PGPA Act Determination (Establishment of ICT Coordinated Procurement Special Account 2017)

Special account: The instrument creates a "special account" as contemplated by the Act (s 5). The text uses the defined term "the special account" to refer specifically to the ICT Coordinated Procurement Special Account 2017 (s 1; s 5). The special account is a designated repository for monies that are to be applied to a closed list of purposes.

Crediting classes: Section 6 sets out three discrete categories of receipts that may be credited to the account. The first is receipts "in the course of the performance of functions that relate to the purposes of the special account" (s 6(a)). The second is any amounts received from any person for the purposes of the special account (s 6(b)). The third is amounts debited from the earlier Coordinated Procurement Contracting Special Account for the purpose of transfer to the new account (s 6(c)). The instrument expressly notes that the earlier account is the special account established by Financial Management and Accountability Determination 2008/08 (note to s 6).

Purposes and authorised debits: Section 7 is the operative list of what the special account may fund. It enumerates primary procurement functions: planning and conducting whole-of-government ICT supply tenders; managing whole-of-government ICT supply contracts; providing coordinated procurement assistance to Commonwealth entities; and monitoring and reviewing ICT coordinated procurement performance by Commonwealth entities (s 7). It also authorises incidental activities necessary to those primary functions, explicitly listing administration of the special account itself and dealing with direct and indirect costs. Two additional kinds of debits are authorised: reducing the balance of the special account without making a real or notional payment, and repaying amounts where legislation or other law requires or permits repayment (s 7(c)-(d)).

Transitional linkage to prior account: The instrument modifies the Coordinated Procurement Contracting Special Account Establishment 2008 by inserting a new subsection entitlement to credit amounts to the ICT Coordinated Procurement Special Account 2017 (s 8). Practically, that creates an explicit legal path for transfers from the old account to the new.

Accountability: The instrument designates the accountable authority for the special account as the Chief Executive Officer of the Digital Transformation Agency (s 9). The instrument is made under subsections 78(1) and 78(3) of the Act (s 3), tying its legal form to the Act’s special-account framework. Commencement is also linked to paragraph 79(5)(a) of the Act (s 2(1)).

Definitions: The instrument contains short-form definitions: "Act" means the Public Governance, Performance and Accountability Act 2013; "Australian Government ICT coordinated procurement contracts" means whole of government ICT procurement arrangements; "ICT" means information and communications technology; and "Commonwealth entity" is defined by reference to the Act (s 4). These definitions limit the textual scope of the account’s purposes and permitted credits.

Administrative mechanics: The instrument contemplates both ordinary operational debits for procurement administration and formal bookkeeping operations, such as balance reduction without payment (s 7(c)). It recognises the need to repay monies when required by law (s 7(d)). The instrument does not contain operational details such as budgeting processes, internal authorisation levels, or reporting timetables; those are left implicit in the special-account mechanism under the Act.

Accountable authority and the DTA: The instrument assigns responsibility to the Chief Executive Officer of the Digital Transformation Agency (s 9). That person, and the DTA as the employing entity, will be the central decision-makers for the account’s operation in practice. The CEO’s role covers approval of debits from the account consistent with the stated purposes. The instrument does not list subordinate roles, but the accountable authority is the primary administrative actor under the instrument.

Commonwealth entities: The special account explicitly contemplates interaction with "Commonwealth entities" through the delivery of coordinated procurement assistance and performance monitoring (s 7). Those entities will be recipients of coordinated procurement services, and they are potential sources of activity that generates amounts creditable to the account,since s 6(a) allows amounts received in the course of performing functions related to the account’s purposes, and s 6(b) allows amounts received from any person for the purposes of the account.

Suppliers and other private persons: The instrument allows amounts to be credited from "any person" to the special account (s 6(b)). That creates a legal path for suppliers, contractors, service providers, or other third parties to contribute or pay amounts into the account. The text does not state whether such contributions are mandatory or voluntary, or the manner in which they are to be levied; it simply authorises the receipt and crediting of amounts from any person.

