FINANCIAL FRAMEWORK (SUPPLEMENTARY POWERS) AMENDMENT (INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT, COMMUNICATIONS AND THE ARTS MEASURES NO. 3) REGULATIONS 2023 (F2023L01098) EXPLANATORY STATEMENT

Attachment A

Details of the Financial Framework (Supplementary Powers) Amendment
(Infrastructure, Transport, Regional Development, Communications and the Arts Measures No. 3) Regulations 2023

Section 1 - Name

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Infrastructure, Transport, Regional Development, Communications and the Arts Measures No. 3) Regulations 2023.

Section 2 - Commencement

This section provides that the Regulations commence on the day after registration 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

Financial Framework (Supplementary Powers) Regulations 1997

Item 1 - In the appropriate position in Part 3 of Schedule 1AB (table)

This item adds one new table item to Part 3 of Schedule 1AB to establish legislative authority for government spending on a certain activity administered by the Department of Infrastructure, Transport, Regional Development, Communications and the Arts
(the department).

New table item 72 establishes legislative authority for the Government to provide a grant to the Australian Youth Orchestra (AYO) to deliver the National Music Teacher Mentoring Program.

The AYO, established in 1948, is one of the seven national performing arts training organisations provided with operational funding by the Australian Government through the Arts and Cultural Development Program. It provides pre-professional development and training for talented young Australian musicians and composers, allowing them to extend their music training and experience through national and international programs. The AYO has been funded directly by the Australian Government since 1993.

The AYO delivers the National Music Teacher Mentoring (NMTM) Program which seeks to establish mentoring relationships between music education professionals and generalist classroom teachers with the goal of enriching music education practice in Australian classrooms. The NMTM Program partners with state education departments, music education societies, schools and other education organisations to deliver the program flexibly to best meet the needs of schools in participant states. Depending on the delivery model in participating states, schools may be selected, based on need, or apply through a state education department.

Since its inception in 2015, the NMTM Program has improved the music education competencies of 634 classroom teachers, benefitting over 54,000 students in 319 schools across Australia. The NMTM Program has been supported by the Government through
one-off terminating grants with total funding of $1.7 million provided since its commencement. Government funding has been matched on a one-for-one basis with philanthropic funds and it is expected that the current level of philanthropic support will be maintained due to the program's reach and impact.

Funding of $1.1 million over four years from 2023-24 will ensure continued delivery of the NMTM Program objectives by funding costs that include but are not limited to, program administration, program manager salary and administrative costs, costs associated with hosting and delivering of mentoring workshops, including teacher resources and reasonable travel costs for participants.

The funding supports the Government to achieve its National Cultural Policy: Revive: a place for every story, a story for every place, specifically delivering on the policy outcomes for Centrality of the Artist which focuses on the integration of arts and culture in education.

The intended outcomes of the NMTM Program are to:

improve confidence, capability and competence of generalist classroom teachers in teaching music education in Australian classrooms; and
improve student engagement and music education outcomes.

Funding is provided over four years from 2023-24 through a multi-year funding agreement. The AYO must demonstrate it is delivering outcomes against the objectives of the grant through regular progress reports provided to the department. The reports include information on business development and partnerships, statistics, and an evaluation of progress to demonstrate how the outcomes are being achieved.

The grant to the AYO will be undertaken through a targeted, closed and non-competitive grants process and will be administered in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs).

Information about the grant, including grant opportunity guidelines, will be made available on the GrantConnect website (www.grants.gov.au), and the grant will be administered using SmartyGrants, under licence by the department.

The Minister for the Arts will approve the grant opportunity guidelines and the allocation of grant funding. Following approval, the AYO is required to enter into a legally binding grant agreement to deliver the agreed activity within defined terms and conditions. Payments are made after the funding agreement is signed by the recipient and the Commonwealth, and on receipt of a correctly rendered invoice and acceptance of relevant progress reports.

Independent merits review of funding decisions made in connection with the grant would not be considered appropriate because the decisions relate to an allocation of a finite resource. Funding is provided to the AYO to support a specific purpose to deliver the NMTM Program. The Administrative Review Council (ARC) has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.18 of the guide, What decisions should be subject to merit review? (ARC guide)).

Since the establishment of the NMTM Program, the Office for the Arts, part of the department, has sought and received feedback on the effectiveness of the program through regular progress reports submitted by the AYO. These reports demonstrate that the Commonwealth funding enables the AYO to effectively deliver the NMTM Program.

Funding of $2.6 million was included in the 2023-24 Budget under the measure 'Revive - National Cultural Policy and Location Incentive' for a period of four years from 2023-24. Details are set out in the Budget 2023-24, Budget Measures, Budget Paper No. 2 at pages 181-182.

Funding for this item of $1.1 million over four years from 2023-24 will come from
Program 6.1: Arts and Cultural Development, which is part of Outcome 6. Details are set out in the Portfolio Budget Statements 2023-24, Budget Related Paper No. 1.12, Infrastructure, Transport, Regional Development, Communications and the Arts Portfolio at page 85.

Noting that it is not a comprehensive statement of relevant constitutional considerations, the purpose of the item references the following powers of the Constitution:

the external affairs power (section 51(xxix));
the social welfare power (section 51(xxiiiA)); and
the executive power and express incidental power (sections 61 and 51(xxxix)), including the nationhood power.

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.

The program may assist Australia to meet its obligations under the Convention on the Rights of the Child (CRC), particularly Articles 4, 13(1) and 29(1).

