Financial Framework (Supplementary Powers) Amendment (Infrastructure, Transport, Regional Development, Communications and the Arts Measures No. 2) Regulations 2024

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Finance

Financial Framework (Supplementary Powers) Act 1997

Financial Framework (Supplementary Powers) Amendment

(Infrastructure, Transport, Regional Development, Communications and the Arts
Measures No. 2) Regulations 2024

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 Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Financial Framework (Supplementary Powers) Amendment (Infrastructure, Transport, Regional Development, Communications and the Arts Measures No. 2) Regulations 2024 (the Regulations) amend Schedule 1AB to the Principal Regulations to establish legislative authority for the Government to provide a grant to Nordoff-Robbins Music Therapy Australia Limited (Noro) to expand music therapy services and community music programs. The grant will be administered by the Department of Infrastructure, Transport, Regional Development, Communications and the Arts.

Noro is a not-for-profit organisation which has provided clinical music therapy and community music programs in the Western Sydney region since 1984. It offers individual and group therapy in clinics and community-based programs at early learning, school, hospital and aged care facilities.

The grant supports the policy outcomes of the Government’s National Cultural Policy – Revive: a place for every story, a story for every place. The grant will support increased access to, and expansion of, music therapy and community music programs to more participants and across a broader geographical footprint. It will also collect data on the impact of, and demand for, these programs.

Grant funding of $1.0 million over three years from 2024-25 will be available to Noro.

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 been undertaken with the Department of Infrastructure, Transport, Regional Development, Communications and the Arts.

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 (Infrastructure, Transport, Regional Development, Communications and the Arts Measures No. 2) Regulations 2024

Section 1 – Name

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Infrastructure, Transport, Regional Development, Communications and the Arts Measures No. 2) Regulations 2024.

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 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 3 of Schedule 1AB (table)

This item adds a new table item to Part 3 of Schedule 1AB to establish legislative authority for government spending on an activity to be administered by the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (the department).

New table item 80 establishes legislative authority for the Government to provide a grant to Nordoff-Robbins Music Therapy Australia Limited (Noro) to expand music therapy services and community music programs.

Noro is a not-for-profit charity which has provided clinical music therapy and community music programs in the Western Sydney region since 1984. Noro offers individual and group therapy in clinics and community-based programs at early learning, school, hospital and aged care facilities. Community music programs include music clubs for pre‑school children, primary school children and adults with disabilities, group drumming, and an All Abilities Choir.

Noro provides an online delivery option for all community music programs. It currently delivers music therapy and community music programs to over 2,500 people a week. Noro’s music therapy programs are delivered by registered music therapists who are allied health providers. Noro is also a National Disability Insurance Scheme provider.

The grant supports the department’s Outcome 6: Participation in, and access to, Australia’s arts and culture through developing and supporting cultural expression, and supports the policy outcomes of the National Cultural Policy, Revive: a place for every story, a story for every place (https://www.arts.gov.au/sites/default/files/documents/national-culturalpolicy), which is the Government’s five year plan to revive the arts in Australia.

The grant specifically delivers on the policy outcomes for ‘A Place for Every Story’ pillar, which focusses on representation and access to the diversity of arts and culture for all people in Australia. Additionally, it contributes to whole-of-government health and social inclusion outcomes by expanding access to the mental health benefits of arts and culture.

The grant aims to increase access to, and expansion of, music therapy and community music programs to more participants and across a broader geographical footprint (including through virtual delivery); and collect data on the impact of, and demand for, these programs. There is a pressing need for expansion of such services, particularly for children and youth, to address growing social and cultural isolation and disadvantage. Evaluation of the efficacy and impact of activities undertaken by Noro through the grant will support consideration of the possible expansion of funding in the future.

The intended outcomes of the grant include:

improved mental health of participants through greater access to music therapy and community music programs for specific cohorts, which may include people with disability, children and young people, people in aged care, veterans, people in palliative care, First Nations people, and people in regional and remote areas; and
an evidence base for the efficacy and impact of activities undertaken through the music therapy and community music programs.

The grant will fund costs related to delivering and evaluating the expanded music therapy and community music programs.

Grant funding will be provided to Noro directly as a closed non-competitive grant and will be administered in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs).

The grant will be administered by the department. The Minister for the Arts is responsible for providing overall approval to commit funding and approval of grant guidelines. A delegate of the Secretary of the department under the Financial Framework (Supplementary Powers) Act 1997 will be responsible for entering into a grant agreement with Noro. The delegate will be the officer with the appropriate delegation under the Secretary’s Accountable Authority Delegations. This is expected to be a Senior Executive Service (Band 1) officer as they would have the required skills and experience to perform this function for the quantum of funding.

Once the funding commitment and grant guidelines are approved, Noro is required to enter into a legally binding grant agreement to deliver the agreed activities within defined terms and conditions. Payments are made after the grant agreement is signed by the recipient and the Commonwealth, and on receipt of a correctly rendered invoice and acceptance of relevant progress reports.

Noro must demonstrate that it is delivering outcomes against the objectives and eligible activities of the grant guidelines and grant agreement. Commonwealth officials within the department will assess the delivery of activities through reports provided under the grant agreement.

Information about the grant including the grant opportunity guidelines will be made available on GrantConnect (help.grants.gov.au).

Independent merits review of decisions made for the grant would not be considered appropriate because the decisions relate to the allocation of finite resources as a one-off payment to a certain provider to expand music therapy services. This is a closed, non‑competitive grant opportunity and independent merits review is not considered appropriate. 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 4.16 of the guide, What decisions should be subject to merit review?).

The development of the grant opportunity was informed by nationwide consultation and public submissions received through the National Cultural Policy, Revive. Noro is a highly regarded and experienced not-for-profit organisation. The department has consulted with Noro to inform the design of the grant opportunity. The grant includes an evaluation component, and this would be expected to include consultation with people directly affected by the grant activities.

Grant funding of $1.0 million to Noro was included in the 2023‑24 Budget under the measure ‘Revive – National Cultural Policy and Location Incentive’ for a period of three years commencing in 2024-25. Details are set out in the Budget 2023-24, Budget Measures, Budget Paper No.2 at pages 181-182.

Funding for this item will come from Program 6.1: Arts and Cultural Development, which is part of Outcome 6. Details are set out in the Portfolio Budget Statements 2023-24, Budget Related Paper No. 1.12, Infrastructure, Transport, Regional Development, Communications and the Arts Portfolio at pages 83-85.

Noting that it is not a comprehensive statement of relevant constitutional considerations, the purpose of the item references the following powers of the Constitution:

the communications power (section 51(v));
the defence power (section 51(vi));
the social welfare power (section 51(xxiiiA));
the race power (section 51(xxvi)); and
the external affairs power (section 51(xxix)).

Communications power

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to ‘postal, telegraphic, telephonic and other like services’.

The objectives of the grant are to increase access to and expand music therapy and community music programs to more participants. Aspects of Noro’s practice, including music therapy and community music programs, are delivered online.

Defence power

Section 51(vi) of the Constitution empowers the Parliament to make laws with respect to ‘the naval and military defence’ of the Commonwealth and States, and ‘the control of the forces to execute and maintain the laws of the Commonwealth’.

The objectives of the grant include providing for improved mental health of participants through greater access to music therapy and community music programs for specific cohorts. This includes providing services to veterans and their families.

Social welfare power

The social welfare power in section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits including medical and dental services (but not so as to authorise any form of civil conscription).

The objectives of the grant include the provision of clinical music therapy and community music programs by allied health providers directed toward improving the mental health of participants and achieving identified health goals.

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’.

External affairs power

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.

Convention on the Rights of Persons with Disabilities [2008] ATS 12 (CRPD)

Australia is a party to the CRPD. States Parties to the CRPD are required to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability, including to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised (Art 4(1)(a)).

Article 25(a) provides that States Parties recognise that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability, including the same range, quality and standard of free or affordable health care and programmes as provided to other persons.

Article 30(1) provides that States Parties recognise the right of persons with disabilities to take part on an equal basis with others in cultural life.

The grant to Noro will contribute to the provision of music therapy and community music programs in relation to people with disability.

Convention on the Rights of the Child [1991] ATS 4 (CRC)

Australia is a party to the CRC. Article 4 imposes a general obligation on States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights set out in the CRC, and in particular its obligations to:

ensure that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community (Art 23(1));
design such assistance to ensure the disabled child has effective access to education, training, health care services etc in a manner conducive to social integration and individual development (Art 23(3)); and
to ensure the provision of necessary medical assistance and health care to all children (Art 24(2)); and
recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development (Art 27(1)); and
recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity (Art 28(1)); and
ensure that education of the child be directed to the development of the child's personality, talents and mental and physical abilities to their fullest potential (Art 29(1)(a)).

The objectives of the grant include the provision of music therapy and community music programs, including programs and components aimed at supporting the wellbeing and development of children.

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 (Infrastructure, Transport, Regional Development, Communications and the Arts Measures No. 2) Regulations 2024

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 FFSP 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 FFSP 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.

The Financial Framework (Supplementary Powers) Amendment (Infrastructure, Transport, Regional Development, Communications and the Arts Measures No. 2) Regulations 2024 (the Regulations) amend Schedule 1AB to the FFSP Regulations to establish legislative authority for the Government to provide a grant to Nordoff-Robbins Music Therapy Australia Limited (Noro) to expand music therapy services and community music programs. The grant will be administered by the Department of Infrastructure, Transport, Regional Development, Communications and the Arts.

Grant funding of $1.0 million over three years from 2024-25 will be available to Noro.

Human rights implications

This disallowable legislative instrument engages the following rights:

the right of everyone to enjoy the highest attainable standard of physical and mental health – Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2;
the right of everyone to take part in cultural life – Article 15 of the ICESCR;
the right of the child with disability to enjoy a full and decent life – Article 23 of the Convention on the Rights of the Child (CRC), read with Article 4;
the right of the child to enjoy the highest attainable standard of health – Article 24 of the CRC;
the right of the child to a standard of living adequate for physical, mental, spiritual, moral and social development – Article 27 of the CRC;
the right of the child to education – Articles 28 and 29 of the CRC;
the right of the child to participate in cultural life and the arts – Article 31 of the CRC;
the right of people with disability to enjoy the highest attainable standard of health – Article 25 of the Convention on the Rights of Persons with Disabilities (CRPD), read with Article 4; and
the right of people with disability to take part in cultural life – Article 30 of the CRPD.

Right to physical and mental health

Article 2 of the ICESCR requires States Parties to take steps to progressively achieve the full realisation of the rights recognised in the Covenant by all appropriate means.

Article 12 of the ICESCR recognises the right of everyone to enjoy the highest attainable standard of physical and mental health, including provisions for the healthy development of the child, the prevention, treatment and control of epidemic, endemic, occupational and other diseases, and the creation of conditions which would assure to all medical service and medical attention in the event of sickness.

This disallowable legislative instrument promotes the realisation of the right to enjoy the highest attainable standard of mental health by providing greater access to music therapy and community music program services.

Right to take part in cultural life

Article 15 of the ICESCR recognises the right of everyone to take part in cultural life. This disallowable legislative instrument promotes the realisation of this right by providing greater access to cultural life through music therapy and community music programs.

Right of the child with disability to enjoy a full and decent life

Article 4 of the CRC requires States Parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the Convention.

Article 23 of the CRC recognises that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.

This disallowable legislative instrument promotes the realisation of this right by providing greater access to music therapy and community music programs for children, which may include children with disability.

Right of the child to health

Article 24 of the CRC recognises the right of the child to enjoy the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. This disallowable legislative instrument promotes the realisation of this right by providing greater access to music therapy and community music programs for children.

Right of the child to a standard of living for development

Article 27 of the CRC recognises the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.

This disallowable legislative instrument promotes the realisation of this right by providing greater access to music therapy and community music programs for children.

Right of the child to education and education directed at their development

Article 28 of the CRC recognises the right of the child to education, with a view to achieving this right progressively and on the basis of equal opportunity.

Article 29 of the CRC recognises the right of the child to receive education directed at the development of the child’s personality, talents and mental and physical abilities to their fullest potential; the development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; 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 civilisations different from his or her own; the preparation of the child for responsible living in a free society; and the development of respect for the natural environment.

This disallowable legislative instrument promotes the realisation of these rights by providing greater access to music therapy and community music programs for children, including educational components.

Right of the child to participate in cultural life and the arts

Article 31 of the CRC recognises the right of the child to participate freely in cultural life and the arts, including the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.

This disallowable legislative instrument promotes the realisation of this right by providing greater access to music therapy and community music programs for children.

Right of people with disability to health

Article 4 of the CRPD requires States Parties to ensure and promote the full realisation of all human rights and fundamental freedoms for all people with disability without discrimination of any kind on the basis of disability. Article 4(a) provides that States Parties undertake to adopt appropriate legislative, administrative and other measures to implement the rights in the Convention.

Article 25 of the CRPD recognises the right of people with disability to enjoy the highest attainable standard of health without discrimination on the basis of disability.

This disallowable legislative instrument promotes the realisation of this right by providing greater access to music therapy and community music programs for people with disability.

Right of people with disability to take part in cultural life

Article 30 of the CRPD recognises the right of people with disability to take part on an equal basis with others in cultural life, including the opportunity to develop and utilise their creative, artistic and intellectual potential.

This disallowable legislative instrument promotes the realisation of this right by providing greater access to music therapy and community music programs for people with disability.

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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