Financial Management Regulation 2005

The central concept is the "territory authority" as defined in the Financial Management Act 1996. This regulation does not redefine the term; it relies on the parent Act's definition. The regulation then performs a designation function under two specific empowering provisions: s 105 of the FMA (for div 9.6) and s 120 (for div 9.7). These sections likely allow the Executive to prescribe, by regulation, which territory authorities are subject to those divisions. The concepts of division 9.6 and division 9.7 are not described in the regulation itself; they must be found in the parent Act. However, from the naming of the regulation and the context, div 9.6 probably deals with particular financial management requirements (such as budgeting, reporting, or investment powers) and div 9.7 likely deals with another set of requirements (possibly relating to banking, borrowing, or guarantees). The fact that the lists differ - div 9.6 applies to seven authorities, div 9.7 to eight (including the CTP regulator, which is not listed for div 9.6) - indicates that the two divisions impose different obligations. The CTP regulator's inclusion only under div 9.7 suggests that division addresses matters relevant to a regulatory body that collects premiums and manages a fund, whereas div 9.6 may be more suited to commercial or land-development bodies. Another important concept is the "modification" of the Act. The original s 3 and schedule 1 allowed this regulation to modify part 19 of the FMA (transitional provisions). That modification was time-limited and expired in 2007. Hence, the concept of a temporary override of the parent Act was once part of this regulation but is now spent. The amendment history shows that the regulation has been amended to add, remove, or substitute territory authorities over time. For example, the Exhibition Park Corporation was repealed in 2014, so references to it in s 4 and s 5 were removed. The Land Development Agency was substituted for the former ACT Land Development Authority. The CTP regulator was added to s 5 in 2020. These changes reflect the evolving structure of ACT government entities. The regulation also illustrates a key concept in delegated legislation: enabling provisions (ss 105 and 120) grant the executive power to define the scope of legislative provisions by regulation. This allows flexibility to update the list without amending the principal Act. The republication history (six prior republications) shows the frequency of changes and the administrative effort to keep the regulation current.

The regulation directly affects only those territory authorities that are named in s 4 and s 5. For division 9.6, the affected bodies are: ACT Health Promotion Authority, ACTION Authority, Australian Capital Tourism Corporation, Emergency Services Authority, Exhibition Park Corporation, Land Development Agency, and Stadiums Authority. For division 9.7, the list adds the CTP regulator, making eight authorities (the others being identical). The CTP regulator is a statutory office-holder responsible for the compulsory third-party motor accident injuries scheme in the ACT. The regulation thus applies to a mix of commercial entities (ACTION Authority is the bus operator, Exhibition Park runs the showground, Stadiums Authority manages major venues), land development bodies (Land Development Agency), tourism promotion (Australian Capital Tourism Corporation), health promotion (ACT Health Promotion Authority), emergency services (Emergency Services Authority), and a regulatory levy collector (CTP regulator). These are all statutory corporations or offices created by separate ACT legislation. The regulation does not affect private sector entities, individuals, or local government bodies. It also does not affect other ACT government directorates or departments unless they are listed as territory authorities under the FMA. The regulation imposes no direct duties on officers of these authorities other than those flowing from the parent Act's divisions. However, the practical impact is that the boards, chief executives, and finance officers of these bodies must ensure compliance with div 9.6 and/or div 9.7. That may involve additional reporting, approval, or procedural steps beyond those applicable to unlisted authorities. The regulation also indirectly affects the ACT Treasurer and the Auditor-General, who likely have oversight roles under the FMA. The amendment history shows that the list can change with minimal notice: the CTP regulator was added in 2020 via a motor accident injuries amendment regulation. Entities that are removed (like the Exhibition Park Corporation) cease to be subject to the division from the amendment's commencement. The regulation therefore imposes a compliance burden that is dynamic and requires monitoring of the ACT legislation register. For a practitioner advising an ACT government entity, the first step is to check whether the entity appears in either list. If it does, then the relevant division of the FMA must be consulted. For entities not listed, this regulation is irrelevant.

