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(Act XVI of 1997 came into effect on 25 July, 1997 as notified in Legal Notice 115/97)
AN ACT setting out the duties of the Auditor General and the manner whereby reports by the Auditor General are to be made to Parliament, and to provide for the manner in which funds shall be allocated to the National Audit Office and the manner whereby accounts of the National Audit Office are to be audited and reported upon, as well as other matters ancillary and consequential thereto.
BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:-
1. This Act may be cited as the Auditor General and National Audit Office Act, 1997, and shall come into force on such date as the Prime Minister may by notice in the Gazette establish and different dates may be so established for different provisions am different purposes thereof. (Back to Table of Contents)
2. In this Act unless the context otherwise requires:
"Auditor General" and "Deputy Auditor General" mean the Auditor General and the Deputy Auditor General appointed in terms of section 108 of the Constitution;
"Constitution" means the Constitution of Malta;
"National Audit Office" means the National Audit Office set up by section 108 of the Constitution. (Back to Table of Contents)
3. The Auditor General and the Deputy Auditor General shall take an oath of Office in the terms following:
"I................................ swear that I shall honestly and diligently perform the functions of Auditor General/Deputy Auditor General, according to the Constitution of Malta and to any law that may from time to time be applicable, without fear or favour and to the best of my ability."(Back to Table of Contents)
4. The Auditor General may in connection with his functions under the Constitution or any other law, examine any person on oath on any matter pertaining to any account subject to his audit and shall have all the powers that are by virtue of the Inquiries Act conferred on a chairman of a board of enquiry under that Act, and the provisions of that Act shall apply to the Auditor General in the exercise of his functions aforesaid as if he were a chairman appointed under that Act. (Back to Table of Contents)
5. The Provisions of the First Schedule of this Act shall apply to the reports that the Auditor General is to make to Parliament in accordance with section 108 of the Constitution. (Back to Table of Contents)
6. The provisions of the Second Schedule to this Act shall apply to the recruitment of staff at the National Audit Office, to the powers of the Auditor General and of his office, the allocation of funds to the National Audit Office, the keeping of accounts thereat and for their proper audit. (Back to Table of Contents)
7. The Financial Administration and Audit Act shall be amended as follows:
a. sections 5 to 11 (inclusive), 49 to 61 (inclusive), 66, 69, and 70 shall be deleted;
b. in section 45 the words "all securities held in Malta shall be inspected by the Director of Audit and," shall be deleted, and for the marginal title thereto shall be substituted the words "Certified returns of securities held abroad;";
c. in section 46 for the words from "for verification" to "of this Act." there shall be substituted the words "to the Auditor General as provided in section 67 of this Act.";
d. in sections 46, 48, 65, and 67, for the words "Director of Audit" wherever they appear there shall be substituted the words "Auditor General", and for the words "Audit Office" there shall be substituted the words "National Audit Office"; and
e. in subsection (2) of section 65, for the words "Such statements shall be examined with the Treasury books, certified by the Director of Audit and returned to the Accountant General within two weeks after the receipt thereof, and the Minister shall forthwith cause the same, certified as aforesaid, to be published" there shall be substituted the words "As soon as the Auditor General returns such statements to the Accountant General, the Minister shall cause such statements to be published" .(Back to Table of Contents)
8. Any reference in any law to the Director of Audit and to the Audit Office shall be deemed to be a reference to the Auditor General and to the National Audit Office respectively. (Back to Table of Contents)
9. The Pensions Ordinance shall be amended as follows:
(a) immediately after paragraph (b) of the definition "pensionable office" in section 2 thereof, there shall be added the following paragraph:
"(c) the office of Auditor General or Deputy Auditor General, or any office in the National Audit Office;";
(b) section 9 thereof shall be amended as follows:
(i) the present provision shall be renumbered as subsection (1) thereof;
(ii) in paragraph (i) of the proviso to subsection (1) thereof as renumbered, for the word "judge" there shall be substituted the words "judge, Attorney General or magistrate"; and
(iii) immediately after subsection (1) thereof as renumbered there shall be added the following subsection:
"(2) The provisions of subsection (1) of this section shall not apply to any officer holding the office of Auditor General or Deputy Auditor General."; and
(c) immediately after paragraph (5) of regulation 3 of the Pensions Regulations there shall be added the following new paragraph (6):
"(6) The Auditor General and/or, the Deputy Auditor General who, immediately preceding their appointment as such, were eligible for pension under this Ordinance, if they are compelled to terminate their term of office on account of infirmity of mind or body and thereupon effectively retire from the public service, or have attained the age of sixty on or after the expiry of that term without it having been immediately renewed or extended, may be allowed to claim a pension at the rate of three-hundred and sixtieths of their pensionable emoluments as Auditor General and/or Deputy Auditor General for each complete month of pensionable service in any capacity in the service of Malta." (Back to Table of Contents)
10. In Part A of the First Schedule of the Ombudsman Act, 1995, for the words "The Director of Audit in respect of the functions under subsections (4) and (5) of section 108 of the Constitution" there shall be substituted the words "The Auditor General in respect of the functions under subsection (5) and (8) of section 108 of the Constitution". (Back to Table of Contents)
1. (a) The Auditor General shall make such examination and inquiries in the accounts of all departments or offices of the Government of Malta, or of such other bodies on whose accounts he is to report in accordance with any law, as he may consider necessary in order to enable him to report thereon as required by the Constitution or any other law.
