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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.
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Purpose
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Appropriation Bill (No. 1) 2024-2025 seeks to appropriate money out of the
Consolidated Revenue Fund for the ordinary annual services
of the
government.
Appropriation Bill (No. 2) 2024-2025 seeks to appropriate money out of the
Consolidated Revenue Fund for certain expenditure, and
for related
purposes.
Appropriation Bill (No. 5) 2023-2024 seeks to appropriate additional money
out of the Consolidated Revenue Fund for the ordinary annual
services of the
government, in addition to the appropriations provided for by Appropriation Act
(No. 1) 2023-2024 and Appropriation Act (No. 3) 2023-2024.
Appropriation Bill (No. 6) 2023-2024 seeks to appropriate additional money
out of the Consolidated Revenue Fund for certain expenditure,
in addition to the
appropriations provided for by Appropriation Act (No. 2) 2023-2024 and
Appropriation Act (No. 4) 2023-2024.
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Portfolio
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Finance
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Introduced
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House of Representatives on 14 May 2024
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Bill status
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Passed both Houses on 25 June 2024
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1.2 Under section 53 of the Constitution the Senate cannot amend proposed laws appropriating revenue or moneys for the ordinary annual services of the government. Further, section 54 of the Constitution provides that any proposed law which appropriates revenue or moneys for the ordinary annual services of the government shall be limited to dealing only with such appropriation.
1.3 Appropriation Bill (No. 1) 2024-2025 (Appropriation Bill No. 1) seeks to appropriate money from the Consolidated Revenue Fund for the ordinary annual services of the government. However, it appears to the committee, for the reasons set out below, that the initial expenditure in relation to certain measures may have been inappropriately classified as ordinary annual services.
1.4 The inappropriate classification of items in appropriation bills as ordinary annual services, when they in fact relate to new programs or projects, undermines the Senate’s constitutional right to amend proposed laws appropriating revenue or moneys for expenditure on all matters not involving the ordinary annual services of the government. This is relevant to the committee’s role in reporting on whether the exercise of legislative power is subject to sufficient parliamentary scrutiny.[3]
1.5 The Senate Standing Committee on Appropriations and Staffing[4] has also actively considered the inappropriate classification of items as ordinary annual services of the government.[5] It has noted that the division of items in appropriation bills since the adoption of accrual budgeting has been based on a mistaken assumption that any expenditure falling within an existing departmental outcome should be classified as ordinary annual services expenditure.[6]
1.6 As a result of continuing concerns relating to the misallocation of some items, on 22 June 2010 the Senate resolved:
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; [and]
2) That appropriations for expenditure on:
a) the construction of public works and buildings;
b) the acquisition of sites and buildings;
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.[7]
1.7 The committee concurs with the view expressed by the Appropriations and Staffing Committee that if ‘ordinary annual services of the government’ is to include items that fall within existing departmental outcomes then:
completely new programs and projects may be started up using money appropriated for the ordinary annual services of the government, and the Senate [may be] unable to distinguish between normal ongoing activities of government and new programs and projects or to identify the expenditure on each of those areas.[8]
1.8 The Appropriations and Staffing Committee considered that the solution to any inappropriate classification of items is to ensure that new policies, for which money has not been appropriated in previous years, are separately identified in their first year in the bill that is not for the ordinary annual services of the government.[9]
1.9 Despite these comments, and the Senate resolution of 22 June 2010, it appears that a reliance on existing broad ‘departmental outcomes’ to categorise appropriations, rather than individual assessments as to whether a particular appropriation relates to a new program or project, continues. The committee notes that over a number of years the Senate has routinely agreed to annual appropriation bills containing such broadly categorised appropriations, despite the potential that such expenditure may have been inappropriately classified as ‘ordinary annual services’.[10]
1.10 Based on the Senate resolution of 22 June 2010, it appears that at least part of the initial expenditure in relation to the following measures may have been inappropriately classified as ‘ordinary annual services’ and therefore improperly included in Appropriation Bill (No. 1):
• Endorsement of the Social Security Agreement between Australia and the Oriental Republic of Uruguay;[11]
• Agriculture and Land Sectors – low emissions future;[12]
• Regional cooperation initiative on carbon sequestration;[13] and
• Supporting Sports Participation.[14]
1.11 While it is not the committee’s role to consider the policy merit of these measures, the committee considers that they may have been inappropriately classified as ‘ordinary annual services’, thereby impacting upon the Senate’s ability to subject the measures to an appropriate level of parliamentary scrutiny. The committee considers that Appropriation Bill (No. 5) 2023-2024 (Appropriation Bill (No. 5)) likely raises similar concerns regarding measures inappropriately classified as ‘ordinary annual measures’.
