EXPLANATORY STATEMENT
Issued by the authority of the Minister for Finance
Public Governance, Performance and Accountability Act 2013
PGPA Act Determination (Establishment of Overseas Property Special Account 2017)
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 Overseas Property Special Account 2017 (the special account).
The special account is being established to assist the Department of Foreign Affairs and Trade to continue to manage the real property portfolio of the Commonwealth outside of Australia. This includes activities relating to acquisition, leasing, construction, management, operations, repair, maintenance, divestment, financing, identification and provision of advice to the government.
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 Foreign Affairs and Trade was consulted in the preparation of this determination.
Overview
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) was enacted by the Parliament of Australia to provide a framework for the financial management and accountability of Commonwealth entities. This legislation was introduced to address the need for a robust and transparent system to manage public funds, ensuring that they are used efficiently, effectively, and in accordance with the law. One of the mechanisms established by the PGPA Act to manage specific financial activities is the creation of special accounts. The PGPA Act Determination (Establishment of Overseas Property Special Account 2017) was made by the Minister for Finance under subsection 78(1) of the PGPA Act to create a special account to assist the Department of Foreign Affairs and Trade in managing the Commonwealth's real property portfolio outside of Australia. This includes managing activities such as acquisition, leasing, construction, management, operations, repair, maintenance, divestment, financing, and providing advice to the government. The special account is an appropriation mechanism that sets aside specific amounts within the Consolidated Revenue Fund for these specified purposes, ensuring that funds are allocated and used in accordance with the legislative framework provided by the PGPA Act.
Scope and Application
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) Determination (Establishment of Overseas Property Special Account 2017) applies specifically to the establishment of a special account to assist the Department of Foreign Affairs and Trade in managing the Commonwealth's real property portfolio outside Australia. This encompasses activities such as acquisition, leasing, construction, management, operations, repair, maintenance, divestment, financing, and providing advice to the government. The special account is an appropriation mechanism that sets aside funds within the Consolidated Revenue Fund for these specified purposes. The determination is subject to disallowance by either House of the Parliament and requires tabling in both Houses. Notably, this determination does not require a Statement of Compatibility with Human Rights, as it is not subject to disallowance under section 42 of the Legislation Act 2003. The Department of Foreign Affairs and Trade was consulted during the preparation of this determination, ensuring alignment with the department's needs and the legislative framework.
Key Provisions
The F2017L00252 determination, made under section 78(1) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), establishes the Overseas Property Special Account 2017 (section 1). This special account is intended to facilitate the Department of Foreign Affairs and Trade's management of the Commonwealth's real property portfolio outside of Australia, encompassing activities such as acquisition, leasing, construction, management, operations, repair, maintenance, divestment, financing, identification, and provision of government advice (section 1). A special account, as outlined in section 81 of the Constitution, is an appropriation mechanism that isolates amounts within the Consolidated Revenue Fund for specific purposes, with payments for such accounts supported by an appropriation in the PGPA Act (section 83). The Overseas Property Special Account 2017 is established to manage these specified activities related to overseas property.
The obligations imposed by this determination on the Department of Foreign Affairs and Trade include the management of the Commonwealth's real property portfolio overseas in accordance with the terms and purposes specified in the determination (section 1). This includes ensuring that all activities and expenditures related to the real property portfolio are consistent with the objectives outlined in the Overseas Property Special Account 2017. The Department must also ensure that all transactions and activities are in compliance with the relevant sections of the PGPA Act and any other applicable legislation, including adherence to the appropriation specified in the PGPA Act for the special account (subsection 78(4)).
Under the PGPA Act, breaches of the obligations imposed by this determination could result in civil or criminal consequences, depending on the nature and severity of the breach. Civil penalties may be imposed for breaches of the PGPA Act, with the maximum penalties varying according to the specific provision breached. For example, breaches involving financial loss to the Commonwealth could result in penalties up to five times the value of the loss caused. Criminal penalties may also apply, with offences under the PGPA Act potentially leading to imprisonment, fines, or both, depending on the severity of the offence. The specific penalties are detailed in the PGPA Act and can be severe, reflecting the importance of compliance with public governance and accountability requirements.