Details of the Financial Framework (Supplementary Powers) Amendment (Communications and the Arts Measures No. 4) Regulations 2019

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Communications and the Arts Measures No. 4) Regulations 2019.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after they are 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 Communications and the Arts (the department).

 

New table item 363 provides legislative authority for Government spending on the International Cultural Diplomacy Arts Fund (the Fund). The Fund supports the Government to fulfil international commitments related to arts and culture, and support strategic initiatives for international arts and cultural engagement, as well as cultural diplomacy priorities.

 

Government spending through the Fund will support targeted arts and cultural activities that have an international dimension in Australia and overseas, and will be open to activities that support the whole of the arts sector and industry-wide initiatives, including research activities. For example, activities that will:

*         fulfil Australia's international commitments in relation to arts and culture, including by making payments to international organisations;

*         support the cooperation and collaboration of Australian and international arts and cultural practitioners;

*         support international residencies, exchanges and touring by Australian artists;

*         support residencies, exchanges and touring by overseas artists to Australia;

*         support Australia's foreign and diplomatic relations through the use of Australian arts and culture, including through meetings and cultural dialogue;

*         provide assistance for Australian artists to access foreign audiences and markets;

*         support international arts and cultural fora, festivals and other events; and

*         support research in relation to international arts and cultural activities.

 

The department will deliver the Fund through a targeted, closed, and non-competitive grant process. The grant will be opened to all art forms and cultural expressions such as music, literature, theatre, dance, design, visual arts, cross-media, and film and screen-based arts.

 

Grant funding will be provided to organisations and individuals and in some circumstances may be provided through other Commonwealth entities such as the Australia Council under a record of understanding to deliver outcomes and Creative Partnerships Australia or Commonwealth entities such as the Department of Foreign Affairs and Trade.

 

The Minister for Communications, Cyber Safety and the Arts (the Minister) is the decision-maker in all matters of the Fund including the approval of the grant and amount of the grant. Expenditure under the Fund and all relevant approvals are subject to the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). The Minister is supported by officers in the department, who assess grant proposals on their merits against the requirements of the Fund Guidelines. The Fund Guidelines have been developed in accordance with the CGRGs and include eligibility and assessment criteria for providing grants under the Fund.

 

Recipients of grants are listed on GrantConnect in accordance with the CGRGs, paragraph 5.3. Grant funding is approximately $1.2 million per annum indexed and ongoing. Funding will not be capped for individual applications and funding provides support to approximately ten projects per year. Funding is available through single or multi-year funding agreements with the Commonwealth. While in practice the majority of approvals for individual projects have been made using single year agreements, there is provision in the Fund Guidelines for opportunities that build collaborative outcomes and exchange over multiple years. Applicants will usually be advised of the assessment outcome in writing within ten weeks.

 

In the majority of cases, funding is administered by the department through grant agreements between the Commonwealth and grant recipients. For activities where a grant agreement is not an appropriate arrangement for the funding, an alternative arrangement, such as a memorandum of understanding, will be used. For example, the department may from time to time, enter into an arrangement with another Australian Government department or government entity to undertake a specific activity under the Fund such as research through the Australian Bureau of Statistics, to make a payment to support international UNESCO projects or to support activities through Australian embassies or high commissions.

Information on funding decisions is made publicly available on GrantConnect at www.grantconnect.gov.au.

 

Ongoing funding for the Fund is from the department's Budget Statements, Outcome 2, Program 2.1: Arts and Cultural Development. Funding of $4.8 million over four years from 2019-20 is part of Outcome 2 as set out in the Portfolio Budget Statements 2019-20, Budget Related Paper No. 1.3, Communications and the Arts Portfolio at pages 29-33.

 

The decision to approve or not approve a grant made to an eligible applicant under the Fund is not subject to secondary or external merits review. The Minister's decision to approve funding is based on the allocation of finite resources. With a need that exceeds the limit of the funding available, only a proportion of suitable projects can be funded. A reviewed decision made in relation to one grant would affect decisions in relation to others, particularly around timing and funding amounts, which could jeopardise recommended activities. In order to address accountability issues related to the exclusion of a merits review, the Fund's design and approvals process emphasises administrative accountability for decisions to allocate funding.

