PGPA Act Determination (AFMA SOETM Special Account 2018)

The instrument rests on a small set of administrative and appropriation concepts. These are expressed in the definitions and operative clauses.

• Special account creation (clause 5). The instrument establishes a special account under subsection 78(1)(a) of the Act. The special account is named “AFMA SOETM Special Account 2018” (clause 1) and, for shorthand, “the special account” (clause 4).

• Accountable authority (clause 6). The accountable authority responsible is the Chief Executive Officer of AFMA. That clause links decision‑making responsibility under the special account to an identified official.

• Creditable amounts (clause 7). Three categories may be credited to the special account: (a) amounts held on trust or otherwise for the benefit of a person other than the Commonwealth; (b) amounts received in the course of performing functions that relate to one or more purposes of the special account; (c) amounts received from any person for one or more purposes of the special account. These categories distinguish receipts that are held for third parties (trust or quasi‑trust money) from commercial or fee receipts for services and from other receipts for the account’s purposes.

• Permitted debits / purposes (clause 8). The instrument lists five specific purposes for which debits may be made:

  1. disbursements to beneficiaries of trust or similar amounts (a continuance of trust obligations);
  2. disbursements in connection with services performed for another corporate Commonwealth entity, Commonwealth company or another government;
  3. disbursements in connection with joint activities performed on behalf of another government, organisation or person;
  4. repayments required or permitted by a court order, Act or other law;
  5. reducing the balance of the special account, and thereby reducing the available appropriation for the special account, without making an actual or notional payment. Purpose 5 is an accounting device that permits the appropriation to be reduced by a debit entry rather than by an actual cash transfer.

• Transitional transfer (clause 9). The opening balance provision requires the balance standing to the credit of the prior SOETM account immediately before its repeal to be credited to the new special account on establishment.

• Repeal mechanics (clauses 10-11). The prior SOETM instrument is repealed (clause 10). Part 3 is itself time‑limited and is repealed seven days after the repeal of the prior instrument, and several transitional definitions are removed on that date (clause 11). Clause 11(3) preserves the continuing effect of Part 3 despite the text being repealed.

• Relationship to the Act (clauses 2 and 3). The instrument is explicitly made under subsections 78(1) and 78(3) of the Act and ties its commencement to paragraph 79(5)(a) of the Act (clause 2(1)). The instrument defines “Act” as the Public Governance, Performance and Accountability Act 2013 (clause 4).

These concepts frame the account as a dedicated vehicle for receipts and payments that serve external parties or inter‑governmental service activity, with the AFMA CEO as the designated accountable authority and with a carrying over of the existing SOETM balance.

Primary decision-makers and operationally affected parties are identifiable from the instrument.

• The AFMA Chief Executive Officer. Clause 6 declares the AFMA CEO the accountable authority responsible for the special account. Practically, this places accountability for the proper use of the account and its funds on the CEO within the governance regime created by the Act and this determination.

• Australian Fisheries Management Authority (AFMA) staff responsible for finance and services. AFMA will be the entity that operates the account: receiving credits, making debits, and ensuring records and authority for transactions align with the instrument’s categories (clauses 5, 7, 8, 9).

• Persons other than the Commonwealth who are beneficiaries or principals. Clause 7(a) and clause 8(1) identify money held on trust or otherwise for the benefit of a person other than the Commonwealth. Those beneficiaries are directly affected because the account is the vehicle for holding and disbursing funds owed to them.

• Providers or recipients of services to/from other governments, corporate Commonwealth entities or Commonwealth companies. Clause 8(2) and 8(3) allow disbursements connected to services performed for other Commonwealth entities, companies or governments, and for joint activities on behalf of other governments, organisations or persons. Those entities and the contracts that generate receipts or require payments will be affected by the account’s mechanics.

• Parties that paid amounts into the old SOETM account. Clause 9 requires the opening balance to equal the amount standing to the credit of the SOETM account immediately prior to its repeal. Parties with funds in the prior account,whether as trust beneficiaries or payors for services,are affected because their relevant monies are carried across into the new account.

