New guidance released for the administration of grants

In September 2022, the New South Wales Department of Premier & Cabinet (DPC) released the M2022-07 Grants Administration Guide (Guide). The Guide provides principles-based guidance on how the NSW Government creates, offers and manages grants opportunities and compliance is mandatory across government.

Compliance with the previous guidance was not mandatory – that has changed. The new Guide includes mandatory obligations that must be followed. It is also over 50 per cent longer than its predecessor and more comprehensive. In this article, we outline some of the key concepts and principles to be aware of going forward.

Why is there a new guide?

The new Guide follows an extensive review process that commenced in 2021 and was completed in around April 2022. In November 2021, DPC announced a review of grants administration in NSW, to be led by Productivity Commissioner Peter Achterstraat AM. The purpose of the review was to “deliver value for money for the NSW taxpayer by ensuring that the administration, assessment and assurance of grants programs in NSW is in line with best practice” and produce an updated guide. The NSW Government spends an average of $4 billion every year on grants, an amount which increases during times of natural distaster. The review was announced amidst hearings by the Independent Commission Against Corruption into the activities of the former Berejiklian Government and allegations of conflicts of interest, and followed criticism by the Public Accountability Committee of improper use and lack of transparency in NSW grants programs.

The Commissioner delivered his report in April 2022 and made 19 recommendations, each of which was supported and endorsed by the NSW Government. The first recommendation was to issue and adopt the new draft grants administration guide, which was prepared and included in the report.

What is a ‘grant’ for the purposes of the Guide?

The Guide adopts a definition of ‘grant’ (absent from the previous guidance) as an arrangement for the provision of financial assistance by or on behalf of the NSW Government whereby money (a) is paid to a grantee other than the NSW Government, (b) is intended to help address one or more of the NSW Government’s policy outcomes, (c) is intended to assist the grantee to achieve its objectives, and (d) does not result in the return of goods or services by the grantee of an equivalent value to the NSW Government (i.e. it is a non-reciprocal exchange).

What does the new Guide say?

The previous grants guidance provided an outline of the grants administration life cycle and sought to provide tools and good practices that program administrators could use.

The Guide adopts a principles-based approach (supported by certain mandatory requirements) and is built around the following key requirements:

  1. robust planning and design – effective planning before the grant opportunity commences ensures fair, effective and transparent administration that meet identified needs and provides value for money. Planning should also consider if a grant is the best means of achieving the set objectives (as opposed to direct service provision, for example)
  2. collaboration and partnership – collaboration, partnership and the interaction of grants (and grant management) with other government and non-government funded activities and parties is recognised as an important part of effective grants administration. For this reason, the Guide emphasises consultation, co-design and co-operation, not just at the outset of a grant, but during its lifecycle
  3. proportionality – the Guide acknowledges that scale and complexity vary between grants, and that this means the processes and management of those grants need to be tailored. This means that when developing the grant framework (such as guidelines, application processes or reporting), officials need to consider areas like the capabilities of grant applicants, the policy goals, the grant value and the level of risk. The documented grant management processes should then be balanced against and in proportion to these factors
  4. outcomes orientation – grants are outcomes-oriented, and the Guide recognises that there should be a focus on achieving those outcomes in a manner consistent with government objectives. It refers users to TPP 18-06 NSW Government Business Case Guidelines and its recommendations for documenting objectives, the connection between inputs and benefits, and the importance of planning. The Guide encourages officials to work with grantees to ensure there is a common understanding of the grant goals
  5. achieving value for money – this is a key consideration throughout the grant’s lifecycle. While determining ‘value’ can sometimes be difficult and will differ between grants, the Guide provides recommendations on how officials can ensure their grants deliver value. These recommendations reflect the preceding principles, around good design, collaboration and proportionality, as well as promoting the ethical use of public resources, maintaining flexibility and actively monitoring the use of grant funding (including through appropriate data collection). The Guide again points users to existing guidance in TPP 17-03 NSW Government Guide to Cost-Benefit Analysis, which requires a cost-benefit analysis for new grants over a certain value
  6. governance and accountability – unsurprisingly, given the context in which the new Guide emerged, the Guide makes clear that ministers, officials, agencies and grantees all need to be accountable for their role in the administration of any grants. Again, the Guide drives this point home by emphasising the practical measures that can be implemented to deliver good governance, including well-drafted grant agreements. There is an emphasis on individual responsibility too, noting that program guidelines need to to clearly set out who is responsible for what in connection with the grant and to identify the key decision-makers. Each of these individuals needs to be appropriately skilled and experienced
  7. probity and transparency – finally, the Guide addresses itself to the issue of probity, being focused on ethical behaviour and transparency, and the importance of ensuring the process of grants administration is open to scrutiny. The Guide stresses that grants decisions need to be impartial, documented and published. Acknowledging the concerns around pork-barrelling, the Guide points to the importance of decisions being both lawful and publicly defensible and lawful. The associated administration processes need to have strong safeguards against unlawful or inappropriate conduct, and guard against actual and perceived conflicts of interest. These measures are critical to ensuring the primacy of the public interest within grants processes, and preserving public confidence.

