Details of the Financial Framework (Supplementary Powers) Amendment (Education Measures No. 1) Regulations 2019

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Education Measures No. 1) Regulations 2019.

 

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 3 of Schedule 1AB (table)

 

This item adds a new table item 34 to Part 3 of Schedule 1AB to establish legislative authority for government spending on an initiative that will be administered by the Department of Education (the department).

 

New table item 34 establishes legislative authority for the Government to provide a grant to The Bell Shakespeare Company Limited (Bell Shakespeare) to facilitate performing arts education in schools by teaching school students the works of the playwright and poet William Shakespeare. The funding will be used to improve learning and teaching outcomes and improve access to arts education for eligible schools whether metropolitan, regional or remotely located.

 

Bell Shakespeare is an Australian theatre company that has been providing arts education programs to Australian schools since 1990. The initiative will support Bell Shakespeare in helping students engage with the works of Shakespeare and extend their learning in the arts through their education programs.

 

Schools that are eligible to benefit from Bell Shakespeare's programs include those with an index of Community Socio-Economic Advantage of 1,000 or less, and which are not located in or near a major city. Teachers selected to participate will be from regional, rural and remote schools that agree to support and provide resources for the teaching of Shakespeare in their schools as per the application process, which is set out on Bell Shakespeare's website (see: https://www.bellshakespeare.com.au/wp-content/uploads/2018/05/Learning2019_Application-RTM1.pdf).

The Government will fund Bell Shakespeare to facilitate performing arts education including through:

*         development and delivery of live theatre productions to over 50,000 students in 300 schools

*         a mentoring and training program for regional and remote teachers to deliver arts education programs

*         providing discounted student tickets to theatre performances, particularly for remote and regional schools

*         development of resources, including digital resources, aligned to the

Australian Curriculum: The Arts learning area and supporting arts education in schools

*         educating specialist staff to deliver programs, train teachers and develop resources.

Funding for Bell Shakespeare will be provided by way of a closed, non-competitive grant, as they have been conducting performing arts education programs in schools since 1990 and have a well-established record of delivering these initiatives.  The process for, and the administration of any grant, will be conducted in accordance with the Commonwealth Grants Rules and Guidelines 2017 (CGRGs), and will adhere to standard grant selection and reporting requirements. Funding for Bell Shakespeare will also be expended in accordance with the Department's Secretary Instructions and delegations on the expenditure of relevant monies, and in accordance with the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

 

Grant guidelines will be developed for Bell Shakespeare and made publicly available on Grant-Connect (www.grants.gov.au). Independent review will not be available for the grant provided to Bell Shakespeare, as this grant will be closed, non-competitive and for a specific purpose and entity. As Bell Shakespeare will be required to select a limited number of schools and a finite number of teachers (30) to participate in the programs, it would not be feasible for Bell Shakespeare to make such decisions subject to independent merits review. Given that the number of participants are limited and finite, any reversal of a decision on whether a school or teacher may participate or not may then cause the displacement of, and disadvantage to, another school or teacher.

 

Given the successful track record by Bell Shakespeare of delivering arts education programs, it is not reasonably foreseeable nor envisaged that any other organisation would receive funding in relation to these initiatives. The grant will be directly negotiated and agreed with Bell Shakespeare.

 

Information about the grant will be published on Grant-Connect (www.grants.gov.au) once an agreement is signed for Bell Shakespeare.

 

The Government will provide Bell Shakespeare with $1.3 million over four years from
2019-20.  This funding will come from Program 1.5 Early Learning and Schools Support which is part of Outcome 1 of the Department of Education. Details are set out in the Portfolio Budget Statements 2019-20, Budget Paper No. 2, page 68, Education and Training, at page 18.

 

 

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 communications power (s 51(v))

*         the social welfare power (s 51(xxiiiA))

*         the external affairs power (s 51(xxix))

*         the express incidental power and the executive power (s 51(xxxix) and s 61), including the nationhood aspect

*         the territories power (s 122).

 

Communications power (s 51(v))

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'. These programs will involve the development of measures, such as the digital resources and live-streaming of performances, which will operate on, or rely on, electronic communications services such as the internet.

 

Social welfare power (s 51(xxiiiA))

 

The social welfare power in s 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits and services, including benefits to students. These programs will involve the provision of a benefit aimed at meeting the educational needs or wants of an identifiable group of students, for example, through live theatre performances at schools or subsidised tickets to students from remote or regional schools who attend theatre productions.

 

External affairs power (s 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 implementing Australia's international obligations under treaties to which it is a party. 

 

Australia has obligations under articles 28, 29 and 31 of the Convention on the Rights of the Child [1991] ATS 4 (CRC).