1.12 The committee has, on a number of previous occasions, written to the Minister for Finance in relation to the inappropriate classification of items in appropriation bills.[15] However, the Government has consistently advised that it does not intend to reconsider its approach to the classification of items that constitute the ordinary annual services of the government.
1.13 The committee again notes that the Government’s approach to the classification of items that constitute ordinary annual services of the government is not consistent with the Senate resolution of 22 June 2010.
1.14 The committee notes that any inappropriate classification of items in appropriation bills undermines the Senate’s constitutional right to amend proposed laws appropriating revenue or moneys for expenditure on all matters not involving the ordinary annual services of the government. Such inappropriate classification of items impacts on the Senate’s ability to effectively scrutinise proposed appropriations as the Senate may be unable to distinguish between normal ongoing activities of government and new programs or projects. The committee considers that Appropriation Bill (No. 5) may raise similar issues regarding measures inappropriately classified as ‘ordinary annual measures’, and therefore repeats its scrutiny concerns in relation to that bill.
1.15 The committee draws this matter to the attention of senators as it appears that the initial expenditure in relation to certain items in the latest set of appropriation bills may have been inappropriately classified as ordinary annual services (and therefore improperly included in bills which should only contain appropriations that are not amendable by the Senate).
1.16 Clause 10 of Appropriation Bill (No. 1) enables the Finance Minister to allocate additional funds to entities when satisfied that there is an urgent need for expenditure and the existing appropriations are inadequate. The allocated amount is referred to as the Advance to the Finance Minister (AFM). The additional amounts are allocated by a determination made by the Finance Minister (an AFM determination). AFM determinations are legislative instruments, but they are not subject to disallowance.
1.17 Subclause 10(2) of Appropriation Bill No. 1 provides that when the Finance Minister makes such a determination the Appropriation Bill has effect as if it were amended to make provision for the additional expenditure. Subclause 10(3) caps the amounts that may be determined under the AFM provision in Appropriation Bill No. 1 at $400 million. Identical provisions appear in Appropriation Bill (No. 2) 2024-2025 (Appropriation Bill No. 2), with a separate $600 million cap in that bill.[17] The amount available under the AFM provisions in these bills together add up to $1 billion. The explanatory memoranda do not provide any justification as to why this amount is considered appropriate.
1.18 In relation to the exemption from disallowance, the explanatory memoranda to both bills explain that allowing these determinations to be disallowable ‘would frustrate the purpose of the provision, which is to provide additional appropriation for urgent expenditure’.[18] Nevertheless, the committee considers that, in allowing the Finance Minister to allocate additional funds to entities via non-disallowable delegated legislation, the AFM provisions in Appropriation Bills Nos 1 and 2 delegate significant legislative power to the Executive.
1.19 While this does not amount to a delegation of the power to create a new appropriation, the committee notes that one of the core functions of the Parliament is to authorise and scrutinise proposed appropriations. High Court jurisprudence has emphasised the central role of the Parliament in this regard. In particular, while the High Court has held that an appropriation must always be for a purpose identified by the Parliament, ‘[i]t is for the Parliament to identify the degree of specificity with which the purpose of an appropriation is identified’.[19] The AFM provisions leave the allocation of the purpose of certain appropriations in the hands of the Finance Minister, rather than the Parliament.
1.20 The committee’s significant scrutiny concerns in relation to these provisions are heightened given that AFM determinations are not subject to the usual parliamentary disallowance process. In this regard, the committee notes that the explanatory memorandum to Appropriation Bill (No. 1) suggests that exempting AFM determinations from disallowance:
...would reduce an entity’s appropriation to its original level. Yet the urgent expenditure it had already undertaken validly prior to disallowance, in reliance upon the determination, would count towards the newly reduced appropriation...
