BILLS DIGEST NO. 56, 2020–21    30 March 2021

Appropriation Bill (No. 3) 2020-2021 [and] Appropriation Bill (No. 4) 2020-2021

Phillip Hawkins
Economic Policy Section

Date introduced: 18 February 2021

House: House of Representatives

Portfolio: Finance

Commencement: The Bills commence on Royal Assent.

Links: The links to the Appropriation Bill (No. 3) 2020–2021 and the Appropriation Bill (No. 4) 2020–2021can be found on the Bill’s home pages, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at March 2021.

Purpose of the Bill

The purpose of the Appropriation Bill (No. 3) 2020–2021 (the No. 3 Bill) is to propose additional annual appropriations from the Consolidated Revenue Fund (CRF) of $2,505,148,000 ($2.5 billion) for the ordinary annual services of the Government for the 2020–21 financial year. These are in addition to the amounts of $76,364,376,000 ($76.4 billion) appropriated by the Supply Act (No. 1) 2020–2021 (the No. 1 Supply Act)and $36,809,121,000 ($36.8 billion) by the Appropriation Act (No. 1) 2020–2021 (the No. 1 Appropriation Act).

Of the additional appropriations proposed in the No. 3 Bill:

• $761,601,000 ($0.8 billion) is for the departmental activities of government entities and

• $1,743,547,000 ($1.7 billion) is for activities that government entities administer on behalf of the Commonwealth Government.

The purpose of the Appropriation Bill (No. 4) 2020–2021 (the No. 4 Bill) is to propose additional annual appropriations from the CRF of $141,300,000 ($0.14 billion) for non-operating activities. These are in addition to the amounts of $6,665,982,000 ($6.7 billion) appropriated by the Supply Act (No. 2) 2020–2021 (the No. 2 Supply Act) and $14,854,576,000 ($14.9 billion) by the Appropriation Act (No. 2) 2020–2021 (the No. 2 Appropriation Act). Schedule 1 of the No. 3 Bill and No. 4 Bill provide the following summaries of the proposed amounts to be appropriated by Portfolio.

Table 1: summary of the proposed amounts to be appropriated by Portfolio

Portfolio

No. 3 Bill

$’000

No. 4 Bill

$’000

Agriculture, Water and the Environment

24,857

4,220

Attorney General’s

32,078

-

Defence

261,184

11

Education, Skills and Employment

237,493

158

Finance

46,183

-

Foreign Affairs and Trade

338,710

11,128

Health

720,593

2,338

Home Affairs

94,075

61,669

Industry, Science, Energy and Resources

145,378

6,050

Infrastructure, Transport, Regional Development and Communications

411,682

34,092

Prime Minister and Cabinet

37,409

14

Social Services

146,920

21,620

Treasury

8,586

-

Total additional appropriations

2,505,148

141,300

Source: Appropriation Bill (No. 3) 2020–2021 and Appropriation Bill (No. 4) 2020–2021, Schedule 1.

1 Structure of the Bills

Part 1 of both Bills deals with preliminary matters, including when the Acts commence, and how to interpret the Acts.

Part 2 of both Bills outlines the quantum and types of appropriation from the CRF.

Part 3 of both Bills amend the Advance to the Finance Minister (AFM) for 2020–2021.

Part 4 of each Bill deals with technical matters including crediting amounts to special accounts, the formal appropriation of moneys from the CRF, and the subsequent automatic repeal of the Acts.

Schedule 1 of both Bills contain the details of the additional amounts and types of appropriation to be made to each entity. The No. 3 Bill identifies the outcomes against which additional appropriations are proposed.

2 Background

About appropriations

An appropriation is the legal release of monies from the CRF.¹ The CRF is established by section 81 of the Constitution, which provides:

All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth …²

Section 83 of the Constitution provides that no money may be withdrawn from the CRF ‘except under appropriation made by law’. 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.

There are broadly speaking two types of appropriations, annual appropriations and special appropriations.

• Annual appropriations are those that provide annual funding to Commonwealth entities, such as Departments, to undertake ongoing government activities. These appropriations are given authority through the Appropriation Acts which relate to the specific Budget year. These appropriations are limited to the amount set out in the Appropriation Act.³

• Special appropriations are appropriations that are not annual appropriations. They provide authority to spend money for specific purposes (e.g. to finance particular projects or provide social security payments). The authority to appropriate, and the criteria that must be met to appropriate those monies are not set out in the annual appropriation Acts, but rather Acts that authorise Government to expend money from the CRF for specified purposes, for example the Social Security (Administration Act) 1999.⁴

Annual appropriations account for around 25 per cent of Australian Government expenditures with the remaining 75 per cent funded through Special Appropriations.⁵

It is important to note that annual and special appropriations, 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.⁶

Annual appropriations

The No. 3 and No. 4 Bills seek to make additional annual appropriations from the CRF and are part of the annual appropriation process.

The annual appropriation amounts for the year are part of the annual Budget process with the first Appropriation Bills for a Budget year generally being introduced on Budget night (usually in May of the preceding financial year).⁷ The Budget Speech is the second reading speech for the No. 1 Appropriation Bill.⁸ Details of the proposed expenditure for which annual appropriations are made are detailed in Portfolio Budget Statements which are released with the Budget.⁹

However, the Government will generally require additional monies throughout the year as it makes further expenditure decisions. As such, it will introduce additional annual appropriation bills throughout the year.¹⁰ The No. 3 and No. 4 Bills are such Bills. Details of the additional expenditure to be funded through these appropriation Bills are disclosed in Portfolio Additional Estimates Statements.¹¹

Powers of the House of Representative to appropriate

Section 53 of the Constitution provides that laws appropriating money may not originate in the Senate.¹² Further, under section 56 of the Constitution, all proposed laws for the appropriation of money may only be passed following a recommendation by the Governor-General. By convention the Governor-General acts only upon the advice of the Executive, so in practice section 56 prevents non-government members of the House of Representatives introducing Bills that would propose to appropriate money from the CRF.¹³

Powers of the Senate to amend

The Senate may not amend proposed laws appropriating revenue or moneys for the ordinary annual services of the Government. The Senate may, however, return to the House of Representatives any such proposed laws requesting, by message, the omission or amendment of any items or provisions.¹⁴

The Senate may amend proposed laws appropriating revenue 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’.¹⁵ Conceivably, the Senate could amend an appropriation Bill for the other services of Government to, for example, redirect the proposed appropriation to another purpose, or reduce the proposed appropriation to nil. The Senate may also request that, if new measures are included in a Bill for the ‘ordinary annual services of Government’, the Bill be returned to the House with a message requesting those new measures be omitted from the Bill.

The ‘ordinary annual services of government’ versus the ‘other’ services of government

Section 54 of the Constitution requires that there be a separate law appropriating funds for the ‘ordinary annual services of government’, and that other matters must not be dealt with in the same Bill. However, what constitutes the ‘ordinary annual services of the Government’ and ‘other’ services of the Government is not 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 1965.¹⁶ Several amendments have been made to the Compact since 1965, and in 2010 the Senate Standing Committee on Appropriations and Staffing recommended the Senate restate the Compact in a consolidated form.¹⁷ 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.¹⁸

Adherence to the Compact has not always been strict, and the High Court has held that any disagreements between the Houses are not justiciable.¹⁹ Any disputes are to be determined between the Houses themselves.

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.²⁰ Generally, administered expenses are the costs of 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. An administered appropriation may be used only for the program or outcome that it is appropriated for, while a departmental appropriation may be moved between different departmental activities.²¹

Outcomes and programs

While the level of detail necessary for an Appropriation Act to be valid is generally low,²² in the Pharmaceutical Benefits case the High Court held:

… there cannot be appropriations in blank, appropriations for no designated purpose, merely authorising expenditure ...²³

The Appropriation Bills must, therefore, also describe—in general terms—what the moneys are to be utilised for. 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 2019, the Department of Finance explained ‘outcome statements’ in the following terms:

Outcome statements articulate Government objectives and serve three main purposes within the financial framework:

1.    to explain the purposes for which annual appropriations are approved by the Parliament for use by entities

2.     to provide a basis for budgeting and reporting against the use of appropriated funds

3.     to measure and assess entity and program non-financial performance in contributing to Government policy objectives.²⁴

Appropriations for corporate Commonwealth entities

As corporate Commonwealth entities are legally distinct from the Commonwealth itself, money cannot be appropriated directly to those entities.²⁵ 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 monies 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 may make payments to the states with or without conditions, and amounts intended for payments to the states are identified separately. 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.

Advance to the Finance Minister

The Advance to the Finance Minister, as outlined in Part 3 of each Bill, is an appropriation of moneys without any particular outcome or specific purpose specified. According to the Appropriation Acts, 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.²⁶

In order to access an advance, the Finance Minister 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 respectively do not apply.²⁷

The AFM for the 2020–21 Budget year was limited by the No. 1 and No. 2 Supply Acts and later the No. 1 and No. 2 Appropriation Acts. Under the Supply Acts the AFM was set at $16 billion for the ordinary annual services of Government,²⁸ and $24 billion in relation to the other annual services of the Government.²⁹ These advances were subsequently reset by the Appropriation Acts to $4.0 billion for the ordinary annual services of the Government³⁰ and $6.0 billion in relation to the other annual services of the Government.³¹

The No. 3 and No. 4 Bills propose to ‘reset’ the AFM to $4.0 billion for the ordinary annual services of the Government³² and $6.0 billion in relation to the other annual services of the Government,³³ the same level as the Appropriation Acts but disregarding any previous determinations made in 2020–2021.

To date in 2020–2021, the Finance Minister has made six determinations, totalling $1.9 billion under the AFM in 2020–2021, this is outlined in Table 2 below. This includes around $1.3 billion under the No. 1 Supply Act and $0.6 billion under the No. 2 Supply Act.

Table 2: summary of advances to the Finance Minister in 2020–2021

Determination

Entity

Act

Amount

Advance to the Finance Minister Determination (No. 1 of 2020–2021)

Department of Infrastructure, Transport, Regional Development and Communications

Supply Act (No. 2) 2020–2021

$250,000,000

Advance to the Finance Minister Determination (No. 2 of 2020–2021)

Australian Trade and Investment Commission

Supply Act (No. 1) 2020–2021

$230,080,000

Advance to the Finance Minister Determination (No. 3 of 2020–2021)

Department of Health

Supply Act (No. 1) 2020–2021

$808,754,000

Advance to the Finance Minister Determination (No. 4 of 2020–2021)

Department of Health

Supply Act (No. 2) 2020–2021

$384,060,000

Advance to the Finance Minister Determination (No. 5 of 2020–2021)

Department of Infrastructure, Transport, Regional Development and Communications

Supply Act (No. 1) 2020–2021

$71,734,000

Advance to the Finance Minister Determination (No. 6 of 2020–2021)

Department of Social Services

Supply Act (No. 1) 2020–2021

$159,713,242

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (the Scrutiny Committee) considered both Bills together in its scrutiny committee report of 24 February 2021.³⁴

The Scrutiny Committee has general concerns that the AFM allows the Finance Minister to allocate additional funds to entities by delegated legislation, which is not disallowable, thereby limiting the ability of Parliament to scrutinise these appropriations.³⁵ It also notes that the AFM in 2020–2021 is significantly higher than in previous years, ostensibly to deal with unexpected additional expenditures due to the COVID-19 pandemic.³⁶ However, the AFM provisions are not limited to the purpose of funding COVID-19 related expenditures.³⁷

The Scrutiny Committee also raised a specific concern with the intention to disregard any potential determinations which may be made under the AFM established by the No. 1 and No. 2 Appropriation Bills by re-setting the AFM in the No. 3 and No. 4 Bills.³⁸ The Scrutiny Committee has sought to draw this to the attention of senators noting this could, in effect, make additional funds available for expenditure via a non-disallowable legislative instrument.³⁹

3 Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bills’ compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bills are compatible.⁴⁰

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) considered the Bills in its Scrutiny Report of 24 February 2021. The PJHCR made no comment on the Bills.⁴¹

4 Key provisions

No. 3 Bill

Clauses 6–9 of the No. 3 Bill outline the quantum and types of appropriation from the CRF.

