EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2021‑2022 (No. 5) (the amendment determination)
Purpose of the amendment 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.
In October 2021, the Government agreed to transfer policy responsibility and funding for the Care and Support Workforce Campaign from the Department of Health to the Department of Social Services to leverage its existing work which meets the same objective.
The amendment determination amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2021‑2022 (the Determination) to reflect this transfer. 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 Schedule 1 to the amendment determination repeals and substitutes table item 8 in subsection 5(2) of the Determination. This table item affects 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 ($) |
8 | Department of Health | Departmental item | +1,000,000.00 | -87,000.00 | +913,000.00 |
Note: A positive amount reflects an increase in an appropriation item and a negative amount reflects a decrease in an appropriation item.
Item 2 of Schedule 1 to the amendment determination adds items 19, 20 and 21 at the end of the table in subsection 5(2) of the Determination. These table items affect the relevant appropriation items in Schedule 1 to the Appropriation Act (No. 1) 2021‑2022 in the following way:
Item | Entity | Appropriation item | Amount previously transferred by the Determination ($) | Amount transferred by the amendment determination ($) | Amended amount transferred by the Determination ($) |
19 | Department of Health | Administered item, Outcome 3 | 0.00 | -350,000.00 | -350,000.00 |
20 | Department of Social Services | Administered item, Outcome 3 | 0.00 | +350,000.00 | +350,000.00 |
21 | Department of Social Services | Departmental item | 0.00 | +87,000.00 | +87,000.00 |
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 2021-2022 (No. 5) was enacted to facilitate the transfer of policy responsibility and funding for the Care and Support Workforce Campaign from the Department of Health to the Department of Social Services. This amendment determination was introduced to ensure that the administrative changes related to the reallocation of resources between Commonwealth entities are accurately reflected in the appropriations process. The determination was made by the Secretary of the Department of Finance under a delegation from the Finance Minister, as authorised by the Public Governance, Performance and Accountability Act 2013. The amendment determination modifies the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2021-2022, adjusting specific appropriation items to account for the transfer without altering the total amount appropriated by the Parliament. The determination commenced on the day after registration and, as it is exempt from disallowance, a statement of compatibility with human rights was not required. The affected entities were consulted during the preparation of the amendment determination.
Scope and Application
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2021-2022 applies to the transfer of appropriations between the Department of Health and the Department of Social Services. This amendment determination is a legislative instrument made under section 75 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), and it modifies specific appropriations in Schedule 1 of the Appropriation Act (No. 1) 2021-2022 in response to the transfer of policy responsibility and funding for the Care and Support Workforce Campaign from the Department of Health to the Department of Social Services. This determination does not alter the total amount appropriated by the Parliament but redistributes certain appropriations between the two departments involved. The amendment determination is applicable nationally, as it involves appropriations under the Commonwealth of Australia. The determination is exempt from disallowance, as stipulated by section 75(7) of the PGPA Act, and thus does not require a statement of compatibility with human rights. The amendment determination came into effect on the day after its registration.
Key Provisions
The key operative sections of the amendment determination under the Public Governance, Performance and Accountability Act 2013 (PGPA Act) are sections 75 and 107, which enable the Finance Minister to determine modifications to Appropriation Acts in relation to the transfer of functions between non-corporate Commonwealth entities. Specifically, section 75(2) provides the power to make these determinations, while section 75(7) exempts such determinations from disallowance under the Legislation Act 2003. Section 107 of the PGPA Act allows the Finance Minister to delegate this power to the Secretary of the Department of Finance, who in turn has sub-delegated it to certain officials within the department, including the official who made this amendment determination.
The obligations and requirements imposed by this amendment determination on the parties involved, primarily the Department of Health and the Department of Social Services, involve adjusting their appropriation items in the Appropriation Act (No. 1) 2021-2022 to reflect the transfer of policy responsibility and funding for the Care and Support Workforce Campaign. This includes reducing the appropriation for the Department of Health and increasing it for the Department of Social Services to ensure alignment with the new organisational structure. The amendment determination specifically modifies the relevant appropriation items as outlined in the determination and ensures that the total amount appropriated by the Parliament remains unchanged.
The amendment determination does not explicitly outline specific offences, penalties, or consequences for breaches, as it focuses on administrative adjustments rather than enforcement mechanisms. However, any failure to comply with the requirements set out in the amendment determination could potentially lead to administrative or financial discrepancies, which might be subject to review and correction by the relevant authorities under the PGPA Act. Given that this determination is exempt from disallowance, it does not fall under the scrutiny of a statement of compatibility with human rights as required by the Human Rights (Parliamentary Scrutiny) Act 2011.
Consultation with the affected entities was conducted in accordance with section 17 of the Legislation Act 2003, ensuring that the amendment determination reflects the administrative changes agreed upon by the Government. The amendment determination aims to streamline the allocation of resources and ensure that the transfer of the Care and Support Workforce Campaign is efficiently managed between the two departments.