PGPA Act Determination (Attorney-General’s Department SOETM Special Account 2021)

The instrument operates through a small set of tightly framed accounting concepts. Those concepts are defined or implemented in particular provisions; summarised below with section references.

• Special account: The instrument establishes a named special account, the Attorney‑General’s Department SOETM Special Account 2021, expressly for the purposes of paragraph 78(1)(a) of the Act (s 5). The special account is an accounting entity with its own credits and debits as specified in this determination.

• Accountable authority: The Secretary of the Attorney‑General’s Department is designated as the accountable authority for the special account under paragraph 78(1)(d) of the Act (s 6). This centralises decision authority to a single statutory office holder within the Department.

• Credits (what may be credited): Section 7 enumerates three categories of amounts that may be credited to the special account: (1) amounts held on trust, or otherwise held on behalf of or for the benefit of a person other than the Commonwealth; (2) amounts received in the course of the performance of functions that relate to one or more purposes of the special account; and (3) amounts received from any person for one or more purposes of the special account (s 7).

• Purposes / permitted debits (what may be spent): Section 8 sets out six discrete purposes for which amounts may be debited from the special account. Those purposes cover disbursements of trust amounts for private beneficiaries (s 8(1)), payments in connection with services performed for or with other Commonwealth entities or non‑Commonwealth parties including other governments (s 8(2)-(4)), repayments where required or permitted by a court order, Act or other law (s 8(5)), and an accounting mechanism to reduce the special account balance without a real or notional cash payment (s 8(6)).

• Transitional / opening balance: Section 9 requires immediate crediting of an opening balance equal to the amount standing to the credit of the predecessor SOETM special account immediately prior to commencement (s 9(1)-(2)). Section 10 revokes the older SOETM instrument and section 11 sets out repeal timing and the planned deletion of internal definitions while preserving the transitional effects.

• Publication detail: The commencement table in section 2 includes a column 3 entry (a date detail), but s 2(2) states that any information in column 3 is not part of the instrument and may be edited in published versions.

These concepts establish a specialised repository for funds associated with Services for Other Entities and Trust Moneys (SOETM) activities carried out by the Attorney‑General’s Department. The permitted credits and debits are expressed as categories rather than transactional rules, leaving operation and intra‑Departmental controls to be exercised by the Secretary consistent with the Act and this determination.

This determination affects several parties in discrete ways, identified below with the relevant provisions:

• The Attorney‑General’s Department: The Department is the institutional home for the new special account and, through the Secretary, is the accountable authority with the legal responsibility to manage the account (s 5, s 6). Department finance and program staff will be responsible for implementing the crediting and debiting rules and for effecting the opening balance transfer from the predecessor account (s 9).

• The Secretary of the Attorney‑General’s Department: The Secretary is the accountable authority for the account and therefore the decision maker for matters of receipt and disbursement consistent with the determination and the Act (s 6). This delegates responsibility to an individual statutory office holder rather than a collective body.

• Persons other than the Commonwealth who provide funds: The special account may accept amounts that are held on trust or otherwise on behalf of or for the benefit of persons other than the Commonwealth (s 7(1)), and may receive amounts from any person for the account’s purposes (s 7(c)). Consequently, private parties, corporations, non‑Commonwealth entities, and other governments that pay the Department for services, or place trust moneys with the Department, may have funds credited to this special account.

• Commonwealth entities, Commonwealth companies, governments, organisations, bodies or persons that engage the Department: The special account authorises disbursements in connection with services performed for, on behalf of, or together with those actors; and for joint activities performed for, on behalf of, or together with them (s 8(2)-(3)). This affects counter‑parties to service arrangements and joint activities involving the Department.

• Courts and legislative or other legal claimants: Section 8(5) provides that the account may be debited to repay amounts where a court order, Act or other law requires or permits repayment of an amount received. Bodies or persons with a legal entitlement to repayment will be affected through this mechanism.

• Users of the previous SOETM special account: The predecessor SOETM special account and instrument are revoked and the balance is rolled into the new account as the opening balance (s 9, s 10). Entities with funds previously standing to the credit of the predecessor account are affected because those balances transfer automatically into the new legal instrument’s account.

