Details of the Financial Framework (Supplementary Powers) Amendment
(Infrastructure, Transport, Regional Development and Communications Measures No. 2) Regulations 2020

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Infrastructure, Transport, Regional Development and Communications Measures No. 2) 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 two new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on two activities that will be administered by the Department of Infrastructure, Transport, Regional Development and Communications (the department).

 

New table item 400 establishes legislative authority for government spending on the Distributed National Collections Grant Program - National Conference Bursaries Program (the Bursaries Program).

 

The Bursaries Program supports the Australian Museum and Galleries Association (AMAGA) to provide bursaries to support museum staff and volunteers from regional and remote areas in Australia and Indigenous Australians to participate in training and attend AMAGA's annual National Conference and/or the Regional, Remote and Community Museums Day as a delegate or a speaker.

 

The Bursaries Program is designed to contribute to the overall arts and cultural development work of the department and broader government objectives by providing opportunities for museum workers, volunteers and Indigenous representatives across Australia to engage in professional development, learning, exchange of expertise and networking.

 

The Bursaries Program provides support to assist the collections sector through initiatives that support collections management, conservation, preservation and professional development. It aims to improve public access to Australia's cultural heritage, which is stored in galleries, libraries, archives and museums and strengthen best practice in the Museums and Galleries sector.

 

Grant funding is provided to AMAGA for bursary assistance to attend and/or present at the Museums Australia National Conference and/or the Regional, Remote and Community Museums Day. Payments are made in the first quarter of each calendar year. AMAGA is required to submit a progress report and proof of acquittal of the previous year's funding in order to receive funding for the current year.

 

AMAGA is responsible for administering bursaries to provide for payment of conference registration fees, travel and transfers and accommodation expenses for conference attendees. Applicants apply against eligibility and assessment criteria as outlined in the overarching Distributed National Collections (DNC) Program Guidelines, which have been developed in accordance with the Commonwealth Grants Rules and Guidelines 2017.

 

The Minister for Communications, Cyber Safety and the Arts (the Minister) is the decision-maker for grant expenditure under the Bursaries Program, and all relevant approvals are subject to the Public Governance, Performance and Accountability Act 2013 (PGPA Act). The Minister is supported by officers in the department who assist in the administration of the grant to AMAGA. While officers in the department are not involved in the decision making for awarding of bursaries by AMAGA, they are responsible for reviewing progress reports to ensure funding is awarded in accordance with the DNC Program Guidelines. Officers also make recommendations on whether to allow the release of funding for subsequent years under each funding agreement, based on their review of progress reports and financial acquittal reports.

 

Funding decisions under the Bursaries Program are made objectively, and in accordance with the assessment process set out in the DNC Program Guidelines and applicable legislative requirements under the PGPA Act.

 

The decision to approve or not approve a grant made to an eligible applicant under the Bursaries Program is not subject to secondary or external merits review. A 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 applications can be funded. A reviewed decision made in relation to one grant would affect decisions in relation to others, particularly around funding amounts, which could jeopardise recommended activities. In order to address accountability issues related to the exclusion of a merits review, the Bursaries Program design and approvals process emphasises administrative accountability for decisions to allocate funding.

 

All complaints about the proposal process can be directed to AMAGA for consideration. Persons who are otherwise affected by decisions or who have complaints about the Bursaries Program 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 at http://www.communications.gov.au/who-we-are/department/client-service-charter. 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 as a final recourse.

 

The department reviews annual progress reports provided by AMAGA as required under the funding agreement. Should it be required, the department will consult with AMAGA to clarify or resolve any issue that has been reported in the progress report. At the end of each four-year period, to which the funding agreement applies, the department will consult with AMAGA to ensure the requirements of the program align with the strategic direction of the organisation and to address any issues which have not been resolved through the regular reporting and review process.

 

Funding of $0.088 million over four years from 2020-21 will come from Program 2.1: Arts and Cultural Development, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2019-20, Budget Measures Paper No. 1.3, Communications and the Arts - 'National Cultural Heritage Account' at page 29.

 

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 express incidental power and the executive power (sections 51 (xxxix) and 61), including the nationhood aspect;

*         the communications power (section 51(v));

*         the races power (section 51(xxvi)); and

*         the territories power (section 122).

 

Executive power and express incidental 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 it 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 Bursaries Program shapes Australia's cultural landscape and increases cultural diversity by funding bursaries for museum and gallery workers and Indigenous delegates from regional and remote locations to attend and/or present at the AMAGA National Conference and/or the Regional, Remote and Community Museums Day. The funding assists bursary recipients to gain from the professional development opportunities afforded at these national conference events which in turn will assist in the protection, and development of national collections around Australia.

 

Communications power

 

Section 51(v) of the Constitution empowers the Parliament to 'make laws with respect to postal, telegraphic, telephonic, and other like services'.

 

The Bursaries Program includes funding to support training that occurs online and projects that involves the online digitisation of collections.

