Attachment A

 

Details of the Financial Framework (Supplementary Powers) Amendment

(Climate Change, Energy, the Environment and Water Measures No. 2) Regulations 2023

 

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. 2) 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 three new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on certain activities to be administered by the Department of Climate Change, Energy, the Environment and Water (the department).

 

New table item 601 establishes legislative authority for government spending on the Murray-Darling Basin Aboriginal Water Entitlements Program (the program) to support the purchase and management of water entitlements in the Murray-Darling Basin for the benefit of First Nations communities in the Murray-Darling Basin.

 

The program delivers on the Government's election commitment as part of the Labor's commitment to First Nations peoples for $40 million in 2022-23 to support First Nations communities in the Murray-Darling Basin to invest in cultural and economic water entitlements and associated planning activities.

 

Water entitlements purchased under the program will increase water ownership for First Nations communities in the Basin. Increased ownership will:

• empower First Nations peoples to exercise self-determination in decisions about how to use and manage this water;
• provide for the increased application of traditional ecological knowledge in water management and assist First Nations peoples in meeting cultural responsibilities; and
• enable First Nations peoples to participate in the modern water economy while furthering the health of ecosystems, waterways, communities and cultures.

 

The department has been engaging with the Basin states and First Nations representatives to ensure the purchase of water entitlements is guided by First Nations peoples. This includes the development of purchasing principles to inform the criteria used to make decisions on water entitlements purchases. An initial investigation will also be conducted on suitable water entitlements for purchase through targeted engagement with Basin states jurisdictions, First Nations organisations and relevant government agencies.

 

The department intends to progress a design and delivery program in consultation with the Basin states, the Committee on Aboriginal Water Interests (CAWI) and other First Nations representatives. This will ensure that the program funding is strategically used to purchase entitlements across the Basin while conditions are favourable to enter the water market.

 

The CAWI is an advisory committee providing advice to the National Water Reform Committee in relation to the National Water Initiative. The CAWI was established in December 2020 and secretariat support is provided by the department. Members are First Nations people with expertise in water management, cultural knowledge and First Nations rights and interests. The CAWI holds cultural authority based on members' academic, operational and political experience. The CAWI is an existing mechanism which is already embedded in the department's water policy framework and is best placed to provide oversight on the development of the purchasing principles and an associated purchasing strategy.

 

Purchase of water entitlements will be administered by the department through a procurement process in accordance with the Commonwealth resource management framework including, where relevant, the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Commonwealth Procurement Rules (CPRs).

 

Final spending decisions will be made by the Program Delegate, a Senior Executive Service officer of the department with the relevant expertise in, and understanding of, water and First Nations matters, and are able to perform relevant functions in accordance with the Commonwealth resource management framework. Once agreed, procurement details including the tender process will be made available on the department's website (dcceew.gov.au) and reported on Austender (www.tenders.gov.au).

 

Procurement 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 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 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.

 

Consultation between the department and key First Nations stakeholders has been ongoing. This includes a workshop held with First Nations bodies in December 2020 to discuss the program. Findings from this workshop showed that First Nations peoples have a strong desire for the timely implementation of the program.

 

In 2021, the Murray-Darling Basin Authority Chairperson Sir Angus Houston undertook a listening tour in the Murray-Darling Basin to talk with affected stakeholders, including:

• Murray Lower Darling Rivers Indigenous Nations;
• Northern Basin Aboriginal Nations;
• New South Wales Aboriginal Land Council;
• Victorian Federation of Traditional Owner Corporations;
• Native Title Service Provider for Aboriginal Traditional Owners in New South Wales and the Australian Capital Territory;
• Barkandji Native Title Group Aboriginal Corporation Registered Native Title Bodies Corporate;
• Murray-Darling Basin Authority Board; and
• Indigenous Land and Sea Corporation.

 

Questions about the program have been tabled at several CAWI meetings in 2020 to 2022, including a recent meeting between the Minister for the Environment and Water and the CAWI on 10 November 2022. The Minister invited discussion about implementation of the program that was included at the recent First Nations water roundtable in Sydney on 6 December 2022.

 

Recent engagements include Ministerial visits across the Basin where the program funding has been included in discussions with affected stakeholders.

