Attachment A

 

Details of the Financial Framework (Supplementary Powers) Amendment

(Treasury Measures No. 1) Regulations 2023

 

Section 1 – Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Treasury Measures No. 1) Regulations 2023.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after registration 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 3 of Schedule 1AB (table)

 

This item adds a new table item to Part 3 of Schedule 1AB to establish legislative authority for government spending on an activity to be administered by the Department of the Treasury (the department).

 

New table item 71 establishes legislative authority for the Government to provide a grant to the Council of Small Business Organisations of Australia Limited (COSBOA) to deliver the small business cyber wardens program (Cyber Wardens Program).

 

In the 2023-24 Budget, the Government announced a small business package which included commitment of $23.4 million over three years from 2023-24 for a small business Cyber Wardens Program (https://ministers.treasury.gov.au/ministers/julie-collins-2022/media-releases/budget-delivers-small-business).

 

Increasing cyber security efforts to protect Australians and our economy is a priority for the development of future cyber security strategy for application over the next 10 years. Small businesses have rapidly digitalised since the COVID-19 pandemic, bringing new opportunities but also increasing their vulnerability to cyber threats. Cyber attacks can cause financial loss, reputational damage and interruption to trading, which can be existential threats for a small business with limited ability to absorb losses. Improving the capabilities of small businesses will contribute to a strong baseline of cyber security for Australia, enabling all Australians to stay safe online and access the opportunities offered by the digital economy.

 

The Cyber Wardens Program will be delivered by COSBOA. COSBOA was founded in 1977 and provides advocacy on small business issues with the aim of supporting development of small business in Australia, progressing policy change and regulatory reform and raising awareness of the importance of small business in the Australian economy.

 

COSBOA conceived the original design of the Cyber Wardens Program and developed it into a pilot that is being run in 2023.The initial pilot was launched in October 2022 as a partnership between COSBOA, the Commonwealth Bank of Australia (Commonwealth Bank) and Telstra Corporation (Telstra).

 

The program provides micro-credential certification and training based on the Australian Cyber Security Centre's (ACSC) Essential Eight mitigation strategies for protecting an organisation's Information Technology system. The pilot aims to train 500 Cyber Wardens in the 12 months to October 2023. The Cyber Wardens Program will scale up the pilot program and will also include a National Roadshow including 24 events to raise awareness of the importance of behavioural change to improve cyber security.

 

Administered funding of up to $23.0 million will be provided to COSBOA through an ad hoc grant to deliver the program over three years to 30 June 2026. Additional funding of $0.4 million is available to the department to manage delivery of the program through the Business Grants Hub.

 

The objective of the program is to build the capabilities of small businesses to protect themselves from cyber security threats, by training in-house 'cyber wardens' to manage risks that the business may face. The training is designed specifically for non-technical small business employees and will be provided at no cost to small businesses. At the core of the program is training via an online learning platform, focussing on building a cyber-safe mindset and cultural capabilities alongside targeted technical skills.

 

The program will create Australia's first cyber safety workplace certification or
micro-credential for the small business sector. Delivering the program online will allow businesses across Australia to participate, including in regional and rural locations. The Cyber Wardens Program will support more than 15,000 small businesses to train around 50,000 cyber wardens.

 

The Cyder Wardens Program will be delivered in accordance with the Cyber Wardens Learning Framework (the Framework), which outlines the key principles, strategies, and methods used to facilitate learning and ensure that learning objectives are achieved.

 

The Framework has been developed through consultation with small business cyber security specialists, including the ACSC and the pilot founding sponsors, Telstra and Commonwealth Bank. The Framework has been endorsed by the Cyber Wardens Advisory Board, which is comprised of experts in cyber security and small business.

 

The core Cyber Wardens credential will be a portable skill. A trained cyber warden will be able to apply the learning in each new role if they move to a different role or change employers. Participants who complete the training will receive a certificate of completion acknowledging they have undertaken the training. A business with a current employee enrolled with the Cyber Wardens Program will receive annual store signage to display, encouraging participants to keep skills current and giving customers confidence to shop there.

 

While the core of the program is the training that small businesses will receive, the program will also support research on small business cyber security capability and national awareness and education campaigns.

