EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2016‑2017 (No. 10) (the amendment determination)
Purpose of the determination
The amendment determination is made under section 75 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), to adjust amounts appropriated to non-corporate Commonwealth entities, in response to the commencement on 1 July 2018 of the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Act 2018.
The amendment determination modifies the Appropriation Acts to support functions transferred to the Australian Signals Directorate from the Attorney‑General’s Department, to consolidate responsibility for a variety of cyber security-related functions in the Australian Signals Directorate as an independent statutory agency. This included responsibilities for the functions previously performed by CERT Australia (the national computer emergency response team) within the Attorney‑General’s Department.
The amendment determination results in no change to the total amount appropriated by Parliament.
Commencement
The amendment determination commences on the day after it is registered.
Authority for the determination
Section 75 of the PGPA Act enables the Finance Minister to determine that one or more Schedules to one or more Appropriation Acts are modified in a specified way in relation to the transfer of a function from one non-corporate Commonwealth entity to another.
Under section 107 of the PGPA Act, the Finance Minister has delegated the power to make determinations under section 75 to the Secretary of the Department of Finance. Under section 109 of the PGPA Act, the Secretary has, in turn, sub‑delegated this power to certain officials within the Department of Finance, including the official who made the determination.
The amendment determination amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2016-2017, which is a legislative instrument for the purposes of section 8 of the Legislation Act 2003.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is not required for the amendment determination. Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires a Statement of Compatibility with Human Rights for all legislative instruments subject to disallowance under section 42 of the Legislation Act 2003. A determination, including an amendment determination, under section 75 of the PGPA Act is exempt from disallowance under subsection 75(7) of the PGPA Act. As such, a Statement of Compatibility with Human Rights is not required.
Consultation
Consistent with Chapter 3, Part 1 of the Legislation Act 2003, the affected entities were consulted in the preparation of the amendment determination.
Summary of Modifications
1. Item 1 of the amendment determination adds the word “and” to the end of paragraph 5(i).
2. Item 2 of the amendment determination adds paragraph 9(2)(b) to subsection 9(2) of the Determination.
3. Paragraph 9(2)(b) has effect as if a departmental item for the Australian Signals Directorate were included in Schedule 1 to the Appropriation Act (No. 3) 2016‑2017 within the Defence Portfolio. Due to the establishment of the Australian Signals Directorate and the transfer of functions from the Attorney‑General’s Department, this amendment determination has effect as if the Australian Signals Directorate were included in the Appropriation Act (No. 3) 2016‑2017.
4. Subsection 9(4) of the amendment determination then establishes that this departmental item for the Australian Signals Directorate, which has effect because of this amendment determination, commences as a nil amount.
5. Item 3 of the amendment determination adds paragraph 9(3)(d) to subsection 9(3) of the Determination.
6. Paragraph 9(3)(d) has effect as if the following outcome were included in Schedule 1 to Appropriation Act (No. 3) 2016‑2017 for the Australian Signals Directorate:
Outcome 1
Defend Australia from global threats and advance our national interests through the provision of foreign signals intelligence, cyber security and offensive cyber operations, as directed by Government
7. Item 4 of the amendment determination adds items 5 and 6 to the table in subsection 9(4) of the Determination. The items affect relevant appropriation items in Schedule 1 to the Appropriation Act (No. 3) 2016‑2017 in the following way:
Item | Entity | Appropriation item | Amount previously transferred by the Determination ($) | Amount transferred by the amendment determination ($) | Amended amount transferred by the Determination ($) |
5 | Attorney‑General’s Department | Departmental item | 0.00 | -2,037,045.00 | -2,037,045.00 |
6 | Australian Signals Directorate | Departmental item | 0.00 | +2,037,045.00 | +2,037,045.00 |
Note: A positive amount reflects an increase in an appropriation item and a negative amount reflects a decrease in an appropriation item.
