Audit Act 2008 (Tas)

Audit Act 2008 An Act to provide for the appointment of an Auditor-General, the audit of public finances and for related purposes [Royal Assent 4 December 2008] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Audit Act 2008 . 2. Commencement This Act commences on a day to be proclaimed. 3. Purpose of Act The purposes of this Act are – (a) to ensure that the State has an Auditor-General with the necessary functions, immunities and independence; and (b) to provide for the independent audit of the public sector and related entities. 4. Interpretation (1) In this Act, unless the contrary intention appears – accountable authority means the person or body determined under section 14 or 15 , as the case may require; accounts means – (a) records, however compiled, recorded or stored, of transactions in respect of money or other property expressed in monetary units or, in the case of property, expressed in monetary units or other units of measurement; and (b) books, documents, writing, monetary forms, abstracts, vouchers and other records of any kind from which records mentioned in paragraph (a) have been compiled; administrative services includes services relating to financial matters, human resource matters, information and communication technology matters and other similar matters; agency means an Agency specified in Part 1 or 2 of Schedule 1 to the Financial Management Act 2016 ; the appropriate Minister, in relation to a State entity, means the Minister for the time being responsible for the administration of that State entity or the Minister who for the time being is able to exercise control over a State entity by virtue of ownership, solely or jointly, of shares or of other instruments of ownership of the State entity on behalf of the Crown; audit includes to examine, investigate, inspect and review; audited subsidiary of a State entity means a subsidiary of a State entity of which the Auditor-General is the auditor; Auditor-General means a person holding the office of Auditor-General by virtue of section 9(1) ; Australian Auditing and Assurance Standards means standards made or formulated from time to time by the Auditing and Assurance Standards Board established by the Australian Securities and Investments Commission Act 2001 of the Commonwealth; authorised person has the meaning given to that term in section 36 ; Employer has the same meaning as in the State Service Act 2000 ; financial year means – (a) a period of 12 months ending on 30 June in any year; or (b) any other period of 12 months in respect of which a State entity is required by any written law to maintain accounts; functions includes duties; Government Business Enterprise means a statutory authority specified in Schedule 1 to the Government Business Enterprises Act 1995 ; independent auditor has the meaning given to that term in section 41(1) ; Joint Committee has the same meaning as in the Integrity Commission Act 2009 ; other money means money collected, received or held by the Crown or a State entity for, or on behalf of, a person other than the Crown or a State entity; other property means property that is held by the Crown or a State entity for, or on behalf of, a person other than the Crown or a State entity; premises means any land, place or vehicle; Public Account means the Public Account of the State referred to in the Financial Management Act 2016 ; Public Accounts Committee means the Parliamentary Standing Committee of Public Accounts established under section 2(1) of the Public Accounts Committee Act 1970 ; public money means money collected, received or held by any person for, or on behalf of, the Crown or a State entity; public property means all property, other than public money held for, or on behalf of, the Crown or a State entity; related entity has the meaning given to that expression in section 22 ; State authority means a body or authority, whether incorporated or not, that is established or constituted under a written law or under the royal prerogative, being a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another State authority, but does not include an agency; State entity includes – (a) an agency; and (b) a council; and (c) a Government Business Enterprise; and (d) a State-owned company; and (e) a State authority that is not a Government Business Enterprise; and (f) the council, board, trust or trustees, or other governing body (however designated) of, or for, a corporation, body of persons or institution, that is or are appointed by the Governor or a Minister of the Crown; and (fa) (g) a body or authority referred to in section 21 , established under section 29 or 30 , or continued under section 326 , of the Local Government Act 1993 ; and (h) the Corporation incorporated under section 5 of the Water and Sewerage Corporation Act 2012 ; and (i) a body or authority in respect of which the Treasurer has made a determination under section 32A ; State-owned Company means a company incorporated under the Corporations Act which is controlled by – (a) the Crown; or (b) a State authority; or (c) another company which is itself controlled by the Crown or a State authority; subsidiary, of a State entity, means – (a) a company or body formed or incorporated under the Corporations Act or formed or incorporated under equivalent laws of a place other than a State or Territory – (i) in respect of which the State entity has the capacity to control decision making, directly or indirectly, in relation to the financial and operating policies of the company or body; and (ii) that is not itself a State entity; or (b) a body, trust or other entity formed under written law or under equivalent laws of the Commonwealth or a State or Territory of the Commonwealth – (i) in respect of which the State entity has the capacity to control decision making, directly or indirectly, in relation to the financial and operating policies of the body, trust or other entity; and (ii) that is