Division 2Performance audits

An Act to provide for the appointment of an Auditor‑General, to set out the functions of the Auditor‑General, and for related purposes ## Part 1—Preliminary #### 1 Short title This Act may be cited as the Auditor‑General Act 1997. #### 2 Commencement This Act commences on the same day as the Financial Management and Accountability Act 1997. #### 3 This Act binds the Crown This Act binds the Crown in right of the Commonwealth, but does not make the Crown liable to be prosecuted for an offence. #### 3A Norfolk Island This Act extends to Norfolk Island. #### 4 This Act extends to things outside Australia This Act extends to acts, omissions, matters and things outside Australia (unless the contrary intention appears). ## Part 2—Interpretation #### 5 Definitions In this Act, unless the contrary intention appears: > accountable authority, of a Commonwealth entity, has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > assurance review means a review conducted in accordance with the standards set by the Auditor‑General under section 24 for assurance reviews. > Audit Office means the Australian National Audit Office established by section 38. > Auditor‑General function means a function that the Auditor‑General has under this Act or any other Act, and includes any function that the Auditor‑General has when acting as auditor under the Corporations Act 2001. > Australia, when used in a geographical sense, includes Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island. > Commonwealth company has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > Commonwealth partner has the meaning given by subsection 18B(2). > corporate Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011. > director, of a Commonwealth company, has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > Finance Minister means the Minister who is the Finance Minister within the meaning of the Public Governance, Performance and Accountability Act 2013. > GBE or government business enterprise has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > Joint Committee of Public Accounts and Audit means the Joint Committee of Public Accounts and Audit provided for in the Public Accounts and Audit Committee Act 1951. > laws of the Commonwealth means: (a) the Constitution; and (b) Acts; and (c) regulations and other instruments made under Acts. > Minister includes the President of the Senate and the Speaker of the House of Representatives. > non‑corporate Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > official, of a Commonwealth entity, has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > performance audit, in relation to a person or body, means a review or examination of any aspect of the operations of the person or body. > priority assurance review has the meaning given by subsection 19A(5). > responsible Minister: (a) in relation to a Commonwealth entity or a Commonwealth company—has the same meaning as in the Public Governance, Performance and Accountability Act 2013; and (b) in relation to a Commonwealth partner—means the Minister responsible for achieving the Commonwealth purpose concerned; and (c) in relation to a subsidiary of a corporate Commonwealth entity or a Commonwealth company—the responsible Minister for the entity or company concerned. > subsidiary, of a corporate Commonwealth entity or a Commonwealth company, has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > wholly‑owned Commonwealth company has the same meaning as in the Public Governance, Performance and Accountability Act 2013. ## Part 3—The Auditor‑General #### 7 Auditor‑General (1) There is to be an Auditor‑General for the Commonwealth. (2) Whenever a vacancy occurs in the office of Auditor‑General, an appointment must be made to the office as soon as practicable. #### 8 Independence of the Auditor‑General (1) The Auditor‑General is an independent officer of the Parliament. (2) The functions, powers, rights, immunities and obligations of the Auditor‑General are as specified in this Act and other laws of the Commonwealth. There are no implied functions, powers, rights, immunities or obligations arising from the Auditor‑General being an independent officer of the Parliament. (3) The powers of the Parliament to act in relation to the Auditor‑General are as specified in or applying under this Act and other laws of the Commonwealth. For this purpose, Parliament includes: (a) each House of the Parliament; and (b) the members of each House of the Parliament; and (c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament. There are no implied powers of the Parliament arising from the Auditor‑General being an independent officer of the Parliament. (4) Subject to this Act and to other laws of the Commonwealth, the Auditor‑General has complete discretion in the performance or exercise of his or her functions or powers. 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) the priority to be given to any particular matter. #### 9 Appointment, conditions etc. for Auditor‑General Schedule 1 sets out the conditions of appointment and other matters that have effect in relation to the office of Auditor‑General. #### 10 Auditor‑General to have regard to audit priorities of Parliament etc. In performing or exercising his or her functions or powers, the Auditor‑General must have regard to: (a) the audit priorities of the Parliament determined by the Joint Committee of Public Accounts and Audit under paragraph 8(1)(m) of the Public Accounts and Audit Committee Act 1951; and (b) any reports made by that Committee under paragraph 8(1)(h) or 8(1)(i) of that Act. ## Part 4—Main functions and powers of the Auditor‑General ### Division 1—Annual financial statement audits #### 11 Annual financial statements of Commonwealth entities, Commonwealth companies and subsidiaries The Auditor‑General’s functions include auditing the: (a) annual financial statements of Commonwealth entities in accordance with the Public Governance, Performance and Accountability Act 2013; and (b) annual financial statements of Commonwealth companies in accordance with that