The regulation itself does not impose any duties or confer any rights. It is purely a designation instrument. All substantive duties and rights arise from the Financial Management Act 1996, specifically from division 9.6 (for s 4 listed authorities) and division 9.7 (for s 5 listed authorities). Because the full text of those divisions is not provided in the source, we cannot describe them in detail. However, from the structure of the FMA and typical financial management legislation, division 9.6 likely deals with matters such as the investment of money, management of public funds, or reporting requirements specific to certain authorities. Division 9.7 may deal with banking arrangements, borrowing limits, or guarantee provisions. The regulation gives the listed authorities the right to know exactly which division applies to them, and it provides certainty that an authority not listed is not subject to that division by force of the regulation (though the parent Act might still apply the division to other entities by its own terms). The regulation also confers a duty on the Executive to maintain the list accurately and to update it when territory authorities are created, renamed, or abolished. The amendment history shows that this duty has been exercised: additions, substitutions, and omissions have been made over time. For example, the Exhibition Park Corporation was removed after its repeal, and the Land Development Agency was substituted to reflect a name change. The regulation does not create any individual rights enforceable by citizens. It is an internal government management instrument. However, it could indirectly affect private parties that contract with listed authorities, because the division's requirements may impose constraints on how the authority can enter into financial arrangements. For instance, if div 9.7 requires Treasurer approval for certain borrowings, a lender would need to ensure that approval has been obtained. The regulation thus creates a duty on the authority to comply with the applicable division, and a corresponding right of the government to enforce that compliance (e.g., through audit or ministerial direction). The absence of any specific duty in the regulation itself means that non-compliance with the regulation is not itself an offence; any offence would be found in the parent Act for failing to comply with the divisions. The penalty unit values stated in the republication ($160 for individuals, $810 for corporations) are relevant to any offence under the FMA, not under this regulation.

The Financial Management Regulation 2005 contains no penalties or enforcement provisions. It does not create any offences. The only reference to penalties in the republication is in the prefatory note: "At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133)." This note is standard for all ACT subordinate laws and indicates the maximum fine per penalty unit for any offence created by the regulation or by the parent Act as it applies via the regulation. Since the regulation itself creates no offences, the penalty unit value is only relevant if a person commits an offence under the Financial Management Act 1996 (such as failing to comply with a duty under div 9.6 or 9.7) and the penalty for that offence is expressed in penalty units. Enforcement of those obligations would be through the normal mechanisms of the FMA: likely involving the Auditor-General, the Treasurer, or the courts. The regulation's listing function could be relevant to enforcement: if an authority listed in s 4 fails to comply with div 9.6, that failure may be an offence under the FMA. The regulation provides the evidentiary link - it establishes that the authority is subject to the division. But the regulation does not specify the consequences. The only enforcement action directly related to this regulation would be a proceeding to compel the Executive to update the list if it becomes outdated (e.g., if a new territory authority is created and the regulation is not amended, the authority would not be subject to the divisions, which might be contrary to legislative intent). Such a proceeding would be unlikely. The regulation's limited scope means that enforcement attention should focus on the parent Act. The expired s 3 and schedule 1 once contained modifications to part 19 of the FMA, but those modifications were time-limited and expired in 2007. No penalties attached to non-compliance with those modifications because they were transitional provisions. In summary, this regulation is not a source of penal liability; it is a ministerial administrative instrument that enables the enforcement of other provisions by clarifying their application.

This regulation is made under the Financial Management Act 1996 (FMA) and must be read together with that Act. The FMA is the primary legislation governing the financial management of ACT public sector entities. The regulation performs a delegation or specification function under two specific sections: s 105 (for div 9.6) and s 120 (for div 9.7). The regulation's legal effect depends entirely on the content of those divisions. To understand the obligations, one must consult the FMA as in force. The regulation also interacts with the Legislation Act 2001, which governs the making, commencement, and republication of subordinate laws. The republication notes refer to the Legislation Act's provisions on editorial changes (part 11.3) and penalty units (s 133). The value of a penalty unit set by the Legislation Act applies to any offence under this regulation (none exist) or under the FMA as it applies through this regulation. The regulation may interact with the enabling Acts that establish each listed territory authority. For example, the ACTION Authority is established under a separate Act (the Transport Act or similar). The Financial Management Regulation 2005 does not override those enabling Acts; rather, it imposes additional financial management requirements under the FMA. If a conflict arises, the FMA likely prevails as a general financial management law, but specific provisions in an enabling Act might be saved. This regulation also interacts with the City Renewal Authority and Suburban Land Agency Act 2017, which amended this regulation to substitute the Land Development Agency (removing the Suburban Land Agency from the list, as it had been previously included). The amendment shows that changes to other Acts can trigger updates to this regulation. The regulation does not interact with private commercial law directly; it is an internal government instrument. However, it can affect contracts: a listed authority that enters into a financial arrangement without complying with div 9.6 or 9.7 may be acting beyond its power, potentially rendering the contract void or unenforceable. Therefore, counterparties should verify that the authority has complied with the applicable division. The regulation also interacts with the Public Sector Management Act or similar, as officers of listed authorities must comply with financial management duties as part of their employment obligations. The regulation does not interact with tax laws, competition law, or criminal law except to the extent that the FMA does. Its interaction with other regulations under the FMA (if any) is not specified in the source, but it is likely one of several instruments that together flesh out the parent Act's requirements.

