Financial Framework (Supplementary Powers) Amendment (Foreign Affairs and Trade Measures No. 2) Regulations 2024

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Finance

Financial Framework (Supplementary Powers) Act 1997

Financial Framework (Supplementary Powers) Amendment

(Foreign Affairs and Trade Measures No. 2) Regulations 2024

The Financial Framework (Supplementary Powers) Act 1997 (the FFSP Act) confers on the Commonwealth, in certain circumstances, powers to make arrangements under which money can be spent; or to make grants of financial assistance; and to form, or otherwise be involved in, companies. The arrangements, grants, programs and companies (or classes of arrangements or grants in relation to which the powers are conferred) are specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the Principal Regulations). The powers in the FFSP 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 Principal Regulations are exempt from sunsetting under section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015 (item 28A). If the Principal Regulations were subject to the sunsetting regime under the Legislation Act 2003, this would generate uncertainty about the continuing operation of existing contracts and funding agreements between the Commonwealth and third parties (particularly those extending beyond 10 years), as well as the Commonwealth’s legislative authority to continue making, varying or administering arrangements, grants and programs.

Additionally, the Principal Regulations authorise a number of activities that form part of intergovernmental schemes. It would not be appropriate for the Commonwealth to unilaterally sunset an instrument that provides authority for Commonwealth funding for activities that are underpinned by an intergovernmental arrangement. To ensure that the Principal Regulations continue to reflect government priorities and remain up to date, the Principal Regulations are subject to periodic review to identify and repeal items that are redundant or no longer required.

Section 32B of the FFSP Act authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Principal Regulations. Section 32B also authorises the Commonwealth to make, vary and administer arrangements for the purposes of programs specified in the Principal Regulations. Section 32D of the FFSP Act confers powers of delegation on Ministers and the accountable authorities of non-corporate Commonwealth entities, including subsection 32B(1) of the FFSP Act. Schedule 1AA and Schedule 1AB to the Principal Regulations specify the arrangements, grants and programs.

Section 65 of the FFSP Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Financial Framework (Supplementary Powers) Amendment (Foreign Affairs and Trade Measures No. 2) Regulations 2024 (the Regulations) amend Schedule 1AB to the Principal Regulations to establish legislative authority for Government spending on activities administered by the Department of Foreign Affairs and Trade (the department).

Funding is provided for the:

Falepili Union: Mobility with Dignity Program to deliver on Australia’s treaty obligations with respect to improving passport integrity and controls in Tuvalu (financial implications for this element are not for publication due to
commercial-in-confidence sensitivities); and
Marine Resources Initiative to provide practical support to build the resilience and capability of Southeast Asian countries to manage and protect their maritime domains and marine environments and uphold the principles of the 1982 UN Convention on the Law of the Sea ($40.0 million over four years from 2024-25).

Details of the Regulations are set out at Attachment A. A Statement of Compatibility with Human Rights is at Attachment B.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The Regulations commence on the day after registration on the Federal Register of Legislation.

Consultation

In accordance with section 17 of the Legislation Act 2003, consultation has taken place with the department.

A regulatory impact analysis is not required as the Regulations only apply to non‑corporate Commonwealth entities and do not adversely affect the private sector.

Attachment A

Details of the Financial Framework (Supplementary Powers) Amendment

(Foreign Affairs and Trade Measures No. 2) Regulations 2024

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. 2) Regulations 2024.

Section 2 – Commencement

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

Table item 681 – Falepili Union: Mobility with Dignity Program

New table item 681 establishes legislative authority for Government spending on the passport integrity improvement aspect of the Australia-Tuvalu Falepili Union (the treaty). The Mobility with Dignity Program (the program) aims to deliver on Australia’s treaty obligations with respect to improving passport integrity and controls in Tuvalu.

The core commitments set out in the treaty, which was signed on 9 November 2023 between Australia and Tuvalu, relate to security, including with respect to the impacts of climate change, and the creation of a special human mobility pathway to enable citizens of Tuvalu to live, work and study in Australia.

