Details of the Financial Framework (Supplementary Powers) Amendment  

(Agriculture, Water and the Environment Measures No. 4) Regulations 2020

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Agriculture, Water and the Environment Measures No. 4) Regulations 2020.

 

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 certain activity administered by the Department of Agriculture, Water and the Environment (the department).

 

New table item 419 establishes legislative authority for government spending on the National Environmental Science Program (the Program).

 

The Program is a long-term commitment by the Government to environment and climate research. It was formed as a result of an amalgamation of the National Environmental Research Program and the Australian Climate Change Science Programme in the 2014-15 Budget. Phase 1 of the Program provided grant funding of $145 million over six years from 2015-16 to six themed research hubs and projects to address emerging environmental research needs.

 

Phase 2 of the Program will provide $149 million over seven years from 2020-21 to fund applied environmental science to support decision makers from across the Australian community, including Indigenous communities, achieve positive environmental, social and economic outcomes. The Program provides the evidence base for the design, delivery and on-ground monitoring of the Government's core environmental commitments and the basis for long-term environmental programs.

 

The Program will consist of four multi-disciplinary research hubs or consortia hosted by Australian research institutions with national capability and be delivered where appropriate through regional nodes. For each dollar granted by the Government, applications are expected to generate a matching or greater co-investment (cash or in-kind) by participating research hubs.

 

The Program will deliver applied scientific knowledge, decision tools and practical management options to support environmental commitments made by all levels of government and other end users.

 

The Program will directly support:

*         the delivery of practical science to support decision makers to build resilience in Australia's natural environment and communities;

*         development of collaborative partnerships between public and private sector stakeholders as well as Indigenous communities to maximise benefits for all Australians and their local environments;

*         management of Australia's unique environmental assets including protected estate such as the Great Barrier Reef and Kakadu National Park as well as threatened and migratory species and ecological communities;

*         environmental assessment of development proposals under Commonwealth, state and territory regulations including by providing information on frequently triggered species and other matters;

*         understanding of the impact of plastic and other waste material on Australia's natural ecosystems to support action to improve environmental outcomes;

*         better understanding of past, present and future climate to improve climate modelling and information delivery to inform adaptation planning for resilient regional and urban communities; and

*         the transition of new collection, monitoring and modelling capabilities from research to practical management tools including via targeted investment into eDNA, biogenomics, predictive modelling systems, artificial intelligence and machine learning.

 

A key additional element of the Program will be the capture of knowledge into national information repositories to ensure research outputs are easily accessible to all stakeholders and reusable to support multiple future end user requirements.

 

The Program will also support the development of critical human capital within the science community and related soft infrastructure through:

*         a requirement to invest in Indigenous research capability including in remote communities as appropriate;

*         targeted investment in early to mid-career researchers to grow Australia's scientific capability including Science, Technology, Engineering and Mathematics (STEM) skills; and

*         actively fostering partnerships between researchers, end users and local communities to establish trust and promote open engagement across different stakeholder groups.

 

The intended outcomes of the Program are:

*         credible peer reviewed, timely research that is used by decision makers to answer questions and develop solutions to problems;

*         research findings and practical guidance for decision makers, stored in a manner that is discoverable and accessible, and where appropriate integrated into end users' databases and decision support tools; and

*         enhanced environmental science and research capability amongst researchers, end users and Indigenous Australians.

 

This grant opportunity will be administered by the Community Grants Hub using a targeted competitive grants process. The Community Grants Hub's grants administration, governance arrangements and risk management framework adhere to the Commonwealth Grants Rules and Guidelines 2017 (CGRGs) and whole-of-government grants administration requirements.

 

The Program will provide grants to four themed research hubs with regional nodes to provide proximity both to systems of study and key research end users. The four thematic research hubs will conduct applied research within their specific domains and support four cross-cutting missions delivering management options focused on:

*         threatened and migratory species and ecological communities;

*         protected places;

*         waste impact management; and

*         climate adaptation.

 

While applications are sought from collaborative, multi-disciplinary and multi-institution/organisation consortia or groups, the lead applicant must be an Australian research institution that is capable of administering research funds, has a clearly established track record of managing research, and can be accountable for the performance and quality of the research.

