FMA Act (Litigants' Fund Special Account) Determination 2013/06

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Finance and Deregulation

Financial Management and Accountability Act 1997

FMA Act (Litigants’ Fund Special Account) Determination 2013/06

Purpose of the Determination

This Determination is made under subsection 20(1) of the Financial Management and Accountability Act 1997 (FMA Act) and establishes a new Special Account, the Litigants’ Fund 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 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.

Exemption from Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights is not required for this determination.  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 determinations 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.  Determinations 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 Federal Circuit Court of Australia and Family Court of Australia will be merged into a single Agency subject to the FMA Act in 2013.  This determination establishes a new Special Account on 1 July 2013, which will allow the new Agency to collect and retain all amounts related to litigation in the courts that it administers.

The Special Account can also receive amounts that are to the credit of the Special Accounts currently maintained by the Federal Circuit Court of Australia and Family Court of Australia.  It is expected that the latter two Special Accounts will transfer their total balances to the Litigants’ Fund Special Account.

Consultation

The two Agencies affected by this determination were consulted – Family Court of Australia, and Federal Circuit Court of Australia.  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).

Table of Balances and Transactions

The table below outlines the estimated financial implications of the determination on the balances of the Special Accounts.  There is no net change to the Commonwealth’s fiscal and underlying cash balances.

Note: these figures are estimates that may vary from the Agencies’ actuals published in the Portfolio Budget Statements and Annual Reports.