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Financial Framework Legislation Amendment Bill (No. 3) 2012

Schedule 1 Amendments of Acts

   

Administrative Decisions (Judicial Review) Act 1977

1  After paragraph (hd) of Schedule 1

Insert:

           (he )  decisions under Division 3B of Part 4 of the Financial Management and Accountability Act 1997 ;

           (hf)  decisions under section 44 of the Financial Management and Accountability Act 1997 ;

Financial Management and Accountability Act 1997

2  After Division 3A of Part 4

Insert:

Division 3B Supplementary powers to make commitments to spend public money etc.

32B   Supplementary powers to make commitments to spend public money etc.

             (1)  If:

                     (a)  apart from this subsection, the Commonwealth does not have power to make, vary or administer:

                              (i)  an arrangement under which public money is, or may become, payable by the Commonwealth; or

                             (ii)  a grant of financial assistance to a State or Territory; or

                            (iii)  a grant of financial assistance to a person other than a State or Territory; and

                     (b)  the arrangement or grant, as the case may be:

                              (i)  is specified in the regulations; or

                             (ii)  is included in a class of arrangements or grants, as the case may be, specified in the regulations; or

                            (iii)  is for the purposes of a program specified in the regulations;

the Commonwealth has power to make, vary or administer the arrangement or grant, as the case may be, subject to compliance with this Act, the regulations, Finance Minister’s Orders, Special Instructions and any other law.

             (2)  A power conferred on the Commonwealth by subsection (1) may be exercised on behalf of the Commonwealth by a Minister or a Chief Executive.

Note 1:       For delegation by a Minister, see section 32D.

Note 2:       For delegation by a Chief Executive, see section 53.

             (3)  In this section:

administer :

                     (a)  in relation to an arrangement—includes give effect to; or

                     (b)  in relation to a grant—includes make, vary or administer an arrangement that relates to the grant.

arrangement includes contract, agreement or deed.

make , in relation to an arrangement, includes enter into.

vary , in relation to an arrangement or grant, means:

                     (a)  vary in accordance with the terms or conditions of the arrangement or grant; or

                     (b)  vary with the consent of the non-Commonwealth party or parties to the arrangement or grant.

32C   Terms and conditions for grants

Scope

             (1)  This section applies to a grant of financial assistance under section 32B.

Terms and conditions

             (2)  If the recipient of the grant is a State or Territory, the terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the recipient.

             (3)  An agreement under subsection (2) may be entered into on behalf of the Commonwealth by a Minister or a Chief Executive.

Note 1:       For delegation by a Minister, see section 32D.

Note 2:       For delegation by a Chief Executive, see section 53.

             (4)  If the recipient of the grant is a person other than a State or Territory, subsection (2) does not, by implication, prevent the grant from being made subject to terms and conditions.

32D   Delegation by a Minister

             (1)  A Minister may, by writing, delegate any or all of his or her powers under this Division to an official in any Agency.

             (2)  In exercising powers under a delegation, the delegate must comply with any directions of the Minister concerned.

32E   Executive power of the Commonwealth

                   This Division does not, by implication, limit the executive power of the Commonwealth.

3  Subsection 44(1) (note)

Repeal the note.

4  After subsection 44(1)

Insert:

          (1A)  The responsibility conferred on the Chief Executive by subsection (1) includes, and is taken to have included, the power to:

                     (a)  make arrangements, on behalf of the Commonwealth, in relation to the affairs of the Agency; and

                     (b)  vary those arrangements on behalf of the Commonwealth; and

                     (c)  administer those arrangements on behalf of the Commonwealth.

Note:          Some Chief Executives have delegated this power under section 53.

          (1B)  Subsection (1A) does not authorise the Chief Executive to exercise, on behalf of the Commonwealth, a power conferred on the Commonwealth by section 32B.

5  Subsection 44(2)

Omit “doing so”, substitute “discharging the responsibility, and exercising the power, conferred by this section”.

6  Subsection 44(3)

Insert:

administer , in relation to an arrangement, includes give effect to.

7  Subsection 44(3)

Insert:

arrangement includes contract, agreement or deed.

8  Subsection 44(3)

Insert:

make , in relation to an arrangement, includes enter into.

9  Transitional—pre-commencement arrangements

(1)       This item applies to an arrangement made, or purportedly made, by the Commonwealth before the commencement of this item if:

                     (a)  assuming that:

                              (i)  section 32B of the Financial Management and Accountability Act 1997 as amended by this Schedule; and

                             (ii)  any regulations made for the purposes of subparagraph (1)(b)(i), (ii) or (iii) of that section within the transitional period; and

                            (iii)  the amendments made by Schedule 2 to this Act;

                            had been in force when the arrangement was made or purportedly made, the arrangement would have been authorised by subsection (1) of that section; and

                     (b)  the arrangement was in force, or purportedly in force, immediately before the commencement of this item.

For this purpose, it is immaterial whether the arrangement was the subject of a proceeding instituted in a court or tribunal before the commencement of this item.

(2)       The arrangement has, and is taken to have had, effect, after the commencement of this item, as if it had been made under subsection 32B(1) of the Financial Management and Accountability Act 1997 as amended by this Schedule.

(3)       In this item:

arrangement includes contract, agreement or deed.

made , in relation to an arrangement, includes entered into.

transitional period means:

                     (a)  the 60-day period beginning at the commencement of this item; or

                     (b)  if a longer period is specified in the regulations—that longer period.

(4)       The Governor-General may make regulations for the purposes of paragraph (b) of the definition of transitional period in subitem (3).