 

The program will be delivered by multiple touchpoints that include a platform of digital resources, national events program, social media, a dedicated e-learning platform and industry stakeholder resources. The national awareness campaign will feature a platform launch, research publications and events.

 

The grant will be an ad hoc grant and will be administered in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Commonwealth Grant Rules and Guidelines 2017 (CGRGs) and departmental grant requirements and processes.

 

The department will enter into a services agreement with the Business Grants Hub within the Department of Industry, Science and Resources (DISR) for the administration of this grant. Responsibility for drafting the grant opportunity guidelines will be shared between the department as the policy owners and the Business Grants Hub which has expertise in grant design and administration. In addition to developing the grant opportunity guidelines, the Business Grants Hub will also assess the grant application against these guidelines.

 

The final decision for the grant will be made by a delegate of the Secretary of the department, who will be an SES officer of the Business Grants Hub with relevant expertise in accordance with the delegations of the Secretary. The decision-maker will be provided advice to support the decision-making based on the Business Grants Hub's assessment. Once the grant agreement is executed, DISR will manage the grant agreement for the duration of the grant, on the department's behalf. The department will maintain policy, financial and program responsibility for the Cyber Wardens Program.

 

The PGPA Act and the CGRGs will govern the program and administration of the funding for the Cyber Wardens Program. Program objectives, service description, milestones and key performance indicators, and funding will be specified in the grant opportunity guidelines and funding agreement. The service arrangement between the department and DISR for the latter to administer the program will be detailed in the services schedule pursuant to the Memorandum of Understanding between DISR and the department.

 

Notification of the awarding of the grant will be published on the GrantConnect website (www.grants.gov.au). Information for small businesses wanting to participate in the Cyber Wardens Program will be published on business.gov.au.

 

Funding decisions in relation to the program are not suitable for independent merits review as the decisions relate to the provision of an ad hoc grant to a certain service provider. The decision by the Government to allocate funds to COSBOA to deliver the Cyber Wardens Program has been made and announced as part of the 2023-24 Budget. Decisions of this nature are not suitable for review as they are budgetary decisions of a policy nature, rather than decisions immediately affecting any particular person's interests. The Administrative Review Council (ARC) has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.16 to 4.19 of the guide, What decisions should be subject to merit review? (ARC guide)).

 

The review and audit process undertaken by the Australian National Audit Office (ANAO) also provides a mechanism to review Australian Government spending decisions and report any concerns to the Parliament. These requirements and mechanisms help to ensure the proper use of Commonwealth resources and appropriate transparency around decisions relating to making, varying or administering arrangements to spend relevant money.

 

Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

 

COSBOA consulted widely in developing the Cyber Wardens Program. They consulted with small businesses through their member organisations, with cyber security specialists including the ACSC, and with the pilot founding sponsors, Telstra and Commonwealth Bank. Additionally, the program's learning Framework has been endorsed by the Cyber Wardens Advisory Board, which is comprised of experts in cyber security and small business. Feedback from the consultation was incorporated into the design of the program.

 

Funding of $23.4 million for the program was included in the 2023-24 Budget under the measure 'Cyber Security - additional funding' for a period of three years commencing in 2023-24. Details are set out in Budget 2023-24, Budget Measures, Budget Paper No. 2 at page 156.

 

Funding for this item will come from Program 1.3: Support for Markets and Business, which is part of Outcome 1. Details are set out in the Portfolio Budget Statements 2023-24, Budget Related Paper No. 1.15, Treasury Portfolio at page 21.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the purpose of the item references the communications power (section 51(v)) of the Constitution.

 

Communications power

 

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

 

The grant will facilitate a program to support small businesses in their use of electronic communication services such as the internet by improving their cyber security capabilities.

 

Item 2 - 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 to be administered by the department.

 

New table item 616 establishes legislative authority for government spending on a superannuation consumer advocate program (the program).

 

In response to recommendation 28 of the Productivity Commission's inquiry report Superannuation: Assessing Efficiency and Competitiveness (www.pc.gov.au/inquiries/completed/superannuation/assessment/report), funding for an expression of interest process was announced to establish an independent advocacy and assistance body for superannuation members. Through this process, a grant for a superannuation consumer advocate was provided to Super Consumers Australia. The grant to Super Consumers Australia will end on 30 November 2023.

