Attachment A

 

Details of the Financial Framework (Supplementary Powers) Amendment
(Infrastructure, Transport, Regional Development, Communications and the Arts Measures No. 4) 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.4) 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 relating to Bundanon Trust

 

Part 1--Grants to Bundanon Trust

 

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 74 establishes legislative authority for the Government to provide grants to Bundanon Trust (Bundanon) to meet the costs of maintaining and operating its art museum and other assets, and to support arts practice and understanding of the arts through its residency, education, exhibitions and performance programs.

 

Bundanon is one of nine National Collecting Institutions in the Arts portfolio that receives Commonwealth funding to achieve long-term financial sustainability and deliver their statutory functions to develop, maintain and make accessible collections in the national interest.

 

The Bundanon Estate, consisting of 1,100 hectares located near Nowra in regional New South Wales was gifted to the Commonwealth by Australian artists Arthur and Yvonne Boyd, together with the Boyd art. Bundanon has existed as a Commonwealth Company since 22 March 1993 and listed under item 20 in Schedule 1B to the Financial Framework (Supplementary Powers) Regulations 1997.

 

The purpose of Bundanon is to make the properties, and their significant Indigenous, colonial, art historical, agricultural and environmental narratives, accessible to the public, and to support research and creative excellence. It achieves this through the promotion and display of art works at the Bundanon gallery and by touring exhibitions nationally. Bundanon holds regular public programming including an active onsite schools program and visitor events. It also delivers an Artists in Residence multi-disciplinary residency program, the largest in Australia, it offers a unique location in which artists can conceive and develop new work and ideas.

 

Bundanon maintains co-operative relationships and partnerships with significant First Nations, environmental and educational organisations including Gadhungal Murring, Landcare Australia and the University of Wollongong. Bundanon's ten-year Landcare Australia partnership has focused on land management stewardship, with future programs encompassing environmental education and youth focused initiatives.

 

Bundanon has a valuable collaborative partnership with the University of Wollongong including knowledge sharing, facilitating research alliances, building capacity, developing the next generation of creative thinkers, and providing environmental stewardship. The Royal Australian Navy also represents an important partnership for Bundanon, with HMAS Albatross in Nowra and HMAS Creswell at Jervis Bay having ongoing relationships. Key programs include naval families and community onsite events, as well as land care and bush maintenance work with naval recruits and Bundanon's natural resources team.

 

The Australian Government has provided financial support to Bundanon since the trust was established in 1993, including current funding of $40.4 million over four years from 2023-24 and $9.9 million per annum, indexed and ongoing from 2027-28. Continued funding to Bundanon will benefit the Australian public by maintaining access to collections, exhibitions, expertise, research libraries and educational programs. It will also allow Bundanon to maintain sufficient confidence to attract important cultural material borrowed from other Australian and overseas institutions for the benefit of the Australian public.

 

The grants to Bundanon 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 directly between the department and Bundanon.

 

The Minister for the Arts will approve the grant opportunity guidelines and the allocation of grant funding.

 

Payments to Bundanon are not considered appropriate for independent merits review because decisions to pay Bundanon are automatic and tied to the amounts the Government has decided to fund Bundanon. The Administrative Review Council (ARC) has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 3.8 to 3.12 of the guide, What decisions should be subject to merit review? (ARC guide)).

 

Consultation has only occurred within government and with Bundanon Trust, as there are no external persons or entities affected by these payments.

 

A funding uplift of $33.4 million for Bundanon was included in the 2023-24 Budget under the measure 'National Cultural Policy - National Collecting Institutions financial sustainability' for a period of four years commencing in 2023-24, and $8.1 million per year ongoing from 2027-28. This uplift is additional to ongoing annual funding of $1.6 million per annum. Details are set out in the Budget 2023-24, Budget Measures, Budget Paper No. 2 at pages 177-178.

 

Funding for this item will come from Program 6.1: Arts and Cultural Development
(sub-program 'Collections'), 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 65.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the purpose of the item references the express incidental power and the executive power (sections 51(xxxix) and 61) of the Constitution, including the nationhood aspect.

 

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 grant involves providing funding to meet the costs of maintaining and operating the art museum and to support arts practice and understanding of the arts through its residency, education, exhibitions and performance programs.

 

Part 2--Arrangements to pay directors of the Bundanon Trust

 

Financial Framework (Supplementary Powers) Regulations 1997

 

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

 

This item adds one new table item to Part 1 of Schedule 1AB to establish legislative authority for government spending on an arrangement to be administered by the department.

 

New table item 4 establishes legislative authority for the Government to pay remuneration and allowances to directors of the Bundanon Trust (Bundanon).

 

Bundanon is overseen by a Board whose responsibilities have increased following substantially greater investment and resourcing by government. In addition, the recent delivery of the Bundanon Masterplan and a significant ongoing uplift in funding has delivered substantially expanded operations, staffing and activities.

 

The Board governing Bundanon comprises a Chair and not more than ten other directors and must have six members to have quorum. There are currently seven appointed directors with two positions terms expiring in early 2024. The Board currently meets four times each year with Board Directors also serving on sub-committees, namely the Finance Committee, the Governance Committee, and the Land and Built Assets Committee.

 

Directors are appointed by the Minister for the Arts subject to Government considerations. Directors are appointed for a term of three years and may be reappointed.

 

The Board is currently prevented from being paid by Bundanon under the terms of its Constitution. Legislative authority through table item 4 provides the authority for the department to make such payments.

 

Remuneration and allowances to directors of Bundanon will be made directly by the department in accordance with the department's Secretary Instructions and delegations on expenditure of relevant money, and in accordance with applicable legislative requirements under the PGPA Act and the Financial Framework (Supplementary Powers) Act 1997.

 

Information about the payments and amount paid would be identified through the Remuneration Tribunal Determination, whose role is to determine, report on or provide advice about remuneration, including allowances and entitlements that are within its jurisdiction.

 

Payment will be applied as the Remuneration Tribunal determines - if an Annual Fee, a
pro-rata amount for 2023-24 from the commencement date will apply, if a Daily Fee, it will commence from the next scheduled Board meeting.

 

Approval for funding will be made by the Secretary's delegate (SES Band 1 or Band 2 with responsibility for the Arts) as determined under the Accountable Authority Instructions of the department.

 

Independent merits review of funding decisions made in connection with the arrangements to pay directors of Bundanon would not be considered appropriate because the decisions relate to automatic or mandatory decisions are unsuitable for merits review. Decisions to pay Bundanon directors are automatic payments made by the fact of appointment to the Bundanon Board. Common to equivalent payments to Board or Council Members appointed by government eligibility for payment is tied exclusively to the fact the person is appointed to the position of Chair or director. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 3.8 to 3.12 of the ARC guide).

 

Consultation has only occurred within government including the Remuneration Tribunal and Bundanon, as there are no external persons or entities affected by these payments.

 

Funding of $170,000 in 2023-24 will be reallocated from Bundanon. The exact amount paid to a Bundanon director will be set through a determination by the Remuneration Tribunal, an independent statutory body that handles the remuneration of key commonwealth offices.

 

Funding for this item will come from Program 6.1: Arts and Cultural Development
(sub-program 'Collections'), 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 65.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the purpose of the item references the express incidental power and the executive power (sections 51(xxxix) and 61) of the Constitution, including the nationhood aspect.

 

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 payment involves providing funding to allow for remuneration and allowances to be paid to Directors of Bundanon.

 

Schedule 2--Amendments relating to Viewer Access Satellite Television

 

Financial Framework (Supplementary Powers) Regulations 1997

 

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

 

This item adds one new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on a certain activity administered by the department.

 

New table item 630 establishes legislative authority for government spending on the provision of commercial television services over Viewer Access Satellite Television (the VAST program).

 

The objective of the VAST program is to support the provision of free-to-air commercial television broadcasting services via satellite for viewers in remote areas, and viewers in other areas who do not have adequate reception of an applicable terrestrial digital commercial television broadcasting service.

 

Those living in remote areas, including First Nations peoples, have few alternatives to broadcast services, particularly to access vital information during bushfires, floods and events impacting national security. The universal availability of broadcasting services is also important in supporting a shared sense of national identity and underpinning social cohesion.

 

Commonwealth funding is required to support the provision of a television safety-net service which enables all areas of Australia to access free-to-air entertainment and news programs. Due to Australia's large landmass and sparse population density, it is not economically viable to provide all Australian households with access to free-to-air television services through terrestrial transmission sites. More than 260,000 premises, primarily in regional and remote Australia, rely on VAST for access to news and entertainment services.

 

The VAST program commenced in 2010, prior to the switchover from analogue to digital television. VAST is available nationally in three satellite broadcast licence areas specified in section 38C of the Broadcasting Services Act 1992:

• Western Australia TV3, which includes all of Western Australia and the Indian Ocean Territories;
• South Eastern Australia TV3, which includes New South Wales, Victoria, South Australia, Tasmania, Australia Capital Territory, Norfolk Island and the Jervis Bay Territory; and
• Northern Australia TV3, which includes Queensland, Northern Territory and the Coral Sea Island Territory.

 

The VAST service operates on Optus' satellite broadcast platform.

 

The current funding for VAST program will terminate on 30 June 2024. Additional funding over seven years from 2024-25 will fund an extension of the program to 30 June 2031, announced in the 2023-24 Budget by the Minister for Communications, the Hon Michelle Rowland MP (https://minister.infrastructure.gov.au/rowland/media-release/budget-2023-24-connecting-informing-and-protecting-australians). Additional funding is available in 2023-24 to meet additional costs in delivering the service.

 

The funding will be provided to the existing VAST services providers - WA Satco Pty Ltd (joint venture of WIN and Seven) which holds the licence for the Western Australia TV3 licence area, and Eastern Australia Satellite Broadcasters Pty Ltd (EASB - joint venture of Imparja television and Southern Cross Austereo (SCA)) which holds licences for the Northern Australia TV3 as well as South Eastern Australia TV3 licence areas. These two licensees have been providing this service since 2010. There are no other entities authorised to provide commercial television broadcasting services by satellite.

 

Work is also being initiated on developing longer-term, sustainable solutions for broadcasting in remote and regional areas of Australia as part of the Government's broader media reform agenda, informed by the industry-led Future of Broadcasting Working Group and the First Nations Digital Inclusion Advisory Group. This will ensure the continuity of broadcasting services in regional and remote communities, which are essential for the provision of news and emergency information. It will also contribute to the Closing the Gap Target 17 (Aboriginal and Torres Strait Islander people have access to information and services enabling participation in informed decision-making regarding their own lives) and support work to establish an evidence base to address the long-term provision of services.

 

The department will deliver the VAST program as a closed non-competitive grant program in accordance with applicable legislative requirements under the PGPA Act and the CGRGs. Grant opportunity guidelines will be published on GrantConnect (www.grants.gov.au). These will set out the eligible applicants for a grant. Eligible applicants will be invited to submit a proposal that addresses the assessment criteria set out in the guidelines.

 

The Minister for Communications is the decision-maker for grant expenditure under the program. The department will provide recommendations to the Minister and will negotiate arrangements with successful grant recipients.

 

Funding decisions will be made objectively, and in accordance with the assessment process set out in the guidelines. Grant outcomes will be publicly available on GrantConnect.

 

The VAST program will continue to be administered in-house by the department until the expiry of the Commonwealth Grants Hub deferral on 30 June 2024.

 

Funding decisions made in connection with the VAST program are not suitable for independent merits review given it involves the allocation of a finite resource, and an allocation that has already been made to another party would be affected by overturning the original allocation. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.14 of the ARC guide).

 

To address accountability issues related to the exclusion of a merit review, the program design and assessment process places emphasis on the administrative accountability of decisions to allocate funding. This includes ensuring that:

*         the criteria for funding is clear; and

*         decisions are made objectively and in accordance with the PGPA Act.

 

Applicants who are 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 https://www.infrastructure.gov.au/about-us/corporate-reporting/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.

 

The Government has been consulting with the television broadcasting industry about remote and satellite broadcasting through the Future of Broadcasting Working Group. This is an industry-led forum convened by the Government to develop proposals for the future of television broadcasting in Australia, including the extent of the broadcaster terrestrial footprint and the shape of a future satellite service. Industry submissions to the Working Group background paper on remote and satellite television supported the extension of VAST funding to 2031.

 

Funding was included in the 2023-24 Budget under the measures 'Supporting Media Sustainability and Building Media Literacy' and 'Viewer Access Satellite Television' for a period of eight years commencing in 2023-24. Details are set out in the Budget 2023-24, Budget Measures, Budget Paper No. 2 at pages 183-184. Funding for this element is not for publication due to commercial-in-confidence sensitivities. It is the intent of the Government to inform the Parliament of the funding amount expected to be expended once contracts are awarded.

 

Funding for this item will come from Program 5.1: Digital Technologies and Communications Services, which is part of Outcome 5. 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 pages 77-78.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the communications power (section 51(v)) of the Constitution.

