Details of the Financial Framework (Supplementary Powers) Amendment
(Infrastructure, Transport, Regional Development and Communications Measures No. 3) Regulations 2021
Section 1 - Name
This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Infrastructure, Transport, Regional Development and Communications Measures No. 3) Regulations 2021.
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
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 Department of Infrastructure, Transport, Regional Development and Communications (the department).
New table item 482 establishes (and renews) legislative authority for government spending on the Regional Arts Fund (RAF), which provides financial assistance to support and promote the creation of, participation in and access to Australian arts and culture in regional and remote Australia. The RAF funding will support arts projects, professional development for artists and arts workers, as well as community capacity building projects. Funding will also be provided for high priority strategic projects that contribute to the furtherance of regional arts nationally.
The RAF was established in 1996 and has been administered by the Commonwealth Department responsible for the Arts, presently the Office for the Arts within the department. Information about the RAF is available at https://www.arts.gov.au/funding-and-support/funding-and-support/regional-arts-fund.
The RAF's objective is to support and promote participation in and access to Australian arts and culture in regional and remote Australia, which:
* encourages and supports sustainable economic, social and cultural outcomes in regional communities;
* develops partnerships and networks which leverage financial and/or in-kind support for regional arts projects and encourage ongoing collaboration;
* develops audiences and broadens community engagement with the arts;
* increases employment and professional development opportunities for, and raises the profile of, regional and remote artists; and
* supports quality and viability of artistic and cultural activity.
There are two main grant opportunities under the RAF: the Project Grants and Quick Response Grants; and the Strategic Partnership Grants. Each opportunity has its own set of grant opportunity guidelines, which together provide a complete picture of the operation of the RAF. Both grant opportunities will need to address the objectives of the RAF, in part or in full, and will contribute to making the arts accessible to communities across Australia regardless of location, whether as a participant or a consumer.
Project Grants and Quick Response Grants
These two streams of grants cover funding for arts projects, professional development for artists and arts workers, and community capacity building projects. The maximum grant period for the Project Grants is two years and for the Quick Response Grants is one year.
Grant activity and funding varies between the two streams. For example, a regional artist seeking funding for a small professional development project may benefit from a grant at the lower end of the scale. A grant of $2,000 to $5,000 (under the Quick Response Grants) may assist with short-term travel costs, asset purchase and replacement, or a skills development opportunity. An arts worker or organisation may seek funding for a larger project involving local audiences and communities which encompasses multiple areas of creative practice, such as a series of creative arts programs or workshops leading up to an exhibition or performance. A grant of $20,000 to $30,000 (under the Project Grants) may provide medium-term funds to pay for artist fees, travel costs, venue and equipment hire, project insurance, and other costs associated with project administration and disability access. The administration, management, design and marketing of the project may also provide employment opportunities, depending on the scale of the activity.
Eligible applicants must be based in regional or remote Australia and must:
* be an individual or Australian incorporated organisation or local government organisation;
* have an active Australian Business Number that is registered to the applicant's name and location;
* if required by the Australian Taxation Office, be registered for the purposes of GST; and
* not have any outstanding reports, acquittals or serious breaches relating to any Australian Government funding or funding from a state or territory regional arts organisation (Regional Program Administrator). A serious breach is one that has resulted in, or warrants, the termination of a grant agreement.
Further details of eligibility and assessment criteria are set out in the grant opportunity guidelines.
Strategic Partnership Grants
These grants provide funding for strategic projects that contribute to the furtherance of regional arts nationally. The maximum grant period for a project is six years.
Grant activity may include but is not limited to:
* cultural worker positions, which establish partnerships, relationships and connections with regional communities, provide professional development opportunities and support artists and arts practitioners;
* national fellowship programs which build connections, generate exchange and strengthen a national network of regional artists; and
* other projects of strategic significance which address a need facing arts in regional areas.
The Strategic Partnership Grants are only available to Regional Arts Australia or a Regional Program Administrator that administers the RAF in its state or territory (other than the Australian Capital Territory). This is because these grants address strategic needs across Australia identified by Regional Arts Australia and Regional Program Administrators who are best placed to deliver the desired outcomes.
The department delivers the RAF through grants processes in accordance with the requirements of the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs).
The department has contracted Regional Arts Australia to deliver the RAF on behalf of the department since 2001. Regional Arts Australia, founded in 1943 as the Arts Council of Australia, is a not-for-profit peak body that is the national voice for arts in regional Australia. Regional Arts Australia is required to enter into a legally binding grant agreement with the Commonwealth to deliver the RAF within the defined terms and conditions. The grant agreement sets out funding amounts for state and territory Regional Program Administrators. Payments are made after the funding agreement is signed by Regional Arts Australia and the Commonwealth, and on receipt of a correct and complete invoice. A delegate of the Secretary of the department is the final decision maker in relation to the grant agreement.
Regional Arts Australia contracts the Regional Program Administrators in each state and territory to administer the Project Grants and Quick Response Grants streams of the RAF. The Regional Program Administrators then enter into legally binding agreements with successful funding recipients to directly deliver their agreed grant activities.
The Project Grants and Quick Response Grants are delivered through an open competitive grant process. The Regional Program Administrators assess applications against eligibility criteria set out in the grant opportunity guidelines. Assessors appointed by the Regional Program Administrators then assess eligible applications against the assessment criteria and in the context of the program objectives. Assessors are the decision makers on the approval of the grant, the amount of funding to be awarded, and the terms and conditions of the grant. Regional Arts Australia and/or the department can refer a project back to the assessment panel for further consideration if either considers it inconsistent with the grant opportunity guidelines.
The grant opportunity guidelines have been developed in accordance with the CGRGs and are publicly available on the Regional Program Administrators' websites and GrantConnect (www.grants.gov.au).
The Strategic Partnership Grants are delivered through a closed non-competitive grant process. A pre-defined amount of funding is allocated to Regional Arts Australia and the Regional Program Administrators for these grants and is outlined in the legally binding grant agreement between Regional Arts Australia and the department. Regional Arts Australia and the Regional Program Administrators submit project proposals to the department. The department then assesses these project proposals against the eligibility and assessment criteria and in the context of the program objectives.
The Minister for Communications, Urban Infrastructure, Cities and the Arts, or their delegate, is the decision maker for grant expenditure under the Strategic Partnership Grants stream. The department provides recommendations to the decision maker and negotiates arrangements with successful grant recipients.
The department administers the overall funding agreement with Regional Arts Australia to deliver the RAF, including the Strategic Partnership Grants.
All program funding decisions are made objectively, and in accordance with the assessment process set out in the grant opportunity guidelines and applicable legislative requirements under the PGPA Act.
Funding decisions made in connection with the RAF are not considered appropriate for independent merits review as they involve the allocation of a finite resource. 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 4.14 of the guide, What decisions should be subject to merit review?).
When funding requests exceed the limit of the available funding, only a proportion of suitable applications can be funded. A reviewed decision made in relation to one grant would also affect decisions in relation to all others, particularly around timing and funding amounts, which could jeopardise achievement of the program objectives.
In order to address accountability issues related to the exclusion of a merits review, the program design and assessment process places great emphasis on the administrative accountability for decisions to allocate funding. This includes ensuring that:
* criteria for funding are made clear;
* processes for allocating funds are clearly set out in the program guidelines; and
* decisions are made objectively and in accordance with applicable legislative requirements under the PGPA Act.
An applicant who is dissatisfied with the handling of their grant application will be able to lodge a complaint to the Office for the Arts Program Manager for consideration. Applicants for the Project Grants and Quick Response Grants will also be able to lodge a complaint to the Regional Program Administrator in their state or territory, or to Regional Arts Australia.
Applicants who are otherwise affected by decisions or who have complaints about the RAF also have recourse to the department, in accordance with the department's Client Service Charter, and such complaints would be investigated under the department's complaints policy and procedures. Information on the Charter and the handling of complaints is available at www.infrastructure.gov.au/department/about/charter. If the applicant is not satisfied with the outcome of the department's assessment or investigation of their complaint, they will be able to contact the Commonwealth Ombudsman as a final recourse.
Since 2001, the Commonwealth Department responsible for the Arts has sought and received ongoing feedback on the effectiveness of the RAF through regular milestone and acquittal reporting by Regional Arts Australia and the Regional Program Administrators. Milestone payments are contingent on Regional Arts Australia and the Regional Program Administrators meeting satisfactory performance standards.
Prior to each funding agreement between Regional Arts Australia and the department being entered into, the department also holds extensive consultations with Regional Arts Australia and the Regional Program Administrators to understand the needs and changes in the regional arts sector. These discussions inform the development of grant opportunity guidelines and ensure that the RAF is responsive to the needs in the arts community.
The RAF is an ongoing program. Additional funding for the RAF in 2021-22 was included in the 2021-22 Budget under the measure 'COVID-19 Response Package - additional arts sector support'. Details are set out in Budget 2021-22, Budget Measures, Budget Paper No. 2 2021-22 at page 149.
Funding for the RAF of $19.7 million over four years from 2021-22 comes from Program 6.1: Arts and Cultural Development, which is part of Outcome 6. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.10, Infrastructure, Transport, Regional Development and Communications Portfolio at pages 29 and 83.
* the aliens power (section 51(xix);
* the race power (section 51(xxvi);
* the external affairs power (section 51(xxix));
* the express incidental power and the executive power (sections 51(xxxix) and 61), including the nationhood aspect; and
* the territories power (section 122).
Aliens power
Section 51(xix) of the Constitution empowers the Parliament to make laws with respect to 'naturalisation and aliens'.
The RAF may be used to support non-citizen artists based in regional areas or foreign artists visiting regional areas of Australia.
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 RAF may be used to support Indigenous artists or Indigenous arts organisations.
Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'.
Treaty implementation aspect
The external affairs power supports legislation implementing Australia's international obligations under treaties to which it is a party.
