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1985 No. 78 FINANCE REGULATIONS (AMENDMENT) - REG 1
After Part III of the Finance Regulations the following Part is inserted:
"PART IIIA-LOSSES OF, AND DAMAGE TO, PUBLIC PROPERTY Interpretation
"126A. (1) In this Part, unless the contrary intention appears-
'investigation' means an investigation under regulation 126C;
'investigation committee' means a committee appointed under sub-regulation
126C (4);
'investigator' means an officer appointed under sub-regulation 126C (5);
'prescribed incident' means a loss of, or a deficiency in, public moneys, or
the loss or destruction of, or damage to, other property of the Commonwealth;
'prescribed supervisor', in relation to an officer and a prescribed incident,
means-
(a) the person who, in relation to the officer, is the Secretary; or
(b) an officer to whom that person has, under sub-section (7) of section
70AC of the Act, delegated the power to make determinations under
sub-section (1) of that section in relation to-
(i) officers included in a class of officers in which the
first-mentioned officer is included; and
(ii) prescribed incidents included in a class of such incidents in
which the first-mentioned prescribed incident is included;
'relevant incident', in relation to an investigation, means the prescribed
incident in relation to which the investigation is caused to be held;
'relevant officer', in relation to an investigation, means the officer in
relation to whom the investigation is caused to be held;
'relevant supervisor', in relation to an investigation, means the prescribed
supervisor by whom the investigation is caused to be held.
"(2) Expressions used in this Part that are used in Part XIIA of the Act have
in this Part, unless the contrary intention appears, the same respective
meanings as in that Part.
Declarations for purposes of definitions of "officer" and "Secretary"
"126B. (1) Each class of persons (being persons employed by the Commonwealth)
described in the table in sub-regulation (2) is declared to be a class of
persons to whom paragraph (j) of the definition of 'officer' in sub-section
70AA (1) of the Act applies.
"(2) The office specified in an item of the following table opposite to the
class of persons described in that item is declared to be, for the purposes of
Part XIIA of the Act, the office of Secretary in respect of that class of
persons:
------------------------------------------------------------------------------
--
Column 1 Column 2 Column 3
Item No. Description of class of persons Office
------------------------------------------------------------------------------
--
1 Persons who are members of the
Australian Secret Intelligence Service Director-General of the
Australian Secret
Intelligence Service
2 Persons who are officers or employees
of the Australian Security
Intelligence Organization Director-General of
Security
------------------------------------------------------------------------------
-- Investigation of losses, &c.
"126C. (1) Where it appears to a prescribed supervisor of an officer that a
prescribed incident has occurred in such circumstances as to render the
officer liable under section 70AB of the Act to pay an amount to the
Commonwealth in respect of the prescribed incident, the prescribed supervisor
shall, as soon as practicable, cause to be given to the officer a notice in
writing signed and dated by the prescribed supervisor that-
(a) specifies-
(i) the name and appointment of the prescribed supervisor; and
(ii) the prescribed incident to which the notice relates;
(b) invites the attention of the officer to the provisions of Part XIIA of
the Act and of this Part; and
(c) complies with sub-regulation (2).
"(2) There shall be included in a notice referred to in sub-regulation (1)-
(a) where it appears to the prescribed supervisor that the circumstances
of the prescribed incident are such as to warrant the holding of an
investigation-
(i) a statement to that effect; and
(ii) if the investigation is, in accordance with this regulation, to
be carried out by an investigation committee, a request to the
officer to whom the notice is addressed to the effect that,
within the period of 7 days following the receipt of the
notice, the officer furnish to the prescribed supervisor the
name of the organization referred to in paragraph (7) (a) of
which he is a member or, if he is not a member of such an
organization, that he nominate, within that period, not more
than 3 persons (being persons that are not disqualified under
sub-regulation (4) for being appointed or selected as members
of the investigation committee) as persons from whom a member
of the committee may be selected in accordance with paragraph
(7) (b); or
(b) where it appears to the prescribed supervisor that the circumstances
of the prescribed incident are such as not to warrant the holding of
an investigation-
(i) a statement to that effect;
(ii) a statement to the effect that the officer to whom the notice
is addressed may, by notice in writing signed by him and given
to the prescribed supervisor not later than 7 days after the
receipt by the officer of the first-mentioned notice, request
the holding of an investigation into the prescribed incident;
and
(iii) if, in the event that the officer were to request the holding
of such an investigation, the investigation would, in
accordance with this regulation, be carried out by an
investigation committee, a request to the effect that, at the
time of the giving of any notice under sub-paragraph (ii), the
officer furnish to the prescribed supervisor the name of the
organization referred to in paragraph (7) (a) of which he is a
member or, if he is not a member of such an organization, that
he nominate, at that time, not more than 3 persons (being
persons that are not disqualified under sub-regulation (4) for
being appointed or selected as members of such an investigation
committee) as persons from whom a member of the committee may
be selected in accordance with paragraph (7) (b).
"(3) Where-
(a) a prescribed supervisor has given to an officer a notice under
sub-regulation (1), being a notice to which paragraph (2) (a) applies;
or
(b) an officer has, within the time specified in sub-paragraph (2) (b)
(ii), given to the prescribed supervisor by whom a notice under
sub-regulation (1) was given to the officer a notice of the kind
referred to in that sub-paragraph, the prescribed supervisor shall, as
soon as practicable after the giving of the notice referred to in
paragraph (a) or of the notice last referred to in paragraph (b), as
the case requires, cause an investigation into the prescribed incident
to be held under this regulation.
"(4) Except where sub-regulation (5) applies, an investigation under this
regulation shall be carried out by a committee established for that purpose
and consisting of the following members-
(a) a chairman appointed by the relevant supervisor;
(b) a member appointed by the relevant supervisor in accordance with
sub-regulation (6); and
(c) a member selected in accordance with sub-regulation (7), none of whom
is a person who is, at the time of the appointment of the committee,
or was, at the time at which the relevant incident occurred, a
prescribed supervisor in relation to the relevant officer.
"(5) Where-
(a) an investigation is to be held under this regulation; and
(b) it appears to the relevant supervisor-
(i) in the case of an investigation into a loss of, or deficiency
in, public moneys-that the amount of the loss or deficiency
does not exceed $100;
(ii) in the case of an investigation into the loss or destruction of
other property of the Commonwealth-that the value of the
property does not exceed $100; or
(iii) in the case of an investigation into damage to such
property-that the expense of repairing the damage or the value
of the property does not exceed $100, the relevant supervisor
shall appoint an officer (not being an officer who is at the
time of his appointment, or was, at the time at which the
relevant incident occurred, a prescribed supervisor in relation
to the relevant officer) for the purpose of carrying out the
investigation.
"(6) The member of an investigation committee referred to in paragraph (4) (b)
shall, so far as it is practicable, be a person other than-
(a) in a case where the relevant officer in relation to the investigation
is, or was at the time at which the relevant incident occurred, an
officer performing duties in a Department-an officer performing duties
in that Department;
(b) in a case where the relevant officer in relation to the investigation
is, or was at the time at which the relevant incident occurred, a
member of an arm of the Defence Force rendering service in a
particular unit or at a particular place or establishment-a member of
that arm of the Defence Force rendering service in that unit or at
that place or establishment;
(c) in a case where the relevant officer in relation to the investigation
is, or was at the time at which the relevant incident occurred, a
person referred to in paragraph (b), (d), (e), (f) or (g) of the
definition of 'officer' in sub-section 70AA (1) of the Act-a person
referred to in that paragraph; or
(d) in a case where the relevant officer in relation to the investigation
is, or was at the time at which the relevant incident occurred, a
person included in a class of persons described in the table in
sub-regulation 126B (2)-a person included in that class.
"(7) The member of an investigation committee referred to in paragraph (4) (c)
shall be-
(a) in a case where the relevant officer is a member of an organization
within the meaning of the Conciliation and Arbitration Act 1904, being
an organization which persons engaged in the employment in which the
relevant officer is engaged are, by reason of that employment,
eligible to join-a person appointed by that organization or, if that
organization fails so to appoint a person within 7 days of a request
being made to it by the relevant supervisor to do so, an officer
appointed by the relevant supervisor; or
(b) in any other case-
(i) if the relevant officer has, in pursuance of a request referred
to in sub-paragraph (2) (a) (ii) or (2) (b) (iii), nominated
only one person for selection as a member of the committee-the
person so nominated;
(ii) if the relevant officer has, in pursuance of a request referred
to in sub-paragraph (2) (a) (ii) or (2) (b) (iii), nominated
more than one person as persons from whom a member of the
committee may be selected-a person appointed by the relevant
supervisor from among the persons so nominated; or
(iii) if the relevant officer has failed to make, in compliance with
a request referred to in sub-paragraph (2) (a) (ii) or (2) (b)
(iii), any nomination in relation to the selection, in
accordance with this paragraph, of a member of the committee,
or if the person, or each of the persons, nominated by the
relevant officer in pursuance of such a request declines to be
a member of the committee-a person appointed by the relevant
supervisor.
"(8) Upon the appointment of an investigator or the establishment of an
investigation committee under this regulation for the purpose of carrying out
an investigation, the relevant supervisor shall give to the relevant officer a
notice in writing in accordance with sub-regulation (9).