Accordingly, disallowance would leave the entity with a shortfall in the appropriation available to fund the ongoing expenditure for which the Government originally budgeted and which the Parliament approved when it passed the Appropriation Act.[20]
1.21 While noting this explanation, the committee is of the view that disallowance is the primary means by which the Parliament exercises control over the legislative power that it has delegated to the Executive. Exempting an instrument from disallowance therefore has significant implications for parliamentary scrutiny. In June 2021, the Senate acknowledged these implications and resolved that delegated legislation should be subject to disallowance unless there are exceptional circumstances, and any claim that circumstances justify such an exemption will be subject to rigorous scrutiny, with the expectation that the claim will only be justified in rare cases.[21]
1.22 The committee concurs with the view expressed by the Senate Standing Committee for the Scrutiny of Delegated Legislation in relation to the disallowance status of AFM determinations. In particular, the committee agrees that if the AFM is used for a genuine emergency situation, the likelihood of it subsequently being disallowed would be virtually non-existent, and therefore insufficient to justify an exemption from disallowance. Instead, the potential for disallowance would simply operate to ensure that the AFM is only utilised in genuinely urgent circumstances, as intended by the Parliament.[22]
1.23 Further, the committee considers alternative drafting approaches could be considered to manage the minimal risk of disallowance on the appropriation available for expenditure, for example by including a provision that ensures that expenditure already made under an AFM does not reduce the already approved appropriation if it is disallowed.
1.24 Finally, following previous correspondence between the committee and the minister during the COVID-19 pandemic which saw exceptionally high AFM caps introduced,[23] the committee welcomes the inclusion of additional information in the explanatory memoranda about transparency measures applying to AFMs.[24] The explanatory memorandum notes that:
The following strong accountability and transparency arrangements will continue to apply to AFM determinations made during 2024-25, including:
• registration of each AFM determination with an explanatory statement on the Federal Register of Legislation (legislation.gov.au);
• a media release by the Finance Minister in weeks when AFMs are issued;
• an annual assurance review by the Australian National Audit Office (ANAO); and
• an annual report on the AFM allocations tabled in the Parliament, inclusive of the ANAO’s assurance review report.[25]
1.25 The committee considers that the provision of this additional information provides the Parliament with important details to assist in scrutiny of the AFM provisions and welcomes its continued inclusion.
1.26 The committee requests the minister’s detailed advice as to:
• how the combined cap of $1 billion to the additional amounts that may be allocated by the Finance Minister (AFM) in Appropriation Bills (No.1) and (No. 2) 2024-2025 was determined;
• whether alternative approaches could be considered in striking the appropriate balance between the necessity of the Parliament authorising and scrutinising expenditure and addressing genuine emergency situations; and
• whether explanatory statements to AFMs could include a statement justifying the urgent need for expenditure that is not provided for, or is insufficiently provided for, by the relevant appropriation bills.
1.1 Clause 4 of both Appropriation Bill (No. 1) and Appropriation Bill (No. 2) provide that portfolio budget statements (PBS) are relevant documents for the purposes of section 15AB of the Acts Interpretation Act 1901. That is, clause 4 provides that the PBS may be considered in interpreting the provisions of each bill. Moreover, the explanatory memoranda to the bills state that they should be read in conjunction with the PBS.[27]
1.27 Noting the important role of the PBS in interpreting Appropriation Bills Nos 1 and 2, the committee has scrutiny concerns in relation to the inclusion of measures within the PBS that are marked as ‘not for publication’ (nfp), meaning that the proposed allocation of resources to those budget measures is not published within the PBS. Various reasons are provided for marking a measure as nfp, including that aspects of the relevant program are commercial-in-confidence or relate to matters of national security.
1.28 Given the importance of parliamentary scrutiny over the appropriation process, the committee considers that the default position should be to publish the full amount of funding allocated to each budget measure. However, where it is necessary and appropriate not to publish the total funding amount for a measure, the committee considers that an explanation should be included within the portfolio statements. The committee therefore has significant scrutiny concerns in relation to the inclusion of measures within the portfolio statements that are earmarked as nfp where there is either no, or only a very limited, explanation as to why it is appropriate to mark the measure as nfp.
