Bills Digest no. 27,
2016–17
PDF version [701KB]
Daniel Weight
Economics Section
19
October 2016
Contents
Purpose of the Bill
Structure of the Bill
Background
Appropriations generally
Constitutional requirements
The ‘ordinary annual services of the
Government’ and ‘other’ annual services of the Government
The Senate’s powers
Presentational requirements
Departmental and administered
expenses
Outcomes and programs
Appropriations for the Parliament and
the Judiciary
Advances to the Finance Minister and
the Presiding Officers
Debit limits
Table 1: Debit limit reconciliation
Committee consideration
Senate Standing Committee for the
Scrutiny of Bills
Appropriation Bill (No. 1)
2016–2017
Appropriation Bill (No. 2)
2016–2017
Senate Estimates
Financial implications
Table 2: Annual appropriation
available, or proposed to be made available, for 2016–17, by portfolio
Table 3: Annual appropriation
available, or proposed to be made available, for 2016–17, by parliamentary
department
Statement of Compatibility with Human
Rights
Date introduced: 31
August 2016
House: House of
Representatives
Portfolio: Finance
Commencement: Each
Bill will commence on Royal Assent.
Links: The links to the Appropriation
Bill (No. 1) 2016–2017, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page.
The links to the Appropriation
Bill (No. 2) 2016–2017, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page.
The links to the Appropriation
(Parliamentary Departments) Bill (No. 1) 2016–2017, its Explanatory
Memorandum and second reading speech can be found on the Bill’s home
page.
All three Bills can be accessed through the Australian
Parliament website.
If the Bills pass the Parliament and receive Royal Assent,
they will become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at October 2016.
Purpose of
the Bill
The purpose of the Appropriation Bill (No. 1) 2016–2017
(the ‘No. 1 Bill’) is to appropriate $49,425,332,000 ($49.4 billion) from the
Consolidated Revenue Fund (CRF) in the 2016–17 financial year for the ordinary
annual services of the Government.
The purpose of the Appropriation Bill (No. 2) 2016–2017
(the ‘No. 2 Bill’) is to appropriate $8,702,002,000 ($8.7 billion) from
the CRF in the 2016–17 financial year for the other annual services of the
Government.
The purpose of the Appropriation (Parliamentary
Departments) Bill (No. 1) 2016–2017 (the ‘Parliamentary Departments Bill’) is
to appropriate $147,224,000 ($147.2 million) for the Parliamentary departments.
These amounts are in addition to amounts appropriated in
May 2016 under:
-
the Supply Act (No 1) 2016–2017[1]
- the Supply Act (No. 2) 2016–2017[2] and
- the Supply (Parliamentary Departments) Act (No. 1) 2016–2017.[3]
Structure of the Bill
Part 1 of each Bill deals with preliminary matters,
including when the Acts commence, and how to interpret the Acts.
Part 2 of each Bill outlines the quantum and types
of appropriation from the CRF.
Part 3 of each Bill provides for either an Advance
to the Finance Minister (AFM) or an Advance to the Presiding Officers of the
Parliamentary departments, whichever is appropriate.
Part 4 of both the No. 1 Bill and the Parliamentary
Departments Bill and Part 5 of the No. 2 Bill deal with technical
matters including crediting amounts to special accounts, the formal
appropriation of moneys from the CRF, and the automatic repeal of the
subsequent Acts.
Part 4 of the No. 2 Bill sets the maximum amounts
that can be drawn each year from the CRF for four types of grant to the states
and territories that the Commonwealth may make. These limits are known as
‘debit limits’.
Schedule 1 of the No. 2 Bill nominates the
Ministers who are able to impose conditions on grants of financial assistance
to the states and territories proposed in that Bill.
Schedule 1 of the No. 1 Bill and the Parliamentary
Departments Bill and Schedule 2 of Bill No. 2 contain the details of the
amounts and types of appropriation to be made to each entity.
Background
On 21 March 2016, the Prime Minister announced his
intention to request that the Governor-General dissolve both Houses of the
Parliament on or before 11 May 2016 for the purposes of holding a
double-dissolution election if the Senate failed to pass certain legislation. [4]
In announcing his intention, the Prime Minister advised:
Because such a double dissolution must be
done on or before the 11th of May, the Government will be bringing the Budget
forward to Tuesday 3rd of May so that Mr Shorten [the Leader of the Opposition]
will be able to deliver his reply on the Thursday in the usual way.
Even with the revised scheduling of Budget day, however,
there was little likelihood that the Parliament would have had time to consider
and pass the annual Appropriation Bills prior to the likely dissolution of the
Parliament.
On Thursday 28 April 2016, therefore, the Finance
Minister, Senator Cormann, announced that the Government would introduce Supply
Bills in the next meeting of the Parliament.[5]
Senator Cormann said:
These Bills will ensure continuity of the normal business of
government in the context of a double-dissolution election.[6]
On 2 May 2016, the
Government introduced three Supply Bills that proposed to appropriate around five-twelfths
(5/12) of the amounts anticipated to be required in 2016–17 for the existing
activities of the Government only. The three Supply Bills were as follows:
- the Supply Bill (No 1) 2016–2017[7]
- the Supply Bill (No. 2) 2016–2017[8]
and
- the Supply (Parliamentary Departments) Bill (No. 1) 2016–2017.[9]
In effect, the Supply Bills (when enacted) provided for
five months of appropriation—or enough for the functions of Government to
continue until about the end of November 2016—excluding any money for new
policy measures. The three Supply Acts commenced on 1 July 2016.[10]
The amounts appropriated were equivalent to five-twelfths (5/12) of the
Government's proposed annual budget.
On 3 May 2016, the revised Budget Day, the Treasurer
introduced three Appropriation Bills into the House of Representatives.[11]
However, those Bills lapsed when the 44th Parliament was dissolved on 9 May
2016.
On the second sitting day of the 45th Parliament, the
Government introduced into the House the three Bills the subject of this Bills
Digest. The Government advises that the only differences between the
Appropriation Bills presented to the 44th Parliament and those the subject of
this Bills Digest arise because of:
- the Merger of the CrimTrac Agency with the Australian Crime
Commission, which resulted in the CrimTrac Agency’s outcome statement being
transferred to the ACC as Outcome 2, along with the proposed appropriation
- a change in governance structure of Old Parliament House (OPH),
which involved OPH becoming a corporate entity from 1 July 2016 and
-
machinery of government changes related to the establishment of
the Department of Environment and Energy.[12]
The Bills propose to appropriate seven-twelfths (7/12) of
the total amount anticipated to be required in 2016–17 for the existing
activities of the Government, as well as amounts for all new activities of the
Government that are to be provided for by annual Appropriation Bills.
Appropriations
generally
An appropriation is the legal release of moneys from the
CRF.[13]
Appropriation Acts, however, do not create a source of power for the
Commonwealth to spend money; they merely release that money from the CRF. The
Commonwealth’s power to spend money must be found in other parts of the Constitution.[14]
Under the terms of the Constitution, a Bill
proposing to appropriate moneys from the CRF must satisfy certain unique
requirements. An appropriation Bill must also comply with certain
presentational requirements.
Constitutional
requirements
Section 81 of the Constitution provides:
All revenues or moneys raised or received by the Executive
Government of the Commonwealth shall form one Consolidated Revenue Fund [CRF],
to be appropriated for the purposes of the Commonwealth ...[15]
Section 83 of the Constitution provides that no
money may be withdrawn from the CRF ‘except under appropriation made by law’.[16]
The effect of these two sections is that all moneys received by the
Commonwealth must be paid into the CRF, and must not be spent before there is
an appropriation authorising specific expenditure.
Section 53 of the Constitution prevents proposed
laws appropriating moneys originating in the Senate.[17]
Further, under section 56 of the Constitution, all proposed laws for the
appropriation of moneys may only be introduced into the House of
Representatives following a recommendation by the Governor-General.[18]
As the Governor‑General only acts upon the advice of the Executive, this
provision of the Constitution prevents non‑government members of
the House of Representatives from introducing Bills that would propose to
appropriate money from the CRF.[19]
The
‘ordinary annual services of the Government’ and ‘other’ annual services of the
Government
Section 54 of the Constitution requires that there
be a separate law appropriating funds for the ‘ordinary annual services of the
Government’, and that other matters must not be dealt with in the same Bill.[20]
However, neither the ‘ordinary annual services of the Government’ or ‘other’ annual
services of the Government are defined in the Constitution.
A working distinction between ordinary and other annual
services was agreed in a Compact between the Senate and the Government in 1965.[21]
Several amendments have been made to the Compact since 1965 and, in 2010, the
Senate Standing Committee on Appropriations and Staffing recommended that the
Senate restate the Compact in a consolidated form.[22]
On 22 June 2010, the Senate resolved as follows:
(1) To reaffirm
its constitutional right to amend proposed laws appropriating revenue or moneys
for expenditure on all matters not involving the ordinary annual services of
the Government.
(2) That
appropriations for expenditure on:
(a) the construction of public
works and buildings;
(b) the acquisition of sites and
buildings;
(c) items of
plant and equipment which are clearly definable as capital expenditure (but not
including the acquisition of computers or the fitting out of buildings);
(d) grants to the states under
section 96 of the Constitution;
(e) new policies not previously
authorised by special legislation;
(f) items regarded as
equity injections and loans; and
(g) existing asset replacement
(which is to be regarded as depreciation),
are not
appropriations for the ordinary annual services of the Government and that
proposed laws for the appropriation of revenue or moneys for expenditure on the
said matters shall be presented to the Senate in a separate appropriation bill
subject to amendment by the Senate.
(3) That, in
respect of payments to international organisations:
(a) the
initial payment in effect represents a new policy decision and therefore should
be in Appropriation Bill (No. 2); and
(b) subsequent
payments represent a continuing government activity of supporting the
international organisation and therefore represent an ordinary annual service
and should be in Appropriation Bill (No. 1).
(4) That all
appropriation items for continuing activities for which appropriations have
been made in the past be regarded as part of ordinary annual services.[23]
Adherence to the Compact has not always been strict, and
the High Court has held that any disagreements between the Houses are not
justiciable.[24]
Any disputes, therefore, are to be determined between the Houses themselves.
The
Senate’s powers
Section 53 of the Constitution provides, among
other things, that the Senate may not amend proposed laws appropriating revenue
or moneys for the ordinary annual services of the Government. The Senate may,
however, return such proposed laws to the House of Representatives and request,
by message, the omission or amendment of any items or provisions.
The Senate may amend proposed laws appropriating revenue
or moneys for purposes other than for the ordinary annual services of the
Government, as long as it does not ‘increase any proposed charge or burden on
the people’.[25]
Conceivably, the Senate could amend an Appropriation Bill for the other annual
services of Government in order to, for example, redirect the proposed
appropriation to another purpose, or reduce the proposed appropriation to nil.
Where a Bill for the ordinary annual services of the
Government includes amounts that the Senate considers should, because of the
Compact, be included in a Bill for the other annual services of the Government,
the Senate may elect to deal with that Bill as if it were a Bill for the other
annual services of government. In other words, the Senate may treat such a Bill
as being susceptible to amendment.[26]
Presentational
requirements
Departmental
and administered expenses
Australian Accounting Standard 1050 Administered
Items requires that government agencies distinguish between revenues and
expenses that they administer for the Government, and those over which they
have some control.[27]
Generally, administered expenses are the costs of providing the programs that
agencies run for the Government, while departmental expenses are the costs
incurred in running agencies.
Appropriation Bills, therefore, distinguish between
‘administered’ expenses and ‘departmental’ expenses. Administered appropriation
may only be used for the program or outcome that it is appropriated for, while
departmental appropriation may be moved between different departmental activities.[28]
Outcomes
and programs
While the level of detail necessary for an Appropriation
Act to be valid is generally low, in the Pharmaceutical Benefits case
the High Court held:
... there cannot be appropriations in blank, appropriations for
no designated purpose, merely authorising expenditure ...[29]
The Appropriation Bills must therefore describe—in general
terms—the purpose for which moneys are to be used. The Bills use four methods
for describing the purposes of the proposed appropriations.
Appropriations for ‘outcomes’ of non-corporate
Commonwealth entities
For non-corporate Commonwealth entities, the purposes of
operating appropriations (both departmental and administered) are specified
with reference to the ‘outcomes’ of those entities. In 2014, the Department of
Finance explained ‘outcomes’ as in the following terms:
Government outcomes are the intended results, impacts or
consequences of actions by the Government on the Australian community.[30]
The equivalent advice for the 2016–17 year stated:
An outcome statement should provide an immediate impression
of what success looks like.[31]
Outcome statements, therefore, tend to be aspirational in
nature.
Appropriations for corporate Commonwealth entities
As corporate Commonwealth entities are legally distinct from
the Commonwealth itself, moneys cannot be appropriated directly to those
entities.[32]
Instead, amounts are appropriated to relevant departments for on‑payment
to corporate Commonwealth entities within departments’ portfolios.
Non-operating appropriations
Non-operating appropriations are amounts designated for the
capital needs of entities. Typically, these amounts are equity injections into
entities, or moneys for the purchase or development of the assets of entities.
Under the Compact, they can only ever be proposed in a Bill dealing with the
‘other’ annual services of Government.
Appropriations for payments to the states
Under section 96 of the Constitution, the
Commonwealth Parliament may make payments to the states with or without
conditions. Amounts intended for payment to the states are identified
separately in appropriation Bills. Again, because of the Compact, amounts to
the states can only ever be proposed in a Bill dealing with the ‘other’ annual
services of Government. Amounts to the Australian Capital Territory and the
Northern Territory are also included with the amounts for the states.
Appropriations
for the Parliament and the Judiciary
In 1981, the Senate Select Committee on Parliament’s
Appropriations and Staffing considered the appropriations for the Parliament.
That Committee noted the unique constitutional position of the Parliament
vis-à-vis the Executive. That Committee noted section 53 of the Constitution’s
reference to the ‘ordinary annual services of the Government’ before observing:
the Parliament may be ordinary; it may be annual; it may
even be regarded as a service; but it is not a service of the
Government. It is therefore inconsistent with the concept of the separation
of powers and the supremacy of Parliament to treat the provisions made for the
Parliament as being an ordinary annual service of the Government.[33]
(emphasis added).
That Committee recommended:
... all items of expenditure administered by the Executive
departments on behalf of the Parliament be brought together in [a]
Parliamentary Appropriation Bill ...
Since 1982, the appropriations for the Parliamentary
departments have been provided for via a distinct Appropriation Bill.
Quarantining appropriations in this way only applies to
the Parliamentary departments (of which there are currently four).[34]
It does not extend to other aspects of the finances of the Parliament, such as
providing for the remuneration and allowances of parliamentarians.
Despite the fact that, under the Constitution, the
Judiciary is also distinct from the Executive, there is no equivalent practice
whereby the Judiciary is provided for via a distinct Appropriation Bill.
Advances to the Finance Minister and the Presiding
Officers
The advance to the Finance Minister and the advance to the
responsible Presiding Officers is an appropriation of moneys without any
particular outcome or purpose specified. The advances are established in the
first Appropriation Acts each year. The advances are then replenished whenever
supplementary Appropriation Acts are passed.
The Finance Minister may use the amount appropriated as an
advance to modify the schedule to the Appropriation Act, but only where:
the Finance Minister is satisfied
that there is an urgent need for expenditure, in the current year, that is not
provided for, or is insufficiently provided for, [...]:
(a) because of an erroneous
omission or understatement; or
(b) because
the expenditure was unforeseen until after the last day on which it was
practicable to provide for it in the Bill for this Act before that Bill was
introduced into the House of Representatives.[35]
The Explanatory Memorandum asserts that an advance may
also be used to add a new item or outcome to the schedule.[36]
An equivalent legislative scheme is proposed for the
Presiding Officers.[37]
The amount of appropriation proposed to be allocated to
the advance to the Finance Minister in 2016–17 is $295 million in relation to
the ordinary annual services of the Government; and $380 million in relation to
the other annual services of the Government.[38]
For the Presiding Officers of the Parliament, the amounts
of appropriation proposed to be allocated to the advance in 2016–17 are:
- $300,000 each in relation to the:
- Department of the Senate[39]
- Department of the House of Representatives[40] and
- Parliamentary Budget Office[41]
and
- $1,000,000 in relation to the Department of Parliamentary Services.[42]
In order to access an advance, the Finance Minister or
Presiding Officers, as the case may be, must issue a determination under the
relevant Appropriation Act. A determination is a legislative instrument, but
disallowance and sunsetting under section 42 and Part 4 of Chapter 3 of the Legislation Act
2003[43]
respectively do not apply.[44]
Debit limits
In addition to appropriating moneys for the other annual
services of the Government, Part 4 of the No. 2 Bill also sets a maximum
amount—known as a ‘debit limit’—that may be provided to the states and
territories under four specific grant programs.
The legal appropriation for the four grant programs are
provided by the special appropriation in section 80 of the Public
Governance, Performance and Accountability Act 2013, which provides a
standing appropriation for debits from special accounts. However, the design of
the legislative schemes associated with each of the four grant programs
requires that the maximum annual amount that may be debited under each program
each year is to be set in an annual appropriation Bill. The four grant programs
are as follows:
- grants from the Building Australia Fund provided for by Part 2.2
of the Nation-building
Funds Act 2008[45]
- grants from the Education Investment Fund provided for by Part
3.2 of the Nation-building Funds Act[46]
- grants of general purpose financial assistance (other than the
revenue from the Goods and Services Tax) provided under section 9 of the Federal Financial
Relations Act 2009[47]
and
- grants made as National Partnership Payments via section 16 of
the Federal Financial Relations Act.
Because the Compact prevents the No. 1 Bill from dealing
with grants to the states and territories, the debit limits are set in the No.
2 Bill.
The Supply Act (No. 2) 2016–2017 provided debit
limits that were about five-twelfths (5/12) of the total amount budgeted to be
debited from the four funds in 2016–17. Subsection 13(5) of the Supply Act
(No. 2) 2016–2017 provides that, if another appropriation Bill proposed
another amount as a debit limit for the current year, that other amount is to
be added to the amount provided in the Supply Act (No. 2) 2016–2017 to
arrive at a total debit limit for 2016–17.
Table 1 shows the cumulative debit limits proposed to be
made available in 2016–17; the proposed payments under each of the four grant
programs in 2016–17; and the amount the debit limit exceeds (or falls short of)
the budgeted payments under each of the four grant programs in 2016–17.
Table 1: Debit limit reconciliation
Fund |
Debit limit
set in Supply
Act (No 2)
2016–2017 |
Debit limit
proposed in
No. 2 Bill |
Cumulative
debit limit
for 2016–17 |
Proposed
expenditure in
2016–17 |
Excess or
deficiency |
|
$’m |
$’m |
$’m |
$’m |
$’m |
Building Australia Fund |
192.3 |
269.3 |
461.6 |
126.3[48] |
335.3 |
Education Investment Fund |
17.5 |
5.1 |
22.6 |
26.7[49] |
-4.1 |
General purpose financial assistance |
2,083.3 |
2,916.7 |
5,000.0 |
604.5[50] |
4,395.5 |
National Partnership Payments |
10,416.7 |
14,583.3 |
25,000.0 |
12,513.0[51] |
12,487.0 |
Source: Department of Finance (Finance), Portfolio
budget statements 2016–17: budget related paper no. 1.8, Finance,
Canberra, May 2016, p. 31; Department of the Treasury (Treasury), Portfolio
budget statements 2016–17: budget related paper no. 1.16, Treasury,
Canberra, May 2016, p. 22.
Table 1 shows that, aside from the
Education Investment Fund,[52]
the debit limits proposed for each of the grant programs is generally far in
excess of that required to meet the proposed expenditure under each of those
grant programs. For example, the debit limit proposed for National Partnership
Payments is $12.5 billion above the proposed National Partnership Payment
grants in 2016–17; or twice the amount required.
If the debit limits were set to the amounts proposed in the
No. 2 Bill, the Executive would be free to make grants to the states and the
territories up to the value of the excess, without any further approval by the
Parliament.
Committee consideration
Senate Standing Committee for the Scrutiny of Bills
In its Alert Digest No. 7 of 2016, the Senate Standing
Committee for the Scrutiny of Bills made comments in relation to the No. 1 Bill
and the No. 2 Bill.[53]
Appropriation Bill (No. 1) 2016–2017
In relation to the No. 1 Bill, the Committee noted that
initial expenditure for some items of expenditure announced in the 2016–17
Budget were inappropriately being treated as part of the ordinary annual
services of Government because of their inclusion in the No. 1 Bill. The
Committee identified three measures as potentially being erroneously included
in the No. 1 Bill. These measures were:
- Australian International Education — enabling growth and
innovation[54]
- Investment Approach to Welfare — Try, Test and Learn Fund[55]
and
- National Carp Control Plan.[56]
In relation to this matter, the Committee said:
The committee again notes that this approach is not
consistent with the Senate resolution of 22 June 2010 relating to the
classification of ordinary annual services expenditure in appropriation bills.
The committee reiterates its agreement with the comments made
on this matter by the Senate Standing Committee on Appropriations and Staffing,
and in particular that the division of items in appropriation bills since the
adoption of accrual budgeting has been based on a mistaken assumption that any
expenditure falling within an existing outcome should be classified as ordinary
annual services expenditure.
The committee draws the 2010 Senate resolution to the
attention of Senators and notes that the inappropriate classification of items
in appropriation bills undermines the Senate’s constitutional right to amend
proposed laws appropriating revenue or moneys for expenditure on all matters
not involving the ordinary annual services of the government. Such
inappropriate classification of items impacts on the Senate’s ability to effectively
scrutinise proposed appropriations as the Senate may be unable to distinguish
between normal ongoing activities of government and new programs or projects.
The committee draws this matter to the attention of Senators
as it appears that the initial expenditure in relation to some items in the
latest set of appropriation bills may have been inappropriately classified as
ordinary annual services (and therefore improperly included in Appropriation
Bill (No. 1) 2016-2017 which should only contain appropriations that are not
amendable by the Senate).
The committee will continue to draw this important matter to
the attention of Senators where appropriate in the future.[57]
Appropriation Bill (No. 2) 2016–2017
In relation to the No. 2 Bill, the Committee raised a
specific concern with the clause 16 of the Bill, which would allow the
Executive to determine the terms and conditions that attach to the grants of
financial assistance to the states and territories proposed to be provided by that
Bill. The Committee noted that under section 96 of the Constitution, the
Parliament, not the Executive, was vested with the power to make grants to the
states, but that typically the Parliament has delegated that power to the
Executive via legislation.
The Committee went on to raise a broader question about
the various legislative provisions under which the power to make grants to the
states and territories had been delegated by the Parliament to the Executive.
The Committee concluded by making the following request of the Minister:
committee seeks the Minister’s advice as to:
- whether future Budget documentation (such as Budget Paper No. 3
‘Federal Financial Relations’) could include general information about:
- the statutory provisions across the Commonwealth statute book
which delegate to the Executive the power to determine terms and conditions
attaching to grants to the States; and
- the general nature of terms and conditions attached to these
payments (including payments made from standing and other appropriations); and
-
whether the Department of Finance is able to issue guidance
advising departments and agencies to include the following information in their
portfolio budget statements where they are seeking appropriations for payments
to the States, Territories and local government in future appropriation bills:
-
the particular purposes to which the money for payments to the
States, Territories and local government will be directed (including a
breakdown of proposed grants by State/Territory);
-
the specific statutory or other provisions (for example in the Federal
Financial Relations Act 2009, the COAG Reform Fund Act 2008, Local
Government (Financial Assistance) Act 1995 or special legislation or
agreements) which detail how the terms and conditions to be attached to the
particular payments will be determined; and
- the nature of the terms and conditions attached to these
payments.[58]
Senate Estimates
The particulars of the three Bills were referred to the
Senate legislative and general purposes standing committees under Senate
standing order 26 for examination and report.[59]
This process is generally known as Senate Estimates. On 31 August 2016 the
Senate resolved to hold the 2016–17 supplementary Budget estimates hearings
between 17 and 20 October 2016.[60]
Financial implications
The No. 1 Bill proposes to appropriate $49,425,332,000
($49.4 billion) from the CRF.[61]
The No. 2 Bill proposes to appropriate $8,702,002,000 ($8.7
billion) from the CRF.[62]
The Parliamentary Departments Bill proposes to appropriate
$147,224,000 ($147.2 million) from the CRF.[63]
The total amount of money proposed to be appropriated by
the three Bills is $58,274,558,000 ($58.3 billion).
Table 2 shows the total amount of appropriation that has
been provided to each portfolio by the Supply Act (No. 1) 2016–2017
and the Supply Act (No 2) 2016–2017 and the amount of appropriation
proposed to be provided in the No. 1 Bill and the No. 2 Bill.
Table 2: Annual appropriation available, or proposed to be
made available, for 2016–17, by portfolio
|
Supply Act
(No. 1)
2016–2017
|
Supply Act
(No. 2)
2016–2017
|
Appropriation Bill (No. 1)
2016–2017
(October
2016 version)
|
Appropriation Bill (No. 2)
2016–2017
(October
2016 version)
|
Total
|
|
$'000 |
$'000 |
$'000 |
$'000 |
$'000 |
Portfolio |
|
|
|
|
|
Agriculture and Water Resources |
397,322 |
186,054 |
560,766 |
310,625 |
1,454,767 |
Attorney‑General’s |
1,228,932 |
30,481 |
1,762,709 |
106,946 |
3,129,068 |
Communications and the Arts |
982,683 |
3,482,054 |
1,405,327 |
4,875,110 |
10,745,174 |
Defence |
12,432,242 |
970,373 |
18,047,727 |
1,377,403 |
32,827,745 |
Education and Training |
985,903 |
19,801 |
1,333,716 |
29,590 |
2,369,010 |
Employment |
988,654 |
- |
1,235,196 |
6,703 |
2,230,553 |
Environment and Energy |
602,742 |
67,766 |
901,853 |
96,293 |
1,668,654 |
Finance |
466,489 |
23,666 |
422,269 |
47,814 |
960,238 |
Foreign Affairs and Trade |
2,696,110 |
464,829 |
3,775,608 |
655,325 |
7,591,872 |
Health |
4,361,881 |
74,656 |
6,193,565 |
104,969 |
10,735,071 |
Immigration and Border
Protection |
1,836,515 |
93,944 |
2,766,432 |
227,309 |
4,924,200 |
Industry, Innovation and Science |
877,968 |
33,716 |
1,244,880 |
42,630 |
2,199,194 |
Infrastructure and Regional
Development |
589,301 |
380,449 |
883,556 |
543,736 |
2,397,042 |
Prime Minister and Cabinet |
835,024 |
22,004 |
1,183,762 |
30,955 |
2,071,745 |
Social Services |
3,729,804 |
85,607 |
5,065,326 |
123,918 |
9,004,655 |
Treasury |
2,020,880 |
64,758 |
2,642,640 |
122,676 |
4,850,954 |
|
|
|
|
|
|
Total |
35,032,450 |
6,000,158 |
49,425,332 |
8,702,002 |
99,159,942 |
Source: Supply Act (No. 1) 2016–2017; Supply Act
(No 2) 2016–2017; Appropriation Bill (No. 1) 2016–2017; Appropriation Bill
(No. 2) 2016–2017.
Table 3 shows the total amount of appropriation that has
been provided to each Parliamentary department by the Supply (Parliamentary
Departments) (No. 1) Act 2016–2017 and the amount of appropriation proposed
to be provided in the Parliamentary Departments Bill 2016–2017.
Table 3: Annual appropriation available, or proposed to be
made available, for 2016–17, by parliamentary department
|
Supply (Parliamentary Departments) (No. 1)
Act 2016–2017 |
Appropriation (Parliamentary Departments) Bill (No. 1)
2016–2017 |
Total |
|
$'000 |
$'000 |
$'000 |
Parliamentary department |
|
|
|
Department of the Senate |
8,436 |
15,322 |
23,758 |
Department of the House of Representatives |
9,058 |
16,065 |
25,123 |
Department of Parliamentary Services |
76,374 |
111,799 |
188,173 |
Parliamentary Budget Office |
2,884 |
4,038 |
6,922 |
|
|
|
|
Total |
96,752 |
147,224 |
243,976 |
Source: Supply (Parliamentary Departments) (No. 1) Act 2016–2017;
Appropriation (Parliamentary Departments) Bill (No. 1) 2016–2017.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth),[64]
the Government has assessed the three Bills’ compatibility with the human
rights and freedoms recognised or declared in the international instruments
listed in section 3 of that Act. In relation to the human rights implications
of the Bills, the Government states:
1
The Bill seeks to appropriate money for the ordinary annual services of
the Government [or services that are not considered to be ordinary annual
services; or expenditure by the Parliamentary departments, as relevant].
2
Accordingly, the Bill performs an important constitutional
function, by authorising the withdrawal of money from the CRF for the broad
purposes identified in the Bill.
3
However, as the High Court has emphasised, beyond this, Appropriation
Acts do not create rights and nor do they, importantly, impose any duties.
4
Given that the legal effect of Appropriation Bills is limited in this
way, the Bill is not seen as engaging, or otherwise affecting, the rights or
freedoms relevant to the Human Rights (Parliamentary Scrutiny) Act 2011.
5
Detailed information on the relevant appropriations, however, is
contained in the portfolio statements.[65]
In relation to previous appropriation Bills, however, the
Parliamentary Joint Committee on Human Rights has stated as follows:
The committee notes that it does not anticipate it will
generally be necessary for it to make substantive comments on appropriation
bills... Nonetheless, the committee considers that there may be cases in which
the committee considers it appropriate to comment on such bills. These might
include specific appropriation bills or specific appropriations where there is
an evident and substantial link to the carrying out of policy or programs under
legislation that gives rise to human rights concerns and where the issues have
not been adequately addressed in its examination of the substantive legislation
or there has not been an opportunity for such examination.
The committee, however, notes that appropriation bills are
highly technical in nature and it is likely to be difficult for the committee
to identify particular human rights concerns in the time available. The
committee would therefore find it helpful if the statements of compatibility
accompanying these bills identified any proposed cuts in expenditure which may
amount to retrogression or limitations on human rights, in particular economic,
social and cultural rights.[66]
In subsequent reports of the Parliamentary Joint Committee
on Human Rights, the Committee has further considered the potential human
rights implications of Appropriation Bills.[67]
In response to these concerns, the Finance Minister, Senator Cormann, has
advised the Committee, inter alia:
The policy development process does ... by its
nature require an assessment of all factors that might relate to the relevant
policies, including environmental, legal, economic, social and moral factors.
The Attorney-General's Department has developed an assessment tool and
educational materials for use by policy officers to strengthen the capacity to
develop policies, programs and legislation consistent with human rights.[68]
Despite the Minister’s assurances, the Committee
maintained a concern that some appropriation Bills in some instances may impact
adversely on human rights.[69]
At the time of writing, the Bills that are the subject of
this Bills Digest had not been considered by the Parliamentary Joint Committee
on Human Rights.
[1]. Supply Act (No 1) 2016–2017.
[2]. Supply Act (No. 2)
2016–2017.
[3]. Supply
(Parliamentary Departments) Act 2016–2017.
[4]. M
Turnbull (Prime Minister), Transcript
of press conference: Parliament House: Canberra, media release, 21
March 2016.
[5]. Australian
Associated Press (AAP), ‘Supply
bills to keep government running’, 9NEWS.com.au, 28 April 2016.
[6]. Ibid.
[7]. Parliament
of Australia, ‘Supply
Bill (No 1) 2016–2017 homepage’, Australian Parliament website.
[8]. Parliament
of Australia, ‘Supply Bill (No. 2) 2016–2017 homepage’,
Australian Parliament website.
[9]. Parliament
of Australia, ‘Supply
(Parliamentary Departments) Bill (No. 1) 2016–17 homepage’, Australian
Parliament website.
[10]. Australia,
Senate, Journals,
152, 2013–16, 3 May 2016, p. 4196; Supply Act (No. 1)
2016–2017; Supply
Act (No. 2) 2016–2017; Supply
(Parliamentary Departments) Act 2016–2017.
[11]. Parliament
of Australia, ‘Appropriation
Bill (No. 1) 2016–2017 homepage’, Australian Parliament website; ‘ Appropriation
Bill (No. 2) 2016–2017 homepage’, Australian Parliament website; ‘Appropriation
(Parliamentary Departments) Bill (No. 1) 2016–2017 homepage’, Australian
Parliament website.
[12]. Explanatory
Memorandum, Appropriation Bill (No. 1) 2016–2017, pp. 11–12.
[13]. Department
of Finance (Finance), ‘Summary
of annual appropriations’, Finance website, last updated
15 June 2015.
[14]. Pape
v Commissioner of Taxation (2009) 238 CLR 1, [2009] HCA 23.
[15]. Constitution,
section 81.
[16]. Constitution,
section 83.
[17]. Constitution,
section 53.
[18]. Constitution,
section 56.
[19]. B
Wright and P Fowler, House
of Representatives practice, 6th edn, Department of the House of
Representatives, Canberra, 2012, p. 424.
[20]. Constitution, section
54: ‘The proposed law which appropriates revenue or moneys for the ordinary
annual services of the Government shall deal only with such proposed
appropriation’.
[21]. J
Odgers, H Evans and R Laing, Odgers’
Australian Senate practice, 13th edn, Department of the Senate, Canberra,
2012, p. 369.
[22]. Senate
Standing Committee on Appropriations and Staffing, Ordinary
annual services of the government, Report, 50, The Senate, Canberra, June 2010.
[23]. Australia,
Senate, Journals,
127, 2008–10, 22 June 2010, pp. 3642–43.
[24]. Osborne
v Commonwealth (1911) 12 CLR 321, [1911]
HCA 19 per Griffith CJ at [336].
[25]. Constitution,
section 53.
[26]. Wright
and Fowler, House of Representatives practice, op. cit., p. 430.
[27]. Australian
Accounting Standards Board (AASB), Australian
Accounting Standard 1050 Administered items, AASB website, December 2013.
[28]. Combet
v Commonwealth (2005) 224 CLR 494, [2005]
HCA 61, per Gummow, Hayne, Callinan and Heydon JJ at [123].
[29]. Attorney-General
(Vic); Ex rel Dale v Commonwealth (‘Pharmaceutical Benefits case’) (1945) 71
CLR 237, [1945]
HCA 30, per Latham CJ at [253].
[30]. Department
of Finance, Guidance
for the preparation of the 2014–15 portfolio budget statements, March
2014, p. 21.
[31]. Department
of Finance, Guide
to preparing the 2016–17 portfolio budget statements, March 2016, p. 31.
[32]. Public Governance,
Performance and Accountability Act 2013, section 11, ‘Note’.
[33]. Australia,
Parliament, Parliament’s
appropriations and staffing: report of the Senate Select Committee,
Parl. Paper 151, Canberra, 1981, p. 18.
[34]. Namely:
Department of the Senate, Department of the House of Representatives;
Department of Parliamentary Services, and the Parliamentary Budget Office.
[35]. Appropriation
Bill (No. 1) 2016–2017, clause 10; Appropriation Bill (No. 2) 2016–2017, clause
12.
[36]. Explanatory
Memorandum, Appropriation Bill (No. 1) 2016–2017, p. 9; Explanatory
Memorandum, Appropriation Bill (No. 2) 2016–2017, p. 10.
[37]. Appropriation
(Parliamentary Departments) Bill (No. 1) 2016–2017, clause 11.
[38]. Appropriation
Bill (No. 1) 2016–2017, subclause 10(3); Appropriation Bill (No. 2) 2016–2017,
subclause 12(3).
[39]. Appropriation
(Parliamentary Departments) Bill (No. 1) 2016–2017, subclause 11(3).
[40]. Appropriation
(Parliamentary Departments) Bill (No. 1) 2016–2017, subclause 11(4).
[41]. Appropriation
(Parliamentary Departments) Bill (No. 1) 2016–2017, subclause 11(6).
[42]. Appropriation
(Parliamentary Departments) Bill (No. 1) 2016–2017, subclause 11(5).
[43]. Legislation Act
2003.
[44]. Appropriation
Bill (No. 1) 2016–2017, subclause 10(5); Appropriation Bill (No. 2) 2016–2017,
subclause 12(5); Appropriation (Parliamentary Departments) Bill (No. 1)
2016–2017, subclause 11(8).
[45]. Nation-building
Funds Act 2008, section 109.
[46]. Ibid.,
section 199.
[47]. Federal Financial
Relations Act 2009.
[48]. Australian
Government, Portfolio budget
statements 2016–17: budget related paper no. 1.8: Finance Portfolio, May 2016, p. 31.
[49]. Ibid.
[50]. Australian
Government, Portfolio
budget statements 2016–17: budget related paper no. 1.16: Treasury Portfolio,
May 2016, p. 22.
[51]. Ibid.,
p. 23.
[52]. The
debit limit for which appears to be insufficient to provide for the proposed
expenditure by $4.1 million.
[53]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 7, 2016, The Senate, 12 October 2016.
[54]. Australian
Government, Budget
measures: budget paper no. 2: 2016–17, p. 76.
[55]. Ibid.,
p. 142.
[56]. Ibid.,
p. 129.
[57]. Senate
Standing Committee for the Scrutiny of Bills, Alert digest, 7, 2016, op.
cit., p. 4.
[58]. Ibid.,
pp. 7–8.
[59]. The
Senate. Standing
orders and other orders of the Senate, Standing order 26, The Senate,
Canberra, August 2015.
[60]. Australia,
Senate, Journals,
2, 2016, 31 August 2016, pp. 76–77.
[61]. Appropriation
Bill (No. 1) 2016–2017, clause 6.
[62]. Appropriation
Bill (No. 2) 2016–2017, clause 6.
[63]. Appropriation
(Parliamentary Departments) Bill (No. 1) 2016–2017, clause 6.
[64]. Human Rights
(Parliamentary Scrutiny) Act 2011.
[65]. Explanatory
Memorandum, Appropriation Bill (No. 1) 2016–2017, p. 4; Explanatory
Memorandum, Appropriation Bill (No. 2) 2016–2017, p. 4; Explanatory
Memorandum, Appropriation (Parliamentary Departments) Bill (No. 1)
2016–2017, p. 4.
[66]. Parliamentary
Joint Committee on Human Rights (PJCHR), Examination
of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act
2011, Report, 3, 2013, Commonwealth of Australia, Canberra, 13 March 2013,
p. 66.
[67]. See:
PJCHR, Twenty-third
report of the 44th Parliament, 18 June 2015; PJCHR, Thirty-fourth
report of the 44th Parliament, 23 February 2016.
[68]. PJCHR,
Twenty-third report of the 44th Parliament, op. cit., p. 17.
[69]. Ibid.
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