• The Commonwealth’s appropriation and budget managers. Clause 8(5) permits a debit that reduces the special account balance and thereby reduces the available appropriation for the special account without a real or notional payment. This is an appropriation/accounting effect relevant to budget administrators.

• Internal and external auditors, and any statutory oversight bodies that review AFMA’s financial operations. The instrument establishes the legal basis for a distinct special account and its permitted flows; auditors will need to confirm compliance with clauses 7 and 8 and with the opening balance mechanics of clause 9.

• Entities whose legal rights are affected by repayments ordered by court, Act or other law. Clause 8(4) authorises debits to repay amounts where repayment is required or permitted by court order, Act or other law, making the special account the vehicle for such legal repayments.

Notably, the instrument does not create new criminal liabilities or regulatory burdens that directly attach to external private parties. It mainly affects the operational and accounting treatment of monies associated with AFMA’s services or trust functions and the AFMA CEO’s accountability for the account.

The instrument establishes a set of administrative duties and rights linked to who may credit and debit the special account and who is responsible for it.

Duties and decision‑rights assigned to the accountable authority (the AFMA CEO):

• Responsibility for the special account (clause 6). The CEO is the accountable authority for the special account as contemplated by subsection 78(1)(d) of the Act. The CEO therefore has the duty to ensure the special account operates within the terms of this determination.
• Ensure only permitted credits are accepted (clause 7). The CEO and AFMA finance staff must ensure that only amounts of the types listed in clause 7 are credited: trust amounts for non‑Commonwealth beneficiaries, amounts received in the course of functions related to the special account’s purposes, and amounts received from any person for the account’s purposes.
• Ensure debits are only for listed purposes (clause 8). The CEO must ensure that disbursements from the account are confined to the five purposes in clause 8: disbursing trust amounts to beneficiaries; disbursing for services performed for other Commonwealth entities, companies or governments; disbursing for joint activities on behalf of others; repaying amounts required or permitted by court, Act or other law; and reducing the special account balance/available appropriation without making a payment.

Rights and powers the instrument creates or recognises:

• Right to credit funds matching clause 7 categories. AFMA has the right to receive and credit the account with trust funds, service receipts and other specified receipts (clause 7).
• Power to debit for accounting reduction of appropriation. Clause 8(5) grants the power to reduce the balance of the special account and the available appropriation without making a real or notional payment; that is an accounting mechanism AFMA can exercise.
• Transitional right to the opening balance (clause 9). The special account must be credited at establishment with the opening balance equal to the amount previously standing to the credit of the SOETM account (clause 9(1)-(2)). That right operationalises continuity from the prior instrument.

Administrative obligations implicit in the instrument:

• Repeal and transition actions (clauses 10-11). AFMA must operate the transition from the prior SOETM instrument: the prior instrument is repealed (clause 10), the opening balance transferred (clause 9), and certain transitional definitions removed after seven days following repeal of the prior instrument (clause 11(1)-(2)). Clause 11(3) preserves the effects of Part 3 after its text is repealed, which imposes an interpretative duty to recognise continuing legal effects despite textual repeal.

Limitations and boundaries:

• The instrument confines credits and debits to specified categories (clauses 7, 8). There is no general delegation to use the account for other purposes. The instrument does not confer rights to use the account for expense types outside the enumerated purposes.
• The accountable authority designation ties decision-making to the CEO (clause 6). Operational delegation within AFMA will involve internal instruments, but as written the CEO is the accountable authority under the determination.

No penalties, private rights or statutory compensation mechanisms are created or adjusted by the instrument itself; it is an administrative funding and accounting determination rather than a statute that amends substantive entitlements.

The instrument does not prescribe any express criminal or civil penalties, pecuniary sanctions, or enforcement mechanisms. It is an administrative determination under subsections 78(1) and 78(3) of the Act (clause 3) that creates accounting and appropriation mechanics for a special account. The text of the instrument contains no offence provisions, infringement notices, or direct enforcement clauses.

Enforcement and accountability consequences therefore derive indirectly from its structural features and from the existing obligations on the accountable authority under the Act rather than from this instrument itself. The instrument names the AFMA Chief Executive Officer as the accountable authority (clause 6) and thereby identifies who is responsible for ensuring that the special account operates within the permitted credits and purposes (clauses 7 and 8). Any enforcement of compliance with those duties would be via the administrative or statutory accountability systems that apply to accountable authorities under the Act; the instrument does not set those mechanisms out.