1.29 In Scrutiny Digest 16 of 2021, the committee requested that future Department of Finance guides on preparing portfolio budget statements be updated to include guidance that, where a measure is marked as nfp, at least a high-level explanation should be included within the portfolio budget statements explaining why this is appropriate.[28] As a result, the Department of Finance updated the Guide to Preparing the Portfolio Budget Statements to reflect the committee’s scrutiny concerns.[29] The committee notes that the most recent Department of Finance Guide to Preparing the 2024-25 Portfolio Budget Statements also includes advice reflecting the committee’s scrutiny concerns.[30]
1.30 The committee notes that despite the inclusion of this advice it nevertheless has scrutiny concerns in relation to the lack of detailed explanation provided within the PBS. In Scrutiny Digest 3 of 2024, the committee requested the minister’s advice as to whether future guides could include guidance that, where a measure is marked as nfp, as much detail should be provided as is necessary to substantiate the decision to not publish the financial details for the measure due to the public interest.[31] The minister responded advising that they had asked the department to ‘consider, where possible, enhancing the guidance on information which may be provided...’. [32] The committee notes that this recent commitment has likely not yet been implemented, as the level of explanation provided within the PBS remains high-level. For example, the majority of explanations for measures marked as nfp within the 2024-25 portfolio statements merely state that the funding for a measure is not for publication due to commercial-in-confidence considerations, or due to national security reasons.
1.31 The committee notes that the high-level nature of these explanations makes it difficult to assess whether several of the measures categorised as nfp within the portfolio statements are appropriately categorised. More detailed explanations as to why it is appropriate to mark a budget measure as nfp would allow for a greater level of parliamentary scrutiny over these explanations. For example, it is unclear to the committee why it is appropriate not to publish total amounts in relation to the Australian Universities Accord – tertiary education system reforms[33] or the Capacity Investment Scheme.[34]
1.32 To this end, the committee notes that the mere existence of a commercial element in relation to a budget measure is likely insufficient, of itself, as a justification for not publishing any of the funding amount for that measure. The lack of detailed explanation makes it difficult for the Parliament and others to interrogate the rationale behind the classification of a measure as nfp. The committee considers that high-level explanations as to why a measure may be marked as nfp, beyond simply stating that commercial elements apply, could be included within the budget documents without compromising commercial sensitivities.
1.33 Finally, the committee notes that there has been a significant upwards trend in the number of nfp measures being included within Budget Paper No. 2. For example, Budget Paper No. 2 for the 2004-05 budget contained seven references to the term nfp, while Budget Paper No. 2 for the 2023-24 budget contained 240 nfp references. Budget Paper No. 2 for the 2024-25 budget contains 228 nfp references.
1.34 Parliament has a fundamental constitutional role to scrutinise and authorise the appropriation of public money. As outlined by the High Court, the appropriation process is intended to ‘give expression to the foundational principle of representative and responsible government that no money can be taken out of the consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorization from Parliament itself.’[35] Given the Parliament’s fundamental scrutiny role over the appropriation of money from the Consolidated Revenue Fund, the committee has scrutiny concerns in relation to the proliferation of measures within the PBS for which the proposed allocation of resources is not published. Any decision not to publish the total amount for a budget measure must be weighed against the significance of abrogating Parliament’s fundamental scrutiny role.
1.35 The committee considers that Appropriation Bills (No. 5) and (No. 6) 2023‑2024 may raise similar issues regarding the inclusion of measures within the portfolio additional estimate statements that are earmarked as ‘not for publication’ (nfp) and reiterates its scrutiny concerns in relation to these bills.
1.36 In light of the above, the committee reiterates its significant concerns that the Parliament is being asked to authorise appropriations without clear information about the amounts that are to be appropriated under each individual budget measure. The committee’s concerns in relation to measures marked as ‘not for publication’ (nfp) are heightened in light of the upwards trend in the number of measures marked as nfp.
