Prescribing officials for non-corporate Commonwealth entities (RMG 212)

Audience

This guide is for officials in non-corporate Commonwealth entities (NCEs) who have to advise their accountable authority on prescribing a person as an official of the NCE.

Key points

If an NCE requires a contracted individual to exercise a power or function under the PGPA Act or PGPA Rule, the contractor can be prescribed as an official in accordance with item 1A of the table in section 9(1) of the PGPA Rule. A contractor who becomes a prescribed official:

  • is subject to the general duties of officials under the PGPA Act while they provide relevant services to the Commonwealth
  • is subject to the systems of internal control in the entity, including any accountable authority instructions
  • requires a delegation of the powers or functions in the PGPA Act or PGPA Rule that they are required to exercise (with accompanying instructions if required).

Resources

  • RMG 203:  Duties of officials
  • Commonwealth Procurement Rules

When is it appropriate to prescribe a person as an official of an NCE?

  1. It is expected that an accountable authority would only prescribe a contractor as an official through the PGPA Rule in instances where it is not practicable for an official of the entity to exercise the relevant powers under the PGPA Act or PGPA Rule.
  2. An individual can be prescribed as an official of an NCE through the Rule where they are:
  • an independent contractor, consultant or an employee of an independent contractor or consultant
  • engaged to provide services to a NCE and are required to exercise a power, perform a function or discharge a duty conferred by the PGPA Act or PGPA Rule and
  • capable of being identified by name by the accountable authority for the purposes of the Rule (item 1A of the table in section 9(1) of the PGPA Rule).
  1. If a contracted individual will not exercise a power or perform a function or discharge a function conferred by the PGPA Act or PGPA Rule, they cannot be prescribed as an official. Examples of tasks that generally do not require the exercise of powers or performance of functions under the PGPA Act or PGPA Rule include:
  • making payments of relevant money at the direction of an official of the entity
  • collecting relevant money under the direction of an official of the entity
  • a contracted individual from a salary packaging company transferring money from a Commonwealth entity’s bank account to a supplier that provides benefits to employees of the entity.
  1. Where a person has custody of money as an agent of the Commonwealth, the money is ‘other CRF money’ that is subject to section 105 of the PGPA Act and section 29 of the PGPA Rule. This person does not need to be prescribed as an official of the relevant entity. For more information on other CRF money, see RMG 303 – Other CRF money.
  2. The following scenarios cover some common arrangements entered into by NCEs to engage contractors to use and manage public resources. These scenarios help identify whether a contractor is exercising a power under the PGPA Act or PGPA Rule.
Case Study: Collection of fees

A contractor is engaged to collect fees from the public for a Commonwealth service.  Under the direction of an official of the NCE, a contracted individual (an employee of the contractor) collects money for the Commonwealth on Commonwealth premises, and deposits it in the NCE’s bank account.  The contracted individual does not exercise discretion about the fees to be paid and performs a processing task.

The individual does not exercise powers under the PGPA Act or PGPA Rule, and therefore cannot be prescribed as an official. The contractor’s rights and obligations need to be specified in their contract.

Case Study: Property service providers

An external property service provider makes payments to a property owner on behalf of an NCE (which leases its premises). The provider makes the payments by drawing on the NCE’s bank account, in accordance with the contractual arrangement between the Commonwealth and the provider.

Whether an employee of the property service provider exercises a power under the PGPA Act depends on whether that individual makes decisions in relation to the payments (i.e. ‘administers’ an arrangement under section 23 of the PGPA Act) or merely processes payments.

  • If the individual performs processing tasks under instruction without making any decisions about the arrangement, the individual does not exercise a power under the PGPA Act or PGPA Rule.
  • If the individual undertakes decision-making functions in relation to the arrangement, they may be administering the arrangement under section 23 of the PGPA Act (i.e. exercising a power in the PGPA Act) and will need to be prescribed as an official and be delegated the relevant power.  In this case, the contract with the service provider needs to:
  1. state that the relevant individual will be an official of the NCE
  2. specify the process for informing the individual of their obligations as an official
  3. specify the powers under the PGPA Act that the individual is to exercise
  4. specify how the individual is to be identified by name (as required by the rule) and the process by which the accountable authority is to be informed of any changes to the individual required to exercise the powers.

Case Study: Engagement of a contractor through an employment firm

An NCE engages a contractor (an employment firm) to provide the services of a contracted individual. The individual is required to exercise powers under the PGPA Act or PGPA Rule. The contract between the contractor and the NCE needs to:

  • state that the individual will be an official of the NCE
  • specify the process for informing the individual of their obligations as an official. This process may involve the NCE briefing the individual on their duties under the PGPA Act before the individual starts providing services to the NCE
  • specify the powers under the PGPA Act that the individual is to exercise
  • specify how the individual is to be identified by name and the process by which the accountable authority is to be informed of any changes to the individual required to exercise the powers.

Case Study: Outsourcing of procurement

An NCE engages a contractor to purchase equipment on behalf of the NCE. The NCE will be invoiced directly for the equipment.

The NCE provides the contractor with autonomy to decide what goods to purchase and to make the purchase. Contracted individuals (employees of the contractor) are therefore required to enter into an arrangement under section 23(1) of the PGPA Act. The contracted individuals are also required to approve the commitment of relevant money.

In this case, the arrangement between the contractor and the NCE:

  • states that the contracted individuals will be officials of the NCE
  • specifies the process for informing the contracted individuals that they are required to comply with the general duties of officials under the PGPA Act, the finance law, the Commonwealth Procurement Rules and relevant policies of the Commonwealth
  • specifies that the contracted individuals are required to exercise powers under section 23 of the PGPA Act
  • specifies how the contracted individuals are to be identified by name
  • specifies the process by which the accountable authority is to be informed of any changes to the contracted individuals required to exercise powers.
  • state that the individual will be an official of the NCE
  • specifies the process for informing the individual of their obligations as an official. This process may involve the NCE briefing the individual on their duties under the PGPA Act before the individual starts providing services to the NCE
  • specifies the powers under the PGPA Act that the individual is to exercise
  • specifies how the individual is to be identified by name and the process by which the accountable authority is to be informed of any changes to the individual required to exercise the powers.

How to prescribe a person as an official of an NCE?


Did you find this content useful?