not itself a State entity; or (c) a body that is declared under an Act to be a subsidiary of a State entity and is not itself a State entity; or (d) a body that is determined by the Treasurer, by written notice given to the State entity, to be a subsidiary of the State entity; Tasmanian Audit Office means the agency referred to by that name in Schedule 1 to the State Service Act 2000 that provides support and services to the Auditor-General; working day means any day other than a Saturday, Sunday or statutory holiday as defined in the Statutory Holidays Act 2000 ; written authority, in relation to an authorised person, means a written notice signed by the Auditor-General that states that the person is authorised to exercise powers under this Act; written law means – (a) an Act passed by the Parliament of Tasmania and for the time being in force; and (b) all subordinate legislation for the time being in force under any such Act; and (c) any directions given under the Financial Management Act 2016 . (2) If this Act uses a term that is used in the Financial Management Act 2016 , the term has the same meaning in this Act as it has in that Act unless the contrary intention appears in this Act. 5. Functions under other written laws (1) A reference in this Act to the Auditor-General's functions includes a reference to functions given to the Auditor-General under other written laws. (2) The provisions of this Act extend to audits that the Auditor-General is authorised to carry out under other written laws. 6. Provisions of other law to be read subject to provisions of this Act If there is an inconsistency between a provision of this Act and any other law in force in this State, being a law that makes specific provision with respect to the audit of a State entity or subsidiary of a State entity or to the Auditor-General, the provision of that law is to be read subject to the provision of this Act. PART 2 - Auditor-General and Deputy Auditor-General 7. Auditor-General There is to continue to be an office of Auditor-General for Tasmania. 8. Auditor-General not to be Member of Parliament A person who is a member of a House of Parliament of the Commonwealth, or of a State or Territory of the Commonwealth, or a candidate for election as a member of such House of Parliament, is disqualified from being appointed to the office of Auditor-General and, if a person holding that office becomes a candidate for election as such a member, that person vacates the office of Auditor-General. 9. Appointment of Auditor-General (1) The Auditor-General is to be appointed by the Governor on the recommendation of the Treasurer. (2) The Treasurer must consult with the Public Accounts Committee and the President of the Legislative Council and the Speaker of the House of Assembly in relation to the appointment of the Auditor-General. (3) The Auditor-General, except as provided for in this Act, is not subject to the State Service Act 2000 . (4) Before performing the functions and exercising the powers of the Auditor-General for the first time, the Auditor-General must make a declaration in the form contained in Schedule 2 before the Governor. (5) Schedule 1 has effect. 10. Independence of Auditor-General (1) The Auditor-General is authorised and required to act independently in relation to the performance of the functions of the Auditor-General and, subject to this Act and other written laws, has complete discretion in the performance of those functions. (2) In particular, the Auditor-General is not subject to direction from anyone in relation to – (a) whether or not a particular audit is to be conducted; or (b) the way in which a particular audit is to be conducted; or (c) whether or not a particular report is to be made; or (d) what is to be included in a particular report; or (e) the priority to be given to any particular matter. 11. Auditor-General's annual plan (1) The Auditor-General must, not later than 31 March in each year – (a) prepare a draft annual plan describing the Auditor-General's proposed work program for the following financial year; and (b) submit the draft to the Public Accounts Committee. (2) The Public Accounts Committee must consider the draft annual plan and may comment on it. (3) After considering the draft annual plan, the Public Accounts Committee must return it with any comments to the Auditor-General by not later than 31 May. (4) The Auditor-General must finalise the annual plan for that year after considering any comments received from the Public Accounts Committee. (5) The Auditor-General must indicate in the annual plan the nature of any changes suggested by the Public Accounts Committee that the Auditor-General has not adopted. (6) Before the beginning of the financial year to which an annual plan relates, the Auditor-General must – (a) present the annual plan to the Public Accounts Committee; and (b) cause the annual plan to be sent to the President of the Legislative Council and the Speaker of the House of Assembly. (7) No person is to direct the Auditor-General in relation to the content of the annual plan. 12. Application of State Service Act 2000 limited (1) The office of Auditor-General is not an office under the State Service Act 2000 . (2) The State Service Act 2000 applies in relation to the Auditor-General to the extent that that Act confers powers or imposes functions on the Auditor-General – (a) as Head of Agency in his or her capacity as an employing authority; or (b) under section 18 of that Act. 13. Deputy Auditor-General (1) Subject to and in accordance with the State Service Act 2000 , a person is to be appointed or employed as Deputy Auditor-General, and the person so appointed or employed is to perform such functions as the Auditor-General directs. (2) The Deputy Auditor-General – (a) is to act as Auditor-General during any illness, suspension or absence of the Auditor-General, and during any vacancy in that office; and (b) while so acting, is to exercise the powers and perform the functions of the Auditor-General and receive a salary at the same rate as that payable to the Auditor-General. (3) Any act or thing done by the Deputy Auditor-General in the exercise of powers and performance of functions of the Auditor-General has the same effect as if it were done by the Auditor-General. (4) Any act or thing that is required under a written law to be done to, by reference to or in relation to the Auditor-General is taken to be effectually done if done to, by reference to or in relation to the Deputy Auditor-General when the Deputy Auditor-General is acting in the office of Auditor-General. (5) The Deputy Auditor-General, when acting in the office of Auditor-General, has the same immunities and independence as the Auditor-General. (6) Before performing the functions and exercising the powers of the Auditor-General for the first time under subsection (2) , the Deputy Auditor-General must make a declaration in the form set out in Schedule 2 before the Governor. PART 3 - Accountable Authorities 14. State entities and audited subsidiaries of State entities to have accountable authority (1) A State entity, or an audited subsidiary of a State entity, is to have an accountable authority. (2) The Head of Agency is the accountable authority of – (a) a State entity that is an agency; and (b) subject to section 15(1) , any other State entity that forms part of that agency. (3) Subject to section 15(1) , the accountable authority of a State entity, other than a State entity referred to in subsection (2) , is the person or body (however described) having the general direction and control of, and the overall responsibility for, the operations of the State entity. (4) The accountable authority of an audited subsidiary of a State entity is the person or body (however described) having the general direction and control of, and the overall responsibility for, the operations of the audited subsidiary of the State entity. (5) In this section – Head of Agency has the same meaning as in the State Service Act 2000 . 15. Treasurer may determine accountable authority of State entity (1) If the Treasurer considers that there is, or may be, some doubt as to the application of section 14(2)(b) or section 14(3) to a particular State entity, the Treasurer may, by notice published in the Gazette, appoint a person or body to be the accountable authority of that State entity. (2) On the publication of a notice under subsection (1) , the body or person appointed is to assume and perform all the functions conferred on an accountable authority under this Act. (3) A notice under subsection (1) is not a statutory rule within the meaning of the Rules Publication Act 1953 . PART 4 - Auditing and Other Functions of Auditor-General Division 1 - Functions as to the State, State entities, subsidiaries and related entities 16. Auditor-General to be auditor of financial statements of Treasurer (1) The Treasurer, before 30 September in each year, is to submit to the Auditor-General – (a) statements reporting on the transactions within the Public Account during the immediately preceding financial year and the balances in the Public Account at the end of that financial year; and (b) any statements required to be prepared in accordance with the requirements of any written law. (2) The Auditor-General is to prepare a report on the statements referred to in subsection (1) in sufficient time to enable the Treasurer to table the Treasurer's annual financial report in accordance with section 40 of the Financial Management Act 2016 . 17. Accountable authorities are required to submit financial statements to Auditor-General (1) An accountable authority other than the Auditor-General, as soon as possible and within 45 days after the end of each financial year, is to prepare and forward to the Auditor-General a copy of the financial statements for that financial year which are complete in all material respects. (2) For the purposes of subsection (1) , the Auditor-General is to determine whether the financial statements are complete in all material respects. (3) The financial statements of the Tasmanian Audit Office are to be submitted by the Auditor-General to the independent auditor as soon as possible and within 45 days after the end of each financial year. (4) Unless otherwise required by any other written law, the financial statements referred to in subsections (1) and (3) are to be prepared in accordance with the accounting standards and other requirements issued by the Australian Accounting Standards Board. (5) An accountable authority who fails to comply with a requirement under subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units. (6) In a prosecution for an offence under subsection (5) it is a defence if the person charged can show that at the relevant time the financial statements of the State entity or audited subsidiary of a State entity were not in the possession or custody of, or under the control of, that person, unless the lack of possession, custody or control arose from a wrongful act or omission on the part of the person. (7) For the purposes of this section – accountable authority includes the Clerk of the House of Assembly and the Clerk of the Legislative Council; Australian Accounting Standards Board means the body of that name continued in existence under the Australian Securities and Investments Commission Act 2001 of the Commonwealth. 