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Summary of Compliance Requirements in the FMA Act and Regulations

of 33 Department of Finance and Deregulation

Summary of Compliance with the FMA Act and Regulations

Summary of Compliance Requirements in the FMA Act and Regulations

This table provides a summary of Certificate reporting requirements under the FMA Act and Regulations as at April 2013. This is designed to be used as a guide for agencies and may provide the basis of internal compliance checklists. This table does not interpret the legal obligations or requirements of the FMA Act or Regulations and should only be used for Certificate reporting purposes. This table should be used in conjunction with Finance Circular 2013/03: Certificate of Compliance – FMA Act Agencies.

Section Title Requirement Reportable Instances

1. The Commitment of Public Money by Agencies

Section 44 Promoting proper use of

Commonwealth resources.

(1) A Chief Executive must manage the affairs of the Agency in a way that promotes proper use of the Commonwealth resources for which the Chief Executive is responsible.

(1A) The responsibility conferred on the Chief Executive by subsection (1) includes, and is taken to have included, the power to:

(a) make arrangements, on behalf of the Commonwealth, in relation to the affairs of the Agency; and

(b) vary those arrangements on behalf of the Commonwealth; and(c) administer those arrangements on behalf of the Commonwealth.

Note: Some Chief Executives have delegated this power under section 53

(2) In discharging the responsibility, and exercising the power, conferred by this section, the Chief Executive must comply with this Act, the regulations, Finance Minister’s Orders, Special Instructions and any other law.

(3) In this section:

administer, in relation to an arrangement, includes give effect to.

arrangement includes contract, agreement or deed.

make, in relation to an arrangement, includes enter into.

proper use means efficient, effective, economical and ethical use that is not inconsistent with the policies of the Commonwealth.

Non-compliance is reportable where the Chief Executive or

delegate does not promote the proper use of Commonwealth

resources or an official enters into, varies or administers an

arrangement (other than under the power of section 32B or

separate legislation) without the appropriate delegation or

authorisation under section 44.

For example, non-compliance may be reportable where there

is a use of resources which is inconsistent with a policy of the

Commonwealth.

The authority to enter into, vary or administer an

arrangement generally comes from legislation. The authority

can come from section 32B of the FMA Act, section 44 of the

FMA Act, or other specific legislation.

Section 32B Supplementary powers to (1) If: Non-compliance is reportable against section 32B where an



make commitments to spend

public money etc. (a) apart from this subsection, the Commonwealth does not have power to make, vary or administer:

(i) an arrangement under which public money is, or may become, payable by the Commonwealth; or

(ii) a grant of financial assistance to a State or Territory; or(iii) a grant of financial assistance to a person other than a State

or Territory; and(b) the arrangement or grant, as the case may be:

(i) is specified in the regulations; or(ii) is included in a class of arrangements or grants, as the case

may be, specified in the regulations; or(iii) is for the purposes of a program specified in the regulations;

the Commonwealth has power to make, vary or administer the arrangement or grant, as the case may be, subject to compliance with this Act, the regulations, Finance Minister’s Orders, Special Instructions and any other law.

(2) A power conferred on the Commonwealth by subsection (1) may be exercised on behalf of the Commonwealth by a Minister or a Chief Executive.

Note 1: For delegation by a Minister, see section 32D.Note 2: For delegation by a Chief Executive, see section 53.

(3) In this section:administer:(a) in relation to an arrangement—includes give effect to; or(b) in relation to a grant—includes make, vary or administer an

arrangement that relates to the grant.

arrangement includes contract, agreement or deed.

make, in relation to an arrangement, includes enter into.vary, in relation to an arrangement or grant, means:(a) vary in accordance with the terms or conditions of the

arrangement or grant; or(b) vary with the consent of the non Commonwealth party or parties

to the arrangement or grant.

official relies on section 32B to make, vary or administer an

arrangement:

without the appropriate delegation or authorisation under section 32D

for spending involving a grant of financial assistance to a State or Territory, without the terms or conditions being set out in a written agreement in accordance with section 32C, or

without legislative authority being provided by FMA Regulation 16 and an item in Schedule 1AA of the FMA Regulations.

Section 32C Terms and conditions for

grants

Scope

(1) This section applies to a grant of financial assistance under section

Non-compliance is not reportable against this section for the

purposes of the Certificate.



