Details of the Financial Framework (Supplementary Powers) Amendment (Education Measures No. 3) Regulations 2019

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Education Measures No. 3) 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 a program that will be administered by the Department of Education (the department).

 

New table item 362 provides legislative authority for government spending on research, tools and strategies to boost Aboriginal and Torres Strait Islander languages education (the Project).

 

On 2 August 2019, the Government announced the Investing in languages studies in Australia package, which includes this Project.

 

The Project's objective is to support the development of Aboriginal and Torres Strait Islander language teachers and the teaching of Aboriginal and Torres Strait Islander languages to boost the long-term uptake of these languages in Australian school classrooms. Funded activities under the project will include researching into best-practice implementation of the Framework for Aboriginal Languages and Torres Strait Islander Languages (the Framework), supporting the development of language teaching resources and developing a workforce strategy for Aboriginal and Torres Strait Islander language teachers.

 

The project will be delivered by First Languages Australia (FLA), using a limited tender procurement. FLA facilitates communication between Aboriginal and Torres Strait Islander language networks and other key stakeholders. They also advocate on behalf of communities with organisations that have the potential to positively affect the strength of Aboriginal and Torres Strait Islander languages.

 

The Project will commence in October 2019 and will conclude on 30 June 2022. The Project will consist of three pillars as follows:

 

Under the first pillar, FLA will identify best practice resources already available to support implementation of the Framework, including in regional and remote communities. This will involve research into how to:

*         effectively integrate Aboriginal and Torres Strait Islander language and cultural learnings into the classroom;

*         appropriately engage with local Aboriginal and Torres Strait Islander communities about Aboriginal and Torres Strait Islander language teaching;

*         promote community involvement in Aboriginal and Strait Islander languages education; and

*         identify and apply appropriate community protocols for the teaching of Aboriginal and Torres Strait Islander languages, including who can teach a language and where, and guidance for non-Indigenous staff and Aboriginal and Torres Strait Islander staff off-country.

 

Under the second pillar, FLA will develop high quality training resources and materials to support the ongoing development of skills of the Aboriginal and Torres Strait Islander language education workforce. This pillar will consist of the following activities:

*         development of resources to support Aboriginal and Torres Strait Islander language educators to continually grow their own personal language skills;

*         development and implementation of professional development courses to increase the skills of educators teaching Aboriginal and Torres Strait Islander languages, including Aboriginal and Torres Strait Islander educators, community representatives and non-Indigenous educators;

*         guidance on appropriate length of time of classroom language teaching requirements; and

*         trialling resources and professional development courses to ensure materials and courses are effective.

 

Under the third pillar, FLA will develop a culturally appropriate national workforce strategy for Aboriginal and Torres Strait Islander language educators, including community language teachers/assistants working in schools, teachers in the school classroom, and linguists (university trained and community based). The strategy will include the identification of, and provide guidance on, best practice models, including:

*         how to promote first language programs within schools as a career;

*         how to promote skills training in the field of linguistics;

*         how to promote relevant qualification/courses for Aboriginal and Torres Strait Islander people;

*         how to engage, retain and support trained Aboriginal and Torres Strait Islander language teachers;

*         appropriate national training pathways for Aboriginal and Torres Strait Islander Assistant educators, including flexible learning and entry;

*         appropriate national accreditation requirements and employment conditions;

*         how to introduce mentoring opportunities; and

*         how to implement language educator professional development by using the training resources (developed as part of this Project) in the classroom in practical terms.

 

The department will enter into a procurement with FLA through a limited tender process to deliver the Project over 2019-20 to 2021-2022.

 

If a limited tender process is not successful, the department will run an open tender for the relevant service or services. If applicable, open tender information will be published on the AusTender 'Current ATM List' at www.tenders.gov.au/?event=public.ATM.list.

 

Funding will be expended in accordance with the Commonwealth Procurement Rules, the department's Secretary Instructions and delegations on the expenditure of relevant monies, and the Public Governance, Performance and Accountability Act 2013.

 

Decisions made in connection with the Project would not be subject to independent review. In accordance with usual practice, procurement decisions, once made, will be final and not subject to merits review. Remaking a procurement decision after entry into a contract with a successful proponent is legally complex, impractical and would result in delays in implementation. Given FLA's expertise in Aboriginal and Torres Strait languages, it is not reasonably foreseeable nor envisaged that any other organisation would receive funding in relation to this initiative.