1.37 The committee reiterates its view that, notwithstanding the welcome guidance in the Department of Finance’s Guide to Preparing the 2024-25 Portfolio Budget Statements, it would be appropriate to include more detailed explanations within the portfolio budget statements explaining why it is appropriate to mark a measure as nfp, where possible.
1.38 The committee will continue to consider this important matter in its scrutiny of future Appropriation bills.
1.39 Clause 16 of Appropriation Bill No. 2 deals with Parliament’s power under section 96 of the Constitution to provide financial assistance to the states. Section 96 states that ‘the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit’.
1.40 Clause 16 seeks to delegate this power to the relevant minister and, in particular, provides the minister with the power to determine:
• terms and conditions under which payments to the states, the Australian Capital Territory and the Northern Territory or a local government authority may be made;[37] and
• the amounts and timing of those payments.[38]
1.41 Subclause 16(4) provides that determinations made under subclause 16(2) are not legislative instruments. The explanatory memorandum states that this is:
...because these determinations are not altering the appropriations approved by Parliament. Determinations under subclause 16(2) are administrative in nature and will simply determine how appropriations for State, ACT, NT and local government items will be paid.[39]
1.42 The committee has commented in relation to the delegation of power in these standard provisions in previous even-numbered appropriation bills.[40]
1.43 The committee takes this opportunity to reiterate that the power to make grants to the states and to determine terms and conditions attaching to them is conferred on the Parliament by section 96 of the Constitution. While the Parliament has largely delegated this power to the Executive, the committee considers that it is appropriate that the exercise of this power be subject to effective parliamentary scrutiny, particularly noting the terms of section 96 and the role of senators in representing the people of their state or territory.
1.44 The committee notes that important progress has been made to improve the provision of information regarding section 96 grants to the states since the 2017-18 budget, following suggestions originally made by the committee in Alert Digest 7 of 2016.[41] These improvements include: the addition of an Appendix E to Budget Paper No. 3,[42] which provides details of the appropriation mechanism for all payments to the states and the terms and conditions applying to them; and a mandatory requirement for the inclusion of further information in portfolio budget statements where departments and agencies are seeking appropriations for payments to the states, territories and local governments.[43]
1.45 The committee considers that these measures improve the ability of the Parliament to scrutinise the Executive’s use of the delegated power to make grants to the states and to determine terms and conditions attaching to them under section 96 of the Constitution.
1.46 Nevertheless, the committee notes that while these measures improve transparency to some degree, the committee remains concerned about the broad discretion provided to ministers to determine terms and conditions for grants to the states. The committee also notes that the Parliament’s ability to scrutinise the terms and conditions of these grants varies depending on the appropriation mechanism used for the payments.
1.47 The committee leaves to the Senate as a whole the appropriateness of clause 16 of Appropriation Bill (No. 2) 2024-2025, which allows ministers to determine terms and conditions under which payments to the states, territories and local government may be made and the amounts and timing of those payments.
1.48 Clause 13 of Appropriation Bill (No. 2) 2024-2025 specifies debit limits for both general purpose financial assistance and national partnership payments.
1.49 The Federal Financial Relations Act 2009 sets up a standing appropriation through which the Commonwealth is able to provide financial assistance for the delivery of services to the states for general purpose financial assistance (funding to the states with no conditions on how they use the funding),[45] and national partnership payments (funding to support the delivery of specified outputs or projects, facilitate reforms, or to reward the states for nationally significant reforms).[46]
1.50 The minister may make a determination under sections 9 or 16 of the Federal Financial Relations Act 2009 to provide this financial assistance.[47] These ministerial determinations are legislative instruments which are not subject to disallowance.[48]
1.51 Further, the amounts payable under these determinations are subject to the debit limit prescribed in the Appropriation Acts. A debit limit must be set each financial year otherwise grants under these programs cannot be made.[49] The total amount of grants cannot exceed the relevant debit limit set each year.[50]
1.52 The explanatory memorandum explains the purpose of setting debit limits:
Specifying a debit limit in clause 13 is an effective mechanism to manage expenditure of public money as the official or Minister making a payment of public money cannot do so without this authority. The purpose of doing so is to provide Parliament with a transparent mechanism by which it may review the rate at which amounts are committed for expenditure.[51]
1.53 This bill proposes the following debit limits for 2024-25:
• general purpose financial assistance to the states—$5 billion;[52] and
• national partnership payments to the states—$37 billion.[53]
1.54 In Scrutiny Digest 13 of 2021, the committee welcomed the minister’s advice that additional information about the expected level of expenditure against debit limits can be included in the explanatory memoranda to future Appropriation Bills where appropriate.[54]
1.55 In relation to the $5 billion debit limit for general purpose financial assistance to the states, the explanatory memorandum does not state the expected expenditure however Budget Paper No. 3 states that it is expected the payments will be $711.4 million.[55] This means that over $4 billion in general purpose financial assistance can be made without the need to seek further parliamentary approval.
