EXPLANATORY STATEMENT
SUBJECT - AUDIT ACT 1901
FINANCE REGULATIONS (AMENDMENT)
1985 NO. 333
ISSUED ON THE AUTHORITY OF THE MINISTER FOR FINANCE
Sub-section 71(1) of the Audit Act 1901 (the Act) provides that the Governor-General may make regulations (not inconsistent with the provisions of the Act) for carrying out the provisions of the Act. The attached Statutory Rules amend the Finance Regulations which were made pursuant to these provisions.
Details of the amendments are as follows.
Regulation 1 - Interpretation
Regulation 2 - Receipts and payments of financial year.
The amendments in Regulations 1 and 2 of the Statutory Rules are of a minor drafting nature and bring the wording of the Regulations into line with current drafting practices.
Regulation 1 amends the reference to “the Audit Act 1901-1952”, in sub-regulation 4(1), to “the Audit Act 1901”. Regulation 2 amends the reference in regulation 6 from “The Commonwealth Public Account” to “the Commonwealth Public Account”.
Regulation 3 - Prescribed Authorities.
Regulation 3 of the Statutory Rules amends regulation 6A by omitting the Commonwealth Legal Aid Commission from the list of those statutory authorities which have been prescribed for the purposes of the Act and Regulations; that is, are Departments for those purposes. The Commonwealth Legal Aid Commission was abolished by the Commonwealth Legal Aid Commission Amendment Act 1981 (Act No 62 of 1981).
Regulation 4 - Particulars of Government property to be sold
Regulation 5 - Issue of licences
Regulation 6 - Numbering of licence and receipt forms.
Regulation 10- Petty cash expenditure
Regulations 4, 5, 6 and 10 of the Statutory Rules amend existing regulations 32, 38, 40 and 60 by substituting “Secretary of the Department of Finance” for “Minister”.
Regulations 32, 38, 40 and 60 each empowered the Minister for Finance to determine or approve exceptions to the procedures or requirements set out in the relevant regulation. The regulations provide for the following exceptions to be made:-
(a) regulation 32 - to the requirement that the Auditor-General be provided with particulars of Government property to be sold;
(b) regulation 38 - to the issue of licences in the manner specified in the regulation;
(c) regulation 40 - to the consecutive numbering of licence and receipt forms; and
(d) regulation 60 - to the amount which may be paid from petty cash without acquittance.
The matters dealt with in each of these regulations are essentially of a minor administrative nature and thus they have been amended to empower the Secretary of the Department of Finance, rather than the Minister, to determine or approve each exception.
Regulation 7 - Requisition for supplies to be supported by a certificate
Sub-regulation 47(2) provides for the issue of ‘bulk’ funds certificates. That is, it empowers a prescribed officer to issue a certificate certifying that an amount is available for the purchase of specified kinds of supplies. On the basis of such a ‘bulk’ certificate requisitions may be raised for the kinds of supplies specified in the certificate, up to the amount available.
Sub-regulation 47(3), paragraph (a), specifies the conditions under which amounts are available for expenditure eg:
(a) moneys have been appropriated which are sufficient to meet the payment and any other anticipated payments from the head of expenditure;
(b) provision of funds has been included in a proposed law; or
(c) there will be sufficient moneys standing to the credit of the Trust Fund when payment becomes due.
However, sub-regulation 47(3) applies only in the situation dealt with in sub-regulation 47(1), where funds certificates are required for each Requisition, and not in that covered by sub-regulation 47(2). Nonetheless, it is considered that before a prescribed officer gives a certificate under sub-regulation 47(2), he should be required to conduct similar checks to those required under sub-regulation 47(3), paragraph (a); not to do so could result in funds being overspent or overcommitted.
Accordingly, regulation 7 of the Statutory Rules amends regulation 47 by adding a new sub-regulation (3A) to apply provisions, similar to those required under sub-regulation 47(3) (a), to certificates given under regulation 47(2).
Regulation 8 - Approval of expenditure covered by Requisitions
Regulation 48 provides that, once the requirements of regulations 46 and 47 have been complied with, a Requisition for the supplies shall be submitted for approval to the Minister for State (or the President or Speaker) administering the Department requiring the supplies, or an officer appointed by the Minister for that purpose. This approval has been misinterpreted to mean something other than approval of the expenditure (eg to mean approval of the issue of the Requisition and that approving the expenditure requires other action). Accordingly, Regulation 8 of the Statutory Rules amends regulation 48 to make it clear that the approval relates to the expenditure and not merely the issue of the Requisition.
Regulation 9 - Orders for approved expenditure in respect of supplies.
Regulation 9 of the Statutory Rules amends regulation 52A to provide that the Secretary of a Department may determine, subject to directions given by the Secretary of the Department of Finance, that, in certain specific circumstances, a Purchase Order is not required.
Regulation 52AA provided, inter alia, that, where a Requisition was approved, a Purchase Order had to be issued in respect of the supplies specified in that Requisition. There are situations, however, where the issue of a Purchase Order serves no purpose. For example, some freight carriers will only accept freight on the basis of a consignment note, thus making a Purchase Order superfluous.
The amendment rectifies this situation.
Regulation 11 - Repeal of regulation 66
Regulation 11 of the Statutory Rules repeals regulation 66.
Regulation 66 provided that the Finance Regulations were not to be considered as conferring any power on an Authorizing Officer to incur expenditure. However, the duties and functions of Authorising Officers are clearly set out in section 34 of the Act. Furthermore there seemed little purpose retaining in the Regulations a provision which did nothing to elucidate or further define an Authorising Officer’s duties, as set out in the Act.
Regulation 12 - Appropriation to which advances are to be charged
Regulation 12 of the Statutory Rules amends regulation 75 by:
(a) substituting, in paragraph (a), the words “74(1) (a)” for “(a) of sub-regulation (1) of the last preceding regulation”. The last preceding regulation referred to was regulation 74A (which was introduced by Statutory Rules 1983/96); the reference should, have been to paragraph 74(1) (a); and
(b) by substituting in paragraph 75(b) the words “paragraph 74(1)(b)” for “(b) of that sub-regulation”, thus bringing the wording of regulation 75 into line with drafting practice.
Regulation 13 - Repeal of regulation 126
Section 38 of the Act provides that a bank into which public moneys are paid shall forward, to such person as the Minister directs, a statement showing the debits and credits to the account and a certificate setting out the balance to that account. Regulation 126 provided that the statement or certificate (referred to in the regulation as the “Bank Sheet”) was to be Form 38 and that it was to be forwarded to the Director of the Regional Office in the State in which the bank was situated.
There were no compelling reasons why banks should be required to use a particular form for providing the required information. Indeed, it is more convenient for banks to use their own stationery for this purpose. Also, there was little need to specify in a regulation the person or persons to whom the information should be supplied; this is a matter best covered in the instrument given by the Minister pursuant to section 38.
Accordingly, regulation 13 of the Statutory Rules repealed regulation 126.
Regulation 14 - Delegation of Minister’s powers and functions
Regulation 15 - Delegation of powers and functions of Secretary of the Department of Finance
Regulations 14 and 15 of the Statutory Rules amends, respectively, regulation 134, which deals with the delegation of the Minister’s powers and functions under the Regulations, and introduces a new regulation, 135, covering the delegation by the Secretary of the Department of Finance of his powers or functions.
The Attorney-General’s Department has advised that in the absence of a provision subjecting a delegate to directions, any directions purporting to regulate the exercise of the delegation are not legally binding. However, it is considered that the Minister should be empowered to give directions to his delegates. Regulation 14 of the Statutory Rules amends regulation 134 to enable such directions to be given.
Regulation 14 amends the existing wording of regulation 134 to bring it into line with current drafting practices, and in particular, provide that a power exercised by a delegate is deemed to have been exercised by the Minister.
Regulation 15 of the Statutory Rules introduces a new regulation 135 which gives the Secretary of the Department of Finance similar powers of delegation as has the Minister and a similar right to give directions to delegates. It is appropriate that the Secretary be able to delegate all of his powers or functions under the Regulations, rather than be required to perform them, unless otherwise specified in a particular regulation, personally.
Regulation 16 - Schedule
As a consequence of the repeal of existing regulation 126 by regulation 13, regulation 16 omits Form 38 from the Schedule.