Purpose of the Bill

The purpose of the Appropriation Bill (No. 3) 2021–2022 (the No. 3 Bill) is to appropriate an additional $11,901,756,000 ($11.9 billion) from the Consolidated Revenue Fund (CRF)[1] in the 2021–22 financial year for the ordinary annual services of the Government.

The purpose of the Appropriation Bill (No. 4) 2021–2022 (the No. 4 Bill) is to appropriate an additional $4,033,695,000 ($4 billion) from the CRF in the 2021–22 financial year for other annual services of the Government.

These amounts are in addition to amounts appropriated for the Executive Government and Judiciary in July 2021 and amounts appropriated to cover the requirements for Coronavirus response programs in February and March 2022, in February 2022 by:

• the Appropriation Act (No. 1) 2021–2022 (No. 1 Appropriation Act) ($122,017,626,000)
• the Appropriation Act (No. 2) 2021–2022 (No. 2 Appropriation Act) ($19,957,420,000)
• the Appropriation (Coronavirus Response) Act (No. 1) 2021–2022 (No. 1 Covid Act) ($3,135,671,000) and
• the Appropriation (Coronavirus Response) Act (No. 2) 2021–2022 (No. 2 Covid Act) ($2,047,742,000).

The details of the additional amounts proposed to be appropriated were set out in the 2021–22 Mid-Year Economic and Fiscal Outlook (2021-22 MYEFO) that was released by the Treasurer and Finance Minister on 16 December 2021.[2]

The ‘Abstracts’ to Schedule 1 of the No. 3 Bill and Schedule 2 to the No. 4 Bill provide summaries of the amounts proposed to be appropriated by Portfolio by each Bill as set out in Table 1.

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

Structure of the Bill

Part 1 of both Bills deals with preliminary matters, including commencement dates and definitions.

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 2021–2022.

Part 4 of the No. 3 Bill and Part 5 of the No. 4 Bill deal 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.

Part 4 of the No. 4 Bill sets the maximum amounts that can be drawn each year from the CRF for payments that the Commonwealth makes to the states and territories under the Federal Financial Relations Act 2009. These limits are known as ‘debit limits’.

Schedule 1 of the No. 3 Bill and Schedules 1–2 of the No. 4 Bill 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.

Background

Under the Charter of Budget Honesty Act 1998, the Government must release a MYEFO report ‘by the end of January in each year, or within six months after the last budget, whichever is later’.[3] The Government released the 2021–22 MYEFO on 16 December 2021.[4] The 2021–22 MYEFO updated revenue and expenditure forecasts, and included the announcement of new policy measures.[5]

The Bills will add to or alter appropriations set out in the 2021–22 Budget Appropriation Acts (No. 1 Appropriation Act and No. 2 Appropriation Act) to reflect all measures announced in the 2021–22 MYEFO or announced by the Government subsequently. Further details of those measures are included in the 2021–22 MYEFO.[6]

Appropriations generally

An appropriation is the legal release of moneys from the CRF. Appropriation Acts, however, do not create a source of power for the Commonwealth to spend money; they only release that money from the CRF. The Commonwealth’s power to spend money must be found in other parts of the Constitution.[7]

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…[8]

Section 83 of the Constitution provides that no money may be withdrawn from the CRF ‘except under appropriation made by law’.[9] 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.

Powers of the House of Representative to appropriate

Section 53 of the Constitution prevents proposed laws appropriating moneys from originating in the Senate.[10] 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.[11] 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.[12]

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.[13] However, neither the ‘ordinary annual services of the Government’ nor the ‘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.[14] 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.[15]

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.[16]

Adherence to the Compact has not always been strict, and the High Court has held that any disagreements between the Houses are not justiciable.[17] Any disputes, therefore, are to be determined between the Houses themselves.

The Senate’s powers

Section 53 of the Constitution provides 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’.[18] 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. 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.[19]

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.[20] 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.[21]

Appropriation Bills distinguish between ‘administered’ expenses and ‘departmental’ expenses. Administered appropriations may only be used for the program or outcome that it is appropriated for, while departmental appropriation may be moved between different departmental activities.[22]

Outcomes and programs

While the level of detail necessary for an Appropriation Act to be valid is generally low, in Attorney-General (Vic); Ex rel Dale v Commonwealth (the Pharmaceutical Benefits case) the High Court held:

… there cannot be appropriations in blank, appropriations for no designated purpose, merely authorising expenditure with no reference to purpose. An Act which merely provided that a minister or some other person could spend a sum of money, no purpose of the expenditure being stated, would not be a valid appropriation Act.[23] [emphasis added]

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, as articulated in an entity’s outcome statement. The Department of Finance’s Outcome Statements Policy and Approval Process explains 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, moneys cannot be appropriated directly to those entities.[25] Instead, amounts are appropriated to relevant departments for on-payment to corporate Commonwealth entities within the department’s portfolio.

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.[26] 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.

Advance to the Finance Minister

The AFM, as outlined in Part 3 of each Bill, is an appropriation of moneys without any particular outcome or specific purpose specified. According to the 2021–2022 Budget 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.[27]

In order to access an advance, the Finance Minister must make a determination under the relevant Appropriation Act. A determination is a legislative instrument, but the requirements for disallowance and sunsetting under section 42 and Part 4 of Chapter 3 of the Legislation Act 2003 respectively do not apply.[28]

The AFM for the 2021–22 Budget year was set at $2.0 billion for the ordinary annual services of the Government[29] and $3.0 billion in relation to the other annual services of the Government.[30]

The No. 3 and No. 4 Bills propose to ‘reset’ the AFM to $2.0 billion for the ordinary annual services of the Government[31] and $3.0 billion in relation to the other annual services of the Government,[32] the same level as the Budget Appropriation Acts but disregarding any previous determinations made in 2021–2022.

To date, in the 2021–2022 financial year, the Finance Minister has made five determinations, totalling $1.807 billion under the AFM (outlined in Table 2 below).

Table 2: Summary of advances to the Finance Minister in 2021–2022

Debit limits

In addition to appropriating moneys for the other annual services of the Government, Part 4 of the No. 4 Bill also sets a maximum amount—known as a ‘debit limit’—that may be provided to the states and territories under grant programs specified in this Part. In this case, clause 13 specifies the 'national partnership payments’ under section 16 of the Federal Financial Relations Act 2009.

The legal appropriation for a grant program is 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, subsection 16(3) of the Federal Financial Relations Act allows an annual appropriation Bill to set a maximum amount that may be debited from the COAG Reform Fund for that financial year in relation to national partnership payments. If no debit limit is specified, no amounts may be credited to or debited from the COAG Reform Fund for that financial year in relation to national partnership payments.[33]

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.

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (the Scrutiny Committee) considered the two Appropriation Bills in its Scrutiny Digest released on 18 March 2022.[34] The Scrutiny Committee largely reiterated concerns raised in earlier reports examining Appropriation Bills. The main concerns raised in relation to the No. 3 and No. 4 Bills are discussed below.

Appropriation Bill (No. 3) 2021-2022

The Scrutiny Committee identified certain expenditure measures which it considered to be inappropriately classified as ordinary annual services of Government. These measures are:

• Certifying Australian Cosmetics Exports ($8.5 million over four years) and
• Territories Stolen Generations Redress Scheme ($312.7 million over four years from 2021-22, and $65.8 million in 2025-26).[35]

The Scrutiny Committee reiterated that any inappropriate classification undermines the Senate’s constitutional right to amend laws appropriating money which are not related to the ordinary annual services of Government and noted that it has previously raised these concerns with the Finance Minister:

While it is not the committee's role to consider the policy merit of these measures, the committee considers that they may have been inappropriately classified as 'ordinary annual services', thereby impacting upon the Senate's ability to subject the measures to an appropriate level of parliamentary scrutiny.

The committee has previously written to the Minister for Finance in relation to inappropriate classification of items in other appropriation bills on a number of occasions; however, the government has consistently advised that it does not intend to reconsider its approach to the classification of items that constitute the ordinary annual services of the government.

The committee again notes that the government's approach to the classification of items that constitute ordinary annual services of the government is not consistent with the Senate resolution of 22 June 2010.

The committee notes that any 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 certain 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. 3) 2021-2022 which should only contain appropriations that are not amendable by the Senate).[36] [emphasis in original]

Appropriation Bill (No. 4) 2021-2022

The Scrutiny Committee noted the inclusion of additional information in the No. 4 Bill’s Explanatory Memorandum which explained the increase in the debit limit for national partnership payments.[37]

Advances to the Finance Minister

The Scrutiny Committee reiterated its concerns regarding AFM arrangements limiting the Parliament’s ability to scrutinise proposed appropriations:

The committee considers that, in allowing the Finance Minister to allocate additional funds to entities up to a total of $5 billion via non-disallowable delegated legislation, the AFM provisions in Appropriation Acts Nos. 1 and 2 delegate significant legislative power to the executive. While this does not amount to a delegation of the power to create a new appropriation, the committee notes that one of the core functions of the Parliament is to authorise and scrutinise proposed appropriations. High Court jurisprudence has emphasised the central role of the Parliament in this regard. In particular, while the High Court has held that an appropriation must always be for a purpose identified by the Parliament, '[i]t is for the Parliament to identify the degree of specificity with which the purpose of an appropriation is identified'. The AFM provisions leave the allocation of the purpose of certain appropriations in the hands of the Finance Minister, rather than the Parliament.[38]

The Scrutiny Committee ‘welcomed’ the inclusion of additional information in the Explanatory Memoranda to both Bills which assists the Parliament in scrutinising AFM provisions.[39] However, it reiterated its concern (and that of the Senate Standing Committee for the Scrutiny of Delegated Legislation) that AFM determinations remain non-disallowable instruments.[40]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), 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.[41]

Parliamentary Joint Committee on Human Rights

At time of writing, the Bills had not been considered by the Parliamentary Joint Committee on Human Rights.

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 AFM to $2.0 billion for 2021–2022, 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 Appropriation Act (No. 3) 2021–2022 on 1 July 2024.

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.

Table 3 sets out the appropriations under each portfolio for the No. 1 Appropriation Act, No. 1 Covid Act, and the proposed appropriations under the No. 3 Bill for 2021–22.

Table 3: Total appropriations for the ordinary annual services of Government 2021–22

No. 4 Bill

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

Clause 12 of the No. 4 Bill restores the AFM to $3.0 billion for 2021–2022 regardless of any determinations made by the Finance Minister under subsection 12(2) of the No. 2 Appropriation Act.

Clause 13 of the No. 4 Bill sets the appropriation limit for provisions of the Federal Financial Relations Act. For 2021–22 the debit limit for national partnership payments is $35,000,000,000. This debit limit supersedes the debit limit set in the No. 2 Appropriation Act.

Clause 14 of the No. 4 Bill provides that the debit limit set under clause 13 is adjusted to take into account any GST liability that may arise in relation to particular payments.

Clauses 15–18 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 Appropriation Act (No. 4) 2021–2022 on 1 July 2024.

The moneys in the No. 4 Bill are appropriated to incorporated and non-incorporated Government entities according to Schedule 2 of that Bill as non-operating (or ‘capital’) appropriations, and payments to the states, the ACT, the NT and local government. 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 portfolio for the No. 2 Appropriation Act, No. 2 Covid Act, and the proposed appropriations under the No. 4 Bill for 2021–22.

Table 4: Total appropriation for the other annual services of Government 2021–22