Financial Management and Accountability Amendment Regulations 2009 (No. 2)1
Select Legislative Instrument 2009 No. 41
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 13 March 2009
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 2009 (No. 2).
2              Commencement
                These Regulations commence on the day after they are registered.
3              Amendment of Financial Management and Accountability Regulations 1997
                Schedule 1 amends the Financial Management and Accountability Regulations 1997.
4              Transitional
         (1)   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                 (a)     a provision or group of provisions of the old FMA Act that has been repealed; or
                (b)     a provision or group of provisions of the old FMA Regulations that has been repealed; or
                 (c)     a provision or group of provisions of the 2005 Orders that has been repealed; or
                (d)     a provision or group of provisions of the 2008 Orders that has been repealed;
as if the action were 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.
         (2)   If subregulation (1) applies, a reference in an instrument to a provision or group of provisions of:
                 (a)     the old FMA Act; or
                (b)     the old FMA Regulations; or
                 (c)     the 2005 Orders; or
                (d)     the 2008 Orders;
is taken to include a reference to the corresponding provision or group of provisions of the new FMA Regulations.
         (3)   If:
                 (a)     a provision or group of provisions of:
                          (i)     the old FMA Act; or
                         (ii)     the old FMA Regulations; or
                         (iii)     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.
         (4)   In this regulation:
2005 Orders means the Financial Management and Accountability Orders 2005 as in force immediately before the commencement of Schedule 1.
2008 Orders means the Financial Management and Accountability Orders 2008 as in force immediately before the commencement of Schedule 1.
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 the commencement of Schedule 1.
old FMA Act means the Financial Management and Accountability Act 1997 as in force immediately before the commencement of Schedule 1.
old FMA Regulations means the Financial Management and Accountability Regulations 1997 as in force immediately before the commencement of Schedule 1.
Schedule 1        Amendments
(regulation 3)
 
[1]           Regulation 3, definition of financial task
substitute
financial task:
                (a)    means a task or procedure relating to the commitment, spending, management or control of public money; and
               (b)    does not include a task or procedure of that kind that is performed by an outsider, under an agreement or arrangement authorised under subsection 12 (1) of the Act.
Note   Outsider is defined in section 12 of the Act as any person other than the Commonwealth, an official or a Minister.
[2]           Regulation 4
substitute
4              Allocation of certain persons to Departments of State and Departments of the Parliament
         (1)   For paragraph (a) of the definition of Agency in section 5 of the Act:
                (a)    a person who performs a financial task for a Department of State is allocated to that Department; and
               (b)    a member of the Defence Force is allocated to the Department of Defence, unless the member’s services are made available to assist the Chief Executive Officer of the Defence Materiel Organisation; and
                (c)    an officer, instructor or cadet in the Australian Air Force Cadets, the Australian Army Cadets, or the Australian Navy Cadets is allocated to the Department of Defence; and
               (d)    a person employed, under the Members of Parliament (Staff) Act 1984, on the staff of an office‑holder or a Senator or Member is allocated to the Department of State to which the money out of which the person’s remuneration is paid is appropriated; and
                (e)    a person performing, or assisting in the performance of, the functions of the Independent Auditor under Part 7 of the Auditor‑General Act 1997 is allocated to the Department of the Prime Minister and Cabinet.
         (2)   For paragraph (b) of the definition of Agency in section 5 of the Act, a person who performs a financial task for a Department of the Parliament is allocated to that Department.
         (3)   In subregulation (1):
Australian Air Force Cadets means the body continued in existence by section 8 of the Air Force Act 1923.
Australian Army Cadets means the body continued in existence by section 62 of the Defence Act 1903.
Australian Navy Cadets means the body continued in existence by section 38 of the Naval Defence Act 1910.
[3]           Part 6
substitute
Part 5A               Protection of public money and public property
  
16A         Guidelines on fraud
         (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 arrangements for reporting of fraud.
         (2)   Fraud Control Guidelines must not be inconsistent with:
                (a)    the Act; or
               (b)    these Regulations; or
                (c)    FMA Orders.
16B         Officials to have regard to guidelines
                An official performing duties in relation to the control and reporting of fraud must have regard to the Fraud Control Guidelines.
Part 6                 Banking of public money etc
  
17            Prompt banking of received money (Act, s 10)
         (1)   An official who:
                (a)    receives public money in a bankable currency; or
               (b)    receives money in a bankable currency that becomes public money on receipt;
must bank the money.
Note   Section 10 of the Act provides that money includes cheques and similar instruments.
         (2)   The official must bank the money as soon as practicable, but in any case not later than:
                (a)    the next banking day; or
               (b)    a banking day approved by the Chief Executive for this paragraph.
Note 1   Section 10 of the Act imposes a penalty for a failure to bank public money as required by these Regulations.
Note 2   Section 11 of the Act provides that an official must not deposit public money in any account other than an official account.
         (3)   A banking day for a bank is a day on which the bank is open to the public for general banking business, other than:
                (a)    a Saturday; or
               (b)    a Sunday; or
                (c)    a day that is a public holiday in the place where the money is received.
18            Public money in non-bankable currency
         (1)   An official who receives public money in a non-bankable currency must take reasonable steps to safeguard the money.
         (2)   In subregulation (1):
non-bankable currency means:
                (a)    a currency that cannot be banked; or
               (b)    a currency the banking of which would, in the opinion of the Chief Executive of the Agency by which it is received, involve significant costs or administrative difficulty.
Note 1   Section 10 of the Act imposes a penalty for a failure to bank public money as required by these Regulations.
Note 2   Section 10 of the Act provides that money includes cheques and similar instruments.
19            Withdrawals from official accounts and internal transfers between accounts (Act, s 13)
         (1)   An official may withdraw an amount from an official account for the purpose of depositing the amount into another official account if no appropriation and drawing right is relied on in relation to the transfer.
         (2)   An official may withdraw an amount from an official account for the purpose of establishing or reimbursing a cash advance established for a purpose, and maintained in a manner, approved by the Chief Executive.
         (3)   An official may withdraw an amount from an official account for the purpose of spending that amount under an appropriation if the official has been issued with a relevant drawing right under paragraph 27 (1) (a) of the Act.
         (4)   In subregulation (2):
cash advance means public money, in the custody or control of an official, and held outside an official account, for a purpose of making payments of public money in cash.
Note 1   Subregulations (1) and (2) authorise officials to make internal transfers (including within an Agency) of public money, in circumstances in which no real or notional payment is being made and no appropriation is required, for example, where an Agency transfers money from one of its own official accounts to another (or to the custody of an official), or money is transferred from the Official Public Account to an Agency’s account.
Note 2   Section 13 of the Act provides that a withdrawal of money from an official account that is not authorised by these Regulations carries a penalty.
20            Custody etc of securities (Act, s 40)
                If an official, in the course of carrying out duties as an official, receives bonds, debentures or other securities, the official must:
                (a)    issue a receipt for the bonds, debentures or other securities received; and
               (b)    maintain a register of all bonds, debentures or other securities received; and
                (c)    take reasonable steps to safeguard the bonds, debentures or other securities.
Note   Section 40 of the Act imposes a penalty for a failure to deal with bonds, debentures or other securities in accordance with these Regulations.
[4]           Regulation 21
substitute
21            Credit cards (Act, ss 38 and 60)
         (1)   An arrangement with a bank or other person under subsection 38 (2) of the Act may provide for the issue to, and use by, the Commonwealth of credit cards or credit vouchers.
Note   Section 38 of the Act deals with short‑term borrowing by the Commonwealth.
         (2)   A Chief Executive may:
                (a)    authorise a holder of a Commonwealth credit card to use the Commonwealth credit card to pay a claim that includes both official and coincidental private expenditure; and
               (b)    specify arrangements for the holder of the Commonwealth credit card to reimburse the Commonwealth for that coincidental private expenditure.
         (3)   The holder of the Commonwealth credit card must pay to the Commonwealth the amount paid by the Commonwealth for the coincidental private expenditure.
         (4)   The amount payable to the Commonwealth under this regulation is recoverable as a debt in a court of competent jurisdiction.
         (5)   In this regulation:
Commonwealth credit card:
(a)    has the meaning given by subsection 60 (3) of the Act; and
(b)    includes a Commonwealth credit card number mentioned in subsections 60 (1) and (2) of the Act.
Note 1   Under section 60 of the Act, use of a Commonwealth credit card or a Commonwealth credit card number otherwise than for official purposes, or not in accordance with an authorisation under these Regulations carries a penalty.
Note 2   Section 38 of the Act deals with short‑term borrowing by the Commonwealth.
[5]           Regulation 22, heading
substitute
22            Investment of public money (Act, s 39)
[6]           Part 7A, heading
substitute
Part 7A               Reporting and audit etc
  
[7]           After regulation 22B
insert
22C         Terms of reference of audit committees (Act, s 46)
         (1)   A Chief Executive must, when establishing an audit committee, give the committee terms of reference that include particulars of:
                (a)                the membership of the committee; and
               (b)    the frequency of the meetings of the committee; and
                (c)    the functions and responsibilities of the committee.
         (2)   The functions and responsibilities of an audit committee include:
                (a)    the approval of internal annual and strategic audit plans of the Agency; and
               (b)    the review of all audit reports involving matters of concern to senior management of the Agency, including the identification and dissemination of good practices; and
                (c)    the provision of advice to the Chief Executive on action to be taken on matters of concern raised in a report of the internal auditors or in a report of the Auditor-General concerning the Agency; and
               (d)    as far as practicable, the coordination of audit programs conducted by internal auditors and the programs conducted by the Auditor-General; and
                (e)    the provision of advice to the Chief Executive on the preparation and review of financial statements of the Agency.
         (3)   In subregulation (2):
Auditor-General means the Auditor-General for the Commonwealth referred to in section 7 of the Auditor-General Act 1997.
22D         Estimates
         (1)   A Chief Executive must prepare budget estimates for each financial year, and for any other periods directed by the Finance Chief Executive.
         (2)   The estimates must be:
                (a)    prepared in the form specified by the Finance Chief Executive; and
               (b)    provided as required by the Finance Chief Executive.
[8]           Part 8, heading
substitute
Part 8                 Delegations and found property
  
[9]           After regulation 26
insert
Part 9                 Modified operation of Act
  
[10]         After regulation 28
insert
Part 10               Act of grace and probate payments
  
29            Act of grace payments and waiver of debts (Act, ss 33 and 34)
         (1)   If a proposed authorisation under subsection 33 (1) of the Act would involve, or be likely to involve, a total amount of more than $250 000, the Finance Minister:
                (a)    must ask the persons mentioned in subregulation (3) to give him or her a report on the proposed authorisation, in the capacity of an Advisory Committee; and
               (b)    must not authorise the payment without considering the report of the Advisory Committee.
         (2)   If a proposed waiver under subsection 34 (1) of the Act would involve, or be likely to involve, a total amount of more than $250 000, the Finance Minister:
                (a)    must ask the persons mentioned in subregulation (3) to give him or her a report on the proposed authorisation, in the capacity of an Advisory Committee; and
               (b)    must not authorise the payment without considering the report of the Advisory Committee.
         (3)   The persons are:
                (a)    either:
                          (i)    the Chief Executive Officer of Customs; or
                         (ii)    if the Agency that is responsible for the matter on which the Committee has to report is the Australian Customs Service — a Chief Executive nominated by the Finance Minister; and
               (b)    either:
                          (i)    the Secretary to the Department of Finance and Deregulation; or
                         (ii)    if the Agency that is responsible for the matter on which the Committee has to report is the Department of Finance and Deregulation — a Chief Executive nominated by the Finance Minister; and
                (c)    either:
                          (i)    the Chief Executive of the Agency that is responsible for the matter on which the Committee has to report; or
                         (ii)    if there is no Agency responsible for the matter — a Chief Executive nominated by the Finance Minister.
         (4)   A member of an Advisory Committee may appoint a deputy to act in his or her place.
         (5)   An Advisory Committee may prepare its report without having a meeting.
30            Finance Minister may approve payments pending probate etc
         (1)   If, at the time of a person’s death, the Commonwealth owed an amount to the person, the Finance Minister may authorise payment of that amount to the person who the Minister considers should receive the payment.
         (2)   The Minister may authorise the payment without requiring production of probate of the will of the deceased person or letters of administration of the estate of the deceased person.
         (3)   In deciding who should be paid, the Finance Minister must have regard to the persons who are entitled to the property of the deceased person under the deceased person’s will or under the law relating to the disposition of the property of deceased persons.
         (4)   Subject to subregulation (5), after the payment is made, the Commonwealth has no further liability in respect of the payment.
         (5)   This regulation does not relieve the recipient from a liability to deal with the money in accordance with law.
         (6)   This regulation does not have the effect of appropriating the CRF for the purposes of payments under this regulation.
         (7)   This regulation extends to a case in which the deceased person died before the commencement of this regulation.
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.