EXPLANATORY STATEMENT
Appropriation Act (No. 1) 2017‑2018
Advance to the Finance Minister Determination (No. 1 of 2017‑2018)
Purpose of the Determination
This Advance to the Finance Minister (AFM) is provided under subsection 10(2) of the Appropriation Act (No. 1) 2017‑2018 (the Act). Section 10 enables the Finance Minister to issue amounts from the AFM, up to a limit of $295 million if he is satisfied that there is an urgent need for expenditure in the current year that is not provided for, or is insufficiently provided for, in Schedule 1 of the Act because the expenditure was unforeseen until after the last day on which it was practicable to provide for it in the Bill for this Act before that Bill was introduced into the House of Representatives.
On 8 August 2017, the Government announced that it will recommit the Plebiscite (Same-Sex Marriage) Bill 2016 to a vote in the Senate and if the Senate does not pass the bill, proceed with a voluntary postal plebiscite for all Australians enrolled on the Commonwealth Electoral Roll conducted by the Australian Bureau of Statistics (ABS).
As the Senate has not passed the Plebiscite (Same-Sex Marriage) Bill 2016, funding is being made available to the ABS to undertake the voluntary postal plebiscite. The Government has also announced that the final result of the voluntary postal plebiscite is to be known no later than 15 November 2017.
These government decisions were not made until after the Appropriation Bill (No. 1) 2017‑2018 was introduced into the House of Representatives on Tuesday, 9 May 2017. These circumstances meet the requirements of section 10 of the Act regarding the expenditure being urgent because it was unforeseen.
The proposed approach being taken is supported by both Constitutional and legislative authority. Under Section 51 of the Constitution, the Commonwealth Parliament has the power to make laws in relation to census and statistics. The Commonwealth Parliament has made such laws, namely the Census and Statistics Act 1905 and the Australian Bureau of Statistics Act 1975. All the current authority for the ABS and the Australian Statistician to spend appropriated funds in discharging their functions comes either from the executive power under Section 61 of the Constitution or by implication arising from those statutes that confer functions and powers upon them (the Census and Statistics Act 1905 and the Australian Bureau of Statistics Act 1975). ABS departmental appropriations are insufficient for this activity.
The effect of the determination is that Schedule 1 of the Appropriation Act (No. 1) 2017‑2018 will have effect as if it were amended as specified in the determination.
Advances to the Finance Minister generally
The section providing for the AFM is contained in the annual Appropriation Acts. It enables the Finance Minister to facilitate urgent and unforeseen expenditure that was not within the contemplation of Parliament when the Appropriation Act was passed, and was therefore not provided for in Schedule 1 of the Appropriation Act.
A determination made under subsection 10(2) of the Appropriation Act (No. 1) 2017‑2018 is a legislative instrument, but neither section 42 (disallowance) nor Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 applies to the determination.
Statement of Compatibility with Human Rights
The annual Appropriation Acts perform an important constitutional function, by authorising the withdrawal of money from the Consolidated Revenue Fund for the broad purposes identified in the annual Appropriation Acts.
However, as the High Court has emphasised, beyond this, the annual Appropriation Acts do not create rights and nor do they, importantly, impose any duties.
Given that the legal effect of annual Appropriation Acts is limited in this way, the increase of amounts in the annual Appropriation Acts through an AFM is not seen as engaging, or otherwise affecting, the rights or freedoms relevant to the Human Rights (Parliamentary Scrutiny) Act 2011.
Consultation and Impact
Consistent with Part 1 of the Legislation Act 2003, ABS was consulted in the preparation of this Determination.
The instrument determines that, in the Appropriation Act (No. 1) 2017-2018, the departmental item for the ABS is increased by $122,000,000.
Overview
The Appropriation Act (No. 1) 2017-2018, enacted to address the need for urgent and unforeseen expenditure that could not be anticipated during the preparation of the Act, provides for an Advance to the Finance Minister (AFM). This Act enables the Finance Minister to issue amounts up to a specified limit, ensuring that essential expenditures that arise unexpectedly can be met without waiting for the next fiscal year's appropriation. The Advance to the Finance Minister Determination (No. 1 of 2017-2018) was made by the relevant authority under the authority vested in the Minister by subsection 10(2) of the Act, to facilitate the urgent need for funding to conduct a voluntary postal plebiscite on same-sex marriage, as the decision to proceed with the plebiscite was unforeseen at the time the Appropriation Act was introduced into the House of Representatives. The policy objective underpinning this determination is to ensure that unforeseen but necessary government activities can proceed without delay, maintaining the continuity of essential public services and legislative mandates.
Scope and Application
The Advance to the Finance Minister Determination (No. 1 of 2017-2018) applies to the appropriation of funds under the Appropriation Act (No. 1) 2017-2018. It specifically enables the Finance Minister to issue amounts from the Advance to the Finance Minister (AFM) up to a limit of $295 million to cover urgent and unforeseen expenditures not provided for in Schedule 1 of the Act. This determination is necessitated by the unforeseen need for funding the voluntary postal plebiscite for same-sex marriage, which was not anticipated at the time the Appropriation Bill (No. 1) 2017-2018 was introduced. The Act applies to the Commonwealth of Australia, specifically the Finance Minister and the Australian Bureau of Statistics (ABS), which is the entity responsible for conducting the plebiscite. The jurisdictional reach of this Act is national, as it pertains to a matter of federal significance. The determination does not provide for any exclusions, exemptions, or specific thresholds beyond the $295 million limit specified in the Act. Subordinate instruments may extend or restrict the application of the Act, but no such instruments are mentioned in the provided text.
Key Provisions
The main operative sections of the Advance to the Finance Minister Determination (No. 1 of 2017-2018) pertain to the appropriation of funds from the Advance to the Finance Minister (AFM) (subsection 10(2) of the Appropriation Act (No. 1) 2017-2018). This provision enables the Finance Minister to issue funds from the AFM up to a limit of $295 million if he is satisfied that there is an urgent need for expenditure in the current year that is not provided for, or is insufficiently provided for, in Schedule 1 of the Act. The determination is specifically to provide funding for the Australian Bureau of Statistics (ABS) to conduct a voluntary postal plebiscite regarding same-sex marriage. This determination is based on the requirement that the expenditure must be urgent and unforeseen, which applies in this case as the decisions regarding the plebiscite were made after the Appropriation Bill (No. 1) 2017-2018 was introduced into the House of Representatives.
The obligations and requirements imposed by this Act are primarily focused on the Finance Minister's role in issuing funds from the AFM under certain conditions. The determination specifies that the departmental item for the ABS is to be increased by $122,000,000. This increase is intended to cover the costs associated with the conduct of the plebiscite. The determination is made in accordance with the legislative authority provided by section 10 of the Appropriation Act (No. 1) 2017-2018, and it is supported by constitutional and legislative authority. The ABS was consulted in the preparation of this determination as required by the Legislation Act 2003.
The legislation does not explicitly outline offences, penalties, or civil/criminal consequences for breach. However, it is implied that any misuse of the funds or failure to adhere to the terms of the determination could potentially lead to legal scrutiny or repercussions, given the oversight mechanisms in place for the appropriation of public funds. The Finance Minister’s satisfaction that there is an urgent need for the expenditure is a key criterion, and any misuse or mismanagement of these funds could be subject to parliamentary scrutiny and potential legal consequences.