EXPLANATORY STATEMENT
Issued by the authority of the Minister for Finance
Public Governance, Performance and Accountability Act 2013
PGPA Act Determination (Home Affairs SOETM 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 Home Affairs SOETM Special Account 2018 (the special account).
The special account is being established to assist the Department of Home Affairs to manage monies on behalf of the Commonwealth in relation to:
- amounts seized, found or otherwise coming under the control of the Department in accordance with any law of the Commonwealth, a State or a Territory;
- amounts forfeited to the Commonwealth as a result of a court order;
- amounts received from other Commonwealth entities, Commonwealth companies, other governments, organisations or persons, to carry out joint activities;
- other miscellaneous and ad hoc amounts held temporarily on behalf of persons that are not the Commonwealth.
The Secretary of the Department 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 Home Affairs was consulted in the preparation of this determination.
Overview
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) was enacted to address the need for modernising the financial management and accountability framework of Australian government entities. This legislation was introduced by the Australian Parliament to provide a comprehensive and consistent framework for the financial management, reporting, and accountability of the public sector. The PGPA Act aims to ensure that public resources are used efficiently, effectively, and economically, and that public sector entities are held accountable for their financial performance. The PGPA Act Determination (Home Affairs SOETM Special Account 2018) is a legislative instrument made under the PGPA Act by the Minister for Finance, establishing the Home Affairs SOETM Special Account 2018. This special account is intended to assist the Department of Home Affairs in managing various funds on behalf of the Commonwealth, including monies seized, forfeited, or temporarily held for other persons. The Secretary of the Department is designated as the accountable authority for this special account. The establishment of this special account is aimed at ensuring that funds are managed in a manner that aligns with the policy objectives of the PGPA Act, promoting efficiency, effectiveness, and accountability in the public sector.
Scope and Application
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) Determination (Home Affairs SOETM Special Account 2018) establishes the Home Affairs SOETM Special Account 2018, which is designed to facilitate the Department of Home Affairs in managing funds on behalf of the Commonwealth. These funds include amounts seized, found, or otherwise coming under the Department's control, forfeitures resulting from court orders, contributions from other Commonwealth entities or governments for joint activities, and other miscellaneous ad hoc amounts held temporarily. The Secretary of the Department is designated as the accountable authority for this special account. This legislation operates under the Commonwealth jurisdiction and adheres to the appropriations framework outlined in the PGPA Act, ensuring that funds are set aside within the Consolidated Revenue Fund for specified purposes and are subject to parliamentary scrutiny and disallowance procedures. The determination is a legislative instrument under the Legislation Act 2003, which allows for its variation or revocation through subsequent determinations. Importantly, the determination is not subject to disallowance under section 42 of the Legislation Act 2003, hence it does not require a Statement of Compatibility with Human Rights.
Key Provisions
The F2018L00589 determination under subsection 78(1) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) establishes the Home Affairs SOETM Special Account 2018 (paragraph 1). This special account serves to assist the Department of Home Affairs in managing various types of funds, including those seized or forfeited under law, funds received for joint activities, and temporary holdings of miscellaneous amounts (paragraph 2). The Secretary of the Department is designated as the accountable authority responsible for the account (paragraph 3). The special account is an appropriation mechanism that isolates certain funds within the Consolidated Revenue Fund for specified spending purposes (paragraph 6). The establishment, variation, or revocation of a special account can be enacted either by a determination made by the Minister for Finance under section 78 of the PGPA Act or by an Act under section 80 (paragraph 5). The determination is subject to disallowance by either House of the Parliament, which must occur within a specified period, or it will come into effect after this period (paragraph 9). Consultation with the Department of Home Affairs occurred during the preparation of this determination (paragraph 10).
The obligations and requirements imposed by the determination on the parties involved, particularly the Department of Home Affairs and the Secretary, are significant. The Department must ensure that the funds within the special account are used strictly for the purposes outlined in the determination, such as managing seized, forfeited, or temporarily held funds (paragraph 2). The Secretary, as the accountable authority, bears the responsibility of overseeing these funds, ensuring they are appropriately allocated and managed in accordance with the legal requirements and the purposes specified in the determination (paragraph 3). Additionally, the Department must comply with the disallowance process as outlined in the PGPA Act, which requires the Minister to table a copy of the determination in each House of Parliament (paragraph 8).
Breaches of the requirements set out in the determination may result in various consequences. While the specific offences and penalties are not detailed in the explanatory statement, the disallowance process outlined in the PGPA Act provides a mechanism for Parliament to review and potentially reject the determination if it is found to be in breach of legislative requirements (paragraph 9). If the special account is misused or if funds are not managed in accordance with the determination, this could lead to investigations, legal actions, or other administrative consequences. The explanatory statement does not specify maximum penalties, but it does highlight the importance of adhering to the legislative and operational guidelines set forth in the PGPA Act and the determination itself (paragraph 9). The lack of a Statement of Compatibility with Human Rights indicates that the determination does not need to align with human rights standards, though this does not necessarily imply that human rights are disregarded in the management of the special account (paragraph 7).