EXPLANATORY STATEMENT
Issued by the authority of the Minister for Finance and the Public Service
Public Governance, Performance and Accountability Act 2013
PGPA Act Determination (AFMA SOETM Special Account 2018)
Purpose of this determination
This determination is made under subsection 78(1) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) to establish the AFMA SOETM Special Account 2018 (the special account) to replace the Australian Fisheries Management Authority Services for Other Entities and Trust Moneys Special Account (the SOETM account), which will sunset on 1 October 2018.
The special account is being established to continue to enable the Australian Fisheries Management Authority (AFMA) to hold and expend amounts on behalf of persons or entities other than the Commonwealth, such as amounts held pending investigations or court outcomes.
Once the special account is established, the SOETM account will be repealed and an amount equivalent to the amount standing to the credit of that account immediately before its repeal will be credited to the special account.
This determination will enable AFMA to continue to use a special account to credit and debit amounts after the SOETM account is repealed.
The operating context of special accounts
A special account may be established, varied or revoked by a determination made by the Minister for Finance and the Public Service under section 78 of the PGPA Act, or by an Act.
A special account is an appropriation mechanism that sets aside amounts within the Consolidated Revenue Fund (CRF) for spending on specified purposes. The purposes of a special account are set out in the establishing determination or Act.
In accordance with section 81 of the Constitution, all revenues or moneys raised or received by the Commonwealth Executive Government form one CRF. Section 83 of the Constitution provides that such money may not be drawn from the Treasury except under an appropriation made by law.
- A special account enables revenues or moneys raised or received to be set aside for the purposes of that special account.
- Payments made for the purposes of a special account are supported by an appropriation in the PGPA Act; subsection 78(4) appropriates the CRF for the purposes of a special account established by a determination, and subsection 80(1) appropriates the CRF for the purposes of a special account established by an Act.
Special account determinations
Special account determinations are legislative instruments for the purposes of the Legislation Act 2003. Special account determinations may be varied or revoked by a subsequent determination being made in accordance with subsection 78(3) of the PGPA Act.
In accordance with subsection 79(3) of the PGPA Act, the Minister for Finance and the Public Service must table a copy of such determinations in each House of the Parliament. Subsection 79(4) of the PGPA Act provides that special account determinations are subject to disallowance by either House of the Parliament. The disallowance period starts on the day a special account determination is tabled in the House and ends on the fifth sitting day after the determination was tabled in that House.
Subsection 79(5) of the PGPA Act provides that, if neither House passes a resolution to disallow a special account determination, the determination commences on the day immediately after the last day on which it could have been disallowed, or on a later day if specified in the determination.
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 Legislation Act 2003. While determinations made or varied under subsections 78(1) or 78(3) of the PGPA Act are subject to disallowance under section 79 of the PGPA Act, subsection 79(2) provides that they are not subject to disallowance under section 42 of the Legislation Act 2003. As such, a Statement of Compatibility with Human Rights is not required.
Consultation
AFMA was consulted in the preparation of this determination.
Overview
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) was enacted to improve the governance, performance and accountability of the Australian Public Service. The PGPA Act Determination (AFMA SOETM Special Account 2018) was introduced to address the sunsetting of the Australian Fisheries Management Authority Services for Other Entities and Trust Moneys Special Account (SOETM account) on 1 October 2018. This determination, issued by the authority of the Minister for Finance and the Public Service, establishes the AFMA SOETM Special Account 2018 to replace the SOETM account. The special account will continue to enable the Australian Fisheries Management Authority (AFMA) to hold and expend amounts on behalf of persons or entities other than the Commonwealth, such as amounts held pending investigations or court outcomes. The policy objective is to ensure the ongoing capability of AFMA to manage such funds effectively. The determination is subject to disallowance by either House of the Parliament and must be tabled in accordance with the PGPA Act.
Scope and Application
The PGPA Act Determination (AFMA SOETM Special Account 2018) applies specifically to the Australian Fisheries Management Authority (AFMA), establishing a new special account to replace the existing Australian Fisheries Management Authority Services for Other Entities and Trust Moneys Special Account (SOETM account) which will be repealed on 1 October 2018. The special account will enable AFMA to continue holding and expending amounts on behalf of persons or entities other than the Commonwealth, such as those held pending investigations or court outcomes. The new special account will credit an amount equivalent to the balance of the SOETM account before its repeal. The establishment, variation, or revocation of special accounts, including this one, is governed by the Minister for Finance and the Public Service under subsection 78(1) of the PGPA Act, with these determinations being legislative instruments subject to parliamentary scrutiny and disallowance as per the Legislation Act 2013. The Minister for Finance and the Public Service must table a copy of such determinations in each House of the Parliament, and they are subject to disallowance by either House within a specified period. However, a Statement of Compatibility with Human Rights is not required for this determination as it is not subject to disallowance under section 42 of the Legislation Act 2003.
Key Provisions
This determination under subsection 78(1) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) establishes the AFMA SOETM Special Account 2018, which will replace the existing Australian Fisheries Management Authority Services for Other Entities and Trust Moneys Special Account (SOETM account) as of 1 October 2018. The purpose of this special account is to allow AFMA to continue holding and expending funds on behalf of entities other than the Commonwealth, such as amounts held pending investigations or court outcomes. Once established, the SOETM account will be repealed, and an equivalent amount will be credited to the special account, ensuring AFMA can continue to manage such funds post-repeal.
The determination outlines that a special account is an appropriation mechanism under the PGPA Act, enabling the setting aside of funds within the Consolidated Revenue Fund (CRF) for specified purposes. These accounts are established, varied, or revoked by a determination made by the Minister for Finance and the Public Service, or by an Act. As per the Constitution, all revenues and moneys raised or received by the Commonwealth Executive Government form one CRF, and payments for special accounts are supported by appropriations in the PGPA Act. The special account determinations are legislative instruments that can be varied or revoked by subsequent determinations and are subject to disallowance by either House of the Parliament.
The obligations imposed on AFMA and other relevant entities by this determination include the continued management of funds on behalf of non-Commonwealth entities and the compliance with the terms set out in the determination. AFMA must ensure that the funds within the special account are used strictly for the purposes outlined, and any expenditures must be in accordance with the appropriations and other relevant legal requirements. The Minister for Finance and the Public Service must table a copy of the determination in each House of the Parliament, and the determination is subject to disallowance within a specified period.
The determination does not outline specific offences or penalties for breaches of its provisions, but it is understood that any misuse or mismanagement of funds within the special account could lead to legal consequences under the PGPA Act or other relevant legislation. The potential penalties for breaches could include civil or criminal liability, depending on the nature and severity of the breach. It is important for AFMA and other relevant parties to adhere to the terms of the determination to avoid any legal repercussions.