EXPLANATORY STATEMENT
Issued by the authority of the Minister for Finance
Public Governance, Performance and Accountability Act 2013
PGPA Act Determination (Water Resources 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 (Water Resources Special Account 2016 — Establishment) Determination 2016/01 (the principal determination). The principal determination establishes the Water Resources Special Account 2016 (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 transfers responsibility for the subject matter of the special account from the former Department of Agriculture, Water and the Environment to the new Department of Climate Change, Energy, the Environment and Water.
The determination amends the principal determination to update the accountable authority responsible for the special account.
This minor administrative amendment to the principal determination reflects the machinery of government changes and makes the Secretary of the Department of Climate Change, Energy, the Environment and Water responsible for the special account which supports certain water resources policy related activities.
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 Department of Climate Change, Energy, the Environment and Water was consulted in the preparation of this determination.
Overview
The Public Governance, Performance and Accountability Act 2013 (PGPA Act) was enacted to ensure accountability and transparency in the management of public resources in Australia. This legislation was introduced to address the need for robust governance frameworks within the public sector, aiming to enhance performance and accountability of government entities. The PGPA Act Determination (Water Resources Special Account Amendment 2022) is a variation made under subsection 78(3) of the PGPA Act, amending the PGPA Act (Water Resources Special Account 2016 — Establishment) Determination 2016/01. This amendment responds to the machinery of government changes that transferred responsibility for water resources policy from the former Department of Agriculture, Water and the Environment to the new Department of Climate Change, Energy, the Environment and Water, effective from 1 July 2022. The policy objective of this amendment is to ensure that the accountable authority for the Water Resources Special Account accurately reflects the current departmental structure, thereby maintaining the integrity and effectiveness of water resources policy related activities.
Scope and Application
The PGPA Act Determination (Water Resources Special Account Amendment 2022) applies to the Water Resources Special Account established under the Public Governance, Performance and Accountability Act 2013. This determination specifically updates the accountable authority for the account, reflecting recent changes in government responsibilities. It assigns this responsibility to the Secretary of the Department of Climate Change, Energy, the Environment and Water, which now oversees the account following the transfer of related functions from the former Department of Agriculture, Water and the Environment. This change was necessitated by the Administrative Arrangements Order dated 23 June 2022, which came into effect on 1 July 2022. The amendment ensures that the account, which supports certain water resources policy activities, remains appropriately managed under the new departmental structure. The determination applies nationally within the Commonwealth of Australia and operates within the framework established by the PGPA Act, which sets out the legislative context for special accounts. The determination is subject to parliamentary scrutiny and disallowance, although 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 Public Governance, Performance and Accountability Act 2013 (PGPA Act) Determination (Water Resources Special Account Amendment 2022) amends the existing Water Resources Special Account 2016 — Establishment) Determination 2016/01. Specifically, section 3 of the determination updates the accountable authority for the Water Resources Special Account to reflect the recent machinery of government changes, placing responsibility with the Secretary of the Department of Climate Change, Energy, the Environment and Water, rather than the former Department of Agriculture, Water and the Environment. This change ensures that the account, which supports certain water resources policy related activities, remains appropriately overseen by the relevant department following the restructuring.
The Act imposes certain obligations on the accountable authority, now the Secretary of the Department of Climate Change, Energy, the Environment and Water, as outlined in section 4 of the determination. These obligations include ensuring that the special account is managed in accordance with the provisions of the PGPA Act, maintaining records and accounts in line with the requirements of the PGPA Regulations, and ensuring that any expenditure from the account is authorised and within the scope of the account's specified purposes. The accountable authority is also required to ensure that the account is not used for any purpose other than those specified in the determination or the PGPA Act, and that any surplus funds are appropriately managed or returned to the Consolidated Revenue Fund as per the Act.
Under the PGPA Act, breaches of the requirements or obligations imposed by the Act can lead to both civil and criminal consequences. Section 16 of the PGPA Act allows for civil penalties for certain breaches, with maximum penalties varying depending on the nature and seriousness of the breach. For example, a person who intentionally contravenes a provision of the PGPA Act may be liable for a civil penalty of up to $21,000 for a corporation and $4,200 for an individual, with additional penalties for continuing offences. In more serious cases, criminal offences under the PGPA Act can result, with maximum penalties including substantial fines and imprisonment. However, the specific application of these penalties would depend on the nature of the breach and the discretion of the court.
In summary, the PGPA Act Determination (Water Resources Special Account Amendment 2022) updates the accountable authority for the Water Resources Special Account to align with recent government restructuring, imposes specific obligations on the accountable authority to ensure proper management of the account, and outlines potential civil and criminal penalties for breaches of the PGPA Act's provisions.