Attachment A

 

Details of the Financial Framework (Supplementary Powers) Amendment (Home Affairs Measures No. 5) 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. 5) 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 to be administered by the Department of Home Affairs (the department).

 

New table item 623 establishes legislative authority for government spending on the Community Language Schools Grants Program (the program) which aims to support community language schools (CLS) to deliver language education to preschool-aged and school-aged children.

 

The program responds to the Government's 2022 election commitment under Labor's Plan to Help More Australian Kids Learn Languages. There are approximately 740 community language schools operating in Australia teaching over 90 languages to around 105,000 students.

 

The program will run over two years from 2023-24 and will strengthen the cohesion and prosperity of Australia's multicultural society by supporting CLS to support more young Australians to acquire a second language to:

• connect them to the languages of their parents, grandparents and broader communities; and
• enable their participation in a broader range of jobs in an economy closely integrated into a global market of diverse trading partners.

 

Eligible not-for-profit CLS across Australia will receive a one-off grant to expand the delivery of languages to more school-aged children from Kindergarten to year 12, and a supplementary payment for pre-schoolers.

 

The program comprises three tiers:

• Tier One - for CLS which do not meet eligibility requirements for funding in their respective state or territory (eligible recipients will receive a lump sum grant amount of $6,000 in three instalments);
• Tier Two - for established CLS which may receive state or territory funding with 50 or fewer students (eligible recipients will receive a lump sum grant amount of $18,000 in three instalments); and
• Tier Three - for established CLS which may receive state or territory funding with 51 or more students (eligible recipients will receive a lump sum grant amount of $21,000 in three instalments);

 

and two supplementary options for eligible CLS to apply for:

• Supplementary Payment One - for CLS to enhance child safety and early learning conditions for pre-school aged children. To be eligible to apply for this supplementary payment, a CLS must have been operating for at least two years prior to their application for funding (eligible recipients will receive an additional lump sum grant amount of $6,000 in three instalments in addition to their tier amount); and
• Supplementary Payment Two - for new and emerging CLS to support their establishment and growth. CLS applying for this will need to have commenced operation within the two years prior to their application for funding (eligible recipients will receive an additional lump sum grant amount of $6,000 in three instalments in addition to their tier amount).

 

Only CLS which are eligible for Tier Two or Tier three will be eligible to apply for a supplementary payment. A CLS may only apply for one supplementary payment, not both.

 

Each eligible CLS funding recipient will receive a letter of offer to participate in the program, which will specify their nominal funding allocation. The eligible funding recipient must accept the offer and enter into a grant agreement with the Commonwealth to receive funding under the program up to the nominal funding allocation amount depending on their eligibility for the tiers and supplementary payments outlined above.

 

Various requirements apply to the funding, including that:

• grant money can only be used on school administration and operational costs, educational equipment and resources, appropriate venue hire, and teacher professional development;
• reporting must be provided, including on amounts spent, details of progress on projects and jobs supported by the funding at three points during the program duration; and
• all personnel working on the program must maintain Working with Children Clearances from their relevant state or territory screening authority, and follow that state or territories process whilst applying for the clearance.

 

Funding will be provided to eligible not-for-profit CLS who apply through a demand-driven (eligibility based) grant opportunity, open to all eligible CLSs in Australia. The grant will be administered in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 (the PGPA Act) and the Commonwealth Grants Rules and Guidelines 2017 (the CGRGs).

 

Information about the grant will be made available on the GrantConnect website (www.grants.gov.au), and the grant will be administered by the Community Grants Hub, which is part of the Department of Social Services. A delegate of the Secretary of the department under the Financial Framework (Supplementary Powers) Act 1997 will be responsible for approving Commonwealth funding provided to successful applicants. Final spending decisions are expected to be made by Senior Executive Service (Band 1), Multicultural Affairs, or a delegate responsible for the management of the program who has the appropriate skills and experience.  

 

Grant decisions under the program will involve the allocation of finite resources, and as such, are not suitable for independent merits review because an overturned decision may affect an allocation that has already been made to another party. Decisions will be made in accordance with the CGRGs and the PGPA Act.

 

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?). The review and audit process undertaken by the Australian National Audit Office also provides a mechanism to review Government spending decisions and report any concerns to Parliament. Judicial review may also be available under section 39B of the Judiciary Act 1903 and section 75(v) of the Australian Constitution.

 

In administering this grants program, administrative accountability will be achieved by ensuring that:

*         the process of allocating funds is fair;

*         the criteria for funding are made clear; and

*         decisions are made objectively.

 

The department conducted consultations to inform the design of the program with all state and territory government entities operating ongoing community language school programs in their respective jurisdictions, language academics from the University of Sydney and the University of Melbourne, and the national peak body (Community Languages Australia). Engagement with these stakeholders took place from 6 - 17 February 2023. Community Language Schools were not consulted directly due to timing constraints. The program design broadly reflects the consultation outcomes and recommendations and takes into account key variations in the maturity and context of the CLS sectors across all jurisdictions. 

 

Funding of $18.2 million for the program was included in the October 2022-23 Budget under the measure 'Community Language Schools' for a period of four years commencing in
2022-23. Details are set out in Budget October 2022-23, Budget Measures,
Budget Paper No. 2 at page 146.

 

Funding for this item will come from Program 2.5: Multicultural Affairs and Citizenship, which is part of Outcome 2. Details are set out in Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.10, Home Affairs Portfolio at pages 40, 41 and 46.

 

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

 

Australia has obligations under the Convention on the Rights of the Child (CRC). Article 4 of the CRC provides that States Parties 'shall undertake all appropriate legislative, administrative, and other measures' for the implementation of the rights recognised in the Convention.' Article 29 of the CRC refers to the States Parties' agreement that education should develop each child's talent and mental abilities to the fullest potential and respect for the child's cultural identity and language.

 

The program will foster the development of children's talents and mental abilities by supporting the teaching of foreign languages at community language schools for
preschool-aged and school-aged children.

 

Australia also has obligations under the International Covenant on Civil and Political Rights (ICCPR). Article 2 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 Covenant. Article 27 provides that 'in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture' and 'to use their own language'.

 

The program will support children from linguistic minority groups to learn and use their own language.

 

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. 5) 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. 5) Regulations 2023 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on the Community Language Schools Grants Program (the program) which will be administered by the Department of Home Affairs.

 

The program is intended to strengthen the cohesion and prosperity of Australia's multicultural society by supporting community language schools (CLS) to support more children in Australia to acquire a second language, specifically to:

*         connect them to the languages of their parents, grandparents and broader communities; and

*         enable their participation in a broader range of jobs in an economy closely integrated into a global market of diverse trading partners.

 

Eligible not-for-profit CLS across Australia will receive a one-off grant to expand the delivery of languages to more school-aged children from Kindergarten to year 12, and a supplementary payment for pre-schoolers. Grant money may only be used for school administration and operational costs, educational equipment and resources, appropriate venue hire, and teacher professional development.

 

Funding of $18.2 million over four years from 2022-23 will be available to the program.

 

Human rights implications

 

This disallowable legislative instrument engages the following human rights:

*         the right for a child's education be directed to the development of the child's talent to their fullest potential - Article 29 of the Convention on the Rights of the Child (CRC), read with Article 4; and

*         the right of persons belonging to ethnic, religious or linguistic minorities to enjoy their own culture or to use their own language - Article 27 of the International Covenant on Civil and Political Rights (ICCPR), read with Article 2.

 

Right under Article 29 of the CRC

 

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

 

Article 29(1) of the CRC states that States Parties agree that the education of the child shall be directed to '(a) the development of the child's personality, talents and mental and physical abilities to their fullest potential' and '(c) 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 civilizations different from his or her own.'

 

Right under Article 27 of the ICCPR

 

Article 2(1) of the ICCPR provides that each State Party undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

Article 2(2) provides that where not already provided for by existing legislative or other measures, each State Party undertakes to take the necessary steps, in accordance with its constitutional processes, to adopt such laws or other measures as may be necessary to give effect to the rights recognised in the ICCPR.

 

Article 27 of the ICCPR states that 'in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture ... or to use their own language.'

 

This disallowable legislative instrument will facilitate opportunities for children in Australia to develop language abilities through access to language education, including those who have connections with cultures and nationalities for those for whom English is a second language.

 

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