This Determination, titled Federal Financial Relations (National Partnership payments) Determination No. 110 (August 2016), is a legislative instrument made by the Treasurer under section 16 of the Federal Financial Relations Act 2009 (the Act). It takes effect on the day it is made (para 2) and authorises specific Commonwealth cash payments to the States, to be credited first to the COAG Reform Fund and then paid to the States on a scheduled payment date (paras 6, 13). The Determination identifies its core purposes as funding arrangements that do one or more of the following for States: support delivery of specified outputs or projects; facilitate reforms; or reward nationally significant reforms (para 5).

Mechanically, the Determination does these things:

• records that it is made under s 16 of the Act and that the Minister (Treasurer) has determined amounts for National Partnership payments in accordance with subsection 16(1) (para 12);
• instructs that the amounts specified in Table 1 are to be paid to the States listed in that table and that those amounts be credited to the COAG Reform Fund before payment on the scheduled date (paras 12, 13);
• incorporates Schedule 1 as the place where further details on the payments are set out (para 14);
• states the statutory debit limit for the COAG Reform Fund relevant to National Partnership payments in the 2016-17 financial year (para 15), and confirms that the cumulative amounts determined to date in 2016-17, as shown in Table 2, do not exceed that debit limit (paras 16-17);
• sets out administrative terms about how payments tied to milestones or performance benchmarks will be determined by a Commonwealth Minister or delegate, including the use of independent assessments for incentive (reward) payments and reliance on expenditure and performance reporting arranged in the relevant National Partnership for facilitation or project payments (para 10);
• records that the Determination is a legislative instrument but that section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to it (para 4, which records subsection 16(5) of the Act).

The Determination is primarily an authorising and administrative instrument. It does not itself create legal duties on private parties, nor does it specify criminal penalties or enforcement sanctions. It sets out who decides (the relevant Commonwealth Minister or delegate) for determinations about payment, how payments are to be channelled (via the COAG Reform Fund, a special account under the COAG Reform Fund Act 2008 and the Public Governance, Performance and Accountability Act 2013, see para 6), and the procedural requirements for payments contingent on milestones or performance benchmarks (para 10). The specific dollar amounts and per-State allocations are presented in Table 1 and Schedule 1, which form part of the instrument (paras 12, 14). In the copy provided here those tables are embedded as images; the Determination itself contains those payment figures.

This instrument therefore functions as a point-in-time allocation and approval for National Partnership payments for 8 August 2016, within the statutory framework set by the Act and related legislation, while specifying the payment sequencing, the roles of the Minister or delegate, and the requirement that payments be governed by written agreements between the Commonwealth and the States (para 7).

The Determination is built around a small set of legal and administrative concepts that structure Commonwealth-to-State payments under the Federal Financial Relations framework. Those concepts are stated in the Determination and derive from cross-reference to other statutes and the Intergovernmental Agreement on Federal Financial Relations.

Key defined and invoked concepts:

• National Partnership payments: the category of payments to which the Determination relates. The Determination expressly establishes that amounts specified in Table 1 are National Partnership payments and are made to support specified outputs or projects, facilitate reforms, or reward nationally significant reforms (para 12). The Intergovernmental Agreement, referenced at para 8 (Schedule D , Payment Arrangements), is the background agreement that defines the use of National Partnership payments across jurisdictions.

• COAG Reform Fund: the account into which amounts determined under s 16 of the Act must be credited before payment (para 6). The Determination references the COAG Reform Fund as established by section 5 of the COAG Reform Fund Act 2008 and notes that the Fund is a Special Account for the purposes of the Public Governance, Performance and Accountability Act 2013 (para 6). The Determination requires that the amounts be credited to that Fund prior to being paid to States (para 13).

• Written agreement between Commonwealth and State: required by subsection 7(2) of the COAG Reform Fund Act 2008 for terms and conditions on which financial assistance is granted through the COAG Reform Fund (para 7). The Determination therefore presupposes that payments will be governed by formal agreements (National Partnerships) that set out payment profiles and reporting arrangements (para 9).

• Payment profile and scheduling: National Partnerships will set out a payment profile for each State (para 9). Where no performance benchmark is required before payment, payments will be scheduled according to that profile (para 11). Where performance benchmarks are required, payment is contingent upon determinations described below (para 10).