Act; and (c) annual financial statements of subsidiaries of corporate Commonwealth entities and Commonwealth companies in accordance with that Act. #### 12 Annual consolidated financial statements The Auditor‑General’s functions include auditing the annual consolidated financial statements in accordance with the Public Governance, Performance and Accountability Act 2013. #### 14 Audit fees for annual financial statement audits (1) A person or body (other than a non‑corporate Commonwealth entity) whose annual financial statements are audited as mentioned in: (a) section 11 of this Act; or (b) subsection 30(3) of the Governance of Australian Government Superannuation Schemes Act 2011; is liable to pay audit fees for the audit, based on a scale of fees determined by the Auditor‑General. (2) Fees are payable within 30 days after issue of a payment claim. Payment claims for instalments may be issued before the audit is completed. (3) Unpaid fees: (a) are a debt due to the Commonwealth; and (b) may be recovered by the Auditor‑General, on behalf of the Commonwealth, by action in a court of competent jurisdiction. (4) In each annual report prepared by the Auditor‑General under section 28 of this Act, the Auditor‑General must include details of the basis on which the Auditor‑General determined the audit fees that applied during the financial year concerned. ### Division 1A—Annual performance statement audits #### 15 Commonwealth entities The Auditor‑General’s functions include auditing annual performance statements of Commonwealth entities in accordance with the Public Governance, Performance and Accountability Act 2013. #### 16 Audit fees for annual performance statement audits (1) A corporate Commonwealth entity whose annual performance statements are audited as mentioned in section 15 is liable to pay audit fees for the audit, based on a scale of fees determined by the Auditor‑General. (2) Fees are payable within 30 days after issue of a payment claim. Payment claims for instalments may be issued before the audit is completed. (3) Unpaid fees: (a) are a debt due to the Commonwealth; and (b) may be recovered by the Auditor‑General, on behalf of the Commonwealth, by action in a court of competent jurisdiction. (4) In each annual report prepared by the Auditor‑General under section 28, the Auditor‑General must include details of the basis on which the Auditor‑General determined the audit fees that applied during the financial year concerned. ### Division 2—Performance audits #### 17 Performance audits of Commonwealth entities, Commonwealth companies and subsidiaries (1) The Auditor‑General may at any time conduct a performance audit of: (a) a Commonwealth entity; or (b) a Commonwealth company; or (c) a subsidiary of a corporate Commonwealth entity or a Commonwealth company. (2) However, the Auditor‑General may only conduct such an audit on request by the Joint Committee of Public Accounts and Audit if the audit is of: (a) a corporate Commonwealth entity that is a GBE, or of any of its subsidiaries; or (b) a wholly‑owned Commonwealth company that is a GBE, or any of its subsidiaries. (3) Nothing prevents the Auditor‑General from asking the Joint Committee of Public Accounts and Audit to make a particular request under subsection (2). (4) As soon as practicable after completing the report on an audit under this section, the Auditor‑General must: (a) cause a copy of the report to be tabled in each House of the Parliament; and (b) give a copy of the report to the responsible Minister; and (c) give a copy of the report: (i) if the audit is of a Commonwealth entity—to an official who is, or is a member of, the accountable authority of the entity; or (ii) if the audit is of a Commonwealth company—to a director of the company; or (iii) if the audit is of a subsidiary of a corporate Commonwealth entity or Commonwealth company—to a person who is, or is a member of, the governing body of the subsidiary; and (d) to the extent that the report relates to the operations of a Commonwealth partner—give a copy of the report to a person who is, or is a member of, the governing body of the Commonwealth partner. (5) The Auditor‑General may give a copy of, or an extract from, the report to any person (including a Minister) who, or any body that, in the Auditor‑General’s opinion, has a special interest in the report or the content of the extract. (6) For the purposes of this section, a Commonwealth entity is taken not to include any persons who are: (a) employed under the Members of Parliament (Staff) Act 1984; and (b) prescribed by an Act or rules made for the purposes of the definition of Department of State or Parliamentary Department in section 8 of the Public Governance, Performance and Accountability Act 2013 in relation to the entity. #### 18 General performance audit (1) The Auditor‑General may at any time conduct a review or examination of a particular aspect of the operations of the whole or part of the Commonwealth public sector, being a review or examination that is not limited to the operations of only one Commonwealth entity, body or person. (2) As soon as practicable after completing the report on an audit under this section, the Auditor‑General must: (a) cause a copy of the report to be tabled in each House of the Parliament; and (b) give a copy of the report to the Finance Minister; and (c) give a copy of the report to each responsible Minister; and (d) to the extent that the report relates to the operations of a Commonwealth entity—give a copy of the report to a person who is, or is a member of, the accountable authority of the entity; and (e) to the extent that the report relates to the operations of a Commonwealth company—give a copy of the report to a director of the company; and (f) to the extent that the report relates to the operations of a subsidiary of a corporate Commonwealth entity or a Commonwealth company—give a copy of the report to a person who is, or is a member of, the governing body of the subsidiary; and (g) to the extent that the report relates to the operations of a person who is not a Commonwealth