This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
Correspondence relating to these matters is included at Appendix 3.
Federal Financial Relations (National Partnership
payments) Determination No. 116-119 (February 2017)-(May 2017)
||Specifies the amounts to be
paid to the states and territories to support the delivery of specified
outputs or projects, facilitate reforms by the states or reward the states
for nationally significant reforms
Relations Act 2009
|Last day to disallow
||Health; social security;
adequate standard of living; children; education (see Appendix 2)
||7 of 2017
The committee first reported on the Federal Financial Relations
(National Partnership payments) Determination No. 116-119 (February 2017)-(May
2017) in its Report 7 of 2017, and requested a response from the
treasurer by 22 August 2017.
The assistant minister to the treasurer's response to the committee's
inquiries was received on 18 August 2017. The response is discussed below and
is reproduced in full at Appendix 3.
The committee has previously examined a number of related Federal
Financial Relations (National Partnership payments) Determinations made under
the Federal Financial Relations Act 2009 and requested and received
further information from the treasurer as to whether they were compatible with
Australia's human rights obligations.
Payments to the states and territories for the provision of health,
education, employment, housing and community services
The Intergovernmental Agreement on Federal Financial Relations (the IGA)
provides for a range of payments from the Commonwealth government to the states
and territories. These include National Partnership payments (NPPs) which are
financial contributions to support the delivery of specified projects,
facilitate reforms or provide incentives to jurisdictions that deliver on
nationally significant reforms. These NPPs are set out in National Partnership
agreements made under the IGA, which specify mutually agreed objectives,
outcomes, outputs and performance benchmarks.
The Federal Financial Relations Act 2009 provides for the
minister, by legislative instrument, to determine the total amounts payable in
respect of each NPP in line with the parameters established by the relevant
National Partnership agreements. Schedule 1 to each of the determinations sets
out the amounts payable under the NPPs to states and territories, contingent
upon the attainment of specified benchmarks or outcomes, in areas including
health, employment, education, community services and affordable housing.
Compatibility of the measure with
In its previous analysis, the committee has noted that setting
benchmarks for achieving certain standards, which may consequently result in
fluctuations in funding allocations, has the capacity to both promote rights
and, in some cases, limit rights, including the right to health; the right to
social security; the right to an adequate standard of living, including
housing; the right to education; and the rights of children.
Under international human rights law, Australia has obligations to
progressively realise economic, social and cultural (ESC) rights using the
maximum of resources available, and a corresponding duty to refrain from taking
retrogressive measures, or backwards steps, in relation to the realisation of
Because realisation of these rights is reliant on government allocation
of expenditure, a reduction in funding for services such as health and
education may be considered a retrogressive measure in the attainment of ESC
Any backward step regarding the progressive attainment of such rights therefore
needs to be justified for the purposes of international human rights law.
As noted in the previous human rights analysis, the statement of
compatibility for each of the determinations contains a standard paragraph,
similar to information provided for past related determinations considered by
the committee, which states:
neither this determination nor the making of National
Partnership payments more generally could be said to have a detrimental impact
on any human right.
The statements of compatibility for the determinations therefore do not
provide an assessment of the extent to which fluctuations in funding, with
reference to the achievement or failure to achieve specific benchmarks or
outcomes, may promote human rights (where funding is increased) or may be
regarded as retrogressive (where funding is reduced).
As noted above, the committee previously requested further advice from
the treasurer as to whether the setting of benchmarks for the provision of
funds under the previous NPPs is compatible with human rights (for example, how
the benchmarks may or may not support the progressive realisation of human
rights such as the rights to health and education); whether there are any
retrogressive trends over time indicating reductions in payments which may
impact on human rights (such as health, education or housing); and whether any
retrogressive measures or trends pursue a legitimate objective, are rationally
connected to their stated objective, and are a reasonable and proportionate
measure for the achievement of that objective.