 

In the 2023-24 Budget, the Government announced the continuation of government support for a superannuation consumer advocate. This program is consistent with the Government's objective to promote improved member outcomes as a central focus of the superannuation reform agenda.

 

The objective of the program is to fund research and advocacy aimed at improving outcomes for members of superannuation funds. The program ensures that the interests of consumers are promoted in superannuation policy debates, which are often dominated by well-funded industry actors. It also promotes research and analysis to assist policy development and consumer understanding of the superannuation system. Maintaining funding for a superannuation consumer advocate will keep the superannuation sector in line with other complex markets, such as telecommunications and energy, where consumer advocacy has improved outcomes for consumers.

 

The superannuation consumer advocate will be required to use the funding to:

• undertake superannuation member outcomes research and analysis;
• engage with government, regulators and industry on policy issues affecting members of superannuation funds; and
• represent the interests of superannuation members in public discourse and future superannuation policy debates.

 

The program will provide a new grant of $5.0 million over five years, with $1.0 million allocated per year, from 1 December 2023 to support a superannuation consumer advocate in their research and advocacy to improve members' outcomes. The department will conduct an open and competitive selection process to determine the recipient.

 

Funding will be provided across five years to allow the advocate the opportunity for longer-term thinking, including establishing a research program and creating a more effective advocacy strategy. The cost of the grant will be fully offset through an increase in the Superannuation Supervisory Levy administered by the Australian Prudential Regulation Authority (APRA).

 

The department will deliver the program through an open competitive grant process, conducted in accordance with the Commonwealth resource management framework, including the PGPA Act, the CGRGs and departmental grant requirements and processes.

 

The department will administer the grant and information about the grant, including the grant opportunity guidelines and information about the final decision, will be made available on the GrantConnect website (www.grants.gov.au). The grant assessment, selection and notification processes, as well as eligibility requirements, will be detailed in the grant opportunity guidelines.

 

Eligible applications will be assessed against the nominated selection criteria to be published in the grant opportunity guidelines. One applicant will be selected to receive the grant. An assessment panel with a sound understanding of the policy and operational context of the grant will assess applicants and make a recommendation to the final decision-maker. The final decision will be made by the delegate of the Secretary of the department.

 

Funding decisions in relation to the program are not suitable for independent merits review as these decisions will relate to the allocation of finite resources and an allocation already made to a party would be affected by overturning the original decision. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the ARC guide).

 

The review and audit process undertaken by the ANAO also provides a mechanism to review Australian Government spending decisions and report any concerns to the Parliament. These requirements and mechanisms help to ensure the proper use of Commonwealth resources and appropriate transparency around decisions relating to making, varying or administering arrangements to spend relevant money.

 

Further, the right to judicial review may be available. Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

 

As the overall government's objective remains unchanged, the department considers it is not necessary to undertake public consultation in relation to the continuation of the grant.

 

Funding of $5.0 million for the program was included in the 2023-24 Budget under the measure 'Treasury Portfolio - additional resourcing' for a period of five years commencing in 2023-24. Details are set out in Budget 2023-24, Budget Measures, Budget Paper No. 2 at page 213.

 

Funding for this item will come from Program 1.3: Support for Markets and Businesses, which is part of Outcome 1. Details are set out in the Portfolio Budget Statements 2023-24, Budget Related Paper No. 1.15, Treasury Portfolio at page 42.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the express incidental power and the executive power (sections 51(xxxix) and 61) of the Constitution.

 

Executive power and express incidental power

 

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 it by the Constitution. Together with the executive power in section 61 of the Constitution, the express incidental power extends to a range of matters, including activities that form part of the ordinary and well-recognised functions of government, and the execution and maintenance of the laws of the Commonwealth.

 

The grant concerns the operation of Commonwealth legislation related to superannuation. The item authorises the making of payments for the purposes of informing Commonwealth policy development, and explaining to members and the public the effect of Commonwealth laws and policies related to superannuation.

