EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability
(Section 75 Transfers) Amendment Determination 2022‑2023 (No. 10)
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 May 2023, the Digital Transformation Agency (DTA) and the Department of Home Affairs transferred functional responsibility for the DTA’s cyber security-related policy functions to the Department of Home Affairs.
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2022-2023 (No. 10) (the amendment determination) amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2022‑2023 (the principal determination) to reflect the transfer of appropriations between the DTA and the Department of Home Affairs. The amendment determination does not change the total amount appropriated by the Parliament.
The principal determination modifies specified 2022-23 Appropriation Acts to, among other things, increase or decrease appropriation items for affected entities due to the transfer of functions between them.
The specified 2022-23 Appropriation Acts include:
- the Supply Act (No. 1) 2022-2023;
- the Supply Act (No. 2) 2022-2023;
- the Supply Act (No. 3) 2022-2023;
- the Supply Act (No. 4) 2022-2023;
- the Appropriation Act (No. 1) 2022-2023; and
- the Appropriation Act (No. 2) 2022-2023.
The amendment determination is a legislative instrument for the purposes of section 8 of the Legislation Act 2003.
Commencement
The amendment determination commences on 1 October 2023.
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 items 12 and 13 at the end of the table in subsection 8(2) of the principal determination and has effect as if appropriation items in Schedule 1 to the Supply Act (No. 3) 2022-2023 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. The amendment determination does not change the total amount appropriated by the Parliament.
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 ($) |
12 | Digital Transformation Agency | Departmental item | 0.00 | -61,254.02 | -61,254.02 |
13 | Department of Home Affairs | Departmental item | 0.00 | +61,254.02 | +61,254.02 |
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 2022-2023 (No. 10) was enacted to modify appropriations in relation to the transfer of cyber security-related policy functions from the Digital Transformation Agency to the Department of Home Affairs. The determination is an amendment to the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2022-2023 and reflects changes in the allocation of resources between these entities. The determination does not alter the total appropriations made by Parliament but adjusts the appropriations for the affected entities in specified 2022-23 Appropriation Acts. The purpose of the amendment determination is to facilitate the reallocation of resources in line with the restructuring of government functions, ensuring that the appropriations reflect the new distribution of responsibilities. The determination was made under the authority delegated by the Finance Minister to the Secretary of the Department of Finance, and consultation with the affected entities was conducted as required by the Legislation Act 2003.
Scope and Application
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2022-2023 (No. 10) applies to appropriations within specified 2022-23 Appropriation Acts, namely the Supply Act (No. 1) 2022-2023, Supply Act (No. 2) 2022-2023, Supply Act (No. 3) 2022-2023, Supply Act (No. 4) 2022-2023, Appropriation Act (No. 1) 2022-2023, and Appropriation Act (No. 2) 2022-2023, as modified to reflect the transfer of appropriations between the Digital Transformation Agency (DTA) and the Department of Home Affairs. This amendment arises from the transfer of functional responsibility for the DTA's cyber security-related policy functions to the Department of Home Affairs, effective from 1 May 2023. The amendment determination modifies the appropriations in the specified acts, increasing or decreasing specific appropriation items for the affected entities while ensuring the overall total appropriation remains unchanged. This legislative instrument does not extend to any other entities, functions, or appropriations beyond those explicitly mentioned. The amendment determination is a legislative instrument under the Legislation Act 2003 and is exempt from disallowance under section 42 of that Act, as per section 75(7) of the Public Governance, Performance and Accountability Act 2013.
Key Provisions
The key provisions of the Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2022-2023 (No. 10) (the amendment determination) revolve around the transfer of appropriations between the Digital Transformation Agency (DTA) and the Department of Home Affairs, effective from 1 October 2023. Under the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Finance Minister has the authority to modify appropriations in Appropriation Acts to reflect transfers of functions between non-corporate Commonwealth entities. In this instance, the amendment determination adjusts the appropriations in certain 2022-2023 Appropriation Acts to reflect the transfer of cyber security-related policy functions from the DTA to the Department of Home Affairs, without altering the overall amount appropriated by Parliament. The determination modifies specific items in the Supply and Appropriation Acts to increase or decrease appropriations for the DTA and the Department of Home Affairs accordingly.
The obligations and requirements imposed by this amendment determination primarily concern the accurate adjustment of appropriations in the specified Acts. The Finance Minister, through the Secretary of the Department of Finance and designated officials, must ensure that the modifications reflect the functional transfer accurately and comprehensively. This involves updating appropriation items to align with the reallocation of resources between the DTA and the Department of Home Affairs. Additionally, the amendment determination necessitates adherence to consultation protocols as stipulated in section 17 of the Legislation Act 2003, ensuring that the affected entities were consulted during the preparation of the amendment.
Regarding offences, penalties, or consequences for non-compliance, the amendment determination does not explicitly outline specific civil or criminal penalties for breaches. However, the amendment determination is a legislative instrument exempt from disallowance under section 42 of the Legislation Act 2003, indicating that while it is subject to scrutiny, there are no immediate penalties outlined for non-compliance. The overarching requirement is to ensure the accuracy and integrity of the appropriations adjustments as per the transfer of functions, with any significant deviations potentially subject to administrative or parliamentary review. The legislative framework ensures that the transfer of appropriations remains aligned with the functional changes between entities, thereby maintaining fiscal discipline and accountability in the allocation of public resources.