Who pays: broadly, any person that provides funds consistent with s 7 may pay into the account, including those paying for services or placing trust funds. Who decides: the Secretary, as accountable authority, has statutory responsibility over the account operations (s 6). Behavioural change: for internal Department finance teams the instrument substitutes a new legal basis and account name and requires an immediate accounting action to credit the opening balance; for external payers the instrument creates or continues a mechanism under which the Department can receive and hold trust or service receipts in a special account.

The determination creates a narrow set of duties and rights confined to accounting, receipt and disbursement functions. The instrument does not create extensive statutory obligations outside the scope of those functions; the principal duties and rights can be read directly from the text.

Key duties and decision rights

• Duty to establish the special account: The instrument itself establishes the account under paragraph 78(1)(a) of the Act (s 5). The Department has a duty to administer that account.

• Duty of the accountable authority: The Secretary is specified as the accountable authority for the special account (s 6). As accountable authority, the Secretary is the designated decision maker for all actions required to give effect to the account, including accepting credits and making disbursements in accordance with the determination. The instrument does not itself list operational compliance obligations but locates authority and responsibility in the accountable authority.

• Duty to credit the opening balance: Section 9(1) requires that the opening balance specified in s 9(2) be credited to the new special account immediately after establishment. The specified opening balance equals the amount standing to the credit of the predecessor SOETM special account immediately prior to commencement (s 9(2)).

• Duty to observe permitted credits and debits: The Secretary must ensure that only amounts of the kinds listed in s 7 are credited, and that amounts debited are for the purposes listed in s 8. The instrument binds the Department to those categories as the legal basis for accounting entries to the special account.

Rights created by the determination

• Right to receive and hold money: The Department, through the special account, has the legal capacity to accept and hold amounts falling within the categories in s 7 (trust amounts, amounts received in course of function performance related to the account purposes, and amounts received from any person for the account purposes) (s 7).

• Right to disburse for enumerated purposes: The account may be debited to disburse trust funds to beneficiaries (s 8(1)), to fund services rendered for or with other parties (s 8(2)-(3)), to implement agreements with other governments (s 8(4)), to effect legally required or permitted repayments (s 8(5)), and to reduce the account balance without a real or notional payment (s 8(6)).

Limits and non‑express duties

• No penalty or enforcement regime in this instrument: The instrument does not prescribe penalties, offences, or enforcement mechanisms; it is an administrative determination that sets accounting rules and designations. Any enforcement or sanctioning would be found in the Act or other applicable legal instruments, which are outside the text of this determination.

• Discretion subject to the Act: The rights to accept or make payments are exercisable only as permitted by the Act via the legislative power under which this determination was made (s 3). The instrument does not delegate rights to third parties; it assigns the accountable authority role to the Secretary.

In short, the duty allocation is straightforward: the Department holds and manages the named special account; the Secretary is the accountable authority responsible for exercising the powers to credit and debit the account, constrained by the categories in ss 7 and 8 and by the supervisory framework of the Act.

The instrument itself contains no express criminal, civil penalty, infringement or administrative sanction provisions. Its text does not provide specific enforcement mechanisms, monetary penalties or offence elements. The only enforcement‑adjacent elements are rules about what may be credited and debited to the special account and the procedural transitional requirements, which are administrative obligations for the Department.

• No in‑instrument sanctions: Nowhere in the determination are offences, penalty units or specific enforcement remedies articulated. The determination functions as an administrative and accounting instrument rather than an enforcement instrument.

• Implied accountability under the Act: The instrument is made under subsections 78(1) and 78(3) of the Act (s 3). Those references locate the determination within the wider PGPA Act framework. Any audit, oversight, sanction, or enforcement consequence that attaches to non‑compliance with this determination would derive from the Act, its subordinate instruments, or the Department’s internal governance arrangements, not from this instrument’s text. Because the instrument does not reproduce the Act, the determination does not itself specify those external enforcement mechanisms.

