Industry Research and Development (Promote Mental Health for Small Business Operators Program) Instrument 2019

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Small and Family Business, Skills and Vocational Education

Industry Research and Development Act 1986

Industry Research and Development (Promote Mental Health for Small Business Operators Program) Instrument 2019

Purpose and Operation

The legislative framework

Subsection 33(1) of the Industry Research and Development Act 1986 (the IR&D Act) provides a mechanism for the Minister to prescribe programs, by disallowable legislative instrument, in relation to industry, innovation, science or research, including in relation to the expenditure of Commonwealth money under such programs.

The Minister for Industry, Science and Technology has, under subsection 33(6) of the IR&D Act, delegated the Minister’s power under subsection 33(1) to prescribe the Promote Mental Health for Small Business Operators Program (the Program) as a program for the purpose of s 33(1) to the Minister for Small and Family Business, Skills and Vocational Education.

The statutory framework provided by s 33 of the IR&D Act enables a level of flexibility to provide authority for Commonwealth spending activities in relation to industry, innovation, science and research programs. This allows the Government to respond quickly and appropriately to the need to implement innovative ideas and pilot programs on an ongoing basis and as opportunities arise. Prescribing programs in legislative instruments provides transparency and parliamentary oversight of Government programs and spending activities, whilst reducing administrative burdens on the Commonwealth.

Once a program is prescribed by a Minister under s 33(1), s 34(1) allows the Commonwealth to make, vary or administer arrangements in relation to activities under the prescribed program. Arrangements may include contracts, funding agreements or other arrangements, and may provide for money to be payable by the Commonwealth to one or more third parties. The power conferred on the Commonwealth by s 34(1) may be exercised on behalf of the Commonwealth by a Minister or an accountable authority of a non-corporate Commonwealth entity, or by their delegate (under s 36).

The Promote Mental Health for Small Business Operators Program

The purpose of the Industry Research and Development (Promote Mental Health for Small Business Operators Program) Instrument 2019 (the Instrument) is to prescribe the Program as a program under ss 33(1).

The Program aims to improve awareness of, and practical responses to, mental health issues within Australian small businesses (being businesses with less than 20 employees), and includes:

• the ‘Mental health matters / Wellness is good for small business’ promotion and communication campaign; and
• the expansion of Everymind’s Ahead for Business pilot program.

‘Mental health matters/ Wellness is good for small business’ promotion and communication activities

On 12 December 2018, the Minister for Small and Family Business, Skills and Vocational Education hosted a stakeholder meeting in Canberra in the form of a roundtable discussion. This meeting was independently facilitated and brought together approximately 20 key stakeholders involved in small business mental health, with an aim to establish a clear understanding of small business operators’ needs and options for meeting these needs.

The feedback from the roundtable discussion will be used to inform promotion and communication activities under the‘Mental health matters/Wellness is good for small business’ campaign, ensuring the messaging reflects best practice, is targeted and relevant to the needs of small business operators. Messaging will be designed to encourage small business operators to engage early with mental health interventions and to integrate good mental wellness practices into their busy lifestyles. The communication activities will:

• promote and raise awareness of mental health initiatives targeted at small business operators, with a particular focus on reaching out to people who are closest to small business owners, such as their families and trusted advisors (such as accountants and industry associations);
• promote the work of the National Mental Health Commission, including the development of the National Workplace Initiative. The Initiative will describe key actions that can be taken to achieve mentally healthy workplaces and will provide the tools that can be tailored to different industries and workplaces, including for small business operators;
• involve working with stakeholders to engage small business operators and share existing resources via social media content (Facebook, LinkedIn, Instagram and YouTube) as well as proactive media activities such as news articles, events, posters, flyers, radio, and product advertising. Other communications vehicles could include small business roadshows, podcasts with Flying Solo, articles in small business fora (such as Inside Small Business and SmartCompany) and speeches by the Prime Minister, the Minister for Health, and the Minister for Small and Family Business, Skills and Vocational Education; and
• encourage organisations, such as Beyond Blue and the Black Dog Institute, to think about the specific needs of small business operators, and to develop or advocate for the development of tools to meet their mental health needs.

Promotion and communication activities will be led by the Department of Jobs and Small Business (the Department). Decisions about which mental health initiatives will be promoted and how they will be promoted will be made by an SES Band 1 officer in the Department, taking into account the feedback from the roundtable discussion held in December 2018 and the objectives for the Program (as set out above).