"(9) A notice referred to in sub-regulation (8) in relation to an
investigation shall-
(a) specify the date, time and place appointed for the investigation and
the name and address of the investigator or of each member of the
investigation committee;
(b) identify the prescribed incident that is to be investigated;
(c) invite the relevant officer in relation to the investigation to make a
written submission to the investigator or to the committee within such
period, being a period of not less than 7 days after the giving of the
notice, as is specified in the notice;
(d) specify the address to which any such written submission may be
forwarded; and
(e) inform the relevant officer that he may make oral submissions to the
investigator or to the committee instead of, or in amplification of,
any such written submission.
"(10) Where-
(a) a relevant officer to whom notice of the appointment of an
investigator or of the establishment of an investigation committee has
been given in accordance with sub-regulation (9), for a valid reason,
has failed to make, or cannot reasonably be expected to make, a
written submission to the investigator or to the committee within the
period specified in the notice; and
(b) the relevant officer (whether before or after the expiration of that
period) applies in writing addressed (as the case requires) to the
investigator or to the chairman of the committee and stating the
reason for his application for an extension of the period within which
he may make such a submission, the investigator or the chairman of the
committee may, by writing under his hand, specify a longer period
within which the relevant officer may forward a written submission to
the investigator or to the committee.
"(11) On an investigation under this regulation-
(a) the procedure is, subject to the Act and these Regulations, within the
discretion of the investigator or of the chairman of the committee, as
the case may be;
(b) the proceedings shall be conducted in private with as little formality
and technicality, and with as much expedition, as the requirements of
the Act and these Regulations and a proper consideration of the
matters being investigated permit;
(c) the investigator or the investigation committee is not bound by rules
of evidence;
(d) the investigator or the investigation committee is entitled to full
and free access to accounts and records relating to the relevant
incident and may make copies of, or take extracts from, any such
accounts and records; and
(e) the investigator or the investigation committee shall, subject to
sub-regulation (12)-
(i) afford the relevant officer, and any other officer who appears
to the investigator or the committee to have caused, or
contributed to, the relevant incident, a reasonable opportunity
to make such oral or written submissions as that officer thinks
fit; and
(ii) accommodate any reasonable request made by an officer referred
to in sub-paragraph (i) for the examination of a witness.
"(12) Before-
(a) receiving any submissions from an officer (other than the relevant
officer) under sub-paragraph (11) (e) (i); or
(b) examining any officer as a witness under sub-paragraph (11) (e) (ii),
an investigator or an investigation committee shall provide that
officer with a notice in writing inviting the attention of the officer
to the provisions of Part XIIA of the Act and of this Part.
"(13) The relevant supervisor may, at the request of an investigator or
investigation committee, make available officers, or engage other persons, to
assist the investigator or committee in the carrying out of the relevant
investigation.
"(14) Subject to sub-regulation (15), an investigator or the chairman of an
investigation committee shall, not later than 3 months after the appointment
of the investigator or the establishment of the committee, submit to the
relevant supervisor a report of the investigation carried out by the
investigator or the committee setting out-
(a) the findings of the investigator or of the committee regarding the
circumstances in which the relevant incident occurred including, in
particular, any defects in official practices and procedures with
respect to public moneys and property of the Commonwealth that, in the
opinion of the investigator or of the committee, contributed to the
relevant incident;
(b) the amount that, in the assessment of the investigator or of the
committee, is equal to-
(i) in the case of an investigation into a loss of, or deficiency
in, public moneys-the amount of the loss or deficiency;
(ii) in the case of an investigation into loss or destruction of
property-the value of the property lost or destroyed; or
(iii) in the case of an investigation into damage to property-the
expense of repairing the damage to the property and the value
of the property;
(c) where, in the opinion of the investigator or of the committee,
sub-section 70AB (1) or (2) of the Act applies-
(i) the names of all officers who, in the opinion of the
investigator or of the committee, caused, or contributed to,
the relevant incident by their misconduct or gross negligence;
(ii) the extent to which, in the opinion of the investigator or of
the committee, any such officer should be held responsible for
the loss, deficiency, destruction or damage comprised in the
relevant incident; and
(iii) the reasons in support of the conclusions of the investigator
or of the committee, including, in particular, the reasons in
support of a conclusion that an officer displayed, in the
performance of his duties, a deliberate or serious disregard of
reasonable standards of care;
(d) where, in the opinion of the investigator or of the committee,
sub-section 70AB (4), (5) or (8) of the Act applies-
(i) the name of the officer who held, or had the control of, the
public moneys lost or in which a deficiency occurred or had the
control of the property lost, destroyed or damaged, as the case
requires; and
(ii) whether, in the view of the investigator or of the committee,
sub-section 70AB (7) or (9) of the Act applies in relation to
that officer;
(e) particulars of any mitigating circumstances that support a reduction
in the liability (if any) of any officer, including, in particular-
(i) the extent of the work experience of the officer;
(ii) the extent to which the officer was supervised in the
performance of such of his duties as related to the public
moneys or property in relation to which the relevant incident
occurred;
(iii) the adequacy of official instructions given to the officer with
respect to those duties;
(iv) the conditions under which, at the time at which the relevant
incident occurred, the officer was required to perform his
duties, including his workload and the facilities for the
performance of those duties;
(v) the reliability and efficiency of the officer in the
performance of his duties generally; and
(vi) the amount of any allowances to which the officer was entitled
by way of compensation for the assumption of responsibility for
any prescribed incident; and
(f) any other relevant matter that comes to the notice of the investigator
or of the committee.
"(15) The relevant supervisor may, at the request of an investigator or of the
chairman of an investigation committee made before the expiration of time for
the submission of a report under sub-regulation (14), extend that time by such
period, not exceeding 3 months, as he thinks fit.
"(16) The report of an investigator or of the chairman of an investigation
committee under sub-regulation (14) shall include-
(a) a record of each objection (if any) made by the relevant officer or
any other officer or witness appearing before the investigator or the
committee in relation to the procedure adopted at the investigation;
(b) an explanation of any refusal by the investigator or committee to
accommodate a request for the examination of a witness; and
(c) in the case of a report of an investigation committee-a record of any
dissenting opinion of a member of the committee.
"(17) Where an investigation committee, after carrying out an investigation
into a prescribed incident under this regulation, is of the opinion that an
officer is liable under section 70AB of the Act to pay an amount to the
Commonwealth in respect of the prescribed incident-
(a) the committee shall invite the officer to furnish the committee with
information regarding the current and prospective income and
expenditure, and the current and prospective assets and liabilities,
of the officer; and
(b) the chairman of the committee shall include in his report under
sub-regulation (14) any information so furnished by the officer.
"(18) Upon receipt of a report under sub-regulation (14), the relevant
supervisor shall cause a copy of the report to be given to-
(a) the relevant officer;
(b) any other officer identified in the report as an officer who, in the
opinion of the investigator or a member of the investigation committee
(as the case may be), should be held liable to make good, in whole or
in part, the loss, deficiency, destruction or damage comprised in the
relevant incident; and
(c) the Secretary of the Department of Finance, and may cause a copy of
the report to be given, upon request, to any other person. Reduction
of liability
"126D. (1) Where-
(a) but for this sub-regulation, an officer would, under sub-section 70AB
(1), (2), (4), (5) or (8) of the Act, be under a liability to the
Commonwealth in respect of a prescribed incident; and
(b) particulars of mitigating circumstances that support a reduction in
the amount of that liability (in this sub-regulation referred to as
the 'prescribed amount')-
(i) are set out in a report submitted under sub-regulation 126C
(14) in relation to the prescribed incident; or
(ii) are brought to the notice of a prescribed supervisor in
relation to the officer, the officer is liable to pay the
Commonwealth in respect of the prescribed incident so much only
of the prescribed amount as is just and equitable having regard
to the particulars referred to in paragraph (b).
"(2) Where-
(a) but for this sub-regulation, an officer would, under sub-section 70AB
(1), (2), (4), (5) or (8) of the Act or under sub-regulation (1), be
under a liability to the Commonwealth in respect of a prescribed
incident; and
(b) information contained in a report submitted under sub-regulation 126C
(14) in relation to the prescribed incident, or otherwise obtained by
a prescribed supervisor in relation to the officer, regarding the
current and prospective income and expenditure, and the current and
prospective assets and liabilities, of the officer discloses that it
would be unreasonable to expect that the officer would, at any time,
even if granted facilities of payment, be able to settle the amount of
that liability (in this sub-regulation referred to as the 'prescribed
amount'), the officer is liable to pay to the Commonwealth in respect
of the prescribed incident so much only of the prescribed amount as is
just and equitable having regard to the information referred to in
paragraph (b). Office prescribed for purpose of paragraph 70AG (c) of
the Act
"126E. For the purpose of paragraph 70AG (c) of the Act, the office prescribed
in respect of a prescribed authority is the office of the person who has,
under an Act, in relation to the branch or part of the Australian Public
Service comprising the staff of the prescribed authority, the powers of, or
exercisable by, the Secretary of a Department of the Australian Public Service
so far as those powers relate to that branch or part of that service.".
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