EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability
(Section 75 Transfers) Amendment Determination 2021‑2022 (No. 7)
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.
Following the 2022 Federal Election, the Governor-General, acting on the advice of the Federal Executive Council, made an Administrative Arrangements Order (AAO) to commence on 1 July 2022. The new AAO available at https://www.pmc.gov.au/resource-centre/government/administrative-arrangements-order resulted in a number of machinery of government changes.
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2021‑2022 (No. 7) (the amendment determination) amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2021‑2022 (the principal determination) to support the implementation of these changes. The principal determination modifies the 2021-22 Appropriation Acts to, among other things, increase or decrease appropriation items for affected entities due to transfer of functions between them.
The 2021-22 Appropriation Acts include:
- the Appropriation Act (No. 1) 2021-2022;
- the Appropriation Act (No. 2) 2021-2022;
- the Appropriation (Coronavirus Response) Act (No. 1) 2021-2022;
- the Appropriation (Coronavirus Response) Act (No. 2) 2021-2022;
- the Appropriation Act (No. 3) 2021-2022; and
- the Appropriation Act (No. 4) 2021-2022.
In addition, the amendment determination modifies the 2021-22 Appropriation Acts to reflect changes in the names of portfolios and departments; add new portfolios and entities; and reflect movements of Commonwealth entities between portfolios as a result of machinery of government changes.
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 it is registered on the Federal Register of Legislation.
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 amends the definition of Appropriation Act in section 4 of the principal determination by adding the following Acts:
- the Appropriation Act (No. 3) 2021-2022; and
- the Appropriation Act (No. 4) 2021-2022.
2. Item 2 of Schedule 1 to the amendment determination adds new section 4A to the principal determination which modifies all 2021-22 Appropriation Acts listed in section 4. Subsection 4A(1) has the effect of amending references to portfolios and departments in the Acts as follows:
| Before amendments | After amendments |
Portfolio | Agriculture, Water and the Environment | Agriculture, Fisheries and Forestry |
Department | Department of Agriculture, Water and the Environment | Department of Agriculture, Fisheries and Forestry |
Portfolio | Education, Skills and Employment | Education |
Department | Department of Education, Skills and Employment | Department of Education |
Portfolio | Health | Health and Aged Care |
Department | Department of Health | Department of Health and Aged Care |
Portfolio | Industry, Science, Energy and Resources | Industry, Science and Resources |
Department | Department of Industry, Science, Energy and Resources | Department of Industry, Science and Resources |
Portfolio | Infrastructure, Transport, Regional Development and Communications | Infrastructure, Transport, Regional Development, Communications and the Arts |
Department | Department of Infrastructure, Transport, Regional Development and Communications | Department of Infrastructure, Transport, Regional Development, Communications and the Arts |
Subsection 4A(2) has effect of moving appropriation items and outcomes for the following non-corporate and corporate Commonwealth entities between portfolios in the 2021-22 Appropriation Acts:
Commonwealth entity | Transferring portfolio | Receiving portfolio |
Bureau of Meteorology | Agriculture, Fisheries and Forestry | Climate Change, Energy, the Environment and Water |
Director of National Parks | Agriculture, Fisheries and Forestry | Climate Change, Energy, the Environment and Water |
Great Barrier Reef Marine Park Authority | Agriculture, Fisheries and Forestry | Climate Change, Energy, the Environment and Water |
Murray‑Darling Basin Authority | Agriculture, Fisheries and Forestry | Climate Change, Energy, the Environment and Water |
Sydney Harbour Federation Trust | Agriculture, Fisheries and Forestry | Climate Change, Energy, the Environment and Water |
Asbestos Safety and Eradication Agency | Attorney‑General’s | Employment and Workplace Relations |
Australian Building and Construction Commission | Attorney‑General’s | Employment and Workplace Relations |
Fair Work Commission | Attorney‑General’s | Employment and Workplace Relations |
Fair Work Ombudsman and Registered Organisations Commission Entity | Attorney‑General’s | Employment and Workplace Relations |
Safe Work Australia | Attorney‑General’s | Employment and Workplace Relations |
Comcare | Attorney‑General’s | Employment and Workplace Relations |
National Archives of Australia | Attorney‑General’s | Infrastructure, Transport, Regional Development, Communications and the Arts |
Australian Skills Quality Authority | Education | Employment and Workplace Relations |
Australian Criminal Intelligence Commission | Home Affairs | Attorney-General’s |
Australian Federal Police | Home Affairs | Attorney-General’s |
Australian Institute of Criminology | Home Affairs | Attorney-General’s |
Australian Transaction Reports and Analysis Centre | Home Affairs | Attorney-General’s |
Office of the Special Investigator | Home Affairs | Attorney-General’s |
Clean Energy Regulator | Industry, Science and Resources | Climate Change, Energy, the Environment and Water |
Climate Change Authority | Industry, Science and Resources | Climate Change, Energy, the Environment and Water |
Australian Institute of Marine Science | Industry, Science and Resources | Climate Change, Energy, the Environment and Water |
Australian Renewable Energy Agency | Industry, Science and Resources | Climate Change, Energy, the Environment and Water |
Clean Energy Finance Corporation | Industry, Science and Resources | Climate Change, Energy, the Environment and Water |
North Queensland Water Infrastructure Authority | Infrastructure, Transport, Regional Development, Communications and the Arts | Climate Change, Energy, the Environment and Water |
Digital Transformation Agency | Prime Minister and Cabinet | Finance |
National Recovery and Resilience Agency | Prime Minister and Cabinet | Home Affairs |
Old Parliament House | Prime Minister and Cabinet | Infrastructure, Transport, Regional Development, Communications and the Arts |
3. Item 3 of Schedule 1 to the amendment determination adds new subsections (1B), (1C) and (1D) to section 5 of the principal determination, which modifies the Appropriation Act (No. 1) 2021-2022. New subsections 5(1B), (1C) and (1D) have effect as if Schedule 1 to the Act included a departmental item for the Department of Climate Change, Energy, the Environment and Water; the Department of Employment and Workplace Relations; and the National Emergency Management Agency. Item 3 also includes outcomes for these entities as set out in paragraphs 5(1B)(b), (1C)(b) and (1D)(b) respectively.
4. Item 4 of Schedule 1 to the amendment determination updates cumulative effect of the decrease in appropriation items for transferring entities and increase in appropriation items for receiving entities as set out in items 6, 12 and 17 of the table in subsection 5(2) of the principal determination.
Subsection 5(2) of the principal determination has effect as if appropriation items in Schedule 1 to the Appropriation 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 principal determination, the increase is from a nil amount.
Item | Entity | Appropriation item | Previous increase/ decrease by the principal determination ($) | Current increase/ decrease by the amendment determination ($) | Total increase/ decrease by the principal determination ($) |
6 | Department of Finance | Departmental item | 577,260.74 | 2,595,000.00 | 3,172,260.74 |
12 | Department of Infrastructure, Transport, Regional Development, Communications and the Arts | Departmental item | 8,856,000.00 | -1,288,954.28 | 7,567,045.72 |
17 | Department of Education | Departmental item | -3,906,198.00 | -168,632,125.76 | -172,538,323.76 |
Note: A positive amount reflects an increase in an appropriation item and a negative amount reflects a decrease in an appropriation item.
5. Item 5 of Schedule 1 to the amendment determination adds items 22 to 38 to the table in subsection 5(2) of the principal determination.
6. Item 6 of Schedule 1 to the amendment determination replaces references to the Department of Health with references to the Department of Health and Aged Care in the table in subsection 5(2) of the principal determination.
7. Item 7 of Schedule 1 to the amendment determination replaces references to the Department of Industry, Science, Energy and Resources with references to the Department of Industry, Science and Resources in the table in subsection 5(2) of the principal determination.
8. Item 8 of Schedule 1 to the amendment determination replaces references to the Department of Infrastructure, Transport, Regional Development and Communications with references to the Department of Infrastructure, Transport, Regional Development, Communications and the Arts in the table in subsection 5(2) of the principal determination.
9. Item 9 of Schedule 1 to the amendment determination replaces references to the Department of Agriculture, Water and the Environment with references to the Department of Agriculture, Fisheries and Forestry in the table in subsection 5(2) of the principal determination.
10. Item 10 of Schedule 1 to the amendment determination adds new section 5A to the principal determination, which modifies the Appropriation Act (No. 2) 2021-2022. Subsection 5A(2) has effect of amending references to the following Ministers in columns 3 and 4 of the table in Schedule 1 to the Act:
Before amendments | After amendments |
Minister for Education and Youth | Minister for Education |
Minister for Infrastructure, Transport and Regional Development | Minister for Infrastructure, Transport, Regional Development and Local Government |
Subsection 5A(3) has effect as if Schedule 2 to the Act included an other departmental item (equity injections) for the Department of Employment and Workplace Relations.
Subsection 5A(4) has effect as if appropriation items in Schedule 2 to the Act were increased or decreased in accordance with the table included in the subsection. If an appropriation item exists only because of the principal determination, the increase is from a nil amount.
11. Item 11 of Schedule 1 to the amendment determination repeals subsection 6(2) of the principal determination, which had effect as if Schedule 1 to the Appropriation (Coronavirus Response) Act (No. 1) 2021-2022 included a departmental item for the National Emergency Management Australia and the outcome for that Agency. Retaining this subsection would cause duplication with the effect of new subsection 5(1D), which applies to all 2021-22 Appropriation Acts.
12. Item 12 of Schedule 1 to the amendment determination adds new sections 7 and 8 to the principal determination. New section 7 modifies the Appropriation Act (No. 3) 2021-2022 and has effect as if appropriation items in Schedule 1 to the Act were increased or decreased in accordance with the table included in subsection 7(2). If an appropriation item exists only because of the principal determination, the increase is from a nil amount.
New section 8 modifies the Appropriation Act (No. 4) 2021-2022 and has effect as if Schedule 2 to the Act included an administered assets and liabilities item for the Department of Climate Change, Energy, the Environment and Water. Subsection 8(2) has effect as if appropriation items in Schedule 2 to the Act were increased or decreased in accordance with the table included in the subsection. If an appropriation item exists only because of the principal determination, the increase is from a nil amount.