Contents
Part 1—Preliminary
1............ Short title............................................................................................
2............ Commencement..................................................................................
3............ This Act binds the Crown..................................................................
4............ This Act extends to things outside Australia.....................................
Part 2—General provisions about definitions, offences and
civil penalties
5............ Definitions..........................................................................................
6............ Offences and civil penalties................................................................
Part 3—Reporting and other obligations for Commonwealth
authorities
Division 1—Preliminary
7............ Meaning of Commonwealth authority................................................
8............ Role of Auditor‑General.....................................................................
Division 2—Reporting obligations
Subdivision A—Annual report and related obligations
9............ Directors must prepare annual report................................................
10.......... Modified requirements for first year of existence..............................
11.......... Contravention of annual report rules by directors...........................
12.......... Audit of relevant subsidiary’s financial
statements.........................
Subdivision B—Other reporting obligations
13.......... Interim reports..................................................................................
14.......... Estimates..........................................................................................
15.......... Responsible Minister to be notified of
significant events................
16.......... Keeping responsible Minister and Finance Minister
informed........
17.......... Corporate plan for GBE...................................................................
Division 3—Banking, investment etc.
18.......... Banking and investment (authorities other than
GBEs and SMAs).
19.......... Banking and investment (GBEs and SMAs)....................................
20.......... Accounting records...........................................................................
Division 4—Conduct of officers
21.......... Directors must disclose material personal
interests.........................
22.......... General obligations on officers.........................................................
23.......... Officers must not make improper use of inside
information or position
24.......... Effect of civil penalty disqualification on being
a director...............
25.......... Other obligations and remedies not affected.....................................
26.......... Indemnifying officers........................................................................
27.......... Insurance premiums for indemnity insurance of officers.................
Division 5—Miscellaneous
28.......... Compliance with general policies of the
Government......................
29.......... Activities of subsidiaries..................................................................
30.......... Aligning accounting periods of subsidiaries......................................
31.......... Exemption from requirement to align accounting
periods of subsidiaries
32.......... Audit committee...............................................................................
33.......... Special rules for Commonwealth authorities
established by regulations etc.
Part 4—Reporting and other obligations for Commonwealth
companies
Division 1—Preliminary
34.......... Meaning of Commonwealth company and wholly‑owned
Commonwealth company
35.......... Role of Auditor‑General...................................................................
Division 2—Reporting obligations
Subdivision A—Annual report and related obligations
36.......... Annual Report..................................................................................
37.......... Audit of relevant subsidiary’s financial
statements.........................
Subdivision B—Other reporting obligations
38.......... Interim reports..................................................................................
39.......... Estimates..........................................................................................
40.......... Responsible Minister to be notified of
significant events................
41.......... Keeping responsible Minister and Finance Minister
informed........
42.......... Corporate plan for GBE...................................................................
Subdivision C—Miscellaneous
43.......... Compliance with general policies of the
Government......................
44.......... Audit committee...............................................................................
Part 5—Miscellaneous
45.......... Ministers must inform Parliament of share
acquisitions etc............
46.......... Companies conducted for the purposes of
intelligence or security agencies
47.......... Regulations may deal with how this Act applies if
body stops being a Commonwealth authority
48.......... Finance Minister’s Orders................................................................
49.......... Regulations.......................................................................................
Schedule 1—Annual Report for Commonwealth Authority
Part 1—Contents of annual report
1............ Summary of contents........................................................................
2............ Financial statements.........................................................................
Part 2—Auditor’s report on financial statements
3............ Whether the statements comply with the Finance
Minister’s Orders
4............ Proper accounting records not kept..................................................
5............ Inadequate information and explanations.........................................
6............ Subsidiaries’ financial statements.....................................................
7............ Deficiencies in consolidation............................................................
Schedule 2—Civil and criminal consequences of contravening
civil penalty provisions
Part 1—Preliminary
1............ Interpretation....................................................................................
2............ Civil penalty provisions...................................................................
3............ Person involved in contravening a provision
taken to have contravened the provision
Part 2—Civil penalty orders
4............ Court may make civil penalty orders...............................................
5............ Who may apply for civil penalty order............................................
6............ Time limit for application.................................................................
7............ Application for civil penalty order is a civil
proceeding..................
8............ Person must comply with order not to be a
director of a Commonwealth authority
9............ Enforcement of order to pay pecuniary penalty..............................
10.......... Finance Minister may require a person to give
assistance in connection with application for civil penalty order
Part 3—Criminal proceedings
11.......... When contravention of civil penalty provision is
an offence...........
12.......... Person convicted of clause 11 offence not to be a
director of a Commonwealth authority
13.......... Application for civil penalty order precludes
later criminal proceedings
Part 4—Effect of criminal proceedings on application for civil
penalty order
14.......... When Part applies............................................................................
15.......... Effect during criminal proceedings....................................................
16.......... Final outcome precluding application for civil
penalty order...........
17.......... Final outcome not precluding application for
civil penalty order....
18.......... After unsuccessful committal proceeding, court
may preclude application for civil penalty order
19.......... Application for civil penalty order based on
alternative verdict at jury trial
20.......... Application for civil penalty order based on
alternative finding by court of summary jurisdiction
21.......... Application for civil penalty order based on
alternative finding by appeal court
22.......... After setting aside declaration, court may
preclude application for civil penalty order
23.......... On unsuccessful appeal against declaration, Court
may make civil penalty orders
24.......... Appeals under this Part....................................................................
Part 5—Compensation for loss suffered by Commonwealth
authority
25.......... On application for civil penalty order, Court may
order compensation
26.......... Criminal court may order compensation..........................................
27.......... Enforcement of order under clause 25 or 26.....................................
28.......... Recovery of profits, and compensation for loss,
resulting from contravention
29.......... Effect of clauses 25, 26 and 28.........................................................
30.......... Certificates evidencing contravention...............................................
Part 6—Miscellaneous
31.......... Relief from liability for contravention of civil
penalty provision....
32.......... Schedule does not limit power to award punitive
damages..............
Commonwealth Authorities and Companies Act 1997
No. 153, 1997
An Act to provide reporting, accountability and other rules for
Commonwealth authorities and Commonwealth companies, and for related purposes
[Assented to 24 October 1997]
The Parliament of Australia enacts:
Part 1—Preliminary
1 Short title
This Act may be cited as the Commonwealth
Authorities and Companies Act 1997.
2
Commencement
This Act commences on the same day as
the Financial Management and Accountability Act 1997.
3
This Act binds the Crown
This Act binds the Crown in right of the
Commonwealth, but does not make the Crown liable to be prosecuted for an
offence.
4
This Act extends to things outside Australia
This Act extends to acts, omissions,
matters and things outside Australia (unless the contrary intention appears).
Part 2—General provisions about definitions, offences and civil
penalties
5 Definitions
In this Act, unless the contrary
intention appears:
bank means:
(a) a person who carries on the business
of banking, either in Australia or outside Australia; or
(b) any other institution:
(i) that carries on a business
in Australia that consists of or includes taking money on deposit; and
(ii) the operations of which
are subject to prudential supervision or regulation under a law of the
Commonwealth, a State or a Territory.
Commonwealth authority has the meaning given
by section 7.
Commonwealth company has the meaning given by
section 34.
consolidated financial statements, in
relation to a Commonwealth authority or Commonwealth company, means financial
statements for the group consisting of:
(a) the authority or company; and
(b) the entities that were subsidiaries
at any relevant time.
Corporations Law has the same meaning as in
the Corporations Act 1989.
Corporations Law company means a body
corporate that is incorporated, or taken to be incorporated, under the
Corporations Law of a State or Territory.
director means:
(a) for a Commonwealth authority that
has a council or other governing body—a member of the governing body; or
(b) for a Commonwealth authority that
does not have a council or other governing body—a member of the authority; or
(c) for a Commonwealth company—a person
who is a director of the company for the purposes of the Corporations Law.
Finance Minister means the Minister who
administers this Act.
Finance Minister’s Orders means Orders made
under section 48.
financial statements includes consolidated
financial statements.
financial year:
(a) means, for a Commonwealth authority:
(i) a period of 12 months
commencing on 1 July; or
(ii) if the incorporating law
specifies another period of 12 months as the financial year for the authority
for the purpose of this Act—a period of 12 months as so specified; and
(b) means, for a Commonwealth company,
the company’s annual accounting period.
GBE or government business enterprise
means a Commonwealth authority or Commonwealth company that is prescribed by
the regulations for the purpose of this definition.
incorporating law, in relation to a
Commonwealth authority, means the Act, regulations or Ordinance by which the
authority is incorporated.
Minister includes the President of the Senate
and the Speaker of the House of Representatives.
officer, in relation to a Commonwealth
authority, means:
(a) a director of the authority; or
(b) any other person who is concerned
in, or takes part in, the management of the authority.
responsible Minister means:
(a) for a Commonwealth authority—the Minister
who is responsible for the authority; or
(b) for a Commonwealth company:
(i) the Minister who is
prescribed by the regulations as the Minister responsible for the company; or
(ii) if no Minister is
prescribed—the Minister who is responsible for the company.
SMA or statutory marketing authority
means a Commonwealth authority that is prescribed by the regulations for the
purpose of this definition.
subsidiary, in relation to a Commonwealth
authority or Commonwealth company, means an entity that is controlled by the
Commonwealth authority 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 Law.
wholly‑owned Commonwealth
company has the meaning given by section 34.
6
Offences and civil penalties
(1) Chapter 2 of the Criminal Code
applies to all offences against this Act, other than offences against
provisions of Schedule 2.
(2) Schedule 2 deals with the civil and
criminal consequences of contravening civil penalty provisions.
(3) A maximum penalty that is specified:
(a) at the foot of a section of this Act
(other than a section that is divided into subsections); or
(b) at the foot of a subsection of this
Act;
indicates that a person who contravenes the section or
subsection is guilty of an offence against the section or subsection that is
punishable, on conviction, by a penalty up to that maximum.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: If the specified penalty is imprisonment only,
section 4B of the Crimes Act 1914 allows the court to impose a fine
instead of imprisonment or in addition to imprisonment.
Part 3—Reporting and other obligations for Commonwealth authorities
Division 1—Preliminary
7
Meaning of Commonwealth authority
(1) In this Act, Commonwealth authority
means either of the following kinds of body that holds money on its own
account:
(a) a body corporate that is
incorporated for a public purpose by an Act;
(b) a body corporate that is
incorporated for a public purpose by:
(i) regulations under an Act;
or
(ii) an Ordinance of an
external Territory (other than Norfolk Island) or regulations under such an
Ordinance;
and is prescribed for the purposes
of this paragraph by regulations under this Act.
(2) None of the following are Commonwealth
authorities:
(a) Corporations Law companies;
(b) Aboriginal associations incorporated
under Part IV of the Aboriginal Councils and Associations Act 1976;
(c) associations of employees that are
organisations within the meaning of the Workplace Relations Act 1996.
(3) For the purposes of subsection (1), all
money that a body holds is taken to be held by it on its own account, unless
the money is public money as defined in section 5 of the Financial
Management and Accountability Act 1997.
8 Role of Auditor‑General
(1) The Auditor‑General is to be the
auditor of each Commonwealth authority.
(2) The Auditor‑General is to audit the
financial statements of each subsidiary of a Commonwealth authority (there are
exceptions to this—see subsection 12(4)).
Note: If the Auditor‑General is not the
subsidiary’s auditor, this means that the Auditor‑General has to do an
audit of the statements in addition to that done by the subsidiary’s auditor.
Division
2—Reporting obligations
Subdivision
A—Annual report and related obligations
9
Directors must prepare annual report
(1) The directors of a Commonwealth authority
must:
(a) prepare an annual report in
accordance with Schedule 1 for each financial year; and
(b) give it to the responsible Minister
by the deadline for the financial year.
The deadline is the 15th day of the 4th month after the
end of the financial year.
Note: The deadline will be 15 October if the
financial year ends on 30 June. Financial year is defined in
section 5.
(2) The responsible Minister may grant an
extension of time in special circumstances.
(3) The responsible Minister must table the
report in each House of the Parliament as soon as practicable.
10
Modified requirements for first year of existence
(1) If a Commonwealth authority is established
during the last 3 months of a financial year:
(a) the directors are not required to
prepare an annual report for that financial year; and
(b) the period from the time of
establishment to the end of the financial year must be dealt with in the next
annual report.
(2) If a Commonwealth authority is
established during the first 9 months of a financial year, the annual report
for the financial year must cover the period from the time of establishment to
the end of the financial year.
11
Contravention of annual report rules by directors
(1) If a directors reporting rule is
contravened, each director who:
(a) caused the contravention; or
(b) failed to take all reasonable steps
to comply with the rule, or secure compliance with the rule;
contravenes this subsection.
Note: This is a civil penalty provision and Schedule
2 sets out the civil and criminal consequences of contravening it.
(2) If a contravention of a directors
reporting rule consists of an omission from the financial statements, it is a
defence if the defendant proves that the information omitted was immaterial and
did not affect the giving of a true and fair view of the matters required by
the Finance Minister’s Orders to be included in the statements.
(3) In this section:
directors reporting rule means subsection
9(1) or any of the requirements of Schedule 1 that impose obligations on the
directors.
12
Audit of relevant subsidiary’s financial statements
(1) Subject to subsection (4), the directors
of a Commonwealth authority must do whatever is necessary to ensure that all
relevant subsidiary’s financial statements are audited by the Auditor‑General.
(2) For a subsidiary that is a Corporations
Law company that, under the Corporations Law, 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 Law. Those rules must also be used for other subsidiaries, so far
as is practicable.
(3) The Auditor‑General must give the
report to the responsible Minister, together with a copy of the relevant
subsidiary’s financial statements.
(4) Relevant financial statements of a
subsidiary do not have to be audited by the Auditor‑General if:
(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.
(5) In this section:
relevant subsidiary’s financial statements,
in relation to a Commonwealth authority, means financial statements of an
entity for an annual accounting period of the entity, where the entity is a
subsidiary of the authority at the end of that accounting period.
Subdivision
B—Other reporting obligations
13 Interim reports
(1) The Finance Minister may, by notice in
the Gazette, require particular Commonwealth authorities or a class of
Commonwealth authorities to give the responsible Minister either:
(a) an interim report for the first 6
months of a financial year; or
(b) an interim report for each of the
following periods:
(i) the first 3 months of each
financial year;
(ii) the first 6 months of each
financial year;
(iii) the first 9 months of each
financial year.
(2) The interim report must include:
(a) a report of operations, prepared by
the directors in accordance with the Finance Minister’s Orders; and
(b) financial statements, prepared by
the directors in accordance with the Finance Minister’s Orders; and
(c) a report prepared by the Auditor‑General
in accordance with the regulations.
(3) The directors must give the interim
report to the responsible Minister within 2 months after the end of the period
to which the report relates.
(4) The responsible Minister may grant an
extension of time in special circumstances.
(5) The responsible Minister must table the
interim report in each House of the Parliament as soon as practicable.
14
Estimates
(1) The directors of a Commonwealth authority
(other than a GBE) must prepare budget estimates for each financial year, and
for any other periods directed by the responsible Minister.
(2) The estimates:
(a) must be in the form required by the
responsible Minister; and
(b) must be given to the responsible
Minister within the time required by the responsible Minister.
15
Responsible Minister to be notified of significant events
(1) If a Commonwealth authority, or any of
its subsidiaries, proposes to do any of the following things, the directors of
the Commonwealth authority must immediately give the responsible Minister
written particulars of the proposal:
(a) form a company or participate in the
formation of a company;
(b) participate in a significant
partnership, trust, unincorporated joint venture or similar arrangement;
(c) acquire or dispose of a significant
shareholding in a company;
(d) acquire or dispose of a significant
business;
(e) commence or cease a significant
business activity;
(f) make a significant change in the
nature or extent of its interest in a significant partnership, trust,
unincorporated joint venture or similar arrangement.
(2) The responsible Minister may in writing
exempt the directors of a Commonwealth authority from the requirement to notify
matters covered by paragraph (1)(a). The exemption may be granted subject to
conditions.
(3) The responsible Minister may give written
guidelines to the directors that are to be used by the directors in deciding
whether a proposal is covered by paragraph (1)(b), (c), (d), (e) or (f).
16
Keeping responsible Minister and Finance Minister informed
(1) The directors of a Commonwealth authority
must:
(a) keep the responsible Minister
informed of the operations of the authority and its subsidiaries; and
(b) give the responsible Minister such
reports, documents and information in relation to those operations as the
responsible Minister requires; and
(c) give the Finance Minister such
reports, documents and information in relation to those operations as the
Finance Minister requires.
(2) The directors must comply with
requirements under paragraphs (1)(b) and (c) within the time limits set by the
Minister concerned.
17
Corporate plan for GBE
(1) This section applies to a Commonwealth
authority that is a GBE.
(2) The directors must prepare a corporate
plan at least once a year and give it to the responsible Minister.
(3) The plan must cover a period of at least
3 years.
(4) If the Commonwealth authority has
subsidiaries, the plan must cover both the authority and its subsidiaries. In
particular, for each subsidiary the plan must include details of the matters in
subsection (6), so far as they are applicable.
(5) The directors must keep the responsible
Minister informed about:
(a) significant changes to the plan; and
(b) matters that arise that might
significantly affect the achievement of the objectives in the plan.
(6) The plan must include details of the
following matters (so far as they are applicable):
(a) the objectives of the authority;
(b) assumptions about the business
environment in which the authority operates;
(c) the business strategies of the
authority;
(d) the investment and financing
programs of the authority, including strategies for managing financial risk;
(e) financial targets and projections
for the authority;
(f) the dividend policy of the
authority;
(g) non‑financial performance
measures for the authority;
(h) community service obligations of the
authority and the strategies and policies the authority is to follow to carry
out those obligations;
(i) review of performance against
previous corporate plans and targets;
(j) analysis of factors likely to
affect achievement of targets or create significant financial risk for the
authority or for the Commonwealth;
(k) price control and quality control
strategies for goods or services supplied by the authority under a monopoly;
(l) human resource strategies and
industrial relations strategies.
(7) The plan must also cover any other
matters required by the responsible Minister (which may include further details
about the matters in subsection (6)).
(8) The responsible Minister may give written
guidelines to the directors that are to be used by the directors in deciding which
matters are covered by subsection (5).
Division
3—Banking, investment etc.
18
Banking and investment (authorities other than GBEs and SMAs)
(1) This section applies to a Commonwealth
authority that is not a GBE or SMA.
(2) The authority must pay all money received
by it into an account maintained by it with a bank.
(3) The authority may invest surplus money:
(a) on deposit with a bank; or
(b) in securities of the Commonwealth or
of a State or Territory; or
(c) in securities guaranteed by the
Commonwealth, a State or a Territory; or
(d) in any other manner approved by the
Treasurer.
(4) A provision in the authority’s
incorporating law to the effect that the authority 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 does not apply to a
contract for the investment of money under subsection (3), unless the provision
expressly states that it applies to such a contract.
(5) In this section:
surplus money means money of the authority
that is not immediately required for the purposes of the authority.
19
Banking and investment (GBEs and SMAs)
(1) This section applies to a Commonwealth
authority that is a GBE or SMA.
(2) The authority must pay all money received
by it into an account maintained by it with a bank.
(3) The authority may invest surplus money:
(a) on deposit with any bank; or
(b) in securities of the Commonwealth or
of a State or Territory; or
(c) in securities guaranteed by the
Commonwealth, a State or a Territory; or
(d) in any other manner that is
consistent with sound commercial practice.
(4) A provision in the authority’s
incorporating law to the effect that the authority 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 does not apply to a
contract for the investment of money under subsection (3), unless the provision
expressly states that it applies to such a contract.
(5) In this section:
surplus money means money of the authority
that is not immediately required for the purposes of the authority.
20
Accounting records
(1) A Commonwealth authority must keep
accounting records that properly record and explain its transactions and
financial position and must keep those records in a way that:
(a) enables the preparation of the
financial statements required by this Act; and
(b) allows those financial statements to
be conveniently and properly audited in accordance with this Act.
(2) The authority must retain the records for
at least 7 years after completion of the transactions to which they relate.
(3) The authority must make the records
available at all reasonable times for inspection by any director of the
authority.
(4) If a requirement of this section is
contravened, each officer of the authority who:
(a) caused the contravention; or
(b) failed to take all reasonable steps
to comply with the requirement, or secure compliance with the requirement;
is guilty of an offence.
Maximum penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Division
4—Conduct of officers
21
Directors must disclose material personal interests
(1) A director of a Commonwealth authority
who has a material personal interest in a matter that is being considered, or
is about to be considered, by the Board must disclose the nature of the
interest at a meeting of the Board.
(2) The disclosure must be made as soon as
possible after the relevant facts have come to the director’s knowledge, and
must be recorded in the minutes of the meeting.
(3) Unless the Board or the responsible
Minister otherwise determines, the director:
(a) must not be present during any
deliberation by the Board on the matter; and
(b) must not take part in any decision
of the Board on the matter.
(4) For the purpose of a determination being
made under subsection (3), any director who has a material personal interest in
the matter to which the disclosure relates:
(a) must not be present during any
deliberation by the Board on whether to make the determination; and
(b) must not take part in making the
determination.
(5) In this section:
Board means the directors of the authority.
Note: In some cases, the members of the authority
will be the directors. See the definition of director in section
5.
22
General obligations on officers
(1) An officer of a Commonwealth authority
must at all times act honestly in the exercise of his or her powers and the
discharge of his or her duties as an officer.
Note: This is a civil penalty provision and Schedule
2 sets out the civil and criminal consequences of contravening it.
(2) An officer of a Commonwealth authority
must, in the exercise of his or her powers and the discharge of his or her
duties as an officer, exercise the degree of care and diligence that a
reasonable person in a like position in a Commonwealth authority would exercise
in the authority’s circumstances.
Note: This is a civil penalty provision and Schedule
2 sets out the civil and criminal consequences of contravening it.
23
Officers must not make improper use of inside information or position
(1) An officer (or former officer) of a
Commonwealth authority must not make improper use of inside information or of
his or her position as an officer in order to:
(a) gain an advantage, either directly
or indirectly, for himself or herself or for another person; or
(b) cause detriment to the authority or
to another person.
Note: This is a civil penalty provision and Schedule
2 sets out the civil and criminal consequences of contravening it.
(2) If an officer is also a public servant,
nothing done by the officer in the normal course of the performance of his or
her duties as a public servant is to be regarded as improper for the purposes
of subsection (1). For this purpose, public servant means an
officer or employee within the meaning of the Public Service Act 1922.
(3) In this section:
inside information means information obtained
because of the person’s position as an officer.
24
Effect of civil penalty disqualification on being a director
(1) The office of a director of a
Commonwealth authority is, by force of this section, vacated if the person
holding the office:
(a) becomes subject to a civil penalty
disqualification; or
(b) is convicted of an offence of which
he or she is guilty because of clause 11 of Schedule 2.
(2) A person whose office is vacated because
of paragraph (1)(a) cannot, without leave granted under clause 8 of Schedule 2,
be reappointed as a director until the end of the period specified in the
disqualification.
(3) A person whose office is vacated because
of paragraph (1)(b) cannot, without leave granted under clause 12 of
Schedule 2, be reappointed as a director until the end of the period of 5
years referred to in subclause 12(1) of that Schedule.
(4) For the purposes of this section, a
person is or becomes subject to a civil penalty disqualification
if, and only if, an order relating to the person is in force, or is made, under
paragraph 4(3)(a) of Schedule 2.
25
Other obligations and remedies not affected
This Division:
(a) does not detract from any rule of
law relating to the duty or liability that a person has because of the person’s
office or employment in relation to a Commonwealth authority; and
(b) does not prevent civil proceedings
being instituted for breach of such a duty or in respect of such a liability.
26
Indemnifying officers
(1) A Commonwealth authority or a subsidiary
of a Commonwealth authority must not indemnify a person who is or has been an
officer of the authority against either of the following liabilities incurred
by the person as an officer of the authority:
(a) a liability to the authority or to
any subsidiary of the authority;
(b) a liability to another person (other
than the authority or a subsidiary of the authority) arising out of conduct
involving a lack of good faith.
(2) Subsection (1) does not prevent a person
from being indemnified against either of the following liabilities:
(a) a liability for costs or expenses
incurred by the person in defending civil proceedings in which judgment is
given in favour of the person;
(b) a liability for costs or expenses
incurred by the person in defending criminal proceedings in which the person is
acquitted.
(3) Subject to this section, a Commonwealth
authority may indemnify a person who is or has been an officer of the authority
against liabilities incurred by the person as an officer of the authority.
(4) A Commonwealth authority (or a subsidiary
of a Commonwealth authority) must not exempt a person who is or has been an
officer of the authority from any liability incurred by the person as an
officer of the authority.
(5) In this section:
indemnify includes indemnify indirectly
through one or more interposed entities.
27
Insurance premiums for indemnity insurance of officers
(1) A Commonwealth authority or a subsidiary
of a Commonwealth authority must not pay, or agree to pay, a premium on a
contract that insures a person who is or has been an officer of the authority
against a liability:
(a) incurred by the person as an officer
of the authority; and
(b) arising out of conduct that involves
a contravention of section 23 or a wilful breach of duty in relation to
the authority.
(2) If subsection (1) is contravened, the
contract is void in so far as it insures the person against such a liability.
(3) Subsections (1) and (2) do not apply to a
liability for costs and expenses incurred by a person in defending civil or
criminal proceedings, whatever their outcome.
(4) Subject to this section, a Commonwealth
authority may insure a person who is or has been an officer against liabilities
incurred by the person as an officer.
(5) In this section:
pay includes pay indirectly through one or
more interposed entities.
Division
5—Miscellaneous
28
Compliance with general policies of the Government
(1) The responsible Minister may notify the
directors of a Commonwealth authority in writing of general policies of the
Commonwealth Government that are to apply to the authority. The responsible
Minister must consult the directors before notifying them of the policies.
(2) The directors must ensure that the
policies are carried out in relation to the authority.
(3) The directors must also ensure, as far as
practicable, that the policies are carried out in relation to the subsidiaries
of the authority.
(4) The responsible Minister may, in writing,
exempt the directors of a Commonwealth authority from subsection (2) or (3) in
relation to specified activities.
29
Activities of subsidiaries
A Commonwealth authority must ensure
that none of its subsidiaries does anything that the authority does not itself
have power to do.
30
Aligning accounting periods of subsidiaries
(1) If the annual accounting period of a
subsidiary of a Commonwealth authority is not the same as the financial year of
the authority, the directors of the authority must do whatever is necessary to
ensure that the annual accounting period of the subsidiary becomes the same as
the authority’s financial year:
(a) within 12 months after the
subsidiary becomes a subsidiary; or
(b) within 12 months after the
commencement of this Act;
whichever is later.
(2) If the annual accounting period of a
subsidiary is already the same as the authority’s financial year, the directors
must do whatever is necessary to ensure that it continues to be the same.
(3) If this section is contravened, each
director who:
(a) caused the contravention; or
(b) failed to take all reasonable steps
to comply with this section, or secure compliance with this section;
is guilty of an offence.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: Section 4AA of the Crimes Act 1914 sets
the current value of a penalty unit.
31
Exemption from requirement to align accounting periods of subsidiaries
(1) The Finance Minister may grant a written
exemption to the directors of a Commonwealth authority from the requirements of
section 30, either generally or in relation to one or more subsidiaries.
(2) The exemption may be granted subject to
conditions.
(3) The Finance Minister may, on behalf of
the Commonwealth, engage a registered company auditor to investigate and report
on an exemption application. For this purpose, registered company auditor
means a person who is registered, or taken to be registered, as an auditor
under the Corporations Law of a State or Territory.
(4) The authority is liable to reimburse the
Commonwealth for the costs of the investigation and report.
32
Audit committee
(1) The directors of a Commonwealth authority
must establish and maintain an audit committee with functions that include:
(a) helping the authority and its
directors to comply with obligations under this Act; and
(b) providing a forum for communication
between the directors, the senior managers of the authority and the internal
and external auditors of the authority.
(2) If the regulations state how the
committee is to be constituted, it must be constituted in accordance with the
regulations.
33
Special rules for Commonwealth authorities established by regulations etc.
(1) The application of this Act to
Commonwealth authorities covered by paragraph 7(1)(b) is subject to any
modifications that are prescribed by the regulations.
(2) In this section:
modifications includes additions, omissions
and substitutions.
Part 4—Reporting and other obligations for Commonwealth companies
Division
1—Preliminary
34
Meaning of Commonwealth company and wholly‑owned Commonwealth
company
(1) In this Act, Commonwealth company
means a Corporations Law company in which the Commonwealth has a controlling
interest. However, it does not include a company in which the Commonwealth has
a controlling interest through one or more interposed Commonwealth authorities
or Commonwealth companies.
(2) In this Act, wholly‑owned
Commonwealth company means any
Commonwealth company, other than a company any of the shares in which are
beneficially owned by a person other than the Commonwealth.
35 Role of Auditor‑General
(1) The Auditor‑General is, in relation
to each Commonwealth company, either:
(a) to be the auditor of the company
under the Corporations Law; or
(b) if someone else is the company’s
auditor—to give a report on the company’s financial statements (see
subsection 36(2)).
(2) The Auditor‑General is to audit the
financial statements of each subsidiary of a Commonwealth company (there are
exceptions to this—see subsection 37(4)).
Note: If the Auditor‑General is not the
subsidiary’s auditor, this means that the Auditor‑General has to do an
audit of the statements in addition to that done by the subsidiary’s auditor.
Division
2—Reporting obligations
Subdivision
A—Annual report and related obligations
36
Annual Report
(1) At least 14 days before each annual
general meeting, a Commonwealth company must give the responsible Minister:
(a) a copy of the company’s annual
report that includes the company’s annual general meeting documents (or, if
there is no such annual report, a copy of the company’s annual general meeting
documents); and
(b) any additional report under
subsection (2).
For this purpose, annual general meeting documents
means the documents relating to a financial year that the company is required
by the Corporations Law to lay before its annual general meeting.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: Section 4AA of the Crimes Act 1914 sets
the current value of a penalty unit.
(2) If the auditor’s report required by the
Corporations Law 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.
(3) In preparing a report for the purposes of
subsection (2), the Auditor‑General must use the same Corporations Law
rules as applied to the report by the other auditor.
(4) If the Commonwealth company is a wholly‑owned
Commonwealth company, the responsible Minister must table the documents in
each House of the Parliament as soon as practicable after receiving them. In
all other cases, the Minister must table the documents in each House of the
Parliament as soon as practicable after the annual general meeting of the
company.
(5) The regulations may make provision
dealing with how this section applies to a Commonwealth company that is not
required to hold an annual general meeting or in relation to which an auditor’s
report is not required to be prepared.
(6) Without limiting the generality of
subsection (5), regulations for the purposes of that subsection may provide
that this section applies with specified modifications.
37
Audit of relevant subsidiary’s financial statements
(1) Subject to subsection (4), the directors
of a Commonwealth company must do whatever is necessary to ensure that all
relevant subsidiary’s financial statements are audited by the Auditor‑General.
(2) For a subsidiary that is a Corporations
Law company that, under the Corporations Law, is required to have financial
statements audited, the Auditor‑General’s report must be prepared using
the relevant rules in the Corporations Law. Those rules must also be used for
other subsidiaries, so far as is practicable.
(3) The Auditor‑General must give the
report to the responsible Minister, together with a copy of the relevant
subsidiary’s financial statements.
(4) Relevant financial statements of a
subsidiary do not have to be audited by the Auditor‑General if:
(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.
(5) In this section:
relevant subsidiary’s financial statements,
in relation to a Commonwealth company, means financial statements of an entity
for an annual accounting period of the entity, where the entity is a subsidiary
of the company at the end of that accounting period.
Subdivision
B—Other reporting obligations
38 Interim reports
(1) The Finance Minister may, by notice in
the Gazette, require particular wholly‑owned Commonwealth
companies or a class of wholly‑owned Commonwealth companies to give the
responsible Minister either:
(a) an interim report for the first 6
months of a financial year; or
(b) an interim report for each of the
following periods:
(i) the first 3 months of each
financial year;
(ii) the first 6 months of each
financial year;
(iii) the first 9 months of each
financial year.
(2) The interim report must include:
(a) a report of operations, prepared by
the directors in accordance with the Finance Minister’s Orders; and
(b) financial statements, prepared by
the directors in accordance with the Finance Minister’s Orders; and
(c) a report prepared by the Auditor‑General
in accordance with the regulations.
(3) The directors must give the interim
report to the responsible Minister within 2 months after the end of the period
to which the report relates.
(4) The responsible Minister may grant an
extension of time in special circumstances.
(5) The responsible Minister must table the
interim report in each House of the Parliament as soon as practicable.
39 Estimates
(1) The directors of a wholly‑owned Commonwealth
company (other than a GBE) must prepare budget estimates for each financial
year, and for any other periods directed by the responsible Minister.
(2) The estimates:
(a) must be in the form required by the
responsible Minister; and
(b) must be given to the responsible
Minister within the time required by the responsible Minister.
40
Responsible Minister to be notified of significant events
(1) If a wholly‑owned Commonwealth
company, or any of its subsidiaries, proposes to do any of the following
things, the directors of the Commonwealth company must immediately give the
responsible Minister written particulars of the proposal:
(a) form a company or participate in the
formation of a company;
(b) participate in a significant
partnership, trust, unincorporated joint venture or similar arrangement;
(c) acquire or dispose of a significant
shareholding in a company;
(d) acquire or dispose of a significant
business;
(e) commence or cease a significant
business activity;
(f) make a significant change in the
nature or extent of its interest in a significant partnership, trust,
unincorporated joint venture or similar arrangement.
(2) The responsible Minister may in writing
exempt the directors of a Commonwealth company from the requirement to notify
matters covered by paragraph (1)(a). The exemption may be granted subject to
conditions.
(3) The responsible Minister may give written
guidelines to the directors that are to be used by the directors in deciding
whether a proposal is covered by paragraph (1)(b), (c), (d), (e) or (f).
41
Keeping responsible Minister and Finance Minister informed
(1) The directors of a wholly‑owned Commonwealth
company must:
(a) keep the responsible Minister
informed of the operations of the Commonwealth company and its subsidiaries;
and
(b) give the responsible Minister such
reports, documents and information in relation to those operations as the
responsible Minister requires; and
(c) give the Finance Minister such
reports, documents and information in relation to those operations as the
Finance Minister requires.
(2) The directors must comply with
requirements under paragraphs (1)(b) and (c) within the time limits set by the
Minister concerned.
42
Corporate plan for GBE
(1) This section applies to a wholly‑owned
Commonwealth company that is a GBE.
(2) The directors must prepare a corporate
plan at least once a year and give it to the responsible Minister.
(3) The plan must cover a period of at least
3 years.
(4) If the Commonwealth company has
subsidiaries, the plan must cover both the Commonwealth company and its
subsidiaries. In particular, for each subsidiary the plan must include details
of the matters in subsection (6), so far as they are applicable.
(5) The directors must keep the responsible
Minister informed about:
(a) significant changes to the plan; and
(b) matters that arise that might significantly
affect the achievement of the objectives in the plan.
(6) The plan must include details of the
following matters (so far as they are applicable):
(a) the objectives of the company;
(b) assumptions about the business
environment in which the company operates;
(c) the business strategies of the
company;
(d) the investment and financing
programs of the company, including strategies for managing financial risk;
(e) financial targets and projections
for the company;
(f) the dividend policy of the company;
(g) non‑financial performance
measures for the company;
(h) community service obligations of the
company and the strategies and policies the company is to follow to carry out
those obligations;
(i) review of performance against
previous corporate plans and targets;
(j) analysis of factors likely to
affect achievement of targets or create significant financial risk for the
company or for the Commonwealth;
(k) price control and quality control
strategies for goods or services supplied by the company under a monopoly;
(l) human resource strategies and
industrial relations strategies.
(7) The plan must also cover any other
matters required by the responsible Minister (which may include further details
about the matters in subsection (6)).
(8) The responsible Minister may give written
guidelines to the directors that are to be used by the directors in deciding
which matters are covered by subsection (5).
Subdivision
C—Miscellaneous
43
Compliance with general policies of the Government
(1) The responsible Minister may notify the directors
of a wholly‑owned Commonwealth company in writing of general policies of
the Commonwealth Government that are to apply to the company. The responsible
Minister must consult the directors before notifying them of the policies.
(2) The directors must ensure that the
policies are carried out in relation to the company.
(3) The directors must also ensure, as far as
practicable, that the policies are carried out in relation to the subsidiaries
of the company.
(4) The responsible Minister may, in writing,
exempt the directors of a wholly‑owned Commonwealth company from
subsection (2) or (3) in relation to specified activities.
44
Audit committee
(1) The directors of a wholly‑owned Commonwealth
company must establish and maintain an audit committee with functions that
include:
(a) helping the company and its
directors to comply with obligations under this Act and the Corporations Law;
and
(b) providing a forum for communication
between the directors, the senior managers of the company and the internal and
external auditors of the company.
(2) If
the regulations state how the committee is to be constituted, it must be
constituted in accordance with the regulations.
Part 5—Miscellaneous
45 Ministers must inform
Parliament of share acquisitions etc.
(1) The Minister who has the responsibility
for any of the following events must table a notice of the event in each House
of the Parliament as soon as practicable after the event happens:
(a) the Commonwealth forms, or
participates in forming, a company;
(b) the Commonwealth acquires shares in
a company (either by purchase or subscription) or disposes of shares in a
company;
(c) the Commonwealth becomes a member of
a company;
(d) a variation occurs in the rights
attaching to company shares held by the Commonwealth;
(e) a variation occurs in the
Commonwealth’s rights as a member of a company;
(f) the Commonwealth ceases to be a
member of a company.
(2) The notice must include the particulars
required by the regulations.
(3) This section does not apply to 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 Law.
46
Companies conducted for the purposes of intelligence or security agencies
(1) The application of this Act to a company
conducted for the purposes of an intelligence or security agency is subject to
any modifications that are prescribed by the regulations.
(2) In this section:
intelligence or security agency has the
meaning given by section 85ZL of the Crimes Act 1914;
modifications includes additions, omissions
and substitutions.
47 Regulations may deal with how this Act applies if
body stops being a Commonwealth authority
(1) The regulations may make provision
dealing with how this Act applies in relation to a financial year of a body
that ceases to be a Commonwealth authority during the financial year.
(2) Without limiting
the generality of subsection (1), regulations for the purposes of that
subsection may provide that this Act applies with specified modifications.
48 Finance Minister’s Orders
(1) The
Finance Minister may make Orders on any matter on which this Act requires or
permits Finance Minister’s Orders to be made.
(2) An
Order cannot create offences or impose penalties.
(3) An
Order is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
49
Regulations
(1) The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act to
be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) The regulations may require the provision
of financial statements, estimates or other information by overseas corporations
in which the Commonwealth has a controlling interest. For this purpose, overseas
corporation means a body corporate that is incorporated by or under the
law of an external Territory or overseas country.
(3) The regulations may make provision for penalties
for offences against the regulations by way of fines of up to 10 penalty units.
Note: Section 4AA of the Crimes Act 1914 sets
the current value of a penalty unit.
Schedule 1—Annual Report for Commonwealth Authority
Note: See section 9.
Part 1—Contents of annual report
1 Summary of contents
The annual report must include:
(a) a report of operations, prepared by
the directors in accordance with the Finance Minister’s Orders; and
(b) financial statements, prepared by
the directors under clause 2 of this Schedule; and
(c) the Auditor‑General’s report on
those financial statements, prepared under Part 2 of this Schedule and
addressed to the responsible Minister.
Note: The report may include other matters, for
example, matters that are required by another Act or by Ministerial guidelines.
2 Financial statements
(1) The financial statements must be prepared
in accordance with the Finance Minister’s Orders and must give a true and fair
view of the matters that those Orders require to be included in the statements.
(2) If financial statements prepared in
accordance with the Finance Minister’s Orders would not otherwise give a true
and fair view of the matters required by those Orders, the directors must add
such information and explanations as will give a true and fair view of those
matters.
(3) In the financial statements, the
directors must state whether, in their opinion, the financial statements give a
true and fair view of the matters required by the Finance Minister’s Orders.
(4) If the Commonwealth authority is a GBE or
SMA, the directors must state whether or not, in their opinion, there are, when
the statement is made, reasonable grounds to believe that the authority will be
able to pay its debts as and when they fall due.
Part 2—Auditor’s report on financial statements
3 Whether the statements
comply with the Finance Minister’s Orders
(1) The Auditor‑General must state
whether, in the Auditor‑General’s opinion, the financial statements:
(a) have been prepared in accordance
with the Finance Minister’s Orders; and
(b) give a true and fair view of the
matters required by those Orders.
(2) 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 failing to prepare the financial statements in accordance with the
Finance Minister’s Orders has a quantifiable financial effect, the Auditor‑General
must quantify that financial effect and state the amount.
4 Proper accounting records
not kept
If the Auditor‑General is of the
opinion that the authority has contravened section 20, the Auditor‑General
must state particulars of the contravention.
5 Inadequate information
and explanations
If the Auditor‑General is of the
opinion that the Auditor‑General did not obtain all necessary information
and explanations, the Auditor‑General must state particulars of the
shortcomings.
6 Subsidiaries’ financial
statements
(1) This clause applies if the authority’s
financial statements are consolidated financial statements.
(2) The Auditor‑General must state the
name of each entity (if any) that satisfies the following description:
(a) the entity was a subsidiary of the
authority at any time during the financial year; and
(b) the Auditor‑General has not:
(i) acted as auditor of the
entity for the financial year; or
(ii) audited the entity’s
financial statements for the financial year.
(3) If the consolidated financial statements
include information derived from financial statements of an entity of a kind
referred to in subclause (2), then:
(a) if the Auditor‑General has not
examined those financial statements and the auditor’s report (if any) on them,
the Auditor‑General must state that fact; and
(b) if an auditor’s report on any of
those financial statements included any qualification, the Auditor‑General
must state the name of the subsidiary and particulars of the qualification.
7 Deficiencies in
consolidation
If the Auditor‑General is of the
opinion that:
(a) any of the financial statements that
were used in preparing consolidated financial statements were not appropriate
and proper, in both form and content, to be used in that way; or
(b) there was any deficiency in the
procedures and methods used in arriving at the amounts taken in to consolidated
financial statements;
the Auditor‑General must state particulars of the
deficiency.
Schedule 2—Civil and criminal consequences of contravening civil
penalty provisions
Note: See section 6.
Part 1—Preliminary
1 Interpretation
(1) In this Schedule:
civil penalty order means a declaration or
order under clause 4.
civil penalty provision has the meaning given
by clause 2.
court means any court, when exercising
jurisdiction under this Act.
Court means the Federal Court of Australia or
the Supreme Court of a State or Territory.
(2) For the purposes of this Schedule, an
Australian court finds a person guilty of an offence if, and only
if:
(a) the court convicts the person of the
offence; or
(b) the person is charged before the
court with the offence and is found in the court to have committed the offence,
but the court does not proceed to convict the person of the offence.
(3) A maximum penalty that is specified:
(a) at the foot of a clause of this
Schedule (other than a clause that is divided into subclauses); or
(b) at the foot of a subclause of this
Schedule;
indicates that a person who contravenes the clause or
subclause is guilty of an offence against the clause or subclause that is
punishable, on conviction, by a penalty up to that maximum.
Note: If the specified penalty is imprisonment only,
section 4B of the Crimes Act 1914 allows the court to impose a fine
instead of imprisonment or in addition to imprisonment.
2 Civil penalty provisions
Each of the following provisions of this
Act is a civil penalty provision:
(a) subsection 11(1);
(b) subsection 22(1);
(c) subsection 22(2);
(d) subsection 23(1).
3 Person involved in
contravening a provision taken to have contravened the provision
(1) For the purposes of this Schedule, a
person who is involved in a contravention of a particular provision of this Act
is taken to have contravened that provision.
(2) For the purposes of this clause, a person
is involved in a contravention if, and only if, the person:
(a) has aided, abetted, counselled or
procured the contravention; or
(b) has induced the contravention,
whether by threats or promises or otherwise; or
(c) has been in any way, by act or
omission, directly or indirectly, knowingly concerned in, or party to, the
contravention; or
(d) has conspired with others to effect
the contravention.
Part 2—Civil penalty orders
4 Court may make civil
penalty orders
(1) This clause applies if the Court is
satisfied that a person has contravened a civil penalty provision, whether or
not the contravention also constitutes an offence because of clause 11.
Note: Clause 30 provides that a certificate by a
court that the court has declared a person to have contravened a civil penalty
provision is conclusive evidence of the contravention.
(2) The Court is to declare that the person
has, by a specified act or omission, contravened that provision in relation to
a specified Commonwealth authority, but need not so declare if such a
declaration is already in force under Part 4.
(3) The Court may also make against the
person either or both of the following orders in relation to the contravention:
(a) an order prohibiting the person, for
such period as is specified in the order, from being a director of a Commonwealth
authority;
(b) an order that the person pay to the
Commonwealth a pecuniary penalty of an amount so specified that does not exceed
2,000 penalty units.
Note: Section 4AA of the Crimes Act 1914 sets
the current value of a penalty unit.
(4) The Court is not to make an order under
paragraph (3)(a) if it is satisfied that, despite the contravention, the person
is a fit and proper person to be a director of a Commonwealth authority.
(5) The Court is not to make an order under
paragraph (3)(b) unless it is satisfied that the contravention is a serious
one.
(6) The Court is not to make an order under
paragraph (3)(b) if it is satisfied that an Australian court has ordered the
person to pay damages in the nature of punitive damages because of the act or omission
constituting the contravention.
5 Who may apply for civil
penalty order
(1) An application for a civil penalty order
may be made by:
(a) the Finance Minister; or
(b) some other person authorised in
writing by the Finance Minister, under this paragraph, to make the application.
(2) An authorisation for the purposes of
paragraph (1)(b) may relate to applications in relation to specified
contraventions, or all contraventions, of civil penalty provisions.
(3) Nothing in this clause affects the
operation of the Director of Public Prosecutions Act 1983.
6 Time limit for
application
An application for a civil penalty order
may be made within 6 years after the contravention.
7 Application for civil
penalty order is a civil proceeding
(1) In hearing and determining an application
for a civil penalty order, the Court is to apply the rules of evidence and
procedure that it applies in hearing and determining civil matters.
(2) Subclause (1) has effect subject to the
rules of the Court.
8 Person must comply with
order not to be a director of a Commonwealth authority
(1) A person who is subject to a civil
penalty disqualification must not be a director of a Commonwealth authority
except with the leave of the Court.
Maximum penalty: Imprisonment for 1 year.
(2) When granting leave under subclause (1),
the Court may impose such conditions or restrictions as it thinks appropriate.
(3) A person must not contravene a condition
or restriction imposed under subclause (2).
Maximum penalty: Imprisonment for 1 year.
(4) A person may only apply for leave under
subclause (1) if he or she has given the Finance Minister at least 21 days
notice of the application.
(5) On the application of the Finance
Minister, the Court may revoke leave granted under subclause (1).
(6) For the purposes of this clause, a person
is subject to a civil penalty disqualification if, and only if,
an order relating to the person is in force under paragraph 4(3)(a).
9 Enforcement of order to
pay pecuniary penalty
Where the Court makes under paragraph
4(3)(b) an order that a person pay a pecuniary penalty:
(a) the penalty is payable to the
Commonwealth; and
(b) the Commonwealth may enforce the
order as if it were a judgment of the Court.
10 Finance Minister may
require a person to give assistance in connection with application for civil
penalty order
(1) This clause applies where it appears to
the Finance Minister that a person may have contravened a civil penalty
provision.
(2) If the Finance Minister, on reasonable
grounds, suspects or believes that a person can give information relevant to an
application for a civil penalty order in relation to the contravention, whether
or not such an application has been made, the Finance Minister may, by writing
given to the person, require the person to give all reasonable assistance in
connection with such an application.
(3) Subclause (2) does not apply in relation
to:
(a) the person referred to in subclause
(1); or
(b) a person who is or has been that
person’s lawyer.
(4) Where a person fails to give assistance
as required under subclause (2):
(a) the person contravenes this
subclause; and
(b) the Court may, on the application of
the Finance Minister, order the person to comply with the requirement as
specified in the order.
(5) Nothing in paragraph (4)(b) affects any
penalty for a contravention of subclause (4).
(6) In this clause:
lawyer means a duly qualified legal
practitioner.
Part 3—Criminal proceedings
11 When contravention of
civil penalty provision is an offence
(1) A person is guilty of an offence if the person
contravenes a civil penalty provision:
(a) knowingly, intentionally or
recklessly; and
(b) either:
(i) dishonestly and intending
to gain, whether directly or indirectly, an advantage for that or any other
person; or
(ii) intending to deceive or defraud
someone.
Maximum penalty: Imprisonment for 5 years.
(2) A person who contravenes a civil penalty
provision is not guilty of an offence except as provided by subclause (1).
12 Person convicted of
clause 11 offence not to be a director of a Commonwealth authority
(1) A person who has been convicted of an
offence of which he or she is guilty because of subclause 11(1) must not be a
director of a Commonwealth authority except with the leave of the Court:
(a) unless paragraph (b) applies—within
5 years after the conviction; or
(b) if the person was sentenced to
imprisonment—within 5 years after release from prison.
Maximum penalty: Imprisonment for 1 year.
(2) In any proceedings for a contravention of
subclause (1), a certificate by a prescribed authority stating that a person
was released from prison on a specified date is prima facie evidence that the
person was released from prison on that date.
(3) When granting leave under subclause (1),
the Court may impose such conditions or restrictions as it thinks appropriate.
(4) A person must not contravene a condition
or restriction imposed under subclause (3).
Maximum penalty: Imprisonment for 1 year.
(5) A person may only apply for leave under
subclause (1) if he or she has given the Finance Minister at least 21 days
notice of the application.
(6) On the application of the Finance
Minister, the Court may revoke leave granted under subclause (1).
13 Application for civil
penalty order precludes later criminal proceedings
Criminal proceedings for an offence
constituted by a contravention of a civil penalty provision cannot be begun if
a person has already applied for a civil penalty order in relation to the same
contravention, even if the application has been finally determined or otherwise
disposed of.
Part 4—Effect of criminal proceedings on application for civil
penalty order
14 When Part applies
This Part applies if criminal
proceedings are begun against a person for an offence constituted by a
contravention of a civil penalty provision.
15 Effect during criminal
proceedings
(1) An application may be made for a civil
penalty order against the person in relation to the same contravention.
(2) However, an application is stayed,
because of this subclause, until:
(a) the criminal proceedings; and
(b) all appeals and applications for
review (including appeals and applications for review under this Part) arising
out of the criminal proceedings;
have been finally determined or otherwise disposed of.
16 Final outcome precluding
application for civil penalty order
When the criminal proceedings, appeals
and applications for review are finally determined or otherwise disposed of:
(a) an application for a civil penalty
order in relation to the same contravention cannot be made (except under this
Part); and
(b) such an application that was stayed
because of subclause 15(2) is, because of this clause, dismissed:
if the result of the criminal proceedings, appeals and
applications for review is:
(c) a court finding the person guilty of
the offence; or
(d) the person being acquitted of the
offence, unless there is in force a declaration that the person committed the
contravention; or
Note: This kind of declaration is made under clause 19,
20 or 21.
(e) a declaration by a court that the
evidence in a committal proceeding for the offence could not satisfy the Court,
on an application for a civil penalty order, that the person committed the
contravention; or
Note: This kind of declaration is made under clause 18.
(f) a declaration by the Court that the
person committed the contravention; or
Note: This kind of declaration is made under clause 19
or 21.
(g) an order by a court prohibiting an
application for a civil penalty order in relation to the contravention from
being made or from proceeding; or
Note: This kind of order is made under clause 22.
(h) the Court, on an appeal or review,
affirming, varying or substituting a declaration that the person committed the
contravention.
Note: Clause 23 applies in this case.
17 Final outcome not
precluding application for civil penalty order
If the result of the criminal
proceedings, appeals and applications for review being finally determined or
otherwise disposed of is:
(a) a declaration by a court (other than
the Court) that the person committed the contravention; or
Note: This kind of declaration is made under clause 19,
20 or 21.
(b) none of the results referred to in
clause 16;
then:
(c) if an application for a civil
penalty order in relation to the contravention was stayed because of subclause
15(2)—the application may proceed; or
(d) otherwise—such an application may be
made and may proceed;
as if the criminal proceedings had never begun.
18 After unsuccessful
committal proceeding, court may preclude application for civil penalty order
(1) If:
(a) a proceeding in a court for the
commitment of the person for trial for the offence is finally determined or
otherwise disposed of without the person being committed for trial for the
offence; and
(b) the court is satisfied that the
evidence in the proceeding could not satisfy the Court, on an application for a
civil penalty order in relation to the contravention, that the person committed
the contravention;
the court may declare that it is so satisfied.
(2) A declaration under subclause (1) is
subject to appeal or review in the same way as any other order or decision made
in the proceeding.
19 Application for civil
penalty order based on alternative verdict at jury trial
(1) This clause applies if the person is
tried on indictment for the offence and the jury is satisfied beyond reasonable
doubt that the person committed the contravention, but is not satisfied beyond
reasonable doubt that the person did so as mentioned in subclause 11(1).
(2) The jury may find the person not guilty
of the offence, but guilty of the contravention.
(3) If the jury does so, the court is to
declare that the person has, by a specified act or omission, contravened the
civil penalty provision in relation to a specified Commonwealth authority.
(4) If the court is the Court, it may then
proceed to make orders under subclause 4(3) on the application of the
prosecutor or someone else who has power under clause 5 to apply for a civil
penalty order in relation to the contravention.
(5) Subclause (4) has effect despite clause
6.
(6) A declaration under subclause (3) is subject
to appeal or review as if it were a conviction by the court for an offence
constituted by the contravention.
20 Application for civil
penalty order based on alternative finding by court of summary jurisdiction
(1) This clause applies if, on the hearing of
a proceeding for the summary conviction of the person for the offence, the
court is satisfied beyond reasonable doubt that the person committed the
contravention but is not satisfied beyond reasonable doubt that the person did
so as mentioned in subclause 11(1).
(2) The court may find the person not guilty
of the offence, but guilty of the contravention.
(3) If the court does so, it is to declare
that the person has, by a specified act or omission, contravened the civil
penalty provision in relation to a specified Commonwealth authority.
(4) A declaration under subclause (3) is
subject to appeal or review as if it were a conviction by the court for an
offence constituted by the contravention.
21 Application for civil
penalty order based on alternative finding by appeal court
(1) This clause applies if:
(a) a court finds the person guilty of
the offence; and
(b) on appeal or review, a court makes
an order determining the criminal proceedings for the offence in a way that
does not involve convicting the person of that or any other offence; and
(c) the court is satisfied beyond
reasonable doubt that the person committed the contravention.
(2) The court may declare that the person
has, by a specified act or omission, contravened the civil penalty provision in
relation to a specified Commonwealth authority.
(3) If the court is the Court, it may then
proceed to make orders under subclause 4(3) on the application of the
prosecutor or someone else who has power under clause 5 to apply for a civil
penalty order in relation to the contravention.
(4) Subclause (3) has effect despite clause
6.
(5) A declaration under subclause (2) is subject
to appeal or review in the same way as any other order or decision that was
made on the appeal or review or might have been made.
22 After setting aside
declaration, court may preclude application for civil penalty order
If a court sets aside a declaration made
under clause 19, 20 or 21, the court may, by order, prohibit an
application for a civil penalty order in relation to the contravention from
being made or from proceeding.
23 On unsuccessful appeal
against declaration, Court may make civil penalty orders
(1) This clause applies if, on an appeal
from, or review of, a declaration made under clause 19, 20 or 21 by a court
other than the Court, the Court determines the appeal or review by:
(a) affirming or varying the
declaration; or
(b) substituting another declaration for
the first‑mentioned declaration.
(2) The Court may then proceed to make orders
under subclause 4(3) on the application of the prosecutor or someone else
who has power under clause 5 to apply for a civil penalty order in relation to
the contravention.
(3) Subclause (2) has effect despite clause
6.
24 Appeals under this Part
For the purposes of an appeal or review
under subclause 18(2), 19(6), 20(4) or 21(5), a law about appeals or review has
effect with such modifications as the circumstances require.
Part 5—Compensation for loss suffered by Commonwealth authority
25 On application for civil
penalty order, Court may order compensation
(1) Where, on an application for a civil
penalty order against a person in relation to a contravention, the Court is
satisfied that:
(a) the person committed the
contravention; and
(b) the Commonwealth authority in
relation to which the contravention was committed has suffered loss or damage
as a result of the act or omission constituting the contravention;
the Court may (whether or not it makes an order under
subclause 4(3)) order the person to pay to the Commonwealth authority
compensation of such amount as the order specifies.
(2) A Commonwealth authority may intervene in
an application for a civil penalty order against a person in relation to a
contravention, unless the application was made under Part 4.
(3) A Commonwealth authority that so
intervenes is entitled to be heard:
(a) only if the Court is satisfied that
the person committed the contravention in relation to that Commonwealth
authority; and
(b) only on the question whether the
Court should order the person to pay compensation to the Commonwealth authority
because of the contravention.
26 Criminal court may order
compensation
(1) If:
(a) a court finds a person guilty of an
offence constituted by a contravention of a civil penalty provision in relation
to a Commonwealth authority; and
(b) the court is satisfied that the
Commonwealth authority has suffered loss or damage as a result of the act or
omission constituting the contravention;
the court may (whether or not it imposes a penalty) order the
person to pay to the Commonwealth authority compensation of such amount as the
order specifies.
(2) If:
(a) a court declares under Part 4 that a
person has, by an act or omission, contravened a civil penalty provision in
relation to a Commonwealth authority; and
(b) the court is satisfied that the
Commonwealth authority has suffered loss or damage as a result of that act or
omission;
the court may (whether or not it makes an order under
subclause 4(3)) order the person to pay to the Commonwealth authority
compensation of such amount as the order specifies.
27 Enforcement of order
under clause 25 or 26
An order to pay compensation that a
court makes under clause 25 or 26 may be enforced as if it were a judgment
of the court.
28 Recovery of profits, and
compensation for loss, resulting from contravention
(1) Where a person contravenes a civil
penalty provision in relation to a Commonwealth authority, the Commonwealth
authority may recover from the person, as a debt due to the Commonwealth
authority:
(a) if that or another person has made a
profit because of the act or omission constituting the contravention—an amount
equal to the amount of that profit; and
(b) if the Commonwealth authority has
suffered loss or damage as a result of that act or omission—an amount equal to
the amount of that loss or damage;
whether or not:
(c) the first-mentioned person has been
convicted of an offence in relation to the contravention; or
(d) a civil penalty order has been made
against the first‑mentioned person in relation to the contravention.
(2) Proceedings under this clause may only be
begun within 6 years after the contravention.
29 Effect of clauses
25, 26 and 28
Clauses 25, 26 and 28:
(a) have effect in addition to, and not
in derogation of, any rule of law about the duty or liability of a person
because of the person’s office or employment in relation to a Commonwealth
authority; and
(b) do not prevent proceedings from
being instituted in respect of a breach of such a duty or in respect of such a
liability.
30 Certificates evidencing
contravention
For the purposes of this Schedule, a
certificate that:
(a) purports to be signed by the
Registrar or other proper officer of an Australian court; and
(b) states:
(i) that that court has
declared that a specified person has, by a specified act or omission,
contravened a specified civil penalty provision in relation to a specified
Commonwealth authority; or
(ii) that a specified person
was convicted by that court of an offence constituted by a specified
contravention of a civil penalty provision in relation to a specified
Commonwealth authority; or
(iii) that a specified person
charged before that court with such an offence was found in that court to have
committed the offence but that the court did not proceed to convict the person
of the offence;
is, unless it is proved that the declaration, conviction
or finding was set aside, quashed or reversed, conclusive evidence:
(c) that the declaration was made, that
the person was convicted of the offence, or that the person was so found, as
the case may be; and
(d) that the person committed the
contravention.
Part 6—Miscellaneous
31 Relief from liability
for contravention of civil penalty provision
(1) In this clause:
eligible proceedings means proceedings for a
contravention of a civil penalty provision (including proceedings under
clause 28 but does not include proceedings for an offence), except so far
as the proceedings relate to the question whether the court should make an
order under clause 26.
(2) Where, in eligible proceedings against a
person, it appears to the court that the person has, or may have, contravened a
civil penalty provision but that:
(a) the person has acted honestly; and
(b) having regard to all the
circumstances of the case (including, where applicable, those connected with
the person’s appointment as an officer of a Commonwealth authority), the person
ought fairly to be excused for the contravention;
the court may relieve the person either wholly or partly
from a liability to which the person would otherwise be subject, or that might
otherwise be imposed on the person, because of the contravention.
(3) Where a person thinks that eligible
proceedings will or may be begun against him or her, he or she may apply to the
Court for relief.
(4) On an application under subclause (3),
the Court may grant relief under subclause (2) as if the eligible proceedings
had been begun in the Court.
(5) For the purposes of subclause (2) as
applying for the purposes of a case tried by a judge with a jury:
(a) a reference in that subclause to the
court is a reference to the judge; and
(b) the relief that may be granted
includes withdrawing the case in whole or in part from the jury and directing
judgment to be entered for the defendant on such terms as to costs as the judge
thinks appropriate.
32 Schedule does not limit
power to award punitive damages
Nothing in this Schedule limits a
court’s power to order someone to pay damages in the nature of punitive damages
because of an act or omission constituting a contravention of a civil penalty
provision.
[Minister’s second reading speech made in—
House of Representatives on 12 December 1996
Senate on 15 March 1997]