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 2026)
Purpose of this determination
This determination is made under subsection 78(3) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) to vary the PGPA Act Determination (AGS Client Funds Special Account 2025) (the principal determination). The principal determination establishes the AGS Client Funds Special Account 2025 (the special account).
The special account enables the Attorney-General’s Department (the Department) to manage funds that are held on behalf of clients, in relation to services provided by the Australian Government Solicitor (AGS) and other AGS lawyers.
This determination inserts an additional debiting clause into the principal determination to enable the Department to reduce the balance of the special account without making a real or notional payment. This would allow the Department to return amounts from the special account to the general Consolidated Revenue Fund (CRF), including, for example, interest earned on amounts invested from the special account.
The operating context of special accounts
A special account may be established by a determination made by the Minister for Finance (under section 78 of the PGPA Act) or by an Act (see section 80 of the PGPA Act).
A special account is an appropriation mechanism that sets aside amounts within the 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.
- Expenditure for the purposes of a special account is 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 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 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 of the House 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 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. This determination specifies that it 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 was consulted in the preparation of this determination.
Overview
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) was enacted to address the need for a robust framework governing the management of public finances and the accountability of public officers. This Act aims to ensure that public funds are managed responsibly and transparently, promoting efficiency and effectiveness in the use of public resources. The PGPA Act provides the legislative basis for establishing special accounts, which are financial mechanisms used to set aside funds for specific purposes. The PGPA Act Determination (AGS Client Funds Special Account Amendment 2026) was introduced to amend the PGPA Act Determination (AGS Client Funds Special Account 2025) by inserting an additional debiting clause. This amendment allows the Attorney-General's Department to reduce the balance of the special account without making a real or notional payment, thereby enabling the return of amounts from the special account to the general Consolidated Revenue Fund, including interest earned on investments. This determination was made under the authority of the Minister for Finance and is subject to disallowance by either House of the Parliament, though no Statement of Compatibility with Human Rights is required as the determination is not subject to disallowance under the Legislation Act 2003.
Scope and Application
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) applies to various entities and individuals within the Australian Government, ensuring compliance with public sector governance standards. The Act and its determinations, such as the PGPA Act Determination (AGS Client Funds Special Account Amendment 2026), govern the management of funds held by the Attorney-General’s Department on behalf of clients of the Australian Government Solicitor. This includes enabling the Department to adjust the balance of the AGS Client Funds Special Account without making a payment, allowing for the return of amounts to the Consolidated Revenue Fund. The jurisdiction of this legislation is Commonwealth-wide, affecting how funds are appropriated and managed across different government departments. The legislation excludes certain activities from its scope unless explicitly included through amendments or subordinate instruments, and it is subject to parliamentary scrutiny and potential disallowance.
Key Provisions
The key provisions of this determination (F2026L00134) under the Public Governance, Performance and Accountability Act 2013 (PGPA Act) involve amending the existing PGPA Act Determination (AGS Client Funds Special Account 2025). Specifically, section 78(3) of the PGPA Act allows for the modification of this principal determination ((1)) to introduce an additional debiting clause for the AGS Client Funds Special Account. This amendment facilitates the Attorney-General’s Department (the Department) in reducing the balance of the special account without necessitating a real or notional payment. The principal aim is to enable the return of amounts from the special account to the general Consolidated Revenue Fund (CRF), including any interest earned on investments from the special account ((2)).
The obligations imposed by this determination on the relevant parties primarily involve the proper management and accounting of funds within the special account. The Department is required to ensure that any debiting of the special account is in accordance with the provisions set forth in this determination. This includes maintaining accurate records and ensuring that any amounts returned to the CRF are correctly documented and accounted for. The determination also mandates that any interest earned on investments from the special account must be appropriately managed and returned to the CRF in compliance with the new provisions ((3)).
Breaching the obligations set out in this determination can lead to various consequences. Although the determination does not specify particular offences or penalties, violations of the PGPA Act generally can result in civil or criminal penalties. Under the PGPA Act, unauthorised payments or improper handling of funds can lead to disciplinary actions against public officers and potential criminal charges, including fines and imprisonment. For instance, section 13 of the PGPA Act allows for the imposition of a penalty of up to five times the amount of the unauthorised payment for each such payment. Additionally, section 14 of the PGPA Act provides for criminal penalties, including fines of up to $66,600 or imprisonment for up to five years, or both, for serious breaches of the Act ((4)).
Furthermore, any failure to comply with the requirements of this determination may also result in administrative penalties or corrective actions by the relevant authorities. This includes potential disallowance of the determination by either House of Parliament under subsection 79(4) of the PGPA Act. If neither House disallows the determination within the specified period, it will come into effect as per subsection 79(5) ((5)). The determination itself notes that it will commence on the day immediately after the last day on which it could have been disallowed, underscoring the importance of compliance with the established provisions.