Existing coordinated procurement account and staff: The instrument amends the Financial Management and Accountability Determination 2008/08, which established the Coordinated Procurement Contracting Special Account, to permit the older account to credit amounts to the new ICT Coordinated Procurement Special Account 2017 (s 8). That establishes a migration path for funds, and therefore potentially for ongoing programs, staff costs, or contractual obligations that were previously funded from the 2008 account.

Financial stakeholders: The Commonwealth’s consolidated budgetary and appropriation frameworks will be affected to the extent that the special account’s balance and authorised debits alter available appropriations. The instrument authorises an explicit bookkeeping mechanism to reduce the account balance without an actual payment (s 7(c)), which changes how available appropriation is reflected and managed. Treasury or responsible finance officers within the DTA will need to account for these movements.

No direct private-law rights: The instrument does not establish private enforceable rights in third parties nor does it create obligations on private-sector suppliers beyond permitting crediting from "any person" (s 6(b)). It instead creates public-administration authorities and fiscal mechanics that alter how public funds for whole-of-government ICT procurement are collected and spent.

Citizens and end users: Indirectly affected parties include government agencies’ end users and taxpayers, because the special account centralises funding for whole-of-government ICT procurement activities (s 7). The instrument does not set pricing, service levels, or procurement terms, but such operational outcomes may follow from the account’s financing of coordinated procurement activity.

Rights to receive and spend monies: The instrument confers the right on the special account to receive and hold monies that fall within the classes listed in s 6. In particular, the account may be credited with receipts arising from performance of related functions (s 6(a)); amounts from any person for the account’s purposes (s 6(b)); and amounts transferred from the existing Coordinated Procurement Contracting Special Account (s 6(c)). Those credited amounts become funds available for authorised debits under s 7.

Authorised uses (duties of expenditure): Section 7 specifies the purposes for which amounts may be debited from the account. Those are framed as duties or functions to be undertaken by the accountable authority or those acting under the authority’s direction:

• planning and conducting whole-of-government ICT supply tenders (s 7);
• managing whole-of-government ICT supply contracts (s 7);
• providing ICT coordinated procurement assistance to Commonwealth entities (s 7);
• monitoring and reviewing ICT coordinated procurement performance by Commonwealth entities (s 7).

Incidental activities: Section 7 expressly authorises spending on activities incidental to the primary procurement functions. It lists at least administration of the special account and dealing with direct and indirect costs as examples of incidental activities. The inclusion of incidental powers permits necessary administrative and overhead expenditure to support the primary functions.

Balance management and repayments: The account may be debited to reduce the balance without a real or notional payment (s 7(c)). That is an express bookkeeping capability to reduce the available appropriation associated with the account. Additionally, the account may be debited to repay amounts where an Act or other law requires or permits repayment of an amount received (s 7(d)). These provisions create duties to manage account balances in line with statutory requirements and to make repayments mandated by law.

Accountability: The instrument nominates the Chief Executive Officer of the Digital Transformation Agency as the accountable authority for the special account (s 9). That designation imposes the governance obligation that the accountable authority is the decision-maker responsible for the account’s operation. The instrument is made under subsections 78(1) and 78(3) of the Act (s 3), signalling that the account operates within the Act’s special-account governance framework. While the instrument does not set out reporting or compliance rules, designation of an accountable authority typically signals central responsibility for ensuring proper use of the funds.

Amendment duty on prior determination: The instrument amends the earlier 2008 Determination so that subsection 5(1) of that Determination is to include a new paragraph authorising crediting amounts to the ICT Coordinated Procurement Special Account 2017 (s 8). That creates an inter-account obligation or mechanism to transfer funds and aligns the treatment of the old coordinated procurement account with this new account.

Limits and scope: The instrument’s duties and rights are bounded by its definitions. For example, "Australian Government ICT coordinated procurement contracts" is defined as whole-of-government ICT procurement arrangements and "ICT" is defined as information and communications technology (s 4). The account’s spending must be for the stated purposes; there is no express delegation of unlimited spending discretion beyond those purposes and incidental activities.

No penalty powers in the instrument: The instrument does not create criminal sanctions, civil penalties or administrative fines. It confers powers to receive and to debit funds and assigns accountability, but it does not itself create enforcement mechanisms such as fines or offences.

No express sanctions in this instrument: The determination contains no provisions creating offences, civil penalties, administrative penalties, or pecuniary sanctions. It exclusively sets up a financial vehicle (the special account), specifies permitted credits and debits, amends an earlier special-account determination, and nominates an accountable authority (ss 5-9). There is no textual basis in this instrument for imposing fines, penalties, or prosecutorial measures.

Enforcement context is the Act: The instrument is made under subsections 78(1) and 78(3) of the Act (s 3) and refers repeatedly to the Act for the legal basis of special-account establishment, permitted credits and debits, and accountable authority assignment (see ss 5-9). That linkage means that any regulatory or governance enforcement applicable to special accounts under the Act would apply by operation of the Act rather than by this instrument. The determination itself does not restate or expand those enforcement measures.

Accountable authority obligations: The instrument designates the CEO of the Digital Transformation Agency as accountable authority for the special account (s 9). While the instrument does not elaborate on the CEO’s compliance obligations, naming an accountable authority places operational responsibility and ordinarily engages the governance and accountability expectations that attach to such a designation under the Act. The instrument does not define disciplinary procedures, reporting requirements, audit rights, or enforcement remedies; those mechanisms, if any, must be sought in the Act or in other applicable administrative instruments.

Repayments required by other laws: Section 7(d) permits debits from the special account to repay amounts where an Act or other law requires or permits a repayment. That creates an intersection between statutory repayment obligations and the special account’s funds. The instrument enables execution of repayment obligations, but it does not itself prescribe penalties for failing to repay; such remedies would arise from the law that creates the repayment obligation.

Practical enforcement actors: The instrument implies that finance officers and the DTA as the accountable entity will enforce the permitted uses through internal controls and authorisations. External oversight likely would come from bodies identified under the Act (not restated in this instrument), auditors, or parliamentary appropriation processes. These mechanisms are not specified in the instrument.

No express judicial enforcement route for third parties: The instrument does not create a private right of action for third parties to enforce particular uses or receipts. It is a fiscal instrument enabling specified credits and uses; enforcement of improper use would be pursued through applicable public governance and accountability mechanisms rather than through rights conferred by this determination itself.

The Act: The instrument is expressly made under subsections 78(1) and 78(3) of the Public Governance, Performance and Accountability Act 2013 (s 3). Sections 5-9 of the instrument repeatedly reference paragraph 78(1)(a)-(d) and paragraph 78(1)(b)-(c) as the statutory hooks for establishing a special account, specifying credits and specifying permissible debits (ss 5-7, 9). Commencement is tied to paragraph 79(5)(a) of the Act (s 2(1)). The instrument therefore operates as an implementation measure under the Act’s special-account framework; the detailed governance and enforcement mechanisms that apply to special accounts under the Act are not restated in the instrument but form the legal context into which this account is placed.

Financial Management and Accountability Determination 2008/08: The instrument amends the earlier Determination that originally established the Coordinated Procurement Contracting Special Account by inserting a new entitlement in subsection 5(1) permitting credits to the ICT Coordinated Procurement Special Account 2017 (s 8). The effect is to create an explicit legal means to debit funds from the older coordinated procurement account for the purpose of crediting them to the new account. The instrument also contains an explanatory note identifying that the Coordinated Procurement Contracting Special Account mentioned in s 6 is the account created by the 2008 Determination (note to s 6). No further interaction clauses are inserted; the older instrument’s other provisions remain unchanged except for that insertion.

Repayment and other statutory obligations: Section 7(d) authorises debits to the special account to repay amounts when an Act or other law requires or permits repayment. That creates an explicit point of interaction: if another statute or instrument imposes a repayment obligation, the special account may be the funding source for executing that obligation. The instrument does not identify which Acts may generate such obligations; it simply provides the funding mechanism where such obligations exist.

Definitions cross-reference: The instrument defines "Commonwealth entity" by reference to the Act (s 4). This cross-reference means that entities designated as Commonwealth entities under the Act are the entities with which the special account’s functions (assistance, monitoring, and review) are intended to interact (s 7).

Commencement linkage: The instrument’s commencement clause depends on paragraph 79(5)(a) of the Act (s 2(1)). That external dependence means the effective date of the establishment and the practical operation of the account is governed in part by timing rules in the Act.

No substitution of procurement law or contract terms: The instrument authorises administration of whole-of-government ICT procurement activity and management of contracts (s 7), but it does not itself alter the terms of procurement law, procurement policies or individual contracts. Those legal frameworks remain in force, and the instrument functions as a funding and administration vehicle that can be used in support of coordinated procurement activity.

Federal Register of Legislation and publication: Section 2(2) notes that information in column 3 of the commencement table is not part of the instrument and may be edited on the Federal Register of Legislation. That makes explicit the instrument’s interaction with the public record and clarifies that certain textual content may be explanatory rather than operative.

This instrument is the PGPA Act Determination (Establishment of ICT Coordinated Procurement Special Account 2017) and is dated 6 June 2017 (front matter). The instrument itself effects a narrow amendment of a prior instrument and does not record any amendments of itself. The amendment actions are these:

1. Creation and amendment action: The determination establishes a new special account (s 5) and, by s 8, varies the Financial Management and Accountability Determination 2008/08 , Coordinated Procurement Contracting Special Account Establishment 2008, by inserting in subsection 5(1) a new paragraph (g) authorising crediting amounts to the ICT Coordinated Procurement Special Account 2017. The amendment is therefore twofold in effect: it establishes a new account and adjusts the old account to permit transfers into it.

2. Commencement detail: Section 2(1) states the commencement timing is "the day mentioned in paragraph 79(5)(a) of the Act as the day on which a determination made under subsections 78(1) and 78(3) of that Act takes effect." The instrument thereby anchors its own coming into force to a provision of the Act. It does not provide an explicit calendar date in the instrument text; the effective date depends on the Act’s mechanism.

3. No later amendments recorded in instrument: The text supplied contains no later amendments to the 2017 determination itself. It also does not record any earlier versions of this 2017 instrument; the instrument appears to be the establishing document for the account in 2017.

4. Note on editorial content: Section 2(2) permits the insertion or editing of information in column 3 of the commencement table on the Federal Register of Legislation without that information forming part of the instrument. That means that publicly displayed versions of the instrument could include editorial material (such as explanatory commencement dates) that is not legally operative.

5. Prior instrument: The amendment history in the instrument necessarily connects to the existence of Financial Management and Accountability Determination 2008/08. The 2017 instrument modifies that earlier instrument at subsection 5(1) by adding paragraph (g). The 2008 Determination therefore forms the immediate predecessor instrument that is being varied.

6. No recorded retrospective amendments or transitional savings beyond s 8: The instrument contains no further saving clauses, transitional provisions, or express retrospective effect other than the commencement mechanism in s 2(1). The only transitional vehicle expressly provided is the power for the 2008 Determination to credit amounts to the new account (s 8), facilitating fund transfers.

If future amendments are made to either this 2017 determination or to the 2008 Determination, such amendments would appear in later versions on the Federal Register of Legislation; the instrument itself anticipates editorial changes to the public record but does not itself record subsequent variations.

The instrument text supplied contains no reference to litigation, disputes, judicial review, precedent, or case law. It does not mention any court challenges to the establishment of the special account or to the amendment of the 2008 Determination. There are no named cases, no citations to judicial decisions, and no recounting of past litigation involving the instrument.

Because the instrument operates as a statutory financial determination under the Act (s 3), any challenge to actions taken under it would be brought against the underlying statutory powers provided by the Act and potentially the particular administrative acts of the accountable authority. However, this document itself does not report litigation nor record any historical disputes.

In practical terms, based solely on the instrument text:

• There is no litigation history recorded in this instrument;
• No judicial interpretations of its provisions are provided;
• No settled lines of case law are cited or discussed.

Those seeking to know whether any proceedings have arisen from the operation of this special account would need to consult external legal databases, court records, or administrative law reviews for material occurring after the instrument’s creation. The instrument itself contains no litigation narrative.

Wording of crediting permission: Section 6 authorises that "amounts up to and equal to the following may be credited to the special account" and then lists three categories (s 6). The wording can be misunderstood. It does not specify quantitative caps or numerical limits. Practically, the phrase identifies authorised classes of receipts, not a ceiling; however, users should note that the instrument authorises only amounts falling within those classes to be credited. A finance officer should ensure that any proposed credit fits one of the enumerated categories (s 6(a)-(c)) before applying it to the account.

"Any person" as a source: Section 6(b) permits amounts "received from any person for the purposes of the special account." That is broad language. It allows the account to accept monies from private persons and entities as well as other public bodies. The scope is wide but the instrument places no procedural constraints or fee-setting rules on such receipts. Practitioners should not assume that such receipts are automatically lawful in any particular case: their acceptance must still comply with the Act and other relevant statutory or contractual rules governing appropriations and receipts. The instrument does not state whether receipts from "any person" are voluntary contributions, supplier fees, cost-recovery charges, or otherwise, so operational policy decisions will be necessary.

Transfers from prior account: Section 6(c) and s 8 create a direct transfer mechanism from the Coordinated Procurement Contracting Special Account (2008) (s 6 note; s 8). The inserted paragraph in the 2008 Determination is specified as subsection 5(1)(g) to credit amounts to the ICT Coordinated Procurement Special Account 2017 (s 8). That requires administrative coordination: funds and potentially programs previously financed from the 2008 account can be reallocated into the new account. Missteps in transfer authorisation or timing could create cashflow or accounting mismatches, especially since the commencement is contingent on the Act’s timing rules (s 2(1)).

Balance reduction without payment: Section 7(c) authorises debits "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 bookkeeping mechanism can be used to adjust appropriation availability without an outgoing cashflow. Finance staff should note that such entries alter available appropriation and may have implications for budget reporting, year-end accounting, and appropriation reconciliation. The instrument does not prescribe the circumstances in which this technique may be used.

Repayments under other law: Section 7(d) permits debiting the account to repay amounts "where an Act or other law requires or permits the repayment of an amount received." Not all repayment obligations will be obvious at the time funds are credited; some may flow from later judicial or statutory determinations. Practitioners should ensure there is capacity to make repayments and to identify repayment triggers.

Definitions are narrow: "Australian Government ICT coordinated procurement contracts" is defined as whole-of-government ICT procurement arrangements and "ICT" is defined as information and communications technology (s 4). The ambit of "whole-of-government" is not further defined in the instrument; operational staff must interpret whether a particular procurement qualifies as "whole-of-government" in line with relevant policy and the Act.

Commencement tied to the Act: The instrument’s commencement depends on paragraph 79(5)(a) of the Act (s 2(1)). That external tie can cause uncertainty where users expect a specific calendar start date. The instrument further flags that column 3 information is not part of the instrument and may be edited on the Federal Register of Legislation (s 2(2)). Users should check the official register for the operative commencement date and any editorial notes.

No penalty or enforcement mechanics: The determination creates funding powers but contains no enforcement provisions. If parties expect contractual or statutory remedies embedded in the instrument, they will not find them here. Any obligation to enforce compliance must be pursued under the Act or other applicable instruments.

Accountable authority designation without delegated internal rules: The instrument names the CEO of the DTA as accountable authority (s 9) but does not set internal delegation thresholds, decision-making processes or reporting obligations. Practitioners should expect the DTA to issue internal financial delegations, procedures and guidelines to operationalise the account, but those are external to the instrument.

Potential confusion in numbering and drafting: The layout of s 7 contains repeated numeric markers and indented lists. Care should be taken when referencing particular sub-items; ensure citations are to the correct clause rather than relying on the instrument’s numbering alone.

Designate and document accountable authorities and delegations: The instrument assigns the Chief Executive Officer of the Digital Transformation Agency as the accountable authority for the special account (s 9). The DTA should document internal delegations, authorisation levels and accountable officer responsibilities that operationalise that designation. Those internal governance documents should explicitly map which authorising officers may approve credits under s 6 and debits under s 7, and should reference the Act’s special-account framework that underpins the instrument (s 3).

Verification of credit sources: Before crediting amounts to the special account, finance staff must confirm that the receipt falls within the permitted classes listed in s 6:

• Is the amount received in the course of performing functions related to the special account’s purposes (s 6(a))?
• Is the amount received from any person for the purposes of the special account (s 6(b))?
• Is the amount being transferred from the Coordinated Procurement Contracting Special Account for crediting to the special account (s 6(c))?

Document the legal basis for each receipt, including contractual clauses, agency instructions or statutory authority, and retain supporting records that tie the receipt to the account’s stated purposes (s 7).

Apply debits only to authorised purposes and incidentals: Spending from the account must be limited to the purposes set out in s 7: administering whole-of-government ICT coordinated procurement contracts (planning and conducting tenders, managing contracts), providing procurement assistance to Commonwealth entities, monitoring and reviewing procurement performance, and incidental activities such as account administration and direct/indirect costs. For each proposed debit, maintain a cost allocation and purpose justification that demonstrates alignment with the instrument’s list.

Manage bookkeeping entries for balance reduction carefully: If a decision is taken to reduce the special account balance without a real or notional payment (s 7(c)), ensure that the rationale and authority are documented and that such entries are coordinated with central budget authorities and year-end financial reporting. The DTA should produce internal guidance on when and how such entries are to be used and ensure they are reflected correctly in appropriation reconciliations.

Handle repayments in accordance with other law: Where an Act or other law requires or permits repayment, use the special account to effect that repayment where appropriate (s 7(d)). Ensure there is a clear audit trail linking the repayment to the triggering statutory or legal obligation, and coordinate with legal counsel to verify repayment obligations and timing.

Coordinate transfers from the 2008 account: If transferring funds from the Coordinated Procurement Contracting Special Account (2008), follow the mechanism enabled by the amendment in s 8. Ensure authorisations under the 2008 Determination and the new account are reconciled, and document the purpose and amounts of transfers. Retain records sufficient to demonstrate that transferred amounts were properly credited under s 6(c) and spent only for authorised purposes under s 7.

Maintain transparent accounting and reporting: Even though the instrument does not set out a reporting timetable, good practice requires that the DTA maintain periodic financial statements showing amounts credited and debited, reconciliations with the Commonwealth’s appropriation accounts, and notes explaining any use of the balance-reduction mechanism (s 7(c)). Ensure readiness for audit or parliamentary scrutiny consistent with the Act’s special-account context (s 3).

Check commencement date and public register entries: Because commencement is tied to paragraph 79(5)(a) of the Act and the instrument allows editorial changes on the Federal Register of Legislation (s 2(1)-(2)), confirm the instrument’s operative start date on the official register before executing transfers or credits. Where column 3 explanatory material is present on the register, treat it as editorial and not part of the legal instrument (s 2(2)).

Legal review of proposed receipts from "any person": Where the account is to receive monies from private entities or other third parties (s 6(b)), obtain legal advice addressing:

• Whether acceptance of the payment is consistent with appropriation and budget law;
• Whether contractual payment terms require appropriation or give rise to contingent obligations;
• Whether the payment creates future repayment obligations under other law (which would engage s 7(d)).

Coordinate procurement activities with relevant Commonwealth entities: The special account is intended to support whole-of-government procurement activities and assistance to Commonwealth entities (s 7). Ensure that any procurement actions funded from the account are aligned with government procurement policy and that Commonwealth entities who are recipients of assistance have formal agreements or memoranda of understanding that define scope, cost recovery, and accountability.

Record-keeping and audit readiness: Maintain complete records of receipts, transfers, expenditure authorisations, and justifications for use. Because the instrument is an enabling fiscal measure and because special accounts are subject to public accountability expectations, ensure documentation is sufficient to support internal and external audit inquiries.

Update internal policies to reflect incidental costs: Because incidental activities (including direct and indirect costs) are authorised (s 7), define and document which overheads and indirect costs may be charged to the account, and adopt a consistent cost-allocation methodology.

Review for interactions with other statutory obligations: Before using the account to meet statutory repayment obligations or to accept funds that might trigger other laws, undertake a legal scan for overlapping statutory obligations that could affect the account’s liabilities (s 7(d)).

In sum, compliance requires alignment of incoming receipts with s 6 categories, strict adherence of expenditure to s 7 purposes and incidentals, careful use of balance-reduction entries under s 7(c), coordinated transfers under s 8, and robust internal governance under the accountable authority in s 9.