Details of the Financial Framework (Supplementary Powers) Amendment  

(Foreign Affairs and Trade Measures No. 1) Regulations 2020

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Foreign Affairs and Trade Measures No. 1) Regulations 2020.

 

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 a certain activity that will be administered by the Department of Foreign Affairs and Trade (the department).

 

New table item 417 establishes legislative authority for the Government to provide financial assistance to, or for the benefit of, the Cook Islands.

 

The Cook Islands graduated from the Organisation for Economic Co-operation and Development's List of Official Development Assistance (ODA) Recipients on 1 January 2020. Australia has been unable to provide the Cook Islands with ODA assistance from this date.

 

The funding will support the Cook Islands' continued engagement in Australia-led Pacific regional development programs, including the Pacific Agreement on Closer Economic Relations Plus Implementation Package. This is consistent with Australia's objectives under the Pacific Step-up, which responds to and recognises the broad ranging challenges of the Pacific region, identified by Pacific leaders and communities themselves.

 

The Cook Islands is a full member of the Pacific Islands Forum and an important partner for Australia on regional issues. Continuing engagement through regional initiatives will strengthen bilateral relations with the Cook Islands and support the recent establishment of the Australian diplomatic mission in Rarotonga.

 

Australian assistance to the Cook Islands through regional initiatives will enable:

*         access for the Cook Islands to the Pacific Agreement on Closer Economic Relations Plus Implementation Package;

*         support for the development and management of fisheries and environment initiatives;

*         access to security and law enforcement training;

*         support for responses to regional challenges, including environmental and health security;

*         support for gender equality and women's economic empowerment programs; and

*         support for regional engagement by the Cook Islands.

 

The Office of the Pacific (OTP) in the department will administer funding for the Cook Islands through support for regional partnerships and a small bilateral component. In consultation with the Australian High Commission in Rarotonga, OTP will provide strategic direction and coordination of the funding and associated arrangements for ongoing strategic management and implementation of the Cook Islands support.

 

The regional component of the funding to the Cook Islands will be delivered through Australian regional programs in sectors identified as priorities by the Cook Islands:

*         economic growth and governance;

*         regional security, including environmental and health security;

*         fisheries; and

*         gender equality. 

 

Regional funding will be administered using existing regional program mechanisms that may require:

*         amendments to existing grant arrangements with regional Pacific bodies and Australian Government partners; or

*         new non-ODA grants, which will operate in parallel to cover the Cook Islands alone (to be decided on a case-by-case basis).

 

The department will engage multiple partners to implement the regional aspects of the Cook Islands funding. Engagement activities will draw on the department's established frameworks for grants, procurements, project monitoring and evaluation, in accordance with the Commonwealth legislative and policy requirements for procurements and grants. The regional component will support the Cook Islands representatives (including government officials and community leaders) to access and stay engaged with Australia's Pacific regional development programs.

 

The bilateral component will be a small community grants program managed by the new Australian High Commission in the Cook Islands. The grants will be awarded via an open competitive process in accordance with the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). The target for the community grants program will be the Cook Islands community organisations with an established track record in project delivery.

 

The department will develop relevant grant guidelines for the Cook Islands funding and make them publicly available as required under the CGRGs.

 

The engagement of contractors to undertake or implement activities related to the Cook Islands funding will comply with the Commonwealth Procurement Rules (CPRs).

 

Final decisions in relation to funding for the Cook Islands grants or procurements will be made by a delegate of the Secretary of the department. The delegate's decisions will be final in all matters, including in respect of:

*         the approval of funding; and

*         the funding amount to be awarded.

 

Details of grants awarded, or variations to grants previously awarded, and procurement activities will be reported in accordance with the CGRGs and CPRs and other Commonwealth procurement connected policies, respectively.

 

Complaints received in relation to these grant and procurement processes will be handled in accordance with the complaints procedures as set out in the grant/procurement documentation issued by the department and on the department website at www.dfat.gov.au. These procedures are consistent with the requirements of the CGRGs and the CPRs for the handling of complaints. Complaints in respect of procurement activities will also be handled by the department in accordance with the Government Procurement (Judicial Review) Act 2018.

 

Decisions made in connection with the Cook Islands funding are not considered suitable for independent merits review. Such decisions relate to the allocation of a finite resource between competing applicants, as set out in the Administrative Review Council's guidance on What decisions should be subject to merits review? (items 4.11 to 4.19 refer). Any merits review, which results in overturning a funding decision already made, would adversely affect another party that received funding through the same process.

 

Even though funding decisions are not considered appropriate for merits review, the department will emphasise administrative accountability in the decision making process by ensuring that selection process is fair, transparent and merit based, and that the decisions are well documented, defensible and made with reference to the selection criteria.

 

The department is continuing consultations with the Cook Islands Government and Permanent Secretaries from the key Cook Islands ministries to confirm priorities for its continued access to Australia's regional development programs.

 

Funding of $8 million was included in the 2019-20 Mid-Year Economic and Fiscal Outlook under the measure 'Support for the Cook Islands' for a period of four years from 2020-21. Details are set out in the Mid-Year Economic and Fiscal Outlook 2019-20, Appendix A: Policy decisions taken since the 2019 PEFO at page 226.

 

Funding for this item will come from Program 1.1: Foreign Affairs and Trade Operations, which is part of Outcome 1. Details are set out in the Portfolio Additional Estimates Statements 2019-20, Foreign Affairs and Trade Portfolio at pages 15, 17 and 27.

 

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 external affairs power (section 51(xxix); and

*         the Pacific islands power (section 51(xxx)).

 

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 with respect to matters concerning Australia's relations with other nations. The external affairs power also supports legislation with respect to matters or things outside the geographical limits of Australia.

 

This funding will support the Cook Islands' continued engagement in Australia-led Pacific regional development programs. 

 

Pacific islands power

 

Section 51(xxx) of the Constitution empowers the Parliament to make laws with respect to 'the relations of the Commonwealth with the islands of the Pacific'.

 

Cook Islands is a full member of the Pacific Islands Forum and an important partner in the Pacific Islands for Australia on regional issues.

 

 

 

 

 

 

 

 

 

 

 

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 (Foreign Affairs and Trade Measures No. 1) Regulations 2020

 

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 (Foreign Affairs and Trade Measures No. 1) Regulations 2020 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on a certain activity that will be administered by the Department of Foreign Affairs and Trade (the department).

 

New table item 417 establishes legislative authority for the Government to provide financial assistance to, or for the benefit of, the Cook Islands.

 

The Cook Islands graduated from the Organisation for Economic Co-operation and Development's List of Official Development Assistance (ODA) Recipients on 1 January 2020. Australia has been unable to provide ODA assistance to the Cook Islands from this date.

 

The provision of financial assistance aims to ensure that Australia can continue to engage the Cook Islands in key regional activities being led by Australia in the Pacific. This is consistent with Australia's objectives under the Pacific Step-up. The Cook Islands is a full member of the Pacific Islands Forum and an important partner for Australia on regional issues. Continuing engagement through regional initiatives will strengthen bilateral relations with the Cook Islands and support the recent establishment of the Australian diplomatic mission in Rarotonga.

 

Australian assistance to the Cook Islands through regional initiatives will enable:

*         access for the Cook Islands to the Pacific Agreement on Closer Economic Relations Plus Implementation Package;

*         support for the development and management of fisheries and environment initiatives;

*         access to security and law enforcement training;

*         support for responses to regional challenges, including environmental and health security;

*         support for gender equality and women's economic empowerment programs; and

*         support for regional engagement by the Cook Islands.

 

The department will administer funding for the Cook Islands through support for regional partnership and a bilateral component. Funding will be administered using existing regional program mechanisms which may require:

*         amendments to existing grant arrangements with regional Pacific bodies and Australian Government partners; or

*         new non-ODA grants, which will operate in parallel to cover the Cook Islands alone (to be decided on a case-by-case basis).

 

Human rights implications

 

Table item 417 engages the following human rights for the population of the Cook Islands:

*         the right to work and rights at work;

*         the right to equality and non-discrimination;

*         the right to an adequate standard of living; and

*         the right to physical and mental health.

