Financial Management and Accountability Amendment Regulations 2010 (No. 3)1
Select Legislative Instrument 2010 No. 171
I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Financial Management and Accountability Act 1997.
Dated 29 June 2010
QUENTIN BRYCE
Governor-General
By Her Excellency’s Command
LINDSAY TANNER
Minister for Finance and Deregulation
1 Name of Regulations
These Regulations are the Financial Management and Accountability Amendment Regulations 2010 (No. 3).
2 Commencement
These Regulations commence on 1 July 2010.
3 Amendment of Financial Management and Accountability Regulations 1997
Schedule 1 amends the Financial Management and Accountability Regulations 1997.
4 Transitional
(1) This regulation ceases to apply on 1 July 2011.
(2) The amendments made by Schedule 1 apply in relation to any action, including the making of an instrument, done under the authority of:
(a) a provision or group of provisions of the old FMA Regulations that has been repealed; or
(b) a provision or group of provisions of the 2005 Orders that has been repealed; or
(c) a provision or group of provisions of the 2008 Orders that has been repealed;
as if the action had been done under the corresponding provision or group of provisions of the new FMA Regulations.
Note The actions include:
(a) the making of delegations by a Chief Executive or the Finance Chief Executive; and
(b) the making of determinations by the Finance Chief Executive, specifying an activity of an Agency as a business operation.
(3) If subregulation (2) applies, a reference in an instrument to a provision or group of provisions of:
(a) the old FMA Regulations; or
(b) the 2005 Orders; or
(c) the 2008 Orders;
is taken to include a reference to the corresponding provision or group of provisions of the new FMA Regulations.
(4) If:
(a) a provision or group of provisions of:
(i) the old FMA Regulations; or
(ii) the 2005 Orders;
has been repealed; and
(b) no provision or group of provisions of the new FMA Regulations corresponds to the repealed provision or group of provisions;
the amendments made by Schedule 1 apply in relation to any action, including the making of an instrument, done under the authority of the repealed provision or group of provisions as if the repeal had not occurred.
(5) In this regulation:
2005 Orders means the Financial Management and Accountability Orders 2005 as in force immediately before 1 July 2010.
2008 Orders means the Financial Management and Accountability Orders 2008 as in force immediately before 1 July 2010.
instrument includes a legislative instrument.
new FMA Regulations means the Financial Management and Accountability Regulations 1997 as in force at any time on or after 1 July 2010.
old FMA Regulations means the Financial Management and Accountability Regulations 1997 as in force immediately before 1 July 2010.
Schedule 1 Amendments
(regulation 3)
[1] Regulation 3, definition of agency agreement
omit
[2] Regulation 3, after definition of approver
insert
arrangement means an arrangement, including a contract or agreement, under which public money is payable or may become payable, other than:
(a) an arrangement for:
(i) the engagement of an employee; or
(ii) the appointment of a person to a statutory office; or
(iii) the acquisition of particular property or services under a general arrangement with the supplier of those property or services, for the purposes of providing a statutory or employment entitlement; or
(b) an international agreement governed by international law.
Note An arrangement includes an arrangement under which public money is payable or may become payable as a notional payment — see section 6 of the Act.
[3] Regulation 3, definition of Commonwealth contract
omit
[4] Regulation 3, definition of spending proposal
substitute
spending proposal means a proposal that could lead to entering into an arrangement.
[5] Regulation 3, definition of Treasury Chief Executive
omit
[6] Paragraph 3A (2) (k)
omit
2003.
insert
2003;
[7] After paragraph 3A (2) (k)
insert
(l) a payment of assistance for the purposes of Australia’s international development assistance program, which is treated by the Commonwealth as official development assistance.
Note The Commonwealth has regard to the definition of official development assistance that the OECD has set out in its DAC Statistical Reporting Directives, available on the OECD’s website.
[8] Regulation 4, heading
substitute
4 Allocation of certain persons to Departments of State and Departments of the Parliament (Act s 5)
[9] Regulation 5, heading
substitute
5 Prescribed Agencies and Chief Executives of prescribed Agencies (Act s 5)
[10] Regulation 6
substitute
6 Chief Executive’s Instructions (Act s 52)
The Chief Executive of an Agency is authorised to give instructions (to be called Chief Executive’s Instructions) to officials in that Agency on any matter necessary or convenient for carrying out or giving effect to the Act or these Regulations, including instructions relating to the matters mentioned in paragraphs 65 (2) (a) and (b) of the Act.
