Financial Framework (Supplementary Powers) Amendment (Defence Measures No 2) Regulations 2017 [F2017L00820]-Advice only [2017] AUSStaCSDLM 289 (16 August 2017)

---

Instrument	Financial Framework (Supplementary Powers) Amendment (Defence Measures No. 2) Regulations 2017 [F2017L00820]
Purpose	Amends Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997 to establish legislative authority for spending activities administered by the Department of Defence
Authorising legislation	Financial Framework (Supplementary Powers) Act 1997
Department	Finance
Disallowance	15 sitting days after tabling (tabled Senate 8 August 2017) Notice of motion to disallow currently must be given by 16 October 2017
Scrutiny principle	Standing Order 23(3)(d)

Parliamentary scrutiny – ordinary annual services of the government

Scrutiny principle 23(3)(d) of the committee's terms of reference requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via principal rather than delegated legislation).

Under the provisions of the Financial Framework (Supplementary Powers) Act 1997 (FF(SP) Act), executive spending may be authorised by specifying schemes in regulations made under that Act. The money which funds these schemes is specified in an appropriation bill, but the details of the scheme may depend on the content of the relevant regulations. Once the details of the scheme are outlined in the regulations, questions may arise as to whether the funds allocated in the appropriation bill were inappropriately classified as ordinary annual services of the government.

Ordinary annual services should not include spending on new proposals because the Senate's constitutional right to amend proposed laws appropriating revenue or moneys for expenditure extends to all matters not involving the ordinary annual services of the government.^[1] In accordance with the committee's scrutiny principle 23(3)(d), the committee's scrutiny of regulations made under the FF(SP) Act therefore includes an assessment of whether measures may have been included in the appropriation bills as an 'ordinary annual service of the government', despite being spending on new policies.^[2]

The above regulation seeks to establish legislative authority for Commonwealth government spending on a grant to the Australian International Military Games Limited to plan, oversee, deliver and promote the 2018 Invictus Games in Sydney.

The ES states that funding of up to $7 million will be made available over two years commencing in 2016-17. However, the ES also states:

Funding for this item will come from Program 2.4: Vice Chief of the Defence Force, which is part of Outcome 2. Details will be set out in the Portfolio Additional Estimates Statements 2017-18, Defence Portfolio.

It appears that the above grant is a new policy not previously authorised by special legislation. It is unclear to the committee whether the grant was funded in 2016‑17 from already appropriated resources, or if funding for the grant was provided in an appropriation bill.

Therefore, the committee is unable to determine if the appropriation in relation to this grant may have been inappropriately classified as 'ordinary annual services' and thereby improperly included in an appropriation bill which is not subject to amendment by the Senate.

The committee draws the above to the attention of the minister, the Senate and the relevant Senate committees.

---

^[1] In order to comply with the terms of a 2010 Senate resolution relating to the classification of appropriations for expenditure, new policies for which no money has been appropriated in previous years should be included in an appropriation bill that is not for the ordinary annual services of the government (and which is therefore subject to amendment by the Senate).

The complete resolution is contained in Journals of the Senate, No. 127—22 June 2010,

pp 3642-3643. See also Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 2 of 2017, pp 1-5.

^[2] See Delegated legislation monitor 5 of 2014, pp 16-18 for a more detailed account of the committee's approach to regulations made under the FF(SP) Act.