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This is a Bill, not an Act. For current law, see the Acts databases.
AUDITOR-GENERAL AMENDMENT BILL 2004
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Chief Minister)
Contents
Page
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Chief Minister)
Auditor-General
Amendment Bill 2004
A Bill for
An Act to amend the
Auditor-General Act
1996
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Auditor-General Amendment Act 2004.
This Act commences on the day after its notification day.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
This Act amends the Auditor-General Act 1996.
insert
3B Offences against Act—application of Criminal
Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to offences against this Act (see Code, pt
2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
5 Functions
and powersPart 3, new
note
before section 9, insert
Note Certain provisions of this part apply to an independent
auditor, see s 32.
6 Performance
auditsNew section 12
(1A)
insert
(1A) The auditor-general may at any time conduct a single performance
audit of 2 or more of the entities mentioned in subsection (1) in relation to
any aspect of the operations of the entities that the auditor-general is
satisfied is common to each of them.
renumber subsections when Act next republished under Legislation
Act
substitute
14 Power to obtain information
etc
(1) For this Act, the auditor-general may, by written notice, require a
person to do any 1 or more of the following:
(a) to give stated information to the auditor-general within a stated
reasonable time;
(b) to produce a stated document in the possession or control of the
person to the auditor-general within a stated reasonable time;
(c) to attend and answer questions before the auditor-general at a stated
reasonable time and place.
Note 1 For how the notice may be given, see Legislation Act,
pt 19.5.
Note 2 The notice may require a person to verify information or a
document by a statutory declaration (see Legislation Act, s 54 (1)).
Note 3 Document includes anything from which images, sounds,
messages or writings can be produced or reproduced, see Legislation Act, dict,
pt 1.
(2) The notice must—
(a) state that the requirement is made under this section; and
(b) contain a statement to the effect that failure to comply with the
notice is an offence; and
(c) contain a statement about the effect of section 14D (Privileges
against selfincrimination and exposure to civil penalty).
(3) To remove any doubt, a reference to the giving of information to, or
answering a question before, the auditor-general includes the giving of an
explanation in relation to something done or not done by a person.
(4) The regulations may prescribe fees and expenses payable to a person
who is given a notice under subsection (1).
14A Power to administer oath or
affirmation
(1) For section 14 (1) (c), the auditor-general may require the person to
answer questions on oath or affirmation.
Note For the taking of an oath or the making of an affirmation, see
the Oaths and Affirmations Act 1984.
(2) For subsection (1), the auditor-general may administer an oath or
affirmation to the person that the answers the person is to give will be
true.
14B Failure to comply with notice under s 14
(1)
(1) A person who is given a notice under section 14 (1) (a) or (b) (Power
to obtain information etc) commits an offence if the person fails to comply with
the notice.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
Note The Legislation Act, s 171 deals with client legal
privilege.
(2) A person who is given a notice under section 14 (1) (c) commits an
offence if the person fails to attend before the auditor-general in accordance
with the notice.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) An offence against this section is a strict liability
offence.
14C Attendance before
auditor-general—offences
(1) A person commits an offence if—
(a) the person is required by a notice under section 14 (1) (c) (Power to
obtain information etc) to attend and answer questions before the
auditor-general; and
(b) the person attends before the auditor-general; and
(c) the auditor-general requires the person to swear an oath or make an
affirmation that the answers the person is to give will be true; and
(d) the person fails to swear the oath or make the affirmation.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) A person commits an offence if—
(a) the person is required by a notice under section 14 (1) (c) to attend
and answer questions before the auditor-general; and
(b) the person attends before the auditor-general; and
(c) the auditor-general requires the person to answer a question;
and
(d) the person fails to answer the question.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) A person commits an offence if—
(a) the person is required by a notice under section 14 (1) (c) to attend
and answer questions before the auditor-general; and
(b) the person attends before the auditor-general; and
(c) the person fails to continue to attend as required by the
auditor-general until excused from further attendance.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(4) An offence against this section is a strict liability
offence.
14D Privileges against selfincrimination and exposure
to civil penalty
(1) This section applies if—
(a) a person is attending before the auditor-general in accordance with a
requirement under section 14 (Power to obtain information etc); and
(b) the auditor-general requires the person to give information or answer
a question.
(2) This section also applies if a person is required by a notice under
section 14 to produce a document.
(3) The person cannot rely on the common law privileges against
selfincrimination and exposure to the imposition of a civil penalty to refuse to
give the information, produce the document or answer the question.
Note The Legislation Act, s 171 deals with client legal
privilege.
(4) However, any information, document or thing obtained, directly or
indirectly, because of the giving of the information, the production of the
document or the answer to the question is not admissible in evidence against the
person in a civil or criminal proceeding, other than a proceeding for an offence
against this part or the Criminal Code, part 3.4 (False or misleading
statements, information and documents).
substitute
15 Access to premises and things
(1) For this Act, the auditor-general or an authorised person may, at any
reasonable time, enter and remain on premises occupied by the Territory or a
Territory entity.
(2) The auditor-general or an authorised person may do any 1 or more of
the following in relation to the premises or anything on the premises:
(a) examine and copy, or take extracts from, any document on the
premises;
(b) examine anything else on the premises;
(c) require a person on the premises to give the auditor-general or
authorised person reasonable help to exercise a function under this
section.
Example for par (a)
copying a computer file to a data storage device
Example for par (c)
assisting in accessing data held in or accessible from a computer on the
premises
Note 1 Document includes anything from which images, sounds,
messages or writings can be produced or reproduced, see Legislation Act, dict,
pt 1.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) The auditor-general is not entitled to enter or remain on the premises
if the auditor-general does not produce written proof of his or her appointment
when asked by a person on the premises.
(4) An authorised person is not entitled to enter or remain on the
premises if the person does not produce written proof of authority when asked by
a person on the premises.
(5) In this section:
authorised person means a person authorised in writing by the
auditor-general for this section.
premises includes land and any place.
15A Failure to comply with
requirement—offence
(1) A person commits an offence if—
(a) the auditor-general or an authorised person makes a requirement of the
person under section 15 (2) (c); and
(b) the person is informed by the auditor-general or authorised person to
the effect that failure to comply with the requirement is an offence;
and
(c) the person fails to comply with the requirement.
Maximum penalty: 50 penalty units.
Note The Legislation Act, s 171 deals with client legal
privilege.
(2) An offence against this section is a strict liability
offence.
(3) In this section:
authorised person—see section 15 (5).
substitute
16 Audit fees
(1) This section applies to an entity if—
(a) the entity’s annual financial statements are audited under the
Financial Management Act; or
(b) the entity’s accounts or records are audited under
section 11 (Special financial audits); or
(c) the entity’s accounts or records are audited under another
Territory law.
(2) The entity is liable to pay to the auditor-general on behalf of the
Territory fees for the audit based on a scale of fees decided by the
auditor-general.
(3) The fees are payable within 30 days after the day a claim for payment
is given to the person by the auditor-general.
(4) The auditor-general may make a claim for payment for an instalment of
the fees before the audit is finished.
(5) A report by the auditor-general under the Annual Reports
(Government Agencies) Act 2004 must include details of the basis on which
fees for audits conducted during the reporting period were decided by the
auditor-general.
substitute
19 Reporting sensitive
information
(1) The auditor-general must not include information in a report for the
Legislative Assembly if the auditor-general is of the opinion that the
disclosure of the information would be contrary to the public interest because
the disclosure could—
(a) be an unreasonable disclosure of personal information about a person;
or
(b) disclose a trade secret; or
(c) disclose information (other than a trade secret) having a commercial
value that would be, or could reasonably be expected to be, destroyed or
diminished if the information were disclosed; or
(d) be an unreasonable disclosure of information about the business,
commercial or financial interests or affairs of an entity; or
Note Entity includes a person,
see Legislation Act, dict, pt 1.
(e) prejudice the investigation of a contravention of a law; or
(f) prejudice the fair trial of a person; or
(g) prejudice relations between the Territory government and another
government.
(2) However, the auditor-general may include in the report information
mentioned in subsection (1) if the auditor-general is satisfied that the
substance of the information is public knowledge.
(3) If, under subsection (1), the auditor-general omits information from a
report for the Legislative Assembly, the auditor-general may prepare a special
report for the public accounts committee that includes the
information.
(4) The auditor-general must give the special report to the presiding
member of the committee.
(5) The presiding member must present the special report to the
committee.
(6) A special report presented to the committee is taken for all purposes
to have been referred to the committee by the Legislative Assembly for inquiry
and any report that the committee considers appropriate.
19A Deliberations etc of the
Executive
(1) The auditor-general must not include information in a report for the
Legislative Assembly if the information would disclose a deliberation or
decision of the Executive and a certificate under subsection (2) is in force in
relation to the information.
(2) The Chief Minister may give a certificate to the auditor-general that
the inclusion of particular information in a report for the Legislative Assembly
would disclose a deliberation or decision of the Executive and would be contrary
to the public interest.
substitute
32 Independent auditor—ancillary powers and
disclosure of information
(1) The following sections apply in relation to the exercise of the
functions of the independent auditor:
(a) section 14 (Power to obtain information etc);
(b) section 14A (Power to administer oath or affirmation);
(c) section 14B (Failure to comply with notice under s 14 (1));
(d) section 14C (Attendance before
auditor-general—offences);
(e) section 14D (Privileges against selfincrimination and exposure to
civil penalty);
(f) section 15 (Access to premises and things);
(g) section 15A (Failure to comply with
requirement—offence);
(h) section 19 (Reporting sensitive information);
(i) section 19A (Deliberations etc of the Executive);
(j) section 32B (Disclosure of protected information);
(k) section 32C (Directions about protected information);
(l) section 32D (Authorised disclosures of protected
information).
(2) The sections mentioned in subsection (1) apply to the independent
auditor as if any reference to the auditor-general were a reference to the
independent auditor and any other necessary changes were made.
13 New
sections 32A to 32D
in part 6, insert
32A Meaning of protected information for pt
6
In this part:
protected information means information obtained by a person
while the person was exercising a function of the auditor-general.
32B Disclosure of protected
information
(1) A person commits an offence if—
(a) the person is exercising, or has exercised, a function of the
auditor-general; and
(b) the person discloses protected information to someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
Note See s 32D for when s (1) does not apply.
(2) An offence against this section is a strict liability
offence.
32C Directions about protected
information
(1) The auditor-general, or a person authorised by the auditor-general (an
authorised person), may give a direction to a person prohibiting
or restricting the disclosure of protected information.
(2) In deciding whether to give a direction under subsection (1), the
auditor-general or authorised person must have regard to whether the
direction—
(a) would promote the purposes of this Act; or
(b) is necessary or desirable to protect the integrity of an audit or
investigation (however described) by the auditor-general.
(3) The auditor-general or authorised person may also have regard to any
other relevant matter in deciding whether to give a direction under subsection
(1).
(4) A person commits an offence if—
(a) the auditor-general or an authorised person has given to the person or
someone else a direction under subsection (1) prohibiting or restricting the
disclosure of protected information; and
(b) the person knows that the direction has been given; and
(c) the person discloses the information to someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
32D Authorised disclosures of protected
information
(1) Section 32B (1) and section 32C (4) do not apply if the
information—
(a) is disclosed in the exercise of a function of the auditor-general;
or
(b) is disclosed in accordance with a direction of the Minister; or
(c) is disclosed to an entity prescribed under the regulations;
or
(d) is about a person (the first person) and the disclosure
is made to someone else with the express or implied consent of the first
person.
(2) The Minister may give a direction under subsection (1) (b) only if the
Minister certifies that the disclosure of the information is necessary in the
public interest.
14 Confidentiality
Section 34
omit
renumber sections when Act next republished under Legislation
Act
insert
• entity
• exercise
• fail
• law, of the Territory
• Territory authority
• under
17 Dictionary,
new definition of protected information
insert
protected information, for part 6 (Miscellaneous)—see
section 32A.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2004.
2 Notification
Notified under the Legislation Act on 2004.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2004
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