FINANCIAL MANAGEMENT AND ACCOUNTABILITY AMENDMENT REGULATION 2013 (NO. 7) (SLI NO 229 OF 2013)

The Financial Management and Accountability Act 1997 (the FMA Act) provides a framework of rules for the proper management of public money and public property by Chief Executives and officials of FMA Act agencies. The FMA Act applies to Commonwealth Departments of State and their staff, parliamentary departments and their staff, and prescribed agencies.

Subsection 65(1) of the FMA Act provides that the Governor-General may make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to that Act.

To respond to the High Court's decision in Williams v Commonwealth (2012) 288 ALR 410, the Financial Framework Legislation Amendment Act (No. 3) 2012 established legislative authority in section 32B of the FMA Act for the Government to spend on the grants and programs listed in Schedule 1AA to the Financial Management and Accountability Regulations 1997 (the Principal Regulations).

Schedule 1 to the Regulation amends the Principal Regulations to establish legislative authority in Schedule 1AA for the Government to spend on a range of activities in the Immigration and Citizenship portfolio. The amendments to Schedule 1AA are for activities relating to:

* the provision of financial support to asylum seekers in financial hardship who are living in Australia lawfully while their status is being resolved;

* the regional cooperation and capacity building activities which are part of Australia's engagement with, and support to, the member countries and organisations of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime;

* memoranda of understanding with foreign nations for the return of foreign nationals to their home country;

* assisting the voluntary return of bridging visa holders and their dependants to their home country;

* assisting irregular maritime arrivals who wish to depart Australia voluntarily;

* legal advice services for asylum seekers seeking judicial review of decisions by the Refugee Review Tribunal;

* memoranda of understanding with the States and Territories for the provision of policing services at immigration detention centres;

* activities associated with regional processing and resettlement arrangements, including costs incurred under the memoranda of understanding between Australia and regional processing countries.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulation commences on the day after registration on the Federal Register of Legislative Instruments.

In accordance with section 17 of the Legislative Instruments Act 2003, consultation has taken place with the Department of Immigration and Citizenship. The Australian Government Solicitor also provided advice on the amendments to Schedule 1AA to the Principal Regulations.

A regulation impact statement is not required as the Regulation only applies to FMA Act Agencies, and does not adversely affect the private sector.

The Regulation 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.

The Regulation amends Schedule 1AA to the Principal Regulations to establish legislative authority for Government spending on a number of activities in the Immigration and Citizenship portfolio. This is in response to the High Court's decision in Williams v Commonwealth in June 2012. The spending activities specified in Schedule 1AA are the responsibility of the relevant Ministers who have portfolio responsibility for the matters.

The Regulation does not limit any human rights, nor establish any new offences or penalties.

ATTACHMENT

Details of the Financial Management and Accountability Amendment Regulation 2013 (No. 7)

Section 1 - Name of Regulation

This section provides that the title of the Regulation is the Financial Management and Accountability Amendment Regulation 2013 (No. 7).

Section 2 - Commencement

This section provides that the Regulation commences on the day after the Regulation is registered on the Federal Register of Legislative Instruments.

Section 3 - Authority

This section provides that the Regulation is made under the Financial Management and Accountability Act 1997 (FMA Act).

Section 4 - Schedule(s)

This section provides that the Financial Management and Accountability Regulations 1997 (the Principal Regulations) are amended as set out in Schedule 1 to the Regulation.

Schedule 1 - Amendments

Schedule 1 amends Schedule 1AA to the Principal Regulations to establish legislative authority for the Government to spend on the specified programs and activities in Schedule 1AA.

Item 1 - Item 417.012 of Schedule 1AA

This item establishes legislative authority for a new spending activity of the Department of Immigration and Citizenship by amending item 417.012 of Schedule 1AA to the Principal Regulations relating to the Asylum Seeker Assistance Scheme (ASAS). The amendment establishes legislative authority for the Government to provide funding for costs associated with this scheme.

The ASAS provides financial support for asylum seekers in financial hardship who are living lawfully in the community while they await a resolution of their immigration status. Seven contracted service providers administer the provision of services for Irregular Maritime Arrivals (IMAs) under the ASAS. The Australian Red Cross Society administers the provision of services for non-IMAs under the ASAS.

