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NSW Government Grants Guide 2022 Part 1 Legislative Context

By April 14, 2023No Comments

This is the first article in a series about the NSW Government Grants Guide 2022.

Background

In November 2021, Department of Premier and Cabinet (DPC) announced a review of grants administration in NSW led by the Department of Premier and Cabinet (DPC) in partnership with the NSW Productivity Commissioner. The Review was tasked with delivering an updated Good Practice Guide to Grants Administration and recommendations to ensure that NSW Government grants:

  • deliver value for public money in achieving their stated purpose or purposes
  • are robust in their planning and design
  • adopt key principles of transparency, accountability, and probity
  • deliver a high-quality customer experience.

The Commissioner’s report was delivered in April 2022. The first recommendation was:

Issue the draft Grants Administration Guide at Appendix A, which:

  • provides guidance based on the principles set out in the Commonwealth Grants Rules and Guidelines (2017) and reflects the government sector core values of integrity, trust, service, and accountability.
  • includes mandatory requirements for officials, Ministers, and ministerial staff.

Definition of Grant

The Guide provides a definition of “grant” in Section 4:

 a ‘grant’ is an arrangement for the provision of financial assistance by the NSW Government (or on behalf of the NSW Government) whereby money:

  • is paid to a grantee other than the NSW Government
  • is intended to help address one or more of the NSW Government’s policy outcomes
  • is intended to assist the grantee to achieve its objectives
  • does not result in the return of goods or services by the grantee of an equivalent value to the NSW Government (i.e. it is a non-reciprocal exchange).

The Guide specifically excludes a number of things including:

  • procurements or tenders, including engaging another party to carry out work on behalf of the NSW Government
  • gifts of public property
  • ex gratia payments, act of grace payments and payments to a person of a benefit or an entitlement established by legislation
  • transfer of funds and/or assets between NSW Government entities or SOCs
  • tax concessions or offsets
  • loans
  • payments of remuneration, compensation or damages
  • payments from the Commonwealth where the NSW Government is used as an intermediary to distribute funds
  • scholarships and sponsorship arrangements

The Guide applies to all payments that meet the above definition, including payments made:

  • as a result of a selection process, regardless of whether that process is open, closed, targeted, competitive or non-competitive
  • where particular criteria are satisfied
  • on a one-off or ad hoc basis.

Legislative Context

The Grants Administration Guide (the “Guide”) has been developed by close reference to the Commonwealth Grants Rules and Guidelines 2017 (CGRGs). It sits alongside other requirements that apply to the expenditure of public money in NSW, as well as laws and policies that govern ethical behaviour.

Key requirements of that legislative and policy framework are set out below.

Government Sector Finance Act 2018 (NSW) (GSF Act)

The GSF Act requires that the expenditure of money must be ‘authorised’, namely:

  • with lawful authority, and
  • in accordance with any delegation.

Officials are to be guided by the values of accountability, integrity and transparency when managing public money, as follows:

  • Accountability: take reasonable care so that use of government resources and related money is efficient, effective and prudent.
  • Integrity: place public interest over private interest and not use position or information improperly for financial or personal gain.
  • Transparency: ensure that any real or perceived conflicts of interest are effectively avoided, managed and disclosed.

Additionally, the GSF Act imposes obligations on the accountable authority to implement:

  • financial management policies and procedures
  • effective systems for risk management, internal control and assurance (including by means of internal audits) that are appropriate systems for the agency
  • arrangements for ensuring compliance with the GSF Act

and to ensure compliance with such policies and procedures.

Government Sector Employment Act 2013 (NSW) (GSE Act)

  • acting professionally with honesty, consistency and impartiality
  • placing the public interest over personal interest; providing transparency to enable public scrutiny
  • being fiscally responsible and focusing on efficient, effective and prudent use of resources.4

State Records Act 1998 (NSW) (SR Act)

The SR Act requires public offices (including agencies and Ministerial offices) to keep full and accurate records of the activities of the office. It is an offence to, among other things, abandon, dispose of, damage or alter a State record.

Government Information (Public Access) Act 2009 (NSW) (GIPA Act)

The GIPA Act provides for the proactive release of government information by agencies and gives members of the public an enforceable right to access government information held by an agency (which includes Ministerial offices).

Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act)

The ICAC Act provides for the Independent Commission Against Corruption (the ICAC) to investigate corrupt conduct involving or affecting public authorities and public officials.

NSW Ministerial Code of Conduct

The Ministerial Code of Conduct7 establishes the standards of ethical behaviour required of Ministers, including imposing a duty to act honestly and in the public interest.

Various policies, including Treasury Policy Papers (TPPs), support requirements of the GSF Act. Where these policies are relevant to grants administration, they are mentioned in the Guide. The Guide does not affect the requirements of those laws and policies. Officials, Ministers and Ministerial staff must ensure that they comply with all relevant laws and policies when administering grants.

In September 2022 DPC using a Premier’s Memorandum, released the M2022-07 Grants Administration Guide. The Guide provides principles-based guidance on how the NSW Government creates, offers and manages grants opportunities. Compliance is mandatory across government. Premier’s Memoranda are binding on

  • Ministers
  • Officials, being government sector employees within the meaning of the Government Sector Employment Act 2013 (NSW), excluding employees of State Owned Corporations (SOCs)
  • Ministerial staff.

compliance is required and expected.