Australia has relevant obligations under the Convention on the Protection and Promotion of the Diversity of Cultural Expressions. In particular:
- Article 7 requires Parties to endeavour to create an environment which encourages individuals and social groups to:
- 'create, produce, disseminate, distribute and access their own cultural expressions, paying due attention to the special circumstances and needs of various social groups, including persons belonging to minorities and indigenous peoples'; and
- 'have access to diverse cultural expressions from within their territory, as well as from other countries of the world.'
- Article 10 requires Parties to:
- 'encourage and promote understanding of the importance of the protection and promotion of the diversity of cultural expressions, inter alia, through educational and greater public awareness programmes'; and
- 'endeavour to encourage creativity and strengthen production capacities by setting up educational, training and exchange programmes in the field of cultural industries.'
Australia has obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), including:
- Article 2(1) of the ICESCR provides that each State Party undertakes to take steps to progressively realise the rights recognised in the Covenant 'by all appropriate means, including particularly the adoption of legislative measures’;
- Article 6 of the ICESCR provides that the States Parties recognise the right to work and will take appropriate steps to achieve the realisation of this right including through 'technical and vocational guidance and training programmes, policies and techniques'; and
- Article 15 of the ICESCR recognises the right to take part in cultural life, and provides that the steps taken by the States Parties to achieve this right include those necessary for the conservation, development and diffusion of culture.
In addition, Australia has obligations under the International Labour Organization's Convention concerning Employment Policy (ILO Convention 122) and the Convention concerning Vocational Guidance and Vocational Training in the Development of Human Resources (ILO Convention 142). In particular:
* Article 1 of the ILO Convention 122 requires Members to pursue 'an active policy designed to promote full, productive and freely chosen employment'. Article 2 of the ILO Convention 122 requires Members to 'decide on and keep under review ... measures to be adopted for attaining the objectives specified in Article 1'; and
* Article 1 of the ILO Convention 142 requires Members to adopt policies and programs of vocational guidance and training, linked with employment.
The RAF will support and promote employment in the arts sector, including by supporting arts events and productions. It will also promote the development and diffusion of cultural expression and the arts by supporting the creation of arts projects and the delivery of arts events and productions.
Geographically external aspect
The external affairs power supports legislation with respect to matters or things outside the geographical limits of Australia.
The RAF may be used to support expenditure in respect to matters outside of Australia, including expenditure on international travel.
Executive power and express incidental power, including the nationhood aspect
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. Section 61 of the Constitution supports activities that are peculiarly adapted to the government of a nation and cannot be carried out for the benefit of the nation otherwise than by the Commonwealth.
The RAF supports national initiatives in the arts that advance the national interest and encourage social cohesion and harmonious communities.
Territories power
Section 122 of the Constitution empowers the Parliament to 'make laws for the government of any territory'.
The RAF may be used to support participants in the arts sector in a Territory, or in relation to a Territory.
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 (Infrastructure, Transport, Regional Development and Communications Measures No. 3) Regulations 2021
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 (Infrastructure, Transport, Regional Development and Communications Measures No. 3) Regulations 2021 amend Schedule 1AB to the FF(SP) Regulations to establish (and renew) legislative authority for government spending on the Regional Arts Fund (RAF). The Department of Infrastructure, Transport, Regional Development and Communications has responsibility for the RAF.
The RAF provides financial assistance to support and promote the creation of, participation in and access to Australian arts and culture in regional and remote Australia, which:
- encourages and supports sustainable economic, social and cultural outcomes in regional communities;
- develops partnerships and networks which leverage financial and/or in-kind support for regional arts projects and encourage ongoing collaboration;
- develops audiences and broadens community engagement with the arts;
- increases employment and professional development opportunities for, and raises the profile of, regional and remote artists; and
- supports quality and viability of artistic and cultural activity.
There are two main grant opportunities under the RAF: the Project Grants and Quick Response Grants, which provide funding for arts projects, professional development for artists and arts workers, and community capacity building projects; and the Strategic Partnership Grants, which provide funding for strategic projects that contribute to the furtherance of regional arts nationally.
The RAF is an ongoing program. Funding of $19.7 million over four years from 2021-22 is available to the RAF.
Human rights implications
This disallowable legislative instrument engages the following rights:
- the right to work - Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2; and
- the right to take part in cultural life - Article 15 of the ICESCR.
Article 2 of the ICESCR requires the States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means.
Article 6 of the ICESCR recognises the right to work. This disallowable legislative instrument promotes the realisation of the right to work by supporting employment in the arts sector, and by supporting the continuing viability of arts organisations.
Article 15 of the ICESCR recognises the right to take part in cultural life. This disallowable legislative instrument promotes the realisation of this right by supporting the continued creation and delivery of creative works and the arts to members of the Australian community, including underserved audiences in regional and remote areas.
Conclusion
This disallowable legislative instrument is compatible with human rights as it promotes the protection of human rights.
Senator the Hon Simon Birmingham
Minister for Finance
Commonwealth Numbered Regulations - Explanatory Statements