PUBLIC GOVERNANCE, PERFORMANCE AND ACCOUNTABILITY BILL 2013

2010-2011-2012-2013

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Public Governance, Performance and

Accountability Bill 2013

No. , 2013

(Finance and Deregulation)

A Bill for an Act about the governance,

performance and accountability of, and the use and

management of public resources by, the

Commonwealth, Commonwealth entities and

Commonwealth companies, and for related

purposes

i Public Governance, Performance and Accountability Bill 2013 No. , 2013

Contents

Chapter 1--Introduction

Part 1-1--Introduction

Division 1--Preliminary

Short title ........................................................................................... 2

Commencement ................................................................................. 2

This Act binds the Crown .................................................................. 3

This Act extends to things outside Australia ..................................... 3

Division 2--Objects of this Act

Objects of this Act ............................................................................. 4

Division 3--Guide to this Act

Guide to this Act ................................................................................ 5

Part 1-2--Definitions

Division 1--Guide to this Part

Guide to this Part ............................................................................... 9

Division 2--The Dictionary

The Dictionary ................................................................................. 10

Chapter 2--Commonwealth entities and the

Commonwealth

Part 2-1--Core provisions for this Chapter

Division 1--Guide to this Part

Guide to this Part ............................................................................. 14

Division 2--Core provisions for this Chapter

Commonwealth entities ................................................................... 15

Types of Commonwealth entities .................................................... 15

Accountable authorities ................................................................... 15

Officials ........................................................................................... 16

Part 2-2--Accountable authorities and officials

Division 1--Guide to this Part

Guide to this Part ............................................................................. 17

Division 2--Accountable authorities

Subdivision A--General duties of accountable authorities

Public Governance, Performance and Accountability Bill 2013 No. , 2013 ii

Duty to govern the Commonwealth entity ....................................... 18

Duty to establish and maintain systems relating to risk and

control .............................................................................................. 18

Duty to encourage cooperation with others ..................................... 19

Duty in relation to requirements imposed on others ........................ 19

Duty to keep responsible Minister and Finance Minister

informed ........................................................................................... 19

Subdivision B--Rules about general duties of accountable

authorities

Rules about general duties of accountable authorities ..................... 20

Subdivision C--Application of government policy

Non-corporate Commonwealth entities ........................................... 20

Corporate Commonwealth entities .................................................. 20

Subdivision D--Special provisions applying to accountable

authorities of non-corporate Commonwealth

entities

Power in relation to arrangements ................................................... 21

Power to establish advisory boards .................................................. 21

Division 3--Officials

Subdivision A--General duties of officials

Duty of care and diligence ............................................................... 22

Duty to act in good faith and for proper purpose ............................. 22

Duty in relation to use of position .................................................... 22

Duty in relation to use of information .............................................. 22

Duty to disclose interests ................................................................. 23

Subdivision B--Provisions relating to general duties of officials

Termination of appointment for contravening general duties

of officials ........................................................................................ 23

Interaction between Subdivision A and other laws .......................... 24

Subdivision C--Officials to whom the Public Service Act applies

Officials to whom the Public Service Act applies ........................... 24

Part 2-3--Planning, performance and accountability

Division 1--Guide to this Part

Guide to this Part ............................................................................. 26

Division 2--Planning and budgeting

Key priorities and objectives of the Australian Government ........... 28

Corporate plan for Commonwealth entities ..................................... 28

Budget estimates for Commonwealth entities ................................. 29

iii Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 3--Performance of Commonwealth entities

Records about performance of Commonwealth entities .................. 30

Measuring and assessing performance of Commonwealth

entities .............................................................................................. 30

Annual performance statements for Commonwealth entities .......... 30

Audit of annual performance statements for Commonwealth

entities .............................................................................................. 31

Division 4--Financial reporting and auditing for

Commonwealth entities

Accounts and records for Commonwealth entities .......................... 32

Annual financial statements for Commonwealth entities ................ 32

Audit of annual financial statements for Commonwealth

entities .............................................................................................. 33

Audit of subsidiary's financial statements ....................................... 34

Division 5--Audit committee for Commonwealth entities

Audit committee for Commonwealth entities .................................. 35

Division 6--Annual report for Commonwealth entities

Annual report for Commonwealth entities ....................................... 36

Division 7--Whole-of-government financial reporting

Monthly financial reports ................................................................. 37

Annual consolidated financial statements ........................................ 37

Audit of annual consolidated financial statements ........................... 37

Part 2-4--Use and management of public resources

Division 1--Guide to this Part

Guide to this Part ............................................................................. 39

Division 2--Funding and expenditure

Making amounts appropriated available to Commonwealth

entities .............................................................................................. 41

Commitment and expenditure of relevant money ............................ 41

Division 3--Banking

Banking by the Commonwealth ....................................................... 42

Banking by corporate Commonwealth entities ................................ 42

Banking of relevant money by Ministers and officials .................... 42

Division 4--Borrowing

Borrowing by the Commonwealth ................................................... 43

Borrowing by corporate Commonwealth entities ............................ 43

Division 5--Investment

Investment by the Commonwealth .................................................. 44

Public Governance, Performance and Accountability Bill 2013 No. , 2013 iv

Investment by corporate Commonwealth entities ............................ 45

Division 6--Indemnities, guarantees, warranties and insurance

Indemnities, guarantees or warranties by the Commonwealth ........ 46

Indemnities, guarantees or warranties by corporate

Commonwealth entities ................................................................... 46

Insurance obtained by corporate Commonwealth entities ............... 46

Division 7--Waivers, set-offs and act of grace payments

Waiver of amounts owing to the Commonwealth ............................ 47

Setting off amounts owed to, and by, the Commonwealth .............. 47

Act of grace payments by the Commonwealth ................................ 47

Division 8--Special provisions applying to Ministers and certain

officials

Subdivision A--Gifts of relevant property

Gifts of relevant property ................................................................. 49

Subdivision B--Liability of Ministers and certain officials for

unauthorised gifts and loss

Liability for unauthorised gifts of relevant property ........................ 49

Liability for loss--custody .............................................................. 49

Liability for loss--misconduct ........................................................ 50

Provisions relating to liability of Ministers and officials ................. 51

Division 9--Special provisions applying to Ministers only

Approval of proposed expenditure by a Minister ............................ 52

Minister to inform Parliament of certain events .............................. 52

Part 2-5--Appropriations

Division 1--Guide to this Part

Guide to this Part ............................................................................. 54

Division 2--Appropriations relating to non-corporate

Commonwealth entities and the Commonwealth

Receipts of amounts by non-corporate Commonwealth

entities .............................................................................................. 55

Transfers of functions between non-corporate

Commonwealth entities ................................................................... 55

Notional payments and receipts by non-corporate

Commonwealth entities ................................................................... 57

Repayments by the Commonwealth ................................................ 57

Division 3--Special accounts

Establishment of special accounts by the Finance Minister ............. 58

Disallowance of determinations relating to special accounts ........... 59

v Public Governance, Performance and Accountability Bill 2013 No. , 2013

Special accounts established by other Acts ...................................... 59

Part 2-6--Cooperating with other jurisdictions

Division 1--Guide to this Part

Guide to this Part ............................................................................. 61

Division 2--Cooperating with other jurisdictions

Sharing information with other jurisdictions ................................... 62

Auditing by State and Territory Auditors-General .......................... 62

Part 2-7--Companies, subsidiaries and new corporate

Commonwealth entities

Division 1--Guide to this Part

Guide to this Part ............................................................................. 64

Division 2--Companies and subsidiaries

Subdivision A--The Commonwealth's involvement in companies

The Commonwealth's involvement in companies ........................... 65

Subdivision B--Subsidiaries of corporate Commonwealth entities

Subsidiaries of corporate Commonwealth entities ........................... 65

Division 3--New corporate Commonwealth entities

Establishing new corporate Commonwealth entities ....................... 66

Chapter 3--Commonwealth companies

Part 3-1--General

Division 1--Guide to this Part

Guide to this Part ............................................................................. 68

Division 2--Core provisions for this Chapter

Commonwealth companies .............................................................. 69

Wholly-owned Commonwealth companies ..................................... 70

Division 3--Special requirements for wholly-owned

Commonwealth companies

Duty to keep the responsible Minister and Finance Minister

informed ........................................................................................... 71

Audit committee .............................................................................. 72

Application of government policy ................................................... 72

Part 3-2--Planning and accountability

Division 1--Guide to this Part

Guide to this Part ............................................................................. 73

Public Governance, Performance and Accountability Bill 2013 No. , 2013 vi

Division 2--Planning and budgeting

Corporate plan for Commonwealth companies ................................ 74

Budget estimates for wholly-owned Commonwealth

companies ........................................................................................ 74

Division 3--Reporting and accountability

Annual reports for Commonwealth companies................................ 76

Auditor of Commonwealth companies ............................................ 77

Audit of subsidiary's financial statements ....................................... 77

Chapter 4--Rules and delegations

Part 4-1--The rules

Division 1--Guide to this Part

100

Guide to this Part ............................................................................. 79

Division 2--The rules

101

The rules .......................................................................................... 80

102

Rules relating to the Commonwealth and Commonwealth

entities .............................................................................................. 80

103

Rules relating to the Commonwealth and non-corporate

Commonwealth entities ................................................................... 81

104

Rules modifying the application of this Act .................................... 81

105

Rules in relation to other CRF money ............................................. 82

Part 4-2--Delegations

Division 1--Guide to this Part

106

Guide to this Part ............................................................................. 83

Division 2--Delegations

107

Finance Minister .............................................................................. 84

108

Treasurer .......................................................................................... 85

109

Finance Secretary ............................................................................. 86

110

Accountable authority ...................................................................... 87

Chapter 1 Introduction

Part 1-1 Introduction

Division 1 Preliminary

Section 1

2 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Chapter 1--Introduction

Part 1-1--Introduction

Division 1--Preliminary

1 Short title

This Act may be cited as the Public Governance, Performance and

Accountability Act 2013.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 5

and anything in

this Act not

elsewhere covered

by this table

1 July 2013.

1 July 2013

2. Sections 6 to

110

A single day to be fixed by Proclamation.

However, if the commencement of the

provision(s) is not fixed by Proclamation

before 1 July 2014, the provision(s)

commence on 1 July 2014.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

Chapter 1 Introduction

Part 1-1 Introduction

Division 2 Objects of this Act

Section 5

4 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 2--Objects of this Act

5 Objects of this Act

The objects of this Act are:

(a) to establish a coherent system of governance and

accountability across Commonwealth entities; and

(b) to establish a performance framework across Commonwealth

entities; and

(i) to meet high standards of governance, performance and

accountability; and

(ii) to provide meaningful information to the Parliament and

the public; and

(iii) to use and manage public resources properly; and

(iv) to work cooperatively with others to achieve common

objectives, where practicable; and

(d) to require Commonwealth companies to meet high standards

of accountability.

Introduction Chapter 1

Introduction Part 1-1

Guide to this Act Division 3

Section 6

Public Governance, Performance and Accountability Bill 2013 No. , 2013 5

Division 3--Guide to this Act

6 Guide to this Act

Overview

This Act is mainly about the governance, performance and

accountability of Commonwealth entities.

It is also about:

•

the use and management of public resources by the

Commonwealth and Commonwealth entities; and

•

the accountability of Commonwealth companies.

Many of the terms in this Act are defined. The Dictionary in

section 8 contains a list of every term that is defined in this Act.

Chapter 2--Commonwealth entities and the Commonwealth

Part 2-1--Core provisions for Chapter 2

Part 2-1 has the core provisions for Chapter 2 (which is mainly

about Commonwealth entities but does have some provisions

relating to the Commonwealth specifically). It:

•

defines what a Commonwealth entity is (see section 10); and

•

defines what the 2 types of Commonwealth entities--

corporate Commonwealth entities and non-corporate

Commonwealth entities--are (see section 11); and

•

defines who the accountable authority of the entity is (see

section 12); and

• defines who the officials of the entity are (see section 13).

Part 2-2--Accountable authorities and officials

Chapter 1 Introduction

Part 1-1 Introduction

Division 3 Guide to this Act

Section 6

6 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Part 2-2 is about the accountable authorities and officials of

Commonwealth entities. It mainly deals with the general duties that

are imposed on accountable authorities and officials.

Part 2-3--Planning, performance and accountability

Part 2-3 is about planning by, and performance and accountability

of, Commonwealth entities. It requires the accountable authority of

a Commonwealth entity:

•

to prepare a corporate plan, and budget estimates, for the

entity; and

•

to measure and assess the performance of the entity, and

prepare annual performance statements for the entity; and

•

to prepare annual financial statements for the entity; and

•

to prepare an annual report for the entity.

It also requires the Finance Minister to publish monthly financial

reports and table annual consolidated statements in the Parliament.

