EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2016-2017 (No. 9) (the amendment determination)
Purpose of the determination
The amendment determination is made under section 75 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), to adjust amounts appropriated to non-corporate Commonwealth entities, in response to amendments to the Administrative Arrangements Order (AAO) made on the 20 December 2017, 10 May 2018 and on 28 August 2018.
The determination modifies the Appropriation Acts to support functions transferred to the:
- Department of Home Affairs from the Attorney-General’s Department:
- in relation to the operation of the Australian Security Intelligence Organisation Act 1979 except for section 34Z of that Act;
- in relation to the operation of the Intelligence Services Act 2001 insofar as it relates to the Australian Security Intelligence Organisation;
- in relation to the operation of the Surveillance Devices Act 2004; and
- in relation to the operation of the Telecommunications (Interception and Access) Act 1979.
The amendment determination results in no change to the total amount appropriated by Parliament.
Commencement
The amendment determination commences on the day after it is registered.
Authority for the determination
Section 75 of the PGPA Act enables the Finance Minister to determine that one or more Schedules to one or more Appropriation Acts are modified in a specified way in relation to the transfer of a function from one non-corporate Commonwealth entity to another.
Under section 107 of the PGPA Act, the Finance Minister has delegated the power to make determinations under section 75 to the Secretary of the Department of Finance. Under section 109 of the PGPA Act, the Secretary has, in turn, sub‑delegated this power to certain officials within the Department of Finance, including the official who made the determination.
The amendment determination amends the Public Governance, Performance and Accountability
(Section 75 Transfers) Determination 2016-2017, which is a legislative instrument for the purposes of
section 8 of the Legislation Act 2003.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is not required for the amendment 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. A determination, including an amendment determination, under section 75 of the PGPA Act is exempt from disallowance under subsection 75(7) of the PGPA Act. As such, a Statement of Compatibility with Human Rights is not required.
Consultation
Consistent with Chapter 3, Part 1 of the Legislation Act 2003, the affected entities were consulted in the preparation of the amendment determination.
Summary of Modifications
1. Item 1 of the amendment determination repeals and substitutes paragraph 5(h) of the Determination. The item modifies the Appropriation Acts such that references to the Employment Portfolio were references to the Jobs and Small Business Portfolio.
2. Item 2 of the amendment determination adds paragraphs 5(j) and 5(k) of the Determination. The item modifies the Appropriation Acts such that appropriation items and outcomes for the following entities, included for the Attorney-General’s Portfolio, were instead included for the Home Affairs Portfolio:
- Australian Criminal Intelligence Commission
- Australian Federal Police
- Australian Institute of Criminology
- Australian Transaction Reports and Analysis Centre
- Australian Security Intelligence Organisation
The item also modifies the Appropriation Acts such that appropriation items and outcomes for the following entities, included for the Prime Minister and Cabinet Portfolio, were instead included for the Attorney-General’s Portfolio:
- Office of the Commonwealth Ombudsman
- Office of the Inspector-General of Intelligence and Security
3. Item 3 of the amendment determination repeals and substitutes items 13 and 14 in the table in subsection 7(4) of the Determination. The items affect relevant appropriation items in Schedule 1 to the Appropriation Act (No. 1) 2016‑2017 in the following way:
Item | Entity | Appropriation item | Amount previously transferred by the Determination ($) | Amount transferred by the amendment determination ($) | Amended amount transferred by the Determination ($) |
13 | Department of Home Affairs | Departmental item | +28,602,366.00 | +652,964.78 | +29,255,330.78 |
14 | Attorney General’s Department | Departmental item | -17,514,366.00 | -652,964.78 | -18,167,330.78 |
Note: A positive amount reflects an increase in an appropriation item and a negative amount reflects a decrease in an appropriation item.
Overview
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2016-2017, made under section 75 of the Public Governance, Performance and Accountability Act 2013, was enacted to modify appropriations in response to amendments in the Administrative Arrangements Order made on 20 December 2017, 10 May 2018 and 28 August 2018. The Act, introduced by the Australian Parliament, aims to streamline the management of public resources and improve accountability across government entities. This particular amendment was necessitated by the reallocation of functions between the Department of Home Affairs and the Attorney-General’s Department, ensuring that funding adjustments are appropriately reflected in the Appropriation Acts. The amendment determination ensures that the total amount appropriated by Parliament remains unchanged while facilitating the smooth transfer of functions and associated resources. The determination was made by the Secretary of the Department of Finance, under delegation from the Finance Minister, and it does not require a Statement of Compatibility with Human Rights as it is exempt from disallowance.
Scope and Application
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2016-2017, made under section 75 of the Public Governance, Performance and Accountability Act 2013, modifies the Appropriation Acts in response to amendments to the Administrative Arrangements Order made in late 2017 and mid to late 2018. This determination specifically adjusts the amounts appropriated to non-corporate Commonwealth entities, facilitating the transfer of functions to the Department of Home Affairs from the Attorney-General’s Department. These transfers pertain to the operation of the Australian Security Intelligence Organisation Act 1979, the Intelligence Services Act 2001, the Surveillance Devices Act 2004, and the Telecommunications (Interception and Access) Act 1979. Importantly, the amendment ensures that the total amount appropriated by Parliament remains unchanged. The determination commences on the day after it is registered and applies to the Commonwealth of Australia, affecting the allocation of funds between various government entities without introducing new exclusions or exemptions. The Finance Minister has the authority to make such determinations, with delegated powers to the Secretary of the Department of Finance and further sub-delegation to specific officials within the department.
Key Provisions
The main operative sections of the Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2016-2017 (No. 9) (the amendment determination) pertain to the adjustments made to the Appropriation Acts as a result of changes to the Administrative Arrangements Order (AAO). These amendments primarily involve the reallocation of appropriations between various non-corporate Commonwealth entities, particularly in response to transfers of functions to the Department of Home Affairs from the Attorney-General’s Department. Specifically, section 75 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) authorises the Finance Minister to modify the Appropriation Acts to reflect the transfer of functions. This includes changes related to the operation of the Australian Security Intelligence Organisation Act 1979, the Intelligence Services Act 2001, the Surveillance Devices Act 2004, and the Telecommunications (Interception and Access) Act 1979.
The amendment determination imposes specific obligations on the entities affected by the reallocations of appropriations. These obligations include the reclassification of appropriation items and outcomes to align with the new functional responsibilities. For example, appropriation items previously allocated to the Employment Portfolio have been reclassified to the Jobs and Small Business Portfolio. Furthermore, certain entities such as the Australian Criminal Intelligence Commission and the Australian Federal Police, which were originally included under the Attorney-General’s Portfolio, are now included under the Home Affairs Portfolio. Similarly, the Office of the Commonwealth Ombudsman and the Office of the Inspector-General of Intelligence and Security, originally under the Prime Minister and Cabinet Portfolio, are now included under the Attorney-General’s Portfolio.
Breach of the provisions in the amendment determination does not explicitly outline specific offences or penalties within the determination itself. However, the overarching framework provided by the PGPA Act and the Legislation Act 2003 would apply to any non-compliance with the appropriations and reallocations mandated by this determination. Non-compliance with the PGPA Act could result in administrative consequences, including potential financial penalties, oversight, and corrective measures by the relevant authorities. Additionally, any failure to adhere to the appropriations as determined could lead to civil or criminal liability under broader financial management and governance laws.