EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2020‑2021 (No. 8)
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 2020‑2021 (No. 8) (the amendment determination) amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2020‑2021 (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 adds new section 10 at the end of the determination. Section 10 modifies the Appropriation Act (No. 4) 2020-2021 as if an administered assets and liabilities item for the National Recovery and Resilience Agency were included in Schedule 1 to the Act. Table items 1 and 2 in subsection 10(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 | -5,143,609.00 |
2 | National Recovery and Resilience Agency | Administered assets and liabilities item | +5,143,609.00 |
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 2020-2021 (No. 8) was enacted to facilitate the transfer of functions and associated appropriations between non-corporate Commonwealth entities, specifically addressing the reallocation of disaster relief and recovery responsibilities from the Department of Home Affairs to the newly established National Recovery and Resilience Agency. Enacted by the Australian Parliament, this determination is a legislative instrument designed to streamline the administrative adjustments necessary when the executive government reorganises its functions and resources. The primary objective is to ensure that the reallocation of functions and appropriations is implemented efficiently without altering the total amount appropriated by Parliament. This amendment determination is a practical measure to support the effective governance and performance of the Commonwealth by reflecting changes in administrative arrangements as they occur.
Scope and Application
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2020-2021 (No. 8) applies to the transfer of functions and appropriations from the Department of Home Affairs to the newly established National Recovery and Resilience Agency. The amendment determination reflects the administrative changes associated with the transfer of all-hazards relief, recovery, and mitigation policy, as well as financial assistance and payments to the states and territories, from the Department of Home Affairs to the National Recovery and Resilience Agency. This determination is an administrative adjustment that does not alter the total amount appropriated by the Parliament. It is a legislative instrument under the Legislation Act 2003 and is exempt from disallowance, as it relates to the Executive Government’s decisions about the allocation of functions to particular entities. The amendment determination was made in consultation with the affected entities, in accordance with the requirements of the Legislation Act 2003. The amendment determination modifies the Appropriation Act (No. 4) 2020-2021, resulting in an increase of $5,143,609.00 in the administered assets and liabilities item for the National Recovery and Resilience Agency and a corresponding decrease of the same amount for the Department of Home Affairs. The amendment determination commenced on the day after its registration and does not require a statement of compatibility with human rights, as it is exempt from disallowance.
Key Provisions
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2020-2021 (No. 8) (the amendment determination) modifies the appropriation items under the Public Governance, Performance and Accountability Act 2013 (PGPA Act). This amendment is necessitated by the transfer of certain functions related to 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. Section 75 of the PGPA Act allows the Finance Minister to adjust appropriation items to align with the transfer of functions between non-corporate Commonwealth entities, ensuring that the financial resources are appropriately allocated to reflect the new administrative arrangements. The amendment determination adds new section 10 to the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2020-2021, which modifies the Appropriation Act (No. 4) 2020-2021 to reflect the transfer of an administered assets and liabilities item from the Department of Home Affairs to the National Recovery and Resilience Agency.
The amendment determination imposes specific obligations on the Department of Home Affairs and the National Recovery and Resilience Agency, requiring them to adjust their respective appropriation items to reflect the transfer of functions and resources. This adjustment includes a decrease of $5,143,609.00 in the administered assets and liabilities item for the Department of Home Affairs and a corresponding increase of $5,143,609.00 for the National Recovery and Resilience Agency. These changes ensure that the financial allocations are accurately aligned with the new administrative responsibilities. The amendment determination is designed to facilitate the smooth transfer of functions and resources, ensuring that the government’s financial planning and reporting accurately reflect the current organisational structure.
In the event of non-compliance with the provisions of the amendment determination, there may be civil or criminal consequences depending on the nature and severity of the breach. However, the amendment determination itself does not specify particular offences, penalties, or consequences for breach. It is important to note that as a legislative instrument exempt from disallowance under the Legislation Act 2003, the amendment determination carries legal authority and non-compliance could potentially result in legal actions. The determination ensures that the transferred functions and resources are appropriately reflected in the financial records and planning processes of the relevant entities. The amendment determination is designed to support the efficient and effective management of government resources in alignment with the administrative changes mandated by the Executive Government.