 

Funding of $40 million in 2022-23 for the program was transferred from the National Indigenous Australians Agency in the October 2022-23 Budget under the measure 'Water for Australia Plan'. Details are set out in October Budget 2022-23, Budget Measures, Budget Paper No. 2 at page 79.

 

Funding for this item will come from Program 4.1 Water Reform, which is part of Outcome 4. Details are set out in the Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.3, Climate Change, Energy, the Environment and Water Portfolio at page 71.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the race power (section 51(xxvi)) of the Constitution.

 

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 is directed at supporting First Nations communities in the Murray-Darling Basin to invest in cultural and economic water entitlements, including water dependant cultural practices as well as economic development opportunities that align with their rights and interests.

 

New table item 602 establishes legislative authority for government spending on the Environmental legal services program (the program).

 

The program delivers on the Government's election commitment on 'Strengthening Access to Justice - Restoring Funding to the Environmental Defenders Office and Environmental Justice Australia' published in the Plan for a Better Future: Better Budget, Better Economy.

 

The Environmental Defenders Office (EDO) and Environmental Justice Australia (EJA) play a vital role in providing legal information and legal assistance services to members of the community whose interests should be protected as a matter of public interest, in upholding the law and protecting Australia's natural assets and environmental outcomes.

 

The EDO was established in 1985 and is the largest environmental legal centre in the Australia-Pacific region, dedicated to protecting the climate, communities and shared environment by providing access to justice, running ground-breaking litigation and leading law reform advocacy. EJA was established in 1991 and is a national public interest legal centre which uses the law to empower communities, to protect and regenerate nature, to safeguard the climate and to achieve social and environmental justice.

 

Grants funding of $9.5 million over four years from 2022-23 will be provided to the
EDO ($8.3 million) and EJA ($1.2 million) to support them in their continued representation of Australians from all walks of life, from farmers to Aboriginal and Torres Strait Islander people, communities, their representatives and environmental groups who want to uphold Australia laws and protect Australia's precious natural assets.

 

The funding would aim to:

• improve access to and delivery of quality justice and legal assistance services to members of the community to uphold the law and protect Australia's natural assets and environmental outcomes;
• effectively advocate for public interest environmental law; and
• provide core legal services and encourage early intervention in legal issues relating to the environment.

 

The EDO and EJA also provide legal information and legal assistance services in relation to matters that have broad environmental significance or involve significant environmental issues in law, and to maximise equity of access to individuals, communities and groups in regional areas.

 

Eligible expenditure would cover salaries and directly related expenses including recruitment, domestic travel and accommodation, consultation with relevant organisations, web design and development, helpline services, and the cost of an independent audit of project expenditure up to a maximum of 1 per cent of total eligible project expenditure.

 

The intended outcomes of the program are to:

• provide equitable access to legal assistance services for members of the Australian community
• provide legal information and legal assistance services (including legal advice and representation):
• for matters that have broad environmental significance or involve significant environmental issues in law
• to maximise equity of access to individuals, communities and groups and in regional areas
• promote best practice, the efficient and effective allocation of resources and the minimisation of duplication in relation to delivering justice and legal services including through:
• the identification of priority issues, groups and individuals including farmers, Aboriginal and/or Torres Strait Islander people, communities and their representatives, and community and environmental groups, both within and across the States and Territories
• the allocation of funding and resources in accordance with identified priorities,

cooperation, collaboration and exchange of information both within and between the EDO and EJA.

 

The program will be delivered as a closed, non-competitive grant and administered by the Business Grants Hub in accordance with the Commonwealth resource management framework, including the PGPA Act and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs).

 

The decision making, assessment, selection and notification processes, as well as eligibility and grant money requirements, will be detailed in the grant opportunity guidelines.

Information about the grant, including the grant opportunity guidelines, will be made available on the GrantConnect's website (grants.gov.au).

 

Final decisions about expenditure will be made by the relevant Program Delegate, a Senior Responsible Officer in the Department of Industry, Science and Resources (DISR) with responsibility for the program. DISR is responsible for the administration of the Business Grants Hub. This will ensure that the delegate has the relevant expertise in, and understanding of, grants processes, and is able to perform relevant functions in accordance with the Commonwealth resource management framework.

 

The decision maker will decide which grants to approve taking into account the application assessment and the availability of grant funds.