There are two operational levers in the instrument that have compliance implications:

• Restriction of debits (clause 8). Debits are authorised only for the five listed purposes. Overdrawing or making disbursements for purposes outside that list would be inconsistent with the determination and could expose the accountable authority to scrutiny under the Act’s accountability regime.

• Opening balance requirement (clause 9). The instrument requires the opening balance to equal the amount standing to the credit of the SOETM account immediately prior to repeal of the prior instrument. Incorrect transfer or misstatement of that opening balance could raise questions in audit and financial statements and may trigger review under existing Act processes.

Additionally, the instrument contains a mechanism that affects appropriation control: clause 8(5) allows reduction of the special account balance, and therefore the available appropriation, without making a real or notional payment. That is an accounting action that changes appropriation availability. If exercised incorrectly, that action could raise compliance issues vis-à-vis appropriation law and budget procedures; the instrument does not itself define sanctions but this effect would be relevant to budget administrators and auditors.

Because the instrument is silent on penalties, enforcement will be through (a) AFMA internal governance and audit, (b) the broader PGPA Act accountability, audit and oversight framework (which is referenced by the instrument but not detailed in its text), and (c) any external legal obligations such as court orders or other laws requiring repayment (clause 8(4)). The instrument explicitly recognises repayments required or permitted by court order, Act or other law as a permitted debit, which channels such enforcement outcomes into the special account mechanics rather than creating new enforcement mechanisms.

The instrument frames itself as an instrument under the Act by definition and operation. It defines “Act” as the Public Governance, Performance and Accountability Act 2013 (clause 4) and is made under subsections 78(1) and 78(3) of that Act (clause 3). Its commencement is tied to paragraph 79(5)(a) of the Act (clause 2(1)). Those explicit references create the following interactions and dependencies:

• Legal basis under the Act. The instrument is an exercise of the Minister’s power under the cited subsections of the Act. It therefore sits within the Act’s framework for establishing special accounts and subject to any limits or requirements in those provisions of the Act, as those provisions govern the legal status of special accounts and the authority to determine their terms. The instrument relies on the Act to give legal effect to the account and to the appointment of an accountable authority.

• Repeal and replacement of prior SOETM instrument. The instrument repeals the Financial Management and Accountability Determination 2008/12 that established the earlier SOETM account (clause 10). Clause 9 makes explicit that the opening balance of the new special account must equal the amount standing to the credit of the prior SOETM account immediately prior to repeal. That produces a continuity of funds and ensures that money previously held under the older instrument transfers to the new special account.

• Incorporation of legal obligations arising under other laws or orders. Clause 8(4) expressly provides that amounts may be debited to repay where a court order, Act or other law requires or permits repayment. That clause creates a channel by which external legal obligations (for example, a court-ordered refund) are satisfied via debits from the special account. The instrument does not itself alter substantive rights under those other laws; it simply authorises the account to be used for their financial effect.

• Accounting and appropriation mechanics. Clause 8(5) permits a debit to reduce the balance of the special account and, therefore, the available appropriation for the special account, without making a real or notional payment. This clause interacts with appropriation and budget law insofar as it changes appropriation availability through an accounting entry rather than a payment flow. The instrument creates the internal accounting power; any constraints on its use beyond the instrument would come from Act provisions, Treasury or appropriation law not set out in this text.

• Temporal interactions via commencement and repeal. Commencement is linked to paragraph 79(5)(a) of the Act (clause 2(1)); the instrument’s Part 3 transitional provisions are time-limited and certain definitions are scheduled for repeal seven days after repeal of the prior SOETM instrument (clause 11(1)-(2)). Clause 11(3) preserves the continuing effect of Part 3 despite textual repeal. This creates an interpretative rule: while definitions and transitional text are removed from the instrument after the prescribed period, the intended legal effects (for example, the opening balance transfer) continue to bind.