To support the implementation of the human mobility pathway, Tuvalu is obliged under the treaty to ensure that its immigration, passport, citizenship, and border controls are robust and meet international standards for integrity and security, and are compatible with, and accessible to, Australia. The objective of the program is to deliver on Australia’s treaty obligation with respect to improving passport integrity and controls in Tuvalu, which will protect Australia’s national security interests once the migration pathway is operational.

The program is delivered through a phased approach, comprising discovery, comprehensive planning, implementation and the identification of actions that improve Tuvalu’s management of passports, with a view to strengthening integrity, building staff capability and meeting the international standards for passports. The program incorporates critical improvements to systems, policies, and procedures necessary to enable passport services.

The program includes a broad range of activities across the implementation period to enable Tuvaluan citizens (passport holders) to enter Australia and access services. Subject-matter experts will analyse, design, develop and deliver an increase in capability through enhancements to technology, developing the skillset of Tuvaluan public servants responsible for passports, and improving processes to implement a best practice operating model.

A baseline assessment will be conducted to validate assumptions around the existing systems, security, legislation, policies, procedures, and capability and determine the necessary changes to strengthen Tuvaluan passports systems to provide a secure, robust, interoperable and functional passport service which meets international standards. In addition to delivering technical assistance and training, the program funds a range of activities and services including:

review of passport assessment, capture, lodgement, personalisation, compliance and fraud, hardware and software systems (including software licensing fees, server costs, IT practices, protocols and system maintenance);

legislative drafting services;

learning and development, and exchanges to enhance capability; and

engagement with international authorities and forums.

Funding amount and arrangements, merits review and consultation

Funding for the program was provided in the Mid-Year Economic and Fiscal Outlook 2023‑24 under the measure ‘Enhancing Pacific Engagement’ for a period of four years commencing 2024-25. Details are set out in the Mid-Year Economic and Fiscal Outlook 2023-24, Appendix A: Policy decisions taken since the 2023-24 Budget at page 249. Funding for this element is held in the Contingency Reserve pending finalisation of negotiations and implementation arrangements with the financial implications of this element not for publication while negotiations are finalised. It is the intent of the Government to inform the Parliament of the funding amount expected to be expended once contracts are awarded.

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 2024-25, Foreign Affairs and Trade at page 24.

The department intends to procure services to assist Tuvalu to ensure that its passport controls are robust and meet international standards for integrity and security and are compatible and accessible to Australia. Procurement processes will be conducted in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Commonwealth Procurement Rules (CPRs) and the Department’s Accountable Authority Instructions.

A range of procurement methods will be considered such as open and limited tenders or procurements under existing arrangements. The selection of procurement method will be dependent on the activity. Final spending decisions are made by the Secretary of the department or an appropriate delegate, including:

Australian Passport Office Executive Director (Senior Executive Service (SES) Band 2) financial delegation is to the limit of their divisional budget for a period of 10-year commitment;
SES Band 1 to the value $25.0 million for a period of commitment of 10 years; or
Executive Level 2 (EL 2) to the value of $3.0 million for a period of commitment of four years.

This is outlined in the department’s Public Governance, Performance and Accountability (DFAT Secretary to DFAT Officials) Delegation 2022 (No. 1) delegation instrument and applied in line with the PGPA Act and the Financial Framework (Supplementary Powers) Act 1997.

Procurement decisions are based on value for money, including capability and capacity to deliver, and price and risk considerations. The department undertakes a limited tender through appropriate panels if applicable (such as Digital Marketplace) or via open procurement on AusTender if required. Procurement outcomes are published on AusTender (www.tenders.gov.au), with information withheld only if specific commercial in confidence clauses are negotiated by the successful supplier (in which case the department will seek legal and procurement advice).

Procurement decisions made in connection with the program are not considered suitable for independent merits review, as they are decisions relating to the allocation of a finite resource, from which all potential claims for a share of the resource cannot be met. In addition, any funding already allocated would be affected if the original decision was overturned. The remaking of a procurement decision after entry into a contractual arrangement with a successful provider is legally complex, impractical, and could result in delays to assisting Tuvalu in accordance with our treaty obligation.