 

Right to work and rights at work

 

Table item 417 engages Articles 6, 7 and 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). These articles state:

 

Article 6

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

 

Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i)      Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii)     A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

 

Article 8

1. The States Parties to the present Covenant undertake to ensure:

(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;

(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.

3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.

 

Table item 417 also interacts with Article 27(1) of the Convention on the Rights of Persons with Disabilities (CRPD), which states that:

 

1. States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:

(a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions;

(b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;

(c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;

(d) Enable persons with disabilities to have effective access to general technical and vocational guidance, programmes, placement services and vocational and continuing training;

(e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;

(f) Promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one's own business;

(g) Employ persons with disabilities in the public sector;

(h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;

(i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;

(j) Promote the acquisition by persons with disabilities of work experience in the open labour market;

(k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.

 

Table item 417 positively affects the right to work and rights at work of workers in the Cook Islands through the continued engagement of both the Cook Islands public and private sectors through the department's regional programs to provide access to markets and specialised technical knowledge relating to development, as well as provide the basis for sustainable economic growth through greater regional integration. It will also enable continued engagement with the Cook Islands government officials on the development of its governance arrangements through exposure to different types of governance models and through gaining a better understanding of the needs of its population, and in particular, those of its workers. This will positively affect the working conditions of the Cook Islands workers, including those with disabilities, leading to improved workplace health and safety and an overall better quality of life.

 

Right to equality and non-discrimination

 

Table item 417 engages the right to equality and non-discrimination, primarily Articles 2(1) and 26 of the International Covenant on Civil and Political Rights (ICCPR).

 

Article 2(1) of the ICCPR states that:

 

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

Article 26 of the ICCPR states that:

 

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

Table item 417 also interacts with Article 2(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which states that:

 

1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;

(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.

 

Table item 417 also engages Articles 5, 11(1) and 12(1) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

 

Article 5

States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

(b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

 

Article 11(1)

States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(a) The right to work as an inalienable right of all human beings;

(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;

(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;

(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;

(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;

(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

 

Article 12(1)  

States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.

 

Table item 417 positively affects the right to equality and non-discrimination of individuals in the Cook Islands through the continued engagement of both the Cook Islands public and private sectors through the department's regional programs to receive technical support and training to address gender inequality in political, economic and social life, as well as in national policies and governance processes. Table item 417 will also positively affect the right to equality and non-discrimination through the continued engagement of the Cooks Islands to promote gender equality and implement national strategies to address violence against women.

 

Right to an adequate standard of living

 

Table item 417 engages the right to an adequate standard of living primarily through Article 11(1) of the ICESCR and Article 28(1) of the CRPD.

 

Article 11(1) of the ICESCR states that:

 

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

 

Article 28(1) of the CRPD states that:

 

States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.

 

Table item 417 positively affects the right to an adequate standard of living through the continued engagement of the Cook Islands' public and private sectors through the department's regional programs that will provide and promote strategies and measures to improve the living standards of the Cook Islands' population and to access climate change information that is relevant and informed and that will contribute to improving an individual's standard of living, including individuals with disabilities. 

 

Right to physical and mental health

 

Table item 417 engages the right to physical and mental health primarily through Article 12(1) of the ICESCR and Article 25 of the CRPD.

 

Article 12(1) of the ICESCR states that:

 

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

 

Article 25 of the CRPD states 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. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation. In particular, States Parties shall:

(a) Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes;

(b) Provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons;

(c) Provide these health services as close as possible to people's own communities, including in rural areas;

(d) Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care;

(e) Prohibit discrimination against persons with disabilities in the provision of health insurance, and life insurance where such insurance is permitted by national law, which shall be provided in a fair and reasonable manner;

(f) Prevent discriminatory denial of health care or health services or food and fluids on the basis of disability.

 

Table item 417 positively affects the right to physical and mental health through the continued engagement of the Cook Islands Government to develop and introduce strategies and measures that will increase the standard of health care in the Cook Islands and to be able to respond to new and emerging health crises including pandemics.

 

Conclusion

 

This disallowable legislative instrument is compatible with human rights because it promotes the protection of human rights, in particular the right to work and rights at work, the right to equality and non-discrimination, the right to an adequate standard of living, and the right to physical and mental health.

 

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance