Overview

The Public Governance, Performance and Accountability (Relevant Company) Amendment (2017 Measures No. 3) Rules 2017 were enacted to address the need for the Commonwealth to form or participate in the formation of companies that would assist intelligence or security agencies or listed law enforcement agencies in performing their functions. The rules were issued under section 101 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) by the Minister for Finance. The rules provide the necessary legislative authority for the Commonwealth to create or participate in the creation of companies whose activities align with the objectives of intelligence or security agencies or listed law enforcement agencies. This legislative measure ensures that the Commonwealth can effectively establish entities that support the critical functions of these agencies, thereby enhancing national security and law enforcement capabilities. The rules are compatible with human rights as they do not impinge on any applicable rights or freedoms, as evidenced by the Statement of Compatibility with Human Rights attached to the rules.

Scope and Application

The Public Governance, Performance and Accountability (Relevant Company) Amendment (2017 Measures No. 3) Rules 2017 amends the Public Governance, Performance and Accountability Act 2013 (PGPA Act) to facilitate the formation of relevant companies by intelligence or security agencies and listed law enforcement agencies (LLEAs) for designated activities. These rules enable the Commonwealth to either form, participate in forming, or acquire shares in relevant companies whose activities assist in the performance of the functions or exercise of powers of intelligence or security agencies or LLEAs. The Finance Minister, in conjunction with the responsible Minister, has the authority to make determinations that modify the PGPA Act to allow the accountable authority of these agencies or a person authorised on behalf of the Commonwealth to undertake these actions. This legislative instrument also modifies the definition of 'Commonwealth company' to include foreign companies in addition to those incorporated under the Corporations Act 2001. The rules, which are a legislative instrument under the Legislation Act 2003, will commence on the day following their registration on the Federal Register of Legislation. These amendments do not create any exclusions, exemptions, or thresholds but extend the scope of the PGPA Act to allow for the formation and participation in relevant companies by intelligence or security agencies and LLEAs for specific purposes. The rule is compatible with human rights as it does not impinge on any applicable rights or freedoms and has been subject to consultation with relevant agencies such as the Australian Secret Intelligence Service, Australian Signals Directorate, Australian Federal Police, and the Australian Criminal Intelligence Commission.

Key Provisions

The main sections of the Public Governance, Performance and Accountability (Relevant Company) Amendment (2017 Measures No. 3) Rules 2017 (the rule) establish the legislative authority for the Commonwealth to form or participate in forming relevant companies whose activities are aimed at assisting intelligence or security agencies or listed law enforcement agencies (LLEA). Under section 85 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Finance Minister is granted the authority to form or participate in forming a relevant company, provided that its objects or proposed activities are prescribed by a rule made under the PGPA Act. The rule modifies section 85(1) of the PGPA Act to allow the accountable authority of an intelligence or security agency or LLEA, or a person authorised on behalf of the Commonwealth, to form or participate in forming a relevant company, or acquire shares in such a company, in circumstances that would otherwise result in the company becoming a Commonwealth company. The rule imposes obligations on the Finance Minister and the accountable authorities of intelligence or security agencies or LLEAs to ensure that any relevant companies formed or participated in are in accordance with the provisions of the PGPA Act. The rule also requires these authorities to make determinations under section 105D(3) of the PGPA Act to modify the definition of 'Commonwealth company' to include a foreign company as well as a company incorporated under the Corporations Act 2001. This modification facilitates the formation of relevant companies that are best suited to carry out designated activities identified in section 105D of the PGPA Act. Failure to comply with the provisions of the rule may result in civil or criminal consequences, although specific penalties are not outlined in the explanatory statement. The rule is a legislative instrument for the purposes of the Legislation Act 2003 and will commence on the day after registration on the Federal Register of Legislation. The rule is compatible with human rights, as it does not raise any human rights issues, as stated in the Statement of Compatibility with Human Rights attached to the rule. The rule has been developed in consultation with relevant agencies, including the Australian Secret Intelligence Service, Australian Secret Intelligence Organisation, the Australian Signals Directorate, Australian Federal Police, and the Australian Criminal Intelligence Commission.