOA) Program, which replaced the Commonwealth Continuity of Support (CoS) Programme from 1 July 2021.
The CoS Programme was a Council of Australian Governments (COAG) commitment for the Commonwealth, to continue to support older people who were accessing state-managed disability services and were ineligible for the National Disability Insurance Scheme (NDIS). Implementation of the CoS Programme was staged and commenced from 1 December 2016 in line with the rollout of the NDIS.
A 2020 review of the CoS Programme included consultation with providers, clients and peak bodies such as the National Disability Services. The review identified the need to modernise the Programme to better align with the NDIS pricing and service delivery rules. Changes to the CoS Programme were included in the 2020-21 Budget.
The Australian Government remains committed to continuing support for older Australians who were receiving state-based disability services but ineligible for the NDIS. Once fully rolled out, DSOA will provide improved parity with the NDIS and a more client-centred program. The NDIS Quality and Safeguards Commission will regulate DSOA service coordinators and subcontracted providers under the DSOA Program. Like the CoS Programme, DSOA remains a closed program with no new client entrants.
As part of its scrutiny of the Financial Framework (Supplementary Powers) Amendment (Health Measures No. 1) Regulations 2021 (the legislative instrument which inserted table item 470 in Part 4 of Schedule 1AB to the Principal Regulations), the Senate Standing Committee for the Scrutiny of Delegated Legislation (the Committee) raised concerns that there is no detail as to how the program would operate on the face of the instrument. The Regulations amend table item 470 to include additional details that the objective of the DSOA Program is to provide funding for disability services to individual older people with a disability who received services under the CoS Programme.
Human rights implications
This disallowable legislative instrument does not engage any of the applicable rights or freedoms. It amends table item 470 in Part 4 of Schedule 1AB to include additional details as to how the DSOA Program would operate, by clarifying that DSOA only relates to individual older people with a disability who received services under the CoS Programme.
Conclusion
This disallowable legislative instrument is compatible with human rights because it does not raise any human rights issues.
Senator the Hon Simon Birmingham
Minister for Finance