Attachment A

 

Details of the Financial Framework (Supplementary Powers) Amendment (Home Affairs Measures No. 3) Regulations 2023

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Home Affairs Measures No. 3) Regulations 2023.

 

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 4 of Schedule 1AB (table)

 

This item adds a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on an activity administered by the National Emergency Management Agency (the Agency), part of the Home Affairs Portfolio.

 

New table item 609 establishes legislative authority for government spending on the Protecting Our Communities (Disaster Resilience) Program (the program) by funding important disaster resilience projects to increase communities disaster resilience and preparedness to future disasters across Australia.

 

Recent natural disasters like the Black Summer bushfires, floods, storms and cyclones have impacted many Australian communities, with natural disasters occurring more frequently and on a larger scale than ever before. This means communities need to be better prepared for future disasters.

 

The program delivers on the Government's election commitment published in the Plan for a Better Future and forms part of a broader package to strengthen Australia's resilience to disaster, which included funding of $30.4 million to implement disaster resilience initiatives across seven states and territories.

 

The program also responds to the recommendations of the Royal Commission into National Natural Disaster Arrangements focusing on national natural disasters arrangement involving all levels of government, the private and not-for-profit sectors, communities, families and individual. The Government made a commitment to ensure the Commonwealth can better support states and territories to prepare for, respond to and recover from natural disasters.

 

Projects funded under the program would aim to:

• increase disaster resilience through building or upgrading telecommunications infrastructure, road infrastructure, evacuation centres, cyclone shelters and emergency management precincts;
• improve community preparedness through volunteer training and developing disaster management plans; and
• enhance the ability to respond to disasters by purchasing essential equipment, such as water tankers.

 

The program has been allocated $4.9 million in 2022-23 to deliver the first tranche of the $30.4 million package, which comprised projects focusing on:

*         telecommunication upgrade, for example: moving internet infrastructure underground to improve access to the internet during natural disasters, and replacing timber power poles with resilient poles to protect the community who have one road in, one road out;

*         infrastructure upgrade, for example: replacing power poles to increase its fire resilience to ensure essential emergency information for emergency workers and the community can continue during bushfires, upgrade of kerb and channels to improve local flood migration, and relocating power underground to protect communities; and

*         bushfire preparedness, for example: purchasing and building water tankers for use by emergency services, removing and clearing fire loads and installing new fire risk signage.

 

The intended outcomes of the program are to increase disaster resilience at the local level; enhance disaster preparedness at the local level and assist communities to be better prepared for disasters.

 

The Agency will deliver the program through a closed, non-competitive grant process, adhering to the requirements of the Commonwealth Grants Rules and Guidelines 2017 (CGRGs) and the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

 

Successful applicants will have overall responsibility to deliver the project and be invited to deliver a project identified by the Government. In addition, to be eligible for funding, their project must:

*         increase the disaster resilience of the community;

*         be consistent with the intent of the announced commitment; and

*         for infrastructure projects, not be located on privately owned land where the proponent does not have a formal arrangement, such as a lease, for use of the land, and comprises at least one of the following activities:

o   constructing new infrastructure;

o   upgrading existing infrastructure;

o   extending existing infrastructure;

o   replacing infrastructure where there is a significant increase in benefit;

o   fit out, alterations and/or extensions to existing premises; and

o   purchase of fixed equipment / assets that are related to community infrastructure projects.

 

Grant opportunity guidelines will be developed and made available on GrantConnect (www.grants.gov.au) in accordance with the CGRGs. It is intended that the Agency will manage the projects and administer grants payments under the program. Information on the grants, including grant awards will be made available on the Agency's and GrantConnect's website.

 

The Agency will review and assess the applications in accordance with the program guidelines to ensure projects are value for money and achieve the outcomes sought by government. The Assistant Coordinator General, Resilience and Community Programs Branch will be the final decision maker. The Agency will notify the Minister for Emergency Management of successful applications.

 

Independent merits review of funding decisions made in connection with the grants would not be considered appropriate because the decisions relate to an allocation of a finite resource between competing applicants and an allocation already made to a party would be affected by overturning the original decision. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

 

In addition, the review and audit process undertaken by the Australian National Audit Office provides a mechanism to review Australian Government spending decisions and report any concerns to the Parliament. These requirements and mechanisms help to ensure the proper use of Commonwealth resources and appropriate transparency around decisions relating to making, varying or administering arrangements to spend relevant money.