• Ministerial or delegate determination: the relevant Commonwealth Minister or delegate makes the decision to pay in two contexts: (a) for reward payments, after receiving an independent assessment as to whether a performance benchmark has been achieved (para 10(a)); and (b) for facilitation or project payments, on the basis of expenditure and performance reporting set out in the National Partnership (para 10(b)). This concept is central to the Determination’s enforcement mechanism.

The Determination creates effects across several institutional actors, and indirectly affects public finances and policy incentives. The primary actors and affected parties, as described in the instrument, are:

• Commonwealth (Treasurer and relevant Commonwealth Minister or delegate): The Commonwealth is the payer. The Treasurer, as maker of this Determination, exercises delegated authority under s 16 of the Act to determine amounts to be credited to the COAG Reform Fund (introductory material; para 12). The relevant Commonwealth Minister or delegate has decision authority to determine whether contingent payments become payable, either after an independent assessment (reward payments) or based on expenditure and performance reporting (facilitation/project payments) set out in the National Partnership (para 10).

• States (including the Australian Capital Territory and the Northern Territory): The payments are grants of financial assistance to States (para 5). The Determination specifies that the amounts in Table 1 are to be paid to the States listed in that table (para 12). States are required to enter written agreements with the Commonwealth for the terms and conditions of funding through the COAG Reform Fund, per subsection 7(2) of the COAG Reform Fund Act 2008 and para 7 of the Determination.

• Independent assessors and reporting entities: The Determination anticipates the role of independent assessment for reward payments (para 10(a)) and expenditure and performance reporting arrangements for facilitation and project payments (para 10(b) and para 7). The Determination does not specify who appoints or pays independent assessors, but creates a role for independent assessments as a pre-condition to certain payments.

• Commonwealth financial management entities: The COAG Reform Fund, as a Special Account established by the COAG Reform Fund Act 2008 and captured within the Public Governance, Performance and Accountability Act 2013 framework, is the account into which determined amounts must be credited prior to payment (para 6). Agencies responsible for crediting and debiting that Fund, and for ensuring compliance with the debit limit, are operationally affected.

• Parliament: the Determination is a legislative instrument but explicitly notes that section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to it (para 4). That means the ordinary disallowance path for Parliament under s 42 is not available for this instrument, which affects parliamentary oversight mechanisms.

The Determination allocates specific procedural duties and confers decision-making rights within the Commonwealth-State payment architecture. Those duties and rights are administrative and contractual rather than criminal or regulatory.

Duties imposed or recognised by the Determination

• Duty to credit amounts to the COAG Reform Fund: Subsection 16(2) of the Act requires amounts determined under subsection 16(1) to be credited to the COAG Reform Fund. The Determination reiterates this requirement and instructs that amounts specified in Table 1 be credited to the COAG Reform Fund before being paid to the States on the scheduled date (paras 6, 13). The operational duty rests with Commonwealth officials responsible for financial management.

• Duty to enter written agreements: The Determination records subsection 7(2) of the COAG Reform Fund Act 2008, which requires that the terms and conditions on which financial assistance is granted through the COAG Reform Fund be set out in a written agreement between the Commonwealth and the State (para 7). Thus, States and the Commonwealth have a duty to create and comply with a written National Partnership agreement specifying terms and payment profiles.

• Duty to observe payment profiles and reporting arrangements in National Partnerships: The Determination states that National Partnerships will clearly set out payment profiles in respect of each State (para 9), and that for facilitation and project payments, the ministerial determination will be based on expenditure and performance reporting arrangements set out in the National Partnership (para 10(b)). This places a practical duty on States to produce the specified reports and on Commonwealth officials to use those reports as the basis for payment decisions.

• Duty to respect the debit limit: The Determination cites subsection 16(3) of the Act establishing a debit limit for National Partnership payments in 2016-17 and provides Table 2 showing cumulative amounts to date, confirming the total does not exceed the debit limit (paras 15-17). Commonwealth financial managers therefore have a duty to ensure aggregate crediting to the COAG Reform Fund under this head does not breach the statutory cap.