1.56 In relation to the $37 billion debit limit for national partnership payments, the committee notes that the explanatory memorandum states that it is expected that national partnership payments will be $26.7 billion in 2024-25, while the budget papers state that it is expected that national partnership payments will be $24 billion.[56] In either case, it appears that the debit limit proposed in this bill would allow approximately $10-13 billion in national partnership payments to be made without the need to seek further parliamentary approval.
1.57 The committee further notes that a $35 billion debit limit was initially introduced for national partnership payments in Appropriation Act (No. 4) 2021‑2022,[57] and the explanatory memorandum to that Act explained that this was increased on a one-off basis given the ongoing nature of the COVID-19 pandemic.[58] The explanatory memorandum to this bill does not acknowledge the ongoing large increase in the debit limit, in this case a higher limit than during the COVID-19 pandemic years, and instead it explains that:
Since 2014-15, the debit limit has generally been between $10,000 million and $15,000 million above the expected level of spending under section 16 of the FFR [Federal Financial Relations] Act. The debit limit provided in subclause 13(2) would mitigate the risk of reaching the limit in the event that unexpected circumstances arise. The limit is set to ensure the Government has appropriate provision in place to fund existing undertakings to the States, new programs that may be required between Appropriation Acts, and to respond to major unexpected events such as large-scale natural disasters.[59]
1.58 While the committee acknowledges this rationale, it considers that setting a debit limit substantially higher than expected expenditure may undermine the stated intention of the debit limit regime—that is, to provide Parliament with a ‘transparent mechanism by which it may review the rate at which amounts are committed for expenditure’.[60] Setting such high limits, alongside the power of the minister to authorise the funding of further grants by non-disallowable determination, means that significant new expenditures can be made without oversight by the Parliament and therefore greatly reduces transparency over expenditure of public money.
1.59 The committee considers it is appropriate for the debit limit to more closely match the expected level of expenditure and for new appropriation bills to be introduced for parliamentary consideration where the debit limit may be exceeded.
1.60 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of setting debit limits for these grant programs well above the expected level of expenditure, noting that this practice appears to undermine the effectiveness of the debit limit regime as a mechanism for ensuring meaningful parliamentary oversight of these grant programs.
[1] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Appropriation Bill (No. 1) 2024-2025; Appropriation Bill (No. 2) 2024-2025; Appropriation Bill (No. 5) 2023‑2024; Appropriation Bill (No. 6) 2023-2024, Scrutiny Digest 7 of 2024; [2024] AUSStaCSBSD 108.
[2] Various provisions of Appropriation Bill (No. 1) 2024-2025 and Appropriation Bill (No. 5) 2023‑2024. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(v).
[3] See Senate standing order 24(1)(a)(v).
[4] Now the Senate Standing Committee on Appropriations, Staffing and Security.
[5] Senate Standing Committee on Appropriations, Staffing and Security, 50th Report: Ordinary annual services of the government, 2010, p. 3; and annual reports of the committee from 2010-11 to 2014-15.
[6] Senate Standing Committee on Appropriations, Staffing and Security, 45th Report: Department of the Senate’s Budget Ordinary annual services of the government Parliamentary computer network, 2008, p. 2.
[7] Senate resolution 34. See Journals of the Senate, No. 127, 22 June 2010, pp. 3642–3643.
