EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 70
Subject - Financial Management and Accountability Act 1997
Financial Management and Accountability Amendment Regulation 2013 (No. 3)
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.
The Regulation amends the Financial Management and Accountability Regulations 1997 (the Principal Regulations) to add a new program to Schedule 1AA to establish legislative authority for the Government to spend on activities related to a referendum on the financial recognition of local government.
Further details on the Regulation are set out in the Attachment.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003. The amendments to Schedule 1AA commence on the day the Regulation is registered on the Federal Register of Legislative Instruments.
Consultation
In accordance with section 17 of the Legislative Instruments Act 2003, consultation has taken place with the Department of Regional Australia, Local Government, Arts and Sport (DRALGAS). 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 DRALGAS, an FMA Act agency, and does not adversely affect the private sector.
Statement of Compatibility with Human Rights
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.
Article 25 of the International Covenant on Civil and Political Rights relates to people’s rights to take part in public affairs and elections. The amendments to Schedule 1AA would ensure that a range of information about a proposed referendum is available to voters. The amendments do not limit any human rights, nor establish any new offences or penalties.
Authority: Subsection 65(1) of the Financial Management and Accountability Act 1997
ATTACHMENT
Details of the Financial Management and Accountability Amendment Regulation 2013 (No. 3)
Section 1 – Name of Regulation
This section provides that the title of the Regulation is the Financial Management and Accountability Amendment Regulation 2013 (No. 3).
Section 2 – Commencement
This section provides that the Regulation commences on the day it is registered on the Federal Register of Legislative Instruments.
Section 3 – Authority
This section provides that the Regulation is made under section 65 of the Financial Management and Accountability Act 1997.
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
Item [1] – After item 421.002 of Schedule 1AA
This item adds a new program to Part 4 of Schedule 1AA to establish legislative authority for the Government to fund communications and education campaigns connected to a proposed referendum on the financial recognition of local government (new item 421.002A). Although related to local government, this program is a time limited measure, specific only to the proposed referendum, and is therefore separate from the Local Government program at item 421.002.
Spending under this program will not be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). The Explanatory Memorandum to the Financial Framework Legislation Amendment Act (No. 3) 2012 sets out the policy reasons for excluding ADJR Act review of decisions made in relation to activities which are listed in Schedule 1AA to the Principal Regulations.
Further detail about the proposed referendum is contained in the joint media release of 9 May 2013 by the Prime Minister, the Hon Julia Gillard MP, the Minister for Regional Development and Local Government, the Hon Anthony Albanese MP, and the Attorney-General, the Hon Mark Dreyfus QC MP.
Overview
The Financial Management and Accountability Amendment Regulation 2013 (No. 3) was enacted to address the need for legislative authority to fund activities related to a proposed referendum on the financial recognition of local government. This regulation amends the Financial Management and Accountability Regulations 1997 (Principal Regulations), adding a new program to Schedule 1AA. Enacted by the Parliament of Australia, the regulation ensures that the government has the necessary framework to manage public money and public property for this specific purpose. The policy objective is to establish a time-limited legislative measure to fund communications and education campaigns connected to the referendum, ensuring that spending under this program is not subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977. This ensures that the activities remain focused and do not interfere with other programs, particularly the broader Local Government program.
Scope and Application
The Financial Management and Accountability Amendment Regulation 2013 (No. 3) amends the Financial Management and Accountability Regulations 1997 to provide legislative authority for the Government to spend on activities related to a referendum on the financial recognition of local government. This amendment applies to the Commonwealth Departments of State, parliamentary departments, and prescribed agencies, including the Department of Regional Australia, Local Government, Arts and Sport. The scope of the Regulation is confined to the establishment of a new program within Schedule 1AA to fund communications and education campaigns connected to the proposed referendum, which is a time-limited measure separate from the general Local Government program. The Regulation does not apply to the private sector and therefore does not require a regulation impact statement. It is made under the authority of the Financial Management and Accountability Act 1997, and its provisions commence on the day it is registered on the Federal Register of Legislative Instruments. This amendment ensures that information about the proposed referendum is available to voters, in accordance with human rights obligations, without limiting any rights or establishing new offences or penalties.
Key Provisions
The Financial Management and Accountability Amendment Regulation 2013 (No. 3) amends the Financial Management and Accountability Regulations 1997, introducing a new program (item 421.002A) in Schedule 1AA. This program establishes legislative authority for the government to fund communications and education campaigns related to a proposed referendum on the financial recognition of local government (section 4). The Regulation is grounded in the authority provided by section 65 of the Financial Management and Accountability Act 1997 (section 3), and it comes into effect on the day it is registered on the Federal Register of Legislative Instruments (section 2).
The primary obligation imposed by this Regulation is on the Department of Regional Australia, Local Government, Arts and Sport (DRALGAS), as an FMA Act agency. The amendment in Schedule 1AA allows DRALGAS to allocate funds specifically for the proposed referendum on financial recognition of local government. This funding is intended to support communications and education campaigns that will provide voters with necessary information about the referendum (item [1]). Importantly, spending under this program will not be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), as specified in the Explanatory Memorandum to the Financial Framework Legislation Amendment Act (No. 3) 2012.
There are no specific offences, penalties, or civil/criminal consequences outlined in this Regulation for breaches. However, the regulation ensures that the spending on the referendum-related activities is governed by the legislative framework set out in the Financial Management and Accountability Act 1997. The Regulation is also compatible with the human rights and freedoms recognised in international instruments, such as Article 25 of the International Covenant on Civil and Political Rights, which concerns the right to participate in public affairs and elections. Importantly, the amendments do not impose any new offences or penalties. The Regulation was developed in consultation with relevant departments and with advice from the Australian Government Solicitor, ensuring that it aligns with the legal and policy objectives of the government.