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An Act to provide for the appointment of an Auditor- General, to set out the functions of the Auditor- General, and for related purposes
[Minister's second reading speech made in- House of Representatives on 12 December 1996 Senate on 15 March 1997]
Readers Guide
This Guide aims to give you a general overview of the matters covered by this Act. It also gives you some information about the way this Act is organised.
Overview of this Act
This Act establishes an office of Auditor- General for the Commonwealth and sets out the Auditor- General's functions. This Act also establishes the Australian National Audit Office and provides for the appointment of an Independent Auditor to audit the Office.
Summary of this Act
Part 1 Preliminary: This Part deals with the commencement of this Act, its application to things outside Australia and its application to the Crown.
Part 2 General provisions about definitions and offences: This Part contains definitions of terms that are frequently used throughout this Act and general provisions about offences.
Part 3 The Auditor- General: This Part establishes the office of Auditor- General. Schedule 1 deals with administrative matters relating to the office of Auditor- General, such as the Auditor- General's appointment, conditions, resignation and removal.
Part 4 Main functions and powers of the Auditor- General: This Part set out the functions and powers of the Auditor- General.
Part 5 Information- gathering powers and secrecy: This Part gives the Auditor- General various powers to gather information. It also places restrictions on the disclosure or publication of information.
Part 6 The Australian National Audit Office: This Part establishes the Australian National Audit Office.
Part 7 Audit of the Australian National Audit Office: This Part establishes an office of Independent Auditor. The functions of the Independent Auditor are to audit the financial statements of the Australian National Audit Office and to carry out performance audits of the Office. Schedule 2 deals with administrative matters relating to the office of Independent Auditor, such as the Independent Auditor's appointment, conditions, resignation and removal.
Part 8 Miscellaneous: This Part deals with miscellaneous matters such as a Commonwealth indemnity for people carrying out Auditor- General functions.
Related legislation
The following Acts are directly relevant to the operation or interpretation of this Act.
The Commonwealth Authorities and Companies Act 1997 contains reporting, accountability and other rules for Commonwealth authorities and Commonwealth companies.
The Financial Management and Accountability Act 1997 establishes a framework for the proper management of public money and public property (broadly, money or property that is owned or held by the Commonwealth).
The Acts Interpretation Act 1901 contains many general rules about the meaning or effect or various terms and provisions that are commonly used in Commonwealth Acts.
This list is not exhaustive. Acts other than those listed above might also affect the operation or interpretation of this Act.
Contents
Part 1- Preliminary
1 Short title
2 Commencement
3 This Act binds the Crown
4 This Act extends to things outside Australia
Part 2- General provisions about definitions and offences
5 Definitions
6 Offences
Part 3- The Auditor- General
7 Auditor- General
8 Independence of the Auditor- General
9 Appointment, conditions etc. for Auditor- General
10 Auditor- General to have regard to audit priorities of Parliament etc.
Part 4- Main functions and powers of the Auditor- General
Division 1- Statement audits
11 Agencies
12 Commonwealth authorities and subsidiaries
13 Commonwealth companies and subsidiaries
14 Audit fees for statement audits
Division 2- Performance audits
15 Agencies
16 Commonwealth authorities and subsidiaries
17 Commonwealth companies and subsidiaries
18 General performance audit
19 Comments on proposed report
Division 3- Audits etc. by arrangement
20 Audits etc. by arrangement
Division 4- Functions under other Acts
21 Acting as auditor under the Corporations Law
22 Functions under other Acts
Division 5- Miscellaneous functions and powers
23 Provision of advice or information
24 Auditing standards
25 Extra reports to Parliament
26 Extra reports to Ministers
27 Contracting outsiders to assist with audits
28 Annual report for the Australian National Audit Office
29 Delegation by Auditor- General
Part 5- Information- gathering powers and secrecy
Division 1- Information- gathering powers
30 Relationship of information- gathering powers with other laws
31 Purpose for which information- gathering powers may be used
32 Power of Auditor- General to obtain information
33 Access to premises etc.
34 False statements etc.
35 Self- incrimination no excuse
Division 2- Confidentiality of information
36 Confidentiality of information
37 Sensitive information not to be included in public reports
Part 6- The Australian National Audit Office
38 Establishment
39 Function
40 Staff
Part 7- Audit of the Australian National Audit Office
Division 1- The Independent Auditor
41 Independent Auditor
42 Appointment, conditions etc. for Independent Auditor
43 Independent Auditor to have regard to audit priorities of Parliament etc.
Division 2- Audit of the Australian National Audit Office
44 Audit of annual financial statements
45 Performance audit
46 Sensitive information not to be included in public reports
Division 3- Miscellaneous
47 Independent Auditor to have same access powers etc. as Auditor- General
48 Confidentiality of information
49 Indemnity
Part 8- Miscellaneous
50 Guaranteed availability of parliamentary appropriations
51 Auditor- General may approve expenditure
52 Agreements for "net appropriations"
53 Joint Committee of Public Accounts and Audit may request draft estimates for Audit Office
54 Provision of information to the Finance Minister
55 Indemnity
56 Modifications of Act for intelligence or security agency etc.
57 Regulations
Schedule 1- Appointment, conditions of appointment etc. for Auditor- General
1 Appointment of Auditor- General
2 Minister must refer recommendation for appointment of Auditor- General to the Joint Committee of Public Accounts and Audit
3 Remuneration of Auditor- General
4 Recreation leave etc.
5 Resignation
6 Removal from office etc.
7 Acting appointment
Schedule 2- Appointment, conditions of appointment etc. for Independent Auditor
1 Appointment of Independent Auditor
2 Minister must refer recommendation for appointment of Independent Auditor to the Joint Committee of Public Accounts and Audit
3 Remuneration of Independent Auditor
4 Resignation
5 Removal from office etc.
6 Acting appointment
An Act to provide for the appointment of an Auditor- General, to set out the functions of the Auditor- General, and for related purposes
[Assented to 24 October 1997]
The Parliament of Australia enacts:
This Act may be cited as the Auditor- General Act 1997.
This Act commences on the same day as the Financial Management and Accountability Act 1997.
This Act binds the Crown in right of the Commonwealth, but does not make the Crown liable to be prosecuted for an offence.
This Act extends to acts, omissions, matters and things outside Australia (unless the contrary intention appears).
(1) In this Act, unless the contrary intention appears:
Agency has the same meaning as in the Financial Management and Accountability Act 1997.
Audit Office means the Australian National Audit Office established by section 38.
Auditor- General function means a function that the Auditor- General has under this Act or any other Act, and includes any function that the Auditor- General has when acting as auditor under the Corporations Law of a State or Territory.
Chief Executive has the same meaning as in the Financial Management and Accountability Act 1997.
Commonwealth authority has the same meaning as in the Commonwealth Authorities and Companies Act 1997.
Note: Subsection (2) is also relevant to determining whether a body is a Commonwealth authority for the purposes of this Act.
Commonwealth company has the same meaning as in the Commonwealth Authorities and Companies Act 1997.
Corporations Law has the same meaning as in the Corporations Act 1989.
Finance Minister means the Minister who is the Finance Minister within the meaning of the Financial Management and Accountability Act 1997.
FMA official means a person who is an official within the meaning of the Financial Management and Accountability Act 1997.
GBE or government business enterprise has the same meaning as in the Commonwealth Authorities and Companies Act 1997.
Joint Committee of Public Accounts and Audit means the Joint Committee of Public Accounts and Audit provided for in the Public Accounts and Audit Committee Act 1951.
laws of the Commonwealth means:
(a) the Constitution; and
(b) Acts; and
(c) regulations and other instruments made under Acts.
Minister includes the President of the Senate and the Speaker of the House of Representatives.
performance audit, in relation to a person or body, means a review or examination of any aspect of the operations of the person or body.
responsible Minister means:
(a) in relation to an Agency- the Minister who is responsible for the Agency;
(b) in relation to a Commonwealth authority or any of its subsidiaries- the Minister who is responsible for the authority;
(c) in relation to a Commonwealth company or any of its subsidiaries:
(i) the Minister who is prescribed by regulations under the Commonwealth Authorities and Companies Act 1997 as the Minister responsible for the Commonwealth company; or
(ii) if no Minister is prescribed- the Minister who is responsible for the Commonwealth company.
subsidiary, in relation to a Commonwealth authority or Commonwealth company, means an entity that is controlled by the Commonwealth authority or Commonwealth company. For this purpose, entity and control have the same meanings as in the accounting standard that applies for the purpose of deciding whether a company has to prepare consolidated financial statements under the Corporations Law.
(2) The issue of whether a body corporate is a Commonwealth authority for the purpose of this Act is to be determined by reference to the definition in section 7 of the Commonwealth Authorities and Companies Act 1997 and is not affected by any provision in a law that states that the body corporate is not a Commonwealth authority for the purposes of that Act.
(1) Chapter 2 of the Criminal Code applies to all offences against this Act.
(2) A maximum penalty that is specified:
(a) at the foot of a section of this Act (other than a section that is divided into subsections); or
(b) at the foot of a subsection of this Act;
indicates that a person who contravenes the section or subsection is guilty of an offence against the section or subsection that is punishable, on conviction, by a penalty up to that maximum.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If the specified penalty is imprisonment only, section 4B of the Crimes Act 1914 allows the court to impose a fine instead of imprisonment or in addition to imprisonment.
(1) There is to be an Auditor- General for the Commonwealth.
(2) Whenever a vacancy occurs in the office of Auditor- General, an appointment must be made to the office as soon as practicable.
(1) The Auditor- General is an independent officer of the Parliament.
(2) The functions, powers, rights, immunities and obligations of the Auditor- General are as specified in this Act and other laws of the Commonwealth. There are no implied functions, powers, rights, immunities or obligations arising from the Auditor- General being an independent officer of the Parliament.
(3) The powers of the Parliament to act in relation to the Auditor- General are as specified in or applying under this Act and other laws of the Commonwealth. For this purpose, Parliament includes:
(a) each House of the Parliament; and
(b) the members of each House of the Parliament; and
(c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
There are no implied powers of the Parliament arising from the Auditor- General being an independent officer of the Parliament.
(4) Subject to this Act and to other laws of the Commonwealth, the Auditor- General has complete discretion in the performance or exercise of his or her functions or powers. In particular, the Auditor- General is not subject to direction from anyone in relation to:
(a) whether or not a particular audit is to be conducted; or
(b) the way in which a particular audit is to be conducted; or
(c) the priority to be given to any particular matter.
Schedule 1 sets out the conditions of appointment and other matters that have effect in relation to the office of Auditor- General.
In performing or exercising his or her functions or powers, the Auditor- General must have regard to:
(a) the audit priorities of the Parliament determined by the Joint Committee of Public Accounts and Audit under paragraph8(1)(m) of the Public Accounts and Audit Committee Act 1951; and
(b) any reports made by that Committee under paragraph8(1)(h) or 8(1)(i) of that Act.
Division 1 - Statement audits
The Auditor- General's functions include auditing financial statements of Agencies in accordance with the Financial Management and Accountability Act 1997.
The Auditor- General's functions include auditing financial statements of Commonwealth authorities and their subsidiaries in accordance with the Commonwealth Authorities and Companies Act 1997.
The Auditor- General's functions include auditing financial statements of Commonwealth companies and their subsidiaries in accordance with the Commonwealth Authorities and Companies Act 1997.
(1) A person or body whose financial statements are audited as mentioned in section 12 or 13 is liable to pay audit fees for the audit, based on a scale of fees determined by the Auditor- General.
(2) Fees are payable within 30 days after issue of a payment claim. Payment claims for instalments may be issued before the audit is completed.
(3) The Auditor- General, on behalf of the Commonwealth, may recover unpaid fees as a debt in a court of competent jurisdiction.
(4) In the annual report under section 28, the Auditor- General must include details of the basis on which the Auditor- General determined the audit fees that applied during the financial year concerned.
Division 2- Performance audits
(1) The Auditor- General may at any time conduct a performance audit of an Agency.
(2) As soon as practicable after completing the report on the audit, the Auditor- General must:
(a) cause a copy to be tabled in each House of the Parliament; and
(b) give a copy to the responsible Minister.
(3) For the purposes of this section, an Agency is taken not to include any persons who are employed or engaged under the Members of Parliament (Staff) Act 1984 and who are allocated to the Agency by regulations for the purposes of the definition of Agency in section 5 of the Financial Management and Accountability Act 1997.
(1) The Auditor- General may at any time conduct a performance audit of a Commonwealth authority (other than a GBE), or of any of its subsidiaries.
(2) The Auditor- General may conduct a performance audit of a Commonwealth authority that is a GBE, or of any of its subsidiaries, if the responsible Minister, the Finance Minister or the Joint Committee of Public Accounts and Audit requests the audit. The Finance Minister is to consult with the responsible Minister before making a request.
(3) Nothing prevents the Auditor- General from asking a responsible Minister, the Finance Minister or the Joint Committee of Public Accounts and Audit to make a particular request under subsection(2).
(4) As soon as practicable after completing the report on an audit under this section, the Auditor- General must:
(a) cause a copy to be tabled in each House of the Parliament; and
(b) give a copy to the responsible Minister.
(1) The Auditor- General may at any time conduct a performance audit of a Commonwealth company (other than a GBE), or of any of its subsidiaries.
(2) The Auditor- General may conduct a performance audit of a wholly owned Commonwealth company that is a GBE, or of any of its subsidiaries, if the responsible Minister, the Finance Minister or the Joint Committee of Public Accounts and Audit requests the audit. The Finance Minister is to consult with the responsible Minister before making a request.
(3) Nothing prevents the Auditor- General from asking a responsible Minister, the Finance Minister or the Joint Committee of Public Accounts and Audit to make a particular request under subsection(2).
(4) As soon as practicable after completing the report on an audit under this section, the Auditor- General must:
(a) cause a copy to be tabled in each House of the Parliament; and
(b) give a copy to the responsible Minister.
(5) In this section:
wholly- owned Commonwealth company has the same meaning as in the Commonwealth Authorities and Companies Act 1997.
(1) The Auditor- General may at any time conduct a review or examination of a particular aspect of the operations of the whole or part of the Commonwealth public sector, being a review or examination that is not limited to the operations of only one Agency, body or person.
(2) As soon as practicable after completing the report on an audit under this section, the Auditor- General must:
(a) cause a copy to be tabled in each House of the Parliament; and
(b) give a copy to the Finance Minister.
(3) The Auditor- General may give a copy of the report to any other Minister who, in the Auditor- General's opinion, has a special interest in the report.
(4) In this section:
Commonwealth public sector means Agencies, Commonwealth authorities (other than GBEs) and their subsidiaries and Commonwealth companies (other than GBEs) and their subsidiaries.
(1) After preparing a proposed report on an audit of an Agency under section15, the Auditor- General must give a copy of the proposed report to the Chief Executive of the Agency.
(2) After preparing a proposed report on an audit of a body under section16 or 17, the Auditor- General must give a copy of the proposed report to an officer of the body.
(3) After preparing a proposed report on an audit under section15, 16, 17 or 18, the Auditor- General may give a copy of the proposed report to any person who, in the Auditor- General's opinion, has a special interest in the report.
(4) If the recipient of the proposed report gives written comments to the Auditor- General within 28 days after receiving the proposed report, the Auditor- General must consider those comments before preparing a final report.
Division 3- Audits etc. by arrangement
(1) The Auditor- General may enter into an arrangement with any person or body:
(a) to audit financial statements of the person or body; or
(b) to conduct a performance audit of the person or body; or
(c) to provide services to the person or body that are of a kind commonly performed by auditors.
(2) An arrangement may provide for the payment of fees to the Auditor- General. The fees are to be received by the Auditor- General on behalf of the Commonwealth.
(3) The Auditor- General must not perform functions under this section for a purpose that is outside the Commonwealth's legislative power.
Division 4- Functions under other Acts
(1) The Auditor- General may accept appointment under the Corporations Law of a State or Territory as the auditor of:
(a) a subsidiary of a Commonwealth authority; or
(b) a Commonwealth company; or
(c) any other company in which the Commonwealth has a controlling interest.
(2) This section does not, by implication, limit the Auditor- General's power to enter into arrangements under section 20.
The Auditor- General's functions include any functions given to the Auditor- General by any other Act.
Division 5- Miscellaneous functions and powers
(1) The Auditor- General may provide advice or information to a person or body relating to the Auditor- General's responsibilities if, in the Auditor- General's opinion, it is in the Commonwealth's interests to provide the information or advice.
(2) In this section:
Auditor- General's responsibilities means:
(a) the Auditor- General's functions and powers; and
(b) any matter which the Auditor- General could consider when exercising those functions and powers.
The Auditor- General must, by notice in the Gazette, set auditing standards that are to be complied with by persons performing any of the following functions:
(a) an audit referred to in Division 1 or 2;
(b) an audit under Division 2 of Part 7;
(c) an audit under section 56 of the Financial Management and Accountability Act 1997.
