Contents
Part 1—Preliminary 1
1............ Short title [see Note 1]....................................................................... 1
2............ Commencement [see Note 1].............................................................. 1
3............ This Act binds the Crown.................................................................. 1
4............ This Act extends to things outside Australia..................................... 1
Part 2—Interpretation 2
5............ Definitions.......................................................................................... 2
Part 3—The Auditor‑General 5
7............ Auditor‑General.................................................................................. 5
8............ Independence of the Auditor‑General................................................ 5
9............ Appointment, conditions etc. for Auditor‑General............................ 6
10.......... Auditor‑General to have regard to audit
priorities of Parliament etc. 6
Part 4—Main functions and powers of the Auditor‑General 7
Division 1—Statement audits 7
11.......... Agencies.............................................................................................. 7
12.......... Commonwealth authorities and subsidiaries...................................... 7
13.......... Commonwealth companies and subsidiaries...................................... 7
14.......... Audit fees for statement audits.......................................................... 7
Division 2—Performance audits 9
15.......... Agencies.............................................................................................. 9
16.......... Commonwealth authorities and subsidiaries...................................... 9
17.......... Commonwealth companies and subsidiaries.................................... 10
18.......... General performance audit................................................................ 11
19.......... Comments on proposed report........................................................ 12
Division 3—Audits etc. by arrangement 14
20.......... Audits etc. by arrangement............................................................... 14
Division 4—Functions under other Acts 15
21.......... Acting as auditor under the Corporations Act................................. 15
22.......... Functions under other Acts.............................................................. 15
Division 5—Miscellaneous functions and powers 16
23.......... Provision of advice or information................................................... 16
23A....... Provision of information for performance audits............................. 16
24.......... Auditing standards............................................................................ 16
25.......... Extra reports to Parliament............................................................... 17
26.......... Extra reports to Ministers................................................................ 17
27.......... Contracting outsiders to assist with audits...................................... 17
28.......... Annual report for the Australian National Audit
Office.................. 17
29.......... Delegation by Auditor‑General........................................................ 18
Part 5—Information‑gathering powers and secrecy 19
Division 1—Information‑gathering powers 19
30.......... Relationship of information‑gathering
powers with other laws....... 19
31.......... Purpose for which information‑gathering
powers may be used....... 19
32.......... Power of Auditor‑General to obtain
information............................. 19
33.......... Access to premises etc..................................................................... 20
35.......... Self‑incrimination no excuse............................................................. 21
Division 2—Confidentiality of information 22
36.......... Confidentiality of information.......................................................... 22
37.......... Sensitive information not to be included in
public reports............... 23
Part 6—The Australian National Audit Office 25
38.......... Establishment................................................................................... 25
39.......... Function............................................................................................ 25
40.......... Staff.................................................................................................. 25
Part 7—Audit of the Australian National Audit Office 26
Division 1—The Independent Auditor 26
41.......... Independent Auditor........................................................................ 26
42.......... Appointment, conditions etc. for Independent Auditor.................. 26
43.......... Independent Auditor to have regard to audit
priorities of Parliament etc. 26
Division 2—Audit of the Australian National Audit Office 27
44.......... Audit of annual financial statements................................................ 27
45.......... Performance audit............................................................................. 27
46.......... Sensitive information not to be included in
public reports............... 28
Division 3—Miscellaneous 29
47.......... Independent Auditor to have same access powers
etc. as Auditor‑General 29
48.......... Confidentiality of information.......................................................... 29
49.......... Indemnity......................................................................................... 29
Part 8—Miscellaneous 30
50.......... Guaranteed availability of parliamentary
appropriations................ 30
51.......... Auditor‑General may approve expenditure...................................... 30
53.......... Joint Committee of Public Accounts and Audit may
request draft estimates for Audit Office 30
54.......... Provision of information to the Finance Minister............................ 30
55.......... Indemnity......................................................................................... 31
56.......... Modifications of Act for intelligence or security
agency etc............ 31
57.......... Regulations....................................................................................... 32
Schedule 1—Appointment, conditions of appointment etc.
for Auditor‑General 33
1............ Appointment of Auditor‑General.................................................... 33
2............ Minister must refer recommendation for
appointment of Auditor‑General to the Joint Committee of Public Accounts
and Audit.......................................................................................... 33
3............ Remuneration of Auditor‑General.................................................... 34
4............ Recreation leave etc.......................................................................... 34
5............ Resignation....................................................................................... 34
6............ Removal from office etc.................................................................... 34
7............ Acting appointment.......................................................................... 36
Schedule 2—Appointment, conditions of appointment etc.
for Independent Auditor 37
1............ Appointment of Independent Auditor............................................. 37
2............ Minister must refer recommendation for
appointment of Independent Auditor to the Joint Committee of Public Accounts
and Audit.......................................................................... 37
3............ Remuneration of Independent Auditor............................................. 37
4............ Resignation....................................................................................... 38
5............ Removal from office etc.................................................................... 38
6............ Acting appointment.......................................................................... 39
Notes 41
Part 1—Preliminary
1
Short title [see Note
1]
This Act may be cited as the Auditor‑General
Act 1997.
2
Commencement [see Note
1]
This Act commences on the same day as
the Financial Management and Accountability Act 1997.
3 This
Act binds the Crown
This Act binds the Crown in right of the
Commonwealth, but does not make the Crown liable to be prosecuted for an
offence.
4 This
Act extends to things outside Australia
This Act extends to acts, omissions,
matters and things outside Australia (unless the contrary intention appears).
Part 2—Interpretation
5
Definitions
(1) In this Act, unless the contrary
intention appears:
Agency has the same meaning as in the Financial
Management and Accountability Act 1997.
Audit Office means the Australian
National Audit Office established by section 38.
Auditor‑General function means a
function that the Auditor‑General has under this Act or any other Act,
and includes any function that the Auditor‑General has when acting as
auditor under the Corporations Act 2001.
Chief Executive has the same meaning as in
the Financial Management and Accountability Act 1997.
Commonwealth authority has the same meaning
as in the Commonwealth Authorities and Companies Act 1997.
Note: Subsection (2) is also relevant to
determining whether a body is a Commonwealth authority for the purposes of this
Act.
Commonwealth company has the same meaning as
in the Commonwealth Authorities and Companies Act 1997.
director, in relation to a Commonwealth company
or a subsidiary of a Commonwealth company, has the same meaning as in the Commonwealth
Authorities and Companies Act 1997.
Finance Minister means the Minister
who is the Finance Minister within the meaning of the Financial Management
and Accountability Act 1997.
FMA official means a person who is an
official within the meaning of the Financial Management and Accountability
Act 1997.
GBE or government business enterprise has
the same meaning as in the Commonwealth Authorities and Companies Act 1997.
Joint Committee of Public Accounts and Audit
means the Joint Committee of Public Accounts and Audit provided for in the Public
Accounts and Audit Committee Act 1951.
laws of the Commonwealth means:
(a) the Constitution; and
(b) Acts; and
(c) regulations and other instruments
made under Acts.
Minister includes the President of the Senate
and the Speaker of the House of Representatives.
officer, in relation to a Commonwealth
authority or a subsidiary of a Commonwealth authority, has the same meaning as
in the Commonwealth Authorities and Companies Act 1997.
performance audit, in relation to a person or
body, means a review or examination of any aspect of the operations of the
person or body.
responsible Minister means:
(a) in relation to an Agency—the Minister
who is responsible for the Agency;
(b) in relation to a Commonwealth
authority or any of its subsidiaries—the Minister who is responsible for the
authority;
(c) in relation to a Commonwealth
company or any of its subsidiaries:
(i) the Minister who is
prescribed by regulations under the Commonwealth Authorities and Companies
Act 1997 as the Minister responsible for the Commonwealth company; or
(ii) if no Minister is
prescribed—the Minister who is responsible for the Commonwealth company.
senior manager, in relation to a Commonwealth
company or a subsidiary of a Commonwealth company, has the same meaning as in
the Commonwealth Authorities and Companies Act 1997.
subsidiary, in relation to a Commonwealth
authority or Commonwealth company, means an entity that is controlled by the
Commonwealth authority or Commonwealth company. For this purpose, entity and
control have the same meanings as in the accounting standard that
applies for the purpose of deciding whether a company has to prepare
consolidated financial statements under the Corporations Act 2001.
(2) The issue of whether a body corporate is
a Commonwealth authority for the purpose of this Act is to be determined by
reference to the definition in section 7 of the Commonwealth
Authorities and Companies Act 1997 and is not affected by any provision in
a law that states that the body corporate is not a Commonwealth authority for
the purposes of that Act.
Part 3—The Auditor‑General
7
Auditor‑General
(1) There is to be an Auditor‑General
for the Commonwealth.
(2) Whenever a vacancy occurs in the office
of Auditor‑General, an appointment must be made to the office as soon as
practicable.
8 Independence
of the Auditor‑General
(1) The Auditor‑General is an
independent officer of the Parliament.
(2) The functions, powers, rights, immunities
and obligations of the Auditor‑General are as specified in this Act and
other laws of the Commonwealth. There are no implied functions, powers, rights,
immunities or obligations arising from the Auditor‑General being an
independent officer of the Parliament.
(3) The powers of the Parliament to act in
relation to the Auditor‑General are as specified in or applying under
this Act and other laws of the Commonwealth. For this purpose, Parliament
includes:
(a) each House of the Parliament; and
(b) the members of each House of the
Parliament; and
(c) the committees of each House of
the Parliament and joint committees of both Houses of the Parliament.
There are no implied powers of the Parliament arising from
the Auditor‑General being an independent officer of the Parliament.
(4) Subject to this Act and to other laws of
the Commonwealth, the Auditor‑General has complete discretion in the
performance or exercise of his or her functions or powers. In particular, the
Auditor‑General is not subject to direction from anyone in relation to:
(a) whether or not a particular audit
is to be conducted; or
(b) the way in which a particular
audit is to be conducted; or
(c) the priority to be given to any
particular matter.
9 Appointment,
conditions etc. for Auditor‑General
Schedule 1 sets out the conditions
of appointment and other matters that have effect in relation to the office of
Auditor‑General.
10
Auditor‑General to have regard to audit priorities of
Parliament etc.
In performing or exercising his or her
functions or powers, the Auditor‑General must have regard to:
(a) the audit priorities of the
Parliament determined by the Joint Committee of Public Accounts and Audit under
paragraph 8(1)(m) of the Public Accounts and Audit Committee Act 1951;
and
(b) any reports made by that Committee
under paragraph 8(1)(h) or 8(1)(i) of that Act.
Part 4—Main functions and powers
of the Auditor‑General
Division 1—Statement audits
11
Agencies
The Auditor‑General’s functions include
auditing financial statements of Agencies in accordance with the Financial
Management and Accountability Act 1997.
12
Commonwealth authorities and subsidiaries
The Auditor‑General’s functions
include auditing financial statements of Commonwealth authorities and their
subsidiaries in accordance with the Commonwealth Authorities and Companies
Act 1997.
13
Commonwealth companies and subsidiaries
The Auditor‑General’s functions
include auditing financial statements of Commonwealth companies and their
subsidiaries in accordance with the Commonwealth Authorities and Companies
Act 1997.
14
Audit fees for statement audits
(1) A person or body whose financial
statements are audited as mentioned in section 12 or 13 is liable to pay
audit fees for the audit, based on a scale of fees determined by the Auditor‑General.
(2) Fees are payable within 30 days after
issue of a payment claim. Payment claims for instalments may be issued before
the audit is completed.
(3) The Auditor‑General, on behalf of
the Commonwealth, may recover unpaid fees as a debt in a court of competent
jurisdiction.
(4) In the
annual report under section 28, the Auditor‑General must include
details of the basis on which the Auditor‑General determined the audit
fees that applied during the financial year concerned.
Division 2—Performance audits
15
Agencies
(1) The Auditor‑General may at any time
conduct a performance audit of an Agency.
(2) As soon as practicable after completing
the report on the audit, the Auditor‑General must:
(a) cause a copy of the report to be
tabled in each House of the Parliament; and
(b) give a copy of the report to the
responsible Minister; and
(c) give a copy of the report to the
Chief Executive of the Agency.
(2A) The Auditor‑General may give a copy of,
or an extract from, the report to any person (including a Minister) who, or any
body that, in the Auditor‑General’s opinion, has a special interest in
the report or the content of the extract.
(3) For the purposes of this section, an
Agency is taken not to include any persons who are employed or engaged under
the Members of Parliament (Staff) Act 1984 and who are allocated to the
Agency by regulations for the purposes of the definition of Agency in
section 5 of the Financial Management and Accountability Act 1997.
16
Commonwealth authorities and subsidiaries
(1) The Auditor‑General may at any time
conduct a performance audit of a Commonwealth authority (other than a GBE), or
of any of its subsidiaries.
(2) The Auditor‑General may conduct a
performance audit of a Commonwealth authority that is a GBE, or of any of its
subsidiaries, if the responsible Minister, the Finance Minister or the Joint
Committee of Public Accounts and Audit requests the audit. The Finance Minister
is to consult with the responsible Minister before making a request.
(3) Nothing prevents the Auditor‑General
from asking a responsible Minister, the Finance Minister or the Joint Committee
of Public Accounts and Audit to make a particular request under subsection (2).
(4) As soon as
practicable after completing the report on an audit under this section, the
Auditor‑General must:
(a) cause a copy of the report to be
tabled in each House of the Parliament; and
(b) give a copy of the report to the
responsible Minister; and
(c) give a copy of the report to an
officer of the Commonwealth authority or the subsidiary of the Commonwealth
authority in relation to which the audit was conducted.
(5) The Auditor‑General may give a copy
of, or an extract from, the report to any person (including a Minister) who, or
any body that, in the Auditor‑General’s opinion, has a special interest
in the report or the content of the extract.
17
Commonwealth companies and subsidiaries
(1) The Auditor‑General may at any time
conduct a performance audit of a Commonwealth company (other than a GBE), or of
any of its subsidiaries.
(2) The Auditor‑General may conduct a
performance audit of a wholly owned Commonwealth company that is a GBE, or of
any of its subsidiaries, if the responsible Minister, the Finance Minister or
the Joint Committee of Public Accounts and Audit requests the audit. The
Finance Minister is to consult with the responsible Minister before making a
request.
(3) Nothing prevents the Auditor‑General
from asking a responsible Minister, the Finance Minister or the Joint Committee
of Public Accounts and Audit to make a particular request under subsection (2).
(4) As soon as practicable after completing
the report on an audit under this section, the Auditor‑General must:
(a) cause a copy of the report to be
tabled in each House of the Parliament; and
(b) give a copy of the report to the
responsible Minister; and
(c) give a copy of the report to a
director or senior manager of the Commonwealth company or the subsidiary of the
Commonwealth company in relation to which the audit was conducted.
(4A) The Auditor‑General may give a copy of,
or an extract from, the report to any person (including a Minister) who, or any
body that, in the Auditor‑General’s opinion, has a special interest in
the report or the content of the extract.
(5) In this section:
wholly‑owned Commonwealth
company has the same meaning as in the Commonwealth Authorities and
Companies Act 1997.
18
General performance audit
(1) The Auditor‑General may at any time
conduct a review or examination of a particular aspect of the operations of the
whole or part of the Commonwealth public sector, being a review or examination
that is not limited to the operations of only one Agency, body or person.
(2) As soon as practicable after completing
the report on an audit under this section, the Auditor‑General must:
(a) cause a copy of the report to be
tabled in each House of the Parliament; and
(b) give a copy of the report to the
Finance Minister; and
(c) give a copy of the report to each
responsible Minister; and
(d) to the extent that the report
relates to the operations of an Agency—give a copy of the report to the Chief
Executive of the Agency; and
(e) to the extent that the report
relates to the operations of a body that is a Commonwealth authority or a
subsidiary of a Commonwealth authority—give a copy of the report to an officer
of the Commonwealth authority or the subsidiary of the Commonwealth authority;
and
(f) to the extent that the report
relates to the operations of a body that is a Commonwealth company or a
subsidiary of a Commonwealth company—give a copy of the report to a director or
senior manager of the Commonwealth company or the subsidiary of the
Commonwealth company; and
(g) to the extent that the report
relates to the operations of a person—give a copy of the report to the person.
(3) The Auditor‑General may give a copy
of, or an extract from, the report to any other person (including a Minister)
who, or any body that, in the Auditor‑General’s opinion, has a special interest
in the report or the content of the extract.
(4) In this section:
Commonwealth public sector means Agencies,
Commonwealth authorities (other than GBEs) and their subsidiaries and
Commonwealth companies (other than GBEs) and their subsidiaries.
19 Comments
on proposed report
(1) After preparing a proposed report on an
audit of an Agency under section 15, the Auditor‑General must give a
copy of the proposed report to the Chief Executive of the Agency.
(2) After preparing a proposed report on an
audit of a body under section 16 or 17, the Auditor‑General must
give a copy of the proposed report to:
(a) if the body is a Commonwealth
authority or a subsidiary of a Commonwealth authority—an officer of the
Commonwealth authority or the subsidiary of the Commonwealth authority; or
(b) if the body is a Commonwealth
company or a subsidiary of a Commonwealth company—a director or senior manager
of the Commonwealth company or the subsidiary of the Commonwealth company.
(3) After preparing a proposed report on an
audit under section 15, 16, 17 or 18, the Auditor‑General may give a
copy of, or an extract from, the proposed report to any person (including a
Minister) who, or any body that, in the Auditor‑General’s opinion, has a
special interest in the report or the content of the extract.
(4) If the recipient of the proposed report,
or the extract from the proposed report, gives written comments to the Auditor‑General
within 28 days after receiving the proposed report, or the extract from the
proposed report, the Auditor‑General must consider those comments before
preparing a final report.
(5) The Auditor‑General must, in the
final report, include all written comments received under subsection (4).
Division 3—Audits etc. by arrangement
20
Audits etc. by arrangement
(1) The Auditor‑General may enter into
an arrangement with any person or body:
(a) to audit financial statements of
the person or body; or
(b) to conduct a performance audit of
the person or body; or
(c) to provide services to the person
or body that are of a kind commonly performed by auditors.
(2) An arrangement may provide for the
payment of fees to the Auditor‑General. The fees are to be received by
the Auditor‑General on behalf of the Commonwealth.
(3) The Auditor‑General must not
perform functions under this section for a purpose that is outside the
Commonwealth’s legislative power.
Division 4—Functions under other Acts
21
Acting as auditor under the Corporations Act
(1) The Auditor‑General may accept
appointment under the Corporations Act 2001 as the auditor of:
(a) a subsidiary of a Commonwealth
authority; or
(b) a Commonwealth company; or
(c) any other company in which the
Commonwealth has a controlling interest.
(2) This section does not, by implication,
limit the Auditor‑General’s power to enter into arrangements under
section 20.
22
Functions under other Acts
The Auditor‑General’s functions
include any functions given to the Auditor‑General by any other Act.
Division 5—Miscellaneous functions and powers
23
Provision of advice or information
(1) The Auditor‑General may provide
advice or information to a person or body relating to the Auditor‑General’s
responsibilities if, in the Auditor‑General’s opinion, it is in the
Commonwealth’s interests to provide the information or advice.
(2) In this section:
Auditor‑General’s responsibilities
means:
(a) the Auditor‑General’s
functions and powers; and
(b) any matter which the Auditor‑General
could consider when exercising those functions and powers.
23A
Provision of information for performance audits
A person (the information holder)
may disclose information to another person (the recipient) if:
(a) the information was obtained or
generated by the information holder in the course of performing an Auditor‑General
function; and
(b) the information is provided to the
recipient to assist the information holder in conducting a performance audit
under Division 2, or a performance audit under an arrangement entered into
under Division 3.
24
Auditing standards
The Auditor‑General must, by
notice in the Gazette, set auditing standards that are to be complied
with by persons performing any of the following functions:
(a) an audit referred to in Division 1
or 2;
(b) an audit under Division 2 of
Part 7;
(c) an audit under section 56 of
the Financial Management and Accountability Act 1997.
25
Extra reports to Parliament
(1) The Auditor‑General may at any time
cause a report to be tabled in either House of the Parliament on any matter.
(2) The Auditor‑General must give a
copy of the report to the Prime Minister, the Finance Minister and to any other
Minister who, in the Auditor‑General’s opinion, has a special interest in
the report.
26
Extra reports to Ministers
(1) The Auditor‑General must bring to
the attention of the responsible Minister any important matter that comes to
the attention of the Auditor‑General while:
(a) conducting an audit referred to in
Division 1; or
(b) performing functions as an auditor
under the Corporations Act 2001.
For this purpose, important matter means any
matter that, in the Auditor‑General’s opinion, is important enough to
justify it being brought to the attention of the responsible Minister.
(2) The Auditor‑General may at any time
give a report to any Minister on any matter.
27
Contracting outsiders to assist with audits
The Auditor‑General, on behalf of
the Commonwealth, may engage any person under contract to assist in the
performance of any Auditor‑General function.
28
Annual report for the Australian National Audit Office
As soon as practicable after 30 June
in each year, the Auditor‑General must:
(a) prepare a report on the operations
of the Audit Office during that year; and
(b) cause a copy of the report to be
tabled in each House of the Parliament.
29
Delegation by Auditor‑General
(1) The Auditor‑General may, by written
instrument, delegate any of the Auditor‑General’s powers or functions
under any Act to an FMA official.
(2) In exercising powers or functions under
the delegation, the official must comply with any directions of the Auditor‑General.
Part 5—Information‑gathering powers and secrecy
Division 1—Information‑gathering powers
30
Relationship of information‑gathering powers with other laws
The operation of sections 32 and
33:
(a) is limited by laws of the
Commonwealth (whether made before or after the commencement of this Act)
relating to the powers, privileges and immunities of:
(i) each House of the
Parliament; and
(ii) the members of each
House of the Parliament; and
(iii) the committees of each
House of the Parliament and joint committees of both Houses of the Parliament;
but
(b) is not limited by any other law
(whether made before or after the commencement of this Act), except to the
extent that the other law expressly excludes the operation of section 32
or 33.