Payments for this spending activity will be made as part of Program 2.1 Refugee and Humanitarian Assistance (for non-IMA clients) and Program 4.3 Offshore Asylum Seeker Management (for IMA clients), described in the Portfolio Budget Statements 2013-14, Budget Related Paper No. 1.11, Immigration and Citizenship Portfolio at pages 32 and 54.

Item 2 - Item 417.023 of Schedule 1AA

This item establishes legislative authority for a new spending activity of the Department of Immigration and Citizenship by amending item 417.023 of Schedule 1AA to the Principal Regulations relating to the Bali Process Engagement and Regional Support Office scheme. The amendment establishes legislative authority for the Government to provide funding for costs associated with regional cooperation and capacity building activities as part of Australia's engagement with, and support to, the member countries and organisations of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Process).

This includes funding for costs associated with the establishment and ongoing work of a Regional Support Office (RSO) as well as related regional cooperation and capacity building activities coordinated by the RSO. The RSO acts as a focal point for Bali Process members to facilitate enhanced practical cooperation under the Regional Cooperation Framework, including on matters relating to refugee protection, migration management, human trafficking and people smuggling. Spending decisions will be made by departmental officials in accordance with the FMA Act and relevant policies and procedures, and will be reported through the Department's Annual Report.

Payments will be made as part of Program 4.5 Regional Cooperation and Associated Activities, Program 4.5.1 Regional Cooperation and Associated Activities - Service Delivery and Program 4.5.2 Regional Cooperation and Associated Activities - Policy Advice and Program Design, described in the Portfolio Budget Statements 2013-14, Budget Related Paper No. 1.11, Immigration and Citizenship Portfolio at pages 45 to 46.

Item 3 - After item 417.028 of Schedule 1AA

This item establishes legislative authority for 13 spending activities of the Department of Immigration and Citizenship by adding 13 items to Schedule 1AA to the Principal Regulations.

New item 417.029 establishes legislative authority for the Government to provide funding for costs associated with Memoranda of Understanding (MOU) with foreign nations. This spending activity is for costs associated with the application of MOU that have provisions relating to the return of foreign nationals to their home country from Australia.

Payments are made in accordance with the MOU and are approved by the appropriate delegate. Payments will be made as part of Program 4.1.1 Annual departmental expenses - Visa Compliance Status Resolution - Service Delivery - Removals, described in the Portfolio Budget Statements 2013-14, Budget Related Paper No. 1.11, Immigration and Citizenship Portfolio at page 53.

New item 417.030 establishes legislative authority for the Government to provide funding for costs associated with the Assisted Voluntary Return (AVR) program.

AVR is a service offered to eligible bridging visa holders and their dependants who wish to depart Australia, but are unable to do so without some support. They are provided impartial immigration information and support and counselling to assist them to make informed decisions regarding their options. Services provided include information regarding the country of return and post-return support, assistance with planning departure, assistance with travel arrangements and travel documents, assistance with finalising affairs in Australia and booking and purchasing airline tickets.

The program is delivered by the International Organization for Migration (IOM). Payments are made in accordance with the contract for services with the IOM. Decisions are made in accordance with the contract and appropriate delegations.

Payments will be made as part of Program 4.1 Visa Compliance and Status Resolution - Annual administered expenses - Compliance Resolution, Community Care and Assistance, described in the Portfolio Budget Statements 2013-14, Budget Related Paper No. 1.11, Immigration and Citizenship Portfolio at page 53.

New item 417.031 establishes legislative authority for the Government to provide funding for costs associated with the AVR Irregular Maritime Arrivals (IMAs) Program. AVR IMA is a service offered to eligible IMAs and their dependants who wish to depart Australia voluntarily. Funding is provided to the IOM to provide services to eligible clients, including immigration information and return counselling, return services, administrative services, and other services as required, such as post-return assistance or planning for reintegration services when available and possible.

Payments are made in accordance with the contract for services with the IOM. Decisions are made in accordance with the contract and appropriate delegations.

