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Aboriginal and Torres Strait Islander Commission Amendment Bill 2004
Schedule 2 Amendments and transitional and saving arrangements relating to the Office of Evaluation and Audit as at 1 July 2004

Part 1 Amendment relating to Office of Evaluation and Audit

Aboriginal and Torres Strait Islander Commission Act 1989

1  After Part 4A

Insert:

Part 4B Office of Evaluation and Audit (Indigenous Programs)

   

193V   Definitions

             (1)  In this Part:

activities of any individual or organisation includes the operations of any individual or organisation.

Australian Government body means:

                     (a)  a Department of State, a Department of the Parliament or a prescribed Agency within the meaning of the Financial Management and Accountability Act 1997 ; and

                     (b)  a Commonwealth authority within the meaning of the Commonwealth Authorities and Companies Act 1997 ; and

                     (c)  a Commonwealth company within the meaning of the Commonwealth Authorities and Companies Act 1997 ; and

                     (d)  a body established for a public purpose by or under a law of the Commonwealth.

Director means the Director of Evaluation and Audit appointed, or taken to have been appointed, under section 193Z.

evaluate or audit includes evaluate and audit.

individual or organisation includes any person, body corporate or unincorporated body.

Office means the Office of Evaluation and Audit (Indigenous Programs) referred to in section 193W.

relevant program means a program, or a program component, under which money is provided, including on loan, or a guarantee is given, or an interest in land is transferred, for the purpose of furthering the social, economic or cultural development of Aboriginal persons or Torres Strait Islanders.

             (2)  A reference in this Part to a person engaged under the Public Service Act 1999 is to be read as a reference to a person so engaged whose Agency Head, within the meaning of that Act, is the Secretary of the Department.

193W   Office of Evaluation and Audit (Indigenous Programs)

             (1)  An Office of Evaluation and Audit (Indigenous Programs) is established within the Department.

             (2)  The purposes of the Office are:

                     (a)  to evaluate or audit relevant programs administered by Australian Government bodies; and

                     (b)  to evaluate or audit the activities of any individual or organisation that has received funding under any relevant program; and

                     (c)  to provide reports on those evaluations or audits to the Minister.

193X   Functions of the Office

             (1)  The Office has the following functions:

                     (a)  in accordance with a program developed by the Director under section 193Y, or, in the circumstances referred to in subsection (2), at the request of the Minister—to evaluate or audit particular aspects of the operations of Australian Government bodies, but only to the extent that the evaluation or audit concerns relevant programs administered by an Australian Government body; and

                     (b)  when requested to do so by the Minister—to evaluate or audit the activities of any individual or organisation:

                              (i)  who has received money, including money on loan, or other property from an Australian Government body; or

                             (ii)  who has had a loan guaranteed by an Australian Government body;

                            under a relevant program, but only to the extent that the evaluation or audit concerns the money or other property, or the guarantee, provided under that program, as the case requires; and

                     (c)  when a funding or loan agreement entered into with any individual or organisation under a relevant program provides that the Office can evaluate or audit the activities of the individual or organisation:

                              (i)  that directly or indirectly relate to the use of money provided under the agreement; or

                             (ii)  that relate to any matter facilitated by income derived from the use of money so provided;

                            with the consent of the Minister—to evaluate or audit those activities in accordance with that agreement; and

                     (d)  to report on evaluations or audits conducted under this section in a manner required by the Minister; and

                     (e)  to inform the Minister about any significant issues that have arisen, or may arise, in relation to audits or evaluations conducted under this section; and

                      (f)  to inform the Minister about any issues affecting the independence of the Office.

             (2)  In any circumstance where the Minister considers that there is a need for the Office of Evaluation and Audit to evaluate or audit particular aspects of the operations of an Australian Government body, the Minister may request the Office to conduct such an evaluation or audit whether or not an evaluation or audit would ordinarily be conducted at that time under a program developed under section 193Y.

             (3)  The functions conferred on the Office under this section are in addition to, and not in substitution for, any functions conferred on the Auditor-General or any other person by or under any other law of the Commonwealth.

193Y   Programs of evaluation and audit

             (1)  As soon as practicable after 1 July 2004, and before the start of each succeeding year commencing on a 1 July, the Director must develop a program for the evaluation or audit of Australian Government bodies by the Office in the performance of the function referred to in paragraph 193X(1)(a).

             (2)  The first program must cover the period ending on 30 June 2007 and each subsequent program must cover a period of 3 years from the 1 July on which it commences.

             (3)  The Director may, from time to time, vary a program in force under subsection (1).

             (4)  In developing a program under subsection (1) and in making any variation to that program, the Director must have regard to the audit priorities of the Minister and also of the Minister having primary responsibility for Indigenous affairs.

193Z   Director of Evaluation and Audit

             (1)  There is to be a Director of Evaluation and Audit.

             (2)  The Director is to be a person engaged under the Public Service Act 1999 who is appointed as Director of Evaluation and Audit by the Minister.

             (3)  The Director is the head of the Office.

             (4)  The Director must, as soon as practicable after 30 June in each year, give the Secretary of the Department a report of the operations of the Office during that year for inclusion in the annual report of the Department.

             (5)  The office of Director of Evaluation and Audit is not a public office for the purposes of the Remuneration Tribunal Act 1973 .

193ZA   Period of appointment

             (1)  The Director holds office for the period specified in, or worked out under, the instrument of appointment.

             (2)  The period must not be longer than 5 years.

193ZB   Acting Director

             (1)  The Minister may appoint a person engaged under the Public Service Act 1999 to act as the Director of Evaluation and Audit:

                     (a)  during a vacancy in the office of Director; or

                     (b)  during any period, or during all periods, when the Director is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office;

but a person appointed to act during a vacancy must not continue so to act for more than 6 months.

             (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)  Any reference in section 193ZC, 193ZD, 193ZE or 193ZF to the Director or to the Director of Evaluation and Audit is taken to include a reference to the acting Director.

193ZC   Resignation

                   The Director may resign by writing signed by him or her and sent to the Minister.

193ZD   Termination of appointment

             (1)  The Minister may terminate, by writing signed by him or her, the appointment of the Director.

             (2)  The appointment of the Director is terminated if the Director ceases to be, for any reason, engaged under the Public Service Act 1999 .

193ZE   Director not personally liable

                   The Director is not personally liable in an action or other proceeding for damages for, or in relation to, anything done or omitted to be done in good faith:

                     (a)  by the Office; or

                     (b)  by the Director in the capacity of Director.

193ZF   Examination of documents etc.

             (1)  The Director may, by notice in the Gazette , authorise a person (the authorised person ) who is a member of the staff of, or an independent contractor engaged by, the Department to perform functions and exercise powers for the purposes of this section.

             (2)  For the purposes of an evaluation or audit relating to an Australian Government body, individual or organisation, the Director or an authorised person may examine documents relating to the Australian Government body, individual or organisation concerned.

             (3)  An authorised person must report to the Director on the results of an examination conducted in accordance with subsection (2).

             (4)  For the purposes of performing the functions conferred by subsection (2) and section 193X, the Director or the authorised person:

                     (a)  is entitled at all reasonable times to full and free access to documents relating to the body, individual or organisation; and

                     (b)  may make copies, or take extracts from, any such document; and

                     (c)  by notice in writing, require a person:

                              (i)  to answer such questions; and

                             (ii)  to produce such documents in the person’s possession or to which the person has access;

                            within such reasonable period, not being a period of less than 14 days, as is specified in the notice.

             (5)  For the purposes of exercising powers conferred by subsection (4), an Australian Government body must provide access to premises (including any land or place) occupied by the Australian Government body, at all reasonable times, to the Director or an authorised person.

             (6)  A person may only be required, under paragraph (4)(c), to provide information or to produce a document if the Director or authorised person has reason to believe that the person is capable of providing that information or producing that document.

             (7)  A person who fails to comply with a requirement under paragraph (4)(c) is guilty of an offence punishable upon conviction by a fine not exceeding 20 penalty units.

             (8)  Subsection (7) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

             (9)  Subsection (7) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ).

           (10)  For the purposes of subsection (9), it is not a reasonable excuse for a person to fail:

                     (a)  to give information; or

                     (b)  to produce a document;

in accordance with a requirement made of the person, on the ground that the information or production of the document might tend to incriminate the person or make the person liable to a penalty. However:

                     (c)  evidence as to the giving of the information or the producing of the document; or

                     (d)  any information, document or thing obtained as a direct or indirect consequence of the giving of the information or the producing of the document;

is not admissible in evidence against the person in any proceedings in a court that may expose the person to a penalty, other than proceedings for an offence against, or arising out of, subsection (6) or (10).

           (11)  A person who, in purported compliance with a requirement under paragraph (4)(c), makes a statement that is, to the person’s knowledge, false or misleading in a material particular, is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.

           (12)  Before exercising powers under subsection (4), an authorised person must produce written authority given by the Director as notified in the Gazette under subsection (1). If the authorised person fails to do so, he or she has no powers under that subsection.

           (13)  The functions and powers conferred by this section are in addition to, and not in substitution for, any functions or powers conferred on the Auditor-General, or any other person, by or under any other law of the Commonwealth.



 

Part 2 Transitional and saving arrangements relating to Office of Evaluation and Audit

2  Transitional arrangement definitions

In this Part, unless the contrary intention appears:

ATSIC Act means the Aboriginal and Torres Strait Islander Commission Act 1989 .

Commission means the Aboriginal and Torres Strait Islander Commission that was established under section 6 of the ATSIC Act.

Indigenous Business Australia means the body of that name referred to in section 145 of the Aboriginal and Torres Strait Islander Act 2004.

Indigenous Land Corporation means the body of that name established under section 191A of the Aboriginal and Torres Strait Islander Act 2004 .

Office of Evaluation and Audit (Indigenous Programs) means the office, referred to in section 193W of the Aboriginal and Torres Strait Islander Act 2004 , that was originally established by section 75 of the ATSIC Act and that became, on the transfer day, the Office of Evaluation and Audit (Indigenous Programs).

Secretary means the Secretary of the Department.

transfer day means 1 July 2004.

TSRA means the Torres Strait Regional Authority established by section 142 of the ATSIC Act.

3  Office of Evaluation and Audit to continue under new name

The Office of Evaluation and Audit that was established within the Commission by section 75 of the ATSIC Act becomes, by force of this item, on the transfer day, for the purposes of section 193W of the Aboriginal and Torres Strait Islander Act 2004 , the Office of Evaluation and Audit (Indigenous Programs) established in the Department.

4  Current Director of Evaluation and Audit

(1)       The person holding office as Director of Evaluation and Audit under section 77 of the ATSIC Act immediately before the transfer day continues, on and after the transfer day, by force of this item and despite section 193Z of the Aboriginal and Torres Strait Islander Act 2004 , to hold office as the Director of Evaluation and Audit as if the person had been duly appointed by the Minister under section 193Z of the Aboriginal and Torres Strait Islander Act 2004 .

(2)       The person referred to in subitem (1):

                     (a)  is taken to have been so appointed under section 193Z of the Aboriginal and Torres Strait Islander Act 2004 , by instrument in writing, for the balance of the term of appointment under section 77 of the ATSIC Act; and

                     (b)  is taken to have been so appointed on the same terms and conditions as applied to the person immediately before the transfer day.

(3)       Despite section 193Z of the Aboriginal and Torres Strait Islander Act 2004 , the person referred to in subitem (1):

                     (a)  is entitled to remuneration and allowances in accordance with section 194 of that Act; and

                     (b)  is to have such recreation leave entitlements as are determined by the Remuneration Tribunal.

(4)       Section 193ZD of the Aboriginal and Torres Strait Islander Act 2004 does not apply in relation to the deemed appointment of the person referred to in subitem (1).

(5)       The Minister may grant the person referred to in subitem (1) leave of absence (other than recreation leave) on such terms and conditions, as to remuneration or otherwise, as the Minister determines in writing.

(6)       The Minister may terminate the appointment of the person referred to in subitem (1) as Director of Evaluation and Audit because of incompetence, misbehaviour or physical or mental incapacity.

(7)       The Minister must terminate the appointment of the person referred to in subitem (1) as Director of Evaluation and Audit if the person:

                     (a)  is absent from duty, except on leave granted to that person, for 14 consecutive days or for 28 days in any period of 12 months; or

                     (b)  becomes bankrupt; or

                     (c)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                     (d)  compounds with his or her creditors; or

                     (e)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                      (f)  fails, without reasonable excuse, to make a disclosure of financial interests equivalent to the disclosure required to be made by an SES employee; or

                     (g)  engages in paid employment outside the duties of the office of Director of Evaluation and Audit without the written consent of the Minister.

(8)       The person referred to in subitem (1) holds office on such terms and conditions (if any) in respect of matters not provided for by operation of subitems (1) to (7) as are determined by the Minister by notice in the Gazette .

5  Transitional evaluation and audit functions

(1)       The Office of Evaluation and Audit (Indigenous Programs) has, in addition to the functions imposed on it under section 193X of the Aboriginal and Torres Strait Islander Act 2004 , the following functions:

                     (a)  when requested to do so by the Minister—to evaluate or audit the activities of any individual or organisation who, before the transfer day, received one or more grants or loans from the Commission, but only to the extent that the evaluation or audit concerns those grants or loans;

                     (b)  when requested to do so by the Minister—to evaluate or audit the activities of a borrower, being any individual or organisation, one or more of whose loans was guaranteed, before the transfer day, by the Commission, but only to the extent that the evaluation or audit concerns those guarantees;

                     (c)  to report on evaluations or audits conducted in accordance with paragraph (a) or (b), in writing, to the Minister as required by the Minister.

(2)       Subsection 193X(3) and section 193ZF of the Aboriginal and Torres Strait Islander Act 2004 apply in relation to any evaluation or audit commenced at the request of the Minister under this item.

6  Evaluations or audits begun but not completed before transfer day

(1)       If:

                     (a)  before the transfer day, the Office of Evaluation and Audit has begun an evaluation or audit in relation to a body corporate, an unincorporated body or an individual under section 76 of the ATSIC Act, whether at the request of the Minister, the Commission, Aboriginal Hostels Limited, Indigenous Business Australia, the TSRA, or the Indigenous Land Corporation; and

                     (b)  that evaluation or audit has not been completed before that day;

the Office of Evaluation and Audit (Indigenous Programs) must continue that evaluation or audit and, subject to subitem (2), report on that evaluation or audit, as if the amendments of the ATSIC Act made by this Act had not been made.

(2)       If the evaluation or audit is one in respect of which the Office of Evaluation and Audit would have been required to report in accordance with subitem (1) both to the Minister and to the Commission, the Office of Evaluation and Audit (Indigenous Programs) is required to report only to the Minister.

(3)       For the avoidance of doubt, the Director of Evaluation and Audit must include in any report of the operations of the Office of Evaluation and Audit (Indigenous Programs) in a particular year that is given under subsection 193Z(4) of the Aboriginal and Torres Strait Islander Act 2004 , a report of the operations of the Office that are carried out during that year under item 5 and under this item.

(4)       The report of the operations of the Office of Evaluation and Audit required by subsection 76(3) of the ATSIC Act, for the financial year 2003-2004, is to be included in the final annual report of the Commission.