32B.

Terms and conditions

(2) If the recipient of the grant is a State or Territory, the terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the recipient.

(3) An agreement under subsection (2) may be entered into on behalf of the Commonwealth by a Minister or a Chief Executive.

Note 1: For delegation by a Minister, see section 32D.Note 2: For delegation by a Chief Executive, see section 53.(4) If the recipient of the grant is a person other than a State or Territory,

subsection (2) does not, by implication, prevent the grant from being made subject to terms and conditions.

However, non-compliance is reportable against section 32B

where an official relies on section 32B to make, vary or

administer an arrangement for spending involving a grant of

financial assistance to a State or Territory, without the terms

or conditions being set out in a written agreement in

accordance with section 32C.

Section 32D Delegation by a Minister (1) A Minister may, by writing, delegate any or all of his or her powers under this Division to an official in any Agency.

(2) In exercising powers under a delegation, the delegate must comply with any directions of the Minister concerned.

Non-compliance is not reportable against this Section for the


However, non-compliance is reportable against section 32B

where an official relies on section 32B to make, vary or

administer an arrangement without the appropriate

delegation or authorisation under section 32D.

Section 32E Executive power of the

Commonwealth

This Division does not, by implication, limit the executive power of the

Commonwealth.

Non-compliance is not reportable against this Section for the




Regulation 7 Commonwealth Procurement

(Act, s 64) (1) The Finance Minister may issue guidelines in relation to procurement, including:

(a) procurement policies and processes; and(b) requirements regarding the publication of procurement details;

and(c) requirements regarding entering into procurement

arrangements; and(d) requirements regarding the disposal of public property.

(2) The guidelines are to have a title approved by the Finance Minister.(3) An official performing duties in relation to procurement must act in

accordance with any guidelines issued under subregulation (1).

Non-compliance is reportable against Regulation 7 where an

official does not comply with the mandatory requirements of

the Commonwealth Procurement Rules (CPRs).

The mandatory requirements are indicated by the term “must”

in the CPRs.

The CPRs are a legislative instrument.

Non-compliance with supplementary guidance on

procurement requirements is not reportable.

The CPRs apply from 1 July 2012.

Regulation 7A Commonwealth Grant Guidelines (Act, s 64)

(1) The Finance Minister may issue guidelines (to be called Commonwealth Grant Guidelines) in relation to grants administration, including:

(a) grant policies and processes; and(b) requirements regarding the publication of grant details; and(c) requirements regarding entering into grants.

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

Non-compliance is reportable against Regulation 7A where an official does not comply with the mandatory requirements of the Commonwealth Grant Guidelines (CGGs). The mandatory requirements are indicated by the term “must” or “mandatory” in the CGGs.

The CGGs are a legislative instrument.

The updated CGGs will take effect from 1 June 2013.

For Certificate reporting purposes, the 14 working day requirement to publish information on individual grants on an agency website will be in effect from 1 January 2013.

For Certificate reporting, for the period 1/7/2012 to 31/12/2012, agencies report non-compliance with the seven day reporting requirement for grants. For the period of 1/1/2013 to 30/6/2013, agencies report non-compliance with the 14 day reporting requirement for grants.

Non-compliance with supplementary guidance on grants requirements is not reportable.

Regulation 7B Commonwealth Cleaning Services Guidelines (Act, s 64)

(1) The Minister for Tertiary Education, Skills, Jobs and Workplace Relations may issue guidelines (to be called Commonwealth Cleaning Services Guidelines) for the administration of tenders conducted by

Non-compliance is reportable against Regulation 7B where an official does not comply with the mandatory requirements of the Commonwealth Cleaning Services Guidelines (CCSGs).



Agencies in relation to the procurement of cleaning services for properties occupied by Agencies, including:

(a) procurement policies and processes; and (b) requirements regarding entering into procurement

arrangements.

(2) An official performing duties in relation to a tender conducted by an Agency in relation to the procurement of cleaning services for a property occupied by the Agency must act in accordance with the Commonwealth Cleaning Services Guidelines.

The mandatory requirements are indicated by the term “must” in the Guidelines.

The CCSGs are a legislative instrument.

Regulation 8 Entering into an arrangement A person must not enter into an arrangement unless:

(a) a spending proposal has been approved under regulation 9; and

(b) if required, written agreement has been given under regulation 10.

Non-compliance is not reportable against Regulation 8 for the purposes of the Certificate.

While there is a compliance component for Regulation 8, you should not report non-compliance against this Regulation.

Where either Regulation 9 approval or Regulation 10 agreement have not been obtained, those instances of non-compliance should be reported against that relevant Regulation.

Where neither Regulation 9 approval nor Regulation 10 agreement were obtained, non-compliance must be reported against both.

Note: Regulation 8 does not specify the order in which these approvals should be obtained.

Regulation 9 Approval of spending proposals

An approver must not approve a spending proposal unless the approver is satisfied, after making 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).

Non-compliance is reportable against Regulation 9 where:

the requirement of Regulation 8 is not met, and an arrangement was entered into without Regulation 9 approval for the spending proposal

the approval of the spending proposal was not a proper use of commonwealth resources

the spending proposal is inconsistent with government policy

an approver, approved a spending proposal beyond the limit of their delegation, and/or

the amount paid under a contract exceeded the Regulation 9 approval.

Note: Regulation 9 approval cannot be given retrospectively.

Regulation 10 Arrangements beyond available appropriation

If:

(a) a person proposes to enter into an arrangement; and(b) the relevant Agency has an insufficient appropriation of money,

Non-compliance is reportable where an arrangement has been entered into and Regulation 10 agreement had not been obtained from the appropriate delegate or the Finance Minister, before entering into the arrangement.



under the provisions of an existing law or a proposed law that is before Parliament, to meet expenditure that might be payable under the arrangement;

the person must not enter into the arrangement unless the Finance Minister has agreed, in writing, to the expenditure that might become payable under the arrangement.

Note: Regulation 10 agreement cannot be given retrospectively.

Regulation 10A

Contingent liabilities (1) If: (a) an arrangement consists of, or includes, a contingent liability in

relation to an event; and

(b) the person proposing to enter the arrangement is satisfied, after

making reasonable inquiries, that:

(i) the likelihood of the event occurring is remote; and

(ii) the most probable expenditure that would need to be made

in accordance with the arrangement, if the event occurred, would

not be material;

regulation 10 does not apply to that part of the arrangement.

(2) For subparagraph (1) (b) (i), the likelihood of an event occurring is remote if there is a probability of less than 5% that it will occur.(3) For subparagraph (1) (b) (ii), expenditure is material if it is at least:

(a) an amount specified by the Finance Minister in a legislative

instrument for this paragraph; or

(b) if the Finance Minister has not made a legislative instrument

under paragraph (a) that applies to the Agency — $5 000 000.

Note The Finance Minister may specify an amount for a particular

Agency.

Non-compliance is not reportable against this Regulation for the purposes of the Certificate.

Regulation 11 Entering into loan guarantees (1) Despite regulation 10A, a person must not give a loan guarantee on behalf of the Commonwealth unless:

(a) a spending proposal for the loan guarantee has been approved under regulation 9; and

(b) if required, written agreement has been given under regulation 10; and

(c) the Finance Minister has, in writing, approved the giving of the loan guarantee.

Non-compliance is reportable where a loan guarantee is given without the criteria of Regulation 11 having been complied with. In particular, where the Finance Minister's written approval has not been obtained, an instance of non-compliance is reportable.

Regulation 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.

Non-compliance is reportable where there has either been no documentation of a verbal Regulation 9 approval or the written record of the approval does not provide appropriate evidence of compliance with Regulation 9.

Where a valid Regulation 9 approval was not provided, non-



(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.

compliance is reportable against Regulation 9. Non-compliance is not separately reportable against Regulation 12 as it is consequential to the non-compliance with Regulation 9.

Non-compliance may also be reportable where documentation has not occurred “as soon as practicable”.

For grants, non-compliance is reportable where the basis on which the spending proposal was approved has not been recorded in writing.

Regulation 16 Arrangements and programs (Act s 32B)

(1) For paragraph 32B (1) (b) of the Act: (a) Part 1 of Schedule 1AA specifies:

(i) arrangements under which public money is, or may become,

payable by the Commonwealth; and

(ii) classes of arrangements; and

(b) Part 2 of Schedule 1AA specifies:

(i) grants of financial assistance to a State or Territory; and

(ii) classes of grants; and

(c) Part 3 of Schedule 1AA specifies:

(i) grants of financial assistance to persons other than a State or

Territory; and

(ii) classes of grants; and

(d) Part 4 of Schedule 1AA specifies programs.

Note Arrangement is defined in subsection 32B (3) of the Act.

(2) The specification of an arrangement, grant or program in Schedule 1AA is not affected by:

(a) a change in the name of the Department or authority specified as

administering the arrangement, grant or program; or

(b) the transfer to another Department or authority of

responsibility, in whole or in part, for the administration of the

arrangement, grant or program.


However, non-compliance is reportable against section 32B where an official relies on section 32B to make, vary or administer an arrangement without legislative authority being provided by FMA Regulation 16 and an item in Schedule 1AA of the FMA Regulations.

2. The use of Drawing Rights by Agencies

Section 26 Drawing rights required for payment etc. of public money

An official or Minister must not do any of the following except as authorised by a valid drawing right:

(a) make a payment of public money; (b) request that an amount be debited against a designated Special Account appropriation;

Non-compliance is reportable where the payment of public money without a valid drawing right occurs.

Note: Non-compliance is reportable against section 26, rather than section 27, for each payment run.



(c) debit an amount against a designated Special Account appropriation

Note: The power to issue drawing rights under section 27 has been delegated to Chief Executives. Where the directions have not been followed, non-compliance should be reported against the Delegation (Schedule 1, Part 8 or Part 9, as applicable).

Section 27 Issue of drawing rights (1) The Finance Minister may issue a drawing right to an official or Minister that authorises the official or Minister to do one or more of the following:

(a) make a payment of public money;(b) request the debiting of an amount against a designated Special

Account appropriation;(c) debit an amount against a designated Special Account

appropriation.

(2) If a law requires the payment of an amount of public money and there is an available appropriation for that payment:

(a) the Finance Minister must issue sufficient drawing rights to allow the amount to be paid in full; and

(b) the recipient of any of those drawing rights must exercise the rights in full.

(3) If a law permits the payment of an amount of public money, but does not require the payment of that amount, there is no obligation to issue or exercise drawing rights for that amount.

(4) The Finance Minister may at any time revoke or amend a drawing right.

(5) A drawing right has no effect to the extent to which it purports to authorise the making of a payment of public money for which there is no available appropriation..

Refer to section 26 above.

3. The Proper Use of Financial Resources

Section 14 Misapplication or improper use of public money

An official or Minister must not misapply public money or improperly dispose of, or improperly use, public money.

Non-compliance is reportable where an official undertakes an action which misapplies, improperly uses or disposes of public money.

Instances usually relate to circumstances where fraud, theft, wilful misconduct or misappropriation has been identified within an agency. Misuse of a Commonwealth credit card, card number or credit voucher (including a cabcharge voucher) is reportable under section 60 and not section 14.



Section 15 Liability for loss of public money

(1) If:(a) a loss of public money occurs; and(b) at the time of the loss, an official or Minister had nominal

custody of the money as described in subsection (2);the official or Minister is liable to pay to the Commonwealth an amount equal to the loss. However, it is a defence if the person proves that he or she took reasonable steps in all the circumstances to prevent the loss.

(2) A person has nominal custody of public money if:(a) the person holds the money by way of a petty cash advance,

“change float” or other advance; or(b) the person has received the money, but has not yet dealt with it

as required by section 10.(3) If:

(a) a loss of public money occurs; and (b) an official or Minister caused or contributed to the loss by

misconduct, or by a deliberate or serious disregard of reasonable standards of care;

the official or Minister is liable to pay to the Commonwealth an amount equal to the loss. However, if the person’s misconduct or disregard was not the sole cause of the loss, the person is liable to pay only so much of the loss as is just and equitable having regard to the person’s share of the responsibility for the loss.

(4) A person’s liability under this section that arises when the person is an official or Minister is not avoided merely because the person ceases to be an official or Minister.

(5) An amount payable to the Commonwealth under this section is recoverable as a debt in a court of competent jurisdiction.

(6) The Commonwealth is not entitled to recover amounts from the same person under both subsections (1) and (3) for the same loss

The loss of public money in itself is not a reportable instance of non-compliance. That said, agencies should report non-compliance against this section for the loss of public money, where misconduct, or deliberate or serious disregard of a reasonable standard of care by the official caused the loss.

Non-compliance is also reportable where there has been no repayment to the Commonwealth where a reasonable standard of care was not exercised by the official.



Section 60 Misuse of Commonwealth credit card

(1) An official or Minister must not use a Commonwealth credit card, or a Commonwealth credit card number, to obtain cash, goods or services otherwise than for the Commonwealth.

(2) Subsection (1) does not apply to a particular use of a Commonwealth credit card or Commonwealth credit card number if:

(a) the use is authorised by the regulations; and(b) the Commonwealth is reimbursed in accordance with the

regulations.

Non-compliance is reportable where there is a misuse of a Commonwealth credit card, card number or credit voucher (including a cabcharge voucher) to obtain cash, goods or services otherwise than for the Commonwealth.

There is no distinction between deliberate (fraudulent) and accidental misuse. All misuse must be reported. Coincidental private expenditure should not be reported, if authorised by the Chief Executive under Regulation 21.

Regulation 21 Credit cards (Act, ss 38 and 60)

(1) An arrangement with a bank or other person under subsection 38 (2) of the Act may provide for the issue to, and use by, the Commonwealth of credit cards or credit vouchers.

(2) A Chief Executive may:

(a) authorise a holder of a Commonwealth credit card to use the Commonwealth credit card to pay a claim that includes both official and coincidental private expenditure; and

(b) specify arrangements for the holder of the Commonwealth credit card to reimburse the Commonwealth for that coincidental private expenditure.

(3) The holder of the Commonwealth credit card must pay to the Commonwealth the amount paid by the Commonwealth for the coincidental private expenditure.

(4) The amount payable to the Commonwealth under this regulation is recoverable as a debt in a court of competent jurisdiction.

(5) In this regulation:

Commonwealth credit card:

(a) has the meaning given by subsection 60 (3) of the Act; and(b) includes a Commonwealth credit card number mentioned in

subsections 60 (1) and (2) of the Act.


The misuse of credit cards should be reported against section 60 of the Act, and not Regulation 21.

Note that Regulation 21 allows a Chief Executive to authorise coincidental private expenditure.

Where coincidental private expenditure occurs which is not authorised by the Chief Executive this should be reported against section 60 as a misuse of a Commonwealth credit card.

4. Banking and Investment by Agencies

Section 8 Agreements with banks about receipt, transmission etc. of public money

(1) The Finance Minister may, on behalf of the Commonwealth, enter into an agreement with any bank:

(a) for the receipt, custody, payment or transmission of public money, either inside or outside Australia; or

(b) for any other matter relating to the conduct of the banking business of the Commonwealth.

Non-compliance is reportable where an agreement for an overdraft on an official account is made with a bank and the repayment period is longer than 30 days.

Note: The Finance Minister has delegated this power to Chief Executives with directions. Where the directions are not complied with an instance of non-compliance should be



(2) An agreement under this section may provide for the payment of interest and other charges by the Commonwealth.

(3) An agreement under this section may not provide for overdraft drawings by the Commonwealth unless it provides for each drawing to be repaid within 30 days.

Note: An overdraft drawing consists of the bank meeting the payment of a cheque, or making an “electronic payment” to another account, and in each case debiting the payment against an account that has an insufficient balance. Section 38 deals with overdrafts that arise in respect of advances that are paid to the Commonwealth.

(4) An agreement for an overdraft on an official account must not be made except under this section.

(5) An agreement under this section may not be made for a period of more than one year unless the agreement can be terminated by the Commonwealth at any time after giving notice of not more than 6 months.

reported against the Delegation (Schedule 1, Part 1 to 3, as applicable).

Section 9 Official bank accounts (1) The Finance Minister may open and maintain bank accounts in accordance with agreements under section 8, and must open and maintain at least one such bank account.

(2) A bank account must have a name that includes the word “Official”.

(3) An account for the receipt, custody, payment or transmission of public money must not be opened except in accordance with this section.

Non-compliance is reportable where an account is opened without the term “official” in the title.

Banking public money into a non-official account should be reported against section 11 and not section 9.

Section 10 Public money must be promptly banked etc.

An official or Minister who receives public money (including money that becomes public money upon receipt) must bank it as required by the regulations or otherwise deal with it as required by the regulations. For this purpose, money includes cheques and similar instruments.

