Financial
Management and Accountability Act 1997
No.
154, 1997
An Act to provide for the proper use and management of public
money, public property and other Commonwealth resources, 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 Financial
Management and Accountability Act 1997.
2 Commencement
(1) Subject to subsection (2), this Act
commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under
subsection (1) by 1 July in the next calendar year after the calendar year
in which this Act receives the Royal Assent, it commences on that 1 July.
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 and offences
5 Definitions
In this Act, unless the contrary
intention appears:
Agency means:
(a) a Department of State:
(i) including persons who are
allocated to the Department (for the purposes of this Act) by regulations made
for the purposes of this paragraph; but
(ii) not including any part of
the Department that is a prescribed Agency;
(b) a Department of the Parliament,
including persons who are allocated to the Department (for the purposes of this
Act) by regulations made for the purposes of this paragraph;
(c) a prescribed Agency.
appropriation means an authority under this
Act or any other law to debit an amount from a particular Fund, whether or not
the law concerned uses the word “appropriation” or “appropriated”.
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.
Chief Executive means:
(a) for a prescribed Agency—the person
identified by the regulations as the Chief Executive of the Agency; or
(b) for any other Agency—the person who
is the Secretary of the Agency for the purposes of the Public Service Act
1922.
Commercial Activities Fund means the fund
established by section 21.
Consolidated Revenue Fund means the
Consolidated Revenue Fund referred to in section 81 of the Constitution.
Drawn Money has the meaning given by section
17.
Finance Minister means the Minister who
administers this Act.
Finance Minister’s Orders means Orders made
under section 63.
Fund means:
(a) the Consolidated Revenue Fund;
(b) the Loan Fund;
(c) the Commercial Activities Fund;
(d) the Reserved Money Fund.
Loan Fund means the fund established by
section 19.
Minister includes a Presiding Officer.
official means a person who is in an Agency
or is part of an Agency.
official account means a bank account
referred to in section 9.
prescribed Agency means a body, organisation
or group of persons prescribed by the regulations for the purposes of this
definition.
Presiding Officer means the President of the
Senate or the Speaker of the House of Representatives.
public money means:
(a) money in the custody or under the
control of the Commonwealth; or
(b) money in the custody or under the
control of any person acting for or on behalf of the Commonwealth in respect of
the custody or control of the money;
including such money that is held on trust for, or
otherwise for the benefit of, a person other than the Commonwealth.
public property means:
(a) property in the custody or under the
control of the Commonwealth; or
(b) property in the custody or under the
control of any person acting for or on behalf of the Commonwealth in respect of
the custody or control of the property;
including such property that is held on trust for, or
otherwise for the benefit of, a person other than the Commonwealth.
Received Money has the meaning given by
section 17.
Reserved Money Fund means the fund
established by section 20.
Special Instruction means an instruction by
the Finance Minister under section 16.
special public money has the meaning given by
section 16.
6 Notional payments and
receipts by Agencies
(1) This Act applies to a notional payment by
an Agency (or part of an Agency) as if it were a real payment by the
Commonwealth.
(2) This Act applies to a notional receipt by
an Agency (or part of an Agency) of such a notional payment as if it were a
real receipt by the Commonwealth.
Note: This section applies to transactions that do
not actually involve payments or receipts, because both parties to the
transaction are merely acting as agents for the Commonwealth. For example,
Agency 1 pays Agency 2 for services provided by Agency 2 to Agency 1. The
effect of this section is that the payment by Agency 1 can be regarded as
authorised by an appropriation for Agency 1, while the receipt by Agency 2 must
be credited to the Consolidated Revenue Fund.
7 Offences
(1) Chapter 2 of the Criminal Code applies
to all offences against this Act.
(2) 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—Collection, custody etc. of public money
8 Agreements with banks
about receipt, transmission etc. of public money
(1) The Finance Minister may, on behalf of
the Commonwealth, enter into an agreement with any bank:
(a) for the receipt, custody, payment or
transmission of public money, either inside or outside Australia; or
(b) for any other matter relating to the
conduct of the banking business of the Commonwealth.
(2) An agreement under this section may
provide for the payment of interest and other charges by the Commonwealth.
(3) An agreement under this section may not
provide for overdraft drawings by the Commonwealth unless it provides for each
drawing to be repaid within 30 days.
Note: An overdraft drawing consists of the bank
meeting the payment of a cheque, or making an “electronic payment” to another
account, and in each case debiting the payment against an account that has an
insufficient balance. Section 38 deals with overdrafts that arise in respect of
advances that are paid to the Commonwealth.
(4) An agreement for an overdraft on an
official account must not be made except under this section.
(5) An agreement under this section may not
be made for a period of more than one year unless the agreement can be
terminated by the Commonwealth at any time after giving notice of not more than
6 months.
9 Official bank accounts
(1) The Finance Minister may open and
maintain bank accounts in accordance with agreements under section 8, and must
open and maintain at least one such bank account.
(2) A bank account must have a name that
includes the word “Official”.
(3) An account for the receipt, custody,
payment or transmission of public money must not be opened except in accordance
with this section.
10 Public money must be
promptly banked etc.
An official or Minister who receives
public money (including money that becomes public money upon receipt) must bank
it as required by the Finance Minister’s Orders or otherwise deal with it as
required by the Finance Minister’s Orders. For this purpose, money
includes cheques and similar instruments.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
11 Public money not to be
paid into non-official account
An official or Minister must not deposit
public money in any account other than an official account. For this purpose, money
includes cheques and similar instruments.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
12 Finance Minister’s
authority needed for arrangements for receipt etc. of public money by outsiders
An official or Minister must not enter
into an agreement or arrangement for the receipt or custody of public money by
an outsider unless:
(a) the Finance Minister has first given
a written authorisation for the arrangement; or
(b) the arrangement is expressly
authorised by this Act or by another Act.
For this purpose, outsider means any person
other than the Commonwealth, an official or a Minister.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
13 Money not to be withdrawn
from official account without authority
An official must not withdraw money from
an official account except as authorised by the Finance Minister’s Orders.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
14 Misapplication or
improper use of public money
An official or Minister must not
misapply public money or improperly dispose of, or improperly use, public
money.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
15 Liability for loss of
public money
(1) If:
(a) a loss of public money occurs; and
(b) at the time of the loss, an official
or Minister had nominal custody of the money as described in subsection (2);
the official or Minister is liable to pay to the
Commonwealth an amount equal to the loss. However, it is a defence if the
person proves that he or she took reasonable steps in all the circumstances to prevent
the loss.
(2) A person has nominal custody of public
money if:
(a) the person holds the money by way of
a petty cash advance, “change float” or other advance; or
(b) the person has received the money,
but has not yet dealt with it as required by section 10.
(3) If:
(a) a loss of public money occurs; and
(b) an official or Minister caused or
contributed to the loss by misconduct, or by a deliberate or serious disregard
of reasonable standards of care;
the official or Minister is liable to pay to the
Commonwealth an amount equal to the loss. However, if the person’s misconduct
or disregard was not the sole cause of the loss, the person is liable to pay
only so much of the loss as is just and equitable having regard to the person’s
share of the responsibility for the loss.
(4) A person’s liability under this section
that arises when the person is an official or Minister is not avoided merely
because the person ceases to be an official or Minister.
(5) An amount payable to the Commonwealth
under this section is recoverable as a debt in a court of competent
jurisdiction.
(6) The Commonwealth is not entitled to
recover amounts from the same person under both subsections (1) and (3) for the
same loss.
(7) In this section:
loss includes a deficiency.
16 Special Instructions by
Finance Minister about handling etc. of special public money
(1) The Finance Minister may issue Special
Instructions in writing about special public money, including instructions
about:
(a) the custody of special public money;
(b) the investment of special public
money;
(c) the application of interest or other
amounts derived from the investment of special public money;
(d) the application of special public
money in paying the expenses involved in dealing with special public money.
(2) In case of inconsistency, Special
Instructions override this Act, the regulations and the Finance Minister’s
Orders. However, Special Instructions cannot be inconsistent with the terms of
any trust that applies to the money concerned.
(3) An official or Minister must not
contravene any Special Instruction.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(4) In this section:
special public money means public money that
is not held on account of the Commonwealth or for the use or benefit of the
Commonwealth.
Note: Money held by the Commonwealth on trust for
another person is an example of special public money.
Part 4—Fund accounting, appropriations and payments
Division 1—Fund accounting
17 Accounting
classifications of public money
(1) All public money falls into one of the
following classes:
(a) Received Money;
(b) money in the Consolidated Revenue
Fund;
(c) money in the Loan Fund established
by section 19;
(d) money in the Reserved Money Fund
established by section 20;
(e) money in the Commercial Activities
Fund established by section 21;
(f) Drawn Money;
(g) special public money that is subject
to a Special Instruction.
Note: The diagram in Appendix A illustrates the Fund
accounting system.
(2) All public money is Received Money
from the time it becomes public money until the time it is either credited to
the Consolidated Revenue Fund or becomes subject to a Special Instruction.
(3) Drawn Money is public money
that has been debited from a Fund without being credited to another Fund. It
does not include money that is subject to a Special Instruction.
Note: Examples of Drawn Money are
petty cash advances and amounts held in drawing accounts to meet the payment of
cheques.
(4) In this section:
public money does not include overdraft
drawings under an agreement under section 8.
18 Public money must
initially be credited to the Consolidated Revenue Fund
(1) All public money must be credited to the
Consolidated Revenue Fund as soon as practicable after it becomes public money.
This requirement does not apply to public money that is subject to a Special
Instruction.
(2) In this section:
public money does not include overdraft
drawings under an agreement under section 8.
19 The Loan Fund
(1) A fund called the Loan Fund is hereby
established.
(2) The Finance Minister, if satisfied that
particular money in the Consolidated Revenue Fund is borrowed money, must
direct that the money be transferred from the Consolidated Revenue Fund to the
Loan Fund. This requirement does not apply to credit card cash advances.
(3) The Consolidated Revenue Fund is
appropriated for the purposes of subsection (2).
(4) If another Act (either expressly or by
implication) requires or permits an amount to be transferred from the
Consolidated Revenue Fund to the Loan Fund, then the Consolidated Revenue Fund
is appropriated for the transfer by force of this subsection (unless the
contrary intention appears in that other Act).
20 The Reserved Money Fund
(1) A fund called the Reserved Money Fund is
hereby established.
(2) The Finance Minister may make a written
determination that:
(a) establishes a component of the
Reserved Money Fund;
(b) allows or requires amounts to be
transferred from the Consolidated Revenue Fund or Loan Fund to that component;
(c) allows or requires amounts to be
debited from that component for specified purposes.
(3) The Finance Minister may make a
determination that revokes or varies a determination made under subsection (2).
(4) The Finance Minister may at any time make
a determination that abolishes a component established under subsection (2).
Any amount in the component at the time of abolition must be transferred to the
Consolidated Revenue Fund.
(5) If another Act establishes a component of
the Reserved Money Fund and identifies the purposes of the component, the
component may be debited for those purposes.
(6) The Funds are appropriated as necessary
for the purposes of this section.
(7) If another Act (either expressly or by
implication) requires or permits an amount to be transferred from the
Consolidated Revenue Fund to a component of the Reserved Money Fund, then the
Consolidated Revenue Fund is appropriated for the transfer by force of this
subsection (unless the contrary intention appears in that other Act).
Note: Determinations made under subsections (2) and
(3) of this section are subject to the commencement and disallowance rules in
section 22.
21 The Commercial
Activities Fund
(1) A fund called the Commercial Activities
Fund is hereby established.
(2) The Finance Minister may make a written
determination that:
(a) establishes a component of the
Commercial Activities Fund for an activity of an Agency that the Finance
Minister considers should be accounted for as if it were a commercial activity;
(b) allows amounts that are derived
directly or indirectly from the activity to be transferred from the
Consolidated Revenue Fund or Loan Fund to that component;
(c) allows amounts to be debited from
that component for specified purposes connected with the activity.
(3) The Finance Minister may make a
determination that revokes or varies a determination made under subsection (2).
(4) The Finance Minister may at any time make
a determination that abolishes a component of the Commercial Activities Fund.
Any amount in the component at the time of abolition must be transferred to the
Consolidated Revenue Fund.
(5) The Funds are appropriated as necessary
for the purposes of this section.
Note: Determinations made under subsections (2) and
(3) of this section are subject to the commencement and disallowance rules in
section 22.
22 Disallowance of
determinations dealing with Fund components
(1) This section applies to a determination
made by the Finance Minister under subsection 20(2) or (3) or 21(2) or (3).
(2) The Finance Minister must cause a copy of
the determination to be tabled in each House of the Parliament.
(3) Either House may, following a motion upon
notice, pass a resolution disallowing the determination. To be effective, the
resolution must be passed within 5 sitting days of the House after the copy of
the determination was tabled in the House.
(4) If neither House passes such a
resolution, the determination takes effect on the day immediately after the
last day upon which such a resolution could have been passed.
23 Set-offs ignored for
Fund accounting purposes
(1) If a receipt has been reduced by a lawful
set-off, a credit to a Fund for the receipt must nevertheless show the full
amount of the receipt, unreduced by the set-off.
(2) If a payment has been reduced by a lawful
set-off, a debit from a Fund for the payment must nevertheless show the full
amount of the payment, unreduced by the set-off.
(3) In this section:
reduced includes reduced to nil.
24 Finance Minister must
keep accounts and records of Fund transactions
The Finance Minister must cause proper
accounts and records to be kept of the transactions of the Funds.
25 References in other Acts
etc. to payments into or out of Funds
(1) In any Act or any instrument made under
an Act:
(a) a reference to paying an amount into
a Fund is a reference to crediting the amount to that Fund;
(b) a reference to paying an amount out
of a Fund is a reference to debiting the amount from the Fund.
(2) In this section:
Fund means:
(a) the Consolidated Revenue Fund, the
Loan Fund, the Reserved Money Fund or the Commercial Activities Fund; or
(b) a component of the Reserved Money
Fund or of the Commercial Activities Fund.
Division 2—Drawing rights
26 Drawing rights required
for payment etc. of public money
An official or Minister must not do any
of the following except as authorised by a valid drawing right:
(a) make a payment of public money;
(b) request that an amount be debited
from a Fund;
(c) debit an amount from a Fund.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
27 Issue of drawing rights
(1) The Finance Minister may issue a drawing
right to an official or Minister that authorises the official or Minister to do
one or more of the following:
(a) make a payment of public money for a
specified purpose;
(b) request the debiting of an amount
from a Fund against a particular appropriation;
(c) debit an amount from a Fund against
a particular appropriation.
(2) If a law requires an amount to be debited
from a Fund:
(a) the Finance Minister must issue
sufficient drawing rights to allow the full amount to be debited from the Fund;
and
(b) the recipient of any of those
drawing rights must exercise the right in full.
(3) If a law permits an amount to be debited
from a Fund, but does not require the amount to be debited, there is no
obligation to issue or exercise drawing rights for that amount.
(4) The Finance Minister may at any time
revoke or amend a drawing right.
(5) A drawing right has no effect to the
extent that it claims to authorise the application of public money in a way
that is not authorised by an appropriation.
Division 3—Appropriations
28 Appropriation for
repayments required or permitted by law
(1) This section applies if:
(a) an Act or other law requires or
permits the repayment of an amount received by the Commonwealth; and
(b) apart from this section there is no
appropriation of any Fund for the repayment.
Note: For example, this section would apply to a law
that requires an application fee to be refunded to an unsuccessful applicant.
It would also apply to a contractual obligation to repay a loan.
(2) If the amount received by the
Commonwealth:
(a) has been credited to the
Consolidated Revenue Fund; and
(b) then transferred from the
Consolidated Revenue Fund to another Fund or a component of another Fund;
then the Fund or component to which the amount was
transferred is appropriated for the repayment.
(3) In all other cases, the Consolidated
Revenue Fund is appropriated for the repayment.
29 Uncommitted advances
lapse at end of appropriation period
(1) This section applies to money that:
(a) was debited from a Fund, or a
component of a Fund, under an appropriation that authorised the debiting of an
amount from the Fund or component before a particular time (the lapsing
time); and
(b) is Drawn Money at the lapsing time,
but is not held in an official account to meet the payment of cheques that have
already been issued; and
(c) is not excepted from the operation
of this section by regulations made for the purposes of this section.
(2) After the lapsing time, the money is no
longer covered by the appropriation, and must be dealt with as if it had become
Received Money at the lapsing time.
30 Appropriation to be
reinstated for amounts re-credited to Fund
If an amount is re-credited to a Fund
after having been debited from that Fund under the authority of an
appropriation, then the appropriation has effect as if the amount had not been
debited.
Note: The amount re-credited to the Fund will be
available to be debited again, subject to any time limits that apply to the
appropriation. In the case of an annual appropriation that authorised debits to
the Fund during a financial year, the re-credited amount would not be available
after the end of the financial year.
31 Agreements for “net
appropriations”
(1) The Finance Minister may enter into
agreements for the purposes of items in Appropriation Acts that are marked “net
appropriation”.
(2) In the case of items for which the
Finance Minister is responsible, the agreement is to be made with the Chief
Executive of the Agency for which the appropriation is made. In all other
cases, the agreement is to be made with the Minister who is responsible for the
item.
(3) An agreement need not relate to a
particular Appropriation Act or Acts and may be made for any period, including
a period longer than a financial year.
(4) The Finance Minister may at any time
cancel or vary an agreement, without the consent of the other party.
(5) In this section:
Appropriation Act includes a Supply Act.
item means an item, subdivision or division
in a Schedule to an Appropriation Act.
32 Adjustment of
appropriations on change of Agency functions
(1) This section applies if a function of an
Agency (the old Agency) becomes a function of another Agency (the
new Agency), either because the old Agency is abolished or for
any other reason.
(2) The Finance Minister may:
(a) issue one or more directions to
transfer from the old Agency to the new Agency some or all of an amount that
has been appropriated for the performance of that function by the old Agency;
and
(b) issue one or more directions to
transfer from the new Agency back to the old Agency the whole or a part of an
amount that was transferred to the new Agency by a direction under paragraph
(a).
(3) The Finance Minister may not issue a
direction that transfers an amount between Departments of the Parliament except
in accordance with a written recommendation of the Presiding Officers.
(4) A direction has effect from the time it
is issued.
(5) A direction does not have the effect of
extending any time limit that applies to the appropriation concerned.
Division 4—Miscellaneous
33 Finance Minister may
approve act of grace payments
(1) If the Finance Minister considers it
appropriate to do so because of special circumstances, he or she may authorise
the making of any of the following payments to a person (even though the
payment or payments would not otherwise be authorised by law or required to
meet a legal liability):
(a) one or more payments of an amount or
amounts specified in the authorisation (or worked out in accordance with the
authorisation);
(b) periodical payments of an amount
specified in the authorisation (or worked out in accordance with the
authorisation), during a period specified in the authorisation (or worked out
in accordance with the authorisation).
(2) If a proposed authorisation would
involve, or be likely to involve, a total amount of more than $100,000, the
Finance Minister must first consider a report of an Advisory Committee set up
under section 59.
(3) Conditions may be attached to payments
under this section. If a condition is breached, the payment may be recovered by
the Commonwealth as a debt in a court of competent jurisdiction.
(4) Payments under this section are to be
made out of money appropriated by the Parliament for the purposes of this section.
34 Finance Minister may
waive debts etc.
(1) The Finance Minister may, on behalf of
the Commonwealth:
(a) waive the Commonwealth’s right to
payment of an amount owing to the Commonwealth;
(b) postpone any right of the
Commonwealth to be paid a debt in priority to another debt or debts;
(c) allow the payment by instalments of
an amount owing to the Commonwealth;
(d) defer the time for payment of an
amount owing to the Commonwealth.
(2) If a proposed waiver under paragraph
(1)(a) involves, or is likely to involve, a total amount of more than $100,000,
the Finance Minister must consider a report of an Advisory Committee set up
under section 59 before taking action on the waiver.
(3) A waiver may be made either
unconditionally or on the condition that a person agrees to pay an amount to
the Commonwealth in specified circumstances.
(4) In this section:
amount owing to the Commonwealth includes an
amount that is owing but not yet due for payment.
35 Finance Minister may
approve payments pending probate etc.
(1) If, at the time of a person’s death, the
Commonwealth owed an amount to the person, the Finance Minister may authorise
payment of that amount to the person who the Minister considers should receive
the payment.
(2) The Minister may authorise the payment
without requiring production of probate of the will of the deceased person or
letters of administration of the estate of the deceased person.
(3) In deciding who should be paid, the
Finance Minister must have regard to the persons who are entitled to the
property of the deceased person under the deceased person’s will or under the
law relating to the disposition of the property of deceased persons.
(4) After the payment is made, the
Commonwealth has no further liability in respect of the payment. However, this
section does not relieve the recipient from a liability to deal with the money
in accordance with law.
(5) This section does not have the effect of
appropriating a Fund for the purposes of payments under this section.
(6) This section extends to cases where the
deceased person died before the commencement of this section.
36 Presiding Officers may
approve expenditure
(1) The following persons have authority to
approve a proposal to spend public money under an appropriation for a
Department of the Parliament:
(a) a Presiding Officer, for expenditure
under an appropriation for which he or she alone is responsible;
(b) the Presiding Officers jointly, for
expenditure under an appropriation for which they are jointly responsible.
(2) A Presiding Officer may by written
instrument delegate his or her powers under this section to an official. In
exercising powers under the delegation, the official must comply with any
directions of the Presiding Officer.
Part 5—Borrowing and investment
37 Unauthorised borrowing
agreements are invalid
An agreement for the borrowing of money
by the Commonwealth is of no effect unless the borrowing is authorised by an
Act. For this purpose, borrowing includes obtaining an advance on
overdraft.
38 Finance Minister may
borrow for short periods
(1) The Finance Minister, on behalf of the
Commonwealth, may enter into an agreement with any bank for borrowing money
from the bank by way of advances (including advances on overdraft) that are to
be paid to the Commonwealth and repaid by the Commonwealth within 90 days.
(2) The Finance Minister, on behalf of the
Commonwealth, may enter into agreements in accordance with the regulations for
borrowing money from banks or other persons. Such an agreement must require the
money to be repaid within 60 days after the Commonwealth is notified by the
lender of the amount borrowed.
39 Finance Minister may
invest public money
(1) The Finance Minister may invest Fund
balances, or Drawn Money, in any authorised investment.
(2) Expenses of investment of money from a
Fund or component of a Fund may be debited from the Fund or component. Expenses
of investment of Drawn Money may be paid out of Drawn Money.
(3) Upon realisation of an investment of an
amount debited from the Loan Fund or from a component of the Reserved Money
Fund or Commercial Activities Fund, the proceeds of the investment must be
transferred from the Consolidated Revenue Fund to the Fund or component
concerned, up to the amount debited from the Fund or component for the
investment (including amounts debited for expenses).
(4) Upon realisation of an investment of
Drawn Money, there must be transferred from the Consolidated Revenue Fund to
Drawn Money an amount equal to the full amount paid from Drawn Money for the
investment (including amounts debited for expenses). This requirement applies
even if the proceeds of investment are less than the amount required to be
transferred.
(5) At any time before an investment matures,
the Finance Minister may authorise the re-investment of the proceeds upon
maturity in an authorised investment with the same bank or institution.
Note: The proceeds of investment of the original
investment will not become public money when the investment matures because the
proceeds will not be received by or on behalf of the Commonwealth.
(6) The corporation established by section
62B of the Audit Act 1901 is continued in existence for the purposes of
this section with the name “The Minister for Finance of the Commonwealth”.
Investments by the Finance Minister under this section must be made in that
corporate name.
(7) The Funds are appropriated as necessary
for the purposes of this section. Drawn Money may be applied in accordance with
this section without further appropriation.
(8) In this section:
authorised investment means:
(a) securities of the Commonwealth or of
a State or Territory;
(b) securities guaranteed by the
Commonwealth, a State or a Territory;
(c) a deposit with a bank, including a
deposit evidenced by a certificate of deposit;
(d) any other form of investment
prescribed by the regulations.
Part 6—Control and management of public property
40 Custody etc. of
securities
An official who receives any bonds,
debentures or other securities in the course of carrying out duties as an
official must deal with them in accordance with the Finance Minister’s Orders.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
41 Misapplication or
improper use of public property
An official or Minister must not
misapply public property or improperly dispose of, or improperly use, public
property.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
42 Liability for loss etc.
of public property
(1) If:
(a) a loss of public property occurs;
and
(b) at the time of the loss, an official
or Minister had nominal custody of the property as described in subsection (2);
the official or Minister is liable to pay to the
Commonwealth the amount of the loss. However, it is a defence if the person
proves that he or she took reasonable steps in all the circumstances to prevent
the loss.
(2) A person (the custodian)
has nominal custody of public property if both of the following conditions are
satisfied:
(a) the custodian has taken delivery of
the property and has not returned it to the person entitled to receive the
property on behalf of the Commonwealth;
(b) when the custodian took delivery of
the property the custodian signed a written acknowledgment that the property
was delivered on the express condition that the custodian would at all times
take strict care of the property.
(3) If:
(a) a loss of public property occurs;
and
(b) an official or Minister caused or
contributed to the loss by misconduct, or by a deliberate or serious disregard
of reasonable standards of care;
the official or Minister is liable to pay to the
Commonwealth the amount of the loss. However, if the person’s misconduct or
disregard was not the sole cause of the loss, the person is liable to pay only
so much of the amount of the loss as is just and equitable having regard to the
person’s share of the responsibility for the loss.
(4) A person’s liability under this section
that arises when the person is an official or Minister is not avoided merely
because the person ceases to be an official or Minister.
(5) An amount payable to the Commonwealth
under this section is recoverable as a debt in a court of competent
jurisdiction.
(6) The Commonwealth is not entitled to
recover amounts from the same person under both subsections (1) and (3) for the
same loss.
(7) In this section:
amount of the loss means:
(a) if the property is damaged—the value
of the property or the cost of repairing the property, whichever is less;
(b) in all other cases—the value of the
property.
loss includes destruction or damage.
43 Gifts of public property
An official or Minister must not make a
gift of public property unless:
(a) the making of the gift is expressly
authorised by law; or
(b) the Finance Minister has given
written approval to the gift being made; or
(c) the Commonwealth acquired the
property to use it as a gift.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Part 7—Special responsibilities of Chief Executives
44 Promoting efficient,
effective and ethical use of Commonwealth resources
(1) A Chief Executive must manage the affairs
of the Agency in a way that promotes proper use of the Commonwealth resources
for which the Chief Executive is responsible.
(2) If compliance with the requirements of
the regulations, Finance Minister’s Orders, Special Instructions or any other
law would hinder or prevent the proper use of those resources, the Chief
Executive must manage so as to promote proper use of those resources to the
greatest extent practicable while complying with those requirements.
(3) In this section:
proper use means efficient, effective and
ethical use.
45 Fraud control plan
A Chief Executive must implement a fraud
control plan for the Agency. For this purpose, fraud includes
fraud by persons outside the Agency in relation to activities of the Agency.
46 Audit committee
A Chief Executive must establish and
maintain an audit committee for the Agency, with the functions and
responsibilities required by the Finance Minister’s Orders.
47 Recovery of debts
(1) A Chief Executive must pursue recovery of
each debt for which the Chief Executive is responsible unless:
(a) the debt has been written off as
authorised by an Act; or
(b) the Chief Executive is satisfied
that the debt is not legally recoverable; or
(c) the Chief Executive considers that
it is not economical to pursue recovery of the debt.
(2) For the purposes of subsection (1), a
Chief Executive is responsible for:
(a) debts owing to the Commonwealth in
respect of the operations of the Agency; and
(b) debts owing to the Commonwealth that
the Finance Minister has allocated to the Chief Executive.
48 Accounts and records
(1) A Chief Executive must ensure that
accounts and records of the Agency are kept as required by the Finance
Minister’s Orders.
(2) The Finance Minister is entitled to full
and free access to the accounts and records kept under subsection (1). However,
the Finance Minister’s access is subject to any law that prohibits disclosure
of particular information.
49 Annual financial
statements
(1) A Chief Executive must give to the
Auditor‑General the annual financial statements required by the Finance
Minister’s Orders.
(2) 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.
(3) 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 Chief Executive must
add such information and explanations as will give a true and fair view of
those matters.
(4) In the financial statements, the Chief
Executive must state whether, in his or her opinion, the financial statements
give a true and fair view of the matters required by Finance Minister’s Orders.
50 Additional financial
statements and information
(1) A Chief Executive must, when required by
the Finance Minister, give the Finance Minister financial statements covering a
period of less than a financial year. The Finance Minister may require the
statements to include some or all of the details that are required to be
included in the annual financial statements.
(2) A Chief Executive must give the Finance
Minister any information that the Finance Minister requires about the financial
affairs of the Agency. However, a Chief Executive is not required to give
information whose disclosure is prohibited by any law.
51 Reporting requirements
on change of Agency functions
(1) If an Agency ceases to exist, the
financial statements that would have been required to be prepared under section
49 by the Chief Executive of that Agency must be prepared instead by another
Chief Executive nominated by the Finance Minister. However, the statements need
not deal with any functions that were transferred from the Agency that ceased
to exist to another Agency.
(2) If a function is transferred between 2 or
more Agencies in a financial year, the financial statements under section 49
for that function must be prepared by the Chief Executive of one of those
Agencies, or by the Chief Executives of 2 or more of those Agencies, as
directed by the Finance Minister.
52 Chief Executive’s
instructions
(1) The regulations may authorise Chief
Executives to give instructions to officials in their Agencies on any matter on
which regulations may be made under this Act.
(2) An instruction cannot create offences or
impose penalties.
53 Chief Executive may
delegate powers
(1) A Chief Executive may, by written
instrument, delegate any of the following powers and functions to an official
in any Agency:
(a) the Chief Executive’s powers or
functions under this Act (including powers or functions that have been
delegated to the Chief Executive under section 62);
(b) the Chief Executive’s power to give
instructions under regulations referred to in section 52.
(2) In exercising powers or functions under
the delegation, the official must comply with any directions of the Chief
Executive.
Part 8—Reporting and audit
54 Preparation and
publication of monthly statement of fund transactions
(1) As soon as practicable after the end of
each month of a financial year, the Finance Minister must publish a Statement
of Commonwealth Financial Transactions for the purpose of reporting comparisons
between:
(a) the transactions of the Funds for
the month, and for the financial year up to the end of the month; and
(b) the Budget Estimates for the
financial year.
(2) The Statement must be in a form that
reflects the main headings of the Budget Estimates (by function and type, as
appropriate), for the financial year.
(3) The Statement must contain details of the
transactions of the Funds for the month, and for the current financial year up
to the end of the month. It must also show:
(a) the way in which the surplus for the
month was applied, or the deficit for the month was financed; and
(b) the way in which the surplus for the
current financial year up to the end of that month was applied, or the deficit
for the current financial year up to the end of that month was financed.
(4) The Statement may include any other
information that the Finance Minister considers relevant.
(5) In this section:
Budget Estimates means the estimates of
revenue and outlays tabled in Parliament as part of the annual Budget.
55 Preparation of annual
statements by Finance Minister
(1) As soon as practicable after the end of
each financial year, the Finance Minister must prepare the annual financial
statements required by the regulations.
(2) The Finance Minister must give the
statements to the Auditor‑General as soon as practicable after they are
prepared.
(3) If the Finance Minister has not given the
statements to the Auditor‑General within 5 months after the end of the
financial year, the Finance Minister must cause to be tabled in each House of
the Parliament a statement of the reasons why the statements were not given to
the Auditor‑General within that period.
56 Audit of Finance
Minister’s annual financial statements
(1) As soon as practicable after receiving
financial statements under section 55, the Auditor‑General must examine
the statements and prepare an audit report in accordance with the regulations.
(2) Instead of preparing a single report, the
Auditor‑General may prepare an initial report and one or more later
supplementary reports.
(3) The Auditor‑General must give a
copy of each report to the Finance Minister.
(4) The Finance Minister must cause a copy of
each report to be tabled in each House of the Parliament as soon as practicable
after receipt. Except in the case of a supplementary report, the copy that is
tabled must be accompanied by a copy of the annual financial statements.
57 Audit of annual
financial statements of Agency
(1) As soon as practicable after receiving
financial statements under subsection 49(1) for an Agency, the Auditor‑General
must examine the statements and report in accordance with this section to the
Minister responsible for the Agency.
(2) In the report, 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.
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) If the Auditor‑General is of the
opinion that the Chief Executive has contravened section 48, the Auditor‑General
must state particulars of the contravention.
(5) 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) Instead of preparing a single report, the
Auditor‑General may prepare an initial report and one or more later
supplementary reports.
(7) A copy of the financial statements and
the Auditor‑General’s report or reports must be included in the Agency’s
annual report that is tabled in the Parliament.
Part 9—Miscellaneous
58 Modifications of Act for
intelligence or security agency
(1) The application of this Act to 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.
59 Advisory Committees for
reporting on large waivers etc.
(1) An Advisory Committee for the purposes of
this Act consists of:
(a) the Chief Executive Officer of
Customs; and
(b) the Secretary to the Department of
Finance; and
(c) the Chief Executive of the Agency
that is responsible for the matter on which the Committee has to report.
(2) If there is no Agency responsible for the
matter, or if the responsible Agency is the Department of Finance or the
Australian Customs Service, then the Chief Executive of the Department of
Administrative Services is to be the third member of the Committee.
(3) A member of an Advisory Committee may
appoint a deputy to act in his or her place.
(4) An Advisory Committee may prepare its report
without having a meeting.
60 Misuse of Commonwealth
credit card
(1) An official or Minister must not use a
Commonwealth credit card, or a Commonwealth credit card number, to obtain cash,
goods or services otherwise than for the Commonwealth.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) Subsection (1) does not apply to a
particular use of a Commonwealth credit card or Commonwealth credit card number
if:
(a) the use is authorised by the Finance
Minister’s Orders; and
(b) the Commonwealth is reimbursed in
accordance with the Finance Minister’s Orders.
(3) In this section:
Commonwealth credit card means a credit card
issued to the Commonwealth to enable the Commonwealth to obtain cash, goods or
services on credit.
61 Official must not
falsify accounts etc.
An official must not falsify any
account, statement, receipt or record kept or issued for the purposes of this
Act or for the purposes of regulations or other instruments made under this
Act.
Maximum penalty: Imprisonment for 7 years.
Note: Chapter 2 of the Criminal
Code sets out the general principles of criminal responsibility.
62 Finance Minister may
delegate powers
(1) The Finance Minister may, by written
instrument, delegate to an official any of the Finance Minister’s powers or
functions under this Act, except the power to make Orders.
(2) In exercising powers or functions under a
delegation, the official must comply with any directions of the Finance
Minister.
63 Finance Minister’s
Orders
(1) The Finance Minister may make Orders:
(a) on any matter on which this Act
requires or permits Finance Minister’s Orders to be made; and
(b) on any matter on which regulations
may 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.
64 Guidelines by Ministers
(1) The regulations may authorise a Minister
to issue guidelines to officials on matters within the Minister’s
responsibility. The matters must be ones about which regulations may be made
under this Act.
(2) A guideline cannot create offences or
impose penalties.
65 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) In particular, the regulations may make
provision:
(a) relating to any of the following
matters:
(i) handling, spending and
accounting for public money;
(ii) commitments to spend
public money;
(iii) recovering amounts owing
to the Commonwealth;
(iv) using or disposing of
public property, or acquiring property that is to be public property;
(b) generally for ensuring or promoting:
(i) the proper use and
management of public money, public property and other resources of the
Commonwealth;
(ii) proper accountability for
the use and management of public money, public property and other resources of
the Commonwealth;
(c) 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.