The Administrative Review Council (ARC) has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the ARC guide, What decisions should be subject to merit review?).

The Government Procurement (Judicial Review) Act 2018 enables suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. This legislation might provide an additional avenue of redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

Further, the right to review under section 75(v) of the Constitution and review under section 39B of the Judiciary Act 1903 may be available.

The department has a Complaints Handling Policy (available at https:www.dfat.gov.au/about-us/publications/complaint-handling-procedures-procurement) that sets out the process for responding to any procurement complaints received. This includes investigations to resolve the complaint by reaching a fair and independent view on the issues raised by the complainant. If the department finds a complaint has merit and the complainant has been inconvenienced or disadvantaged through their interactions with the department, an apology or other form of suitable remedy such as providing additional information, changing or reconsidering a decision or expediting action may be appropriate. If the complainant is still not satisfied with the response, they may seek an internal review of how the complaint was managed. If the complainant is still dissatisfied, the option to seek independent review is available from the Commonwealth Ombudsman or the Federal Court. In this case, all information about the complaint and proposed resolution must be provided by the department, when requested.

The review and audit process undertaken by the Australian National Audit Office also provides a mechanism to review the department’s 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.

Whole-of-government consultation on the program was undertaken as part of the Australia‑Tuvalu Falepili Union treaty negotiations. Consultation with the Government of Tuvalu will be undertaken as part of the discovery phase as well as throughout planning and implementation and the program’s transition to business as usual to ensure that the assistance provided by Australia is citizen centric and advances the interests of the Tuvaluan government and its people. Public consultation was not considered necessary or appropriate in relation to the program.

Constitutional considerations

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 (s 51(xxix)); and
the power to legislate with respect to the relations of the Commonwealth with the islands of the Pacific (s 51(xxx)).

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.

The spending for the Falepili Union: Mobility with Dignity Program will contribute to fulfilling Australia’s obligation under the treaty with respect to human mobility with dignity.

Pacific island relations power

Section 51(xxx) of the Constitution empowers the Parliament to make laws with respect to the ‘relations of the Commonwealth with the islands of the Pacific’. The treaty affects Australia’s relations with the islands of the Pacific, and Tuvalu in particular.

Table item 682 – Marine Resources Initiative

New table item 682 establishes legislative authority for Government spending on the Marine Resources Initiative (the initiative) to provide practical support to build the resilience and capability of Southeast Asian countries to manage and protect their maritime domains and marine environments, utilise blue (marine) economy resources and uphold the principles of the 1982 UN Convention on the Law of the Sea.

It expands and enhances the current pilot Marine Resources Initiative (2020-21 to 2023-24) through existing and new partnerships between Australian maritime and scientific agencies and their counterparts in maritime Southeast Asia.

The initiative provides government and institutional cooperation through practical maritime activities. These include skills development, training, and the sharing of technology for border protection, fisheries management, and marine science. Examples of partnerships include:

conservation of coral reefs through the Australian Institute for Marine Science;

maritime law enforcement and domain awareness through the Australian Border Force;

geospatial mapping through Geoscience Australia;

marine environmental governance through the Australian Centre for International Agricultural Research; and

marine protection through the Department of Climate Change, Energy, the Environment and Water.

Utilising Australia’s maritime expertise and resources leverages Australia’s technical capacity in maritime security and marine resource management, promoting long-term government-to-government cooperation and enhancing Australia’s reputation as a constructive partner.

Under the initiative, new projects will be developed in consultation with relevant Commonwealth agencies and reviewed and endorsed by a department steering committee. New projects will be selected following assessment based on value for money, capacity and capability to deliver (including technical expertise), and ability to engage effectively with partners in Southeast Asia. The department will manage the initiative to ensure projects contribute to the overall goals and meet the needs of partners.

The initiative will also engage with the private sector to deliver future projects, either alone or in partnership with Australian implementing agencies. The initiative will prioritise new activities that align with the objectives of the initiative and leverage domestic expertise, with a focus on maritime domain awareness, operational enforcement support, blue economy, and maritime leadership.

Funding amount and arrangements, merits review and consultation

On 4 March 2024, during the ASEAN-Australia Commemorative Summit, it was announced that the Australian Government would invest $64.0 million, including $40.0 million in new funding, to enhance Australia’s Southeast Asia Maritime Partnerships.

Funding of $40.0 million for the initiative was included in the 2024-25 Budget for the Southeast Asia Maritime Cooperations Programs component of the measure ‘Southeast Asia Engagement – additional funding’ for a period of four years commencing in 2024-25.

Funding for this item is ongoing beyond the forward estimates (at $10.0 million per year) and will come from Program 1.1: Foreign Affairs and Trade Operations, which is part of Outcome 1. Details are set out in the Foreign Affairs and Trade Portfolio Budget Statement 2024-25 at page 27.

All methods used to deliver the initiative are in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Commonwealth Procurement Rules (CPRs) the Commonwealth Grants Rules and Guidelines 2017 and the department’s Accountable Authority Instructions.

A range of procurement methods are used such as open and limited tenders, grants, or procurements under existing arrangements. The selection of procurement method depends on the activity. Following endorsement by a department steering committee (at SES Band 2 or SES Band 1 level), final spending decisions are effected by the appropriate financial delegate (including SES Band 1 with financial delegation up to $25.0 million or EL 2 with financial delegation up to $3.0 million) who have responsibility for the effective and efficient delivery of the initiative.

When required, information about grants made under the initiative will be made available on the GrantConnect website (www.grants.gov.au).

When applicable, the department will provide an opportunity for suppliers and tenderers to make complaints if they wish, and to receive feedback. These complaints and inquiries can be made at any time during the procurement process and will be handled in accordance with probity requirements. Information about the tender and the resultant contracts will be made available on AusTender (www.tenders.gov.au) once the contracts are signed. Procurement decisions will be based on value for money, including capability and capacity to deliver, and price and risk considerations.

Procurement decisions made in connection with regional maritime uplift are not considered suitable for independent merits review, as they are decisions relating to the allocation of a finite resource, from which all potential claims for a share of the resource cannot be met. In addition, any funding that has already been allocated would be affected if the original decision was overturned. The remaking of a procurement decision after entry into a contractual arrangement with a successful provider is legally complex, impractical, and could result in delays to providing services to platform users.

The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the ARC guide).

The department has a Complaints Handling Policy (available at https: www.dfat.gov.au/about-us/publications/complaint-handling-procedures-procurement) that sets out the process for responding to any procurement complaints received. This includes investigations to resolve the complaint by reaching a fair and independent view on the issues raised by the complainant. If the department finds a complaint has merit and the complainant has been inconvenienced or disadvantaged through their interactions with the department, an apology or other form of suitable remedy such as providing additional information, changing or reconsidering a decision or expediting action may be appropriate. If the complainant is still not satisfied with the response, they may seek an internal review of how the complaint was managed. If the complainant is still dissatisfied, the option to seek independent review is available from the Commonwealth Ombudsman or the Federal Court. In this case, all information about the complaint and proposed resolution must be provided by the department, when requested.

Whole-of-government consultation occurred in the development of the Southeast Asian Maritime Cooperation Program proposal. The department also engaged existing delivery partners and feedback received was used to inform the development of the proposal.

The department will undertake further consultation to design the initiative and continue to work with other government agencies and partners in Southeast Asia in implementing the Program. Public consultation was not necessary or appropriate in relation to this matter.

Constitutional considerations

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

Section 51(xxix) of the Constitution supports legislation with respect to matters concerning Australia’s relations with other nations. The initiative is intended to position Australia to be more responsive to immediate and emerging maritime needs, and better able to co-plan the development and delivery of maritime cooperation.

Attachment B

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. 2) Regulations 2024

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 FFSP Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the Principal 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 Principal Regulations specify the arrangements, grants and programs. The powers in the FFSP 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.

This disallowable legislative instrument inserts the following items into Part 4 of Schedule 1AB:

table item 681 ‘Falepili Union: Mobility with Dignity Program’; and
table item 682 ‘Marine Resources Initiative’.

New table item 681 – Falepili Union: Mobility with Dignity Program

New table item 681 establishes legislative authority for Government spending on the Falepili Union: Mobility with Dignity Program (the program) to deliver on Australia’s treaty obligations with respect to improving passport integrity and controls in Tuvalu.

On 9 November 2023 Australia and Tuvalu signed the Australia-Tuvalu Falepili Union (the treaty). The core commitments set out in the treaty relate to security, including with respect to the impacts of climate change, and the creation of a special human mobility pathway to enable citizens of Tuvalu to live, work and study in Australia. To support the implementation of the human mobility pathway, Tuvalu is obliged under the treaty to ensure that its immigration, passport, citizenship and border controls are robust and meet international standards for integrity and security and are compatible with, and accessible to, Australia. Australia is obliged by the treaty to assist Tuvalu to enable it to meet these obligations.

The objective of the program is to deliver on Australia’s treaty obligations with respect to improving passport integrity and controls in Tuvalu, which will protect Australia’s national security interests once the migration pathway is operational. A procurement program will be delivered through a phased approach over a four-year period, comprising discovery, implementation and the identification of actions that will improve Tuvalu’s management of passports, with a view to strengthening integrity, building staff capability and meeting the International Civil Aviation Organization (ICAO) specifications for passports.

Human rights implications

New table item 681 engages the following rights:

Right to freedom of movement in:
- Article 12 of the International Covenant on Civil and Political Rights (ICCPR), read with Article 2;
- Article 10 of the Convention of the Rights of the Child (CRC);
- Article 18 of the Convention on the Rights of Persons with Disabilities (CRPD);
- Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD); and
- Article 15 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Right to Privacy and Reputation in Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

Right to freedom of movement

Article 2 of the ICCPR requires State Parties to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR, without distinction of any kind, such as race, colour, language, religion, political or other opinion, national or social origin, property, birth or status.

Article 12 of the ICCPR provides that everyone shall be free to leave any country, including their own, and that no one shall be arbitrarily deprived of the right to enter his own country. These rights can be restricted under domestic law on any of the grounds in Article 12(3) of the ICCPR, namely national security, public order, public health or morals or the rights and freedoms of others. The right to freedom of movement is also reflected in Article 10 of the CRC, Article 18 of the CRPD and Article 5 of the CERD.

The CCPR General Comment No 27 on Article 12 (Freedom of Movement) notes that the freedom to leave any country involves the right to obtain a passport or other travel documents from a person’s country of citizenship. The program will promote the right to freedom of movement as it will enable Australia to assist Tuvalu deliver a robust, trusted passport system for Tuvalu that meets international standards, including ICAO specifications for passports.

Passports are internationally recognised official documents that show the identity and citizenship status of a person for the purpose of facilitating travel abroad. They are used by border and immigration authorities to help determine admissibility and legitimacy of travellers who wish to cross international borders and enter another country’s territory. They are also used by the issuing nation to grant re-entry into the country. A passport enables the holder to apply for a visa for those countries that require it upon entry, and allows the authority to annotate the travel document, and record entry and exit dates. The program will benefit citizens of Tuvalu who travel internationally, including those who take up the special mobility pathway under the treaty as it will help ensure that other countries have confidence in the integrity of Tuvaluan passports.

Right to privacy and reputation

Article 17 of the ICCPR provides that no one shall be subject to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on their honour and reputation.

Article 17(2) of the ICCPR provides that everyone has the right to protection of the law against such interference or attacks. The right to privacy and reputation is also reflected in Article 16 of the CRC and Article 22 of the CRPD.

The CCPR General Comment No 16 on Article 17 (Right to Privacy) of the ICCPR states that in the view of the UN Human Rights Committee, this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right.

In addition to travel purposes, passports are identity documents increasingly used for other types of transactions in the public and private sectors, such as opening bank accounts, supporting financial transactions, or accessing governmental services and benefits. The program will promote the right to privacy and reputation as it will enable Australia to assist Tuvalu mitigate against passport theft and fraud, as well as identity theft. This will occur through improving Tuvalu’s passport systems and practices in line with ICAO standards, including with respect to the development of security frameworks for the passport application and issuance processes as well as physical security concerning storage and handling.