Overview
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2016-2017 (No. 10) was enacted to adjust the appropriations for non-corporate Commonwealth entities following the establishment of the Australian Signals Directorate (ASD) under the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Act 2018. This amendment determination was made under section 75 of the Public Governance, Performance and Accountability Act 2013 by the Secretary of the Department of Finance, in accordance with the delegation from the Finance Minister. The primary objective of this amendment was to consolidate cyber security-related functions within the ASD, ensuring a unified approach to national cyber security, without altering the total appropriations set by Parliament. The determination took effect the day after its registration and did not require a Statement of Compatibility with Human Rights as it was exempt from disallowance. Affected entities were consulted during the preparation of the amendment, aligning with the legislative requirements under the Legislation Act 2003.
Scope and Application
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2016-2017 is a legislative instrument that modifies the appropriation of funds to non-corporate Commonwealth entities, specifically in response to the transfer of functions to the Australian Signals Directorate from the Attorney-General’s Department. This amendment determination is made under section 75 of the Public Governance, Performance and Accountability Act 2013 and ensures the consolidation of cyber security-related functions within the Australian Signals Directorate as an independent statutory agency. The amendment determination does not alter the overall amount appropriated by Parliament, but rather redistributes specific funds to support the new responsibilities of the Australian Signals Directorate. The amendment determination is applicable to the entities involved in the transfer of functions and comes into effect on the day after it is registered.
The determination applies to the transfer of functions from the Attorney-General’s Department to the Australian Signals Directorate, ensuring that the latter receives the necessary appropriations to effectively perform its new responsibilities, which include those previously carried out by CERT Australia. The amendment determination is made under the authority granted by section 75 of the PGPA Act, and the power to make such determinations has been delegated to the Secretary of the Department of Finance. It is important to note that this amendment determination does not require a Statement of Compatibility with Human Rights, as it is exempt from disallowance under the PGPA Act. Additionally, the affected entities were consulted in the preparation of this amendment determination, in accordance with the requirements of the Legislation Act 2003.
Key Provisions
The key provisions of the Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2016-2017 (No. 10) revolve around adjusting the appropriations to non-corporate Commonwealth entities following the establishment of the Australian Signals Directorate (ASD) on 1 July 2018. The amendment determination, made under section 75 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), modifies the Appropriation Acts to support the transfer of functions from the Attorney-General's Department to ASD. This includes consolidating responsibility for various cybersecurity-related functions in ASD as an independent statutory agency, which previously were managed by CERT Australia within the Attorney-General’s Department. The amendment ensures that the total amount appropriated by Parliament remains unchanged.
The obligations and requirements imposed by the amendment determination primarily concern the reallocation of appropriations between the Attorney-General’s Department and the newly established ASD. It requires the reconfiguration of Schedule 1 to the Appropriation Act (No. 3) 2016-2017 to reflect the transfer of responsibilities. Specifically, it mandates that a departmental item for ASD be included as if it were part of the Defence Portfolio, starting with a nil amount, and subsequently adjusts the appropriation items to reflect the transfer of funds amounting to $2,037,045.00 from the Attorney-General’s Department to ASD.
The amendment determination also addresses the legal framework and authority for these changes. It specifies that the Finance Minister, under section 75 of the PGPA Act, has the authority to make such determinations. This power has been sub-delegated to officials within the Department of Finance, ensuring that the necessary adjustments to appropriations can be made effectively and efficiently. Additionally, it clarifies that the amendment determination is exempt from disallowance under subsection 75(7) of the PGPA Act, thereby not requiring a Statement of Compatibility with Human Rights as per the Human Rights (Parliamentary Scrutiny) Act 2011.
The amendment determination outlines potential consequences for non-compliance, although it does not explicitly state penalties or offences for breach. Given the nature of the amendment, breaches could potentially lead to financial mismanagement and affect the effective functioning of ASD and the Attorney-General’s Department. The legal framework within the PGPA Act and related legislation likely imposes strict compliance requirements to ensure that appropriations are managed in accordance with parliamentary decisions and statutory obligations. Failure to adhere to these requirements could result in financial discrepancies and could be subject to audit and review by relevant authorities.