 

Article 28 of the CRC relevantly provides:

 

1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

 

(a) Make primary education compulsory and available free to all;

(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;

Article 29 of the CRC relevantly provides:

 

1. States Parties agree that the education of the child shall be directed to:

(a) The development of the child's personality, talents and mental and physical abilities to their fullest potential;

...

(c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;

 

Article 31 of the CRC relevantly provides:

 

1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.

2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.

The funding of Bell Shakespeare's arts programs will promote the right to education and the participation of school children in cultural life through arts education that teaches Shakespeare.

Australia also has obligations under articles 2 and 15 of the International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR) to take steps necessary to the full realisation of the right to take part in cultural life.

Article 2 of the ICESCR relevantly provides:

1. Each State Party to the present Covenant undertakes 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 realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Article 15 of the ICESCR relevantly provides:

1. The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life;

 

Bell Shakespeare will be funded to facilitate wider participation by school children and teachers in cultural life and the performing arts by delivering arts education programs.

 

Express incidental power and the executive power (s 51(xxxix) and s 61), including the nationhood aspect

 

The express incidental power in section 51(xxxix) of the Constitution empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested in it by the Constitution. Together with the executive power in section 61 of the Constitution, the express incidental power supports activities that 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. These programs are a national initiative for the performing arts that requires Commonwealth involvement. 

 

Territories power (s 122)

 

Section 122 of the Constitution empowers the Parliament to 'make laws for the government of any territory'. These programs will involve spending for the purposes of activities conducted in schools in the Northern Territory and the Australian Capital 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 (Education Measures No. 1) Regulations 2019

 

This disallowable legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the FF(SP) Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs.

 

The Financial Framework (Supplementary Powers) Amendment (Education Measures No. 1) Regulations 2019 amend Schedule 1AB to the FF(SP) Regulations to add a new table item 34 to Part 3 of that schedule. The new table item establishes legislative authority for the Government to provide grants to The Bell Shakespeare Company Limited (Bell Shakespeare) to facilitate performing arts education in schools by teaching school students the works of the playwright and poet William Shakespeare. The funding will be used to improve learning and teaching outcomes and improve access to arts education for eligible schools whether metropolitan, regional or remotely located.

 

Bell Shakespeare is an Australian theatre company that has been providing arts education programs to Australian schools since 1990. The initiative will support Bell Shakespeare in helping students engage with the works of Shakespeare and extend their learning in the arts through their education programs.

 

Funding of $1.3 million over four years from 2019-20 will be provided for the following activities:

*         development and delivery of live theatre productions to over 50,000 students in 300 schools

*         a mentoring and training program for regional and remote teachers to deliver arts education programs

*         providing discounted student tickets to theatre performances, particularly for remote and regional schools

*         development of resources, including digital resources, aligned to the

Australian Curriculum: The Arts learning area and supporting arts education in schools

*         educating specialist staff to deliver programs, train teachers and develop resources.

 

 

Human Rights implications

 

This instrument engages the following human rights:

*         the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and Articles 28 and 29 of the Convention on the Rights of the Child (CRC); and

*         the right to culture - Article 15 of the ICESCR and Article 31 of the CRC.

 

Right to Education

This instrument engages the right to education in Article 13 of the ICESCR. Article 13 recognises the right of everyone to education, which is directed towards the full development of the human personality and the sense of its dignity, and to enable all persons to participate effectively in society. The right to education for children is also found in Articles 28 and 29 of the UNCRC.

 

This instrument promotes the right to education by:

*         supporting participation and engagement in arts education in schools

*         supporting teachers with the training and educational resources to gain confidence in teaching the arts

*         improving educational outcomes by increasing participation in the arts, particularly in regional and remote schools.

 

This instrument is compatible with the right to education and promote the right to education.

 

Right to culture

This instrument engages the right to culture in Article 15 of the ICESCR and Article 31 of the CRC. Article 15 of the ICESCR recognises the right of everyone to take part in cultural life. Article 31 of the CRC recognises the right of the child to participate freely in cultural life and the arts, and encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activities. 

 

This instrument promotes the right to culture by:

*         providing resources and professional support to enhance arts education in schools;

*         promoting participation in the arts by increasing students' exposure to theatre performances;

*         improving student learning outcomes in the arts; and

*         improving teachers' skills and knowledge in the arts, increasing their capacity to develop and deliver arts education programs.

 

This instrument is compatible with the right to culture.

 

Conclusion

 

This instrument is compatible with human rights because it promotes the right to education under the ICESCR and CRC and the right to culture under the ICECSR and CRC.

 

Senator the Hon Mathias Cormann

Minister for Finance