These decisions will not be subject to merits review as the decisions have a limited impact on the organisations concerned such that the costs of merits review cannot be justified. There is limited impact on organisations chosen to be part of the promotion or communication activities, but which may be unsatisfied with the level or type of promotion received. There is also limited impact on those organisations whose initiatives are not chosen to be promoted.  Not promoting initiatives as part of this Program would not prevent the relevant organisations from promoting them in other ways. In any case, the initiatives and their promotion are designed to assist small business operators, not the organisations. 

Small business operators, if any, dissatisfied with decisions about whether or how to promote a particular initiative would nonetheless be able to benefit or potentially benefit from the promotion of the other initiatives. Such decisions would therefore have limited impact on small business operators.  

Further, the resources for promotion of the initiative are finite therefore overturning a decision about whether to promote an initiative, or the extent of its promotion, would impact on the extent to which other initiatives could be promoted. 

Persons who are affected by decisions about promotion or communication activities have recourse to the Department. The Department will investigate such complaints. If a person is not satisfied with the way the Department handles the complaint, they may lodge a complaint with the Commonwealth Ombudsman.

Procurement decisions

Procurement decisions relating to the promotion and communication activities will be made in accordance with the Commonwealth’s resource management framework, including the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Procurement Rules.

Procurement decisions, once made, will be final and not subject to merits review. Re-making a procurement decision after entry into contractual arrangements with a successful proponent is legally complex, impractical, and would delay the commencement of the promotional activities.

Persons who are affected by procurement decisions have recourse to the Department. The Department will investigate such complaints. If a person is not satisfied with the way the Department handles the complaint, they may lodge a complaint with the Commonwealth Ombudsman.

Fund an expansion of Everymind’s Ahead for Business pilot program

Everymind has developed ‘Ahead for Business’, a digital-based prototype to support business owners to access evidence-based prevention and treatment interventions that can reduce the onset and impact of mental ill-health. This was trialled in three sites (Lake Macquarie, Parramatta and Singleton) during October 2018.

The pilot is now evaluating uptake across small business types in the target region, assessing the value of the overall approach and connecting with primary care providers like GPs at a regional level.

Given the differences in small businesses across Australia, a richer evidence base will be developed if there are pilots in several regions. Funding of $3.1 million will be provided to Everymind to scale-up the ‘Ahead for Business’ pilot and for implementation support, allowing trial data to be collected across rural regions (including drought affected areas) and identified regions in other states and territories from early 2019 (the Project). The Project will include:

• at least 2-4 additional rural based trial sites (across NSW and QLD), chosen by Everymind and a partnership between Everymind and the Centre for Rural and Remote Mental Health and small businesses in those areas, to modify the implementation approach and enhance the digital offering in the first year;
• an additional 6 to 10 trial sites outside of NSW chosen by Everymind, that can be activated during 2019-2020; and
• comprehensive evaluation by Everymind of health outcomes from the trial sites including running a randomised control trial (or similar).

In selecting the additional sites Everymind will take account of the evaluation of the October 2018 pilot noted above, and will aim to achieve a spread across regions and states and as well as some sites with similar demographics to enable more effective comparison and evaluation.

The funding is to be used for:

• Project staffing;
• digital and communication enhancements; and
• local events and implementation support across business and health networks.

The funding to expand the ‘Ahead for Business’ pilot will be provided to Everymind in the form of a non-competitive grant. The funding will be delivered for the Department by the Department of Industry, Innovation and Science’s Business Grants Hub, which is a specialised design, management and delivery body with extensive expertise and capability in delivering similar grants. The grant process will be conducted in accordance with the Commonwealth Grants Rules and Guidelines 2017 and details of the grant will be published on the GrantConnect website at www.grants.gov.au and the Department of Jobs and Small Business’ website at www.jobs.gov.au.

The funding agreement with Everymind will contain the conditions of the grant, key project deliverables and formal reporting mechanisms to measure performance, including the collection of qualitative and quantitative data to track progress against the deliverables. Under the funding agreement, Everymind will also be required to undertake an evaluation of the grant program using a robust evaluation framework including a randomised control.

Spending decisions will be made by an official of the Department of Jobs and Small Business. 

The decision to provide funding to Everymind will not be subject to independent review as it is a one off grant, paid in instalments, to a service provider with special expertise (including expertise gained in the October 2018 trial noted above). Review in these circumstances is not appropriate as:

• it would promote competition among community organisations;
• no effective remedy could be provided, as a successful application for review by an organisation would impact on the funding to Everymind; and
• review would delay the delivery of this important initiative.

If Everymind is not satisfied with a decision by the Department, it may raise the matter with the Department or the Commonwealth Ombudsman. 

Funding of $4.3 million over four years from 2018-19 has been secured for the Program in the 2018-19 Mid-Year Economic and Fiscal Outlook as part of the ‘Small Business Package — making it easier for business’ measure under the Small Businesses Package.

Constitutional head of power

Noting that it is not a comprehensive statement of relevant constitutional considerations, the Legisative Instrument references the external affairs power in section 51(xxix) of the Constitution.

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 has obligations under Articles 2(1) and 12 the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 2(1) of ICESCR requires Australia to 'take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized' in ICESCR. This includes the right to 'the enjoyment of the highest attainable standard of physical and mental health', which is recognised in Article 12(1). Article 12(2) of ICESCR provides a non-exhaustive list of 'steps' to be taken by Australia to achieve the full realisation of the right to health, including steps ‘necessary for prevention, treatment and control of epidemic, endemic, occupational and other diseases' (Article 12(2)(c)).

Funding provided under the Instrument will implement Australia’s obligations under ICESCR by raising awareness of mental health initiatives and to promote and expand mental health initiatives focusing on small and micro business operators (who may be regarded as at particular risk due to the nature of their work).

Authority

Subsection 33(1) of the Industry Research and Development Act 1986 provides legislative authority for the Instrument.

Consultation

In accordance with s 17 of the Legislation Act 2003, the Department of Industry Innovation and Science and the Attorney-General’s Department have been consulted on this Instrument.

Regulatory Impact

There will be no regulatory impact on businesses.

Details of the Industry Research and Development (Promote Mental Health for Small Business Operators Program) Instrument 2019

PART 1 – PRELIMINARY

Section 1 – Name of Instrument

This section specifies the name of the Instrument as the Industry Research and Development (Promote Mental Health for Small Business Operators Program) Instrument 2019.

Section 2 – Commencement

This section provides that the Instrument commences on the day after registration on the Federal Register of Legislation. 

Section 3 – Authority

This section specifies the provision of the Industry, Research and Development Act 1986 (the Act) under which the Instrument is made.

Section 4 – Definitions

This section provides for definitions of terms used in the Instrument.

Section 5 – Prescribed Program

This section prescribes the Promote Mental Health for Small Business Operators Program (the Program) for the purposes of s 33(1) of the Act, and outlines its purpose. The purpose of the Program is to improve awareness of, and practical responses to, mental health issues experienced by, or that may be experienced by, operators of Australian small businesses, including by:

(a) funding a campaign focused on reaching out to people who are closest to small business operators, such as their families and trusted advisors, promoting new and existing mental health resources, including initiatives targeted at small business operators; and

(b) providing support, by a trial program (being Everymind’s Ahead for Business), aimed at reducing the onset and impact of mental ill‑health.

Section 6 – Specified Legislative Power

This section specifies that the legislative power in respect of which the Instrument is made is the power of the Parliament to make laws with respect to external affairs (s 51(xxix) of the Constitution) by implementing Australia’s obligations under international treaties. In this respect, the Program prescribed by the Instrument is aimed at raising awareness of mental health initiatives, and promoting and expanding mental health initiatives focusing on small and micro business operators (in accordance with Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights).

Statement of Compatibility with Human Rights

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

Industry Research and Development (Promote Mental Health for Small business Operators Program) Instrument 2019

The 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

The Instrument prescribes the Promote Mental Health for Small Business Operators Program (the Program) for the purposes of s 33(1) of the Industry Research and Development Act 1986. The purpose of the Program is to improve awareness of, and practical responses to, mental health issues experienced by, or that may be experienced by, operators of Australian small businesses, including by:

(a) funding a campaign focused on reaching out to people who are closest to small business operators, such as their families and trusted advisors, promoting new and existing mental health resources, including initiatives targeted at small business operators; and

(b) providing support, by a trial program (being Everymind’s Ahead for Business), aimed at reducing the onset and impact of mental ill‑health.

Human rights implications

The Instrument engages the following rights:

Right to health

Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right to the enjoyment of the highest attainable standards of physical and mental health.

Right to health

The Program has been designed to improve awareness of mental health issues within small businesses, and is targeted to the specific needs of small business operators.  The Program will encourage small business operators, their families and advisors to engage early with mental health interventions and to integrate good mental well ness practices into their lifestyle. 

The Program will also promote within small businesses the creation of safe and health working conditions.  Through engagement with the Project, the small business community, small businesses and their employees will benefit through the use of specific tools and options to meet their mental health needs.

Conclusion

The Instrument is compatible with human rights as it advances human rights.

Senator the Hon Michaelia Cash

Minister for Small and Family Business, Skills and Vocational Education