partner—give a copy of the report to the person; and (h) to the extent that the report relates to the operations of a Commonwealth partner—give a copy of the report to a person who is, or is a member of, the governing body of the Commonwealth partner. (3) The Auditor‑General may give a copy of, or an extract from, the report to any other person (including a Minister) who, or any body that, in the Auditor‑General’s opinion, has a special interest in the report or the content of the extract. (4) In this section: > Commonwealth public sector means non‑corporate Commonwealth entities, corporate Commonwealth entities (other than GBEs) and their subsidiaries and Commonwealth companies (other than GBEs) and their subsidiaries. #### 18A Audit of performance measures (1) The Auditor‑General may at any time conduct an audit of: (a) the appropriateness of the performance measures (however described) of: (i) a Commonwealth entity; or (ii) a Commonwealth company; or (iii) a subsidiary of a corporate Commonwealth entity or a Commonwealth company; and (b) reporting by the entity, company or subsidiary against those measures. (2) However, the Auditor‑General may only conduct such an audit on request by the Joint Committee of Public Accounts and Audit if the audit is of: (a) a corporate Commonwealth entity that is a GBE, or of any of its subsidiaries; or (b) a wholly‑owned Commonwealth company that is a GBE, or of any of its subsidiaries. (3) Nothing prevents the Auditor‑General from asking the Joint Committee of Public Accounts and Audit to make a particular request under subsection (2). (4) As soon as practicable after completing the report on an audit under this section, the Auditor‑General must: (a) cause a copy of the report to be tabled in each House of the Parliament; and (b) give a copy of the report to the responsible Minister; and (c) give a copy of the report: (i) if the audit is of a Commonwealth entity—to an official who is, or is a member of, the accountable authority of the entity; or (ii) if the audit is of a Commonwealth company—to a director of the company; or (iii) if the audit is of a subsidiary of a corporate Commonwealth entity or Commonwealth company—to a person who is, or is a member of, the governing body of the subsidiary. (5) Subsection (4) does not apply if the report is, or is to be, included in the annual report of the Commonwealth entity or Commonwealth company. (6) The Auditor‑General may give a copy of, or an extract from, the report to any person (including a Minister) who, or any body that, in the Auditor‑General’s opinion, has a special interest in the report or the content of the extract. #### 18B Commonwealth partners (1) The Auditor‑General may conduct a performance audit of a Commonwealth partner: (a) if the partner is, is part of, or is controlled by, the Government of a State or Territory—at the request of the responsible Minister or the Joint Committee of Public Accounts and Audit; or (b) otherwise—at any time. (2) A person or body is a Commonwealth partner if: (a) the Commonwealth provides money for a particular purpose (the Commonwealth purpose); and (b) the person or body receives some or all of the money, whether directly or indirectly, because the person or body: (i) agrees to use the money in achieving the Commonwealth purpose; or (ii) has entered into a contract that relates to the Commonwealth purpose; and (c) an audit of the person or body could not be conducted under another section of this Division. (3) The audit may be conducted only to the extent that it assesses the operations of the Commonwealth partner in relation to achieving the Commonwealth purpose. (4) The audit may be conducted as part of an audit under section 17 or 18. (5) The report on the audit must include the reasons for conducting the audit. (6) As soon as practicable after completing the report on the audit, the Auditor‑General must: (a) cause a copy of the report to be tabled in each House of the Parliament; and (b) give a copy of the report to the responsible Minister; and (c) give a copy of the report to a person who is, or is a member of, the governing body of the Commonwealth partner. (7) Subsection (6) does not apply if the report is, or is to be, included in the report on an audit under section 17 or 18. (8) The Auditor‑General may give a copy of, or an extract from, the report to any person (including a Minister) who, or any body that, in the Auditor‑General’s opinion, has a special interest in the report or the content of the extract. (9) Nothing prevents the Auditor‑General from asking the responsible Minister or the Joint Committee of Public Accounts and Audit to make a particular request for the purposes of paragraph (1)(a). #### 19 Comments on proposed report (1) After preparing a proposed report on an audit of a Commonwealth entity under paragraph 17(1)(a), the Auditor‑General must: (a) give a copy of the proposed report to an official who is, or is a member of, the accountable authority of the entity; and (b) to the extent that the proposed report relates to the operations of a Commonwealth partner—give a person who is, or is a member of, the governing body of the Commonwealth partner: (i) a copy of the proposed report; or (ii) extracts of the parts of the proposed report that deal with the audit of the Commonwealth partner; or (iii) extracts of the proposed report that include the parts of the proposed report that deal with the audit of the Commonwealth partner. (2) After preparing a proposed report on an audit of a body under paragraph 17(1)(b) or (c), the Auditor‑General must: (a) give a copy of the proposed report to: (i) if the audit is of a Commonwealth company—to a director of the company; or (ii) if the audit is of a subsidiary of a corporate Commonwealth entity or Commonwealth company—to a person who is, or is a member of, the governing body of the subsidiary; and (b) to the extent that the proposed report relates to the operations of a Commonwealth partner—give a person who is, or is a member of, the governing body of the Commonwealth partner: (i) a copy of the proposed report; or (ii) extracts of the parts of the proposed report that deal with the audit of the Commonwealth partner; or (iii) extracts of the proposed report that include the parts of the proposed report that deal with the audit of the Commonwealth partner. (3) After preparing a proposed report under section 18A on an audit of the performance measures of a body and the body’s reporting against those measures, the Auditor‑General must give a copy of the proposed report to: (a) if the audit is of a Commonwealth entity—to an official who is, or is a member of, the accountable authority of the entity; or (b) if the audit is of a Commonwealth company—to a director of the company; or (c) if the audit is of a subsidiary of a corporate Commonwealth entity or Commonwealth company—to a person who is, or is a member of, the governing body of the subsidiary. (4) After preparing a proposed report on an audit of a Commonwealth partner under section 18B, the Auditor‑General must give a copy of the proposed report to a person who is, or is a member of, the governing body of the Commonwealth partner. (5) Subsection (4) does not apply if: (a) the proposed report is included, or is to be included, in the proposed report on an audit under section 17; or (b) the audit of the Commonwealth partner was conducted as part of an audit under section 18. (6) After preparing a proposed report on an audit under section 17, 18, 18A or 18B, the Auditor‑General may give a copy of, or an extract from, the proposed report to any person (including a Minister) who, or any body that, in the Auditor‑General’s opinion, has a special interest in the report or the content of the extract. (7) If the recipient of the proposed report, or the extract from the proposed report, gives written comments to the Auditor‑General as follows, the Auditor‑General must consider those comments before preparing a final report: (a) in the case of a proposed report on an audit under section 18A (audit of performance measures)—within 14 days after receiving the proposed report, or the extract from the proposed report; (b) otherwise—within 28 days after receiving the proposed report, or the extract from the proposed report. (8) The Auditor‑General must, in the final report, include all written comments received under subsection (7). ### Division 2A—Assurance reviews #### 19A Assurance reviews (1) The Auditor‑General may at any time conduct an assurance review of: (a) a Commonwealth entity; or (b) a Commonwealth company; or (c) a subsidiary of a corporate Commonwealth entity or a Commonwealth company. (2) However, the Auditor‑General may only conduct such an assurance review on request by the Joint Committee of Public Accounts and Audit if the review is of: (a) a corporate Commonwealth entity that is a GBE, or of any of its subsidiaries; or (b) a wholly‑owned Commonwealth company that is a GBE, or of any of its subsidiaries. (3) Nothing prevents the Auditor‑General from asking the Joint Committee of Public Accounts and Audit to make a particular request under subsection (2). (4) The Auditor‑General may determine arrangements for the conduct of an assurance review, including arrangements for reporting to the Parliament. (5) The Joint Committee of Public Accounts and Audit may identify an assurance review as a priority. A review so identified is a priority assurance review. (6) As soon as practicable after completing the report on a priority assurance review, the Auditor‑General must cause a copy of the report to be tabled in each House of the Parliament. ### Division 3—Audits etc. by arrangement #### 20 Audits etc. by arrangement (1) The Auditor‑General may enter into an arrangement with any person or body: (a) to audit financial statements of the person or body; or (b) to conduct a performance audit of the person or body; or (c) to provide services to the person or body that are of a kind commonly performed by auditors. (2) An arrangement may provide for the payment of fees to the Auditor‑General. The fees are to be received by the Auditor‑General on behalf of the Commonwealth. (3) The Auditor‑General must not perform functions under this section for a purpose that is outside the Commonwealth’s legislative power. (4) Divisions 2 and 2A do not limit the power of the Auditor‑General under this section to enter into an arrangement with a GBE. ### Division 4—Functions under other Acts #### 21 Acting as auditor under the Corporations Act (1) The Auditor‑General may accept appointment under the Corporations Act 2001 as the auditor of: (a) a subsidiary of a corporate Commonwealth entity; or (b) a Commonwealth company or a subsidiary of a Commonwealth company; or (c) any other company that the Commonwealth controls (within the meaning of subsection 89(2) of the Public Governance, Performance and Accountability Act 2013). (2) This section does not, by implication, limit the Auditor‑General’s power to enter into arrangements under section 20. #### 22 Functions under other Acts The Auditor‑General’s functions include any functions given to the Auditor‑General by any other Act. ### Division 5—Miscellaneous functions and powers #### 23 Provision of advice or information (1) The Auditor‑General may provide advice or information to a person or body relating to the Auditor‑General’s responsibilities if, in the Auditor‑General’s opinion, it is in the Commonwealth’s interests to provide the information or advice. (2) In this section: > Auditor‑General’s responsibilities means: (a) the Auditor‑General’s functions and powers; and (b) any matter which the Auditor‑General could consider when exercising those functions and powers. #### 23A Information sharing A person (the information holder) may disclose information to another person (the recipient) if: (a) the information was obtained or generated by the information holder in the course of performing an Auditor‑General function; and (b) the information is provided to the recipient to assist the information holder in conducting an audit under Division 2 or 2A, or a performance audit under an arrangement entered into under Division 3. #### 24 Auditing standards