Details of the Financial Framework (Supplementary Powers) Amendment 

(Attorney-General's Portfolio Measures No. 2) Regulations 2021

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Attorney-General's Portfolio Measures No. 2) Regulations 2021.

 

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 Attorney-General's Department (the department).

 

New table item 494 establishes (and renews) legislative authority for government spending on the Expensive Commonwealth Criminal Cases Fund (the ECCCF).

 

The ECCCF provides funding to state and territory legal aid commissions (LACs) for costs incurred in defending clients in serious, expensive Commonwealth criminal matters (such as drug importation, people smuggling, terrorism, fraud and slavery). The ECCCF funds matters where the actual total cost or estimated total cost of each matter is $40,000 or more. Representation in post-sentence order matters, like Control Orders (COs), Continuing Detention Orders (CDOs) and Extended Supervision Orders (ESOs), is not presently eligible for funding through the ECCCF because they are civil matters.

 

The LACs are funded for Commonwealth family, criminal and civil cases through the National Legal Assistance Partnership 2020-25. Expanding the ECCCF to include the costs of defending serious, expensive post-sentence order matters will ensure that LACs do not divert or reallocate funding away from other Commonwealth service priorities, such as family law matters, to meet the costs of post-sentence order representation services.

The scope of the ECCCF is being expanded to provide support to LACs to begin to represent convicted offenders in post-sentence order matters, such as existing COs and CDOs, as well as ESOs (which will be introduced by the Counter-Terrorism Legislation Amendment (High-Risk Terrorist Offenders) Bill 2020, if passed by the Parliament). Government spending on the expanded scope of the ECCCF relating to ESOs is dependent on this bill passing through the Parliament and the legislative changes taking effect. The Government will not undertake any spending under the expanded ECCCF on the ESO component until these legislative changes are in place.

 

The expansion to the scope of the ECCCF supports the operationalisation of post-sentence orders which aim to better protect Australians from the enduring risk posed by convicted terrorist offenders. In recent years, concerns have been raised by the Parliamentary Joint Committee on Intelligence and Security about the adequacy and availability of legal assistance for respondents in the CDO and the CO matters. Additional funding for the ECCCF aims to ensure that respondents have adequate legal assistance throughout the proceedings.

 

Table item 494 is necessary to give effect to the Government's policy agenda for managing high-risk terrorist offenders and to ensure the respondents have adequate legal assistance throughout the proceedings. Funding for LACs through the ECCCF will ensure that complex and contested High-Risk Terrorist Offender applications proceed efficiently and are not delayed, suspended or adjourned due to inadequate legal representation. Failure to ensure the defendants have legal representation could risk delays or stays in proceedings.

 

Funding to represent convicted offenders in post-sentence order matters will be provided to LACS in 2021-22 through a grant process. The ECCCF funding will be available for post-sentence order matters initiated in 2021-22, with all LACs invited to apply through a new grant round. The grants will be delivered under grant opportunity guidelines, which will be approved by the Attorney-General.

 

Funding will be provided to LACs via a grant selection process, in accordance with the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017. The department is considering the type of grant opportunity most appropriate for this funding arrangement.

 

Information on the grant opportunity, including the grant opportunity guidelines, will be made available on the GrantConnect website (www.grants.gov.au), and the grants will be administered by the Department of Social Services' Community Grants Hub. Final decisions about Commonwealth expenditure and the selection of successful grant applicants will be made by the relevant delegate of the Secretary of the department, in accordance with the department's Financial Framework (Supplementary Powers) Financial Delegation 2017.

 

Funding decisions made in connection with payments under the ECCCF are not considered appropriate for independent merits review as such decisions are automatic or mandatory in nature. The decision to make a payment by a departmental official will be very limited and procedural (confined to verifying the case meets strict criteria, for example funding spent and case type). The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 3.8 to 3.11 of the guide, What decisions should be subject to merit review?).

 

The LACs were formally informed of the decision to expand the ECCCF to include representation for post-sentence order matters after the release of the 2021-22 Budget. The department subsequently sent letters to LACs, providing additional detail about the Government's intention to expand the scope of the ECCCF. The LACs were broadly supportive of the ECCCF expansion.

