IssueResponse from DoFA - PDF document

1 IssueResponse from DoFA General Issues T
IssueResponse from DoFA General Issues Timeliness—guidelines should be provided before the end of p. S32.)—The CAC Act commenced on 1 January 1998—transitional General Issues Such appropriations by a high level description of outcomeshas the potential to conceal payment activities/Executiveactions from Parliament, eg act of grace payments. p. S21.)contributes to each outcome. (2.2.2)The Minister for Finance and Administration approves all act of gracepayments under s33, and details are reported in the annual reports of theagencies making the payments. (2.2.4) surplus money toreturned to the States. pp. S21–2.)The fund accounting structure was made redundant by the accrualthe Solicitor-General considered that the existence of current accrualwould prevent the latter from being characterised as 'surplus revenue' for IssueResponse from DoFA drawn moneyunnecessary drawing against appropriations to accumulatehollow logs of surplus cash. (Mr Kennedy, received money for expenditure. This risks expenditure p. S23.)All public money is required to be held in an official account and mustbe banked promptly. It may only be drawn in accordance with the ruleslaid down in the FMOs. (4.2.1)ou

2 tputs and the precise timing of 'adminis
tputs and the precise timing of 'administered' payments. (4.3.1)The government's cash management arrangement incorporateincentives for any money received for accrued costs to be placed onterm deposit with the Reserve bank. (4.3.2)separation of 'departmental' money, 'drawn' administered money, and'administered' receipts. (4.5.1)Commonwealth form the Consolidated Revenue Fund and that no moneymay be drawn from the 'Treasury' except by appropriation irrespective ofwhether an account is styled 'Consolidated Revenue Fund'. (4.5.2) Financial controlThe legislation should contain a conceptual statement ofthe FMA Act, Regulations and FMOs set out a framework ofpublic money and exercising drawing rights. (5.2.1)Agency's transactions and financial position;scope of the FMA Act are already encompassed by the legislation. (5.3.1) IssueResponse from DoFA computerised payments systems, previously required by p. S203.)Best practice should be promoted outside the formal which are held by contractors. (Parliamentary Departments, p. S150; pp. 20-1.)Under considerationDoFA is currently considering a recommendedlegislative change to allow the Auditor-General to access contractorpremises to ca

3 rry out a performance audit. (6.2.1) FMA
rry out a performance audit. (6.2.1) FMA Act—Specific Issues Chief Executiveofficer/employee(Parliamentary Departments, p. S151.)Commonwealthpublic service terminology in the Public Service Act or private sectorterminology. (7.2.2) between agencies on the implementation of the system of p. S140.)confers a discretion on Chief Executives to allow and manage drawingrights consistent with the agency's operational needs and sound principlesof financial risk management and control. (8.2.1)Consistency across agencies in structuring 'drawing rights' is unnecessary Consultation arrangements between DoFA and FMA Actcurrent or anticipated issues. (ATO, pp. 72should not contain prescriptive consultative or administrative detail on IssueResponse from DoFA Resource agreements effectively eliminate the need for s31exceptional circumstances where no resource agreement p. S42, p. 73.)Section 31 allows the Finance Minister to enter intoagreements for the purposes of 'net appropriations' or 'departmental' or'administered' items in the Appropriations Acts. (10.2.1)DoFA may initiate a review of a specific Agreement at any time. (10.2.2) may approve actpayments.Is it lawful for such a payment

4 from an appropriation that isFMA Act? (M
from an appropriation that isFMA Act? (Mr p. S22.)Responsibility for the administration of Act of GracePayments and the Defective Administration Scheme should p. S188.)Outcome based appropriations are intended to permit theexpenditure of moneys consistent with the stated broad purposes. (11.3.1)Appropriations themselves do not authorise expenditure of public money.Payments need to be approved pursuant to legislationof grace payments, by the Minister for Finance. (11.3.2)s responsibility is consistent with the FinanceMinister's paramount authority over and responsibility for, themanagement of public moneys under the FMA Act. It enhances equity andreviewed following a recent Ombudsmans recommendation. (11.5.1 Orders for the Parliamentary Departments should beParliamentary Departments are already subject to the FMA.Power to approve expenditure is conferred by s44 by implication. Sectionproposals for the Parliamentary Depts, and this may be delegated to IssueResponse from DoFA Commonwealthgovernance arrangements that are in place, similar to the(ANAO, pp. S56for, it could specify to whom the chief executive is p. S142.)The FMA Act does not cover annual report requirements, apar

5 tPM&C and include a reference to ASX lis
tPM&C and include a reference to ASX listing rules and suggest some of theThe CAC FMOs for annual reports incorporate a number of corporateThe need for more explicit requirements will be assessed. (13.3.2)subsidiary legislation such as the FMOs facilitates flexibility in maintainingrelevance to best practice developments. (13.3.3).in turn is accountable to Parliament. (13.5.2 The Australian National Audit Office should provide a p. S43, pp. 76The 'going concern' concept is basically whether a reportingAs FMA agencies are legally and financially part of the Commonwealth.It would be nonsensical to ask the A-G to provide a statement as towhether the FMA agencies could pay their debts because it would amountto giving an opinion as to whether the Commonwealth was able to pay its IssueResponse from DoFA General Issues outcomes inThe definition refers to consequences of Commonwealthactions on the Australian community, whereas objectives for1, p. 5; Transcript, p. 94.)R&D corporations are members of the General GovernmentSector and have responsibility to the Australian communitythis includestheir industry. Outcomes for an industry will flow on to the widercommunity. (15.2.2) Some

6 Commonwealth CAC Act bodies which undert
Commonwealth CAC Act bodies which undertake aregulatory/advisory function should fall within the FMA Actbecause such functions are core government activities.(Mr Kennedy, p. S20.)Companies which are formed under Corporations Law whichare only partly owned by the Commonwealth:the Commonwealth should not be placed in a preferential pp. S77 p. S172.)In relation to Commonwealth companies duties under thewhich is more onerous in its requirements where theparticular entity should operate under. Some regulatory activities requiregovernance by a board. The movement of an existing authority from theCAC Act to the FMA Act would entail a restructure of the authorityObligations imposed on partly-owned Commonwealthcontrolled companies are not onerous, do not inhibit the efficiency of thecompanies concerned, or confer on the Commonwealth an advantagegreater than that of any major shareholder. (16.6.1)The CAC Act is designed to build upon the requirements ofamendments were made to the National Health Act to eliminate anyconflicts when the CAC Act was implemented. (16.9.1)Future amendments to the National Health Act intended to haveprecedence over the CAC Act would be dealt with in the Nat

7 ional Health IssueResponse from DoFA Con
ional Health IssueResponse from DoFA Conflict of interest can arise because the shareholder ministercompliance responsibility. (ARTC, p. S173.)The model of the portfolio Minister being responsible forresponsible for financial matters may: p. S228.)models. The appropriate model will depend on the individualcircumstance of each GBE. Where joint shareholder models exist, it isseparately perform the regulatory role and the shareholder role. (17.2.1The joint shareholder arrangement is operating well, Appointments ofmanagementappointment, termination and remuneration of chief p. S182.)Commonwealth companies are subject to the Corporations Law,which in turn provides for the appointment and termination of directors.For Commonwealth authorities, there is a wide diversity in the enablinglegislation relating to the appointment of directors and chairpersons.There may be scope for consolidating into the CAC Act generic principles The CAC Act needs to embrace and make clear the process p. S183.)The philosophy of the CAC Act is the same as forSections 16 and 41 confer a power on the responsible Minister to monitorperformance of directors and CEOs by obliging them to provide reports,docume

8 nts and information which the Minister r
nts and information which the Minister requests. (19.2.1-2) IssueResponse from DoFA would provide long term savings. (CASA, under the ATSIC, CAC, and Crimes Acts. The ATSIC Act p. S262.)place because of the ATSIC Act p. S262.)improvement. (20.3.1)matters need to be dealt with by the PM&C portfolio. (20.8.1) Rate of return targets and payments are not appropriate forR&D corporations. (GR&DC, Exhibit 1, p. 4.)corporations to rate of return target payments. (21.2.1) Ministerial approval has to be sought for contracts over $1m.As some 750 of these contracts have to be approved eachyear the requirement is wasteful. (CSIRO, Transcript,Ministerial approval for contracts over $1m is found in enablingActs not the CAC Act and therefore any amendments should be discussedremove the dollar limits from the enabling Acts and provide for themremove the issue from the enabling Acts and include an alternativemechanism in the CAC Act. (22.2.3) IssueResponse from DoFA CAC Act—Specific Issues 'officer'with management responsibilities as it impacts on liabilityinsurance and disclosure of remuneration of officers in p. S97.). This impacts on indemnification andliability insurance for Advisory Comm

9 ittee members. p. S213; The definition o
ittee members. p. S213; The definition of 'officer' replicates Corporations Lawregarding the definition of officers, indemnification and insurance ofhigh level advisers to any company in Australia. It is not unreasonable forsenior management and directors of authorities to be placed in the same granted in specialthe Private Health Insurance Administration Council by30 September. Logistics means that two reports are preparedwith some overlap. A single report would be more efficient. p. S30.)statements by 30 September. This necessitates seeking anreasons. A report deadline of 30 November is recommended. pp. S69CAC Act. This issue was also considered in the context of the Healthnot sufficiently similar to be included in the one report. (24.2.3)Commonwealth authorities such as Australia Post, which hasfar more subsidiaries and joint ventures than ATSICDA, have not raisedto be unreasonable, the ATSIC Act would need to be amended. (24.5.5) Currently the Auditor-General provides the audit statementand authority financial statements to the Finance Minister. ToMinister. (ANAO, p. S57.) IssueResponse from DoFA Investment ofsurplus money.within limits of sound commercial practice, as

10 entitiescovered by s19. (GR&DC, Exhibit
entitiescovered by s19. (GR&DC, Exhibit 1, p. 4.)surplus moneynot immediatelythe Explanatory Memorandum (any money surplus to pp. 90R&D corporations are subject to s18 because they are fundedpartially by levies on primary producers and partially by the Budget.Memorandum. Commonwealth authorities other than GBEs or SMAs,wishing to invest money must do it in a manner specified in ss18(3) unlessDoFA's view is that all of ATSICDA's money surplus to immediate Needs expansion to address potential for non-materialconflicts (or conflicts in duty) arising when departmentalofficers are Commonwealth nominees on boards ofCommonwealth authorities and companies, especially whereand Commonwealth. (DHAC, p. S181.)between authority and accountability of public sector boards p. S194.)DoFA noted that with respect to 'non-material conflicts' thenature of the problem was unclear from the information provided in thesubmission. (27.3.1)leaves it to be dealt with in the context of 'the conduct of officer'situation of 'Nominee/Representative directors' of CommonwealthThe issue is equivalent to that discussed above and DoFA'sview is that no clarification is needed in the CAC Act. IssueResponse from

11 DoFA improper use ofIt is anomalous that
DoFA improper use ofIt is anomalous that CSIRO officers serving alongsidedepartmental officers on Commonwealth boards are notexempted under s23(2) because they are not public servants. p. S215; p. 111.)Advice from the Australian Government Solicitor indicatescomplexity to the Government Directors role and may needamendment. (AFFA, p. S244; It is important to note that subsection 23(2) does not 'exempt'departmental officers from subsection 23(1), it merely protects them to theextent that there is conflict between their role as a director and their role asa departmental officer. (28.3.2)DoFA does not agree that the legislation 'has addedcomplexity to the Government Director's role, but it may not havesucceeded in making it any less complex. DoFA believes the proposednew provisions will effectively protect a 'Government Director' from anmerit in having the issue specifically addressed in Division 4 of Part 3 of Indemnifyingneeded. (PHIAC, p. S31.)Officers cannot be indemnified for a p. S83; pp. 83In NSW, SA and NT, employees can be indemnified by theiremployer. This conflicts with s26(1)(a). It is unclear whetherState indemnification laws apply to CSIRO staff. Staff of anwh

12 ere they reside. (CSIRO, p. S214; p. 11
ere they reside. (CSIRO, p. S214; p. 111.)indemnification and insurance of Commonwealth authorities officersreplicates the provisions for companies under Corporations Law. (29.2.1)Officers of the ABC are placed in the same position asindemnification and insurance (see above) and the laws of defamation.The provisions relating to definition of officer and indemnityTherefore, CSIRO officers are placed in the same position as officers ofany large private sector company in Australia. (29.6.1) IssueResponse from DoFA other legislation. (GR&DC, Exhibit 1, pp. 3The Attorney-General is able to apply Legal ServicesDirections to Commonwealth authorities. The directions maybe inappropriately applied to the ABC as the Commonwealthmay occasionally be the prosecutor. Legislation should be p. S85; p. 86.)the Commonwealth or can it have a particularwhat form of consultation must occur before notification? p. S121.) p. S182.)Section 28 may not be of particular relevance to theamendments made by the Policy is to be 'general' in the sense that they are applicable across theCommonwealth government sector.Section 28 provides that the responsible Minister must consult thedirectors before notifyi

13 ng them of the policies. (30.6.3)It is n
ng them of the policies. (30.6.3)It is not feasible to provide a precise definition of 'generalpolicy'. DoFA is considering administrative mechanisms which mightimprove the potential effectiveness of s28 and s43. (30.8.1 Section may restrict ability to enter into agreement with non-government organisations to set up commercial entities tocommercialise R&D. (GR&DC, Exhibit 1, p. 4.) pp. S67 IssueResponse from DoFA The Australian National University financial statements p. S64.)against the corporate plan to shareholder Ministers, halfreports to DoFA. This places Medibank Private at acompetitive disadvantage. (Medibank Private, Disclosure of information not normally disclosed in detail bya private organisation can create a commercial disadvantageto public sector bodies competing with the private sector. p. S165.)required by the accrual budgeting framework. (NMA, p. S168.)required by Corporations Law, the Auditor-General must p. S172.)more onerous than the best practice requirements in the p. S195.)The ANU is a Commonwealth authority for the purposes ofthe CAC Act and therefore should prepare financial statements inaccordance with FMOs. FMOs ensure a consistent standard of finan

14 cialreporting across all Commonwealth au
cialreporting across all Commonwealth authorities. (32.3.2)Similar requirements are invariably imposed by majority or100% owners of private companies.Publicly listed companies also havecontinuous reporting requirements. DoFA does not believe that theGovernment's reporting requirements place Medibank Private at a costCommonwealth authority to disclose publicly is that contained in itsare sufficiently flexible to accommodate the accrual budgeting framework.company's auditor, but that company must obtain a report by the Auditor-The FMOs for annual reports of Commonwealth authoritiesclosely follow the requirements for listed companies contained in the IssueResponse from DoFA pp. 114environmental management, as is the case under pp. 115the annual report, Commonwealth authorities are required by various otherActs to prepare numerous specialist reports for various departments.becoming cumbersome and of little interest to the general reader.Corporations Law relating to environmental management, pending the Some companies/subsidiaries do not have to prepare financialstatements under Corporations Law. Government policyneeds clarification. (ANAO, pp. S57DoFA intends to consult with t

15 he ANAO in this regard as part of its Th
he ANAO in this regard as part of its The content of an Australian Stock Exchange interim reportcould substitute for a CAC Act interim report. (ARTC, p. S172.) ATSIC Commissioners are categorised as directors and apenalty regime is imposed for failure to exercise corporatetheir indigenous and community leadership qualities ratherthan expertise in statutory authority management. (ATSIC, p. S262.)Commissioners by the ATSIC Act are deemed inappropriate havingregard to the Commissioners' qualities and expertise, the solution lies in IssueResponse from DoFA Other SpecificIssues Departments(Parliamentary Departments, p. 61.)Introducing similar provisions to reflect the Constitutional separation ofthe Parliament from the Executive is a policy matter. (36.2.1)Government decisions likely to impact financially on the ParliamentaryDepartments, and the FMA Act already provides authority to the PresidingDepartments to spend money. (36.2.2 for parliamentary reasons, the policies of the executivegovernment should not be applied to the Parliament.(Parliamentary Departments, pp. S55p. 67.)Neither the Parliamentary Departments nor the ParliamentCommonwealth. Whether the Parliamentary Departme