Overview

The Financial Management and Accountability Amendment Regulation 2012 (No. 7) was enacted to address the legislative gap identified in the Financial Management and Accountability Act 1997 following the High Court's decision in Williams v Commonwealth [2012] HCA 23. This decision necessitated the establishment of legislative authority for certain government spending activities, which the Financial Framework Legislation Amendment Act (No. 3) 2012 subsequently provided for in section 32B of the FMA Act. The regulation, made under subsection 65(1) of the FMA Act, ensures that there is a legislative basis for a new government program, specifically the "Divestment of Commonwealth property – financial assistance", which facilitates payments to assist individuals acquiring Commonwealth property. The regulation was developed in consultation with the Department of Finance and Deregulation and the Australian Government Solicitor, and it is compatible with human rights as recognised in the Human Rights (Parliamentary Scrutiny) Act 2011, without limiting any existing rights or establishing new offences or penalties. The regulation commences on the day after its registration on the Federal Register of Legislative Instruments.

Scope and Application

The Financial Management and Accountability Amendment Regulation 2012 (No. 7) amends the Financial Management and Accountability Regulations 1997 to update the legislative authority for government spending activities as required by the Financial Management and Accountability Act 1997. Specifically, the Regulation responds to the High Court decision in Williams v Commonwealth [2012] HCA 23 by adding a new government program to Schedule 1AA of the Principal Regulations. This new program relates to the "Divestment of Commonwealth property – financial assistance" and allows for payments to assist persons acquiring Commonwealth property, such as heritage properties. The Regulation applies only to FMA Act Agencies and does not affect the private sector. It is compatible with human rights as outlined in the Human Rights (Parliamentary Scrutiny) Act 2011, as it does not engage any of the rights or freedoms in the International Covenant on Civil and Political Rights. The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003 and commences on the day after it is registered on the Federal Register of Legislative Instruments.

Key Provisions

The Financial Management and Accountability Amendment Regulation 2012 (No. 7) amends the Financial Management and Accountability Regulations 1997 by adding a new government program to Schedule 1AA of the Principal Regulations (section 3). This new program, titled "Divestment of Commonwealth property – financial assistance," ensures that there is legislative authority to support payments to assist persons acquiring Commonwealth property (Schedule 1, item 411.003). Under this program, financial assistance may be provided to help a purchaser acquire, manage, and maintain heritage properties that have previously been owned by the Commonwealth, such as at Mylilly Point in the Northern Territory. The regulation imposes obligations on FMA Act agencies to ensure they adhere to the spending activities authorised under this program. Specifically, agencies must ensure that any financial assistance provided under this program is used for the specified purposes and in accordance with the relevant legislative and regulatory requirements. This includes ensuring that the assistance is provided in a manner that is consistent with the objectives of the program and the broader principles of sound financial management and accountability. There are no specific offences, penalties, or civil/criminal consequences outlined for breaches of this regulation. However, agencies that fail to comply with the provisions of the Financial Management and Accountability Act 1997 or the amended regulations may be subject to internal and external audits, investigations, and other oversight mechanisms to ensure compliance. Failure to comply with these oversight mechanisms may result in various consequences, such as financial penalties, reputational damage, or administrative sanctions. While the regulation itself does not establish new offences or penalties, non-compliance with the Financial Management and Accountability Act 1997 or the amended regulations may still result in civil or criminal liability under other applicable laws.