Gifting relevant property

Gifting of relevant property

Section 66 of the PGPA Act sets out the circumstances where a gift of relevant property may be made by a minister or an official of a non-corporate Commonwealth entity.

A Minister or an official of a non‑corporate Commonwealth entity must not make a gift of relevant property unless:

  • the property was acquired or produced to use as a gift; or
  • the making of the gift:
    • is expressly authorised by law; or
    • is authorised by the Finance Minister in writing; or
    • is made in accordance with any requirements prescribed by the rules (the rules currently do not contain any requirements for gifting relevant property).

The power of the Finance Minister to authorise gifts has been delegated to accountable authorities of all non-corporate Commonwealth entities. This delegation includes specific Directions in relation to authorising gifts. The Public Governance, Performance and Accountability (Finance Minister to Accountable Authorities of Non-Corporate Commonwealth Entities) Delegation 2022 can be found on the PGPA legislation, associated instruments and policies page. This delegation can also be found under Policies, legislation and guidelines.

When can accountable authorities (and their delegates) gift relevant property?

Finance Minister’s delegation of power under section 66 of the PGPA Act

As outlined in the Finance Minister’s delegation, a delegate must consider the overarching principles that, if appropriate to do so, the relevant property should be:

agreed to be transferred with or without payment to another government entity within Australia (including State or Territory governments); or sold at market value, where it is economical to do so.

Transfers of relevant property made from a non-corporate Commonwealth entity to another non-corporate Commonwealth entity do not constitute a gift as non-corporate Commonwealth entities are, legally, part of the Commonwealth.
Transfers of relevant property from a non-corporate Commonwealth entity without payment to a corporate Commonwealth entity or to a State or Territory government entity would constitute a gift as the transfer occurs between legally separate owners.

The Directions that accompany the Finance Minister’s delegation of power under section 66 of the PGPA Act specify that a departure from the Commonwealth’s overarching principles, involving disposal by gift, is permitted if the relevant property in question is genuinely surplus to the entity’s requirements; and is either:

  • of historical or symbolic significance in relation to the proposed recipient; or
  • holds other special significance for the proposed recipient and there are compelling reasons to justify its gifting to that recipient; or
  • is of low value and
    • otherwise uneconomical to dispose of; or
    • the gifting supports the achievement of an Australian Government policy objective. 
Property and historical significance

Property may be of historical significance in relation to a proposed recipient where:

  • there has been some significant past connection between the intended recipient, and the property concerned,
  • or where the property is somehow related to past events of particular significance to the recipient.

Property may be of symbolic significance to its intended recipient if it is representative of something significant to the recipient.

In practice a particular piece of property may have both historical and symbolic significance in relation to a proposed recipient.

Seeking approval from the Finance Minister to gift relevant property

Where a proposed gift of relevant property is beyond the scope of the Finance Minister’s delegation to accountable authorities of non-corporate Commonwealth entities, the Finance Minister’s written authorisation to make the gift will be required.

A request to the Finance Minister for approval to gift relevant property should be from the relevant Minister, in writing and include the following information:

  • an estimate of the market value of the relevant property proposed to be gifted and the basis on which the market value was determined;
  • the basis on which making the gift would be publicly defensible and the objective grounds that would justify favouring the person or organisation with the gift, ahead of other potential recipients; and
  • an assurance that providing the gift will not result in an unacceptable risk to the Commonwealth with regards to liability concerning the use of the gift.

 

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