Article 4 of the CRC provides that 'States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.'

Article 13(1) of the CRC provides that '[t]he child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice.'

Article 29(1) of the CRC provides that 'States Parties agreed that the education of the child shall be directed to ... [t]he development of the child's personality, talents and mental and physical abilities to their fullest potential'.

The program promotes the objectives of Articles 4, 13(1) and 29(1) of the CRC as it is directed at improving the quality of music teaching in Australian primary classrooms by pairing experienced music teachers with generalist classroom teachers in a mentoring environment. The program is also directed at core educational activities that are central to the development of the talents and abilities of children.

Social welfare power

The social welfare power in section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits which include benefits to students.

The program is directed at improving the quality of music teaching in Australian primary classrooms by pairing experienced music teachers with generalist classroom teachers in a mentoring environment. The program may provide benefits to students including through improved student engagement and music education outcomes.

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.

The program is concerned with developing and fostering excellence in music education, as a national initiative in the arts.

Item 2 - In the appropriate position in Part 4 of Schedule 1AB (table)

This item adds three new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on certain activities to be administered by the department.

New table item 617 establishes legislative authority for government spending on the Growing Regions Program (the program), which seeks to provide funding for capital works for community infrastructure across regional Australia.

The program is part of a $1.0 billion funding package together with the Regional Precincts and Partnerships Program, announced by the Minister for Infrastructure, Transport, Regional Development and Local Government, the Hon Catherine King MP in the 2022-23 Budget to restore integrity to regional funding in community infrastructure. The media release is available at https://minister.infrastructure.gov.au/c-king/media-release/restoring-integrity-regional-funding.

The program will help drive regional economic prosperity by providing access to funding for infrastructure across Australia's rural and regional areas. It will deliver community and economic benefits by investing in community-focused infrastructure which grows or revitalises regions and enhances amenity and liveability. This reflects the guiding principles of the Regional Investment Framework (the Framework) included in the Regional Ministerial Budget Statement 2023-24: Working Together to Build Strong and Sustainable Regions (https://www.infrastructure.gov.au/sites/default/files/documents/final_2023-24_rmbs.pdf).

The guiding principles under the Framework include:

realising the Government's ambition of "no one held back and no one left behind" requires specific regional investment across portfolios;
Australia's regions and their economies are diverse, with each having unique strengths and challenges;
regionalisation (delivering on the potential of regional Australia) requires building on each region's unique strengths, including helping regions undergoing significant economic change transition or adapting to specific structural challenges; and
place-based decision making that draws on the experience of local government alongside regional bodies must guide investment in our regions.

Funding of $600.0 million over three years from 2023-24 will provide grants of between $500,000 to $15.0 million for upgrading or constructing community infrastructure over two funding rounds which aim to:

fill an identified gap or need for community infrastructure;
contribute to a wide range of community socio-economic outcomes; and is
strategically aligned with regional priorities.

Round one projects are expected to be completed by 31 December 2025 and financially acquitted by 30 June 2026. Dates for the second round are yet to be determined, and each round is expected to have $300.0 million available funding.

The intended outcomes of the program are to:

deliver community-focused infrastructure which contributes to local and regional priorities;
provide infrastructure which benefits the community by improving equity and support;
diverse social inclusion;
grow local economies and enhance amenity and liveability in the regions; and
add to broader government priorities such as net zero emissions, gender equity, and/or First Nations priorities.

The types of projects expected to be funded by the program include construction of tourist and walking trail projects, community sports facility upgrades, sports hubs, aquatic centres, revitalisation of town centres, libraries, galleries, creative precincts, and arts centres. For projects to be eligible for this grant program, they must:

comprise one of the following activities:

construct new community infrastructure;
expand or upgrade existing community infrastructure;

not have commenced; and
not have received Commonwealth funding to undertake the same grant activities.

The department will deliver the program as an open competitive grants program in accordance with applicable legislative requirements under the PGPA Act and the CGRGs.

Consistent with government priorities, the program has been designed to ensure a higher standard of accountability and integrity in awarding of grants, and will be open to local governments and not-for-profits which fall outside of Greater Capital City Statistical Areas. State and territory governments, private enterprise and for-profit entities are not eligible for the grant.

Eligibility of applications will be assessed in a two-stage process. Expressions of interest (EOI) will be assessed initially by the Business Grants Hub within the Department of Industry, Science and Resources (DISR) in terms of eligibility for the program. If eligible, they will be analysed to understand how the project aligns with the program objectives and how ready it is to proceed (Assessment criterion 1 - EOI). This information will then be provided to the multi-party Parliamentary panel, which has been established to assess how strongly projects align with the regional priorities for the area (Assessment criterion 2 - EOI).

Projects which meet all eligibility criteria and score highly in the EOI process will be invited to submit a full application. Those applicants submitting a full application will be required to address the published selection criteria in the grant opportunity guidelines and include evidence to support their claims. The criteria will consider the project's contribution to economic opportunity and social and community inclusion, how it aligns with broader government and regional strategic priorities, and the grantee's capacity, capability and resources to deliver and sustain the project.

The Business Grants Hub will receive and assess these applications to provide a merit score for each application. The department will then provide a ranking of the applications with a funding recommendation to the program delegate, the Minister for Infrastructure, Transport, Regional Development and Local Government for approval. These recommendations will clearly outline the projects recommended to be funded up to each round's funding envelope.