 

Funding for this item of $43.7 million over four years from 2021-22 will come from Program 1.4: Justice Services, which is part of Outcome 1. Details are set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.2, Attorney-General’s Portfolio at page 25. This includes additional funding of $10.0 million in 2021-22 in the 2021-22 Budget.

 

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 executive power and the express incidental power (sections 61 and 51(xxxix));

*         the defence power (section 51(vi)); and

*         the referral of power from the States (section 51(xxxvii)).

 

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 the Parliament, the executive or the Courts 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 the execution and maintenance of the Constitution and the laws of the Commonwealth.

 

Legal assistance services for representation in post-sentence order matters will support the proper execution of the regimes for the relevant post-sentence orders contained in the Criminal Code Act 1995.

 

Defence power and referral of powers

 

Section 51(vi) of the Constitution empowers the Parliament to make laws with respect to 'the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth'.

 

Section 51(xxxvii) empowers the Parliament to make laws with respect to 'matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States'.

 

The ECCCF will support funding for legal assistance in post-sentence order matters relating to the relevant regimes contained in the Criminal Code Act 1995.

 

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 (Attorney-General's Portfolio Measures No. 2) Regulations 2021

 

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 (Attorney-General's Portfolio Measures No. 2) Regulations 2021 (the Regulations) amend Schedule 1AB to the FF(SP) Regulations to establish (and renew) legislative authority for government spending on the Expensive Commonwealth Criminal Cases Fund (the ECCCF). The Attorney-General's Department has responsibility for the ECCCF.

 

The ECCCF provides funding to state and territory legal aid commissions (LACs) for costs incurred in defending clients in serious, expensive Commonwealth criminal matters (such as drug importation, people smuggling, terrorism, fraud and slavery). The ECCCF funds matters where the actual total cost or estimated total cost of each matter is $40,000 or more. Representation in post-sentence order matters, like Control Orders (COs), Continuing Detention Orders (CDOs) and Extended Supervision Orders (ESOs), is not presently eligible for funding through the ECCCF because they are civil matters.

 

The LACs are funded for Commonwealth family, criminal and civil cases through the National Legal Assistance Partnership 2020-25. Expanding the ECCCF to include the costs of defending serious, expensive post-sentence order matters will ensure that LACs do not divert or reallocate funding away from other Commonwealth service priorities, such as family law matters, to meet the costs of post-sentence order representation services.

 

The scope of the ECCCF is being expanded to provide support to LACs to begin to represent convicted offenders in post-sentence order matters, such as existing COs and CDOs, as well as ESOs (which will be introduced by the Counter-Terrorism Legislation Amendment (High-Risk Terrorist Offenders) Bill 2020, if passed by the Parliament). Government spending on the expanded scope of the ECCCF relating to ESOs is dependent on this bill passing through the Parliament and the legislative changes taking effect.

 

The expansion to the scope of the ECCCF supports the operationalisation of post-sentence orders which aim to better protect Australians from the enduring risk posed by convicted terrorist offenders. In recent years, concerns have been raised by the Parliamentary Joint Committee on Intelligence and Security about the adequacy and availability of legal assistance for respondents in the CDO and the CO matters. Additional funding for the ECCCF aims to ensure that respondents have adequate legal assistance throughout the proceedings.

 

Human rights implications

 

This disallowable legislative instrument engages the following right:

*         the right to be equal before the courts and tribunals - Article 14 of the International Covenant on Civil and Political Rights (ICCPR), read with Article 2.

 

Article 2 of the ICCPR requires each State Party to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR without distinction of any kind.

 

Article 14 of the ICCPR states, in part:

 

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

[ ... ]

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it'; [ ... ]

 

This disallowable legislative instrument will promote these entitlements by ensuring that those subject to post-sentence orders receive legal counsel if they do not have sufficient means to pay for it, by providing defence in the form of legal assistance. This disallowable legislative instrument promotes the right to be tried without delay, by reducing the risk that a lack of representation and means to acquire it will cause trials to be stayed.

 

Conclusion

 

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

 

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance