Financial Framework (Supplementary Powers) Amendment (Climate Change, Energy, the Environment and Water Measures No. 1) Regulations 2025

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Finance

Financial Framework (Supplementary Powers) Act 1997

Financial Framework (Supplementary Powers) Amendment

(Climate Change, Energy, the Environment and Water Measures No. 1) Regulations 2025

The Financial Framework (Supplementary Powers) Act 1997 (the FFSP 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 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 Principal Regulations are exempt from sunsetting under section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015 (item 28A). If the Principal Regulations were subject to the sunsetting regime under the Legislation Act 2003, this would generate uncertainty about the continuing operation of existing contracts and funding agreements between the Commonwealth and third parties (particularly those extending beyond 10 years), as well as the Commonwealth’s legislative authority to continue making, varying or administering arrangements, grants and programs.

Additionally, the Principal Regulations authorise a number of activities that form part of intergovernmental schemes. It would not be appropriate for the Commonwealth to unilaterally sunset an instrument that provides authority for Commonwealth funding for activities that are underpinned by an intergovernmental arrangement. To ensure that the Principal Regulations continue to reflect government priorities and remain up to date, the Principal Regulations are subject to periodic review to identify and repeal items that are redundant or no longer required.

Section 32B of the FFSP 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. Section 32D of the FFSP Act confers powers of delegation on Ministers and the accountable authorities of non-corporate Commonwealth entities, including subsection 32B (1) of the FFSP Act. Schedule 1AA and Schedule 1AB to the Principal Regulations specify the arrangements, grants and programs.

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

The Financial Framework (Supplementary Powers) Amendment (Climate Change, Energy, the Environment and Water Measures No. 1) Regulations 2025 (the Regulations) amend Schedule 1AB to the Principal Regulations to establish legislative authority for government spending on activities to be administered by the Department of Climate Change, Energy, the Environment and Water.

Funding will be provided for:

a grant to the Kimberley Land Council Aboriginal Corporation to conduct research to support the listing of the West Kimberley on the World Heritage List ($0.5 million over two years from 2024-25);
an amendment to the Fisheries Assistance and User Engagement Funding Program to provide direct assistance to those commercial fishers with a recent catch history of fishing in South-east Marine Parks to assist them transition their businesses to the changed operating environment created by a new South-east Marine Parks Network Management Plan 2025-2035 (financial implications for this element are not for publication due to an ongoing consultation process required under the Environment Protection and Biodiversity Conservation Act 1999);
the High Pathogenicity Avian Influenza H5N1 Preparedness Capability Program to support measures in preparation for any incursions of high pathogenicity avian influenza H5N1 in Australia, so as to limit its impacts on Australian wildlife and ecosystems ($35.9 million over two years from 2024-25); and
the Quad Clean Energy Supply Chain Diversification Program to develop and diversify clean energy supply chains in the Indo Pacific region by funding eligible projects ($50.0 million over four years from 2024-25).

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 registration 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 Climate Change, Energy, the Environment and Water.

A regulatory impact analysis is not required as the Regulations only apply to non‑corporate Commonwealth entities and do not adversely affect the private sector.

Attachment A

Details of the Financial Framework (Supplementary Powers) Amendment

(Climate Change, Energy, the Environment and Water Measures No. 1) Regulations 2025

Section 1 – Name

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Climate Change, Energy, the Environment and Water Measures No. 1) Regulations 2025.

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 (the Principal Regulations) are amended as set out in the Schedule to the Regulations.

Schedule 1 – Amendments

Financial Framework (Supplementary Powers) Regulations 1997

The items in Schedule 1 amend Schedule 1AB to the Principal Regulations to provide legislative authority for government spending on activities to be administered by the Department of Climate Change, Energy, the Environment and Water (the department).

Item 1 – In the appropriate position in Part 3 of Schedule 1AB (table)

Table item 85 – Grant to the Kimberley Land Council Aboriginal Corporation

New table item 85 establishes legislative authority for the Government to provide a grant to the Kimberley Land Council Aboriginal Corporation (Kimberley Land Council) to conduct research to support the listing of the West Kimberley on the World Heritage List.

The initiative forms part of a broader $2.0 million Investing in Australia’s Indigenous Culture and World Heritage program (the program) and reflects the Government’s commitment to pursue World Heritage listings for the Murujuga Cultural Landscape, Flinders Ranges, West Kimberley, Victorian Trades Hall and Parramatta Female Factory.

The program will support the protection of Australia’s cultural and First Nations heritage sites by empowering local communities and First Nations people to assess and identify priorities for the protection of heritage.

Grant funding of $0.5 million from the program will be provided to the Kimberley Land Council for a period of two years from 2024-25 to work with Traditional Owner groups across the West Kimberley region to discuss what their future goals and aspirations are for the protection of their heritage.

This will begin the process of free, prior and informed consent for a potential World Heritage nomination, and commence the research required into identifying areas of potential Outstanding Universal Value (OUV) in the West Kimberley.

The objective of the grant is to support the preservation and ongoing management of First Nations cultural heritage by pursuing a World Heritage nomination of the West Kimberley, with sufficient funding remaining for the Western Australian Government to carry that project forward at the conclusion of this first stage.

