EXPLANATORY STATEMENT
Issued by the authority of the Minister for Finance
Public Governance, Performance and Accountability Act 2013
PGPA Act Determination (Enforcement Special Account 2016) — Establishment
Purpose of this determination
This determination is made under subsections 78(1) and 78(3) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) to establish the Enforcement Special Account 2016 (the special account).
The special account is being established to manage funding provided to the Australian Securities and Investments Commission (ASIC), within the exercise of its functions and powers, for the investigation of and legal and/or administrative proceedings against individuals and corporations in relation to suspected breaches of legislation. ASIC administers the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001; both pieces of legislation are of significant public interest.
These investigations and subsequent proceedings relate to matters for which ASIC is unable to absorb the costs without significantly prejudicing its existing, ongoing enforcement activities, and/or those matters which are critical to continued public confidence in the corporate regulatory framework.
This special account will be credited with $27 million per annum from ASIC’s annual departmental appropriations (adjusted for the efficiency dividend and changes in wage and price indices). The special account will allow ASIC to manage major investigations and bring proceedings against serious misconduct without the need to seek additional Budget funding. The special account is to be used consistent with related government policies, including any directions from the Treasurer.
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 (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 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 Australian Securities and Investments Commission was consulted in the preparation of this determination.
Overview
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) was enacted to provide a framework for the financial management, reporting, and performance of Australian Government entities. This legislation was introduced to address the need for greater accountability, transparency, and efficiency in public administration. The PGPA Act Determination (Enforcement Special Account 2016) — Establishment was made under the authority of the Minister for Finance to establish the Enforcement Special Account 2016, aimed at managing funding provided to the Australian Securities and Investments Commission (ASIC) for investigating and pursuing legal and administrative proceedings against individuals and corporations suspected of breaching significant legislation. The policy objective of this special account is to enable ASIC to undertake major investigations and bring proceedings against serious misconduct without requiring additional Budget funding, thereby preserving public confidence in the corporate regulatory framework. The special account will be funded by $27 million annually from ASIC's departmental appropriations, adjusted for relevant indices and the efficiency dividend, and will operate in accordance with related government policies and any directions from the Treasurer.
Scope and Application
The Enforcement Special Account 2016 Determination, made under the Public Governance, Performance and Accountability Act 2013, establishes a special account for managing funding provided to the Australian Securities and Investments Commission (ASIC) for investigating suspected breaches of legislation by individuals and corporations. The account is funded with $27 million annually from ASIC’s appropriations and is intended to support major investigations and legal proceedings that are critical to maintaining public confidence in the corporate regulatory framework. This funding allows ASIC to undertake significant enforcement activities without needing to seek additional Budget funding, thereby ensuring its existing enforcement efforts are not significantly prejudiced. The special account operates within the Consolidated Revenue Fund, ensuring all payments are appropriately appropriated and subject to parliamentary scrutiny, including potential disallowance. Notably, while the determination is subject to disallowance, a Statement of Compatibility with Human Rights is not required as it falls outside the scope of the disallowance provisions in the Legislation Act 2003.
Key Provisions
The main operative sections of this determination (subsections 78(1) and 78(3)) establish the Enforcement Special Account 2016 under the Public Governance, Performance and Accountability Act 2013 (PGPA Act). This special account is designed to manage funding provided to the Australian Securities and Investments Commission (ASIC) for investigations and legal or administrative proceedings against individuals and corporations suspected of breaching legislation. It is established to support major investigations and proceedings that are critical to maintaining public confidence in the corporate regulatory framework. The account will be credited with $27 million annually from ASIC’s departmental appropriations and will operate in accordance with government policies and any directions from the Treasurer.
The establishment of this special account imposes specific obligations on ASIC and the Australian Government. ASIC must use the funds from this account to manage major investigations and proceedings against serious misconduct without needing to seek additional Budget funding. This ensures that ASIC can continue its enforcement activities without compromising its existing operations. The Australian Government, through the Minister for Finance, is responsible for the administration and oversight of the special account, including ensuring that the funds are used strictly for the purposes outlined in the determination.
Breaches of the provisions governing the use of the Enforcement Special Account 2016 could result in various legal consequences. Under the PGPA Act, the misuse of funds allocated to a special account can lead to administrative or legal actions. Specifically, subsection 78(5) allows for the disallowance of the determination by either House of the Parliament if it is found that the special account is being used contrary to its specified purposes. Additionally, misuse of funds could result in financial penalties or other sanctions as prescribed by relevant legislation, although specific penalties are not detailed in this determination.
The special account determinations are legislative instruments subject to the provisions of the Legislation Act 2003. The Finance Minister must table a copy of such determinations in each House of the Parliament, where they can be subject to disallowance. If neither House passes a resolution to disallow the determination within the specified period, it comes into effect on the day immediately after the disallowance period ends. This procedural requirement ensures that there is parliamentary scrutiny of the establishment and operation of special accounts.