18. Auditor-General to be auditor of financial statements of all State entities (1) The Auditor-General is to audit the financial statements and any other information submitted by a State entity or an audited subsidiary of a State entity under section 17(1) . (2) Despite subsection (1) , the Auditor-General may, in respect of a particular financial year, dispense, subject to any conditions that the Auditor-General may determine, with all or any part of the audit of a particular State entity or the audits of State entities included in a category or class of State entity specified by the Auditor-General, if the Auditor-General considers that it is appropriate in the circumstances. (3) The Auditor-General must consult with the Treasurer before exercising the power conferred by subsection (2) . (4) The Auditor-General may perform any of the functions and exercise any of the powers of the Auditor-General under this Act in respect of the audit of a State entity notwithstanding that the audit of that State entity has been dispensed with pursuant to subsection (2) . 19. Auditor-General's opinions on financial statements and related information as to State entities (1) The Auditor-General is to prepare and sign an opinion on an audit carried out under section 18(1) in accordance with requirements determined by the Australian Auditing and Assurance Standards. (2) The Auditor-General is to provide the opinion prepared and signed under subsection (1) , and any formal communication of audit findings that is required to be prepared in accordance with the Australian Auditing and Assurance Standards, to the State entity's appropriate Minister and provide a copy to the relevant accountable authority. (3) The Auditor-General must finalise his or her audit opinion for a State entity or an audited subsidiary of a State entity within 45 days of receiving financial statements from the accountable authority. (4) Where financial statements of a State entity or an audited subsidiary of a State entity are to be included in an Annual Report to be tabled in Parliament, the Auditor-General must ensure that the opinion prepared and signed under subsection (1) is provided to the relevant Minister at least 5 days prior to the requested tabling date. 20. Audit of State-owned companies For the purposes of performing an audit of a State-owned company or an audited subsidiary of a State-owned company, the powers and functions conferred and imposed on the Auditor-General under this Act are in addition to the powers and functions conferred and imposed under the Corporations Act or any other written law in relation to the audit. 21. Audit of subsidiaries of State entities (1) An accountable authority responsible for the operations of a State entity is to advise the Auditor-General, in writing, before the end of the relevant financial year of all subsidiaries of the State entity. (2) The Auditor-General is to be the auditor of a subsidiary of a State entity unless the Auditor-General determines otherwise. (3) The Auditor-General may accept appointment under the Corporations Act as the auditor of a subsidiary of a State entity. (4) For the purposes of performing an audit of a subsidiary of a State entity, the functions and powers imposed and conferred on the Auditor-General under this Act are in addition to the functions and powers imposed and conferred under the Corporations Act or any other written law in relation to the audit. 22. Audits of accounts of related entities If a State entity performs any of its functions – (a) in partnership or jointly with another person or body; or (b) through the instrumentality of another person or body; or (c) by means of a trust – the accountable authority must give written notice of that fact to the Auditor-General, and the person, body or trust is referred to as a "related entity" of the State entity. 23. Examinations and investigations (1) The Auditor-General may at any time carry out an examination or investigation for one or more of the following purposes: (a) examining the accounting and financial management information systems of the Treasurer, a State entity or a subsidiary of a State entity to determine their effectiveness in achieving or monitoring program results; (b) investigating any matter relating to the accounts of the Treasurer, a State entity or a subsidiary of a State entity; (ba) . . . . . . . . (c) investigating any matter relating to public money or other money, or to public property or other property; (d) examining the compliance of a State entity or a subsidiary of a State entity with written laws or its own internal policies; (e) examining the efficiency, effectiveness and economy of a State entity, a number of State entities, a part of a State entity or a subsidiary of a State entity; (f) examining the efficiency, effectiveness and economy with which a related entity of a State entity performs functions – (i) on behalf of the State entity; or (ii) in partnership or jointly with the State entity; or (iii) as the delegate or agent of the State entity; (g) examining the performance and exercise of the Employer's functions and powers under the State Service Act 2000 . (2) Any examination or investigation carried out by the Auditor-General under subsection (1) is to be carried out in accordance with the powers of this Act. (3) . . . . . . . . 24. Audits at request of Treasurer (1) The Auditor-General may carry out any audit that the Treasurer requests the Auditor-General to carry out. (2) Without limiting subsection (1) , where a grant or advance of money is made by the Government to a person for specific purposes, the Treasurer may request the Auditor-General to audit the accounts of that person to ascertain whether the money granted or advanced has been expended in accordance with the purposes of the grant or advance. 25. Audits at request of Public Accounts Committee The Auditor-General may carry out any audit that the Public Accounts Committee requests the Auditor-General to carry out. 26. Audits at request of Ombudsman (1) If the Ombudsman requests the Auditor-General to investigate any matter under section 41 of the Public Interest Disclosures Act 2002 , the Auditor-General may carry out that investigation. (2) Any investigation carried out by the Auditor-General under subsection (1) is to be carried out in accordance with his or her powers under this Act. 26A. Audits at request of Integrity Commission (1) If, under a provision of the Integrity Commission Act 2009 , the Integrity Commission, or an Integrity Tribunal, requests the Auditor-General to investigate any matter, the Auditor-General may carry out that investigation. (2) Any investigation carried out by the Auditor-General under subsection (1) is to be carried out in accordance with his or her powers under this Act. 26B. Audits for or in collaboration with Auditor-General of the Commonwealth or another State or a Territory (1) The Auditor-General may carry out an audit on behalf of or in collaboration with the Auditor-General of the Commonwealth or another State or a Territory if the Auditor-General reasonably believes the Commonwealth or that other State or Territory has an interest in the audit. (2) Any audit carried out by the Auditor-General under subsection (1) is to be carried out in accordance with his or her powers under this Act. (3) Any audit carried out by the Auditor-General under subsection (1) may provide for the payment of fees to the Auditor-General in respect of that audit. 26C. Investigations at request of Employer (1) If the Employer requests the Auditor-General to investigate any matter under section 18 of the State Service Act 2000 , the Auditor-General may carry out that investigation. (2) Any investigation carried out by the Auditor-General under subsection (1) is to be carried out in accordance with his or her powers under this Act. 27. Audit fees (1) The Auditor-General is to determine whether a fee is to be charged for an audit carried out by the Auditor-General under this Division and, if so – (a) the amount of that fee; and (b) the accountable authority liable to pay that fee. (2) A fee determined under subsection (1)(a) is to be paid by the person determined under subsection (1)(b) . (3) If the amount of the fee referred to in subsection (1)(a) is disputed by the accountable authority liable to pay the fee, the the matter is to be referred to arbitration under the Commercial Arbitration Act 2011 as if there were a request for the dispute to be referred to arbitration under that Act. (4) Any such fee for an audit is a debt due to the Crown and may be recovered as such in a court of competent jurisdiction by the Treasurer. 28. Audits and other services by arrangement (1) The Auditor-General may enter into an arrangement with any person or body – (a) to carry out an audit for or in relation to the person or body; or (b) to provide services to a person or body that are of a kind commonly performed by auditors. (2) The Auditor-General may carry out audits and provide services under an arrangement under subsection (1) . (3) An arrangement under subsection (1) may provide for the payment of fees to the Auditor-General in respect of the audit or services. (4) Division 2 of Part 5 does not apply in relation to an audit carried out under this section. Division 2 - Reporting to Parliament 29. Tabling of Auditor-General's reports on financial statements of State entities (1) The Auditor-General, on or before 31 December in each year, is to report to Parliament in writing on the audit of State entities and audited subsidiaries of State entities in respect of the preceding financial year. (2) A report under subsection (1) is to include details of all State entities the audits of which have been dispensed with under section 18(2) and may describe the State entities by their name or by reference to the classes or categories of State entities in which they are included. (3) A report under subsection (1) is to describe the basis on which audit fees are calculated. (4) Without limiting subsection (1) , in a report under that subsection the Auditor-General – (a) is to draw attention to any case in which the functions of an accountable authority were not adequately and properly performed, and which the Auditor-General considers of sufficient importance to have attention drawn to it; and (b) is to include particulars of any major change of approach made by the Auditor-General in relation to the extent or character of the audit function. (5) If the Auditor-General is unable to comply with subsection (1) by reason of the fact that either House of Parliament is not sitting, the Auditor-General is to immediately – (a) forward copies of the report to the Clerk of the Legislative Council or the Clerk of the House of Assembly, as the case may require; and (b) make copies of the report available to the public – and, on the next sitting-day of that House, is to cause copies of the report to be laid before that House. (6) The Auditor-General, in writing, is to notify the Treasurer and, in relation to a report referred to in subsection (1) , any Minister responsible for the activity to which the report relates of the Auditor-General's intention to submit the report to Parliament, at least 5 days before the report is to be submitted. 30. Report on examination or investigation (1) The Auditor-General may prepare and sign a report on an examination or investigation carried out under section 23 and, subject to section 30A , may submit the report to – (a) both Houses of Parliament; or (b) the Public Accounts Committee; or (c) the Joint Committee. (2) Before signing a report proposed to be submitted under subsection (1) , the Auditor-General must, subject to section 30A – (a) give a summary of findings to the Treasurer, Employer, accountable authority or related entity of a State entity, as the case may require, and any other person who, in the Auditor-General's opinion, has a special interest in the report; and (b) by written notice, invite the Treasurer, Employer, accountable authority or related entity of a State entity or that other person, as the case may require, to make submissions or comments on the content of the summary of findings before a specified day, being a day not less than 3 working days after the summary of findings is given to the Treasurer, Employer, accountable authority, related entity of a State entity or person. (3) The Auditor-General must include in a r