EXPLANATORY STATEMENT
Issued by the authority of the Minister for Finance and Deregulation
Financial Management and Accountability Act 1997
Financial Management and Accountability (Establishment of SOETM Special Account – Customs) Determination 2012/14
Purpose of the Determination
The Determination is made under subsection 20(1) of the Financial Management and Accountability Act 1997 (FMA Act) and establishes a Special Account entitled Services for Other Entities and Trust Moneys Special Account – Australian Customs and Border Protection Service.
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 may be 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 the purposes specified in the determination.
Determinations that establish Special Accounts under subsection 20(1) of the FMA Act or vary Special Accounts under subsection 20(2) of the FMA Act are subject to the tabling and disallowance procedures in section 22 of the FMA Act. Section 22 of the FMA Act requires the Finance Minister to table a copy of the determination in each House of the Parliament. Either House may pass a resolution disallowing a determination within five sitting days of tabling. If the determination is not disallowed, it comes into effect on the day immediately after the last day on which it could have been disallowed.
Subsection 20(6) of the FMA Act exempts determinations that establish Special Accounts under subsection 20(1) of the FMA Act or vary Special Accounts under subsection 20(2) of the FMA Act from the operation of Part 6 (sunsetting) of the Legislative Instruments Act 2003.
Subsection 20(7) of the FMA Act exempts determinations that abolish Special Accounts under subsection 20(3) of the FMA Act from the operation of section 42 (disallowance) and Part 6 (sunsetting) of the Legislative Instruments Act 2003.
A Statement of Compatibility with Human Rights is not required for this legislative instrument. Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires a Statement of Compatibility with Human Rights for all legislative instruments subject to disallowance under section 42 of the Legislative Instruments Act 2003. While legislative instruments made or varied under subsections 20(1) or 20(2) of the FMA Act are subject to disallowance under section 22 of the FMA Act they are not subject to disallowance under section 42 of the Legislative Instruments Act 2003. Legislative instruments made under subsection 20(3) of the FMA Act are exempt from disallowance under subsection 20(7) of the FMA Act, as such a Statement of Compatibility with Human Rights is not required.
Operation of this Determination
The Services for Other Entities and Trust Moneys Special Account – Australian Customs and Border Protection Service (SOETM) combines the purposes of the Other Trust Moneys and the Services for Other Governments and Non-agency Bodies Special Accounts into a single standard purpose Special Account. The SOETM enables the Agency to continue to hold and expend amounts on behalf of persons or entities other than the Commonwealth. Typically the SOETM will be used to accommodate small amounts of miscellaneous moneys. For example, amounts received in connection with services performed for or on behalf of any persons or entities that are not Agencies as prescribed under the FMA Act, such as other governments.
Consultation
The Agency affected by this determination were given an opportunity to comment on the instrument.
As the instrument is for internal machinery of government purposes only, no consultation was necessary with other persons (see sections 17 and 18 of the Legislative Instruments Act 2003).
Overview
The Financial Management and Accountability (Establishment of SOETM Special Account – Customs) Determination 2012/14 was enacted under the Financial Management and Accountability Act 1997 to address the need for a consolidated account for handling miscellaneous monies on behalf of entities other than the Commonwealth. The enactment was carried out by the authority of the Minister for Finance and Deregulation, as stated in the explanatory statement. This Determination establishes a Special Account specifically for the Australian Customs and Border Protection Service, combining the functions of the Other Trust Moneys and the Services for Other Governments and Non-agency Bodies Special Accounts into a single entity. This consolidation allows the Agency to continue to manage and expend funds on behalf of non-Commonwealth persons or entities, typically for minor or miscellaneous monetary transactions. The process of establishing this Special Account follows the legislative framework set by the Financial Management and Accountability Act, which requires that such accounts are supported by appropriations and subject to parliamentary procedures for tabling and disallowance.
Scope and Application
The Financial Management and Accountability (Establishment of SOETM Special Account – Customs) Determination 2012/14 applies to the Australian Customs and Border Protection Service, allowing it to establish a Special Account under the Financial Management and Accountability Act 1997. This Special Account, known as the Services for Other Entities and Trust Moneys Special Account – Australian Customs and Border Protection Service, enables the Service to manage and expend funds received on behalf of persons or entities other than the Commonwealth, including other governments and non-agency bodies. The purpose of this Determination is to facilitate the handling of small amounts of miscellaneous moneys, which might otherwise be difficult to manage within the constraints of the Consolidated Revenue Fund. The Determination is subject to parliamentary scrutiny, requiring the Minister to table a copy in each House of Parliament, with the possibility of disallowance within five sitting days if either House chooses to exercise that option. The establishment of this Special Account is supported by an appropriation under the Act and is exempt from certain provisions of the Legislative Instruments Act 2003, ensuring its continued operation unless specifically disallowed by Parliament.
Key Provisions
The Financial Management and Accountability (Establishment of SOETM Special Account – Customs) Determination 2012/14 (the Determination) establishes a Special Account under subsection 20(1) of the Financial Management and Accountability Act 1997 (FMA Act) called the Services for Other Entities and Trust Moneys Special Account – Australian Customs and Border Protection Service (SOETM). This account combines the purposes of the Other Trust Moneys and the Services for Other Governments and Non-agency Bodies Special Accounts into one (sections 20(1), 20(6), 20(7)). This Special Account allows the Australian Customs and Border Protection Service to hold and expend funds on behalf of entities other than the Commonwealth, such as other governments, in relation to services provided (section 20(1)). The establishment of the SOETM Special Account is subject to the tabling and disallowance procedures outlined in section 22 of the FMA Act (sections 20(1), 22).
The SOETM Special Account is governed by the FMA Act, which imposes certain obligations on the Australian Customs and Border Protection Service. It must ensure that the account is used strictly for the purposes outlined in the Determination, which include holding and expending funds on behalf of entities other than the Commonwealth for services rendered (section 20(1)). The account must be managed in accordance with the Financial Management and Accountability Act 1997 and any other relevant legislation or regulations (section 20). The Australian Customs and Border Protection Service must also ensure that all transactions within the SOETM Special Account are recorded accurately and that the account is audited periodically to ensure compliance with the FMA Act (section 20).
There are no specific offences, penalties, or consequences outlined in the Determination for breach of the SOETM Special Account provisions. However, breaches of the Financial Management and Accountability Act 1997 or other relevant legislation may result in civil or criminal penalties, depending on the nature and severity of the breach. For example, under section 48 of the FMA Act, an officer or employee who knowingly authorises an unauthorised expenditure may be subject to a fine or imprisonment, or both. The maximum penalties for such offences are set out in the relevant legislation and may vary depending on the circumstances (section 48).