Financial Management and Accountability Amendment Regulations 2009 (No. 4)

Financial Management and Accountability Amendment Regulations 2009 (No. 4)

Select Legislative Instrument 2009 No. 134 as amended

made under the

Financial Management and Accountability Act 1997

This compilation was prepared on 30 June 2010
taking into account amendments up to SLI 2010 No. 172

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

1 Name of Regulations [see Note 1]

  These Regulations are the Financial Management and Accountability Amendment Regulations 2009 (No. 4).

2 Commencement

  These Regulations commence on 1 July 2009.

3 Amendment of Financial Management and Accountability Regulations 1997

  Schedule 1 amends the Financial Management and Accountability Regulations 1997.

4 Transitional

 (1A) This regulation ceases to apply on 1 July 2010.

 (1) The amendments made by Schedule 1 apply in relation to any action, including the making of an instrument, done under the authority of:

 (a) a provision or group of provisions of the old FMA Regulations that has been repealed; or

 (b) a provision or group of provisions of the 2005 Orders that has been repealed; or

 (c) a provision or group of provisions of the 2008 Orders that has been repealed;

as if the action were done under the corresponding provision or group of provisions of the new FMA Regulations.

Note   The actions include:

(a) the making of delegations by a Chief Executive or the Finance Chief Executive; and

(b)  the making of determinations by the Finance Chief Executive, specifying an activity of an Agency as a business operation.

 (2) If subregulation (1) applies, a reference in an instrument to a provision or group of provisions of:

 (a) the old FMA Regulations; or

 (b) the 2005 Orders; or

 (c) the 2008 Orders;

is taken to include a reference to the corresponding provision or group of provisions of the new FMA Regulations.

 (3) If:

 (a) a provision or group of provisions of:

 (i) the old FMA Regulations; or

 (ii) the 2005 Orders;

  has been repealed; and

 (b) no provision or group of provisions of the new FMA Regulations corresponds to the repealed provision or group of provisions;

the amendments made by Schedule 1 apply in relation to any action, including the making of an instrument, done under the authority of the repealed provision or group of provisions as if the repeal had not occurred.

 (4) In this regulation:

2005 Orders means the Financial Management and Accountability Orders 2005 as in force immediately before 1 July 2009.

2008 Orders means the Financial Management and Accountability Orders 2008 as in force immediately before 1 July 2009.

instrument includes a legislative instrument.

new FMA Regulations means the Financial Management and Accountability Regulations 1997 as in force at any time on or after 1 July 2009.

old FMA Regulations means the Financial Management and Accountability Regulations 1997 as in force immediately before 1 July 2009.

Schedule 1 Amendments

(regulation 3)

[1] Regulation 3, definition of agency agreement

omit

goods and services

insert

property or services

[2] Regulation 3, definition of Commonwealth contract

omit

goods and services

insert

property or services

[3] Regulation 3, after definition of Commonwealth contract

insert

employee includes:

 (a) a member of the Defence Force; and

 (b) a statutory office‑holder; and

 (c) a person engaged under one of the following Acts (as in force from time to time):

 (i) the Air Force Act 1923;

 (ii) the Australian Bureau of Statistics Act 1975;

 (iii) the Australian Federal Police Act 1979;

 (iv) the Australian Prudential Regulation Authority Act 1998;

 (v) the Australian Securities and Investments Commission Act 2001;

 (vi) the Australian Security Intelligence Organisation Act 1979;

 (vii) the Commonwealth Electoral Act 1918;

 (viii) the Defence Act 1903;

 (ix) the Director of Public Prosecutions Act 1983;

 (x) the Family Law Act 1975;

 (xi) the Naval Defence Act 1910;

 (xii) the Governor-General Act 1974;

 (xiii) the High Court of Australia Act 1979;

 (xiv) the Intelligence Services Act 2001;

 (xv) the Members of Parliament (Staff) Act 1984;

 (xvi) the Office of National Assessments Act 1977;

 (xvii) the Parliamentary Service Act 1999; and

 (xviii) the Public Service Act 1999.

[4] Regulation 3, after definition of FMA Orders

insert

grant has the meaning given by regulation 3A.

spending proposal means a proposal that could lead to the creation of a contract, agreement or arrangement under which public money is payable or may become payable (including public money that is payable or may become payable in circumstances in which payment would be a notional payment for the purposes of section 6 of the Act).

[5] After regulation 3

insert in Part 1

3A Meaning of grant

 (1) In these regulations, a grant is an arrangement for the provision of financial assistance by the Commonwealth:

 (a) under which public money is to be paid to a recipient other than the Commonwealth; and

 (b) which is intended to assist the recipient achieve its goals; and

 (c) which is intended to promote 1 or more of the Australian Government’s policy objectives; and

 (d) under which the recipient is required to act in accordance with any terms or conditions specified in the arrangement.

 (2) However, the following arrangements are taken not to be grants:

 (a) the procurement of property or services by an agency, including the procurement of the delivery of a service by a third party on behalf of an agency;

 (b) a gift of public property or public money, including an ex gratia payment;

 (c) a payment of compensation made under:

 (i) an act of grace arrangement; or

 (ii) an arrangement for employment compensation; or

 (iii) a similar arrangement;

 (d) a payment of benefit to a person, including a payment of an entitlement established by legislation or by a government program;

 (e) a tax concession or offset;

 (f) an investment or loan of public money;

 (g) financial assistance provided to a State in accordance with section 96 of the Constitution;

 (h) a payment to a State or a Territory that is made for the purposes of the Federal Financial Relations Act 2009, including the following:

 (i) General Revenue Assistance;

 (ii) Other General Revenue Assistance;

 (iii) National Specific Purpose Payments;

 (iv) National Partnership Payments;

 (i) a payment that is made for the purposes of the Local Government (Financial Assistance) Act 1995;

 (j) a payment that is made for the purposes of the Schools Assistance Act 2008;

 (k) a payment that is made for the purposes of the Higher Education Support Act 2003. 

[6] After regulation 5

insert

5A Business operation of an Agency

 (1) The Finance Chief Executive may, in writing, determine that an activity, or a class of activities, of an Agency specified in the determination is to be treated as a business operation of the Agency.

Note   The determination of an activity or activities as a business operation of an Agency has implications for reporting and auditing in relation to financial statements.

 (2) The Finance Chief Executive must publish a determination on the Department’s website as soon as practicable after making it.

[7] Regulation 7, heading

substitute

7 Commonwealth Procurement Guidelines (Act, s 64)

[8] Subregulation 7 (1)

omit

property and services

insert

property or services

[9] After subregulation 7 (3)

insert

 (4) An official performing duties in relation to the procurement of property or services must act in accordance with the Commonwealth Procurement Guidelines.

[10] After regulation 7

insert

7A Commonwealth Grant Guidelines (Act, s 64)

 (1) The Finance Minister may issue guidelines (to be called Commonwealth Grant Guidelines) about matters relating to grants administration.

 (2) Commonwealth Grant Guidelines must not be inconsistent with:

 (a) the Act; or

 (b) these regulations; or

 (c) FMA Orders.

 (3) Commonwealth Grant Guidelines may require that a matter must be published in the way set out in the Guidelines.

 (4) An official performing duties in relation to the administration of grants must act in accordance with the Commonwealth Grant Guidelines.

[11] Regulation 8

omit

[12] Regulation 9

substitute

9 Approval of spending proposals — principles

  An approver must not approve a spending proposal unless the approver is satisfied, after reasonable inquiries, that giving effect to the spending proposal would be a proper use of Commonwealth resources (within the meaning given by subsection 44 (3) of the Act).

Note   When this regulation commenced, subsection 44 (3) of the Act defined proper use to mean efficient, effective and ethical use that is not inconsistent with the policies of the Commonwealth.

[13] Regulation 11

omit

a proposal to spend public money

insert

a spending proposal

[14] Regulation 12

substitute

12 Recording approval of spending proposal

 (1) If approval of a spending proposal has not been given in writing:

 (a) the approver must record the terms of the approval in writing as soon as practicable after giving the approval; and

 (b) if the spending proposal relates to a grant, the approver must include in the record the basis on which the approver is satisfied that the spending proposal complies with regulation 9.

 (2) If:

 (a) approval of a spending proposal has been given in writing; and

 (b) the spending proposal relates to a grant; and

 (c) the approver has not recorded in writing the basis on which the approver is satisfied that the spending proposal complies with regulation 9;

the approver must record that basis in writing as soon as practicable after giving the approval.

[15] Regulation 13

substitute

13 Entering into contract, agreement or arrangement

  A person must not enter into a contract, agreement or arrangement under which public money is, or may become, payable unless a spending proposal has been approved under regulation 9 and, if necessary, in accordance with regulation 10.

[16] Paragraph 14 (2) (a)

omit

a proposal to spend public money

insert

a spending proposal

[17] Subregulation 15 (8), definition of employee

omit

[18] After subregulation 16A (2)

insert

 (3) An official performing duties in relation to the control and reporting of fraud must act in accordance with the Fraud Control Guidelines.

