EXPLANATORY STATEMENT

Issued by the authority of the Minister for Finance and Administration

Financial Management and Accountability Act 1997

Determination 2006/81 to establish a Special Account

Purposes of Determination 2006/81

The attached instrument makes a determination under subsection 20 (1) of the Financial Management and Accountability Act 1997 (FMA Act) to establish a Special Account, entitled Asia/Pacific Group on Money Laundering Special Account.  It also specifies the nature of amounts that may be credited to, and the purposes for which amounts may be debited from, the Asia/Pacific Group on Money Laundering Special 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 2006/81

Purpose of the Asia/Pacific Group on Money Laundering Special Account

This determination is required in order to establish a Special Account through which to administer the funds of the Asia/Pacific Group on Money Laundering (APG). The APG is an autonomous, regional inter-governmental body established by agreement between its member jurisdictions. The APG is the Asia/Pacific regional body affiliated with the Financial Action Task Force. The purpose of the APG is to facilitate the adoption, implementation and enforcement of internationally accepted standards against money laundering and the financing of terrorism.

Reasons for establishing a new Special Account

The Asia/Pacific Group on Money Laundering Special Account is required in order to give effect to changes that are required to the existing Financial Action Task Force - Asia Pacific Group Secretariat Account (‘the old Account’), but which it is not practical to make by variation to the old Account, due to the way in which the determination that established the old Account was structured.  The old Account was signed by the delegate of the Minister for Finance and Administration on 7 April 1998.

The current purpose of the old account is:

For expenditure relating to the operations of the Secretariat to the Financial Action Task Force - Asia/Pacific Group

Changes required

The changes required to the old account are set out below:

• a change in the Special Account’s name from Financial Action Task Force - Asia Pacific Group Secretariat Account to Asia/Pacific Group on Money Laundering Special Account, in order to better describe what the Special Account is used for; and
• The addition of an expenditure purpose that allows residual balances to be returned to the original payee.

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.

Limitations in the structure of the original determination

It is not practical to vary the original determination signed by the delegate of the Minister for Finance and Administration on 7 April 1998 (establishing a Financial Action Task Force – Asia Pacific Group Secretariat Reserve as a component of the Reserved Money Fund).  This is because the format of the determination constrains the amount of information that can be included.  Accordingly, a new Account is being established (Determination 2006/81) to provide for the continuation of the activities of the Financial Action Task Force – Asia Pacific Group Secretariat Account, the incorporation of the necessary changes, and to ensure that the determination is as clear and informative as possible.

Consultation

The Australian Federal Police 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 Asia/Pacific Group on Money Laundering Special Account

1. Includes balance debited from the old Account and credited to the Asia/Pacific Group on Money Laundering Special Account.