EXPLANATORY STATEMENT

Issued by the authority of the Minister for Finance and Administration

Financial Management and Accountability Act 1997

Determination 2006/51 to vary a Special Account

Purposes of Determination 2006/51

The attached instrument makes a determination under subsection 20 (2) of the Financial Management and Accountability Act 1997 (FMA Act) to vary a previous Special Account Determination.  This variation is in relation to the Determination titled Financial Management and Accountability (Special Accounts) Determination 2001/12 which established the Excise Security Deposits Account.

Special Accounts Generally

In accordance with the Constitution, all revenues or moneys raised or received by the Government of the Commonwealth form one Consolidated Revenue Fund (CRF) and may not be spent unless under an appropriation by the Parliament for the purposes of the Commonwealth.  A Special Account is established by a determination that sets out the amounts that may be credited and the purposes for which it may be debited.                   Special Accounts established by determination are supported by an appropriation under section 20 of the FMA Act.  In effect, Special Accounts allow amounts from the CRF to be spent on a purpose specified in the determination.

Determinations that establish Special Accounts, or vary determinations that establish Special Accounts, are subject to section 22 of the FMA Act. Section 22 of the FMA Act requires the Finance Minister to table a copy of the establishing or varying determination in each House of Parliament. Either House may disallow a determination within five sitting days of tabling.  If the determination is not disallowed, it comes into effect on the calendar day after the last day on which it could have been disallowed.

Regulation 10 of the Legislative Instruments Regulations 2004 preserves the disallowance provisions under section 22 of the FMA Act by exempting Special Account determinations from subsections 57(2) and 57(5) of the Legislative Instruments Act 2003.

Special Accounts can be abolished by a determination of the Finance Minister.  However, there is no requirement to table such a determination.

Operation of Determination 2006/51

Reasons for varying the Special Account

This Determination varies the Financial Management and Accountability (Special Accounts) Determination 2001/12, which established the Excise Security Deposits Account.

The Excise Security Deposits Special Account provides for the collection of excise securities under various Acts (and associated Regulations) administered by the Australian Taxation Office.  For example, security deposits are collected under section 16 of the Excise Act 1901.

These securities are required or permitted for the following purposes:

• for the protection of revenue relating to excisable goods held by an entity;
• as a pre-condition to the granting of a licence to produce or deal in excisable goods; or
• to secure the temporary release of seized goods.

The value of these securities are credited to the Special Account until:

• they are returned to the subscriber, as permitted by the relevant legislation (having served their purpose); or
• they are forfeited to the Commonwealth.

The Determination is required in order to give effect to changes that are required to the Excise Security Deposits Account.  The current purposes of the Special Account are:

(a)          for the expenditure of all moneys in accordance with appropriations made by law to the ATO;

(b)          for the refund of securities taken in accordance with ATO, Excise or relevant subsidiary legislation where securities can be repaid to the subscribers if the subscriber has established a record of compliance with the Excise Acts or when all legislative requirements relating to the security has been met by the subscriber;

(c)          for payment into the revenue where the legislative requirements relating to the security has not been met by the subscriber; and

(d)          for the expenditure of money which is congruent with the expenditure purposes of the account.

Changes required

The changes required to the Special Account relate to the crediting and purpose clauses.  The crediting clauses have been changed to specifically list the main Acts under which excise securities are collected, although the list is not exhaustive (due to the number of Acts and related Regulations under which excise securities are collected).  The purpose clauses have been changed to better describe the activities of the Special Account. 

The scope of the Special Account has not been changed. 

As part of a programme to enhance the clarity of Special Account determinations and to remove any areas of doubt over the scope of the purposes of Special Accounts, the following changes are being incorporated within the determinations of all Special Accounts, where appropriate, and where the need for other variations arise:

• a provision to debit amounts relating to incidental activities.  This allows administration costs, including such items as auditing, reporting, budgeting, accounting and information technology services incurred in the course of operating the Special Account, to be debited from the Special Account.  The existing purpose clause would often allow the debiting of the Special Account for these costs, depending on the degree of directness of connection of the costs with other purposes of the Special Account.  The inclusion of the new incidental clause removes the need to obtain legal advice on the degree of directness of connection for individual transactions;
• a capacity to return excess amounts to the Budget (that is, reduce the balance of the Special Account without a real or notional payment).  This provision does not allow amounts to be transferred to another Special Account, or to be allocated for any other purpose, that is not consistent with the purposes of the Special Account;
• a clause to allow for amounts to be repaid when another Act or law allows it.  This has always been permitted by section 28 of the FMA Act, but is now included in determinations to simplify accounting for these transactions; and
• notes that identify general credits and debits that can be made to Special Accounts, for information purposes, in reliance on other laws.

Effect of this determination

This determination varies Financial Management and Accountability (Special Accounts) Determination 2001/12 to make its purposes and appearance consistent with a new template for all Special Account determinations.  The compiled determination will be in a format that makes the determination as clear and informative as possible.

Consultation

The Australian Taxation Office is the agency affected by this instrument.  The agency was provided with drafts of the instrument and agrees with the form of the instrument.  As the instrument is for internal machinery of government purposes only, no consultation was considered necessary with other persons (see sections 17 and 18 of the Legislative Instruments Act 2003).

Estimates of transactions on the Excise Security Deposits Special Account