PGPA Act Determination (Establishment of NMF Blood and Blood Products Special Account 2017)

The instrument relies on a small set of interlocking concepts drawn from the Act and the Determination’s own definitions. Key concepts and their operational implications are the following.

• Special account: The instrument creates the NMF Blood and Blood Products Special Account 2017 as a legal special account under paragraph 78(1)(a) of the Act (s 5). The label “special account” in the instrument denotes a Commonwealth account with specific crediting and debiting rules set here rather than general appropriation mechanics; the account is established within the Act’s framework (s 5).

• Creditable amounts: The instrument authorises specific categories of receipts that may be credited to the special account. These are (i) amounts received in the course of performing functions that relate to the account’s purposes, and (ii) amounts received from any person for the purposes of the special account (s 6). The use of “may be credited” is permissive rather than mandatory, leaving discretion as to whether particular receipts are credited.

• Purposes for debiting: The instrument defines a circumscribed set of permitted debits from the account (s 7). The dominant focus is support for activities connected with the Australian Red Cross Society in relation to blood and blood products, including meeting liabilities (s 7(a)(i)), managing, defending, settling or otherwise dealing with claims (s 7(a)(ii)), and risk-management activities intended to reduce incidence or size of liabilities or claims (s 7(a)(iii)). The instrument also allows payments (including notional payments) to governments or the Australian Red Cross Society in agreed proportions (s 7(b)), repayments to original payers after necessary payments have been made (s 7(c)), incidental costs such as administration and direct and indirect costs (s 7(d)), non‑cash balance reduction measures including remittances to the Official Public Account (s 7(e)), and repayments where an Act or other law requires or permits repayment (s 7(f)).

• Notional payments and non-cash reductions: Two bookkeeping concepts are explicitly provided for. Paragraph 7(b) contemplates “notional payment” to distribute entitlement among Commonwealth, State, Territory or the Australian Red Cross Society. Paragraph 7(e) allows the balance of the account to be reduced “without making a real or notional payment”, and includes as an example remittances to the Official Public Account as agreed between the Finance Minister and the responsible minister. Both provisions permit accounting or allocation effects separate from immediate cash movement.

• Transitional linkage to earlier instrument: The instrument defines “former determination” and “former special account” and amends the old instrument to permit credits to the new special account (s 8). It permits transfer of any balance from the former special account to the new account up to the former account’s balance at commencement (s 9).

• Accountable authority: The instrument explicitly assigns accountability for the special account to the General Manager of the National Blood Authority (s 10). This names the official responsible for the special account under paragraph 78(1)(d) of the Act.

These concepts create an accounting and payment architecture focused on handling funds connected with blood and blood products liabilities and costs, with explicit flexibility for both cash and non-cash allocation mechanisms and a direct role for the National Blood Authority’s General Manager as accountable authority.

The instrument sets out a small set of actors with defined roles and potential financial impacts. The primary affected parties are the Australian Red Cross Society, the Commonwealth, States and Territories, the General Manager of the National Blood Authority, original payers to the former special account, and any person who may make payments for the purposes described.

• Australian Red Cross Society: The special account’s debiting purposes are expressly tied to “the activities of the Australian Red Cross Society in relation to blood or blood products, or substitutes for blood or blood products” (s 7(a)). The account may be used to make payments to meet liabilities of the Australian Red Cross Society, to manage or settle claims against it, and to manage risks to reduce liabilities or claims (s 7(a)(i)-(iii)). The instrument therefore designates the Australian Red Cross Society as a primary beneficiary of payments and risk-management expenditure from the account.

• Commonwealth, States and Territories: Paragraph 7(b) authorises payments, including notional payments, to the Commonwealth, a State or a Territory in proportions to be agreed. That creates potential receivables for government entities and requires agreement among parties to determine shares. The Commonwealth also participates via the Official Public Account where remittances are made (s 7(e)).

• Original payers and private payers: Section 6(b) allows amounts received from any person for the purposes of the special account to be credited to it. Section 7(c) permits the repayment to an original payer of amounts credited to the special account or the former special account, after necessary payments for purposes in paragraphs (a) or (b) have been made. Individuals, insurers, health organisations, or other private parties that previously paid into or may pay into the account are therefore affected by the instrument’s crediting and repayment provisions.