(b) The Auditor General shall at least once in every year inspect all securities held in Malta and shall verify the annual return of all securities held in Malta and abroad prepared by the Accountant General under the provisions of the Financial Administration and Audit Act.
(c) The Auditor General shall examine with the Treasury books the statements which the Accountant General is required to prepare and forward to him under the Financial Administration and Audit Act; he shall certify and return them to the Accountant General within two weeks after the receipt thereof.
(d) If the Auditor General objects to any part of such statements, he shall certify the same with such remarks thereon as he thinks fit, and they shall be published and laid on the Table of the House of Representatives together with such remarks.
(e) The Auditor General shall examine the statements and accounts prepared and sent to him by the Accountant General in terms of the Financial Administration and Audit Act and shall make a report as is provided under and is required by this Act, by the Financial Administration and Audit Act and any regulations made thereunder, or as the Auditor General may think fit and desirable. (Back to Table of Contents)
2. The Auditor General shall examine, in particular, such books and records as government departments are required to keep by or under the Financial Administration and Audit Act or any other law which may from time to time amend, supplement or replace that Act, and shall in his report state his opinion as to whether such books and records fairly contain such information as is required in accordance with stated accounting policies of the Government of Malta.
3. The Auditor General may examine whether the department, office or other body whose accounts are being audited by him has used the funds and resources available to it effectively, efficiently, and economically without incurring expenditure which is unnecessary.
4. Nothing in paragraph 3 hereof shall be construed as entitling the Auditor General to go into the merits of any policy or objective of any such department, office or body.
5. The Auditor General shall annually report to the House of Representatives on:-
(i) The work and activities of the National Audit Office; and
(ii) whether in carrying out his work he received all the information and explanations he required. (Back to Table of Contents)
6. Each report under paragraph 5 shall call attention to anything that the Auditor General considers to be of significance and of a nature that should be brought to the attention of the House of Representatives, including in particular any cases in which he may have observed that:-
(i) accounts and records have not been faithfully and properly maintained or public monies have not been fully accounted for or paid into the Consolidated Fund as may be required by law;
(ii) essential records have not been maintained or the rules and procedures applied have been insufficient to safeguard and control public property, to secure an effective check on the assessment, collection and proper allocation of revenue and to ensure that expenditures have been made only as authorised;
(iii) public monies have been expended for purposes other than those for which they were appropriated by Parliament or otherwise not in accordance with the Financial Administration and Audit Act or such other law amending, supplementing or replacing that Act;
(iv) public monies have been expended uneconomically or without due regard to effectiveness and efficiency;
(v) satisfactory procedures have not been established to measure and report the effectiveness of expenditure programmes, where such procedures should reasonably have been established. (Back to Table of Contents)
7. Each report made by the Auditor General under paragraph 5 of this Schedule shall be submitted to the Speaker of the House of Representatives not later than twelve months after the end of the financial year being reported upon, and the Speaker shall lay each such report before the House of Representatives on the next sitting of the House after receipt thereof by him.
8. (a) The Auditor General may make special reports to the House of Representatives:
(i) on any matter of pressing importance or urgency; or
(ii) dealing with value for money audit relating to efficiency and effectiveness of any department, office or body.
(b) The Speaker shall lay each such report before the House of Representatives on the next sitting of the House after receipt thereof by him.