(1) The Auditor- General may at any time cause a report to be tabled in either House of the Parliament on any matter.
(2) The Auditor- General must give a copy of the report to the Prime Minister, the Finance Minister and to any other Minister who, in the Auditor- General's opinion, has a special interest in the report.
(1) The Auditor- General must bring to the attention of the responsible Minister any important matter that comes to the attention of the Auditor- General while:
(a) conducting an audit referred to in Division 1; or
(b) performing functions as an auditor under the Corporations Law of a State or Territory.
For this purpose, important matter means any matter that, in the Auditor- General's opinion, is important enough to justify it being brought to the attention of the responsible Minister.
(2) The Auditor- General may at any time give a report to any Minister on any matter.
The Auditor- General, on behalf of the Commonwealth, may engage any person under contract to assist in the performance of any Auditor- General function.
As soon as practicable after 30 June in each year, the Auditor- General must:
(a) prepare a report on the operations of the Audit Office during that year; and
(b) cause a copy of the report to be tabled in each House of the Parliament.
(1) The Auditor- General may, by written instrument, delegate any of the Auditor- General's powers or functions under any Act to an FMA official.
(2) In exercising powers or functions under the delegation, the official must comply with any directions of the Auditor- General.
Division 1- Information- gathering powers
The operation of sections 32 and 33:
(a) is limited by laws of the Commonwealth (whether made before or after the commencement of this Act) relating to the powers, privileges and immunities of:
(i) each House of the Parliament; and
(ii) the members of each House of the Parliament; and
(iii) the committees of each House of the Parliament and joint committees of both Houses of the Parliament; but
(b) is not limited by any other law (whether made before or after the commencement of this Act), except to the extent that the other law expressly excludes the operation of section 32 or 33.
The powers under sections 32 and 33 may be used for the purpose of, or in connection with, any Auditor- General function, except:
(a) an audit or other function under section 20; or
(b) providing advice or information under section 23; or
(c) preparing a report under section 25 or 26.
(1) The Auditor- General may, by written notice, direct a person to do all or any of the following:
(a) to provide the Auditor- General with any information that the Auditor- General requires;
(b) to attend and give evidence before the Auditor- General or an authorised official;
(c) to produce to the Auditor- General any documents in the custody or under the control of the person.
Note: A proceeding under paragraph (1)(b) is a "judicial proceeding" for the purposes of Part III of the Crimes Act 1914. The Crimes Act prohibits certain conduct in relation to judicial proceedings.
(2) The Auditor- General may direct that:
(a) the information or answers to questions be given either orally or in writing (as the Auditor- General requires);
(b) the information or answers to questions be verified or given on oath or affirmation.
The oath or affirmation is an oath or affirmation that the information or evidence the person will give will be true, and may be administered by the Auditor- General or by an authorised official.
(3) A person must comply with a direction under this section.
Maximum penalty: 30 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Section 4AA of the Crimes Act 1914 sets the current value of a penalty unit.
(4) The regulations may prescribe scales of expenses to be allowed to persons who are required to attend under this section.
(5) In this section:
authorised official means an FMA official who is authorised by the Auditor- General, in writing, to exercise powers or perform functions under this section.
(1) The Auditor- General or an authorised official:
(a) may, at all reasonable times, enter and remain on any premises occupied by the Commonwealth, a Commonwealth authority or a Commonwealth company; and
(b) is entitled to full and free access at all reasonable times to any documents or other property; and
(c) may examine, make copies of or take extracts from any document.
(2) An authorised official is not entitled to enter or remain on premises if he or she fails to produce a written authority on being asked by the occupier to produce proof of his or her authority. For this purpose, written authority means an authority signed by the Auditor- General that states that the official is authorised to exercise powers under this Division.
(3) If an authorised official enters, or proposes to enter, premises under this section, the occupier must provide the official with all reasonable facilities for the effective exercise of powers under this section.
Maximum penalty: 10 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Section 4AA of the Crimes Act 1914 sets the current value of a penalty unit.
(4) In this section:
authorised official means an FMA official who is authorised by the Auditor- General, in writing, to exercise powers or perform functions under this section.
premises includes any land or place.
(1) A person must not make a statement to an audit official that the person knows is false or misleading in a material particular.
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) If a person gives an audit official a document that the person knows is false or misleading in a material particular, the person must identify the particular.
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3) In this section:
audit official means a person performing, or assisting in the performance of, an Auditor- General function.
A person is not excused from producing a document or answering a question under section 32 on the ground that the answer, or the production of the document, might tend to incriminate the person or make the person liable to a penalty. However, neither:
(a) the answer to the question or the production of the document; nor
(b) anything obtained as a direct or indirect result of the answer or the production of the document;
is admissible in evidence against the person in any criminal proceedings (other than proceedings for an offence against, or arising out of, section 32 or 34).
Division 2- Confidentiality of information
(1) If a person has obtained information in the course of performing an Auditor- General function, the person must not disclose the information except in the course of performing an Auditor- General function or for the purpose of any Act that gives functions to the Auditor- General.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) Subsection (1) does not prevent the Auditor- General from disclosing particular information to the Commissioner of the Australian Federal Police if the Auditor- General is of the opinion that the disclosure is in the public interest.
(3) A person who receives a proposed report under section 19 must not disclose any of the information in the report except with the consent of the Auditor- General.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) The Auditor- General must not include particular information in a public report if:
(a) the Auditor- General is of the opinion that disclosure of the information would be contrary to the public interest for any of the reasons set out in subsection (2); or
(b) the Attorney- General has issued a certificate to the Auditor- General stating that, in the opinion of the Attorney- General, disclosure of the information would be contrary to the public interest for any of the reasons set out in subsection (2).
(2) The reasons are:
(a) it would prejudice the security, defence or international relations of the Commonwealth;
(b) it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet;
(c) it would prejudice relations between the Commonwealth and a State;
(d) it would divulge any information or matter that was communicated in confidence by the Commonwealth to a State, or by a State to the Commonwealth;
(e) it would unfairly prejudice the commercial interests of any body or person;
(f) any other reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed.
(3) The Auditor- General cannot be required, and is not permitted, to disclose to:
(a) a House of the Parliament; or
(b) a member of a House of the Parliament; or
(c) a committee of a House of the Parliament or a joint committee of both Houses of the Parliament;
information that subsection (1) prohibits being included in a public report.
(4) If the Auditor- General decides to omit particular information from a public report because the Attorney- General has issued a certificate under paragraph (1)(b) in relation to the information, the Auditor- General must state in the report:
(a) that information (which does not have to be identified) has been omitted from the report; and
(b) the reason or reasons (in terms of subsection (2)) why the Attorney- General issued the certificate.
(5) If, because of subsection (1), the Auditor- General decides:
(a) not to prepare a public report; or
(b) to omit particular information from a public report;
the Auditor- General may prepare a report under this subsection that includes the information concerned. The Auditor- General must give a copy of each report under this subsection to the Prime Minister, the Finance Minister and the responsible Minister or Ministers (if any).
(6) In this section:
public report means a report that is to be tabled in either House of the Parliament.
State includes a self- governing Territory.
(1) There is established an Office called the Australian National Audit Office.
(2) The Audit Office consists of the Auditor- General and the staff referred to in section 40.
The function of the Audit Office is to assist the Auditor- General in performing the Auditor- General's functions.
(1) The staff of the Audit Office are to be persons appointed or employed under the Public Service Act 1922.
Note: Under section 27, the Auditor- General may also engage persons under contract.
(2) Directions to staff of the Audit Office relating to the performance of the Auditor- General's functions may only be given by:
(a) the Auditor- General; or
(b) a member of the staff of the Audit Office authorised to give such directions by the Auditor- General.
Division 1- The Independent Auditor
(1) There is to be an Independent Auditor.
(2) Whenever a vacancy occurs in the office of Independent Auditor, an appointment must be made to the office as soon as practicable.
Schedule 2 sets out the conditions of appointment and other matters that have effect in relation to the office of Independent Auditor.
In performing or exercising his or her functions or powers, the Independent Auditor must have regard to the audit priorities of the Parliament for audits of the Audit Office determined by the Joint Committee of Public Accounts and Audit under paragraph8(1)(n) of the Public Accounts and Audit Committee Act 1951.
Division 2- Audit of the Australian National Audit Office
(1) After preparing the annual financial statements for the Audit Office under section 49 of the Financial Management and Accountability Act 1997, the Auditor- General must give the statements to the Independent Auditor.
(2) The Independent Auditor must audit the statements in accordance with section 57 of the Financial Management and Accountability Act 1997. For this purpose, references in that section to the Auditor- General are to be read as references to the Independent Auditor.
(1) The Independent Auditor may at any time conduct a performance audit of the Audit Office.
(2) After preparing a proposed report on an audit, the Independent Auditor must give a copy of the proposed report to the Auditor- General. If the Auditor- General gives written comments to the Independent Auditor within 28 days after receiving the proposed report, the Independent Auditor must consider those comments before preparing a final report.
(3) As soon as practicable after completing the report on the audit, the Independent Auditor must:
(a) cause a copy to be tabled in each House of the Parliament; and
(b) give a copy to the responsible Minister.
Section 37 applies to the Independent Auditor as if references in that section to the Auditor- General were references to the Independent Auditor.
Division 3- Miscellaneous
Division 1 of Part 5 applies in relation to the performance of functions under this Part in the same way as it applies in relation to the performance of Auditor- General functions. For that purpose:
(a) references in that Division to an Auditor- General function are to be read as references to a function of the Independent Auditor under this Part; and
(b) other references in that Division to the Auditor- General are to be read as references to the Independent Auditor.
(1) If a person has obtained information in the course of performing a function under this Part, the person must not disclose the information except in the course of performing a function under this Part.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) Subsection (1) does not prevent the Independent Auditor from disclosing particular information to the Commissioner of the Australian Federal Police if the Independent Auditor is of the opinion that the disclosure is in the public interest.
(1) The Commonwealth must indemnify a person for any liability that the person incurs for an act or omission of the person in the course of performing a function under this Part.
(2) The indemnity does not apply if the liability arose from an act or omission in bad faith.
The Finance Minister must issue drawing rights under section27 of the Financial Management and Accountability Act 1997 that cover in full the amounts that the Parliament appropriates for the purposes of the Audit Office.
The Auditor- General has authority to approve a proposal to spend money under an appropriation for the Audit Office.
Note: The Auditor- General's power under this section may be delegated under section 29.
(1) Any net appropriation agreement made by the Finance Minister in relation to the Audit Office must be made with the Auditor- General (whether or not the Finance Minister is responsible for the relevant appropriation items).
(2) The Finance Minister must not cancel or vary a net appropriation agreement made with the Auditor- General unless the Auditor- General consents.
(3) In this section:
net appropriation agreement means an agreement made under section31 of the Financial Management and Accountability Act 1997.
(1) The Joint Committee of Public Accounts and Audit may request the Auditor- General to submit to the Committee draft estimates for the Audit Office for a financial year before the annual Commonwealth budget for that financial year.
(2) The Auditor- General must comply with the request in time to allow the Committee to consider the draft estimates and make recommendations on them before the budget.
Note: For the Committee's powers to consider draft estimates and make recommendations, see paragraphs 8(1)(j) and (l) of the Public Accounts and Audit Committee Act 1951.
(1) This section applies to a requirement under section50 of the Financial Management and Accountability Act 1997 for the Auditor- General to give the Finance Minister financial statements or information.
(2) To be effective, the requirement must be in writing.
(3) The Finance Minister must, as soon as practicable, report to the Joint Committee of Public Accounts and Audit the fact that the requirement has been made and the reasons for making it.
(4) The requirement must be disclosed in the annual report under section28 for the year in which the requirement was made.
(1) The Commonwealth must indemnify a person for any liability that the person incurs for an act or omission of the person in the course of performing an Auditor- General function.
(2) The indemnity does not apply if the liability arose from an act or omission in bad faith.
(3) The indemnity does not cover a liability of a person to the extent to which the person is entitled to be indemnified for the liability by a person other than the Commonwealth, whether under a contract of insurance or otherwise.
(1) The application of this Act to:
(a) an intelligence or security agency; or
(b) a company that is conducted for the purposes of an intelligence or security agency;
is subject to any modifications that are prescribed by the regulations.
(2) Modifications prescribed by regulations under subsection (1) may impose additional obligations, and may provide for contravention of such an obligation to be an offence punishable by a fine of up to 10 penalty units.
Note: Section 4AA of the Crimes Act 1914 sets the current value of a penalty unit.
(3) In this section:
intelligence or security agency has the meaning given by section85ZL of the Crimes Act 1914.
modifications includes additions, omissions and substitutions.
The Governor- General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Schedule 1- Appointment, conditions of appointment etc. for Auditor- General
Note: See section 9.
(1) The Auditor- General is to be appointed by the Governor- General, on the recommendation of the Minister, for a term of 10 years.
Note: The effect of section 19A of the Acts Interpretation Act 1901 is that "the Minister" refers to the Minister who administers this clause. The administration of Acts or particular provisions of Acts is allocated by Administrative Arrangements Orders made by the Governor- General.
(2) The Auditor- General holds office on a full- time basis.
(3) For the purposes of the Superannuation Act 1976 and the Trust Deed under the Superannuation Act 1990, the minimum retiring age for the Auditor- General is 55. However, if the instrument of appointment specifies a younger age, then the younger age applies.
(4) A person cannot be appointed as Auditor- General if the person has previously been appointed as Auditor- General under this Act or under the Audit Act 1901.
(1) The Minister must not make a recommendation to the Governor- General under clause 1 unless:
(a) the Minister has referred the proposed recommendation to the Joint Committee of Public Accounts and Audit for approval; and
(b) the Committee has approved the proposal.
(2) A referral under paragraph (1)(a) must be in writing and may be withdrawn by the Minister at any time.
Note: Section 8A of the Public Accounts and Audit Committee Act 1951 deals with how the Joint Committee of Public Accounts and Audit approves proposals.
(1) The Auditor- General is to be paid the remuneration that is determined by the Remuneration Tribunal. However, if no determination of that remuneration by the Tribunal is in operation, the Auditor- General is to be paid the remuneration that is prescribed by the regulations.
(2) The Auditor- General is to be paid such allowances as are prescribed by the regulations.
(3) This clause has effect subject to the Remuneration Tribunal Act 1973.
(4) The Consolidated Revenue Fund is appropriated for payments under this clause.
(1) Subject to section 87E of the Public Service Act 1922, the Auditor- General has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Auditor- General other leave of absence on such terms and conditions as the Minister determines. The terms and conditions may include terms and conditions relating to remuneration.
The Auditor- General may resign by giving the Governor- General a signed resignation notice.
(1) The Governor- General may remove the Auditor- General from office if each House of the Parliament, in the same session of the Parliament, presents an address to the Governor- General praying for the removal of the Auditor- General on the ground of misbehaviour or physical or mental incapacity.
(2) The Governor- General must remove the Auditor- General from office if the Auditor- General does any of the following:
(a) becomes bankrupt;
(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;
(c) compounds with his or her creditors;
(d) assigns his or her remuneration for the benefit of his or her creditors.
(3) If the Auditor- General is:
(a) an eligible employee for the purposes of the Superannuation Act 1976; or
(b) a member of the superannuation scheme established by the Trust Deed under the Superannuation Act 1990;
the Governor- General may, with the consent of the Auditor- General, retire the Auditor- General from office on the ground of physical or mental incapacity.
(4) For the purposes of the Superannuation Act 1976, the Auditor- General is taken to have been retired from office on the ground of invalidity if:
(a) the Auditor- General is removed or retired from office on the ground of physical or mental incapacity; and
(b) the CSS Board gives a certificate under section 54C of the Superannuation Act 1976.
(5) For the purposes of the Superannuation Act 1990, the Auditor- General is taken to have been retired from office on the ground of invalidity if:
(a) the Auditor- General is removed or retired from office on the ground of physical or mental incapacity; and
(b) the PSS Board gives a certificate under section13 of the Superannuation Act 1990.
(1) The Minister may appoint a person to act as Auditor- General:
(a) if there is a vacancy in the office of Auditor- General, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Auditor- General is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a person purporting to act under this section is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(3) A person acting under this section is entitled to the same remuneration and allowances as apply to the office of Auditor- General. The Consolidated Revenue Fund is appropriated for the payment of the remuneration and allowances.
Note: Section 33A of the Acts Interpretation Act 1901 has rules that apply to acting appointments.
Schedule 2- Appointment, conditions of appointment etc. for Independent Auditor
Note: See section 42.
(1) The Independent Auditor is to be appointed by the Governor- General, on the recommendation of the Minister, for a term of at least 3 years and not more than 5 years.
(2) The Independent Auditor holds office on a part- time basis.
Note: The effect of section 19A of the Acts Interpretation Act 1901 is that "the Minister" refers to the Minister who administers this clause. The administration of Acts or particular provisions of Acts is allocated by Administrative Arrangements Orders made by the Governor- General.
(1) The Minister must not make a recommendation to the Governor- General under clause 1 unless:
(a) the Minister has referred the proposed recommendation to the Joint Committee of Public Accounts and Audit for approval; and
(b) the Committee has approved the proposal.
(2) A referral under paragraph (1)(a) must be in writing and may be withdrawn by the Minister at any time.
Note: Section 8A of the Public Accounts and Audit Committee Act 1951 deals with how the Joint Committee of Public Accounts and Audit approves proposals.
(1) The Independent Auditor is to be paid the fees and allowances that are determined by the Minister.
(2) The Remuneration Tribunal Act 1973 does not apply to the office of Independent Auditor.
The Independent Auditor may resign by giving the Governor- General a signed resignation notice.
(1) The Governor- General may remove the Independent Auditor from office if each House of the Parliament, in the same session of the Parliament, presents an address to the Governor- General praying for the removal of the Independent Auditor on the ground of misbehaviour or physical or mental incapacity.
(2) The Governor- General must remove the Independent Auditor from office if the Independent Auditor does any of the following:
(a) becomes bankrupt;
(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;
(c) compounds with his or her creditors;
(d) assigns his or her remuneration for the benefit of his or her creditors.
(3) If the Independent Auditor is:
(a) an eligible employee for the purposes of the Superannuation Act 1976; or
(b) a member of the superannuation scheme established by the Trust Deed under the Superannuation Act 1990;
the Governor- General may, with the consent of the Independent Auditor, retire the Independent Auditor from office on the ground of physical or mental incapacity.
(4) For the purposes of the Superannuation Act 1976, the Independent Auditor is taken to have been retired from office on the ground of invalidity if:
(a) the Independent Auditor is removed or retired from office on the ground of physical or mental incapacity; and
(b) the CSS Board gives a certificate under section 54C of the Superannuation Act 1976.
(5) For the purposes of the Superannuation Act 1990, the Independent Auditor is taken to have been retired from office on the ground of invalidity if:
(a) the Independent Auditor is removed or retired from office on the ground of physical or mental incapacity; and
(b) the PSS Board gives a certificate under section 13 of the Superannuation Act 1990.
(1) The Minister may appoint a person to act as Independent Auditor:
(a) if there is a vacancy in the office of Independent Auditor, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Independent Auditor is unable to perform the duties of the office.
(2) Anything done by or in relation to a person purporting to act under this section is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
Note: Section 33A of the Acts Interpretation Act 1901 has rules that apply to acting appointments. These rules include a power for the Minister to determine remuneration and allowances.
An Act to provide for the proper use and management of public money, public property and other Commonwealth resources, and for related purposes
[Minister's second reading speech made in-
House of Representatives on 12 December 1996
Senate on 15 March 1997]
Reader's guide
This Guide aims to give you a general overview of the matters covered by this Act. It also gives you some information about the way this Act is organised.
Overview of this Act
The main purpose of this Act is to provide a framework for the proper management of public money and public property. Public money and public property are defined in section 5. Broadly, those terms refer to money or property that is owned or held by the Commonwealth, including money or property held on trust.
This Act establishes an accounting system for public money that is based on the Consolidated Revenue Fund and 3 other funds established by this Act. The diagram in Appendix A illustrates the accounting system.
The Act also has rules about how public money and property are to be dealt with. Many of the detailed rules are in Finance Minister's Orders made under section 63 and regulations made under section65.
Many of the rules in this Act apply to officials of Agencies and to Chief Executives of Agencies. Agency, official and Chief Executive are defined in section 5.
Summary of this Act
Part 1 Preliminary: This Part deals with the commencement of this Act, its application to things outside Australia and its application to the Crown.
Part 2 General provisions about definitions and offences: This Part contains definitions of terms that are frequently used throughout this Act and general provisions about offences.
Part 3 Collection, custody etc. of public money: This Part deals with the collection and custody of public money. It deals with matters such as banking and liability for loss of public money.
Part 4 Fund accounting, appropriations and payments: This Part establishes an accounting system for public money that involves the Consolidated Revenue Fund and the following funds established by this Act: a Loan Fund, a Reserved Money Fund and a Commercial Activities Fund. This Part has a number of rules that apply to Parliamentary appropriations. It also deals with miscellaneous matters such as act of grace payments by the Commonwealth and waiver of debts owing to the Commonwealth.
Part 5 Borrowing and investment: This Part gives the Finance Minister limited powers to borrow money on behalf of the Commonwealth. It also deals with the investment of public money.
Part 6 Control and management of public property: This Part has rules about the control and management of public property. It deals with matters such as misapplication of public property and liability for loss of public property.
Part 7 Special responsibilities of Chief Executives: The rules in this Part apply to Chief Executives of Agencies. The rules deal generally with the control and management of public money and public property for which Chief Executives have a management responsibility.
Part 8 Reporting and audit: This Part deals with the preparation and audit of financial statements of transactions of the Funds. It also deals with the audit of annual financial statements of Agencies.
Part 9 Miscellaneous: This Part deals with miscellaneous matters such as Finance Minister's Orders, regulations and delegations.
Related legislation
The following Acts are directly relevant to the operation or interpretation of this Act:
The Auditor- General Act 1997 establishes the office of Auditor- General and sets out the functions of the Auditor- General. It also provides for the appointment of an Independent Auditor to audit the Australian National Audit Office.
The Acts Interpretation Act 1901 contains many general rules about the meaning or effect of many terms and provisions that are commonly used in Commonwealth Acts.
This list is not exhaustive. Acts other than those listed above might also affect the operation or interpretation of this Act.
Another related Act is the Commonwealth Authorities and Companies Act 1997. It contains reporting rules, accountability rules and other rules that apply to Commonwealth authorities and Commonwealth companies.
Contents
Part 1- Preliminary
1 Short title
2 Commencement
3 This Act binds the Crown
4 This Act extends to things outside Australia
Part 2- General provisions about definitions and offences
5 Definitions
6 Notional payments and receipts by Agencies
7 Offences
Part 3- Collection, custody etc. of public money
8 Agreements with banks about receipt, transmission etc. of public money
9 Official bank accounts
10 Public money must be promptly banked etc.
11 Public money not to be paid into non- official account
12 Finance Minister's authority needed for arrangements for receipt etc. of public money by outsiders
13 Money not to be withdrawn from official account without authority
14 Misapplication or improper use of public money
15 Liability for loss of public money
16 Special Instructions by Finance Minister about handling etc. of special public money
Part 4- Fund accounting, appropriations and payments
Division 1- Fund accounting
17 Accounting classifications of public money
18 Public money must initially be credited to the Consolidated Revenue Fund
19 The Loan Fund
20 The Reserved Money Fund
21 The Commercial Activities Fund
22 Disallowance of determinations dealing with Fund components
23 Set- offs ignored for Fund accounting purposes
24 Finance Minister must keep accounts and records of Fund transactions
25 References in other Acts etc. to payments into or out of Funds
Division 2- Drawing rights
26 Drawing rights required for payment etc. of public money
27 Issue of drawing rights
Division 3- Appropriations
28 Appropriation for repayments required or permitted by law
29 Uncommitted advances lapse at end of appropriation period
30 Appropriation to be reinstated for amounts re- credited to Fund
31 Agreements for "net appropriations"
32 Adjustment of appropriations on change of Agency functions
Division 4- Miscellaneous
33 Finance Minister may approve act of grace payments
34 Finance Minister may waive debts etc.
35 Finance Minister may approve payments pending probate etc.
36 Presiding Officers may approve expenditure
Part 5- Borrowing and investment
37 Unauthorised borrowing agreements are invalid
38 Finance Minister may borrow for short periods
39 Finance Minister may invest public money
Part 6- Control and management of public property
40 Custody etc. of securities
41 Misapplication or improper use of public property
42 Liability for loss etc. of public property
43 Gifts of public property
Part 7- Special responsibilities of Chief Executives
44 Promoting efficient, effective and ethical use of Commonwealth resources
45 Fraud control plan
46 Audit committee
47 Recovery of debts
48 Accounts and records
49 Annual financial statements
50 Additional financial statements and information
51 Reporting requirements on change of Agency functions
52 Chief Executive's instructions
53 Chief Executive may delegate powers
Part 8- Reporting and audit
54 Preparation and publication of monthly statement of fund transactions
55 Preparation of annual statements by Finance Minister
56 Audit of Finance Minister's annual financial statements
57 Audit of annual financial statements of Agency
Part 9- Miscellaneous
58 Modifications of Act for intelligence or security agency
59 Advisory Committees for reporting on large waivers etc.
60 Misuse of Commonwealth credit card
61 Official must not falsify accounts etc.
62 Finance Minister may delegate powers
63 Finance Minister's Orders
64 Guidelines by Ministers
65 Regulations
Appendix A- Fund accounting system
An Act to provide for the proper use and management of public money, public property and other Commonwealth resources, and for related purposes
[Assented to 24 October 1997]
The Parliament of Australia enacts:
This Act may be cited as the Financial Management and Accountability Act 1997.
(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1) by 1July in the next calendar year after the calendar year in which this Act receives the Royal Assent, it commences on that 1July.
This Act binds the Crown in right of the Commonwealth, but does not make the Crown liable to be prosecuted for an offence.
This Act extends to acts, omissions, matters and things outside Australia (unless the contrary intention appears).
In this Act, unless the contrary intention appears:
Agency means:
(a) a Department of State:
(i) including persons who are allocated to the Department (for the purposes of this Act) by regulations made for the purposes of this paragraph; but
(ii) not including any part of the Department that is a prescribed Agency;
(b) a Department of the Parliament, including persons who are allocated to the Department (for the purposes of this Act) by regulations made for the purposes of this paragraph;
(c) a prescribed Agency.
appropriation means an authority under this Act or any other law to debit an amount from a particular Fund, whether or not the law concerned uses the word "appropriation" or "appropriated".
bank means:
(a) a person who carries on the business of banking, either in Australia or outside Australia; or
(b) any other institution:
(i) that carries on a business in Australia that consists of or includes taking money on deposit; and
(ii) the operations of which are subject to prudential supervision or regulation under a law of the Commonwealth, a State or a Territory.
Chief Executive means:
(a) for a prescribed Agency- the person identified by the regulations as the Chief Executive of the Agency; or
(b) for any other Agency- the person who is the Secretary of the Agency for the purposes of the Public Service Act 1922.
Commercial Activities Fund means the fund established by section 21.
Consolidated Revenue Fund means the Consolidated Revenue Fund referred to in section 81 of the Constitution.
Drawn Money has the meaning given by section 17.
Finance Minister means the Minister who administers this Act.
Finance Minister's Orders means Orders made under section63.
Fund means:
(a) the Consolidated Revenue Fund;
(b) the Loan Fund;
(c) the Commercial Activities Fund;
(d) the Reserved Money Fund.
Loan Fund means the fund established by section 19.
Minister includes a Presiding Officer.
official means a person who is in an Agency or is part of an Agency.
official account means a bank account referred to in section 9.
prescribed Agency means a body, organisation or group of persons prescribed by the regulations for the purposes of this definition.
Presiding Officer means the President of the Senate or the Speaker of the House of Representatives.
public money means:
(a) money in the custody or under the control of the Commonwealth; or
(b) money in the custody or under the control of any person acting for or on behalf of the Commonwealth in respect of the custody or control of the money;
including such money that is held on trust for, or otherwise for the benefit of, a person other than the Commonwealth.
public property means:
(a) property in the custody or under the control of the Commonwealth; or
(b) property in the custody or under the control of any person acting for or on behalf of the Commonwealth in respect of the custody or control of the property;
including such property that is held on trust for, or otherwise for the benefit of, a person other than the Commonwealth.
Received Money has the meaning given by section 17.
Reserved Money Fund means the fund established by section20.
Special Instruction means an instruction by the Finance Minister under section 16.
special public money has the meaning given by section 16.
(1) This Act applies to a notional payment by an Agency (or part of an Agency) as if it were a real payment by the Commonwealth.
(2) This Act applies to a notional receipt by an Agency (or part of an Agency) of such a notional payment as if it were a real receipt by the Commonwealth.
Note: This section applies to transactions that do not actually involve payments or receipts, because both parties to the transaction are merely acting as agents for the Commonwealth. For example, Agency 1 pays Agency 2 for services provided by Agency 2 to Agency 1. The effect of this section is that the payment by Agency 1 can be regarded as authorised by an appropriation for Agency 1, while the receipt by Agency 2 must be credited to the Consolidated Revenue Fund.
(1) Chapter 2 of the Criminal Code applies to all offences against this Act.
(2) A maximum penalty that is specified:
(a) at the foot of a section of this Act (other than a section that is divided into subsections); or
(b) at the foot of a subsection of this Act;
indicates that a person who contravenes the section or subsection is guilty of an offence against the section or subsection that is punishable, on conviction, by a penalty up to that maximum.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If the specified penalty is imprisonment only, section 4B of the Crimes Act 1914 allows the court to impose a fine instead of imprisonment or in addition to imprisonment.
(1) The Finance Minister may, on behalf of the Commonwealth, enter into an agreement with any bank:
(a) for the receipt, custody, payment or transmission of public money, either inside or outside Australia; or
(b) for any other matter relating to the conduct of the banking business of the Commonwealth.
(2) An agreement under this section may provide for the payment of interest and other charges by the Commonwealth.
(3) An agreement under this section may not provide for overdraft drawings by the Commonwealth unless it provides for each drawing to be repaid within 30 days.
Note: An overdraft drawing consists of the bank meeting the payment of a cheque, or making an "electronic payment" to another account, and in each case debiting the payment against an account that has an insufficient balance. Section 38 deals with overdrafts that arise in respect of advances that are paid to the Commonwealth.
(4) An agreement for an overdraft on an official account must not be made except under this section.
(5) An agreement under this section may not be made for a period of more than one year unless the agreement can be terminated by the Commonwealth at any time after giving notice of not more than 6 months.
(1) The Finance Minister may open and maintain bank accounts in accordance with agreements under section 8, and must open and maintain at least one such bank account.
(2) A bank account must have a name that includes the word "Official".
(3) An account for the receipt, custody, payment or transmission of public money must not be opened except in accordance with this section.
An official or Minister who receives public money (including money that becomes public money upon receipt) must bank it as required by the Finance Minister's Orders or otherwise deal with it as required by the Finance Minister's Orders. For this purpose, money includes cheques and similar instruments.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
An official or Minister must not deposit public money in any account other than an official account. For this purpose, money includes cheques and similar instruments.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
An official or Minister must not enter into an agreement or arrangement for the receipt or custody of public money by an outsider unless:
(a) the Finance Minister has first given a written authorisation for the arrangement; or
(b) the arrangement is expressly authorised by this Act or by another Act.
For this purpose, outsider means any person other than the Commonwealth, an official or a Minister.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
An official must not withdraw money from an official account except as authorised by the Finance Minister's Orders.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
An official or Minister must not misapply public money or improperly dispose of, or improperly use, public money.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) If:
(a) a loss of public money occurs; and
(b) at the time of the loss, an official or Minister had nominal custody of the money as described in subsection (2);
the official or Minister is liable to pay to the Commonwealth an amount equal to the loss. However, it is a defence if the person proves that he or she took reasonable steps in all the circumstances to prevent the loss.
(2) A person has nominal custody of public money if:
(a) the person holds the money by way of a petty cash advance, "change float" or other advance; or
(b) the person has received the money, but has not yet dealt with it as required by section 10.
(3) If:
(a) a loss of public money occurs; and
(b) an official or Minister caused or contributed to the loss by misconduct, or by a deliberate or serious disregard of reasonable standards of care;
the official or Minister is liable to pay to the Commonwealth an amount equal to the loss. However, if the person's misconduct or disregard was not the sole cause of the loss, the person is liable to pay only so much of the loss as is just and equitable having regard to the person's share of the responsibility for the loss.
(4) A person's liability under this section that arises when the person is an official or Minister is not avoided merely because the person ceases to be an official or Minister.
(5) An amount payable to the Commonwealth under this section is recoverable as a debt in a court of competent jurisdiction.
(6) The Commonwealth is not entitled to recover amounts from the same person under both subsections (1) and (3) for the same loss.
(7) In this section:
loss includes a deficiency.
(1) The Finance Minister may issue Special Instructions in writing about special public money, including instructions about:
(a) the custody of special public money;
(b) the investment of special public money;
(c) the application of interest or other amounts derived from the investment of special public money;
(d) the application of special public money in paying the expenses involved in dealing with special public money.
(2) In case of inconsistency, Special Instructions override this Act, the regulations and the Finance Minister's Orders. However, Special Instructions cannot be inconsistent with the terms of any trust that applies to the money concerned.
(3) An official or Minister must not contravene any Special Instruction.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(4) In this section:
special public money means public money that is not held on account of the Commonwealth or for the use or benefit of the Commonwealth.
Note: Money held by the Commonwealth on trust for another person is an example of special public money.
Division 1- Fund accounting
(1) All public money falls into one of the following classes:
(a) Received Money;
(b) money in the Consolidated Revenue Fund;
(c) money in the Loan Fund established by section 19;
(d) money in the Reserved Money Fund established by section20;
(e) money in the Commercial Activities Fund established by section21;
(f) Drawn Money;
(g) special public money that is subject to a Special Instruction.
Note: The diagram in Appendix A illustrates the Fund accounting system.
(2) All public money is Received Money from the time it becomes public money until the time it is either credited to the Consolidated Revenue Fund or becomes subject to a Special Instruction.
(3) Drawn Money is public money that has been debited from a Fund without being credited to another Fund. It does not include money that is subject to a Special Instruction.
Note: Examples of Drawn Money are petty cash advances and amounts held in drawing accounts to meet the payment of cheques.
(4) In this section:
public money does not include overdraft drawings under an agreement under section 8.
(1) All public money must be credited to the Consolidated Revenue Fund as soon as practicable after it becomes public money. This requirement does not apply to public money that is subject to a Special Instruction.
(2) In this section:
public money does not include overdraft drawings under an agreement under section 8.
(1) A fund called the Loan Fund is hereby established.
(2) The Finance Minister, if satisfied that particular money in the Consolidated Revenue Fund is borrowed money, must direct that the money be transferred from the Consolidated Revenue Fund to the Loan Fund. This requirement does not apply to credit card cash advances.
(3) The Consolidated Revenue Fund is appropriated for the purposes of subsection (2).
(4) If another Act (either expressly or by implication) requires or permits an amount to be transferred from the Consolidated Revenue Fund to the Loan Fund, then the Consolidated Revenue Fund is appropriated for the transfer by force of this subsection (unless the contrary intention appears in that other Act).
(1) A fund called the Reserved Money Fund is hereby established.
(2) The Finance Minister may make a written determination that:
(a) establishes a component of the Reserved Money Fund;
(b) allows or requires amounts to be transferred from the Consolidated Revenue Fund or Loan Fund to that component;
(c) allows or requires amounts to be debited from that component for specified purposes.
(3) The Finance Minister may make a determination that revokes or varies a determination made under subsection (2).
(4) The Finance Minister may at any time make a determination that abolishes a component established under subsection (2). Any amount in the component at the time of abolition must be transferred to the Consolidated Revenue Fund.
(5) If another Act establishes a component of the Reserved Money Fund and identifies the purposes of the component, the component may be debited for those purposes.
(6) The Funds are appropriated as necessary for the purposes of this section.
(7) If another Act (either expressly or by implication) requires or permits an amount to be transferred from the Consolidated Revenue Fund to a component of the Reserved Money Fund, then the Consolidated Revenue Fund is appropriated for the transfer by force of this subsection (unless the contrary intention appears in that other Act).
Note: Determinations made under subsections (2) and (3) of this section are subject to the commencement and disallowance rules in section 22.
(1) A fund called the Commercial Activities Fund is hereby established.
(2) The Finance Minister may make a written determination that:
(a) establishes a component of the Commercial Activities Fund for an activity of an Agency that the Finance Minister considers should be accounted for as if it were a commercial activity;
(b) allows amounts that are derived directly or indirectly from the activity to be transferred from the Consolidated Revenue Fund or Loan Fund to that component;
(c) allows amounts to be debited from that component for specified purposes connected with the activity.
(3) The Finance Minister may make a determination that revokes or varies a determination made under subsection (2).
(4) The Finance Minister may at any time make a determination that abolishes a component of the Commercial Activities Fund. Any amount in the component at the time of abolition must be transferred to the Consolidated Revenue Fund.
(5) The Funds are appropriated as necessary for the purposes of this section.
Note: Determinations made under subsections (2) and (3) of this section are subject to the commencement and disallowance rules in section 22.
(1) This section applies to a determination made by the Finance Minister under subsection 20(2) or (3) or 21(2) or (3).
(2) The Finance Minister must cause a copy of the determination to be tabled in each House of the Parliament.
(3) Either House may, following a motion upon notice, pass a resolution disallowing the determination. To be effective, the resolution must be passed within 5 sitting days of the House after the copy of the determination was tabled in the House.
(4) If neither House passes such a resolution, the determination takes effect on the day immediately after the last day upon which such a resolution could have been passed.
(1) If a receipt has been reduced by a lawful set- off, a credit to a Fund for the receipt must nevertheless show the full amount of the receipt, unreduced by the set- off.
(2) If a payment has been reduced by a lawful set- off, a debit from a Fund for the payment must nevertheless show the full amount of the payment, unreduced by the set- off.
(3) In this section:
reduced includes reduced to nil.
The Finance Minister must cause proper accounts and records to be kept of the transactions of the Funds.
(1) In any Act or any instrument made under an Act:
(a) a reference to paying an amount into a Fund is a reference to crediting the amount to that Fund;
(b) a reference to paying an amount out of a Fund is a reference to debiting the amount from the Fund.
(2) In this section:
Fund means:
(a) the Consolidated Revenue Fund, the Loan Fund, the Reserved Money Fund or the Commercial Activities Fund; or
(b) a component of the Reserved Money Fund or of the Commercial Activities Fund.
Division 2- Drawing rights
An official or Minister must not do any of the following except as authorised by a valid drawing right:
(a) make a payment of public money;
(b) request that an amount be debited from a Fund;
(c) debit an amount from a Fund.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) The Finance Minister may issue a drawing right to an official or Minister that authorises the official or Minister to do one or more of the following:
(a) make a payment of public money for a specified purpose;
(b) request the debiting of an amount from a Fund against a particular appropriation;
(c) debit an amount from a Fund against a particular appropriation.
(2) If a law requires an amount to be debited from a Fund:
(a) the Finance Minister must issue sufficient drawing rights to allow the full amount to be debited from the Fund; and
(b) the recipient of any of those drawing rights must exercise the right in full.
(3) If a law permits an amount to be debited from a Fund, but does not require the amount to be debited, there is no obligation to issue or exercise drawing rights for that amount.
(4) The Finance Minister may at any time revoke or amend a drawing right.
(5) A drawing right has no effect to the extent that it claims to authorise the application of public money in a way that is not authorised by an appropriation.
Division 3- Appropriations
(1) This section applies if:
(a) an Act or other law requires or permits the repayment of an amount received by the Commonwealth; and
(b) apart from this section there is no appropriation of any Fund for the repayment.
Note: For example, this section would apply to a law that requires an application fee to be refunded to an unsuccessful applicant. It would also apply to a contractual obligation to repay a loan.
(2) If the amount received by the Commonwealth:
(a) has been credited to the Consolidated Revenue Fund; and
(b) then transferred from the Consolidated Revenue Fund to another Fund or a component of another Fund;
then the Fund or component to which the amount was transferred is appropriated for the repayment.
(3) In all other cases, the Consolidated Revenue Fund is appropriated for the repayment.
(1) This section applies to money that:
(a) was debited from a Fund, or a component of a Fund, under an appropriation that authorised the debiting of an amount from the Fund or component before a particular time (the lapsing time); and
(b) is Drawn Money at the lapsing time, but is not held in an official account to meet the payment of cheques that have already been issued; and
(c) is not excepted from the operation of this section by regulations made for the purposes of this section.
(2) After the lapsing time, the money is no longer covered by the appropriation, and must be dealt with as if it had become Received Money at the lapsing time.
If an amount is re- credited to a Fund after having been debited from that Fund under the authority of an appropriation, then the appropriation has effect as if the amount had not been debited.
Note: The amount re- credited to the Fund will be available to be debited again, subject to any time limits that apply to the appropriation. In the case of an annual appropriation that authorised debits to the Fund during a financial year, the re- credited amount would not be available after the end of the financial year.
(1) The Finance Minister may enter into agreements for the purposes of items in Appropriation Acts that are marked "net appropriation".
(2) In the case of items for which the Finance Minister is responsible, the agreement is to be made with the Chief Executive of the Agency for which the appropriation is made. In all other cases, the agreement is to be made with the Minister who is responsible for the item.
(3) An agreement need not relate to a particular Appropriation Act or Acts and may be made for any period, including a period longer than a financial year.
(4) The Finance Minister may at any time cancel or vary an agreement, without the consent of the other party.
(5) In this section:
Appropriation Act includes a Supply Act.
item means an item, subdivision or division in a Schedule to an Appropriation Act.
(1) This section applies if a function of an Agency (the old Agency) becomes a function of another Agency (the new Agency), either because the old Agency is abolished or for any other reason.
(2) The Finance Minister may:
(a) issue one or more directions to transfer from the old Agency to the new Agency some or all of an amount that has been appropriated for the performance of that function by the old Agency; and
(b) issue one or more directions to transfer from the new Agency back to the old Agency the whole or a part of an amount that was transferred to the new Agency by a direction under paragraph (a).
(3) The Finance Minister may not issue a direction that transfers an amount between Departments of the Parliament except in accordance with a written recommendation of the Presiding Officers.
(4) A direction has effect from the time it is issued.
(5) A direction does not have the effect of extending any time limit that applies to the appropriation concerned.
Division 4- Miscellaneous
(1) If the Finance Minister considers it appropriate to do so because of special circumstances, he or she may authorise the making of any of the following payments to a person (even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability):
(a) one or more payments of an amount or amounts specified in the authorisation (or worked out in accordance with the authorisation);
(b) periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation), during a period specified in the authorisation (or worked out in accordance with the authorisation).
(2) If a proposed authorisation would involve, or be likely to involve, a total amount of more than $100,000, the Finance Minister must first consider a report of an Advisory Committee set up under section59.
(3) Conditions may be attached to payments under this section. If a condition is breached, the payment may be recovered by the Commonwealth as a debt in a court of competent jurisdiction.
(4) Payments under this section are to be made out of money appropriated by the Parliament for the purposes of this section.
(1) The Finance Minister may, on behalf of the Commonwealth:
(a) waive the Commonwealth's right to payment of an amount owing to the Commonwealth;
(b) postpone any right of the Commonwealth to be paid a debt in priority to another debt or debts;
(c) allow the payment by instalments of an amount owing to the Commonwealth;
(d) defer the time for payment of an amount owing to the Commonwealth.
(2) If a proposed waiver under paragraph (1)(a) involves, or is likely to involve, a total amount of more than $100,000, the Finance Minister must consider a report of an Advisory Committee set up under section 59 before taking action on the waiver.
(3) A waiver may be made either unconditionally or on the condition that a person agrees to pay an amount to the Commonwealth in specified circumstances.
(4) In this section:
amount owing to the Commonwealth includes an amount that is owing but not yet due for payment.
(1) If, at the time of a person's death, the Commonwealth owed an amount to the person, the Finance Minister may authorise payment of that amount to the person who the Minister considers should receive the payment.
(2) The Minister may authorise the payment without requiring production of probate of the will of the deceased person or letters of administration of the estate of the deceased person.
(3) In deciding who should be paid, the Finance Minister must have regard to the persons who are entitled to the property of the deceased person under the deceased person's will or under the law relating to the disposition of the property of deceased persons.
(4) After the payment is made, the Commonwealth has no further liability in respect of the payment. However, this section does not relieve the recipient from a liability to deal with the money in accordance with law.
(5) This section does not have the effect of appropriating a Fund for the purposes of payments under this section.
(6) This section extends to cases where the deceased person died before the commencement of this section.
(1) The following persons have authority to approve a proposal to spend public money under an appropriation for a Department of the Parliament:
(a) a Presiding Officer, for expenditure under an appropriation for which he or she alone is responsible;
(b) the Presiding Officers jointly, for expenditure under an appropriation for which they are jointly responsible.
(2) A Presiding Officer may by written instrument delegate his or her powers under this section to an official. In exercising powers under the delegation, the official must comply with any directions of the Presiding Officer.
An agreement for the borrowing of money by the Commonwealth is of no effect unless the borrowing is authorised by an Act. For this purpose, borrowing includes obtaining an advance on overdraft.
(1) The Finance Minister, on behalf of the Commonwealth, may enter into an agreement with any bank for borrowing money from the bank by way of advances (including advances on overdraft) that are to be paid to the Commonwealth and repaid by the Commonwealth within 90 days.
(2) The Finance Minister, on behalf of the Commonwealth, may enter into agreements in accordance with the regulations for borrowing money from banks or other persons. Such an agreement must require the money to be repaid within 60 days after the Commonwealth is notified by the lender of the amount borrowed.
(1) The Finance Minister may invest Fund balances, or Drawn Money, in any authorised investment.
(2) Expenses of investment of money from a Fund or component of a Fund may be debited from the Fund or component. Expenses of investment of Drawn Money may be paid out of Drawn Money.
(3) Upon realisation of an investment of an amount debited from the Loan Fund or from a component of the Reserved Money Fund or Commercial Activities Fund, the proceeds of the investment must be transferred from the Consolidated Revenue Fund to the Fund or component concerned, up to the amount debited from the Fund or component for the investment (including amounts debited for expenses).
(4) Upon realisation of an investment of Drawn Money, there must be transferred from the Consolidated Revenue Fund to Drawn Money an amount equal to the full amount paid from Drawn Money for the investment (including amounts debited for expenses). This requirement applies even if the proceeds of investment are less than the amount required to be transferred.
(5) At any time before an investment matures, the Finance Minister may authorise the re- investment of the proceeds upon maturity in an authorised investment with the same bank or institution.
Note: The proceeds of investment of the original investment will not become public money when the investment matures because the proceeds will not be received by or on behalf of the Commonwealth.
(6) The corporation established by section 62B of the Audit Act 1901 is continued in existence for the purposes of this section with the name "The Minister for Finance of the Commonwealth". Investments by the Finance Minister under this section must be made in that corporate name.
(7) The Funds are appropriated as necessary for the purposes of this section. Drawn Money may be applied in accordance with this section without further appropriation.
(8) In this section:
authorised investment means:
(a) securities of the Commonwealth or of a State or Territory;
(b) securities guaranteed by the Commonwealth, a State or a Territory;
(c) a deposit with a bank, including a deposit evidenced by a certificate of deposit;
(d) any other form of investment prescribed by the regulations.
An official who receives any bonds, debentures or other securities in the course of carrying out duties as an official must deal with them in accordance with the Finance Minister's Orders.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
An official or Minister must not misapply public property or improperly dispose of, or improperly use, public property.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) If:
(a) a loss of public property occurs; and
(b) at the time of the loss, an official or Minister had nominal custody of the property as described in subsection (2);
the official or Minister is liable to pay to the Commonwealth the amount of the loss. However, it is a defence if the person proves that he or she took reasonable steps in all the circumstances to prevent the loss.
(2) A person (the custodian) has nominal custody of public property if both of the following conditions are satisfied:
(a) the custodian has taken delivery of the property and has not returned it to the person entitled to receive the property on behalf of the Commonwealth;
(b) when the custodian took delivery of the property the custodian signed a written acknowledgment that the property was delivered on the express condition that the custodian would at all times take strict care of the property.
(3) If:
(a) a loss of public property occurs; and
(b) an official or Minister caused or contributed to the loss by misconduct, or by a deliberate or serious disregard of reasonable standards of care;
the official or Minister is liable to pay to the Commonwealth the amount of the loss. However, if the person's misconduct or disregard was not the sole cause of the loss, the person is liable to pay only so much of the amount of the loss as is just and equitable having regard to the person's share of the responsibility for the loss.
(4) A person's liability under this section that arises when the person is an official or Minister is not avoided merely because the person ceases to be an official or Minister.
(5) An amount payable to the Commonwealth under this section is recoverable as a debt in a court of competent jurisdiction.
(6) The Commonwealth is not entitled to recover amounts from the same person under both subsections (1) and (3) for the same loss.
(7) In this section:
amount of the loss means:
(a) if the property is damaged- the value of the property or the cost of repairing the property, whichever is less;
(b) in all other cases- the value of the property.
loss includes destruction or damage.
An official or Minister must not make a gift of public property unless:
(a) the making of the gift is expressly authorised by law; or
(b) the Finance Minister has given written approval to the gift being made; or
(c) the Commonwealth acquired the property to use it as a gift.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) A Chief Executive must manage the affairs of the Agency in a way that promotes proper use of the Commonwealth resources for which the Chief Executive is responsible.
(2) If compliance with the requirements of the regulations, Finance Minister's Orders, Special Instructions or any other law would hinder or prevent the proper use of those resources, the Chief Executive must manage so as to promote proper use of those resources to the greatest extent practicable while complying with those requirements.
(3) In this section:
proper use means efficient, effective and ethical use.
A Chief Executive must implement a fraud control plan for the Agency. For this purpose, fraud includes fraud by persons outside the Agency in relation to activities of the Agency.
A Chief Executive must establish and maintain an audit committee for the Agency, with the functions and responsibilities required by the Finance Minister's Orders.
(1) A Chief Executive must pursue recovery of each debt for which the Chief Executive is responsible unless:
(a) the debt has been written off as authorised by an Act; or
(b) the Chief Executive is satisfied that the debt is not legally recoverable; or
(c) the Chief Executive considers that it is not economical to pursue recovery of the debt.
(2) For the purposes of subsection (1), a Chief Executive is responsible for:
(a) debts owing to the Commonwealth in respect of the operations of the Agency; and
(b) debts owing to the Commonwealth that the Finance Minister has allocated to the Chief Executive.
(1) A Chief Executive must ensure that accounts and records of the Agency are kept as required by the Finance Minister's Orders.
(2) The Finance Minister is entitled to full and free access to the accounts and records kept under subsection (1). However, the Finance Minister's access is subject to any law that prohibits disclosure of particular information.
(1) A Chief Executive must give to the Auditor- General the annual financial statements required by the Finance Minister's Orders.
(2) The financial statements must be prepared in accordance with the Finance Minister's Orders and must give a true and fair view of the matters that those Orders require to be included in the statements.
(3) If financial statements prepared in accordance with the Finance Minister's Orders would not otherwise give a true and fair view of the matters required by those Orders, the Chief Executive must add such information and explanations as will give a true and fair view of those matters.
(4) In the financial statements, the Chief Executive must state whether, in his or her opinion, the financial statements give a true and fair view of the matters required by Finance Minister's Orders.
(1) A Chief Executive must, when required by the Finance Minister, give the Finance Minister financial statements covering a period of less than a financial year. The Finance Minister may require the statements to include some or all of the details that are required to be included in the annual financial statements.
(2) A Chief Executive must give the Finance Minister any information that the Finance Minister requires about the financial affairs of the Agency. However, a Chief Executive is not required to give information whose disclosure is prohibited by any law.
(1) If an Agency ceases to exist, the financial statements that would have been required to be prepared under section 49 by the Chief Executive of that Agency must be prepared instead by another Chief Executive nominated by the Finance Minister. However, the statements need not deal with any functions that were transferred from the Agency that ceased to exist to another Agency.
(2) If a function is transferred between 2 or more Agencies in a financial year, the financial statements under section 49 for that function must be prepared by the Chief Executive of one of those Agencies, or by the Chief Executives of 2 or more of those Agencies, as directed by the Finance Minister.
(1) The regulations may authorise Chief Executives to give instructions to officials in their Agencies on any matter on which regulations may be made under this Act.
(2) An instruction cannot create offences or impose penalties.
(1) A Chief Executive may, by written instrument, delegate any of the following powers and functions to an official in any Agency:
(a) the Chief Executive's powers or functions under this Act (including powers or functions that have been delegated to the Chief Executive under section 62);
(b) the Chief Executive's power to give instructions under regulations referred to in section 52.
(2) In exercising powers or functions under the delegation, the official must comply with any directions of the Chief Executive.
(1) As soon as practicable after the end of each month of a financial year, the Finance Minister must publish a Statement of Commonwealth Financial Transactions for the purpose of reporting comparisons between:
(a) the transactions of the Funds for the month, and for the financial year up to the end of the month; and
(b) the Budget Estimates for the financial year.
(2) The Statement must be in a form that reflects the main headings of the Budget Estimates (by function and type, as appropriate), for the financial year.
(3) The Statement must contain details of the transactions of the Funds for the month, and for the current financial year up to the end of the month. It must also show:
(a) the way in which the surplus for the month was applied, or the deficit for the month was financed; and
(b) the way in which the surplus for the current financial year up to the end of that month was applied, or the deficit for the current financial year up to the end of that month was financed.
(4) The Statement may include any other information that the Finance Minister considers relevant.
(5) In this section:
Budget Estimates means the estimates of revenue and outlays tabled in Parliament as part of the annual Budget.
(1) As soon as practicable after the end of each financial year, the Finance Minister must prepare the annual financial statements required by the regulations.
(2) The Finance Minister must give the statements to the Auditor- General as soon as practicable after they are prepared.
(3) If the Finance Minister has not given the statements to the Auditor- General within 5 months after the end of the financial year, the Finance Minister must cause to be tabled in each House of the Parliament a statement of the reasons why the statements were not given to the Auditor- General within that period.
(1) As soon as practicable after receiving financial statements under section 55, the Auditor- General must examine the statements and prepare an audit report in accordance with the regulations.
(2) Instead of preparing a single report, the Auditor- General may prepare an initial report and one or more later supplementary reports.
(3) The Auditor- General must give a copy of each report to the Finance Minister.
(4) The Finance Minister must cause a copy of each report to be tabled in each House of the Parliament as soon as practicable after receipt. Except in the case of a supplementary report, the copy that is tabled must be accompanied by a copy of the annual financial statements.
(1) As soon as practicable after receiving financial statements under subsection 49(1) for an Agency, the Auditor- General must examine the statements and report in accordance with this section to the Minister responsible for the Agency.
(2) In the report, the Auditor- General must state whether, in the Auditor- General's opinion, the financial statements:
(a) have been prepared in accordance with the Finance Minister's Orders; and
(b) give a true and fair view of the matters required by those Orders.
If the Auditor- General is not of that opinion, the Auditor- General must state the reasons.
(3) If the Auditor- General is of the opinion that failing to prepare the financial statements in accordance with the Finance Minister's Orders has a quantifiable financial effect, the Auditor- General must quantify that financial effect and state the amount.
(4) If the Auditor- General is of the opinion that the Chief Executive has contravened section 48, the Auditor- General must state particulars of the contravention.
(5) If the Auditor- General is of the opinion that the Auditor- General did not obtain all necessary information and explanations, the Auditor- General must state particulars of the shortcomings.
(6) Instead of preparing a single report, the Auditor- General may prepare an initial report and one or more later supplementary reports.
(7) A copy of the financial statements and the Auditor- General's report or reports must be included in the Agency's annual report that is tabled in the Parliament.
(1) The application of this Act to an intelligence or security agency is subject to any modifications that are prescribed by the regulations.
(2) In this section:
intelligence or security agency has the meaning given by section85ZL of the Crimes Act 1914.
modifications includes additions, omissions and substitutions.
(1) An Advisory Committee for the purposes of this Act consists of:
(a) the Chief Executive Officer of Customs; and
(b) the Secretary to the Department of Finance; and
(c) the Chief Executive of the Agency that is responsible for the matter on which the Committee has to report.
(2) If there is no Agency responsible for the matter, or if the responsible Agency is the Department of Finance or the Australian Customs Service, then the Chief Executive of the Department of Administrative Services is to be the third member of the Committee.
(3) A member of an Advisory Committee may appoint a deputy to act in his or her place.
(4) An Advisory Committee may prepare its report without having a meeting.
(1) An official or Minister must not use a Commonwealth credit card, or a Commonwealth credit card number, to obtain cash, goods or services otherwise than for the Commonwealth.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) Subsection (1) does not apply to a particular use of a Commonwealth credit card or Commonwealth credit card number if:
(a) the use is authorised by the Finance Minister's Orders; and
(b) the Commonwealth is reimbursed in accordance with the Finance Minister's Orders.
(3) In this section:
Commonwealth credit card means a credit card issued to the Commonwealth to enable the Commonwealth to obtain cash, goods or services on credit.
An official must not falsify any account, statement, receipt or record kept or issued for the purposes of this Act or for the purposes of regulations or other instruments made under this Act.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) The Finance Minister may, by written instrument, delegate to an official any of the Finance Minister's powers or functions under this Act, except the power to make Orders.
(2) In exercising powers or functions under a delegation, the official must comply with any directions of the Finance Minister.
(1) The Finance Minister may make Orders:
(a) on any matter on which this Act requires or permits Finance Minister's Orders to be made; and
(b) on any matter on which regulations may be made.
(2) An Order cannot create offences or impose penalties.
(3) An Order is a disallowable instrument for the purposes of section46A of the Acts Interpretation Act 1901.
(1) The regulations may authorise a Minister to issue guidelines to officials on matters within the Minister's responsibility. The matters must be ones about which regulations may be made under this Act.
(2) A guideline cannot create offences or impose penalties.
(1) The Governor- General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, the regulations may make provision:
(a) relating to any of the following matters:
(i) handling, spending and accounting for public money;
(ii) commitments to spend public money;
(iii) recovering amounts owing to the Commonwealth;
(iv) using or disposing of public property, or acquiring property that is to be public property;
(b) generally for ensuring or promoting:
(i) the proper use and management of public money, public property and other resources of the Commonwealth;
(ii) proper accountability for the use and management of public money, public property and other resources of the Commonwealth;
(c) for penalties for offences against the regulations by way of fines of up to 10 penalty units
Note: Section 4AA of the Crimes Act 1914 sets the current value of a penalty unit.
Note: See section 17.
Simplified model showing typical transfers
Notes:
Indicates a common type of transfer
Indicates a less common type of transfer
1. All Received Money must be credited to the CRF as soon as practicable after receipt (unless a special instruction exists)
2. The following transfers pass through the CRF: transfers between components of the CAF or RMF; transfers between the CAF and the RMF; transfers from the CAF or RMF to the Loan Fund
3. An example of this transfer is an unused advance on expiry of the relevant appropriation.
4. Separated special public money is special public money that is subject to a Special Instruction.
An Act to provide reporting, accountability and other rules for Commonwealth authorities and Commonwealth companies, and for related purposes
[Minister's second reading speech made in-
House of Representatives on 12 December 1996
Senate on 15 March 1997]
(218/96)
Reader's Guide
This Guide aims to give you a general overview of the matters covered by this Act. It also gives you some information about the way this Act is organised.
Overview of this Act
The rules in this Act apply to Commonwealth authorities and Commonwealth companies. Commonwealth authority is defined in section7. Commonwealth company is defined in section34.
This Act regulates certain aspects of the financial affairs of Commonwealth authorities. In particular, it has detailed rules about reporting and accountability. This Act also deals with other matters relating to Commonwealth authorities, such as banking and investment and the conduct of officers.
For Commonwealth companies, this Act has reporting requirements and other requirements that apply in addition to the requirements of the Corporations Law.
Summary of this Act
Part 1 Preliminary: This Part deals with the commencement of this Act, its application to things outside Australia and its application to the Crown.
Part 2 General provisions about definitions, offences and civil penalties: This Part contains definitions of terms that are frequently used throughout this Act and general provisions about offences and civil penalty provisions. Schedule 2 sets out the civil and criminal consequences of contravening a civil penalty provision.
Part 3 Reporting and other obligations for Commonwealth authorities: This Part sets out reporting and accountability rules for Commonwealth authorities. It also deals with matters such as banking, investment and the conduct of officers. Schedule 1 deals with the content of the annual report, financial statements and auditor's report.
Part 4 Reporting and other obligations for Commonwealth companies: This Part sets out reporting and other rules for Commonwealth companies. These requirements are additional to those that apply under the Corporations Law.
Part 5 Miscellaneous: This Part deals with miscellaneous matters such as Finance Minister's Orders and regulations.
Related legislation
The following Acts are directly relevant to the operation or interpretation of this Act.
The Auditor- General Act 1997 establishes the Office of Auditor- General and sets out the functions of the Auditor- General.
The Acts Interpretation Act 1901 contains many general rules about the meaning or effect of various terms and provisions that are commonly used in Commonwealth Acts.
This list is not exhaustive. Acts other than those listed above might also affect the operation or interpretation of this Act.
Another related Act is the Financial Management and Accountability Act 1997. Its main purpose is to establish a framework for the proper management of public money and public property (broadly, money or property that is owned or held by the Commonwealth). Public money and public property is usually handled by Departments and other Agencies that act on behalf of the Commonwealth.
Contents
Part 1- Preliminary
1 Short title
2 Commencement
3 This Act binds the Crown
4 This Act extends to things outside Australia
Part 2- General provisions about definitions, offences and civil penalties
5 Definitions
6 Offences and civil penalties
Part 3- Reporting and other obligations for Commonwealth authorities
Division 1- Preliminary
7 Meaning of Commonwealth authority
8 Role of Auditor- General
Division 2- Reporting obligations
Subdivision A- Annual report and related obligations
9 Directors must prepare annual report
10 Modified requirements for first year of existence
11 Contravention of annual report rules by directors
12 Audit of relevant subsidiary's financial statements
Subdivision B- Other reporting obligations
13 Interim reports
14 Estimates
15 Responsible Minister to be notified of significant events
16 Keeping responsible Minister and Finance Minister informed
17 Corporate plan for GBE
Division 3- Banking, investment etc.
18 Banking and investment (authorities other than GBEs and SMAs)
19 Banking and investment (GBEs and SMAs)
20 Accounting records
Division 4- Conduct of officers
21 Directors must disclose material personal interests
22 General obligations on officers
23 Officers must not make improper use of inside information or position
24 Effect of civil penalty disqualification on being a director
25 Other obligations and remedies not affected
26 Indemnifying officers
27 Insurance premiums for indemnity insurance of officers
Division 5- Miscellaneous
28 Compliance with general policies of the Government
29 Activities of subsidiaries
30 Aligning accounting periods of subsidiaries
31 Exemption from requirement to align accounting periods of subsidiaries
32 Audit committee
33 Special rules for Commonwealth authorities established by regulations etc.
Part 4- Reporting and other obligations for Commonwealth companies
Division 1- Preliminary
34 Meaning of Commonwealth company and wholly- owned Commonwealth company
35 Role of Auditor- General
Division 2- Reporting obligations
Subdivision A- Annual report and related obligations
36 Annual Report
37 Audit of relevant subsidiary's financial statements
Subdivision B- Other reporting obligations
38 Interim reports
39 Estimates
40 Responsible Minister to be notified of significant events
41 Keeping responsible Minister and Finance Minister informed
42 Corporate plan for GBE
Subdivision C- Miscellaneous
43 Compliance with general policies of the Government
44 Audit committee
Part 5- Miscellaneous
45 Ministers must inform Parliament of share acquisitions etc.
46 Companies conducted for the purposes of intelligence or security agencies
47 Regulations may deal with how this Act applies if body stops being a Commonwealth authority
48 Finance Minister's Orders
49 Regulations
Schedule 1- Annual Report for Commonwealth Authority
Part 1- Contents of annual report
1 Summary of contents
2 Financial statements
Part 2- Auditor's report on financial statements
3 Whether the statements comply with the Finance Minister's Orders
4 Proper accounting records not kept
5 Inadequate information and explanations
6 Subsidiaries' financial statements
7 Deficiencies in consolidation
Schedule 2- Civil and criminal consequences of contravening civil penalty provisions
Part 1- Preliminary
1 Interpretation
2 Civil penalty provisions
3 Person involved in contravening a provision taken to have contravened the provision
Part 2- Civil penalty orders
4 Court may make civil penalty orders
5 Who may apply for civil penalty order
6 Time limit for application
7 Application for civil penalty order is a civil proceeding
8 Person must comply with order not to be a director of a Commonwealth authority
9 Enforcement of order to pay pecuniary penalty
10 Finance Minister may require a person to give assistance in connection with application for civil penalty order
Part 3- Criminal proceedings
11 When contravention of civil penalty provision is an offence
12 Person convicted of clause 11 offence not to be a director of a Commonwealth authority
13 Application for civil penalty order precludes later criminal proceedings
Part 4- Effect of criminal proceedings on application for civil penalty order
14 When Part applies
15 Effect during criminal proceedings
16 Final outcome precluding application for civil penalty order
17 Final outcome not precluding application for civil penalty order
18 After unsuccessful committal proceeding, court may preclude application for civil penalty order
19 Application for civil penalty order based on alternative verdict at jury trial
20 Application for civil penalty order based on alternative finding by court of summary jurisdiction
21 Application for civil penalty order based on alternative finding by appeal court
22 After setting aside declaration, court may preclude application for civil penalty order
23 On unsuccessful appeal against declaration, Court may make civil penalty orders
24 Appeals under this Part
Part 5- Compensation for loss suffered by Commonwealth authority
25 On application for civil penalty order, Court may order compensation
26 Criminal court may order compensation
27 Enforcement of order under clause 25 or 26
28 Recovery of profits, and compensation for loss, resulting from contravention
29 Effect of clauses 25, 26 and 28
30 Certificates evidencing contravention
Part 6- Miscellaneous
31 Relief from liability for contravention of civil penalty provision
32 Schedule does not limit power to award punitive damages
An Act to provide reporting, accountability and other rules for Commonwealth authorities and Commonwealth companies, and for related purposes
[Assented to 24 October 1997]
The Parliament of Australia enacts:
This Act may be cited as the Commonwealth Authorities and Companies Act 1997.
This Act commences on the same day as the Financial Management and Accountability Act 1997.
This Act binds the Crown in right of the Commonwealth, but does not make the Crown liable to be prosecuted for an offence.
This Act extends to acts, omissions, matters and things outside Australia (unless the contrary intention appears).
In this Act, unless the contrary intention appears:
bank means:
(a) a person who carries on the business of banking, either in Australia or outside Australia; or
(b) any other institution:
(i) that carries on a business in Australia that consists of or includes taking money on deposit; and
(ii) the operations of which are subject to prudential supervision or regulation under a law of the Commonwealth, a State or a Territory.
Commonwealth authority has the meaning given by section7.
Commonwealth company has the meaning given by section34.
consolidated financial statements, in relation to a Commonwealth authority or Commonwealth company, means financial statements for the group consisting of:
(a) the authority or company; and
(b) the entities that were subsidiaries at any relevant time.
Corporations Law has the same meaning as in the Corporations Act 1989.
Corporations Law company means a body corporate that is incorporated, or taken to be incorporated, under the Corporations Law of a State or Territory.
director means:
(a) for a Commonwealth authority that has a council or other governing body- a member of the governing body; or
(b) for a Commonwealth authority that does not have a council or other governing body- a member of the authority; or
(c) for a Commonwealth company- a person who is a director of the company for the purposes of the Corporations Law.
Finance Minister means the Minister who administers this Act.
Finance Minister's Orders means Orders made under section48.
financial statements includes consolidated financial statements.
financial year:
(a) means, for a Commonwealth authority:
(i) a period of 12 months commencing on 1 July; or
(ii) if the incorporating law specifies another period of 12 months as the financial year for the authority for the purpose of this Act- a period of 12 months as so specified; and
(b) means, for a Commonwealth company, the company's annual accounting period.
GBE or government business enterprise means a Commonwealth authority or Commonwealth company that is prescribed by the regulations for the purpose of this definition.
incorporating law, in relation to a Commonwealth authority, means the Act, regulations or Ordinance by which the authority is incorporated.
Minister includes the President of the Senate and the Speaker of the House of Representatives.
officer, in relation to a Commonwealth authority, means:
(a) a director of the authority; or
(b) any other person who is concerned in, or takes part in, the management of the authority.
responsible Minister means:
(a) for a Commonwealth authority- the Minister who is responsible for the authority; or
(b) for a Commonwealth company:
(i) the Minister who is prescribed by the regulations as the Minister responsible for the company; or
(ii) if no Minister is prescribed- the Minister who is responsible for the company.
SMA or statutory marketing authority means a Commonwealth authority that is prescribed by the regulations for the purpose of this definition.
subsidiary, in relation to a Commonwealth authority or Commonwealth company, means an entity that is controlled by the Commonwealth authority or Commonwealth company. For this purpose, entity and control have the same meanings as in the accounting standard that applies for the purpose of deciding whether a company has to prepare consolidated financial statements under the Corporations Law.
wholly- owned Commonwealth company has the meaning given by section34.
(1) Chapter 2 of the Criminal Code applies to all offences against this Act, other than offences against provisions of Schedule 2.
(2) Schedule 2 deals with the civil and criminal consequences of contravening civil penalty provisions.
(3) A maximum penalty that is specified:
(a) at the foot of a section of this Act (other than a section that is divided into subsections); or
(b) at the foot of a subsection of this Act;
indicates that a person who contravenes the section or subsection is guilty of an offence against the section or subsection that is punishable, on conviction, by a penalty up to that maximum.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: If the specified penalty is imprisonment only, section 4B of the Crimes Act 1914 allows the court to impose a fine instead of imprisonment or in addition to imprisonment.
Division 1- Preliminary
(1) In this Act, Commonwealth authority means either of the following kinds of body that holds money on its own account:
(a) a body corporate that is incorporated for a public purpose by an Act;
(b) a body corporate that is incorporated for a public purpose by:
(i) regulations under an Act; or
(ii) an Ordinance of an external Territory (other than Norfolk Island) or regulations under such an Ordinance;
and is prescribed for the purposes of this paragraph by regulations under this Act.
(2) None of the following are Commonwealth authorities:
(a) Corporations Law companies;
(b) Aboriginal associations incorporated under Part IV of the Aboriginal Councils and Associations Act 1976;
(c) associations of employees that are organisations within the meaning of the Workplace Relations Act 1996.
(3) For the purposes of subsection (1), all money that a body holds is taken to be held by it on its own account, unless the money is public money as defined in section 5 of the Financial Management and Accountability Act 1997.
(1) The Auditor- General is to be the auditor of each Commonwealth authority.
(2) The Auditor- General is to audit the financial statements of each subsidiary of a Commonwealth authority (there are exceptions to this- see subsection 12(4)).
Note: If the Auditor- General is not the subsidiary's auditor, this means that the Auditor- General has to do an audit of the statements in addition to that done by the subsidiary's auditor.
Division 2- Reporting obligations
Subdivision A- Annual report and related obligations
(1) The directors of a Commonwealth authority must:
(a) prepare an annual report in accordance with Schedule 1 for each financial year; and
(b) give it to the responsible Minister by the deadline for the financial year.
The deadline is the 15th day of the 4th month after the end of the financial year.
Note: The deadline will be 15 October if the financial year ends on 30 June. Financial year is defined in section 5.
(2) The responsible Minister may grant an extension of time in special circumstances.
(3) The responsible Minister must table the report in each House of the Parliament as soon as practicable.
(1) If a Commonwealth authority is established during the last 3 months of a financial year:
(a) the directors are not required to prepare an annual report for that financial year; and
(b) the period from the time of establishment to the end of the financial year must be dealt with in the next annual report.
(2) If a Commonwealth authority is established during the first 9 months of a financial year, the annual report for the financial year must cover the period from the time of establishment to the end of the financial year.
(1) If a directors reporting rule is contravened, each director who:
(a) caused the contravention; or
(b) failed to take all reasonable steps to comply with the rule, or secure compliance with the rule;
contravenes this subsection.
Note: This is a civil penalty provision and Schedule 2 sets out the civil and criminal consequences of contravening it.
(2) If a contravention of a directors reporting rule consists of an omission from the financial statements, it is a defence if the defendant proves that the information omitted was immaterial and did not affect the giving of a true and fair view of the matters required by the Finance Minister's Orders to be included in the statements.
(3) In this section:
directors reporting rule means subsection 9(1) or any of the requirements of Schedule 1 that impose obligations on the directors.
(1) Subject to subsection (4), the directors of a Commonwealth authority must do whatever is necessary to ensure that all relevant subsidiary's financial statements are audited by the Auditor- General.
(2) For a subsidiary that is a Corporations Law company that, under the Corporations Law, is required to have those statements audited, the Auditor- General's report on the subsidiary's financial statements must be prepared using the relevant rules in the Corporations Law. Those rules must also be used for other subsidiaries, so far as is practicable.
(3) The Auditor- General must give the report to the responsible Minister, together with a copy of the relevant subsidiary's financial statements.
(4) Relevant financial statements of a subsidiary do not have to be audited by the Auditor- General if:
(a) the subsidiary is incorporated or formed in a place outside Australia; and
(b) either:
(i) under the law applying to the subsidiary in that place, the Auditor- General cannot be appointed as auditor of the subsidiary; or
(ii) in the Auditor- General's opinion, it is impracticable or unreasonable for the Auditor- General to audit, or to be required to audit, the statements.
(5) In this section:
relevant subsidiary's financial statements, in relation to a Commonwealth authority, means financial statements of an entity for an annual accounting period of the entity, where the entity is a subsidiary of the authority at the end of that accounting period.
Subdivision B- Other reporting obligations
(1) The Finance Minister may, by notice in the Gazette, require particular Commonwealth authorities or a class of Commonwealth authorities to give the responsible Minister either:
(a) an interim report for the first 6 months of a financial year; or
(b) an interim report for each of the following periods:
(i) the first 3 months of each financial year;
(ii) the first 6 months of each financial year;
(iii) the first 9 months of each financial year.
(2) The interim report must include:
(a) a report of operations, prepared by the directors in accordance with the Finance Minister's Orders; and
(b) financial statements, prepared by the directors in accordance with the Finance Minister's Orders; and
(c) a report prepared by the Auditor- General in accordance with the regulations.
(3) The directors must give the interim report to the responsible Minister within 2 months after the end of the period to which the report relates.
(4) The responsible Minister may grant an extension of time in special circumstances.
(5) The responsible Minister must table the interim report in each House of the Parliament as soon as practicable.
(1) The directors of a Commonwealth authority (other than a GBE) must prepare budget estimates for each financial year, and for any other periods directed by the responsible Minister.
(2) The estimates:
(a) must be in the form required by the responsible Minister; and
(b) must be given to the responsible Minister within the time required by the responsible Minister.
(1) If a Commonwealth authority, or any of its subsidiaries, proposes to do any of the following things, the directors of the Commonwealth authority must immediately give the responsible Minister written particulars of the proposal:
(a) form a company or participate in the formation of a company;
(b) participate in a significant partnership, trust, unincorporated joint venture or similar arrangement;
(c) acquire or dispose of a significant shareholding in a company;
(d) acquire or dispose of a significant business;
(e) commence or cease a significant business activity;
(f) make a significant change in the nature or extent of its interest in a significant partnership, trust, unincorporated joint venture or similar arrangement.
(2) The responsible Minister may in writing exempt the directors of a Commonwealth authority from the requirement to notify matters covered by paragraph (1)(a). The exemption may be granted subject to conditions.
(3) The responsible Minister may give written guidelines to the directors that are to be used by the directors in deciding whether a proposal is covered by paragraph (1)(b), (c), (d), (e) or (f).
(1) The directors of a Commonwealth authority must:
(a) keep the responsible Minister informed of the operations of the authority and its subsidiaries; and
(b) give the responsible Minister such reports, documents and information in relation to those operations as the responsible Minister requires; and
(c) give the Finance Minister such reports, documents and information in relation to those operations as the Finance Minister requires.
(2) The directors must comply with requirements under paragraphs (1)(b) and (c) within the time limits set by the Minister concerned.
(1) This section applies to a Commonwealth authority that is a GBE.
(2) The directors must prepare a corporate plan at least once a year and give it to the responsible Minister.
(3) The plan must cover a period of at least 3 years.
(4) If the Commonwealth authority has subsidiaries, the plan must cover both the authority and its subsidiaries. In particular, for each subsidiary the plan must include details of the matters in subsection (6), so far as they are applicable.
(5) The directors must keep the responsible Minister informed about:
(a) significant changes to the plan; and
(b) matters that arise that might significantly affect the achievement of the objectives in the plan.
(6) The plan must include details of the following matters (so far as they are applicable):
(a) the objectives of the authority;
(b) assumptions about the business environment in which the authority operates;
(c) the business strategies of the authority;
(d) the investment and financing programs of the authority, including strategies for managing financial risk;
(e) financial targets and projections for the authority;
(f) the dividend policy of the authority;
(g) non- financial performance measures for the authority;
(h) community service obligations of the authority and the strategies and policies the authority is to follow to carry out those obligations;
(i) review of performance against previous corporate plans and targets;
(j) analysis of factors likely to affect achievement of targets or create significant financial risk for the authority or for the Commonwealth;
(k) price control and quality control strategies for goods or services supplied by the authority under a monopoly;
(l) human resource strategies and industrial relations strategies.
(7) The plan must also cover any other matters required by the responsible Minister (which may include further details about the matters in subsection (6)).
(8) The responsible Minister may give written guidelines to the directors that are to be used by the directors in deciding which matters are covered by subsection (5).
Division 3- Banking, investment etc.
(1) This section applies to a Commonwealth authority that is not a GBE or SMA.
(2) The authority must pay all money received by it into an account maintained by it with a bank.
(3) The authority may invest surplus money:
(a) on deposit with a bank; or
(b) in securities of the Commonwealth or of a State or Territory; or
(c) in securities guaranteed by the Commonwealth, a State or a Territory; or
(d) in any other manner approved by the Treasurer.
(4) A provision in the authority's incorporating law to the effect that the authority must not enter into a contract involving the expenditure or payment of more than a specified amount of money without the approval of a specified person does not apply to a contract for the investment of money under subsection (3), unless the provision expressly states that it applies to such a contract.
(5) In this section:
surplus money means money of the authority that is not immediately required for the purposes of the authority.
(1) This section applies to a Commonwealth authority that is a GBE or SMA.
(2) The authority must pay all money received by it into an account maintained by it with a bank.
(3) The authority may invest surplus money:
(a) on deposit with any bank; or
(b) in securities of the Commonwealth or of a State or Territory; or
(c) in securities guaranteed by the Commonwealth, a State or a Territory; or
(d) in any other manner that is consistent with sound commercial practice.
(4) A provision in the authority's incorporating law to the effect that the authority must not enter into a contract involving the expenditure or payment of more than a specified amount of money without the approval of a specified person does not apply to a contract for the investment of money under subsection (3), unless the provision expressly states that it applies to such a contract.
(5) In this section:
surplus money means money of the authority that is not immediately required for the purposes of the authority.
(1) A Commonwealth authority must keep accounting records that properly record and explain its transactions and financial position and must keep those records in a way that:
(a) enables the preparation of the financial statements required by this Act; and
(b) allows those financial statements to be conveniently and properly audited in accordance with this Act.
(2) The authority must retain the records for at least 7 years after completion of the transactions to which they relate.
(3) The authority must make the records available at all reasonable times for inspection by any director of the authority.
(4) If a requirement of this section is contravened, each officer of the authority who:
(a) caused the contravention; or
(b) failed to take all reasonable steps to comply with the requirement, or secure compliance with the requirement;
is guilty of an offence.
Maximum penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Division 4- Conduct of officers
(1) A director of a Commonwealth authority who has a material personal interest in a matter that is being considered, or is about to be considered, by the Board must disclose the nature of the interest at a meeting of the Board.
(2) The disclosure must be made as soon as possible after the relevant facts have come to the director's knowledge, and must be recorded in the minutes of the meeting.
(3) Unless the Board or the responsible Minister otherwise determines, the director:
(a) must not be present during any deliberation by the Board on the matter; and
(b) must not take part in any decision of the Board on the matter.
(4) For the purpose of a determination being made under subsection (3), any director who has a material personal interest in the matter to which the disclosure relates:
(a) must not be present during any deliberation by the Board on whether to make the determination; and
(b) must not take part in making the determination.
(5) In this section:
Board means the directors of the authority.
Note: In some cases, the members of the authority will be the directors. See the definition of director in section 5.
(1) An officer of a Commonwealth authority must at all times act honestly in the exercise of his or her powers and the discharge of his or her duties as an officer.
Note: This is a civil penalty provision and Schedule 2 sets out the civil and criminal consequences of contravening it.
(2) An officer of a Commonwealth authority must, in the exercise of his or her powers and the discharge of his or her duties as an officer, exercise the degree of care and diligence that a reasonable person in a like position in a Commonwealth authority would exercise in the authority's circumstances.
Note: This is a civil penalty provision and Schedule 2 sets out the civil and criminal consequences of contravening it.
(1) An officer (or former officer) of a Commonwealth authority must not make improper use of inside information or of his or her position as an officer in order to:
(a) gain an advantage, either directly or indirectly, for himself or herself or for another person; or
(b) cause detriment to the authority or to another person.
Note: This is a civil penalty provision and Schedule 2 sets out the civil and criminal consequences of contravening it.
(2) If an officer is also a public servant, nothing done by the officer in the normal course of the performance of his or her duties as a public servant is to be regarded as improper for the purposes of subsection (1). For this purpose, public servant means an officer or employee within the meaning of the Public Service Act 1922.
(3) In this section:
inside information means information obtained because of the person's position as an officer.
(1) The office of a director of a Commonwealth authority is, by force of this section, vacated if the person holding the office:
(a) becomes subject to a civil penalty disqualification; or
(b) is convicted of an offence of which he or she is guilty because of clause 11 of Schedule 2.
(2) A person whose office is vacated because of paragraph (1)(a) cannot, without leave granted under clause 8 of Schedule 2, be reappointed as a director until the end of the period specified in the disqualification.
(3) A person whose office is vacated because of paragraph (1)(b) cannot, without leave granted under clause12 of Schedule2, be reappointed as a director until the end of the period of 5 years referred to in subclause 12(1) of that Schedule.
(4) For the purposes of this section, a person is or becomes subject to a civil penalty disqualification if, and only if, an order relating to the person is in force, or is made, under paragraph 4(3)(a) of Schedule 2.
This Division:
(a) does not detract from any rule of law relating to the duty or liability that a person has because of the person's office or employment in relation to a Commonwealth authority; and
(b) does not prevent civil proceedings being instituted for breach of such a duty or in respect of such a liability.
