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Appropriation Bill (No. 4) 2017-2018

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2016-2017-2018

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

 

Appropriation Bill (No. 4) 2017-2018

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Minister for Finance,

Senator the Honourable Mathias Cormann)

 

 



Table of Acronyms and Defined Terms

 

 

AAA

Actual Available Appropriation

AAO

Administrative Arrangements Order

AFM

Advance to the Finance Minister

AI Act

Acts Interpretation Act 1901

BA

Budget Appropriation

Commonwealth entity

An entity as defined in section 10 of the PGPA Act

corporate entity

A corporate Commonwealth entity or a Commonwealth company within the meaning of the PGPA Act

CRF

Consolidated Revenue Fund

Finance Minister

Minister for Finance

GST

Goods and Services Tax

non-corporate entities

Non-corporate Commonwealth entities as defined in the PGPA Act, or the High Court

PGPA Act

Public Governance, Performance and Accountability Act 2013

portfolio statements

Portfolio Budget Statements and Portfolio Additional Estimates Statements

 



 



Appropriation Bill (No. 4) 2017-2018

General Outline                       

1                This Explanatory Memorandum accompanies the Appropriation Bill (No. 4) 2017-2018 (the Bill).

2                The main purpose of the Bill is to propose appropriations from the Consolidated Revenue Fund (CRF) for services that are not the ordinary annual services of the Government in addition to amounts appropriated through the Appropriation Act (No. 2) 2017-2018 .

3                Appropriations for the ordinary annual services of the Government must be contained in a separate Bill from other appropriations in accordance with sections 53 and 54 of the Australian Constitution (the Constitution). Consequently, the Bill proposes appropriations that are not for the ordinary annual services of the Government. Annual appropriations that are for the ordinary annual services of the Government are proposed in the Appropriation Bill (No. 3) 2017-2018 . Together these two Bills are termed the Additional Estimates Appropriation Bills.

4                The Portfolio Additional Estimates Statements are published and tabled in the Parliament in relation to the Bill. This Explanatory Memorandum should be read in conjunction with the various 2017-18 portfolio statements (being the Portfolio Budget Statements 2017-18 and the Portfolio Additional Estimates Statements) which contain details on the appropriations set out in the Schedules of the Bills.

Structure of the Bill

5                The Bill provides for the appropriation of specified amounts for expenditure by Australian Government entities, primarily being non-corporate Commonwealth entities (non-corporate entities) under the Public Governance, Performance and Accountability Act 2013 (PGPA Act) .

6                Part 1 of the Bill deals with definitions, the repeal of 2012-2013 and 2013-2014 Appropriation Acts, the interpretative role of the portfolio statements, and the concept of notional transactions. Part 2 of the Bill proposes appropriations to make payments of the amounts in Schedule 2 for State, ACT, NT and local government items (clause 8), administered items (clause 9 ), administered assets and liabilities items (clause 10), other departmental items (clause 11 ) and corporate entity items (clause 12). Part 3 of the Bill specifies the Advance to the Finance Minister (AFM) provision (clause 13).

7                Part 4 deals with credits to special accounts (clause 14), the conditions that apply to payments of State, ACT, NT and local government items (clause 15 and Schedule 1), provides for amounts to be appropriated as necessary (clause 16) and specifies when the Bill is repealed (clause 17). In addition to the AFM provision in Part 3, clause 16 of the Bill recognises that the appropriations proposed in the Bill may also be varied by the PGPA Act .

Financial Impact

8                The Bill, if enacted, would appropriate the amounts specified in Schedule 2 as set out in section 7.

9                Schedule 3, if enacted would repeal 15 old annual Appropriation Acts from 2012-2013 and 2013-2014 that are still on the statute book. Repealing the 2012-13 and 2013-14 annual Appropriation Acts will not affect the Budget. The appropriations that would be repealed are redundant, as they are either not required, or were approved for re-appropriation.

