EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability
(Section 75 Transfers) Amendment Determination 2023‑2024 (No. 4)
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 (Finance).
From 1 July 2023, Finance assumed responsibility for the Digital ID function from the Digital Transformation Agency (DTA). The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2023-2024 (No. 4) (the amendment determination) amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2023‑2024 (the principal determination) to reflect the transfer of appropriations between the DTA and Finance. The amendment determination does not change the total amount appropriated by the Parliament.
The principal determination modifies the 2023-24 Appropriation Acts to, among other things, increase or decrease appropriation items for affected entities due to the transfer of functions between them.
The 2023-24 Appropriation Acts include:
- the Appropriation Act (No. 1) 2023-2024; and
- the Appropriation Act (No. 2) 2023-2024.
The amendment determination is a legislative instrument for the purposes of section 8 of the Legislation Act 2003.
Commencement
The amendment determination commences the day 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 updates the cumulative effect of the decrease in appropriation item for the DTA and increase in appropriation item for Finance as set out in replacement items 5 and 7 of the table in subsection 5(3) of the principal determination.
Subsection 5(3) of the principal determination has effect as if appropriation items in Schedule 1 to the Appropriation Act (No. 1) 2023-2024 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 ($) |
5 | Department of Finance | Departmental item | -14,989,000.00 | +15,025,000.00 | +36,000.00 |
7 | Digital Transformation Agency | Departmental item | -534,872.73 | -15,025,000.00 | -15,559,872.73 |
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 2023-2024 (No. 4) amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2023-2024 to reflect the transfer of appropriations between the Department of Finance (Finance) and the Digital Transformation Agency (DTA) following the assumption of responsibility for the Digital ID function by Finance from 1 July 2023. Enacted by the Parliament of Australia, the Public Governance, Performance and Accountability Act 2013 (PGPA Act) was introduced to streamline and enhance the governance, performance, and accountability frameworks within the Australian public sector. The purpose of this amendment is to ensure that the appropriations between entities are adjusted to reflect the reallocation of functions without altering the total amount appropriated by Parliament. The determination is a legislative instrument exempt from disallowance under the Legislation Act 2003, reflecting its administrative nature in reorganising government functions and resource allocation.
Scope and Application
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2023-2024 (No. 4) applies to the modification of appropriations in the 2023-24 financial year concerning the transfer of the Digital ID function from the Digital Transformation Agency to the Department of Finance. This amendment determination is made under section 75 of the Public Governance, Performance and Accountability Act 2013, which allows the Finance Minister to adjust appropriations related to the transfer of functions between non-corporate Commonwealth entities. The amendment reflects the reallocation of resources without altering the total amount appropriated by the Parliament. It is a legislative instrument, exempt from disallowance under section 42 of the Legislation Act 2003, given its nature as an administrative change. The amendment determination modifies the appropriation items for the Department of Finance and the Digital Transformation Agency, ensuring the reallocation of funds aligns with the transfer of the Digital ID function, effective from 1 July 2023. The amendment is subject to consultation with the affected entities, consistent with legislative requirements.
Key Provisions
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2023-2024 (No. 4) (amendment determination) amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2023-2024 (principal determination) to reflect the transfer of appropriations between the Digital Transformation Agency (DTA) and the Department of Finance (Finance) following the transfer of the Digital ID function. Under section 75 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Finance Minister has the power to modify Schedules to Appropriation Acts in relation to the transfer of a function from one non-corporate Commonwealth entity to another (section 75(2)). This power is exercised through the principal and amendment determinations, which are legislative instruments for the purposes of the Legislation Act 2003. The amendment determination is effective from the day after it is registered on the Federal Register of Legislation.
The amendment determination imposes certain obligations and requirements on the Finance Minister and the Secretary of the Department of Finance. The Finance Minister, who has delegated this power to the Secretary under section 107 of the PGPA Act, must ensure that the amendment determination accurately reflects the transfer of appropriations between the DTA and Finance. The amendment determination must also ensure that the total amount appropriated by the Parliament remains unchanged. The Secretary, who has subdelegated this power to certain officials within the Department of Finance under section 109 of the PGPA Act, must prepare the amendment determination in accordance with the requirements of the PGPA Act and the Legislation Act 2003. The Secretary must also consult with the affected entities, as required by section 17 of the Legislation Act 2003.
The amendment determination does not create any new offences or penalties. However, any failure to comply with the requirements of the amendment determination may result in civil or criminal consequences under the PGPA Act or other applicable legislation. For example, section 12 of the PGPA Act provides that a person who contravenes a direction made under the Act is guilty of an offence and liable to a penalty of up to 500 penalty units (currently AUD 73,500) for an individual and up to 5,000 penalty units (currently AUD 735,000) for a body corporate. Similarly, section 12A of the PGPA Act provides that a person who contravenes a provision of the Act that requires the giving of a notice or the provision of information is guilty of an offence and liable to a penalty of up to 250 penalty units (currently AUD 36,750) for an individual and up to 2,500 penalty units (currently AUD 367,500) for a body corporate. The maximum penalties are increased where the offence is committed by a body corporate and the offence is a continuing one.
In summary, the amendment determination modifies the 2023-24 Appropriation Acts to reflect the transfer of appropriations between the DTA and Finance following the transfer of the Digital ID function. The amendment determination imposes certain obligations and requirements on the Finance Minister and the Secretary of the Department of Finance, who must ensure that the amendment determination accurately reflects the transfer of appropriations and complies with the requirements of the PGPA Act and the Legislation Act 2003. The amendment determination does not create any new offences or penalties, but any failure to comply with its requirements may result in civil or criminal consequences under the PGPA Act or other applicable legislation.