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 Special Account for Australian Competition and Consumer Commission) Determination 2011/02
Purpose of the Determination
The instrument is made under subsection 20 (1) of the Financial Management and Accountability Act 1997 (FMA Act) and establishes a Special Account entitled the Services for Other Entities and Trust Moneys - Australian Competition and Consumer Commission 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 Services for Other Entities and Trust Moneys - Australian Competition and Consumer Commission 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 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, 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 the 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, such a determination is not subject to parliamentary disallowance.
Operation of this Determination
Reasons for establishing a new SOETM Special Account
Most agencies under the FMA Act administer either a Services for Other Entities and Trust Moneys (SOETM) Special Account or other Special Accounts that together encompass the purposes of a SOETM Special Account.
The SOETM Special Account will enable the Australian Competition and Consumer Commission to continue to hold and expend amounts on behalf of persons or entities other than the Commonwealth.
Typically the SOETM Special Account will be used to accommodate small amounts of miscellaneous moneys. For example, the SOETM Special Account may be used to hold 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.
Clause 6 of the Determination specifies the purposes for which the Special Account can be debited.
- Subclauses 6 (a) and (b) describe the primary purposes for expenditure of amounts from the Special Account.
- Subclause 6 (c) allows the Special Account to the debited, in a manner that would otherwise be permitted by section 28 of the FMA Act. It is included to simplify accounting for these transactions.
- Subclause 6 (d) allows the balance of the Special Account to be reduced without a real or notional payment occurring. It is included to ensure that these amounts are not set aside indefinitely.
Consultation
The Australian Competition and Consumer Commission is the Agency affected by this determination and was provided with an opportunity to comment on a draft of this instrument and to supply data for the “Estimates of Transactions Table”. 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 Special Account
The table below outlines the estimated movement of appropriations within the Special Account.
| ($’000) |
Opening Balance | Credits(1) | Debits(2) | Closing Balance |
Services for Other Entities and Trust Moneys - Australian Competition and Consumer Commission Special Account | 2010-2011 | 0 | 860 | 0 | 860 |
2011-2012 | 860 | 100 | 100 | 860 |
Note: these figures are estimates for the 2010-2011 and the 2011-12 Financial Years provided by the responsible Agency.
(1) Reflects the anticipated amounts credited to the Special Account.
(2) Reflects the anticipated amounts debited from the Special Account.
Overview
The Financial Management and Accountability (Establishment of Special Account for Australian Competition and Consumer Commission) Determination 2011/02 was enacted to address the need for the Australian Competition and Consumer Commission (ACCC) to manage financial transactions on behalf of persons or entities other than the Commonwealth. This Determination was made under subsection 20(1) of the Financial Management and Accountability Act 1997 by the Minister for Finance and Deregulation. The purpose of this legislation is to establish a Special Account, specifically the Services for Other Entities and Trust Moneys - Australian Competition and Consumer Commission Special Account, and to outline the types of credits and debits permissible within this account. The establishment of this account ensures that the ACCC can continue to hold and expend funds received from services performed for non-Commonwealth entities, while maintaining compliance with the Financial Management and Accountability Act. This Determination also facilitates the orderly management of these funds within the Consolidated Revenue Fund framework.
Scope and Application
The Financial Management and Accountability (Establishment of Special Account for Australian Competition and Consumer Commission) Determination 2011/02 establishes a Services for Other Entities and Trust Moneys - Australian Competition and Consumer Commission Special Account under the Financial Management and Accountability Act 1997 (FMA Act). This account is designed to enable the Australian Competition and Consumer Commission to manage funds on behalf of persons or entities other than the Commonwealth, such as other governments, facilitating the holding and expenditure of small amounts of miscellaneous moneys related to services performed for these entities. The establishment of this Special Account is subject to parliamentary disallowance, as outlined in section 22 of the FMA Act, which mandates that the Finance Minister table a copy of the determination in each House of Parliament. The account is specifically intended to simplify accounting for certain transactions and to ensure that balances are not indefinitely set aside.
This determination applies to the Australian Competition and Consumer Commission as the relevant agency under the FMA Act. It specifies the types of transactions that can be credited to or debited from the Special Account, ensuring that the funds are used for the purposes intended. The geographic and jurisdictional reach of this legislation is confined to the Commonwealth level, with the Special Account being part of the Consolidated Revenue Fund. The determination is subject to disallowance by either House of Parliament, but any abolition of the Special Account is not subject to this parliamentary oversight. The determination provides for internal government machinery purposes and does not require consultation with entities outside the Commonwealth framework, as per sections 17 and 18 of the Legislative Instruments Act 2003.
Key Provisions
The main operative sections of this determination (section 6) specify the purposes for which the Special Account can be debited, aligning with the Financial Management and Accountability Act 1997 (FMA Act). Subclause 6(a) permits the debiting of the Special Account for the purpose of holding amounts received in connection with services performed for or on behalf of any persons or entities that are not Agencies under the FMA Act. This includes instances such as services rendered for other governments. Subclause 6(b) allows the debiting of the Special Account for the purpose of paying amounts to persons or entities for services rendered or to be rendered. Subclause 6(c) enables the debiting of the Special Account in a manner permitted by section 28 of the FMA Act, which is primarily to simplify accounting for these transactions. Finally, subclause 6(d) allows the balance of the Special Account to be reduced without a real or notional payment occurring, ensuring that these amounts are not set aside indefinitely.
This Act imposes obligations on the Australian Competition and Consumer Commission, the agency affected by this determination. It mandates that the Commission must ensure that the Special Account is used strictly for the purposes outlined in the determination, specifically for holding and expending amounts on behalf of persons or entities other than the Commonwealth. Additionally, the Commission must ensure that all transactions within the Special Account comply with the FMA Act and any other relevant legislation. This includes maintaining accurate records and providing the necessary estimates of transactions for the financial years as required.
Failure to comply with the provisions of this determination can lead to various civil and criminal consequences. Under the FMA Act, any misuse of the Special Account, including unauthorised debiting or crediting, can result in disciplinary action against the responsible officers and employees. This can include fines or other penalties as stipulated in the FMA Act. Moreover, any misappropriation of funds held in the Special Account can lead to criminal charges, which may result in imprisonment. The maximum penalties for these offences are determined by the severity of the breach and are in line with the provisions of the FMA Act.
The determination also specifies that the Australian Competition and Consumer Commission is the only agency required to consult on this matter, as it is the entity directly affected. The Commission was provided with an opportunity to comment on the draft of this instrument and to supply data for the “Estimates of Transactions Table.” Since this determination pertains to internal machinery of government purposes, no further consultation with other persons was considered necessary. This is in accordance with sections 17 and 18 of the Legislative Instruments Act 2003, which outlines the consultation requirements for legislative instruments.