Public Governance, Performance and Accountability Amendment (2023 Measures No. 3) Rules 2023

Administered by Department of Finance

Legislation au F2023L00810 Rules Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the Authority of the Minister for Finance

 

Public Governance, Performance and Accountability Act 2013

 

Public Governance, Performance and Accountability Rule 2014

 

Public Governance, Performance and Accountability Amendment (2023 Measures No. 3) Rules 2023

 

The Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) set out a framework for regulating resource management by Commonwealth entities and companies. Section 101 of the PGPA Act provides that the Minister for Finance may make rules by legislative instrument to prescribe matters necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 103(e) of the PGPA Act provides that the rules may make provision for the name or purposes of a non-corporate Commonwealth entity that is prescribed by the rules to be a listed entity.

 

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

 

The Public Governance, Performance and Accountability Amendment (2023 Measures No. 3) Rules 2023 (Amendment Rules) amends section 4 of the PGPA Rule to insert a definition for the Department of Foreign Affairs and Trade. This definition is related to the amendment to Schedule 1 of the PGPA Rule.

 

Schedule 1 to the PGPA Rule is amended by inserting a new clause 6A to prescribe the Australian Submarine Agency (ASA) as a listed entity, a type of non-corporate Commonwealth entity, for the purposes of the finance law as defined by the PGPA Act. 

 

The Amendment Rules reflect the Government’s decision to establish the ASA as a non‑corporate Commonwealth entity, for the purposes of the PGPA Act. The ASA will be responsible and accountable for the management and oversight of the safe and secure delivery of Australia’s nuclear-powered submarine program including the acquisition, construction, delivery, sustainment and disposal of nuclear-powered submarines. The ASA will also be responsible for maintaining the technical governance of the nuclear-powered submarine capability.

 

The Amendment Rules set out: the entity name, the accountable authority; the officials; and the purposes of the listed entity for the finance law.

 

Details of the Amendment Rules are set out in Attachment A. A Statement of Compatibility with Human Rights is in Attachment B.

 

The Amendment Rules are a legislative instrument for the purposes of the Legislation Act 2003.

 

The Amendment Rules commence on 1 July 2023.

 

Consultation

 

The Amendment Rules were developed by the Office of Parliamentary Counsel in consultation with the Department of Defence and the Department Foreign Affairs and Trade in accordance with section 17 of the Legislation Act 2003.

Details of the Public Governance, Performance and Accountability Amendment (2023 Measures No. 3) Rules 2023

 

Section 1 – Name   

This section provides that the title of this instrument is the Public Governance, Performance and Accountability Amendment (2023 Measures No. 3) Rules 2023.

 

Section 2 – Commencement 

This section provides that this instrument commences on 1 July 2023.

 

Section 3 – Authority

This section provides that this instrument is made under the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

 

Section 4 – Schedules

This section provides that the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) is amended as set out in Schedule 1 to this instrument.

 

Schedule 1 – Amendments

 

Public Governance, Performance and Accountability Rule 2014

 

Item 1 – Section 4

 

This item amends section 4 of the PGPA Rule to define the “Department of Foreign Affairs and Trade” to mean the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967. This definition is similar to definitions of the Department of Foreign Affairs and Trade in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the Biosecurity Act 2015 and the Crimes Act 1914.

 

This definition is related to the amendment to Schedule 1 of the PGPA Rule which includes a reference to the Department of Foreign Affairs and Trade.

 

Item 2 – After clause 6 of Schedule 1

 

This item inserts a new clause 6A in Schedule 1.

 

The new clause 6A makes the Australian Submarine Agency (ASA) a non‑corporate Commonwealth entity for the purposes of the finance law by prescribing it as a listed entity giving it a name, specifying its accountable authority and officials and setting out what its purposes include.


 

The ASA will comprise the Director General of the ASA as the accountable authority, and:

  • persons engaged under the Public Service Act 1999 (PS Act) to assist the Director General;
  • members of the Australian Defence Force whose services are made available to the Director General;
  • officials of other Commonwealth entities, and employees of Commonwealth companies, whose services are made available to the Director General.

 

Among the purposes set out for the listed entity, the ASA will be responsible for:

  • managing and overseeing the acquisition, construction, delivery, sustainment, and disposal of nuclear-powered submarines;
  • managing and executing trilateral engagement for the nuclear-powered submarine program, with the exception of submarine operations;
  • working with the Department of Defence, the Department of Foreign Affairs and Trade and the Australian Safeguards and Non-Proliferation Office to develop and implement safeguards arrangements as agreed between Australia and the International Atomic Energy Agency;
  • establishing other international agreements and arrangements, working with Commonwealth, State and Territory agencies, to support the implementation of the nuclear-powered submarine program;
  • maintaining technical governance and developing systems of compliance, including by retaining technical authority of the nuclear propulsion plant during operations and supporting the Chief of Navy’s responsibility to the Chief of the Defence Force as the Seaworthiness Authority and Submarine Operating Authority.

