EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Finance
Financial Framework (Supplementary Powers) Act 1997
Financial Framework (Supplementary Powers) Amendment
(Agriculture, Water and the Environment Measures No. 4) Regulations 2021
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 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.
Section 65 of the FF(SP) Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the 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 Financial Framework (Supplementary Powers) Amendment (Agriculture, Water and the Environment Measures No. 4) Regulations 2021 (the Regulations) amend Schedule 1AB to the Principal Regulations to establish legislative authority for government spending on the Indigenous Protected Areas (IPAs) program, which includes the expansion of IPAs in areas of sea (Sea Country).
IPAs are areas of land or land and sea managed by traditional owners through voluntary agreements with the Australian Government to protect biodiversity and cultural values. The objective of the program is to increase the area of Sea Country in IPAs to strengthen protection of marine biodiversity, while creating employment and economic opportunities for Indigenous Australians. This will be achieved by developing new Sea Country IPAs and expanding the area of ocean in existing terrestrial IPAs.
Grants will support consultation with Indigenous traditional owners and other stakeholders, management planning, on-ground management, and the creation of over 30 direct jobs primarily for Indigenous Australians in remote communities.
On 23 April 2021, the Prime Minister, the Hon Scott Morrison MP, the Minister for the Environment, the Hon Sussan Ley MP, and the Minister for Energy and Emissions Reduction, the Hon Angus Taylor MP, jointly announced the program as part of the Government’s $100 million investment in the management of ocean habitats and coastal environments and reducing emissions.
Total funding of $11.6 million for the program was included in the 2021-22 Budget under the measure ‘Oceans Leadership Package’ for a period of two years commencing in 2021-22.
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 the instrument is 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 Agriculture, Water and the Environment.
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
(Agriculture, Water and the Environment Measures No. 4) Regulations 2021
Section 1 – Name
This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Agriculture, Water and the Environment Measures No. 4) Regulations 2021.
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
Financial Framework (Supplementary Powers) Regulations 1997
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 an activity jointly administered by the Department of Agriculture, Water and the Environment (the department) and the National Indigenous Australians Agency (NIAA).
New table item 493 establishes legislative authority for government spending on the Indigenous Protected Areas (IPAs) program, which includes the expansion of IPAs in areas of sea (Sea Country).
IPAs are areas of land or land and sea managed by traditional owners through voluntary agreements with the Australian Government to protect biodiversity and cultural values. The objective of the program is to increase the area of Sea Country in IPAs to strengthen protection of marine biodiversity, while creating employment and economic opportunities for Indigenous Australians. This will be achieved by developing new Sea Country IPAs and expanding the area of ocean in existing terrestrial IPAs.
On 23 April 2021, the Prime Minister, the Hon Scott Morrison MP, the Minister for the Environment, the Hon Sussan Ley MP, and the Minister for Energy and Emissions Reduction, the Hon Angus Taylor MP, jointly announced the program as part of the Government’s $100 million investment in the management of ocean habitats and coastal environments and reducing emissions. The media release is available at www.pm.gov.au/media/australia-announces-100-million-initiative-protect-our-oceans.
The increase in the area of Sea Country builds on the existing IPAs program, which was established in 1997, to protect and conserve Australia’s biodiversity; assist Indigenous Australians to deliver environmental, cultural, social and economic outcomes through effective and sustainable management of land and sea; and build the extent and condition of Australia’s National Reserve System (network of formally recognised parks, reserves and protected areas across Australia). There are 78 dedicated IPAs, covering over 74 million hectares of land and 4 million hectares of sea.
Only eight IPAs currently include Sea Country. Funding will be provided to incorporate Sea Country in IPAs in nine locations through expanding existing terrestrial IPAs and creating new IPAs. Grants will support consultation with Indigenous traditional owners and other stakeholders, management planning, on-ground management, and the creation of over 30 direct jobs primarily for Indigenous Australians in remote communities.
The IPA projects start with a consultation stage involving Indigenous-led discussion and planning within and between Indigenous groups and with other stakeholders, and the development of a management plan outlining proposed actions to protect natural and cultural values. An IPA project then moves to a dedication stage following an informed decision by traditional owners and other relevant parties to dedicate their land and/or Sea Country as an IPA and manage the area in accordance with the management plan. An IPA management plan can complement rather than replace existing management arrangements.
The program focusses on increasing employment opportunities in remote communities primarily for Indigenous Australians, including women. Creating employment opportunities for women empowers them and recognises their significant contribution to the protection of biodiversity due to their specific cultural and traditional ecological knowledge and skills. The direct jobs will manage IPAs and contribute to coastal patrols, fisheries and biosecurity surveillance, coastal management (weed, feral animal, fire and erosion control), sustainable management of turtle and dugong, ghost net and marine debris removal. The program further supports traditional owner access to Sea Country, intergenerational transfer of Indigenous ecological knowledge, and the mapping, research and monitoring of ecological and cultural values.
The program will be implemented through a restricted competitive grant round conducted by the department and NIAA. Funding will be available across Australia to Indigenous organisations only. The department will set policy objectives, prepare grant opportunity guidelines and recommend projects to the Minister for the Environment for funding. The department will also consult with NIAA during development of grant guidelines and assessment of grant applications. The Minister for the Environment will consult with the Minister for Indigenous Australians and make the final determination on awarding of funding. Once successful projects are identified, execution and management of funding agreements will be undertaken by NIAA, which manages all current IPA program funding arrangements. Finalisation of funding agreements will occur by early 2022.
Grants will be administered in line with the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). Grant opportunity guidelines containing eligibility and assessment criteria will be made available on GrantConnect at www.grants.gov.au. Grant recipients must demonstrate that their project meets the program eligibility and assessment criteria before receiving a grant.
Funding decisions made in connection with the program are not considered 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. In addition, any funding that has already been allocated would be affected if the original decision was overturned. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).
In addition, the review and audit process undertaken by the Australian National Audit Office 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.
The NIAA has been consulted throughout the development of the program and is supportive of the program. The department and NIAA held a series of roundtables in December 2020 with Indigenous organisations currently receiving IPA grant funding from the Government and with other key IPA stakeholders. The stakeholders expressed strong support for expanding IPAs into Sea Country.
Total funding of $11.6 million for the program was included in the 2021-22 Budget under the measure ‘Oceans Leadership Package’ for a period of two years commencing in 2021-22. Details are set out in Budget 2021-22, Budget Measures, Budget Paper No. 2 2021-22 at pages 59 to 60. This includes funding of $10.8 million for the department and $0.8 million for NIAA.
Funding for this item will come from Program 1.1: Sustainable Management of Natural Resources and the Environment, which is part of Outcome 1. Details are set out in Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.1, Agriculture, Water and Environment Portfolio at pages 34, 53 and 56.
Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the race power (section 51(xxvi)) of the Constitution.
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’.
The program provides expenditure for activities that will assist Indigenous Australians to deliver environmental, cultural, social and economic outcomes through effective and sustainable management of land and sea. In extending the area of Sea Country included in IPAs, employment and economic opportunities will be created for Indigenous Australians.
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 (Agriculture, Water and the Environment Measures No. 4) Regulations 2021
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 (Agriculture, Water and the Environment Measures No. 4) Regulations 2021 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on the Indigenous Protected Areas (IPAs) program, which includes the expansion of IPAs in areas of sea (Sea Country).
IPAs are areas of land or land and sea managed by traditional owners through voluntary agreements with the Australian Government to protect biodiversity and cultural values. The objective of the program is to increase the area of Sea Country in IPAs to strengthen protection of marine biodiversity, while creating employment and economic opportunities for Indigenous Australians. This will be achieved by developing new Sea Country IPAs and expanding the area of ocean in existing terrestrial IPAs.
Grants will support consultation with Indigenous traditional owners and other stakeholders, management planning, on-ground management, and the creation of over 30 direct jobs primarily for Indigenous Australians in remote communities.
Human rights implications
This disallowable legislative instrument engages the following rights:
- the right for ethnic, religious or linguistic minorities to enjoy their own culture – Article 27 of the International Covenant on Civil and Political Rights (ICCPR), read with Article 2; and
- 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.
Article 2 of the ICCPR and the ICESCR requires each State Party to take steps to progressively achieve the full realisation of the rights recognised by all appropriate means.
Article 27 of the ICCPR provides that ethnic, religious or linguistic minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
Article 15(1)(a) of the ICESCR states that the States Parties ‘recognise the right of everyone to take part in cultural life’.
This disallowable legislative instrument will support the right of Australia’s Indigenous peoples under Article 27 of the ICCPR and Article 15 of the ICESCR to enjoy and take part in their culture, by providing funding for economic opportunities to assist Indigenous Australians to deliver sustainable management of land and sea. The program will involve Indigenous-led discussion and planning within and between Indigenous groups and the development of a management plan to protect natural and cultural values.
By providing funding to increase the area of Sea Country in IPAs, the program recognises the cultural importance of protecting and conserving the land and sea to which traditional owners are connected. Further, the economic opportunities provided by the program will assist Indigenous peoples to remain on and undertake work on Country, and maintain enjoyment of their cultural connections.
Conclusion
This disallowable legislative instrument is compatible with human rights because it promotes the protection of human rights.
Senator the Hon Simon Birmingham
Minister for Finance