(1) A Commonwealth authority or a subsidiary of a Commonwealth authority must not indemnify a person who is or has been an officer of the authority against either of the following liabilities incurred by the person as an officer of the authority:
(a) a liability to the authority or to any subsidiary of the authority;
(b) a liability to another person (other than the authority or a subsidiary of the authority) arising out of conduct involving a lack of good faith.
(2) Subsection (1) does not prevent a person from being indemnified against either of the following liabilities:
(a) a liability for costs or expenses incurred by the person in defending civil proceedings in which judgment is given in favour of the person;
(b) a liability for costs or expenses incurred by the person in defending criminal proceedings in which the person is acquitted.
(3) Subject to this section, a Commonwealth authority may indemnify a person who is or has been an officer of the authority against liabilities incurred by the person as an officer of the authority.
(4) A Commonwealth authority (or a subsidiary of a Commonwealth authority) must not exempt a person who is or has been an officer of the authority from any liability incurred by the person as an officer of the authority.
(5) In this section:
indemnify includes indemnify indirectly through one or more interposed entities.
(1) A Commonwealth authority or a subsidiary of a Commonwealth authority must not pay, or agree to pay, a premium on a contract that insures a person who is or has been an officer of the authority against a liability:
(a) incurred by the person as an officer of the authority; and
(b) arising out of conduct that involves a contravention of section23 or a wilful breach of duty in relation to the authority.
(2) If subsection (1) is contravened, the contract is void in so far as it insures the person against such a liability.
(3) Subsections (1) and (2) do not apply to a liability for costs and expenses incurred by a person in defending civil or criminal proceedings, whatever their outcome.
(4) Subject to this section, a Commonwealth authority may insure a person who is or has been an officer against liabilities incurred by the person as an officer.
(5) In this section:
pay includes pay indirectly through one or more interposed entities.
Division 5- Miscellaneous
(1) The responsible Minister may notify the directors of a Commonwealth authority in writing of general policies of the Commonwealth Government that are to apply to the authority. The responsible Minister must consult the directors before notifying them of the policies.
(2) The directors must ensure that the policies are carried out in relation to the authority.
(3) The directors must also ensure, as far as practicable, that the policies are carried out in relation to the subsidiaries of the authority.
(4) The responsible Minister may, in writing, exempt the directors of a Commonwealth authority from subsection (2) or (3) in relation to specified activities.
A Commonwealth authority must ensure that none of its subsidiaries does anything that the authority does not itself have power to do.
(1) If the annual accounting period of a subsidiary of a Commonwealth authority is not the same as the financial year of the authority, the directors of the authority must do whatever is necessary to ensure that the annual accounting period of the subsidiary becomes the same as the authority's financial year:
(a) within 12 months after the subsidiary becomes a subsidiary; or
(b) within 12 months after the commencement of this Act;
whichever is later.
(2) If the annual accounting period of a subsidiary is already the same as the authority's financial year, the directors must do whatever is necessary to ensure that it continues to be the same.
(3) If this section is contravened, each director who:
(a) caused the contravention; or
(b) failed to take all reasonable steps to comply with this section, or secure compliance with this section;
is guilty of an offence.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Section 4AA of the Crimes Act 1914 sets the current value of a penalty unit.
(1) The Finance Minister may grant a written exemption to the directors of a Commonwealth authority from the requirements of section30, either generally or in relation to one or more subsidiaries.
(2) The exemption may be granted subject to conditions.
(3) The Finance Minister may, on behalf of the Commonwealth, engage a registered company auditor to investigate and report on an exemption application. For this purpose, registered company auditor means a person who is registered, or taken to be registered, as an auditor under the Corporations Law of a State or Territory.
(4) The authority is liable to reimburse the Commonwealth for the costs of the investigation and report.
(1) The directors of a Commonwealth authority must establish and maintain an audit committee with functions that include:
(a) helping the authority and its directors to comply with obligations under this Act; and
(b) providing a forum for communication between the directors, the senior managers of the authority and the internal and external auditors of the authority.
(2) If the regulations state how the committee is to be constituted, it must be constituted in accordance with the regulations.
(1) The application of this Act to Commonwealth authorities covered by paragraph 7(1)(b) is subject to any modifications that are prescribed by the regulations.
(2) In this section:
modifications includes additions, omissions and substitutions.
Division 1- Preliminary
(1) In this Act, Commonwealth company means a Corporations Law company in which the Commonwealth has a controlling interest. However, it does not include a company in which the Commonwealth has a controlling interest through one or more interposed Commonwealth authorities or Commonwealth companies.
(2) In this Act, wholly- owned Commonwealth company means any Commonwealth company, other than a company any of the shares in which are beneficially owned by a person other than the Commonwealth.
(1) The Auditor- General is, in relation to each Commonwealth company, either:
(a) to be the auditor of the company under the Corporations Law; or
(b) if someone else is the company's auditor- to give a report on the company's financial statements (see subsection36(2)).
(2) The Auditor- General is to audit the financial statements of each subsidiary of a Commonwealth company (there are exceptions to this- see subsection 37(4)).
Note: If the Auditor- General is not the subsidiary's auditor, this means that the Auditor- General has to do an audit of the statements in addition to that done by the subsidiary's auditor.
Division 2- Reporting obligations
Subdivision A- Annual report and related obligations
(1) At least 14 days before each annual general meeting, a Commonwealth company must give the responsible Minister:
(a) a copy of the company's annual report that includes the company's annual general meeting documents (or, if there is no such annual report, a copy of the company's annual general meeting documents); and
(b) any additional report under subsection (2).
For this purpose, annual general meeting documents means the documents relating to a financial year that the company is required by the Corporations Law to lay before its annual general meeting.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Section 4AA of the Crimes Act 1914 sets the current value of a penalty unit.
(2) If the auditor's report required by the Corporations Law was prepared by an auditor other than the Auditor- General, subsection (1) also requires the company to give a report by the Auditor- General on the financial statements.
(3) In preparing a report for the purposes of subsection (2), the Auditor- General must use the same Corporations Law rules as applied to the report by the other auditor.
(4) If the Commonwealth company is a wholly- owned Commonwealth company, the responsible Minister must table the documents in each House of the Parliament as soon as practicable after receiving them. In all other cases, the Minister must table the documents in each House of the Parliament as soon as practicable after the annual general meeting of the company.
(5) The regulations may make provision dealing with how this section applies to a Commonwealth company that is not required to hold an annual general meeting or in relation to which an auditor's report is not required to be prepared.
(6) Without limiting the generality of subsection (5), regulations for the purposes of that subsection may provide that this section applies with specified modifications.
(1) Subject to subsection (4), the directors of a Commonwealth company must do whatever is necessary to ensure that all relevant subsidiary's financial statements are audited by the Auditor- General.
(2) For a subsidiary that is a Corporations Law company that, under the Corporations Law, is required to have financial statements audited, the Auditor- General's report must be prepared using the relevant rules in the Corporations Law. Those rules must also be used for other subsidiaries, so far as is practicable.
(3) The Auditor- General must give the report to the responsible Minister, together with a copy of the relevant subsidiary's financial statements.
(4) Relevant financial statements of a subsidiary do not have to be audited by the Auditor- General if:
(a) the subsidiary is incorporated or formed in a place outside Australia; and
(b) either:
(i) under the law applying to the subsidiary in that place, the Auditor- General cannot be appointed as auditor of the subsidiary; or
(ii) in the Auditor- General's opinion, it is impracticable or unreasonable for the Auditor- General to audit, or to be required to audit, the statements.
(5) In this section:
relevant subsidiary's financial statements, in relation to a Commonwealth company, means financial statements of an entity for an annual accounting period of the entity, where the entity is a subsidiary of the company at the end of that accounting period.
Subdivision B- Other reporting obligations
(1) The Finance Minister may, by notice in the Gazette, require particular wholly- owned Commonwealth companies or a class of wholly- owned Commonwealth companies to give the responsible Minister either:
(a) an interim report for the first 6 months of a financial year; or
(b) an interim report for each of the following periods:
(i) the first 3 months of each financial year;
(ii) the first 6 months of each financial year;
(iii) the first 9 months of each financial year.
(2) The interim report must include:
(a) a report of operations, prepared by the directors in accordance with the Finance Minister's Orders; and
(b) financial statements, prepared by the directors in accordance with the Finance Minister's Orders; and
(c) a report prepared by the Auditor- General in accordance with the regulations.
(3) The directors must give the interim report to the responsible Minister within 2 months after the end of the period to which the report relates.
(4) The responsible Minister may grant an extension of time in special circumstances.
(5) The responsible Minister must table the interim report in each House of the Parliament as soon as practicable.
(1) The directors of a wholly- owned Commonwealth company (other than a GBE) must prepare budget estimates for each financial year, and for any other periods directed by the responsible Minister.
(2) The estimates:
(a) must be in the form required by the responsible Minister; and
(b) must be given to the responsible Minister within the time required by the responsible Minister.
(1) If a wholly- owned Commonwealth company, or any of its subsidiaries, proposes to do any of the following things, the directors of the Commonwealth company must immediately give the responsible Minister written particulars of the proposal:
(a) form a company or participate in the formation of a company;
(b) participate in a significant partnership, trust, unincorporated joint venture or similar arrangement;
(c) acquire or dispose of a significant shareholding in a company;
(d) acquire or dispose of a significant business;
(e) commence or cease a significant business activity;
(f) make a significant change in the nature or extent of its interest in a significant partnership, trust, unincorporated joint venture or similar arrangement.
(2) The responsible Minister may in writing exempt the directors of a Commonwealth company from the requirement to notify matters covered by paragraph (1)(a). The exemption may be granted subject to conditions.
(3) The responsible Minister may give written guidelines to the directors that are to be used by the directors in deciding whether a proposal is covered by paragraph (1)(b), (c), (d), (e) or (f).
(1) The directors of a wholly- owned Commonwealth company must:
(a) keep the responsible Minister informed of the operations of the Commonwealth company and its subsidiaries; and
(b) give the responsible Minister such reports, documents and information in relation to those operations as the responsible Minister requires; and
(c) give the Finance Minister such reports, documents and information in relation to those operations as the Finance Minister requires.
(2) The directors must comply with requirements under paragraphs (1)(b) and (c) within the time limits set by the Minister concerned.
(1) This section applies to a wholly- owned Commonwealth company that is a GBE.
(2) The directors must prepare a corporate plan at least once a year and give it to the responsible Minister.
(3) The plan must cover a period of at least 3 years.
(4) If the Commonwealth company has subsidiaries, the plan must cover both the Commonwealth company and its subsidiaries. In particular, for each subsidiary the plan must include details of the matters in subsection (6), so far as they are applicable.
(5) The directors must keep the responsible Minister informed about:
(a) significant changes to the plan; and
(b) matters that arise that might significantly affect the achievement of the objectives in the plan.
(6) The plan must include details of the following matters (so far as they are applicable):
(a) the objectives of the company;
(b) assumptions about the business environment in which the company operates;
(c) the business strategies of the company;
(d) the investment and financing programs of the company, including strategies for managing financial risk;
(e) financial targets and projections for the company;
(f) the dividend policy of the company;
(g) non- financial performance measures for the company;
(h) community service obligations of the company and the strategies and policies the company is to follow to carry out those obligations;
(i) review of performance against previous corporate plans and targets;
(j) analysis of factors likely to affect achievement of targets or create significant financial risk for the company or for the Commonwealth;
(k) price control and quality control strategies for goods or services supplied by the company under a monopoly;
(l) human resource strategies and industrial relations strategies.
(7) The plan must also cover any other matters required by the responsible Minister (which may include further details about the matters in subsection (6)).
(8) The responsible Minister may give written guidelines to the directors that are to be used by the directors in deciding which matters are covered by subsection (5).
Subdivision C- Miscellaneous
(1) The responsible Minister may notify the directors of a wholly- owned Commonwealth company in writing of general policies of the Commonwealth Government that are to apply to the company. The responsible Minister must consult the directors before notifying them of the policies.
(2) The directors must ensure that the policies are carried out in relation to the company.
(3) The directors must also ensure, as far as practicable, that the policies are carried out in relation to the subsidiaries of the company.
(4) The responsible Minister may, in writing, exempt the directors of a wholly- owned Commonwealth company from subsection (2) or (3) in relation to specified activities.
(1) The directors of a wholly- owned Commonwealth company must establish and maintain an audit committee with functions that include:
(a) helping the company and its directors to comply with obligations under this Act and the Corporations Law; and
(b) providing a forum for communication between the directors, the senior managers of the company and the internal and external auditors of the company.
(2) If the regulations state how the committee is to be constituted, it must be constituted in accordance with the regulations.
(1) The Minister who has the responsibility for any of the following events must table a notice of the event in each House of the Parliament as soon as practicable after the event happens:
(a) the Commonwealth forms, or participates in forming, a company;
(b) the Commonwealth acquires shares in a company (either by purchase or subscription) or disposes of shares in a company;
(c) the Commonwealth becomes a member of a company;
(d) a variation occurs in the rights attaching to company shares held by the Commonwealth;
(e) a variation occurs in the Commonwealth's rights as a member of a company;
(f) the Commonwealth ceases to be a member of a company.
(2) The notice must include the particulars required by the regulations.
(3) This section does not apply to anything that results from the transfer to a Minister of any property that is to be dealt with as unclaimed property under Part 9.7 of the Corporations Law.
(1) The application of this Act to a company conducted for the purposes of an intelligence or security agency is subject to any modifications that are prescribed by the regulations.
(2) In this section:
intelligence or security agency has the meaning given by section85ZL of the Crimes Act 1914;
modifications includes additions, omissions and substitutions.
(1) The regulations may make provision dealing with how this Act applies in relation to a financial year of a body that ceases to be a Commonwealth authority during the financial year.
(2) Without limiting the generality of subsection (1), regulations for the purposes of that subsection may provide that this Act applies with specified modifications.
(1) The Finance Minister may make Orders on any matter on which this Act requires or permits Finance Minister's Orders to be made.
(2) An Order cannot create offences or impose penalties.
(3) An Order is a disallowable instrument for the purposes of section46A of the Acts Interpretation Act 1901.
(1) The Governor- General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The regulations may require the provision of financial statements, estimates or other information by overseas corporations in which the Commonwealth has a controlling interest. For this purpose, overseas corporation means a body corporate that is incorporated by or under the law of an external Territory or overseas country.
(3) The regulations may make provision for penalties for offences against the regulations by way of fines of up to 10 penalty units.
Note: Section 4AA of the Crimes Act 1914 sets the current value of a penalty unit.
Note: See section 9.
The annual report must include:
(a) a report of operations, prepared by the directors in accordance with the Finance Minister's Orders; and
(b) financial statements, prepared by the directors under clause 2 of this Schedule; and
(c) the Auditor- General's report on those financial statements, prepared under Part 2 of this Schedule and addressed to the responsible Minister.
Note: The report may include other matters, for example, matters that are required by another Act or by Ministerial guidelines.
(1) The financial statements must be prepared in accordance with the Finance Minister's Orders and must give a true and fair view of the matters that those Orders require to be included in the statements.
(2) If financial statements prepared in accordance with the Finance Minister's Orders would not otherwise give a true and fair view of the matters required by those Orders, the directors must add such information and explanations as will give a true and fair view of those matters.
(3) In the financial statements, the directors must state whether, in their opinion, the financial statements give a true and fair view of the matters required by the Finance Minister's Orders.
(4) If the Commonwealth authority is a GBE or SMA, the directors must state whether or not, in their opinion, there are, when the statement is made, reasonable grounds to believe that the authority will be able to pay its debts as and when they fall due.
(1) The Auditor- General must state whether, in the Auditor- General's opinion, the financial statements:
(a) have been prepared in accordance with the Finance Minister's Orders; and
(b) give a true and fair view of the matters required by those Orders.
(2) If the Auditor- General is not of that opinion, the Auditor- General must state the reasons.
(3) If the Auditor- General is of the opinion that failing to prepare the financial statements in accordance with the Finance Minister's Orders has a quantifiable financial effect, the Auditor- General must quantify that financial effect and state the amount.
If the Auditor- General is of the opinion that the authority has contravened section 20, the Auditor- General must state particulars of the contravention.
If the Auditor- General is of the opinion that the Auditor- General did not obtain all necessary information and explanations, the Auditor- General must state particulars of the shortcomings.
(1) This clause applies if the authority's financial statements are consolidated financial statements.
(2) The Auditor- General must state the name of each entity (if any) that satisfies the following description:
(a) the entity was a subsidiary of the authority at any time during the financial year; and
(b) the Auditor- General has not:
(i) acted as auditor of the entity for the financial year; or
(ii) audited the entity's financial statements for the financial year.