[11] Regulations 7 and 7A
substitute
7 Commonwealth Procurement Guidelines (Act s 64)
(1) The Finance Minister may issue guidelines (to be called Commonwealth Procurement Guidelines) in relation to procurement, including:
(a) procurement policies and processes; and
(b) requirements regarding the publication of procurement details; and
(c) requirements regarding entering into procurement arrangements; and
(d) the disposal of public property.
(2) An official performing duties in relation to procurement must act in accordance with the Commonwealth Procurement Guidelines.
7A Commonwealth Grant Guidelines (Act s 64)
(1) The Finance Minister may issue guidelines (to be called Commonwealth Grant Guidelines) in relation to grants administration, including:
(a) grant policies and processes; and
(b) requirements regarding the publication of grant details; and
(c) requirements regarding entering into grants.
(2) An official performing duties in relation to grants administration must act in accordance with the Commonwealth Grant Guidelines.
8 Entering into an arrangement
A person must not enter into an arrangement unless:
(a) a spending proposal has been approved under regulation 9; and
(b) if required, written agreement has been given under regulation 10.
Note 1 If an agreement under regulation 10 is required, the agreement does not have to be given before the proposal is approved under regulation 9. A Chief Executive may require, for example in the Chief Executive’s Instructions, that these processes be done in a particular order.
Note 2 A Chief Executive has the power to enter into arrangements, on behalf of the Commonwealth, in relation to the affairs of the Agency. Some Chief Executives have delegated this power under section 53 of the Act — see section 44 of the Act.
[12] Regulation 9, heading
substitute
9 Approval of spending proposals
[13] Regulation 9
omit
after reasonable
insert
after making reasonable
[14] Regulation 9, note
substitute
Note 1 When this note commenced, subsection 44 (3) of the Act defined proper use to mean efficient, effective and ethical use that is not inconsistent with the policies of the Commonwealth.
Note 2 A spending proposal may be approved at any time prior to entering into the arrangement, and may be approved well before the arrangement is entered into. At the time the spending proposal is approved, the expectation is that an arrangement or arrangements will be entered into, consistent with the terms of the spending proposal.
Note 3 Approvals may be given subject to conditions.
[15] Regulations 10 and 11
substitute
10 Arrangements beyond available appropriation
If:
(a) a person proposes to enter into an arrangement; and
(b) the relevant Agency has an insufficient appropriation of money, under the provisions of an existing law or a proposed law that is before Parliament, to meet expenditure that might be payable under the arrangement;
the person must not enter into the arrangement unless the Finance Minister has agreed, in writing, to the expenditure that might become payable under the arrangement.
Note In some circumstances the Finance Minister’s agreement will not be required — see regulation 10A.
10A Contingent liabilities
(1) If:
(a) an arrangement consists of, or includes, a contingent liability in relation to an event; and
(b) the person proposing to enter the arrangement is satisfied, after making reasonable inquiries, that:
(i) the likelihood of the event occurring is remote; and
(ii) the most probable expenditure that would need to be made in accordance with the arrangement, if the event occurred, would not be material;
regulation 10 does not apply to that part of the arrangement.
(2) For subparagraph (1) (b) (i), the likelihood of an event occurring is remote if there is a probability of less than 5% that it will occur.
(3) For subparagraph (1) (b) (ii), expenditure is material if it is at least:
(a) an amount specified by the Finance Minister in a legislative instrument for this paragraph; or
(b) if the Finance Minister has not made a legislative instrument under paragraph (a) that applies to the Agency — $5 000 000.
Note The Finance Minister may specify an amount for a particular Agency.
11 Entering into loan guarantees
(1) Despite regulation 10A, a person must not give a loan guarantee on behalf of the Commonwealth unless:
(a) a spending proposal for the guarantee has been approved under regulation 9; and
(b) if required, written agreement has been given under regulation 10; and
(c) the Finance Minister has, in writing, approved the giving of the guarantee.
(2) In subregulation (1):
loan guarantee means a guarantee of the due payment of one or more of the following:
(a) the whole of the principal of a loan;
(b) the whole of the interest payable on a loan;
(c) a part of the principal of a loan;
(d) a part of the interest payable on a loan.
[16] Regulations 13 and 14
omit
[17] Regulation 15, heading
substitute
15 Relevant Agency receipts (Act s 31)
[18] Regulation 16A
substitute
16A Guidelines on fraud (Act s 64)
(1) The Minister for Home Affairs may issue guidelines (to be called Fraud Control Guidelines) about the control of fraud, dealing with fraud risk assessments, the preparation and implementation of fraud control plans and reporting of fraud.
