PGPA Act Determination (ASIC Trust and Other Moneys Special Account 2018)

Administered by Department of Finance

Legislation au F2018L00152 In force Legislative Instrument

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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.

Overview

The Public Governance, Performance and Accountability Act 2013 was enacted to provide a framework for financial management, performance, and accountability within the Australian Government. The Act aims to ensure that public resources are used effectively and efficiently, and that public sector entities are held accountable for their actions. This determination under the PGPA Act establishes the ASIC Trust and Other Moneys Special Account 2018, which consolidates three existing special accounts managed by the Australian Securities and Investments Commission (ASIC). The purpose of this special account is to allow ASIC to continue managing various types of moneys on behalf of the Commonwealth and others, including proceeds from deregistered companies, security bonds, and funds related to investigations and legal proceedings. The determination is made by the Minister for Finance and is subject to disallowance by either House of the Parliament within a specified period. The establishment of this special account streamlines the management of these funds, ensuring that ASIC can effectively carry out its functions as outlined in the ASIC Act and the Corporations Act 2001.

Scope and Application

The PGPA Act Determination (ASIC Trust and Other Moneys Special Account 2018) establishes the ASIC Trust and Other Moneys Special Account 2018 to assist the Australian Securities and Investments Commission (ASIC) in managing moneys on behalf of the Commonwealth as trustee, funds held for non-Commonwealth persons, and amounts related to investigations and legal proceedings. This determination, made under subsection 78(1) of the Public Governance, Performance and Accountability Act 2013, replaces three existing special accounts previously established under the Financial Management and Accountability Act 1997. The special account enables ASIC to manage proceeds from the sale or disposal of trust property of deregistered companies, make payments to discharge Commonwealth liabilities, manage security bonds and compensation payments, and hold moneys temporarily for other purposes. The Chairperson of ASIC is the accountable authority for this special account, which operates under the broader framework of the PGPA Act and involves setting aside amounts within the Consolidated Revenue Fund for specified purposes. The determination is subject to disallowance by either House of the Parliament, though a Statement of Compatibility with Human Rights is not required as it is not subject to disallowance under the Legislation Act 2003.

Key Provisions

The determination establishes the ASIC Trust and Other Moneys Special Account 2018 under section 78(1) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), replacing three existing special accounts. This new account allows ASIC to manage moneys on behalf of the Commonwealth, including proceeds from the sale or disposal of deregistered companies' trust property, payments for discharging liabilities, and temporary holding of moneys for investigations and legal proceedings (section 78). The Chairperson of ASIC is designated as the accountable authority for this special account. The Act imposes several obligations on ASIC, particularly in managing the special account. ASIC is required to manage the moneys in the account in accordance with the purposes specified in the determination. This includes ensuring that payments are made for the purposes outlined, such as discharging liabilities or compensating individuals for losses due to the failure of a registered liquidator (section 78). Furthermore, ASIC must maintain accurate records and provide the necessary reporting to the accountable authority and the Minister for Finance, ensuring transparency and accountability in the management of the account (section 81). Breaches of the obligations set out in the PGPA Act or the determination may result in civil or criminal consequences. Under section 106 of the PGPA Act, a person who is found to have contravened a provision of the Act may be liable to a civil penalty. The maximum penalty for such a contravention is 5,000 penalty units, which is subject to change based on legislative amendments. Additionally, under section 108 of the PGPA Act, a person who is found to have committed an offence against the Act may be liable to a criminal penalty. The maximum penalty for an offence against the Act is 10,000 penalty units or imprisonment for five years, or both, depending on the severity of the offence. These provisions ensure that there are significant deterrents against non-compliance with the requirements of the special account.

Area of Law: Finance & Banking Law
Instrument: Determination
Concepts: Definitions & Interpretation; Regulatory Standards; Reporting & Disclosure Obligations

Interactions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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