• General Manager of the National Blood Authority: The accountable authority responsible for the special account is stated to be the General Manager of the National Blood Authority (s 10). That makes the General Manager the named official charged with responsibility for managing credits, debits, and the administration of the special account consistent with the Act and this Determination.

• Finance Minister and responsible minister: The instrument is made by the Minister for Finance (front matter and s 3) and contemplates agreement between the Finance Minister and “the responsible minister” to give effect to remittances to the Official Public Account (s 7(e)). Those ministers therefore have roles in decisions about remittances and, more generally, the instrument sits within the portfolio responsibilities of the Finance Minister and the minister responsible for the National Blood Authority.

• Administrators of the former special account: The former special account and its administrator(s) are affected by transitional provisions. The instrument varies the former determination to permit credits to the new special account (s 8) and allows a debit from the former special account and credit to the new account up to any balance standing to the former special account immediately before commencement (s 9).

In short, payments and account management will directly affect the Australian Red Cross Society, government entities that may receive payments or notional allocations, persons or organisations that fund the account, and public officials charged with administering the account.

The Determination confers a narrow set of powers and responsibilities and identifies the categories of transactions that may be processed through the special account. Key duties and rights flow from its provisions.

• Establishment duty: The Determination establishes the special account under paragraph 78(1)(a) of the Act (s 5). By that act of establishment, the account exists as a vehicle into which certain receipts may be credited and from which specified debits may be made. That establishment is the foundational duty-creating act by the Finance Minister under subsections 78(1) and 78(3) of the Act (s 3).

• Crediting discretion: Section 6 sets out what may be credited to the special account: amounts received in the course of performing functions related to the special account’s purposes, and amounts received from any person for the account’s purposes. The operative verb “may” indicates discretion to credit; the instrument does not create a mandatory obligation to credit all such amounts.

• Debiting rights and purposes: Section 7 lists the lawful purposes for which amounts may be debited. These define the right to make payments and the constraint on that right to the specified activities. The principal rights are to make payments:

  • to meet liabilities of the Australian Red Cross Society (s 7(a)(i));

  • to manage, defend, settle or otherwise deal with claims against the Australian Red Cross Society (s 7(a)(ii));

  • to manage risks to reduce potential liabilities or claims against the Australian Red Cross Society (s 7(a)(iii));

  • to make a payment, including a notional payment, to the Commonwealth, a State, a Territory or the Australian Red Cross Society in agreed proportions (s 7(b));

  • to repay original payers after necessary payments have been made (s 7(c));

  • to carry out incidental activities including administration and dealing with direct and indirect costs (s 7(d));

  • to reduce the balance without a real or notional payment, for example by remittance to the Official Public Account as agreed between the Finance Minister and the responsible minister (s 7(e));

  • to repay amounts when an Act or other law requires or permits repayment (s 7(f)).

These authorised purposes are both enabling and limiting: authorised payments are defined, and other purposes are not authorised by this Determination.

• Accountable authority duty: The Determination names the accountable authority as the General Manager of the National Blood Authority (s 10). Under paragraph 78(1)(d) of the Act (referenced in s 10), that designation assigns responsibility for the special account to that official. The instrument does not itself restate the scope of the accountable authority’s duties under the Act, but by naming the accountable authority it places primary responsibility with that office for ensuring credits and debits are properly managed within the confines of this Determination.

• Transitional duties: Sections 8 and 9 create two narrow duties in relation to the former special account. Section 8 varies the former determination by inserting a new subsection authorising the former special account to credit amounts to the new special account. Section 9 authorises debit from the former special account and credit to the special account of any amount standing to the credit of the former special account immediately before commencement, up to that amount. Those provisions confer the right to transfer balances and the duty to effect the transfer if exercised.

• Ministerial agreement right: Section 7(e) requires agreement between the Finance Minister and the responsible minister to give effect to remittance to the Official Public Account. That creates a shared decision point; remittances require ministerial agreement.