  





Statement of compatibility with human rights

1                The Bill seeks to appropriate money for services that are not considered to be the ordinary annual services of the Government.

2                Accordingly, the Bill performs an important constitutional function, by authorising the withdrawal of money from the CRF for the broad purposes identified in the Bill.

3                However, as the High Court has emphasised, beyond this, the Appropriation Acts do not create rights and nor do they, importantly, impose any duties.

4                Given that the legal effect of Appropriation Bills is limited in this way, the Bill is not seen as engaging, or otherwise affecting, the rights or freedoms relevant to the Human Rights (Parliamentary Scrutiny) Act 2011 .

5                Detailed information on the relevant appropriations, however, is contained in the portfolio statements.

 



 



Notes on clauses

Part 1—Preliminary

Clause 1—Short title

1                Clause 1 specifies that the short title of the Bill, once enacted, will be the Appropriation Act (No. 4) 2017-2018 .

Clause 2—Commencement

2                Clause 2 provides for the Bill to commence as an Act on the day of the Royal Assent.

Clause 3—Schedule 3

3                Clause 3 specifies that the Bill, once enacted, will repeal Acts set out in Schedule 3.

Clause 4— Definitions

4                Clause 4 defines the key terms used in the Bill, such as “administered item”, “non-corporate entity”, and “State, ACT, NT and local government item”.

Clause 5—Portfolio statements

5                Clause 5 declares that the portfolio statements are relevant documents under paragraph 15AB(2)(g) of the Acts Interpretation Act 1901 (AI Act) which provides for material to be considered in the interpretation of an Act if the material is declared by the Act to be relevant material for the purposes of section 15AB of the AI Act.

6                The purpose of the portfolio statements is to provide information on the proposed allocation of resources to Government outcomes by Commonwealth entities within each portfolio. The term “portfolio statements” is defined in the Bill, at clause 3, to mean the Portfolio Budget Statements 2017-18 and the Portfolio Additional Estimates Statements tabled in relation to the Bill.

Clause 6—Notional transactions between entities that are part of the Commonwealth

7                Clause 6 provides that notional transactions between non-corporate entities are to be treated as if they are real transactions. Notional transactions, therefore, require the debiting of an appropriation made by Parliament. The payments of the amounts in Schedule 2 from one non-corporate entity to another do not require, in a constitutional sense, an appropriation, because both non-corporate entities operate within the CRF. For reasons of financial discipline and transparency, the practice has arisen for these payments between non-corporate entities to be treated as though they required an appropriation, and to debit an appropriation when such notional payments are made. This is consistent with section 76 of the PGPA Act.

8                When a non-corporate entity makes a payment, whether to another non-corporate entity or another part of the same non-corporate entity (such as a different “business unit” within the entity), it is to be treated as a “real” payment. This means that the appropriation made by Parliament is extinguished by the amount of the notional payment, even though no payment is actually made from the CRF. Similarly, a notional receipt in such a situation is to be treated by the receiving non-corporate entity (where relevant) as if it were a real receipt. This does not mean every internal transfer of public money involves a notional payment and receipt.

Part 2—Appropriation items

Clause 7—Summary of appropriations

9                Clause 7 sets out the total of the appropriations in Schedule 2 of the Bill. The amounts in Schedule 2 may be increased by a determination under clause 13 (Advance to the Finance Minister).

10            The amounts in Schedule 2 of the Bill may be adjusted further in accordance with sections 74 to 75 of the PGPA Act. Specifically:

·                 Section 74 of the PGPA Act, when read with Rule 27 of the Public Governance, Performance and Accountability Rule 2014 , permits non-corporate entities to retain certain types of receipts by adding them to their most recent departmental item or other type of appropriation in an Appropriation Act when prescribed.

·                 Appropriations may be adjusted by amounts recoverable by a non-corporate entity from the Australian Taxation Office for Goods and Services Tax (GST), in accordance with section 74A of the PGPA Act . The amounts specified in Schedule 2 exclude recoverable GST. The appropriations shown represent the net amount that Parliament is asked to allocate to particular purposes.

