PGPA Act Determination (ABCB Special Account 2019)

The instrument relies on a series of defined terms set out in clause 6. The term ABCB means the Australian Building Codes Board, which is continued in existence under the IGA. The IGA is defined as the Australian Building Codes Board Inter-Governmental Agreement 2012, including any subsequent amendments or additions agreed by the signatories. Building and construction is defined to mean the design, construction, renovation, rectification, alteration, extension, or performance of buildings, including plumbing or other service installations. This definition is broad and encompasses the full lifecycle of building works from initial design through to ongoing performance.

The term special account refers to the ABCB Special Account 2019 established by the instrument. The former special account is the Australian Building Codes Board Special Account 2017. Accountable authority has the meaning provided in the Act, which in this case is the Secretary of the Department of the Treasury as stated in clause 5. Commonwealth entity and Commonwealth company have the meanings provided in the Act. Information technology systems are defined to mean the development, maintenance and use of computer systems, software and networks for the processing and distribution of data. The WaterMark Certification Scheme is defined as the national mandatory certification scheme administered by ABCB from 2013 to authorise plumbing and drainage products for use in plumbing and drainage installations.

These concepts operate together to frame the operation of the special account. The IGA provides the inter-governmental basis for the ABCB, while the definition of building and construction sets the scope of activities that may be funded. The WaterMark Certification Scheme is expressly included as an example of a product certification scheme that falls within the research, investigation and administration purposes. The distinction between the former special account and the current special account indicates a continuation of the funding mechanism rather than the creation of an entirely new structure. The accountable authority concept imports the governance obligations that apply to the Secretary under the Act when managing the special account.

The instrument directly affects the Secretary of the Department of the Treasury in the capacity of accountable authority responsible for the special account. The Secretary must ensure that credits to the account comply with clause 7 and that debits are made only for the purposes listed in clause 8. The ABCB is affected because the purposes in clause 8 are framed around the functions performed by the ABCB, including the creation of codes and standards, the delivery of educational resources, the administration of schemes such as the WaterMark Certification Scheme, and the performance of services for governments and other bodies.

Governments that provide amounts to the special account are affected because clause 7(a) permits crediting of amounts received from a government for a purpose of the special account. Any person who provides an amount for a purpose of the special account under clause 7(c) is also affected, as is any entity that receives funds in the course of performing functions that relate to a purpose of the special account under clause 7(b). Commonwealth entities and Commonwealth companies are affected because clause 8(d) and (e) expressly contemplate disbursements in connection with services performed by the ABCB for or on behalf of such bodies and in connection with joint activities involving such bodies.

The building and construction industry, associated stakeholders and the broader community are affected indirectly through the application of funds to the purposes in clause 8(a), (b) and (c). These purposes include the development of nationally consistent codes, standards and guidance materials, the dissemination of educational and training resources, and the administration of programs including product certification schemes. Organisations or persons that participate in joint activities with the ABCB under clause 8(e) are likewise affected by the funding framework.

The instrument imposes duties on the accountable authority through the framework of credits and debits. The Secretary of the Department of the Treasury must ensure that only amounts falling within clause 7(a), (b) or (c) are credited to the special account. The Secretary must also ensure that amounts are debited only for the purposes set out in clause 8(a) to (i). These duties arise directly from the establishment of the special account under clause 4 and the specification of credits and purposes in Part 3.

The ABCB has no express rights created by the instrument, but the purposes in clause 8 are structured to support the disbursement of amounts for activities performed by the ABCB. This includes disbursements to create, maintain and enhance codes and standards, to develop educational resources, to administer programs such as the WaterMark Certification Scheme, and to undertake services and joint activities for governments and other bodies. The ABCB therefore operates within a framework where funds held in the special account may be applied to its functions, provided the application falls within one of the listed purposes.

Clause 8(g) creates a mechanism for repayment where a court order, Act or other law requires or permits repayment of an amount received. Clause 8(h) permits repayment to an original payer of amounts credited to the special account or the former special account after any necessary payments for the purposes in paragraphs (a), (b) or (c). Clause 8(i) permits reduction of the balance of the special account without making a real or notional payment. These provisions establish specific pathways for managing funds that do not align with ongoing purposes.

No rights of third parties to compel disbursements or to challenge the application of funds are set out in the instrument. The duties remain focused on compliance with the credit and debit rules by the accountable authority.

The instrument itself does not prescribe penalties for non-compliance with its provisions. Clause 7 and clause 8 set out the rules for credits and debits, but the text contains no enforcement mechanisms, offence provisions or sanction clauses. Any consequences for failure to comply with the credit and debit rules would arise under the Act or other applicable legislation governing the management of special accounts and public money.

The accountable authority remains subject to the general obligations that apply to the Secretary of the Department of the Treasury when managing a special account established under section 78 of the Act. The instrument does not create additional enforcement tools. Clause 8(g) provides for repayment where required by a court order, Act or other law, but this is a mechanism for correcting improper receipts rather than a penalty provision.

Because the instrument is a legislative instrument made under the Act, its operation is subject to the usual oversight and reporting requirements that apply to special accounts. The text does not detail any specific audit, reporting or compliance monitoring processes beyond the establishment of the account and the specification of its credits and purposes.

The instrument is made under subsections 78(1) and 78(3) of the Public Governance, Performance and Accountability Act 2013 and therefore operates within the framework of that Act for the establishment, crediting and debiting of special accounts. The definitions in clause 6 import the meanings of accountable authority, Commonwealth entity and Commonwealth company from the Act. The instrument does not amend the Act or create new provisions within it.

