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Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Bill 2014

Schedule 2 Amendment of the Financial Management and Accountability Act 1997

Part 1 Amendments

Financial Management and Accountability Act 1997

1  Reader’s guide

Repeal the guide.

2  Title

Omit “ the proper use and management of public money, public property and other Commonwealth resources ”, substitute “ powers to make commitments to spend money and powers in relation to companies ”.

3  Section 1

Omit “ Financial Management and Accountability ”, substitute “ Financial Framework (Supplementary Powers) ”.

4  After section 2

Insert:

2A   Simplified outline of this Act

This Act confers on the Commonwealth, in certain circumstances, the powers:

       (a)     to make arrangements under which relevant money and other CRF money can be spent, or to make grants of financial assistance; and

      (b)     to form, or otherwise be involved in, companies.

The arrangements, grants, programs and companies (or classes of arrangements or grants) in relation to which the powers are conferred are specified in the regulations.

5  At the end of Part 1

Add:

5   Definitions

                   In this Act:

accountable authority has the meaning given by the Public Governance, Performance and Accountability Act 2013 .

Finance Minister means the Minister administering this Act.

Minister includes the President of the Senate or the Speaker of the House of Representatives.

non-corporate Commonwealth entity has the meaning given by the Public Governance, Performance and Accountability Act 2013 .

official has the meaning given by the Public Governance, Performance and Accountability Act 2013 .

other CRF money has the meaning given by the Public Governance, Performance and Accountability Act 2013 .

relevant money has the meaning given by the Public Governance, Performance and Accountability Act 2013 .

6   Relationship with the finance law

                   This Act and the regulations are to be read together with the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013 ).

6  Parts 2 and 3

Repeal the Parts.

7  Part 4 (heading)

Repeal the heading, substitute:

Part 2 Supplementary powers to make commitments to spend money and be involved in companies etc.

8  Divisions 1 to 3A of Part 4

Repeal the Divisions.

9  Division 3B of Part 4 (heading)

Repeal the heading.

10  Section 32B (heading)

Repeal the heading, substitute:

32B   Supplementary powers to make commitments to spend relevant money and other CRF money etc.

11  Subparagraph 32B(1)(a)(i)

Omit “public money”, substitute “relevant money or other CRF money”.

12  Subsection 32B(1)

Omit “, subject to compliance with this Act, the regulations, Finance Minister’s Orders, Special Instructions and any other law”.

13  At the end of subsection 32B(1)

Add:

Note:          The Public Governance, Performance and Accountability Act 2013 deals with the use and management of public resources (including relevant money and other CRF money).

14  Subsection 32B(2)

Omit “a Chief Executive” (first occurring), substitute “an accountable authority of a non-corporate Commonwealth entity”.

15  Subsection 32B(2) (notes 1 and 2)

Repeal the notes, substitute:

Note:          For the power to delegate, see section 32D.

16  Subsection 32C(3)

Omit “a Chief Executive” (first occurring), substitute “an accountable authority of a non-corporate Commonwealth entity”.

17  Subsection 32C(3) (notes 1 and 2)

Repeal the notes, substitute:

Note:          For the power to delegate, see section 32D.

18  Sections 32D and 32E

Repeal the sections, substitute:

32D   Minister or accountable authority may delegate powers

Delegation by a Minister

             (1)  A Minister may, by writing, delegate any or all of his or her powers under section 32B or 32C to an official of any non-corporate Commonwealth entity.

Note:          An accountable authority may delegate a power delegated under this section (see section 32DA).

             (2)  In exercising powers under a delegation, the delegate must comply with any directions of the Minister concerned.

Delegation by an accountable authority

             (3)  An accountable authority of a non-corporate Commonwealth entity may, by writing, delegate any or all of his or her powers under section 32B or 32C to an official of any non-corporate Commonwealth entity.

             (4)  In exercising powers under a delegation, the delegate must comply with any directions of the accountable authority concerned.

32DA   Accountable authority may sub-delegate powers

             (1)  An accountable authority of a non-corporate Commonwealth entity may, by writing, delegate to an official (the second delegate ) of any non-corporate Commonwealth entity powers and functions that have been delegated to the accountable authority by a Minister under section 32D.

             (2)  The 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 Minister.

             (3)  If the accountable authority is subject to directions in relation to the exercise of a power, or the performance of a function, delegated to the accountable authority under section 32D, then:

                     (a)  the accountable authority must give corresponding directions to the second delegate; and

                     (b)  the accountable authority 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.

             (4)  The second delegate must comply with any directions of the accountable authority.

32DB   Relationship with section 23 of the Public Governance, Performance and Accountability Act 2013

                   Section 23 of the Public Governance, Performance and Accountability Act 2013 (which deals with the power of accountable authorities in relation to arrangements and commitments) does not authorise the accountable authority of a non-corporate Commonwealth entity to exercise, on behalf of the Commonwealth, a power conferred on the Commonwealth by section 32B of this Act.

19  Division 4 of Part 4

Repeal the Division.

20  Part 5 (heading)

Repeal the heading.

21  Sections 37 to 39A

Repeal the sections.

22  Subsection 39B(3) (note)

Repeal the note, substitute:

Note:          For the power to delegate, see section 40.

23  Subsection 39B(4)

Repeal the subsection.

24  Subsection 39B(5) (definition of Commonwealth company )

Omit “ Commonwealth Authorities and Companies Act 1997 ”, substitute “ Public Governance, Performance and Accountability Act 2013 ”.

25  At the end of Part 5

Add:

40   Finance Minister may delegate powers

             (1)  The Finance Minister may, by written instrument, delegate to an accountable authority of a non-corporate Commonwealth entity the Finance Minister’s powers or functions under section 39B.

             (2)  In exercising powers or functions under a delegation, the delegate must comply with any directions of the Finance Minister.

41   Executive power of the Commonwealth

                   This Part does not, by implication, limit the executive power of the Commonwealth.

26  Parts 6 to 8

Repeal the Parts.

27  Part 9 (heading)

Repeal the heading, substitute:

Part 3 Miscellaneous

28  Sections 58 to 64

Repeal the sections.

29  Subsection 65(1)

Omit “(1)”.

30  Subsection 65(2)

Repeal the subsection (including the note).

Part 2 Transitional and application provisions

Division 1—Transitional and application provisions

31  Allocation of certain persons to Departments of State, Departments of the Parliament and prescribed Agencies

(1)       The following table provides that certain persons are taken to be officials of Commonwealth entities for the purposes of the PGPA Act.

 

Persons taken to be officials of Commonwealth entities

Item

The following person …

is taken to be an official of this Commonwealth entity for the purposes of the PGPA Act …

1

a person who immediately before the commencement time is allocated to a Department of State under paragraph 4(1)(a) of the Financial Management and Accountability Regulations 1997

the Department of State.

2

a person who immediately before the commencement time is allocated to the Department of the Prime Minister and Cabinet under paragraph 4(1)(e) of the Financial Management and Accountability Regulations 1997

the Department of the Prime Minister and Cabinet.

3

a person who immediately before the commencement time is allocated to a Department of the Parliament under subregulation 4(2) of the Financial Management and Accountability Regulations 1997

the Department of the Parliament.

4

any person who performs financial tasks in relation to a prescribed Agency as mentioned in paragraph 5(1)(b) of the Financial Management and Accountability Regulations 1997

the listed entity that, under this Part, the prescribed Agency is taken to become at the commencement time.

 

(2)       A person ceases to be taken to be such an official when the person would have ceased to be covered by paragraph 4(1)(a) or (e), 5(1)(b) or subregulation 4(2) of the Financial Management and Accountability Regulations 1997 .

32  Prescribed Agencies

If:

                     (a)  immediately before the commencement time, a body, organisation or group of persons is a prescribed Agency; and

                     (b)  at the commencement time, there is a listed entity that has the same name as the prescribed Agency;

then the prescribed Agency is taken to become the listed entity at the commencement time.

33  Notional payments and receipts by Agencies

Despite the repeal of section 6 of the FMA Act (which deals with notional payments and receipts by Agencies), that section, and any other provision of the FMA Act to the extent that it relates to that section, continues to apply after the commencement time in relation to payments made before that time.

34  Agreements with banks about receipt, transmission etc. of public money

(1)       An agreement made under section 8 of the FMA Act (which deals with agreements with banks about the receipt, transmission etc. of public money) that is in force immediately before the commencement time is taken, after that time, to have been made under, and in accordance with, section 53 of the PGPA Act.

(2)       An agreement made under section 8 of the FMA Act with the Reserve Bank of Australia in relation to a central bank account that is in force immediately before the commencement time is taken, after that time, to have been made under, and in accordance with, subsection 53(3) of the PGPA Act.

35  Public money must be promptly banked etc.

Despite the repeal of section 10 of the FMA Act (which requires public money to be promptly banked etc.), that section continues to apply after the commencement time in relation to public money received before that time.

36  Establishment of Special Accounts by Finance Minister

(1)       A determination made under subsection 20(1) of the FMA Act (which deals with the establishment of Special Accounts by the Finance Minister) that is in force immediately before the commencement time is (subject to subitem (2)) taken, after that time, to have been made under subsection 78(1) of the PGPA Act.

(2)       Subitem (1) does not apply to the following determinations:

                     (a)  the Financial Management and Accountability (Establishment of SOETM Special Account - FWO) Determination 2012/13;

                     (b)  the Financial Management and Accountability (Establishment of SOETM Special Account - Customs) Determination 2012/14;

                     (c)  the Financial Management and Accountability Determination 2006/74 - Security Deposits Special Account Establishment 2006;

                     (d)  the Financial Management and Accountability (Establishment of Special Account for Department of the House of Representatives) 2011/10;

                     (e)  the Financial Management and Accountability Determination 2005/02 - Australia-Indonesia Partnership for Reconstruction and Development (Grants) Special Account Determination 2005;

                      (f)  the Financial Management and Accountability (Establishment of Special Account for AusAID) Determination 2011/05;

                     (g)  the Financial Management and Accountability (Local Hospital Networks Special Account) Determination 2013/01;

                     (h)  the Financial Management and Accountability Determination 2009/34 - Joint Australian U.S. Geological and Geophysical Research Station Special Account Establishment 2009;

                      (i)  the Financial Management and Accountability Determination 2008/24 - Indigenous Communities Strategic Investment Program Special Account Establishment 2008.

37  Drawing rights

Despite the repeal of sections 26 and 27 of the FMA Act, those sections continue to apply after the commencement time until the end of 30 June 2015 as if:

                     (a)  a reference to an official were a reference to an official within the meaning of the PGPA Act; and

                     (b)  a reference to public money were a reference to relevant money within the meaning of the PGPA Act; and

                     (c)  a reference to a designated Special Account appropriation were a reference to an appropriation under section 80 of the PGPA Act that relates to:

                              (i)  the COAG Reform Fund established by the COAG Reform Fund Act 2008 ; or

                             (ii)  a special account (within the meaning of the PGPA Act) established by the Nation-building Funds Act 2008 .

38  Repayments by the Commonwealth

Despite the repeal of section 28 of the FMA Act (which deals with repayments by the Commonwealth), that section continues to apply after the commencement time in relation to amounts received by the Commonwealth before that time.

39  Repayments to the Commonwealth

Despite the repeal of section 30 and subsection 32A(2) of the FMA Act (which deal with repayments to the Commonwealth), those provisions continue to apply after the commencement time in relation to amounts paid by the Commonwealth before that time.

40  Appropriations to take account of recoverable GST

Despite the repeal of section 30A and subsection 32A(3) of the FMA Act (which deal with the treatment of appropriations to take account of recoverable GST), those provisions continue to apply after the commencement time in relation to payments that are made before 1 July 2015.

41  Retaining prescribed receipts

Despite the repeal of section 31 and subsection 32A(4) of the FMA Act (which deal with retaining prescribed receipts), those provisions continue to apply after the commencement time in relation to:

                     (a)  amounts (other than amounts that relate to GST) that are received before that time; and

                     (b)  amounts that relate to GST that are received before 1 July 2015.

42  Regulations made for the purposes of sections 32B and 39B

The amendments to sections 32B, 39B and 65 of the FMA Act made by this Schedule do not affect the continuity of any regulations that are in force for the purposes of section 32B or 39B immediately before the commencement time.

43  Delegations by Minister

(1)       A delegation by a Minister under subsection 32D(1) of the FMA Act that is in force immediately before the commencement time is taken, after that time, to have been made under subsection 32D(1) of the Financial Framework (Supplementary Powers) Act 1997 (as inserted by this Schedule).

Note:       The FMA Act is renamed the Financial Framework (Supplementary Powers) Act 1997 by Part 1 of this Schedule.

(2)       A direction given by a Minister for the purposes of subsection 32D(2) of the FMA Act that is in force immediately before the commencement time is taken, after that time, to have been given for the purposes of subsection 32D(2) of the Financial Framework (Supplementary Powers) Act 1997 (as inserted by this Schedule).

44  Finance Minister may approve act of grace payments

            An authorisation given under section 33 of the FMA Act (which deals with the Finance Minister approving act of grace payments) that is in force immediately before the commencement time is taken, after that time, to have been given under, and in accordance with, section 65 of the PGPA Act.

45  Finance Minister may borrow for short periods

An agreement made under section 38 of the FMA Act (which deals with the Finance Minister borrowing for short periods) that is in force immediately before the commencement time is taken, after that time, to have been made under, and in accordance with, section 56 of the PGPA Act.

46  Investment of public money

Public money that, immediately before the commencement time, is invested under section 39 of the FMA Act (which deals with the investment of public money) is taken, after that time, to be invested under, and in accordance with, section 58 of the PGPA Act.

47  Minister must inform Parliament of involvement in a company by the Commonwealth or a prescribed body

Despite the repeal of section 39A of the FMA Act (which deals with the requirement to inform Parliament of the Commonwealth’s or a prescribed body’s involvement in a company), that section continues to apply after the commencement time in relation to events that occur before that time.

48  Gifts of public property

An approval for the making of a gift that is in force under paragraph 43(b) of the FMA Act (which deals with gifts of public property) immediately before the commencement time is taken, after that time, to be a written authorisation by the Finance Minister as referred to in subparagraph 66(b)(ii) of the PGPA Act.

49  Promoting proper use of Commonwealth resources

An arrangement made under section 44 of the FMA Act (which deals with promoting the proper use of Commonwealth resources) that is in force immediately before the commencement time is taken, after that time, to have been made under section 23 of the PGPA Act.

50  Keeping responsible Minister and Finance Minister informed

Despite the repeal of section 44A of the FMA Act (which deals with keeping the responsible Minister and Finance Minister informed), that section continues to apply after the commencement time in relation to a requirement to provide reports, documents or information made under that section before that time.

51  Recovery of debts

Despite the repeal of section 47 of the FMA Act (which deals with the recovery of debts), that section continues to apply after the commencement time in relation to any debt that a Chief Executive had begun to pursue under that section before that time.

52  Accounts and records

            Despite the repeal of section 48 of the FMA Act (which deals with accounts and records), that section continues to apply after the commencement time in relation to accounts and records to which that section applies immediately before the commencement time.

53  Continuing application of certain provisions

            Despite the repeal of the following provisions of the FMA Act, those provisions continue to apply after the commencement time in relation to the last financial year that ends before the commencement time:

                     (a)  section 49 (which deals with annual financial statements);

                     (b)  section 51 (which deals with reporting requirements if an Agency ceases to exist or Agency functions are transferred);

                     (c)  section 55 (which deals with the preparation of annual financial statements by the Finance Minister);

                     (d)  section 56 (which deals with auditing the Finance Minister’s annual financial statements);

                     (e)  section 57 (which deals with auditing the annual financial statements of an Agency).

54  Additional financial statements

Despite the repeal of section 50 of the FMA Act (which deals with additional financial statements), that section continues to apply after the commencement time in relation to financial statements required under that section before that time.

55  Chief Executive may delegate powers

Delegation of Chief Executive’s powers

(1)       A delegation, under section 53 of the FMA Act, by a Chief Executive of an Agency of his or her powers under section 32B or 32C of that Act (but not powers of a Minister that have been delegated to the Chief Executive) that is in force immediately before the commencement time is taken, after that time, to be a delegation by an accountable authority of a non-corporate Commonwealth entity under subsection 32D(3) of the Financial Framework (Supplementary Powers) Act 1997 (as inserted by this Schedule).

Note:       The FMA Act is renamed the Financial Framework (Supplementary Powers) Act 1997 by Part 1 of this Schedule.

(2)       A direction given by a Chief Executive of an Agency for the purposes of a delegation referred to in subitem (1) that is in force immediately before the commencement time is taken, after that time, to have been given for the purposes of subsection 32D(4) of the Financial Framework (Supplementary Powers) Act 1997 (as inserted by this Schedule).

Subdelegation of Finance Minister’s powers by Chief Executive

(3)       A delegation, under section 53 of the FMA Act, by a Chief Executive of an Agency of the Finance Minister’s powers or functions under section 32B or 32C of that Act that is in force immediately before the commencement time is taken, after that time, to be a delegation by an accountable authority of a non-corporate Commonwealth entity under subsection 32DA(1) of the Financial Framework (Supplementary Powers) Act 1997 (as inserted by this Schedule).

(4)       A direction given by a Chief Executive of an Agency for the purposes of a delegation referred to in subitem (3) that is in force immediately before the commencement time is taken, after that time, to have been given for the purposes of subsection 32DA(3) of Financial Framework (Supplementary Powers) Act 1997 (as inserted by this Schedule).

56  Requirement to publish monthly financial statements

Despite the repeal of section 54 of the FMA Act (which deals with monthly financial statements), that section continues to apply after the commencement time in relation to the last month that ends immediately before that time.

57  Modified operation of Act and relevant regulations

Despite the repeal of section 58 of the FMA Act (which deals with the modification of the FMA Act for intelligence or security agencies or prescribed law enforcement agencies), the following continue to apply after the commencement time in relation to the last financial year that ends before that time:

                     (a)  section 58 of the FMA Act;

                     (b)  any other section of the Act to the extent that it relates to that section or regulations made for the purposes of that section.

Note:       Division 2 of this Part continues the operation of regulations made for the purposes of section 58 of the FMA Act. Those regulations modify the operation of certain parts of the FMA Act.

58  Finance Minister may delegate powers

Delegation of powers under section 32B or 32C of the FMA Act

(1)       A delegation, under section 62 of the FMA Act, by the Finance Minister of the Finance Minister’s powers or functions under section 32B or 32C of that Act that is in force immediately before the commencement time is taken, after that time, to have been made under subsection 32D(1) of the Financial Framework (Supplementary Powers) Act 1997 (as inserted by this Schedule).

Note:       The FMA Act is renamed the Financial Framework (Supplementary Powers) Act 1997 by Part 1 of this Schedule.

(2)       A direction given by the Finance Minister for the purposes of a delegation referred to in subitem (1) that is in force immediately before the commencement time is taken, after that time, to have been given for the purposes of subsection 32D(2) of the Financial Framework (Supplementary Powers) Act 1997 (as inserted by this Schedule).

Delegation of powers under section 39B of the FMA Act

(3)       A delegation, under section 62 of the FMA Act, by the Finance Minister of the Finance Minister’s powers or functions under section 39B of that Act that is in force immediately before the commencement time is taken, after that time, to have been made under section 40 of the Financial Framework (Supplementary Powers) Act 1997 (as inserted by this Schedule).

(4)       A direction given by the Finance Minister for the purposes of a delegation referred to in subitem (3) that is in force immediately before the commencement time is taken, after that time, to have been given for the purposes of section 40 of the Financial Framework (Supplementary Powers) Act 1997 (as inserted by this Schedule).

58A  Guidelines

The amendments to section 65 of the FMA Act made by this Schedule do not affect the continuity of the Commonwealth Cleaning Services Guidelines 2012, as in force immediately before the commencement time.

59  Approvals of spending proposals

An approval that, immediately before the commencement time, is in force for the purposes of regulation 9 of regulations made under the FMA Act is taken, after that time, to have been given for the purposes of, and in accordance with, rules made for the purposes of section 52 of the PGPA Act.

Division 2—Continuation of instruments

60  Continuation of instruments

(1)       This item applies if:

                     (a)  an item of this Part continues the operation of a provision of the FMA Act; and

                     (b)  regulations or any other instrument are in force immediately before the commencement time for the purposes of the provision.

(2)       The regulations or other instrument are taken, after the commencement time, to continue in force for the purposes of the item.