Clause 10 of the No. 3 Bill restores the Advance to the Finance Minister to $4.0 billion for 2020‍–‍2021, for the ordinary annual services of Government, regardless of any determinations made by the Finance Minister under subsection 10(2) of the No. 1 Appropriation Act.

Clauses 11–13 of the No. 3 Bill provide for several technical matters, including details relating to special accounts, formally appropriating the amounts required from the CRF and the future repeal of the Act on 1 July 2023.

Schedule 1 of the No. 3 Bill provides details about the appropriations to both non-corporate entities and to corporate entities as defined by the Public Governance, Performance and Accountability Act 2013 (PGPA Act). Table 3 sets out the appropriations under each of the No. 1 Supply Act, the No. 1 Appropriation Act and the proposed appropriations under the No. 3 Bill for 2020–21.

Table 3: total appropriations for the ordinary annual services of Government 2020–21

Portfolio

No. 1 Supply Act 2020–21

$’000

No. 1

Appropriation

Act 2020–21

$’000

No. 3 Bill 2020–‍21

$’000

Agriculture, Water and the Environment

1,242,100

1,151,889

24,857

Attorney General’s

1,047,123

770,946

32,078

Defence

21,990,934

9,439,756

261,184

Education, Skills and Employment

4,245,151

3,461,202

237,493

Finance

433,702

818,533

46,183

Foreign Affairs and Trade

3,859,128

3,587,557

338,710

Health

12,194,754

3,690,012

720,593

Home Affairs

4,104,656

3,181,812

94,075

Industry, Science, Energy and Resources

1,765,050

1,703,836

145,378

Infrastructure, Transport, Regional Development and Communications

2,666,955

3,160,951

411,682

Prime Minister and Cabinet

1,223,083

998,426

37,409

Social Services

17,110,349

3,640,427

146,920

Treasury

4,481,391

1,203,774

8,586

Total

76,364,376

36,809,121

2,505,148

No. 4 Bill

Clauses 6–11 of the No. 4 Bill outline the quantum and types of appropriation from the consolidated revenue fund.

Clause 12 of the No. 4 Bill restores the Advance to the Finance Minister to $6.0 billion for 2020–‍2021 regardless of any determinations made by the Finance Minister under subsection 12(2) of the No. 2 Appropriation Act.

Clauses 13–15 of the No. 4 Bill provide for several technical matters including details relating to special accounts, formally appropriating the amounts required from the CRF and the future repeal of the Act on 1 July 2023.

The money in the No. 4 Bill is appropriated to incorporated and non-incorporated Government entities according to Schedule 1 of that Bill as non-operating (or ‘capital’) appropriations. These appropriations cannot be included in the No. 3 Bill as they do not relate to the ‘ordinary annual services of Government’.

Table 4 sets out the appropriations under each of the No. 2 Supply Act, the No. 2 Appropriation Act and the proposed appropriations under the No. 4 Bill for 2020–21.

Table 4: total appropriation for the other annual services of Government 2020–21

Portfolio

No. 2 Supply Act 2020–21

$’000

No. 2

Appropriation

Act 2020–21

$’000

No. 4 Bill 2020–‍21

$’000

Agriculture, Water and the Environment

377,220

2,474,068

4,220

Attorney General’s

1,164

10,135

-

Defence

3,433,328

8,495,030

11

Education, Skills and Employment

138,307

210,041

158

Finance

99,663

251,700

-

Foreign Affairs and Trade

77,045

73,313

11,128

Health

102,243

627,605

2,338

Home Affairs

60,064

85,497

61,669

Industry, Science, Energy and Resources

318,182

682,994

6,050

Infrastructure, Transport, Regional Development and Communications

1,908,427

1,427,598

34,092

Prime Minister and Cabinet

17,595

89,220

14

Social Services

8,112

190,009

21,620

Treasury

124,632

237,366

-

Total

6,665,982

14,854,576

141,300

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Notes

[←1]

.    Department of Finance (DoF), ‘Guide to appropriations—RMG 100’, DoF website, last updated 15 January 2021.

[←2]

.    Commonwealth of Australia Constitution Act (Constitution), section 81.

[←3]

.    DoF, op. cit.

[←4]

.    Ibid.

[←5]

.    Ibid.

[←6]

.    Pape v Commissioner of Taxation (2009) 238 CLR 1, [2009] HCA 23.

[←7]

.    The 2020–21 Budget was delayed from May 2020 to October 2020. As a result, the Parliament passed Supply Bill (No. 1) 2020–21 and Supply Bill (No. 2) 2020–21 to provide enough appropriations to cover the first seven months of the 2020–21 Budget year. See: Explanatory Memorandum, Supply Bill (No. 1) 2020–2021, p. 2; Explanatory Memorandum, Supply Bill (No. 2) 2020–2021, p. 2; Explanatory Memorandum, Appropriation Bill (No. 1) 2020–2021, p. 2; Explanatory Memorandum, Appropriation Bill (No. 2) 2020–2021, p. 2.

[←8]

.    P Hawkins, The Commonwealth Budget: a quick guide, Research paper series, 2020–21, Parliamentary Library, Canberra, September 2020, p. 3.

[←9]

.    Links to Portfolio Budget Statements for each Portfolio are typically published on the Budget website.

[←10]

.    P Hawkins op. cit., p. 12.

[←11]

.    Portfolio Additional Estimates Statements (PAES) are prepared by individual Portfolios and published on the relevant Department’s website. See for example the PAES for the Treasury portfolio on the Treasury website.

[←12]

.    Constitution, section 53.

[←13]

.    D Elder, ed, House of Representatives practice, 7th edn, Department of the House of Representatives, Canberra, 2018, p. 416.

[←14]

.    Constitution, section 53.

[←15]

.    Ibid.

[←16]

.    R Laing, ed, Odgers' Australian Senate practice, 14th edn, The Senate, Canberra, 2016, p. 386.

[←17]

.    Senate Appropriations and Staffing Committee, Ordinary annual services of the government: 50th report, The Senate, Canberra, June 2010, p. 3.

[←18]

.    Australia, Senate, Journals, 127, 2008–10, 22 June 2010, pp. 3642–3; Laing, op. cit., p. 387.

[←19]

.    Osborne v Commonwealth (1911) 12 CLR 321, p. 336, [1911] HCA 19.

[←20]

.    Australian Accounting Standards Board (AASB), Administered items, AASB 1050, 2017.

[←21]

.    Combet v Commonwealth (2005) 224 CLR 494, [2005] HCA 61, [123].

[←22]

.    See generally, Combet v Commonwealth, op. cit.

[←23]

.    Attorney-General (Vic); Ex rel Dale v Commonwealth (Pharmaceutical Benefits case) (1945) 71 CLR 237, per Latham CJ at p. 253, [1945] HCA 30.

[←24]

.    DoF, Outcome statements policy and approval process, DoF, [Canberra], March 2019, p. 3.

[←25]

.    Public Governance, Performance and Accountability Act 2013, section 11, ‘Note’.

[←26]

.    Appropriation Act (No. 1) 2020–2021 (No. 1 Act), subsection 10(1); Appropriation Act (No. 2) 2020–2021 (No. 2 Act), subsection 12(1).

[←27]

.    No. 1 Appropriation Act, subsection 10(4); No. 2 Appropriation Act, subsection 12(4).

[←28]

.    Supply Act (No. 1) 2020–2021, subsection 10(3).

[←29]

.    Supply Act (No. 2) 2020–2021, subsection 12(3).

[←30]

.    Subsection 10(3) of the No. 1 Appropriation Act.

[←31]

.    Subsection 12(3) of the No. 2 Appropriation Act.

[←32]

.    Subclause 10(1) of the No. 3 Bill.

[←33]

.    Subclause 12(1) of the No. 4 Bill.

[←34]

.    Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 4, 2021, The Senate, 24 February 2021; Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 4, 2021, The Senate, 24 February 2021—Correction dated 15 March 2021.

[←35]

.    Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 4, 2021, op. cit., p. 2.

[←36]

.    Ibid.

[←37]

.    Ibid.

[←38]

.    Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest—Correction, op. cit., p. 2.

[←39]

.    Ibid.

[←40]

.    The Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory Memoranda to the No. 3 and the No. 4 Bills.

[←41]

.    Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 2, 2021, 24 February 2021, p. 67.