EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 3
Issued by the authority of the Minister for Finance and Deregulation
Financial Management and Accountability Act 1997
Financial Management and Accountability Amendment Regulations 2010 (No. 1)
The Financial Management and Accountability Act 1997 (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.
Subsection 65(1) of the FMA Act provides that the Governor-General may make regulations prescribing matters required or permitted by the FMA Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the FMA Act.
Section 5 of the FMA Act provides that for the purposes of the FMA Act, a prescribed Agency means a body, organisation or group of persons prescribed by the Regulations for the purposes of that definition. Agencies are currently prescribed in Schedule 1 to the Financial Management and Accountability Regulations 1997 (the FMA Regulations).
The Amendment Regulations removed item 113, the Australian Industrial Registry, item 116A, the Australian National Preventive Health Agency (ANPHA), and item 182, the Workplace Authority, from Schedule 1 to the FMA Regulations. This removes those agencies from the list of prescribed agencies in the FMA Regulations.
The AIR and the Workplace Authority were removed to reflect their abolition dates, as detailed in Schedule 18 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Legislation establishing Fair Work Australia provides for a staged cessation of its predecessor bodies, which include the AIR and the Workplace Authority.
The Financial Management and Accountability Amendment Regulations 2009 (No. 7) prescribed ANPHA as an FMA Act agency from 1 January 2010, in anticipation of the Parliament passing the Australian National Preventive Health Agency Bill 2009, the primary legislation that would establish ANPHA. However, the Parliament did not consider the Bill prior to the end of the 2009 Parliamentary Sitting period. Accordingly, the Amendment Regulations retrospectively amend the FMA Regulations, to confirm that ANPHA was not established on 1 January 2010.
The Amendment Regulations retrospectively tie the removal of the references to the now non-existent bodies, to the date on which each reference lost any legal effect, to protect the public from being misled on the face of the legislation about the possible validity of the references.
The Amendment Regulations do not contravene subsection 12(2) of the Legislative Instruments Act 2003, as the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration would not be affected so as to disadvantage that person, and, no liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth), in respect of anything done or omitted to be done before the date of registration.
Schedule 1 of the Amendment Regulations, relating to AIR and ANPHA, is taken to have commenced on 31 December 2009. Schedule 2, relating to the Workplace Authority, is taken to have commenced on 31 January 2010.
The FMA Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Amendment Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
In accordance with section 17 of the Legislative Instruments Act 2003, consultation was undertaken with the Department of Health and Ageing and the Department of Education, Employment and Workplace Relations.
Overview
The Financial Management and Accountability Amendment Regulations 2010 (No. 1) were enacted to amend the Financial Management and Accountability Regulations 1997, which provide a framework for the proper management of public money and public property by chief executives and officials of agencies prescribed under the Financial Management and Accountability Act 1997 (FMA Act). This amendment was issued by the Minister for Finance and Deregulation and responds to the legislative need to remove references to agencies that have been abolished or did not come into effect as anticipated. The primary policy objective of these regulations is to ensure the removal of references to the Australian Industrial Registry, the Australian National Preventive Health Agency, and the Workplace Authority, reflecting their abolition or non-establishment as of specific dates, and to prevent any misunderstanding regarding the validity of these references. This legislative action ensures that the regulations remain current and accurately reflect the current operational landscape of prescribed agencies under the FMA Act.
Scope and Application
The Financial Management and Accountability Amendment Regulations 2010 (No. 1) pertain to the Financial Management and Accountability Act 1997, providing specific rules for the management of public money and property by chief executives and officials within prescribed agencies. These regulations amend the Financial Management and Accountability Regulations 1997 by removing references to certain agencies that have since been abolished or not established as anticipated. The Australian Industrial Registry, the Australian National Preventive Health Agency, and the Workplace Authority are removed from the list of prescribed agencies, reflecting their respective abolition dates. The amendments ensure that the regulations do not mislead the public regarding the validity of references to these agencies and do not disadvantage any individual or impose liabilities in respect of actions taken prior to the amendments. The regulations are retrospective to the dates when each reference lost legal effect, and consultation was undertaken with relevant departments in accordance with the Legislative Instruments Act 2003.
Key Provisions
The Financial Management and Accountability Amendment Regulations 2010 (No. 1) amend the Financial Management and Accountability Regulations 1997 (FMA Regulations) to remove certain agencies from the list of prescribed agencies. Section 1 of the Amendment Regulations removes the Australian Industrial Registry (AIR) and the Australian National Preventive Health Agency (ANPHA) from Schedule 1 of the FMA Regulations, reflecting their abolition as per the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and the Australian National Preventive Health Agency Bill 2009. Similarly, Section 2 removes the Workplace Authority, aligning with its cessation as stipulated in the Fair Work Act. These changes ensure that the FMA Regulations accurately reflect the current legislative landscape.
The Amendment Regulations impose an obligation on the relevant agencies to comply with the FMA Act as per the updated Schedule 1, thereby maintaining the framework for the proper management of public money and public property. The FMA Act, through its various sections, ensures that prescribed agencies must adhere to specific financial management standards and accountability measures. By removing the aforementioned agencies from the list, the Amendment Regulations aim to streamline the regulatory environment, ensuring that only current and relevant agencies are subject to the FMA Act.
Failure to comply with the provisions of the FMA Act may result in various civil and criminal consequences. Section 127 of the FMA Act provides for penalties for breaches, including fines and imprisonment. The severity of these penalties can vary depending on the nature and extent of the breach. For instance, a person who commits an offence against the FMA Act may be liable for a fine of up to 5,000 penalty units or imprisonment for up to five years, or both, for a serious breach. Additionally, any person who is found to have acted negligently in the management of public money or property may be subject to disciplinary action or other legal proceedings as deemed appropriate by the relevant authorities.
The Amendment Regulations also ensure that the removal of the AIR, ANPHA, and the Workplace Authority from the FMA Regulations does not affect any rights or liabilities of individuals or entities as at the date of registration. This is in accordance with subsection 12(2) of the Legislative Instruments Act 2003, which safeguards against disadvantaging any person other than the Commonwealth or an authority of the Commonwealth. By doing so, the Amendment Regulations aim to provide clarity and certainty in the application of the FMA Act, preventing any potential misunderstandings or legal ambiguities that might arise from the inclusion of non-existent agencies in the regulatory framework.