The Financial Management Regulation 2005 was notified on 21 December 2005 and commenced on 1 January 2006 except for ss 1 and 2 which commenced immediately. The original version contained ss 1-5 and schedule 1. Section 2 (commencement) was later omitted under the Legislation Act 2001, s 89(4) as it was spent. The first amendment came via the Administrative (Miscellaneous Amendments) Act 2006 (A2006-30), which amended s 4 (substituting the list for div 9.6), inserted s 5 (list for div 9.7), and amended s 3 and schedule 1. The original s 3 had modified part 19 of the FMA (transitional provisions) and expired on 27 October 2007. Schedule 1 also amended the modification provisions and expired with s 3. The next amendment was from the Exhibition Park Corporation Repeal Act 2014 (A2014-54), effective 4 December 2014, which removed the Exhibition Park Corporation from both s 4 and s 5. Then the City Renewal Authority and Suburban Land Agency Act 2017 (A2017-12) amended s 4 and s 5, effective 30 June 2017. This amendment substituted the Land Development Agency (presumably replacing a previous reference to "Suburban Land Agency" or similar; the endnote says "am A2017-12 amdt 1.2" but the text of the amendment is not provided). The most recent amendment is the Motor Accident Injuries (Premiums and Administration) Amendment Regulation 2020 (No 1) (SL2020-11), effective 3 April 2020, which added the CTP regulator to s 5 only. The regulation has been republished seven times: R1 (1 Jan 2006, new regulation), R2 (19 June 2006, including A2006-30 amendments), R3 (1 July 2006, further amendments), R4 (28 Oct 2007, expiry of s 3), R5 (4 Dec 2014, A2014-54 amendments), R6 (30 June 2017, A2017-12 amendments), and R7 (3 Apr 2020, SL2020-11 amendments). The multiple republications reflect the fact that this is a living instrument that changes as the ACT government restructures its agencies. Notably, the regulation has no uncommenced provisions or modifications as at republication. The amendment history indicates that the regulation was once more substantive (with transitional modifications) but has shrunk to a skeletal listing function. Practitioners should always check the latest version on the ACT legislation register because the list can change without fanfare.

The source material does not mention any litigation involving the Financial Management Regulation 2005. The endnotes contain no references to court cases. This is unsurprising given the regulation's narrow scope: it merely designates which authorities are subject to certain divisions of the FMA. Disputes about whether an authority is subject to a division would be resolved by reading the regulation and the parent Act; there is little room for interpretive controversy. If litigation has occurred, it would more likely involve the substantive divisions of the FMA rather than this regulation. However, a party might challenge the validity of the regulation if it were made beyond power (e.g., if a listed authority is not a "territory authority" under the FMA definition). No such challenge is recorded in the source. Similarly, the expired transitional modification (s 3 and schedule 1) might have been litigated in the past, but there is no mention. The absence of litigation history is a notable feature: it suggests that the regulation operates smoothly and that its binary listing function is accepted by all affected entities. For the practitioner, this means there is no case law to rely upon for interpretation. The regulation's meaning is plain on its face. However, the lack of litigation does not guarantee that no issues could arise. For example, if the CTP regulator was incorrectly listed or if the term "CTP regulator" is ambiguous (the abbreviation key does not define it; it is presumably a body created under the Motor Accident Injuries Act 2019), a court might need to resolve that. As of the republication date, no such case exists. The regulation thus carries low litigation risk. The main litigation risk lies in the parent Act's divisions, which may impose duties that lead to disputes (e.g., about investment losses or unauthorised borrowings). Even then, this regulation would be a tangential issue, primarily establishing that the division applied to the authority in question.