[19] Regulation 16B

omit

[20] Part 9, heading

substitute

Part 9 Modified operation of Act and relevant regulations

[21] After regulation 28

insert

28A Non-application of relevant regulations to operational money

 (1) Subregulations 7 (4), 7A (4) and 16A (3) do not apply to an official of:

 (a) an intelligence or security agency; or

 (b) a prescribed law enforcement agency;

who performs duties in relation to the procurement of property or services, the administration of grants or the control and reporting of fraud.

 (2) Subregulation (1) has effect only to the extent that the public money involved is operational money within the meaning of section 5 of the Act as modified in accordance with Schedule 2.

 (3) Regulation 9 does not apply to a spending proposal by:

 (a) an intelligence or security agency; or

 (b) a prescribed law enforcement agency;

to spend operational money within the meaning of section 5 of the Act as modified in accordance with Schedule 2.

 (4) In this regulation:

intelligence or security agency has the meaning given by subsection 58 (2) of the Act.

prescribed law enforcement agency has the meaning given by subsection 58 (2) of the Act.

[22] After Part 10

insert

Part 11 Transferring leave entitlements — payments when employees move between Agencies etc

31 Application of Part 11

 (1) This Part applies if

 (a) an employee in an Agency (the old employer) moves to another Agency, a Commonwealth authority or the High Court of Australia, (the new employer); and

 (b) some or all of the employee’s accrued leave entitlements are transferred to the new employer as part of the employee’s move; and

 (c) the move is not a direct consequence of the transfer of a government function.

Note   Agency is defined in section 5 of the Act. It includes a Department of State, a Department of the Parliament and an Agency prescribed by the FMA Regulations.

 (2) In this regulation:

Commonwealth authority has the same meaning as in the Commonwealth Authorities and Companies Act 1997.

32 Agencies to co-operate

  The old employer must give reasonable assistance necessary for the new employer to prepare the invoice for the purposes of regulation 33, including information in writing about the employee’s entitlements.

33 Payment within 30 days of a correctly rendered invoice

 (1) Within 30 days of the receipt of a correctly rendered invoice from the new employer, the old employer must pay to the new employer an amount equal to the sum of the value, worked out on the basis of the employee’s salary immediately before leaving the old employer, of:

 (a) the employee’s annual leave entitlement at that time; and

 (b) 95% of the employee’s long service leave entitlement at that time.

Note   Where, for example, an employee has moved from the old employer to the new employer for a short period (and will be returning to the old employer), the employers may agree that it is not efficient for the new employer to send an invoice and for the old employer to pay an amount under this regulation (as long as the employee will not be deprived of access to relevant leave).

 (2) In subregulation (1):

long service leave entitlement, for an employee, means:

 (a) the period of long service leave to which the employee is legally entitled; or

 (b) if the employee is not legally entitled to any long service leave — the amount worked out by multiplying the notional amount of long service leave to which the employee is entitled for a year of service by the weighting factor set out in the following table that applies to the number of years of service the employee has completed.

34 Specific rules affecting members of the Defence Force

 (1) If:

 (a) the employee was engaged by the old employer as a member of the Defence Force; and

 (b) the employee is engaged by the new employer in a capacity other than as a member of the Defence Force; and

 (c) the employee is not legally entitled to any long service leave immediately before becoming engaged in the new employer; and

 (d) the employee’s salary, immediately before moving from the old employer, is greater than the employee’s salary immediately on moving to the new employer;

the value of the employee’s long service leave entitlement is to be worked out on the basis of the employee’s salary immediately on moving to the new employer.

 (2)  In subregulation (1):

long service leave entitlement, for an employee, has the meaning given by subregulation 33 (2).

[23] Schedule 1, Part 1, Note A

omit

• Office of Workplace Services (Gazette S 42, published on 17 March 2006)

[24] Schedule 2, item [7]

substitute

[7] Subsection 49 (2)

omit

those Orders require

insert

the agreement requires

[25] Schedule 2, item [11]

substitute

[11] Paragraph 57 (2) (a)

omit

the Finance Minister’s Orders

insert

an agreement between the Finance Minister and the Minister responsible for an Agency

[11A] Paragraph 57 (2) (b)

omit

those Orders

insert

the agreement

Notes to the Financial Management and Accountability Amendment Regulations 2009 (No. 4)

Note 1

The Financial Management and Accountability Amendment Regulations 2009 (No. 4) (in force under the Financial Management and Accountability Act 1997) as shown in this compilation comprise Select Legislative Instrument 2009 No. 134 amended as indicated in the Tables below.

Table of Instruments

Table of Amendments