PGPA Act Determination (DFAT SOETM Special Account 2019)

The instrument implements a limited and specific special-account framework under the Act, focused on Services for Other Entities and Trust Moneys (SOETM) functions managed by DFAT. The core concepts, as expressed in the text, are (with the relevant clause citations):

• Special account establishment (section 5). The instrument creates the DFAT SOETM Special Account 2019 as a special account under subsection 78(1)(a) of the Act.

• Accountable authority (section 6). The Secretary of DFAT is the accountable authority responsible for administration of the special account under subsection 78(1)(d) of the Act.

• Permissible credits (section 7). Three categories of receipts may be credited:

  1. amounts held on trust, or otherwise on behalf of or for the benefit of a person other than the Commonwealth (section 7(1));
  2. amounts received incident to functions relating to one or more purposes of the special account (section 7(b)); and
  3. amounts received from any person for the purposes of the special account (section 7(c)).

• Permissible debits / purposes (section 8). Amounts may be debited only for the listed purposes. There are six discrete purposes:

  1. disbursing amounts held on trust or otherwise for the benefit of persons other than the Commonwealth (section 8(1));
  2. disbursing amounts in connection with services performed for or on behalf of other governments and bodies, including Commonwealth entities (section 8(2));
  3. disbursing amounts in connection with joint activities performed for, on behalf of, or together with another Commonwealth entity, Commonwealth company, another government, organisation or person (section 8(3));
  4. disbursing amounts in connection with agreements between the Commonwealth and another government (section 8(4));
  5. repaying an amount where a court order, Act or other law requires or permits repayment (section 8(5)); and
  6. reducing the balance of the special account (and therefore the available appropriation) without making a real or notional payment (section 8(6)).

• Transitional transfer and opening balance (section 9). The opening balance must equal the balance of the previous SOETM special account immediately prior to commencement, and must be credited on establishment.

• Repeal of prior instrument (section 10). The Financial Management and Accountability Determination 2009/25 - Services for Other Entities and Trust Moneys - Foreign Affairs and Trade Special Account Establishment 2009 is repealed.

• Short-term textual repeals with continuing effect (section 11). Part 3 (transitional provisions) is to be repealed at the end of the seventh day after the SOETM instrument is repealed under section 10, and certain definitions in clause 4 will be repealed on that date; despite that textual repeal, Part 3’s effects are retained after repeal.

Two further technical points are embedded in the instrument’s drafting:

• Commencement is linked to a provision in the Act rather than given a concrete calendar date in the instrument itself (section 2(1)).
• The instrument explicitly contemplates and records amounts that are not payments in the traditional sense (section 8(6)), by permitting debiting to reduce the account balance as a way of reducing the available appropriation.

These concepts frame the permissible financial flows into and out of the DFAT SOETM Special Account 2019 and allocate responsibility for administration to the Secretary of DFAT.

Primary actors identified by the instrument are:

• The Secretary of DFAT, who is designated as the accountable authority for the special account (section 6). That person carries formal accountability under the Act for the account’s administration, including ensuring that debits and credits conform to the purposes and categories in sections 7 and 8.
• DFAT as an entity, since the account relates to DFAT’s Services for Other Entities and Trust Moneys functions (recital definitions and the name of the account) and the Secretary of DFAT is the accountable authority (sections 4 and 6).
• Persons other than the Commonwealth from or for whose benefit funds are held (section 7(1) and section 8(1)). These include any natural or legal person for whom moneys are held on trust or otherwise on their behalf. The instrument expressly contemplates disbursements to or for the benefit of such persons.
• Other governments, bodies and Commonwealth entities (section 8(2)-(4)). The purposes permit disbursements connected to services performed for or on behalf of other governments and bodies, joint activities with other Commonwealth entities or companies and agreements between the Commonwealth and other governments.
• Any person who provides monies to DFAT for the stated purposes (section 7(c)). The crediting rule is broad: amounts "received from any person for one or more purposes of the special account" may be credited.
• Entities or people with a legal right to repayment under a court order, Act or other law (section 8(5)), because the special account may be used to make such repayments.

Secondary or consequentially affected actors include:

• Parties to existing SOETM arrangements previously handled under the Financial Management and Accountability Determination 2009/25 (the SOETM instrument), because the instrument repeals that prior instrument (section 10) and transfers the prior account balance into the new account as the opening balance (section 9).
• DFAT financial and accounting staff, who must identify, record and apply the opening balance (section 9), manage credits under the three permitted categories (section 7), and authorise debits consistent with the six purposes (section 8).
• Auditors and parliamentary oversight bodies, to the extent the Act requires reporting and accountability from accountable authorities; the determination itself designates the accountable authority but does not set out reporting mechanics (section 6).

Who pays and who receives: the instrument does not create a new taxation or appropriation mechanism; rather, it governs flows of specific sums held on trust or paid to DFAT for designated purposes. Payments into the account will typically come from third parties (other governments, organisations, individuals) or from amounts held on trust. Disbursements will typically flow to those beneficiaries, to counterparties for joint or performed services, or as repayments where legally required. The Secretary of DFAT exercises administrative control over those flows as accountable authority (section 6).

The instrument sets out a small, circumscribed set of duties and operational rights tied to the special account. It does not, on its face, create a wide regulatory regime; rather it identifies permissible credits and debits and allocates accountability. The primary duties and rights are:

• Duty to administer the special account (section 6). The Secretary of DFAT is the accountable authority responsible for the special account. That designation triggers the Secretary’s duties under the Act to manage the account in accordance with the Act and this determination, though the instrument itself limits what may be credited and debited.

• Rights to credit funds (section 7). The instrument gives DFAT the right to accept and credit three classes of amounts into the special account:

  1. amounts held on trust or otherwise on behalf of or for the benefit of a person other than the Commonwealth (section 7(1));
  2. amounts received while performing functions related to one or more of the special account’s purposes (section 7(b)); and
  3. amounts received from any person for one or more purposes of the special account (section 7(c)). These are framed as permissive rights ("may be credited"), not mandatory obligations.

• Rights to debit amounts for specified purposes (section 8). The instrument authorises (permits) debits only for the six stated purposes. The instrument therefore restricts the Secretary’s discretion to debit only for those uses. Those uses include disbursement to beneficiaries, payment for services to or on behalf of other governments or bodies, joint activities, agreements with other governments, repayments required by law or order, and reduction of the special account balance without a payment.

• Duty to set and record the opening balance (section 9). The opening balance is required to be credited on the date of establishment, and is defined as the amount standing to the credit of the antecedent SOETM special account immediately prior to commencement (section 9(1)-(2). This creates a discrete administrative obligation to compute and credit that opening sum.

• Right to reduce the available appropriation by reducing the account balance without making a payment (section 8(6)). That clause explicitly links reduction of balance to a reduction in available appropriation for the account, while allowing that reduction to be effected without a "real or notional payment." The instrument thereby authorises a non-payment mechanism to affect appropriation outcomes.

• Transitional duties arising from repeal (sections 10-11). The instrument repeals the antecedent SOETM instrument (section 10) and contains transitional drafting to repeal Part 3 and certain definitions shortly after repeal, while preserving the continuing effects of Part 3 (section 11). Administering the transition requires DFAT to implement the repeal and to ensure the effects of Part 3 continue in practice despite textual repeal (section 11(3)).

Rights and duties not specified in the instrument:

• The instrument does not itself set out internal approval processes, signatory authorities, record-keeping standards, or reporting timetables. Those matters will be governed by the Act and supporting guidance, or by DFAT’s internal financial rules. The instrument designates the accountable authority and sets the financial boundaries; it does not prescribe procedural steps beyond the opening balance requirement or the categories of credits and debits.

In short, the instrument confines the Secretary’s duties to administering a narrowly circumscribed special account by crediting eligible receipts, debiting for stated purposes, establishing the correct opening balance, and managing the transition from the previous SOETM instrument. It grants the right to hold and use those funds subject to the categories set out in sections 7 and 8.