Part 2-4--Use and management of public resources

Part 2-4 is about the use and management of public resources by

the Commonwealth and Commonwealth entities. It deals with:

•

banking, borrowing, investments, indemnities, guarantees and

warranties by the Commonwealth and corporate

Commonwealth entities, and insurance obtained by corporate

Commonwealth entities; and

•

waivers, set-offs and act of grace payments by the

Commonwealth.

It also has special provisions that apply to Ministers or officials of

non-corporate Commonwealth entities (for example in relation to

making gifts and liability for loss).

Introduction Chapter 1

Introduction Part 1-1

Guide to this Act Division 3

Section 6

Public Governance, Performance and Accountability Bill 2013 No. , 2013 7

Part 2-5--Appropriations

Part 2-5 has some specific provisions relating to appropriations of

the CRF. In particular, it deals with special accounts.

Part 2-6--Cooperating with other jurisdictions

Part 2-6 is about the Commonwealth and Commonwealth entities

cooperating with the States and Territories. It allows the rules to

prescribe situations where the accountable authority of a

Commonwealth entity is required to share information with the

States and Territories. It also prohibits the Commonwealth from

preventing State or Territory Auditors-General from conducting

audits in certain situations.

Part 2-7--Companies, subsidiaries and new corporate

Commonwealth entities

Part 2-7 has provisions relating to the Commonwealth's

involvement in companies, the responsibility of corporate

Commonwealth entities for their subsidiaries, and the creation of

new corporate Commonwealth entities.

Chapter 3--Commonwealth companies

Part 3-1--General

Part 3-1 has the core provisions for Chapter 3 (which is about

Commonwealth companies). It:

•

defines what a Commonwealth company is (see

subsection 89(1)); and

•

defines what a wholly-owned Commonwealth company is (see

section 90).

It also has some requirements that apply to the directors of

wholly-owned Commonwealth companies.

Part 3-2--Planning and accountability

Chapter 1 Introduction

Part 1-1 Introduction

Division 3 Guide to this Act

Section 6

8 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Part 3-2 is about planning by, and the accountability of,

Commonwealth companies. It requires the directors of a

Commonwealth company:

•

to prepare a corporate plan and, in the case of a wholly-owned

Commonwealth company, budget estimates for the company;

and

•

to prepare an annual report for the company.

Chapter 4--Rules and delegations

Part 4-1--The rules

Part 4-1 is about the rules. It provides the general power to make

the rules and provides additional matters in relation to which rules

can be made.

Part 4-2--Delegations

Part 4-2 is about delegations. It sets out when the Finance Minister,

the Treasurer, the Finance Secretary and the accountable authority

of a non-corporate Commonwealth entity may delegate a power,

function or duty under this Act or the rules.

Introduction Chapter 1

Definitions Part 1-2

Guide to this Part Division 1

Section 7

Public Governance, Performance and Accountability Bill 2013 No. , 2013 9

Part 1-2--Definitions

Division 1--Guide to this Part

7 Guide to this Part

This Part is about the terms that are defined in this Act.

Division 2 has the Dictionary (see section 8). The Dictionary is a

list of every term that is defined in this Act. A term will either be

defined in the Dictionary itself, or in another provision of this Act.

If another provision defines the term, the Dictionary will have a

signpost to that definition.

Chapter 1 Introduction

Part 1-2 Definitions

Division 2 The Dictionary

Section 8

10 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 2--The Dictionary

8 The Dictionary

In this Act:

accountable authority: see subsection 12(2).

accounting standards means the accounting standards issued by

the Australian Accounting Standards Board, as in force or

applicable from time to time.

Agency Head has the meaning given by section 7 of the Public

Service Act 1999.

arrangement: see subsection 23(2).

authorised investment: see subsection 58(8).

bank means:

(a) an authorised deposit-taking institution (within the meaning

of the Banking Act 1959); or

(b) the Reserve Bank of Australia; or

Australia.

Commonwealth company: see subsection 89(1).

Commonwealth entity: see subsections 10(1) and (2).

corporate Commonwealth entity: see paragraph 11(a).

Corporations Act company means a body corporate that is

incorporated, or taken to be incorporated, under the Corporations

Act 2001.

CRF (short for Consolidated Revenue Fund) means the

Consolidated Revenue Fund referred to in section 81 of the

Constitution.

Department of State:

Introduction Chapter 1

Definitions Part 1-2

The Dictionary Division 2

Section 8

Public Governance, Performance and Accountability Bill 2013 No. , 2013 11

(a) includes any body (except a body corporate), organisation or

group of persons that is prescribed by the rules in relation to

a specified Department of State (within the ordinary meaning

of the expression); and

(b) excludes any part of a Department of State (within the

ordinary meaning of the expression) that is a listed entity.

director of a Commonwealth company has the meaning given by

the Corporations Act 2001.

eligible delegate: see subsection 108(2).

enabling legislation for a Commonwealth entity that is established

by or under an Act or legislative instrument means that Act or

legislative instrument.

finance law means:

(a) this Act; or

(b) the rules; or

(d) an Appropriation Act.

Finance Minister means the Minister who administers this Act.

Finance Secretary means the Secretary of the Department.

Future Fund Board of Guardians means the Future Fund Board

of Guardians established by section 34 of the Future Fund Act

2006.

governing body of a corporate Commonwealth entity means:

(a) for a corporate Commonwealth entity that has a board,

council or other governing body--that board, council or

governing body; and

(b) otherwise--all of the members of the entity.

government business enterprise means a Commonwealth entity or

Commonwealth company that is prescribed by the rules.

government policy order: see subsections 22(1) and 93(1).

Chapter 1 Introduction

Part 1-2 Definitions

Division 2 The Dictionary

Section 8

12 Public Governance, Performance and Accountability Bill 2013 No. , 2013

intelligence or security agency has the same meaning as in

section 85ZL of the Crimes Act 1914.

listed entity means any of the following that is prescribed by the

rules:

(a) any body (except a body corporate), person, group of persons

or organisation;

(b) any combination of bodies (except bodies corporate),

persons, groups of persons or organisations;

whether or not part of a Department of State.

listed law enforcement agency means a law enforcement agency

(within the meaning of section 85ZL of the Crimes Act 1914) that

is prescribed by the rules.

Minister includes a Presiding Officer.

money includes cheques and similar instruments.

non-corporate Commonwealth entity: see paragraph 11(b).

official: see subsections 13(2) and (3).

other CRF money: see subsection 105(2).

Parliamentary Department means a Department of the Parliament

established under the Parliamentary Service Act 1999.

Presiding Officer means the President of the Senate or the Speaker

of the House of Representatives.

proper, when used in relation to the use or management of public

resources, means efficient, effective, economical and ethical.

public resources means relevant money, relevant property, or

appropriations.

purposes of a Commonwealth entity or Commonwealth company

includes the objectives, functions or role of the entity or company.

relevant body: see subsection 72(2).

relevant company: see subsection 85(2).

Introduction Chapter 1

Definitions Part 1-2

The Dictionary Division 2

Section 8

Public Governance, Performance and Accountability Bill 2013 No. , 2013 13

relevant money means:

(a) money standing to the credit of any bank account of the

Commonwealth or a corporate Commonwealth entity; or

(b) money that is held by the Commonwealth or a corporate

Commonwealth entity.

relevant property means:

(a) property (other than relevant money) that is owned or held by

the Commonwealth or a corporate Commonwealth entity; or

(b) any other thing prescribed by the rules.

reporting period for a Commonwealth entity, a Commonwealth

company, or a subsidiary of a Commonwealth entity or

Commonwealth company, means:

(a) the period of 12 months commencing on 1 July; or

(b) any other period prescribed by the rules for the entity,

company or subsidiary.

responsible Minister for a Commonwealth entity or

Commonwealth company means the Minister who is responsible

for the entity or company, unless otherwise prescribed by the rules.

rules means the rules made under section 101.

special account means:

(a) a special account that is established by the Finance Minister

under section 78; or

(b) a special account that is established by any other Act.

spending limit provision: see subsection 59(3).

subsidiary of a corporate Commonwealth entity or a

Commonwealth company means an entity that is controlled by the

corporate Commonwealth entity 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 Act 2001.

wholly-owned Commonwealth company: see section 90.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-1 Core provisions for this Chapter

Division 1 Guide to this Part

Section 9

14 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Chapter 2--Commonwealth entities and the

Commonwealth

Part 2-1--Core provisions for this Chapter

Division 1--Guide to this Part

9 Guide to this Part

This Part has the core provisions for this Chapter, which is mainly

about Commonwealth entities.

It:

•

defines what a Commonwealth entity is (see section 10); and

•

defines what the 2 types of Commonwealth entities--

corporate Commonwealth entities and non-corporate

Commonwealth entities--are (see section 11); and

•

defines who the accountable authority of the entity is (see

section 12); and

•

defines who the officials of the entity are (see section 13).

Commonwealth entities and the Commonwealth Chapter 2

Core provisions for this Chapter Part 2-1

Core provisions for this Chapter Division 2

Section 10

Public Governance, Performance and Accountability Bill 2013 No. , 2013 15

Division 2--Core provisions for this Chapter

10 Commonwealth entities

(1) A Commonwealth entity is:

(a) a Department of State; or

(b) a Parliamentary Department; or

(d) a body corporate established by a law of the Commonwealth.

Note:

Paragraph (d) does not cover bodies corporate, such as

Commonwealth companies, that are established under, but not by, a

law of the Commonwealth.

(2) However, the High Court and the Future Fund Board of Guardians

are not Commonwealth entities.

11 Types of Commonwealth entities

There are 2 types of Commonwealth entities:

(a) a corporate Commonwealth entity, which is a

Commonwealth entity that is a body corporate; and

(b) a non-corporate Commonwealth entity, which is a

Commonwealth entity that is not a body corporate.

Note:

Corporate Commonwealth entities are legally separate from the

Commonwealth, whereas non-corporate Commonwealth entities are

part of the Commonwealth.

12 Accountable authorities

(1) Each Commonwealth entity has an accountable authority.

(2) The following table sets out the person or body that is the

accountable authority of a Commonwealth entity:

Accountable authorities

Item

If the Commonwealth entity

is:

then the accountable authority of the

entity is:

a Department of State

the Secretary of the Department.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-1 Core provisions for this Chapter

Division 2 Core provisions for this Chapter

Section 13

16 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Accountable authorities

Item

If the Commonwealth entity

is:

then the accountable authority of the

entity is:

a Parliamentary Department

the Secretary of the Department.

a listed entity

the person or group of persons prescribed

by the rules as the accountable authority

of the entity.

a body corporate established by

a law of the Commonwealth

the governing body of the entity, unless

otherwise prescribed by the rules.

13 Officials

(1) Each Commonwealth entity has officials.

(2) An official of a Commonwealth entity is an individual who is in, or

forms part of, the entity.

(3) Without limiting subsection (2), an official:

(a) includes an individual who:

(i) is, or is a member of, the accountable authority of the

entity; or

(ii) is an officer, employee or member of the entity; or

(iii) is an individual, or an individual in a class, prescribed

by the rules; and

(b) does not include an individual who:

(i) is a Minister; or

(ii) is a judge; or

(iii) is a consultant or independent contractor of the entity

(other than a consultant or independent contractor of a

kind prescribed by the rules for the purposes of

subparagraph (a)(iii)); or

(iv) is an individual, or an individual in a class, prescribed

by the rules.

Commonwealth entities and the Commonwealth Chapter 2

Accountable authorities and officials Part 2-2

Guide to this Part Division 1

Section 14

Public Governance, Performance and Accountability Bill 2013 No. , 2013 17

Part 2-2--Accountable authorities and officials

Division 1--Guide to this Part

14 Guide to this Part

This Part is about the accountable authorities and officials of

Commonwealth entities.

Division 2 is about accountable authorities.

•

Subdivision A has the general duties that apply to all

accountable authorities.

•

Subdivision B allows the rules to prescribe matters relating to

discharging those general duties.

•

Subdivision C deals with the application of government policy

to Commonwealth entities. Different requirements apply to

accountable authorities, depending on whether the entity is a

non-corporate Commonwealth entity (see section 21) or a

corporate Commonwealth entity (see section 22).

•

Subdivision D confers certain powers on accountable

authorities of non-corporate Commonwealth entities.

Division 3 is about officials.

•

Subdivision A has the general duties that apply to all officials.

•

Subdivision B has provisions that relate to those general

duties.

•

Subdivision C deals with the application of the Public Service

Act to officials to whom that Act applies.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-2 Accountable authorities and officials

Division 2 Accountable authorities

Section 15

18 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 2--Accountable authorities

Subdivision A--General duties of accountable authorities

15 Duty to govern the Commonwealth entity

(1) The accountable authority of a Commonwealth entity must govern

the entity in a way that:

(a) promotes the proper use and management of public resources

for which the authority is responsible; and

(b) promotes the achievement of the purposes of the entity; and

Note:

Section 21 (which is about the application of government policy)

affects how this duty applies to accountable authorities of

non-corporate Commonwealth entities.

(2) In making decisions for the purposes of subsection (1), the

accountable authority must take into account the effect of those

decisions on public resources generally.

16 Duty to establish and maintain systems relating to risk and

control

The accountable authority of a Commonwealth entity must

establish and maintain:

(a) an appropriate system of risk oversight and management for

the entity; and

(b) an appropriate system of internal control for the entity;

including by implementing measures directed at ensuring officials

of the entity comply with the finance law.

Note 1:

An example of a measure directed at ensuring officials of the entity

comply with the finance law is a measure:

(a) requiring, as a condition of employment of an official of the

entity, that the official complies with the finance law; and

(b) specifying sanctions (such as termination) that apply to the

official for contravening that condition.

Such a measure would not be needed for officials to whom the Public

Service Act 1999 applies because, under that Act, sanctions may be

Commonwealth entities and the Commonwealth Chapter 2

Accountable authorities and officials Part 2-2

Accountable authorities Division 2

Section 17

Public Governance, Performance and Accountability Bill 2013 No. , 2013 19

imposed on those officials for contravening the finance law: see

section 32 of this Act.

Note 2:

This duty includes managing consultants and independent contractors

who work for the entity, even if they are not officials of the entity.

17 Duty to encourage cooperation with others

The accountable authority of a Commonwealth entity must

encourage officials of the entity to cooperate with others to achieve

common objectives, where practicable.

18 Duty in relation to requirements imposed on others

When imposing requirements on others in relation to the use or

management of public resources for which the accountable

authority of a Commonwealth entity is responsible, the accountable

authority must take into account:

(a) the risks associated with that use or management; and

(b) the effects of imposing those requirements.

19 Duty to keep responsible Minister and Finance Minister

informed

(1) The accountable authority of a Commonwealth entity must do the

following:

(a) keep the responsible Minister informed of the activities of the

entity and any subsidiaries of the entity;

(b) give the responsible Minister or the Finance Minister any

reports, documents and information in relation to those

activities as that Minister requires;

the accountable authority makes a significant decision in

relation to the entity or any of its subsidiaries;

(d) give the responsible Minister reasonable notice if the

accountable authority becomes aware of any significant issue

that may affect the entity or any of its subsidiaries;

(e) notify the responsible Minister as soon as practicable after

the accountable authority becomes aware of any significant

issue that has affected the entity or any of its subsidiaries.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-2 Accountable authorities and officials

Division 2 Accountable authorities

Section 20

20 Public Governance, Performance and Accountability Bill 2013 No. , 2013

(2) However, for a Commonwealth entity that is a court or tribunal,

subsection (1) applies only to activities, reports, documents,

information or notifications about matters of an administrative

nature.

(3) Without limiting subsection (1), the rules may prescribe matters to

be taken into account in deciding whether a decision or issue is

significant.

(4) The accountable authority must comply with a requirement under

paragraph (1)(b) within the time limits set by the Minister

concerned.

(5) This section does not limit any other power that a Minister has to

require information from a Commonwealth entity.

Subdivision B--Rules about general duties of accountable

authorities

20 Rules about general duties of accountable authorities

The rules may prescribe matters relating to discharging duties

under Subdivision A.

Subdivision C--Application of government policy

21 Non-corporate Commonwealth entities

The accountable authority of a non-corporate Commonwealth

entity must govern the entity in accordance with

paragraph 15(1)(a) in a way that is not inconsistent with the

policies of the Australian Government.

Note:

Paragraph 15(1)(a) is about promoting the proper use and management

of public resources for which the accountable authority is responsible.

22 Corporate Commonwealth entities

(1) The Finance Minister may make an order (a government policy

order) that specifies a policy of the Australian Government that is

to apply in relation to one or more corporate Commonwealth

entities.

Commonwealth entities and the Commonwealth Chapter 2

Accountable authorities and officials Part 2-2

Accountable authorities Division 2

Section 23

Public Governance, Performance and Accountability Bill 2013 No. , 2013 21

(2) Before making a government policy order that applies in relation to

a corporate Commonwealth entity, the Finance Minister must be

satisfied that the Minister responsible for the policy has consulted

the entity on the application of the policy.

(3) If a government policy order applies in relation to a corporate

Commonwealth entity, the accountable authority of the entity must

ensure that the order is complied with:

(a) in relation to the entity; and

(b) in relation to any subsidiary of the entity, so far as

practicable.

(4) A government policy order is a legislative instrument, but

section 42 (disallowance) of the Legislative Instruments Act 2003

does not apply to it.

Subdivision D--Special provisions applying to accountable

authorities of non-corporate Commonwealth entities

23 Power in relation to arrangements

(1) The accountable authority of a non-corporate Commonwealth

entity may, on behalf of the Commonwealth:

(a) enter into arrangements relating to the affairs of the entity;

and

(b) vary and administer those arrangements.

(2) An arrangement includes a contract, agreement, deed or

understanding.

24 Power to establish advisory boards

(1) The accountable authority of a non-corporate Commonwealth

entity may establish an advisory board to assist the authority in

governing the entity.

(2) An advisory board for a non-corporate Commonwealth entity may

include individuals who are not officials of the entity.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-2 Accountable authorities and officials

Division 3 Officials

Section 25

22 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 3--Officials

Subdivision A--General duties of officials

25 Duty of care and diligence

(1) An official of a Commonwealth entity must exercise his or her

powers, perform his or her functions and discharge his or her duties

with the degree of care and diligence that a reasonable person

would exercise if the person:

(a) were an official of a Commonwealth entity in the

Commonwealth entity's circumstances; and

(b) occupied the position held by, and had the same

responsibilities within the Commonwealth entity as, the

official.

(2) The rules may prescribe circumstances in which the requirements

of subsection (1) are taken to be met.

26 Duty to act in good faith and for proper purpose

An official of a Commonwealth entity must exercise his or her

powers, perform his or her functions and discharge his or her duties

in good faith and for a proper purpose.

27 Duty in relation to use of position

An official of a Commonwealth entity must not improperly use his

or her position to:

(a) gain an advantage for himself or herself or any other person;

(b) cause detriment to the entity, the Commonwealth or any

other person.

28 Duty in relation to use of information

A person who obtains information because they are an official of a

Commonwealth entity must not improperly use the information to:

Commonwealth entities and the Commonwealth Chapter 2

Accountable authorities and officials Part 2-2

Officials Division 3

Section 29

Public Governance, Performance and Accountability Bill 2013 No. , 2013 23

(a) gain an advantage for himself or herself or any other person;

(b) cause detriment to the Commonwealth entity, the

Commonwealth or any other person.

29 Duty to disclose interests

(1) An official of a Commonwealth entity who has a material personal

interest that relates to the affairs of the entity must disclose details

of the interest.

(2) The rules may do the following:

(a) prescribe circumstances in which subsection (1) does not

apply;

(b) prescribe how and when an interest must be disclosed;

example, that the official must not participate at a meeting

about a matter or vote on the matter).

Subdivision B--Provisions relating to general duties of officials

30 Termination of appointment for contravening general duties of

officials

(1) A person (the appointer) may terminate the appointment of another

person (the appointee) in relation to a corporate Commonwealth

entity if:

(a) the appointer holds the position that is responsible for

appointing the appointee; and

(b) the appointee is, or is a member of, the accountable authority

of the entity; and

entity; and

(d) the termination is in accordance with any requirements

prescribed by the rules.

(2) The appointer terminates the appointment by giving the appointee

a written notice signed by the appointer.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-2 Accountable authorities and officials

Division 3 Officials

Section 31

24 Public Governance, Performance and Accountability Bill 2013 No. , 2013

(3) The notice must include a statement of reasons for the termination.

(4) The appointer must cause a copy of the notice to be tabled before

each House of the Parliament within 15 sitting days of that House

after the day the appointer gives the notice to the appointee.

(5) Without limiting paragraph (1)(d), the rules may prescribe

positions in relation to which appointments must not be terminated

under this section.

(6) This section applies despite any provision in any enabling

legislation for a corporate Commonwealth entity that provides for

the termination of the appointment of a person in relation to the

entity, but does not limit any such provision.

31 Interaction between Subdivision A and other laws

Subdivision A does not limit:

(a) a law of the Commonwealth, or any principles or rules of the

common law or equity relating to:

(i) the duty or liability of a person because of his or her

position or employment in relation to a Commonwealth

entity; or

(ii) conflicts of interest; and

(b) any provision in any enabling legislation for a

Commonwealth entity that restricts an official of the entity

from:

(i) having a material personal interest in a matter; or

(ii) holding an office or possessing property;

involving duties or interests that conflict with his or her

duties or interests as an official.

Subdivision C--Officials to whom the Public Service Act

applies

32 Officials to whom the Public Service Act applies

To avoid doubt, the finance law is an Australian law for the

purposes of subsection 13(4) of the Public Service Act 1999.

Commonwealth entities and the Commonwealth Chapter 2

Accountable authorities and officials Part 2-2

Officials Division 3

Section 32

Public Governance, Performance and Accountability Bill 2013 No. , 2013 25

Note 1:

If the Public Service Act 1999 applies to an official of a

Commonwealth entity, the official will be required under

subsection 13(4) of that Act to comply with applicable Australian laws

(which include the finance law). This means that if the official

contravenes the finance law, sanctions (such as termination of

employment) may be imposed on the official under section 15 of that

Act.

Note 2:

For dealing with a contravention of the finance law by an official of a

Commonwealth entity to whom the Public Service Act 1999 does not

apply, see section 16 (which requires the accountable authority of the

entity to implement measures directed at ensuring officials of the

entity comply with the finance law).

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-3 Planning, performance and accountability

Division 1 Guide to this Part

Section 33

26 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Part 2-3--Planning, performance and

accountability

Division 1--Guide to this Part

33 Guide to this Part

This Part is about planning by, and performance and accountability

of, Commonwealth entities.

Division 2 is about planning and budgeting. It requires the

accountable authority of a Commonwealth entity to prepare a

corporate plan, and budget estimates, for the entity.

Division 3 is about the performance of Commonwealth entities. It

requires the accountable authority of a Commonwealth entity:

•

to cause records to be kept about the entity's performance; and

•

to measure and assess the entity's performance; and

•

to prepare annual performance statements about the entity's

performance for inclusion in the entity's annual report.

Division 4 is about financial reporting and auditing for

Commonwealth entities. It requires the accountable authority of a

Commonwealth entity:

•

to cause accounts and records to be kept about the entity's

transactions and financial position; and

•

to prepare annual financial statements for the entity for

inclusion in the entity's annual report.

It also requires the Auditor-General to audit those annual financial

statements.

Commonwealth entities and the Commonwealth Chapter 2

Planning, performance and accountability Part 2-3

Guide to this Part Division 1

Section 33

Public Governance, Performance and Accountability Bill 2013 No. , 2013 27

Division 5 requires the accountable authority of a Commonwealth

entity to ensure that the entity has an audit committee.

Division 6 requires the accountable authority of a Commonwealth

entity to prepare annual reports for the entity.

Division 7 is about whole-of-government reporting by the Finance

Minister. It requires the Finance Minister to publish monthly

financial reports and table annual consolidated statements in the

Parliament. It also requires the Auditor-General to audit those

annual consolidated statements.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-3 Planning, performance and accountability

Division 2 Planning and budgeting

Section 34

28 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 2--Planning and budgeting

34 Key priorities and objectives of the Australian Government

The Australian Government may, from time to time, publish a

statement setting out its key priorities and objectives.

35 Corporate plan for Commonwealth entities

Commonwealth entities

(1) The accountable authority of a Commonwealth entity must:

(a) prepare a corporate plan for the entity; and

(b) give the corporate plan to the responsible Minister and the

Finance Minister in accordance with any requirements

prescribed by the rules.

(2) The corporate plan must comply with, and be published in

accordance with, any requirements prescribed by the rules.

(3) If:

(a) a statement of the Australian Government's key priorities and

objectives is published under section 34; and

(b) the purposes of the Commonwealth entity relate to those

priorities and objectives;

then the corporate plan must set out how the activities of the entity

will contribute to achieving those priorities and objectives.

(4) However, if the Commonwealth entity has enabling legislation,

then subsection (3) applies only to the extent that compliance with

that subsection is not inconsistent with compliance with that

legislation.

Subsidiaries

(5) If the Commonwealth entity has subsidiaries, the corporate plan

must cover both the entity and its subsidiaries. In particular, for

each subsidiary the corporate plan must include details of any

matters prescribed by the rules, so far as they are applicable.

Commonwealth entities and the Commonwealth Chapter 2

Planning, performance and accountability Part 2-3

Planning and budgeting Division 2

Section 36

Public Governance, Performance and Accountability Bill 2013 No. , 2013 29

36 Budget estimates for Commonwealth entities

(1) The accountable authority of a Commonwealth entity must:

(a) prepare the budget estimates covering the entity's activities

for each reporting period for the entity, and for any other

periods directed by the Finance Minister; and

(b) give the budget estimates to the Finance Secretary in

accordance with any directions under subsection (3).

(2) The budget estimates must:

(a) fairly present the estimated financial impacts of the entity's

activities for the reporting period or other period; and

(b) comply with any directions under subsection (3); and

estimates for the entity that is required by any direction under

subsection (3).

(3) The Finance Secretary may give written directions to the

accountable authority of a Commonwealth entity for the purposes

referred to in paragraph (1)(b) or subsection (2).

(4) A direction made under subsection (3) is not a legislative

instrument.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-3 Planning, performance and accountability

Division 3 Performance of Commonwealth entities

Section 37

30 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 3--Performance of Commonwealth entities

37 Records about performance of Commonwealth entities

(1) The accountable authority of a Commonwealth entity must cause

records to be kept that properly record and explain the entity's

performance in achieving its purposes.

(2) The accountable authority must ensure that the records are kept in

a way that:

(a) complies with any requirements prescribed by the rules; and

(b) enables the preparation of the annual performance statements

required by section 39.

(3) The responsible Minister and the Finance Minister are entitled to

full and free access to the records kept under this section.

However, those Ministers' access is subject to any Commonwealth

law that prohibits disclosure of particular information.

38 Measuring and assessing performance of Commonwealth entities

(1) The accountable authority of a Commonwealth entity must

measure and assess the performance of the entity in achieving its

purposes.

(2) The measurement and assessment must comply with any

requirements prescribed by the rules.

39 Annual performance statements for Commonwealth entities

(1) The accountable authority of a Commonwealth entity must:

(a) prepare annual performance statements for the entity as soon

as practicable after the end of each reporting period for the

entity; and

(b) include a copy of the annual performance statements in the

entity's annual report that is tabled in the Parliament.

Note:

See section 46 for the annual report.

(2) The annual performance statements must:

Commonwealth entities and the Commonwealth Chapter 2

Planning, performance and accountability Part 2-3

Performance of Commonwealth entities Division 3

Section 40

Public Governance, Performance and Accountability Bill 2013 No. , 2013 31

(a) provide information about the entity's performance in

achieving its purposes; and

(b) comply with any requirements prescribed by the rules.

40 Audit of annual performance statements for Commonwealth

entities

(1) The responsible Minister for a Commonwealth entity or the

Finance Minister (the requesting Minister) may request the

Auditor-General to examine and report on the entity's annual

performance statements.

(2) If, under a request under subsection (1), the Auditor-General

examines and reports on the entity's annual performance

statements, the Auditor-General must give a copy of the report to

the requesting Minister.

(3) The requesting Minister must cause a copy of the

Auditor-General's report to be tabled in each House of the

Parliament as soon as practicable after receipt. The copy that is

tabled must be accompanied by a copy of the entity's annual

performance statements.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-3 Planning, performance and accountability

Division 4 Financial reporting and auditing for Commonwealth entities

Section 41

32 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 4--Financial reporting and auditing for

Commonwealth entities

41 Accounts and records for Commonwealth entities

(1) The accountable authority of a Commonwealth entity must cause

accounts and records to be kept that properly record and explain

the entity's transactions and financial position.

(2) The accountable authority must ensure that the accounts and

records are kept in a way that:

(a) complies with any requirements prescribed by the rules; and

(b) enables the preparation of the annual financial statements

required by sections 42 and 48; and

properly audited in accordance with this Act.

Note:

The Auditor-General audits the financial statements of

Commonwealth entities (see section 43).

(3) The Finance Minister is entitled to full and free access to the

accounts and records kept under this section. However, the Finance

Minister's access is subject to any Commonwealth law that

prohibits disclosure of particular information.

42 Annual financial statements for Commonwealth entities

(1) The accountable authority of a Commonwealth entity must:

(a) prepare annual financial statements for the entity as soon as

practicable after the end of each reporting period for the

entity; and

(b) give the statements to the Auditor-General as soon as

practicable after they are prepared.

(2) The annual financial statements must:

(a) comply with the accounting standards and any other

requirements prescribed by the rules; and

(b) present fairly the entity's financial position, financial

performance and cash flows.

Commonwealth entities and the Commonwealth Chapter 2

Planning, performance and accountability Part 2-3

Financial reporting and auditing for Commonwealth entities Division 4

Section 43

Public Governance, Performance and Accountability Bill 2013 No. , 2013 33

Note:

If financial statements for a Commonwealth entity prepared in

accordance with the accounting standards would not present fairly the

entity's financial position, financial performance and cash flows, the

accountable authority of the entity must add the information and

explanations required to present fairly those matters.

(3) In the annual financial statements, the accountable authority must

state whether, in the authority's opinion, the statements comply

with subsection (2).

(4) If the Commonwealth entity is a government business enterprise,

the accountable authority must state whether, in the authority's

opinion, there are reasonable grounds to believe, when the

statement is made, that the entity will be able to pay its debts as

and when they fall due.

43 Audit of annual financial statements for Commonwealth entities

(1) As soon as practicable after receiving annual financial statements

under section 42 for a Commonwealth entity, the Auditor-General

must:

(a) examine the statements and prepare an audit report; and

(b) give the report to the entity's responsible Minister as soon as

practicable after it is prepared.

(2) In the audit report, the Auditor-General must state whether, in the

Auditor-General's opinion, the annual financial statements:

(a) comply with the accounting standards and any other

requirements prescribed by the rules; and

(b) present fairly the entity's financial position, financial

performance and cash flows.

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 a failure of the annual

financial statements to comply with:

(a) the accounting standards; or

(b) any other requirements prescribed by the rules;

has a quantifiable financial effect, then the Auditor-General must

quantify that financial effect and state the amount, where

practicable.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-3 Planning, performance and accountability

Division 4 Financial reporting and auditing for Commonwealth entities

Section 44

34 Public Governance, Performance and Accountability Bill 2013 No. , 2013

(4) A copy of the annual financial statements and the

Auditor-General's report must be included in the Commonwealth

entity's annual report that is tabled in the Parliament.

Note:

See section 46 for the annual report.

44 Audit of subsidiary's financial statements

(1) This section applies in relation to a Commonwealth entity that has

a subsidiary at the end of the subsidiary's reporting period.

(2) The accountable authority of the Commonwealth entity must

ensure that all the subsidiary's financial statements for a reporting

period of the subsidiary are audited.

(3) The subsidiary's financial statements must be audited by the

Auditor-General unless:

(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.

Note:

If the Auditor-General is not the subsidiary's auditor, this subsection

requires the Auditor-General to do an audit of the statements in

addition to that done by the subsidiary's auditor, except in the

circumstances referred to in paragraphs (3)(a) and (b).

(4) For a subsidiary that is a Corporations Act company that, under the

Corporations Act 2001, 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 Act 2001. Those rules must also be used for other

subsidiaries, so far as is practicable.

(5) The accountable authority of the Commonwealth entity must give

the report of the auditor to the responsible Minister (whether or not

the auditor is the Auditor-General), together with a copy of the

subsidiary's financial statements.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-3 Planning, performance and accountability

Division 6 Annual report for Commonwealth entities

Section 46

36 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 6--Annual report for Commonwealth entities

46 Annual report for Commonwealth entities

(1) After the end of each reporting period for a Commonwealth entity,

the accountable authority of the entity must give an annual report

to the entity's responsible Minister, for presentation to the

Parliament, on the entity's activities during the period.

Note:

A Commonwealth entity's annual report must include the entity's

annual performance statements and annual financial statements (see

paragraph 39(1)(b) and subsection 43(4)).

(2) The annual report must be given to the responsible Minister by:

(a) the last day of the fourth month after the end of the reporting

period for the entity; or

(b) the end of any further period granted under

subsection 34C(5) of the Acts Interpretation Act 1901.

(3) The annual report must comply with any requirements prescribed

by the rules.

(4) Before rules are made for the purposes of subsection (3), the rules

must be approved on behalf of the Parliament by the Joint

Committee of Public Accounts and Audit.

Commonwealth entities and the Commonwealth Chapter 2

Planning, performance and accountability Part 2-3

Whole-of-government financial reporting Division 7

Section 47

Public Governance, Performance and Accountability Bill 2013 No. , 2013 37

Division 7--Whole-of-government financial reporting

47 Monthly financial reports

(1) As soon as practicable after the end of each month of a financial

year, the Finance Minister must publish monthly financial reports

in relation to that month.

(2) The monthly financial reports:

(a) must be in a form that is consistent with the budget estimates

for the financial year; and

(b) may include any additional information that the Finance

Minister considers relevant.

48 Annual consolidated financial statements

(1) The Finance Minister must:

(a) prepare annual consolidated financial statements as soon as

practicable after the end of each financial year; and

(b) give the statements to the Auditor-General as soon as

practicable after they are prepared.

(2) The annual consolidated financial statements must:

(a) comply with the accounting standards and any other

requirements prescribed by the rules; and

(b) present fairly the consolidated financial position, financial

performance and cash flows.

(3) If the Finance Minister has not given the annual consolidated

financial 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.

49 Audit of annual consolidated financial statements

(1) As soon as practicable after receiving the annual consolidated

financial statements under section 48, the Auditor-General must:

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-3 Planning, performance and accountability

Division 7 Whole-of-government financial reporting

Section 49

38 Public Governance, Performance and Accountability Bill 2013 No. , 2013

(a) examine the statements and prepare an audit report; and

(b) give a copy of the report to the Finance Minister as soon as

practicable after it is prepared.

(2) In the audit report, the Auditor-General must state whether, in the

Auditor-General's opinion, the annual consolidated financial

statements:

(a) comply with the accounting standards and any other

requirements prescribed by the rules; and

(b) present fairly the consolidated financial position, financial

performance and cash flows.

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 a failure of the annual

consolidated financial statements to comply with:

(a) the accounting standards; or

(b) any other requirements prescribed by the rules;

has a quantifiable financial effect, then the Auditor-General must

quantify that financial effect and state the amount, where

practicable.

(4) The Finance Minister must cause a copy of the audit report to be

tabled in each House of the Parliament as soon as practicable after

receipt. The copy that is tabled must be accompanied by a copy of

the annual consolidated financial statements.

Commonwealth entities and the Commonwealth Chapter 2

Use and management of public resources Part 2-4

Guide to this Part Division 1

Section 50

Public Governance, Performance and Accountability Bill 2013 No. , 2013 39

Part 2-4--Use and management of public resources

Division 1--Guide to this Part

50 Guide to this Part

This Part is about the use and management of public resources by

the Commonwealth and Commonwealth entities.

Many of the provisions in this Part apply to either the

Commonwealth or corporate Commonwealth entities, and do not

expressly refer to non-corporate Commonwealth entities. This is

because non-corporate Commonwealth entities are legally part of

the Commonwealth. Generally, the Finance Minister has the power

to act on behalf of the Commonwealth for the purposes of the

provisions of this Part.

Division 2 allows the Finance Minister to make available to

Commonwealth entities amounts that have been appropriated by

the Parliament for the entity. It also allows the rules to prescribe

matters relating to the commitment or expenditure of relevant

money by the Commonwealth or Commonwealth entities.

Division 3 is about banking for the Commonwealth and corporate

Commonwealth entities. It also requires Ministers and officials to

bank relevant money that they receive.

Division 4 is about borrowing by the Commonwealth and

corporate Commonwealth entities.

Division 5 is about investment by the Commonwealth and

corporate Commonwealth entities.

Division 6 is about indemnities, guarantees and warranties by the

Commonwealth and corporate Commonwealth entities, and

insurance obtained by corporate Commonwealth entities.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-4 Use and management of public resources

Division 1 Guide to this Part

Section 50

40 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 7 is about the Commonwealth. It deals with the

Commonwealth:

•

waiving amounts owed to it; and

•

setting off amounts owed to, or by, it against another amount

that is owed to, or by, another person; and

•

granting act of grace payments to a person.

Division 8 has special provisions that apply to Ministers and

officials of non-corporate Commonwealth entities.

•

Subdivision A prohibits Ministers and those officials from

making gifts of relevant property unless authorised as

provided in section 66.

•

Subdivision B makes Ministers and those officials liable to

pay an amount to the Commonwealth if they make an

unauthorised gift or are responsible for the loss of relevant

money or relevant property.

Division 9 has requirements that apply to Ministers only.

Section 71 has requirements that apply to a Minister when the

Minister is approving proposed expenditure. Section 72 requires a

Minister who has responsibility for certain events (for example, the

forming of a new company) to inform Parliament of the event.

Commonwealth entities and the Commonwealth Chapter 2

Use and management of public resources Part 2-4

Funding and expenditure Division 2

Section 51

Public Governance, Performance and Accountability Bill 2013 No. , 2013 41

Division 2--Funding and expenditure

51 Making amounts appropriated available to Commonwealth

entities

(1) If an amount is appropriated by the Parliament in relation to a

Commonwealth entity, then the Finance Minister may, on behalf of

the Commonwealth, make the appropriated amount available to the

entity in such instalments, and at such times, as the Finance

Minister considers appropriate.

(2) However, the Finance Minister must make an amount available if:

(a) a law requires the payment of the amount; and

(b) the Finance Minister is satisfied that there is an available

appropriation.

52 Commitment and expenditure of relevant money

The rules may prescribe matters relating to the commitment or

expenditure of relevant money by the Commonwealth or a

Commonwealth entity.

Note:

Rules made for the purposes of this section could prescribe measures

to ensure that, to the greatest extent practicable, relevant money that is

within the CRF is not paid out without an appropriation.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-4 Use and management of public resources

Division 3 Banking

Section 53

42 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 3--Banking

53 Banking by the Commonwealth

(1) The Finance Minister may, on behalf of the Commonwealth, enter

into an agreement with a bank relating to the conduct of the

banking business of the Commonwealth, including in relation to

opening and maintaining bank accounts.

(2) The agreement:

(a) must not provide for overdraft drawings by the

Commonwealth unless it provides for each drawing to be

repaid within 30 days; and

(b) must be in accordance with any requirements prescribed by

the rules.

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.

(3) The Finance Minister must, on behalf of the Commonwealth, open

and maintain a central bank account with the Reserve Bank of

Australia.

(4) The rules may prescribe matters relating to banking by the

Commonwealth.

54 Banking by corporate Commonwealth entities

The rules may prescribe matters relating to banking by corporate

Commonwealth entities.

55 Banking of relevant money by Ministers and officials

A Minister, or an official of a Commonwealth entity, who receives

relevant money (including money that becomes relevant money

upon receipt) must:

(a) cause the money to be banked promptly and in accordance

with any requirements prescribed by the rules; or

(b) otherwise deal with it in accordance with the rules.

Commonwealth entities and the Commonwealth Chapter 2

Use and management of public resources Part 2-4

Borrowing Division 4

Section 56

Public Governance, Performance and Accountability Bill 2013 No. , 2013 43

Division 4--Borrowing

56 Borrowing by the Commonwealth

(1) An agreement for the borrowing of money by the Commonwealth

(including by obtaining an advance on overdraft or obtaining credit

by way of credit card or credit voucher) is of no effect unless the

borrowing is expressly authorised by an Act.

(2) The Finance Minister may, on behalf of the Commonwealth, enter

into an agreement for borrowing money.

(3) The agreement must:

(a) require the amount borrowed to be repaid by the

Commonwealth within 90 days; and

(b) be in accordance with any requirements prescribed by the

rules.

57 Borrowing by corporate Commonwealth entities

An agreement for the borrowing of money by a corporate

Commonwealth entity (including by obtaining an advance on

overdraft or obtaining credit by way of credit card or credit

voucher) is of no effect unless:

(a) borrowing by the entity is expressly authorised by an Act; or

(b) the borrowing is authorised by the Finance Minister in

writing; or

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-4 Use and management of public resources

Division 5 Investment

Section 58

44 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 5--Investment

58 Investment by the Commonwealth

(1) The Finance Minister or the Treasurer may, on behalf of the

Commonwealth, invest in any authorised investment.

(2) For the purposes of investing under this section in securities of the

Commonwealth, the Commonwealth is to be treated as if it were a

separate legal entity to the entity issuing the securities.

(3) An investment under this section must not be inconsistent with the

terms of any trust that applies to the money concerned.

(4) If an amount invested under this section was debited from a special

account, then expenses of the investment may be debited from that

special account.

(5) The proceeds of an investment of an amount debited from a special

account must be credited to the special account.

(6) At any time before an investment matures, the Finance Minister or

Treasurer, as the case requires, may, on behalf of the

Commonwealth, authorise in writing the reinvestment of the

proceeds upon maturity in an authorised investment with the same

entity.

(7) The CRF is appropriated as necessary for the purposes of this

section.

(8) Any of the following are an authorised investment:

(a) in relation to both the Finance Minister and the Treasurer:

(i) securities of, or securities guaranteed by, the

Commonwealth, a State or a Territory; or

(ii) a deposit with a bank, including a deposit evidenced by

a certificate of deposit; or

(iii) any other form of investment prescribed by the rules;

(b) in relation to the Treasurer--debt instruments with an

investment grade credit rating that:

Commonwealth entities and the Commonwealth Chapter 2

Use and management of public resources Part 2-4

Investment Division 5

Section 59

Public Governance, Performance and Accountability Bill 2013 No. , 2013 45

(i) are issued or guaranteed by the government of a foreign

country; or

(ii) are issued or guaranteed by a financial institution whose

members consist of foreign countries (which may also

include Australia); or

(iii) are denominated in Australian currency.

59 Investment by corporate Commonwealth entities

(1) A corporate Commonwealth entity must not invest relevant money

for which the entity is responsible unless:

(a) the money is not immediately required for the purposes of the

entity; and

(b) the money is invested:

(i) on deposit with a bank, including a deposit evidenced

by a certificate of deposit; or

(ii) in securities of, or securities guaranteed by, the

Commonwealth, a State or a Territory; or

(iii) in any other manner approved by the Finance Minister

in writing; or

(iv) for a government business enterprise--in any other

manner that is consistent with sound commercial

practice.

(2) A spending limit provision in the corporate Commonwealth

entity's enabling legislation does not apply to a contract for the

investment of money under subsection (1), unless the provision

expressly states that it applies to such a contract.

(3) A spending limit provision in a corporate Commonwealth entity's

enabling legislation is a provision in that legislation to the effect

that the entity 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.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-4 Use and management of public resources

Division 6 Indemnities, guarantees, warranties and insurance

Section 60

46 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 6--Indemnities, guarantees, warranties and

insurance

60 Indemnities, guarantees or warranties by the Commonwealth

(1) The Finance Minister may, on behalf of the Commonwealth, grant

an indemnity, guarantee or warranty.

(2) The grant of the indemnity, guarantee or warranty must be in

accordance with any requirements prescribed by the rules.

61 Indemnities, guarantees or warranties by corporate

Commonwealth entities

The rules may prescribe requirements relating to the granting of

indemnities, guarantees or warranties by corporate Commonwealth

entities.

62 Insurance obtained by corporate Commonwealth entities

The rules may prescribe requirements relating to the obtaining of

insurance by corporate Commonwealth entities.

Commonwealth entities and the Commonwealth Chapter 2

Use and management of public resources Part 2-4

Waivers, set-offs and act of grace payments Division 7

Section 63

Public Governance, Performance and Accountability Bill 2013 No. , 2013 47

Division 7--Waivers, set-offs and act of grace payments

63 Waiver of amounts owing to the Commonwealth

(1) The Finance Minister may, on behalf of the Commonwealth, waive

an amount owing to the Commonwealth, or otherwise modify the

terms and conditions on which an amount owing to the

Commonwealth is to be paid to the Commonwealth.

(2) The waiver or modification must be in accordance with any

requirements prescribed by the rules.

(3) To avoid doubt, an amount may be owing to the Commonwealth

even if it is not yet due for payment.

64 Setting off amounts owed to, and by, the Commonwealth

(1) If:

(a) an amount (the first amount) is owing to the Commonwealth

by a person; and

(b) an amount (the second amount) is owing by the

Commonwealth to the person;

the Finance Minister may, on behalf of the Commonwealth, set off

the whole or a part of the first amount against the whole or a part

of the second amount.

(2) Paragraph (1)(b) does not apply in relation to a payment if:

(a) a law of the Commonwealth provides that the payment is

inalienable or absolutely inalienable; or

(b) a law of the Commonwealth provides that the payment, or the

right to the payment, cannot be assigned.

(3) To avoid doubt, an amount may be owing to, or by, the

Commonwealth even if it is not yet due for payment.

65 Act of grace payments by the Commonwealth

(1) The Finance Minister may, on behalf of the Commonwealth,

authorise, in writing, one or more payments to be made to a person

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-4 Use and management of public resources

Division 7 Waivers, set-offs and act of grace payments

Section 65

48 Public Governance, Performance and Accountability Bill 2013 No. , 2013

if the Finance Minister considers it appropriate to do so because of

special circumstances.

Note 1:

A payment may be authorised even though the payment or payments

would not otherwise be authorised by law or required to meet a legal

liability.

Note 2:

Act of grace payments under this section must be made from money

appropriated by the Parliament. Generally, an act of grace payment

can be debited against a non-corporate Commonwealth entity's annual

appropriation, providing that it relates to some matter that has arisen

in the course of the administration of the entity.

(2) The authorisation of the payment must be in accordance with any

requirements prescribed by the rules.

Commonwealth entities and the Commonwealth Chapter 2

Use and management of public resources Part 2-4

Special provisions applying to Ministers and certain officials Division 8

Section 66

Public Governance, Performance and Accountability Bill 2013 No. , 2013 49

Division 8--Special provisions applying to Ministers and

certain officials

Subdivision A--Gifts of relevant property

66 Gifts of relevant property

A Minister or an official of a non-corporate Commonwealth entity

must not make a gift of relevant property unless:

(a) the property was acquired or produced to use as a gift; or

(b) the making of the gift:

(i) is expressly authorised by law; or

(ii) is made in accordance with the rules.

Subdivision B--Liability of Ministers and certain officials for

unauthorised gifts and loss

67 Liability for unauthorised gifts of relevant property

(1) A Minister or an official of a non-corporate Commonwealth entity

is liable to pay an amount to the Commonwealth if the Minister or

official makes a gift of relevant property in contravention of

section 66.

(2) The amount the Minister or official is liable to pay under

subsection (1) is the value of the relevant property.

68 Liability for loss--custody

(1) A Minister or an official of a non-corporate Commonwealth entity

is liable to pay an amount to the Commonwealth if all of the

following apply:

(a) a loss of relevant money or relevant property occurs

(including by way of deficiency, destruction or damage);

(b) at the time of the loss, the Minister or official had custody of

the money or property as described in subsection (3) or (4);

circumstances to prevent the loss.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-4 Use and management of public resources

Division 8 Special provisions applying to Ministers and certain officials

Section 69

50 Public Governance, Performance and Accountability Bill 2013 No. , 2013

(2) The amount the Minister or official is liable to pay under

subsection (1) is:

(a) for a loss of relevant money--the amount of the loss; or

(b) for a loss of relevant property:

(i) if the property is damaged--the value of the property or

the cost of repairing the property, whichever is less; or

(ii) otherwise--the value of the property.

(3) For the purposes of paragraph (1)(b), a person has custody of

relevant money if the person:

(a) holds the money by way of a petty cash advance, change

float or other advance; or

(b) has received the money, but has not yet dealt with it as

required by section 55 (which is about banking of relevant

money).

(4) For the purposes of paragraph (1)(b), a person has custody of

relevant property if:

(a) the person has taken delivery of the property and has not

returned it to another person entitled to receive the property

on behalf of the Commonwealth; and

(b) when the person took delivery of the property the person

signed a written acknowledgement that the property was

delivered on the express condition that the person would at

all times take strict care of the property.

69 Liability for loss--misconduct

(1) A Minister or an official of a non-corporate Commonwealth entity

is liable to pay an amount to the Commonwealth if:

(a) a loss of relevant money or relevant property occurs

(including by way of deficiency, destruction or damage); and

(b) the Minister or official caused or contributed to the loss by

misconduct, or by a deliberate or serious disregard of

reasonable standards of care.

(2) The amount the Minister or official is liable to pay under

subsection (1) is so much of the loss as is just and equitable having

Commonwealth entities and the Commonwealth Chapter 2

Use and management of public resources Part 2-4

Special provisions applying to Ministers and certain officials Division 8

Section 70

Public Governance, Performance and Accountability Bill 2013 No. , 2013 51

regard to the Minister's or official's share of the responsibility for

the loss.

70 Provisions relating to liability of Ministers and officials

(1) An amount payable to the Commonwealth under subsection 67(1),

68(1) or 69(1) is recoverable as a debt in a court of competent

jurisdiction.

(2) The Commonwealth is not entitled to recover amounts from the

same person under subsection 68(1) or 69(1) for the same loss.

(3) A person's liability under subsection 67(1), 68(1) or 69(1) is not

avoided merely because the person has ceased to be a Minister or

an official.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-4 Use and management of public resources

Division 9 Special provisions applying to Ministers only

Section 71

52 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 9--Special provisions applying to Ministers only

71 Approval of proposed expenditure by a Minister

(1) A Minister must not approve a proposed expenditure of relevant

money unless the Minister is satisfied, after making reasonable

inquiries, that the expenditure would be a proper use of relevant

money.

(2) For a Parliamentary Department, the references in subsection (1) to

a Minister are references to:

(a) a Presiding Officer, for expenditure for which he or she alone

is responsible; and

(b) the Presiding Officers jointly, for expenditure for which they

are jointly responsible.

(3) If a Minister approves a proposed expenditure of relevant money,

the Minister must:

(a) record the terms of the approval in writing as soon as

practicable after giving the approval; and

(b) comply with any other requirements prescribed by the rules

in relation to the approval.

72 Minister to inform Parliament of certain events

(1) The Minister who has the responsibility for any of the following

events must cause a notice of the event to be tabled in each House

of the Parliament as soon as practicable after the event occurs:

(a) the Commonwealth or a corporate Commonwealth entity

forms, or participates in forming, a company or a relevant

body (see subsection (2));

(b) the Commonwealth or a corporate Commonwealth entity

becomes, or ceases to be, a member of a company or a

relevant body;

corporate Commonwealth entity as a member of a company

or a relevant body;

Commonwealth entities and the Commonwealth Chapter 2

Use and management of public resources Part 2-4

Special provisions applying to Ministers only Division 9

Section 72

Public Governance, Performance and Accountability Bill 2013 No. , 2013 53

(d) the Commonwealth or a corporate Commonwealth entity

acquires shares (either by purchase or subscription) or

disposes of shares in a company;

(e) a variation occurs in the rights attaching to shares held by the

Commonwealth or a corporate Commonwealth entity in a

company.

(2) Relevant body means a body of a kind prescribed by the rules.

(3) The notice must be in the form (if any), and contain the particulars

(if any), prescribed by the rules.

(4) This section does not apply to:

(a) an event mentioned in paragraphs (1)(a) to (e) that occurs in

relation to:

(i) an authorised investment made under section 58; or

(ii) an investment authorised under section 59; or

(iii) an investment made under the Future Fund Act 2006 or

any other Act that is prescribed by the rules; or

(b) 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 Act 2001; or

purposes of an intelligence or security agency or a listed law

enforcement agency.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-5 Appropriations

Division 1 Guide to this Part

Section 73

54 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Part 2-5--Appropriations

Division 1--Guide to this Part

73 Guide to this Part

This Part has some specific provisions relating to appropriations of

the CRF.

Division 2 is mainly about appropriations relating to non-corporate

Commonwealth entities. It has provisions about:

•

the effect on appropriations when those entities receive certain

amounts; and

•

the effect on appropriations when there is a transfer of

functions between those entities; and

•

payments within or between those entities.

Division 3 deals with special accounts. Special accounts can be

established in 2 ways--by the Finance Minister under this Act (see

sections 78 and 79), or under another Act (see section 80).

Commonwealth entities and the Commonwealth Chapter 2

Appropriations Part 2-5

Appropriations relating to non-corporate Commonwealth entities and the

Commonwealth Division 2

Section 74

Public Governance, Performance and Accountability Bill 2013 No. , 2013 55

Division 2--Appropriations relating to non-corporate

Commonwealth entities and the Commonwealth

74 Receipts of amounts by non-corporate Commonwealth entities

(1) If a non-corporate Commonwealth entity receives an amount of a

kind prescribed by the rules, then the amount may be credited to:

(a) the most recent departmental item for the entity in an

Appropriation Act; or

(b) if the rules prescribe another item in an Appropriation Act,

another appropriation or a special account--that item,

appropriation or special account.

(2) The crediting of an amount in accordance with subsection (1) takes

effect at the time an entry recording the receipt of the amount is

made in the accounts and records of the entity.

75 Transfers of functions between non-corporate Commonwealth

entities

When this section applies

(1) This section applies if a function of a non-corporate

Commonwealth entity (the transferring entity) is transferred to

another non-corporate Commonwealth entity, either because the

transferring entity is abolished or for any other reason.

Adjustments to appropriations

(2) The Finance Minister may determine that one or more Schedules to

one or more Appropriation Acts are amended in a specified way.

The amendment must be related to the transfer of function.

(3) Each Appropriation Act concerned has effect as if the Schedule

concerned were amended in accordance with the determination.

No increase in overall appropriation etc.

(4) A determination under subsection (2) must not result in:

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-5 Appropriations

Division 2 Appropriations relating to non-corporate Commonwealth entities and the

Commonwealth

Section 75

56 Public Governance, Performance and Accountability Bill 2013 No. , 2013

(a) a change in the total amount appropriated in relation to the

financial year in which the determination is made; or

(b) an increase in the total amount appropriated in relation to any

previous financial year.

Transfer of function between Parliamentary Departments

(5) If the transfer of function is between Parliamentary Departments,

then the Finance Minister must not make a determination under

subsection (2) unless it is in accordance with a written

recommendation of the Presiding Officers.

No extension of time limits

(6) A determination under subsection (2) does not have the effect of

extending any time limit that applies to an appropriation.

Legislative Instruments Act

(7) A determination under subsection (2) is a legislative instrument,

but section 42 (disallowance) of the Legislative Instruments Act

2003 does not apply to the determination.

(8) A determination under subsection (2) may be expressed to take

effect before the day it is registered under that Act (including

before the day it is made).

(9) Subsection (8):

(a) does not authorise expenditure under an appropriation that

did not exist at the time of the expenditure; and

(b) applies despite subsection 12(2) of the Legislative

Instruments Act 2003.

Rules about transfers of functions

(10) The rules may make provision in relation to a transfer of function

to which this section applies, including in relation to the exercise of

a power, the performance of a function or the discharge of a duty

delegated under this Act or the rules.

Commonwealth entities and the Commonwealth Chapter 2

Appropriations Part 2-5

Appropriations relating to non-corporate Commonwealth entities and the

Commonwealth Division 2

Section 76

Public Governance, Performance and Accountability Bill 2013 No. , 2013 57

76 Notional payments and receipts by non-corporate

Commonwealth entities

If:

(a) either:

(i) a non-corporate Commonwealth entity makes a notional

payment to another non-corporate Commonwealth

entity; or

(ii) one part of a non-corporate Commonwealth entity

makes a notional payment to another part of that entity;

and

(b) the transaction would involve the debiting of an

appropriation if the notional payment were a real payment;

then:

payment as if it were a real payment; and

(d) this Act and the rules apply in relation to the notional receipt

of the notional payment as if it were a real receipt.

Note:

This section applies to transactions that do not actually involve

payments or receipts, because the parties to the transaction

(non-corporate Commonwealth entities) are merely parts of the

Commonwealth.

77 Repayments by the Commonwealth

If:

(a) an amount is received by the Commonwealth; and

(b) some or all of the amount is required or permitted to be

repaid; and

there is no appropriation for the repayment;

then the CRF is appropriated for the repayment.

Note:

For example, this section would apply:

(a) to a law that requires an application fee to be refunded to an

unsuccessful applicant; or

(b) to a contractual obligation to repay a loan; or

permitted between non-corporate Commonwealth entities.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-5 Appropriations

Division 3 Special accounts

Section 78

58 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 3--Special accounts

78 Establishment of special accounts by the Finance Minister

(1) The Finance Minister may make a determination that does all of

the following:

(a) establishes a special account;

(b) allows or requires amounts to be credited to the special

account;

required to be debited from the special account;

(d) specifies the accountable authority of a Commonwealth

entity responsible for the special account.

(2) A determination under subsection (1) may specify that an amount

may or must be debited from a special account established under

subsection (1) otherwise than in relation to the making of a real or

notional payment.

(3) The Finance Minister may make a determination that revokes or

varies a determination made under subsection (1).

(4) The CRF is appropriated for expenditure for the purposes of a

special account established under subsection (1), up to the balance

for the time being of the special account.

Note:

An Appropriation Act provides for amounts to be credited to a special

account if any of the purposes of the account is a purpose that is

covered by an item in the Appropriation Act.

(5) If the Finance Minister makes a determination that allows an

amount standing to the credit of a special account to be expended

in making payments for a particular purpose, then, unless the

contrary intention appears, the amount may also be applied in

making notional payments for that purpose.

(6) Whenever an amount is debited against the appropriation in

subsection (4), the amount is taken to be also debited from the

special account.

Commonwealth entities and the Commonwealth Chapter 2

Appropriations Part 2-5

Special accounts Division 3

Section 79

Public Governance, Performance and Accountability Bill 2013 No. , 2013 59

(7) The crediting of an amount to, or debiting of an amount from, a

special account takes effect at the time an entry connected with the

crediting or debiting is made in the accounts and records of the

Commonwealth entity concerned.

79 Disallowance of determinations relating to special accounts

(1) This section applies to a determination made by the Finance

Minister under subsection 78(1) or (3).

(2) The determination is a legislative instrument, but section 42

(disallowance) of the Legislative Instruments Act 2003 does not

apply to the determination.

(3) The Finance Minister must cause a copy of the determination to be

tabled in each House of the Parliament.

(4) Either House may, following a motion upon notice, pass a

resolution disallowing the determination. To be effective, the

resolution must be passed in the period that:

(a) starts on the day the copy of the determination is tabled in the

House (the start day); and

(b) ends on the fifth sitting day of the House after the start day.

(5) If neither House passes such a resolution, the determination takes

effect:

(a) on the day immediately after the last day upon which such a

resolution could have been passed; or

(b) if a later day is specified in the determination--on that later

day.

80 Special accounts established by other Acts

(1) If another Act establishes a special account and identifies the

purposes of the special account, then the CRF is appropriated for

expenditure for those purposes, up to the balance for the time being

of the special account.

Note 1:

An Act that establishes a special account will identify the amounts that

are to be credited to the special account.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-5 Appropriations

Division 3 Special accounts

Section 80

60 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Note 2:

An Appropriation Act provides for amounts to be credited to a special

account if any of the purposes of the account is a purpose that is

covered by an item in the Appropriation Act.

(2) If an Act allows an amount standing to the credit of a special

account to be applied, debited, paid or otherwise used for a

particular purpose, then, unless the contrary intention appears, the

amount may also be applied, debited, paid or otherwise used in

making a notional payment for that purpose.

(3) Whenever an amount is debited against the appropriation in

subsection (1), the amount is taken to be also debited from the

special account.

(4) The crediting of an amount to, or debiting of an amount from, a

special account takes effect at the time an entry connected with the

crediting or debiting is made in the accounts and records of the

Commonwealth entity concerned.

Commonwealth entities and the Commonwealth Chapter 2

Cooperating with other jurisdictions Part 2-6

Guide to this Part Division 1

Section 81

Public Governance, Performance and Accountability Bill 2013 No. , 2013 61

Part 2-6--Cooperating with other jurisdictions

Division 1--Guide to this Part

81 Guide to this Part

This Part allows the rules to prescribe situations where the

accountable authority of a Commonwealth entity is required to

share information with the States and Territories.

This Part also prohibits the Commonwealth from preventing State

or Territory Auditors-General from conducting audits in certain

situations.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-6 Cooperating with other jurisdictions

Division 2 Cooperating with other jurisdictions

Section 82

62 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 2--Cooperating with other jurisdictions

82 Sharing information with other jurisdictions

The rules may do the following:

(a) prescribe a Commonwealth entity;

(b) prescribe a Minister of a State or Territory as a

State/Territory Minister for the entity;

relate to the entity's activities;

(d) prescribe the circumstances in which the State/Territory

Minister may request those reports, documents and

information from the accountable authority of the entity;

(e) require the accountable authority to give the State/Territory

Minister any reports, documents and information requested in

accordance with the rules, within the time limits prescribed

by the rules.

83 Auditing by State and Territory Auditors-General

(1) This section applies if:

(a) the Commonwealth provides money to the following (the

partner) for a particular purpose:

(i) a State or Territory;

(ii) a body of a State or Territory;

(iii) a body (including a Commonwealth entity or

Commonwealth company) to which a State or Territory,

or body of a State or Territory, also provides money;

and

(b) the partner receives some or all of the money, whether

directly or indirectly, because the partner:

(i) agrees to use the money in achieving that purpose; or

(ii) has entered into a contract that relates to that purpose.

(2) The Commonwealth must not impose any restrictions in relation to

the conduct of any audit of the partner by, or on behalf of, the

Auditor-General of the State or Territory.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-7 Companies, subsidiaries and new corporate Commonwealth entities

Division 1 Guide to this Part

Section 84

64 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Part 2-7--Companies, subsidiaries and new

corporate Commonwealth entities

Division 1--Guide to this Part

84 Guide to this Part

This Part has provisions relating to the Commonwealth's

involvement in companies, the responsibility of corporate

Commonwealth entities for their subsidiaries, and the creation of

new corporate Commonwealth entities.

Division 2 authorises the Commonwealth to form, or participate in

forming, certain companies, and to acquire shares in, or become a

member of, certain companies. It also requires the accountable

authority of a corporate Commonwealth entity to ensure that none

of the entity's subsidiaries does anything outside of power.

Division 3 allows the rules to create new corporate Commonwealth

entities.

Commonwealth entities and the Commonwealth Chapter 2

Companies, subsidiaries and new corporate Commonwealth entities Part 2-7

Companies and subsidiaries Division 2

Section 85

Public Governance, Performance and Accountability Bill 2013 No. , 2013 65

Division 2--Companies and subsidiaries

Subdivision A--The Commonwealth's involvement in

companies

85 The Commonwealth's involvement in companies

(1) The Finance Minister may, on behalf of the Commonwealth:

(a) form, or participate in forming, a relevant company (see

subsection (2)); or

(b) acquire shares (either by purchase or subscription) in a

relevant company, or become a member of a relevant

company, in circumstances that would result in the relevant

company becoming a Commonwealth company.

(2) A relevant company is a company of a kind prescribed by the rules

whose objects or proposed activities are of a kind prescribed by the

rules.

Subdivision B--Subsidiaries of corporate Commonwealth

entities

86 Subsidiaries of corporate Commonwealth entities

The accountable authority of a corporate Commonwealth entity

must ensure, as far as practicable, that none of the entity's

subsidiaries does anything that the entity does not itself have power

to do.

Chapter 2 Commonwealth entities and the Commonwealth

Part 2-7 Companies, subsidiaries and new corporate Commonwealth entities

Division 3 New corporate Commonwealth entities

Section 87

66 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 3--New corporate Commonwealth entities

87 Establishing new corporate Commonwealth entities

The rules may do the following:

(a) establish a body corporate;

(b) name the body corporate;

(d) specify the functions of the body corporate;

(e) specify the powers of the body corporate, including the

power of the body corporate to charge fees;

(f) provide for the composition of the governing body of the

body corporate;

(g) deal with the appointment, and terms and conditions of

appointment, of members of the governing body of the body

corporate;

(h) specify procedures relating to the operation of the governing

body of the body corporate;

(i) specify any requirements or prohibitions that apply to the

body corporate or the governing body of the body corporate;

(j) deal with the application of other Commonwealth laws to the

body corporate;

(k) provide for committees of the body corporate;

(l) provide for the staff of, or any other person working for, the

body corporate;

(m) provide for the appointment, and terms and conditions of

appointment, of any Chief Executive (however described) of

the body corporate;

(n) identify the Minister who is responsible for the body

corporate;

(o) identify any powers of a Minister in relation to the body

corporate;

(p) provide for matters of a transitional nature in relation to

establishing or abolishing the body corporate;

(q) provide for other matters relating to a matter referred to in

any of the above paragraphs.

Chapter 3 Commonwealth companies

Part 3-1 General

Division 1 Guide to this Part

Section 88

68 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Chapter 3--Commonwealth companies

Part 3-1--General

Division 1--Guide to this Part

88 Guide to this Part

This Part has the core provisions for this Chapter (which is about

Commonwealth companies) and special provisions applying to

wholly-owned Commonwealth companies.

Division 2:

•

defines what a Commonwealth company is (see

subsection 89(1)); and

•

defines what a wholly-owned Commonwealth company is (see

section 90).

Division 3 requires the directors of a wholly-owned

Commonwealth company to keep the responsible Minister and the

Finance Minister informed about certain things, and ensure that the

company has an audit committee. It also deals with the application

of government policy to wholly-owned Commonwealth

companies.

Commonwealth companies Chapter 3

General Part 3-1

Core provisions for this Chapter Division 2

Section 89

Public Governance, Performance and Accountability Bill 2013 No. , 2013 69

Division 2--Core provisions for this Chapter

89 Commonwealth companies

(1) A Commonwealth company is a Corporations Act company that

the Commonwealth controls. However, it does not include a

company that is a subsidiary of:

(a) a Commonwealth company; or

(b) a corporate Commonwealth entity; or

(2) The Commonwealth controls a company if, and only if, it:

(a) controls the composition of the company's board; or

(b) is in a position to cast, or control the casting of, more than

one-half of the maximum number of votes that might be cast

at a general meeting of the company; or

company (excluding any part of that issued share capital that

carries no right to participate beyond a specified amount in a

distribution of either profits or capital).

(3) Without limiting paragraph (2)(a), the Commonwealth is taken to

control the composition of a company's board if the

Commonwealth can appoint or remove all, or the majority, of the

directors of the company.

(4) For the purposes of subsection (3), the Commonwealth is taken to

have power to appoint a person as a director of a company if:

(a) the person cannot be appointed as a director of the company

without the exercise by the Commonwealth of such a power

in the person's favour; or

(b) the person's appointment as a director of the company

follows necessarily from the person being:

(i) an Agency Head; or

(ii) a statutory office holder.

Commonwealth companies Chapter 3

General Part 3-1

Special requirements for wholly-owned Commonwealth companies Division 3

Section 91

Public Governance, Performance and Accountability Bill 2013 No. , 2013 71

Division 3--Special requirements for wholly-owned

Commonwealth companies

91 Duty to keep the responsible Minister and Finance Minister

informed

(1) The directors of a wholly-owned Commonwealth company must

do the following:

(a) keep the responsible Minister informed of the activities of the

company and any subsidiaries of the company;

(b) give the responsible Minister or the Finance Minister any

reports, documents and information in relation to those

activities as that Minister requires;

the directors make a significant decision in relation to the

company or any of its subsidiaries;

(d) give the responsible Minister reasonable notice if the

directors become aware of any significant issue that may

affect the company or any of its subsidiaries;

(e) notify the responsible Minister as soon as practicable after

the directors become aware of any significant issue that has

affected the company or any of its subsidiaries.

(2) Without limiting subsection (1), the rules may prescribe:

(a) matters to be taken into account in deciding whether a

decision or issue is significant; and

(b) matters relating to discharging duties under subsection (1).

(3) The directors must comply with a requirement under

paragraph (1)(b) within the time limits set by the Minister

concerned.

(4) This section does not limit any other power that a Minister has to

require information from a Commonwealth company.

Chapter 3 Commonwealth companies

Part 3-1 General

Division 3 Special requirements for wholly-owned Commonwealth companies

Section 92

72 Public Governance, Performance and Accountability Bill 2013 No. , 2013

92 Audit committee

(1) The directors of a wholly-owned Commonwealth company must

ensure that the company has an audit committee.

(2) The committee must be constituted, and perform functions, in

accordance with any requirements prescribed by the rules.

93 Application of government policy

(1) The Finance Minister may make an order (a government policy

order) that specifies a policy of the Australian Government that is

to apply to one or more wholly-owned Commonwealth companies.

(2) Before making a government policy order that applies in relation to

a wholly-owned Commonwealth company, the Finance Minister

must be satisfied that the Minister responsible for the policy has

consulted the company on the application of the policy.

(3) If a government policy order applies in relation to a wholly-owned

Commonwealth company, the directors of the company must

ensure that the order is complied with:

(a) in relation to the company; and

(b) in relation to any subsidiary of the company, so far as

practicable.

(4) A government policy order is a legislative instrument, but

section 42 (disallowance) of the Legislative Instruments Act 2003

does not apply to it.

Commonwealth companies Chapter 3

Planning and accountability Part 3-2

Guide to this Part Division 1

Section 94

Public Governance, Performance and Accountability Bill 2013 No. , 2013 73

Part 3-2--Planning and accountability

Division 1--Guide to this Part

94 Guide to this Part

This Part is about planning by, and the accountability of,

Commonwealth companies.

Division 2 is about planning by Commonwealth companies. It

requires the directors of a Commonwealth company to prepare a

corporate plan for the company. It also requires the directors of a

wholly-owned Commonwealth company to prepare budget

estimates for the company.

Division 3 is about reporting by, and the accountability of,

Commonwealth companies. It requires the directors of a

Commonwealth company to prepare and give annual reports for

the company to the responsible Minister. It also requires the

directors to ensure that the financial statements of a subsidiary of

the company are audited.

Chapter 3 Commonwealth companies

Part 3-2 Planning and accountability

Division 2 Planning and budgeting

Section 95

74 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 2--Planning and budgeting

95 Corporate plan for Commonwealth companies

Commonwealth companies

(1) The directors of a Commonwealth company must:

(a) prepare a corporate plan for the entity; and

(b) give the corporate plan to the responsible Minister and the

Finance Minister in accordance with any requirements

prescribed by the rules.

(2) The corporate plan must comply with, and be published in

accordance with, any requirements prescribed by the rules.

(3) If:

(a) a statement of the Australian Government's key priorities and

objectives is published under section 34; and

(b) the purposes of the Commonwealth company relate to those

priorities and objectives;

then the corporate plan must set out how the activities of the

company will contribute to achieving those priorities and

objectives.

Subsidiaries

(4) If the Commonwealth company has subsidiaries, the corporate plan

must cover both the company and its subsidiaries. In particular, for

each subsidiary the corporate plan must include details of any

matters prescribed by the rules, so far as they are applicable.

96 Budget estimates for wholly-owned Commonwealth companies

(1) The directors of a wholly-owned Commonwealth company must:

(a) prepare budget estimates covering the company's activities

for each reporting period for the company, and for any other

periods directed by the Finance Minister; and

(b) give the budget estimates to the Finance Secretary in

accordance with any directions under subsection (3).

Commonwealth companies Chapter 3

Planning and accountability Part 3-2

Planning and budgeting Division 2

Section 96

Public Governance, Performance and Accountability Bill 2013 No. , 2013 75

(2) The budget estimates must:

(a) fairly present the estimated financial impacts of the

company's activities for the reporting period or other period;

and

(b) comply with any directions under subsection (3); and

estimates for the company that is required by any direction

under subsection (3).

(3) The Finance Secretary may give written directions to the directors

of a Commonwealth company for the purposes referred to in

paragraph (1)(b) or subsection (2).

(4) A direction made under subsection (3) is not a legislative

instrument.

Chapter 3 Commonwealth companies

Part 3-2 Planning and accountability

Division 3 Reporting and accountability

Section 97

76 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 3--Reporting and accountability

97 Annual reports for Commonwealth companies

(1) The directors of a Commonwealth company must give the

responsible Minister:

(a) a copy of the company's financial report, directors' report

and auditor's report that the company is required by the

Corporations Act 2001 to have for the reporting period for

the company (or would be required by that Act to have if the

company were a public company); and

(b) for a wholly-owned Commonwealth company--any

additional information or report prescribed by the rules.

(2) The Commonwealth company must give the reports and

information by:

(a) if the company is required by the Corporations Act 2001 to

hold an annual general meeting--the earlier of the following:

(i) 21 days before the next annual general meeting after the

end of the reporting period for the company;

(ii) 4 months after the end of the reporting period for the

company; and

(b) in any other case--4 months after the end of the reporting

period for the company;

or the end of such further period granted under subsection 34C(5)

of the Acts Interpretation Act 1901.

(3) If the auditor's report required by the Corporations Act 2001 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.

(4) In preparing a report for the purposes of subsection (3), the

Auditor-General must use the same Corporations Act 2001 rules as

applied to the report by the other auditor.

(5) If the Commonwealth company is a wholly-owned Commonwealth

company, or is not required to hold an annual general meeting, the

responsible Minister must table the documents in each House of

Commonwealth companies Chapter 3

Planning and accountability Part 3-2

Reporting and accountability Division 3

Section 98

Public Governance, Performance and Accountability Bill 2013 No. , 2013 77

the Parliament as soon as practicable after receiving them. In all

other cases, the responsible Minister must table the documents in

each House of the Parliament as soon as practicable after the

annual general meeting of the company.

98 Auditor of Commonwealth companies

(1) For each Commonwealth company, the Auditor-General is:

(a) to be the auditor of the company under the Corporations Act

2001; or

(b) if another person is the company's auditor--to give a report

on the company's financial statements (see subsection 97(3)).

(2) The Auditor-General is (subject to subsection 99(3)) to audit the

financial statements of each subsidiary of a Commonwealth

company.

99 Audit of subsidiary's financial statements

(1) This section applies in relation to a Commonwealth company that

has a subsidiary at the end of the reporting period for the

subsidiary.

(2) The directors of the Commonwealth company must ensure that all

the subsidiary's financial statements for a reporting period of the

subsidiary are audited.

(3) The subsidiary's financial statements must be audited by the

Auditor-General unless:

(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.

