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Appropriation Bill (No. 1) 2017-2018 [and] Appropriation Bill (No. 2) 2017-2018 [and] Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018



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BILLS DIGEST NO. 114, 2016-17 15 JUNE 2017

Appropriation Bill (No. 1) 2017-2018 [and] Appropriation Bill (No. 2) 2017-2018 [and] Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018 Phillip Hawkins Economics Section

Contents

Purpose of the Bill ............................................................... 2

Structure of the Bill ............................................................. 2

Background ......................................................................... 2

Constitutional requirements ................................................... 2

Powers of the House of Representatives to appropriate ...... 3

The ‘ordinary annual services of Government’ versus ‘other services of Government’ ............................................. 3

Presentational requirements................................................... 4

Departmental and administered expenses ........................... 4

Outcomes and programs ....................................................... 4

Appropriations for ‘outcomes’ of non-corporate Commonwealth entities ...................................................... 5

Appropriations for corporate Commonwealth entities ...... 5

Non-operating appropriations ............................................ 5

Appropriations for payments to the states ......................... 5

Advances to the Finance Minister and the Presiding Officers ............................................................................... 6

Debit limits ......................................................................... 7

Committee consideration .................................................... 7

Senate Standing Committee for the Scrutiny of Bills .............. 7

Financial implications .......................................................... 7

Statement of Compatibility with Human Rights .................... 7

Date introduced: 9 May 2017

House: House of Representatives

Portfolio: Finance

Commencement: The later of 1 July 2017 and Royal Assent

Links:

The links to the Appropriation Bill (No. 1) 2017-2018, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page.

The links to the Appropriation Bill (No. 2) 2017-2018, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page.

The links to the Appropriation (Parliamentary Departments Bill (No. 1) 2017-2018, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page.

All three Bills can be accessed through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

June 2017.

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Purpose of the Bill The purpose of the Appropriation Bill (No. 1) 2017-2018 (the No. 1 Bill) is to seek an appropriation from the Consolidated Revenue Fund (CRF) of $88,751,598,000 ($88.8 billion) for the ordinary services of Government.1 Of this appropriation:

• $54,495,023,000 ($54.5 billion) is for the departmental activities of government entities2 and

• $34,256,575,000 ($34.3 billion) is for activities that government entities administer on behalf of the Commonwealth Government.3

The purpose of the Appropriation Bill (No. 2) 2017-2018 (the No. 2 Bill) is to seek an appropriation for the other services of Government. The No. 2 Bill seeks to appropriate $15,599,238,000 ($15.6 billion) from the CRF:4

• $751,905,000 ($752 million) for payments to states, ACT and NT and local governments5 and

• $14,847,333,000 ($14.8 billion) for non-operating activities.6

The purpose of the Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018 (the Parliamentary Departments Bill) is to appropriate $326,129,000 ($326.1 million) for the Parliamentary departments.7

Structure of the Bill Part 1 of each Bill deals with preliminary matters, including when the Acts commence, and how to interpret the Acts.

Part 2 of each Bill outlines the quantum and types of appropriation from the CRF.

Part 3 of each Bill provides for either an Advance to the Finance Minister (AFM) or an Advance to the Presiding Officers of the Parliamentary departments, whichever is appropriate.

Part 4 of both the No. 1 Bill and the Parliamentary Departments Bill and Part 5 of the No. 2 Bill deal with technical matters including crediting amounts to special accounts, the formal appropriation of moneys from the CRF, and the automatic repeal of the subsequent Acts.

Part 4 of the No. 2 Bill sets the maximum amounts that can be drawn each year from the CRF for three types of grant to the states and territories that the Commonwealth may make. These limits are known as ‘debit limits’.

Schedule 1 of the No. 2 Bill nominates the Ministers who are able to impose conditions on grants of financial assistance to the states and territories proposed in that Bill.

Schedule 1 of the No. 1 Bill and the Parliamentary Departments Bill and Schedule 2 of the No. 2 Bill contain the details of the amounts and types of appropriation to be made to each entity.

Background There are certain unique constitutional requirements that a Bill proposing to appropriate moneys must satisfy. An appropriation Bill must also comply with certain presentational requirements. The No. 1 and No. 2 and Parliamentary Departments Bills do not deal with standing appropriations.

Constitutional requirements Section 81 of the Constitution provides:

All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund [CRF], to be appropriated for the purposes of the Commonwealth … 8

1. Appropriation Bill (No. 1) 2017-2018, clause 6. 2. Ibid., Schedule 1, Summary of appropriations. 3. Ibid.

4. Appropriation Bill (No. 2) 2017-2018, clause 6. 5. Ibid., Schedule 2, Summary of appropriations. 6. Ibid.

7. Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018, clause 6. 8. Constitution, section 81.

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Section 83 of the Constitution provides that no money may be withdrawn from the CRF ‘except under appropriation made by law’.9 The effect of these two sections is that all moneys received by the Commonwealth must be paid into the CRF, and must not be spent before there is an appropriation authorising specific expenditure.

Powers of the House of Representatives to appropriate Section 53 of the Constitution provides that proposed laws appropriating money may not originate in the Senate.10 Further, under section 56 of the Constitution, all proposed laws for the appropriation of money, may only be introduced following a recommendation by the Governor-General.11 By convention the Governor-General acts only upon the advice of the Executive, so section 56 prevents non-government members of the House of Representatives introducing Bills that would propose to appropriate money from the CRF.12

Powers of the Senate to amend The Senate may not amend proposed laws appropriating revenue or moneys for the ordinary annual services of the Government. The Senate may, however, return to the House of Representatives any such proposed laws requesting, by message, the omission or amendment of any items or provisions.13

The Senate may amend proposed laws appropriating revenue for purposes other than for the ordinary annual services of the Government, as long as it does not ‘increase any proposed charge or burden on the people’.14 Conceivably, the Senate could amend an appropriation Bill for the other services of Government so as to, for example, redirect the proposed appropriation to another purpose, or reduce the proposed appropriation to nil. The Senate may also request that, if new measures are included in a Bill for the ‘ordinary annual services of Government’, the Bill be returned to the House with a message requesting those new measures be omitted from the Bill.

The ‘ordinary annual services of Government’ versus ‘other services of Government’ Section 54 of the Constitution requires that there be a separate law appropriating funds for the ‘ordinary annual services of Government’, and that other matters must not be dealt with in the same Bill.15 However, what constitutes the ‘ordinary annual services of the Government’ and the ‘other’ services of the Government is not defined in the Constitution.

A working distinction between ordinary and other annual services was agreed in a ‘Compact’ between the Senate and the Government in 1965.16 The Compact has subsequently undergone several amendments. During 2010 the Senate Standing Committee on Appropriations and Staffing recommended the Senate restate the Compact in a consolidated form.17 On 22 June 2010, the Senate resolved as follows:

(1) To reaffirm its constitutional right to amend proposed laws appropriating revenue or moneys for expenditure on all matters not involving the ordinary annual services of the Government.

(2) That appropriations for expenditure on:

(a) the construction of public works and buildings;

(b) the acquisition of sites and buildings;

9. Constitution, section 83. 10. Constitution, section 53. 11. Constitution, section 56. 12. BC Wright and PE Fowler, eds, House of Representatives practice, 6th edn, Department of the House of Representatives, Canberra, 2012,

p. 424.

13. Constitution, section 53. 14. Ibid.

15. Constitution, section 54. 16. J Odgers, H Evans and R Laing, eds, Odgers’ Australian Senate practice, 13th edn, Department of the Senate, Canberra, 2012, p. 369. 17. Senate Standing Committee on Appropriations and Staffing, 50th report: ordinary annual services of the government, The Senate, Canberra, June 2010.

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(c) items of plant and equipment which are clearly definable as capital expenditure (but not including the acquisition of computers or the fitting out of buildings);

(d) grants to the states under section 96 of the Constitution;

(e) new policies not previously authorised by special legislation;

(f) items regarded as equity injections and loans; and

(g) existing asset replacement (which is to be regarded as depreciation),

are not appropriations for the ordinary annual services of the Government and that proposed laws for the appropriation of revenue or moneys for expenditure on the said matters shall be presented to the Senate in a separate appropriation bill subject to amendment by the Senate.

(3) That, in respect of payments to international organisations:

(a) the initial payment in effect represents a new policy decision and therefore should be in Appropriation Bill (No. 2); and

(b) subsequent payments represent a continuing government activity of supporting the international organisation and therefore represent an ordinary annual service and should be in Appropriation Bill (No. 1).

(4) That all appropriation items for continuing activities for which appropriations have been made in the past be regarded as part of ordinary annual services. 18

Adherence to the Compact has not always been strict, and the High Court has held that any disagreements between the Houses are not justiciable.19 Any disputes, therefore, are to be determined between the Houses themselves.

Presentational requirements

Departmental and administered expenses Australian Accounting Standard 1050 Administered Items requires that government agencies distinguish between revenues and expenses that they administer for the Government, and those over which they have some control.20 Generally, administered expenses are the costs of programs that entities run for the Government, while departmental expenses are the costs incurred in running these entities.

Appropriation Bills, therefore, distinguish between ‘administered’ expenses and ‘departmental’ expenses. An administered appropriation may be used only for the program or outcome that it is appropriated for, while a departmental appropriation may be moved between different departmental activities.21

Outcomes and programs While the level of detail necessary for an Appropriation Act to be valid is generally low, in the Pharmaceutical Benefits case the High Court held:

… there cannot be appropriations in blank, appropriations for no designated purpose, merely authorising expenditure … 22

18. Australia, Senate, Journals, 127, 2008-10, 22 June 2010, pp. 3642-3. 19. Osborne v Commonwealth (1911) 12 CLR 321, [1911] HCA 19, per Griffith CJ at [336]. 20. Australian Accounting Standards Board (AASB), Australian Accounting Standards Board 1050 administered items, AASB, Melbourne, December 2013.

21. Combet v Commonwealth (2005) 224 CLR 494, [2005] HCA 61, per Gummow, Hayne, Callinan and Heydon JJ at [123]. 22. Attorney-General (Vic); Ex rel Dale v Commonwealth (‘Pharmaceutical Benefits case’) (1945) 71 CLR 237, [1945] HCA 30, per Latham CJ at [253].

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The Appropriation Bills must therefore describe—in general terms—the purpose for which moneys are to be used. The Bills use four methods for describing the purposes of the proposed appropriations.

Appropriations for ‘outcomes’ of non-corporate Commonwealth entities For non-corporate Commonwealth entities, the purposes of operating appropriations (both departmental and administered) are specified with reference to the ‘outcomes’ of those entities. In 2017, the Department of Finance explained ‘outcome statements’ in the following terms:

Outcome statements articulate Government objectives and form an integral part of the appropriations framework. They:

a) explain the purpose for which annual appropriations are approved by the Parliament for use by entities;

b) provide a basis for budgeting and reporting against the use of appropriated funds; and

c) measure and assess entity and program non-financial performance in contributing to Government objectives.

An outcome statement should provide an immediate impression of what success looks like. 23

Outcome statements, therefore, tend to be aspirational in nature.

Appropriations for corporate Commonwealth entities As corporate Commonwealth entities are legally distinct from the Commonwealth itself, moneys cannot be appropriated directly to those entities.24 Instead, amounts are appropriated to relevant departments for on-payment to corporate Commonwealth entities within departments’ portfolios.

Non-operating appropriations Non-operating appropriations are amounts designated for the capital needs of entities. Typically, these amounts are equity injections into entities, or moneys for the purchase or development of the assets of entities. Under the Compact, they can only ever be proposed in a Bill dealing with the ‘other’ annual services of Government.

Appropriations for payments to the states Under section 96 of the Constitution, the Commonwealth Parliament may make payments to the states with or without conditions. Amounts intended for payment to the states are identified separately in appropriation Bills. Again, because of the Compact, amounts to the states can only ever be proposed in a Bill dealing with the ‘other’ annual services of Government. Amounts to the Australian Capital Territory and the Northern Territory are also included with the amounts for the states.

Appropriations for the Parliament and the Judiciary In 1981, the Senate Select Committee on Parliament’s Appropriations and Staffing considered the appropriations for the Parliament. That Committee noted the unique constitutional position of the Parliament vis-à-vis the Executive. That Committee noted section 53 of the Constitution’s reference to the ‘ordinary annual services of the Government’ before observing:

the Parliament may be ordinary; it may be annual; it may even be regarded as a service; but it is not a service of the Government. It is therefore inconsistent with the concept of the separation of powers and the supremacy of Parliament to treat the provisions made for the Parliament as being an ordinary annual service of the Government.

25 (emphasis added)

23. Department of Finance (DoF), Guide to preparing the 2017-18 portfolio budget statements, DoF, Canberra, May 2017, p. 32. 24. Public Governance, Performance and Accountability Act 2013, section 11, ‘Note’. 25. Australia, Parliament, Parliament’s appropriations and staffing: report of the Senate select committee, Parl. Paper 151/1981, Canberra, 1981, p. 18.

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That Committee recommended:

… all items of expenditure administered by the Executive departments on behalf of the Parliament be brought together in [a] Parliamentary Appropriation Bill …

Since 1982, the appropriations for the Parliamentary departments have been provided for via a distinct Appropriation Bill.

Quarantining appropriations in this way only applies to the Parliamentary departments (of which there are currently four).26 It does not extend to other aspects of the finances of the Parliament, such as providing for the remuneration and allowances of parliamentarians.

Despite the fact that, under the Constitution, the Judiciary is also distinct from the Executive, there is no equivalent practice whereby the Judiciary is provided for via a distinct Appropriation Bill.

Advances to the Finance Minister and the Presiding Officers The advance to the Finance Minister and the advance to the responsible Presiding Officers is an appropriation of moneys without any particular outcome or purpose specified. The advances are established in the first Appropriation Acts each year. The advances are then replenished whenever supplementary Appropriation Acts are passed.

The Finance Minister may use the amount appropriated as an advance to modify the schedule to the Appropriation Act, but only where:

… the Finance Minister is satisfied that there is an urgent need for expenditure, in the current year, that is not provided for, or is insufficiently provided for, […]:

(a) because of an erroneous omission or understatement; or

(b) because the expenditure was unforeseen until after the last day on which it was practicable to provide for it in the Bill for this Act before that Bill was introduced into the House of Representatives. 27

The Explanatory Memorandum asserts that an advance may also be used to add a new item or outcome to the schedule.28

An equivalent legislative scheme is proposed for the Presiding Officers.29

The amount of appropriation proposed to be allocated to the advance to the Finance Minister in 2017-2018 is $295 million in relation to the ordinary annual services of the Government;30 and $380 million in relation to the other annual services of the Government.31

For the Presiding Officers of the Parliament, the amounts of appropriation proposed to be allocated to the advance in 2017-2018 are:

• $300,000 each in relation to the:

- Department of the Senate32

- Department of the House of Representatives33 and

- Parliamentary Budget Office34 and

26. Namely: Department of the Senate, Department of the House of Representatives; Department of Parliamentary Services, and the Parliamentary Budget Office. 27. Appropriation Bill (No. 1) 2017-2018, clause 10; Appropriation Bill (No. 2) 2017-2018, clause 12. 28. Explanatory Memorandum, Appropriation Bill (No. 1) 2017-2018, p. 8; Explanatory Memorandum, Appropriation Bill (No. 2) 2017-2018,

p. 10.

29. Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018, clause 11. 30. Appropriation Bill (No. 1) 2017-2018, subclause 10(3). 31. Appropriation Bill (No. 2) 2017-2018, subclause 12(3). 32. Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018, subclause 11(3). 33. Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018, subclause 11(4). 34. Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018, subclause 11(6).

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• $1,000,000 in relation to the Department of Parliamentary Services.35

In order to access an advance, the Finance Minister or Presiding Officers, as the case may be, must issue a determination under the relevant Appropriation Act. A determination is a legislative instrument, but disallowance and sunsetting under section 42 and Part 4 of Chapter 3 of the Legislation Act 2003 respectively do not apply.36

Debit limits In addition to appropriating moneys for the other annual services of the Government, Part 4 of the No. 2 Bill also sets a maximum amount—known as a ‘debit limit’—that may be provided to the states and territories under three specific grant programs.

The legal appropriation for the three grant programs is provided by the special appropriation in section 80 of the Public Governance, Performance and Accountability Act 2013, which provides a standing appropriation for debits from special accounts. However, the design of the legislative schemes associated with each of the three grant programs requires that the maximum annual amount that may be debited under each program each year is to be set in an annual appropriation Bill. The three grant programs are as follows:

• grants from the Education Investment Fund provided for by Part 3.2 of the Nation-building Funds Act 2008,37 limited in the No. 2 Bill at $2,000,00038

• grants of general purpose financial assistance (other than the revenue from the Goods and Services Tax) provided under section 9 of the Federal Financial Relations Act 2009,39 limited at $5,000,000,00040 and

• grants made as National Partnership Payments via section 16 of the Federal Financial Relations Act, limited at $25,000,000,000.41

Because the Compact prevents the No. 1 Bill from dealing with grants to the states and territories, the debit limits are set in the No. 2 Bill.

