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Commonwealth Coat of Arms

PGPA Act Determination (Enforcement Special Account 2016) — Establishment

I, MATHIAS HUBERT PAUL CORMANN, Minister for Finance, make this determination.

_______________________________________

MATHIAS HUBERT PAUL CORMANN

Minister for Finance

Dated: 23 / 08 / 2016

Part 1 - Establishment

1 Name

This instrument is the PGPA Act Determination (Enforcement Special Account 2016) — Establishment.

Note: All special account determinations and compilations are registered on the Federal Register of Legislation (FRL) kept under the Legislation Act 2003. See http://www.legislation.gov.au.

2 Commencement

This instrument commences on the day provided for by paragraph 79(5)(a) of the PGPA Act.

Note 1: Subsection 79(5) of the PGPA Act provides that a special account determination comes into effect on the day immediately after the last day on which it could have been disallowed by the Parliament, or on a later day if specified in the determination.

Note 2: Subsection 50(1) of the Legislation Act 2003 provides that a legislative instrument is repealed automatically on the first of 1 April or 1 October ten years after being registered on the FRL. Consistent with the Legislation Act 2003, this instrument ceases to have effect on 1 October 2026.

3 Authority

This instrument is made under subsection 78(1) of the PGPA Act.

4 Definitions

In this instrument:

ASIC has the same meaning as in the Australian Securities and Investments Commission Act 2001.

PGPA Act means the Public Governance, Performance and Accountability Act 2013.

relevant Minister means a Minister who administers the Corporations Act 2001 or the Australian Securities and Investments Commission Act 2001.

significant public interest a suspected breach of a law is of significant public interest if it relates to a breach, or a class of breaches, determined in writing by the accountable authority of the ASIC.

5 Establishment

For the purposes of paragraph 78(1)(a) of the PGPA Act, a special account is established with the name Enforcement Special Account 2016 (the special account).

6 Credits to the special account

For the purposes of paragraph 78(1)(b) of the PGPA Act, amounts equal to the following are allowed to be credited to the special account:

(a) amounts received in the course of the performance of functions that relate to the purposes of the special account;
(b) an amount received from any person for the purposes of this special account;
(c) amounts debited from the Enforcement Special Account, established by the Financial Management and Accountability Determination 2006/31 – Enforcement Special Account Establishment 2006.

Note 1: The Appropriation Acts may provide that if any of the purposes of a special account are covered by an item in an Appropriation Act (whether or not the item refers to the special account), then amounts may be debited against the appropriation for that item and credited to the special account.

Note 2: Where an amount equal to an amount debited from a special account is repaid, the amount may be credited to the special account, refer to paragraph 74(1)(b) of the PGPA Act and subsection 27(5) of the Public Governance, Performance and Accountability Rule 2014.

7 Purposes of the special account

For the purposes of paragraph 78(1)(c) of the PGPA Act, amounts standing to the credit of the special account are allowed to be debited for the following purposes:

(a) to make payments to investigate and/or bring legal or administrative proceedings in the exercise of ASIC’s functions and powers, in relation to suspected breaches that are of significant public interest, including but not limited to breaches of:
(i) the Corporations Act 2001; and
(ii) the Australian Securities and Investments Commission Act 2001.

(b) to make payments in relation to court costs which may be awarded against ASIC arising out of any such investigations or proceedings;

(c) to make payments of any other amounts for which ASIC may be liable, arising out of any proceedings or investigations, or anticipated proceedings or investigations, mentioned in paragraph (a) or (b), including as a result of agreements made in relation to these proceedings;

(d) to disburse or repay amounts in relation to incidental activities;

(e) to reduce the balance of the special account (and, therefore, the available appropriation) without making a real or notional payment;

(f) to repay, as required by law, amounts that have been credited to the special account.

Note 1: Subsection 78(4) of the PGPA Act appropriates the Consolidated Revenue Fund for expenditure for the purposes of the special account, up to the balance of the special account at the time of payment.

Note 2: An amount may be debited from the special account:

Note: (a) for the purpose of paragraph 7(d), for the administration of the special account and for dealing with direct and indirect costs in relation to administering the special account; or

Note: (b) for the purpose of paragraph 7(e), to allow for the balance of the special account to be reduced, with no payment or credit available to another party, account or appropriation; or

Note: (c) where that amount has been incorrectly credited by virtue of a clerical mistake or exercise of a discretion based on a fundamental mistake of fact or law (legal advice on the mistaken fact or law should be obtained before an amount is debited on this basis).

8 Accountable authority

For the purposes of paragraph 78(1)(d) of the PGPA Act, the accountable authority responsible for the special account is the Chairperson of the ASIC.

Part 2 – Transitional Variation

Subsection 5(1) of the Financial Management and Accountability Determination 2006/31 — Enforcement Special Account Establishment 2006 is varied by adding at the end:

; and (g) credit amounts to the Enforcement Special Account 2016.