Details of the Financial Framework (Supplementary Powers) Amendment (Environment and Energy Measures No. 2) Regulations 2018

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Environment and Energy Measures No. 2) Regulations 2018.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

 

Schedule 1 - Amendments

 

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

 

This item adds a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on programs that will be administered by the Department of the Environment and Energy and the Director of National Parks (the entities).

 

New table item 319 establishes legislative authority for government spending on certain elements of the Fisheries Assistance and User Engagement Package (the Package).

 

New management arrangements for most 'Commonwealth reserves' declared in 'Commonwealth marine areas' (as those terms are defined in the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act)) and known as 'Australian Marine Parks' became effective in accordance with the EPBC Act on 1 July 2018. Management arrangements for those Commonwealth reserves were established through management plans made under section 370 of the EPBC Act. Section 367 of the EPBC Act details mandatory content for management plans, including assigning the Commonwealth reserve and any zones in the reserve to International Union of Conservation for Nature (IUCN) categories, and stating how the reserve is to be managed including the activities that can be carried out within the reserve.

 

On 1 July 2018, the former Minister for the Environment and Energy, the Hon Josh Frydenberg MP, the former Assistant Minister for Agriculture and Water Resources, Senator the Hon Anne Ruston, and the former Assistant Minister for the Environment, the Hon Melissa Price MP, announced the Package as a means of providing assistance to support commercial fishers directly affected by the new Australian Marine Park management and zoning arrangements (for those Australian Marine Parks for which new management plans came into force on 1 July 2018). The Package would also provide assistance to engage fishers and other users of Australian Marine Parks in projects that further the objects of Australian Marine Parks. The Package includes two programs that require legislative authority for government spending, namely:

*         the Fishing Business Assistance Grants program; and

*         the Our Marine Parks Grants program.

 

Funding for the two programs was included in the 2016-17 Budget under the measure 'Commonwealth Marine Reserves - Implementation' for a period of four years commencing in 2016-17. Details are set out in Budget 2016-17, Budget Measures, Budget Paper No.2, Part 2: Expenses Measures at page 90.

 

Funding for these programs comes from Program 1.1: Sustainable Management of Natural Resources and the Environment, which is part of Outcome 1. Details are set out in the Portfolio Budget Statements 2018-19, Budget Related Paper No. 1.6, Environment and Energy Portfolio at page 38.

 

The programs have been developed by the entities, in consultation with the Australian Fisheries Management Authority and the Department of Agriculture and Water Resources, and will be delivered through the Department of the Environment and Energy's grant arrangements with the Department of Social Services' Community Grants Hub.

 

Fishing Business Assistance Grants program

 

Under the Fishing Business Assistance Grants program, direct assistance will be provided via one-off grants targeted only to those commercial fishers with a recent catch history of fishing in Australian Marine Parks to assist them transition their businesses to the changed operating environment created by the new Australian Marine Park management and zoning arrangements. Decisions on assistance will be solely based on information provided by fisheries management agencies (at the Commonwealth, state and territory levels) which relates to:

*         statutory obligations on fishers under fisheries licensing requirements;

*         the location of catch;

*         the fishing methods used; and

*         the quantity of fish caught.

 

This information will be analysed by the Australian Bureau of Agricultural and Resource Economics and Sciences (ABARES) to produce a report on eligibility of fishers (including the quantum of any potential payment to which they may be entitled under the program). ABARES will analyse the information, consistent with processes set out in grant guidelines for the program, to produce a report of eligible fishers and, using a set formula, the amount of assistance to which they may be entitled.

 

The Fishing Business Assistance Grants program will only be available to fishers operating under relevant jurisdictional fisheries management arrangements, excluding those fishers operating under Tasmanian and Victorian legislation. Those fishers operate in the context of Australian Marine Park management arrangements that were finalised in 2013 and are unaffected by the new management arrangements that came into effect on 1 July 2018.

 

The target group for this program will be fishers who are licensed to operate (under relevant fisheries management legislation) as at 1 July 2018, who have a history of fishing in the areas of Australian Marine Parks that are now closed to their methods of fishing between the periods 1 July 2012 and 30 June 2017, and are assessed by ABARES to have a potential entitlement under the program to an assistance grant greater than $999.

 

It is expected that the grant round for this program will open in December 2018 or January 2019 with the program to close in March 2019.

 

The Director of National Parks will consider the report on eligible applicants and their potential entitlement to grant amounts provided by ABARES, and will make recommendations to the Minister for the Environment (the Minister) regarding the extent of individual fishers' potential entitlement to a grant under the program. The Minister will be responsible for the final decision to approve these grants. Once the Minister approves each grant amount, eligible applicants will be invited to apply for their assistance consistent with the amounts agreed by the Minister. Only those fishers invited to apply will be able to access the Community Grants Hub via an online application/acceptance process. Only fishers who have a potential grant offer greater than $999 will be invited to apply for a grant.

 

Information about the Fishing Business Assistance Grants program, including the grant guidelines, will be available on the Community Grants Hub website (https://www.communitygrants.gov.au/) and the Director of National Parks' website (http://www.environment.gov.au/topics/national-parks/parks-australia). Information about all successful grants will be detailed on GrantConnect (https://www.grants.gov.au/).

 

Our Marine Parks Grants program

 

The Our Marine Parks Grants program, which will be national in scope, will provide grants to commercial fishing industry organisations and other Australian Marine Park users. The grants will start in late 2018. Grants will be made available on a competitive basis and will be delivered through the Depoartment of Social Services' Community Grants Hub.

 

The Our Marine Parks Grants program is designed to assist fishers and other Australian Marine Park users to engage in projects that further the objects of Australian Marine Parks (details of which appear in the relevant Australian Marine Park management plans and will be included in the associated grant guidelines). These objects primarily relate to protection of the environmental and cultural values of the parks and are stated in the relevant management plans to be:

(a)    the protection and conservation of biodiversity and other natural, cultural and heritage values of the relevant parks; and

(b)   ecologically sustainable use and enjoyment of the natural resources within the relevant parks where this is consistent with objective (a).

 

The target group for this program will capture a number of current Australian Marine Park users including commercial fishers, recreational fisher organisations, tourism industry associations, citizen science organisations, Indigenous organisations and some marine management and/or marine research organisations.

 

A panel will be formed by the Director of National Parks, with the assistance of the Community Grants Hub, to assess the applications in accordance with criteria set out in the grant guidelines. Recommendations will then be made by the panel, through the Director of National Parks, to the Minister, who will be responsible for the final decision to approve the grants.

 

Information about the Our Marine Park Grants program, including the grant guidelines, will be available on the Community Grants Hub (https://www.communitygrants.gov.au/) and the Director of National Parks' websites (http://www.environment.gov.au/topics/national-parks/parks-australia). Information about all successful grants will be detailed on GrantConnect (https://www.grants.gov.au/).

 

Spending authorised by the table item will be limited to the purposes of the Fishing Business Assistance Grants program and Our Marine Park Grants program. Both grant programs will be subject to the requirements of the Commonwealth's resource management framework, including the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017.

 

Given the nature and purpose of the expenditure on these programs, merits review is not appropriate. The Fishing Business Assistance Grants program is a highly targeted grant round utilising statutory information only to inform grant decisions. These decisions are largely automatic in nature and do not involve a decision of such a quality that merits review can operate in respect of it.

 

The Our Marine Park Grants program is a competitive grants round assessed against the criteria in the publicly available grant guidelines. Merits review of this program would not be appropriate because the decisions relate to the allocation of finite resources between competing applicants. The remaking of a decision under merits review would necessarily affect funding available to other applicants.

 

In addition, the review and audit process undertaken by the Australian National Audit Office 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 public relevant money.

 

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

 

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

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation with respect to matters or things outside the geographical limits of Australia.

 

Measures enabled by these programs will assist marine business to adjust to changes in access and regulatory requirements of marine reserves which are external to Australia's geographic territory.

 

 

 

 

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 (Environment and Energy Measures No. 2) Regulations 2018

 

These Regulations are 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 FF(SP) Act applies to Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

 

The Regulations amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on elements of the Fisheries Assistance and User Engagement Package (the Package).

 

On 1 July 2018, the former Minister for the Environment and Energy, the Hon Josh Frydenberg MP, the former Assistant Minister for Agriculture and Water Resources, Senator the Hon Anne Ruston, and the former Assistant Minister for the Environment, the Hon Melissa Price MP, announced a $35 million Package of assistance to support commercial fishers directly affected by new Australian Marine Park management and zoning arrangements (for those Australian Marine Parks for which new management plans came into force on 1 July 2018). The Package also includes assistance to engage fishers and other users of Australian Marine Parks in projects that further the objects of Australian Marine Parks. The Package includes two programs that require legislative authority for government spending.

 

These programs are:

*         the Fishing Business Assistance Grants program that would provide grants to assist commercial fishers directly affected by new Australian Marine Park management and zoning arrangements; and

*         the Our Marine Parks Grants program, a competitive grants program that would provide funding and support for users of Australian Marine Parks to engage in projects that further the objects of Australian Marine Parks, and to assist commercial fisheries deliver more sustainable outcomes in Australian Marine Parks.

 

 

The Minister for the Environment has portfolio responsibility for these programs which will be administered by the Department of the Environment and Energy and the Director of National Parks.

 

Human rights implications

 

The Regulations do not engage any of the applicable rights or freedoms.

 

Conclusion

 

These Regulations are compatible with human rights as they do not raise any human rights issues.

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance and the Public Service