 

The maximum grant period is seven years. Funding will be available to hubs from the second half of 2020. Initial funding will be for a planning phase in the 2020-21 financial year. Research activities are expected to commence from mid-2021 and must cease by 31 December 2026. The remaining six months of hub funding through to June 2027 will be devoted to final reporting and evaluation activities.

 

Information about the Program is available at www.communitygrants.gov.au and on GrantConnect at www.grants.gov.au. This includes grant opportunity guidelines containing assessment and eligibility criteria which were published on 27 March 2020.

 

The department will be responsible for assessing program applications to ensure they represent efficient, effective, economical and ethical use of Commonwealth resources as required by the Public Governance, Performance and Accountability Act 2013 (PGPA Act), and whether any specific requirements will need to be imposed as a condition of funding.

 

The Minister for the Environment (the Minister) will be responsible for determining successful applicants based on recommendations from an assessment panel. The department may engage independent scientific experts to assist panels with the assessment of applications if required. The Minister's delegate will then be responsible for the final decisions about the Commonwealth expenditure. Information about these decisions will be available on the departmental website at https://www.environment.gov.au/science/nesp/ and GrantConnect website.

 

The Minister's decision is final in all matters, including:

*         the approval of the grant; and

*         the grant funding amount to be awarded.

 

There is no appeal mechanism for decisions to approve or not approve a grant.

 

This Program will be subject to the requirements of the Commonwealth resource management framework, including the PGPA Act and the CGRGs.

 

The Program is an eligibility-based grants program assessed against the criteria in the grant opportunity guidelines which are publicly available. Merits review of the program decisions would not be appropriate because these decisions relate to the allocation of a finite resource between competing applicants and an allocation that has already been made to another party 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 items 4.11 to 4.14 of the document What decisions should be subject to merit review?).

 

In addition, the review and audit process undertaken by the Australian National Audit Office also provides a mechanism to review government spending decisions and report any concerns to 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 of 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.

 

Broad consultation on a future Program was undertaken in 2019, including a large public survey with over 200 responses, as well as with the Indigenous Advisory Committee and the Threatened Species Scientific Committee. The public survey included responses from researchers (in and outside of current hubs), current hub staff, environmental decision makers and members of the general public.

 

Responses were overwhelmingly positive and constructive leading to several outcomes, including:

*         increased engagement between researchers, research users and program managers;

*         increased focus on building trusted relationships with traditional owners, which is critical to Indigenous inclusion in environmental research; and

*         explicit mechanisms to incentivise transdisciplinary research and overcome barriers to collaboration.

A summary of the responses to the public survey is available at https://www.environment.gov.au/science/nesp/nesp-consultation.

 

Funding for this item will come from Program 1.2: Environmental Information and Research, which is part of Outcome 1. Details are set out in the Portfolio Additional Estimates Statements 2019-20, Agriculture, Water and Environment Portfolio at page 57.

 

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 external affairs power (section 51(xxix)); and

*         the express incidental power and the executive power (sections 51(xxxix) and 61), including the nationhood aspect.

 

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 obligations under treaties to which it is a party.

 

Australia has obligations under the Convention on Biological Diversity [1993] ATS 32, including Articles 6 and 12.

 

Article 6 obliges each Contracting Party to develop national strategies, plans or programs for conservation and sustainable use of biological diversity, or to adapt existing strategies etc for this purpose, and to integrate conservation and sustainable use of biological diversity into plans, programs and policies.

 

Article 12 obliges Contracting Parties to:

*         establish and maintain programs for scientific and technical education and training in measures for the identification, conservation and sustainable use of biological diversity;

*         promote and encourage research which contributes to the conservation and sustainable use of biological diversity; and

*         promote and cooperate in the use of scientific advances in biological diversity research in developing methods for conservation and sustainable use of biological diversity.

 

Australia also has obligations under the United Nations Framework Convention on Climate Change [1994] ATS 2, including Articles 4(1)(b) and 4(1)(g).

 

Article 4(1)(b) obliges Parties to formulate, implement, publish and regularly update national and, where appropriate, regional programs containing measures to mitigate climate change by addressing anthropogenic greenhouse gas emissions, and measures to facilitate adaptation to climate change.