Attachment B

 

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 (Treasury Measures No. 1) Regulations 2023

 

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 (Treasury Measures No. 1) Regulations 2023 (the Regulations) amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities to be administered by the Department of the Treasury.

 

This disallowable legislative instrument adds the following table item to Part 3 of Schedule 1AB:

• table item 71 'Grant to Council of Small Business Organisations of Australia Limited - small business cyber wardens program';

 

and adds the following table item to Part 4 of Schedule 1AB:

• table item 616 'Superannuation consumer advocate'.

 

Table item 71 - Grant to Council of Small Business Organisations of Australia Limited - small business cyber wardens program

 

Table item 71 establishes legislative authority for the Government to provide a grant to Council of Small Business Organisations of Australia Limited (COSBOA) to deliver the small business cyber wardens program (Cyber Wardens Program).

 

COSBOA, which conceived the original design of the Cyber Wardens Program and developed it into a pilot that is being run in 2023, will receive funding of $23.0 million through an ad hoc grant to deliver the program over three years to 30 June 2026.

 

The Cyber Wardens Program aims to build the capabilities of small businesses to protect themselves from cyber security threats, by training in-house 'cyber wardens' to manage risks that the business may face. The training is designed specifically for non-technical small business employees and will be provided at no cost to small businesses. Training is via an online learning platform, focussing on building a cyber-safe mindset and cultural capabilities alongside targeted technical skills. The program will create Australia's first cyber safety workplace certification or micro-credential for the small business sector. Delivering the program online will allow businesses across Australia to participate, including in regional and rural locations.

 

The Cyber Wardens Program will support more than 15,000 small businesses to train around 50,000 cyber wardens. The Cyber Wardens Program will also support an annual Small Business Cyber Security 'Pulse Check', tracking the baseline cyber security needs, preparedness and capability of small businesses, and national awareness and education campaigns to engage small business owners and their employees.

 

Human rights implications

 

Table item 71 does not engage any of the applicable human rights or freedoms.

 

Conclusion

 

Table item 71 is compatible with human rights as it does not raise any human rights issues.

 

Table item 616 - Superannuation consumer advocate

 

Table item 616 establishes legislative authority for government spending on a superannuation consumer advocate program (the program).

 

In response to the Productivity Commission's report Superannuation: Assessing Efficiency and Competitiveness, an independent advocacy and assistance body for superannuation members was established. A grant for a superannuation consumer advocate was provided to Super Consumers Australia, which will end on 30 November 2023.

 

In the 2023-24 Budget, the Government announced the continuation of government support for a superannuation consumer advocate. The program is consistent with the Government's objective to promote improved member outcomes as a central focus of the superannuation reform agenda by continuing to fund the superannuation consumer advocate.

 

The objective of the program is to fund research and advocacy aimed at improving outcomes for members of superannuation funds. The program ensures that the interests of consumers are promoted in superannuation policy debates, which are often dominated by well-funded industry actors. It also promotes research and analysis to assist policy development and consumer understanding of the superannuation system. Maintaining funding for a superannuation consumer advocate will keep the superannuation sector in line with other complex markets, such as telecommunications and energy, where consumer advocacy has improved outcomes for consumers.

 

Funding of $5.0 million over five years from 2023-24 will be used to:

• undertake superannuation member outcomes research and analysis;
• engage with government, regulators and industry on policy issues affecting members of superannuation funds; and
• represent the interests of superannuation members in public discourse and future superannuation policy debates.

 

Human rights implications

 

Table item 616 engages the following human right:

*         the right to social security - Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2.

 

Right to social security

 

Article 2 of the ICESCR requires States Parties to take steps to progressively achieve the full realisation of the rights recognised in the ICESCR by all appropriate means.

 

Article 9 of the ICESCR requires States Parties to recognise the right of everyone to social security.

 

The right to social security requires Australia to, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

 

Table item 616 improves the right to social security in Australia by providing funding to support a superannuation consumer advocate in their research and advocacy to improve members' outcomes. This constitutes a positive interaction with the right to social security because the superannuation consumer advocate will undertake activity with the aim of improving the financial benefit members receive from their superannuation.

 

Conclusion

 

Table item 616 is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance