EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Finance
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability Rule 2014
Public Governance, Performance and Accountability Amendment (Office of the Special Investigator) Rules 2020
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) set out a framework for regulating resource management by the Commonwealth and relevant entities. Section 101 of the PGPA Act provides that the Finance Minister may make rules by legislative instrument to prescribe matters necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
The Public Governance, Performance and Accountability Amendment (Office of the Special Investigator) Rules 2020 (Amendment Rules) amends Schedule 1 to the PGPA Rule to prescribe the Office of the Special Investigator as a listed entity for the purposes of the finance law as defined by the PGPA Act.
Details of the Amendment Rules are set out at Attachment A. A Statement of Compatibility with Human Rights is at Attachment B.
The Amendment Rules are a legislative instrument for the purposes of the Legislation Act 2003.
The Amendment Rules commence on 4 January 2021.
Consultation
In accordance with section 17 of the Legislation Act 2003, consultation has taken place with the Department of Home Affairs. As the entity leading the implementation of the government’s decision to establish the Office of the Special Investigator, the Department of Home Affairs has undertaken consultation with relevant stakeholders. The consultation has been conducted within the limits of national security sensitivities. The Office of Parliamentary Counsel advised on elements of the Amendment Rules.
Details of the Public Governance, Performance and Accountability Amendment (Office of the Special Investigator) Rules 2020
Section 1 – Name
This section provides that the title of this instrument is the Public Governance, Performance and Accountability Amendment (Office of the Special Investigator) Rules 2020.
Section 2 – Commencement
This section provides that this instrument commences on 4 January 2021.
Section 3 – Authority
This section provides that this instrument is made under the Public Governance, Performance and Accountability Act 2013 (PGPA Act).
Section 4 – Schedules
This section provides that the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) is amended as set out in Schedule 1 to this instrument.
Schedule 1 – Amendments
Public Governance, Performance and Accountability Rule 2014
Item 1 – After clause 17 of Schedule 1
This item inserts a new clause 18 in Schedule 1.
The new clause 18 makes the Office of the Special Investigator a non-corporate Commonwealth entity for the purposes of the PGPA Act by prescribing it as a listed entity in Schedule 1. It also sets out the accountable authority, officials and purposes of the Office of the Special Investigator. The Office of the Special Investigator will comprise of the Director‑General, as the accountable authority, of the Office of the Special Investigator; the Special Investigator; the Director of Investigations; the Special Counsel; and persons made available by other Commonwealth entities to perform services for the Office of the Special Investigator, and persons engaged under the Public Service Act 1999 (PS Act) to assist in the performance of the functions of the Office of the Special Investigator.
The Special Investigator for the Office of the Special Investigator will be responsible for operational decisions within the entity relating to case prioritisation and referrals of briefs of evidence to the Director of Public Prosecutions.
The Special Investigator will be assisted by the Special Counsel for the Office of the Special Investigator. The Special Counsel will be responsible for conducting initial assessments of material from the Inspector-General of the Australian Defence Force Afghanistan Inquiry, as part of a quarantined triaging function to inform secondary decisions by the Special Investigator on investigation priorities.
The Director of Investigations for the Office of the Special Investigator will be responsible for the conduct of the investigations as prioritised by the Special Investigator.
The Office of the Special Investigator was established as an Executive Agency under section 65 of the PS Act by the Order to Establish the Office of the Special Investigator as an Executive Agency (Order), made on 10 December 2020 and commencing on 4 January 2021. The Order specifies the functions for the Office of the Special Investigator which are listed in the new clause 18 as the entity’s purposes for the finance law.
Among other functions, the Office of the Special Investigator will have responsibility for reviewing findings of the Inspector-General of the Australian Defence Force Afghanistan Inquiry; working with the Australian Federal Police to investigate the commission of criminal offences under Australian law arising from or related to any breaches of the laws of armed conflict by members of the Australian Defence Force in Afghanistan from 2005 to 2016; and developing briefs of evidence in respect of any offences that are established, for referral to the Director of Public Prosecutions.
At the time of establishment the responsible Minster for the Office of the Special Investigator is the Minister for Home Affairs.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Public Governance, Performance and Accountability Amendment (Office of the Special Investigator) Rules 2020
The Public Governance, Performance and Accountability Amendment (Office of the Special Investigator) Rules 2020 (Amendment Rules) 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
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) establishes a framework for regulating resource management by the Commonwealth and relevant entities. Section 101 of the PGPA Act provides that the Minister for Finance may make rules by legislative instrument to prescribe matters giving effect to the Act.
The Amendment Rules amend the Public Governance, Performance and Accountability Rule 2014 made under the PGPA Act by prescribing the Office of the Special Investigator as a listed entity for the purposes of the finance law.
Human rights implications
The Amendment Rules do not engage any of the applicable rights or freedoms.
Conclusion
The Amendment Rules are compatible with human rights as they do not raise any human rights issues.
Senator the Hon Simon Birmingham MP
Minister for Finance