EXPLANATORY STATEMENT
Issued by the authority of the Minister for Finance
Public Governance, Performance and Accountability Act 2013
PGPA Act Determination (AGS Client Funds Special Account Amendment 2021)
Purpose of the determination
The determination is made under subsection 78(3) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) to vary the PGPA Act (AGS Client Funds Special Account 2015 – Establishment) Determination 2015/03 (the principal determination). The principal determination established the AGS Client Funds Special Account 2015 (the special account). The special account is primarily used to manage amounts that are to be held on behalf of clients in relation to services provided by the Australian Government Solicitor (AGS) and AGS lawyers within the Attorney-General’s Department.
The determination varies section 8 of the principal determination to expand the purposes for which amounts are allowed to be debited from the special account. It does this by inserting new subsection 8(e). Subsection 8(e) allows the balance of the special account to be reduced without making a real or notional payment. For example, interest accrued on amounts standing to the credit of the special account which are payable to the Commonwealth may be debited from the special account, which would have the effect of reducing the available appropriation for the purposes of the special account.
The operating context of special accounts
A special account may be established under the PGPA Act by a determination made by the Minister for Finance (under section 78) or by an Act (see section 80).
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) for a special account established by a determination or subsection 80(1) for a special account established by an Act.
Special account determinations
Special account determinations are legislative instruments under the Legislation Act 2003. Special account determinations may be varied or revoked by a subsequent determination in accordance with subsection 78(3) of the PGPA Act.
In accordance with subsection 79(3) of the PGPA Act, the Finance Minister 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.
If neither House passes a resolution to disallow a special account determination, under subsection 79(5) it comes into effect 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.
This determination will commence on the day immediately after the last day on which it could have been disallowed.
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
The Attorney-General’s Department and the AGS (within Attorney-General’s Department) were consulted in the preparation of this determination.