 

Article 4(1)(g) obliges Parties to promote and cooperate in research, systematic observation and development of data archives related to the climate system and intended to further the understanding and reduce or eliminate uncertainties regarding the causes, effects, magnitude and timing of climate change and the economic and social consequences of various response strategies.

 

The Program will support environmental research, the enhancement of environmental research capabilities and the development, communication and accessibility of environmental research findings. One of the research hubs will specifically focus on delivering long-term science into climate processes and targeted adaptation and decision support tools.

 

Executive power and 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 extends to a range of matters, including activities that form part of the ordinary and well-recognised functions of government and activities that are peculiarly adapted to the government of the nation and cannot otherwise be carried out for the benefit of the nation.

 

A primary purpose of the Program is to enable Australian Government decision making and policy development in environmental matters to be informed by the best available science and research. Information gathering of this nature is an ordinary and well-recognised function of government. Another purpose of the Program is to support nationally significant environmental research for the benefit of the nation.

 

 

 

 

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 (Agriculture, Water and the Environment Measures No. 4) Regulations 2020

 

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 (Agriculture, Water and the Environment Measures No. 4) Regulations 2020 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on the National Environmental Science Program (the Program).

 

The Program is a long-term commitment by the Government to environment and climate research. It was formed as a result of an amalgamation of the National Environmental Research Program and the Australian Climate Change Science Programme in the 2014-15 Budget. Phase 1 of the Program provided grant funding of $145 million over six years from 2015-16 to six themed research hubs and projects to address emerging environmental research needs.

 

Phase 2 of the Program will provide $149 million over seven years from 2020-21 to fund applied environmental science to support decision makers from across the Australian community, including Indigenous communities, achieve positive environmental, social and economic outcomes. The Program provides the evidence base for the design, delivery and on-ground monitoring of the Government's core environmental commitments and the basis for long-term environmental programs.

 

The Program will directly support:

*         the delivery of practical science to support decision makers to build resilience in Australia's natural environment and communities;

*         development of collaborative partnerships between public and private sector stakeholders as well as Indigenous communities to maximise benefits for all Australians and their local environments;

*         management of Australia's unique environmental assets including protected estate such as the Great Barrier Reef and Kakadu National Park as well as threatened and migratory species and ecological communities;

*         environmental assessment of development proposals under Commonwealth, state and territory regulations including by providing information on frequently triggered species and other matters;

*         understanding of the impact of plastic and other waste material on Australia's natural ecosystems to support action to improve environmental outcomes;

*         better understanding of past, present and future climate to improve climate modelling and information delivery to inform adaptation planning for resilient regional and urban communities; and

*         the transition of new collection, monitoring and modelling capabilities from research to practical management tools including via targeted investment into eDNA, biogenomics, predictive modelling systems, artificial intelligence and machine learning.

 

A key additional element of the Program will be the capture of knowledge into national information repositories to ensure research outputs are easily accessible to all stakeholders and reusable to support multiple future end user requirements.

 

The Program will also support the development of critical human capital within the science community and related soft infrastructure through:

*         a requirement to invest in Indigenous research capability including in remote communities as appropriate;

*         targeted investment in early to mid-career researchers to grow Australia's scientific capability including Science, Technology, Engineering and Mathematics (STEM) skills; and

*         actively fostering partnerships between researchers, end users and local communities to establish trust and promote open engagement across different stakeholder groups.

 

The intended outcomes of the Program are:

*         credible peer reviewed, timely research that is used by decision makers to answer questions and develop solutions to problems;

*         research findings and practical guidance for decision makers, stored in a manner that is discoverable and accessible, and where appropriate integrated into end users' databases and decision support tools; and

*         enhanced environmental science and research capability amongst researchers, end users and Indigenous Australians.

 

The Program will consist of four multi-disciplinary research hubs or consortia hosted by Australian research institutions with national capability and be delivered where appropriate through regional nodes.

 

The Minister for the Environment has responsibility for the Program administered by the Department of Agriculture, Water and the Environment.

 

Human rights implications

 

This disallowable legislative instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

 

This disallowable legislative instrument is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance