FMA Act (Litigants' Fund Special Account) Determination 2013/06

Link to law: https://www.comlaw.gov.au/Details/F2013L01051

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FMA Act (Litigants' Fund Special Account) Determination 2013/06
Financial Management and Accountability Act 1997
I, PENELOPE YING YEN WONG, Minister for Finance and Deregulation, make this determination under subsection 20 (1) of the Financial Management and Accountability Act 1997.
Dated 18th June 2013
 
 
Minister for Finance and Deregulation
 
1              Name of Determination
This determination is the FMA Act (Litigants' Fund Special Account) Determination 2013/06 (this Determination).
Note:    All Special Account determinations and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.comlaw.gov.au
2              Commencement
                This Determination commences on 1 July 2013.
Note:      This Determination commences on 1 July 2013 or at the time at which it takes effect in accordance with subsection 22 (4) of the Act, whichever occurs later.
3              Establishment
                For paragraph 20 (1) (a) of the Act, a Special Account is established with the name Litigants’ Fund Special Account (this Special Account).
 
4              Amounts to be credited
                For paragraph 20 (1) (b) of the Act, the following amounts may be credited to this Special Account:
(a)     amounts received in respect of proceedings of the Family Court of Australia or the Federal Circuit Court of Australia (formerly the Federal Magistrates Court of Australia);
(b)     amounts received in respect of proceedings that have been transferred from another court to the Family Court of Australia or to the Federal Circuit Court of Australia (formerly the Federal Magistrates Court of Australia);
(c)     amounts received from the Family Court of Australia Litigants’ Fund Special Account or the Federal Magistrates Court Litigants’ Fund Special Account.
Note 1    The Appropriation Acts provide that if any of the purposes of this Special Account are covered by an item in those Acts (whether or not the item expressly refers to this Special Account), then amounts may be debited against the appropriation for that item and credited to this Special Account.
Note 2    Subsection 39 (5) of the Act provides that upon realisation of an investment of an amount debited from this Special Account, the proceeds of the investment must be credited to this Special Account.
Note 3    Section 30 of the Act has the effect that if an amount expended from this Special Account is repaid to the Commonwealth, that amount must be re-credited to this Special Account.
Note 4    Section 30A of the Act has the effect of increasing the appropriation under section 20 of the Act for the purposes of this Special Account (and thereby increasing this Special Account’s balance). The increase is of an amount equivalent to any GST amount that is recoverable in relation to a payment, and occurs immediately before the payment is made.
5              Purposes for which amounts are allowed to be debited
                For paragraph 20 (1) (c) of the Act, the purposes for which amounts are allowed to be debited from this Special Account are:
(a)     to make payments in accordance with an order (however described) made by a court under the Family Law Act 1975, the Family Court of Australia, or a Judge of that Court;
(b)     to make payments in accordance with an order (however described) made by a court under the Federal Circuit Court of Australia Act 1999 (formerly the Federal Magistrates Act 1999), the Federal Circuit Court of Australia (formerly the Federal Magistrates Court of Australia), or a Judge (formerly Federal Magistrate) of that Court;
(c)     to repay amounts received by the Commonwealth and credited to this Special Account where an Act of Parliament or other law requires or permits the amount to be repaid;
(d)     to reduce the balance of this Special Account without making a real or notional payment.
Note 1    Subsection 20 (4) of the Act appropriates the Consolidated Revenue Fund (CRF) for expenditure for the purposes of this Special Account up to the balance for the time being of this Special Account.  Subsection 20 (5) of the Act provides that whenever an amount is debited against the appropriation, the amount is taken to be also debited from this Special Account.
Note 2    In addition to the purposes specified in this Determination, other provisions of the Act provide authority for amounts to be debited from this Special Account.
                Subsection 39 (1) of the Act provides the Finance Minister with the power to invest public money in any authorised investment. Where such an investment is made of an amount standing to the credit of this Special Account, section 39 of the Act has the effect that this Special Account must be debited.
                Subsection 39 (4) of the Act provides that if an amount has been invested by debiting this Special Account, then the expenses of the investment may be debited from the Account.
                Subsection 39 (9) of the Act appropriates the CRF for this investment activity.
                Not all chief executives have been delegated powers to invest under section 39 of the Act.
Note 3    An amount may be debited from this Special Account where:
(a)       it has been incorrectly credited by virtue of a clerical mistake; or
(b)       it has been credited through the exercise of a discretion by an official and the exercise of that discretion was actuated by a fundamental mistake of fact or law.
                Legal advice should be obtained before an amount is debited on the basis of paragraph (b).
Note 4    Section 6 of the Act applies to a notional payment by an Agency (or part of an Agency) as if it were a real payment by the Commonwealth. Notional receipts and notional payments are transactions between different parts of the Commonwealth.  Real receipts and real payments are transactions between the Commonwealth and other entities.
Note 5    The purpose of subclause 5 (d) is to allow for the extinguishing of all or part of the appropriation under section 20 of the Act for this Special Account. When this Special Account is debited for this purpose, there is no payment or credit available to another party, account or appropriation.
6              Definitions
                In the Determination:
Act means the Financial Management and Accountability Act 1997.
Special Account has the meaning given by section 5 of the Act.