• Administrative compliance obligations: The instrument contains administrative commands which the Department must follow: immediate crediting of the opening balance (s 9(1)); revocation of the predecessor instrument (s 10); and scheduled repeal of Part 3 provisions and certain definitions (s 11). Failure to carry out those administrative steps would be a matter of legal compliance under the Act and the accountable authority’s statutory responsibilities, and would therefore be subject to oversight according to the Act, but the determination does not itself articulate supervisory or remedial steps.

• Operational enforcement rests with the accountable authority: As the designated accountable authority (s 6), the Secretary has responsibility for lawful administration of the account. The Secretary’s obligations and potential liabilities, and any corporate or personal accountability measures, are matters for the Act and Departmental governance arrangements, not for this determination.

For practitioners, the practical implication is that assessment of penalties and enforcement risk requires reference to the PGPA Act and related governance instruments, as this determination supplies the accounting architecture but not the enforcement machinery.

The instrument situates itself in the statutory framework created by the Public Governance, Performance and Accountability Act 2013 and interacts with existing legislative instruments through revocation and transition provisions. The interactions set out in the determination are the following.

• Operative reliance on the Act: The instrument is made under subsections 78(1) and 78(3) of the Act (s 3). It repeatedly invokes the Act when establishing the account (s 5), specifying credits and debits (ss 7 and 8), appointing the accountable authority (s 6), and handling transitional revocation and repeal (ss 9-11). The determination therefore operates as a subordinate instrument within the PGPA Act architecture. The determination does not reproduce or restate other substantive requirements of the Act; it assumes the Act supplies the legal context, powers and constraints.

• Commencement tied to Act timing: Commencement is expressed to occur on the later of the day mentioned in paragraph 79(5)(a) of the Act or 1 July 2021 (s 2(1)). The instrument therefore defers to a specific timing provision in the Act for its operative date.

• Revocation of a prior FM Act determination: Section 10 expressly revokes the Financial Management and Accountability (Establishment of Special Account for Attorney‑General's Department) Determination 2011/04. That action moves the legal basis for the Department’s SOETM account from the pre‑existing FM Act instrument to this PGPA Act determination.

• Opening balance continuity: Section 9 preserves continuity of funds by requiring that the opening balance of the new account equals the amount standing to the credit of the predecessor SOETM special account immediately prior to commencement, and that that amount be credited immediately after establishment. That creates a direct legal bridge so that balances held under the prior instrument carry across to the new account under the PGPA Act determination.

• Transitional repeal sequencing: Section 11 schedules the repeal of Part 3 of this instrument at the end of the seventh day after revocation of the predecessor SOETM instrument, and then repeals definitions of "SOETM instrument" and "SOETM special account" on that date, while explicitly preserving the continuing effect of the transitional measures despite that repeal (s 11(1)-(2)). This sequencing is a legal device to limit enduring statutory clutter while ensuring transitional effects remain operative.

• Limited substantive interplay: The determination does not alter other substantive laws. It permits debits where a court order, Act or other law requires payment (s 8(5)), but it does not itself create rights or obligations under other legislative schemes. Any cross‑reference obligations or enforcement consequences must be traced back to the Act or the other relevant laws.

In sum, the instrument is a specialised accounting determination that replaces and bridges a prior FM Act special account with a PGPA Act special account, and it relies on and defers to specific Act provisions for commencement and legal authority. The determination preserves continuity of existing balances and aligns the Department’s SOETM account with the PGPA Act framework.

The instrument’s text contains its own dated signature and a record of structural changes it effects. The amendment history that can be read from the instrument itself is compact.

• Date and maker: The determination is dated 31 May 2021 and is signed by Simon Birmingham, Minister for Finance. The instrument’s name and date are set out at the head of the text.

• Replacement of predecessor instrument: Section 10 expressly revokes the Financial Management and Accountability (Establishment of Special Account for Attorney‑General's Department) Determination 2011/04. That is the primary substantive change effected by this instrument relative to the prior regulatory arrangements.

• Transitional repeal of Part 3: Section 11 schedules the repeal of Part 3 of this instrument at the end of the seventh day after the revocation under s 10 (s 11(1)). On the date of that repeal, two definitions in section 4,the definition of "SOETM instrument" and the definition of "SOETM special account",are also repealed (s 11(2)). However, s 11(3) provides that the effects of Part 3 remain in force after the date of repeal. These steps are internal structuring provisions intended to tidy the instrument after transition.

• Commencement detail: Section 2 addresses commencement timing: the whole instrument commences on the later of the day mentioned in paragraph 79(5)(a) of the Act or 1 July 2021 (s 2(1)). Section 2(2) notes that column 3 information in the commencement table is not part of the instrument and may be edited in published versions.

• No subsequent amendments included: The instrument as provided contains no later amending schedules, no exercise of power to vary the determination, and no notes of subsequent amendments within the text itself. The only change recorded is the revocation of the 2011/04 SOETM instrument and the transitional measures to give effect to the account transfer.

Practically, the instrument is a single‑purpose replacement instrument with a narrow amendment footprint: it displaces the 2011 FM Act determination and migrates the account into the PGPA Act regime with specified transitional handling of balances and definitions.

The instrument contains no references to any litigation, judicial determinations, or case law. It does not cite judicial authorities, and the text does not indicate any proceedings that relate to the establishment, operation or revocation of the special account.

• No named cases or judicial orders in text: While s 8(5) contemplates debit activity to implement repayments directed by a court order, Act or other law, the instrument does not itself identify any particular court orders or litigated matters.

• No litigation record included: The instrument as published contains only the administrative determination and the transition and revocation provisions. It does not provide or reference a litigation history, or any process or adjudication that pertains to the account’s establishment.

For purposes of legal due diligence, practitioners should note that this determination itself does not create an internal body of jurisprudence. Any litigation that affects the account’s operation would arise under the Act, under specific contractual disputes involving amounts within the account, or under separate statutory or common law claims; those matters are not reflected in this determination’s text.

Several aspects of the instrument merit attention because they can be easy to overlook or raise practical questions. These are practical, source‑grounded points derived from the text.

1. Immediate crediting of opening balance must occur: Section 9(1) requires that the amount specified in s 9(2) be credited to the new special account immediately after its establishment. Practically, this requires Department finance teams to take a defined accounting action on commencement to transfer the balance from the predecessor SOETM account to the new account without delay. Failure to effect that immediate crediting would be a non‑compliance with an express provision.

2. Revocation plus delayed repeal complexity: Section 10 revokes the SOETM instrument immediately, but s 11(1) then states that Part 3 of this instrument is repealed at the end of the seventh day after the revocation. Section 11(2) then schedules the repeal of the internal definitions of SOETM instrument and SOETM special account on that same date, while s 11(3) preserves the effects of Part 3 despite repeal. The practical effect is that the revocation of the predecessor instrument takes immediate legal effect, while internal housekeeping provisions in Part 3 are removed a week later. That timing creates a narrow window where transitional provisions remain in force and then are erased from the text, yet their substantive effect continues. Departments must document and implement the transitional transfer during that window to avoid uncertainty.

3. Broad crediting power: Section 7(c) allows crediting amounts "received from any person for one or more purposes of the special account". The phrase "any person" plus the account’s purposes gives the Department latitude to accept receipts from a wide range of payers. That breadth can create practical appetite for receipts but also raises the governance burden to ensure credits meet the purposes in s 8.

4. The accounting device to reduce balance without payment: Section 8(6) permits debiting the account to reduce its balance without making a real or notional payment. This is an accounting mechanism that will change the available appropriation for the special account without associated cash flow. Practitioners need to treat this provision as an authorised method of adjusting balance and appropriation rather than a cash payment. It may affect internal reporting, appropriation management and external financial statements.

5. The accountable authority is a single office holder: Section 6 names the Secretary as accountable authority. That centralisation of legal responsibility requires internal delegation instruments or documented authorisation protocols to enable operational staff to transact on the account while ensuring that legal responsibility remains with the Secretary.