• No enforcement or penalty powers in the Determination: The instrument itself does not create criminal or civil penalty provisions. It neither prescribes sanctions nor contains enforcement mechanisms beyond the accountability mechanism implicit in naming the accountable authority (s 10). Any sanctioning or enforcement obligations or penalties would therefore arise, if at all, from other laws or from application of the Act’s general accountability framework.

Taken together, these provisions create defined rights to credit particular monies and defined rights to debit the account for specified purposes. They assign operational responsibility to a named public official while reserving certain decisions, such as remittances, to ministerial agreement.

The Determination does not itself create express penalty provisions or specify enforcement mechanisms. There is no clause in the instrument that establishes criminal offences, civil penalties or administrative sanctions for misuse of the special account. Consequently any sanctioning or enforcement must be derived from other legal sources rather than from this Determination.

What the Determination does provide that is relevant to compliance and enforcement is naming the accountable authority. Section 10 specifies that “the accountable authority responsible for the special account is the General Manager of the National Blood Authority” for the purposes of paragraph 78(1)(d) of the Act. That identification places formal accountability for the special account on a named official. Any enforcement or compliance measures that attach to an accountable authority arise under the Act’s governance architecture and associated rules rather than under the Determination’s text.

The Determination’s permitted uses and crediting rules themselves act as internal limiting rules on authorised transactions. If an entity or official attempted to debit amounts for unlisted purposes, that would be inconsistent with the permitted purposes in section 7. However, the instrument does not set out the consequences of such inconsistency. Enforcement responses would therefore depend on the Act and other applicable law, or internal administrative remedies such as audit, internal review or ministerial action.

The instrument creates a requirement for ministerial agreement where remittance to the Official Public Account is contemplated (s 7(e)). That requirement acts as a procedural control: remittances cannot be given effect unilaterally by the accountable authority without the required ministerial agreement. Again, the Determination does not set out penalties for breaching this procedural control.

Transitional provisions (ss 8-9) enable variation of the former determination and transfer of balances, but do not prescribe penalties for failure to effect transfers or unlawful transfers. Responsibility for proper handling of former-account balances therefore rests on the entity administering the accounts, subject to oversight and obligations under the Act and any other applicable law.

In summary, the Determination defines authorised financial operations and names an accountable authority, but it contains no independent enforcement regime or specified penalties. Enforcement and sanctions, if required, would have to be located in the Act or other applicable statutes, or be applied through administrative governance levers such as audits, ministerial instruction or internal Commonwealth financial controls.

The instrument is explicitly made under and framed by the Public Governance, Performance and Accountability Act 2013 (the Act) and its paragraphs and subsections are referenced throughout. That establishes the legal and institutional context for the special account and creates the primary point of interaction with other law.

• Created under the Act: The Determination states that it is made under subsections 78(1) and 78(3) of the Act (s 3), establishes the special account for the purposes of paragraph 78(1)(a) (s 5) and identifies the accountable authority for the purposes of paragraph 78(1)(d) (s 10). Consequently, the special account and its operation are part of the Act’s regulatory framework for special accounts. Rights, duties and reporting obligations that flow from the Act will therefore be relevant to operation of this account, although those Act‑level obligations are not restated in the Determination.

• Interaction with the Official Public Account: The instrument expressly contemplates remittance to the Official Public Account and provides a mechanism to “reduce the balance of the special account … without making a real or notional payment, including to give effect to the remittance of amounts to the Official Public Account as agreed between the Finance Minister and the responsible minister” (s 7(e)). This provision creates a direct accounting interaction between the special account and the Commonwealth’s central bank account, subject to ministerial agreement.

• Relationship to the former determination: The Determination amends the former Financial Management and Accountability Determination 2004/16 by inserting an authorising provision permitting the former special account to credit amounts to the new account (s 8). Section 9 expressly permits transfer of any amount standing to the credit of the former special account to the new account. This links the two instruments and creates continuity between prior special‑account arrangements and the new account.

• Payments and notional payments to jurisdictions and entities: Section 7(b) authorises payments, including notional payments, to the Commonwealth, a State or a Territory or the Australian Red Cross Society in proportions to be agreed. That requires interaction with intergovernmental agreements or other arrangements to determine proportions and potentially with State and Territory financial management frameworks to recognise or accept notional allocations.

• Repayment where other law requires it: Paragraph 7(f) authorises debits “to repay amounts where an Act or other law requires or permits the repayment of an amount received.” That clause creates an intersection with other statutes and legal obligations that may require repayments, for example grant repayments, refunds, or other statutory restitution obligations. The Determination defers to other law in such cases and authorises the special account to be used for those repayments.

• Ministerial roles: The instrument sits within ministerial functions, referencing the Finance Minister (signature and s 3) and requiring agreement with “the responsible minister” for remittances (s 7(e)). That produces administrative interaction between finance portfolio procedures and the portfolio responsible for the National Blood Authority or the Australian Red Cross Society.

• Administrative law and financial governance: Although not restated in the Determination, the establishment of the special account and naming of the accountable authority means that the account’s operation will be subject to existing Commonwealth administrative law and financial governance frameworks. Those frameworks will determine reporting, audit, internal controls and accountability mechanisms that apply to the special account even though the Determination itself does not set them out.

Overall, the Determination functions as a specialised layer within the Act’s financial management architecture, linking to prior instrument(s), to the Official Public Account, to ministerial decision-making, and to other statutes that may impose repayment obligations.

The instrument’s own amendment history, as recorded in its text, is brief and narrowly focused on replacing or varying a former special account instrument and handling its residual balance. The Determination identifies the former instrument and former account and makes two specific transitional interventions.

• Identification of the former instrument: The Determination defines “former determination” to mean the Financial Management and Accountability Determination 2004/16 , National Managed Fund (Blood and Blood Products) Special Account Establishment 2004, as in force immediately before the commencement of the Definitions section (s 4). It also defines “former special account” as the National Managed Fund (Blood and Blood Products) Special Account established by section 3 of the former determination (s 4). These definitions create a textual link between the prior instrument and the new Determination.

• Variation of the former determination: Section 8 effects a variation of the former determination for the purposes of paragraph 78(3) of the Act. The variation inserts a new paragraph into subsection 5(1) of the former determination authorising the former special account to credit amounts to the NMF Blood and Blood Products Special Account 2017 (the new special account). The inserted text is simple and targeted: it adds (e) to subsection 5(1) being “to credit amounts to the NMF Blood and Blood Products Special Account 2017.” That alteration authorises the operational transfer pathway.

• Transfer of balances: Section 9 authorises, for the purposes of paragraph 78(1)(b) of the Act, that if immediately before commencement there is an amount standing to the credit of the former special account, then an amount up to or equal to that amount may be debited from the former special account and credited to the new special account. That mechanism enables a one‑time or contemporaneous transfer of balances from the old account to the new account.

• Commencement framing: Section 2 sets out commencement mechanics by reference to paragraph 79(5)(a) of the Act; the whole instrument commences on the day stated in that paragraph as the day on which a determination under subsections 78(1) and 78(3) takes effect. The instrument therefore records a commencement rule but does not state an express calendar date within the instrument; it refers to the Act for the operative commencement date.

• No later amendments recorded in the text: The Determination contains no further amendment history within the document itself beyond the transitional variation to the former determination. There are no internal clauses that indicate subsequent variations, revocations, or expiry within this text. Any later amendment, repeal or variation would need to be effected by a further instrument or legislative change outside the text of this Determination.

For practitioners, the amendment history recorded here is solely the narrow transformation and migration from the former special account to the 2017 special account, effected by an insertion into the former determination and a permitted debit/credit transfer of balance.

The Determination contains no litigation record, case citations, or stated judicial interpretation. The text does not refer to any judicial decisions, appeals, or disputes. There are no provisions in the instrument creating rights of review, appeal routes, or dispute resolution clauses specific to the Determination itself. Consequently the instrument has no litigation history recorded within its text.

What this means operationally is the following. Any litigation that might arise in relation to the special account would have to concern actions taken under the Determination (for example, disputes about whether a particular payment is within authorised purposes, disputes about the transfer of balances from the former special account, disagreement over proportions for payments under s 7(b), or argument about a repayment to an original payer under s 7(c)). However, the Determination itself provides no procedural route for resolving such disputes and does not detail judicial review outers or internal review pathways. Therefore any legal proceedings would proceed under the ordinary routes available in public law or contract law, or under relevant statutory schemes that govern the parties in question.

Because the Determination establishes the accountable authority as the General Manager of the National Blood Authority (s 10), administrative actions relating to the special account could lead to judicial review challenges to decisions of that office to the extent the Act and general administrative law principles permit review. Similarly, any ministerial decisions required by the Determination, such as agreement between the Finance Minister and the responsible minister for remittances (s 7(e)), could theoretically be the subject of legal challenge if a party could show a justiciable interest and grounds such as jurisdictional error.

The absence of litigation history within the Determination places emphasis on tracing disputes back to the Act, to the former determination as varied, or to external statutory and contract regimes. Practitioners should therefore look beyond this instrument for cases or reported decisions concerning special accounts, the National Managed Fund, the Australian Red Cross Society and blood product liabilities if they require precedent or interpretive guidance. The Determination itself does not supply that material.

This Determination contains a number of features that may be operationally significant but are not obvious at first reading. These are particular mechanics, discretionary points, and semantic items that create implementation risk or require attention.

• “May” is permissive, not mandatory: Sections 6 and 9 use “may” when authorising credits to the special account or transfers from the former special account. That language does not impose an obligation to credit or transfer; it leaves discretion with the administering authority. Parties expecting automatic crediting or automatic transfer should not assume those acts are compulsory.

• Notional payments and non-cash balance reduction are built in: Paragraph 7(b) expressly authorises “notional payment” and paragraph 7(e) allows the balance to be reduced “without making a real or notional payment.” These provisions enable accounting allocations or notional apportionments that do not correspond to immediate cash movements. Practitioners should be alert to the possibility that an agreed reallocation could alter ledger balances, entitlements and appropriation availability without concurrent cash transfers, with potential implications for budgeting, audit, and counterparty expectations.

• Ministerial agreement required for remittance: Paragraph 7(e) conditions remittance to the Official Public Account on agreement between the Finance Minister and “the responsible minister.” The Determination does not define “the responsible minister” in its Definitions; that term therefore requires contextual identification. Failure to secure the required ministerial agreement will prevent remittance, creating potential timing and account-balance issues.

• Agreement required for proportioned payments: Paragraph 7(b) authorises payments in proportions “to be agreed by the parties.” The Determination does not set a default rule or dispute-resolution mechanism if the parties cannot agree on proportions. Where distributions to Commonwealth, State, Territory or the Australian Red Cross Society are contentious, there is no contractual fallback embedded in the Determination.

• Accountability rests with an individual office holder: Section 10 names the General Manager of the National Blood Authority as the accountable authority. That anchors operational responsibility to that office holder. Practitioners should map internal delegation, decision‑making authority and record-keeping to that accountable authority because the Determination itself creates no secondary delegation schema. The Determination therefore requires the National Blood Authority to operationalise management arrangements consistent with its obligations.

• Transitional transfer capped at existing balance: Section 9 permits crediting into the new special account from the former special account up to the amount standing to the credit of the former special account immediately before commencement. If there are contingent receivables or disputed entries that crystallise after commencement, they may not be transfer‑eligible under s 9 unless separately authorised.

• Repayment to original payers occurs only after necessary payments: Paragraph 7(c) permits repayment to original payers “after any necessary payments made for the purposes mentioned in paragraphs (a) or (b).” That sequencing gives priority to satisfying liabilities, claims and agreed payments before returning funds to original payers, which may delay or reduce potential repayments.

• “Amounts received in the course of the performance of functions” is a broad description: Section 6(a) permits crediting amounts received in the course of performing functions relating to the purposes of the special account. That phrase could encompass recoveries, insurance proceeds, settlement sums, or other receipts tied to function performance. The Determination does not narrow that phrase further, which may create interpretive questions in particular circumstances.

• No express auditing, reporting or penalty clauses in the Determination: The instrument is silent on reporting frequency, audit regimes and penalties. That silence does not exempt the special account from broader Act-based governance obligations, but it does mean administrative frameworks must be implemented by the accountable authority and other executive instruments.

• Interaction with other statutes for repayments: Paragraph 7(f) allows repayments where an Act or other law requires or permits repayment. That creates potential for the account to be used to satisfy obligations imposed by other statutes, which may affect available balances unexpectedly.