Additional key (mandatory) requirements from the Guide include:

  • that all grant applications are administered in accordance with the grant guidelines
  • if a competitive, merit-based selection process is not to be undertaken, then the use of an alternative method must be documented and explained, with appropriate approvals
  • how a grant program will deliver value for money must be demonstrated early, at the planning and design phase, having regard to the value and risk of the grant
  • any input from ministers, members of parliament, and any other stakeholders should be documented as part of the process
  • If a minister is the decision maker, written advice must be provided to the minister by officials
  • decision makers must record their decisions in writing, including the reasons and why they departed from any official recommendations
  • certain information regarding grants – such as upcoming opportunities, awardings, discretionary decisions and program evaluations – must be published on the NSW Government’s Grants and Funding Finder website.

When and to who does the Guide apply?

The Guide applies prospectively to all grants activities undertaken from 19 September 2022. This includes activities in connection with grant programs that may have already been underway before that date.

While all parties involved in grants administration are encouraged to follow the Guide, compliance is mandatory for ministers, officials (i.e. government sector employees) and ministerial staff. Agencies and ministerial offices must ensure their grants practices and procedures are consistent with the Guide and in particular, the mandatory requirements in Part 6. Part 3 of the Guide provides a helpful summary of the different responsibilities for each group.

While the Guide does not apply to local governments or state-owned corporations, if those entities administer grants on the Government’s behalf, they must be satisfied that the relevant grant practices and procedures are consistent with the Guide.

The Guide replaces the previous guidance, C2010-16 Good Practice Grants Administration, and will be reviewed in 2024.

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Practice and Courts

Decisions reserved NSW Court of Appeal

The Court of Appeal maintains a list of matters before the Court for which judgment is reserved (December 2 2022). Read more here.

AAT Bulletin Issue No. 14/2022

The AAT Bulletin is a publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. The Bulletin occasionally includes information on legislative changes that affect the AAT and other important developments (November 28 2022). Read more here.

Publications – articles, papers and reports

Call for submissions – Independent Review of SafeWork NSW

The NSW Government is calling for submissions in respect of an Independent Review of SafeWork NSW for certain matters identified in the Terms of Revenue. Interested members of the public and organisations are invited to make written submissions by the 28 February 2023 4pm (December 2 2022). Read more here.

Own it and Act: Strategic Framework

The Own it and Act strategic frameworks forms the basis of future strategic litter grant programs. It requires the best practice of organisations – to embed litter prevention principles, policies and practices into business-as-usual operations (December 6 2022). Read more here.

NSW Litter Prevention Strategy 2022-30

This provides an outline of the NSW Litter Prevention Strategy 2022-30 that builds on the foundation of an already effective strategic approach (December 5 2022). Read more here.

NSW Illegal Dumping Prevention Strategy 2022-27

The NSW Illegal Dumping Prevention Strategy 2022-27 buildings on the foundation of previous successful illegal dumping strategies 2014-16 and 2017-21 (December 5 2022). Read more here.

Guide to understanding inpatient mental health admissions for children and adolescents

This guide provides some understanding to inpatient mental health admissions for children and adolescents. This is for those people who are currently involved, or may become involved in caring for a child or adolescent experience mental ill-health (December 5 2022). Read more here.

Cases

FGU v Northern Sydney Local Health District [2022] NSWCATAD 390

ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 – administrative review of a reviewable decision – application for summary dismissal. Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Health Records and Information Privacy Act 2002 (NSW); Privacy and Personal Information Protection Act 1998 (NSW).

Transport for NSW v Registrar-General of NSW [2022] NSWSC 1660

LAND LAW – community title – community scheme – where resuming authority seeks orders restructuring a community scheme – whether resuming authority has notified interested persons of orders sought – whether unit entitlements should be adjusted – where orders made for adjustment. Community Land Development Act 2021 (NSW); Community Land Development Act 1989 (NSW); Corporations Act 2001 (Cth); Uniform Civil Procedure Rules 2005 (NSW).

Health Care Complaints Commission v McPherson [2022] NSWCATOD 158

PROFESSIONS AND TRADES – health care professional – nursing – where practitioner admits he is guilty of unsatisfactory professional conduct and professional misconduct – appropriate protective orders Health Practitioner Regulation National Law (NSW); Mental Health Act 2007 (NSW).

New South Wales Aboriginal Land Council – Little Bay v Minister Administering the Crown Land Management Act [2022] NSWLEC 142

ABORIGINAL LAND RIGHTS – s 36(1)(b) of Aboriginal Land Rights Act 1983 (NSW) – whether land claimable Crown land – claimed land leased to Surf Life Saving Sydney – whether part of claimed land was lawfully used or occupied – claim limited to open space curtilage area surrounding building – whether claimed land should be treated as single unit of separate divisible areas – appeal upheld. Aboriginal Land Rights Act 1983 (NSW); Conveyancing Act 1919 (NSW); Crown Land Management Act 2016 (NSW).

Issa v Commissioner for Fair Trading [2022] NSWCATOD 159

ADMINISTRATIVE LAW – Home building – Application for contractor licence – a “wide range of building construction work” – application of Instrument – experience which is considered relevant – whether applicant satisfied criterion – whether applicant is capable of doing or supervising work for which a contractor licence is required. Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW); Licensing and Registration (Uniform Procedures) Act 2002 (NSW).

Environment Protection Authority v Pullinger [2022] NSWLEC 143

ENVIRONMENTAL OFFENCES: defendant charged with breach of clean-up notice offence in summons – whether summons was duplicitous – whether the activity the subject of the offence as charged constitutes a continuing offence – whether the activity the subject of the offence as charged constitutes a single criminal enterprise – summons not bad for duplicity. Protection of the Environment Operations Act 1997 (NSW).

Commissioner for Fair Trading v Jonval Builders Pty Ltd (No 3) [2022] NSWSC 1641

CIVIL PROCEDURE – Construction of Civil Procedure Act 2005 (NSW), s 101 – calculation of post judgment interest – meaning of “unpaid” – where orders required defendants to pay named consumers who were not parties – where conditional stay ordered on payment of judgment sum into court by specified dates – where money paid into court but conditions not satisfied – where payment of judgment sum to consumers ordered after appeal dismissed – where calculation and payment of post judgement interest disputed – judgment remained unpaid until payments made to consumers. Civil Procedure Act 2005 (NSW); Fair Trading Act 1987 (NSW); Uniform Civil Procedure Rules 2005 (NSW); Court Suppression and Non-publication Orders Act 2010 (NSW).

Busutel v Commissioner of Police, NSW Police Force [2022] NSWCATAD 384

Administrative Law – Firearms licence refusal – fit and proper person – public interest – traffic offences Civil and Administrative Tribunal Act 2013; Administrative Decisions Review Act 1997 (NSW); Firearms Act 1996 (NSW).

Spedding v State of New South Wales [2022] NSWSC 1627

TORTS – malicious prosecution – whether prosecutor acted without reasonable and probable cause – whether prosecutor did not honestly form the view that there were proper cases for prosecution or whether the prosecutor formed that view on an insufficient basis. TORTS – malicious prosecution – whether prosecutor acted maliciously – whether the sole or dominant purpose of the prosecutor was other than the proper invocation of the criminal law. Bail Act 2013 (NSW); Civil Liability Act 2002 (NSW); Costs in Criminal Cases Act 1967 (NSW); Crimes (Appeal and Review) Act 2001 (NSW); Criminal Procedure Act 1986 (NSW); Director of Public Prosecutions Act 1986 (NSW); Law Reform (Vicarious Liability) Act 1983 (NSW); Limitation Act 1969 (NSW); Surveillance Devices Act 2007 (NSW); Uniform Civil Procedure Rules 2005 (NSW).

Burton v Director of Public Prosecutions [2022] NSWCA 242

CONSTITUTIONAL LAW – Commonwealth Constitution – implied freedom of political communication – Section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) – Section 105 prohibits the publication or broadcasting of the name of a child only where connected to care proceedings or procedures under the State’s child welfare system – relevant child or young person may consent to publication or broadcasting from 16 years of age onwards – Section 105 imposes a not insignificant but limited burden on the implied freedom – purpose of s 105 of protecting privacy is legitimate – burden on the freedom is justified – Section 105 not invalid for breach of the implied freedom. COVID-19 – no discrimination in unvaccinated appellants having to appear by audio-visual link in circumstances where they had not sought exemption from policy, and manner of appearance made no difference in any event Adoption Act 2000 (NSW); Children and Young Persons (Care and Protection) Act 1998 (NSW); Children (Criminal Proceedings) Act 1987 (NSW); Commonwealth Constitution; Court Suppression and Non-publication orders Act 2010 (NSW); Crimes (Domestic and Personal Violence) Act 2007 (NSW).

SafeWork NSW v MMP Industrial Pty Ltd [2022] NSWDC 581

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker. SENTENCING – objective seriousness – deterrence – aggravating factors – mitigating factors –penalty SENTENCING PRINCIPLES – good prospects of rehabilitation – remorse – plea of guilty – assistance to law enforcement authorities. Crimes (Sentencing Procedure) Act 1999 (NSW); Fines Act 1996 (NSW); Work Health and Safety Act 2011 (NSW).

Legislation

Legislation

NSW Legislation

Proclamations commencing Acts

Children's Guardian Amendment (Child Safe Scheme) Act 2021 No 30 – published LW 2 December 2022

Crimes Legislation Amendment (Coercive Control) Act 2022 No 65 – published LW 30 November 2022

Security Industry Amendment Act 2022 No 52 – published LW 2 December 2022

Regulations and other miscellaneous instruments

Child Protection (Working with Children) Amendment (Miscellaneous) Regulation (No 3) 2022 – published LW 30 November 2022

Children’s Guardian Amendment (Child Employment) Regulation 2022 – published LW 2 December 2022

Electoral Funding (Adjustable Amounts) (Administrative Funding) Notice 2022 – published LW 2 December 2022

Fair Trading Amendment (Information Sharing) Regulation 2022 – published LW 2 December 2022

Industrial Relations Commission Rules 2022 – published LW 2 December 2022

Security Industry (Transitional Provisions) Amendment Regulation 2022 – published LW 2 December 2022

Biodiversity Conservation Amendment (Bushfire-Affected Development) Regulation 2022 – published LW 25 November 2022

Births, Deaths and Marriages Registration Amendment (Digital Certificates) Regulation 2022 – published LW 25 November 2022

Environmental Planning and Assessment Amendment (Miscellaneous) Regulation (No 2) 2022 – published LW 25 November 2022

Final Determination – published LW 25 November 2022

Final Determination – published LW 25 November 2022

Final Determination – published LW 25 November 2022

Final Determination – published LW 25 November 2022

Final Determination – published LW 25 November 2022

Government Advertising Amendment (Exemptions) Regulation 2022 – published LW 25 November 2022

