Public Governance, Performance and Accountability Amendment (Listed Entities and Receipts) Rule 2015

Administered by Department of Finance

Legislation au F2015L00929 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 Amendment (Listed Entities and Receipts) Rule 2015

 

The Public Governance, Performance and Accountability Act 2013 (PGPA Act) sets out a framework for regulating resource management by the Commonwealth and relevant entities.  Section 101 of the PGPA Act provides that the Finance Minister may make rules by legislative instrument to prescribe matters giving effect to the Act.

 

The Public Governance, Performance and Accountability Amendment (Listed Entities and Receipts) Rule 2015 (Amendment Rule) is being made to amend the rule instrument made under the PGPA Act, the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule). 

 

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 Amendment Rule would:

  • repeal the listing of the Australian Government Solicitor (AGS) from section 5 of the PGPA Rule;
  • repeal references to the Defence Materiel Organisation (DMO) from section 9 and Schedule 1 of the PGPA Rule;
  • provide for the types of receipts that entities can retain under section 74 of the PGPA Act;
  • list the Digital Transformation Office as a listed entity for the purposes of the finance law, as defined by the PGPA Act, as well as its accountable authority, officials and purposes; and
  • repeal the listing of the Migration Review Tribunal and Refugee Review Tribunal from Schedule 1 of the PGPA Rule.

Details of the Amendment Rule are set out at Attachment A.  A statement of compatibility with human rights is at Attachment B. 

 

The Amendment Rule is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LI Act), and is disallowable in accordance with section 42 of the LI Act. 

 

Consultation

 

The Department of Finance (Finance) consulted stakeholders from the Attorney-General’s Department, the Department of Defence, and the Digital Transformation Office Project Office in the development of the Amendment Rule.  The amendments involving receipts were drafted following a process of deliberate and considered consultation, including a discussion paper on GST options and return submissions from non-corporate Commonwealth entities on preferred approaches.

 

The Amendment Rule was drafted by the Office of Parliamentary Counsel.   AGS advised on elements of the Amendment Rule.

Attachment A

 

Details of the Public Governance, Performance and Accountability Amendment (Listed Entities and Receipts) Rule 2015

 

Section 1—Name of instrument

 

This section provides that the title of the instrument is the Public Governance, Performance and Accountability Amendment (Listed Entities and Receipts) Rule 2015 (Amendment Rule).

 

Section 2—Commencement

 

This section provides that each provision of the instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.

 

The whole of the Amendment Rule would commence on 1 July 2015.

 

Section 3—Authority

 

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

 

Section 4—Schedules

 

This section provides that each legislative instrument that is specified in a Schedule to this Rule is amended or repealed as set out.

 

Schedule 1—Amendments

 

Public Governance, Performance and Accountability Rule 2014 (PGPA Rule)

 

Removal of AGS from list of Government business enterprises

 

Item 1 – Paragraph 5(1)(a)

 

This item would repeal the existing paragraph 5(1)(a) to remove the Australian Government Solicitor (AGS) from the list of Commonwealth entities that are Government business enterprises.  This follows the passage of the Judiciary Amendment Act 2015 which made legislative changes to consolidate AGS into the Attorney-General’s Department.  This will take effect from 1 July 2015.

 

Removal of references to the Defence Materiel Organisation

 

Item 2 – Subsection(9)(1) (table item 3)


This item would omit references to Defence Materiel Organisation (DMO) from the prescribed list of certain persons, or classes of persons, who are officials of a Commonwealth entity.  DMO will be merged into the Department of Defence (Defence) from 1 July 2015.

Removal of the listing of DMO and insertion of the Digital Transformation Office

 

Item 3 – Clause 10 of Schedule 1

 

This item is connected with item 2 and would repeal clause 10 of Schedule 1 to the PGPA Rule, which prescribes DMO as a listed entity for the purposes of the finance law, as defined under the PGPA Act.  

 

This item would also substitute a new clause 10 of Schedule 1, which would provide for the Digital Transformation Office (DTO) to be a listed entity for the purposes of the finance law, as defined by the PGPA Act.  Item 3 also lists the DTO’s accountable authority, officials and purposes.

 

This amendment will sunset on 30 June 2020, in line with the Government’s Smaller Government agenda which provides that entities are to be subject to periodic review. 

 

Amendments to remove the Migration Review Tribunal and the Refugee Review Tribunal

 

Item 4 – Clause 13 of Schedule 1

 

This item would repeal clause 13 of Schedule 1 to the PGPA Rule, which prescribes the Migration Review Tribunal and the Refugee Review Tribunal (MRTRRT) as a listed entity under the PGPA Act. 

 

This amendment follows the passages of the Tribunals Amalgamation Act 2015 (TA Act).  The TA Act will merge the Social Security Appeals Tribunal and the MRTRRT into the Administrative Appeals Tribunal (AAT) from 1 July 2015.  The merged entity will be known as the AAT.  The listing of the newly merged AAT will be provided for in section 24BA of the Administrative Appeals Tribunal Act 1975.