 

Funding decisions in relation to the grants are not suitable for independent merits review as these decisions will relate to the allocation of finite resources and an allocation already made to a party would be affected by overturning the original decision. 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).

 

In addition, 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.

 

Communication between the EDO and EJA and the department has been undertaken regarding the grants process. Consultation will be ongoing once the program has been implemented. Public consultation was not undertaken. The EDO and EJA are well established, trusted providers of these services and are well known to the clients they service.

 

Total funding of $9.8 million for the program was included in the 2022-23 October Budget under the measure 'Restoring Funding to the Environmental Defenders Office and Environmental Justice Australia' for a period of four years commencing in 2022-23 (and $2.6 million per year ongoing). Details are set out in Budget October 2022-23, Budget Measures, Budget Paper No. 2 at page 75.

 

Funding for this item will come from Program 2.1: Sustainable Management of Natural Resources and the Environment, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2022-23 Department of Climate Change, Energy, the Environment and Water, at page 55.

 

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));
• the express incidental power (section 51(xxxix)); and
• the Territories power (section 122).

 

Communications power

 

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

 

Funding under this program may support the delivery of legal services and information online.

 

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'.

 

Funding under this program may be directed at the provision of legal assistance and legal resources specifically for Aboriginal and Torres Islander persons and their communities.

 

Express incidental power

 

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 the Parliament, the executive or the courts by the Constitution. The executive power in section 61 of the Constitution supports the execution and maintenance of the Constitution and the laws of the Commonwealth.

 

Funding under this program may support legal assistance and services being given in relation to Commonwealth laws, or to parties in proceedings in Commonwealth jurisdiction.

 

Territories power

 

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

 

Funding under this program may support legal assistance, services and other related activities being provided in the territories.

 

New table item 603 establishes legislative authority for government spending on the Goyder Institute for Water Research Program (the program).

 

The program aims to support, via research and community engagement, the management of the Coorong, Lower Lakes and Murray Mouth (CLLMM) and the critical environmental, cultural, social, and economic values of this region into the future.

 

On 6 October 2022, the Minister for the Environment and Water, the Hon Tanya Plibersek MP, announced funding of $8 million will be provided to the Goyder Water Research Institute (Goyder Institute) to support a new water research hub, which will harness First Nations and community input and improve scientific knowledge to better manage the internationally significant CLLMM region. The media release is available at https://www.tanyaplibersek.com/media/media-releases/media-release-plibersek-new-research-hub-to-help-future-proof-water-resources-in-goolwa-region/.

 

The CLLMM is the point at which the Murray River mouth meets the Southern Ocean. It is home to one of Australia's most important wetland areas as it provides a unique range of freshwater, estuarine and marine habitats. These habitats are home and breeding sites to nationally and internationally threatened specifies such as the Murray hardyhead, Mount Lofty Ranges southern emu wren, southern bell frog, hooded plover and Australasian bittern. As it is the only site where salt and other pollutants can be flushed from the entire Murray-Darling Basin to the ocean, it is significantly important to protect this wetland.

 

The region is also used by First Nations people, as well as for commercial and recreational fisheries, and for tourism.

 

The Goyder Institute was established in July 2010 by the South Australian Government and is an unincorporated alliance of Parties - the South Australian Government through the Department for Environment and Water (DEW), the Commonwealth Scientific and Industrial Research Organisation (CSIRO), Flinders University, The University of Adelaide and the University of South Australia.

 

The Goyder Institute is South Australia's eminent water research organisation for undertaking research and scientific knowledge needed for independent expert water management advice and informing priority water policies of governments and industry. It strives to identify future threats to water security and assist in the integrated approach to water management, in South Australia as well as nation-wide.

 

In collaboration with the department, Goyder Institute will work with communities and scientists to deliver a program of research to better understand the impacts of climate change on the health of the region and how to build resilience of the region into the future.

 

The research program will bring together First Nations, the community, governments and researchers to identify, develop, integrate and adopt the knowledge required to maintain the biodiversity and ecosystem services of the CLLMM in the long term through effective management. The new knowledge and data will inform government decision making, related policy processes, and adaptive management towards the health and future climate-proofing of the region.

 

In particular the funding will support or facilitate activities or programs, including:

*         research programs (including activities supporting the dissemination of research and knowledge exchange with focus areas being on ecosystem services, threatened species, climate mitigation and climate adaptation);

*         training and education programs (that may include hosting various community forums to communicate the findings of the research to the general public or performing school visits throughout and outside of the region with an interest in the CLLMM); and

*         communication and engagement programs (including the program's achievements being regularly communicated through a range of communication tools such as social media, electronic newsletter articles, media releases, publications and the production and circulation of interactive and promotional videos).

The funding will be delivered through an ad hoc grant funding arrangement and will be compliant with the relevant Commonwealth policy and legislative frameworks including the CGRGs. The guidelines for the grant will be developed via the Business Grants Hub and published on GrantConnect.

 

Information on the expenditure will be made publicly available on the department's website and other online locations as required.

 

All spending decisions will be made by the Minister or delegated to a relevant Senior Executive Service (SES) officer who would have the relevant expertise in, and understanding of the spending activity, being a person with sufficient expertise in water matters, and able to perform relevant functions in accordance with the Commonwealth resource management framework.

 

Merits review would not be appropriate for this program because the funding decision will relate to the allocation of finite resources and an allocation already made to the Goyder Institute would be affected by overturning the original decision. 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).

 

In addition, 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.

 

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.

 

Following the Government's election commitment announcement for a research institute to focus on the health of the CLLMM, the Goyder Institute engaged with the Government on the provision of a business plan, which was developed in consultation with local government stakeholders and key community representatives. The Murray Darling Basin Authority worked with the Goyder Institute to explore opportunities for consideration of the program to provide local as well as national benefits. The department will continue to work with Goyder Institute as the program is implemented.

 

Funding of $8 million was allocated in the 2020-21 Mid-Year Economic and Fiscal Outlook. The Government has approved an extension of the program in the October 2022-23 Budget, under the measure 'Water for Australia Plan' 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 79.

 

Funding for this item will come from Program 4.1: Water Reform, under Outcome 4. Details are set out in the Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.3, Climate Change, Energy, the Environment and Water portfolio at page 71.

 

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 party.

 

Australia has relevant obligations under the Convention on Biological Diversity [1993] ATS 32 (Biodiversity Convention), the Convention on Wetlands of International Importance Especially as Waterfowl Habitat [1975] ATS 48 (Ramsar Convention) and the United Nations Framework Convention on Climate Change [1994] ATS 2 (Climate Change Convention).

 

The Biodiversity Convention obliges parties to:

• establish and maintain programs for scientific and technical education and training in measures for the conservation and sustainable use of biological diversity and its components (Article 12(a));
• promote and encourage research which contributes to the conservation and sustainable use of biological diversity (Article 12(b)); and
• promote and encourage understanding of the importance of, and the measures required for, the conservation of biological diversity, and the inclusion of these topics in educational programs (Article 13(a)).

 

The Ramsar Convention imposes general obligations on contracting parties regarding research and training, particularly to:

• encourage the research and exchange of data and publication regarding wetlands and their flora and fauna (Article 4.3); and
• promote the training of personnel competent in the fields of wetland research, management and wardening (Article 4.5).

 

The Ramsar Convention also establishes a List of Wetlands of International Importance. The CLLMM wetland system is such a wetland. Australia has an international obligation to:

• formulate and implement planning so as to promote conservation and wise use of listed sites (Article 3.1); and
• arrange to be informed at the earliest possible time if the ecological character of any wetland in its territory and included in the List has changed, is changing or is likely to change as the result of technological developments, pollution or other human interference, and pass on the information without delay to the Ramsar Convention Bureau (Article 3.2).

 

The Climate Change Convention includes obligations to:

• promote and cooperate in scientific, technological, technical, socio-economic and other research, systematic observation and development of data archives related to the climate system and intended to further the understanding and to reduce or eliminate the remaining uncertainties regarding the causes, effects, magnitude and timing of climate change (Article 4.1(g));
• promote and cooperate in education, training and public awareness related to climate change and encourage the widest participation in this process, including that of non-government organisations, including by promoting and facilitating the development implementation of such programs and training of scientific and technical personnel (Article 4.1(i)); and
• promote and facilitate at the national, and as appropriate, subregional and regional levels, and in accordance with national laws and regulations, the development and implementation of educational and public awareness programs on climate change and its effects and the training of scientific, technical and managerial personnel (Article 6(a)(i) and (iv)).

 

The funding will support research, education, community engagement and management of the CLLMM wetland system in accordance with Australia's international obligations.

 

 

 

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. 2) 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 (Climate Change, Energy, the Environment and Water Measures No. 2) Regulations 2023 amend Schedule 1AB to the Principal Regulations to establish legislative authority for government spending on certain activities administered by the Department of Climate Change, Energy, the Environment and Water.

 

This disallowable legislative instrument adds the following table items to Part 4 of
Schedule 1AB:

• table item 601 'Murray-Darling Basin Aboriginal Water Entitlements Program';
• table item 602 'Environmental legal services'; and
• table item 603 'Goyder Institute for Water Research Program'.

 

Table item 601 - Murray-Darling Basin Aboriginal Water Entitlements Program

 

Table item 601 establishes legislative authority for government spending on the Murray-Darling Basin Aboriginal Water Entitlements Program (the program) to support the purchase and management of water entitlements in the Murray-Darling Basin for the benefit of First Nations communities in the Murray-Darling Basin.

 

The program delivers on the Government's election commitment as part of the Labor's commitment to First nations people for $40 million in 2022-23 to support First Nations communities in the Murray-Darling Basin to invest in cultural and economic water entitlements and associated planning activities.

 

Water entitlements purchased under the program will increase water ownership for First Nations peoples in the Basin. Increased ownership will:

• empower First Nations peoples to exercise self-determination in decisions about how to use and manage this water;
• provide for the increased application of traditional ecological knowledge in water management and assist First Nations communities in meeting cultural responsibilities; and
• enable First Nation people to participate in the modern water economy while furthering the health of ecosystems, waterways, communities and cultures.

 

Human rights implications

 

Table item 601 engages the following human 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 enjoy and benefit from culture - Article 27 of the ICCPR and Article 15 of the ICESCR.

 

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 Covenant.

 

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 Covenant, by all appropriate means.

 

Table item 601 positively engages the right to self-determination for First Nations communities in the Murray-Darling Basin by investing in cultural and economic water entitlements for those communities and by providing funding for associated planning activities. This enables First Nations communities in the Murray-Darling Basin to hold water entitlements and supports those communities in determining how water in the Murray-Darling Basin is used.

 

Right to enjoy and benefit from culture

 

The right to enjoy and benefit from culture is contained in Article 27 of the ICCPR and Article 15 of the ICESCR. Article 27 of the ICCPR protects the rights of individuals belonging to ethnic, religious and linguistic minorities within a country to enjoy their own culture, practise their own religion and use their own language. Article 15 of the ICESCR protects the right of all persons to take part in cultural life.

 

In General Comment No. 23 (CCPR/C/21/Rev.1/Add.5 (1994)), the Human Rights Committee stated that Article 27 is directed towards 'ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole'. The Committee also observed that 'culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples ... The enjoyment of those rights may require positive legal measures of protection'.

 

In General Comment No. 21 (E/C.12/GC/21 (2009)) the United Nations Committee on Economic, Social and Cultural Rights stated that the 'strong communal dimension of indigenous peoples' cultural life is indispensable to their existence, well-being and full development, and includes the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Indigenous peoples' cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected, in order to prevent the degradation of their particular way of life, including their means of subsistence, the loss of their natural resources and, ultimately, their cultural identity'.

 

Table item 601 positively engages the right to enjoy and benefit from culture for First Nations communities in the Murray-Darling Basin by investing in cultural and water entitlements for those communities and by providing funding for associated planning activities. This will enable those First Nations communities in the Murray-Darling Basin to revitalise water dependant cultural practices, including cultural responsibilities for ecosystem health, the intergenerational transfer of cultural knowledge and the potential to regenerate culture and language. 

 

Conclusion

 

Table item 601 is compatible with human rights because it promotes the protection of human rights.

 

Table item 602 - Environmental legal services

 

Table item 602 establishes legislative authority for government spending on the Environmental legal services (the program).

 

The program delivers on the Government's election commitment on 'Strengthening Access to Justice - Restoring Funding to the Environmental Defenders Office and Environmental Justice Australia' published in the Plan for a Better Future: Better Budget, Better Economy.

