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 (Special Account Determination) Rules 2021

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 Finance Minister may make rules by legislative instrument to prescribe matters necessary or convenient to be prescribed for carrying out or giving effect to the Act.

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 Financial Management and Accountability (Establishment of Special Account for ComSuper) Determination 2011/06 is due to sunset on 1 October 2021 and will be replaced by the PGPA Act Determination (Commonwealth Superannuation Corporation SOETM Special Account 2021). The Public Governance, Performance and Accountability Amendment (Special Account Determination) Rules 2021 (Amendment Rules) makes consequential amendments to the PGPA Rule to ensure that relevant Commonwealth banking policies continue to apply to the Commonwealth Superannuation Corporation with respect to monies it handles on behalf of the Commonwealth.

The Amendment Rules amends the PGPA Rule by:

• amending paragraph 18A(1)(d) to update the name of the determination that establishes the ComSuper Special Account from “the Financial Management and Accountability (Establishment of Special Account for ComSuper) Determination 2011/06”, to “the PGPA Act Determination (Commonwealth Superannuation Corporation SOETM Special Account 2021)”; and
• inserting and creating a new Part 10 – Amendments made by the Public Governance, Performance and Accountability Amendment (Special Account Determination Rules 2021 to provide for transitional arrangements between the previous and current ComSuper Special Accounts.    

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

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

The Amendment Rules commence at the same as the PGPA Act Determination (Commonwealth Superannuation Corporation SOETM Special Account 2021).

Consultation

The Amendment Rules were developed by the Office of Parliamentary Counsel in consultation with the Australian Government Solicitor, in accordance with section 17 of the Legislation Act 2003.

Details of the Public Governance, Performance and Accountability Amendment (Special Account Determination) Rules 2021

Section 1 – Name   

This section provides that the title of this instrument is the Public Governance, Performance and Accountability Amendment (Special Account Determination) Rules 2021.

Section 2 – Commencement 

This section provides that this instrument commences at the same time as the PGPA Act Determination (Commonwealth Superannuation Corporation SOETM Special Account 2021).

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 – Paragraph 18A(1)(d)

This item omits “the Financial Management and Accountability (Establishment of Special Account for ComSuper) Determination 2011/06” from paragraph 18A(1)(d) and substitutes “the PGPA Act Determination (Commonwealth Superannuation Corporation SOETM Special Account 2021)”.

Item 2 – Subsection 18A(1) (note 1)

This item repeals the note from subsection 18A(1).

Item 3 – Subsection 18A(1) (note 2)

This item omits “Note 2” from subsection 18A(1) and substitutes “Note”.

Item 4 – In the appropriate position in Chapter 5

Item 4 inserts and creates a new Part 10 – Amendments made by the Public Governance, Performance and Accountability Amendment (Special Account Determination) Rules 2021 to reflect the amendments to the PGPA Rule, ensure the PGPA Rule sequencing aligns with the PGPA Act and address the transitional arrangements required for the implementation of the amendments to the PGPA Rule.

Section 41(1) provides that the amendments of this rule apply in relation to amounts (the applicable amounts) that are received by Commonwealth Superannuation Corporation before the commencement of this section and, referable or equivalent to amounts credited to the Services for Other Entities and Trust Moneys – ComSuper Special Account established by the Financial Management and Accountability (Establishment of Special Account for ComSuper) Determination 2011/06.

Section 41(2) provides that despite the amendments of section 18A made by the Public Governance, Performance and Accountability Amendment (Special Account Determination) Rules 2021 that section continues to apply in relation to the applicable amounts as if those amendments had never been made.

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 (Special Account Determination) Rules 2021

The Public Governance, Performance and Accountability Amendment (Special Account Determination) Rules 2021 (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 giving effect to the Act.

The Amendment Rules make amendments to the PGPA Rule to ensure that relevant Commonwealth banking policies continue to apply to the Commonwealth Superannuation Corporation with respect to monies it handles on behalf of the Commonwealth. The Amendment Rules amend the PGPA Rule made under the PGPA Act by:

• amending paragraph 18A(1)(d) to update the name of the determination that establishes the ComSuper Special Account from “the Financial Management and Accountability (Establishment of Special Account for ComSuper) Determination 2011/06”, to “the PGPA Act Determination (Commonwealth Superannuation Corporation SOETM Special Account 2021)”. 
• inserting and creating a new Part 10 – Amendments made by the Public Governance, Performance and Accountability Amendment (Special Account Determination Rules 2021) to provide for transitional arrangements between the previous and current ComSuper Special Accounts.    

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 Simon Birmingham

Minister for Finance