Several subtle features of this regulation can trap the unwary. First, the regulation is extremely short but its effect is entirely dependent on the parent Act. A reader who looks only at this regulation will see a list of names and may assume that the requirements of div 9.6 and 9.7 are modest or procedural. In reality, those divisions may impose onerous obligations. Never rely on this regulation alone. Second, the lists in s 4 and s 5 are not identical. The CTP regulator is only in s 5 (div 9.7) and not in s 4 (div 9.6). If you advise the CTP regulator, you must assume div 9.6 does not apply unless another provision of the FMA or another regulation says otherwise. Conversely, the seven authorities listed in s 4 are all subject to div 9.6; but only six of them (excluding the CTP regulator) are also in s 5. The Emergency Services Authority and others appear in both lists, so they must comply with both divisions. Skipping the check of both sections could lead to missing a compliance obligation. Third, the regulation has a history of expiring provisions. The original s 3 and schedule 1 modified part 19 of the FMA but expired in 2007. If a practitioner finds an old version of the regulation (e.g., R1 or R2), they might assume those modifications are still in force. Always use the latest republished version and check the endnotes for expired provisions. Fourth, the regulation is updated via amendments that can occur with little notice (e.g., the CTP regulator was added by a motor accident injuries regulation in 2020). Entities that are newly established as territory authorities may not be listed immediately, creating a gap period where the division does not apply. Conversely, when an authority is abolished, its removal from the list might lag. Practitioners must monitor the ACT legislation register for new SLs amending this regulation. Fifth, the regulation does not contain a definition of "territory authority". That term is defined in the parent Act. If the parent Act's definition changes, the regulation's list may become inconsistent. For example, if a body is no longer a territory authority under the FMA, its inclusion in this regulation may be ineffective. This creates a dependency that must be tracked. Sixth, the abbreviation key lists "CTP regulator" without further detail. The CTP regulator might be a person (the office holder) rather than a body corporate. The regulation applies div 9.7 to "the CTP regulator". This could create ambiguity about whether the duties attach to the individual or to the office. The parent Act and the CTP regulator's enabling act would need to clarify. Seventh, the regulation's penalty unit note does not create an offence; but if a person is charged with an offence under the FMA for failing to comply with div 9.6 or 9.7, this regulation serves as the link establishing that the division applied. A defendant might argue that the authority was not properly listed due to an error in the regulation (e.g., the authority's name was changed and the regulation was not updated). That would be a factual defence. Finally, the regulation does not state when the list must be updated. There is no statutory obligation to amend it within a certain time after a new authority is created. This delay risk is a compliance trap.

Compliance with the Financial Management Regulation 2005 itself is trivial: there is nothing to do because the regulation imposes no duties. However, the regulation's legal effect is to trigger compliance obligations under the Financial Management Act 1996 for listed authorities. Therefore, compliance involves two steps. First, determine whether your entity is named in s 4, s 5, or both. Check the current version on the ACT legislation register; do not rely on a printed copy. The lists are short, but verify that no amendment has occurred since the republication. If your entity is not listed, the regulation imposes no obligations, and you may ignore it (but check the parent Act directly to see if the division applies to you through other provisions). If your entity is listed, you must comply with the applicable division(s) of the FMA. That means consulting the full text of division 9.6 and/or 9.7 as in force. Those divisions will likely contain requirements about financial management, such as preparing budgets, obtaining approvals for investments, reporting to the Treasurer, or adhering to banking arrangements. The precise steps will depend on the division's content, which is not included in the source material but is available from the ACT legislation register. As a practical matter, the finance officer of a listed authority should: (a) identify which division(s) apply; (b) read the division carefully and note any action items (e.g., obtain Treasurer approval for certain transactions); (c) ensure that internal policies and procedures are aligned with those requirements; (d) maintain records demonstrating compliance; (e) train relevant staff on the obligations; (f) monitor the legislation register for amendments to this regulation (which could add or remove the authority) and to the FMA divisions. Because the regulation is ministerial, the main compliance risk is not the regulation itself but the underlying divisions. If an authority fails to comply with a requirement in div 9.6 or 9.7, it may be subject to penalties under the FMA. The regulation provides no defences or exemptions. There is no compliance mechanism specific to this regulation; you simply ensure that the authority's financial activities are within the bounds set by the FMA. For external parties (e.g., lenders, contractors), compliance involves verifying that the authority has obtained any necessary approvals required by the applicable division. This can be done by requesting a certificate from the authority's CFO or obtaining a copy of the Treasurer's approval if required. Due diligence should include checking the current list in this regulation to confirm that the authority is subject to the division, and then confirming that the division's procedural steps have been followed. In summary, the regulation itself is easy to comply with: just read it. The hard work is complying with the divisions it references.