(3) If the consolidated financial statements include information derived from financial statements of an entity of a kind referred to in subclause (2), then:
(a) if the Auditor- General has not examined those financial statements and the auditor's report (if any) on them, the Auditor- General must state that fact; and
(b) if an auditor's report on any of those financial statements included any qualification, the Auditor- General must state the name of the subsidiary and particulars of the qualification.
If the Auditor- General is of the opinion that:
(a) any of the financial statements that were used in preparing consolidated financial statements were not appropriate and proper, in both form and content, to be used in that way; or
(b) there was any deficiency in the procedures and methods used in arriving at the amounts taken in to consolidated financial statements;
the Auditor- General must state particulars of the deficiency.
Note: See section 6.
(1) In this Schedule:
civil penalty order means a declaration or order under clause4.
civil penalty provision has the meaning given by clause2.
court means any court, when exercising jurisdiction under this Act.
Court means the Federal Court of Australia or the Supreme Court of a State or Territory.
(2) For the purposes of this Schedule, an Australian court finds a person guilty of an offence if, and only if:
(a) the court convicts the person of the offence; or
(b) the person is charged before the court with the offence and is found in the court to have committed the offence, but the court does not proceed to convict the person of the offence.
(3) A maximum penalty that is specified:
(a) at the foot of a clause of this Schedule (other than a clause that is divided into subclauses); or
(b) at the foot of a subclause of this Schedule;
indicates that a person who contravenes the clause or subclause is guilty of an offence against the clause or subclause that is punishable, on conviction, by a penalty up to that maximum.
Note: If the specified penalty is imprisonment only, section 4B of the Crimes Act 1914 allows the court to impose a fine instead of imprisonment or in addition to imprisonment.
Each of the following provisions of this Act is a civil penalty provision:
(a) subsection 11(1);
(b) subsection 22(1);
(c) subsection 22(2);
(d) subsection 23(1).
(1) For the purposes of this Schedule, a person who is involved in a contravention of a particular provision of this Act is taken to have contravened that provision.
(2) For the purposes of this clause, a person is involved in a contravention if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
(1) This clause applies if the Court is satisfied that a person has contravened a civil penalty provision, whether or not the contravention also constitutes an offence because of clause11.
Note: Clause 30 provides that a certificate by a court that the court has declared a person to have contravened a civil penalty provision is conclusive evidence of the contravention.
(2) The Court is to declare that the person has, by a specified act or omission, contravened that provision in relation to a specified Commonwealth authority, but need not so declare if such a declaration is already in force under Part 4.
(3) The Court may also make against the person either or both of the following orders in relation to the contravention:
(a) an order prohibiting the person, for such period as is specified in the order, from being a director of a Commonwealth authority;
(b) an order that the person pay to the Commonwealth a pecuniary penalty of an amount so specified that does not exceed 2,000 penalty units.
Note: Section 4AA of the Crimes Act 1914 sets the current value of a penalty unit.
(4) The Court is not to make an order under paragraph (3)(a) if it is satisfied that, despite the contravention, the person is a fit and proper person to be a director of a Commonwealth authority.
(5) The Court is not to make an order under paragraph (3)(b) unless it is satisfied that the contravention is a serious one.
(6) The Court is not to make an order under paragraph (3)(b) if it is satisfied that an Australian court has ordered the person to pay damages in the nature of punitive damages because of the act or omission constituting the contravention.
(1) An application for a civil penalty order may be made by:
(a) the Finance Minister; or
(b) some other person authorised in writing by the Finance Minister, under this paragraph, to make the application.
(2) An authorisation for the purposes of paragraph (1)(b) may relate to applications in relation to specified contraventions, or all contraventions, of civil penalty provisions.
(3) Nothing in this clause affects the operation of the Director of Public Prosecutions Act 1983.
An application for a civil penalty order may be made within 6 years after the contravention.
(1) In hearing and determining an application for a civil penalty order, the Court is to apply the rules of evidence and procedure that it applies in hearing and determining civil matters.
(2) Subclause (1) has effect subject to the rules of the Court.
(1) A person who is subject to a civil penalty disqualification must not be a director of a Commonwealth authority except with the leave of the Court.
Maximum penalty: Imprisonment for 1 year.
(2) When granting leave under subclause (1), the Court may impose such conditions or restrictions as it thinks appropriate.
(3) A person must not contravene a condition or restriction imposed under subclause (2).
Maximum penalty: Imprisonment for 1 year.
(4) A person may only apply for leave under subclause (1) if he or she has given the Finance Minister at least 21 days notice of the application.
(5) On the application of the Finance Minister, the Court may revoke leave granted under subclause (1).
(6) For the purposes of this clause, a person is subject to a civil penalty disqualification if, and only if, an order relating to the person is in force under paragraph 4(3)(a).
Where the Court makes under paragraph 4(3)(b) an order that a person pay a pecuniary penalty:
(a) the penalty is payable to the Commonwealth; and
(b) the Commonwealth may enforce the order as if it were a judgment of the Court.
(1) This clause applies where it appears to the Finance Minister that a person may have contravened a civil penalty provision.
(2) If the Finance Minister, on reasonable grounds, suspects or believes that a person can give information relevant to an application for a civil penalty order in relation to the contravention, whether or not such an application has been made, the Finance Minister may, by writing given to the person, require the person to give all reasonable assistance in connection with such an application.
(3) Subclause (2) does not apply in relation to:
(a) the person referred to in subclause (1); or
(b) a person who is or has been that person's lawyer.
(4) Where a person fails to give assistance as required under subclause(2):
(a) the person contravenes this subclause; and
(b) the Court may, on the application of the Finance Minister, order the person to comply with the requirement as specified in the order.
(5) Nothing in paragraph (4)(b) affects any penalty for a contravention of subclause (4).
(6) In this clause:
lawyer means a duly qualified legal practitioner.
(1) A person is guilty of an offence if the person contravenes a civil penalty provision:
(a) knowingly, intentionally or recklessly; and
(b) either:
(i) dishonestly and intending to gain, whether directly or indirectly, an advantage for that or any other person; or
(ii) intending to deceive or defraud someone.
Maximum penalty: Imprisonment for 5 years.
(2) A person who contravenes a civil penalty provision is not guilty of an offence except as provided by subclause (1).
(1) A person who has been convicted of an offence of which he or she is guilty because of subclause 11(1) must not be a director of a Commonwealth authority except with the leave of the Court:
(a) unless paragraph (b) applies- within 5 years after the conviction; or
(b) if the person was sentenced to imprisonment- within 5 years after release from prison.
Maximum penalty: Imprisonment for 1 year.
(2) In any proceedings for a contravention of subclause (1), a certificate by a prescribed authority stating that a person was released from prison on a specified date is prima facie evidence that the person was released from prison on that date.
(3) When granting leave under subclause (1), the Court may impose such conditions or restrictions as it thinks appropriate.
(4) A person must not contravene a condition or restriction imposed under subclause (3).
Maximum penalty: Imprisonment for 1 year.
(5) A person may only apply for leave under subclause (1) if he or she has given the Finance Minister at least 21 days notice of the application.
(6) On the application of the Finance Minister, the Court may revoke leave granted under subclause (1).
Criminal proceedings for an offence constituted by a contravention of a civil penalty provision cannot be begun if a person has already applied for a civil penalty order in relation to the same contravention, even if the application has been finally determined or otherwise disposed of.
This Part applies if criminal proceedings are begun against a person for an offence constituted by a contravention of a civil penalty provision.
(1) An application may be made for a civil penalty order against the person in relation to the same contravention.
(2) However, an application is stayed, because of this subclause, until:
(a) the criminal proceedings; and
(b) all appeals and applications for review (including appeals and applications for review under this Part) arising out of the criminal proceedings;
have been finally determined or otherwise disposed of.
When the criminal proceedings, appeals and applications for review are finally determined or otherwise disposed of:
(a) an application for a civil penalty order in relation to the same contravention cannot be made (except under this Part); and
(b) such an application that was stayed because of subclause 15(2) is, because of this clause, dismissed:
if the result of the criminal proceedings, appeals and applications for review is:
(c) a court finding the person guilty of the offence; or
(d) the person being acquitted of the offence, unless there is in force a declaration that the person committed the contravention; or
Note: This kind of declaration is made under clause 19, 20 or 21.
(e) a declaration by a court that the evidence in a committal proceeding for the offence could not satisfy the Court, on an application for a civil penalty order, that the person committed the contravention; or
Note: This kind of declaration is made under clause 18.
(f) a declaration by the Court that the person committed the contravention; or
Note: This kind of declaration is made under clause 19 or 21.
(g) an order by a court prohibiting an application for a civil penalty order in relation to the contravention from being made or from proceeding; or
Note: This kind of order is made under clause 22.
(h) the Court, on an appeal or review, affirming, varying or substituting a declaration that the person committed the contravention.
Note: Clause 23 applies in this case.
If the result of the criminal proceedings, appeals and applications for review being finally determined or otherwise disposed of is:
(a) a declaration by a court (other than the Court) that the person committed the contravention; or
Note: This kind of declaration is made under clause 19, 20 or 21.
(b) none of the results referred to in clause 16;
then:
(c) if an application for a civil penalty order in relation to the contravention was stayed because of subclause 15(2)- the application may proceed; or
(d) otherwise- such an application may be made and may proceed;
as if the criminal proceedings had never begun.
(1) If:
(a) a proceeding in a court for the commitment of the person for trial for the offence is finally determined or otherwise disposed of without the person being committed for trial for the offence; and
(b) the court is satisfied that the evidence in the proceeding could not satisfy the Court, on an application for a civil penalty order in relation to the contravention, that the person committed the contravention;
the court may declare that it is so satisfied.
(2) A declaration under subclause (1) is subject to appeal or review in the same way as any other order or decision made in the proceeding.
(1) This clause applies if the person is tried on indictment for the offence and the jury is satisfied beyond reasonable doubt that the person committed the contravention, but is not satisfied beyond reasonable doubt that the person did so as mentioned in subclause11(1).
(2) The jury may find the person not guilty of the offence, but guilty of the contravention.
(3) If the jury does so, the court is to declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified Commonwealth authority.
(4) If the court is the Court, it may then proceed to make orders under subclause 4(3) on the application of the prosecutor or someone else who has power under clause 5 to apply for a civil penalty order in relation to the contravention.
(5) Subclause (4) has effect despite clause 6.
(6) A declaration under subclause (3) is subject to appeal or review as if it were a conviction by the court for an offence constituted by the contravention.
(1) This clause applies if, on the hearing of a proceeding for the summary conviction of the person for the offence, the court is satisfied beyond reasonable doubt that the person committed the contravention but is not satisfied beyond reasonable doubt that the person did so as mentioned in subclause 11(1).
(2) The court may find the person not guilty of the offence, but guilty of the contravention.
(3) If the court does so, it is to declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified Commonwealth authority.
(4) A declaration under subclause (3) is subject to appeal or review as if it were a conviction by the court for an offence constituted by the contravention.
(1) This clause applies if:
(a) a court finds the person guilty of the offence; and
(b) on appeal or review, a court makes an order determining the criminal proceedings for the offence in a way that does not involve convicting the person of that or any other offence; and
(c) the court is satisfied beyond reasonable doubt that the person committed the contravention.
(2) The court may declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified Commonwealth authority.
(3) If the court is the Court, it may then proceed to make orders under subclause 4(3) on the application of the prosecutor or someone else who has power under clause 5 to apply for a civil penalty order in relation to the contravention.
(4) Subclause (3) has effect despite clause 6.
(5) A declaration under subclause (2) is subject to appeal or review in the same way as any other order or decision that was made on the appeal or review or might have been made.
If a court sets aside a declaration made under clause19, 20 or 21, the court may, by order, prohibit an application for a civil penalty order in relation to the contravention from being made or from proceeding.
(1) This clause applies if, on an appeal from, or review of, a declaration made under clause 19, 20 or 21 by a court other than the Court, the Court determines the appeal or review by:
(a) affirming or varying the declaration; or
(b) substituting another declaration for the first- mentioned declaration.
(2) The Court may then proceed to make orders under subclause4(3) on the application of the prosecutor or someone else who has power under clause 5 to apply for a civil penalty order in relation to the contravention.
(3) Subclause (2) has effect despite clause 6.
For the purposes of an appeal or review under subclause 18(2), 19(6), 20(4) or 21(5), a law about appeals or review has effect with such modifications as the circumstances require.
(1) Where, on an application for a civil penalty order against a person in relation to a contravention, the Court is satisfied that:
(a) the person committed the contravention; and
(b) the Commonwealth authority in relation to which the contravention was committed has suffered loss or damage as a result of the act or omission constituting the contravention;
the Court may (whether or not it makes an order under subclause4(3)) order the person to pay to the Commonwealth authority compensation of such amount as the order specifies.
(2) A Commonwealth authority may intervene in an application for a civil penalty order against a person in relation to a contravention, unless the application was made under Part 4.
(3) A Commonwealth authority that so intervenes is entitled to be heard:
(a) only if the Court is satisfied that the person committed the contravention in relation to that Commonwealth authority; and
(b) only on the question whether the Court should order the person to pay compensation to the Commonwealth authority because of the contravention.
(1) If:
(a) a court finds a person guilty of an offence constituted by a contravention of a civil penalty provision in relation to a Commonwealth authority; and
(b) the court is satisfied that the Commonwealth authority has suffered loss or damage as a result of the act or omission constituting the contravention;
the court may (whether or not it imposes a penalty) order the person to pay to the Commonwealth authority compensation of such amount as the order specifies.
(2) If:
(a) a court declares under Part 4 that a person has, by an act or omission, contravened a civil penalty provision in relation to a Commonwealth authority; and
(b) the court is satisfied that the Commonwealth authority has suffered loss or damage as a result of that act or omission;
the court may (whether or not it makes an order under subclause4(3)) order the person to pay to the Commonwealth authority compensation of such amount as the order specifies.
An order to pay compensation that a court makes under clause25 or 26 may be enforced as if it were a judgment of the court.
(1) Where a person contravenes a civil penalty provision in relation to a Commonwealth authority, the Commonwealth authority may recover from the person, as a debt due to the Commonwealth authority:
(a) if that or another person has made a profit because of the act or omission constituting the contravention- an amount equal to the amount of that profit; and
(b) if the Commonwealth authority has suffered loss or damage as a result of that act or omission- an amount equal to the amount of that loss or damage;
whether or not:
(c) the first- mentioned person has been convicted of an offence in relation to the contravention; or
(d) a civil penalty order has been made against the first- mentioned person in relation to the contravention.
(2) Proceedings under this clause may only be begun within 6 years after the contravention.
Clauses 25, 26 and 28:
(a) have effect in addition to, and not in derogation of, any rule of law about the duty or liability of a person because of the person's office or employment in relation to a Commonwealth authority; and
(b) do not prevent proceedings from being instituted in respect of a breach of such a duty or in respect of such a liability.
For the purposes of this Schedule, a certificate that:
(a) purports to be signed by the Registrar or other proper officer of an Australian court; and
(b) states:
(i) that that court has declared that a specified person has, by a specified act or omission, contravened a specified civil penalty provision in relation to a specified Commonwealth authority; or
(ii) that a specified person was convicted by that court of an offence constituted by a specified contravention of a civil penalty provision in relation to a specified Commonwealth authority; or
(iii) that a specified person charged before that court with such an offence was found in that court to have committed the offence but that the court did not proceed to convict the person of the offence;
is, unless it is proved that the declaration, conviction or finding was set aside, quashed or reversed, conclusive evidence:
(c) that the declaration was made, that the person was convicted of the offence, or that the person was so found, as the case may be; and
(d) that the person committed the contravention.
(1) In this clause:
eligible proceedings means proceedings for a contravention of a civil penalty provision (including proceedings under clause28 but does not include proceedings for an offence), except so far as the proceedings relate to the question whether the court should make an order under clause 26.
(2) Where, in eligible proceedings against a person, it appears to the court that the person has, or may have, contravened a civil penalty provision but that:
(a) the person has acted honestly; and
(b) having regard to all the circumstances of the case (including, where applicable, those connected with the person's appointment as an officer of a Commonwealth authority), the person ought fairly to be excused for the contravention;
the court may relieve the person either wholly or partly from a liability to which the person would otherwise be subject, or that might otherwise be imposed on the person, because of the contravention.
(3) Where a person thinks that eligible proceedings will or may be begun against him or her, he or she may apply to the Court for relief.
(4) On an application under subclause (3), the Court may grant relief under subclause (2) as if the eligible proceedings had been begun in the Court.
(5) For the purposes of subclause (2) as applying for the purposes of a case tried by a judge with a jury:
(a) a reference in that subclause to the court is a reference to the judge; and
(b) the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge thinks appropriate.
Nothing in this Schedule limits a court's power to order someone to pay damages in the nature of punitive damages because of an act or omission constituting a contravention of a civil penalty provision.