 

Information about where to direct queries or complaints about the conduct of the tender will be included in the procurement documentation published on AusTender. In accordance with the department's procurement complaints processes, any complaints will be directed in the first instance to the contact officer for the procurement identified in that documentation.  Unresolved complaints may then be directed to independent officers or a probity adviser in accordance with the department's procurement probity plan. This procurement will be subject to the Government Procurement (Judicial Review) Act 2018 and the review mechanisms specified under that Act.

 

Funding of $565,000 over three years from 2019-20 will be available from the Endeavour Languages Teachers Fellowship fund, which is part of Quality Outcomes (a sub-program of Program 1.5 Early Learning and Schools Support). Funding details are set out in the Portfolio Budget Statements 2019-20, Budget Related Paper 1.5 2019-20, Education and Training Portfolio at page 34.

 

Quality Outcomes is a discretionary funding program for initiatives of importance to the Government. The Minister for Education (the Minister) approves funding allocations under Quality Outcomes. Quality Outcomes is a long-standing appropriation to the department for the purposes of providing funding for a variety of initiatives. The Minister has always retained the capacity to allocate funding from Quality Outcomes.

 

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 races power (s 51(xxvi))

*         the external affairs power (section 51(xxix)).

 

 

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 Project aims to benefit Aboriginal and Torres Strait Islander students by improving the availability and quality of Aboriginal and Torres Strait Islander languages education in Australian school classrooms.

 

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 [1991] ATS 4 (CRC).  Article 4 provides that States Parties 'shall undertake all appropriate legislative, administrative, and other measures' for the implementation of the rights recognised in the Convention.

 

These rights include 'the right of the child to education' (Article 28). Article 29(1) relevantly provides that 'State 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; ...

(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; ...

 

The Project will foster the development of children's personality, talents and mental abilities by promoting the teaching and learning of Aboriginal and Torres Strait Islander languages in Australian classrooms. For Aboriginal and Torres Strait Islander students, learning Aboriginal and Torres Strait Islander languages will enhance their respect for their cultural identity, language and values. For non-Indigenous students, this will develop respect for the national values of the country in which the child is living and for civilisations different from his or her own. 

 

Australia also has relevant obligations under the International Covenant on Civil and Political Rights [1980] ATS 23 (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 Convention. 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'.

 

By improving the accessibility and quality of Aboriginal and Torres Strait Islander language education, the Project aims to increase the use of Aboriginal and Torres Strait Islander languages and to enable Aboriginal and Torres Strait Islander students to practise their language and culture in the classroom.

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 (Education Measure No. 3) 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 (Education Measures No. 3) Regulations 2019 amend Schedule 1AB to the FF(SP) Regulations to add a new table item to establish legislative authority for government spending on research, tools and strategies to boost Aboriginal and Torres Strait Islander languages education (the Project), which will be administered by the Department of Education.

 

The Project's objective is to support the development of Aboriginal and Torres Strait Islander language teachers and the teaching of Aboriginal and Torres Strait Islander languages to boost the long-term uptake of these languages in Australian school classrooms. Funded activities under the Project will include researching into best practice implementation of the Framework for Aboriginal Languages and Torres Strait Islander Languages (the Framework), supporting the development of language teaching resources and developing a workforce strategy for Aboriginal and Torres Strait Islander language teachers.

 

The Project will be delivered by First Languages Australia (FLA), using a limited tender procurement. FLA facilitates communication between Aboriginal and Torres Strait Islander language networks and other key stakeholders. They also advocate on behalf of communities with organisations that have the potential to positively affect the strength of Aboriginal and Torres Strait Islander languages.

 

Human rights implications

 

The instrument engages the following human rights:

• the right to education - Articles 4, 28 and 29 of the Convention on the Rights of the Child (CRC).

 

Right to Education

 

The instrument engages the right to education in Articles 28 and 29 of the CRC read with Article 4. 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. These rights include 'the right of the child to education' (Article 28). Article 29(1) relevantly provides that 'State 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; ...

(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; ...

 

The instrument promotes the right to education by:

*         promoting the teaching and learning of Aboriginal and Torres Strait Islander languages in Australian classrooms;

*         improving the accessibility and quality of Aboriginal and Torres Strait Islander language education;

*         developing students' talents and abilities by providing the opportunity to learn Aboriginal and Torres Strait Islander languages;

*         enhancing Aboriginal and Torres Strait Islander students' respect for their heritage, country and cultural identity; and

*         developing all students' respect for the national values of Australia.

                                     

The instrument is compatible with the right to education and promote the right to education.

 

Conclusion

 

The instrument is compatible with human rights because it promotes the right to education under the CRC.

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance