Details of the Financial Framework (Supplementary Powers) Amendment (Foreign Affairs and Trade Measures No. 1) Regulations 2018

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Foreign Affairs and Trade Measures No. 1) Regulations 2018.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after they are 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 two new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on activities that will be administered by the Department of Foreign Affairs and Trade (the department).

 

New table item 281 establishes legislative authority for government spending to support Papua New Guinea (PNG) to strengthen information and communications (ICT) security preparedness for hosting Asia-Pacific Economic Cooperation 2018 (APEC 2018). 

APEC is a regional economic forum established in 1989 to leverage the growing interdependence of the Asia-Pacific region.  APEC's 21 members aim to create greater prosperity for the people of the region by promoting balanced, inclusive, sustainable, innovative and secure growth and by accelerating regional economic integration.

 

Government funding will also contribute to enhancements to PNG's cyber security capabilities.  The department will engage specialist expertise to support PNG to:

*         establish cyber security governance frameworks through the provision of best-practice cyber security guidance, development of day-to-day technical policies and procedures, and crisis management arrangements;

*         implement cyber security controls in new and existing infrastructure through configuration of APEC related networks and infrastructure, installation of complex controls, provision of specialised equipment and software, training, and ongoing supervision of PNG cyber security professionals during APEC 2018.  Post APEC 2018, the specialists will assist to install, reconfigure and maintain controls in priority ICT infrastructure;

*         monitor threats and controls through establishment of a Cyber Security Operations Centre (CSOC).  Once cyber security controls are in place, the CSOC will assist PNG to monitor controls to scan for threats and respond to incidents on a day-to-day basis.  Post APEC 2018, the funding and management of the CSOC would initially transition to a co-funded arrangement, with PNG taking over full responsibility in the long term; and

*         enhance PNG's Computer Emergency Response Team through the provision of specialised equipment and software, and training to enhance and maintain operational capacity.

 

Funding of $14.4 million was included in the 2018-19 Budget as part of the measure 'Assistance to Papua New Guinea for hosting APEC 2018' for a period of four years commencing in 2018-19.  Details are set out in Budget 2018-19, Budget Measures, Budget Paper No. 2 2018-19 at pages 101 to 102. 

 

The department will undertake targeted procurement of specialist contractors and provide non-competitive grants to organisations with expertise in cyber security.  These processes will be conducted in accordance with the Commonwealth Procurement Rules and the Commonwealth Grants Rules and Guidelines 2017 respectively. 

 

A departmental official as a delegate of the Secretary of the department will approve procurement and grant expenditure.  The department will enter into contracts and funding agreements that will contain funding conditions, key project deliverables and formal reporting mechanisms to measure performance, including the collection of qualitative and quantitative data to track progress against the deliverables.  Decisions on procurements and grants will not be subject to independent review as the department would be engaging specialised expertise under national security considerations. 

 

Funding for this item will come from Program 1.1: Foreign Affairs and Trade Operations, which is part of Outcome 1.  Details are set out in the Portfolio Budget Statements 2018-19, Budget Related Paper No. 1.8, Foreign Affairs and Trade Portfolio at pages 18 and 23.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the external affairs power (section 51(xxix)) of the Constitution.

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'.  The external affairs power supports legislation with respect to matters or things outside the geographical limits of Australia.

 

The measure is directed to strengthening the cyber security of PNG, including in connection with APEC 2018 to be held in PNG. 

 

New table item 282 establishes legislative authority for government spending to assist with travel expenses of the next of kin of deceased Australian victims and nominated support persons to observe or participate in the Dutch National Prosecution relating to the downing of Malaysia Airlines flight MH17.

 

On 5 July 2017, the Prime Minister, the Hon Malcolm Turnbull MP, and the Minister for Foreign Affairs, the Hon Julie Bishop MP, jointly announced Australia's support for the Dutch National Prosecution seeking accountability for those responsible for the downing of Malaysia Airlines flight MH17 on 17 July 2014 in Ukraine.  On 21 September 2017, the Minister for Foreign Affairs joined other Joint Investigation Team countries in signing the political memorandum of understanding to formally support the Dutch National Prosecution. 