If successful, grantees will enter into funding agreements with the department to release grant payments based on the progress of the project. Consistent with other grant programs such as the Investing in Our Communities Program and the Priority Community Infrastructure Program, the department will generally make payments in arrears, which reflects the risk profile of the program in making payments to a range of not-for-profits and local government bodies.

The Business Grants Hub will undertake all contracting processes, and the department will play a role in management of project contracts - specifically exercising delegation for variations.

The guidelines are available on the department's website and on GrantConnect at www.grants.gov.au. The department will also publish details of the grants awarded on GrantConnect.

Funding decisions made in connection with the grant are not suitable for independent merits review, as they are decisions relating to the allocation of a finite resource, from which all potential claims for a share of the resource cannot be met. Further, if one allocation of funding were altered, this has the potential to affect all other grants. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.15 of the ARC Guide).

The review and audit process undertaken by the Australian National Audit Office (ANAO) provides a mechanism to review Australian Government spending decisions and report any concerns to the Parliament. These requirements and mechanisms help to ensure the proper use of Commonwealth resources and appropriate transparency around decisions relating to making, varying or administering arrangements to spend relevant money. Persons and organisations affected by decisions would also have recourse via the Commonwealth Ombudsman where appropriate.

The department undertook external consultation on the design principles of the program with stakeholders across local government, peak bodies, and Regional Development Australia committees in March 2023. Consultations were delivered via virtual roundtables and sought feedback on the design principles. Stakeholder feedback indicated strong support for the program. For the geographic eligibility requirement, stakeholders agreed any of the many definitions of 'regional' would be suitable even though there would always be communities which would miss out. Stakeholders confirmed they wanted to be involved in the design of the program and are keen to ensure regional priorities are met.

The responsible branch also consulted widely within the department throughout the design phase to utilise expertise and experience from across the department. Further, the department has consulted on the design of assessment criteria with the Business Grants Hub.

Funding of $1.0 billion was included in the October 2022-23 Budget under the measure 'Responsible Investment to Grow Our Regions' for a period of three years commencing in 2023-24. Details are set out in Budget October 2022-23, Budget Measures, Budget Paper
No. 2 at page 163.

Funding for this item of $600.0 million over three years from 2023-24 will come from
Program 3.1: Regional Development, which is part of Outcome 3. Details are set out in the Portfolio Budget Statements 2023-24, Budget Related Paper No. 1.12, Infrastructure, Transport, Regional Development, Communications and the Arts Portfolio at page 62.

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 trade and commerce power (section 51(i));
the communications power (section 51(v));
the race power (section 51(xxvi));
the external affairs power (section 51(xxix));
the power to grant financial assistance to States (section 96); and
the territories power (section 122).

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 program involves providing access to funding for infrastructure across Australia's rural and regional areas that may foster interstate and/or international trade and commerce activities.

Communications power

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

Some of these grants may relate to electronic communications.

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'.

Some of these grants may be used to support Indigenous Australians or particular groups of

Indigenous Australians.

External affairs power

Projects funded by the program may assist Australia to meet its obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Articles 2 and 6, and under the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122), particularly Articles 1 and 2.

Article 2 of the ICESCR obliges each State Party to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources with a view to achieving progressively the full realisation of the rights recognised in the ICESCR by all appropriate means, including particularly the adoption of legislative measures.

By Article 6 of the ICESCR, the States Parties recognise the right to work, which includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept. Article 6 obliges each State Party to take appropriate steps to safeguard this right and, in taking steps to realise the right, to include technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and full and production employment under conditions safeguarding fundamental political and economic freedom to the individual.

Article 1 of the ILO Convention 122 obliges each Member to declare and pursue an active policy designed to promote full, productive and freely chosen employment with the aim of ensuring that there is productive work for all who are available for and seeking work, and that workers of all different backgrounds have freedom of choice over what type of work they wish to do.

Article 2 of the ILO Convention 122 obliges each Member to decide on and keep under review the measures adopted for attaining the objectives specified under Article 1, within the framework of a co-ordinated economic and social policy, and take such steps as may be needed, including the establishment of programs, for the application of those measures.

The program involves providing access to funding for infrastructure across Australia's rural and regional areas, and will create jobs associated with those projects, therefore supporting and enhancing employment.

Power to grant financial assistance to States

Section 96 of the Constitution empowers the Parliament to 'grant financial assistance to any State on such terms and conditions as the Parliament thinks fit'.

The program involves providing access to funding for infrastructure across Australia's rural and regional areas. Some of these grants may be made to local government bodies or other organisations that constitute the State for the purposes of section 96 of the Constitution.

Territories power

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

The program involves providing access to funding for infrastructure across Australia's rural and regional areas. Some of these grants may be in, or in relation to, a Territory.

New table item 618 establishes legislative authority for government spending on the National Road Safety Action Grants Program (the program), which seeks to reduce deaths and injuries from road crashes in Australia by funding activities or projects that relate to
non-infrastructure commitments in the National Road Safety Action Plan 2023-25 (the Action Plan).

The program was announced by the Minister for Infrastructure, Transport, Regional Development and Local Government, the Hon Catherine King MP, on 9 May 2023 as part of the 2023-24 Budget (https://minister.infrastructure.gov.au/c-king/media-release/budget-2023-24-strengthening-australias-120-billion-infrastructure-pipeline).

