Attachment A

 

Details of the Financial Framework (Supplementary Powers) Amendment

(Climate Change, Energy, the Environment and Water Measures No. 3) 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. 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 to be administered by the Department of Climate Change, Energy, the Environment and Water (the department).

 

New table item 626 establishes legislative authority for government spending on the First Nations Heritage Grants program (the program) which seeks to support First Nations leadership in relation to the protection of Indigenous cultural heritage.

 

The program responds to the Government's 2022 election commitment published in Labor's commitment to First Nations peoples. The program aims to support the addition of Indigenous heritage values to existing World Heritage-listed and National Heritage-listed places. Through the assessment, identification, recording and addition of Indigenous heritage values, First Nations people will be better able to protect and express their heritage. This could be undertaken through cultural mapping of Indigenous values at heritage places; renominating National and World Heritage properties to include criteria for Indigenous values; recognition of Indigenous values through formal management mechanisms such as management plans; and adding Indigenous languages to statements of Outstanding Universal Value. An example of this occurred in July 2021 when a retrospective statement for the dual-listed Uluru-Kata Tjuta National Park featuring quotes in Pitjantjatjara and Yankunytjatjara language by two Anangu Elders was officially adopted at the 44th meeting of the World Heritage Committee. This is the first time a UNESCO Statement of Outstanding Universal Value has included a language other than English or French, even though there are over 1100 listed properties.

 

Grant funding of $5.5 million over three years from 2023-24 will assist First Nations peoples to:

•         identify and record First Nations heritage values at existing World Heritage-listed and National Heritage-listed sites;

•         apply for the addition of First Nations heritage values to existing World Heritage and National Heritage site listings, where applicable;

•         increase protection of World Heritage-listed and National Heritage-listed places with First Nations heritage values through identifying those additional values; and

•         improve management of World Heritage-listed and National Heritage-listed places with First Nations heritage values.

 

Specifically, the funding will support the following activities:

 

Preparing and updating management plans

 

Management plans are critical heritage conservation tools. The heritage values of a place are identified within these plans and management strategies and practices are designed to ensure their maintenance and conservation into the future. In order for a value to be conserved, it must first be identified and understood. Many heritage places were listed without acknowledgement that they are located on Traditional Lands and are inscribed with First Nations cultural values - both tangible and intangible. There is a need to update many existing management plans for heritage places so that First Nations values are acknowledged and included and any inadvertent desecration or destruction avoided.

 

Providing access for Traditional Owners and Elders to express cultural practice

 

First Nations cultural practices are inextricably linked to the land, sea, rivers and sky, and thus cultural maintenance and revival is also inextricably linked to the environment. Access to heritage places enables First Nations people to practice ceremony, tend sacred sites, access sacred objects, pass on their knowledge, and harvest bush foods and other natural resources. Access enables culture to be practiced and maintained, law to be honoured and children taught.

 

Facilitating First Nations organisations to undertake capacity-building workshops with Indigenous Rangers and Traditional Owners

 

Capacity building may include the acquisition of a broad range of skills that relate to place management and may include how to use equipment, trade skills, the application of new and existing technology (such as remote sensing, or mapping applications) or planning and communication skills. It may also include First Nations people passing on knowledge and ideas on the management of a place to other First Nations people in a culturally appropriate manner.

 

Providing on-ground works for the protection of First Nations cultural heritage

 

Such works may include the installation of fencing or drip lines to protect rock art, the cutting of fire breaks to protect sacred areas from damage. It may include the development and installation of interpretation signage to communicate the values of the place to visitors and support tourism and the creation of an income stream. It may include the rectification of erosion damage to a site or mitigating the effects of climate change impacts.

 

There will be two rounds of grants available in 2023-24 and 2024-25. As projects are anticipated to run longer than 12 months, the final year of funding will be expended on the later milestone payments of grants selected in the 2023-24 and 2024-25 rounds. There is also the possibility of ad hoc grants being awarded to projects identified as exceptional to expend any balance of funds arising in the final year. It is anticipated that the maximum amount for a grant awarded under the two rounds will $250,000. As this is a new program, it is likely that Round Two will have a similar focus to Round One to enable applicants to have more time to develop project applications and further consult with First Nations communities on possible activities. Projects will need to be completed by the end of the program in 2025-26.

 

The funding will be delivered as a merit-based, target-competitive grant process and will be compliant with the relevant Commonwealth policy and legislative frameworks including the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs).

 

Grant opportunity guidelines are being developed to govern the operation of each round of the program. The Minister for the Environment and Water (the Minister) will be responsible for approving grant opportunity guidelines. Consistent with broader government policies, the program will be administered by the Business Grants Hub, within the Department of Industry, Science and Resources, with policy oversight by the department, and will comply with the CGRGs.

 

The Business Grants Hub will conduct the application process and initial eligibility and merit assessment. A Moderation Committee comprised of the department subject matter experts will provide final recommendations, based on the outcomes of the Business Grants Hub assessment to the Minister for final approval.

 

Program information, including the grant opportunity guidelines, will be published on GrantConnect (www.grants.gov.au). The Business Grants Hub will also publish program documentation on their website at www.business.gov.au.

 

Independent merits review would not be appropriate for this program because the funding decision will relate to the allocation of finite resources and an allocation made from the program 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.

 

Consultation with a range of First Nations representatives, peak bodies and advocacy groups has commenced and will inform the design of this program, including eligible activities, project funding amounts and timeframes. This includes:

*         Indigenous Advisory Committee;

*         First Nations Heritage Protection Alliance;

*         Indigenous Heritage Chairs and Officials Australia New Zealand;

*         Australian World Heritage Advisory Committee;

*         Indigenous World Heritage and National Heritage Property Owners/Managers; and

*         Australian Heritage Council - Indigenous heritage expert pair.

 

The design of the program will be undertaken in collaboration with the Business Grants Hub as the department's delivery partner.

 

Funding of $6.1 million for the program was included in the 2022-23 October Budget under the measure 'First Nations Heritage Grants and World Heritage', 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 64.

 

Funding for this item will come from Program 2.4: Conservation of Australia's heritage and environment, which is part of Outcome 2. 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 56.

 

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 will support projects on-Country, which is exclusively directed at assisting First Nations people to lead identification, assessment, recording and protection of First Nations cultural heritage.

 

 

 

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. 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 (Climate Change, Energy, the Environment and Water Measures No. 3) Regulations 2023 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on the First Nations Heritage Grants program (the program). The program will be administered by the Department of Climate Change, Energy, the Environment and Water.

 

The program, which seeks to support First Nations leadership in relation to the protection of Indigenous cultural heritage, is part of the Government's 2022 election commitment, published in Labor's commitment to First Nations people, to add Indigenous values to National and World Heritage-listed properties. The program will be progressed by First Nations-led identification of values and assessment of heritage places. Through the assessment, identification, recording and addition of Indigenous heritage values, First Nations people will be better able to protect and express their heritage.

 

The program will assist First Nations people to:

•         identify and record First Nations heritage values at existing World Heritage and National Heritage-listed sites;

•         apply for the addition of First Nations heritage values to existing World Heritage and National Heritage site listings, where applicable;

•         increase protection of World Heritage and National Heritage-listed places with First Nations heritage values through identifying those additional values; and

•         improve management of World Heritage and National Heritage-listed places with First Nations heritage values.

Funding of $6.1 million over four years from 2022-23, including $0.5 million in departmental expenses will be available to the program.

 

Human rights implications

 

This disallowable legislative instrument engages the following human right:

• 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.

 

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.

 

This disallowable legislative instrument positively engages the right to self-determination for First Nations communities by supporting the identification of projects on-Country where First Nations people lead the identification, assessment, recording and protection of First Nations cultural heritage.

 

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