The intended outcomes of the grant are:

to ascertain Traditional Owner groups’ interest in a World Heritage nomination for the West Kimberley and inform them of the process; and
to undertake and gather preliminary research and identify areas within the West Kimberley that have the potential to demonstrate OUV.

Funding amount and arrangements, merits review and consultation

Funding of $0.5 million for this item will come from Program 2.2: Protect Australia’s cultural, historic and First Nations heritage, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2024-25, Budget Related Paper No. 1.3, Climate Change, Energy, the Environment and Water Portfolio at page 57.

The department will deliver the grant through a closed non-competitive process. The grant will be administered and assessed by the Business Grants Hub within the Department of Industry, Science and Resources (DISR) in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) and the Commonwealth Grants Rules and Principles 2024 (CGRPs).

Consistent with the CGRPs, the department will work with DISR’s Business Grants Hub to develop grant opportunity guidelines and will have regard to the nine key principles in administrating the grant. The grant opportunity guidelines once approved and executed will be published on the GrantConnect website (www.grants.gov.au).

The Kimberley Land Council will be invited to apply for a grant and will be considered the appropriate funding recipient as they are the peak Indigenous body in the Kimberley region. The Kimberley Land Council was set-up specifically to benefit all Kimberley Aboriginal people and works with about 25 native title groups across the region, subsequently representing the majority of native title groups.

Whilst other representative bodies exist in the Kimberley, none have the breadth of representation as the Kimberley Land Council, including of its well-established record of delivering the same or similar activities, such as:

the support provided to the National Heritage listing of the West Kimberley; and
the capacity to organise Traditional Owner workshops of a similar scale, such as the Martuwarra Fitzroy River Forum which brought together 80 Traditional Owners from 10 Traditional Owner groups in November 2023.

The final funding decision for the grant will be made by a delegate of the Minister for the Environment and Water in accordance with the PGPA Act and the Financial Framework (Supplementary Powers) Act 1997 (FFSP Act). The delegate will be a Senior Executive Service (SES) Band 3 with responsibility for, and experience in, World and National Heritage matters.

Independent merits review would not be appropriate for this grant because the funding decision will relate to the allocation of finite resources and an allocation already made from the fund would be affected by overturning the original decision. The funding decision is a one-off payment to the Kimberley Land Council for a specific purpose. The Administrative Review Council (ARC) 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?’ (ARC guide)).

The ARC considers that decisions that provide one-off payments to certain services providers, over other services providers should be excluded from merits review because review would only promote competition among community groups, no effective remedy could be provided as a successful application for review by one service provider would require a reduction in funding to the other service provider, and because there would be delays in channelling funds into service provision.

The review and audit process undertaken by the Australian National Audit Office (ANAO) 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 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 also be available. Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

The department has undertaken targeted consultation with Kimberley Traditional Owner groups and community including the Martuwarra Fitzroy River Council, Willinggin Aboriginal Corporation, Bunuba Dawangarri Aboriginal Corporation and the Kimberley Land Council to ascertain support for this program.

Initial consultations have also been undertaken by the Kimberley Land Council. The Kimberley Land Council and Martuwarra Fitzroy River Council jointly agreed that a workshop for Traditional Owners was the best first step to progress this work across the region.

The Western Australian government has also been consulted on the establishment of this grant. The Western Australian government agrees that a grant to the Kimberley Land Council is the best first step to establish Traditional Owner support for a World Heritage process before it agrees to accept any future funding through a special purpose payment.

Constitutional considerations

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

External affairs

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 party.

Australia is a party to the Convention Concerning the Protection of the World Cultural and Natural Heritage [1975] ATS 47 (the World Heritage Convention). Relevantly, under the World Heritage Convention, Australia has committed to:

ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage (Article 4);
ensuring that effective and active measures, including financial measures, are taken for the identification, protection, conservation and presentation of the cultural and natural heritage (Article 5);
submitting to the World Heritage Committee an inventory of property forming part of the cultural and natural heritage and suitable for inclusion in the list (Article 11).

The grant would ensure the identification of cultural heritage, with a view to potentially submitting the West Kimberley for inclusion on the World Heritage List.

Item 2 – Part 4 of Schedule 1AB (table item 319)

Item 2 amends table item 319 by repealing and substituting the full item. Table item 319 in Part 4 of Schedule 1AB establishes legislative authority for government spending on the Fisheries Assistance and User Engagement Funding Program.

On 1 July 2018, the Australian Government announced a $35.0 million Fishing Business Assistance and User Engagement package to both assist fishers directly impacted by new Australian Marine Park management arrangements which came into effect on 1 July 2018 and to engage park users in management. The package included the following funding components:

Fishing Business Assistance Grants (FBA Grants);
Our Marine Parks Grants;
Vessel Monitoring Assistance; and
a Coral Sea Fishery Licence Buy-Out.

The two original grant programs comprised $9.5 million for FBA Grants and $5.0 million for Our Marine Park Grants. The FBA Grants assisted directly affected commercial fishers to adjust to the commencement of 44 new Australian Marine Parks. At the close of the program, 441 grant offers had been accepted totalling $9.4 million.