 

Further, the right to review under section 75(v) of the Constitution and review under section 39B of the Judiciary Act 1903 may also be available. Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

 

The Agency is engaging with project proponents, states and territories and the Department of Infrastructure, Transport, Regional Development, Communication and the Arts to develop and deliver the program. The Agency will assess the benefits of the project to the community on receipt of applications. Ongoing stakeholder engagement monitoring and evaluation will occur with project proponents throughout the life of the project. This will include financial and progress reporting to ensure projects are delivered on time and within budget.

 

Funding of $30.4 million (including departmental costs) was included in the 2022-23 October Budget under the measure 'Disaster Ready Fund' for a period of one year commencing in 2022-23. Details are set out in the October Budget 2022-23, Budget Measures, Budget Paper No. 2 at page 147.

 

Funding for this item of $4.9 million in 2022-23 will come from Program 1.2: Australian Government Disaster & Emergency Financial Support, which is part of Outcome 1. Details are set out in Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.10, Home Affairs Portfolio (National Emergency Management Agency) at pages 103 and 108.

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

• the communications power (section 51(v));
• 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 program includes projects that provide infrastructure upgrades including relocation of power lines, upgrade to power poles from timber to resilient poles, relocating National Broadband Network (NBN) power cables, and upgrading other communication infrastructure. These upgrades are specifically directed toward ensuring the ongoing functionality and operation of the power poles, NBN cables and communication infrastructure in the event of a disaster, including bushfires. As such these projects are directly aimed at ensuring the provision, operation and use of communications infrastructure. 

 

Race power

 

Section 51(xxvi) of the Constitution empowers the Parliament to make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws'.  

 

The program includes a project that is providing upgrades to kerbs and channels on Palm Island to improve local flood mitigation, specifically to the benefit of the primary inhabitants of Palm Island. According to the 2021 census, First Nations people comprise of 91.4 per cent of Palm Island's locale. As such, the project directed to improve Palm Island's flood mitigation capability can be considered to be a special law with respect to First Nations people in that it overwhelmingly benefits the local First Nations community.

 

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.

 

Australia is a party to the Paris Agreement [2016] ATS 24 which includes:

*         Article 7(9)(e) which requires Australia to implement actions to build the resilience of socioeconomic systems in relation to the effects of climate change.

*         Article 8(3)-(4) which states parties should enhance action in relation to slow-onset events and resilience of communities, livelihoods and ecosystems.

 

The program includes projects that provide community warning systems, perform bushfire fuel management and reduction strategies, and provide mobile water tankers. These activities are all actions that build stronger, more resilient communities in the face of disaster. They assist in the development of capabilities that help communities to effectively respond to and mitigate the impact of the increased risk of disaster, including bushfires, due to the effects of climate change. As such these projects are directly related to Australia's treaty obligations under the Paris Agreement.

 

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 (Home Affairs
Measures No. 3) Regulations 2023

 

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

 

Overview of the legislative instrument

 

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

 

The Financial Framework (Supplementary Powers) Amendment (Home Affairs Measures No. 3) Regulations 2023 (the Regulations) amend Schedule 1AB to the Principal Regulations to establish legislative authority for government spending on the Protecting Our Communities (Disaster Resilience) Program (the program). The program will be administered by the National Emergency Management Agency, part of the Home Affairs Portfolio.

 

The program delivers on the Government's election commitment published in the Plan for a Better Future and forms part of a broader package to strengthen Australia's resilience to disaster, which included funding of $30.4 million to implement disaster resilience initiatives across seven states and territories.

 

The program has been allocated $4.9 million in 2022-23 to deliver important disaster resilience projects for communities to improve their disaster resilience and preparedness to future disasters across Australia.

 

Projects funded under the program would aim to:

• increase disaster resilience through building or upgrading telecommunications infrastructure, road infrastructure, evacuation centres, cyclone shelters and emergency management precincts;
• improve community preparedness through volunteer training and developing disaster management plans; and
• enhance the ability to respond to disasters by purchasing essential equipment, such as water tankers.

Human rights implications

 

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

 

Conclusion

 

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

 

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance