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This is a Bill, not an Act. For current law, see the Acts databases.
2012
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Chief Minister)
Contents
Page
Part 1.1Annual Reports (Government Agencies) Act 200430
2012
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Chief Minister)
Auditor-General Amendment Bill 2012
A Bill for
An Act to amend the Auditor-General Act 1996, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Auditor-General Amendment Act 2012.
This Act commences on the day after its notification day.
Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
This Act amends the Auditor-General Act 1996.
Note This Act also amends other legislation (see sch 1).
before section 1, insert
Division 1.1 Preliminary
5 Application of terms used in
Financial Management Act
Section 3
omit
6 Reports to be given to
Speaker
Section 4
relocate to part 6 as section 37A
before section 5, insert
Division 1.2 Important concepts
substitute
Part 2 Auditor-General
Division 2.1 Establishment and independence of auditor-general
6 Auditor-General
There must be an Auditor-General for the Territory.
7 Auditor-general—officer of the Legislative Assembly
(1) The auditor-general is an independent officer of the Legislative Assembly.
(2) The functions, powers, rights, immunities and obligations of the auditor-general are as stated in this Act and other Territory laws.
(3) There are no implied functions, powers, rights, immunities or obligations arising from the auditor-general being an independent officer of the Legislative Assembly.
(4) The powers of the Legislative Assembly to act in relation to the auditor-general are as stated in this Act and other Territory laws.
(5) In subsection (4):
Legislative Assembly includes—
(a) the members of the Legislative Assembly; and
(b) the committees of the Legislative Assembly.
(6) There are no implied powers of the Legislative Assembly arising from the auditor-general being an independent officer of the Legislative Assembly.
8 Auditor-general—independence
(1) Subject to this Act and to other Territory laws, the auditor-general has complete discretion in the exercise of the auditor-general’s functions.
(2) 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 carried out; or
(b) the way in which a particular audit is to be carried out; or
(c) the priority to be given to any particular matter.
Division 2.2 Appointment of auditor-general
9C Appointment—term
(1) The auditor-general is to be appointed for 7 years.
(2) A person who has been appointed auditor-general is not eligible for reappointment.
9D Appointment—conditions
The auditor-general holds office subject to—
(a) division 2.3; and
(b) any condition about a matter not provided by this Act that is—
(i) approved by resolution of the Legislative Assembly; and
(ii) stated in the appointment; and
(c) any determination under the Remuneration Tribunal Act 1995.
Division 2.3 Other provisions applying to auditor-general
9E Auditor-general—oath or affirmation of office
(1) The auditor-general must take an oath of office, or make an affirmation of office, within 1 month after the day the auditor-general is appointed.
(2) The oath must be taken, or affirmation made, before the Speaker.
Note For the form of the oath and affirmation of office, see the Oaths and Affirmations Act 1984, s 6 and sch 1.
9F Auditor-general—disclosure of interests
(1) The auditor-general must give a written statement of the auditor=general’s personal and financial interests to the Chief Minister, and the Speaker, within 1 month after—
(a) the day the auditor-general is appointed; and
(b) the first day of each financial year.
(2) To avoid any doubt, receiving a statement under this section is exercising a function for the purposes of section 36 (Offences—use or divulge protected information).
Note The Chief Minister and Speaker may only disclose the information in the statement in certain circumstances (see s 36).
9G Auditor-general—not to do other work
The auditor-general must not have paid employment other than exercising the auditor-general’s functions.
9J Auditor-general—suspension from office
The Executive must suspend the auditor-general from office if the Legislative Assembly passes a resolution to the effect that the auditor-general should be suspended from office—
(a) for misbehaviour; or
(b) because—
(i) the auditor-general has become mentally or physically incapacitated; and
(ii) the incapacity prevents the auditor-general from performing an inherent requirement of the job of auditor-general.
9K Auditor-general—removal from office
The Executive must remove the auditor-general from office if—
(a) the Legislative Assembly passes a resolution to the effect that the auditor-general should be removed from office—
(i) for misbehaviour; or
(ii) because—
(A) the auditor-general has become mentally or physically incapacitated; and
(B) the incapacity prevents the auditor-general from performing an inherent requirement of the job of auditor-general; or
(b) the auditor-general becomes bankrupt or personally insolvent.
Division 2.4 Office of the auditor-general
9L Staff
(1) The auditor-general’s staff must be employed under the Public Sector Management Act 1994.
(2) The auditor-general has the powers mentioned in the Public Sector Management Act 1994, section 25 (3) (Powers of certain statutory office-holders) in relation to the auditor-general’s staff.
(3) The auditor-general’s staff are not subject to direction from anyone other than the following people in relation to the exercise of the auditor-general’s functions:
(a) the auditor-general;
(b) another member of the auditor-general’s staff authorised by the auditor-general to give directions.
omit
10 Reports for Annual Reports
(Government Agencies) Act 2004
Section 9A
relocate to division 2.1 as section 9
11 New division 3.1 and 3.2 headings
before section 10, insert
Division 3.1 Application—pt 3
Division 3.2 Functions
12 Functions
New section
10 (2)
insert
(2) The auditor-general must exercise the auditor-general’s functions in the way the auditor-general considers appropriate, having regard to recognised professional standards and practices.
13 New sections 10B, 10C and division 3.3 heading
insert
10B Auditor-general may conduct audit of multiple entities
The auditor-general may conduct a single audit of 2 or more entities under this Act (a multi-entity audit) if satisfied that it is appropriate to do so.
10C Auditor-general may conduct joint or collaborative audit
The auditor-general may conduct an audit (a joint audit) under this Act jointly, or in collaboration, with the auditor-general of the Commonwealth or a State if the auditor-general reasonably believes the Commonwealth or State has an interest in the audit.
Division 3.3 Financial audits
before section 12, insert
Division 3.4 Performance audits
11B Meaning of performance audit
In this Act:
performance audit, of a person, body or thing, means a review or examination of any aspect of the operations of the entity.
substitute
12 Performance audits—Territory
omit
17 Auditor under the Corporations
Act
Section 13
relocate to division 3.2 as section 10A
insert
13 Annual performance audit program
(1) The auditor-general must, before the end of each financial year, prepare a program (an annual performance audit program) for performance audits that the auditor-general intends to conduct in the next financial year under—
(a) section 12 (Performance audits—Territory); and
(b) section 13D (Non-public sector entity audits).
(2) In preparing an annual performance audit program, the auditor-general must consult—
(a) the public accounts committee; and
(b) each member of the Legislative Assembly; and
(c) the head of service; and
(d) anyone else the auditor-general considers appropriate.
Note The auditor-general has complete discretion in the exercise of his or her functions and is not subject to direction from anyone about whether a particular audit is to be carried out (see s 8).
(3) The annual performance audit program must be published on the auditor-general’s website.
Note The auditor-general’s website is accessible at www.audit.act.gov.au.
19 New division 3.5 and division 3.6 heading
before section 14, insert
Division 3.5 Audit of non-public sector entities
13A Meaning of public sector entity
(1) In this Act:
public sector entity means—
(a) a directorate; or
(b) a territory authority; or
(c) a territory-owned corporation; or
(d) a territory controlled company, joint venture or trust.
(2) In this section:
territory controlled company, joint venture or trust means a company, joint venture or trust in which the Territory or a territory entity has a controlling interest.
Note Controlling interest—see s 5.
13B Meaning of non-public sector entity
In this Act:
non-public sector entity means an entity that is not a public sector entity.
13C Minister or public accounts committee may request audit of non-public sector entity
(1) This section applies if a public sector entity provides property to a non-public sector entity for a purpose.
(2) The Minister or the public accounts committee may ask the auditor-general to conduct a performance audit of the non-public sector entity in relation to the property provided by the public sector entity.
13D Non-public sector entity audits
(1) This section applies if the Minister or the public accounts committee asks the auditor-general to conduct an audit under section 13C.
(2) The auditor-general may decide to conduct the requested audit if satisfied that—
(a) the usual acquittal procedures for the use of property provided by a public sector entity have been exhausted; and
(b) there are no other mechanisms reasonably available to the public sector entity to resolve the proposed subject of the audit; and
(c) failure to conduct the audit may result in significant risk to the Territory.
(3) If the auditor-general decides to conduct the requested audit, the auditor-general must record the reasons for the decision in the audit report.
(4) In conducting the audit, the auditor-general may exercise a power under division 3.6 only to the extent that it relates to the property provided by the public sector entity.
Division 3.6 Power to obtain information
substitute
15 Access to premises and things—Territory
relocate to division 3.3 as section 11A
before section 17, insert
Division 3.7 Reports for Legislative Assembly
23 Reports for Legislative
Assembly
Section 17 (2)
substitute
(2) The report must include the substance of any comments received by the auditor-general under section 18.
substitute
(6) The auditor-general may give a copy of the report to a Minister or the head of service if, in the auditor-general’s opinion, the Minister or head of service has a special interest in the report.
substitute
18 Comments on proposed reports
(1) This section applies if the auditor-general is preparing a report for the Legislative Assembly under section 17.