The Auditor‑General must, by notice in the Gazette, set auditing standards that are to be complied with by persons performing any of the following functions: (a) an audit or review referred to in Division 1, 1A, 2 or 2A; (b) an audit under Division 2 of Part 7; (c) an audit under section 49 of the Public Governance, Performance and Accountability Act 2013. #### 25 Extra reports to Parliament (1) The Auditor‑General may at any time cause a report to be tabled in either House of the Parliament on any matter. (2) The Auditor‑General must give a copy of the report to the Prime Minister, the Finance Minister and to any other Minister who, in the Auditor‑General’s opinion, has a special interest in the report. #### 26 Extra reports to Ministers (1) The Auditor‑General must bring to the attention of the responsible Minister any important matter that comes to the attention of the Auditor‑General while: (a) conducting an audit referred to in Division 1; or (b) performing functions as an auditor under the Corporations Act 2001. For this purpose, important matter means any matter that, in the Auditor‑General’s opinion, is important enough to justify it being brought to the attention of the responsible Minister. (2) The Auditor‑General may at any time give a report to any Minister on any matter. #### 27 Contracting outsiders to assist with audits The Auditor‑General, on behalf of the Commonwealth, may engage any person under contract to assist in the performance of any Auditor‑General function. #### 28 Annual report for the Australian National Audit Office (1) As soon as practicable after 30 June in each financial year, the Auditor‑General must: (a) prepare a report on the activities of the Audit Office during that financial year; and (b) cause a copy of the report to be tabled in each House of the Parliament. > Note: The following provisions set out information that must be included in the Audit Office’s annual report: (a) subsections 14(4), 16(4) and 54(4) of this Act; (b) paragraph 39(1)(b) and subsection 43(4) of the Public Governance, Performance and Accountability Act 2013. (2) The annual report must be tabled by: (a) the 15th day of October; or (b) the end of any further period granted under subsection 34C(5) of the Acts Interpretation Act 1901. (3) The annual report must comply with any requirements prescribed by rules made for the purposes of subsection 46(3) of the Public Governance, Performance and Accountability Act 2013, in relation to non‑corporate Commonwealth entities, as if a reference in those rules to section 46 of that Act were a reference to this section. (4) An annual report is taken, for the purposes of any other Act, to be a report under section 46 of the Public Governance, Performance and Accountability Act 2013. (5) Section 46 of the Public Governance, Performance and Accountability Act 2013 does not apply in relation to the Auditor‑General. #### 29 Delegation by Auditor‑General (1) The Auditor‑General may, by written instrument, delegate any of the Auditor‑General’s powers or functions under any Act to an official of a non‑corporate Commonwealth entity. (2) In exercising powers or functions under the delegation, the official must comply with any directions of the Auditor‑General. ## Part 5—Information‑gathering powers and secrecy ### Division 1—Information‑gathering powers #### 30 Relationship of information‑gathering powers with other laws (1) The operation of sections 32 and 33: (a) is limited by laws of the Commonwealth (whether made before or after the commencement of this Act) relating to the powers, privileges and immunities of: (i) each House of the Parliament; and (ii) the members of each House of the Parliament; and (iii) the committees of each House of the Parliament and joint committees of both Houses of the Parliament; but (b) is not limited by: (i) any other law (whether made before or after the commencement of this Act), except to the extent that the other law expressly excludes the operation of section 32 or 33; or (ii) any rule of law relating to legal professional privilege or any other privilege, or the public interest, in relation to the disclosure of information or the production of documents. (2) Disclosure or production of, or access to, information or a document under section 32 or 33 does not otherwise affect the operation of a rule of law relating to privilege or the public interest in relation to disclosure of the information or production of the document. #### 31 Purpose for which information‑gathering powers may be used The powers under sections 32 and 33 may be used for the purpose of, or in connection with, any Auditor‑General function, except: (aa) an assurance review that is not a priority assurance review; or (a) an audit or other function under section 20; or (b) providing advice or information under section 23; or (c) preparing a report under section 25 or 26. #### 32 Power of Auditor‑General to obtain information (1) The Auditor‑General may, by written notice, direct a person to do all or any of the following: (a) to provide the Auditor‑General with any information that the Auditor‑General requires; (b) to attend and give evidence before the Auditor‑General or an authorised official; (c) to produce to the Auditor‑General any documents in the custody or under the control of the person. > Note: A proceeding under paragraph (1)(b) is a “judicial proceeding” for the purposes of Part III of the Crimes Act 1914. The Crimes Act prohibits certain conduct in relation to judicial proceedings. (2) The Auditor‑General may direct that: (a) the information or answers to questions be given either orally or in writing (as the Auditor‑General requires); (b) the information or answers to questions be verified or given on oath or affirmation. The oath or affirmation is an oath or affirmation that the information or evidence the person will give will be true, and may be administered by the Auditor‑General or by an authorised official. (3) A person must comply with a direction under this section. Penalty: 30 penalty units. > Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. > Note 2: Section 4AA of the Crimes Act 1914 sets the current value of a penalty unit. (4) The regulations may prescribe scales of expenses to be allowed to persons who are required to attend under this section. (5) In this section: > authorised official means an official of a non‑corporate Commonwealth entity who is authorised by the Auditor‑General, in writing, to exercise powers or perform functions under this section. #### 33 Access to premises etc. (1) The Auditor‑General or an authorised official: (a) may, at all reasonable times, enter and remain on any premises occupied by the Commonwealth, a corporate Commonwealth entity, a Commonwealth company or a Commonwealth partner; and (b) is entitled to full and free access at all reasonable times to any documents or other property; and (c) may examine, make copies of or take extracts from any document. > Note: Paragraph (1)(a) does not expressly refer to non‑corporate Commonwealth entities because these entities are legally part of the Commonwealth. (2) An authorised official is not entitled to enter or remain on premises if he or she fails to produce a written authority on being asked by the occupier to produce proof of his or her authority. For this purpose, written authority means an authority signed by the Auditor‑General that states that the official is authorised to exercise powers under this Division. (3) If an authorised official enters, or proposes to enter, premises under this section, the occupier must provide the official with all reasonable facilities for the effective exercise of powers under this section. Penalty: 10 penalty units. > Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. > Note 2: Section 4AA of the Crimes Act 1914 sets the current value of a penalty unit. > Note 3: Section 149.1 of the Criminal Code deals with obstruction of Commonwealth public officials. (4) In this section: > authorised official means an official of a non‑corporate Commonwealth entity who is authorised by the Auditor‑General, in writing, to exercise powers or perform functions under this section. > premises includes any land or place. #### 35 Self‑incrimination no excuse A person is not excused from producing a document or answering a question under section 32 on the ground that the answer, or the production of the document, might tend to incriminate the person or make the person liable to a penalty. However, neither: (a) the answer to the question or the production of the document; nor (b) anything obtained as a direct or indirect result of the answer or the production of the document; is admissible in evidence against the person in any criminal proceedings (other than proceedings for an offence against, or arising out of, section 32 of this Act or proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act). ### Division 2—Confidentiality of information #### 36 Confidentiality of information (1) If a person has obtained information in the course of performing an Auditor‑General function, the person must not disclose the information except in the course of performing an Auditor‑General function or for the purpose of any Act that gives functions to the Auditor‑General. Penalty: Imprisonment for 2 years. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) Subsection (1) does not prevent the Auditor‑General from disclosing particular information to the Commissioner of the Australian Federal Police if the Auditor‑General is of the opinion that the disclosure is in the public interest. (2A) Subsection (1) does not prevent a person (the information holder) from disclosing information to another person under section 23A if the information holder does so in the circumstances permitted by that section. (2B) A person commits an offence if: (a) information is disclosed to the person; and (b) the information is disclosed in circumstances permitted by section 23A; and (c) the information is not disclosed to the person because the person is performing an Auditor‑General function; and (d) the person uses or discloses the information. Penalty: Imprisonment for 2 years. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2C) Subsection (2B) does not apply if the Auditor‑General has consented to the use or disclosure. > Note: A defendant bears an evidential burden in relation to a matter in subsection (2C): see subsection 13.3(3) of the Criminal Code. (3) A person commits an offence if: (a) the person receives any of the following: (i) a proposed report (including a draft) under section 19; (ii) any other report (including a draft) created for the purposes of preparing a proposed report under section 19; (iii) an extract from a report referred to in this paragraph; and (b) the person discloses any information in the report or extract. Penalty: Imprisonment for 2 years. (4) Subsection (3) does not apply if the Auditor‑General has consented to the disclosure. > Note: A defendant bears an evidential burden in relation to a matter in subsection (4): see subsection 13.3(3) of the Criminal Code. #### 37 Sensitive information not to be included in public reports (1) The Auditor‑General must not include particular information in a public report if: (a) the Auditor‑General is of the opinion that disclosure of the information would be contrary to the public interest for any of the reasons set out in subsection (2); or (b) the Attorney‑General has issued a certificate to the Auditor‑General stating that, in the opinion of the Attorney‑General, disclosure of the information would be contrary to the public interest for any of the reasons set out in subsection (2). (2) The reasons are: (a) it would prejudice the security, defence or international relations of the Commonwealth; (b) it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; (c) it would prejudice relations between the Commonwealth and a State; (d) it would divulge any information or matter that was communicated in confidence by the Commonwealth to a State, or by a State to the Commonwealth; (e) it would unfairly prejudice the commercial interests of any body or person; (f) any other reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed. (3) The Auditor‑General cannot be required, and is not permitted, to disclose to: (a) a House of the Parliament; or (b) a member of a House of the Parliament; or (c) a committee of a House of the Parliament or a joint committee of both Houses of the Parliament; information that subsection (1) prohibits being included in a public report. (4) If the Auditor‑General omits particular information from a public report because the Attorney‑General has issued a certificate under paragraph (1)(b) in relation to the information, the Auditor‑General must state in the report: (a) that information (which does not have to be identified) has been omitted from the report; and (b) the reason or reasons (in terms of subsection (2)) why the Attorney‑General issued the certificate. (5) If, because of subsection (1), the Auditor‑General: (a) decides not to prepare a public report; or (b) omits particular information from a public report; the Auditor‑General may prepare a report under this subsection that includes the information concerned. The Auditor‑General must give a copy of each report under this subsection to the Prime Minister, the Finance Minister and any responsible Minister. (6) In this section: > information includes written comments on the proposed report or the extract that are received by the Auditor‑General under subsection 19(4). > public report means a report that is to be tabled in either House of the Parliament. > State includes a self‑governing Territory. ## Part 6—The Australian National Audit Office #### 38 Establishment (1) There is established an Office called the Australian National Audit Office. (2) The Audit Office consists of the Auditor‑General and the staff referred to in section 40. (3) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013): (a) the Audit Office is a listed entity; and (b) the Auditor‑General is the accountable authority of the Audit Office; and (c) the following persons are officials of the Audit Office: (i) the Auditor‑General; (ii) the staff referred to in section 40; (iii) persons engaged under contract as referred to in section 27; and (d) the purposes of the Audit Office include: (i) the Auditor‑General functions; and (ii) the function of the Audit Office referred to in section 39. #### 39 Function The function of the Audit Office is to assist the Auditor‑General in performing the Auditor‑General’s functions. #### 40 Staff (1) The staff of the Audit Office are to be persons engaged under the Public Service Act 1999. > Note: Under section 27, the Auditor‑General may also engage persons under contract. (1A) For the purposes of the Public Service Act 1999: (a) the Auditor‑General and the APS employees assisting the Auditor‑General together constitute a Statutory Agency; and (b) the Auditor‑General is the Head of that Statutory Agency. (2) Directions to staff of the Audit Office relating to the performance of the Auditor‑General’s functions may only be given by: (a) the Auditor‑General; or (b) a member of the staff of the Audit Office authorised to give such directions by the Auditor‑General. ## Part 7—Audit of the Australian National Audit Office ### Division 1—The Independent Auditor #### 41 Independent Auditor (1) There is to be an Independent Auditor. (2) Whenever a vacancy occurs in the office of Independent Auditor, an appointment must be made to the office as soon as practicable. #### 42 Appointment, conditions etc. for Independent Auditor Schedule 2 sets out the conditions of appointment and other matters that have effect in relation to the office of Independent Auditor. #### 43 Independent Auditor to have regard to audit priorities of Parliament etc. In performing or exercising his or her functions or powers, the Independent Auditor must have regard to the audit priorities of the Parliament for audits of the Audit Office determined by the Joint Committee of Public Accounts and Audit under paragraph 8(1)(n) of the Public Accounts and Audit Committee Act 1951. ### Division 2—Audit of the Australian National Audit Office #### 44 Audit of annual financial statements (1) After preparing the annual financial statements for the Audit Office under section 42 of the Public Governance, Performance and Accountability Act 2013, the Auditor‑General must give the statements to the Independent Auditor. (2) The Independent Auditor must audit the statements in accordance with section 43 of that Act. (3) For these purposes, references in sections 42 and 43 of that Act to the Auditor‑General are taken to be references to the Independent Auditor. #### 45 Performance audit (1) The Independent Auditor may at any time conduct a performance audit of the Audit Office. (2) After preparing a proposed report on an audit, the Independent Auditor must give a copy of the proposed report to the Auditor‑General. If the Auditor‑General gives written comments to the Independent Auditor within 28 days after receiving the proposed report, the Independent Auditor must consider those comments before preparing a final report. (3) As soon as practicable after completing the report on the audit, the Independent Auditor must: (a) cause a copy to be tabled in each House of the Parliament; and (b) give a copy to the responsible Minister. (4) The Independent Auditor may give a copy of, or an extract from, the report to any other Minister who, in the Independent Auditor’s opinion, has a special interest in the report or the content of the extract. #### 46 Sensitive information not to be included in public reports Section 37 applies to the Independent Auditor as if references in that section to the Auditor‑General were references to the Independent Auditor. ### Division 3—Miscellaneous #### 47 Independent Auditor to have same access powers etc. as Auditor‑General Division 1 of Part 5 applies in relation to the performance of functions under this Part in the same way as it applies in relation to the performance of Auditor‑General functions. For that purpose: (a) references in that Division to an Auditor‑General function are to be read as references to a function of the Independent Auditor under this Part; and (b) other references in that Division to the Auditor‑General are to be read as references to the Independent Auditor. #### 48 Confidentiality of information (1) If a person has obtained information in the course of performing a function under this Part, the person must not disclose the information except in the course of performing a function under this Part. Penalty: Imprisonment for 2 years. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) Subsection (1) does not prevent the Independent Auditor from disclosing particular information to the Commissioner of the Australian Federal Police if the Independent Auditor is of the opinion that the disclosure is in the public interest. #### 49 Indemnity (1) The Commonwealth must indemnify a person for any liability that the person incurs for an act or omission of the person in the course of performing a function under this Part. (2) The indemnity does not apply if the liability arose from an act or omission in bad faith. ## Part 8—Miscellaneous #### 50 Guaranteed availability of parliamentary appropriations (1) There is payable to the Audit Office such money as is appropriated by the Parliament for the purposes of the Audit Office. (2) The Finance Minister may give directions about the amounts in which, and the times at which, money payable under subsection (1) is to be paid to the Audit Office. (3) If a direction under subsection (2) is given in writing, the direction is not a legislative instrument. (4) A provision of an Appropriation Act that authorises the Finance Minister to determine that a departmental item of a Commonwealth entity is to be reduced does not apply in relation to a departmental item of the Audit Office. (5) A provision of an Appropriation Act that has the effect of reducing an administered item of a Commonwealth entity does not apply in relation to an administered item of the Audit Office. #### 51 Auditor‑General may approve expenditure The Auditor‑General has authority to approve a proposal to spend money under an appropriation for the Audit Office. > Note: The Auditor‑General’s power under this section may be delegated under section 29. #### 53 Joint Committee of Public Accounts and Audit may request draft estimates for Audit Office (1) The Joint Committee of Public Accounts and Audit may request the Auditor‑General to submit to the Committee draft estimates for the Audit Office for a financial year before the annual Commonwealth budget for that financial year. (2) The Auditor‑General must comply with the request in time to allow the Committee to consider the draft estimates and make recommendations on them before the budget. > Note: For the Committee’s powers to consider draft estimates and make recommendations, see paragraphs 8(1)(j) and (l) of the Public Accounts and Audit Committee Act 1951. #### 54 Provision of information to the Minister or the Finance Minister (1) This section applies to a requirement under paragraph 19(1)(b) of the Public Governance, Performance and Accountability Act 2013 for the Auditor‑General to give the Minister or the Finance Minister reports, documents or information. > Note: Section 19 of the Public Governance, Performance and Accountability Act 2013 deals with the duty of the accountable authority of a Commonwealth entity to keep the responsible Minister and Finance Minister informed in relation to the activities of the entity and any of its subsidiaries. (2) To be effective, the requirement must be in writing. (3) The Minister or the Finance Minister must, as soon as practicable, report to the Joint Committee of Public Accounts and Audit the fact that the requirement has been made and the reasons for making it. (4) The requirement must be disclosed in the annual report prepared by the Auditor‑General under section 28 of this Act for the financial year. #### 55 Indemnity (1) The Commonwealth must indemnify a person for any liability that the person incurs for an act or omission of the person in the course of performing an Auditor‑General function. (2) The indemnity does not apply if the liability arose from an act or omission in bad faith. (3) The indemnity does not cover a liability of a person to the extent to which the person is entitled to be indemnified for the liability by a person other than the Commonwealth, whether under a contract of insurance or otherwise. #### 56 Modifications of Act for intelligence or security agency etc. (1) The application of this Act to: (a) an intelligence or security agency; or (b) a company that is conducted for the purposes of an intelligence or security agency; is subject to any modifications that are prescribed by the regulations. (2) Modifications prescribed by regulations under subsection (1) may impose additional obligations, and may provide for contravention of such an obligation to be an offence punishable by a fine of up to 10 penalty units. > Note: Section 4AA of the Crimes Act 1914 sets the current value of a penalty unit. (3) In this section: > intelligence or security agency has the meaning given by section 85ZL of the Crimes Act 1914. #### 56A Constitutional safety net (1) If a provision of this Act: (a) would, apart from this subsection, have an application (an invalid application) in relation to: (i) one or more particular persons, things, matters, places, circumstances or cases; or (ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases; because of which the provision exceeds the Commonwealth’s legislative power; and (b) also has at least one application (a valid application) in relation to: (i) one or more particular persons, things, matters, places, circumstances or cases; or (ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases; that, if it were the provision’s only application, would be within the Commonwealth’s legislative power; it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application. (2) This Act does not enable a power to be exercised to the extent that it would impair the capacity of a State to exercise its constitutional powers. #### 57 Regulations The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.