EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2021‑2022 (No. 2) (the amendment determination)
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 amendment determination gives effect to the power in section 75, which 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.
Section 75(7) of the PGPA Act provides that a determination made under section 75(2) is a legislative instrument, but that section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.
Importantly, the Parliament by passing section 75(7) of the PGPA Act provided that these determinations would be exempt from disallowance. The Explanatory Memorandum for the Public Governance, Performance and Accountability Bill 2013 provided (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, sub‑delegated this power to certain officials within the Department of Finance, including the official who made this amendment determination.
The amendment determination is a legislative instrument for the purposes of section 8 of the Legislation Act 2003.
On 5 July 2021, the Prime Minister agreed to the transfer of the following functions between the Department of Finance and the Digital Transformation Agency (DTA) to support the revised mandate of the DTA:
- Government Domain Names, from DTA to Finance; and
- ICT Investment Approval Process, from Finance to DTA.
The amendment determination amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2021‑2022 (the Determination) to reflect these transfers. The amendment determination does not change the total amount appropriated by the Parliament.
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 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 section 17 of the Legislation Act 2003, the affected entities were consulted in the preparation of the amendment determination.
Summary of Modifications
- Item 1 of the amendment determination repeals and substitutes items 1 and 6 in the table in subsection 7(2) of the Determination. The items affect the relevant appropriation items in Schedule 1 to the Appropriation Act (No. 1) 2021‑2022 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 ($) |
1 | Digital Transformation Agency | Departmental item | -7,865,379.74 | +300,119.00 | -7,565,260.74 |
6 | Department of Finance | Departmental item | +877,379.74 | -300,119.00 | +577,260.74 |
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 2021-2022 (No. 2) was introduced to modify the Public Governance, Performance and Accountability Act 2013 in relation to the transfer of functions between the Department of Finance and the Digital Transformation Agency. Enacted by the Parliament of Australia, this amendment determination aims to reflect the reallocation of resources and appropriations resulting from the transfer of the Government Domain Names function from the Digital Transformation Agency to the Department of Finance and the ICT Investment Approval Process function from the Department of Finance to the Digital Transformation Agency. The determination allows the Finance Minister to adjust appropriations as necessary to accommodate these changes, recognising the Executive Government's authority to reorganise the administration and delivery of its functions. Importantly, this amendment determination is exempt from disallowance, as provided for in section 75(7) of the PGPA Act, and thus does not require a Statement of Compatibility with Human Rights.
Scope and Application
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2021-2022 modifies the appropriations for the transfer of certain functions between the Department of Finance and the Digital Transformation Agency, consistent with the powers granted under section 75 of the Public Governance, Performance and Accountability Act 2013. This amendment determination applies to the specified appropriation items in Schedule 1 to the Appropriation Act (No. 1) 2021-2022, reflecting the reallocation of resources to support the revised mandate of the Digital Transformation Agency. The amendment determination does not alter the total appropriations made by Parliament but adjusts the specific amounts transferred between the entities involved. It applies to the Commonwealth level and is limited to the specified transfers agreed upon by the Prime Minister. Notably, this determination is exempt from disallowance as outlined in section 75(7) of the PGPA Act, and therefore, a Statement of Compatibility with Human Rights is not required. The amendment determination was prepared after consulting the affected entities, as required by the Legislation Act 2003.
Key Provisions
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2021-2022 (No. 2) modifies the appropriations related to the transfer of specific functions between the Department of Finance and the Digital Transformation Agency (DTA). Section 75 of the Public Governance, Performance and Accountability Act 2013 allows the Finance Minister to adjust appropriations in Appropriation Acts when transferring functions between non-corporate Commonwealth entities. The amendment determination specifically reflects the transfer of the Government Domain Names function from DTA to Finance and the ICT Investment Approval Process from Finance to DTA. These changes do not alter the total amount appropriated by Parliament.
The amendment determination imposes obligations on the Department of Finance and the DTA to ensure that the transfers of appropriations align with the new functional responsibilities. For example, the Department of Finance must now account for an additional $577,260.74 for the ICT Investment Approval Process, whereas the DTA must adjust for a decrease of $7,565,260.74 in appropriations for the Government Domain Names function. These adjustments are reflected in the relevant appropriation items in Schedule 1 of the Appropriation Act (No. 1) 2021-2022.
Under the Legislation Act 2003, the amendment determination is exempt from disallowance, as stipulated in section 75(7) of the PGPA Act. Consequently, no Statement of Compatibility with Human Rights is required for this determination, as per subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011. The affected entities, including the Department of Finance and the DTA, were consulted during the preparation of this amendment determination, in line with section 17 of the Legislation Act 2003.
Failure to comply with the provisions of the amendment determination could result in administrative and financial discrepancies within the relevant entities. However, the specific consequences of non-compliance are not outlined in the provided text. The amendment determination serves to ensure that the appropriations are correctly aligned with the transferred functions, thereby maintaining the integrity of the budget allocations as per the Executive Government’s decisions.