9. (a) The Auditor General may either personally or through the National Audit Office, on the initiative of the Auditor General himself or at the request of the Minister responsible for finance or of at least three members of the Public Accounts Committee or such other Committee of the House of Representatives that may from time to time replace such committee, inquire into and report on:
(i) any matter relating to government finances, property or funds administered or under the control of any Government department or office or of any body whose accounts are subject to his audit;
(ii) such accounts and financial reports which are in virtue of or under any law laid before the House of Representatives;
(iii) the accounts of those public authorities or bodies administering, holding or using funds belonging directly or indirectly to the Government of Malta;
(iv) the operations of companies or other entities in which the Government of Malta owns not less than 51 per cent of the shares;
(v) any other matter as may be provided by or under any law.
(b) The Speaker shall lay each such report before the House of Representatives on the next sitting of the House after receipt thereof by him. (Back to Table of Contents)
(c) The Auditor General may give advice to any Government department or office, or to any body to which subparagraph (a) hereof applies, on anything discovered during such inquiry.
10. (a) Any serious irregularity discovered by the Auditor General in a government department or office, or in a body subject to his audit, shall be brought to the notice of the Minister responsible for that government department, office or body by the Auditor General.
(b)
(i) The Auditor General may report to the Speaker any person who performs duties in such government department or office, or body subject to his audit, and who fails to comply with any of the provisions of this Act or of the Financial Administration and Audit Act, or of any regulations made thereunder.
(ii) The Auditor General shall report any such person to the Minister responsible for that Government department, office or body and may recommend that the Minister surcharges against that person the amount of deficiency or loss or improper payment resulting from the non-compliance of any provisions of this Act, or of the Financial Administration and Audit Act, or of any regulations made thereunder.
(iii) Any person aggrieved by the imposition of any such surcharge shall have a right to contest such surcharge by action taken against the Minister in the First Hall of the Civil Court not later than one month after notice has been given to him of such surcharge, and such surcharge shall not become effective before the lapse of one month or during such time as any such court action is still pending.
(iv) The Auditor General shall report any such person who fraudulently applies or fraudulently causes or permits to be applied public monies to other than public services, or who is a defaulter in respect of public monies, to the Minister, who shall take such steps as he may consider necessary to have the offender prosecuted according to law; but nothing herein contained shall prevent the taking of proceedings against such person by any person other than the Minister.
(c) The Auditor General shall make queries and observations addressed to any accounting officer or officer in any way concerned with the receipt or payment of public monies and call for explanations as he may think necessary. Every such quer and observation addressed to any such officers shall be returned by them to the Auditor General with the necessary reply without delay. In the event of any unusual or unexplained delay occurring in obtaining reply, or an unsatisfactory reply being received, to inquires or representations made by him, the Auditor General shall report the circumstances to the Minister responsible for the government department or office or body subject to his audit, concerned. (Back to Table of Contents)
1. The Auditor General shall appoint such number and such classes of officers at the National Audit Office as he may consider necessary to assist him in the discharge of his functions according to law.
2. Such officers shall be appointed on such terms and shall enjoy such remuneration as the Auditor General may determine. (Back to Table of Contents)
3. Except as may be expressly provided by any law, the Auditor General, and all authorised officers of the National Audit Office, shall be entitled to free access at all reasonable times to such information from officers and other personnel of govemme departments or offices, or of bodies subject to his audit, that may be required by them for the proper execution of their functions according to law, and they shall be entitled to receive from such officers and other personnel such reports and explanations as they may deem necessary for such purposes,
4. The Auditor General may also cause searches to be made in, and extracts to be taken from any books, documents or records existing in any premises of government departments or offices, or of bodies subject to his audit, without paying any fee therefore notwithstanding any law or regulations to the contrary.
5. In order to carry out his duties more effectively, the Auditor General may station a-member of his staff in the offices of any Government department or office, or of any other body subject to his audit, and such department, office or body shall furnish such member with the necessary office accommodation. (Back to Table of Contents)
6. The Auditor General shall require every officer employed by him who is to examine the accounts of any department, office or body to comply with any security requirements applicable thereto and to take any oath of secrecy that may be required by law to be taken by any person employed with that department, office or body.
7. (a) In carrying out his functions and responsibilities according to law, the Auditor General may rely on the report of the duly appointed auditor of the organisation being reported upon, and may also commission any person or group of persons who may in accordance with any law hold a warrant entitling them to audit the accounts of public limited liability companies, to audit the accounts of any department, office or body subject to his audit.
(b) The provisions of paragraphs 3, 4 and 6 of this Schedule shall apply in respect of the person or group of persons commissioned by the Auditor General. (Back to Table of Contents)
8. The expenses of the National Audit Office and the salaries and allowances of the officers (other than those of the Auditor General and of the Deputy Auditor General) up to a sum as may be fixed by the House of Representatives in accordance with this Part, shall be a charge on the Consolidated Fund without the need of any further appropriation other than this Part of this Schedule.
9. For the purposes of establishing the sum referred to in paragraph 8, the Auditor General shall prepare an estimate of the sum that he considers to be required.
10. Such estimate shall before consideration by the House of Representatives be examined by the Committee established under Part IV if this Schedule.
11. Where during the course of any financial year the sum fixed by the House of Representatives is in the opinion of the Auditor General insufficient to enable him to efficiently fulfil the responsibilities of his office, the Auditor General shall prepare supplementary estimates for consideration by the House of Representatives after examination by the Committee as aforesaid in paragraph 10.
12. The sum or sums referred to in the previous paragraphs of this Part shall be fixed by resolution of the House of Representatives after considering the estimates prepared by the Auditor General and the report thereon by the Committee. (Back to Table of Contents)
13. There shall be a Committee to be styled the National Audit Office Accounts Committee (hereinafter referred to as "the Committee") which shall be composed as follows:
i. the member of the House of Representatives who is for the time being Chairman of the Public Accounts Committee of the House of Representatives or such other committee of the said House from time to time replacing such Committee;
ii. the Minister responsible for parliamentary affairs (here in after referred to as "the Leader of the House of Representatives"
iii. three members of the House of Representatives appointed by the said House upon a motion by the Leader of the House of Representatives, as to two members from among members supporting the Government and as to the remaining member from among the members in opposition.
14. The Committee shall from time to time but not less often than once a year present to the House of Representatives through the Leader of the House of Representatives) a report of its activities and the report of its examination of any estimates prepared by the Auditor General. (Back to Table of Contents)
15. The Committee shall elect a chairman from among its members, and may regulate its own proceedings.
16. Upon the dissolution of the House of Representatives the Committee shall be deemed to be dissolved until it is next reconstituted after the House next meets. Where upon the dissolution of the House of Representatives the sum to be established for the purposes of paragraph 8 and Part III is not so established or the House has not after the end of a financial year established the said sum, the Auditor General shall be entitled to expend, each month, a sum equivalent to one twelfth of the sum or sums established for the previous financial year, until the said sum is so established.
17. The validity of any proceedings of the Committee shall not be effected by any vacancy among its members or by any defect in the appointment or nomination of any of its members. (Back to Table of Contents)
18. The accounts of the National Audit Office shall be audited by such person or persons (hereinafter referred to as "auditor") appointed by the Committee from among such persons who in accordance with such law as may from time to time be in force hold a warrant entitling them to audit the accounts of a public limited liability company.
19. The remuneration of the auditor shall be fixed by the Committee and shall be defrayed as part of the expenses of the National Audit Office.
20. The auditor shall have with regard to the accounts of the National Audit Office such powers as are by law vested in the Auditor General with regard to accounts subject to his audit.
21. The Auditor shall present his report on the audit carried out by him to the Committee which shall (through the Leader of the House of Representatives) present the same to the House of Representatives together with any comment thereon by the said Committee or any of its members. (Back to Table of Contents)
Passed by the House of Representatives at Sitting No. 96 of Tuesday, 15th July, 1997.
An ACT to amend the Constitution of Malta providing for the Offices of Auditor General and Deputy Auditor General
Be it enacted by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:-
1. (1) This Act may be cited as the Constitution of Malta (Amendment) Act, 1997, and shall be read and construed as one with the Constitution of Malta hereinafter referred to as "the Constitution".
(2) This Act shall come into force on such date as the Prime Minister may by notice in the Gazette appoint.
2. In subsection (4) if section 107 if the Constitution, for the words "100, 108, 109" there shall be substituted the words "100, 109"
Substitution of section 108 of the Constitution
3. For section 108 of the Constitution there shall be substituted the following:
"Auditor General
108. (1) There shall be an Auditor General whose office shall be a public office and who shall have the functions as provided in the following provisions of this section.
(2) The Auditor General shall be an officer of the House of Representatives and shall be appointed by the President acting in accordance with a resolution of the House of Representatives supported by the votes of not less than two-thirds of all the members in the House:
Provided that when a person who is not a member of the House of Representatives is elected to be the Speaker of the House of Representatives, he shall not be treated as a member of the House for the purpose of establishing the majority required by this subsection.
(3) (a) Subject to the provisions of subsection (4) of this section the Auditor General shall hold office for a period of five years from the date of his appointment and shall be eligible for reappointment for one further period of five years.
(b) Where the Auditor General has been appointed from among public officers and at the end of his appointment is below the retiring age in the public service, the person so appointed shall revert to the public service and shall continue to enjoy the salary and allowances referred to in subsection (6).
(c) It shall not be lawful for the Auditor General, during his tenure of such office, to hold any other office of profit or otherwise with the Government of Malta or with any commercial or professional venture whatsoever.
(4) (a) The Auditor General may at any time be removed or suspended 1 from his office by the President, upon an address from the House of Representatives supported by the votes of not less than two-thirds of all members in the House, praying for such removal on the ground of proved inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or proved misbehaviour, an the provisions of paragraph (a) of the provision to subsection (2) of this section shall also apply for the purpose of establishing the majority required under this subsection.
(b) At any time when Parliament is not in session, the Auditor General may be suspended from his office by the President, acting in accordance with his own deliberate judgement, for inability to perform the functions of his office or misbehaviour proved to the satisfaction of the President; but any such suspension shall not continue in force beyond two months after the beginning of the next session of Parliament.
(a) of all departments and offices of the Government of Malta, including the office of the Public Service Commission, and the office of the Clerk of the House of Representatives and of all Superior and Inferior Courts of Malta, and
(b) of such other public authorities or other bodies administering, holding, or using funds belonging directly or indirectly to the Government of Malta as may be prescribed by or under any law for the time being in force in Malta,
shall be audited and reported upon annually by the Auditor General to the House of Representatives and for that purpose the Auditor General or any person authorised by him in that behalf shall have access to all books, records, returns and other documents relating to those accounts.
(6) (a) There shall be paid to the Auditor General such salary and such allowances as may from time to time be prescribed or allowed for a Judge of the Superior Courts.
(b) Such salary and allowances shall be a charge on the Consolidated Fund and the provisions of subsection (3) of section 107 of the Constitution shall apply to such salary.
(7) The Auditor General shall not enter upon the duties of his office unless he has taken and subscribed before the President the oath of allegiance and such oath for the due execution of his office as may be prescribed by any law for the time being in force in Malta.
(8) Parliament may by law from time to time provide for the manner in which the reports of the Auditor General shall be made.
(9) (a) There shall also be a Deputy Auditor General whose office shall be a public office and who shall have such functions as the Auditor General may from time to time delegate to him and who shall, whenever the office of Auditor General is temporarily vacant, and until a new Auditor General is appointed, and whenever the holder of the office is absent from Malta or on vacation or is for any reason unable to perform the functions of his office, perform the functions of Auditor General.
(b) The provisions of subsection (2), paragraphs (a) and (c) of subsection (3), subsection (4), paragraph (b) of subsection (6) and subsection (7) of this section shall apply to the Deputy Auditor General.
(c) There shall be paid to the Deputy Auditor General such salary and such allowances as may from time to time be prescribed or allowed to a Magistrate of the Inferior Courts.
(d) Where the Deputy Auditor General has been appointed from among public officers and at the end of his appointment is below the retiring age in the public service, the person so appointed shall revert to the public service and shall continue to enjoy the salary and allowances referred to in this subsection.
(10) (a) There shall be a National Audit Office consisting of the Auditor General, who shall be the head of that office, the Deputy Auditor General and such other officers, appointed by the Auditor General, as the Auditor General may consider necessary to assist him in the proper discharge of his office, and the provisions of section 110 of this Constitution shall not apply to the officers appointed to the National Audit Office.
(b) Parliament may from time to time by law provide for the manner in which funds shall be allocated to the National Audit Office and in the manner whereby the accounts of the National Audit Office shall be audited and reported upon.
(11) Nothing in this section shall be construed as precluding the grant of any other functions or powers on the Auditor General or the National Audit Office by or under any law for the time being in force.
(12) In the exercise of their functions under the Constitution the Auditor General and the Deputy Auditor General shall not be subject to the authority or control of any person.".
4. In subsection (1) of section 123 of the Constitution for the words "Where any person" there shall be substituted the words "Save as otherwise provided in this Constitution, where any person".
5. Section 124 of the Constitution shall be amended as follows:
(a) in subsection (2) thereof, immediately after the words "of the Superior Courts," there shall be inserted the words "service in the office of Auditor General and Deputy Auditor General,"; and
(b) in subsection (7) thereof, for the words "100 or 108" there shall be substituted the words "100 or 108(1) or (9)".
Passed by the House a/Representatives at Sitting No. 96 of Tuesday, 15th July, 1997.