 

Funding of $1.2 million was included in the 2018-19 Budget as part of the measure 'Australia's Participation in a Dutch National Prosecution of those responsible for downing Malaysia Airlines flight MH17' for a period of four years commencing in 2018-19.  Details are set out in Budget 2018-19, Budget Measures, Budget Paper No. 2 2018-19 at page 102. 

 

The activity will be implemented by the Department of Human Services (DHS) on behalf of the department.  The Australian Federal Police will support this activity by continuing to lead communications with the next of kin in regard to the prosecution.  Eligibility criteria for financial assistance for travel expenses will be specified in the Guidelines for payments to assist the family members of deceased Australians participating in the MH17 Dutch National Prosecution.  Further details of the support to be provided, including the policy guidelines, will be released on the DHS website at www.dhs.gov.au once the dates for the court proceedings have been announced.

 

Claims for assistance will need to be submitted to DHS for assessment and will be subject to claimants meeting all eligibility criteria.  Claimants will need to make their own travel bookings, including flights and accommodation, and will be required to retain original receipts for accommodation and/or flights as proof of attendance for a period of five years.

 

DHS will make payments directly to individuals.  A departmental official as a delegate of the Secretary of DHS will approve payments to successful claimants. 

 

Claimants who are not satisfied with decisions in relation to financial assistance for travel expenses may seek an independent review.  The claimant can request a review from an officer within DHS who has not been involved in the initial decision.  The reviewing officer will:

*         talk to the claimant about the decision where possible;

*         look at the facts, the law and policy;

*         change the decision if it is not correct; and

*         advise the claimant in writing about the result of the review.

 

If the matter cannot be determined at this level, DHS can refer the case to the department, in consultation with the AFP, under the Policy Query Process or Special Circumstances Case Provisions to be set out in the policy guidelines.  The department may then make a decision to amend the initial DHS decision.  Decisions will be communicated to claimants.

 

Funding for this item will come from Program 1.1: Foreign Affairs and Trade Operations, which is part of Outcome 1.  Details are set out in the Portfolio Budget Statements 2018-19, Budget Related Paper No. 1.8, Foreign Affairs and Trade Portfolio at pages 18 and 23.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the external affairs power (section 51(xxix)) of the Constitution.

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'.  The external affairs power supports legislation with respect to matters or things outside the geographical limits of Australia.

 

The funding relates to events and processes outside Australia, namely the downing of Malaysia Airlines flight MH17 in Ukraine and the Dutch National Prosecution of those responsible.  Financial assistance will be provided to support the next of kin of deceased Australians and nominated support persons to travel outside Australia to attend the Dutch National Prosecution in The Hague.

 

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 (Foreign Affairs and Trade Measures No. 1) Regulations 2018

 

These Regulations are 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 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 Regulations amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on two initiatives which will be administered by the Department of Foreign Affairs and Trade.

 

Funding will be provided:

*         to support Papua New Guinea's information and communications security preparedness for hosting the 2018 meeting of Asia-Pacific Economic Cooperation, and other enhancements to Papua New Guinea's cyber security capabilities; and

*         to assist with travel expenses of the next of kin of deceased Australian victims and nominated support persons to observe or participate in the Dutch National Prosecution relating to the downing of Malaysia Airlines flight MH17.

 

Funding for these initiatives was included in the 2018-19 Budget.

 

The Minister for Foreign Affairs has responsibility for these matters.

 

Human rights implications

 

The Regulations do not engage any of the applicable rights or freedoms.

 

Conclusion

 

These Regulations are compatible with human rights as they do not raise any human rights issues.

 

Senator the Hon Mathias Cormann

Minister for Finance