Part 2:Section 30 – Repayments to the Commonwealth

Repayments by and to the Commonwealth(Sections28and30 of the FMAAct)

Key points

This circular:

  • affects all Agencies subject to the Financial Management and Accountability Act 1997 (the FMA Act);
  • replaces Finance Circular 2004/08 Appropriation for Repayments under Section 28 of the FMA Act and Finance Circular 2005/08 Section 30 of the FMA Act - Reinstatement of appropriations for amounts repaid; and
  • is available on the Finance website at:

Contents

Foreword...... 2

Key concepts...... 3

PART 1:Section 28 – Repayments by the Commonwealth...... 4

Legal requirements...... 4

Commentary and guidance...... 5

Instances when section 28 can be used...... 5

Instances when section 28 cannot be used...... 6

Administrative requirements...... 6

Drawing rights...... 6

Notional budgets in ACM...... 7

OPA drawdowns and Agency banking...... 7

Accounting and reporting...... 7

Special Accounts...... 7

Frequently Asked Questions...... 8

PART 2:Section 30 – Repayments to the Commonwealth...... 11

Legal requirements...... 11

Commentary and guidance...... 12

Instances when section 30 can be used...... 12

Instances when section 30 cannot be used...... 12

Administrative requirements...... 13

OPA receipting and Agency banking ...... 13

Accounting and reporting...... 13

Frequently Asked Questions...... 14

Page 1 of 14Finance Circular No. 2011/04

Department of Finance and Deregulation

Key concepts

Foreword

This circular provides guidance on the operation and use of sections 28 and 30 of the FMAAct, which set out the requirements for repayments by the Commonwealth andrepayments to the Commonwealth. While there have been no recent changes to these sections of the FMA Act, thiscircular updates and clarifies issues raised by Agencies.

Handling repayments involves managing public money. The management of public money is a fundamental part of an Agency’s day-to-day activities and it is essential that all officials and their Ministers are aware of their legal obligations.

The primary legal obligations for managing public money arise from the Australian Constitution and are set out in the FMA Act and the Financial Management and Accountability Regulations 1997 (FMA Regulations). Guidance on managing public money is available on the Finance website. Further guidance is also available as Estimates Memoranda in the Knowledge Management module of the Central Budget Management System (CBMS).

Questions on managing public money should be directed to your Agency’s corporate finance area in the first instance, and subsequently if necessary, to the relevant Agency Advice Unit within Finance. For questions relating to this Finance Circular, please contact the Appropriations and Banking Policy Section at .

Lisa La Rance

Acting Assistant Secretary

Cash Management Branch

Financial Management Group

30 June 2011

Key concepts

ACM means the Appropriation and Cash Management module of CBMS, which is used to assist in the managementof appropriations and cash.

administereditem is an appropriation, which is administered by an Agency on behalf of the Government. The term is defined in section 3 of the Appropriation Act (No. 1) 20112012 and explained in the accompanying Explanatory Memorandum. The term has been defined in every Appropriation Act since 1999.

administered receipt means an amount of public money that is collected by an Agency on behalf ofthe Commonwealth. The amount is not controlled by the Agency and must be remitted to the OPA through the ACM module with the identifier administered receipt.

Agencyhas the same meaning as in section 5 of the FMA Act. It includes a Department of State, a Department of the Parliament and a prescribed Agency. Departments of State and Departments of Parliament include persons who are allocated to those Departments under regulation 4 of the FMA Regulations.

appropriation means an authority under law to draw money from the Consolidated Revenue Fund, whether or not the law concerned uses the word ‘appropriation’ or ‘appropriated’. Theterm is defined in section 5 of the FMA Act.

Central Budget Management System (CBMS) is the system used to manage the flow of financial information between Finance and Australian Government Agencies to facilitate Agency cash and appropriation management, the preparation of budget documentation and financial reporting.

Consolidated Revenue Fund(CRF)has the same meaning as in section 5 of the FMA Act. Specifically, it means the Consolidated Revenue Fund referred to in section 81 of the Australian Constitution.

departmental item is an appropriation, which is used by an Agency for expenditure over which an Agency has control. The term is defined in section 3 of the Appropriation Act (No.1) 20112012and explained in the accompanying Explanatory Memorandum. The term has been defined in every Appropriation Act since 1999.

Frequently Asked Questions(FAQ)is used as an abbreviated term in this circular.

official means a person who is in an Agency or is part of an Agency. This includes an individual who is allocated to an Agency, including those temporarily allocated. Theterm is defined in section 5 of the FMA Act.

Official Public Account (OPA) means the group of bank accounts, known as the Official Public Account (OPA) Group, the combined balance of which represents the daily cash position of the Australian Government.

Relevant Agency receiptsare receipts are provided for in section 31 of the FMA Act and prescribed in regulation 15 of the FMA Regulations. An Agency’s departmental item may be increased with Relevant Agency receipts.

Page 1 of 14Finance Circular No. 2011/04

Department of Finance and Deregulation

Part 1: Section 28 – Repayments by the Commonwealth

PART1:Section 28 – Repayments by the Commonwealth

Legal requirements

The text boxes below contain extracts of section 83 of the Australian Constitution and section 28 of the FMA Act. The effect of these sections is that:

  • under section 83 of the Australian Constitution, it is unlawful to spend money from the CRF without a relevant appropriation; and
  • section 28 of the FMA Act establishes a standing appropriation to spend money from the CRF in order to make repayments, provided that certain conditions are met.

Links to Comlaw:

Australian Constitution:

FMA Act:

Commentary and guidance

Instances when section 28 can be used

  1. Section 28 provides a special appropriation thatcan be used in certain circumstances to make repaymentsby the Commonwealth of amounts that were earlier received. Adelegation,made by the Finance Minister to Chief Executives (forthe purposes of section27 of the FMA Act), confers on Chief Executives drawing rights that enable them to use this special appropriation. Thedelegation is available from the Finance website.
  2. To use the appropriation contained in section 28, the three conditions set out in paragraphs (a), (b) and (c) of section 28 must be satisfied. (An extract of section 28, showing these conditions, is on page 3.) The appropriation is limited in amount, in that the repayment cannot be greater than the amount originally received by the Commonwealth.
  3. Agencies must manage appropriationsin accordance with Commonwealth financial framework laws and policies. These include, but are not limited to, the Constitution, theAppropriation Acts, provisions in the FMA Act and the FMA Regulations, as well as other policies, guidelines and instructions issued by Finance and Agency Chief Executives. CBMS reflects these requirements.
  4. Agenciesmust manage amounts received in one of the following ways: remitting it to the OPA as an administered receipt;crediting it toa departmental appropriation item; or,crediting it to a Special Account. Section 28 can be used when a repayment is required to be made in relation to a received amount that was earlier:
  • remitted to the OPA (as an administered receipt);or
  • credited to a departmental item or a Special Account – in this instance only ifno appropriation is available under the departmental item or the relevant Special Account to make the required repayment.
  1. Examples of repayments that can be made using section 28 include repaying:
  • an amount that was overpaid to the Commonwealth;
  • an application fee (if the fee was paid on a condition that provided for a repayment);
  • a bond, security deposit or similar amount that may later need to be repaid;
  • an amount found on Commonwealth premises(to the rightful owner); and
  • an amount to a related third party (depending on the terms under which the original amount was received and if a relationship exists between the parties).

-For example, section 28 enables a repayment to be made to the executor of a deceased person's estate.

  1. Section 28 can be used when an Agency processes and makes repayments behalf of another Agency. Both Agencies are responsible for ensuring that the conditions set out in section 28 are satisfied. This includes, for example, assessing whether another appropriation is available to make the repayment. Guidance on the arrangements that need to be set up in these circumstances is at paragraph 10 (drawing rights), paragraph 13 (drawdowns from the OPA) and paragraph 15 (reporting).

Instances when section 28 cannot be used

  1. If another appropriation is available to make the repayment, then section 28 cannot be used. For example, a departmental item, a Special Account or a special appropriation in another Act, as explained below:
  • Departmental item Repayments of amounts which were earlier credited to a departmental item (under section 31 of the FMA Act) should be made using that departmental item and not section 28.
  • Special Account Repayments of amounts which were earlier credited to a Special Account (under the crediting provisions) should be made using that Special Account and not section 28. If the debiting provisions of a Special Account do not enable repayments, then the Agency should contact the Appropriations and Banking Policy Section at to discuss amending the provisions.

-Most repayments between Agencies relate to amountsthat were credited by the receiving Agency to its departmental item or a Special Account. Therefore, as outlined above, section 28 is used for repayments between Agenciesonly when there is no appropriation availableto make the required repayment.

  • Special Appropriations in legislation Where an Act, other than the FMA Act, provides for repayments, then section 28 cannot be used. An example is section 16 of the Taxation Administration Act 1993, which enables tax refunds to be made.
  1. Section 28 cannot be used to pay an interest component when a repayment is to be paid with interest or when interest is to be paid on an amount received. To repay an amount with interest would represent a larger amount leaving the CRF than the amount originally received, which is not allowed under section 28.
  2. Section 28 cannot be used tomakean internal transferas an internal transfer does not require an appropriation to be debited. (Please refer tosection 13 of the FMA Act and regulation 19 of the FMA Regulations.) An internal transfer is not a payment or a repayment, but it is the movement of money between official bank accounts within an Agency or official bank accounts betweenAgencies. Money can be moved between several official bank accounts as internal transfers, without debiting an appropriation. The relevant appropriation is debited at the time when a payment or repayment is made from the final official bank account in which the money had been kept.
  • An example of an internal transfer is one Agency (Agency A) drawing money down from the OPA under section 28 andtransferringthe money to another Agency’sbank account (Agency B),so thatAgency B can makerepayments on behalf of Agency A. Section 28, as used by Agency A, is legally debited when Agency B makes arepayment.

Administrative requirements

Drawing rights

  1. As with all appropriations, making repayments under section 28 requires the exercise of drawing rights(as provided for in sections 26 and 27 of the FMA Act). ChiefExecutives should issue drawing rights, in relation to section 27, to enable the appropriation contained in section 28 to be debited by an official to make repayments.
  2. Drawing rights are also required when one Agency (Agency A) makes repaymentson behalf of another Agency (Agency B). In these circumstances, the following options are available to issue drawing rights to the relevant officials:
  • the Chief Executive of Agency B may delegate the power to issue drawing rights to the Chief Executive or official(s) in Agency A. This would be practical when a large number of persons need to be issued with drawing rights.
  • alternatively, the Chief Executive ora delegatein Agency Bmay issuedrawing rights to official(s) in Agency B to debit the appropriation, and issue Agency A with drawing rightsto make the repayment.

Note: Forfurther guidance on issuing and exercising drawing rights, please see Finance Circular 2009/07– Issuing and Exercising Drawing Rights.

Notional budgets in ACM

  1. For cash management reasons, a notional budget is appliedin ACM to limit the amount available for each Agency under section 28. The notional budget is set in ACM on 1July each year. It is not a legal limit and may be adjusted according to an Agency’s resourcing requirements. To adjust the notional budget, an Agency should contact the relevant Agency Advice Unit (AAU) in Finance to agree a new notional budget. The AAU will then advise the OPA Administration Team to adjust the notional budget in ACM.

OPA drawdowns and Agency banking

  1. Repayments under section 28 are made by drawing down in ACM, from the OPA, into an Agency bank account. The amounts must be deposited to an Agency’s Official Administered Paymentsbank account and repayments must be made from this bank account. Further guidance on Agency banking requirements are contained on the Finance website in the Agency Banking Framework Guidance Manual.
  2. When one Agency (AgencyA) makes repayments on behalf of another (Agency B), drawdowns are made against the notional budget of Agency B. The drawdown options are:
  • Agency B could authorise Agency A to use ACM to access Agency B’snotional section28 budget and to deposit the amount to an Agency A bank account. This process is referred to as a third-party drawdown; OR
  • Agency B could use ACM to draw on its notional section 28 budget, deposit the amount to an Agency B bank account and then internally transferthe amount from the Agency B bank account to an Agency A bank account (in accordance with section 13 of the FMA Act and regulation 19 of the FMA Regulations).

Accounting and reporting

  1. An Agency must record and report its use of the appropriation provided bysection 28 inaccordance with the Finance Minister’s Orders for Financial Reporting (FMOs). For further information, please see the most recent FMOs on the Finance website.
  • When one Agency (AgencyA) agrees to make repayments for another (Agency B) and the repayment is supported by the section 28 notional budget of Agency B, then AgencyB is responsible for reporting its use of the appropriation.

Special Accounts

  1. If a Special Account is used exclusively to make repayments, then the administering Agency should contact the Appropriations and Banking Policy Section at discuss whether the Special Account continues to be required or whether section 28 should be usedinstead. There are very few instances where this type of Special Account should be maintained.

Frequently Asked Questions – section 28

1)If I receive money and I am unsure of the depositor, can I use section 28 to repay the money?

Answer: No, you cannot use section 28 because the payer and the reason forreceiving the amount are unknown. Upon receipt, the amount should be remitted to the OPA as an administered receipt. The following considerations apply:

  • Section28 cannot support a repayment unless it is confirmed that an amountmust be repaid and this condition cannot be met if the payer and reason for the receipt are unknown. In this case, the Agency should not instruct its transactional bank to reverse the amount from the Agency’s bank account.
  • If the amount has not yet been remitted to the OPA,the deposit to the Agency’s bank account was an error and the rightful owner is identified, then the Agency may instruct its transactional bank to reverse the amount from the Agency’s bank account. In this case, the amount should not be recorded as income and not be recorded as a use of the appropriation provided in section 28.
  • If the amount had been remitted to the OPA and later the rightful owner is identified, then at that point in time, section 28 may be used to make a repayment.

2)Can I use section 28 to repay an amount found on a Commonwealth premises?

Answer: Yes. If the amount had been remitted to the OPAas an administered receipt, then once the rightful owner is identified, at that point in time, section 28 may be used to make a repayment.

  • It is not necessary to hold ‘on trust’ an amount found on a Commonwealth premisesbecause the person who left the amount is unknown and the reason why they left the amount on Commonwealth premises is also unknown.

3)Can bonds and security deposits be repaid under section 28?

Answer: Yes. On receipt of a bond or security deposit, the amount should be remitted to the OPA as an administered receipt and when a related repayment is required to be made, itshould be made under section 28.

  • It is not necessary to manage such amounts as part of a departmental item or a Special Account. This would require the Agency to continue reporting the amount until it is repaid, ensure that it is not spent and ensure that is remains available. Most bonds and security deposits are repaid at a later date and those that are forfeited are remitted to the OPA as administered receipts. Therefore, it is more efficient to remit such amounts, when received, to the OPA and later use section 28 to repay.

4)Can I use section 28 to pay interest on a received amount that was earlier remitted to the OPA as an administered receipt?

Answer: No. Section 28 is limited to making repayments up to the amount originally received by the Commonwealth and does not allow for paying interest on that amount. Please see further guidance on this issue at paragraph 8 of this circular. If the Commonwealth is required to pay interest and there is no available appropriation to pay the interest component, then the Agency should discuss this matter with its AAU. An option may be to seek a supplementary or new appropriation (other than under section 28).

5)Can section 28 be used to repay a bank or entity that erroneously deposited an amount into to an Agency’s bank account?

Answer: Yes, if the money was remitted to the OPA as an administered receipt, then section 28 can be used to repay the bank or entity. Whether the amount was remitted to the OPA would depend on the type of Agency bank account into which the money had been deposited and when the error was discovered. Ifthe amount was deposited to an Agency’s:

  • Official Administered Receiptsbank account, then (as a consequence of banking policies that are set for all Agencies) the bank balance would be swept to the OPA overnight and be zero next morning. Therefore, if the error is discovered after the amount was swept to the OPA, the Agency should record the amount as an administered receipt and it can use section 28 to make the repayment.
  • Official Administered Paymentsbank account or an Official Departmental Receipts and Paymentsbank account, then (consistent with the banking policies that are set for all Agencies) the bank balance is swept to the OPA overnight and the same balance is returned next morning. A remittance to the OPA from these bank accounts is a deliberate act of an Agency and therefore, if the error was discovered:

-before the amount was remitted to the OPA, then the Agency or the bank itself may reverse the transaction. In this case, the amount should not be recorded as income and the section 28 appropriation should not be used.