The right to privacy is further engaged as the improvement of Tuvalu’s legislative and policy frameworks for passports may address the collection, storage, security, use, disclosure or publication of personal information. This reflects the purpose and intent of a passport, which is to serve as an identity document issued by the Government to facilitate international travel of its citizens. Interference with the right to privacy is only prohibited to the extent it is unlawful or arbitrary. Given the intention is to assist Tuvalu to ensure its passport systems meet international standards for integrity and security, and that a passport is issued at the request of and on application by an individual, it is unlikely there would be unlawful or arbitrary interference with the rights set out in Article 17.

Article 17 of the ICCPR does not set out the reasons for which the guarantees in it may be limited. However, in keeping with the limitations contained in other articles in the ICCPR, limitations on the right to privacy would be legitimate in the context of passport legislation and policy. This is because managing the flow of people and controlling borders is central to a country’s national security objectives.

This table item is compatible with human rights, and to the extent that it may limit human rights those limitations are reasonable, necessary and proportionate.

New table item 682 – Marine Resources Initiative

Under the Marine Resource Initiative (the initiative) the Australian Government intends to provide ongoing funding (including $40.0 million over four years from 2024-25) to expand Australia’s practical support for maritime capacity building and technology transfer to partner countries in Southeast Asia. Funding for this initiative is ongoing beyond the forward estimates at $10.0 million per year.

The objective of the initiative is to ensure partner countries develop the capacity to enforce their maritime boundaries, manage maritime domains, utilise blue economy resources and uphold the principles of the UN Convention on the Law of the Sea.

It is intended to expand and enhance the existing pilot Marine Resources Initiative (2020‑21 to 2023-24) through existing and new partnerships between Australian maritime and scientific agencies and counterpart agencies in maritime Southeast Asia.

The initiative would expand government and institutional cooperation with Southeast Asian partners through practical maritime activities. These include skills development, training and the sharing of technology across pillars including border protection, fisheries, and marine science. Examples of current partnerships include:

conserving coral reefs through the Australian Institute for Marine Science;
maritime law enforcement and domain awareness through the Australian Border Force;
geospatial mapping through Geoscience Australia;
marine environmental governance through the Australian Centre for International Agricultural Research; and
marine protection through the Department of Climate Change, Energy, the Environment and Water.

Human rights implications

New table item 682 engages the right to privacy and reputation – Article 17 of the International Covenant on Civil and Political Rights (ICCPR), read with Article 2.

The right to privacy and reputation

Article 2 of the ICCPR requires that each State Party to the ICCPR undertakes to respect and ensure the rights recognised in the ICCPR, adopt laws or other measures to give effect to these rights, and ensure an effective remedy to any person whose rights are violated.

Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person’s privacy, family, home and correspondence. It also prohibits unlawful attacks on a person’s reputation. It provides that persons have the right to the protection of the law against such interference or attacks.

It is noted that the right to privacy and reputation is also enshrined in Article 16 of the Convention on the Rights of the Child and Article 22 of the Convention on the Rights of Persons with Disabilities.

This item may engage the right to privacy, depending on the nature of the technology transfer and the use of the technology by recipient countries however it is considered the right is engaged and limited. The recipient country may directly or indirectly impact the right to privacy of persons through improvements in their capability to manage maritime domains and marine resources.

Any personal information that is collected, used and/or disclosed by the Australian Government will be done in line with obligations under the Privacy Act 1988. The design and delivery of activities under the item delivered by the Australian Government will aim to mitigate risks to the right to privacy.

This table item is compatible with human rights and to the extent that it may risk those rights, the risks are minimal given the legitimate objectives of the program, it is considered this risk is reasonable, necessary, and proportionate to achieving the program objectives.

Conclusion

This disallowable legislative instrument is compatible with human rights as it promotes the protection of human rights and to the extent that it limits the right to privacy such limits are reasonable, necessary, and proportionate to achieving the program objectives and the risk is minimal.

Senator the Hon Katy Gallagher

Minister for Finance

Administered by Department of Finance

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