 

 

 

Race Power

 

Section 51(xxvi) of the Constitution empowers the Parliament to make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws.'

 

The Bursaries Program provides funding for bursaries for Indigenous delegates from regional and remote Australia to attend and/or present at the Australian Museums and Galleries Association National Conference and/or the Regional, Remote and Community Museums Day.

 

Territories power

 

Section 122 of the Constitution empowers the Parliament to 'make laws for the government of any territory'.

 

The Bursaries Program provides funding for bursaries for museum and gallery workers and Indigenous delegates from the Australian Capital Territory (ACT) and other territories to attend and/or present at the AMAGA National Conference and/or the Regional, Remote and Community Museums Day. Bursaries Program funding assists bursary recipients from both the ACT and the Northern Territory to gain from the professional development opportunities afforded at national conference events, which in turn assist in the protection, and development of national collections around Australia.

 

New table item 401 establishes legislative authority for government spending on certain activities for the 250^th anniversary of James Cook's voyage to Australia and the Pacific as part of the Endeavour 250 initiative.

 

Endeavour 250 seeks to provide Australians with the opportunity to mark the 250^th anniversary of James Cook's voyage along the east coast of Australia with the crew of the HMB Endeavour, and reflect on the legacy and significance of this voyage. It is an opportunity to promote a national conversation that broadens understanding and perspectives on all aspects of Captain Cook's voyage and how it has shaped modern-day Australia.

 

Two cornerstone commemorative activities will be an event at Kamay Botany Bay on 29 April 2020, which includes the unveiling of a commemorative installation to mark the anniversary; and a voyage around Australia by the replica HMB Endeavour, which will visit 38 locations from March 2020 to May 2021, accompanied by a travelling onshore exhibition in selected locations.

 

Legislative authority is required to support two community-based events and activities, including:

*         Sutherland Shire Council's 2020 Meeting of Two Cultures event in Kamay Botany Bay National Park on 29 April 2020, administered through a one-off grant of $90,000.

*         Indigenous cultural events proposed by Gujaga Foundation Limited to take place on 28 and 29 April 2020, complementing the Meeting of Two Cultures event. This will be administered through a one-off grant of $281,716.

 

In addition, legislative authority will also support the provision of grants of $10,000 each through a closed, non-competitive grant opportunity to support local government authorities to undertake Endeavour 250 community events or activities. This funding is expected to be directed to some 34 local government authorities in communities that the replica HMB Endeavour will visit during its commemorative voyages.

 

Funding will be delivered through multiple grants in accordance with the Commonwealth Grants Rules and Guidelines 2017 (CGRGs) and the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

 

The Meeting of Two Cultures event will be funded through a one-off grant opportunity to the Sutherland Shire Council (SSC). The SSC is the local government authority representing the area in which the annual event is held. This is where James Cook and the crew of HMB Endeavour first came ashore in Australia in 1770. Given that it has held the event in previous years, the SSC was identified as the most appropriate organisation to host the 2020 event.

 

Gujaga Foundation Limited will receive funding for two cultural events - an evening corroboree/Gweagal ceremony on 28 April 2020 and a morning corroboree/Welcome to Country on 29 April 2020 - through a one-off grant opportunity. Given Gujaga Foundation Limited's connection to the local Indigenous community in the La Perouse area, it has been identified as the most appropriate organisation to host and coordinate these cultural events.

 

Support for eligible local government authorities to host Endeavour 250 community events or activities will be delivered through a closed, non-competitive grant opportunity. Individual grants of $10,000 will be available to some 34 local government authorities in communities that the replica HMB Endeavour will visit during its commemorative voyages.

 

The Minister for Communications, Cyber Safety and the Arts (the Minister) will be the decision-maker for all grants. All relevant approvals are subject to the PGPA Act. Funding decisions are made objectively, in accordance with the assessment process and eligibility criteria set out in each of the grant opportunity guidelines, and in accordance with the applicable legislative requirements under the PGPA Act.

 

Independent review will not be available for the Meeting of Two Cultures event, as it will be a closed, one-off payment, for a specific purpose and to be delivered by a specific entity. The grant will be directly negotiated and agreed with the Sutherland Shire Council and Gujaga Foundation Limited. No third party's interests will be affected by the making of the one-off grant.

 

Independent review will also not be available for grants to local government authorities due to the closed and non-competitive grant process. 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 program's design and approvals process emphasises administrative accountability for decisions to allocate funding.

 

An applicant who is dissatisfied about the handling of their grant application under the program by the department will be able to lodge a complaint to the Program Manager for consideration.

 

Applicants who are otherwise affected by decisions or who have complaints about the program also have recourse to the department, in accordance with the department's Client Service Charter, and such complaints would be investigated under the department's complaints policy and procedures. Information on the Charter and the handling of complaints is available at www.communications.gov.au/who-we-are/department/client-service-charter. If the applicant is not satisfied with the outcome of the department's assessment or investigation of their complaint, they will be able to contact the Commonwealth Ombudsman as a final recourse.