 

The Fund Guidelines set out the complaints mechanism for lodging a complaint about the assessment process under the Fund. All complaints about the proposal process should be directed to the Program Manager for consideration.

 

Persons who are otherwise affected by decisions or who have complaints about the Fund also have recourse through the department's Client Service Charter. Complaints are investigated under the department's complaints policy and procedures. Information on the Charter and the handling of complaints is available on the department's website. If the person is not satisfied with the outcome of the department's assessment or investigation of their complaint, the person has the option to contact the Commonwealth Ombudsman.

 

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 (s 51(xxix))
• the trade and commerce power (s 51(i))
• the aliens power, (s 51(xix))
• the express incidental power and the executive power (sections 51(xxxix) and 61), including the nationhood aspect.

 

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 or things outside the geographical limits of Australia, as well as legislation with respect to matters concerning Australia's relations with other nations and international persons.

 

The Fund aims to assist Australian artists to undertake activities overseas and to support Australia's international relationships through the use of Australian arts and cultural activities.

 

Trade and commerce power

 

Section 51(i) of the Constitution empowers the Parliament to make laws with respect to 'trade and commerce with other countries, and among the states.'

 

The Fund seeks to facilitate trade and commerce between Australian artists and international markets.

 

Aliens power

 

Section 51(xix) of the Constitution empowers the Parliament to make laws with respect to 'aliens'.

 

The Fund seeks to facilitate visits to Australia by people who are not Australian citizens to undertake cultural activities.

 

Express incidental power and the executive power, including the nationhood aspect

 

The express incidental power in section 51(xxxix) of the Constitution empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested in the Parliament, the executive or the courts by the Constitution. Section 61 of the Constitution supports activities that are peculiarly adapted to the government of a nation and cannot be carried out for the benefit of the nation otherwise than by the Commonwealth.

 

The Fund supports international arts and cultural activities and commitments which are 'national' in scope, including but not limited to activities in Australia that have an international dimension and overseas activities that are of Australian origin.  

 

 

 

 

 

 

 

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 (Communications and the Arts Measures No. 4) 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 (Communications and the Arts Measures No. 4) Regulations 2019 amend Schedule 1AB to the FF(SP) Regulations to add a new table item 363 to establish legislative authority for Government spending on the International Cultural Diplomacy Arts Fund (the Fund). The Department of Communications and the Arts (the department) has administrative responsibility for this spending activity.

 

The Fund supports the Government to fulfil international commitments related to arts and culture, and support strategic initiatives for international arts and cultural engagement, as well as cultural diplomacy priorities.

 

Government spending through the Fund will support targeted arts and cultural activities that have an international dimension in Australia and overseas, and will be open to activities that support the whole of the arts sector and industry-wide initiatives, including research activities. For example, activities that will:

• fulfil international commitments including payments to international organisations;
• support the cooperation and collaboration of Australian and international practitioners;
• support international residencies, exchanges, and tours;
• support foreign and diplomatic relations;
• assist Australian artists to access foreign audiences and markets; and
• support international festivals.

 

The Minister for Communications, Cyber Safety and the Arts has portfolio responsibility for this matter.

 

 

 

Human rights implications

 

This instrument engages the following human right:

 

*         the right of all persons to take part in cultural life in Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

Article 15(1)(a) of the ICESCR requires State Parties to protect the right of all persons to take part in cultural life. Article 15(4) requires State Parties to recognise the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

 

The Fund will provide opportunities for Australians to partake in cultural life by funding arts and cultural activities in Australia. The Fund supports a wide variety of art forms and cultural expressions, including music, literature, theatre, dance, design, visual arts, cross-media, and film and screen-based arts. The Fund also supports arts and cultural activities that take place internationally. These activities foster international relations and cultural understanding, and will encourage and develop international contacts and co-operation in the cultural field.

 

Conclusion

 

This instrument is compatible with human rights as it engages with and promotes human rights in relation to the right of all persons to take part in cultural life.

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance