Public Bodies (Performance and Accountability) Amendment Act 2015

Link to law: http://www.palemene.ws/new/wp-content/uploads/01.Acts/Acts%202015/Public-Bodies-Performance-and-Accountability-Amendment-Act-2015-Eng.pdf

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rangement of Provisions

1. Short title and commencement
2. Section 2 amended
3. New section 22A inserted
4. Section 23 amended
5. New sections 23A and 23B
inserted
6. Section 26 amended
7. New section 27A inserted
8. New Part VIIA inserted
9. Consequential amendments to
the Public Finance
Management Act 2001
10. General amendments

Schedule

__________

2015, No. 2

AN ACT to amend the Public Bodies (Performance and
Accountability) Act 2001 (“principal Act”).
[28th
January 2015]

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 2015.
(2) This Act is taken to have commenced on 25 April 2014
and as such has retrospective effect.


2 Public Bodies (Performance and 2015, No. 2
Accountability) Amendment

2. Section 2 amended - For section 2 of the principal Act:
(a) for the definitions of “responsible Minister” and
“public body”, substitute:
““responsible Minister” means the Minister for Public
Enterprises;
“public body” means an organisation (whether called a
state-owned enterprise or otherwise under any other
enactment) that is:
(a) listed in Schedule 1; or
(b) deemed a public body if the Government -
(i) has more than 50% of membership
on the board of directors of the corporation;
or
(ii) controls more than 50% of the
voting power on the board of directors of
the corporation; or
(iii) holds more than 50% of the issued
share capital of the corporation either
directly or through other public bodies
(excluding any part of it that carries no
right to participate beyond a specific
amount in a distribution of either profits or
capital); and
(c) includes a subsidiary of a public body; but
(d) does not include the Central Bank of Samoa.”;

(b) insert the following definitions in their correct
alphabetical positions:
““chief executive” means the person appointed as the chief
executive (however called) of a public body, and
includes a person appointed as the acting chief
executive of a public body;
“Chief Executive Officer” means the Chief Executive
Officer of the Ministry;

2015, No. 2 Public Bodies (Performance and 3
Accountability) Amendment

“Financial Secretary” has the same meaning in section 2
of the Public Finance Management Act 2001;
“Ministry” means the Ministry for Public Enterprises;”.

3. New section 22A inserted - After section 22 of the
Principal Act, insert:

“22A. Budget and appropriation-(1) This section applies
when a public body requests the Government for a grant,
subsidy, guarantee or other similar assistance.
(2) The Chief Executive Officer and the Financial
Secretary may, within a time specified by them, require the
chief executive to submit its corporate plan for the following
financial year, as its justification for the request to be
considered for preparing its estimates.
(3) A public body to which this section applies shall, no
later than three (3) months before the end of the Government’s
financial year, submit to the Chief Executive Officer and the
Financial Secretary estimates of its receipts, expenditures and
cash flows for the following Government’s financial year, in a
form approved by the Financial Secretary.
(4) If money is appropriated by Parliament for the
purposes of a public body, the money is payable at any time
and in any amounts determined by the Financial Secretary.”.

4. Section 23 amended - In section 23 of the Principal Act:
(a) before the word “A” insert “(1)”; and
(b) after “Schedule 6” insert:
“(2) The chairperson of a Board shall, by notice,
immediately advise the Shareholding Ministers and the
Responsible Minister upon becoming aware of any
information or event, which may materially affect the
financial position of the public body.
(3) The notice shall:
(a) be in writing;
(b) specify the nature of the information or event;


4 Public Bodies (Performance and 2015, No. 2
Accountability) Amendment

(c) quantify when practicable the possible and likely
effects of the information or event on the
public body; and
(d) specify what steps have been taken, or are being
taken or proposed, to rectify any adverse
effects.
(4) If the chairperson of a Board is the Minister or the
Responsible Minister, the Board shall, by ordinary resolution,
appoint another director to advise under subsection (2).”.

5. New sections 23A and 23B inserted - After section 23 of
the Principal Act, insert:

“23A. Records and accounts - A public body shall:
(a) keep proper accounts and records of its transactions
and financial position -
(i) in such a way so as to facilitate the
preparation of financial statements and
enable the statements to be conveniently
and properly audited as required in
Schedule 6; and
(ii) pursuant to generally accepted
accounting principles and practice and
other requirements under any other relevant
enactment; and
(iii) for a period of seven (7) years after
completion of the transactions to which
they relate; and
(b) maintain adequate control over its assets, or assets
in its custody, and over the incurring of
liabilities by it; and
(c) do any other thing necessary to ensure that all
payments out of its money are correctly made
and properly authorised.


2015, No. 2 Public Bodies (Performance and 5
Accountability) Amendment

23B. Bank accounts - A public body shall:
(a) maintain at least one (1) bank account; and
(b) subject to section 28(E)(2), pay all its moneys into
a bank account maintained under paragraph
(a).”.

6. Section 26 amended - In section 26 of the principal Act
after subsection (1), insert:

“(1A) Despite subsection (1), the Financial Secretary or
the Chief Executive Officer may carry out a performance
review or initiate an investigation into, or inspection of, the
records of a public body, if the Financial Secretary or the
Chief Executive Officer considers it appropriate or has reason
to believe:
(a) that a public body has or may have failed to
implement the corporate plan as submitted
under section 22; or
(b) that there may have been an irregularity in the
management of money or property in the
ownership or custody of the public body.”.

7. New section 27A inserted - After section 27 of the
Principal Act, insert:
“27A. Reporting of suspected offence-(1) This section
applies to a person who has knowledge of any circumstances
which may cause the person to consider that a public body has
or may have failed to implement the corporate plan as
submitted under section 22 or that there has been an
irregularity in the management of money or property in the
ownership or custody of a public body.
(2) A person to whom this section applies shall:
(a) in writing, report those circumstances to the
Financial Secretary and either shareholding
Ministers; and
(b) send a copy of the report to the Chief Executive
Officer.

6 Public Bodies (Performance and 2015, No. 2
Accountability) Amendment

(3) A person who in good faith alleges a breach of the Act
under subsection (1) is immune from civil suit and shall not be
penalised in any way (whether the allegation is proved or not)
because of the person’s actions in reporting the matter.”.
8. New Part VIIA inserted - After section 28 of the principal
Act, insert:
“PART VIIA
LOANS, ETC., PROCUREMENT
AND CONTRACTS

28A. Loans by the State - The Government may, on
behalf of the State, lend money to a public body, under section
86 of the Public Finance Management Act 2001.

28B. On-lending by the State-(1) Subject to the terms of
the relevant loan agreement entered into by the State under
section 79 of the Public Finance Management Act 2001, the
State may on-lend to a public body for the purposes specified
in the relative loan agreement, any amount of money on any
terms and conditions, specified in the subsidiary loan
agreement.
(2) A subsidiary loan agreement made under this section
must be presented by the Minister to the Legislative Assembly
pursuant to its Standing Orders by delivering it to the Clerk of
the Assembly.
(3) For purposes of this section, “subsidiary loan
agreement” has the same meaning as in section 74 of the
Public Finance Management Act 2001.

28C. Private borrowing and overdrafts-(1) A public
body:
(a) may borrow money for its purposes, on terms
agreed to between the public body and a
lender; and
(b) shall repay the money under the terms of the
borrowing.

2015, No. 2 Public Bodies (Performance and 7
Accountability) Amendment

(2) A public body may borrow for its purposes, by
overdraft, within the limits approved by its Board.
(3) The State or Government is not liable, in any way, for
any borrowing made under this section.

28D. Investment and moneys of public body-(1) Money
of a public body may be applied only in payment or discharge
of expenses, obligations and liabilities of the public body
arising under this Act, the Public Finance Management Act
2001, its empowering Act or any other enactment.
(2) Moneys of a public body that are not immediately
required may be invested:
(a) in any securities of, or guaranteed by, the State; or
(b) in any manner in which a trustee may, under any
law, invest trust moneys; or
(c) on deposit with a bank; or
(d) in an account established under section 59(2) of the
Public Finance Management Act 2001; or
(e) in any other manner approved by the Minister of
Finance.
(3) The Financial Secretary may, by Treasury Instructions,
issue investment guidelines and reporting requirements.
(4) Details of investments in public bodies in which the
Government owns a shareholding must be disclosed in the
financial statements under section 107 of the Public Finance
Management Act 2001.

28E. Contracts for works, supplies and services-(1) A
public body entering into a contract for the acquisition,
disposal or management of goods, services and construction
works must comply with its empowering Act or rules
approved by its Board.
(2) Despite subsection (1), the Financial Secretary may, by
Treasury Instructions or direction, issue procurement
guidelines, subjecting a public body to Part XII of the Public
Finance Management Act 2001.

8 Public Bodies (Performance and 2015, No. 2
Accountability) Amendment

(3) Despite subsection (1), a public body shall comply
with any procurement guideline issued under subsection (2)
instead of any procurement guideline under its empowering
Act or rules approved by its Board.”.

9. Consequential amendments to the Public Finance
Management Act 2001 - For the Public Finance Management
Act 2001:
(a) in section 2, for the definitions of “chief executive”
and “public body” substitute:

““chief executive” has the meaning in the Public Bodies
(Performance and Accountability) Act 2001;
“public body” has the meaning in section 2 of the Public
Bodies (Performance and Accountability) Act 2001;”;

(b) Part XIII is repealed; and
(c) Schedule 4 is repealed.

10. General amendments - General amendments to the
principal Act and other enabling Acts are set out in the Schedule.


Schedule
(section 9)

Part A - Principal Act
Section of
the Principal
Act
Delete/Amend Substitute/Insert
Long Title
(paragraph
(d))
After “Shareholding
Ministers”
Insert: “and the Ministry of
Public Enterprises”
5(1) Delete “at a time and in
such form of registration as
determined by the Minister
of Finance”





2015, No. 2 Public Bodies (Performance and 9
Accountability) Amendment
5(3)

For “shareholding Ministers
on the advice of the
Financial Secretary”
Substitute “responsible
Minister on the advice of
the Chief Executive
Officer”
6(5)

Delete “public bodies under
the Minister’s portfolio”
Substitute “all public
bodies”
7(5) and (6)

Delete “Minister of
Finance”
Substitute “Shareholding
Ministers”

10 Delete “Minister of
Finance”

Substitute “Shareholding
Ministers”
22(1)

22(5)
Delete “Financial Secretary”

Subsection (5) is repealed
Substitute “Chief Executive
Officer”

23

For section heading


Substitute “Reports,
Financial Statements and
Financial activities”
24(1), (2), (5)
and (8)(c)
Delete “Financial Secretary” Substitute “Chief Executive
Officer”
26(1)(a) and
(3) and (4)
and section
heading

26(1)

Delete “Financial Secretary”




Delete “Minister of
Finance”
Substitute “Chief Executive
Officer”



Substitute “Shareholding
Minister”
27(2)


Delete “such rates no
greater than those set by the
Minister of Finance”
Substitute “prescribed by
regulations”.

28 (1) and
section
heading

After “Financial secretary”


After “shall”
Insert “and the Chief
Executive Officer”

Insert “where necessary”
30


After “Financial secretary” Insert “Chief Executive
officer,”
31(1) and
section
heading

31(2)

After “Auditor General”



After “Auditor General”

Insert “the Chief Executive
officer”


Insert “, the Chief Executive
Officer”



10 Public Bodies (Performance and 2015, No. 2
Accountability) Amendment
Schedule 1

Schedule 1
Part A





After “5. Electric Power
Corporation”

After “12. Public Trust
Office”

Renumber accordingly after
inserting the above.


Insert “6. Gambling Control
Authority”

Insert “Samoa International
Finance Authority”
Schedule 2

2.3



Delete “Minister of
Finance”


Substitute “Shareholding
Ministers”
Schedule 3
3.1.1(h)

Delete “Treasury”

Substitute “Ministry”
3.2.2 Delete “Treasury” Substitute “the Ministry”
3.4.3 Delete “Treasury” Substitute “the Ministry”
Schedule 6

6.


After “shall”


Insert “prepare and”
6.1 Delete “Treasury” Substitute “the Ministry”
6.2

Delete “An annual report
and audited accounts to
Treasury no later than 4
months after the end of the
public body’s financial
year”
Substitute:

“An annual report on the
operations of the public
body and a budget
performance for that
financial year together with
audited financial statements
to the Shareholding
Ministers and Ministry
within 4 months after the
end of the public body’s
financial year.”
6.2 After 6.2 Insert:

“6.2A If the Financial
Secretary requires from the
Chief Executive Officer or a
public body any information
relating to any of the
documents submitted under
clause 6.2, the Chief
Executive Officer or that
public body must comply.”

2015, No. 2 Public Bodies (Performance and 11
Accountability) Amendment
6.3 Delete “Treasury” Substitute “The Ministry”
6.4 Delete “Treasury” Substitute “the Ministry”
6.5 Delete “Treasury” Substitute “the Ministry”
6.6 Delete “Treasury” Substitute “the Ministry”
6.7.1 After “Parliament” Insert “immediately if it is
in session, and if not, at the
commencement of the next
following session.”
6.7.2 Delete:

“Where the annual report
and the audited accounts
required by subclause 6.7.1
to be laid before Parliament
have not been so laid within
5 weeks of the responsible
Minister’s receiving them,
the Minister shall cause for
these to be published not
later than 5 weeks after that
day.”
Substitute:

“Once the annual report and
audited accounts required
under clause 6.7.1 are laid
before Parliament, the
responsible Minister shall
publish the same.”
6.7.2

After item 6.7.2 Insert :

“6.7.3 When a public
body’s annual report is
reproduced for publication
or for other purposes, the
financial statements and the
report of the Chief Auditor
General must be included in
the reproduction.
6.7.4 The Ministry may
develop a format to be used
by public bodies for
quarterly and annual
accounts.”.



12 Public Bodies (Performance and 2015, No. 2
Accountability) Amendment

Part B - Other Acts
Act Section Delete/Amend Substitute/Insert
Accident
Compensation
Act 1989
8 and 71



50(3)

After “Minister”



Delete
“Responsible
Minister”
Insert “for Public
Enterprises”


Substitute “Minister
for Public
Enterprises”
Airport
Authority Act
2012
6(3), 30(1)
and (2), 33(2)
and (3), 45(3)
and (4)

47(1) and (2)



47(2)(f)

After “Minister”




Delete “Of
Finance”


After “Minister”

Insert “for Public
Enterprises”



Substitute “for
Public Enterprises”


Insert “for Public
Enterprises”
Development
Bank of Samoa
Act 2010
7, 26(3) and
(4), 28(1),
29(2)(h)

29(2) and (5)


29(1)
After “Minister”



Delete “of
Finance”

Delete “Finance”
Insert “for Public
Enterprises”


Substitute “for
Public Enterprises’

Substitute “Public
Enterprises”
Electric Power
Corporation
Act 1980
18



25(1)(a)




25(4)
After “Minister”



Delete “of
Works, Transport
and
Infrastructure”

After “Minister”
Insert “for Public
Enterprises”


Substitute “for
Public Enterprises”



Insert “for Public
Enterprises”
Housing
Corporation
Act 2010
7, 22(2),
40(3) and (4),
After “Minister” Insert “for Public
Enterprises”

2015, No. 2 Public Bodies (Performance and 13
Accountability) Amendment
Land Transport
Authority Act
2007





5(1)(b), (c)
and (2), 6,
7(1), (2), (3)
and (5), 24(2),
25(1) and (2)

20(2)



23(1)



After “Minister”





Delete “of
Finance”


Delete “Minister”


Insert “for Public
Enterprises”




Substitute “for
Public Enterprises”


Substitute
“Shareholding
Ministers (as
defined in the
Public Bodies
(Performance and
Accountability) Act
2001)”
National
Health Service
Act 2014
17(4) and (5) After “Minister” Insert “for Public
Enterprises”
National
University of
Samoa Act
2006
33(5) After “Minister” Insert “for Public
Enterprises”
National
Kidney
Foundation of
Samoa Act
2005
9(3), (3)(b)
and (8)
After “Minister” Insert “for Public
Enterprises”
National
Provident Fund
Act 1972
18 Section
Heading
Delete “Minister” Substitute
“Shareholding
Ministers”
Public Trust
Office Act 1975
20(1)


20(2)


23 and section
heading

Delete “for
finance”

Delete “of
Finance”

Delete all
references to “of
Finance”
Substitute “for
Public Enterprises”

Substitute “for
Public Enterprises”

Substitute “for
Public Enterprises”


14 Public Bodies (Performance and 2015, No. 2
Accountability) Amendment
Samoa
Qualifications
Authority Act
2010
28(3) and (7) After “Minister” Insert “for Public
Enterprises”
Scientific
Research
Organisation of
Samoa Act
2008
2 for
definition of
“Minister”



17(3)(b)

Delete “the
Minister
responsible for
the administration
of this Act”

Delete “of
Finance”
Substitute “the
Minister for Public
Enterprises”



Substitute “for
Public Enterprises”
Samoa Water
Authority Act
2003
19(2) and (4)
and 20(4) and
(5)
After “Minister” Insert “for Public
Enterprises”
Unit Trust of
Samoa Loans
Act 2013

3(2) and (4) After “Minister” Insert “for Public
Enterprises”
__________

The Public Bodies (Performance and Accountability) Amendment
Act 2015 is administered by the Ministry of Public Enterprises.