 

The establishment of this new non-corporate Commonwealth entity will ensure the safe and secure delivery of Australia’s conventionally armed, nuclear-powered submarines. The ASA will provide robust management and oversight of the nuclear-powered submarine program in its role as a single point of accountability with a dedicated focus and adherence to the strict technical standards required for safe stewardship of the nuclear-powered submarine program. The ASA will work with Australian and international experts to ensure Australia sets the highest possible standards of nuclear safety, radiological protection, and adheres to security safeguards for regulation, construction, operation, maintenance, and disposal of nuclear‑powered submarines which will include delivering to AUKUS partner requirements.

 

The ASA is part of the Defence portfolio to ensure integrated delivery of military capability and a strong understanding of the maritime operating environment.

 

At the time of commencement as a non-corporate Commonwealth entity, the responsible Minister for the ASA is the Minister for Defence.

 

The ASA was established as an Executive Agency under section 65 of the PS Act by the Order to Establish the Australian Submarine Agency as an Executive Agency, made on
27 April 2023 and commencing on 1 July 2023.

 


Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Public Governance, Performance and Accountability Amendment (2023 Measures No. 3) Rules 2023

 

The Public Governance, Performance and Accountability Amendment (2023 Measures No. 3) Rules 2023 (Amendment Rules) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the legislative instrument

 

The Public Governance, Performance and Accountability Act 2013 (PGPA Act) establishes a framework for regulating resource management by Commonwealth entities and companies. Section 101 of the PGPA Act provides that the Minister for Finance may make rules by legislative instrument to prescribe matters necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 103(e) of the PGPA Act provides that the rules may make provision for the name or purposes of a non-corporate Commonwealth entity that is prescribed by the rules to be a listed entity.

 

The Public Governance, Performance and Accountability Amendment (2023 Measures No. 3) Rules 2023 (Amendment Rules) amend section 4 of the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) made under the PGPA Act to insert a definition for the Department of Foreign Affairs and Trade. This definition is related to the amendment to Schedule 1 of the PGPA Rule which includes a reference to the Department of Foreign Affairs and Trade.

 

Schedule 1 to the PGPA Rule is amended by inserting a new clause 6A to prescribe the Australian Submarine Agency (ASA) as a listed entity, a type of non‑corporate Commonwealth entity, for the purposes of the finance law as defined by the PGPA Act.

 

The Amendment Rules reflect the Government’s decision to establish the ASA as a non‑corporate Commonwealth entity, for the purposes of the PGPA Act. The ASA will be responsible and accountable for the management and oversight of the safe and secure delivery of Australia’s nuclear-powered submarine program including the acquisition, construction, delivery, sustainment and disposal of nuclear-powered submarines. The ASA will also be responsible for maintaining the technical governance of the nuclear-powered submarine capability.

 

The Amendment Rules set out: the entity name, the accountable authority; the officials; and the purposes of the listed entity for the finance law.


Human rights implications

 

The Amendment Rules do not engage any of the applicable rights or freedoms.

 

Conclusion

The Amendment Rules are compatible with human rights as they do not raise any human rights issues.

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance

Overview

The Public Governance, Performance and Accountability Amendment (2023 Measures No. 3) Rules 2023 were enacted to address the need for a dedicated entity to oversee the safe and secure delivery of Australia's nuclear-powered submarine program. This legislative instrument amends the Public Governance, Performance and Accountability Rule 2014, under the authority of the Public Governance, Performance and Accountability Act 2013, to establish the Australian Submarine Agency (ASA) as a non-corporate Commonwealth entity. The ASA will manage and oversee the acquisition, construction, delivery, sustainment, and disposal of nuclear-powered submarines, ensuring compliance with strict technical standards and international agreements. These Amendment Rules were developed in consultation with relevant departments and are compatible with human rights, as they do not engage any of the applicable rights or freedoms. The Amendment Rules commenced on 1 July 2023, reflecting the government's commitment to providing robust management and oversight of the nuclear-powered submarine program. The Public Governance, Performance and Accountability Amendment (2023 Measures No. 3) Rules 2023 aim to fill a critical gap in the management and oversight of Australia’s nuclear-powered submarine program by establishing the ASA as a non-corporate Commonwealth entity. This entity is tasked with ensuring the safe and secure delivery of nuclear-powered submarines, a responsibility that requires adherence to stringent technical standards and international agreements. The Amendment Rules define the ASA's accountable authority, officials, and purposes, aligning with the finance law as defined by the PGPA Act. These rules were made under the authority of the Public Governance, Performance and Accountability Act 2013 and are compatible with human rights, ensuring that the establishment of the ASA does not adversely affect any recognised or declared human rights and freedoms.

Scope and Application

The Public Governance, Performance and Accountability Amendment (2023 Measures No. 3) Rules 2023 (Amendment Rules) establish the Australian Submarine Agency (ASA) as a non-corporate Commonwealth entity for the purposes of the finance law as defined by the Public Governance, Performance and Accountability Act 2013 (PGPA Act). The Amendment Rules provide for the ASA’s accountable authority, officials, and purposes, ensuring robust management and oversight of the nuclear-powered submarine program. The ASA will manage and oversee the acquisition, construction, delivery, sustainment, and disposal of nuclear-powered submarines and maintain technical governance of the nuclear-powered submarine capability. The rules apply to the ASA as a non-corporate Commonwealth entity and reflect the Government’s decision to establish the ASA to ensure the safe and secure delivery of Australia’s nuclear-powered submarine program. The Amendment Rules amend the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) to insert a new clause 6A, which prescribes the ASA as a listed entity. The rules were developed in consultation with the Department of Defence and the Department of Foreign Affairs and Trade in accordance with section 17 of the Legislation Act 2003. The Amendment Rules are compatible with human rights as they do not engage any of the applicable rights or freedoms. The rules do not raise any human rights issues and reflect the Government’s commitment to ensuring the safe and secure delivery of Australia’s nuclear-powered submarine program. The ASA will work with Australian and international experts to ensure Australia sets the highest possible standards of nuclear safety, radiological protection, and adheres to security safeguards for the regulation, construction, operation, maintenance, and disposal of nuclear-powered submarines, including delivering to AUKUS partner requirements. The ASA is part of the Defence portfolio to ensure integrated delivery of military capability and a strong understanding of the maritime operating environment.

Key Provisions

The Public Governance, Performance and Accountability Amendment (2023 Measures No. 3) Rules 2023 (Amendment Rules) modify the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) by amending section 4 to include a definition of the "Department of Foreign Affairs and Trade," aligning it with definitions found in other statutes such as the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the Biosecurity Act 2015, and the Crimes Act 1914. Furthermore, Schedule 1 of the PGPA Rule is amended by inserting a new clause 6A, which designates the Australian Submarine Agency (ASA) as a listed entity. This designation recognises the ASA as a non-corporate Commonwealth entity for the purposes of the finance law, as defined by the Public Governance, Performance and Accountability Act 2013 (PGPA Act). The ASA will be tasked with the management and oversight of the acquisition, construction, delivery, sustainment, and disposal of nuclear-powered submarines, as well as maintaining technical governance for the nuclear-powered submarine capability. The accountable authority for the ASA will be the Director General, who will be supported by personnel from various Commonwealth entities and the Australian Defence Force. The Amendment Rules impose several obligations on the ASA and its officials. The ASA must ensure the safe and secure delivery of Australia's nuclear-powered submarine program, adhering to strict technical standards and international agreements. It must also work collaboratively with Australian and international experts to set high standards of nuclear safety, radiological protection, and security safeguards. The ASA is required to manage trilateral engagement for the submarine program, excluding submarine operations, and to develop and implement safeguards arrangements as agreed between Australia and the International Atomic Energy Agency. Additionally, the ASA must establish other international agreements and arrangements to support the implementation of the nuclear-powered submarine program in coordination with Commonwealth, State, and Territory agencies. Failure to comply with the provisions of the PGPA Act, the PGPA Rule, and the Amendment Rules could result in various legal consequences. While the explanatory statement does not detail specific offences or penalties, breaches of the PGPA Act could lead to civil or criminal actions under Australian law. The PGPA Act includes provisions for penalties for non-compliance, which may vary depending on the nature and severity of the breach. For example, offences under the PGPA Act may attract penalties such as fines or imprisonment, as determined by the courts. It is important to note that the precise penalties and legal consequences would be subject to the interpretation and application of the relevant laws by the courts. In summary, the Amendment Rules amend the PGPA Rule to define the Department of Foreign Affairs and Trade and to designate the ASA as a listed entity. The ASA will be responsible for managing and overseeing the nuclear-powered submarine program, ensuring compliance with technical standards and international agreements. Compliance with the PGPA Act and the Amendment Rules is essential to avoid potential legal consequences, including civil or criminal penalties for non-compliance.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.