FINANCIAL MANAGEMENT AND ACCOUNTABILITY AMENDMENT REGULATION 2012 (NO. 9) (SLI NO 328 OF 2012)

The Financial Management and Accountability Act 1997 (the FMA Act) provides a framework of rules for the proper management of public money and public property by Chief Executives and officials of FMA Act agencies. The FMA Act applies to Commonwealth Departments of State and their staff, parliamentary departments and their staff, and prescribed agencies.

Section 5 of the FMA Act provides that, for the purposes of the FMA Act, a prescribed agency means a body, organisation or group of persons prescribed by the regulations for the purposes of that definition. Agencies are prescribed in Schedule 1 to the Financial Management and Accountability Regulations 1997 (the Principal Regulations).

Subsection 65(1) of the FMA Act provides that the Governor-General may make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to that Act.

The Australian Charities and Not-for-profits Commission Act 2012 (ACNC Act) establishes the Australian Charities and Not-for-profits Commission (ACNC) to provide a dedicated regulator for the not-for-profit sector. Section 105-10 of the ACNC Act provides that the ACNC consists of the ACNC Commissioner and any staff assisting the ACNC Commissioner in accordance with subsection 120-5(1) of the ACNC Act. The Commissioner of Taxation is required to provide staff to assist the ACNC Commissioner in performing his or her statutory role.

Item 127 of Schedule 1 to the Principal Regulations prescribes the Australian Taxation Office (ATO) as an agency under section 5 of the FMA Act. Item 127 specifies the Commissioner of Taxation as the Chief Executive with responsibility for the financial management of the ATO.

The Regulation amends item 127 to include under the ATO the Commissioner of the Australian Charities and Not-for-profits Commission (ACNC Commissioner) and people assisting that statutory office holder for financial management purposes under the FMA Act. The Regulation includes a note to clarify that the Commissioner of the ACNC has responsibility for the general administration of the ACNC Act.

Under the ACNC Act, staff assisting the ACNC Commissioner are to be engaged under the Public Service Act 1999 and made available by the Commissioner of Taxation. The Commissioner of Taxation is the agency head of the ATO, a statutory agency under the Public Service Act 1999. When performing services for the ACNC Commissioner, staff will be subject to the directions of the ACNC Commissioner under section 120-5 of the ACNC Act. The Regulation also adds to item 127 staff who are to be provided by the Commissioner of Taxation to the ACNC Commissioner under subsection 120-5(1) of the ACNC Act and people engaged as consultants under the ACNC Act.

The Regulation also adds the ACNC Advisory Board to item 127 which would make them part of the ATO for FMA Act purposes. The ACNC Advisory Board, established under section 135-5 of the ACNC Act, is included in the ATO to clarify the note in section 135-15 of the ACNC Act which specifies that the Advisory Board must spend public money in accordance with the FMA Act.

The FMA Act specifies that no conditions need to be met before the power to make the Regulation may be exercised.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulation commences on the day that it is registered on the Federal Register of Legislative Instruments.

Consistent with section 17 of the Legislative Instruments Act 2003, consultation has taken place with the Department of the Treasury.

The Office of Best Practice Regulation has advised that a regulation impact statement is not required. The Regulation only applies to a statutory office within an FMA Act agency and does not affect the private sector.

The Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Human Rights Act).

The amendments do not engage any of the rights or freedoms outlined in the Human Rights Act, such as encompassed in the International Covenant on Civil and Political Rights. The amendments do not limit any human rights, nor establish any new offences or penalties.

ATTACHMENT

Details of the Financial Management and Accountability Amendment Regulation 2012 (No. 9)

Section 1 - Name of Regulation

This section provides that the title of the Regulation is the Financial Management and Accountability Amendment Regulation 2012 (No. 9), as made under section 65 of the Financial Management and Accountability Act 1997 (the FMA Act).

Section 2 - Commencement

This section provides that the Regulation commences on the day that it is registered on the Federal Register of Legislative Instruments.

Section 3 - Amendment of the Financial Management and Accountability Regulations 1997

This section provides that the Financial Management and Accountability Regulations 1997 (the Principal Regulations) are amended as set out in Schedule 1.

Schedule 1 - Amendments

Item 127 of Schedule 1 to the Principal Regulations prescribes the Australian Taxation Office as an agency under section 5 of the FMA Act. Schedule 1 amends Schedule 1 to the Principal Regulations to amend item 127 to add the Commissioner of the Australian Charities and Not-for-profits Commission (ACNC) as a statutory office holder within the Australian Taxation Office.

The ACNC is a new independent statutory office which will provide a dedicated regulator for the not-for-profit sector. Section 105-10 of the Australian Charities and Not-for-profits Commission Act 2012 (the ACNC Act) provides that the ACNC consists of the ACNC Commissioner and any staff assisting the ACNC Commissioner in accordance with subsection 120-5(1) of the ACNC Act. Staff assisting the ACNC Commissioner will be provided by the Commissioner of Taxation; however, they will be officers of the ACNC and report to the ACNC Commissioner in respect of all matters for which the ACNC Commissioner is responsible.

Item [1] - Schedule 1, item 127, column 2, paragraph (d)

This item makes a technical change to the punctuation for paragraph (d) as a consequence of the addition of the Commissioner of the ACNC to item 127 of the Principal Regulations as set out in item [2] below.

Item [2] - Schedule 1, item 127, column 2, after paragraph (d)

This item amends item 127 of Schedule 1 to the Principal Regulations to add a new paragraph (e) to prescribe the Commissioner of the ACNC as a statutory office within the Australian Taxation Office. The office of the Commissioner is established under subsection 110-5(1) of the ACNC Act.

New paragraph (e) includes a note to clarify that the Commissioner of the ACNC has responsibility for the general administration of the ACNC Act. New paragraph (f) adds the ACNC Advisory Board to item 127. The ACNC Advisory Board is established under section 135-5 of the ACNC Act.

New paragraphs (g) and (h), respectively, add the staff who are to be provided by the Commissioner of Taxation to the ACNC Commissioner under subsection 120-5(1) of the ACNC Act and people engaged as consultants under subsection 120-10(1) of the ACNC Act.

Commonwealth Numbered Regulations - Explanatory Statements

Details of the Financial Management and Accountability Amendment Regulation 2012 (No. 9)