Details of the Financial Framework (Supplementary Powers) Amendment  

(Home Affairs Measures No. 5) Regulations 2020

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Home Affairs Measures No. 5) Regulations 2020.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after the instrument is 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

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on an activity administered by the Department of Home Affairs (the department).

 

New table item 445 establishes legislative authority for government spending on the national identity crime and cybercrime support service (the service) to improve victim support services for individuals and businesses that have been affected by cybercrime or had their identity compromised (stolen or misused) online.

 

The Government will provide funding of $6.1 million over four years from 2020-21 to one or more identity crime and cybercrime support service providers to reduce the social and economic impact of identity crime and cybercrime in Australia by ensuring victims of identity crime and cybercrime have the specialist support they need to recover.

 

There has been a recent increase in opportunistic cybercrime related to the COVID-19 pandemic. The caseloads of existing specialist identity crime and cybercrime support service providers have increased significantly due to cybercriminals taking advantage of Australians spending more time online.

 

Victims of cybercrime need more support than traditional law enforcement responses provide, as they face very tangible risks to their online and offline environments. The recovery process is often very complex and requires specialist and tailored assistance. Robust recovery and response plans are needed to minimise losses and mitigate the most disruptive and damaging effects. This involves addressing immediate issues and concerns, addressing deficiencies and vulnerabilities in their cyber security posture and building resilience to the inevitable risks of identity and account misuse that many of these crimes pose to the community.

 

Specialist services to victims of identity crime and cybercrime, which are expected to be supported by government funding, may include, but are not limited to, advice, counselling and case management services to people referred by relevant government agencies, to be provided across Australia via the internet and over the phone. Other enabling services may also be provided, such as specialised reporting on trends and threats in identity crime and cybercrime.

 

The service forms part of Australia's Cyber Security Strategy 2020 (the Strategy) available at https://www.homeaffairs.gov.au/cyber-security-subsite/files/cyber-security-strategy-2020.pdf. The Strategy, which was announced by the Prime Minister, the Hon Scott Morrison MP, and the Minister for Home Affairs, the Hon Peter Dutton MP, on 6 August 2020 (https://www.pm.gov.au/media/australias-2020-cyber-security-strategy), will invest $1.67 billion over ten years to achieve the Government's vision of a more secure online world for Australians, their businesses and essential services. It will be delivered through actions by governments, businesses and the community. Through this Strategy, the Government will prioritise support to victims of cybercrime and provide more funding to victim support services to help a growing number of people who need assistance.

 

Government funding will be allocated by conducting procurement activities in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Procurement Rules, including publishing information on AusTender as required at www.tenders.gov.au.

 

A third party service provider will be selected by varying existing contractual arrangements (refer AusTender CN3647293) and/or completing a limited tender procurement process. A limited tender may be used noting that there is currently only one organisation in Australia that provides specialist identity and cyber security counselling services (IDCARE). The decision maker on funding allocation will be a delegate of the Secretary of the department.

 

The department will provide an opportunity for suppliers to make complaints and provide feedback. These complaints and inquiries can be made at any time during the procurement process, and will be handled in accordance with probity requirements.

 

Funding decisions made in connection with the service are not considered suitable for independent 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 to a service provider would be affected if the original decision was overturned. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.14 of the guide, What decisions should be subject to merit review?).

 

Procurement decisions, once made, will be final, and not subject to merits review. Re-making a procurement decision after entry into contractual arrangements with a successful tenderer would be legally complex, impractical and result in delays to the commencement. 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 for redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

 

The review and audit process undertaken by the Australian National Audit Office also provides a mechanism to review government spending decisions and report any concerns to the Parliament.

 

Administrative accountability for the program will be achieved by ensuring that:

*         the process of allocating funds is fair;

*         the criteria for funding are made clear; and

*         decisions are made objectively.

 

The Strategy was informed by extensive community consultation and expert advice from the Government's Industry Advisory Panel. Over 200 written submissions were received in response to a public discussion paper and more than 1,400 people nationwide were engaged in face-to-face consultations, including workshops, roundtables and bilateral meetings. Further information is available at www.homeaffairs.gov.au/cybersecurity.

 

The Industry Advisory Panel released its final report on 22 July 2020 (available at https://www.homeaffairs.gov.au/cyber-security-subsite/files/2020-cyber-security-strategy-iap-report.pdf). This service responds to recommendation 40 in the Panel's report relating to Objective 7 of the Strategy to provide additional funding to not-for-profit organisations that support victims of cybercrime and communicate their role and existence to the community.

 

Funding for the service of $6.1 million over four years from 2020-21 will be included in the 2020-21 Budget and the 2020-21 Portfolio Budget Statements for the Home Affairs Portfolio. Funding will come from Program 1.8: Cyber Security, which is part of Outcome 1.

 

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 communications power (section 51(v));

*         the banking power (section 51(xiii));

*         the insurance power (section 51(xiv));

*         the express incidental power and the executive power (sections 51(xxxix) and 61), including the nationhood aspect;

*         the Commonwealth places power (section 52(i)); and

*         the territories power (section 122).

 

Communications power

 

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'.

 

Specialist support services for victims of identity crime and cybercrime will be primarily delivered via the internet and over the phone. 

 

Banking power

 

Section 51(xiii) of the Constitution empowers the Parliament to make laws with respect to banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money.

 

Specialist support services for victims of identity crime and cybercrime will assist in identifying, investigating and preventing monetary losses to users and providers of banking services.

 

Insurance power

 

Section 51(xiv) of the Constitution empowers the Parliament to make laws with respect to insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned.

 

Specialist support services for victims of identity crime and cybercrime will assist in identifying, investigating and preventing monetary losses to users and providers of insurance services.

 

Express incidental power and the executive power, including the nationhood aspect

 

The express incidental power in section 51(xxxix) of the Constitution empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested in the Parliament, the executive or the courts by the Constitution. The executive power in section 61 of the Constitution extends to a range of matters, including the execution and maintenance of the Constitution, and the laws of the Commonwealth, and activities that are peculiarly adapted to the government of a nation and cannot be carried out for the benefit of the nation otherwise than by the Commonwealth.

 

Funding specialist support services for victims of identity crime and cybercrime will support the prevention, investigation and prosecution of crimes outlined in the Commonwealth Criminal Code, such as the identity fraud offence under section 372.1. It will also assist with dealing with the consequence of relevant offences. Similarly, this funding will assist in preventing, investigating and responding to identity fraud in connection with the Australian Government programs. Funding will also support research to improve the detection or prevention of identity theft for the benefit of the nation.

 

Commonwealth places power

 

Section 52(i) of the Constitution empowers the Parliament to make laws with respect to 'places acquired by the Commonwealth for public purposes'. The places referred to in section 52(i) are often called 'Commonwealth places'.

 

Victim support services will be provided for crimes committed in Commonwealth places, or in relation to those places. 

 

Territories power

 

Section 122 of the Constitution empowers the Parliament to 'make laws for the government of any territory'.

 

Victim support services will be provided for crimes committed in or in relation to a territory. 

 

 

 

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 (Home Affairs Measures No. 5) Regulations 2020

 

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 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 powers in the FF(SP) 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 Financial Framework (Supplementary Powers) Amendment (Home Affairs Measures No. 5) Regulations 2020 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on the national identity crime and cybercrime support service (the service), which involves provision of funding to third party service providers to assist individuals and businesses that have been affected by cybercrime or had their identity stolen or misused online. The Department of Home Affairs has responsibility for the service.

 

Funding for the service of $6.1 million over four years from 2020-21 aims to reduce the social and economic impact of identity crime and cybercrime in Australia by ensuring victims of identity crime and cybercrime have the specialist support they need to recover, particularly given the recent increase in opportunistic cybercrime related to the COVID-19 pandemic.  

 

The service forms part of Australia's Cyber Security Strategy 2020 (the Strategy) which was announced by the Prime Minister, the Hon Scott Morrison MP, and the Minister for Home Affairs, the Hon Peter Dutton MP, on 6 August 2020.

 

Human rights implications

 

This disallowable legislative instrument engages the following rights under the International Covenant on Civil and Political Rights (ICCPR):

*         the right to the protection of the law against interference or attacks (Article 17 of the ICCPR); and

*         the right to an effective remedy (Article 2 of the ICCPR).

 

 

Article 17 of the ICCPR provides:

 

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.

 

Article 2(3) of the ICCPR provides:

 

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; ...

 

This disallowable legislative instrument allows for funding to be provided to support services who assist those persons who have had their privacy, correspondence and/or reputation interfered with by way of identity theft and cybercrimes. 

 

Funding specialist support services for victims of identity crime and cybercrime will support the prevention, investigation and prosecution of crimes outlined in the Commonwealth Criminal Code, such as the identity fraud offence under section 372.1. It will also assist with dealing with the consequence of relevant offences. Similarly, this funding will assist in preventing, investigating and responding to identity fraud in connection with the Australian Government programs.

 

While victims will need to provide their personal information to service providers in order to receive these support services, access to these services is voluntary, and any information provided will be handled in accordance with applicable privacy laws.

 

This disallowable legislative instrument therefore promotes the rights in Articles 17 and 2 of the ICCPR.

 

Conclusion

 

This disallowable legislative instrument is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance