EXPLANATORY STATEMENT

Issued by the authority of the Minister for Finance

Public Governance, Performance and Accountability Rule 2014

Public Governance, Performance and Accountability Amendment

(Corporate Plans) Rules 2020

The Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) set out a framework for regulating resource management by Commonwealth entities and companies. Section 101 of the PGPA Act provides that the Finance Minister may make rules by legislative instrument to prescribe matters necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

The Public Governance, Performance and Accountability Amendment (Corporate Plans) Rules 2020 (the Amending Rule) amends the PGPA Rule to enable accountable authorities of Commonwealth entities and directors of Commonwealth companies impacted by COVID-19 to defer the publication of corporate plans prepared for a reporting period beginning on 1 July 2020 up until 31 January 2021.

Details of the Amending Rule are set out at Attachment A. A statement of compatibility with human rights is at Attachment B.

The Amending Rule is a legislative instrument for the purposes of the Legislative Instruments Act 2003 and is a disallowable instrument. 

Consultation

The Department of Finance worked with the Office of Parliamentary Counsel in developing the Amending Rule. Commonwealth entities and companies have been informed of the proposed amendment of the PGPA Rule.

Attachment A

Details of the Public Governance, Performance and Accountability Amendment
(Corporate Plans) Rules 2020

Section 1—Name of rule

This section provides that the title of the instrument is the Public Governance, Performance and Accountability Amendment (Corporate Plans) Rules 2020 (the Amending Rule).

Section 2—Commencement

This section provides that each provision of the instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.

The entire instrument commences on the day after the Amending Rule is registered.

Section 3—Authority

This section states that the Amending Rule is made under the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

Section 4—Schedules

This section provides that each legislative instrument that is specified in a Schedule to the Amending Rule is amended or repealed as set out, and that any item in a Schedule to this instrument operates or is applied as specified in the Schedule.

Schedule 1 – Amendments

Public Governance, Performance and Accountability Rule 2014

Item 1 – Subsections 16E(6) and (7)

Item 1 omits “last day of the second month of the reporting period for which the plan is prepared”, and substitutes “day specified in that subsection”. This is a technical amendment, recognising that the PGPA Rule specifies dates for the publication of corporate plans other than the last day of the second month of the reporting period. For example, subsection 40(2) provides that subsection 16E(3) applies as if it requires the plan to be published by 31 January 2021.

Item 2 – In the appropriate position in Chapter 5

Item 2 inserts a new Part 9 – Publication deadline for 2020-21 corporate plans.

Subsection 40(1) provides that section 40 applies in relation to a corporate plan for a Commonwealth entity that is prepared for a reporting period starting on 1 July 2020. For most Commonwealth entities, this means that the amendment will apply to their 2020-21 corporate plan.

Subsection 40(2) provides that if an accountable authority of a Commonwealth entity considers that, because of the impact of the coronavirus known as COVID-19 on the entity, it is not reasonably practicable for their corporate plan to be prepared and published by the day (‘the original specified day’) specified in subsection 16E(3), then:

·         subsection 16E(3) applies as if it requires the plan to be published by 31 January 2021; and

·         the plan must set out the accountable authority’s reasons for considering that, because of the impact of the coronavirus known as COVID-19 on the entity, it is not reasonably practicable for the plan to be prepared and published by the original specified day.

Subsection 40(3) clarifies that subsection 40(2) does not affect the operation of subsection 16E(6) (variation of corporate plan) or (7) (corporate plan for new entity). Under subsections 16E(6) and (7), in the case of a variation of corporate plan or new corporate plan, respectively, subsection 16E(3) applies as if it requires the plan to be published as soon as practicable after the plan is prepared.

Subsection 40(4) provides that subsections (1) to (3) apply to a Commonwealth company in the same way as those subsections apply to a Commonwealth entity.

Subsection 40(5) provides that, for the purposes of subsection (4), a reference in subsection (2) to the accountable authority of the Commonwealth entity is taken to be a reference to the directors of the Commonwealth company.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Public Governance, Performance and Accountability Amendment (Corporate Plans) Rules 2020

The Public Governance, Performance and Accountability Amendment (Corporate Plans) Rules 2020 (Amending Rule) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

The Public Governance, Performance and Accountability Act 2013 (PGPA Act) establishes a framework for regulating resource management by the Commonwealth and relevant entities and companies. Section 101 of the PGPA Act provides that the Finance Minister may make rules by legislative instrument to prescribe matters giving effect to the Act.

The Amending Rule is being made to amend the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule). The PGPA Rule is to support the implementation of the PGPA Act.

The legislative instrument amends the PGPA Rule to set an alternative publication deadline for corporate plans for the 2020-21 reporting period for entities and companies impacted by the coronavirus known as COVID-19.

Human rights implications

The legislative instrument does not engage any of the applicable rights or freedoms.

Senator the Hon Mathias Cormann