Financial Management and Accountability Amendment (2013 Measures No 1) Regulation 2013 SLI 2013 No 281 [F2013L02089]-Concluded matters [2014] AUSStaCSDLM 67 (26 March 2014)

• Financial Management and Accountability Amendment (2013 Measures No. 1) Regulation 2013 SLI 2013 No. 281 [F2013L02089]

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Financial Management and Accountability Amendment (2013 Measures No. 1) Regulation 2013 SLI 2013 No. 281 [F2013L02089]

Purpose	Amends the Financial Management and Accountability Regulations 1997 to add the Australian Aged Care Quality Agency as a prescribed agency in Schedule 1, inserts a new Schedule 1AB to establish legislative authority for new or significantly changed spending activities for the purposes of section 32B, and establishes legislative authority for certain spending activities in the departments of Agriculture, Communications and Prime Minister and Cabinet
Last day to disallow	15 May 2014
Authorising legislation	Financial Management and Accountability Act 1997
Department	Finance

Issue:

Addition of new schedule and programs to Financial Management and Accountability Regulations 1997

Section 32B of the Financial Management and Accountability Act 1997 (FMA Act) provides legislative authority for the government to spend monies on programs specified in the FMA regulations. Section 32B was introduced in response to the decision of the High Court in Williams v Commonwealth ([2012] HCA 23) in June 2012. Previously, such programs were listed under Schedule 1AA. This instrument creates a new Schedule 1AB, under which programs will henceforth be listed. Unlike Schedule 1AA, the new schedule does not list programs under departmental headings, and this change is designed to avoid future confusion following machinery of government changes (a change in the name or responsibility of an administering department does not otherwise affect the specification of a program in Schedule 1AA).

The instrument also adds six new programs to Schedule 1AB. While the ES is generally helpful in providing information about the background, objectives and proposed administration of the new programs, only limited or no information is provided as to whether the individual programs possess the relevant characteristics that would justify the exclusion of decisions under each program from merits review.

The committee notes previous correspondence with the minister regarding this issue, and acknowledges the minister's advice that certain types of programs and decisions are unsuitable for merits review; and that decisions under programs listed in Schedule 1AA (now Schedule 1AB) are excluded from ADJR Act review. However, in order to assess whether a program listed in Schedule 1AB possesses the characteristics justifying the exclusion of the ADJR Act, the committee's expectation is that ESs specifically address this question in relation to each new and/or amended program added to Schedule 1AA (now Schedule 1AB), including a description of the policy considerations and program characteristics that are relevant to the question of whether or not decisions should be subject to merits review [the committee requested further information from the minister in respect of each listed program (where not already provided].

Further, the committee notes the concerns of the Senate Standing Committee for the Scrutiny of Bills regarding the limited justification for excluding such decisions from the Administrative Decisions (Judicial Review) Act 1997 (ADJR), and questions as to whether the exclusion of ADJR would be appropriate in relation to all decisions pursuant to programs authorised by Schedule 1AA (now Schedule 1AB) [the committee drew to the attention of senators the comments of that committee on the Financial Framework Legislation Amendment Bill (No. 3) 2012 in the Scrutiny of Bills Eleventh Report of 2012 (19 September 2012)].

MINISTER'S RESPONSE:

The Minister for Finance's response provided an attachment addressing in detail the relevant policy considerations and characteristics of programs added to Schedule 1AB. This information included an appropriate level of detail to enable the committee to assess the instruments for compatibility with the committee's scrutiny principles, and particularly scrutiny principle (c) (that rights and liberties are not unduly dependent on administrative decisions not subject to merits review).

The minister further advised that statements of compatibility for future instruments amending Schedule 1AB would include information about the availability of merits review.

COMMITTEE RESPONSE:

The committee thanks the minister for his response and has concluded its interest in the matter.