 

Funding of $0.7 million in 2019-20 for the additional items listed above will come from within Program 2.1: Arts and Cultural Development, which is part of Outcome 2. Details for Outcome 2 are set out in the Portfolio Budget Statements 2019-20, Budget Related Paper No. 1.3, Communications and the Arts Portfolio at pages 45-46.

 

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 express incidental power and the executive power (sections 51 (xxxix) and 61), including the nationhood aspect; and

*         the races power (section xxvi).

 

Executive power and express incidental 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.

 

Grants provided under the program will support events and activities that mark an event of national significance, and will contribute to the broader national Endeavour 250 program of commemorations.

 

Race power

 

Section 51(xxvi) of the Constitution empowers the Parliament to make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws'.

 

The program includes funding for a proposed one-off grant to be provided to Gujaga Foundation Limited for two Indigenous cultural events associated with the broader commemorative events. These events include an evening corroboree/Gweagal ceremony on 28 April 2020 and a morning corroboree/Welcome to Country on 29 April 2020. Gujaga Foundation Limited is an Indigenous not-for-profit organisation with connections to the local Indigenous community in the La Perouse area.

 

 

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 (Infrastructure, Transport, Regional Development and Communications Measures No. 2) 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 (Infrastructure, Transport, Regional Development and Communications Measures No. 2) Regulations 2020 amend Schedule 1AB to the (FF(SP) Regulations to add two new table items to establish legislative authority for government spending on certain activities that are administered by the Department of Infrastructure, Transport, Regional Development and Communications (the department).

 

This instrument adds the following table items to Part 4 of Schedule 1AB:

• table item 400 for the Distributed National Collections Grant Program; and

*         table item 401 for the 250^th Anniversary of James Cook's Voyage to Australia and the Pacific program.

 

Table item 400 - Distributed National Collections Grant Program

 

Table item 400 establishes legislative authority for government spending on the Distributed National Collections Grant Program (the DNC Program) - National Conference Bursaries Program (the Bursaries Program).

 

The Bursaries Program supports the Australian Museum and Galleries Association (AMAGA) to provide bursaries that support museum staff and volunteers from regional and remote areas in Australia and Indigenous Australians to participate in training and attend AMAGA's annual National Conference and/or the Regional, Remote and Community Museums Day as a delegate or a speaker.

 

The Bursaries Program is designed to contribute to the overall arts and cultural development work of the department and broader government objectives by providing opportunities for museum workers, volunteers and Indigenous representatives across Australia to engage in professional development, learning, exchange of expertise and networking.

 

The Bursaries Program provides support to assist the collections sector through initiatives that support collections management, conservation, preservation and professional development. It aims to improve public access to Australia's cultural heritage which is stored in galleries, libraries, archives and museums and strengthen best practice in the Museums and Galleries sector.

 

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

 

Human rights implications

 

Table item 400 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 Bursaries Program provides opportunities for Australians to partake in cultural life by funding regional, remote and Indigenous museum and gallery workers to engage in professional development, learning, exchange of expertise and networking. It also aims to provide opportunities to regional, remote and indigenous museum and gallery workers to participate in training and attendance at national conferences. Priority is given to Indigenous Australians, and volunteers from regional and remote locations, and then to those volunteering in small, community museums. These activities improve public access to Australia's cultural heritage which is stored in galleries, libraries, archives and museums and strengthen best practice in the museums and galleries sector.

 

Conclusion

 

Table item 400 is compatible with human rights as it does not raise any human rights issues.

 

Table item 401 - 250^th Anniversary of James Cook's Voyage to Australia and the Pacific program

 

Table item 401 establishes legislative authority for government spending on certain events and activities associated with the 250^th Anniversary of James Cook's Voyage to Australia and the Pacific as part of the Endeavour 250 program.

 

The Endeavour 250 commemorations provide Australians with the opportunity to mark the anniversary and to reflect on the legacy and significance of James Cook's voyage along the east coast of Australia with the crew of the HMB Endeavour. It is also an opportunity to promote a national conversation that broadens understanding and perspectives on all aspects of Cook's voyage and how it has shaped modern-day Australia.

 

The Endeavour 250 commemorations are intended to contribute to the overall arts and cultural development work of the Arts portfolio and broader government objectives by supporting events and activities that encourage Australians to share their views and reflect on the meaning and significance of this event in the nation's history.

 

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

 

Human rights implications

Table item 401 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 Endeavour 250 program of commemorations provides opportunities for Australians to partake in cultural life by funding events and activities that promote cultural expression, truth-telling and the sharing of views and perspectives associated with the 250^th anniversary. The funding that the Australian Government has provided as part of the Endeavour 250 commemorations improves public access to Australia's cultural heritage, including Australia's Indigenous heritage.

Conclusion

 

Table item 401 is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance