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 (ASD Trust and Other Moneys 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 ASD Trust and Other Moneys Special Account 2018 (the special account).
On 1 July 2018, the Australian Signals Directorate (ASD) became a separate Commonwealth entity from the Department of Defence (Defence), as a result of the commencement of the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Act 2018. The special account is being established to allow ASD to continue to manage moneys received from other governments for the purpose of joint projects undertaken by ASD in cooperation with an authority of another country. These amounts were previously managed through the Services for Other Entities and Trust Moneys – Defence Special Account (the SOETM account). The SOETM account will remain with Defence.
Once the special account is established, Defence will transfer all moneys related to ASD from the balance of the SOETM account to the balance of the special account.
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, under section 80 of the PGPA 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.
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. The determination does not specify a later day, so commences on the day mentioned in subsection 79(5)(a) of the PGPA Act.
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
Defence and ASD were consulted in the preparation of this determination.
Overview
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) was enacted to establish a robust framework for the governance and accountability of Commonwealth entities, aiming to ensure efficient and transparent management of public resources. One of the mechanisms introduced under the PGPA Act is the establishment of special accounts, which serve to segregate specific funds within the Consolidated Revenue Fund for particular purposes. The PGPA Act Determination (ASD Trust and Other Moneys Special Account 2018) was introduced by the Minister for Finance and the Public Service under subsection 78(1) of the PGPA Act to address a gap in the management of trust and other moneys following the establishment of the Australian Signals Directorate (ASD) as a separate entity from the Department of Defence. The policy objective of this determination was to facilitate the continued management of funds received from other governments for joint projects by ASD, previously managed through the Services for Other Entities and Trust Moneys – Defence Special Account.
Scope and Application
The PGPA Act Determination (ASD Trust and Other Moneys Special Account 2018) establishes the ASD Trust and Other Moneys Special Account 2018 for the Australian Signals Directorate (ASD), a Commonwealth entity that was separated from the Department of Defence (Defence) on 1 July 2018. The special account facilitates the management of moneys received from other governments for joint projects undertaken by ASD in cooperation with foreign authorities, previously managed through the Services for Other Entities and Trust Moneys – Defence Special Account. This determination applies to ASD, which is a Commonwealth entity, and the funds it manages, distinct from the Defence Special Account which remains with Defence. The special account is established under the PGPA Act and is an appropriation mechanism that sets aside funds within the Consolidated Revenue Fund for specified purposes, subject to parliamentary scrutiny and disallowance. The special account determinations are legislative instruments and are subject to disallowance by either House of the Parliament, but are not subject to disallowance under the Legislation Act 2003, hence a Statement of Compatibility with Human Rights is not required. The special account will only apply to funds managed by ASD, and not to other entities or funds within the Commonwealth.
Key Provisions
The main operative sections of this determination establish the ASD Trust and Other Moneys Special Account 2018 under section 78(1) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) (subsections 1 and 2). This special account allows the Australian Signals Directorate (ASD) to manage moneys received from other governments for joint projects, previously managed through the Services for Other Entities and Trust Moneys – Defence Special Account (section 3). The special account determination outlines the purpose and operation of the special account, including the transfer of moneys from the SOETM account to the balance of the special account (sections 4 and 5).
The Act imposes several obligations and requirements on the parties it governs. The Minister for Finance and the Public Service must establish the special account, as mandated by section 78(1) of the PGPA Act (subsection 2). The Minister is also required to table a copy of the determination in each House of the Parliament, in accordance with subsection 79(3) of the PGPA Act (subsection 8). Defence and ASD must cooperate in the transfer of moneys related to ASD from the SOETM account to the balance of the special account (section 4). Additionally, the special account determinations are subject to disallowance by either House of the Parliament, with the disallowance period ending on the fifth sitting day after the determination was tabled in that House (subsection 79(4) of the PGPA Act).
There are no specific offences, penalties, or civil/criminal consequences for breach mentioned in the determination. However, the special account determinations are subject to disallowance by either House of the Parliament, which can be considered a form of oversight and accountability (subsection 79(4) of the PGPA Act). If neither House passes a resolution to disallow a special account determination, 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 (subsection 79(5) of the PGPA Act). The determination does not specify a later day, so it commences on the day mentioned in subsection 79(5)(a) of the PGPA Act.
In summary, this determination establishes the ASD Trust and Other Moneys Special Account 2018 to allow ASD to manage moneys received from other governments for joint projects. The Minister for Finance and the Public Service is responsible for establishing the special account and tabling a copy of the determination in each House of the Parliament. The special account determinations are subject to disallowance by either House of the Parliament, with no specific offences, penalties, or civil/criminal consequences for breach mentioned in the determination.