The instrument itself does not create specific offence provisions, monetary penalties, civil sanctions or an independent enforcement regime. It is a determination made under subsections 78(1) and 78(3) of the Act and therefore functions as a statutory instrument establishing and defining a special account. Relevant enforcement and penalty mechanisms will be those provided by the Act and any regulations, administrative frameworks or general Commonwealth financial management regimes that apply to accountable authorities.

What the instrument does supply in relation to enforcement and compliance is structural:

• It designates the accountable authority (section 6). Under the Act, accountable authorities have statutory duties and associated consequences for non-compliance; this instrument assigns that statutory accountability to the Secretary of DFAT for this special account. The instrument itself, however, does not specify the sanctioning measures,that will be governed by the Act and its enforcement provisions.

• It limits permissible transactions (sections 7 and 8). The instrument narrows what may be credited and debited. As a legal constraint on use of Public Money under the Act, any misuse (for example debiting for purposes outside section 8) would be a breach of the Act’s framework and may attract administrative or legal consequences under the Act. The instrument does not list penalties; it sets boundaries whose breach would implicate the Act.

• It provides for repayments where a court order, Act or other law requires or permits repayment (section 8(5)). This limb recognises legal obligations to repay funds and authorises the special account to discharge those legal obligations. Enforcement in that context derives from the underlying legal instrument or court process giving rise to the repayment, not from the determination itself.

• Transitional repeal and preservation (section 11). The instrument provides for textual repeal of Part 3 and deletion of certain definitions, but simultaneously preserves Part 3’s effects. This design reduces the operational risk that the repeal will create legal uncertainty during transition, but the instrument provides no enforcement detail.

Practical enforcement and penalty implications therefore depend on the Act’s machinery. The instrument is a component of that machinery: it prescribes what must be done and who is responsible, while the Act provides the enforcement framework for enforcement against accountable authorities, including potential administrative sanctions and reporting obligations. The text of the instrument does not itself create new criminal or civil offences or specify pecuniary penalties.

The instrument is expressly made under subsections 78(1) and 78(3) of the Public Governance, Performance and Accountability Act 2013 (the Act) (section 3). It therefore functions within the PGPA Act’s statutory framework for special accounts. The instrument references and interoperates with other legal categories and a prior instrument in the following ways:

• PGPA Act: The instrument implements the items required by subsection 78(1) of the Act (establishment, credits, debits/purposes, accountable authority) and exercises the power in subsection 78(3) to repeal an earlier determination (section 3 and repeated references in the substantive provisions). The instrument’s structure and content reflect the PGPA Act’s special-account architecture. While the instrument repeats the statutory phrase "For subsection 78(1)(...)" in multiple provisions, it does not reproduce the text of those subsections; it operates as a specification in the form the Act contemplates.

• Prior SOETM instrument: Section 10 expressly repeals the Financial Management and Accountability Determination 2009/25 - Services for Other Entities and Trust Moneys - Foreign Affairs and Trade Special Account Establishment 2009 (the SOETM instrument). Section 9 ensures continuity by requiring the opening balance of the new special account to be the amount previously standing to the credit of the SOETM special account immediately prior to commencement. This creates a direct legal and financial continuity between the previous determination under the Financial Management and Accountability framework and the new determination under the PGPA Act.

• Court orders and other laws requiring repayment: Section 8(5) indicates the special account may be used to repay amounts where "a court order, Act or other law requires or permits the repayment of an amount received." That clause explicitly links the special account’s operations to obligations created by other statutes or judicial processes; the instrument authorises the special account to discharge such obligations.

• Agreements and international arrangements: Sections 8(2)-(4) permit disbursements in connection with services performed for other governments and bodies, joint activities with other Commonwealth entities or companies, and agreements between the Commonwealth and another government. These provisions recognise that funds credited to the account will often be used to perform functions that intersect with contractual or international arrangements. The instrument does not itself create or regulate those contracts or treaties; rather it provides a mechanism for receiving and disbursing money associated with them.

• Accounting and appropriation interactions: Section 8(6) permits reducing the balance of the special account "and, therefore, the available appropriation for the special account" without making a real or notional payment. This clause explicitly connects the special account’s balance to appropriation available under the Act and suggests an interoperation between special-account bookkeeping and appropriation arithmetic. The instrument itself does not set appropriation rules beyond this linkage; the broader appropriation rules will remain those contained in the Act and relevant appropriation legislation.

• Definitions and transitional repeal mechanics: Section 11 provides that certain definitions in clause 4 will be repealed on the date of repeal but that Part 3’s effects will remain in force. This creates a textual interaction between the instrument and the legal record,some definitions are removed from the instrument’s text while their effects are preserved,so the practical legal effect must be read across the instrument and the Act.

In sum, the determination is an implementing instrument within the PGPA Act framework. It replaces an earlier determination made under a prior Financial Management and Accountability scheme, carries forward the existing account balance, and provides narrow rules for receipt and expenditure of funds linked to DFAT’s SOETM functions. The instrument’s interactions with other laws are principally continuity with the repealed instrument, recognition of obligations under other laws and court orders, and a structural linkage to appropriation outcomes under the Act.

The instrument itself contains only its original provisions as enacted in the text provided and does not display any subsequent amendments or version annotations within the supplied document. The document records the date it was made (7 August 2019) and the Minister who made it (MATHIAS HUBERT PAUL CORMANN). The instrument also expressly repeals an earlier instrument (the SOETM instrument, Financial Management and Accountability Determination 2009/25) (section 10).

Two internal temporal mechanics relevant to amendment and textual lifecycle are included:

• Commencement is tied to paragraph 79(5)(a) of the Act rather than to a particular calendar date; section 2(1) places commencement on "the day mentioned in paragraph 79(5)(a) of the Act." Any later amendment would need to account for that commencement link and the Act’s provisions that define that day.
• Part 3 is drafted to be repealed at the end of the seventh day after the SOETM instrument is repealed under section 10 (section 11(1)). Section 11(2) schedules further deletions of certain definitions on the date of repeal. Section 11(3) then preserves the effects of Part 3 despite the textual repeal. These provisions create an internal lifecycle designed for short-term textual repeal but continuing substantive effect. In practice, that means the instrument’s Part 3 is intended to be a temporary textual insertion whose substantive effects survive the textual deletion.

No further amendments, variation orders, instrument successors, or revocations are recorded in the supplied text. Because the instrument has sweeping repeal of the antecedent SOETM instrument and specific transitional deletion mechanics, any later amendment history would be recorded in official legislative updates on the Federal Register of Legislation; the version supplied to this analysis contains the instrument as made in 2019 with the transitional repeal design.

For users relying on the instrument, two practical considerations follow from the text:

1. Verify the commencement date by reference to the Act’s paragraph 79(5)(a) and any Government notices, because the instrument does not state a calendar commencement date (section 2).
2. Check the Federal Register of Legislation for subsequent versions or repeal actions because the instrument contemplates textual deletions and the repeal of the antecedent SOETM instrument; subsequent administrative action could have effected further changes after the date of the instrument as made.

This instrument’s own text provides no record of later amendment; therefore any later changes must be checked in the public legislative record.

The instrument contains no litigation history, case citations, or references to judicial interpretation. The text does, however, expressly anticipate one avenue that could interact with litigation: section 8(5) permits debiting the special account "to repay an amount where a court order, Act or other law requires or permits the repayment of an amount received." That clause recognises that legal processes may require repayments and that the special account is authorised to make such repayments.

Because the instrument is an administrative financial determination rather than substantive law in areas commonly litigated (for example, criminal law or administrative review), it is unsurprising that the instrument itself does not include litigation references. Any litigation that would engage this instrument would likely concern one of the following factual or legal questions:

• Whether a particular receipt or payment fits within the instrument’s permitted categories (sections 7 and 8). Disputes may arise, for example, about whether certain monies are properly "held on trust" for someone other than the Commonwealth, or whether a proposed debit is "in connection with services performed for or on behalf of other governments and bodies" (sections 7(1) and 8(2)).
• Whether the opening balance was correctly computed and credited from the antecedent SOETM special account (section 9).
• Whether a repayment obligation under a court order or other law is correctly discharged by the special account (section 8(5)).
• Whether the Secretary (as the accountable authority) complied with duties under the Act in administering the special account; such proceedings would be brought under the Act’s enforcement or review mechanisms rather than under the instrument itself (section 6).

The instrument does not itself establish dispute resolution processes or judicial review mechanisms; those are supplied by the Act and general administrative law.

For counsel or compliance officers, the practical implication is to treat the instrument’s provisions as functional accounting boundaries subject to judicial or administrative challenge where action departs from the permitted categories. Any litigation would need to be pursued in the usual courts or forums addressing compliance with the Act, and would require analysis of whether particular transactions fell within the determinative categories set out in sections 7 and 8.

The instrument is concise, but its drafting contains several features that warrant attention because they can create operational or legal pitfalls if overlooked:

1. Commencement is indirect (section 2). The instrument does not specify a calendar commencement date; commencement is tied to paragraph 79(5)(a) of the Act. Practitioners must confirm the actual commencement date by reference to the Act and any Government notices. Relying on the instrument’s date of signature alone could be misleading.

2. Opening balance requires contemporaneous reference to the prior account (section 9). The opening balance is defined as "the amount standing to the credit of the SOETM special account immediately prior to the commencement date." That requires DFAT to identify the precise balance at a specified moment in time. Timing, accounting cut-offs and any unclear transactions around the transition date could lead to disputes about the correct opening figure.

3. Part 3 textual repeal with preserved effects (section 11). Part 3 is to be repealed shortly after the repeal of the antecedent instrument and certain definitions will be deleted, yet clause 11(3) preserves the effects of Part 3 after repeal. This drafting choice means that although the textual provisions may be removed from the instrument, their operational consequences are intended to survive. That can confuse readers and record-keeping if the published versions diverge; users must read the instrument and the register notes carefully.

4. Broad crediting power (section 7(c)). The instrument permits crediting of "an amount received from any person for one or more purposes of the special account." That is a broad catch-all. DFAT must ensure proper legal characterisation of receipts , especially where funds are labelled "donations" or "fees" , to confirm they fit a permitted category. Misclassification risks infringing the Act’s requirements.

5. "Held on trust" language (section 7(1) and 8(1)). Amounts "held on trust, or otherwise on behalf of or for the benefit of a person other than the Commonwealth" are treated as appropriate receipts and disbursement purposes. The phrase "or otherwise on behalf of" broadens the legal concept beyond formal trust relationships and means that funds where DFAT is simply holding money for a person may fall within the account. That raises practical questions about fiduciary duties, custodial responsibilities and appropriate accounting.

6. Reduction of balance without payment (section 8(6)). Clause 8(6) permits reducing the account balance "and, therefore, the available appropriation for the special account" without a real or notional payment. That is an accounting mechanism that affects appropriation outcomes. Users must understand the mechanics and legal basis for any such reduction and ensure it aligns with appropriation rules under the Act.

7. Narrowness of permissible debits (section 8). The instrument lists six purposes for debits. Any use of account funds outside those purposes would not be authorised by the instrument and may contravene the Act. Practically, DFAT must ensure that proposed disbursements can be clearly mapped to one of those limbs.

8. Repeal of the antecedent instrument (section 10). Practitioners engaged with pre-existing SOETM arrangements must check how contractual or trust obligations under the prior instrument are transitioned; the instrument provides for transfer of the account balance but does not explicitly re-state or novate previous contractual obligations.

9. No procedural prescriptions in the instrument. The instrument sets boundaries but is silent on approval layers, delegation, audit schedules or reporting formats. Those obligations will arise from the Act and DFAT’s internal governance. Failure to align internal processes with the instrument’s financial constraints may cause compliance breaches.

10. Ambiguity about what qualifies as "services performed" or "joint activities" (sections 7(b), 8(2)-(3)). These labels are functional rather than definitional. Each proposed debit will require legal and factual analysis to ensure it is "in connection with" or "performed for" an authorised actor.

Attention to these points will reduce the risk of administrative error, regulatory non-compliance, or disputes arising from the special account’s operation.

Compliance with the instrument involves a combination of legal characterisation of funds, accurate accounting, adherence to the specified purposes, and operational controls. The instrument itself prescribes limited, discrete requirements; the remainder of compliance will flow from the Act and DFAT’s own financial governance. Recommended practical steps grounded in the instrument’s provisions are as follows:

1. Confirm commencement date (section 2). Before taking any action treat the commencement as the day stated in paragraph 79(5)(a) of the Act. Verify that commencement date against the Act and any public notices. Do not assume the instrument’s signature date is the commencement date.

2. Compute and credit the opening balance on establishment (section 9). Identify the balance standing to the credit of the antecedent SOETM special account immediately prior to the commencement date and credit that exact amount to the new DFAT SOETM Special Account 2019 on establishment. Ensure reconciliation files, cut-off ledgers and bank records support the figure.

3. Map incoming funds to the authorised credit categories (section 7). For each receipt, document the legal basis that places it into one of the three permitted credit classes:

   • amounts held on trust or otherwise on behalf of non-Commonwealth persons (section 7(1));
   • amounts received in the course of performing functions related to the special account’s purposes (section 7(b)); or
   • amounts received from any person for one or more purposes of the special account (section 7(c)). Retain source documents and legal advice where classification is unclear.

4. Ensure every proposed debit aligns with a section 8 purpose. For each disbursement, create a short legal-factual memo mapping the transaction to one of the six purposes in section 8:

   • disbursement to beneficiaries (section 8(1));
   • services for or on behalf of other governments and bodies (section 8(2));
   • joint activities with other entities (section 8(3));
   • agreements with other governments (section 8(4));
   • repayments required by law or order (section 8(5)); or
   • reduction of the account balance without a payment (section 8(6). Do not debit the account for purposes outside these categories.

5. Operationalise the "reduce balance without payment" mechanism carefully (section 8(6)). If DFAT proposes to use the non-payment reduction power, document the legal and accounting impulse for doing so, the intended effect on available appropriation, and the internal approvals and financial system entries that will record the reduction. Coordinate with appropriation and budget teams to ensure the appropriation outcomes are correctly reflected.

6. Maintain segregation and fiduciary handling for trust-like moneys (sections 7(1) and 8(1)). Where funds are held on trust or otherwise on behalf of third parties, ensure clear records of beneficiary entitlements, restrictions on use, and any conditions attached. Implement custodial controls guarding against improper appropriation of trust funds.

7. Integrate the instrument’s constraints into DFAT’s financial delegations and policies (sections 6, 7, 8). Update internal delegations, approval matrices, and accounting procedures to reflect that the Secretary is the accountable authority and that only the listed credits and debits are permissible. Ensure staff responsible for receipts and payments are trained on the permitted categories.

8. Reconcile continuity from the repealed instrument (sections 9 and 10). For contractual or trust obligations under the repealed SOETM instrument, prepare a migration checklist: confirm the opening balance transfer, check whether contractual undertakings remain enforceable, and obtain legal advice on whether novation or notice to counterparties is necessary.

9. Document legal obligations to repay (section 8(5)). For any amounts subject to court orders, statutes or other laws requiring repayment, maintain a register of such obligations and ensure repayments through the special account are authorised and recorded.

10. Preserve audit trails and prepare for oversight. Although the instrument does not set reporting specifics, the Secretary is the accountable authority (section 6) and will be subject to the Act’s general accountability regimes. Keep detailed ledgers, transaction approvals, legal mappings and reconciliations to support audits and parliamentary scrutiny.

11. Monitor Federal Register of Legislation for textual changes (section 2 and section 11). Because the instrument ties commencement and contains scheduled textual deletions, confirm that the published instrument on the Federal Register reflects the operative text and that no further amendments or repeals have been made.

12. Seek legal advice when in doubt. Transactions at the boundaries of the instrument’s categories (for example, mixed-purpose receipts or cross-border service arrangements) should be cleared with legal counsel and documented with a short justification that anchors the classification in the relevant clause of the instrument.

By following these steps, DFAT will align operational practice with the instrument’s limited but strict financial boundaries: correct opening balance, authorised credits, authorised debits, and accountable authority responsibility.