• Duty to ensure payments contingent on performance are supported by independent assessment or reporting: For reward payments that require achievement of a pre‑determined performance benchmark, the relevant Commonwealth Minister or delegate will make a determination about payment following receipt of an independent assessment (para 10(a)). For facilitation/project payments, the decision will be based on expenditure and performance reporting as set out in the National Partnership (para 10(b)). These are duties of evidence and process.

The Determination itself does not create criminal offences or specify fines. Its enforcement mechanisms are administrative and contractual, embedded in financial management and agreement terms. The instrument relies on existing statutory frameworks and procedural checks rather than creating new penal provisions.

Administrative enforcement mechanisms and practical levers set out in the Determination

• Conditionality through independent assessment and reporting: The Determination requires an independent assessment to be received before the Minister or delegate determines that an incentive (reward) payment is payable, where such a pre‑determined performance benchmark is required (para 10(a)). For facilitation or project payments, the Minister or delegate will make a determination based on expenditure and performance reporting arrangements set out in the relevant National Partnership (para 10(b)). These mechanisms enforce compliance by conditioning payment on evidence of performance or appropriate expenditure.

• Contractual enforcement via written agreements: Subsection 7(2) of the COAG Reform Fund Act 2008, cited in para 7, requires the terms and conditions for financial assistance through the COAG Reform Fund to be set out in a written agreement between the Commonwealth and the State. Once in place, those agreements create contractual obligations and associated remedies, such as suspension, recovery or clawback provisions, though the Determination does not itself specify those remedies.

• Financial control through account rules and debit limits: The Determination enforces limits via the COAG Reform Fund account rules and the statutory debit limit for the 2016-17 financial year, specified as $10,416,666,667 (para 15). Compliance with the debit limit is evidenced by Table 2 showing cumulative determinations to date do not exceed the cap (paras 16-17). The Commonwealth’s financial management framework, including the PGPA Act insofar as the COAG Reform Fund is a Special Account (para 6), provides administrative enforcement: funds cannot be paid without being credited and cannot exceed statutory caps.

• Ministerial or delegate determination as gatekeeping practice: The Determination vests authority in the Minister or delegate to determine whether conditional payments are payable. That represents an enforcement control point. The Determination expects decision-makers to observe independent assessments or the reporting arrangements in the National Partnership before authorising payment (para 10).

The Determination is integrally linked to several statutes and an intergovernmental agreement referenced in the instrument. Those interactions supply the legal infrastructure that governs the creation, management and oversight of the payments.

Primary statutory and intergovernmental connections recorded in the Determination

• Federal Financial Relations Act 2009 (the Act): The Determination is made under section 16 of the Act. It repeatedly cites the Act as the source authority for making National Partnership payment determinations (introductory text; para 12). The Determination relies on subsection 16(1) for the Commonwealth’s power to determine amounts, on subsection 16(2) for the requirement to credit determined amounts to the COAG Reform Fund (para 6), on subsection 16(3) for the debit limit cap applicable to the 2016-17 financial year (para 15), and on subsection 16(5) for the legislative instrument status of the Determination and the exemption from disallowance (para 4).

• COAG Reform Fund Act 2008: The Determination references the COAG Reform Fund as established by s 5 of the COAG Reform Fund Act 2008 and records that the Fund is a Special Account for purposes of the PGPA Act (para 6). It also references subsection 7(2) of the COAG Reform Fund Act 2008, which requires the terms and conditions on which financial assistance is granted through the Fund to be set out in a written agreement between the Commonwealth and the State (para 7). Thus the Determination relies on that Act to frame account mechanics and agreement requirements.

• Public Governance, Performance and Accountability Act 2013 (PGPA Act): The Determination notes that the COAG Reform Fund is a Special Account for the purposes of the PGPA Act (para 6). That places administration and reporting of the Fund within the PGPA Act’s financial management framework, including obligations on officials, audit, and accountability structures.

• Legislative Instruments Act 2003: The Determination is a legislative instrument by virtue of subsection 16(5) of the Act, but records that section 42 of the Legislative Instruments Act 2003 (the disallowance regime) does not apply to this Determination (para 4). That interaction defines the scope of parliamentary scrutiny and the available statutory avenues for disallowance.

• Intergovernmental Agreement on Federal Financial Relations (IGA): The Determination invokes the Intergovernmental Agreement, which took effect on 1 January 2009, and in particular Schedule D , Payment Arrangements, as the framework in which National Partnership payments are made to States to support delivery of specified outputs or projects, to facilitate reforms or to reward reforms (para 8). The Determination therefore depends on the IGA to set out the practical arrangements and conceptual purpose of National Partnership payments, while leaving the substantive terms to the National Partnership agreements themselves.

The Determination text provided shows the instrument as made by the Treasurer, Scott John Morrison, dated 3 August 2016, and commencing on the day it was made (paras 1-2 and signature block). The document as given contains no textual record of subsequent amendments, nor any chronology of prior instruments in the text provided.

Specific points from the instrument about timing and continuity

• Date and commencement: The determination is dated 3 August 2016 and the instrument states it commences on the day it is made (para 2 and signature block). That fixes the operation date.

• Repetition and duplication: The version supplied repeats material verbatim in several places (the heading, Part 1 preliminary sections, Part 2 Purpose, Part 3, and Schedule 1). The repetition appears to be a duplication in the supplied rendering rather than the Determination changing over time.

• No internal amendment clauses: The instrument as provided does not include an amendment clause within its text (for example, no provision that would give effect to future amendments or list previous amendments). It simply makes the determination in respect of specified amounts for a particular payment date (8 August 2016) and includes relevant schedule material.

• No history section: The Determination does not contain a dedicated amendment history or revision table in the text provided. Where Acts or instruments are updated, the official reprint or Federal Register of Legislation entry would normally show amendments. Nothing of that nature is included in the material given here.

Practical implication for users

• To establish whether the Determination has been amended since 3 August 2016, or whether there are successor determinations, users should consult the official legislative record such as the Federal Register of Legislation or the Commonwealth’s consolidated instrument listings. This Determination as presented provides only the original text and schedule as at the stated date.

• The existence of a debit limit tied to the 2016‑17 financial year (para 15) is time-limited by reference to that financial year, and similar determinations for later years would need to reflect updated debit limits or separate determinations under s 16 of the Act.

• The Determination relies on statutory machinery located in other Acts (COAG Reform Fund Act, PGPA Act, Federal Financial Relations Act). Any amendments to those parent Acts will affect the legal operation of this kind of Determination going forward, even if this Determination itself is not altered.

The Determination text provided contains no references to litigation, court decisions, or judicial review proceedings. It does not cite any cases, nor does it record any adjudicative history concerning the instrument. Specific points to note:

• No judicial decisions referenced: The instrument does not mention any litigation or case law relating to the validity, interpretation, or application of the Determination.

• No dispute-resolution clauses shown: The Determination relies on the COAG Reform Fund Act’s requirement for written agreements between the Commonwealth and States (para 7), and National Partnerships set the reporting and payment profiles (paras 9-11). Any disputes about the application of payment terms, misreporting, or compliance would be resolved through the contractual and administrative mechanisms in those National Partnership agreements and through general administrative law, but the Determination does not itself specify dispute-resolution or litigation pathways.

• Administrative review: Because the instrument records that section 42 disallowance does not apply (para 4), parliamentary disallowance is not a route for contesting the instrument. Affected parties (e.g. States disputing a determination about whether a payment is due) would generally have recourse to contractual remedies under the written agreement and to administrative law remedies, including merits review or judicial review, depending on the nature of the decision and whether it constitutes a reviewable decision under relevant statutes. The Determination itself does not address these matters.

Practical guidance for researchers and litigators

• If litigation or administrative review is contemplated concerning actions taken under this Determination (for example a ministerial determination declining a performance-tied payment), counsel should locate the relevant National Partnership agreement to identify express contractual remedies and any dispute-resolution processes. The Determination indicates that payment decisions for reward payments follow independent assessments and for facilitation/project payments follow reporting arrangements in the National Partnership (para 10). Those documents will be central to any challenge.

• For judicial review of ministerial or delegate determinations, the usual principles of administrative law apply. The Determination’s grant of decision-making power to the Minister or delegate (para 10) does not immunise such decisions from judicial review where they are reviewable as administrative decisions under the Administrative Decisions (Judicial Review) Act 1977 or at common law, subject to legal tests about reviewability.