(2) The auditor-general must give a copy of the proposed report to the following people:
(a) if the proposed report is about an audit under s 12 (Performance audits—Territory)—the responsible director-general for the directorate, territory authority, public sector company, joint venture or trust;
(b) if the proposed report is about an audit under section 13D (Non-public sector entity audits)—
(i) if the non-public sector entity is—
(A) an individual—the individual; or
(B) not an individual—the chief executive officer (however described) of the non-public sector entity; and
(ii) the responsible director-general for the public sector entity that gave the property to the non-public sector entity;
(c) if the proposed report is about a multi-entity audit—the head of service.
(3) The auditor-general may also give a copy of all or part of the proposed report to anyone else the auditor-general considers has a direct interest in the proposed report.
(4) If the auditor-general gives a person a copy of all or part of a proposed report, the auditor-general must also give the person a written notice (a proposed report notice) stating that the person may give written comments about the proposed report to the auditor-general before the end of—
(a) 14 days after the day the notice is given to the person; or
(b) a longer period stated in the notice.
Note Comments received under this section must be taken into consideration and included in the final report (see s (5) and s 17 (2)).
(5) If the auditor-general receives comments under this section, the auditor-general must consider the comments in preparing the final report.
(6) In this section:
proposed report means a draft version of a report.
26 Reporting sensitive
information
New section 19 (1) (h)
insert
(h) disclose information mentioned in the Legal Aid Act 1977, section 92 (2) (a) or contained in a document mentioned in that Act, section 92 (2) (b).
omit
subsection (1)
substitute
subsection (1) (a) to (g)
substitute
20 Application—Legislative Assembly secretariat—pt 3
relocate to division 3.1 as section 9P
30 Application of Financial Management
Act
Section 21
omit
part 2, part 3 and part 5
substitute
part 2 (Budget management), part 3 (Financial reports) and part 5 (Banking and investment)
31 Additional amounts for certain
audits
Section 22A (1)
omit
section 11 and section 12
substitute
section 11 (Special financial audits), section 12 (Performance audits) and section 13D (Auditor-general to conduct non-public sector entity audit)
omit
section 11 and section 12
substitute
section 11, section 12 and section 13D
omit
relocate to division 2.4 as sections 9M to 9O
substitute
Part 5 Review of auditor-general
Division 5.1 Strategic review of auditor-general
23 Meaning of strategic review—div 5.1
In this division:
strategic review, of the auditor-general, means—
(a) a review of the auditor-general’s functions; and
(b) a performance audit of the auditor-general.
24 Strategic review to be carried out in each Assembly term
(1) A strategic review of the auditor-general must be carried out once in each term of the Legislative Assembly.
(2) The public accounts committee must decide when the strategic review is to be carried out.
25 Strategic reviewer
(1) When the public accounts committee decides that the strategic review of the auditor-general is to be carried out, the public accounts committee must ask the Minister to, on behalf of the Territory, engage a person to conduct the strategic review.
(2) If requested by the public accounts committee, the Minister must, on behalf of the Territory, engage an appropriately qualified person (the strategic reviewer) under a contract to conduct the strategic review.
26 Strategic review to be conducted as requested
(1) If the Minister engages a strategic reviewer under section 25—
(a) the public accounts committee must ask the strategic reviewer to conduct the strategic review according to stated terms of reference; and
(b) the strategic reviewer must conduct the requested strategic review as soon as practicable after receiving the request.
(2) The strategic reviewer may conduct a strategic review of the auditor-general only when requested under this section.
27 Powers and obligations of strategic reviewer
The strategic reviewer has the same powers and obligations in relation to the strategic review as the auditor-general has under the following provisions in relation to a performance audit under section 12 (Performance audits—Territory):
(a) division 3.6 (Power to obtain information);
(b) section 19 (Reporting sensitive information);
(c) section 19A (Deliberations etc of the Executive);
(d) section 36 (Offences—use or divulge protected information).
28 Comments on proposed strategic review report
(1) This section applies if the strategic reviewer is preparing a report about the strategic review for the Legislative Assembly under section 29.
(2) The strategic reviewer must give the auditor-general—
(a) a copy of the proposed report; and
(b) a written notice (a proposed report notice) stating that the auditor-general may give written comments about the proposed report to the strategic reviewer before the end of the day stated in the notice.
(3) If the strategic reviewer receives comments under this section, the strategic reviewer must consider the comments in preparing the final report.
(4) In this section:
proposed report means a draft version of a report.
29 Strategic review report
(1) As soon as practicable after completing a strategic review, the strategic reviewer must give a report about the strategic review to the Speaker.
(2) The report must include the substance of any comments received by the strategic reviewer under section 28.
(3) The Speaker must present a copy of the report to the Legislative Assembly.
Division 5.2 Independent financial audit of auditor-general
30 Meaning of independent financial audit—div 5.2
In this division:
independent financial audit, of the auditor-general, means an audit of an annual financial statement prepared by the auditor-general under section 21 (Application of Financial Management Act).
Note Section 21 applies the Financial Management Act, pt 2, pt 3 and pt 5 to the auditor-general. Div 3.2 of that Act deals with annual financial statements.
31 Independent auditor
The Minister must, on behalf of the Territory, engage an appropriately qualified person (the independent auditor) under a contract to—
(a) conduct independent financial audits of the auditor-general; and
(b) exercise functions as required under the Financial Management Act.
Note Section 21 applies the Financial Management Act (FMA), pt 2, pt 3 and pt 5 to the auditor-general.
The FMA, s 29, requires the independent auditor to give the auditor-general audit opinions about annual financial statements.
The FMA, s 30C, requires the independent auditor to give the auditor-general reports about statements of performance.
32 Independent financial audits
(1) The independent auditor must conduct an independent financial audit of each annual financial statement prepared by the auditor-general under section 21 (Application of Financial Management Act).
(2) As soon as practicable after completing an independent financial audit, the independent auditor must give a written report about the audit to the Speaker.
(3) However, the independent auditor must give the auditor-general a draft version of the report before preparing the final report.
33 Powers and obligations of independent auditor
The independent auditor has the same powers and obligations in relation to the conduct of an independent financial audit as the auditor-general has under the following provisions in relation to a performance audit under section 12 (Performance audits—Territory):
(a) division 3.6 (Power to obtain information);
(b) section 19 (Reporting sensitive information);
(c) section 19A (Deliberations etc of the Executive);
(d) section 36 (Offences—use or divulge protected information).
omit
substitute
36 Offences—use or divulge protected information
(1) A person to whom this section applies commits an offence if—
(a) the person uses information; and
(b) the information is protected information about someone else; and
(c) the person is reckless about whether the information is protected information about someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2) A person to whom this section applies commits an offence if—
(a) the person does something that divulges information; and
(b) the information is protected information about someone else; and
(c) the person is reckless about whether—
(i) the information is protected information about someone else; and
(ii) doing the thing would result in the information being divulged to someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(3) Section 35 (4) and subsections (1) and (2) do not apply if the information is used or divulged—
(a) under this Act or another territory law; or
(b) in relation to the exercise of a function, as a person to whom this section applies, under this Act or another territory law; or
(c) in a court proceeding.
(4) Section 35 (4) and subsections (1) and (2) do not apply to the using or divulging of protected information—
(a) if the protected information is about a person—with the person’s consent; or
(b) in accordance with a direction of the Minister if the Minister certifies that the using or divulging of the information is necessary in the public interest; or
(c) to an entity prescribed by regulation; or
(d) to an auditor-general of the Commonwealth or a State for a joint audit being conducted with the auditor-general of the Commonwealth or State.
Note 1 Joint audit—see s 10C.
Note 2 The defendant has an evidential burden in relation to the matters mentioned in s (3) and s (4) (see Criminal Code, s 58).
Note 3 If the protected information used or divulged under s (3) or s (4) is provided by a person under s 14, the information and any information directly or indirectly derived from it may not be admissible in evidence against the person in another criminal proceeding (see s 14D).
(5) A person to whom this section applies need not divulge protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act or another law applying in the territory.
(6) In this section:
court includes a tribunal, authority or person having power to require the production of documents or the answering of questions.
divulge includes—
(a) communicate; or
(b) publish.
person to whom this section applies means—
(a) a person who is or has been—
(i) the auditor-general; or
(ii) anyone acting under the direction or authority of the auditor-general; or
(b) anyone else who has exercised a function under this Act.
produce includes allow access to.
protected information means information about a person that is disclosed to, or obtained by, a person to whom this section applies because of the exercise of a function under this Act by the person or someone else.
Examples—protected information
1 information disclosed by the auditor-general under s 9F in a statement of personal and financial interests
2 information obtained by the auditor-general under s 14 in the course of conducting an audit
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
use information includes make a record of the information.
Note The Crimes Act 1900, s 153 also deals with disclosure of information by public employees or people performing services for the Territory or a territory authority. Section 36 applies to the auditor-general and anyone else who has exercised a function under the Act.
insert
Part 10 Transitional—Auditor-General Amendment Act 2012
50 Definitions—pt 10
In this part:
commencement day means the day the Auditor-General Amendment Act 2012, section 3 commences.
51 Auditor-general—oath or affirmation of office and disclosure of interests
(1) This section applies if the auditor-general on the commencement day was appointed 1 month or more before the commencement day.
(2) The following sections apply to the auditor-general as if the auditor-general was appointed on the commencement day:
(a) section 9E (Auditor-general—oath or affirmation of office);
(b) section 9F (Auditor-general—disclosure of interests).
39 Schedule 1, section 1.1 heading
substitute
1.1 Appointment of auditor-general
40 Schedule 1, section 1.1 (2) to (4)
substitute
(2) The Executive may appoint a person as auditor-general only if—
(a) the Minister has given the presiding member of the public accounts committee a written notice (the Minister’s notice)—
(i) detailing the proposed appointment; and
(ii) stating that the committee may give written agreement or objection to the proposed appointment to the Minister before the end of the due day; and
(b) either—
(i) the committee has given written agreement to the proposed appointment to the Minister before the end of the due day; or
(ii) the committee has not given written objection to the proposed appointment to the Minister before the end of the due day.
(3) The Minister’s notice is taken to have been referred to the committee by the Legislative Assembly for inquiry and report to the presiding member.
(4) An appointment is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.
(5) In this section:
due day, for the Minister’s notice, means—
(a) the day 14 days after the notice is given to the presiding member; or
(b) if the presiding member tells the Minister within the 14 days that the committee needs more time to consider the proposed appointment—the day 30 days after the end of the 14 days.
41 Schedule 1, section 1.1 (as amended)
relocate to division 2.2 as section 9A
42 Schedule 1, section 1.2 heading
substitute
1.2 Auditor-general—resignation
43 Schedule 1, section 1.2 (as amended)
relocate to division 2.3 as section 9H
44 Schedule 1, section 1.3 heading
substitute
1.3 Auditor-general—retirement
45 Schedule 1, section 1.3 (as amended)
relocate to division 2.3 as section 9I
omit
47 Schedule 1, section 1.5 heading
substitute
1.5 Appointment of acting auditor-general
48 Schedule 1, section 1.5 (as amended)
relocate to division 2.2 as section 9B
49 Application of Legislation Act, div
19.3.3
Schedule 1, section 1.6
omit
50 Dictionary, new definitions
insert
appropriation—see the Financial Management Act, dictionary.
chief executive officer—see the Financial Management Act, dictionary.
contract—see the Financial Management Act, dictionary.
directorate—see the Financial Management Act, dictionary.
head of service—see the Public Sector Management Act 1994, dictionary.
51 Dictionary, definition of independent auditor
substitute
independent auditor—see section 31.
52 Dictionary, new definitions
insert
independent financial audit, of the auditor-general, for division 5.2 (Independent financial audit of auditor-general)—see section 30.
joint audit—see section 10C.
Legislative Assembly secretariat—see the Public Sector Management Act 1994, dictionary.
multi-entity audit—see section 10B.
non-public sector entity —see section 13B.
53 Dictionary, definition of performance audit
substitute
performance audit, of a person, body or thing—see section 11B.
54 Dictionary, definition of protected information
omit
55 Dictionary, new definition of public sector entity
insert
public sector entity—see section 13A.
56 Dictionary, definition of Public Sector Management Act
omit
57 Dictionary, new definitions
insert
special financial audit means an audit conducted under section 11.
strategic review, of the auditor-general, for division 5.1 (Strategic review of auditor-general)—see section 23.
strategic reviewer, for division 5.1 (Strategic review of auditor-general)—see section 25 (2).
territory authority—see the Financial Management Act, dictionary.
Schedule 1 Consequential amendments
(see s 3)
Part 1.1 Annual Reports (Government Agencies) Act 2004
omit
s 9A
substitute
s 9
substitute
(b) a person who is or has been—
(i) a prescribed person or an assistant; or
(ii) the auditor-general, or anyone acting under the direction or authority of the auditor-general, in relation to a performance audit or special financial audit of the commission under the Auditor-General Act 1996.
after
except for this Act
insert
, the Auditor-General Act 1996
Part 1.3 Public Sector Management Act 1994
[1.4] Section 25 (2) (b), example 2
omit
section 23
substitute
s 9L
[1.5] Dictionary, definition of auditor-general’s office
omit
section 23
substitute
section 9L
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 10 May 2012.
2 Notification
Notified under the Legislation Act on 2012.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory 2012
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