6. Definitions to be repealed: Section 11(2) schedules deletion of the definitions of "SOETM instrument" and "SOETM special account" from s 4, although s 11(3) preserves the transitional effects. After the scheduled repeal date those labels will not appear in the instrument even though consequences flow from the transitional action. That may create confusion for document readers who rely on internal defined terms.

7. No in‑instrument enforcement regime: The absence of penalties in the instrument means compliance and remedial mechanisms are located in the Act or Departmental governance. Practitioners cannot look to this instrument for enforcement detail.

8. Publication column not part of the instrument: Section 2(2) cautions that information in column 3 of the commencement table is not part of the instrument and can be edited in published versions. Do not treat text in that column as operative content.

These are concrete operational constraints and potential sources of confusion that flow directly from the determination’s wording.

Compliance under this determination requires a small set of discrete, source‑based actions and internal governance measures. The following steps follow the instrument’s text and aim to capture the minimal necessary operational obligations.

1. Establish the account and confirm commencement date: Determine the operative commencement date according to s 2(1) (the later of the day mentioned in paragraph 79(5)(a) of the Act or 1 July 2021). On that date, ensure the Attorney‑General’s Department’s finance system contains the Attorney‑General’s Department SOETM Special Account 2021 as the live special account (s 5).

2. Record the Secretary as accountable authority: Ensure internal delegation and authorisation instruments reflect that the Secretary is the accountable authority for the special account under s 6. Operational transactions should be executed under delegation while recognising that legal accountability rests with the Secretary.

3. Credit the opening balance immediately: As required by s 9(1), immediately after establishment credit to the new special account the opening balance equal to the amount standing to the credit of the predecessor SOETM special account immediately prior to commencement (s 9(2)). Document the accounting entry, supporting calculations and the source balances to create an audit trail.

4. Accept only authorised credits: Configure accounting rules and receipting processes to credit the account only with amounts of the kinds listed in s 7: amounts held on trust or on behalf of persons other than the Commonwealth; amounts received in the course of functions that relate to the account’s purposes; and amounts received from any person for those purposes (s 7). Maintain documentation for each credited amount demonstrating which s 7 category applies and how the receipt correlates with the account’s purposes.

5. Debit only for permitted purposes: Authorise disbursements only for the purposes stated in s 8: disbursing trust funds to beneficiaries (s 8(1)); payments connected with services performed for or with other parties (s 8(2)); joint activity payments (s 8(3)); payments under agreements between governments (s 8(4)); repayments ordered or required by law (s 8(5)); and adjustments reducing the balance without payment (s 8(6)). For each debit, retain supporting documents that show the link to the specific s 8 purpose.

6. Implement the s 8(6) accounting mechanism carefully: Where an entry is intended to reduce the balance without making a real or notional payment under s 8(6), document the legal basis and accounting treatment. Ensure finance and audit teams understand that this is an authorised appropriation/balance adjustment and manage reporting accordingly.

7. Follow transitional and revocation steps: Comply with the revocation of the predecessor instrument under s 10 and with the transitional repeal sequencing in s 11. Execute any administrative actions required by Part 3 before its scheduled repeal, and retain records showing that the opening balance transfer and revocation steps occurred in compliance with the instrument.

8. Maintain audit and transparency records: Even though the determination does not specify penalties, the account will be subject to the Act’s accountability framework. Keep complete records of receipting, disbursement, authorisations, delegations and the opening balance transfer so that the Secretary can satisfy any audit or oversight under the Act.

9. Review third‑party agreements and trust arrangements: For existing contracts, trust arrangements, or service agreements that had relied on the old SOETM account, confirm that receipts and payments are lawfully credited or debited to the new special account and that counterparties receive correct accounting treatment. Where a court order, Act or other law requires repayment, ensure the debit is consistent with s 8(5).

10. Update public and internal references: After the scheduled repeal of certain definitions (s 11(2)), update departmental guidance, websites, financial statements and internal manuals to refer to the new account by its operative name and to remove references to the old instrument in favour of this determination.

These steps implement the legal architecture in the instrument: establish the account, transfer the prior balance, accept and make entries only as authorised, and keep a complete audit trail under the accountabilities vested in the Secretary.