General provisions about definitions, offences and civil penalties
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Definitions
In this Act, unless the contrary intention appears:
bank means:
(a)
a person who carries on the business of banking, either in Australia or outside Australia; or
(b)
any other institution:
(i)
that carries on a business in Australia that consists of or includes taking money on deposit; and
(ii)
the operations of which are subject to prudential supervision or regulation under a law of the Commonwealth, a State or a Territory.
books includes:
(a)
a register; and
(b)
any other record of information; and
(c)
financial reports or financial records, however compiled, recorded or stored; and
(d)
a document.
civil penalty provision has the meaning given by subclause 1(1) of Schedule 2.
Commonwealth authority has the meaning given by section 7.
Commonwealth company has the meaning given by section 34.
consolidated financial statements, in relation to a Commonwealth authority or Commonwealth company, means financial statements for the group
consisting of:
(a)
the authority or company; and
(b)
the entities that were subsidiaries at any relevant time.
Corporations Act company means a body corporate that is incorporated, or taken to be incorporated, under the Corporations Act 2001.
court means any court exercising jurisdiction under this Act.
Court means:
(a)
the Federal Court of Australia; or
(b)
the Supreme Court of a State or Territory.
director means:
(a)
for a Commonwealth authority that has a council or other governing body—a member of the governing body; or
(b)
for a Commonwealth authority that does not have a council or other governing body—a member of the authority; or
(c)
for a Commonwealth company—a person who is a director of the company for the purposes of the Corporations Act 2001.
enabling legislation, in relation to a Commonwealth authority, means the Act, regulations or Ordinance under which the authority is incorporated.
Finance Minister means the Minister who administers this Act.
Finance Minister’s Orders means Orders made under section 48.
financial statements includes consolidated financial statements.
financial year:
(a)
means, for a Commonwealth authority:
(i)
a period of 12 months commencing on 1 July; or
(ii)
if the incorporating law specifies another period of 12 months as the financial year for the authority for the purpose of this Act—a period of 12 months as so specified; and
(b)
means, for a Commonwealth company, the company’s annual accounting period.
GBE or government business enterprise means a Commonwealth authority or Commonwealth company that is prescribed by the regulations for the purpose of this definition.
incorporating law, in relation to a Commonwealth authority, means the Act, regulations or Ordinance by which the authority is incorporated.
involved: a person is involved in a contravention if, and only if, the person has:
(a)
aided, abetted, counselled or procured the contravention; or
(b)
has induced, whether by threats or promises or otherwise, the contravention; or
(c)
has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)
has conspired with others to effect the contravention.
Minister includes the President of the Senate and the Speaker of the House of Representatives.
officer, in relation to a Commonwealth authority, means:
(a)
a director of the authority; or
(b)
any other person who is concerned in, or takes part in, the management of the authority.
responsible Minister means:
(a)
for a Commonwealth authority—the Minister who is responsible for the authority; or
(b)
for a Commonwealth company:
(i)
the Minister who is prescribed by the regulations as the Minister responsible for the company; or
(ii)
if no Minister is prescribed—the Minister who is responsible for the company.
SMA or statutory marketing authority means a Commonwealth authority that is prescribed by the regulations for the purpose of this definition.
subsidiary, in relation to a Commonwealth authority or Commonwealth company, means an entity that is controlled by the Commonwealth authority or Commonwealth company. For this purpose, entity and control have the same meanings as in the accounting standard that applies for the purpose of deciding whether a company has to prepare consolidated financial statements under the Corporations Act 2001.
wholly‑owned Commonwealth company has the meaning given by section 34.
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Offences and civil penalties
(1)
Chapter 2 of the Criminal Code applies to all offences against this Act.
(2)
Schedule 2 deals with the civil consequences of contravening civil penalty provisions.
(2)
A maximum penalty that is specified:
(a)
at the foot of a section of this Act (other than a section that is divided into subsections); or
(b)
at the foot of a subsection of this Act;
indicates that a person who contravenes the section or subsection is guilty of an offence against the section or subsection that is punishable, on conviction, by a penalty up to that maximum.
Note:1
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note:2
If the specified penalty is imprisonment only, section 4B of the Crimes Act 1914 allows the court to impose a fine instead of imprisonment or in addition to imprisonment.
(4)
A maximum penalty that is specified:
(a)
at the foot of a clause of a Schedule to this Act (other than a clause that is divided into subclauses); or
(b)
at the foot of a subclause of a Schedule to this Act;
indicates that a person who contravenes the clause or subclause is guilty of an offence against the clause or subclause that is punishable, on conviction, by a penalty up to that maximum.
Note:1
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note:2
If the specified penalty is imprisonment only, section 4B of the Crimes Act 1914 allows the court to impose a fine instead of imprisonment or in addition to imprisonment.
Reporting and other obligations for Commonwealth authorities
Division 1
Preliminary
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Meaning of Commonwealth authority
(1)
In this Act, Commonwealth authority means either of the following kinds of body that holds money on its own account:
(a)
a body corporate that is incorporated for a public purpose by an Act;
(b)
a body corporate that is incorporated for a public purpose by:
(i)
regulations under an Act; or
(ii)
an Ordinance of an external Territory (other than Norfolk Island) or regulations under such an Ordinance;
and is prescribed for the purposes of this paragraph by regulations under this Act.
(2)
None of the following are Commonwealth authorities:
(a)
Corporations Act companies;
(b)
corporations registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006;
(c)
associations of employees that are organisations within the meaning of Schedule 1B to the Workplace Relations Act 1996.
(3)
For the purposes of subsection (1), all money that a body holds is taken to be held by it on its own account, unless the money is public money as defined in section 5 of the Financial Management and Accountability Act 1997.
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Role of Auditor‑General
(1)
The Auditor‑General is to be the auditor of each Commonwealth authority.
(2)
The Auditor‑General is to audit the financial statements of each subsidiary of a Commonwealth authority (there are exceptions to this—see subsection 12(4)).
Note:
If the Auditor‑General is not the subsidiary’s auditor, this means that the Auditor‑General has to do an audit of the statements in addition to that done by the subsidiary’s auditor.
Division 2
Reporting obligations
Subdivision A
Annual report and related obligations
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Directors must prepare annual report
(1)
The directors of a Commonwealth authority must:
(a)
prepare an annual report in accordance with Schedule 1 for each financial year; and
(b)
give it to the responsible Minister by the deadline for the financial year.
The deadline is the 15th day of the 4th month after the end of the financial year.
Note:
The deadline will be 15 October if the financial year ends on 30 June. Financial year is defined in section 5.
(2)
The responsible Minister may grant an extension of time in special circumstances.
(3)
The responsible Minister must table the report in each House of the Parliament as soon as practicable.
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Modified requirements for first year of existence
(1)
If a Commonwealth authority is established during the last 3 months of a financial year:
(a)
the directors are not required to prepare an annual report for that financial year; and
(b)
the period from the time of establishment to the end of the financial year must be dealt with in the next annual report.
(2)
If a Commonwealth authority is established during the first 9 months of a financial year, the annual report for the financial year must cover the period from the time of establishment to the end of the financial year.
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Contravention of annual report rules by directors
(1)
If a directors reporting rule is contravened, each director who:
(a)
caused the contravention; or
(b)
failed to take all reasonable steps to comply with the rule, or secure compliance with the rule;
contravenes this subsection.
Note:
This is a civil penalty provision and Schedule 2 sets out the civil and criminal consequences of contravening it.
(2)
If a contravention of a directors reporting rule consists of an omission from the financial statements, it is a defence if the defendant proves that the information omitted was immaterial and did not affect the giving of a true and fair view of the matters required by the Finance Minister’s Orders to be included in the statements.
(3)
In this section:
directors reporting rule means subsection 9(1) or any of the requirements of Schedule 1 that impose obligations on the directors.
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Audit of relevant subsidiary’s financial statements
(1)
Subject to subsection (4), the directors of a Commonwealth authority must do whatever is necessary to ensure that all relevant subsidiary’s financial statements are audited by the Auditor‑General.
(2)
For a subsidiary that is a Corporations Act company that, under the Corporations Act 2001, is required to have those statements audited, the Auditor‑General’s report on the subsidiary’s financial statements must be prepared using the relevant rules in the Corporations Act 2001. Those rules must also be used for other subsidiaries, so far as is practicable.
(3)
The Auditor‑General must give the report to the responsible Minister, together with a copy of the relevant subsidiary’s financial statements.
(4)
Relevant financial statements of a subsidiary do not have to be audited by the Auditor‑General if:
(a)
the subsidiary is incorporated or formed in a place outside Australia; and
(b)
either:
(i)
under the law applying to the subsidiary in that place, the Auditor‑General cannot be appointed as auditor of the subsidiary; or
(ii)
in the Auditor‑General’s opinion, it is impracticable or unreasonable for the Auditor‑General to audit, or to be required to audit, the statements.
(5)
In this section:
relevant subsidiary’s financial statements, in relation to a Commonwealth authority, means financial statements of an entity for an annual accounting period of the entity, where the entity is a subsidiary of the authority at the end of that accounting period.
Subdivision B
Other reporting obligations
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Interim reports
(1)
The Finance Minister may, by notice in the Gazette, require particular Commonwealth authorities or a class of Commonwealth authorities to give the responsible Minister either:
(a)
an interim report for the first 6 months of a financial year; or
(b)
an interim report for each of the following periods:
(i)
the first 3 months of each financial year;
(ii)
the first 6 months of each financial year;
(iii)
the first 9 months of each financial year.
(2)
The interim report must include:
(a)
a report of operations, prepared by the directors in accordance with the Finance Minister’s Orders; and
(b)
financial statements, prepared by the directors in accordance with the Finance Minister’s Orders; and
(c)
a report prepared by the Auditor‑General in accordance with the regulations.
(3)
The directors must give the interim report to the responsible Minister within 2 months after the end of the period to which the report relates.
(4)
The responsible Minister may grant an extension of time in special circumstances.
(5)
The responsible Minister must table the interim report in each House of the Parliament as soon as practicable.
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Estimates
(1)
The directors of a Commonwealth authority (other than a GBE) must prepare budget estimates for each financial year, and for any other periods directed by the responsible Minister.
(2)
The estimates:
(a)
must be in the form required by the responsible Minister; and
(b)
must be given to the responsible Minister within the time required by the responsible Minister.
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Responsible Minister to be notified of significant events
(1)
If a Commonwealth authority, or any of its subsidiaries, proposes to do any of the following things, the directors of the Commonwealth authority must immediately give the responsible Minister written particulars of the proposal:
(a)
form a company or participate in the formation of a company;
(b)
participate in a significant partnership, trust, unincorporated joint venture or similar arrangement;
(c)
acquire or dispose of a significant shareholding in a company;
(d)
acquire or dispose of a significant business;
(e)
commence or cease a significant business activity;
(f)
make a significant change in the nature or extent of its interest in a significant partnership, trust, unincorporated joint venture or similar arrangement.
(2)
The responsible Minister may in writing exempt the directors of a Commonwealth authority from the requirement to notify matters covered by paragraph (1)(a). The exemption may be granted subject to conditions.
(3)
The responsible Minister may give written guidelines to the directors that are to be used by the directors in deciding whether a proposal is covered by paragraph (1)(b), (c), (d), (e) or (f).
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Keeping responsible Minister and Finance Minister informed
(1)
The directors of a Commonwealth authority must:
(a)
keep the responsible Minister informed of the operations of the authority and its subsidiaries; and
(b)
give the responsible Minister such reports, documents and information in relation to those operations as the responsible Minister requires; and
(c)
give the Finance Minister such reports, documents and information in relation to those operations as the Finance Minister requires.
(2)
The directors must comply with requirements under paragraphs (1)(b) and (c) within the time limits set by the Minister concerned.
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Corporate plan for GBE
(1)
This section applies to a Commonwealth authority that is a GBE.
(2)
The directors must prepare a corporate plan at least once a year and give it to the responsible Minister.
(3)
The plan must cover a period of at least 3 years.
(4)
If the Commonwealth authority has subsidiaries, the plan must cover both the authority and its subsidiaries. In particular, for each subsidiary the plan must include details of the matters in subsection (6), so far as they are applicable.
(5)
The directors must keep the responsible Minister informed about:
(a)
significant changes to the plan; and
(b)
matters that arise that might significantly affect the achievement of the objectives in the plan.
(6)
The plan must include details of the following matters (so far as they are applicable):
(a)
the objectives of the authority;
(b)
assumptions about the business environment in which the authority operates;
(c)
the business strategies of the authority;
(d)
the investment and financing programs of the authority, including strategies for managing financial risk;
(e)
financial targets and projections for the authority;
(f)
the dividend policy of the authority;
(g)
non‑financial performance measures for the authority;
(h)
community service obligations of the authority and the strategies and policies the authority is to follow to carry out those obligations;
(i)
review of performance against previous corporate plans and targets;
(j)
analysis of factors likely to affect achievement of targets or create significant financial risk for the authority or for the Commonwealth;
(k)
price control and quality control strategies for goods or services supplied by the authority under a monopoly;
(l)
human resource strategies and industrial relations strategies.
(7)
The plan must also cover any other matters required by the responsible Minister (which may include further details about the matters in subsection (6)).
(8)
The responsible Minister may give written guidelines to the directors that are to be used by the directors in deciding which matters are covered by subsection (5).
