Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2020-2021 (No. 5)

Overview

The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2020-2021 (No. 5) was enacted to address the issue of appropriations following the transfer of small business functions from the Industry, Science, Energy and Resources portfolio to the Treasury portfolio, as amended by the Administrative Arrangements Order on 15 April 2021. This amendment determination is made under section 75 of the Public Governance, Performance and Accountability Act 2013 and is a legislative instrument for the purposes of section 8 of the Legislation Act 2003. The policy objective is to ensure that appropriations are appropriately aligned with the current portfolio responsibilities of non-corporate Commonwealth entities, resulting in no overall change to the total amount appropriated by Parliament. The determination is made by the Secretary of the Department of Finance, who has sub-delegated this power to certain officials within the Department of Finance, in accordance with sections 107 and 109 of the Public Governance, Performance and Accountability Act 2013. The affected entities were consulted in the preparation of the determination, consistent with Chapter 3, Part 1 of the Legislation Act 2003.

Scope and Application

The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2020-2021 applies to non-corporate Commonwealth entities, specifically affecting the Department of Industry, Science, Energy and Resources and the Department of the Treasury. It modifies appropriations in response to recent Machinery of Government changes, particularly the transfer of small business functions from the Industry, Science, Energy and Resources portfolio to the Treasury portfolio. The amendment determination does not alter the overall amount appropriated by Parliament but adjusts the allocations between the affected entities. Geographically, this applies to the Commonwealth level, impacting entities across Australia. The amendment determination does not specify any exclusions or exemptions but modifies the appropriation items in the Appropriation Acts to reflect the changes in responsibilities. The application of this determination extends through subordinate instruments as delegated by the Finance Minister under the PGPA Act.

Key Provisions

The amendment determination, as per section 75 of the Public Governance, Performance and Accountability Act 2013, modifies the amounts appropriated to non-corporate Commonwealth entities following recent changes in the Machinery of Government. Specifically, it addresses the transfer of small business functions from the Industry, Science, Energy and Resources portfolio to the Treasury portfolio, effective from April 2021. This adjustment ensures that the total amount appropriated by Parliament remains unchanged, though it reallocates specific funds between these entities (sections 7(2) and 8(2)). The amendment determination involves repealing and substituting certain items in the table of the original Determination, as well as adding new items to reflect the reallocation of funds (section 7). The amendment determination imposes specific obligations on the parties involved, primarily the Department of Industry, Science, Energy and Resources and the Department of the Treasury. These entities must now comply with the new appropriations as outlined in the amendment, effectively redistributing funds from the former to the latter in line with the Machinery of Government changes. This includes adhering to the new appropriation figures for administered and departmental items, as well as equity injections (sections 7 and 8). The Finance Minister, under section 75 of the PGPA Act, has the authority to make such determinations, delegating this power to officials within the Department of Finance who prepared and issued the amendment determination (sections 107 and 109). Failure to comply with the provisions of the amendment determination could lead to legal consequences, although the explanatory statement does not specify particular offences, penalties, or civil/criminal consequences for breach. However, under the PGPA Act, non-compliance with appropriation determinations can generally result in financial mismanagement and accountability issues. The amendment determination itself is exempt from disallowance under subsection 75(7) of the PGPA Act, which means it does not require a Statement of Compatibility with Human Rights as stipulated under the Human Rights (Parliamentary Scrutiny) Act 2011 (subsection 9(1)). The affected entities were consulted in the preparation of the amendment determination, as per the requirements of the Legislation Act 2003 (Chapter 3, Part 1).