The Our Marine Parks Grants awarded 12 projects worth $5.0 million to fishing industry peak organisations to help them improve the long-term sustainability of fishing in ways that support the objectives of Australian Marine Parks. Highlights from the first round include:

enabling the Eastern Tuna and Billfish Fishery, Great Australian Bight Trawl Fishery and New South Wales (NSW) Eastern Rock Lobster Fishery to achieve Marine Stewardship Council sustainability certification, which has significantly increased the value and marketability of their catch; and
supporting the NSW Professional Fishers Association to reduce risk of entanglement of humpback whales, by trialling the use of different types of fishing gear which has led to voluntary uptake of new gear configurations.

The amendments to table item 319 reflect changes under the FBA Grants program by providing direct assistance to those commercial fishers with a recent catch history of fishing in South-east Marine Parks to assist them transition their businesses to the changed operating environment created by a new South-east Marine Parks Network Management Plan
2025-2035 (management plan). The period of catch history that will be considered is 1 July 2016 to 30 June 2023.

The new management plan is a legislative instrument, required under the Environment, Protection and Biodiversity Conservation Act 1999 (EPBC Act). The purpose of the management plan is to provide for the protection and conservation of the 14 marine parks in the South-east Network, and to meet legislative requirements set out in the EPBC Act. Amongst other things, this includes to assign management categories to the marine parks and areas within them as required (called ‘zones’), describe how the parks will be managed and how the values of the park will be protected and conserved over its ten-year duration. The management plan is expected to commence as early as February 2025.

The FBA Grants program will not commence until after the new management plan for the South-east Marine Parks Network commences and has passed its disallowance period in Parliament, and not before 1 July 2025.

Funding amounts will be determined using a consistent, formula-based approach, which utilises catch and location data provided by fisheries management agencies (at the Commonwealth and state level).

The FBA Grants program applies the methodology from the original FBA program in 2019. The original program was generally well understood and accepted and was delivered on time and on budget. The FBA Grants program formula will be amended slightly to account for COVID-19 related impacts on the commercial fishing industry.

Fisheries data 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 FBA Grants program). Those fishers will be at both Commonwealth level (regulated by the Australian Fisheries Management Authority) and state level (Tasmania and South Australia only).

All information to be used in the process will be based on statutory information maintained by relevant fisheries management agencies. This information derives from fisheries management requirements on fishers as to licencing arrangements and the timely reporting of their catch (including location, species caught, methods used and quantity/weight).

ABARES will analyse catch information using an appropriate methodology, which will be documented in the grant opportunity guidelines for the FBA Grants program. This analysis by ABARES will generate a list of eligible grant recipients (via a unique identity document), and their grant amount.

It is expected that the FBA Grants program will be completed no later than mid-2026.

The amendment to table item 319 would also provide authority for possible future grant programs of similar nature likely to be required in relation to other Commonwealth reserve review processes that will occur in the coming years.

Funding amount and arrangements, merits review and consultation

The financial implications of the program are not for publication due to an ongoing consultation process required under the Environment Protection and Biodiversity Conservation Act 1999. It is the Government’s intention to disclose the funding allocated for the program once the consultation process is completed and the contractual agreement is finalised.

The department will deliver the FBA Grants program through a closed non-competitive process in accordance with the Commonwealth resource management framework, including the PGPA Act, the PGPA Rule and the CGRPs.

The Community Grants Hub within the Department of Social Services will administer the grants on behalf of the department. Grant opportunity guidelines will incorporate appropriate safeguards against fraud, unlawful activities and other inappropriate conduct, consistent with the CGRPs.

The Director of National Parks (DNP), supported by Parks Australia, will advise the Community Grants Hub on design and delivery requirements, guided by their experience with the 2019 FBA Grants program. The DNP will remain responsible for ensuring all grant payments are consistent with the program, are in accordance with the Community Grants Hub requirements, the CGRPs and are compliant under the Commonwealth resource management framework.

The DNP will make recommendations to the Minister for the Environment and Water (the Minister) regarding the extent of individual fishers’ entitlement to a grant under the program. The Minister will be responsible for the final decision to approve these grants, consistent with application of the grant guidelines.

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.

Following the invitation to apply, eligible persons will register online (using their unique identifier and amount agreed by the Minister) and receive a letter of agreement that provides the opportunity to opt out, with grant agreements then executed and grants paid.

Information about the FBA Grants program, including the grant guidelines, will be available on the Community Grants Hub’s website (https://www.communitygrants.gov.au/) and the DNP’s website (https://www.dcceew.gov.au/parks-heritage/national-parks/parks-australia/director-national-parks).

Grant decisions made in connection with the FBA Grants 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 ARC 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 ARC guide).

The review and audit process undertaken by the ANAO 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.

The zoning changes to the South-east Marine Parks Network are the result of extensive analysis and consultation across government and the fishing industry. Engagement with relevant state and federal agencies and peak bodies has ensured that impacts to fishers are fully understood and minimised where this is consistent with the values of the marine parks.

The FBA Grants program follows an established precedent and formula, using the methodology from the 2019 FBA Grants program, which was delivered successfully with extensive industry consultation across five other marine park networks.

The Australian Fisheries Management Authority, Tasmanian Department of Natural Resources and Environment and the South Australian Department of Primary Industries and Regions will support delivery of the FBA Grants program in their respective jurisdictions. Discussions have commenced with those agencies to ensure the success of the program. Using ABARES and fisheries management agencies to support the program protects fishers commercial in confidence information.