The program responds to the Australian Government's commitment to Vision Zero - zero deaths and serious injury due to road crashes, by 2050. This objective is reflected in the National Road Safety Strategy 2021-30 (Strategy) (https://www.roadsafety.gov.au/nrss) and the Action Plan (https://www.roadsafety.gov.au/action-plan/national-road-safety-action-plan-2023-25), which has been agreed by the Australian Government and state and territory governments.

The fatality rate on Australia's roads is increasing in recent years. In 2022, 1,193 people died on Australia's roads. Australian governments at all levels are working together with our communities to change the road transport system to prevent deaths and serious injuries towards our shared goal of Vision Zero.

The Strategy sets out Australia's road safety targets over the next decade - to reduce the annual numbers of fatalities by at least 50 per cent (an estimated reduction in the fatality rate per capita of 55 per cent) by 2030 and to reduce the annual number of serious injuries by at least 30 per cent (an estimated reduction in the serious injury rate per capita of 38 per cent) by 2030 - and includes nine key priorities to reduce the annual number of fatalities and serious injuries. The Strategy continues Australia's commitment to the Safe System approach and to strengthening all elements of our road transport system through improvements under three key themes: Safe Roads, Safe Vehicles and Safe Road Use.

The Action Plan details the key actions the Australian Government and state and territory governments will undertake to 2025 in pursuit of the agreed priorities identified in the Strategy. The Australian Government is responsible for 46 actions in the Action Plan. The program will focus on five key areas of activity critical to the delivery of the Action Plan:

Community Education and Awareness, including workplace road safety;
Vulnerable Road Users;
First Nations road safety;
Technology and Innovation; and
Research and Data.

Community Education and Awareness, including workplace road safety

This group of activities aims to fund road safety community education, awareness and collaborative campaigns, programs and initiatives; programs to educate young or disadvantaged drivers in road safety and to support them to gain their licence as well as workplace road safety awareness and education campaigns, programs and initiatives.

The intended outcomes are:

increased awareness, understanding and skills among target populations;
reduction in risky behaviours such as driver distraction, drink or drug driving;
improved interaction between heavy vehicles and other road users;
improved education among young and disadvantaged drivers;
increased support for young and disadvantaged drivers to gain their licences;
improved workplace road safety; and
increased compliance with road safety and Work Health and Safety laws and policies.

Vulnerable Road Users

This group of activities aims to fund projects that promote safe road use and access for all road users including:

* initiatives focussed on better sharing the road safely with motorcycles, cyclists, micro mobility devices and heavy vehicles;

* initiatives which focus on pedestrians, especially children, people with a disability and the elderly who are particularly vulnerable to injury or death in a crash; and

* identify and develop vulnerable road user technologies or research.

The intended outcomes are a reduction in the number of vulnerable road user deaths and serious injuries on our roads and a national approach to vulnerable road user education.

First Nations road safety

This group of activities aims to fund projects that will deliver local solutions for First Nations communities, and also support culturally relevant road safety messaging. Activities could include, improving access to culturally appropriate road safety education, young driver training activities, support for First Nations peoples to obtain a driving permit, community group activities that improve road safety outcomes or education campaigns with relevant road safety messages. Subject to consultation, the Government intends these projects will:

* improve access to road safety education and awareness for First Nations peoples; and

* assist government understand road safety priorities in First Nations communities and tailor solutions to match.

The intended outcomes are:

* reduction in the number of serious injuries of First Nations peoples from road trauma;

* reduction in the number of deaths on our roads of First Nations peoples; and

* higher awareness amongst First Nations peoples of road safety issues.

Technology and Innovation

The group of activities aims to examine and conduct research into the effectiveness of new road and vehicle safety technologies and fund projects to deliver new road safety technologies, innovations or initiatives.

The intended outcomes are:

* advancements in technologies, innovations or initiatives that lead to a reduction of fatalities or serious injuries on our roads nationally; and

* developments in road and vehicle safety technologies and initiatives specific to the Australian context.

Research and Data

The group of activities aims to:

* fund projects that will extend or develop national road safety research and data capabilities;

* collate new, or analyse existing data to identify emerging trends in fatal or serious injury crash causation, types of crashes, vehicle types in crashes or any other innovative uses of data that could lead to a reduction in fatalities or serious injuries nationally; and

* examine and conduct research into fatal and serious injury crash causation and/or prevention methods to lead to a reduction in fatalities and serious injuries.

The intended outcomes are:

* improved understanding of emerging and ongoing road safety issues in Australia; and

* provide an evidence-base for future road safety policy and investments.

The program also includes $6.0 million to retain the existing Safe Roads for Safe Cycling (Amy Gillet Foundation) Program to 2023-24 to support, enhance and embed best-practice road building for safe cycling into the delivery of road and street infrastructure projects throughout Australia. Guided by the Safe System approach to Road Safety, the Safe Roads for Safe Cycling Program is designed to improve road safety outcomes. The long-term aim being to prevent fatal and serious injury related bicycle road crashes on Australian roads and create a safe and sustainable road transport system with zero deaths and serious injuries.

The department will deliver the program as an open competitive grants program in accordance with applicable legislative requirements under the PGPA Act and the CGRGs. Allocation of funding through Safe Roads for Safe Cycling Program will be progressed through a closed round grant opportunity. Funding applications will be assessed against eligibility criteria outlined in the Program Guidelines, which have been separately developed to support the two different grant opportunities.

Various requirements will apply to the funding, including that:

grant money can only be used on an activity that directly relates to the intended outcomes of the program, including:

research and data collection;
innovative approaches to explore a Safe System approach to reducing fatalities and serious injuries on our roads;
exploration of mechanisms to better inform road design to improve safety;
innovative solutions for the protection of vulnerable road users; and
collating best practice evidence to inform future road design;

grantees must make a funding contribution towards the grant activity that equates to over 30 per cent of the total activity cost;
grantees agree that data and research obtained through the activity must be made available to the Australian Government;
all grant activity must be completed by 31 January 2026, with final reports and financial acquittals provided no later than 30 April 2026; and
reporting be provided, including on amounts spent, details of progress and evaluation of the activity, as per an agreed upon schedule outlined in the individual Grant Agreements.

The guidelines are available on the department's website and on GrantConnect at www.grants.gov.au. The department will also publish details of the grants awarded on GrantConnect.

The Assistant Minister for Road Safety will be responsible for approving the selection of successful projects, following recommendations from an independent assessment panel.

Funding decisions made in connection with the program are not suitable for independent merits review, as these decisions relate to the provision of a one-off grant to a certain service provider, over other service providers. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.16 to 4.19 of the ARC Guide).

The review and audit process undertaken by the ANAO also provides a mechanism to review Australian Government spending decisions and report any concerns to the Parliament. These requirements and mechanisms help to ensure the proper use of Commonwealth resources and appropriate transparency around decisions relating to making, varying or administering arrangements to spend relevant money.

Further, the right to review under section 75(v) of the Constitution and review under section 39B of the Judiciary Act 1903 may be available. Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

Merits review of decisions under the program is not available, and the Minister's decision is final in all matters, including the approval of the grant and the grant amount to be awarded.

The Strategy was agreed by the Australian Government and all state and territory governments in May 2021. The Action Plan was agreed by all Infrastructure and Transport Ministers in December 2022. The Action Plan was developed cooperatively by the Australian, state and territory government, in consultation with key road safety stakeholders and the Australian Local Government Association. The program has been developed around five key areas of focus activity critical to the delivery of the Action Plan.

Further, the department will seek advice and views from First Nations stakeholders in road safety in developing the guidelines for the First Nations road safety grant opportunity. This funding stream opens in October-December 2023 to allow the department time to build trusted relationships with First Nations organisations and communities to co-design a culturally appropriate national approach to community-led road safety initiatives.

Funding of $43.6 million was included in the 2023-24 Budget under the measure 'Supporting Transport Priorities' for a period of four years commencing in 2022-23. Details are set out in the Budget 2023-24, Budget Measures, Budget Paper No. 2 at page 184.

Funding for this item will come from Program 2.2: Road Safety, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2023-24, Budget Related Paper No. 1.12, Infrastructure, Transport, Regional Development, Communications and the Arts Portfolio at page 45.

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 trade and commerce power (section 51(i));

* the census and statistics power (section 51(xi));

* the race power (section 51(xxvi));

* the executive power and express incidental power (sections 61 and 51(xxxix));

* the power to grant financial assistance to States (section 96); and

* the territories power (section 122).

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 program involves funding initiatives to reduce road trauma and its impacts and make road safety a part of 'business as usual' across all local and state road authorities, as well as fostering a road safety culture across Australian businesses, community organisations and society. Some grants under the program may foster interstate and/or international trade and commerce.

Census and statistics power

Section 51(xi) of the Constitution empowers the Parliament to make laws with respect to 'census and statistics'.

Some grants under the program may be in connection with statistics given the focus of the program on research and data collection.

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'.

First Nations road safety is a critical aspect of the program. Some grants will target First Nations peoples or communities as a deliberate response to their particular needs.

Executive power and express incidental power

Many grants under the program will involve research, inquiries, investigation and/or advocacy in connection with road safety, as a matter of national significance affecting public health across Australia.

Power to grant financial assistance to States

Section 96 of the Constitution empowers the Parliament to 'grant financial assistance to any State on such terms and conditions as the Parliament thinks fit'.

Some grants under the program may involve financial assistance to State governments.

Territories power

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

Some grants under the program may be for projects in, or in relation to, a Territory.

New table item 619 establishes legislative authority for government spending on the Regional Precincts and Partnerships Program (the program).

The program is part of a $1.0 billion funding package together with the Growing Regions Program, announced by the Minister for Infrastructure, Transport, Regional Development and Local Government, the Hon Catherine King MP in the 2022-23 Budget to restore integrity to regional funding in community infrastructure. The media release is available at https://minister.infrastructure.gov.au/c-king/media-release/restoring-integrity-regional-funding.

The program will provide grant funding of up to $400.0 million over three years from 2023-24 to state and territory governments, local governments, regional universities and not-for-profit organisations for the development of precinct plans and delivery of precinct projects. Regional precincts or 'places with a purpose' are geographic areas with a shared need or theme. Projects funded through the program will be delivered on the principles of unifying regional places, growing their economies, and serving their communities.

Many regional communities are particularly vulnerable to increased pressure on existing infrastructure and services, which is compounded by a lack of resources and funding. The program will leverage community strengths so that regional communities have access to the infrastructure they need to sustain themselves, can encourage further growth and thrive economically and socially. Australian Government funding in this space also seeks to alleviate the financial pressures that state, territory and local governments face in delivering regional development support.

The program allows governments and communities to establish long-term partnerships and jointly invest in genuine regional priorities. The objectives of the program are to:

facilitate the establishment of partnerships, that include local perspectives, to deliver place-based infrastructure that ensures precinct proposals are tailored to local needs as well as foster long-term partnerships to benefit regional investment opportunities;
provide targeted benefits related to productivity, equity and resilience for the people of regional, rural or remote Australia, including benefits that support regional economies and industries, enhance the economic and environmental sustainability of regional communities, provide better community spaces, improve accessibility and connectivity through and to regions, deliver social and affordable housing and support regional areas' transition to a net zero economy;
support community priorities for regional, rural or remote cities and areas; and
reflect the Government's approach to regional investment as outlined under the Regional Investment Framework.

The program will focus on a partnership approach, which will bring a shared vision to a precinct to consider how that precinct interacts with the ecosystem and how it connects to the region. Under the partnership approach, non-eligible entities may form part of the partnership with an eligible entity as the lead applicant. To help facilitate the partnership and encourage collaboration, there are requirements to demonstrate that state and territory governments and local governments have been invited into the partnership, and relevant Regional Development Australia committees and relevant First Nations groups have been consulted on the precinct proposal.

The program has certain eligibility requirements that must be met, including the proposed precinct must be in a regional, rural or remote location, delineated as entirely outside the Australian Bureau of Statistics' Greater Capital City Statistical Areas. Eligible entities include state and territory governments, local governments, regional universities and
not-for-profit organisations. Applicants will also be required to demonstrate either cash or in-kind contributions relative to their proposal.

The program will support both developing precincts and delivering precincts through a
two-streamed approach with different grant amounts available. Stream One (precinct development and planning) provides grants between $500,000 and $5.0 million to both activate a partnership and to deliver a precinct plan. The funding can be used for resourcing and the delivery of master planning, consultation, designs and business cases. Stream Two (precinct delivery) provides grants between $5 million and $50 million to deliver one or more elements of a precinct. It could be enabling infrastructure (roads, pathways, underground infrastructure) or open spaces between elements or a particular building that activates other investment. Applicants will be able to submit proposals for either stream at any time during the year until the program concludes.

The program seeks to support a broad range of precinct types, acknowledging that regional, rural and remote communities across Australia have diverse and varying priorities and needs. The program does not limit the types of precincts that may be funded and will encourage applicants to submit precinct proposals based on community need. For example, precinct types the program may fund include renewable energy and supporting the transition to net zero emissions, the circular economy, transforming and diversifying Australian industries and the economy, social and community infrastructure such as the delivery of health services, education, arts and culture and sport, innovation, integrated transport services, and the delivery of housing, particularly social and affordable housing. The program's assessment will focus on the precinct proposals' alignment with current Australian Government priorities and program objectives, relative to the type of project being considered, rather than the type of precinct itself.

The program will be an open, non-competitive grant process and will be administered through the Business Grants Hub. All grants will be administered in accordance with applicable legislative requirements including the PGPA Act, the CGRGs and the department's Accountable Authority Instructions. The Minister for Infrastructure, Transport, Regional Development and Local Government will be responsible for making decisions related to approval of grant funding and will be the final decision maker for the program.

The Business Grants Hub will assess applications for eligibility for the program. All eligible applications will be assessed by an Independent Expert Panel (the Panel) based on the assessment criteria for each stream. The Panel will make determinations regarding which proposals are meritorious. The Panel will have robust governance arrangements and will meet twice a year to assess the proposals across the two grant funding streams. The department will then provide policy advice about the meritorious proposals, along with the Panel's assessment to the Minister for final decision making.

Grant opportunity guidelines (the guidelines) have been developed in collaboration with the Business Grants Hub and will be released on the GrantConnect website, infrastructure.gov.au and business.gov.au prior to program opening to assist with application-readiness. Funding for the program will commence on 1 July 2023 and it is expected the program will open for applications in August 2023. Applications will be batched and announcements will be made twice per year at a minimum. In 2023, it is expected that assessment of applications will occur between September and October while announcement of successful applications is expected to occur between November and December 2023.

The funding agreement between the applicants and the department will include agreed milestones of project delivery across the life of the project. Any risks identified during the project's assessment will be addressed in the agreement. Payments proportionate to the extent of project completion will be linked to the achievement of milestones. Payments will be made in arrears. All projects must be completed by 31 March 2026, with the program concluding on 30 June 2026. The department will also publish details of the grants awarded on GrantConnect.

The department will internally review the operation of the program each year to identify necessary adjustments to the program guidelines or administrative process to mitigate risks. A formal evaluation will occur in 2024-25 to inform future government consideration of the program.

Pursuant to paragraph 4.19 of the ARC Guide, the program is being designed to ensure that the process of allocating funds are fair, the criteria for funding are made clear and decisions are made objectively. The program will have clear guidelines and a robust assessment process, including merit assessment undertaken by the Panel to ensure that the
decision-making process is fair and transparent.

Consultation for the program was undertaken in early 2023. This included consultation sessions with 71 Regional Development Australia representatives, 19 local government representatives and select industry representatives. The department also engaged with representatives from all state governments and the Northern Territory Government, excluding the Australian Capital Territory (ACT) Government, as the ACT is not eligible for

the program.

The consultations were well received and showed an appetite for this type of grants program. The consultations allowed an opportunity to introduce and test key design features, such as the two streams and partnership elements of the program. Consultation feedback highlighted particular support for the two-stream model that would provide grants for construction as well as design activities, as well as the involvement of state governments in partnerships and recommendations for in-kind contributions to be accepted. As a result, a detailed consultation analysis and report was prepared taking into consideration suggestions and feedback from stakeholders which has influenced the design of the program guidelines.

Consultation on the program design has also been undertaken with areas within the department, including the Net Zero Unit and Regional Investment Framework team.

Funding for this item of $400.0 million over three years from 2023-24 will come from
Program 3.1: Regional Development, which is part of Outcome 3. Details are set out in the Portfolio Budget Statements 2023-24, Budget Related Paper No. 1.12, Infrastructure, Transport, Regional Development, Communications and the Arts Portfolio at page 62.

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 trade and commerce power (section 51(i));

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

* the race power (section 51(xxvi));

* the external affairs power (section 51(xxix));

* the executive power and express incidental power (sections 61 and 51(xxxix));

* the power to grant financial assistance to States (section 96); and

* the territories power (section 122).

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 program involves funding initiatives in regional precincts that focus on outcomes related to circular economy, renewable energy, health, education, arts and culture, sporting, innovation and/or integrated transport services that may foster interstate and/or international trade and commerce activities.

Communications power

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

Some of the funding may be in connection with electronic communications.

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'.

Some of the funding may be to or in relation to First Nations Australians or particular groups of First Nations Australians.

External affairs power

Projects funded by the program may assist Australia to meet its obligations under the

International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Articles 2 and 6, and under the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122), particularly Articles 1 and 2.

The program involves funding initiatives in regional precincts that focus on outcomes related to circular economy, renewable energy, health, education, arts and culture, sporting, innovation and/or integrated transport services, and will create jobs associated with those projects, therefore supporting and enhancing employment.

Projects funded by the program may also assist Australia to meet its obligations under the United Nations Framework Convention on Climate Change (UNFCCC), particularly Articles 4.1(b) and 4.2(a), the Kyoto Protocol, particularly Article 10(b), and the Paris Agreement, particularly Articles 4.2 and 7.9.

Article 4.1(b) of the UNFCCC obliges all Parties to formulate, implement and report on climate change mitigation and adaptation programs. Article 4.2(a) of the UNFCCC additionally obliges the developed country Parties, including Australia, to adopt national policies and take corresponding measures on climate change mitigation.

Article 10(b) of the Kyoto Protocol is in similar terms to Article 4.1(b) of the UNFCCC.

The Paris Agreement was entered into by the parties to the UNFCCC to enhance its implementation. Article 4.2 of the Paris Agreement provides that '[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions'. Australia’s current 'nationally determined contribution' is to reduce its anthropogenic greenhouse gas emissions to 43 per cent below 2005 levels by 2030. Article 7.9 of the Paris Agreement obliges each Party to engage in planning processes and the implementation of actions to adapt to the impacts of climate change.

Projects funded under the program may be directed at addressing climate change, including through reductions in greenhouse gas emissions and/or adaptation actions.

Executive power and express incidental power

Some of the funding may be for measures that are peculiarly adapted to the government of a nation and cannot otherwise be carried on for the benefit of the nation.

Power to grant financial assistance to States

Section 96 of the Constitution empowers the Parliament to 'grant financial assistance to any State on such terms and conditions as the Parliament thinks fit'.

Some of the funding may be for financial assistance to State governments.

Territories power

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

Some of the funding may be in, or in relation to, a Territory.

Attachment B

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, Communications and the Arts Measures No. 3) Regulations 2023

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 Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by 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, Communications and the Arts Measures No. 3) Regulations 2023 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities administered by the Department of Infrastructure, Transport, Regional Development, Communications and the Arts.

This disallowable legislative instrument makes the following amendments to Part 3 of Schedule 1AB:

adds table item 72 'Grant to Australian Youth Orchestra';

and the following amendments to Part 4 of Schedule 1AB:

adds table item 617 'Growing Regions Program';
adds table item 618 'National Road Safety Action Grants Program'; and

* adds table item 619 'Regional Precincts and Partnerships Program'.

Table item 72 - Grant to Australian Youth Orchestra

Table item 72 establishes legislative authority for the Government to provide a grant to the Australian Youth Orchestra (AYO) to deliver the National Music Teacher Mentoring (NMTM) Program.

The AYO, established in 1948, is one of the seven national performing arts training organisations provided with operational funding by the Australian Government through the Arts and Cultural Development Program. It provides pre-professional development and training for talented young Australian musicians and composers, allowing them to extend their music training and experience through national and international programs. The AYO delivers the NMTM Program which seeks to establish mentoring relationships between music education professionals and generalist classroom teachers with the goal of enriching music education practice in Australian classrooms.

The NMTM Program has been supported by the Government through one-off terminating grants with total funding of $1.7 million provided since its inception in 2015. Funding of $1.1 million over four years from 2023-24 will continue to deliver the objectives of the NMTM Program. Eligible costs will include, program administration, program manager salary and administrative costs, costs associated with hosting and delivering of mentoring workshops, including teacher resources and reasonable travel costs for participants.

Human rights implications

Table item 72 engages the following human rights:

the right to work - Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2;
the right to an education - Article 13 of the ICESCR;
the right to take part in cultural life - Article 15 of the ICESCR;
the right for a child to have freedom to express ideas of all kinds - Article 13 of the Convention on the Rights of the Child (CRC), read with Article 4; and
the right for a child's education to be directed to the development of the child's talent to their fullest potential - Article 29 of the CRC.

Right to work

Article 2 of the ICESCR requires States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means.

Article 6 of the ICESCR recognises the right to work. Table item 72 promotes the realisation of the right to work by supporting employment in the arts sector, and by supporting the continuing viability of the NMTM Program.

Right to an education

Article 13 of the ICESCR recognises the right of everyone to an education. Table item 72 promotes the realisation of the right to an education by ensuring appropriate resourcing of the NMTM Program to enable improved music competencies and ensure music education is freely available for access by its participating schools, students and teachers.

Right to take part in cultural life

Article 15 of the ICESCR recognises the right to take part in cultural life. Table item 72 promotes the realisation of this right by supporting the delivery of music education and training to members of the Australian community.

Right for a child to have freedom to express ideas of all kinds

Article 4 of the CRC requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the CRC.

Article 13 of the CRC recognises the right of the child to freedom of expression. Table item 72 promotes the realisation of this right by providing the freedom to express ideas through music.

Right for a child's education to be directed to the development of the child’s talent to their fullest potential

Article 29(1) of the CRC recognises that education shall be directed to the development of the child to their fullest potential. Table item 72 promotes the realisation of this right by improving the capacity and capability of generalist teachers to deliver in-school music education and improve student engagement and outcomes.

Conclusion

Table item 72 is compatible with human rights because it promotes the protection of human rights.

Table item 617 - Growing Regions Program

Table item 617 establishes legislative authority for government spending on the Growing Regions Program (the program), which seeks to provide funding for capital works for community infrastructure across regional Australia.

The program is part of a $1.0 billion funding package together with the Regional Precincts and Partnerships Program announced in the October 2022-23 Budget. The program will help drive regional economic prosperity by providing access to funding for infrastructure across Australia's rural and regional areas. It will deliver community and economic benefits by investing in community-focused infrastructure which grows or revitalises regions and enhances amenity and liveability.

Funding of $600.0 million over three years from 2023-24 will provide grants of between $500,000 and $15.0 million for upgrading or constructing community infrastructure over two funding rounds, which aims to:

fill an identified gap or need for community infrastructure;

contribute to a wide range of community socio-economic outcomes; and is
strategically aligned with regional priorities.

Projects expected to be funded by the program include construction of tourist and walking trail projects, community sports facility upgrades, sports hubs, aquatic centres, revitalisation of town centres, libraries, galleries, creative precincts, and arts centres.

Human rights implications

Table item 617 does not engage any of the applicable human rights or freedoms.

Conclusion

Table item 617 is compatible with human rights as it does not raise any human rights issues.

Table item 618 - National Road Safety Action Grants Program

Table item 618 establishes legislative authority for government spending on the National Road Safety Action Grants Program (the program), which seeks to reduce deaths and injuries from road crashes in Australia by funding activities or projects that relate to non-infrastructure commitments in the National Road Safety Action Plan 2023-25 (Action Plan).

The program responds to the Australian Government's commitment to Vision Zero - zero deaths and serious injury due to road crashes, by 2050. This objective is reflected in the National Road Safety Strategy 2021-30 (Strategy) and the Action Plan, which has been agreed by the Australian Government and state and territory governments.

The Strategy sets out Australia's road safety targets over the next decade and includes nine key priorities to reduce the annual number of fatalities and serious injuries. The Action Plan details the key actions the Australian Government and state and territory governments will undertake to 2025 in pursuit of the agreed priorities identified in the Strategy. The Australian Government is responsible for 46 actions in the Action Plan. The program will focus on five key areas of activity critical to the delivery of the Action Plan:

Community Education and Awareness, including workplace road safety;
Technology and Innovation;
Research and Data;
Vulnerable Road Users; and
First Nations road safety.

Funding of $43.6 million over four years from 2022-23 will be available to deliver these activities.

Human rights implications

Table item 618 does not engage any of the applicable human rights or freedoms.

Conclusion

Table item 618 is compatible with human rights as it does not raise any human rights issues.

Table item 619 - Regional Precincts and Partnerships Program

Table item 619 establishes legislative authority for government spending on the Regional Precincts and Partnerships Program (the program).

The program is part of a $1.0 billion funding package together with the Growing Regions Program announced in the October 2022-23 Budget. Grant funding of up to $400.0 million over three years from 2023-24 will be available to state and territory governments, local governments, regional universities and not-for-profit organisations for the development of precinct plans and delivery of precinct projects. Regional precincts or 'places with a purpose' are geographic areas with a shared need or theme. Projects funded through the program will be delivered on the principles of unifying regional places, growing their economies, and serving their communities.

The program will focus on a partnership approach, which seeks to bring together governments and communities to deliver regional precincts that are tailored to local contexts. In addition, a partnership will bring a shared vision to a place (precinct) to consider how that precinct interacts with the ecosystem and how it connects to the region.

There will be two grants streams available - Stream One (precinct development and planning) provides grants between $500,000 and $5.0 million to both activate a partnership and to deliver a precinct plan. Stream Two (precinct delivery) provides grants between $5.0 million and $50.0 million to deliver one or more elements of a precinct. This could include infrastructure (roads, pathways, underground infrastructure) or open spaces between elements or a particular building that activates other investment.

Human rights implications

Table item 619 does not engage any of the applicable human rights or freedoms.

Conclusion

Table item 619 is compatible with human rights as it does not raise any human rights issues.

Senator the Hon Katy Gallagher

Minister for Finance

Commonwealth Numbered Regulations - Explanatory Statements