Committee consideration Senate Standing Committee for the Scrutiny of Bills At the time of writing, the Bills that are the subject of this Bills Digest had not been considered by the Senate Standing Committee for the Scrutiny of Bills.

Financial implications The No. 1 Bill proposes to appropriate $88,751,598,000 ($88.8 billion) from the CRF.42

The No. 2 Bill proposes to appropriate $15,599,238,000 ($15.6 billion) from the CRF.43

The Parliamentary Departments Bill proposes to appropriate $326,129,000 ($326.1 million) from the CRF.44

The total amount of money proposed to be appropriated by the three Bills is $104,676,965,000 ($104.7 billion).

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) the Government has assessed the three Bills’ compatibility with the human rights and freedoms recognised or declared in the

35. Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018, subclause 11(5). 36. Appropriation Bill (No. 1) 2017-2018, subclause 10(4); Appropriation Bill (No. 2) 2017-2018, subclause 12(4); Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018, subclause 11(7). 37. Nation-building Funds Act 2008, section 199. 38. Appropriation (No. 2) Bill 2017-2018, subclause 13(1). 39. Federal Financial Relations Act 2009. 40. Appropriation (No. 2) Bill 2017-2018, subclause 13(2). 41. Appropriation (No. 2) Bill 2017-2018, subclause 13(3). 42. Appropriation Bill (No. 1) 2017-2018, clause 6. 43. Appropriation Bill (No. 2) 2017-2018, clause 6. 44. Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018, clause 6.

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international instruments listed in section 3 of that Act. In relation to the human rights implications of the Bills, the Government states:

The Bill seeks to appropriate money for the ordinary annual services of the Government [or services that are not considered to be ordinary annual services; or expenditure by the Parliamentary departments, as relevant].

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.

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

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.

Detailed information on the relevant appropriations, however, is contained in the portfolio statements. 45

At the time of writing, the Bills that are the subject of this Bills Digest had not been considered by the Parliamentary Joint Committee on Human Rights.

Key issues and provisions First covered are changes in the Bills from last year, followed by the key provisions. The Parliamentary Library’s Budget Review provides commentary on budget measures.46

Changes in Bill No. 1 The Schedule 1 summary, at page 11 of the No. 1 Bill shows that appropriations are expected to increase from $85.9 billion during the 2016-17 financial year to an expected $88.8 billion in 2017-2018, an increase of 3.3 per cent:

• departmental appropriations increase from $52.9 billion to $54.5 billion (2.9 per cent)

• administered appropriations increase from $33.0 billion to $34.3 billion (3.9 per cent).

Changes in Bill No. 2 The Schedule 2 summary, page 14 of the No. 2 Bill shows that appropriations are expected to increase from $13.6 billion during the 2016-17 financial year to an expected $15.6 billion in 2017-2018, an increase of 14.7 per cent:

• payments to the states, ACT, NT and local government are expected to decrease from $896.1 million to $751.9 million (-16.0 per cent), largely due to decreases to the Infrastructure and Regional Development, Education and Training and Attorney-General’s portfolios

• there are no New Administered Outcomes

• non-operating (capital) increase from $12.7 billion to $14.8 billion (16.8 per cent).

45. Explanatory Memorandum, Appropriation Bill (No. 1) 2017-2018, p. 3; Explanatory Memorandum, Appropriation Bill (No. 2) 2017-2018, p. 4; Explanatory Memorandum, Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018, p. 4. 46. Australia, Parliamentary Library, Budget review 2017-18, Research paper series, 2017-18, Parliamentary Library, Canberra, May 2017.

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Changes to the Parliamentary Departments Bill The Schedule 1 summary, at page 11 of the Parliamentary Departments Bill shows that appropriations are expected to increase from $244.0 million during the 2016-17 financial year to an expected $326.1 million in 2017-18, an increase of 33.7 per cent

• departmental appropriations are not expected to change significantly from 2016-17 to 2017-18, remaining around $197 million in both years

• administered appropriations are expected to decrease from $7.3 million to $5.7 million (-23 per cent)

• appropriations for non-operating expenses are expected to increase from $40.1 million to $123.9 million (209 per cent). This entirely represents an increase in non-operating expense appropriations to the Department of Parliamentary Services. The second reading speech for the Parliamentary Departments Bill states that this funding is ‘to maintain the integrity and amenity of Parliament House’.47

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47. M McCormack, ‘Second reading speech: Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018’, House of Representatives, Debates, 9 May 2017, p. 73.