Constitutional considerations

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 with respect to matters or things outside the geographic limits of Australia.

The program will provide grants to commercial fishers operating in the Southeast marine parks, which are geographically external to Australia, who are impacted by zoning changes in Commonwealth marine reserves.

Item 3 – In the appropriate position in Part 4 of Schedule 1AB (table)

Item 3 adds two new table items to Part 4 of Schedule 1AB.

Table item 704 – High Pathogenicity Avian Influenza H5N1 Preparedness Capability Program

New table item 704 establishes legislative authority for government spending on the High Pathogenicity Avian Influenza H5N1 Preparedness Capability Program (the program).

The program responds to the Government’s investment to prepare and protect Australia against a strain of avian influenza that carries significant risks for the agricultural industries, Australia unique wildlife and the national economy.

On 14 October 2024, the Government announced a support package totalling $100.0 million to fight avian influenza, which included funding for the program. The rapid global spread of the high pathogenicity avian influenza (HPAI) H5N1 has led to significant mortalities in wild birds and some mammal species. The media release for the support package is available at https://minister.dcceew.gov.au/plibersek/media-releases/joint-media-release-albanese-government-delivering-more-100-million-fight-avian-influenza.

The program aims to minimise the risk of extinctions by minimising the risk of spread and maximising resilience of priority species. The program will boost and accelerate HPAI H5N1 preparedness, planning and protective action by using the best data available to target actions for Australia most at-risk species and important natural places.

The program includes $35.9 million for a range of activities that will be delivered over two years from 2024-25. This includes $28.8 million of administered funding for preparedness and response planning and to support practical actions for priority species in captivity and in nature, for example:

species and site-specific planning to identify actions to directly mitigate the spread and impacts of HPAI H5N1 for Australia most susceptible wildlife;
enhance biosecurity and management of threatened species in captivity; and
safeguard and build resilience for Australia most at-risk species in nature by mitigating other threats, such as predation by invasive rodents of seabirds on key offshore islands.

As part of this program, $7.1 million is provided to the department to support wildlife susceptibility and disease spread analysis and decision support tools – this will identify the species and places most at risk and practical actions to protect these assets. This funding will also expand surveillance across wetlands of the Murray-Darling Basin and Australia remote island parks, support preparedness efforts in Commonwealth national parks and keep
on-ground staff safe and contribute to departmental administrative costs.

These activities will be delivered through a range of mechanisms and delivery partners such as:

Contracting state governments through other financial arrangements to deliver selected activities, including: site- and species-specific HPAI H5N1 planning and risk assessments for nationally important assets; targeted threat mitigation actions to boost resilience and recovery prospects for priority wildlife (for example, Australian Sea Lions); and pest eradication programs on priority offshore islands to boost resilience and recovery prospects for at-risk seabirds.
Contracting territory governments through limited tender procurements to deliver select activities, including: site- and species-specific HPAI H5N1 planning and risk assessments for nationally important assets.
A grant to an environmental non-government organisation to deliver selected activities, including: captive breeding biosecurity facility upgrades.
Grants to non-government organisations to deliver selected activities, including: targeted on-ground actions to mitigate spread of HPAI H5N1 and maximise resilience of high-risk species.
Procuring goods and supplies, including: personal protective equipment for on-ground staff; and response capability purchases such as mobile decontamination units for sites managed by Parks Australia.
Contracts with existing suppliers to deliver selected activities, including: expanding wild bird surveillance activities at Ramsar wetlands in the Murray Darling Basin and offshore islands managed by Parks Australia.
Engaging bespoke contractors to deliver selected activities, including: environmental data analysis, risk mapping and web design expertise; and a specialist communications advisor for parks visitor communications.

Funding amount and arrangements, merits review and consultation

Funding of $35.9 million for the program was included in the 2024-25 Mid-Year Economic and Fiscal Outlook under the measure ‘Supporting Australia’s Avian Influenza Preparedness and Response’ for a period of two years commencing in 2024-25. Details are set out in the Budget 2024-25, Mid-Year Economic and Fiscal Outlook 2024-25, Appendix A: Policy decisions taken since the 2024-25 Budget at page 214.

Funding for this item will come from Program 2.1: Conserve, protect and sustainably manage Australia’s natural environment through a nature positive approach, which is part of Outcome 2. Details will be set out in the 2024-25 Portfolio Additional Estimates Statements for the Climate Change, Energy, the Environment and Water portfolio.

Spending activities under the program will be implemented through a range of mechanisms including partnering with states and territories (via other financial arrangements, limited tender procurements and/or closed and non-competitive grants), and/or non-government organisations and entities (via closed non-competitive grants and one-off ad-hoc grants and procurements (including limited and targeted)).

Other financial frameworks will be used to provide financial assistance to states and territories in accordance with sections 96 and 122 of the Constitution. The Accountable Authority and/or their delegate will be the decision maker for the program expenditure. The departmental delegate will be in line with the department’s financial delegations with sufficient understanding and oversight of the program. The delegate at the SES level will perform this administrative function in accordance with the PGPA Act and the FFSP Act.