Payments will be made as part of Program 4.3 Offshore Asylum Seeker Management - Annual administered expenses - Compliance Resolution, Community Care and Assistance, described in the Portfolio Budget Statements 2013-14, Budget Related Paper No. 1.11, Immigration and Citizenship Portfolio at page 54.

New item 417.032 establishes legislative authority for the Government to provide funding for the Australian Cultural Orientation Program. This program is a five-day cultural orientation course available to all refugees and special humanitarian entrants over five years of age, aimed at providing practical advice on travel to Australia and information about the initial settlement period. The program is currently delivered by the IOM on behalf of the Government and is funded by departmental appropriation.

New item 417.033 establishes legislative authority for the Government to provide funding for costs associated with the Legal Advice Scheme. Under this scheme, funding is provided to the NSW Bar Association and the Law Society of Western Australia to provide legal advice services to asylum seekers who are applying to the Federal Circuit Court for judicial review of Refugee Review Tribunal decisions.

Payments will be made as part of Program 2.1.1 Refugee and Humanitarian Assistance - Service Delivery and Program 2.1.2 Refugee and Humanitarian Assistance - Policy Advice and Program Design, described in the Portfolio Budget Statements 2013-14, Budget Related Paper No. 1.11, Immigration and Citizenship Portfolio at page 32.

New item 417.034 establishes legislative authority for the Government to provide funding for costs associated with Free Translating and Interpreting Services.

The Department of Immigration and Citizenship funds Free Translating and Interpreting Services to support non-English speaking Australian citizens and permanent residents with their transition to life in Australia. Key community service providers that operate in private practice (without government funding) are provided with access to the Free Interpreting Service, through the Translating and Interpreting Service (TIS) National, to communicate with non-English speaking clients. This includes General Practitioners, pharmacists dispensing PBS medications, and not-for-profit, non-government, and community based organisations delivering casework and emergency services without substantial government funding.

Eligibility criteria for the Free Interpreting Service are set by the Department and are available on the Department's website. Eligibility to access the service is assessed by the Department, through TIS National.

The Free Translating Service, which is funded by the Department of Immigration and Citizenship through an external translation service provider, enables newly arrived permanent residents and returning Australian citizens to have key personal documents translated into English, at no cost, to assist with their settlement into the community.

Eligibility criteria for the Free Translating Service are set by the Department and are available on the Department's website. The service is accessed via Adult Migrant English Program providers who assess applications, then forward them to the contractor to confirm eligibility and complete the translation.

The Budget allocation for the Free Translating and Interpreting Services for 2013-14 is $14.81 million. Usage of the service is demand driven. Payments will be made as part of Outcome 5, Annual departmental expenses, Program 5.1.1 Settlement Services for Migrants and Refugees, Free Translating and Interpreting Services, described in the Portfolio Budget Statements 2013-14, Budget Related Paper No. 1.11, Immigration and Citizenship Portfolio at page 73.

New item 417.035 establishes legislative authority for the Government to provide funding to the Diversity Council of Australia for the sponsorship of the Ethnic Business Awards. These awards recognise and reward the contributions of migrants to Australian business and the economy; highlight Australia as a key destination to create and sustain business across all sectors of industry, despite race, colour, religion and cultural background; highlight the collective migrant spirit in Australia; and celebrate Australia's diversity.

Payments will be made as part of Program 6.1 Multicultural and Citizenship Services, described in the Portfolio Budget Statements 2013-14, Budget Related Paper No. 1.11, Immigration and Citizenship Portfolio at page 82.

New item 417.036 establishes legislative authority for the Government to fund Harmony Day celebrations. This Program will fund the procurement of promotional products provided to various community organisations and entities in support of their Harmony Day events. Funding will also be provided for the organisation of national events, for the development of educational resources for schools, and to promote the message of Harmony Day that everyone belongs, regardless of racial or cultural background.

New item 417.037 establishes legislative authority for the Government to provide funding for costs associated with the 2011-2013 Irregular Migration Research Program.

The Irregular Migration Research Program implements recommendation 22 of the Report of the Expert Panel on Asylum Seekers which was released on 13 August 2012. The Panel recommended that the incompleteness of the current evidence base on asylum issues should be addressed through a well-managed and adequately funded research program.

