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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PUBLIC GOVERNANCE, PERFORMANCE AND
ACCOUNTABILITY BILL 2013
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated with the authority of the
Minister for Finance and Deregulation,
Senator the Hon Penny Wong)
TABLE OF CONTENTS
OUTLINE ......................................................................................................................................................... 1
FINANCIAL IMPACT STATEMENT ............................................................................................................ 1
NOTES ON AMENDMENTS ......................................................................................................................... 2
i
Public Governance, Performance and Accountability Bill 2013
OUTLINE
The Public Governance, Performance and Accountability Bill 2013 (the Bill) would replace
the Financial Management and Accountability Act 1997 (FMA Act) and the Commonwealth
Authorities and Companies Act 1997 (CAC Act).
The Joint Committee of Public Accounts and Audit (JCPAA) reported on the Bill on
4 June 2013: Report 438: Advisory Report on the Public Governance, Performance and
Accountability Bill 2013 (the JCPAA Report). This report recommended amendments to the
Bill and the Explanatory Memorandum. It also recommended that consideration be given to
additional amendments suggested by various participants to the JCPAA's inquiry including
the Australian National Audit Office (ANAO).
These amendments seek to address the recommendations of the JCPAA and incorporate
various proposals suggested by participants to the JCPAA inquiry.
FINANCIAL IMPACT STATEMENT
The Government amendments have no financial impact.
1
NOTES ON AMENDMENTS
Amendments (1), (3), (4), (11) and (14)
These amendments would insert new clauses 111 and 112 (amendment (14)) and make
associated adjustments to headings and guides. Clause 112 would require the
Finance Minister, in consultation with the JCPAA, to cause an independent review of the
operation of the Bill as soon as practicable after the end of 3 years after clause 112
commences. The review would be a post-implementation review of how the Bill and rules
have worked and whether improvements could be made. This provision addresses
recommendation 8 of the JCPAA Report. Clause 111 would insert a guide to Part 4-3, which
deals with the independent review.
The associated amendments:
change `110' to `112' in the commencement table (clause 2), recognising the insertion
of new clauses into the Bill (amendment (1));
amend the guide to the Bill (clause 6) to reflect the introduction of the independent
review at Part 4-3 (amendments (3) and (4)); and
amend the heading to Chapter 4 of the Bill to reflect the inclusion of the independent
review (amendment (11)).
Amendment (2)
Amendment (2) would amend clause 5(d) of the Bill to require Commonwealth companies to
meet high standards of governance and performance as well as accountability. The Bill is
about more than just the accountability of Commonwealth companies. Requirements on
Commonwealth companies, such as for audit committees (clause 92) and corporate plans
(clause 95) go beyond accountability. These clauses reflect a broader focus on governance
and performance. Clarifying clause 5 makes the objects clause more accurate.
The amendment responds to a comment made by the ANAO in its submission to the JCPAA
regarding clause 5(d).
Amendments (5), (6) and (8)
These amendments would insert provisions to ensure that the Parliamentary Service Act 1999
applies in the same way as the Public Service Act 1999. This suggestion was made by the
Department of the House of Representatives in its submission to the JCPAA inquiry on the
Bill.
Amendment (5) would adjust the guide to Part 2-2 to reflect the inclusion of the
Parliamentary Service Act 1999.
Amendment (6) would make it clear that measures to ensure officials comply with the finance
law would not be required for officials to whom either the Public Service Act 1999 applies or
the Parliamentary Service Act 1999 applies because of clause 32 of the Bill.
Amendment (8) would replace Subdivision C of Division 3 of Part 2-2 of the Bill. The
material change from the original clause 32 in Subdivision C is that the amendment would
make it clear that the finance law is an Australian law for the purposes of both
2
subsection 13(4) of the Public Service Act 1999 and subsection 13(4) of the Parliamentary
Service Act 1999. This allows administrative action to be taken against both public servants
and members of the parliamentary service if they breach the finance law. The Government
agrees that it would be appropriate for the Bill to reflect that members of the parliamentary
service are subject to equivalent administrative action to public servants.
Amendment (7)
Amendment (7) relates to clause 19 of the Bill. This amendment would insert a subheading
to subclauses 19(4A), (4B) and (5) clarifying that these subclauses are about the relationship
of clause 19 with other powers and laws.
Amendment (7) would also insert subclauses 19(4A) and (4B). Subclause 19(4A) would
limit the application of subclause 19(1) so that it only applies to the extent that it is not
inconsistent with a Commonwealth entity's enabling legislation. Subclause 19(4B) clarifies
that clause 19 does not override limitations on disclosure that some Commonwealth entities
may have.
This amendment addresses recommendation 7 of the JCPAA Report and numerous
submissions to the inquiry including the Australian Broadcasting Corporation, the Special
Broadcasting Service Corporation, the National Gallery of Australia and the ANAO.
Amendment (9)
Amendment (9) would replace subclause 41(3) of the Bill. The new subclause 41(3) would
ensure that the responsible Minister, like the Finance Minister, is entitled to full and free
access to a Commonwealth entity's financial accounts and records, subject to any law that
prohibits disclosure of particular information. This suggestion was made by the ANAO in its
submission to the JCPAA inquiry on the Bill.
While the original subclause 41(3) reflects the existing provisions in the FMA Act and CAC
Act, it is appropriate that the responsible Minister is entitled to access to financial accounts
and records, given the responsible Minister has portfolio responsibility for the
Commonwealth entity and is ultimately responsible to Parliament for the Commonwealth
entity.
Amendment (10)
Amendment (10) would amend subclause 53(4) of the Bill to provide that the rules are not to
prescribe matters relating to the central bank account referred to in subclause 53(3) (Finance
Minister to maintain a central bank account with the Reserve Bank of Australia (RBA)).
The exclusion of the central bank account from the rules reflects further consultations the
Government has had with the RBA. These consultations indicated that the rules under the
Bill could have a significant effect on the role of the RBA as the Commonwealth's central
banker. To avoid unintended consequences, the Government has decided to specifically
exclude the central bank account from the rules.
3
Amendment (12)
Amendment (12) would replace subclause 101(2) of the Bill. The new subclause 101(2)
would allow the rules to prescribe matters or make different provision in relation to particular
Commonwealth companies or a class of Commonwealth companies, in addition to the power
to make rules in relation to Commonwealth entities.
This amendment brings greater consistency to how rules can be made in relation to
Commonwealth companies and Commonwealth entities. It will also assist in achieving the
objects of the Bill referred to in amendment (2) by allowing the rules to set different
governance and performance requirements for different Commonwealth companies, such as
around audit committees, if necessary.
Amendment (13)
Amendment (13) would replace paragraph 102(g) of the Bill. The original paragraph referred
to `performance management'. The amendment refers only to `performance'. This
amendment would help ensure that it is clear that the Bill is concerned with organisational
performance; it is not concerned with the management of an individual's performance, which
is part of the relevant employment framework, such as the Public Service Act 1999.
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