(2) An official performing duties in relation to the control and reporting of fraud must act in accordance with the Fraud Control Guidelines.
[19] Regulation 17, heading
substitute
17 Prompt banking of received money (Act s 10)
[20] Regulation 18, heading
substitute
18 Public money in non-bankable currency (Act s 10)
[21] Regulation 19, heading
substitute
19 Withdrawals from official accounts and internal transfers between accounts (Act s 13)
[22] Regulation 20, heading
substitute
20 Custody of securities (Act s 40)
[23] Regulation 21, heading
substitute
21 Credit cards (Act s 38, s 60)
[24] Regulation 22, heading
substitute
22 Investment of public money (Act s 39)
[25] Paragraph 22 (1) (b)
omit
Minister
insert
Finance Minister
[26] After subregulation 22 (1)
insert
(1A) The Treasurer may delegate to an official, by signed instrument, the Treasurer’s powers or functions under subregulation (1).
(1B) In exercising powers and functions under a delegation, the official must comply with any directions of the Treasurer.
[27] Regulation 22A, heading
substitute
22A Preparation of annual financial statements by Finance Minister (Act s 55)
[28] Regulation 22B, heading
substitute
22B Audit of Finance Minister’s annual financial statements (Act s 56)
[29] Regulation 22C, heading
substitute
22C Terms of reference of audit committee (Act s 46)
[30] Part 8, heading
substitute
Part 8 Found property
[31] Regulation 23, heading
substitute
23 Disposal of property found on Commonwealth premises etc (Act s 41)
[32] After regulation 23
insert
Part 8A Delegations and instruments
[33] Regulations 24 to 26
substitute
24 Finance Minister may delegate powers
(1) The Finance Minister may delegate to an official, by written instrument, all of the Finance Minister’s powers or functions under these Regulations (other than this power of delegation).
(2) If a delegation by the Finance Minister relates to the Finance Minister’s powers or functions under regulation 9 or 10, the Finance Minister may also delegate the power of delegation under subregulation (1) in relation to those powers or functions.
(3) In exercising powers and functions under a delegation, the official must comply with any directions of the Finance Minister.
(4) This regulation does not, by implication, limit:
(a) any other power of the Finance Minister to authorise a person to act on behalf of the Finance Minister; or
(b) any other power of an official to authorise a person to act on behalf of the official.
26 Chief Executive may delegate powers
(1) The Chief Executive of an Agency may delegate to an official, by written instrument:
(a) any of the Chief Executive’s powers or functions under these Regulations (including this power of delegation); or
(b) a power or function that has been delegated to the Chief Executive by the Finance Minister or the Finance Chief Executive.
(2) In exercising powers and functions under a delegation, the official must comply with any directions of the Chief Executive.
(3) This regulation does not, by implication, limit:
(a) any other power of a Chief Executive to authorise a person to act on behalf of the Chief Executive; or
(b) any other power of an official to authorise a person to act on behalf of the official.
26A Operation of instruments under the Regulations
(1) An instrument made under these Regulations must not be inconsistent with:
(a) the Act; or
(b) these Regulations; or
(c) the FMA Orders.
(2) The instruments to which subregulation (1) applies include the instruments mentioned in the following table.
Item
Instrument
1
Chief Executive’s Instructions
2
Commonwealth Procurement Guidelines
3
Commonwealth Grant Guidelines
4
Fraud Control Guidelines
5
A direction to a delegate
[34] Regulation 27, heading
substitute
27 Modification of Act for intelligence or security agency (Act s 58)
[35] Subregulation 28 (3), note
omit
Those Orders allow for special arrangements to be made for the agency.
[36] Regulation 28A, heading
substitute
28A Non-application of relevant regulations to operational money (Act s 58)
[37] Subregulation 28A (1)
omit
Subregulations 7 (4), 7A (4) and 16A (3)
insert
Subregulations 7 (2), 7A (2) and 16A (2)
[38] Regulation 29, heading
substitute
29 Act of grace payments and waiver of debts (Act s 33, s 34)
[39] Schedule 1, item 179, column 2, paragraph (c)
omit
employed under other arrangements
insert
engaged
[40] Schedule 1, item 201, column 2, paragraph (c)
omit
employed under other arrangements
insert
engaged
Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.