As outlined in the previous analysis, the response previously provided
by the Treasurer in relation to similar measures provided a very useful
assessment of the human rights compatibility of the NPPs in the context of ESC
rights. The provision of such additional information by the treasurer allowed
the committee to conclude that past determinations were likely to be compatible
with Australia's international obligations.
While the committee recommended this type of information be included in future
statements of compatibility going forward, this had not occurred to date.
Without this additional information included in statements of
compatibility, it is difficult for the committee to complete its assessment of the
compatibility of NPPs. The previous analysis stated that, if such information
were included in the statement of compatibility at the outset then the
committee may not need to request further information from the Treasurer in
relation to NPPs.
In relation to the determinations examined in its Report 7 of 2017,
the committee therefore sought the advice of the treasurer as to:
- whether the setting of
benchmarks for the provision of funds under the National Partnership payments
is compatible with human rights (for example, how the benchmarks may or may not
support the progressive realisation of human rights such as the rights to
health and education);
- whether there are any
retrogressive trends over time indicating reductions in payments which may
impact on human rights (such as health, education or housing); and
- whether any retrogressive
measures or trends pursue a legitimate objective; are rationally connected to
their stated objective; and are a reasonable and proportionate measure for the
achievement of that objective.
Additionally, the committee sought the advice of the treasurer as to
whether this type of information, previously provided by the treasurer to the
committee, could be included in future statements of compatibility for related
National Partnership payment determinations to assist the committee to fully
assess the compatibility of the measure with human rights in future.
Assistant minister's response
The response addresses whether the setting of benchmarks for the
provision of funds through NPPs is compatible with human rights. The response
states that the setting of performance requirements promotes the progressive
realisation of human rights by creating an incentive for the efficient delivery
of services, projects and reforms where NPPs support human rights in sectors
such as health, education, housing and community services. It explains that
states and territories meet the overwhelming majority of performance
requirements in NPPs. The response notes that the associated funding is then
paid in accordance with the determinations for NPPs, consistent with the terms
and conditions of the relevant agreement. This indicates that setting
mutually-agreed benchmarks for the provision of payments under the NPPs is
likely to be positively impacting a number of service areas that affect the
progressive realisation of ESC rights.
The previous human rights assessment of the determinations also raised
concerns regarding whether there have been any retrogressive trends over time
in relation to the allocation of NPPs. In relation to potential issues of
decreases in funding and the impact this may have on the capacity of states and
territories to deliver essential services, the assistant minister states that
there is no evidence to suggest that the setting of performance requirements
would lead to a situation where states and territories frequently become
ineligible for NPPs due to a failure to meet those requirements. He states that
where payments do cease, this is usually because the agreed project or reform
is completed and no further funding is required. As such, decreases in payments
are usually a direct result of the achievement of the agreement's stated
objective. This in itself could indicate potential steps towards the progressive
realisation of ESC rights in that state or territory.
The assistant minister also sets out other reasons for fluctuations in
payments that do not necessarily reflect retrogressive trends (for example,
structural changes to funding mechanisms as a result of the full implementation
of the National Disability Insurance Scheme).
In relation to the committee's request that the type of information
provided in this response be included in future statements of compatibility,
the assistant minister agreed that from September 2017 onwards, the statements
of compatibility that accompany determinations will be expanded to include this
The committee thanks the assistant minister for his response and
has concluded its examination of the determinations.
The committee welcomes the useful information in relation to the operation
and impact of NPPs set out in this response.
The preceding legal analysis indicates that, based on the
information provided, the NPPs are unlikely to constitute a retrogressive
measure for the purposes of international human rights law.
Based on the information provided, NPPs are likely to assist and
provide a mechanism for the progressive realisation of a number of economic,
social and cultural rights.
The committee welcomes the commitment by the treasurer to include
the above information in future statements of compatibility for related NPP determinations
to assist the committee to fully assess the continued compatibility of NPPs
with human rights.
Mr Ian Goodenough MP
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