 

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 VAST program seeks to ensure that viewers in remote areas, and viewers in other areas that cannot receive adequate terrestrial television reception can access direct-to-home satellite delivered commercial television services. Funding under the VAST program is required to support the provision of television safety net services which enables all areas of Australia to access free-to-air entertainment and news programs.

 

 

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. 4) 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 FFSP Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FFSP 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 FFSP Regulations specify the arrangements, grants and programs. The powers in the FFSP 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. 4) Regulations 2023 amend Schedule 1AB to the FFSP Regulations to establish legislative authority for government spending on certain activities administered by the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (the department).

 

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

• adds table item 74 'Grants to Bundanon Trust';

 

the following amendment to Part 1 of Schedule 1AB:

• adds table item 4 'Arrangements to pay directors of the Bundanon Trust';

 

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

• adds table item 630 'Provision of commercial television services over Viewer Access Satellite Television'.

Table item 74 - Grants to Bundanon Trust

 

Table item 74 establishes legislative authority for the Government to provide grants to Bundanon Trust to meet the costs of maintaining and operating its art museum and other assets, and to support arts practice and understanding of the arts through its residency, education, exhibitions and performance programs.

 

The Bundanon Estate, consisting of 1,100 hectares located near Nowra in regional New South Wales was gifted to the Commonwealth by Australian artists Arthur and Yvonne Boyd, together with the Boyd art. Bundanon has existed as a Commonwealth Company since 22 March 1993 and listed under item 20 in Schedule 1B to the FFSP Regulations.

 

Bundanon Trust is one of nine National Collecting Institutions in the Arts portfolio that receives Commonwealth funding to achieve long-term financial sustainability and deliver their statutory functions to develop, maintain and make accessible collections in the national interest. Current funding is composed of $33.4 million over four years from 2023-24 and $8.1 million per year ongoing from 2027-28.

 

Continued funding to Bundanon will benefit the Australian public by maintaining access to collections, exhibitions, expertise, research libraries and educational programs. It will also allow Bundanon to maintain sufficient confidence to attract important cultural material borrowed from other Australian and overseas institutions for the benefit of the Australian public.

 

Human rights implications

 

Table item 74 does not engage any of the applicable human rights or freedoms.

 

Conclusion

 

Table item 74 is compatible with human rights as it does not raise any human rights issues.

 

Table item 4 - Arrangements to pay directors of the Bundanon Trust

 

Table item 4 establishes legislative authority for the Government to pay remuneration and allowances to directors of the Bundanon Trust.

 

Bundanon Trust is overseen by a Board whose responsibilities have increased following substantially greater investment and resourcing by government. The Board is currently prevented from being paid by Bundanon Trust under the terms of its Constitution.

 

Amending the Bundanon Trust Constitution is not an available option under New South Wales' Trust law. Legislative authority through table item 4 is required to enable the department to make such payments.

 

Funding of $170,000 in 2023-24 will be reallocated from Bundanon Trust. The exact amount paid to a Bundanon director will be set through a determination by the Remuneration Tribunal, an independent statutory body that handles the remuneration of key commonwealth offices.

 

Human rights implications

 

Table item 4 does not engage any of the applicable human rights or freedoms.

 

Conclusion

 

Table item 4 is compatible with human rights as it does not raise any human rights issues.

 

Table item 630 - Provision of commercial television services over Viewer Access Satellite Television

 

Table item 630 establishes legislative authority for government spending on the provision of commercial television services over Viewer Access Satellite Television (the VAST program).

 

The objective of the VAST program is to support the provision of free-to-air commercial television broadcasting services via satellite for viewers in remote areas, and viewers in other areas who do not have adequate reception of an applicable terrestrial digital commercial television broadcasting service.

 

The VAST program commenced in 2010 following the switchover from analogue to digital television. VAST is available nationally with three satellite broadcast licence areas specified in section 38C of the Broadcasting Services Act 1992. More than 260,000 premises, primarily in regional and remote Australia, rely on VAST for access to news and entertainment services. The VAST service operates on Optus' satellite broadcast platform which enables all areas of Australia access to free-to-air television services.

 

Human rights implications

 

Table item 630 engages the following right:

• the right to take part in cultural life - Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2.

 

Right to take part in cultural life

 

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 15(a) of the ICESCR recognises the right to take part in cultural life.

 

Table item 630 promotes the realisation of this right by providing all areas of Australia, regardless of location, with access to free-to-air news and entertainment services through alternative technology delivery.

 

Conclusion

 

Table item 630 is compatible with human rights as it promotes the realisation of human rights.

 

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance