Auditor-General Act 1997

• Commonwealth entities and their officials, who must have their annual financial statements and performance statements audited and pay the associated audit fees.
• Commonwealth companies and their directors and subsidiaries, subject to mandatory financial statement audits.
• Government business enterprises (GBEs), whose performance audits require a request from the Joint Committee of Public Accounts and Audit (s 17(2)).
• Commonwealth partners, who are subject to the Auditor-General's audit and access powers when they receive Commonwealth funding to achieve a Commonwealth purpose.
• Persons and bodies holding Commonwealth documents, who may be subject to s 32 notices directing production of documents and attendance to give evidence.
• The Attorney-General, who may issue certificates under s 37 preventing inclusion of sensitive information in public audit reports.
• Joint Committee of Public Accounts and Audit, which determines audit priorities to which the Auditor-General must have regard (s 10).
• All Parliament, whose audit priorities the Auditor-General must consider.
• ANAO staff, who are subject to the secrecy obligation in s 36.

Mandatory financial statement audits. The Auditor-General must audit the annual financial statements of Commonwealth entities and Commonwealth companies in accordance with the PGPA Act 2013 (ss 11-12). This is a non-discretionary function.

Mandatory performance statement audits. Section 15 requires the Auditor-General to audit annual performance statements of Commonwealth entities as specified in the PGPA Act 2013.

Auditing standards. Section 24 requires the Auditor-General to set auditing standards by notice in the Gazette for all financial statement audits, performance statement audits, performance audits, and audits under s 49 of the PGPA Act 2013.

Annual report. Section 28 requires the Auditor-General to prepare an annual report on ANAO activities for each financial year and cause a copy to be tabled in each House of the Parliament as soon as practicable after 30 June.

Comment on proposed reports. Section 19 requires the Auditor-General, after preparing a proposed report on an audit of a Commonwealth entity or company, to give the relevant accountable authority or directors an opportunity to comment within a specified period. Their comments must be fairly taken into account and, if they wish, included in the final report.

Secrecy obligation. Section 36(1) requires anyone who has obtained information in the course of performing an Auditor-General function not to disclose that information except in the course of performing such a function or for the purposes of an Act giving functions to the Auditor-General. Penalty: 2 years imprisonment.

Sensitive information exclusion. Section 37 prohibits the Auditor-General from including in a public report information that the Auditor-General considers contrary to the public interest (for specified reasons such as national security or privacy) or in respect of which the Attorney-General has issued a certificate to that effect.

Independence of the Auditor-General. Section 8(4) gives the Auditor-General complete discretion over whether to conduct a particular audit, how to conduct it, and its priority. This is the foundational power of the office.

Performance audit power. Section 17(1) allows the Auditor-General to conduct a performance audit of a Commonwealth entity, company or subsidiary at any time. For GBEs, performance audits require a request from the Joint Committee of Public Accounts and Audit (s 17(2)).

General performance audit. Section 18(1) allows the Auditor-General to conduct a review or examination of any aspect of the operations of a person or body that has received, has the custody or use of, or is accountable for, Commonwealth money or property.

Arrangements with non-Commonwealth bodies. Section 20 allows the Auditor-General to enter into arrangements with any State or Territory, State or Territory body, or other person or body to conduct audits, provide advice, or exercise other functions. Work done under s 20 is not an Auditor-General function for the purposes of ss 32, 33 or the secrecy obligation.

Information-gathering powers. Under s 32, the Auditor-General may direct any person to provide information, attend and give evidence before the Auditor-General or an authorised official, or produce documents. These powers are not limited by claim of legal professional privilege or other common law privileges (except those relating to parliamentary privilege under s 30). Proceedings under s 32(1)(b) constitute judicial proceedings for the purposes of Part III of the Crimes Act 1914, making perjury in that context a serious criminal offence.

Access to premises. Under s 33, the Auditor-General or an authorised official may at all reasonable times enter and remain on Commonwealth premises, access documents and property, and copy documents.

Extra reports to Parliament. Section 25 allows the Auditor-General to table reports in either House of the Parliament on any matter, providing a mechanism to put audit findings into the public domain outside the formal post-audit reporting cycle.

Delegation. Section 29 allows the Auditor-General to delegate functions and powers to officials of non-corporate Commonwealth entities.

• Failure to comply with a s 32 notice: the notice is backed by the criminal sanction of the Crimes Act 1914 for false or misleading evidence (as a judicial proceeding). The Act does not set a standalone penalty but relies on the Crimes Act framework.
• Secrecy breach (s 36): 2 years imprisonment for disclosing information obtained in performing an Auditor-General function.
• Audit fees: unpaid fees under ss 14 and 16 are debts due to the Commonwealth recoverable by action in a court of competent jurisdiction. Payment is due within 30 days of a payment claim.

Financial statement audits. Annual financial statements must be audited in accordance with the PGPA Act 2013 timeline. The Auditor-General provides an audit opinion on the statements.

Performance statement audits. Timed to coincide with the PGPA Act 2013 annual reporting cycle. Section 15 establishes the obligation; the PGPA Act governs preparation of the statements.

Performance audits. No fixed statutory timeline. The Auditor-General determines priority and timing.

Comment on proposed reports. After preparing a proposed audit report, the Auditor-General must give the relevant entity an opportunity to comment. Comments must be considered. Section 19 governs this step.

Tabling of audit reports. After completing a performance audit report, the Auditor-General must as soon as practicable: table a copy in each House of the Parliament; give a copy to the responsible Minister; and give a copy to the relevant entity's accountable authority or directors (s 17(4)).

Annual report. Prepared as soon as practicable after 30 June each year and tabled in each House (s 28).

Public Governance, Performance and Accountability Act 2013 (Cth). The PGPA Act is the essential companion to this Act. It defines Commonwealth entities, companies, accountable authorities, performance statements and related concepts that the audit framework relies upon. Section 49 of the PGPA Act requires the Auditor-General to conduct specific audits.

Crimes Act 1914 (Cth). Proceedings under s 32(1)(b) (attendance and giving of evidence before the Auditor-General) are judicial proceedings for the purposes of Part III of the Crimes Act, making it an offence to give false or misleading evidence.

Corporations Act 2001 (Cth). Section 21 allows the Auditor-General to accept appointment as an auditor under the Corporations Act for Commonwealth companies, expanding the Auditor-General's function beyond public sector roles.

Public Accounts and Audit Committee Act 1951 (Cth). The Joint Committee of Public Accounts and Audit, constituted under that Act, determines audit priorities to which the Auditor-General must have regard (s 10). For GBEs, performance audits require a committee request (s 17(2)).

Parliamentary Privileges Act 1987 (Cth). Section 30 provides that the information-gathering powers in ss 32 and 33 are limited by laws relating to the powers, privileges and immunities of each House of Parliament, including the Parliamentary Privileges Act 1987. This preserves the non-interference principle from Art 9 of the Bill of Rights 1688 as applied in the Commonwealth context.

Governance of Australian Government Superannuation Schemes Act 2011 (Cth). Section 14(1)(b) includes financial statement audits under that Act within the audit fee liability.

Legislation Act 2003 (Cth). Auditing standards made under s 24 are made by Gazette notice and constitute legislative instruments.

Information-gathering powers do not extend to all Auditor-General functions. Section 31 limits the use of ss 32 and 33 powers: they cannot be used for assurance reviews that are not priority assurance reviews, audits by arrangement under s 20, advice under s 23, or extra reports under ss 25 and 26. A person who receives a s 32 notice for a non-covered function may legitimately decline to comply.

Self-incrimination is not an excuse. Section 35 removes the right to refuse production or evidence on self-incrimination grounds. The protections for the individual are limited to use-immunity: the answer or document, and anything derived from it, cannot be used against the person in criminal proceedings (other than proceedings for an offence against this Act or an offence against Part III of the Crimes Act).

Parliamentary privilege limits access. Section 30 makes clear that parliamentary privilege under the Parliamentary Privileges Act 1987 limits the operation of the information-gathering powers in ss 32 and 33. The Auditor-General cannot use coercive powers to access documents or information protected by parliamentary privilege.

GBE performance audits require a parliamentary committee request. Under s 17(2), the Auditor-General may only conduct a performance audit of a GBE on request from the Joint Committee of Public Accounts and Audit. This is a meaningful constraint: GBEs cannot be unilaterally audited on the Auditor-General's own initiative.

Sensitive information certificates bind the Auditor-General. Once the Attorney-General issues a certificate under s 37, the Auditor-General has no discretion to include the affected information in a public report. The certificate mechanism transfers the public interest judgment from the Auditor-General to the Attorney-General for the specified material.

Example 1: Department financial statement audit. A Commonwealth department prepares its annual financial statements in accordance with the PGPA Act 2013. The Auditor-General audits those statements in accordance with the auditing standards set under s 24. The department is a non-corporate Commonwealth entity and so does not pay audit fees. The audit opinion is included in the department's annual report.

Example 2: Corporate Commonwealth entity performance audit. The Auditor-General decides to conduct a performance audit of a corporate Commonwealth entity's procurement processes. The Auditor-General prepares a proposed report. Under s 19, the accountable authority of the entity is given an opportunity to comment. The entity's comments are considered and, where the entity wishes, included in the final report. The final report is tabled in each House of the Parliament (s 17(4)(a)).

Example 3: Production notice. During a performance audit, the Auditor-General reasonably believes a former employee holds documents relevant to the audit. A written notice under s 32 is issued directing the person to produce specified documents within 14 days. The person may not decline on grounds of self-incrimination (s 35). The proceeding to give evidence is a judicial proceeding under the Crimes Act 1914.

Example 4: Sensitive information certificate. The Auditor-General prepares a performance audit report on a Commonwealth agency's security operations. The audit report contains information about operational methods. The Attorney-General issues a certificate under s 37 stating that disclosure of the specified information would be contrary to the public interest for national security reasons. The Auditor-General must exclude that information from the tabled report.

Example 5: GBE performance audit. A government business enterprise is the subject of public concern about its procurement and management practices. A member of the public writes to the Auditor-General requesting a performance audit. The Auditor-General may discuss the matter with the GBE but cannot unilaterally commence a performance audit. The audit may proceed only after the Joint Committee of Public Accounts and Audit makes a request under s 17(2).