Section 74A has the effect of increasing an appropriation by the amount of the GST qualifying amount arising from payments in respect of the appropriation. As a result, there is sufficient appropriation for payments under an appropriation item, provided that the amount of those payments, less the amount of recoverable GST, can be met from the initial amount shown against the item in Schedule 2. Section 74A also applies to notional transactions between and within non-corporate entities.

·                 Items may be adjusted to take into account the transfer of functions between non-corporate entities, in accordance with section 75 of the PGPA Act. It is possible that adjustments under section 75 may result in new items and/or outcomes being created in an Appropriation Act.

11            Additionally, the Finance Minister manages the payment from items in the Bill by non-corporate entities using a discretionary power under section 51 of the PGPA Act. Section 51 allows the Finance Minister to manage the timing and the amount of appropriated money to be made available to a Commonwealth entity (an entity as defined in section 10 of the PGPA Act), except as required by law.

Clause 8—State, ACT, NT and local government items

12            Clause 8 provides administered appropriations for financial assistance to the States, ACT, NT and local governments. State, ACT, NT and local government items are appropriated separately for each outcome, making it clear what the funding is intended to achieve. The amount specified in Schedule 2 for an outcome may be applied by a non-corporate entity for the purpose of making payments to any of the States, ACT, NT or local government authorities for the purpose of achieving that outcome.

13            Clauses 8 and 15 delegate Parliament’s power under section 96 of the Constitution to impose terms and conditions on payments of financial assistance to the States to the responsible Ministers listed in Schedule 1 of the Bill. Schedule 1 also lists the Ministers who may determine the amounts and timing of those payments. These payments are usually made pursuant to eligibility rules and conditions established by the Government or Parliament.

14            Additional information on payments to the States, Territories and local government can be found in the portfolio statements of the relevant entities. These documents can be found at www.budget.gov.au .

Clause 9—Administered items

15            Subclause 9(1) provides for the appropriation of new administered outcome amounts to be applied by a non-corporate entity for the purpose of contributing to the outcome for a non-corporate entity. An “administered item” is defined in clause 3 to be an amount set out in Schedule 2 opposite an outcome for a non-corporate entity under the heading “New Administered Outcomes”. As with administered items in the Appropriation Bill (No. 3) 2017-2018 , New Administered Outcomes are appropriated separately for outcomes, making it clear what the funding is intended to achieve.

16            The purposes for which each administered item can be spent are further set out in subclause 9(2). Subclause 9(2) provides that where the portfolio statements indicate a particular activity is in respect of a particular outcome, then expenditure on that activity is taken to be expenditure for the purpose of contributing to achieving that outcome.

17            New Administered Outcomes are those administered by a non-corporate entity on behalf of the Government (e.g. certain grants, benefits and transfer payments). These payments are usually made pursuant to eligibility rules and conditions established by the Government or the Parliament. Specifically, administered items are tied to outcomes (departmental items are not).

18            New Administered Outcomes are typically proposed when a non-corporate entity’s outcomes are changed to reflect new program objectives, strategies and/or activities; and/or

·                 a non-corporate entity seeks administered operating appropriations for the first time (including existing non-corporate entities that have received departmental operating appropriations in the past); and/or

·                 annual administered operating appropriations are proposed for the first time, for programs previously funded by special appropriations.

Clause 10—Administered assets and liabilities items

19            Clause 10 provides amounts in Schedule 2 to acquire administered assets, enhance existing administered assets and/or discharge administered liabilities relating to activities administered by non-corporate entities on behalf of the Government. Administered assets and liabilities appropriations are provided for functions managed by a non-corporate entity on behalf of the Government. Administered assets and liabilities items can be applied for any outcomes of the non-corporate entity in Schedule 2 of the Bill; Schedule 1 of the Appropriation Act (No. 1) 2017-2018 ; Schedule 2 of the Appropriation Act (No. 2) 2017-2018 ; or Schedule 1 of the Appropriation Bill (No. 3) 2017-2018.  

Clause 11—Other departmental items

20            Clause 11 appropriates departmental non-operating appropriations in the form of equity injections, over which the non-corporate entity also exercises control. This clause provides that the amount specified in other departmental items for a non-corporate entity may be applied for the departmental expenditure of the entity. For example, “equity injections” can be provided to non-corporate entities to enable investment in assets to facilitate departmental activities and for Designated Collecting Institutions to purchase heritage and cultural assets .

21            Other departmental items are not expressed in terms of a particular financial year. For example, equity injection appropriations provide funding to meet the cost expected to be incurred in the Budget year to acquire a new asset, however, for a number of reasons, some part of the appropriation might not be required until a later financial year. Other departmental items are available until they are spent, or the Act through which they were appropriated is repealed. Annual Appropriation Acts have a lifespan of up to three years after which they automatically repeal.

Clause 12—Corporate entity items

22            Clause 12 provides for appropriations of money for corporate entities to be paid from the CRF by the relevant Department. Clause 12 provides that payments for corporate entities must be used for the purposes of those entities.

23            A “corporate entity” is defined in clause 3 to be a corporate Commonwealth entity or a Commonwealth company within the meaning of the PGPA Act. Many corporate entities receive funding from appropriations. However, these entities are legally separate from the Commonwealth, and as a result, do not debit appropriations or make payments from the CRF.

24            Corporate entity payments are initiated by requests to the relevant portfolio Departments from the corporate entity. The Finance Minister manages appropriations for corporate entities through a discretionary power to control the timing and amount made available under section 51 of the PGPA Act, except as required by law. Corporate entities hold the amounts paid to them on their own account.

25            Subclause 12(2) provides that if a corporate entity is subject to another Act that requires amounts appropriated by Parliament for the purposes of that entity to be paid to the entity, then the full amount of the corporate entity payment must be paid to the entity.

26            The purpose of subclause 12(2) is to clarify that subclause 12(1) is not intended to qualify any obligations in other legislation regulating a corporate entity, where that other legislation requires the Commonwealth to pay the full amount appropriated for the purposes of the entity.

27            In addition to the annual appropriations, some corporate entities may also receive public money from related entities such as a portfolio Department and from special appropriations managed by those Departments. Many corporate entities also receive funds from external sources.

Part 3—Advance to the Finance Minister

Clause 13—Advance to the Finance Minister

28            Section 12 of the Appropriation Act (No. 2) 2017-2018 enables the Finance Minister to allocate additional amounts for items when satisfied that there is an urgent need for expenditure, and the existing appropriation in the current year, is not provided for, or is insufficiently provided for. The allocated amount is referred to as the Advance to the Finance Minister (AFM). Subsection 12(3) of the Appropriation Act (No. 2) 2017-2018 provides that the total amount that can be determined under the AFM provision is $380 million.

29            Clause 13 of the Bill provides that irrespective of the amounts issued from the AFM before the commencement of the Bill, the amount available under section 12 of the Appropriation Act (No. 2) 2017-2018 will be restored to the original amount of $380 million. The clause ensures that there will be sufficient scope to provide amounts from the AFM for the remainder of the financial year.

30            Subclause  13 (1) of the Bill specifies that if the Finance Minister has determined under subsection 12(2) of the Appropriation Act (No. 2) 2017-2018 to increase an amount in Schedule 2 of the Appropriation Act (No. 2) 2017-2018 from the AFM, then the amount is to be disregarded for the purposes of subsection 12(3) of the Appropriation Act (No. 2) 2017-2018 when the Bill commences. From the date this Bill commences as an Act the total amount that can be determined under the AFM will again be $380 million.

