EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2018‑2019 (No. 3) (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 the commencement on 1 January 2019 of the Aged Care Quality and Safety Commission (ACQSC) on commencement of the Aged Care Quality and Safety Commission Act 2018.
The amendment determination modifies the Appropriation Acts to support functions transferred to the ACQSC from:
the Australian Aged Care Quality Agency (AACQA) in relation to all functions formerly undertaken by the AACQA which was abolished on 1 January 2019 following the commencement of the ACQSC; and
the Department of Health in relation to aged care complaints.
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 2018‑2019 (the Determination), 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 items 4, 5 and 6 in the table in subsection 6(4) of the Determination. The item affects the relevant appropriation item in Schedule 1 to the Appropriation Act (No. 1) 2018‑2019 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 ($) |
4 | Aged Care Quality and Safety Commission | Departmental item | +24,054,000.00 | +7,900,000.00 | +31,954,000.00 |
5 | Australian Aged Care Quality Agency | Departmental item | -12,600,000.00 | -7,555,000.00 | -20,155,000.00 |
6 | Department of Health | Departmental item | -50,609,000.00 | -345,000.00 | -50,954,000.00 |
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 2018-2019 (No. 3) was enacted to address the transfer of functions from the Australian Aged Care Quality Agency (AACQA) and the Department of Health to the newly formed Aged Care Quality and Safety Commission (ACQSC) on 1 January 2019. This amendment determination, made under section 75 of the Public Governance, Performance and Accountability Act 2013, ensures that the transfer of these functions is supported by appropriate appropriations without altering the total amount appropriated by Parliament. The determination was made by the Secretary of the Department of Finance, who was sub-delegated this authority, and it amends a previous determination to reflect the changes in funding allocations necessitated by the establishment of the ACQSC. This adjustment facilitates a smooth transition of responsibilities and ensures continuity in the oversight and regulation of aged care services in Australia.
Scope and Application
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2018-2019 (No. 3) applies to the transfer of functions from the Australian Aged Care Quality Agency and the Department of Health to the newly established Aged Care Quality and Safety Commission (ACQSC) which commenced operations on 1 January 2019. This amendment determination is made under section 75 of the Public Governance, Performance and Accountability Act 2013 and aims to adjust the appropriations for non-corporate Commonwealth entities affected by these transfers. The amendment determination ensures that the total amount appropriated by Parliament remains unchanged, with reallocations occurring to reflect the new entity's responsibilities. The determination is effective from the day after it is registered and operates within the Commonwealth jurisdiction, impacting the financial allocations of the specified entities. The Finance Minister has the authority to make such determinations, with the power delegated to officials within the Department of Finance. It should be noted that no Statement of Compatibility with Human Rights is required for this determination as it is exempt from disallowance under the Public Governance, Performance and Accountability Act 2013.
Key Provisions
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2018-2019 (No. 3) (the Amendment Determination) (s. 1) amends the Appropriation Acts to adjust appropriations to non-corporate Commonwealth entities following the transfer of certain functions. Specifically, it modifies appropriations to the Aged Care Quality and Safety Commission (ACQSC) to account for the transfer of all functions from the Australian Aged Care Quality Agency (AACQA), which was abolished on 1 January 2019, and certain aged care complaints functions from the Department of Health (s. 1). This amendment ensures that the overall appropriation amount remains unchanged (s. 1).
The Amendment Determination imposes obligations on the entities affected by the changes in appropriations. The Aged Care Quality and Safety Commission must ensure that the adjusted appropriation reflects the new functions it has taken on from the AACQA and the Department of Health. The Australian Aged Care Quality Agency, having been abolished, no longer has any obligations under this determination, but its former functions are now managed by the ACQSC. The Department of Health must also adjust its records to reflect the reduction in its appropriation due to the transfer of aged care complaints functions (s. 1).
The Amendment Determination itself does not create new offences or penalties. However, non-compliance with the Public Governance, Performance and Accountability Act 2013 (PGPA Act) or the Appropriation Acts could lead to legal consequences. Under the PGPA Act, breaches of the Act may result in disciplinary action against public sector employees or officers, and the Minister may be liable for any financial loss caused by the breach. The PGPA Act also provides for civil and criminal penalties for more serious breaches, such as those involving fraud or corruption, with penalties potentially including substantial fines and imprisonment (s. 75(7)). The Legislation Act 2003 includes general provisions for penalties for non-compliance with legislative instruments, but these are not specifically addressed in the Amendment Determination.