This Determination contains several practical features and omissions that can lead to operational surprises if overlooked. The following points identify traps, frictions, and specific risks for Commonwealth administrators, State officials, auditors and counsel. Every statement below is grounded in the Determination’s text.

1. Disallowance exemption is explicit and limits parliamentary oversight (para 4). The instrument records that subsection 16(5) makes it a legislative instrument but that section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply. Practitioners who assume normal disallowance scrutiny is available will be mistaken.

2. Funds must be credited to the COAG Reform Fund before payment (paras 6, 13). The Determination requires crediting amounts to the COAG Reform Fund prior to payment to States. Administrative teams must ensure the sequence of account entries and cash management operations reflect this requirement to avoid technical breaches of the authorising conditions.

3. Debit limit is an aggregate cap for the financial year (para 15). The Determination points to a statutory cap of $10,416,666,667 for National Partnership credits to the COAG Reform Fund in 2016‑17. Table 2 is presented to show cumulative amounts do not exceed that cap (paras 16-17). Failure to track cumulative determinations across the financial year can result in exceeding the statutory cap. The Determination itself depends on an accurate roll-up of all s 16 determinations in the year.

4. Payment amounts are embedded as tables/images in the instrument (paras 12-14, Schedule 1). In the copy supplied here the specific allocations (Table 1, Table 2, and Schedule 1) appear as images. Practical practitioners should obtain the authoritative electronic or printed version of the Determination to extract numerical amounts and per‑State allocations. Reliance on a truncated or OCRed version risks missing key numeric data.

5. Ministerial discretion with limited procedural detail for independent assessments (para 10(a)). The Determination conditions reward payments on receipt of an independent assessment but does not state who appoints, who pays, what standards apply, or how independence is demonstrated. This leaves open procedural and procurement questions for the Commonwealth and State when arranging the assessment.

6. National Partnership agreements are the locus of substantive terms (paras 7-11). The Determination repeatedly defers to National Partnerships for payment profiles and reporting arrangements. It therefore provides little substantive detail on performance measures, benchmarks, reporting formats, auditor arrangements, or remedies. Users must consult the National Partnership agreement(s) referenced for the operational rules.

This section provides a practical roadmap, grounded in the Determination, for the two main classes of actors likely to need to comply: Commonwealth officials administering National Partnership payments, and State governments as recipients. Each compliance step is mapped to the relevant paragraph(s) in the Determination.

For Commonwealth administrators and the Treasurer’s office

1. Verify statutory authority and instrument date. Confirm that the Determination was made under s 16 of the Federal Financial Relations Act 2009 and note its commencement date (para 12; para 2). Ensure you are working from the authoritative instrument and not a duplicated or partial copy.

2. Credit amounts to the COAG Reform Fund before making payments. Subsection 16(2) of the Act requires determined amounts to be credited to the COAG Reform Fund. The Determination stresses crediting before payment (paras 6, 13). Operational action: coordinate with the Department of Finance and Treasury to effect the credit entries into the COAG Reform Fund on or before the scheduled payment date.

3. Confirm the debit limit position. The Determination references the statutory debit limit for 2016-17 ($10,416,666,667) (para 15) and lists cumulative determinations in Table 2 (paras 16-17). Operational action: reconcile the total of all s 16 determinations for the financial year to ensure aggregate credits will not exceed the debit limit. If near the cap, escalate for policy decisions or reallocation.

4. Ensure written National Partnership agreements are in place and contain the terms and conditions. The COAG Reform Fund Act requires terms and conditions to be set out in a written agreement (para 7). Operational action: verify the existence and current terms of the National Partnership agreements referenced in Schedule 1. Ensure the agreement sets clear payment profiles, reporting requirements and remedies.

5. Prepare for independent assessments and reporting verification. For reward payments, the Minister or delegate will rely on an independent assessment (para 10(a)). For facilitation/project payments, the Minister or delegate will base decisions on expenditure and performance reporting set out in the National Partnership (para 10(b)). Operational action: set procurement and engagement processes for independent assessors, define standards and independence criteria, and implement review protocols for reported information.

6. Record ministerial determinations. Where payments are contingent on benchmark achievement, document the Minister or delegate’s determinations and the evidence relied upon (para 10). This documentation is essential for audit and potential review.