[8] Senate Standing Committee on Appropriations and Staffing, 45th Report: Department of the Senate’s Budget; Ordinary annual services of the government; Parliamentary computer network, 2008, p. 2.
[9] Senate Standing Committee on Appropriations and Staffing, 45th Report: Department of the Senate’s Budget; Ordinary annual services of the government; Parliamentary computer network, 2008, p. 2.
[10] See, for example, debate in the Senate in relation to amendments proposed by Senator Leyonhjelm to Appropriation Bill (No. 3) 2017-18, Senate Hansard, 19 March 2018, pp. 1487‑1490.
[11] Budget Measures 2024-25—Budget Paper No.2, p. 169.
[12] Budget Measures 2024-25—Budget Paper No.2, p. 42.
[13] Budget Measures 2024-25—Budget Paper No.2, pp. 59–60.
[14] Budget Measures 2024-25—Budget Paper No.2, pp. 131–132.
[15] Senate Standing Committee for the Scrutiny of Bills, Tenth Report of 2014, pp. 402–406; Fourth Report of 2015, pp. 267–271; Alert Digest No. 6 of 2015, pp. 6–9; Fourth Report of 2016, pp. 249–255; Alert Digest No. 7 of 2016, pp. 1–4; Scrutiny Digest 2 of 2017, pp. 1–5; Scrutiny Digest 6 of 2017, pp. 1–5; Scrutiny Digest 12 of 2017, pp. 89–95; Scrutiny Digest 2 of 2018, pp. 1–7, Scrutiny Digest 2 of 2019, pp. 1–4, Scrutiny Digest 3 of 2020, pp. 1–4, Scrutiny Digest 15 of 2020, pp. 10–13, Scrutiny Digest 8 of 2021, pp. 5–8, Scrutiny Digest 2 of 2022, pp. 12–15; Scrutiny Digest 7 of 2022, pp. 10-21; Scrutiny Digest 1 of 2023, pp. 78–80.
[16] Clause 10 of Appropriation Bill (No. 1) 2024-2025; clause 12 of Appropriation Bill (No. 2) 2024‑2025. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(iv) and (v).
[17] Clause 12 of Appropriation Bill (No. 2) 2024-2025.
[18] Explanatory memorandum, p. 10.
[19] Combet v Commonwealth (2005) 224 CLR 494, 577 [160]; Wilkie v Commonwealth [2017] HCA 40 (28 September 2017) [91].
[20] Explanatory memorandum, p. 10.
[21] Senate resolution 53B. See Journals of the Senate, No. 101, 16 June 2021, pp. 3581–3582.
[22] Senate Standing Committee for the Scrutiny of Delegated Legislation, Delegated Legislation Monitor 1 of 2022 (25 January 2022) pp. 4–6.
[23] See, for example, Appropriation Act (No. 1) 2020-2021, Appropriation Act (No. 2) 2020-2021, Appropriation Act (No. 1) 2021-2022, Appropriation Act (No. 2) 2021-2022, Appropriation (Coronavirus Response) Act (No. 1) 2021-2022, Appropriation (Coronavirus Response) Act (No. 2) 2021-2022, Appropriation Act (No. 1) 2022-2023 and Appropriation Act (No. 2) 2022‑2023 which set Advance to the Finance Minister caps at $4 billion, $6 billion, $2 billion, $3 billion, $2 billion, $3 billion, $2.4 billion and $3.6 billion respectively.
[24] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 8 of 2021 (16 June 2021) pp. 8–11 and Scrutiny Digest 13 of 2021 (25 August 2021) pp. 20-21.
[25] Explanatory memorandum to Appropriation Bill (No. 1) 2024-2025, p. 9.
[26] Clauses 4 and 6 and Schedule 1 to Appropriation Bill (No. 1) 2024-2025; clauses 4 and 6 and Schedule 2 to Appropriation Bill (No. 2) 2024-2025. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(v).
[27] Explanatory memorandum to Appropriation Bill (No. 1) 2024-2025, p. 2; explanatory memorandum to Appropriation Bill (No. 2) 2024-2025, p. 2.
[28] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021 (21 October 2021) pp. 47–51.
[29] See comments on Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 2 of 2022 (18 March 2022) pp. 19–21.
[30] Department of Finance, Guide to preparing the 2024-25 Portfolio Budget Statements, pp. 35‑36.
[31] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2024 (28 February 2024) pp. 16–17.
[32] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2024 (20 March 2024) p. 20.
[33] Attorney-General’s Department, Portfolio Budget Statements 2024-25, pp. 15 and 317.
[34] Department of Climate Change, Energy, the Environment and Water, Portfolio Budget Statements 2024-5, p. 39.
[35] Wilkie v Commonwealth [2017] HCA 40; (2017) 263 CLR 487, 523 [61].
[36] Clause 16 and Schedules 1 and 2 to Appropriation Bill (No. 2) 2024-2025. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(iv) and (v).
[37] Paragraph 16(2)(a) of Appropriation Bill (No. 2) Bill 2024-2025.
[38] Paragraph 16(2)(b) of Appropriation Bill (No. 2) Bill 2024-2025.
[39] Explanatory memorandum to Appropriation Bill (No. 2) 2024-2025, p. 13.
[40] Senate Standing Committee for the Scrutiny of Bills, Seventh Report of 2015, pp. 511–516; Ninth Report of 2015, pp. 611–614; Fifth Report of 2016, pp. 352–357; Eighth Report of 2016, pp. 457–460; Scrutiny Digest 3 of 2017, pp. 51–54; Scrutiny Digest 6 of 2017, pp. 7–10; Scrutiny Digest 12 of 2017, pp. 99–104; Scrutiny Digest 2 of 2018, pp. 8–11; Scrutiny Digest 6 of 2018, pp. 9–12; Scrutiny Digest 4 of 2019, pp. 9–12; Scrutiny Digest 15 of 2020, pp. 16–17, Scrutiny Digest 8 of 2021, pp. 13–14; Scrutiny Digest 2 of 2022, pp. 21–22, Scrutiny Digest 7 of 2022, pp. 20–21; Scrutiny Digest 6 of 2023, pp. 11–12.
[41] See Senate Standing Committee for the Scrutiny of Bills, Alert Digest 7 of 2016, pp. 7–10; and Eighth Report of 2016, pp. 457–460.
[42] Budget Measures 2024-25—Budget Paper No.3, Appendix E.
[43] See Department of Finance, Guide to Preparing the 2024-25 Portfolio Budget Statements, pp. 26-27.
[44] Clause 13 of Appropriation Bill (No. 2) 2024-2025. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).
[45] Federal Financial Relations Act 2009, section 9.
[46] Federal Financial Relations Act 2009, section 16.
[47] If the minister determines an amount under subsections 9(1) and 16(1) of the Federal Financial Relations Act 2009, the amount must be credited to the Council of Australian Governments (COAG) Reform Fund. The COAG Reform Fund is automatically debited via the special appropriation mechanism in section 80 of the Public Governance, Performance and Accountability Act 2013.
[48] Federal Financial Relations Act 2009, subsections 9(4) and 16(4).
[49] Federal Financial Relations Act 2009, subsections 9(5) and 16(5).
[50] Federal Financial Relations Act 2009, subsections 9(3) and 16(3).
[51] Explanatory memorandum to Appropriation Bill (No. 2) 2024-25, p. 11.
[52] Subclause 13(1) of Appropriation Bill (No. 2) 2024-2025.
[53] Subclause 13(2) of Appropriation Bill (No. 2) 2024-2025.
[54] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2021 (25 August 2021) p. 24.
[55] Federal Financial Relations: Budget Paper No. 3 2024-25, p. 121.
[56] Explanatory memorandum to Appropriation Bill (No. 2) 2024-2025, p. 11; Federal Financial Relations: Budget Paper No. 3 2024-25, p. 15.
[57] Subsection 13(1) of Appropriation Act (No. 4) 2021-2022.
[58] Explanatory memorandum to Appropriation Act (No. 4) 2021-2022, p. 12.
[59] Explanatory memorandum to Appropriation Bill (No. 2) 2024-2025, pp. 11–12.
[60] Explanatory memorandum to Appropriation Bill (No. 2) 2024-2025, p. 11.
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