EXPLANATORY STATEMENT
Issued by the authority of the Minister for Finance
Public Governance, Performance and Accountability Act 2013
PGPA Act Determination (ASIC 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 ASIC Trust and Other Moneys Special Account 2018 (the special account), and repeal three special accounts.
The special account is being established to assist the Australian Securities and Investments Commission (ASIC) to continue to manage moneys on behalf of the Commonwealth as trustee, other amounts held on behalf of persons that are not the Commonwealth, investigations and other legal proceedings. ASIC’s functions and powers are set out primarily in the Australian Securities and Investments Commission Act 2001 (ASIC Act) and the Corporations Act 2001 (CA).
The special account replaces three special accounts currently administered by ASIC:
- ASIC Deregistered Companies Trust Moneys Special Account (established by the Financial Management and Accountability Act 1997 (FMA) Determination 2008/02);
- ASIC Investigations, Legal Proceedings, Settlements and Court Orders Special Account (established by FMA Determination 2008/04); and
- ASIC Security Deposits Special Account (established by FMA Determination 2008/03).
The special account enables ASIC to continue to credit and debit amounts for the same purposes as the above three special accounts. The purposes of the special account allow ASIC, for and on behalf of the Commonwealth, to undertake a range of activities, including but not limited to:
- managing the proceeds from the sale or disposal of trust property of deregistered companies, which vests in the Commonwealth under relevant deregistration provisions in law;
- making payments to discharge liabilities in respect of property vested in the Commonwealth;
- managing moneys held by ASIC as security bonds lodged by registered liquidators, licensed securities dealers, licensed investment advisers and financial services licensees, under relevant provisions of legislation and regulations;
- discharging, returning or releasing a security bond;
- compensating a person who has suffered a pecuniary loss due to the failure of a registered liquidator to carry out his or her duties adequately and properly;
- holding moneys temporarily for the benefit of a person other than the Commonwealth as a consequence of ASIC's work in investigating and taking action in respect of breaches of the CA and ASIC Act; and
- holding other miscellaneous and ad hoc amounts temporarily on behalf of persons that are not the Commonwealth.
The Chairperson of ASIC is the accountable authority responsible for the special account.
The operating context of special accounts
A special account may be established, varied or revoked 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 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 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.
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 Department of the Treasury and ASIC were consulted in the preparation of this determination.