31
Purpose for which information‑gathering powers may be used
The powers under sections 32 and 33 may
be used for the purpose of, or in connection with, any Auditor‑General
function, except:
(a) an audit or other function under
section 20; or
(b) providing advice or information
under section 23; or
(c) preparing a report under section 25
or 26.
32
Power of Auditor‑General to obtain information
(1) The Auditor‑General may, by written
notice, direct a person to do all or any of the following:
(a) to provide the Auditor‑General
with any information that the Auditor‑General requires;
(b) to attend and give evidence before
the Auditor‑General or an authorised official;
(c) to produce to the Auditor‑General
any documents in the custody or under the control of the person.
Note: A proceeding under paragraph (1)(b) is a
“judicial proceeding” for the purposes of Part III of the Crimes Act 1914.
The Crimes Act prohibits certain conduct in
relation to judicial proceedings.
(2) The Auditor‑General may direct that:
(a) the information or answers to
questions be given either orally or in writing (as the Auditor‑General
requires);
(b) the information or answers to
questions be verified or given on oath or affirmation.
The oath or affirmation is an oath or affirmation that the
information or evidence the person will give will be true, and may be
administered by the Auditor‑General or by an authorised official.
(3) A person must comply with a direction
under this section.
Penalty: 30 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: Section 4AA of the Crimes Act 1914 sets
the current value of a penalty unit.
(4) The regulations may prescribe scales of
expenses to be allowed to persons who are required to attend under this
section.
(5) In this section:
authorised official means an FMA official who
is authorised by the Auditor‑General, in writing, to exercise powers or
perform functions under this section.
33
Access to premises etc.
(1) The Auditor‑General or an
authorised official:
(a) may, at all reasonable times,
enter and remain on any premises occupied by the Commonwealth, a Commonwealth
authority or a Commonwealth company; and
(b) is entitled to full and free
access at all reasonable times to any documents or other property; and
(c) may examine, make copies of or
take extracts from any document.
(2) An
authorised official is not entitled to enter or remain on premises if he or she
fails to produce a written authority on being asked by the occupier to produce
proof of his or her authority. For this purpose, written authority
means an authority signed by the Auditor‑General that states that the
official is authorised to exercise powers under this Division.
(3) If an authorised official enters, or
proposes to enter, premises under this section, the occupier must provide the
official with all reasonable facilities for the effective exercise of powers
under this section.
Penalty: 10 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: Section 4AA of the Crimes Act 1914
sets the current value of a penalty unit.
Note 3: Section 149.1 of the Criminal Code
deals with obstruction of Commonwealth public officials.
(4) In this section:
authorised official means an FMA official who
is authorised by the Auditor‑General, in writing, to exercise powers or
perform functions under this section.
premises includes any land or place.
35
Self‑incrimination no excuse
A person is not excused from producing a
document or answering a question under section 32 on the ground that the
answer, or the production of the document, might tend to incriminate the person
or make the person liable to a penalty. However, neither:
(a) the answer to the question or the
production of the document; nor
(b) anything obtained as a direct or
indirect result of the answer or the production of the document;
is admissible in evidence against the person in any
criminal proceedings (other than proceedings for an offence against, or arising
out of, section 32 of this Act or proceedings for an offence against
section 137.1 or 137.2 of the Criminal Code that relates to this
Act).
Division 2—Confidentiality of information
36
Confidentiality of information
(1) If a person has obtained information in
the course of performing an Auditor‑General function, the person must not
disclose the information except in the course of performing an Auditor‑General
function or for the purpose of any Act that gives functions to the Auditor‑General.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) Subsection (1) does not prevent the
Auditor‑General from disclosing particular information to the Commissioner
of the Australian Federal Police if the Auditor‑General is of the opinion
that the disclosure is in the public interest.
(2A) Subsection (1) does not prevent a
person (the information holder) from disclosing information to
another person under section 23A if the information holder does so in the
circumstances permitted by that section.
(2B) A person commits an offence if:
(a) information is disclosed to the
person; and
(b) the information is disclosed in
circumstances permitted by section 23A; and
(c) the information is not disclosed
to the person because the person is performing an Auditor‑General
function; and
(d) the person uses or discloses the
information.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2C) Subsection (2B) does not apply if the
Auditor‑General has consented to the use or disclosure.
Note: A defendant bears an evidential burden in
relation to a matter in subsection (2C): see subsection 13.3(3) of the Criminal
Code.
(3) A person who receives a proposed report,
or an extract from a proposed report, under section 19 must not disclose
any of the information in the report, or the extract, except with the consent
of the Auditor‑General.
Penalty for a contravention of this subsection: Imprisonment
for 2 years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
37
Sensitive information not to be included in public reports
(1) The Auditor‑General must not
include particular information in a public report if:
(a) the Auditor‑General is of
the opinion that disclosure of the information would be contrary to the public
interest for any of the reasons set out in subsection (2); or
(b) the Attorney‑General has
issued a certificate to the Auditor‑General stating that, in the opinion
of the Attorney‑General, disclosure of the information would be contrary
to the public interest for any of the reasons set out in subsection (2).
(2) The
reasons are:
(a) it
would prejudice the security, defence or international relations of the
Commonwealth;
(b) it would involve the disclosure of
deliberations or decisions of the Cabinet or of a Committee of the Cabinet;
(c) it would prejudice relations
between the Commonwealth and a State;
(d) it would divulge any information
or matter that was communicated in confidence by the Commonwealth to a State,
or by a State to the Commonwealth;
(e) it would unfairly prejudice the
commercial interests of any body or person;
(f) any other reason that could form
the basis for a claim by the Crown in right of the Commonwealth in a judicial
proceeding that the information should not be disclosed.
(3) The Auditor‑General cannot be
required, and is not permitted, to disclose to:
(a) a House of the Parliament; or
(b) a member of a House of the
Parliament; or
(c) a committee of a House of the
Parliament or a joint committee of both Houses of the Parliament;
information that subsection (1) prohibits being
included in a public report.
(4) If the Auditor‑General omits
particular information from a public report because the Attorney‑General
has issued a certificate under paragraph (1)(b) in relation to the
information, the Auditor‑General must state in the report:
(a) that information (which does not
have to be identified) has been omitted from the report; and
(b) the reason or reasons (in terms of
subsection (2)) why the Attorney‑General issued the certificate.
(5) If, because of subsection (1), the
Auditor‑General:
(a) decides not to prepare a public
report; or
(b) omits particular information from
a public report;
the Auditor‑General may prepare a report under this
subsection that includes the information concerned. The Auditor‑General
must give a copy of each report under this subsection to the Prime Minister,
the Finance Minister and any responsible Minister.
(6) In this section:
information includes written comments on the
proposed report or the extract that are received by the Auditor‑General
under subsection 19(4).
public report means a report that is to be
tabled in either House of the Parliament.
State includes a self‑governing
Territory.
Part 6—The Australian National Audit Office
38
Establishment
(1) There is established an Office called the
Australian National Audit Office.
(2) The Audit Office consists of the Auditor‑General
and the staff referred to in section 40.
39
Function
The function of the Audit Office is to
assist the Auditor‑General in performing the Auditor‑General’s
functions.
40
Staff
(1) The staff of the Audit Office are to be
persons engaged under the Public Service Act 1999.
Note: Under section 27, the Auditor‑General
may also engage persons under contract.
(1A) For the purposes of the Public Service
Act 1999:
(a) the Auditor‑General and the
APS employees assisting the Auditor‑General together constitute a
Statutory Agency; and
(b) the Auditor‑General is the
Head of that Statutory Agency.
(2) Directions to staff of the Audit Office
relating to the performance of the Auditor‑General’s functions may only
be given by:
(a) the Auditor‑General; or
(b) a member of the staff of the Audit
Office authorised to give such directions by the Auditor‑General.
Part 7—Audit of the Australian National Audit Office
Division 1—The Independent Auditor
41
Independent Auditor
(1) There is to be an Independent Auditor.
(2) Whenever a vacancy occurs in the office
of Independent Auditor, an appointment must be made to the office as soon as
practicable.
42
Appointment, conditions etc. for Independent Auditor
Schedule 2 sets out the conditions
of appointment and other matters that have effect in relation to the office of
Independent Auditor.
43
Independent Auditor to have regard to audit priorities of Parliament etc.
In performing or exercising his or her
functions or powers, the Independent Auditor must have regard to the audit
priorities of the Parliament for audits of the Audit Office determined by the
Joint Committee of Public Accounts and Audit under paragraph 8(1)(n) of the Public
Accounts and Audit Committee Act 1951.
Division 2—Audit of the Australian National Audit Office
44
Audit of annual financial statements
(1) After preparing the annual financial
statements for the Audit Office under section 49 of the Financial
Management and Accountability Act 1997, the Auditor‑General must give
the statements to the Independent Auditor.
(2) The Independent Auditor must audit the
statements in accordance with section 57 of the Financial Management
and Accountability Act 1997. For this purpose, references in that section
to the Auditor‑General are to be read as references to the Independent
Auditor.
45
Performance audit
(1) The Independent Auditor may at any time
conduct a performance audit of the Audit Office.
(2) After preparing a proposed report on an
audit, the Independent Auditor must give a copy of the proposed report to the
Auditor‑General. If the Auditor‑General gives written comments to
the Independent Auditor within 28 days after receiving the proposed report, the
Independent Auditor must consider those comments before preparing a final
report.
(3) As soon as practicable after completing
the report on the audit, the Independent Auditor must:
(a) cause a copy to be tabled in each
House of the Parliament; and
(b) give a copy to the responsible
Minister.
(4) The Independent Auditor may give a copy
of, or an extract from, the report to any other Minister who, in the
Independent Auditor’s opinion, has a special interest in the report or the
content of the extract.
46
Sensitive information not to be included in public reports
Section 37 applies to the
Independent Auditor as if references in that section to the Auditor‑General
were references to the Independent Auditor.
Division 3—Miscellaneous
47
Independent Auditor to have same access powers etc. as Auditor‑General
Division 1 of Part 5 applies
in relation to the performance of functions under this Part in the same way as
it applies in relation to the performance of Auditor‑General functions.
For that purpose:
(a) references in that Division to an
Auditor‑General function are to be read as references to a function of
the Independent Auditor under this Part; and
(b) other references in that Division
to the Auditor‑General are to be read as references to the Independent
Auditor.
48
Confidentiality of information
(1) If a person has obtained information in
the course of performing a function under this Part, the person must not
disclose the information except in the course of performing a function under
this Part.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) Subsection (1) does not prevent the
Independent Auditor from disclosing particular information to the Commissioner
of the Australian Federal Police if the Independent Auditor is of the opinion
that the disclosure is in the public interest.
49
Indemnity
(1) The Commonwealth must indemnify a person
for any liability that the person incurs for an act or omission of the person
in the course of performing a function under this Part.
(2) The indemnity does not apply if the
liability arose from an act or omission in bad faith.
Part 8—Miscellaneous
50
Guaranteed availability of parliamentary appropriations
The Finance Minister must issue drawing
rights under section 27 of the Financial Management and Accountability
Act 1997 that cover in full the amounts that the Parliament appropriates
for the purposes of the Audit Office.
51
Auditor‑General may approve expenditure
The Auditor‑General has authority
to approve a proposal to spend money under an appropriation for the Audit
Office.
Note: The Auditor‑General’s power under this
section may be delegated under section 29.
53
Joint Committee of Public Accounts and Audit may request draft estimates for
Audit Office
(1) The Joint Committee of Public Accounts
and Audit may request the Auditor‑General to submit to the Committee
draft estimates for the Audit Office for a financial year before the annual
Commonwealth budget for that financial year.
(2) The Auditor‑General must comply
with the request in time to allow the Committee to consider the draft estimates
and make recommendations on them before the budget.
Note: For the Committee’s powers to consider draft
estimates and make recommendations, see paragraphs 8(1)(j) and (l) of the Public
Accounts and Audit Committee Act 1951.
54
Provision of information to the Finance Minister
(1) This section applies to a requirement
under section 50 of the Financial Management and Accountability Act
1997 for the Auditor‑General to give the Finance Minister financial
statements or information.
(2) To be effective, the requirement must be
in writing.
(3) The Finance Minister must, as soon as
practicable, report to the Joint Committee of Public Accounts and Audit the
fact that the requirement has been made and the reasons for making it.
(4) The requirement must be disclosed in the
annual report under section 28 for the year in which the requirement was
made.
55
Indemnity
(1) The Commonwealth must indemnify a person
for any liability that the person incurs for an act or omission of the person
in the course of performing an Auditor‑General function.
(2) The indemnity does not apply if the
liability arose from an act or omission in bad faith.
(3) The indemnity does not cover a liability
of a person to the extent to which the person is entitled to be indemnified for
the liability by a person other than the Commonwealth, whether under a contract
of insurance or otherwise.
56
Modifications of Act for intelligence or security agency etc.
(1) The application of this Act to:
(a) an intelligence or security
agency; or
(b) a company that is conducted for
the purposes of an intelligence or security agency;
is subject to any modifications that are prescribed by the
regulations.
(2) Modifications prescribed by regulations
under subsection (1) may impose additional obligations, and may provide
for contravention of such an obligation to be an offence punishable by a fine
of up to 10 penalty units.
Note: Section 4AA of the Crimes Act 1914
sets the current value of a penalty unit.
(3) 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.
57
Regulations
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.
Schedule 1—Appointment, conditions of appointment etc. for Auditor‑General
Note: See section 9.
1
Appointment of Auditor‑General
(1) The Auditor‑General is to be
appointed by the Governor‑General, on the recommendation of the Minister,
for a term of 10 years.
Note: The effect of section 19A of the Acts
Interpretation Act 1901 is that “the Minister” refers to the Minister who
administers this clause. The administration of
Acts or particular provisions of Acts is allocated by Administrative
Arrangements Orders made by the Governor‑General.
(2) The Auditor‑General holds office on
a full‑time basis.
(3) For the purposes of the Superannuation
Act 1976 and the Trust Deed under the Superannuation Act 1990, the
minimum retiring age for the Auditor‑General is 55. However, if the
instrument of appointment specifies a younger age, then the younger age
applies.
(4) A person cannot be appointed as Auditor‑General
if the person has previously been appointed as Auditor‑General under this
Act or under the Audit Act 1901.
2
Minister must refer recommendation for appointment of Auditor‑General to
the Joint Committee of Public Accounts and Audit
(1) The Minister must not make a
recommendation to the Governor‑General under clause 1 unless:
(a) the Minister has referred the
proposed recommendation to the Joint Committee of Public Accounts and Audit for
approval; and
(b) the Committee has approved the
proposal.
(2) A referral under paragraph (1)(a)
must be in writing and may be withdrawn by the Minister at any time.
Note: Section 8A of the Public Accounts and
Audit Committee Act 1951 deals with how the Joint Committee of
Public Accounts and Audit approves proposals.
3
Remuneration of Auditor‑General
(1) The Auditor‑General is to be paid
the remuneration that is determined by the Remuneration Tribunal. However, if
no determination of that remuneration by the Tribunal is in operation, the
Auditor‑General is to be paid the remuneration that is prescribed by the
regulations.
(2) The Auditor‑General is to be paid
such allowances as are prescribed by the regulations.
(3) This clause has effect subject to the Remuneration
Tribunal Act 1973.
(4) The Consolidated Revenue Fund is
appropriated for payments under this clause.
4
Recreation leave etc.
(1) The Auditor‑General has such
recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Auditor‑General
other leave of absence on such terms and conditions as the Minister determines.
The terms and conditions may include terms and conditions relating to
remuneration.
5
Resignation
The Auditor‑General may resign by
giving the Governor‑General a signed resignation notice.
6
Removal from office etc.
(1) The Governor‑General may remove the
Auditor‑General from office if each House of the Parliament, in the same
session of the Parliament, presents an address to the Governor‑General
praying for the removal of the Auditor‑General on the ground of
misbehaviour or physical or mental incapacity.
(2) The Governor‑General must remove
the Auditor‑General from office if the Auditor‑General does any of
the following:
(a) becomes bankrupt;
(b) applies to take the benefit of any
law for the relief of bankrupt or insolvent debtors;
(c) compounds with his or her
creditors;
(d) assigns his or her remuneration
for the benefit of his or her creditors.
(3) If the Auditor‑General is:
(a) an eligible employee for the
purposes of the Superannuation Act 1976; or
(b) a member of the superannuation
scheme established by the Trust Deed under the Superannuation Act 1990;
or
(c) an ordinary employer‑sponsored
member of PSSAP, within the meaning of the Superannuation Act 2005;
the Governor‑General may, with the consent of the
Auditor‑General, retire the Auditor‑General from office on the
ground of physical or mental incapacity.
(4) For the purposes of the Superannuation
Act 1976, the Auditor‑General is taken to have been retired from
office on the ground of invalidity if:
(a) the Auditor‑General is
removed or retired from office on the ground of physical or mental incapacity;
and
(b) the Board (within the meaning of
the Superannuation Act 1976) gives a certificate under section 54C
of that Act.
(5) For the purposes of the Superannuation
Act 1990, the Auditor‑General is taken to have been retired from
office on the ground of invalidity if:
(a) the Auditor‑General is
removed or retired from office on the ground of physical or mental incapacity;
and
(b) the Board (within the meaning of
the Superannuation Act 1990) gives a certificate under section 13
of that Act.
(6) For the purposes of the Superannuation
Act 2005, the Auditor‑General is taken to have been retired from
office on the ground of invalidity if:
(a) the Auditor‑General is
removed or retired from office on the ground of physical or mental incapacity;
and
(b) the Board (within the meaning of
the Superannuation Act 2005) gives an approval and certificate under
section 43 of that Act.
7
Acting appointment
(1) The Minister may appoint a person to act
as Auditor‑General:
(a) if there is a vacancy in the
office of Auditor‑General, whether or not an appointment has previously
been made to the office; or
(b) during any period, or during all
periods, when the Auditor‑General is absent from duty or from Australia
or is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a
person purporting to act under this section is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
(3) A person acting under this section is
entitled to the same remuneration and allowances as apply to the office of
Auditor‑General. The Consolidated Revenue Fund is appropriated for the
payment of the remuneration and allowances.
Note: Section 33A of the Acts Interpretation
Act 1901 has rules that apply to acting appointments.
Schedule 2—Appointment, conditions of appointment etc. for Independent
Auditor
Note: See section 42.
1 Appointment
of Independent Auditor
(1) The Independent Auditor is to be
appointed by the Governor‑General, on the recommendation of the Minister,
for a term of at least 3 years and not more than 5 years.
(2) The Independent Auditor holds office on a
part‑time basis.
Note: The effect of section 19A of the Acts
Interpretation Act 1901 is that “the Minister” refers to the Minister who
administers this clause. The administration of
Acts or particular provisions of Acts is allocated by Administrative Arrangements
Orders made by the Governor‑General.
2
Minister must refer recommendation for appointment of Independent Auditor to
the Joint Committee of Public Accounts and Audit
(1) The Minister must not make a
recommendation to the Governor‑General under clause 1 unless:
(a) the Minister has referred the
proposed recommendation to the Joint Committee of Public Accounts and Audit for
approval; and
(b) the Committee has approved the
proposal.
(2) A referral under paragraph (1)(a)
must be in writing and may be withdrawn by the Minister at any time.
Note: Section 8A of the Public Accounts and
Audit Committee Act 1951 deals with how the Joint Committee of
Public Accounts and Audit approves proposals.
3
Remuneration of Independent Auditor
(1) The Independent Auditor is to be paid the
fees and allowances that are determined by the Minister.
(2) The Remuneration Tribunal Act 1973
does not apply to the office of Independent Auditor.
4
Resignation
The Independent Auditor may resign by
giving the Governor‑General a signed resignation notice.
5
Removal from office etc.
(1) The Governor‑General may remove the
Independent Auditor from office if each House of the Parliament, in the same
session of the Parliament, presents an address to the Governor‑General
praying for the removal of the Independent Auditor on the ground of
misbehaviour or physical or mental incapacity.
(2) The Governor‑General must remove
the Independent Auditor from office if the Independent Auditor does any of the
following:
(a) becomes bankrupt;
(b) applies to take the benefit of any
law for the relief of bankrupt or insolvent debtors;
(c) compounds with his or her
creditors;
(d) assigns his or her remuneration
for the benefit of his or her creditors.
(3) If the Independent Auditor is:
(a) an eligible employee for the
purposes of the Superannuation Act 1976; or
(b) a member of the superannuation
scheme established by the Trust Deed under the Superannuation Act 1990;
or
(c) an ordinary employer‑sponsored
member of PSSAP, within the meaning of the Superannuation Act 2005;
the Governor‑General may, with the consent of the
Independent Auditor, retire the Independent Auditor from office on the ground
of physical or mental incapacity.
(4) For the purposes of the Superannuation
Act 1976, the Independent Auditor is taken to have been retired from office
on the ground of invalidity if:
(a) the Independent Auditor is removed
or retired from office on the ground of physical or mental incapacity; and
(b) the Board (within the meaning of
the Superannuation Act 1976) gives a certificate under section 54C
of that Act.
(5) For the purposes of the Superannuation
Act 1990, the Independent Auditor is taken to have been retired from office
on the ground of invalidity if:
(a) the Independent Auditor is removed
or retired from office on the ground of physical or mental incapacity; and
(b) the Board (within the meaning of
the Superannuation Act 1990) gives a certificate under section 13
of that Act.
(6) For the purposes of the Superannuation
Act 2005, the Independent Auditor is taken to have been retired from office
on the ground of invalidity if:
(a) the Independent Auditor is removed
or retired from office on the ground of physical or mental incapacity; and
(b) the Board (within the meaning of
the Superannuation Act 2005) gives an approval and certificate under
section 43 of that Act.
6
Acting appointment
(1) The Minister may appoint a person to act
as Independent Auditor:
(a) if there is a vacancy in the
office of Independent Auditor, whether or not an appointment has previously
been made to the office; or
(b) during any period, or during all
periods, when the Independent Auditor is unable to perform the duties of the
office.
(2) Anything done by or in relation to a
person purporting to act under this section is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
Note: Section 33A of the Acts Interpretation
Act 1901 has rules that apply to acting appointments. These rules include a
power for the Minister to determine remuneration and allowances.