Public Bodies (Performance and Accountability) Amendment Act

Link to law: http://www.palemene.ws/new/wp-content/uploads/01.Acts/Acts%202005/Public_Bodies_Performance_and_Accountability_Amendment_Act_2005_-_Eng.pdf
Published: 2005

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2005, No.5

AN ACT to amend the Public Bodies (Performance and
Accountability) Act 2001. [22nd
April 2005]
16 Public Bodies (Performance and 2005, No.5
Accountability) Amendment

BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:-

1. Short title and commencement-(1) This Act may be
cited as the Public Bodies (Performance and Accountability)
Amendment Act 2005 and shall be read with and form part of
the Public Bodies (Performance and Accountability) Act 2001
(the Principal Act).
(2) This Act shall commence on the date of assent by the
Head of State.
(3) Notice of commencement of this Act shall be published
in Samoan and English in the Savali and one other newspaper
circulating in Samoa.

2. Long title - The Principal Act is amended by:
(a) deleting the words “the provision of” in paragraph
(a) of the long title; and
(b) deleting paragraph (d) of the long title and
substituting the following:
“(d) Provide support for Shareholding Ministers on
matters relating to Public Bodies.”

3. Interpretation - Section 2 of the Principal Act is
amended:
(1) By deleting the definition “Governing legislation” and
substituting the following:
“Empowering Act” means an Act which provides for the
establishment, purposes, functions and governance
of an individual public body;”.
(2) By deleting the definition “Public Body” and
substituting the following:
“Public Body” means an organisation (whether called
state-owned enterprise or otherwise under any other
Act) that is listed in Schedule 4 of the Public
Finance Management Act 2001 or is deemed to be a
2005, No.5 Public Bodies (Performance and 17
Accountability) Amendment

public body under section 91 of the Public Finance
Management Act 2001 and shall include a subsidiary
of the Public Body and includes the organisations
listed in Schedule 1 of this Act;”.
(3) By deleting the definition “Public Beneficial Body” and
substituting the following:
“Public Beneficial Body” means an organisation that
exists mainly for the provision of service to the
community in accordance with government policy
and includes the organisations listed in Part B of
Schedule 1 of this Act and any subsidiary of a Public
Beneficial Body;”.
(4) By deleting the definition “Public Trading Body” and
substituting the following:
“Public Trading Body” means an organisation that exists
mainly for the purpose of optimising returns on
investment of public funds and includes the
organisations listed in Part A of Schedule 1 of this
Act and any subsidiary of a Public Trading Body;”.
(5) By deleting the definition “Shareholding Ministers” and
substituting the following:
“Shareholding Ministers” means the Minister of Finance
and the Responsible Minister and, where the
Minister of Finance is also the Responsible Minister,
a Minister who is approved by Cabinet to be a
Shareholding Minister for the purpose of this Act;”.
(6) By deleting the word “bare” in paragraph (c)(ii) of the
definition “Shares” and substituting the word “bear”.
(7) By deleting the words “Schedule 1 provides the list of
Public Bodies” in subsection (2).

4. Transfer to the Companies Act 2001 - Section 5 of the
Principal Act is deleted and the following substituted:
18 Public Bodies (Performance and 2005, No.5
Accountability) Amendment

“5. Transfer to the Companies Act 2001-(1) Despite
the provisions of any other law and subject to subsection
(2), each Public Trading Body shall register as a company
under the Companies Act 2001 at a time and in such form of
registration as determined by the Minister of Finance.
(2) A Public Trading Body which is incorporated as a
mutual society shall not be required to comply with
subsection (1) but, despite the provisions of any other law,
shall comply with the provisions of this Act as if the
Shareholding Ministers were the major shareholders of the
Public Trading Body. For the purposes of this Act, Samoa
National Provident Fund, Samoa Life Assurance
Corporation and Accident Compensation Corporation are
mutual societies.
(3) Save for the organisations referred to in subsection
(2), each Public Trading Body shall have Articles of
Incorporation under the Companies Act 2001 and such
Articles of Incorporation shall be the Articles of
Incorporation in Schedule 7 of this Act with such
amendments and modifications as may be approved by the
Shareholding Ministers on the advice of the Financial
Secretary.
(4) Despite the provisions of any other law:
(a) If there is any inconsistency between an
individual public trading body's empowering
Act, the Companies Act 2001, the Public
Finance Management Act 2001 and this Act,
the provisions of this Act shall prevail to the
extent of the inconsistency;
(b) If there is any inconsistency between an
individual public trading body's empowering
Act, the Companies Act 2001 and the Public
Finance Management Act 2001, the
provisions of the Public Finance
Management Act 2001 shall prevail to the
extent of the inconsistency;
2005, No.5 Public Bodies (Performance and 19
Accountability) Amendment

(c) If there is any inconsistency between an individual
public trading body's empowering Act and the
Companies Act 2001, the Companies Act 2001
shall prevail to the extent of the inconsistency;
(d) If there is any inconsistency between the Companies
Act 2001 and a public trading body's Articles of
Incorporation the provisions of the Articles of
Incorporation shall prevail to the extent of the
inconsistency."

5. Ministerial Shareholding - Section 6 of the Principal
Act is amended:
(1) By deleting subsection (1) and substituting the
following:
“(1) Shares in a Public Trading Body held by Share-
holding Ministers are:
(a) held ex officio on behalf of the Independent State of
Samoa; and
(b) to be registered in accordance with paragraph (a).”
(2) By deleting from subsection (4) all words after the word
“purpose”.
(3) By deleting subsection (5) and substituting the
following:
“(5) The Responsible Minister is responsible to
Parliament for the performance of Public Bodies under the
Minister's portfolio.”
(4) By deleting from subsection (7) the words “Responsible
Minister” and substituting the words “Shareholding Ministers”.

6. Principal objective to be a successful business - The
Principal Act is amended by deleting section 8 and substituting
the following:
20 Public Bodies (Performance and 2005, No.5
Accountability) Amendment

“8. Principal objective to be a successful business - Subject to the Companies Act 2001, the principal objective
of every Public Trading Body shall be to operate as a
successful business and, to this end:
(a) Be as profitable and efficient as comparable
businesses that are not owned by the State; and
(b) Meet any community service obligations established
under Part III of the Act; and
(c) Comply with the provisions of the Labour and
Employment Act 1972, notwithstanding the
provisions of that Act; and
(d) Be an organisation that exhibits a sense of social
responsibility by having regard to the interests of
the community in which it operates.”

7. Definition of Community Service Obligation - Section
9(1) of the Principal Act is amended:
(1) By deleting paragraph (c) and substituting the following:
“(c) the forbearance by a Public Trading Body to
exercise a right or entitlement on normal
commercial terms applying from time to time.”
(2) By deleting paragraph (d).

8. Minister may direct Community Service Obligation - Section 10(a) of the Principal Act is amended by deleting the
word “universal”.

9. Principal objective to be a successful Public Beneficial
Body – The Principal Act is amended by deleting section 14
and substituting the following:
“14. Principal objective to be a successful Public
Beneficial Body - The principal objective of every Public
Beneficial Body shall be to provide service to its users and
to this end:
(a) Meet the purposes and objectives of its empowering
Act; and
2005, No.5 Public Bodies (Performance and 21
Accountability) Amendment

(b) Operate in as efficient and effective manner as
comparable organisations that are not owned by
the State; and
(c) Comply with the provisions of the Labour and
Employment Act 1972, notwithstanding the
provisions of the Act; and
(d) Be an organisation that exhibits a sense of social
responsibility by having regard to the interests of
the community in which it operates.”

10. Role of Directors of Public Trading Bodies - The
Principal Act is amended by deleting section 16 and substituting
the following:
“16. Role of Directors of Public Trading Bodies - Every director of a Public Trading Body shall:
(a) ensure that the Public Trading Body complies with
the provisions of the Companies Act 2001 and
the provisions of this Act, to the extent that they
are applicable; and
(b) comply with the requirements of Schedule 8
(Directors' Roles and Responsibilities) in so far
as such requirements apply to a director of a
Public Trading Body.”

11. Decisions by Directors of Public Trading Bodies - Section 17 of the Principal Act is amended:
(1) By deleting the words “section 8 of the Act” in
subsection (1) and substituting the words “this Act”.
(2) By deleting the word “act” in subsection (2) and
substituting the word “Act”.
(3) By deleting the words “section 8 of the” in subsection
(2) and substituting the word “this”.

12. Role of Directors of Public Beneficial Bodies - The
Principal Act is amended by deleting section 18 and substituting
the following:
22 Public Bodies (Performance and 2005, No.5
Accountability) Amendment

“18. Role of Directors of Public Beneficial Bodies - Every Director of a Public Beneficial Body shall:
(a) ensure that the Public Beneficial Body provides
service to its users in accordance with section 14;
and
(b) comply with the requirements of Schedule 8
(Directors' Roles and Responsibilities) in so far
as such requirements apply to a director of a
Public Beneficial Body.”

13. Decisions by Directors of Public Beneficial Bodies - Section 19 of the Principal Act is amended by deleting the word
“excellent” in subsections (1) and (2).

14. Declaration of Pecuniary Interests and Convictions - Section 20 of the Principal Act is amended:
(1) By deleting subsection (1) and substituting the
following:
“(1) Every director of a Public Body shall, prior to a
date determined by the Minister of Finance by Notice, and
annually thereafter by 30th
June, provide a Declaration of
Pecuniary Interests and Convictions, in the form provided in
Schedule 4 of the Act, to:
(a) The Shareholding Ministers; and
(b) The Controller and Chief Auditor; and
(c) The Financial Secretary; and
(d) The Registrar of Companies (in the case of directors
of Public Trading Bodies); and
(e) The officer exercising the functions of secretary (or
its equivalent howsoever called) of the public
body of which the director is a director.”
(2) By deleting subsection (3) and substituting the
following:
“(3) Each Declaration of Pecuniary Interests and
Convictions shall be available for public inspection at the
office of the Registrar of Companies (in the case of a Public
2005, No.5 Public Bodies (Performance and 23
Accountability) Amendment

Trading Body) on payment of a fee set by the Registrar of
Companies and at the office of the Public Body during
normal business hours, on payment of a fee set by the
Minister of Finance.”
(4) By deleting subsection (4) and substituting the
following:
“(4) The Registrar of Companies (in the case of a Public
Trading Body) and the officer exercising the functions of
secretary (or its equivalent howsoever called) of the Public
Body shall keep a register of Pecuniary Interests and
Convictions to enable the public to exercise their rights
under subsection (3).”

15. Corporate Plan - Section 22 of the Principal Act is
amended:
(1) By deleting subsection (1) and substituting the
following:
“(1) The Board of Directors of each Public Body shall
prepare a Corporate Plan in accordance with instructions
issued by the Financial Secretary from time to time and
shall forward a copy of the draft Corporate Plan to each
Shareholding Minister, the Controller and Chief Auditor and
the Financial Secretary prior to the commencement of each
financial year.”
(2) By deleting subsection (3) and substituting the
following:
“(3) The approval process for the Corporate Plan is set
out in Schedule 5.”
(3) By deleting subsections (4) and (5).
(4) By deleting subsection (6) and substituting the
following:
“(4) The Statement of Corporate Objectives referred to
in subsection (2), once approved, shall be laid before the
Legislative Assembly by the Responsible Minister within 14
24 Public Bodies (Performance and 2005, No.5
Accountability) Amendment

days of the approval of the Public Body's Corporate Plan, or
where the Legislative Assembly is not sitting, at the
commencement of the next sitting.
(5) The Public Body shall forward a copy of the
approved Corporate Plan to the Controller and Chief
Auditor.”

16. Financial Reports, Accounts and Information - The
Principal Act is amended by deleting section 23 and substituting
the following:
“23. Reports and Financial Statement - Each Public
Body shall prepare reports and financial statements in
accordance with the requirements of Schedule 6 and shall
forward such reports and financial statements in the manner
provided in Schedule 6.”

17. Director liable to be dismissed - Section 25 of the
Principal Act is amended by deleting the words “any governing
legislation” and substituting the words “an empowering Act,
Cabinet acting on the advice of”.

18. Controller and Chief Auditor to be auditor of Public
Bodies - Section 27 of the Principal Act is amended:
(1) By deleting the words “governing legislation” from
subsection (1) and substituting the words “empowering Act”.
(2) By deleting the word “prescribed” from subsection (2)
and substituting the word “set”.
(3) By deleting subsection (3) and substituting the
following:
“(3) The Controller and Chief Auditor may contract out
the Controller and Chief Auditor's functions under this
section.”

19. Support for Shareholding Ministers - The Principal
Act is amended by deleting Part VII and substituting the
following:
2005, No.5 Public Bodies (Performance and 25
Accountability) Amendment

Part VII
SUPPORT FOR SHAREHOLDING MINISTERS

“28. Support by the Financial Secretary-(1) The
Financial Secretary shall provides Shareholding
Ministers with:
(a) advice concerning Corporate Plans, Statements of
Corporate Objectives and financial reports ; and
(b) analysis, advice and information concerning the
performance of any Public Body and compliance
with the Act by any Public Body or person; and
(c) advice on expenditure, advances, credit support and
guarantees to be made, sought or provided in
relation to a Public Body; and
(d) financial, commercial and public policy analysis and
advice in relation to Public Bodies and in
relation to corporatisation and/or privatisation of
Public Bodies; and
(e) advice on the appointment of directors and boards of
Public Bodies so as to encourage and enhance
efficiencies and service delivery; and
(f) information and advice in relation to best practice by
Public Bodies so as to encourage and enhance
efficiencies and service delivery; and
(g) other information and advice as requested by a
Shareholding Minister.
(2) The Financial Secretary shall be responsible for
monitoring the performance of Public Bodies on behalf of
the Shareholding Ministers and advising them in respect of
the Government’s investment in Public Bodies.
(3) The Financial Secretary may from time to time issue
instructions as deemed necessary or expedient to give full
effect to this Act and for the administration thereof and,
without limiting this section, such instructions may cover:
(a) Government policy, including policies on dividends
and investments;
26 Public Bodies (Performance and 2005, No.5
Accountability) Amendment

(b) The form and content of Corporate Plans; and
(c) The form and content of Annual Reports.
(4) Public Bodies shall observe any instructions
issued by the Financial Secretary under subsection (3).”

20. Powers - Section 30 of the Principal Act is amended by
inserting the word “lawful” after the words “power to do all”.

21. Delegation - Section 31 of the Principal Act is amended
by deleting the words “save for this power of delegation”.

22. Regulations - Section 32 of the Principal Act is
amended:
(1) By inserting the expression “(l)” following the heading
to the section.
(2) By deleting subsection 1(a) and substituting the
following:
“(a) Required or permitted by the Act to be prescribed
including amendment of, or addition to, the
Schedules; or”
(3) By inserting the following after subsection (1):
“(2) All regulations made under this section shall be laid
before the Legislative Assembly by the Minister of Finance
within 14 days of the date of the making thereof if the
Legislative Assembly is then in session, and if not, at the
commencement of the next session.”

23. Other amendments - The Principal Act is amended:
(1) By deleting sections 2(3), 2(4), 12(2), 12(3), 15(4),
15(5), 20(6) and 20(7).
(2) By deleting the Samoan tala amounts for penalties in
sections 13(1), 13(2), 17(2), 19(2) and 21(1).
(3) By deleting the expression “(1)” in section 12.
(4) By deleting the words “governing legislation” in
sections 24 (4) and 26(1) and substituting the words
“empowering Act”.
2005, No.5 Public Bodies (Performance and 27
Accountability) Amendment

24. Schedules-(1) The Principal Act is amended:
(1) By deleting the heading “Corporate Plan” from Schedule
5 and substituting the heading “Approval Process for Corporate
Plans”.
(2) By inserting the following after Schedule 6:

“Schedule 7
Model Articles

Schedule 8
Directors’ Roles and Responsibilities”.


__________

The Public Bodies (Performance and Accountability) Amendment
Act 2005 is administered in the Ministry of Finance

















Printed by the Clerk of the Legislative Assembly,
by authority of the Legislative Assembly.