• Limits on scope relative to other statutes. The instrument does not purport to change substantive statutory entitlements outside of permitting the special account to be used to pay or hold certain monies. For example, it does not amend laws that create liabilities or rights of private parties; it simply provides the account as the vehicle to hold or disburse certain monies, and to reduce appropriation in an accounting sense. Any conflict between this determination and other statutes would be a matter of statutory interpretation; the instrument itself does not resolve such conflicts.

The instrument therefore operates as an administrative accounting and appropriation device that is anchored to the Act, replaces a prior determinations instrument and provides a mechanism for satisfying external legal repayment obligations and for carrying forward existing balances. It relies on the broader statutory architecture of the Act for enforcement, reporting and governance, which the instrument does not itself elaborate.

The instrument’s text contains only a limited set of temporal and transitional provisions; the instrument itself is dated and contains commencement and repeal mechanics. The instrument is the PGPA Act Determination (AFMA SOETM Special Account 2018), signed and dated 6 September 2018 (cover and signature lines). The operative amendment and repeal actions within the instrument are as follows:

• Creation and commencement. Clause 1 names the instrument. Clause 2 specifies commencement: the whole of the instrument commences on “the day mentioned in paragraph 79(5)(a) of the Act” (clause 2(1)). Clause 2(2) notes that any information in the table that appears in column 3 is not part of the instrument and can be edited in published versions, which is a housekeeping statement about online publication rather than an operative amendment power.

• Repeal of the prior instrument. Clause 10 expressly repeals the “SOETM instrument”, which the instrument defines as the Financial Management and Accountability Determination 2008/12 to establish the Australian Fisheries Management Authority Services for Other Entities and Trust Moneys Special Account (clause 4). That is the principal repeal action: the prior determination is repealed and therefore replaced by this instrument.

• Transitional provisions and limited self-repeal. Part 3 sets transitional rules. Clause 9 mandates the opening balance equal to the amount standing to the credit of the prior SOETM account immediately prior to repeal of the prior instrument. Clause 11(1) provides that Part 3 of this instrument is itself repealed at the end of the seventh day after the repeal of the prior SOETM instrument (this establishes a short-lived textual presence of Part 3). Clause 11(2) schedules the repeal, on that date, of several definitions in clause 4 used to support transitional operation: definition of date of repeal; opening balance; SOETM account; SOETM instrument. Clause 11(3) qualifies that despite subclause 11(1), the effects of Part 3 remain in force after the date of repeal. This creates a practical rule that the transitional effects persist, while the textual provisions and definitions are removed on the scheduled date.

• No subsequent amendments recorded in the instrument text. The instrument does not show any later amending provisions; it only contains the original determination and its internal transitional repeals. There is no schedule of amendments or later variation recorded in the supplied text.

From the instrument’s text it follows that the key historical steps effected by this instrument were: (1) establishment of the AFMA SOETM Special Account 2018; (2) transfer of balances from the prior SOETM account via an opening balance requirement; and (3) repeal of the prior SOETM instrument. The internal Part 3 provisions and the scheduled repeal of certain definitions are the only self‑amendment or tidy‑up features within the instrument. The instrument does not record further amendments, savings beyond clause 11(3), or subsequent variations.

The instrument contains no record of litigation, and the text does not refer to any cases, judicial decisions or ongoing litigation. There are no express provisions identifying dispute resolution procedures or statutory appeals specific to the determination itself.

Given the instrument’s nature as an administrative funding and accounting determination, litigation that could arise in practice would likely relate to:

• disputes about entitlement or beneficial ownership of funds held on trust (since clause 7(a) and clause 8(1) concern amounts held on trust for persons other than the Commonwealth);
• claims about the proper application of the opening balance transfer from the repealed SOETM account (clause 9);
• disagreements over whether a particular receipt is a permitted credit or whether a proposed debit falls within the listed purposes in clause 8; or
• challenges surrounding whether a debit made to reduce the balance without a real or notional payment (clause 8(5)) is consistent with appropriation or other law.

None of these hypothetical litigation pathways is present in the instrument text as existing litigation. The instrument itself contains no litigation history section. If disputes arise, they would be resolved under general law or the Act’s accountability mechanisms. The instrument, as provided, does not identify judicial decisions or litigation outcomes that interpret its provisions.

The instrument is concise but contains several features and drafting choices that raise practical points to watch when implementing and advising on it. These are concrete operational or interpretative risks and traps drawn from the instrument’s text.

1. Timing of commencement is not an explicit date in the instrument text. Clause 2(1) fixes commencement to “the day mentioned in paragraph 79(5)(a) of the Act.” That means the instrument’s operative start depends on a provision of the Act rather than an explicit date. Practitioners should check paragraph 79(5)(a) of the Act for the precise commencement trigger. The instrument’s table includes a column for date/details but the instrument cautions that any information in that column is not part of the instrument (clause 2(2)). Do not rely on publication notes alone.

2. Opening balance continuity requires precise timing and reconciliation. Clause 9(1)-(2) requires the opening balance to equal the amount standing to the credit of the prior SOETM account immediately prior to repeal of the SOETM instrument. That requires a contemporaneous reconciliation at the moment of repeal. Practical questions include whether outstanding receipts or cheques in transit are included, how trust liabilities are matched to balances, and whether any post‑repeal adjustments are permissible. The instrument does not detail those accounting steps; AFMA must implement careful reconciliation to ensure the opening balance is correct.

3. The instrument retains effects of Part 3 despite textual repeal. Clause 11(1) schedules textual repeal of Part 3 seven days after the prior instrument’s repeal, and clause 11(3) preserves the effects of Part 3 after its text is repealed. That drafting choice can create interpretative complexity: the definitions supporting Part 3 (for example, “opening balance”, “SOETM account”) are themselves scheduled for repeal in clause 11(2). After the definitions are removed, the continuing effect of Part 3 must be read without those local definitions, which can complicate later interpretation and record‑keeping unless the transitional effects are documented elsewhere.

4. Permitted credits are narrowly defined but use broad language in places. Clause 7(c) permits “an amount received from any person for one or more purposes of the special account.” That is broad and can encompass commercial receipts, grant funding, or contributions where the payer intends the money to be used for the account’s purposes. Conversely, clause 7(a) covers amounts “held on trust or otherwise for the benefit of a person other than the Commonwealth.” Distinguishing trust or quasi‑trust money from other receipts requires legal and accounting analysis; misclassification can misapply custodial and fiduciary duties.

5. Purpose 5 is an accounting device with real appropriation effect. Clause 8(5) permits debiting the account to reduce the balance and therefore reduce available appropriation without making a real or notional payment. That mechanism affects appropriation availability and internal budget control. It could be used to manage appropriation profiles but also could be misused to mask spending or artificially adjust balances. The instrument does not give any procedural constraint on using this accounting mechanism; oversight rests with the accountable authority and external auditing.

6. The instrument contains no express internal approval or delegation structure. Clause 6 assigns responsibility to the AFMA CEO but does not prescribe internal approvals, limits, value thresholds, or delegation arrangements. AFMA will need to create internal controls and delegation instruments consistent with the instrument and the Act to avoid governance failures.

7. No penalty provisions, so enforcement is indirect. The instrument contains no penalties for misuse. Remedies or sanctions must be sought through the Act’s general accountability framework, audit findings, or other statutory mechanisms. That indirect enforcement may make remedies slower or contingent on other bodies.

8. Repeal of prior instrument extinguishes that instrument’s text, but obligations may persist. Clause 10 repeals the prior SOETM instrument, and clause 9 transfers its balance. If any contracts or arrangements expressly refer to the prior instrument rather than to the account balance or to AFMA, those references may require bilateral adjustments to reflect the new determination and account name.

In short, the main operational gotchas are timing of commencement and opening balance transfer; the potential for classification disputes about receipts; procedural absence of delegation or safeguards in the instrument itself; and the accounting leverage in clause 8(5) to reduce available appropriation without payment. Each creates an implementation or interpretative risk that AFMA and its auditors should manage.

Compliance consists of a limited set of concrete, source‑grounded actions that AFMA, the AFMA CEO and finance staff should take to align operations with the instrument.

1. Confirm commencement date and effect. Determine the precise commencement date by reference to paragraph 79(5)(a) of the Act (clause 2(1)). Do not rely on publication metadata; the instrument expressly notes that any date/details in column 3 of the table are not part of the instrument (clause 2(2)). Document the operative commencement date in AFMA’s records.

