FINANCIAL FRAMEWORK (SUPPLEMENTARY POWERS) AMENDMENT (ENVIRONMENT AND ENERGY MEASURES NO. 3) REGULATIONS 2017 (F2017L01482) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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FINANCIAL FRAMEWORK (SUPPLEMENTARY POWERS) AMENDMENT (ENVIRONMENT AND ENERGY MEASURES NO. 3) REGULATIONS 2017 (F2017L01482)

EXPLANATORY STATEMENT

 

Issued by the Authority of the Minister for Finance

 

Financial Framework (Supplementary Powers) Act 1997

 

Financial Framework (Supplementary Powers) Amendment

(Environment and Energy Measures No. 3) Regulations 2017

 

The Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) confers on the Commonwealth, in certain circumstances, powers to make arrangements under which money can be spent; or to make grants of financial assistance; and to form, or otherwise be involved in, companies.  The arrangements, grants, programs and companies (or classes of arrangements or grants in relation to which the powers are conferred) are specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the Principal Regulations).  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

 

Section 65 of the FF(SP) Act provides that the Governor-General may make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to that Act.

 

Section 32B of the FF(SP) Act authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Principal Regulations.  Section 32B also authorises the Commonwealth to make, vary and administer arrangements for the purposes of programs specified in the Principal Regulations.  Schedule 1AA and Schedule 1AB to the Principal Regulations specify the arrangements, grants and programs. 

 

The Regulations amend Schedule 1AB to the Principal Regulations to establish legislative authority for government spending on two initiatives in the Environment and Energy portfolio which will be administered by the Great Barrier Reef Marine Park Authority and the Department of the Environment and Energy, respectively.

 

Funding will be provided for:

*         the Reef Guardian Grants Program to support activities that protect and conserve the heritage and the environment of the Great Barrier Reef World Heritage Area and the Great Barrier Reef catchment area; and

*         start-up administrative costs for the Antarctic Science Foundation which will be established by private individuals to augment scientific research and build opportunities for public-private partnerships in Antarctic science.

 

Details of the Regulations are set out at Attachment A.  A Statement of Compatibility with Human Rights is at Attachment B

 

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.  The Regulations commence on the day after they are registered on the Federal Register of Legislation. 


 

Consultation

 

In accordance with section 17 of the Legislation Act 2003, consultation has taken place with the Department of the Environment and Energy and the Great Barrier Reef Marine Park Authority.

 

A regulation impact statement is not required as the Regulations only apply to non-corporate Commonwealth entities and do not adversely affect the private sector.

 

 

 


Details of the Financial Framework (Supplementary Powers) Amendment (Environment and Energy Measures No. 3) Regulations 2017

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Environment and Energy Measures No. 3) Regulations 2017.

 

Section 2 - Commencement

 

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

 

Section 3 - Authority

 

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

 

Section 4 - Schedules

 

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

 

Schedule 1 - Amendments

 

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

 

This item adds two new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on certain activities administered by the Great Barrier Reef Marine Park Authority and the Department of the Environment and Energy.

 

New table item 253 establishes legislative authority for government spending on the Reef Guardian Grants Program (the Program) administered by the Great Barrier Reef Marine Park Authority (the Authority).

 

The Program will consolidate a number of long-standing grant programs, including the Reef Guardian Schools Awards, the Ripples of Change Grants, the Local Marine Advisory Committee Project Funds, and the Science for Management Awards.  The Program will also expand to include community projects along the coast.

 

The Program will encourage schools and councils, which participate in the Authority's Reef Guardian School and Reef Guardian Council programs respectively (also known as 'Reef Guardians'); Local Marine Advisory Committees (voluntary, community-based committees established to advise the Authority on operational issues and assist in the development of policy and strategic direction in the management of the Great Barrier Reef Marine Park); traditional owners; and the scientific and wider community to identify and collaborate on locally relevant projects that will support the protection and management of the Great Barrier Reef (the Reef).  The Program will support practical local action to respond to the key threats to the Reef including climate change, water quality, coastal development and direct use.

 

The Program will assist the delivery of the Government's commitment in the Reef 2050 Long-Term Sustainability Plan to support stewardship, engagement and citizen science as well as targeted Reef research.  The Plan, which was developed by the Australian and Queensland Governments and is available at www.gbrmpa.gov.au/managing-the-reef/reef-2050, provides an overarching strategy for managing the Reef, coordinates actions and guides adaptive management to 2050. 

 

The Program will provide grants to fund activities that protect and conserve the heritage and the environment of the Great Barrier Reef World Heritage Area (the heritage area) and the Great Barrier Reef catchment area (the catchment area).  Such activities may include:

*         activities to engage communities in the catchment area to enable stewardship of the heritage and catchment areas;

*         research projects designed to address priority planning and management issues in the heritage and catchment areas that are undertaken by eligible students or researchers;

*         activities carried out in the heritage and catchment areas to address one or more of the key threats to the Great Barrier Reef; and

*         activities carried out in the heritage area to support Reef resilience.

 

The objective of the Program is to support locally relevant stewardship and research projects which provide accessible opportunities for the community to contribute to caring for the Reef.  Successful projects will not only contribute to positive environmental outcomes, they will assist in building pride and confidence and strengthen the local community's capacity and motivation for further stewardship of the Reef.

 

The Program aims to:

*         foster a culture of community stewardship of the Reef;

*         stimulate and empower communities to take local action to enhance the health and resilience of the Reef;

*         develop partnerships and networks within Reef communities extending to management agencies and partner institutions;

*         influence social and environmental drivers affecting the Reef, its catchment area and communities; and

*         enable research that informs future management of the Reef.

 

The Program also seeks to give effect to the Government's obligations under the Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention).

 

The Authority will provide funding of up to $124,000 per annum to support the Program's activities.  Total grant funding of $496,000 will be available over four years from 2017-18.

 

The Reef Guardian Stewardship Grants stream will support projects that implement environmental initiatives in local communities, increase awareness of the Reef, and encourage stewardship of the Reef in local communities.  Individual grants will be between $500 to $4,000, with up to $30,000 per financial year allocated for this grant stream.

 


 

The Reef Guardian Community Grants stream will support regionally specific projects that raise local communities' awareness and/or participation in activities that improve the health and resilience of the Reef.  Individual grants will be between $500 to $2,000, with up to $24,000 per financial year allocated for this grant stream.  A maximum of $2,000 per granting round will be allocated for each of the twelve Local Marine Advisory Committee regions within the catchment area.

 

The Reef Guardian Research Grants stream will support research projects that are directly relevant to the planning and management issues in the heritage and catchment areas and that directly address the knowledge gaps identified in the Authority's Science Strategy and Information Needs 2014-2019 document and make a contribution to the Reef's ecologically sustainable use and management.  Individual grants will be between $1,000 to $25,000, with up to $70,000 per financial year allocated for this grant stream.

 

Funding for this item will come from Program 1.1: Improving the Outlook for the Great Barrier Reef, which is part of Outcome 1.  Details are set out in the Portfolio Budget Statements 2017-18, Budget Related Paper No. 1.7, Environment and Energy Portfolio at page 244.

 

The Program will be delivered by the Authority through a staged, competitive grant process in accordance with the Commonwealth Grants Rules and Guidelines.  The Authority has developed program guidelines containing eligibility and assessment criteria, including that grants will be limited to (or endorsed by) the Reef Guardian's schools and councils, community groups including through the Local Marine Advisory Committees, and research institutions at targeted universities.  All projects will take place within the heritage and catchment areas.

 

Information about the Program, including the program guidelines, will be made available on the Authority's website at www.gbrmpa.gov.au.  Key dates for the grants application and assessment process will be published on the Authority's website and on the GrantConnect website at www.grants.gov.au.

 

The first funding round is expected to commence in late 2017.  The Minister for the Environment and Energy will make funding decisions under the Program.

 

Eligible applications will be assessed on how well they address the assessment criteria outlined in the program guidelines.  A panel comprising the Authority's staff with relevant expertise will assess the applications and provide recommendations to the Minister.

 

As required under the Commonwealth Grants Rules and Guidelines, grant decisions will be published on the GrantConnect website at www.grants.gov.au and on the Authority's website at www.gbrmpa.gov.au/about-us/corporate-information/grants/grant-requirements.

 

The Program is not considered suitable for independent review of decisions because it involves the allocation of finite resources between competing applicants and an allocation that has already been made to another party would be affected by overturning the original decision.  Since the Program has limited funds, only a proportion of applications may be met.  The re-making of a decision under independent review would necessarily affect allocations available to other parties.  An application for independent review also may result in delays in the provision of grants to recipients.

 

The guaranteed right of review under section 75(v) of the Constitution, and review under section 39B of the Judiciary Act 1903, would still 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 (section 51(xxix)) of the Constitution.

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'.  The external affairs power supports legislation implementing treaties to which Australia is a party.  Australia has obligations in relation to the Reef under the World Heritage Convention.  In particular:

 

*         Article 4 provides that States Parties recognise the duty of each State to ensure the 'identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage' protected by the Convention;

 

*         Article 5 requires that to 'ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory' each State Party shall endeavour:

 

'(1)      to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes;

...

 

(3)        to develop scientific and technical studies and research and to work out                 such operating methods as will make the State capable of counteracting                  the dangers that threaten its cultural or natural heritage;

 

(4)        to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; ... '.

 

The Program will provide grant funding to undertake research and scientific studies of the Reef, implement policies which protect and repair the Reef and ensure the Reef's significance is recognised in the local community.

 

New table item 254 establishes legislative authority for the Government to support start-up administrative costs for a company limited by guarantee (which will administer a trust) to be known as the Antarctic Science Foundation (the Foundation).  The Government proposes to provide financial assistance to the Foundation to be used as seed funding to support its establishment.  The Department of the Environment and Energy (the Department) will administer the funding arrangement.

 


 

The Government's intention to support the establishment of the Foundation was announced in April 2016 as part of the Australian Antarctic Strategy and 20 Year Action Plan (the Strategy).  The Strategy outlined a commitment to establish an Antarctic foundation in the second year following the Strategy's release to augment science funding with private funding and build opportunities for public-private partnerships in Antarctic science.

 

The legal establishment of the Foundation will be undertaken by private individuals and the founding membership and directorship of the company administering the Foundation will be a matter for the individuals involved.

 

The Government's aim is that a Foundation will augment the Government's existing investment in scientific research and, once established, the Foundation would work in partnership with the Department's Australian Antarctic Division on projects that align with Australia's national Antarctic interests and that are conducted to advance the objectives of the Australian Antarctic program (the AAP).  Projects which the Foundation might support include the search for the world's oldest ice core, and a global research centre for krill (the keystone species of Antarctic ecosystems and the main food source for whales, penguins and seabirds).

 

The Foundation could significantly advance the objectives of the AAP and make globally significant contributions to Antarctic scientific research and the future of the planet.  While the greatest need is for investment in pioneering science, the Foundation may also support Antarctic education, public awareness and initiatives which enhance protection of the Antarctic environment.

 

While the mechanism by which funds will be delivered to the Foundation is yet to be finalised (that is, by way of a grant or loan), the Department will comply with all applicable requirements of the resource management framework established under the Public Governance, Performance and Accountability Act 2013.  Where a grant mechanism is used, the Department will comply with the Commonwealth Grants Rules and Guidelines, including by developing guidelines containing eligibility and assessment criteria for the making of the relevant grant(s).  Details of any grant will be published by the Department on its website at http://environment.gov.au/about-us/accountability-reporting/grants-listing.

 

In either case, a funding or loan agreement will be entered into by the Commonwealth with the Foundation in order to limit the use of the funds provided to specified establishment activities.  Such activities may include the hiring of an executive officer, a membership manager and a data processor/administrator; the holding of a public Foundation launch; preliminary employee travel costs; preparation of marketing and communications materials; and setting up bank accounts.

 

Funding decisions will be made by the delegate of the Secretary of the Department, in accordance with the relevant delegations instrument.

 

The decision to provide funds to the Foundation is not considered suitable for independent merits review because the Government's intention to support the establishment of the Foundation was announced in April 2016 as part of the Strategy.  The proposed grant or loan will be delivered through non-competitive, targeted funding to the Foundation and involves the allocation of finite resources to support the establishment of the Foundation.

 

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

 

Funding for this item will come from Program 3.1: Antarctica: Science, Policy and Presence, which is part of Outcome 3.  Details are set out in the Portfolio Budget Statements 2017-18, Budget Related Paper No. 1.7, Environment and Energy Portfolio at page 66.

 

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 territories power (section 122); and

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

 

The territories power in section 122 of the Constitution enables the Parliament to make laws in connection with Australian territories.  Expenditure authorised by the item will support the funding of scientific research within or related to the Australian Antarctic Territory (AAT) and promotional and outreach activities that are incidental to securing and expanding funding.

 

The external affairs power in section 51(xxix) of the Constitution enables the Parliament to make laws with respect to matters, things and people geographically external to Australia.  Expenditure authorised by the item will support activities in areas of Antarctica outside the AAT, and the Southern Ocean more generally.

 

 

 

 

 

 

 

 

 


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. 3) Regulations 2017

 

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 two initiatives in the Environment and Energy portfolio which will be administered by the Great Barrier Reef Marine Park Authority and the Department of the Environment and Energy, respectively.

 

Funding will be provided for:

*         the Reef Guardian Grants Program to support activities that protect and conserve the heritage and the environment of the Great Barrier Reef World Heritage Area and the Great Barrier Reef catchment area; and

*         start-up administrative costs for the Antarctic Science Foundation, which will be established by private individuals, to augment scientific research and build opportunities for public-private partnerships in Antarctic science.

 

The Minister for the Environment and Energy has portfolio responsibility for these matters. 

 

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


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