These elements create points where practical implementation can stumble unless roles, procedures, decision-making thresholds and ministerial responsibilities are made explicit and operationalised by the accountable authority and relevant ministers.

Compliance with this Determination is operational rather than prescriptive. The instrument authorises categories of receipts and disbursements and names the accountable authority; it does not set out detailed procedural rules. Practical compliance steps for the accountable authority, ministers and parties that interact with the account are the following.

• Map roles and authorities to the Determination: The General Manager of the National Blood Authority is named the accountable authority (s 10). The accountable authority should document delegations, decision-making limits, signatory authorities for credits and debits, and internal approval processes to ensure actions fall within the authorised purposes in section 7. That mapping should include identification of the Finance Minister and “the responsible minister” for remittance agreements (s 7(e)) and procedures to obtain necessary ministerial agreement.

• Establish crediting protocols: Because section 6 permits crediting of two classes of amounts, the accountable authority should implement clear guidance on what constitutes (a) amounts “received in the course of the performance of functions that relate to the purposes of the special account”, and (b) amounts “received from any person for the purposes of the special account” (s 6). The accountable authority should set thresholds, documentation requirements, and timing rules for when receipts are recorded, and ensure processes for handling disputed or conditional receipts.

• Implement debiting controls consistent with listed purposes: Section 7 identifies the precise purposes for debit. The account administrator should create a payments approval matrix aligning each proposed debit to a specific paragraph in s 7, require evidence that necessary payments described in s 7(a) or (b) have been or will be made before any repayment to original payers under s 7(c), and ensure that administration costs claimed under s 7(d) are tracked, budgeted and proportionate.

• Document procedures for notional and non-cash transactions: Because s 7(b) authorises notional payments and s 7(e) permits balance reduction without a real or notional payment, the accountable authority must document accounting treatments and communicate with treasury or central agencies to ensure ledger entries are correctly reflected and that appropriation availability is properly adjusted. Clear audit trails should be created for notional allocations and non‑cash remittances.

• Ministerial agreement mechanism for remittances: Set up a formal mechanism to obtain and record the agreement between the Finance Minister and the responsible minister required by s 7(e). This should include templates for ministerial correspondence, advice briefs outlining the financial and policy implications of remittance, and records of the agreed terms. Without this documented agreement, remittances should not be actioned.

• Transitional transfers: If there is a balance in the former special account immediately before commencement, follow the mechanics in s 9 to debit the former account and credit the new account up to that balance. Ensure reconciliation between the former and new accounts, document the amounts transferred, and keep records showing that transfers did not exceed the pre-commencement balance.

• Repayment to original payers: If repayments to original payers under s 7(c) are contemplated, ensure that “necessary payments” for the purposes in s 7(a) or (b) have been completed. Design a prioritisation protocol that evidences the order of payments and the calculation supporting any repayment to original payers.

• Interaction with other laws and obligations: Where repayments are required or permitted by statute, paragraph 7(f) authorises such debits. The accountable authority should identify relevant statutory obligations early and ensure funds are available to meet legally required repayments, and that any payments are supported by legal advice where necessary.

• Record-keeping and audit readiness: Even though the Determination does not state reporting or audit procedures, the accountable authority should maintain detailed, auditable records of all credits and debits, the legal basis for each transaction, ministerial agreements, and internal approvals. That will be necessary to demonstrate compliance with the Act and with Commonwealth financial controls.

• Inter-jurisdictional agreements: For payments in agreed proportions under s 7(b), put in place written agreements with Commonwealth, State, Territory or Australian Red Cross Society counterparts specifying proportions, timing, accounting treatment and dispute-resolution steps. Do not rely on oral arrangements.

• Seek legal and financial advice on novel transactions: For transactions that raise interpretive questions , for example, the treatment of settlements that include both cash and in-kind components, or allocation of insurance proceeds , obtain legal and finance advice to ensure the transaction fits squarely within s 7’s authorised purposes and that accounting treatment aligns with Commonwealth requirements.

These steps convert the Determination’s permissive authorisations into robust operational controls that manage the risks associated with discretionary crediting, notional allocation, ministerial agreement and transitional transfers.