Grant processes will be administered by the department and the Business Grants Hub within DISR in accordance with the Commonwealth resource management framework, including the PGPA Act, the PGPA Rule and the CGRPs. Grant opportunity guidelines will be co-designed with the Business Grants Hub and published on GrantConnect. The Grant award will be published in line with the CGRPs.

For grant process, it is anticipated that the Minister and/or their delegate (i.e. a departmental delegate at the SES level with appropriate financial delegation and understanding of the program) will be the decision maker for the program expenditure.

Procurements will be conducted in accordance with the Commonwealth resource management framework, including the PGPA Act and the Commonwealth Procurement Rules (CPRs). It is anticipated that the Accountable Authority and/or their delegate will be the decision maker for the program expenditure. The departmental delegate at the SES level will perform this administrative function in line with the department’s financial delegations with sufficient understanding and oversight of the program. The tender process will be made publicly available, where required under the CPRs (www.tender.gov.au).

Independent merits review would not be appropriate for funding decisions made under the program in relation to grants, procurements and other financial arrangements. This is because the decisions will relate 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 ARC 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 ARC guide).

Further, the remaking of a procurement decision after entry into a contractual arrangement with a successful provider is legally complex, impractical, and could result in delays to providing services under the program. The Government Procurement (Judicial Review) Act 2018 enables suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. This legislation might provide an additional avenue of redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

The review and audit process undertaken by the ANAO 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 relevant money.

As part of the overall engagement on the Australian Government Preparedness Taskforce to develop the policy design on HPAI H5N1, the department consulted with experts within the department as well as other Commonwealth entities. Stakeholders within the department include: the Biodiversity Division, Environment Information Australia, Water Division and Commonwealth Environmental Water Holder, Parks Australia Division, Australian Antarctic Division, Legal and Finance Divisions. Stakeholders external to the department include: the Department of Agriculture, Forestry and Fisheries (both animal biosecurity and environmental biosecurity areas), the National Emergency Management Agency, the Department of Health and Aged Care and the Australian Centre of Disease Preparedness.

The department has also closely engaged with key external organisations throughout the development of the program and delivery of preparedness actions, including, but not limited to states and territories, Wildlife Health Australia; Birdlife Australia and Deakin University.

Stakeholders consulted internally and externally are supportive of the program.

Constitutional considerations

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 external affairs power (section 51(xxix));
the power to grant financial assistance to States (section 96); and
the territories power (section 122).

External affairs power

Section 51(xix) of the Constitution empowers the Parliament to make laws with respect to ‘external affairs.

Treaty implementation aspect of the external affairs power

The external affairs power supports legislation implementing Australia’s international obligations under treaties to which it is a party.

Australia is a party to the Convention on Biological Diversity [1993] ATS 32

(Biodiversity Convention). Relevantly, under the Biodiversity Convention Australia

has committed to:

develop national strategies, plans or programs for the conservation and sustainable use of biological diversity (Article 6(a));
promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings (Article 8(d));
prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species (Article 8(h));
regulate regulating and manage processes which have been identified as having or likely to have significant adverse impacts on biological diversity (Article 8(l)); and
adopt measures for the ex-situ conservation of components of biological diversity (Article 9(a)).

The purpose of the program includes to prevent new extinctions of Australian species. The program may involve site- and species-specific HPAI H5N1 planning and risk assessments for nationally important assets; targeted threat mitigation actions to boost resilience and recovery prospects for priority wildlife (Article 6(a)), maximise resilience of high-risk species in their natural habitat (Article 8(d)), pest eradication programs on priority offshore islands to boost resilience and recovery prospects for at-risk seabirds (Article 8(h)), a range of measures including targeted on-ground actions to mitigate spread of HPAI H5N1 (Article 8(l)) and captive breeding biosecurity measures for ex-situ conservation (Article 9(a)). It is consistent with key objectives of the Biodiversity Convention including the conservation of biological diversity.

Australia is also a party to the Convention on Wetlands of International Importance especially as Waterfowl Habitat [1975] ATS 48 (Ramsar Convention), under which it has committed to promote the conservation of certain wetlands (Ramsar wetlands)

(Article 3(1)).

The purpose of the program includes conservation of Ramsar wetlands by expanding wild bird surveillance activities at Ramsar wetlands in the Murray Darling Basin.

Geographically external aspect of the external affairs power

The external affairs power supports legislation with respect to matters or things outside the geographical limits of Australia. The delivery of the program may involve activities carried out overseas, work on remote islands, including surveillance and monitoring of HPAI H5N1 and supporting threatened sea bird populations at key breeding colonies through targeted island invasive species eradication.

Power to grant financial assistance to States and the territories power

Section 96 of the Constitution empowers the Parliament to ‘grant financial assistance to any State on such terms and conditions as the Parliament thinks fit’.

Section 122 of the Constitution empowers the Parliament to ‘make laws for the government of any territory’.

The delivery of the program may involve conditional payments to State and Territory governments.

Table item 705 – Quad Clean Energy Supply Chain Diversification Program

New table item 705 establishes legislative authority for government spending on the Quad Clean Energy Supply Chain Diversification Program (the program).

Global clean energy supply chains are currently concentrated in a few countries. This increases the risk of supply chain shocks, including vulnerability to disruption, which would slow the Indo-Pacific region’s clean energy transition and drive-up costs. The Quad – Australia, India, Japan and the United States – announced the program in 2023 to help address these risks and to enhance clean energy supply chain resilience.

On 22 July 2023, the Minister for Climate Change and Energy, the Hon Chris Bowen MP announced that the Government will invest $50.0 million to support the development of secure and diversified clean energy supply chains in the Indo-Pacific region. Details of the announcement is available at https://minister.dcceew.gov.au/bowen/media-releases/50-million-boost-clean-energy-supply-chains-indo-pacific.

The objectives of the program are to:

help develop and diversify solar photovoltaic (PV), hydrogen electrolyser and battery supply chains in the Indo-Pacific;
address vulnerabilities in solar PV, hydrogen electrolyser and battery supply chains in the Indo Pacific to help them become more resilient; and
accelerate the development of investment-ready solar PV, hydrogen electrolyser and battery supply chain projects in the Indo-Pacific.

More broadly, the program will support the implementation of the Quad Statement of Principles on Clean Energy Supply Chains in the Indo-Pacific (the Principles), and will contribute to achieving the Indo-Pacific’s collective energy security, emissions reduction goals and transition to a net zero future.

The Quad issued the Principles on 20 May 2023 (https://www.pmc.gov.au/resources/quad-statement-principles-clean-energy-supply-chains-indo-pacific) as the basis for the Quad’s engagement in the region on clean energy supply chain development. The Principles are designed to promote diverse, secure, transparent and resilient clean energy supply chains and support a sustainable, inclusive clean energy transition.

The Government is contributing $50.0 million over four years from 2024-25 in grants to deliver the program, which will be delivered over two rounds of funding, with the first round of grants expected to be announced in mid-2025. Up to $25.0 million will be available under the first round, and grant sizes will range from $100,000 to $2.5 million. A second round of applications is expected to open in the second half of 2025.

The grants will fund research and development (R&D) projects and feasibility studies delivered as a joint project between Australian organisations and Indo-Pacific organisations, with the possibility of subsequent rounds extending to a broader category of projects, such as pilot projects.

R&D projects will help drive innovation across the solar PV, hydrogen electrolyser and battery supply chains to drive down costs, address vulnerabilities and improve efficiencies. Examples could include R&D to improve the efficiencies of solar PV cell and module production to make them more cost-competitive, or R&D in battery and electrolyser technologies that use different materials that are less concentrated, scarce, or subject to global shocks.

Feasibility study projects will support business case development for prospective clean energy related processing, manufacturing, and recycling facilities in the Indo-Pacific. An example could be a feasibility study for a battery cell component manufacturing facility.

The intended outcomes of the program are:

supported development and diversification – clean energy supply chain processing and manufacturing activities in the Indo-Pacific are more numerous, are located in a wide range of economies, are owned by a wide range of companies, and are more cost-competitive; and
reduced vulnerabilities – there is increased choice in materials, technologies, and suppliers for elements of the supply chains that are most at risk of disruption.

Funding amount and arrangements, merits review and consultation

Funding of $50.0 million for the program was included in the 2023-24 Mid-Year Economic and Fiscal Outlook under the measure ‘Quad – Australian led initiatives’ for a period of four years commencing in 2023-24. Details are set out in the Mid-Year Economic and Fiscal Outlook 2023-24, Appendix A: Policy decisions taken since the 2023-24 Budget at pages 250 and 251. The funding profile was impacted by an estimate’s variation agreed in the 2024-25 Mid-Year Economic and Fiscal Outlook and the program is now funded over four years from 2024-25.

Funding for this item will come from Program 1.1, which is part of Outcome 1.1. Details are set out in the 2024-25 Portfolio Additional Estimates Statements for the Climate Change, Energy, the Environment and Water portfolio.

Funding will be provided as competitive grants. The program will be administered by the Business Grants Hub within DISR. The grants will be administered in accordance with the Commonwealth resource management framework, including the PGPA Act, the PGPA Rule and CGRPs. Successful grant recipients will enter into a legally binding grant agreement with the Commonwealth.

An assessment committee will be established to determine the successful applicants and make recommendations to the decision-maker. Applications will be assessed on both eligibility and merit. Private sector organisations, research organisations and government organisations (except for non-corporate Commonwealth entities) will be eligible to apply. Merit will be assessed on the project’s alignment with the objectives and intended outcomes of the program; the applicant’s capacity, capability and resources to manage and deliver the project; the impact of the grant funding on the project and broader benefits; and the applicant’s ability to manage national security risks. Merit will be assessed by a committee of subject matter experts comprising of independent experts and representatives from Australian Government agencies. The committee will assess applications against the assessment criteria and compare them to other eligible applications, before recommending which projects to fund to the Program decision-maker.

The decision-maker will be established at the SES Band 1 level consistent with the delegation set out in the department’s Accountable Authority Financial Delegation 2024 (no.1), which is sufficient to cover the grant value range for this program ($100,000 to $2,500,000). As a senior executive within the International Climate and Energy Division, the decision-maker has the judgement, contextual understanding and content knowledge to decide which applications will receive funding, based on the recommendations of the assessment committee.

The decision maker’s approval of successful grant projects will be subject to the applications meeting the eligibility and merit criteria set out in the program guidelines.

Guidelines for Round 1 have been developed and published on GrantConnect at www.grants.gov.au (Reference: GO7273). Guidelines for Round 2 will be developed following feedback from participants from Round 1 and will continue to adhere to the CGRPs.

Information about the program will be available on the GrantConnect website (www.grants.gov.au – Reference: GO7273), the Australian Government Business website (www.business.gov.au/grants-and-programs/quad-clean-energy-supply-chain-diversification-program) and on the department’s website (www.dcceew.gov.au/energy/international-activity/quad-clean-energy-supply-chain-diversification-program).

Grant 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 ARC 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 ARC guide).

The department undertook extensive consultation on the design of the program from late 2023 to mid 2024. Colleagues across government with expertise in solar PV, hydrogen electrolyser and battery technologies, and with geopolitical expertise related to the
Indo-Pacific region and the Quad, contributed to the evidence base underpinning the program design and were consulted on the grant guidelines.

The department also consulted the Australian Government’s diplomatic post network in the Indo-Pacific, including officials from the department, the Department of Foreign Affairs and Trade (DFAT), DISR and AusTrade, to ensure that the design of the program was informed by the perspectives and priorities of the region that the grants are targeting.

Key design elements, particularly eligibility and assessment criteria, were discussed and agreed by a Steering Committee comprising SES Band 1 officials from the department, DISR, DFAT and the Department of the Prime Minister and Cabinet.

A summary of the grant guidelines, including what types of projects are eligible, which stages of supply chains the program focuses on, grant size, partnership requirements between Australian and Indo-Pacific organisations, which Indo-Pacific economies are eligible to apply, and eligibility of Quad partners – was shared with Quad partners for comments via the Quad Climate Working Group.

The program has high support across government, including from the Indo-Pacific diplomatic post network. Feedback from participants on Round 1 of the program will be considered in the design of Round 2 of the program, which is expected to open in the second half of 2025.

Constitutional considerations

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:

External affairs power

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to ‘external affairs’.

Geographically external aspect of the external affairs power

The external affairs power supports legislation with respect to matters or things outside the geographic limits of Australia. This aspect of the external affairs power is engaged as grants will be provided to overseas research institutions and private corporations in the Indo-Pacific region.

Foreign relations aspect of the external affairs power

The external affairs power supports legislation with respect to matters concerning Australia’s relations with other nations. Grants provided to research institutions and private corporations in the Indo-Pacific region will have the direct benefit of strengthening relationships between Australia and other Indo-Pacific nations, which will benefit from the development of clean energy supply chains in the region.

Treaty implementation aspect of the external affairs power

The external affairs power supports legislation implementing Australia’s international obligations under treaties to which it is a party.

The United Nations Framework Convention on Climate Change [1994] ATS 2 (UNFCCC) includes a range of obligations on Australia to take actions that reduce emissions of greenhouse gases and address climate change, including through international cooperation. It relevantly provides that Australia shall:

formulate, implement, publish and regularly update national and, where appropriate, regional programs containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, and measures to facilitate adequate adaptation to climate change (Article 4.1(b));
promote and cooperate in the development, application and diffusion of technologies, practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases in all relevant sectors including energy, transport, industry, agriculture, forestry and waste management sectors (Article 4.1(c));
adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs (Article 4.2(a)).

The Kyoto Protocol to the UNFCCC [2008] ATS 2 includes obligations on Australia to take action to reduce emissions. In particular, Article 10(b) imposes obligations to formulate, implement and report upon climate change mitigation and adaptation programs.

Under the Paris Agreement [2016] ATS 24, Australia has a ‘nationally determined contribution’ of a 2030 emissions reduction target of 26 to 28 per cent below 2005 levels. Article 4.2 of the Paris Agreement provides that ‘[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions. Article 10.2 provides that parties ‘shall strengthen cooperative action on technology development and transfer.’

More diverse clean energy supply chains in the Indo-Pacific region are expected to increase Australia’s access to clean energy and resilience of clean energy supply chains, and so will assist Australia to meet its emissions reductions obligations under these treaties (UNFCC Article 4, Kyoto Protocol Article 10(b) and Paris Agreement Article 4.2).

Funding overseas entities to support investment, research and deployment of low-emissions technologies in the Indo-Pacific will also assist Australia to meet its obligations to strengthen cooperative action on technology development and transfer (Paris Agreement Article 10.2).

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 (Climate Change, Energy, the Environment and Water Measures No. 1) Regulations 2025

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 Principal 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 Principal 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.

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

adds table item 85 ‘Grant to Kimberley Land Council Aboriginal Corporation’;

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

amends table item 319 ‘Fisheries Assistance and User Engagement Funding Program’;
adds table item 704 ‘High Pathogenicity Avian Influenza H5N1 Preparedness Capability Program’; and
adds table item 705 ‘Quad Clean Energy Supply Chain Diversification Program’.

Table item 85 – Grant to Kimberley Land Council Aboriginal Corporation

Table item 85 establishes legislative authority for the Government to provide a grant to Kimberley Land Council Aboriginal Corporation (known as Kimberly Land Council) to conduct research to support the listing of the West Kimberley on the World Heritage List.

Grant funding of $0.5 million will be provided to the Kimberley Land Council for a period of two years from 2024-25 to work with Traditional Owner groups across the West Kimberley region to discuss what their future goals and aspirations are for the protection of their heritage.

Human rights implications

Table item 85 engages the following rights:

the right to self-determination – Article 1 of the International Covenant on Civil and Political Rights (ICCPR) read with Article 2 and Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) read with Article 2; and
the right to culture – Article 14 of the ICESCR and Article 27 of the ICCPR.

Right to self-determination

The rights of peoples to freely determine their political states and freely pursue their economic, social and cultural development is contained in Article 1 of the ICCPR and Article 1 of the ICESCR. This right is a collective right applying to groups of peoples, in contrast to rights to culture which protect the rights of individuals within a group.

Article 2 of the ICCPR provides that each State Party undertakes to take the necessary steps to adopt such laws or other measures as may be necessary to give effect to the rights recognised in the ICCPR.

Article 2 of the ICESCR provides that each State Party undertakes to take steps to the maximum of its available resources with a view to achieving progressively the full realisation of the rights recognised in the ICESCR, by all appropriate means.

The ICCPR General Comment No. 12: Article 1 (right to self-determination) has been interpreted by the Parliamentary Joint Committee on Human Rights: Guide to Human Rights (2015) as requiring the state to give access to and to ensure representation of Indigenous groups in the democratic process, particularly in relation to decision-making on issues affecting traditional land and economic activities. This includes the right of Indigenous Australians to preserve their group identity and culture, to lead lives of dignity and to be consulted on issues affecting them.

Table item 85 positively engages the right to self-determination by enabling the peak body for Kimberley Traditional Owners to research and consult with Traditional Owners on a potential World Heritage listing on traditional lands. The grant will facilitate Kimberley Traditional Owners to engage in a process of free, prior and informed consent for a potential World Heritage nomination process.

Right to culture

The rights of people to benefit from and take part in cultural life is contained in Article 15 of the ICESCR and Article 27 of the ICCPR.

The right to culture as it relates to minority groups has been interpreted by the Parliamentary Joint Committee on Human rights: Guide to Human rights (2015) as particularly applying to Indigenous communities and references the positive steps the state may be required to take to protect the identity of a minority and the rights of its members to enjoy and develop their culture.

Table item 85 positively engages the right to culture by facilitating discussions with Traditional Owners on their future goals and aspirations for the protection of their heritage. The objective of the grant is to support the preservation and ongoing management of First Nations cultural heritage by pursuing a World Heritage nomination of the West Kimberley, should that be supported by Kimberley Traditional Owners.

Table item 85 is compatible with human rights because it promotes the right to
self-determination and right to culture for Indigenous peoples.

Amended table item 319 – Fisheries Assistance and User Engagement Funding Program

The amended table item 319 establishes legislative authority for government spending on the Fisheries Assistance and User Engagement Funding Program (the program).

The program was established in 2019 and comprised two grants programs: $9.5 million for the Fishing Business Assistance (FBA) Grants and $5.0 million for the Our Marine Park Grants. The FBA Grants assisted directly affected commercial fishers to adjust to the commencement of 44 new Australian Marine Parks. The Our Marine Parks Grants provide support to fishing industry peak organisations to help them improve the long-term sustainability of fishing in ways that support the objectives of Australian Marine Parks.

2025-2035.

Human rights implications

The amended table item 319 does not engage any of the applicable rights or freedoms.

The amended table item 319 is compatible with human rights as it does not raise any human rights issues.

Table item 704 – High Pathogenicity Avian Influenza H5N1 Preparedness Capability Program

Table item 704 establishes legislative authority for government spending on the High Pathogenicity Avian Influenza (HPAI) H5N1 Preparedness Capability Program (the program).

The program will boost and accelerate HPAI H5N1 preparedness, planning and protective action by using the best data available to target actions for Australia most at-risk species and important natural places.

The program includes $35.9 million for a range of activities that will be delivered over two years from 2024-25, for example:

species and site-specific planning to identify actions to directly mitigate the spread and impacts of HPAI H5N1 for Australia most susceptible wildlife;
enhance biosecurity and management of threatened species in captivity; and
safeguard and build resilience for Australia most at-risk species in nature by mitigating other threats, such as predation by invasive rodents of seabirds on key offshore islands.

Human rights implications

Table item 704 does not engage any of the applicable rights or freedoms.

Table item 704 is compatible with human rights as it does not raise any human rights issues.

Table item 705 – Quad Clean Energy Supply Chain Diversification Program

Table item 705 establishes legislative authority for government spending on the Quad Clean Energy Supply Chain Diversification Program (the program).

The Government is investing $50.0 million over four years from 2024-25 to:

help develop and diversify solar photovoltaic (PV), hydrogen electrolyser and battery supply chains in the Indo-Pacific;
address vulnerabilities in solar PV, hydrogen electrolyser and battery supply chains in the Indo Pacific to help them become more resilient; and
accelerate the development of investment-ready solar PV, hydrogen electrolyser and battery supply chain projects in the Indo-Pacific.

Human rights implications

Table item 705 does not engage any of the applicable rights or freedoms.

Table item 705 is compatible with human rights as it does not raise any human rights issues.

Conclusion

This disallowable legislative instrument is compatible with human rights because it promotes the protection of human rights.

Senator the Hon Katy Gallagher

Minister for Finance

Administered by Department of Finance

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