Note:

If the Auditor-General is not the subsidiary's auditor, this subsection

requires the Auditor-General to do an audit of the statements in

Chapter 3 Commonwealth companies

Part 3-2 Planning and accountability

Division 3 Reporting and accountability

Section 99

78 Public Governance, Performance and Accountability Bill 2013 No. , 2013

addition to that done by the subsidiary's auditor, except in the

circumstances referred to in paragraphs (3)(a) and (b).

(4) For a subsidiary that is a Corporations Act company that, under the

Corporations Act 2001, 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 Act 2001. Those rules must also be used for other

subsidiaries, so far as is practicable.

(5) The directors of the Commonwealth company must give the report

of the auditor to the responsible Minister (whether or not the

auditor is the Auditor-General), together with a copy of the

subsidiary's financial statements.

Chapter 4 Rules and delegations

Part 4-1 The rules

Division 2 The rules

Section 101

80 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 2--The rules

101 The rules

(1) The Finance Minister may, by legislative instrument, make rules

prescribing matters:

(a) required or permitted by this Act to be prescribed by the

rules; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) The rules may:

(a) prescribe matters in relation to a particular Commonwealth

entity, or a class of Commonwealth entities; or

(b) make different provision in relation to different

Commonwealth entities, or classes of Commonwealth

entities.

(3) Subsection (2) does not limit subsection 33(3A) of the Acts

Interpretation Act 1901.

102 Rules relating to the Commonwealth and Commonwealth

entities

The rules may make provision for the following in relation to the

Commonwealth and Commonwealth entities:

(a) ensuring or promoting the proper use and management of

public resources;

(b) ensuring or promoting proper accountability for the use and

management of public resources;

(d) risk oversight and management;

(e) managing appropriations;

(f) reporting periods;

(g) performance management.

Rules and delegations Chapter 4

The rules Part 4-1

The rules Division 2

Section 103

Public Governance, Performance and Accountability Bill 2013 No. , 2013 81

103 Rules relating to the Commonwealth and non-corporate

Commonwealth entities

The rules may make provision for the following:

(a) the use, management or disposal of relevant property by the

Commonwealth or a non-corporate Commonwealth entity;

(b) the acquisition by the Commonwealth or a non-corporate

Commonwealth entity of property that is to be relevant

property;

non-corporate Commonwealth entity;

(d) for the purposes of reporting and auditing:

(i) treating a part of a non-corporate Commonwealth entity

as separate from the entity; and

(ii) treating that part instead as a separate non-corporate

Commonwealth entity;

(e) the preparation, auditing and giving of financial statements in

relation to a non-corporate Commonwealth entity that has

ceased to exist or whose functions have been transferred to

another non-corporate Commonwealth entity;

(f) the Finance Minister authorising payment of an amount if, at

the time of a person's death, the Commonwealth owed that

amount to the person (including authorising without requiring

production of probate of the will of the person or letters of

administration of the estate of the person).

104 Rules modifying the application of this Act

(1) The rules may prescribe that all or specified provisions of this Act:

(a) do not apply in relation to a Commonwealth entity referred to

in subsection (2); or

(b) apply in relation to a Commonwealth entity referred to in

subsection (2), as if specified provisions were omitted or

varied as prescribed by the rules.

(2) For the purposes of subsection (1), the entities are as follows:

(a) an intelligence or security agency that is a Commonwealth

entity;

Chapter 4 Rules and delegations

Part 4-1 The rules

Division 2 The rules

Section 105

82 Public Governance, Performance and Accountability Bill 2013 No. , 2013

(b) a listed law enforcement agency;

meaning of the Governance of Australian Government

Superannuation Schemes Act 2011).

(3) If an intelligence or security agency is not itself a Commonwealth

entity but is a part of a Commonwealth entity, the rules may

prescribe that all or specified provisions of this Act that apply to

the Commonwealth entity:

(a) do not apply to the part of that entity that is the intelligence

or security agency; or

(b) apply to that part as if specified provisions were omitted or

varied as prescribed by the rules.

105 Rules in relation to other CRF money

(1) The rules may prescribe matters in relation to other CRF money.

(2) Other CRF money is money that forms part of the CRF other than:

(a) relevant money; or

(b) any other money of a kind prescribed by the rules.

(3) The CRF is appropriated for the purposes of the expenditure of

other CRF money by a person other than the Commonwealth or a

Commonwealth entity if:

(a) the expenditure is in accordance with any requirements

prescribed by the rules; and

(b) the Finance Minister is satisfied that the expenditure is not

authorised by another appropriation.

Chapter 4 Rules and delegations

Part 4-2 Delegations

Division 2 Delegations

Section 107

84 Public Governance, Performance and Accountability Bill 2013 No. , 2013

Division 2--Delegations

107 Finance Minister

When Finance Minister may delegate

(1) The Finance Minister may, by written instrument, delegate to the

Finance Secretary, or an accountable authority or an official of a

non-corporate Commonwealth entity, any of the Finance Minister's

powers, functions or duties under this Act or the rules.

(2) However, the Finance Minister may not delegate (except as

provided in subsection (3)) any of the Finance Minister's powers,

functions or duties under:

(a) paragraph 57(b) (which is about authorising borrowing by

corporate Commonwealth entities); or

(b) subsection 71(1) or (3) (which is about approving

expenditure); or

certain events); or

(d) section 75 (which is about transfers of functions between

non-corporate Commonwealth entities); or

(e) section 78 (which is about special accounts); or

(f) section 85 (which is about the Commonwealth forming

companies etc.); or

(g) section 87 (which is about establishing new corporate

Commonwealth entities); or

(h) section 101 (which is about the rules).

(3) The Finance Minister may, by written instrument, delegate to the

Finance Secretary any of the Finance Minister's powers, functions

or duties under:

(a) section 75 (which is about transfers of functions between

non-corporate Commonwealth entities); or

(b) section 85 (which is about the Commonwealth forming

companies etc.); or

Commonwealth entities).

Rules and delegations Chapter 4

Delegations Part 4-2

Delegations Division 2

Section 108

Public Governance, Performance and Accountability Bill 2013 No. , 2013 85

Directions by the Finance Minister about delegation

(4) In exercising powers, performing functions or discharging duties

under a delegation, the delegate must comply with any written

direction given by the Finance Minister to the delegate.

108 Treasurer

When Treasurer may delegate

(1) The Treasurer may, by written instrument, delegate to an eligible

delegate (see subsection (2)) any of the Treasurer's powers,

functions or duties under this Act or the rules.

(2) An eligible delegate is an official of the Department of the

Treasury, or a listed entity that is prescribed by the rules, who:

(a) is an SES employee; or

(b) is an APS employee who holds or performs the duties of an

Executive Level 2, or equivalent, position; or

an SES employee, or an Executive Level 2.

(3) However, the Treasurer may not delegate any of the Treasurer's

powers, functions or duties under:

(a) subsection 71(1) or (3) (which is about approving

expenditure); or

(b) subsection 72(1) (which is about notifying Parliament about

certain events).

Directions by the Treasurer about delegation

(4) The Treasurer may, by written instrument, give directions in

relation to either or both of the following:

(a) the class or classes of authorised investment in which

relevant money may be invested;

(b) matters of risk and return.

(5) The Treasurer must not give a direction under subsection (4) that

has the purpose, or has or is likely to have the effect, of directly or

Chapter 4 Rules and delegations

Part 4-2 Delegations

Division 2 Delegations

Section 109

86 Public Governance, Performance and Accountability Bill 2013 No. , 2013

indirectly requiring an eligible delegate to allocate financial assets

to a particular company, partnership, trust, body politic or business.

(6) If, at any time, a delegation is in force under subsection (1), there

must be at least one direction in force under subsection (4).

(7) In exercising powers, performing functions or discharging duties

under a delegation, an eligible delegate must comply with:

(a) a direction in force under subsection (4); and

(b) any other written direction given by the Treasurer to the

eligible delegate.

(8) The Treasurer must table a direction given under subsection (4) or

paragraph (7)(b) in each House of the Parliament no later than 15

sitting days of that House after it is given.

109 Finance Secretary

When the Finance Secretary may delegate

(1) The Finance Secretary may, by written instrument, delegate to an

official of the Department any powers, functions or duties under

this Act or the rules:

(a) including:

(i) this power to delegate in relation to powers, functions

and duties conferred directly by this Act or the rules on

the Finance Secretary; and

(ii) powers, functions or duties that have been delegated by

the Finance Minister to the Finance Secretary under

subsection 107(1) or paragraph 107(3)(a); but

(b) not including powers, functions or duties that have been

delegated by the Finance Minister to the Finance Secretary

under paragraph 107(3)(b) or (c).

Directions by the Finance Secretary about delegation

(2) If:

(a) the Finance Secretary delegates a power, function or duty to a

person (the delegate); and

Rules and delegations Chapter 4

Delegations Part 4-2

Delegations Division 2

Section 110

Public Governance, Performance and Accountability Bill 2013 No. , 2013 87

(b) the power, function or duty is not one that has been delegated

by the Finance Minister to the Finance Secretary under

subsection 107(1) or (3);

then the Finance Secretary may give written directions to the

delegate in relation to the exercise of that power, the performance

of that function or the discharge of that duty.

(3) The delegate must comply with any directions given under

subsection (2).

Subdelegation of Finance Minister's delegation

(4) If the Finance Secretary delegates to a person (the second delegate)

a power, function or duty that has been delegated by the Finance

Minister to the Finance Secretary under subsection 107(1) or

paragraph 107(3)(a), then that power, function or duty, when

exercised, performed or discharged by the second delegate, is taken

for the purposes of this Act to have been exercised, performed or

discharged by the Finance Minister.

(5) If the Finance Secretary is subject to directions in relation to the

exercise of a power, the performance of a function or the discharge

of a duty, delegated by the Finance Minister to the Finance

Secretary under subsection 107(1) or paragraph 107(3)(a), then:

(a) the Finance Secretary must give corresponding written

directions to the second delegate; and

(b) the Finance Secretary may give other written directions (not

inconsistent with those corresponding directions) to the

second delegate in relation to the exercise of that power, the

performance of that function or the discharge of that duty.

(6) The second delegate must comply with any directions of the

Finance Secretary.

110 Accountable authority

When accountable authority may delegate

(1) The accountable authority of a non-corporate Commonwealth

entity may, by written instrument, delegate to an official of a

Chapter 4 Rules and delegations

Part 4-2 Delegations

Division 2 Delegations

Section 110

88 Public Governance, Performance and Accountability Bill 2013 No. , 2013

non-corporate Commonwealth entity any powers, functions or

duties under this Act or the rules, including:

(a) this power to delegate in relation to powers, functions and

duties conferred directly by this Act or the rules on the

accountable authority; and

(b) powers, functions or duties that have been delegated by the

Finance Minister to the accountable authority under

subsection 107(1).

(2) However, the accountable authority of a non-corporate

Commonwealth entity may not delegate any of the accountable

authority's powers, functions or duties under:

(a) Subdivision A of Division 2 of Part 2-2 (which is about the

general duties of accountable authorities); or

(b) section 21 (which is about the application of government

policy to non-corporate Commonwealth entities); or

Commonwealth entities); or

(d) section 37, 38 or 39 (which has requirements relating to

performance of Commonwealth entities); or

(e) section 41, 42 or 43 (which has requirements relating to

accounts and financial statements of Commonwealth

entities).

Directions given by the accountable authority about delegation

(3) If:

(a) the accountable authority of a non-corporate Commonwealth

entity delegates a power, function or duty to a person (the

delegate); and

(b) the power, function or duty is not one that has been delegated

by the Finance Minister to the accountable authority under

subsection 107(1);

then the accountable authority may give written directions to the

delegate in relation to the exercise of that power, the performance

of that function or the discharge of that duty.

(4) The delegate must comply with any directions given under

subsection (3).

Rules and delegations Chapter 4

Delegations Part 4-2

Delegations Division 2

Section 110

Public Governance, Performance and Accountability Bill 2013 No. , 2013 89

Subdelegation of Finance Minister's delegation

(5) If the accountable authority of a non-corporate Commonwealth

entity delegates to a person (the second delegate) a power, function

or duty that has been delegated by the Finance Minister to the

accountable authority under subsection 107(1), then that power,

function or duty, when exercised, performed or discharged by the

second delegate, is taken for the purposes of this Act and the rules

to have been exercised, performed or discharged by the Finance

Minister.

(6) If the accountable authority of a non-corporate Commonwealth

entity is subject to directions in relation to the exercise of a power,

the performance of a function or the discharge of a duty, delegated

by the Finance Minister to the accountable authority under

subsection 107(1), then:

(a) the accountable authority must give corresponding written

directions to the second delegate; and

(b) the accountable authority may give other written directions

(not inconsistent with those corresponding directions) to the

second delegate in relation to the exercise of that power, the

performance of that function or the discharge of that duty.

(7) The second delegate must comply with any directions of the

accountable authority.

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