EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability
(Section 75 Transfers) Amendment Determination (No. 6) 2021‑2022
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.
On 1 July 2022, the Minister for Emergency Management, Senator the Hon Murray Watt, announced the Government’s intention to recommend to the Governor-General the creation of a single emergency management, resilience and recovery agency, which will subsume the functions of the National Recovery and Resilience Agency and Emergency Management Australia (part of the Department of Home Affairs).
On 18 August 2022, the Governor-General made the Order to Establish the National Emergency Management Agency as an Executive Agency to commence on 1 September 2022. The National Emergency Management Agency was also listed in Schedule 1 to the Public Governance, Performance and Accountability Rule 2014, making it a non-corporate Commonwealth entity for the purposes of the PGPA Act.
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2021‑2022 (No. 6) (the amendment determination) amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2021‑2022 (the determination) to reflect the transfer of the recovery and resilience functions from the National Recovery and Resilience Agency to the National Emergency Management Agency. 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 immediately after this instrument is registered.
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 National Recovery and Resilience Agency was consulted.
Summary of amendments
- Item 1 of Schedule 1 to the amendment determination amends the definition of Appropriation Act in section 4 of the determination by adding the following Acts:
- Appropriation (Coronavirus Response) Act (No. 1) 2021-2022; and
- Appropriation (Coronavirus Response) Act (No. 1) 2021-2022.
2. Item 2 of Schedule 1 to the amendment determination adds new section 6 to the determination which applies to the Appropriation (Coronavirus Response) Act (No. 1) 2021-2022 and has effect as if Schedule 1 to the Act included a departmental item for the National Emergency Management Australia and the outcome for that Agency as set out in paragraph 6(2)(b).
Subsection 6(3) of the determination has effect as if appropriation items in Schedule 1 to the Appropriation (Coronavirus Response) Act (No. 1) 2021-2022 were increased or decreased in accordance with the table included in the subsection. If an appropriation item exists only because of the determination, the increase is from a nil amount.
Item | Entity | Appropriation item | Previous increase/ decrease by the determination ($) | Current increase/ decrease by the amendment determination ($) | Total increase/ decrease by the determination ($) |
1 | National Recovery and Resilience Agency | Administered item, Outcome 1 | 0.00 | -600,000,000.00 | -600,000,000.00 |
2 | National Emergency Management Agency | Administered item, Outcome 1 | 0.00 | +600,000,000.00 | +600,000,000.00 |
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 (No. 6) 2021-2022 was introduced to facilitate the transfer of specific functions and appropriations between non-corporate Commonwealth entities, as mandated by section 75 of the Public Governance, Performance and Accountability Act 2013. This amendment determination was enacted to streamline the reallocation of resources and functions between entities within the Commonwealth government, reflecting the administrative changes decided by the Executive Government. The determination was issued by the Secretary of the Department of Finance, who was delegated the authority to make such determinations by the Finance Minister under section 107 of the PGPA Act. This legislative instrument aims to ensure that the transfer of functions from the National Recovery and Resilience Agency to the newly established National Emergency Management Agency is accurately reflected in the appropriations of the relevant Appropriation Acts, without altering the total amount appropriated by the Parliament.
Scope and Application
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2021-2022 (No. 6) pertains to the transfer of certain functions and resources from one non-corporate Commonwealth entity to another, specifically from the National Recovery and Resilience Agency to the newly established National Emergency Management Agency. This amendment applies to appropriations related to the recovery and resilience functions as outlined in the Appropriation (Coronavirus Response) Act (No. 1) 2021-2022. The amendment does not alter the total amount appropriated by the Parliament, instead realigning the allocation of funds between the two agencies. The determination is made under section 75 of the Public Governance, Performance and Accountability Act 2013, which allows the Finance Minister to modify appropriations in relation to transfers of functions between non-corporate Commonwealth entities. This amendment determination is a legislative instrument exempt from disallowance, reflecting the administrative nature of the changes. The amendment determination is applicable nationally, as it pertains to Commonwealth entities and their functions. The amendment determination commenced immediately after its registration and did not require a statement of compatibility with human rights due to its exemption from disallowance.
Key Provisions
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2021-2022 (No. 6) (the amendment determination) primarily amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2021-2022 to reflect the transfer of recovery and resilience functions from the National Recovery and Resilience Agency to the National Emergency Management Agency. Section 75 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) provides the authority for the Finance Minister to determine modifications to Appropriation Acts in relation to the transfer of functions between non-corporate Commonwealth entities. In this case, the amendment determination specifically targets the Appropriation (Coronavirus Response) Act (No. 1) 2021-2022, introducing new section 6 that includes a departmental item for the National Emergency Management Agency and modifies the appropriation items accordingly. The total appropriation amount remains unchanged, but the allocation shifts from the National Recovery and Resilience Agency to the National Emergency Management Agency.
The amendment determination imposes specific obligations on the parties involved. The Finance Minister, who has the delegated power to make such determinations, must ensure that the changes reflect the transfer of functions accurately and without altering the total appropriation amount. The amendment determination requires the National Recovery and Resilience Agency to relinquish certain functions and resources, while the National Emergency Management Agency must take over the specified responsibilities and appropriations. Furthermore, the determination necessitates that the Appropriation (Coronavirus Response) Act (No. 1) 2021-2022 be amended to include the new departmental item for the National Emergency Management Agency, ensuring that all legal and administrative adjustments are correctly implemented.
Under the PGPA Act, breaches of the amendment determination could lead to various civil or administrative consequences. However, the specific text does not detail any direct criminal or civil penalties for non-compliance. Given that the amendment determination is exempt from disallowance, the usual legislative scrutiny and potential penalties associated with non-compliance do not apply. Nevertheless, failure to adhere to the requirements of the determination could result in administrative actions or consequences for the involved agencies, including potential audits or investigations into the proper allocation and use of appropriations.
Overall, the amendment determination facilitates the transfer of specific functions and appropriations from the National Recovery and Resilience Agency to the National Emergency Management Agency, ensuring a smooth transition and accurate allocation of resources as mandated by the PGPA Act. By modifying the Appropriation (Coronavirus Response) Act (No. 1) 2021-2022, the determination ensures that the necessary legal and administrative adjustments are made to reflect the reorganisation of emergency management and resilience functions within the Commonwealth.