Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2022-2023 (No. 7)

EXPLANATORY STATEMENT

Public Governance, Performance and Accountability Act 2013

Public Governance, Performance and Accountability

(Section 75 Transfers) Amendment Determination 2022‑2023 (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.

The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2022-2023 (No. 7) (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 Fair Work Ombudsman and Registered Organisations Commission (FWOROC) Entity, the Office of the Fair Work Ombudsman (Office of the FWO), the Department of Home Affairs, and the Attorney-General’s Department. The amendment determination does not change the total amount appropriated by the Parliament.

The amendment determination implements the final transfer of annual appropriations from the FWOROC Entity to the Office of the FWO, which commenced as a new non-corporate Commonwealth entity on 6 March 2023. 

On 13 October 2022, the Administrative Arrangements Order was amended to add ‘cybercrime’ to the matters dealt with by the Attorney-General’s Department. The amendment determination transfers related appropriations from the Department of Home Affairs to the Attorney-General’s Department.

The principal determination modifies the 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 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 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

1. Item 1 of Schedule 1 to the amendment determination updates the cumulative effect of the decrease in appropriation items for transferring entities and increase in appropriation items for receiving entities as set out in replacement items 13, 24, 56 and 57 of the table in subsection 6(4) of the principal determination. 

Subsection 6(4) of the principal determination has effect as if appropriation items in Schedule 1 to the Supply Act (No. 1) 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.

Note: A positive amount reflects an increase in an appropriation item and a negative amount reflects a decrease in an appropriation item.

2.      Item 2 of Schedule 1 of the amendment determination updates the cumulative effect of the decrease in appropriation item for the FWOROC Entity and increase in appropriation item for the Office of FWO as set out in replacement items 2 and 5 of the table in subsection 8(2) of the principal determination. 

Subsection 8(2) of the principal determination 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.

Note: A positive amount reflects an increase in an appropriation item and a negative amount reflects a decrease in an appropriation item.

3.      Item 3 of Schedule 1 to the amendment determination adds items 5 and 6 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.

Note: A positive amount reflects an increase in an appropriation item and a negative amount reflects a decrease in an appropriation item.

4.      Item 4 of Schedule 1 to the amendment determination updates the cumulative effect of the decrease in appropriation item for the FWOROC Entity and increase in appropriation item for the Office of FWO as set out in replacement items 3 and 4 of the table in subsection 10(3) of the principal determination. 

Subsection 10(3) of the principal determination has effect as if appropriation items in Schedule 1 to the Appropriation Act (No. 1) 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.

Note: A positive amount reflects an increase in an appropriation item and a negative amount reflects a decrease in an appropriation item.