EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2019‑2020 (No. 13)
Purpose of the determination
Section 75 of the Public Governance, Performance and Accountability Act 2013 (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. The power in section 75 recognises that the Executive Government will from time to time choose to reorganise the administration and delivery of its functions with commensurate transfers of resources, including appropriations, between entities.
Subsection 75(7) of the PGPA Act provides that a determination made under subsection (2) is a legislative instrument, but that section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination. The Explanatory Memorandum for the Public Governance, Performance and Accountability Bill 2013 provides (at paragraph 370) that determinations made under section 75 are exempt from disallowance as the changes effected by determinations made under section 75 are in the nature of administrative changes only, relating to the Executive Government’s decisions about the allocation of functions to particular entities.
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, subdelegated this power to certain officials within the Department of Finance.
As a result of amendments to the Administrative Arrangements Order made on 28 June 2021, the all-hazards relief, recovery and mitigation policy and financial assistance including payments to the States and Territories and the Australian Government Disaster Recovery Payment have transferred from the Department of Home Affairs to the National Recovery and Resilience Agency.
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2019‑2020 (No. 13) (the amendment determination) amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2019‑2020 (the determination) to reflect this transfer. The amendment determination does not change the total amount appropriated by the Parliament.
The amendment determination is a legislative instrument for the purposes of section 8 of the Legislation Act 2003.
Commencement
The amendment determination commences on the day after registration.
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 made under subsection 75(2) 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 section 17 of the Legislation Act 2003, the affected entities were consulted in the preparation of the amendment determination.
Summary of amendments
- Item 1 of Schedule 1 to the amendment determination amends paragraph 5(1)(n) of the determination to replace references to “National Drought and North Queensland Flood Response and Recovery Agency” with references to “National Recovery and Resilience Agency”. These amendments affect Appropriation Acts listed in section 4 of the determination, including the Appropriation Act (No. 1) 2019‑2020.
- Item 2 of Schedule 1 to the amendment determination adds new paragraph 8(3)(ia) to the determination to replace Outcome 1 for the National Recovery and Resilience Agency in Schedule 1 to the Appropriation Act (No. 1) 2019‑2020 with a revised outcome to reflect functions transferred to the National Recovery and Resilience Agency.
- Item 3 of Schedule 1 of the amendment determination amends table item 50 in subsection 8(4) of the determination to replace references to “National Drought and North Queensland Flood Response and Recovery Agency” with references to “National Recovery and Resilience Agency”. The table in subsection 8(4) of the determination shows increases and decreases in appropriation items in Schedule 1 to the Appropriation Act (No. 1) 2019‑2020.
- Item 4 of Schedule 1 to the amendment determination adds new section 11 at the end of the determination. Section 11 modifies the Appropriation Act (No. 4) 2019-2020 as if an administered assets and liabilities item for the National Recovery and Resilience Agency were included in Schedule 2 to the Act. Table items 1 and 2 in subsection 11(3) show increases and decreases in appropriation items which affect the Department of Home Affairs and the National Recovery and Resilience Agency as follows:
Item | Entity | Appropriation item | Increase (+)/ decrease (-) ($) |
1 | Department of Home Affairs | Administered assets and liabilities item | -719,000.00 |
2 | National Recovery and Resilience Agency | Administered assets and liabilities item | +719,000.00 |
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 2019-2020 (No. 13) amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2019-2020 to reflect the transfer of all-hazards relief, recovery, and mitigation policy and financial assistance, including payments to the States and Territories and the Australian Government Disaster Recovery Payment, from the Department of Home Affairs to the National Recovery and Resilience Agency. This amendment was necessitated by the amendments to the Administrative Arrangements Order made on 28 June 2021. The determination, made under section 75 of the Public Governance, Performance and Accountability Act 2013, facilitates the reorganisation of the administration and delivery of government functions with the transfer of resources, including appropriations, between entities. The amendment does not alter the total amount appropriated by the Parliament. The amendment determination, a legislative instrument under the Legislation Act 2003, is exempt from disallowance under the PGPA Act. The amendment determination was prepared after consulting with the affected entities, in accordance with section 17 of the Legislation Act 2003. The amendment determination is effective from the day after its registration.
Scope and Application
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2019-2020 (No. 13) applies to the transfer of administrative functions and related appropriations from the Department of Home Affairs to the newly established National Recovery and Resilience Agency, reflecting changes in the Administrative Arrangements Order as of 28 June 2021. This amendment determination modifies the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2019-2020 to align with the transfer of all-hazards relief, recovery and mitigation policy, financial assistance including payments to the States and Territories, and the Australian Government Disaster Recovery Payment. The amendment determination ensures that the appropriation items in relevant Appropriation Acts, such as the Appropriation Act (No. 1) 2019-2020, are updated to reflect the new entity responsible for these functions. It is pertinent to note that this determination does not alter the total amount appropriated by the Parliament, maintaining the financial integrity of the original appropriations while reassigning them to the appropriate agency. The amendment determination is subject to consultation with the affected entities, in compliance with the Legislation Act 2003, and it does not require a statement of compatibility with human rights due to its exemption from disallowance under the Legislation Act 2003.
Key Provisions
The main operative sections of the Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2019-2020 (No. 13) (the amendment determination) are those that modify the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2019-2020 (the determination) to reflect the transfer of functions related to all-hazards relief, recovery and mitigation policy and financial assistance from the Department of Home Affairs to the National Recovery and Resilience Agency. Specifically, the amendment determination updates references from the “National Drought and North Queensland Flood Response and Recovery Agency” to the “National Recovery and Resilience Agency” and modifies the appropriation items to reflect this change. This is achieved through various amendments detailed in Schedule 1 of the amendment determination, including changes to paragraphs 5(1)(n), 8(3)(ia), and table item 50 in subsection 8(4) of the determination. Additionally, the amendment determination includes a new section 11, which modifies the Appropriation Act (No. 4) 2019-2020 to account for an administered assets and liabilities item for the National Recovery and Resilience Agency.
The amendment determination imposes several obligations and requirements on the entities it governs, primarily concerning the accurate reflection of the transfer of functions and appropriations. For instance, it mandates that all references to the “National Drought and North Queensland Flood Response and Recovery Agency” be updated to “National Recovery and Resilience Agency” in the determination and related appropriation acts. This includes ensuring that the outcomes, appropriation items, and administered assets and liabilities are correctly aligned with the new agency. The amendment determination also requires that these changes do not alter the total amount appropriated by the Parliament, maintaining the integrity of the budgetary allocations.
The amendment determination does not explicitly outline specific offences, penalties, or consequences for breaches. However, as a legislative instrument, any non-compliance with the provisions of the amendment determination could potentially lead to administrative or legal consequences. Given the nature of the determination as an administrative change, breaches might result in the need for corrective actions or adjustments to ensure compliance with the updated provisions. There are no stated maximum penalties within the text, but non-compliance could lead to scrutiny or further legislative action if the changes are not properly implemented.
In summary, the amendment determination updates the references and appropriation items to reflect the transfer of specific functions to the National Recovery and Resilience Agency. It mandates that these changes are accurately reflected in the relevant legislation without altering the total appropriations. While specific penalties are not outlined, non-compliance could result in administrative or legal repercussions.