An Act to provide for the proper use and management of public
money, public property and other Commonwealth resources, and for related
purposes
Part 1—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Financial
Management and Accountability Act 1997.
2
Commencement [see
Note 1]
(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 draw money from the Consolidated Revenue 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 1999 or the Parliamentary Service Act 1999.
CRF or Consolidated Revenue Fund
means the Consolidated Revenue Fund referred to in section 81 of the
Constitution.
Finance Minister means the Minister who
administers this Act.
Finance Minister’s Orders means Orders made
under section 63.
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.
Special Account
means:
(a) a Special Account that is
established by the Finance Minister under section 20; or
(b) a Special Account that is
established by an Act other than this Act.
Note: See also the Financial Management
Legislation Amendment Act 1999, which converted components of previously
existing funds into Special Accounts.
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 the parties to the
transaction are merely parts of the Commonwealth, or acting as agents for the
Commonwealth. For example, Agency 1 “pays” Agency 2 for services provided by
Agency 2. One of the effects of this section is that a drawing right under
section 27 will be required for the transaction.
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—Accounting, appropriations and payments
Division 1—Accounts and records in relation to public money
19
Accounts and records in relation to public money
The
Finance Minister must cause proper accounts and records to be kept in relation
to the receipt and expenditure of public money.
Note: Section 48 requires Chief Executives of
Agencies to keep accounts and records in accordance with the Finance Minister’s
Orders.
Division 1A—Special Accounts
20
Establishment of Special Accounts by Finance Minister
(1) The Finance Minister may make a written
determination that does all of the following:
(a) establishes a Special Account;
(b) allows or requires amounts to be
credited to the Special Account;
(c) specifies the purposes for which
amounts are allowed or required to be debited from the Special Account.
Note: See section 32A for when the crediting or
debiting of an amount takes effect.
(1A) A determination under subsection (1)
may specify that an amount may or must be debited from a Special Account
established under subsection (1) otherwise than in relation to the making
of a real or notional payment.
(2) The Finance Minister may make a
determination that revokes or varies a determination made under subsection (1).
(3) The Finance Minister may make a
determination that abolishes a Special Account established under subsection (1).
(4) The CRF is hereby appropriated for
expenditure for the purposes of a Special Account established under subsection (1),
up to the balance for the time being of the Special Account.
Note: An Appropriation Act provides for amounts to
be credited to a Special Account if any of the purposes of the Account is a
purpose that is covered by an item in the Appropriation Act.
(4A) If the Finance Minister makes a
determination that allows an amount standing to the credit of a Special Account
to be expended in making payments for a particular purpose, then, unless the
contrary intention appears, the amount may also be applied in making notional
payments for that purpose.
Note: This subsection applies to transactions that
do not actually involve payments because the parties to the transaction are
merely parts of the Commonwealth or acting as agents for the Commonwealth. For
example, Agency 1 “pays” Agency 2 for services provided by Agency 2.
(5) Whenever an amount is debited against the
appropriation in subsection (4), the amount is taken to be also debited
from the Special Account.
21
Special Accounts established by other Acts
(1) If another Act establishes a Special
Account and identifies the purposes of the Special Account, then the CRF is
hereby appropriated for expenditure for those purposes, up to the balance for
the time being of the Special Account.
Note 1: An Act that establishes a Special Account will
identify the amounts that are to be credited to the Special Account.
Note 2: An Appropriation Act provides for amounts to be
credited to a Special Account if any of the purposes of the Account is a
purpose that is covered by an item in the Appropriation Act.
Note 3: See section 32A for when the crediting or
debiting of an amount takes effect.
(1A) If an Act allows an amount standing to the
credit of a Special Account to be applied, debited, paid or otherwise used for
a particular purpose, then, unless the contrary intention appears, the amount
may also be applied, paid or otherwise used in making a notional payment for
that purpose.
Note: This subsection applies to transactions that
do not actually involve payments because the parties to the transaction are
merely parts of the Commonwealth or acting as agents for the Commonwealth. For
example, Agency 1 “pays” Agency 2 for services provided by Agency 2.
(2) Whenever an amount is debited against the
appropriation in subsection (1), the amount is taken to be also debited
from the Special Account.
22
Disallowance of determinations relating to Special Accounts
(1) This section applies to a determination
made by the Finance Minister under subsection 20(1) or (2).
(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.
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
against an appropriation;
(c) debit an amount against an
appropriation.
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
against a particular appropriation;
(c) debit an amount against a
particular appropriation.
(2) If a law requires the payment of an
amount of public money and there is an available appropriation for that
payment:
(a) the Finance Minister must issue
sufficient drawing rights to allow the amount to be paid in full; and
(b) the recipient of any of those
drawing rights must exercise the rights in full.
(3) If a law permits the payment of an amount
of public money, but does not require the payment of that amount, 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 Repayments
by the Commonwealth
(1) This section applies if:
(a) an amount is received by the
Commonwealth; and
(b) some or all of the amount is
required or permitted to be repaid; and
(c) apart from this section there is
no appropriation 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) The CRF is appropriated for the
repayment.
30
Repayments to the Commonwealth
If:
(a) an amount is paid by the
Commonwealth; and
(b) an appropriation is debited as a
result of the payment; and
(c) some or all of the amount is
repaid to the Commonwealth;
the appropriation is increased by an amount equal to the
amount repaid.
Note: See section 32A for when the increase
takes effect.
30A
Appropriations to take account of recoverable GST
Recoverable GST on acquisitions
(1) If:
(a) a payment in respect of an
acquisition is made in reliance on a limited appropriation; and
(b) a GST qualifying amount has arisen
or does arise for that acquisition;
then the appropriation is increased by the amount of the
GST qualifying amount.
Note: See section 32A for when the increase
takes effect.
Recoverable GST on importations
(2) If:
(a) a payment of GST on an importation
is made in reliance on a limited appropriation; and
(b) a GST qualifying amount has arisen
or does arise for that importation;
then the appropriation is increased by the amount of the
GST qualifying amount.
Note: See section 32A for when the increase
takes effect.
Definitions
(7) In this section:
acquisition has the same meaning as in the
GST Act.
GST has the same meaning as in the GST Act.
GST Act means the A New Tax System (Goods
and Services Tax) Act 1999, as it applies because of Division 177 of
that Act.
Note: Under Division 177 of the GST Act, that
Act applies notionally to the Commonwealth and Commonwealth entities. They are
therefore notionally liable to pay GST, are notionally entitled to input tax
credits and notionally have adjustments.
GST qualifying amount means:
(a) an input tax credit (within the
meaning of the GST Act); or
(b) a decreasing adjustment (within
the meaning of the GST Act).
importation has the same meaning as in the
GST Act.
limited appropriation means an appropriation
that is limited as to amount.
31
Relevant Agency receipts
(1) This section applies if an Agency
receives an amount of a kind prescribed by the regulations for the purposes of
this section.
(2) The amount specified in the most recent
departmental item for the Agency is taken to be increased by an amount equal to
the amount received by the Agency.
Note: See section 32A for when the increase
takes effect.
(3) In this section:
departmental item means a departmental item
in an Appropriation Act.
32
Transfer of Agency functions
(1) This section applies if a function of an
Agency (the transferring Agency) is transferred to another
Agency, either because the transferring Agency is abolished or for any other
reason.
Adjustments to appropriations
(2) The Finance Minister may determine that
one or more Schedules to one or more Appropriation Acts are amended in a
specified way. The amendment must be related to the transfer of function.
(3) Each Appropriation Act concerned has
effect as if the Schedule concerned were amended in accordance with the
determination.
No change in overall
appropriation
(4) A determination under subsection (2)
cannot result in a change in the total amount appropriated.
Transfer of function between Departments of the
Parliament
(5) If the transfer of function is between
Departments of the Parliament, the Finance Minister must not make a
determination under subsection (2) unless it is in accordance with a
written recommendation of the Presiding Officers.
No extension of time limits
(6) A determination under subsection (2)
does not have the effect of extending any time limit that applies to an
appropriation.
Legislative Instruments Act
(7) A determination under subsection (2)
is a legislative instrument, but neither section 42 (disallowance) nor
Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies
to the determination.
(8) Despite subsection 12(2) of the Legislative
Instruments Act 2003, a determination under subsection (2) of this
section may be expressed to take effect before the day it is registered under
that Act (including before the day on which it is made).
(9) Nothing in subsection (8) authorises
expenditure under an appropriation that did not exist at the time of the
expenditure.
Division 3A—Recording of amounts in accounts and records
32A
Recording of amounts in accounts and records
Special Accounts
(1) The crediting of an amount to a Special
Account, or the debiting of an amount from a Special Account, takes effect at
the time an entry connected with the crediting or debiting is made in the
accounts and records of the Agency concerned.
Repayments to the Commonwealth
(2) The increase to an appropriation in
accordance with section 30 takes effect at the time an entry recording the
repayment concerned is made in the accounts and records of the Agency
concerned.
Recoverable GST
(3) The increase to an appropriation in
accordance with subsection 30A(1) or (2) takes effect at the time an entry
recording the GST qualifying amount is made in the accounts and records of the
Agency concerned.
Relevant Agency receipts
(4) The increase to an amount in accordance
with subsection 31(2) takes effect at the time an entry recording the receipt
of the amount mentioned in subsection 31(1) is made in the accounts and records
of the Agency 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.
Note: Act of grace payments under this section must
be made from money appropriated by the Parliament. Generally, an act of grace
payment can be debited against an Agency’s annual appropriation, providing that
it relates to some matter that has arisen in the course of its administration
or otherwise relates to the Agency’s outcomes.
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 the CRF 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
Investment of public money
(1) The Finance Minister may invest public
money in any authorised investment.
(2) For the purpose of managing the public
debt of the Commonwealth, the Treasurer may invest public money in any
authorised investment.
(3) An investment of public money under this
section must not be inconsistent with the terms of any trust that applies to
the money concerned.
(4) If an amount invested under this section
was debited from a Special Account, then expenses of the investment may be
debited from that Special Account.
(5) Upon realisation of an investment of an
amount debited from a Special Account, the proceeds of the investment must be
credited to that Special Account.
(6) At any time before an investment matures,
the Finance Minister or Treasurer, as the case requires, may authorise the re‑investment
of the proceeds upon maturity in an authorised investment with the same entity.
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.
(7) 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.
(8) The corporation established by section 8
of the Loan Consolidation and Investment Reserve Act 1955 is continued
in existence for the purposes of this section with the name “The Treasurer of
the Commonwealth”. Investments by the Treasurer under this section must be made
in that corporate name.
(9) The CRF is appropriated as necessary for
the purposes of this section.
(10) In this section:
authorised investment means:
(a) in relation to the Finance
Minister—any of the following investments:
(i) securities of the
Commonwealth or of a State or Territory;
(ii) securities guaranteed
by the Commonwealth, a State or a Territory;
(iii) a deposit with a bank,
including a deposit evidenced by a certificate of deposit;
(iv) any other form of
investment prescribed by the regulations; and
(b) in
relation to the Treasurer—any of the following investments:
(i) securities of the
Commonwealth or of a State or Territory;
(ii) securities guaranteed
by the Commonwealth, a State or a Territory;
(iii) a deposit with a bank,
including a deposit evidenced by a certificate of deposit;
(iv) debt instruments issued
or guaranteed by:
(A) the
government of a foreign country; or
(B) a
financial institution whose members consist of foreign countries, or of Australia
and foreign countries;
being debt instruments
with a credit rating that is consistent with the sound management of public
debt;
(v) 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 or 62A);
(b) the Chief Executive’s power to
give instructions under regulations referred to in section 52.
(1AA) If:
(a) the Chief Executive delegates a
power or function to a person; and
(b) the power or function is not one
that has been delegated to the Chief Executive under section 62 or 62A;
the Chief Executive may give directions to the person in
relation to the exercise of that power or the performance of that function. The
person must comply with any such directions.
(1A) If the Chief Executive delegates to a
person (the second delegate) a power or function that has
been delegated to the Chief Executive under section 62 or 62A, then that
power or function, when exercised or performed by the second delegate, is taken
for the purposes of this Act to have been exercised or performed by the Finance
Minister or Treasurer.
(2) If the Chief Executive is subject to
directions in relation to the exercise of a power, or the performance of a
function, delegated to the Chief Executive under section 62 or 62A, then:
(a) the Chief Executive must give
corresponding directions to the second delegate; and
(b) the Chief Executive may give other
directions (not inconsistent with those corresponding directions) to the second
delegate in relation to the exercise of that power or the performance of that
function.
(3) The second delegate must comply with any
directions of the Chief Executive.
Part 8—Reporting and audit
54
Finance Minister must publish monthly financial statements
(1) As soon as practicable after the end of
each month of a financial year, the Finance Minister must publish financial
statements in relation to that month.
(2) The statements must be in a form that is
consistent with the budget estimates for the financial year.
(3) The statements may include any additional
information that the Finance Minister considers relevant.
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 or prescribed law
enforcement agency
(1) The application of this Act to an
intelligence or security agency, or to a prescribed law enforcement 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.
prescribed law enforcement agency means a law
enforcement agency, within the meaning of section 85ZL of the Crimes
Act 1914, that is prescribed by the regulations for the purposes of this
definition.
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 Administration; 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 and
Administration or the Australian Customs Service, then the third member of the
Committee is to be a Chief Executive nominated by the Finance Minister.
(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.
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.
62A
Treasurer may delegate powers
(1) The Treasurer may, by written instrument,
delegate to an official any of the Treasurer’s powers or functions under this
Act.
(2) In exercising powers or functions under a
delegation, the official must comply with any directions of the Treasurer.
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.
Table A
Application, saving or transitional provisions
Financial
Management Legislation Amendment Act 1999 (No. 20, 1999)
5 Conversion of RMF components and
CAF components
(1) This section applies to each old
component that:
(a) was in existence immediately
before the commencing time; or
(b) is established by a provision of
an Act that comes into operation after the commencing time.
However, this section does not apply to the Loan
Consolidation and Investment Reserve.
Note: Schedule 1 repeals the Loan
Consolidation and Investment Reserve Act 1955.
(2) The conversion time for the
old component is:
(a) the commencing time, if the
component was in existence immediately before the commencing time; or
(b) otherwise, the time when the
component is established.
(3) At the conversion time:
(a) a new account is established in
respect of the old component; and
(b) any balance of the old component
is to be credited to the new account.
(4) The new account is a Special Account for
the purposes of the Financial Management and Accountability Act 1997.
(5) The name of the new account is:
(a) if the name of the old component
ends with “Reserve”—a name that is the same as the name of the old component,
but ends with “Account” instead of “Reserve”; or
(b) if the name of the old component
ends with “Fund”—a name that is the same as the name of the old component, but
ends with “Account” instead of “Fund”; or
(c) if the name of the old component
ends with “Account”—a name that is the same as the name of the old component;
or
(d) in any other case—the name
determined in writing by the Finance Minister for the purposes of this
subsection.
(6) In relation to matters that happen after
the commencing time, a reference in any instrument to the old component is to
be read as a reference to the new account and, in particular:
(a) a reference to:
(i) transferring or paying
an amount from the Consolidated Revenue Fund to the old component; or
(ii) debiting an amount
from the Consolidated Revenue Fund and crediting the amount to the old
component;
is to be read as a reference to
crediting the amount to the new account; and
(b) a reference to:
(i) transferring or paying
an amount to the Consolidated Revenue Fund from the old component; or
(ii) debiting an amount
from the old component and crediting the amount to the Consolidated Revenue
Fund;
is to be read as a reference to
debiting the amount from the new account; and
(c) a reference to paying an amount
out of the old component is to be read as a reference to paying the amount out
of the Consolidated Revenue Fund and debiting the amount from the new account.
(7) If the old component was established by
the Finance Minister under the Financial Management and Accountability Act
1997, then:
(a) the new account is taken to have
been established by a determination under section 20 of that Act (as
amended by this Act); and
(b) that determination may be revoked
or varied under that section; and
(c) the new account may be abolished
under that section.
6 Transitional provisions for the
Loan Fund
(1) In any instrument, a reference to the
Loan Fund is to be read as a reference to the Consolidated Revenue Fund, in
relation to matters occurring after the commencing time.
(2) Without limiting subsection (1):
(a) after the commencing time, any
appropriation that is expressed to be an appropriation of the Loan Fund has
effect as an appropriation of the Consolidated Revenue Fund; and
(b) after the commencing time, any
provision of an instrument that is expressed to require or permit the payment
of an amount from the Loan Fund has effect as if it required or permitted the
payment of that amount from the Consolidated Revenue Fund.
7 Instruments referring to payments
into the Consolidated Revenue Fund
In any instrument, a reference to
payment of an amount into the Consolidated Revenue Fund is to be read as a
reference to payment of the amount to the Commonwealth (unless the amount is
already public money).
Note: Public money is defined in the Financial
Management and Accountability Act 1997.
8 Quarterly statements sufficient
during transitional period
(1) Section 54 of the Financial
Management and Accountability Act 1997 has effect in
relation to the transitional period as if references to a month of a financial
year were references to a quarter of a financial year.
(2) In this section:
transitional period means the period:
(a) starting on the day on which this
Act commences; and
(b) ending at the end of the third
quarter after the quarter in which this Act commences.
9 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, regulations may be made
for matters of a transitional or saving nature arising from the amendments made
by this Act.
Criminal Code Amendment (Theft, Fraud, Bribery and Related
Offences) Act 2000 (No. 137, 2000)
Schedule 2
418 Transitional—pre‑commencement
offences
(1) Despite the amendment or
repeal of a provision by this Schedule, that provision continues to apply,
after the commencement of this item, in relation to:
(a) an
offence committed before the commencement of this item; or
(b) proceedings
for an offence alleged to have been committed before the commencement of this
item; or
(c) any
matter connected with, or arising out of, such proceedings;
as if the amendment or repeal had not
been made.
(2) Subitem (1) does
not limit the operation of section 8 of the Acts Interpretation Act
1901.
419 Transitional—pre‑commencement
notices
If:
(a) a
provision in force immediately before the commencement of this item required
that a notice set out the effect of one or more other provisions; and
(b) any or
all of those other provisions are repealed by this Schedule; and
(c) the
first‑mentioned provision is amended by this Schedule;
the amendment of the first‑mentioned
provision by this Schedule does not affect the validity of such a notice that
was given before the commencement of this item.
Financial Framework Legislation Amendment
Act 2005
(No. 8, 2005)
4
Saving of matters in Part 2 of Schedule 1
(1) If:
(a) a decision or action is taken or
another thing is made, given or done; and
(b) the thing is taken, made, given or
done under a provision of a Part 2 Act that had effect immediately before
the commencement of this Act;
then the thing has the corresponding effect, for the
purposes of the Part 2 Act as amended by this Act, as if it had been
taken, made, given or done under the Part 2 Act as so amended.
(2) In this section:
Part 2 Act means an Act that is amended
by an item in Part 2 of Schedule 1.
Schedule 1
496 Saving provision—Finance Minister’s determinations
If a determination under subsection 20(1) of the Financial
Management and Accountability Act 1997 is in force immediately before the
commencement of this item, the determination continues in force as if it were
made under subsection 20(1) of that Act as amended by this Act.
Schedule 2
174 Saving provision—provisions that formerly referred to
the Treasurer
(1) Any thing that:
(a) was done by the Treasurer, or by a
delegate of the Treasurer, before the commencing time under an affected
provision; and
(b) was in effect immediately before
the commencing time;
continues to have effect after the commencing time as if it had
been done by the Finance Minister under the affected provision.
(2) In this item:
affected provision means a provision that is
amended by an item in this Schedule so as to replace references to the
Treasurer with references to the Finance Minister.
commencing time means the day this Act receives the
Royal Assent.
Finance Minister means the Minister who administers
the Financial Management and Accountability Act 1997.
Financial
Framework Legislation Amendment Act (No. 1) 2007 (No. 166, 2007)
Schedule 1
13 Saving—agreements for “net appropriations”
(2) Despite the amendment made by item 8,
section 31 of the Financial Management and Accountability Act 1997
(as in force immediately before the commencement of that item) continues to
apply after that commencement in relation to agreements entered into before
that commencement.
14 Application—repayments by
the Commonwealth
The amendment made by item 4
applies in relation to amounts received by the Commonwealth before or after the
commencement of that item.
15 Application—repayments to the Commonwealth
The amendment made by item 6 applies in relation to amounts
paid by the Commonwealth before or after the commencement of that item.
16 Application—recoverable GST
The amendment made by item 7 applies in relation to payments
that occur after the commencement of that item.
17 Saving—transfer of Agency functions
Despite the amendment made by item 9, section 32 of the
Financial Management and Accountability Act 1997 (as in force
immediately before the commencement of that item) continues to apply after that
commencement in relation to a change in function that occurred before that
commencement.
18 Transitional—directions to delegates
A direction in force under subsection 53(2) of the Financial
Management and Accountability Act 1997 immediately before the commencement
of this item continues in force after that commencement as if it were a
direction given under that subsection after that commencement.