EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability
(Section 75 Transfers) Amendment Determination 2023‑2024 (No. 9)
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 2023-2024 (No. 9) (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:
- from the Administrative Appeals Tribunal to the Administrative Review Tribunal;
- from the Department of Home Affairs to the Attorney-General’s Department;
- from the Department of Finance to the Parliamentary Workplace Support Service; and
- from the Australian Public Service Commission to the Parliamentary Workplace Support Service.
As part of the 2023-24 Budget, the Government announced an institutional reform to Australia’s system of federal administrative review which involves the establishment of the new Administrative Review Tribunal in place of the Administrative Appeals Tribunal. The amendment determination enables the second transfer of appropriations between the affected entities.
On 29 July 2024, the Governor-General has amended the Administrative Arrangements Order made on 13 October 2022 to transfer responsibility for the Australian Security Intelligence Organisation Act 1979 from the Minister administering the Department of Home Affairs to the Minister administering the Attorney-General’s Department. The amendment determination enables the transfer of appropriations for policy and legislation functions associated with the movement of the Australian Security Intelligence Organisation from the Home Affairs portfolio to the Attorney-General’s portfolio.
Finally, the amendment determination enables the final transfer of appropriations related to the movement of certain functions from the Department of Finance and the Australian Public Service Commission to the Parliamentary Workplace Support Service which was established in October 2023 in response to the Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces.
The amendment determination is a legislative instrument for the purposes of section 8 of the Legislation Act 2003. It does not change the total amount appropriated by the Parliament.
The principal determination modifies the specified 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 specified 2023-24 Appropriation Acts include:
- the Appropriation Act (No. 1) 2023-2024;
- the Appropriation Act (No. 2) 2023-2024; and
- the Appropriation Act (No. 3) 2023-2024.
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 (7). 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 Appropriation Act (No. 3) 2023-2024.
- Item 2 of Schedule 1 to the amendment determination updates the cumulative effect of the decreases in appropriation items for the Department of Finance and the Australian Public Service Commission and the increases in appropriation items for the Parliamentary Workplace Support Service as set out in replacement items 5, 6, 16, 17 and 18 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 ($) |
5 | Department of Finance | Departmental item | -43,601.49 | -356,338.03 | -399,939.52 |
6 | Parliamentary Workplace Support Service | Departmental item | +15,068,601.49 | +1,551,338.03 | +16,619,939.52 |
16 | Australian Public Service Commission | Departmental item | +8,020,663.00 | -1,195,000.00 | +6,825,663.00 |
17 | Department of Finance | Administered item, Outcome 3 | -1,284,857.23 | -389,856.64 | -1,674,713.87 |
18 | Parliamentary Workplace Support Service | Administered item, Outcome 1 | +1,284,857.23 | +389,856.64 | +1,674,713.87 |
Note: A positive amount reflects an increase in an appropriation item and a negative amount reflects a decrease in an appropriation item.
- Item 3 of Schedule 1 to the amendment determination adds new section 7 to the principal determination. Subsection 7(1) applies section 7 to the Appropriation Act (No. 3) 2023‑2024. Subsection 7(2) has effect as if Schedule 1 to the Act included a departmental item for the Administrative Review Tribunal and Outcome 1 for that entity as set out in paragraph 7(2)(b).
- Subsection 7(3) has effect as if appropriation items in Schedule 1 to the Act were increased or decreased in accordance with the table included in the subsection. If an appropriation item exists only because of the principal determination, the increase is from a nil amount. The amendment determination does not change the total amount appropriated by the Parliament.
Item | Entity | Appropriation item | Previous increase/ decrease by the principal determination ($) | Current increase/ decrease by the amendment determination ($) | Total increase/ decrease by the principal determination ($) |
1 | Administrative Appeals Tribunal | Departmental item | 0.00 | -10,275,851.57 | -10,275,851.57 |
2 | Administrative Review Tribunal | Departmental item | 0.00 | +10,275,851.57 | +10,275,851.57 |
3 | Department of Home Affairs | Departmental item | 0.00 | -138,858.50 | -138,858.50 |
4 | Attorney-General’s Department | Departmental item | 0.00 | +138,858.50 | +138,858.50 |
Note: A positive amount reflects an increase in an appropriation item and a negative amount reflects a decrease in an appropriation item.