EXPLANATORY STATEMENT
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability
(Section 75 Transfers) Amendment Determination 2025‑2026 (No. 3)
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 16 September 2021, the leaders of Australia, the United Kingdom (UK) and the United States (US) entered into an enhanced trilateral security partnership called AUKUS. On 14 March 2023, the leaders of Australia, the UK and the US announced the optimal pathway for Australia’s acquisition of conventionally-armed, nuclear-powered submarines through AUKUS. On 6 May 2023, the Australian Government announced its intention to establish a new statutory regulator to regulate the unique circumstances associated with nuclear safety and radiological protection across the lifecycle of Australia’s nuclear-powered submarine enterprise.
The Australian Naval Nuclear Power Safety Act 2024 establishes the Australian Naval Nuclear Power Safety Regulator (the Regulator), a non-corporate Commonwealth entity for the purposes of the finance law as defined by the PGPA Act, which has functions, such as licensing, investigating compliance, and enforcement, to regulate activities relating to AUKUS submarines. The Regulator commences on 1 November 2025.
The Public Governance, Performance and Accountability (Section 75 Transfers) Amendment Determination 2025‑2026 (No. 3) (the amendment determination) amends the Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2025‑2026 (the principal determination) to reflect the transfer of appropriations from the Department of Defence to the Regulator.
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 2025-26 Appropriation Acts to, among other things, increase or decrease appropriation items for affected entities due to the transfer of functions between them.
The 2025-26 Appropriation Acts modified by the principal determination include:
- the Supply Act (No. 1) 2025-2026; and
- the Supply Act (No. 2) 2025-2026.
Commencement
The amendment determination commences on 1 November 2025.
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 inserts subsection 6(2B) in the principal determination which has effect as if Schedule 1 to the Supply Act (No. 1) 2025‑2026 included a departmental item and Outcome 1 for the Regulator as set out in paragraph 6(2B)(b).
- Item 2 of Schedule 1 to the amendment determination adds items 23 and 24 at the end of the table in subsection 6(3) of the principal determination and has effect as if the appropriation items in Schedule 1 to the Supply Act (No. 1) 2025-2026 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 ($) |
23 | Department of Defence | Departmental item | 0.00 | -3,656,250.00 | -3,656,250.00 |
24 | Australian Naval Nuclear Power Safety Regulator | Departmental item | 0.00 | +3,656,250.00 | +3,656,250.00 |
Note: A positive amount reflects an increase in an appropriation item and a negative amount reflects a decrease in an appropriation item.