Australia: FMA Act amended in response to Williams High Court decision
Government Affairs Alert
Last Updated: 1 July 2012
Article by David Fintan

Further to last week's update about the High Court's decision in Williams v Commonwealth of Australia & Ors [2012] HCA 23 (Williams), you should know that on Wednesday 27 June 2012 the Financial Framework Legislation Amendment Bill (No. 3) 2012 (Bill) was passed by both houses of Parliament.

The Bill is a direct response to the High Court's decision, and will amend the Financial Management and Accountability Act 1997 (Cth) (FMA Act) to provide legislative authority to support spending considered to be at risk, or potentially at risk, following the High Court's decision.

The amendments to the FMA Act will commence the day the amending Act receives the Royal Assent.

The Bill can be accessed here.

New section 32B in FMA Act
The Bill works by inserting a new section 32B into the FMA Act, which according to the Attorney-General's second reading speech will "provide the requisite statutory authority for Commonwealth spending, where no other legislative authority exists" and "will empower the Commonwealth to make, vary or administer arrangements or grants under which public money is, or may become, payable, if the arrangements or grants or programs are specified in regulations".

427 grants and programs specified in FMA Regulations
Schedule 2 to the Bill proposes to amend the Financial Management and Accountability Regulations 1997 to specify particular grants or programs, in accordance with the proposed amendments to the FMA Act. A total of 427 grants and programs are identified, including the chaplaincy program the subject of the High Court's decision in Williams.

Cautious approach
The Attorney-General's second reading speech explained: "In keeping with a generally prudent approach, many of the matters prescribed in the schedule have been included out of an abundance of caution. The Bill will ensure these grants and programs have specific legislative authority over and above the appropriation acts. Direct amendment of the regulations by legislation is an efficient means of providing support, with the direct authority of the principal act, for the wide variety of relevant grants and programs provided by governments. This technical approach has been adopted in other circumstances where amendments to details appropriately set out in regulations may be required as a matter of urgency."

ADJR Act will not apply
Decisions made under the proposed amendments to the FMA Act are not decisions to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies.

Transitional provisions
Transitional provisions will protect programs, grants and arrangements in place before the amendments to the FMA Act commence.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

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