 

Grant funding of $9.5 million over four years from 2022-23 will be provided to the Environmental Defenders Officer (EDO) and Environmental Justice Australia (EJA) to:

• improve access to and delivery of quality justice and legal assistance services to members of the community to uphold the law and protect Australia's natural assets and environmental outcomes;
• effectively advocate for public interest environmental law; and
• provide core legal services and encourage early intervention in legal issues relating to the environment.

 

The EDO and EJA play a vital role in providing legal information and legal assistance services to members of the community whose interest should be protected as a matter of public interest, in upholding the law and protecting Australia's natural assets and environmental outcomes.

 

Human rights implications

 

Table item 602 engages the following human rights:

*         the right to equality and non-discrimination - Article 26 of the International Covenant on Civil and Political Rights (ICCPR), read with Article 2; and

*         the right to self-determination - Article 1 of the ICCPR, read with Article 2, and Article 1 of the ICESCR read with Article 2.

 

Right to equality and non-discrimination

 

Article 26 of the ICCPR provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. Article 2 of the ICCPR provides that each State Party to ICCPR undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised without distinction of any kind.

 

Table item 602 promotes this right as it seeks to improve access to, and delivery of, quality justice and legal assistance services (including legal advice and legal representation) whose interest should be protected as a matter of public interest.

 

Right to self-determination

 

The right of persons to freely determination their political status and freely peruse their economic, social and cultural development is contained in Article 1 of the ICCPR and Article 1 of the ICESCR.

 

Article 2 of the ICCPR provides that each State Party to the ICCPR undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised without distinction of any kind. Article 2 of the ICESCR also 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.

 

Table item 602 promotes this right to the extent that legal assistance and services are provided to Aboriginal and Torres Islander persons by:

*         improving the understanding of the relevance and impact of broader spiritual, cultural, natural, environmental, social and economic conditions to the needs Aboriginal and Torres Strait Islander peoples; and

*         providing expertise in the delivery of culturally-sensitive services to Aboriginal and Torres Strait Islander peoples, communities and their representatives.

 

Conclusion

 

Table item 602 is compatible with human rights because it promotes the protection of human rights.

 

Table item 603 - Goyder Institute for Water Research Program

 

Table item 603 establishes legislative authority for government spending on the Goyder Institute for Water Research to support, via research and community engagement, the management of the Coorong, Lower Lakes and Murray Mouth (CLLMM) and the critical environmental, cultural, social, and economic values of this region into the future.

 

The CLLMM is the point at which the Murray River mouth meets the Southern Ocean. It is home to one of Australia's most important wetland areas as it provides a unique range of freshwater, estuarine and marine habitats. These habitats are home and breeding sites to nationally and internationally threatened specifies such as the Murray hardyhead, Mount Lofty Ranges southern emu wren, southern bell frog, hooded plover and Australasian bittern. The CLLMM is the only site where salt and other pollutants can be flushed from the entire Murray-Darling Basin to the ocean and is significantly important to be protected. The region is also used by First Nations people, as well as for commercial and recreational fisheries, and tourism.

 

Funding of $8 million over four years from 2022-23 will support or facilitate activities or programs, including the following:

• research programs (including activities supporting the dissemination of research and knowledge exchange with focus areas being on ecosystem services, threatened species, climate mitigation and climate adaptation);
• training and education programs (that may include hosting various community forums to communicate the findings of the research to the general public or performing school visits throughout and outside of the region with an interest in the CLLMM); and
• communication and engagement programs (including the program's achievements being regularly communicated through a range of communication tools such as social media, electronic newsletter articles, media releases, publications and the production and circulation of interactive and promotional videos).

 

The program will bring together First Nations people, the community, governments and researchers to identify, develop, integrate and adopt the knowledge required to maintain the biodiversity and ecosystem services of the CLLMM in the long term through effective management. The new knowledge and data will inform government decision making, related policy processes, and adaptive management towards the health and future climate-proofing of the region.

 

Human rights implications

 

Table item 603 does not engage any of the applicable human rights or freedoms.

 

Conclusion

 

Table item 603 is compatible with human rights as it does not raise any human rights issues.

 

 

Senator the Hon Katy Gallagher

Minister for Finance