Further to last week's update about the High Court's
decision in Williams v Commonwealth of Australia & Ors  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.
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
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.
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 will protect programs, grants and
arrangements in place before the amendments to the FMA Act
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
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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Because of the high costs, royal commissions should only be convened to address issues of substantial public importance.
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