2. Reconcile and credit the opening balance on establishment. Clause 9 requires the opening balance to equal the amount standing to the credit of the SOETM account immediately prior to repeal of the SOETM instrument. Prepare a reconciliation of the prior SOETM account showing cash on hand, cleared balances, unreconciled items, and any liabilities that should match trust monies. Credit the new special account with the exact amount identified as the opening balance on the date of establishment. Retain contemporaneous evidence of the balance calculation and the timing.

3. Establish and document internal governance and delegation. Clause 6 designates the AFMA CEO as the accountable authority. The CEO should document internal delegations and approvals for:

   • authorising credits and confirming their category under clause 7;
   • approving debits and confirming their purpose under clause 8;
   • using clause 8(5) to reduce the balance/available appropriation. Ensure internal delegations are consistent with the Act’s accountability framework and recorded for audit.

4. Classify receipts against the three authorised credit categories. For every receipt intended for the special account, record which clause 7 category applies:

   • clause 7(a): amounts held on trust or for a third‑party beneficiary;
   • clause 7(b): amounts received in the course of performance of functions related to the account’s purposes;
   • clause 7(c): amounts received from any person for one or more purposes of the special account. Maintain supporting documents (contracts, service agreements, invoices, trust documentation) that justify the classification.

5. Restrict disbursements strictly to clause 8 purposes. Before debiting, require a documented checklist that the proposed debit aligns with one of the five purposes in clause 8:

   • beneficiary disbursements (clause 8(1));
   • disbursements for services to corporate Commonwealth entities, Commonwealth companies or another government (clause 8(2));
   • disbursements for joint activities on behalf of others (clause 8(3));
   • repayments required or permitted by court, Act or other law (clause 8(4));
   • accounting debit to reduce balance and available appropriation (clause 8(5)). For clause 8(4), attach the court order or statutory reference authorising the repayment.

6. Control use of the appropriation‑reducing accounting entry (clause 8(5)). If AFMA intends to exercise clause 8(5), implement a policy that records the rationale, authorisation and accounting entries, and ensures transparency for auditors and budget managers. Document the effect on the available appropriation and ensure it is consistent with Treasury and appropriation rules that govern appropriation treatment.

7. Manage trust and fiduciary obligations. For amounts credited under clause 7(a), maintain trust ledgers, beneficiary registers and legal documentation that shows the basis of holding and the entitlement to disbursement. Ensure that disbursements to beneficiaries are traceable to the corresponding trust holdings and authorised for disbursement under clause 8(1).

8. Update contract documentation and communications. For contracts, service agreements, memoranda of understanding or invoices that previously referenced the SOETM account or the repealed instrument, update references to the AFMA SOETM Special Account 2018 and retain records of the changeover per clause 9. Ensure counterparties are notified where appropriate.

9. Preserve audit trails for the opening balance transfer and for later debits/credits. Keep contemporaneous evidence of the opening balance transfer (clause 9) and of compliance with one of the clause 7 crediting categories and one of the clause 8 debit purposes for all transactions. This is essential for internal and external audit.

10. Prepare for interpretative issues arising from the short-lived Part 3 text. Clause 11(1) schedules repeal of Part 3 seven days after repeal of the prior instrument and clause 11(3) preserves the effects. To avoid confusion when the text and the definitions are removed, keep internal records that capture the definitions and transitional calculations (for example, the defined “opening balance”) even after those definitions are repealed. That preserves continuity and avoids interpretative disputes later.

11. Coordinate with auditors and oversight bodies. Notify internal and external auditors of the new special account, the opening balance transfer and the intended procedures, so they can assess compliance with the instrument and with the accountability framework under the Act.

12. Train operational staff. Provide training and written guidance to AFMA finance and business units on the permitted credits and debits, the documentary evidence required, and the internal approval processes tied to the CEO’s accountability under clause 6.

Following these steps will align operations with the specific requirements and constraints in clauses 1-11 of the instrument and produce an audit trail needed to demonstrate the account has been operated in accordance with the determination.