 

Schedule 2—Amendments relating to receipts

 

Amendments involving receipts

 

Arrangements involving GST for non-corporate Commonwealth entities (NCCEs) were not provided for in the PGPA Act when it commenced on 1 July 2014.  To reduce the administrative impact on NCCEs the previous arrangements under sections 30A and 31 of the Financial Management and Accountability Act 1997 (FMA Act) and Regulation 15 of the Financial Management and Accountability Regulations 1997 (FMA Regulations) were preserved for the 2013-2014 financial year. 

 

Under the FMA Act and FMA Regulations, NCCEs were able to increase certain limited appropriations to provide for the GST component involved in acquiring goods and services and could receive amounts of GST and forward GST related amounts to the Australian Taxation Office (ATO).  Annual Appropriation Acts do not include amounts that entities need to meet their GST obligations.  This is because the amounts are finite at the time of preparing the Appropriation Acts, while the amount of GST required to be paid in the coming year is unknown at that point in time.  Consequently, NCCEs require an ability to increase an appropriation to cover GST payments associated with acquiring goods and services, GST related payments associated with transacting with the ATO and an ability to manage GST related receipts associated with providing goods and services.  This arrangement is necessary for NCCEs.

 

Section 83 of the Constitution provides that no money can be drawn from the Treasury of the Commonwealth except under a valid appropriation made by law.  Accordingly, NCCEs cannot make payments without an appropriation made in law. 

 

While the previous GST arrangements were temporarily preserved, options around GST arrangements were considered.  This involved consultation across government, to determine whether improvements were possible.  As a result of this consultation, the Australian Government has decided to preserve existing arrangements for how GST is treated within the Commonwealth. 

 

Accordingly, the Public Governance and Resources Legislation Amendment Act (No. 1) 2015 inserted a new section 74A into the PGPA Act that closely reflects the former section 30A of the FMA Act.  Section 74A will apply to financial years commencing on or after 1 July 2015.  Like section 30A of the FMA Act, section 74A of the PGPA Act is an appropriation mechanism to increase limited appropriations when making payments to acquire goods and services.

 

Section 74 of the PGPA Act provides that an NCCE may retain certain types of amounts, as prescribed in section 27 of the PGPA Rule, and can credit these to the most recent departmental item for the entity in an Appropriation Act or another item in an Appropriation Act, another appropriation or special account where the rule provides for this. 

 

Similar to FMA Regulation 15 (which supported section 31 of the FMA Act), amounts related to managing GST receipts and GST payments associated with ATO transactions are, under the PGPA Act, managed using PGPA Rule section 27 (which supports section 74 of the PGPA Act).

 

Section 27 of the PGPA Rule will enable entities to retain (a) GST related receipts collected when selling goods or services, to the extent required to pay net GST owed to the Australian Taxation Office (ATO) and (b) GST related refunds from the ATO, to the extent that section 74A of the PGPA Act was not relied on to increase an appropriation to pay the GST component of an acquisition.  

 

Item 1 – After subsection 27(2)

 

Item 1 inserts a new subsection 27(2A) after subsection 27(2).  The new subsection 27(2A) provides that a received amount is an amount of a kind for subsection 74(1) of the PGPA Act if it relates to GST.  The received amount is intended to be credited by a NCCE to the appropriation that funds the activity that generated the receipt.  For example, if the received amount relates to an activity, which is funded by debiting a departmental item, then the received amount may be credited to that department item.

 

Item 2 – Paragraph 27(6)(b)

 

Item 2 amends paragraph 27(6)(b) to omit “or” and substitute “;”.  This is a technical amendment that reflects the amendment made by item 4, discussed below.

 

Item 3 – Paragraph 27(6)(c)

 

Item 3 repeals paragraph 27(6)(c), as this is no longer required given that the amendments at item 2 provide for the receipt of amounts relating to GST by NCCEs.

 

Item 4 – At the end of section 27

 

Item 4 inserts a new subsection 27(8) that largely provides, if the relevant appropriation was increased under section 74A to pay GST when acquiring goods or services, then a related amount that is transferred to the entity by the Commissioner of Taxation under section 18 of the A New Tax System (GST, Luxury Car Tax and Wine Tax) Direction 2015 is not an amount of a kind for subsection 74(1) of the Act.  This new subsection prevents NCCEs from being appropriated twice for the same purpose.

Attachment B

 

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 (Listed Entities and Receipts) Rule 2015

 

The Public Governance, Performance and Accountability Amendment (Listed Entities and Receipts) Rule 2015 (Amendment Rule) 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) sets out a framework for regulating resource management by the Commonwealth and relevant entities.  Section 101 of the PGPA Act provides that the Finance Minister may make rules by legislative instrument to prescribe matters giving effect to the Act.

 

The Amendment Rule is intended to amend the rule instrument made under the PGPA Act: the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule). 

 

The Amendment Rule would:

  • repeal the listing of the Australian Government Solicitor (AGS) from section 5 of the PGPA Rule;
  • repeal references to the Defence Materiel Organisation (DMO) from section 9 and Schedule 1 of the PGPA Rule;
  • provide for the types of receipts that entities can retain under section 74 of the PGPA Act;
  • list the Digital Transformation Office as a listed entity for the purposes of the finance law, as defined by the PGPA Act, as well as its accountable authority, officials and purposes; and
  • repeal the listing of the Migration Review Tribunal and Refugee Review Tribunal from Schedule 1 of the PGPA Rule.

Human rights implications

The legislative instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

The legislative instrument is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance

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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.