The instrument references the IGA in the definition of ABCB and in the definition of the IGA itself. The IGA is an inter-governmental agreement rather than legislation, and the instrument incorporates it only for definitional purposes, including any subsequent amendments or additions agreed by the signatories. The instrument does not create legal obligations under the IGA or alter the status of that agreement.

The instrument defines the former special account by reference to the PGPA Act Determination (Establishment of Australian Building Codes Board Special Account 2017). This creates a direct link to the prior determination, allowing the 2019 instrument to continue the funding arrangements without establishing an entirely new account structure. The text does not specify any transitional provisions beyond this definitional reference.

The source text contains no provisions that interact with the Insurance Act 1973 or the Financial Sector (Shareholdings) Act 1998. The provisions in those Acts relating to APRA determinations, prudential standards, transferred liabilities and secrecy do not apply to or affect the operation of this instrument, which concerns funding for building and construction codes and related activities rather than insurance business or financial sector shareholdings.

The instrument establishes the ABCB Special Account 2019 and defines the former special account as the Australian Building Codes Board Special Account 2017. This definitional link in clause 6 indicates that the 2019 instrument replaces or continues the arrangements previously operated under the 2017 determination. The text does not set out the reasons for the change or any specific amendments to the earlier instrument.

The purposes in clause 8 remain substantially aligned with the functions of the ABCB as continued under the IGA. The inclusion of the WaterMark Certification Scheme as an example within clause 8(c) continues the reference to product certification that was administered by the ABCB from 2013. The instrument therefore maintains continuity in the scope of activities that may be funded while updating the formal establishment of the special account.

Clause 7 preserves the same categories of creditable amounts that would have applied under the former special account. The accountable authority remains the Secretary of the Department of the Treasury. The text provides no further detail on the timing or process of transition from the 2017 account to the 2019 account beyond the definitional reference to the former special account.

The source text does not identify or reference any court challenges or controversies relating to the instrument. No provisions address judicial review, standing to challenge decisions made under the instrument, or any disputes concerning the application of funds or the scope of the purposes in clause 8.

The instrument is a legislative instrument made under the Act. As such, it is subject to the standard processes for legislative instruments, including tabling and potential disallowance. The text does not contain any clauses that would limit or expand rights to seek review of decisions made by the accountable authority in relation to credits or debits.

Because the instrument focuses on the establishment of the special account and the specification of credits and purposes, it does not create substantive rights or obligations that would typically give rise to litigation. The text provides no information on any administrative or judicial proceedings that have arisen in connection with the special account or its predecessor.

Practitioners should note that clause 7 restricts credits to three specific categories. An amount may be credited only if it is received from a government for a purpose of the special account, received in the course of performing functions that relate to a purpose of the special account, or received from any person for a purpose of the special account. Amounts received for unrelated purposes cannot be credited, and the accountable authority must verify the connection to a purpose before accepting funds.

Debits must fall strictly within one of the purposes listed in clause 8(a) to (i). The broad language in clause 8(a) covering codes, standards, regulatory requirements and guidance materials, including information technology systems, still requires that each expenditure be linked to one of those elements. Clause 8(c) expressly includes product certification schemes such as the WaterMark Certification Scheme, but other programs must satisfy the research, investigation, consultation, implementation or administration criteria.

Clause 8(g) and (h) create specific repayment pathways. Repayments required by court order, Act or other law must be made, and original payers may receive refunds after necessary payments for the core purposes. Clause 8(i) permits reduction of the account balance without a payment, which may be used to manage excess funds but requires careful documentation to demonstrate compliance.

The definition of building and construction in clause 6 is wide and includes plumbing and other service installations. Activities that fall outside this definition, such as non-building infrastructure, cannot be funded under the purposes in clause 8. The definition of the IGA includes subsequent amendments agreed by signatories, so practitioners must confirm the current version of the IGA when assessing whether an activity aligns with the ABCB's role.

The accountable authority should implement procedures to verify that every credit to the special account falls within clause 7(a), (b) or (c). This includes obtaining documentation from the payer that identifies the purpose of the special account to which the amount relates. Records should be maintained showing the connection between the receipt and the relevant purpose in clause 8.

For debits, the accountable authority should require that each proposed expenditure be mapped to one or more of the purposes in clause 8 before funds are disbursed. This mapping should reference the specific paragraph, such as clause 8(a) for code development or clause 8(c) for administration of the WaterMark Certification Scheme. Where an activity is claimed to be incidental under clause 8(f), the connection to a primary purpose should be documented.

The ABCB should ensure that when it performs services for governments or joint activities under clause 8(d) and (e), the funding request identifies how the activity supports the creation of codes, educational resources or programs listed in the earlier paragraphs. Educational and training resources developed under clause 8(b) should be targeted at the building and construction industry, associated stakeholders or the broader community as specified.

Persons or governments providing funds should confirm in writing that the amount is provided for a purpose of the special account. This confirmation assists the accountable authority in satisfying the credit rules in clause 7. Where a repayment under clause 8(h) is sought, the original payer should provide evidence of the initial credit and demonstrate that necessary payments for core purposes have been completed.

All parties should retain accounting records that explain the methods and calculations by which amounts are credited and debited, consistent with the general requirements for accounting records that apply to bodies corporate under the Act. Regular reconciliation of the special account balance against the listed purposes will assist in demonstrating ongoing compliance.