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Public Governance, Performance and Accountability Bill 2013

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2010-2011-2012-2013

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

Public Governance, Performance and Accountability Bill 2013

 

 

 

 

 

 

Supplementary Explanatory Memorandum

 

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

(Circulated with the authority of the

Minister for Finance and Deregulation,

Senator the Hon Penny Wong)

 

 



 

 

TABLE OF CONTENTS

 

 

 

OUTLINE . 1

FINANCIAL IMPACT STATEMENT . 1

NOTES ON AMENDMENTS . 2

 

 

 



 



 

Public Governance, Performance and Accountability Bill 2013

 

OUTLINE

 

The Public Governance, Performance and Accountability Bill 2013 (the Bill) would replace the Financial Management and Accountability Act 1997 (FMA Act) and the Commonwealth Authorities and Companies Act 1997 (CAC Act).

The Joint Committee of Public Accounts and Audit (JCPAA) reported on the Bill on 4 June 2013: Report 438: Advisory Report on the Public Governance, Performance and Accountability Bill 2013 (the JCPAA Report).  This report recommended amendments to the Bill and the Explanatory Memorandum.  It also recommended that consideration be given to additional amendments suggested by various participants to the JCPAA’s inquiry including the Australian National Audit Office (ANAO).

These amendments seek to address the recommendations of the JCPAA and incorporate various proposals suggested by participants to the JCPAA inquiry.

 

FINANCIAL IMPACT STATEMENT

 

The Government amendments have no financial impact.



 

NOTES ON AMENDMENTS

 

Amendments (1), (3), (4), (11) and (14)

These amendments would insert new clauses 111 and 112 (amendment (14)) and make associated adjustments to headings and guides.  Clause 112 would require the Finance Minister, in consultation with the JCPAA, to cause an independent review of the operation of the Bill as soon as practicable after the end of 3 years after clause 112 commences.  The review would be a post-implementation review of how the Bill and rules have worked and whether improvements could be made.  This provision addresses recommendation 8 of the JCPAA Report.  Clause 111 would insert a guide to Part 4-3, which deals with the independent review.

The associated amendments:

·          change ‘110’ to ‘112’ in the commencement table (clause 2), recognising the insertion of new clauses into the Bill (amendment (1));

·          amend the guide to the Bill (clause 6) to reflect the introduction of the independent review at Part 4-3 (amendments (3) and (4)); and

·          amend the heading to Chapter 4 of the Bill to reflect the inclusion of the independent review (amendment (11)).

 

Amendment (2)

Amendment (2) would amend clause 5(d) of the Bill to require Commonwealth companies to meet high standards of governance and performance as well as accountability.  The Bill is about more than just the accountability of Commonwealth companies.  Requirements on Commonwealth companies, such as for audit committees (clause 92) and corporate plans (clause 95) go beyond accountability.  These clauses reflect a broader focus on governance and performance.  Clarifying clause 5 makes the objects clause more accurate.

The amendment responds to a comment made by the ANAO in its submission to the JCPAA regarding clause 5(d).

 

Amendments (5), (6) and (8)

These amendments would insert provisions to ensure that the Parliamentary Service Act 1999 applies in the same way as the Public Service Act 1999 .  This suggestion was made by the Department of the House of Representatives in its submission to the JCPAA inquiry on the Bill.

Amendment (5) would adjust the guide to Part 2-2 to reflect the inclusion of the Parliamentary Service Act 1999 .

Amendment (6) would make it clear that measures to ensure officials comply with the finance law would not be required for officials to whom either the Public Service Act 1999 applies or the Parliamentary Service Act 1999 applies because of clause 32 of the Bill.

Amendment (8) would replace Subdivision C of Division 3 of Part 2-2 of the Bill.  The material change from the original clause 32 in Subdivision C is that the amendment would make it clear that the finance law is an Australian law for the purposes of both subsection 13(4) of the Public Service Act 1999 and subsection 13(4) of the Parliamentary Service Act 1999 .  This allows administrative action to be taken against both public servants and members of the parliamentary service if they breach the finance law. The Government agrees that it would be appropriate for the Bill to reflect that members of the parliamentary service are subject to equivalent administrative action to public servants.

 

Amendment (7)

Amendment (7) relates to clause 19 of the Bill.  This amendment would insert a subheading to subclauses 19(4A), (4B) and (5) clarifying that these subclauses are about the relationship of clause 19 with other powers and laws.

Amendment (7) would also insert subclauses 19(4A) and (4B).  Subclause 19(4A) would limit the application of subclause 19(1) so that it only applies to the extent that it is not inconsistent with a Commonwealth entity’s enabling legislation.  Subclause 19(4B) clarifies that clause 19 does not override limitations on disclosure that some Commonwealth entities may have.

This amendment addresses recommendation 7 of the JCPAA Report and numerous submissions to the inquiry including the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation, the National Gallery of Australia and the ANAO.

 

Amendment (9)

Amendment (9) would replace subclause 41(3) of the Bill.  The new subclause 41(3) would ensure that the responsible Minister, like the Finance Minister, is entitled to full and free access to a Commonwealth entity’s financial accounts and records, subject to any law that prohibits disclosure of particular information.  This suggestion was made by the ANAO in its submission to the JCPAA inquiry on the Bill.

While the original subclause 41(3) reflects the existing provisions in the FMA Act and CAC Act, it is appropriate that the responsible Minister is entitled to access to financial accounts and records, given the responsible Minister has portfolio responsibility for the Commonwealth entity and is ultimately responsible to Parliament for the Commonwealth entity.

 

Amendment (10)

Amendment (10) would amend subclause 53(4) of the Bill to provide that the rules are not to prescribe matters relating to the central bank account referred to in subclause 53(3) (Finance Minister to maintain a central bank account with the Reserve Bank of Australia (RBA)).

The exclusion of the central bank account from the rules reflects further consultations the Government has had with the RBA.  These consultations indicated that the rules under the Bill could have a significant effect on the role of the RBA as the Commonwealth’s central banker.  To avoid unintended consequences, the Government has decided to specifically exclude the central bank account from the rules.

 

Amendment (12)

Amendment (12) would replace subclause 101(2) of the Bill.  The new subclause 101(2) would allow the rules to prescribe matters or make different provision in relation to particular Commonwealth companies or a class of Commonwealth companies, in addition to the power to make rules in relation to Commonwealth entities.

This amendment brings greater consistency to how rules can be made in relation to Commonwealth companies and Commonwealth entities.  It will also assist in achieving the objects of the Bill referred to in amendment (2) by allowing the rules to set different governance and performance requirements for different Commonwealth companies, such as around audit committees, if necessary.

 

Amendment (13)

Amendment (13) would replace paragraph 102(g) of the Bill.  The original paragraph referred to ‘performance management’.  The amendment refers only to ‘performance’.  This amendment would help ensure that it is clear that the Bill is concerned with organisational performance; it is not concerned with the management of an individual’s performance, which is part of the relevant employment framework, such as the Public Service Act 1999 .