Human Tissue Amendment (Blood Donor Certificate) Regulation 2022 – published LW 25 November 2022

Motor Accident Guidelines – Version 9 – 25 November 2022 – published LW 25 November 2022

National Electricity (New South Wales) Amendment (Regulated Stand-Alone Power Systems) Regulation 2022 – published LW 25 November 2022

National Energy Retail Law (Adoption) Amendment Regulation 2022 – published LW 25 November 2022

Police Amendment Regulation 2022 – published LW 25 November 2022

Roads Amendment (Toll Relief Rebate) Regulation 2022 – published LW 25 November 2022

Rock Fishing Safety (Declared Areas) Amendment Order 2022 – published Gazette No 551 of 25 November 2022

Environmental Planning Instruments

Bayside Local Environmental Plan 2021 (Amendment No 1) – published LW 2 December 2022

Canada Bay Local Environmental Plan 2013 (Amendment No 24) – published LW 2 December 2022

Canada Bay Local Environmental Plan 2013 (Map Amendment No 2) – published LW 2 December 2022

Lake Macquarie Local Environmental Plan 2014 (Map Amendment No 7) – published LW 2 December 2022

Parramatta Local Environmental Plan 2011 (Map Amendment No 3) – published LW 2 December 2022

Shoalhaven Local Environmental Plan 2014 (Amendment No 49) – published LW 2 December 2022

Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2022 – published LW 30 November 2022

State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Wilton Growth Area) 2022 – published LW 2 December 2022

State Environmental Planning Policy (Transport and Infrastructure) Amendment (Land Use Zones) 2022 –published LW 30 November 2022

State Environmental Planning Policy Amendment (Miscellaneous) (No 2) 2022 – published LW 2 December 2022

Sydney Local Environmental Plan 2012 (Amendment No 77) – published LW 2 December 2022

Sydney Local Environmental Plan Amendment (Moore Park) 2022 – published LW 2 December 2022

The Hills Local Environmental Plan 2019 (Amendment No 30) – published LW 2 December 2022

Bills assented

Medicines, Poisons and Therapeutic Goods Act 2022 No 73 – assented to 28 November 2022

Privacy and Personal Information Protection Amendment Act 2022 No 74 – assented to 28 November 2022

Government Sector Audit and Other Legislation Amendment Act 2022 No 75 – assented to 28 November 2022

Government Sector Employment Amendment Act 2022 No 76 – assented to 28 November 2022

Integrity Legislation Amendment Act 2022 No 77 – assented to 28 November 2022

Motor Accident Injuries Amendment Act 2022 No 78 – assented to 28 November 2022

Point to Point Transport (Taxis and Hire Vehicles) Amendment Act 2022 No 79 – assented to 28 November 2022

NSW Reconstruction Authority Act 2022 No 80 – assented to 28 November 2022

Fisheries Management Amendment (Enforcement Powers) Act 2022 No 64 – assented to 22 November 2022

Crimes Legislation Amendment (Coercive Control) Act 2022 No 65 – assented to 23 November 2022

Commonwealth Legislation

Narcotic Drug (Licence Charges) Act 2016 6/12/2022 Act No. 75 of 2016 as amended

Tertiary Education Quality and Standards Agency Act 2011 5/12/2022 Act No. 73 of 2011 as amended

Veterans’ Entitlements Act 1986 2/12/2022 Act No. 27 of 1986 as amended

Competition and Consumer Act 2010 2/12/2022 Act No. 51 of 1974 as amended

Aged Care Act 1997 1/12/2022 Act No. 112 of 1997 as amended

Criminal Code Act 1995 22/11/2022 Act No. 12 of 1995 as amended

Bills

Commonwealth Electoral Amendment (Banning Dirty Donations) Bill 2022 24 November 2022

Treasury Laws Amendment (2022) Measures No. 4) Bill 2022 23 November 2022

Treasury Laws Amendment (Modernising Business Communications and Other Measures) Bill 2022 23 November 2022

Customs Amendment (Banning Goods Produced by Forced Labour) Bill 2022 23 November 2022