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

 

Section 1 - Name

 

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

 

Section 2 - Commencement

 

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

 

Section 3 - Authority

 

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

 

Section 4 - Schedules

 

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

 

Schedule 1 - Amendments

 

Item 1 - In the appropriate position in Part 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 initiative that will be administered by the Department of the Environment and Energy (the department).

 

New table item 326 establishes legislative authority for government spending to support Australia's participation on the High Level Panel for a Sustainable Ocean Economy (the Panel). Australia's participation will support better decision-making on the balance between conservation and the sustainable use of ocean resources, and strengthen Australia's reputation as a global leader in marine conservation.

 

The Prime Minister, the Hon Scott Morrison MP, is a member of the Panel along with heads of state from 11 other coastal nations: Chile, Fiji, Ghana, Indonesia, Jamaica, Japan, Mexico, Namibia, Norway, Palau and Portugal. Heads of state will take the lead and be responsible for endorsing the Panel's findings and products.

 

The Panel's objective is to increase global capacity and understanding of how sustainable use of the oceans, and the ocean economy, can play a key role in meeting the world's most vital future needs. Its work will be solution-oriented and support implementation of the United Nations 2030 Agenda and Sustainable Development Goals (SDGs). Achieving a sustainable ocean economy is critical if SDG 14: Life Below Water is to be realised. The Panel's work on the ocean economy will also contribute to progress on other SDGs through its focus on lifting people out of poverty, ensuring economic resilience, generating jobs and livelihoods, and building industries of the future.

 

Australia will participate on the Panel until the Panel concludes its work at the end of 2020. The Panel's major work will be a report to be presented at the United Nations Ocean Conference in 2020 on the relationship between clean and healthy oceans, sustainable use of ocean resources, and economic growth and development.

 

Australia's objectives for participating on the Panel are to:

*         Ensure a healthy marine environment is recognised as the fundamental underpinning of a 'blue' economy, that is, the sustainable use of ocean resources for economic growth, improved livelihoods and jobs, and ocean ecosystem health. 

*         Assist the Panel to add value, including by bringing some cohesion to the crowded, fractured oceans agenda. The increased focus on oceans globally has led to a proliferation of oceans' initiatives which can dilute effort and resources. By identifying and developing strategies to overcome barriers the Panel can also unlock opportunities to achieve the 'right' balance between conservation and the sustainable use of ocean resources.

*         Ensure Australia's oceans' priorities are reflected in the Panel's work program and reports.

*         Strengthen partnerships and promote sound ocean management and the Panel's work in the Indo-Pacific region.

*         Strengthen Australia's reputation and influence as a global leader for the protection and management of the marine environment.

 

Australia will work closely with the members of the Panel in the Indo-Pacific region - Fiji, Palau, Indonesia and Japan - and consult and coordinate with countries in the region that are not members of the Panel to provide their views to the Panel and promote the Panel's work.

 

To complement the work of the Panel, Australian Government funding will be directed to the following activities which may include some targeted consultation with industry, business and the community using mechanisms such as workshops and regional meetings:

*         Reducing marine plastic pollution including through removing plastics from the supply chain, decoupling plastics from oil stocks, and supporting new industries producing viable alternatives to plastic.

*         Supporting the development of an internationally agreed model and governance framework for integrating environmental-economic ocean accounts. This will assist monitoring and reporting on the impacts on ocean resources of management decisions of multiple countries.

*         Supporting Australia's participation on the Panel, including by the attendance of Australia's high-level representative (Sherpa) at meetings and out-of-session engagements.

*         Supporting the engagement of representatives of participating countries in the work of the Panel, including by supporting Sherpas from the Indo-Pacific region (Fiji, Indonesia, Japan and Palau) to meet in Australia to collaborate on the work of the Panel.  

 

Dr Russell Reichelt was appointed by then Prime Minister Turnbull as Australia's high-level representative (Sherpa) to the Panel.  

 

Funding of $4 million was included in the 2018-19 Mid-Year Economic and Fiscal Outlook under the measure 'Australia's Participation in the High Level Panel on Building a Sustainable Ocean Economy' for a period of three years commencing in 2018-19. Details are set out in the Mid-Year Economic and Fiscal Outlook 2018-19, Appendix A: Policy decisions taken since the 2018-19 Budget, at page 175.

 

The Commonwealth expenditure to address marine plastic pollution and develop multi-national environmental economic accounts will take the form of procurement activities. In relation to marine plastic pollution, the department will procure economic and behavioural change expertise to undertake research. In addition, social research and facilitation expertise may be procured to design and facilitate a co-design process with relevant stakeholders including industry, scientists, government and non-government organisations.

 

The department will be responsible for managing the procurement process and managing the required contracts. Procurements will be undertaken in accordance with the Commonwealth Procurement Rules and the Public Governance, Performance and Accountability Act 2013. It is expected that services will be procured through either open or limited tender consultancies (including using departmental panel arrangements), based on specific needs and the specialised skills and experience of tenderers. A delegate of the Secretary of the department will be responsible for deciding on successful tenders and the amounts to be allocated for each procurement. Details of the tenders, including successful tenders, will be published on AusTender at www.tender.gov.au as appropriate.

 

To support engagement in the Panel's work, the department is expected to make travel arrangements for Australia's Sherpa and also the representatives of participating countries (Sherpas from Fiji, Indonesia, Japan, Palau) and pay for travel and accommodation through the Whole of Australian Government Travel Arrangements. A delegate of the Secretary of the department will be responsible for approving travel and accommodation arrangements and the amounts to be allocated.

 

Given the nature and purpose of the expenditure, which is focused on commissioning research and running a co-design process, developing a conceptual model for integrating ocean accounts and costs associated with travel expenditure for representatives of participating countries, merits review is not appropriate. Merits review is not suitable as these are budgetary decisions of a policy nature, rather than decisions immediately affecting any particular person's interests.

 

The review and audit process undertaken by the Australian National Audit Office provides a mechanism to review 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 available. Those affected by spending decisions may also have recourse to the Commonwealth Ombudsman.

 

 

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 Commonwealth executive power and the express incidental power (sections 61 and 51(xxxix)), including the nationhood aspect.

 

External affairs power

 

The external affairs power in 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 geographical limits of Australia. The external affairs power also supports legislation with respect to matters concerning Australia's relations with other nations and international persons.

 

Expenditure authorised by the item will support activities directed at the protection of and improved management of the oceans (waters external to Australia).

 

Commonwealth executive power and the express incidental power, including the nationhood aspect

 

The express incidental power in section 51(xxxix) of the Constitution empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested in it by the Constitution. Together with the executive power in section 61 of the Constitution, the express incidental power supports activities that are peculiarly adapted to the government of a nation and cannot be carried on for the benefit of the nation otherwise than by the Commonwealth.

 

The development of measures, in collaboration with foreign States, designed to protect and manage oceans, which surround the Australian continent and extend across the globe, are measures that can best be carried out by the national government.   

 

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Environment and Energy Measures No. 1) Regulations 2019

 

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

 

Overview of the Legislative Instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the FF(SP) Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The FF(SP) Act applies to Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

 

The Financial Framework (Supplementary Powers) Amendment (Environment and Energy Measures No. 1) Regulations 2019 amend Schedule 1AB to the FF(SP) Regulations to add new table item 326 to Part 4 of that schedule to establish legislative authority for government spending to support Australia's participation on the High Level Panel for a Sustainable Ocean Economy (the Panel). The Panel's objective is to increase global capacity and understanding of how the sustainable use of the oceans, and the ocean economy, can play a key role in meeting the world's most vital future needs. Participation on the Panel will support better decision-making on the balance between conservation and the sustainable use of ocean resources, and strengthen Australia's reputation as a global leader in marine conservation.

 

The Prime Minister, the Hon Scott Morrison MP, is a member of the Panel along with the heads of state from 11 other coastal nations: Chile, Fiji, Ghana, Indonesia, Jamaica, Japan, Mexico, Namibia, Norway, Palau and Portugal. Heads of state will take the lead and be responsible for endorsing the Panel's findings and products.

 

To complement the work of the Panel, funding will be directed to the following activities which may include some targeted consultation with industry, business and the community using mechanisms such as workshops and regional meetings:

*         Reducing marine plastic pollution including through removing plastics from the supply chain, decoupling plastics from oil stocks, and supporting new industries producing viable alternatives to plastic. The department will procure economic and behavioural change expertise to undertake research. In addition, social research and facilitation expertise may be procured to design and facilitate a co-design process with relevant stakeholders including industry, scientists, government and non-government organisations.

*         Supporting the development of an internationally agreed model and governance framework for integrating environmental-economic ocean accounts. This will assist monitoring and reporting on the impacts on ocean resources of management decisions of multiple countries.

*         Supporting Australia's participation on the Panel, including by the attendance of Australia's high-level representative (Sherpa) at meetings and out-of-session engagements.

*         Supporting the engagement of representatives of participating countries in the work of the Panel, including by supporting Sherpas from the Indo-Pacific region (Fiji, Indonesia, Japan and Palau) to meet in Australia to collaborate on the work of the Panel.  

 

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

 

Human rights implications

 

This instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

 

This instrument is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance and the Public Service