EXPLANATORY STATEMENT
Issued by the authority of the Minister for Finance
Public Governance, Performance and Accountability Act 2013
PGPA Act Determination (POCA Programs Special Account Amendment 2022)
Purpose of this determination
This determination is made under subsection 78(3) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) to vary the PGPA Act Determination (POCA Programs Special Account 2018) (the principal determination). The principal determination establishes the POCA Programs Special Account 2018 (the special account). This determination amends the principal determination following the machinery of government changes which commenced on 1 July 2022 (Administrative Arrangements Order dated 23 June 2022 (AAO)). The AAO transferred responsibility for the subject matter of the special account from the Minister for Home Affairs to the Attorney-General.
The determination amends the principal determination to:
- remove references to the AGD SOETM – a special account that has sunset, and
- update the accountable authority responsible for the special account.
These minor administrative amendments to the principal determination reflect the machinery of government changes by making the Secretary of the Attorney-General’s Department responsible for the special account.
The operating context of special accounts
A special account may be established by a determination made by the Minister for Finance (under section 78 of the PGPA Act) or by an Act (see section 80 of the PGPA Act).
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.
- Expenditure for the purposes of a special account is 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 for the purposes of 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 of the House 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 commences 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. This determination specifies that it will commence on the day immediately after the last day on which it could have been disallowed.
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 Attorney-General’s Department was consulted in the preparation of this determination.
Overview
The Public Governance, Performance and Accountability Act 2013, enacted by the Parliament of Australia, was introduced to provide a robust framework for the management and accountability of public sector entities, ensuring efficient, effective and transparent governance. This Act addresses the need for a cohesive legislative structure to support the implementation of the Public Sector Reform Agenda. The PGPA Act Determination (POCA Programs Special Account Amendment 2022) issued by the Minister for Finance amends the earlier determination to reflect changes in the machinery of government, specifically transferring responsibility for the POCA Programs Special Account from the Minister for Home Affairs to the Attorney-General. This administrative amendment ensures the special account aligns with the updated government structure, maintaining the integrity and purpose of the special account within the Consolidated Revenue Fund. The policy objective of these amendments is to ensure the appropriate oversight and management of the special account in line with current governmental responsibilities.
Scope and Application
The PGPA Act Determination (POCA Programs Special Account Amendment 2022) amends the PGPA Act Determination (POCA Programs Special Account 2018) to reflect the machinery of government changes that took effect on 1 July 2022. This determination is made under the authority of the Minister for Finance, pursuant to subsection 78(3) of the Public Governance, Performance and Accountability Act 2013. The amendment involves the removal of references to the now-defunct AGD SOETM special account and updates the accountable authority responsible for the special account to the Secretary of the Attorney-General’s Department. This change aligns with the Administrative Arrangements Order dated 23 June 2022, which transferred the responsibility for the subject matter of the special account from the Minister for Home Affairs to the Attorney-General. The special account itself is an appropriation mechanism established under the PGPA Act, designed to set aside funds within the Consolidated Revenue Fund for specific spending purposes as outlined in the relevant determination or Act. The amendment is subject to disallowance by either House of the Parliament, with the disallowance period ending on the fifth sitting day after the determination is tabled in the House. If neither House disallows the determination, it will commence on the day immediately after the last day on which it could have been disallowed.
Key Provisions
The main operative sections of this determination are sections 78 and 79 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), which establish the framework for the creation and management of special accounts (section 78(1)) and the process for varying or revoking such accounts (section 78(3)). This particular determination varies the PGPA Act Determination (POCA Programs Special Account 2018) to reflect changes in the machinery of government, transferring responsibility for the special account from the Minister for Home Affairs to the Attorney-General (section 78(3)). Furthermore, the determination updates the accountable authority for the special account and removes references to a now-defunct special account (AGD SOETM) (section 78(3)). These changes ensure that the special account remains aligned with current administrative structures and purposes.
The obligations and requirements imposed by this determination primarily involve administrative updates to the POCA Programs Special Account. The determination mandates that the Secretary of the Attorney-General’s Department assumes responsibility for the special account, which entails ensuring that the account operates within the parameters set by the PGPA Act and that any expenditure aligns with the account’s specified purposes. The determination also requires the removal of outdated references and the update of accountable authorities, ensuring that the account reflects current governance structures and responsibilities. Additionally, the Finance Minister must table a copy of this determination in each House of the Parliament (subsection 79(3) of the PGPA Act), and it is subject to disallowance by either House during the disallowance period (subsection 79(4) of the PGPA Act).
The determination does not explicitly outline specific offences or penalties for breach; however, breaches of the PGPA Act or failure to comply with the requirements of the special account determination could result in various civil or criminal consequences. For instance, misuse of public funds or failure to comply with appropriation requirements could lead to penalties under the PGPA Act, including fines and imprisonment for serious breaches. The PGPA Act also provides for the recovery of public money improperly paid out of the Consolidated Revenue Fund, and officers found guilty of misconduct may face disciplinary actions or legal proceedings. While the determination itself does not specify maximum penalties, the broader legislative context under the PGPA Act provides a framework for addressing breaches.
Given that this determination varies an existing special account, it is essential for the accountable authority to ensure that all transactions and expenditures comply with the updated provisions. Failure to adhere to these requirements could result in financial mismanagement and potential legal repercussions, highlighting the importance of accurate and timely updates to the account’s governance structure. Furthermore, the disallowance process outlined in the PGPA Act provides a mechanism for parliamentary oversight, ensuring that any changes to special accounts are subject to appropriate scrutiny and approval.