31            Subclause  13 (2) of the Bill prevents appropriations for the same expenditure from both the AFM and the Bill. Subclause 13(2) ensures that if Schedule 2 of the Bill provides an amount for a particular expenditure and, prior to the commencement of the Bill, the Finance Minister determines an amount from the AFM under section 12 of the Appropriation Act (No. 2) 2017-2018 for the same expenditure (the advanced amount), then the appropriation in the Bill will be reduced by the amount of the advanced amount. The appropriated amount cannot be reduced below nil. For example, if the Bill provides $20 million for a program and an advanced amount of $5 million is determined by the Finance Minister under the Appropriation Act (No. 2) 2017-2018 for a particular payment under that program, then the amount appropriated by the Bill, once enacted, will be reduced by $5 million (i.e. appropriating only $15 million for the program).

32            The Finance Minister may continue to make determinations under subsection 12(2) of the Appropriation Act (No. 2) 2017-2018 to add an amount from the AFM to an item of a Commonwealth entity if the criteria in subsection 12(1) of that Act are satisfied.

Part 4 —Miscellaneous

Clause 14—Crediting amounts to special accounts

33            Clause 14 provides that if the purpose of an item in Schedule 2 is also the purpose of a special account (regardless of whether the item expressly refers to the special account), then amounts may be debited against the appropriation for that item and credited to the special account. Special accounts may be established under the PGPA Act by a determination of the Finance Minister (section 78) that is disallowable by Parliament or by another Act (sections 79 and 80). The determination or Act that establishes the special account will specify the purposes of the special account.

Clause 15—Conditions etc. applying to State, ACT, NT and local government items

34            Clause 15 deals with Parliament’s power under section 96 of the Constitution to provide financial assistance to the States. Clause 15 delegates the power to the responsible Ministers listed in Schedule 1 of the Bill, by providing the Ministers named in Schedule 1 with the power to determine:

·                 conditions under which payments to the States, ACT, NT and local government may be made: clause  15 (2)(a); and

·                 the amounts and timing of those payments: clause  15 (2)(b).

35            Subclause  15 (4) provides that determinations made under subclause  15 (2) are not legislative instruments, because these determinations are not altering the appropriations approved by Parliament. Determinations under subclause  15 (2) are administrative in nature and will simply determine how appropriations for State, ACT, NT and local government items will be paid.

36            Determinations under clause 15 or its equivalent are rare. Most payments to the States and Territories are governed by, and appropriated through, the Federal Financial Relations Act 2009 . For the payments to the States, ACT, NT and local government in an even-numbered Appropriation Act, generally other legislative or agreed frameworks determine how the payments are made and when, such as the Local Government (Financial Assistance) Act 1995 or a National Agreement. Many of these arrangements can be found on the Federal Financial Relations website ( http://www.federalfinancialrelations.gov.au/ ).

37            Although financial assistance is provided to the ACT, NT and local governments without reference to section 96 of the Constitution, those payments are administered in the same way. Therefore, the Ministers identified in Schedule 1 may set the amounts and timing and impose terms and conditions on those payments. Subclause 15(5) also notes that clause 15 will not limit the powers of the Commonwealth under section 96 of the Constitution to provide financial assistance to a State which is not appropriated by a State, ACT, NT and local government item.

38            In the Bill, appropriations to the States, ACT, NT and local government are sought for the Department of Education and Training against Outcome 1. Further information may also be found in their portfolio statements. The most recent detailed estimates of Commonwealth payments to the States, Territories and local governments from 2017-18 to 2020-21 may be found in Annex A to Attachment D in Part 3 of Mid-Year Economic and Fiscal Outlook 2017-18 which is available at http://www.budget.gov.au/ .

Clause 16—Appropriation of the Consolidated Revenue Fund

39            Clause 16 provides that the CRF is appropriated as necessary for the purposes of the Bill. Significantly, this clause means that there is an appropriation in law when the Act commences. That is, the appropriations are not made or brought into existence just before they are paid, but when the Act commences. This clause indicates that the amounts appropriated may be affected by the PGPA Act, in particular sections 74 to 75 (see clause 7), after the Act commences.

Clause 17—Repeal of this Act

40            Clause 17 specifies that the Bill, once enacted, will repeal at the start of 1 July 2020.

Schedule 1—Payments to or for the States, ACT, NT and local government

41            In accordance with clause  15 , Schedule 1 lists the Ministers responsible for determinations on payments to or for the States, ACT, NT and local government.

Schedule 2—Services for which money is appropriated

42            Schedule 2 specifies the appropriations proposed for the other than ordinary annual services of the Government. Schedule 2 contains a summary table which lists the total amounts for each portfolio. A separate summary table is included for each portfolio, with other tables detailing the appropriations for each Commonwealth entity. More details about the appropriations in Schedule  2 are contained in the portfolio statements and the second reading speech for the Bill.

43            Schedule 2 includes, for information purposes, a figure for the current financial year labelled “Budget Appropriation (italic figures) - 2017-2018”, and a figure for the previous financial year labelled “Actual Available Appropriation (light figures) - 2016-2017”. The Budget Appropriation (BA) and Actual Available Appropriation (AAA) are estimates that do not affect the amount available at law. These figures provide a comparison with the proposed appropriations.

44            The BA and AAA are calculated for each item by adding the amounts appropriated in the relevant financial year’s annual Appropriation Acts, plus any AFMs, and any adjustments under sections 51 and 75 of the PGPA Act. In some instances, the figures may also be affected by limits applied administratively by the Department of Finance. In addition, where an entity’s outcome structure has changed since the last Appropriation Act, only ongoing outcomes may be shown in the Bill.

Machinery of Government changes

45            Since the commencement of the Appropriation Act (No. 2) 2017-2018 , there have been changes to Departments pursuant to the Machinery of Government changes from the amendments to the Administrative Arrangements Order (AAO) made on 20 December 2017.

46            On 20 December 2017, the Governor-General in Council acting on the Prime Minister’s recommendation under section 64 of the Constitution renamed the Departments of State in the first column to the names in the second column:



 

Before 20 December 2017

From 20 December 2017

Department of Employment

Department of Jobs and Small Business

Department of Immigration and Border Protection

Department of Home Affairs

Department of Infrastructure and Regional Development

Department of Infrastructure, Regional Development and Cities

47            Schedule 2 to the Bill therefore differs to Schedule 2 of the Appropriation Act (No. 2) 2017-2018 in the following ways:

·                 it refers to the new names of Departments as a result of the AAO;

·                 it includes amendments to outcome statements in relation to transferred functions between Departments;

·                 it renamed the Immigration and Border Protection Portfolio the Home Affairs Portfolio;

·                 the Department of Jobs and Small Business and the Department of Industry, Innovation and Science were moved to a new Jobs and Innovation Portfolio; and

·                 the Department of Human Services was moved out of the Social Services Portfolio to its own Human Services Portfolio.

48            The Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2017-2018 amended references to the names of portfolios and Departments in Schedule 2 of the Appropriation Act (No. 2) 2017-2018 to reflect amendments to the AAO.

49            Machinery of Government changes also resulted in the transfer of legislative responsibility and related functions between various Commonwealth entities. Full details of the changes as expressed in the 20 December 2017 AAO can be found at https://www.pmc.gov.au/resource-centre/government/aao-amendment-made-20-dec-2017 .

Schedule 3—Repeal of 2012-2013 and 2013-2014 Appropriation Acts

50            Schedule 3 seeks to repeal 15 old annual Appropriation Acts from 2012-2013 and 2013-2014 that are still on the statute book. The Appropriation Bill (No. 4) 2017-2018 would, if enacted, repeal:

·                 five old Acts for the ordinary annual services of the Government;

·                 five old Acts for other than the ordinary annual services of the Government;

·                 three old Acts for the operations of Parliamentary Departments; and

·                 two old Acts in relation to the implementation of the report of the expert panel on asylum seekers.