Irregular Migration Research Program priorities will be published. Competitive funding processes will apply to relevant program activities. Spending decisions will be made by the Department of Immigration and Citizenship, in line with government approval of the program.

Payments will be made from departmental funds. The program is described at page 15 in the Portfolio Additional Estimates Statements 2012-13: Immigration and Citizenship Portfolio, as a new Government measure taken since the 2012-13 Budget (Table 1.2: DIAC 2012-13 Measures since Budget (excluding PSES)).

New item 417.038 establishes legislative authority for the Government to provide funding for costs associated with the Restoring Family Links (RFL) service.

The RFL service is aimed at tracing and establishing contact between people held, or formerly held, in immigration detention and their family members, as well as addressing the trauma and unresolved loss experienced by families of missing persons. The service is currently provided by the Australian Red Cross Society.

Payments will be made as part of Program 4.2 Onshore Detention Network, described in the Portfolio Budget Statements 2013-14, Budget Related Paper No. 1.11, Immigration and Citizenship Portfolio at page 48, Table 2.3.4 Program Component Expenses for Outcome 4, Program 4.2 Onshore Detention Network, Annual Administered Expenses at pages 53 to 54, and Program 4.2 Onshore Detention Network Deliverables, Key Performance Indicators at page 59.

New item 417.039 establishes legislative authority for the Government to provide funding for costs associated with Memoranda of Understanding (MOU) with State and Territory governments for the provision of policing services to immigration detention facilities. This spending activity will provide certainty regarding roles and responsibilities in the event that police attendance is required at an immigration detention facility. The spending will encourage positive interaction between detainees and police services and is in response to recommendations made in independent reviews into incidents on Christmas Island and at the Villawood Immigration Detention Centre.

Spending decisions will be made by an appropriately delegated departmental officer in line with the FMA Act. Payments will be made as part of Program 4.3 Offshore Asylum Seeker Management, described in the Portfolio Budget Statements 2013-14, Budget Related Paper No. 1.11, Immigration and Citizenship Portfolio at page 55.

New item 417.040 establishes legislative authority for the Government to fund sponsorship of the Young People's Human Rights Medal, which is awarded to an individual under the age of 25 years who has made an outstanding contribution to advancing human rights in Australia.

New item 417.041 establishes legislative authority for the Government to provide funding for costs associated with promoting the value of Australian citizenship. Costs associated with this activity include, but are not limited to, two sponsorship agreements with the National Australia Day Council.

Australia's Local Hero Award is one of the four Australian of the Year Awards and recognises Australian citizens who make extraordinary contributions within their local community. The Awards publicly recognise and promote those people in our communities who exemplify the characteristics of good citizenship. The Department of Immigration and Citizenship has sponsored this award since 2003 as part of its program to promote the value of Australian citizenship. The sponsorship agreement is negotiated and entered into annually and funding is for a fixed program year.

The Department has had an ongoing relationship with the National Australia Day Council since 1999 to promote the value of Australian citizenship and the Australian citizenship affirmation on, and leading up to, Australia Day. The sponsorship agreement is negotiated and entered into annually and funding is for a fixed program year.

Payments will be made as part of Program 6.1 Multicultural and Citizenship Services, described in the Portfolio Budget Statements 2013-14, Budget Related Paper No. 1.11, Immigration and Citizenship Portfolio at page 82.

New item 417.042 establishes legislative authority for the Government to provide funding for costs associated with regional processing and resettlement arrangements. This includes costs incurred under the memoranda of understanding between Australia and regional processing countries. The costs also include funding for accommodation, support, health, management services and claims processing for unauthorised maritime arrivals transferred to regional processing countries and for resettlement, returns and reintegration assistance.

Payments will be made as part of Program 4.3 Offshore Asylum Seeker Management, described in the Portfolio Budget Statements 2013-14, Budget Related Paper No. 1.11, Immigration and Citizenship Portfolio at page 55.

Commonwealth Numbered Regulations - Explanatory Statements

Details of the Financial Management and Accountability Amendment Regulation 2013 (No. 7)