Non-compliance is reportable for each transaction where an official does not bank public money the next banking day or a banking day approved by the Chief Executive, as provided by Regulation 17.

Section 11 Public money not to be paid into non-official account

An official or Minister must not deposit public money in any account other than an official account. For this purpose, money includes cheques and similar instruments.

Non-compliance is reportable for each transaction, where public money is banked into a non-official account.

Section 13 Money not to be withdrawn from official account without authority

An official must not withdraw money from an official account except as authorised by the regulations.

Non-compliance is reportable for each transaction, where money is withdrawn from an official account without authority and the withdrawal is not consistent with Regulations 19 and 19A. There may also be instances of non-compliance with section 26 if this occurs.

Section 16 Special Instructions by Finance Minister about handling etc. of special public

(1) The Finance Minister may, by legislative instrument, issue Special Instructions about special public money, including instructions about:

Non-compliance is reportable where an official does not comply with any Special Instructions on special public money.



money (a) the custody of special public money;(b) the investment of special public money;(c) the application of interest or other amounts derived from the

investment of special public money;(d) the application of special public money in paying the expenses

involved in dealing with special public money.(2) In case of inconsistency, Special Instructions override this Act, the

regulations and the Finance Minister’s Orders. However, Special Instructions cannot be inconsistent with the terms of any trust that applies to the money concerned.

(3) An official or Minister must not contravene any Special Instruction.

Section 34 Finance Minister may waive debts etc.

(1) The Finance Minister may, on behalf of the Commonwealth:

(a) waive the Commonwealth’s right to payment of an amount owing to the Commonwealth;

(b) postpone any right of the Commonwealth to be paid a debt in priority to another debt or debts;

(c) allow the payment by instalments of an amount owing to the Commonwealth;

(d) defer the time for payment of an amount owing to the Commonwealth.

Note: See also subparagraph 65(2)(a)(ia) (which allows regulations to be made about the Finance Minister considering a report from specified persons before waiving a total amount that is more than a specified amount).

(3) A waiver may be made either unconditionally or on the condition that a person agrees to pay an amount to the Commonwealth in specified circumstances.


amount owing to the Commonwealth includes an amount that is owing but not yet due for payment.

Non-compliance is not reportable against this section for the purposes of the Certificate.

Section 34 provides the Finance Minister with the power to waive, postpone, allow the payment by instalment, or defer the time for payment of debt. The Finance Minister has delegated the power to waive debts to a limited number of Chief Executives. The power to allow payment by instalment or to defer the time for payment of debt has been delegated to all Chief Executives.

Section 34 does not contain a compliance element, however subregulations 29(2)(a) and (b) impose mandatory action to be taken by the Finance Minister for a total amount of more than $250,000.

Where an official exercises a power without the appropriate delegation under subsection 34(1), or does not comply with the directions, an agency should report this as an instance of non-compliance with the Delegation (Schedule 1, Part 10 to 13 as appropriate).

Where a debt is not recovered by a Chief Executive (or delegate) it should be reported under section 47, not section 34 or the Delegation.

Section 38 Finance Minister may borrow for short periods

(1) The Finance Minister, on behalf of the Commonwealth, may enter into an agreement with any bank for borrowing money from the bank by way of advances (including advances on overdraft) that are to be paid to the Commonwealth and repaid by the Commonwealth within 90 days.

(2) The Finance Minister, on behalf of the Commonwealth, may enter into agreements in accordance with the regulations for borrowing money from banks or other persons. Such an agreement must

Non-compliance is reportable where an arrangement has longer than 60 days for the money to be repaid after the Commonwealth is notified by the lender.

Note: Subsection 38 (2) has been delegated to Chief Executives only for the issue of Commonwealth credit cards (Schedule 1, Part 15).



require the money to be repaid within 60 days after the Commonwealth is notified by the lender of the amount borrowed.

Where a Chief Executive (other than the DFAT Chief Executive) enters into any other borrowing, it should be reported as an instance of non-compliance with the Delegation.

Section 39 Investment of public money (1) The Finance Minister may, on behalf of the Commonwealth, invest public money in any authorised investment.

(2) The Treasurer may, on behalf of the Commonwealth, invest public money in any authorised investment.

(2A)For the purposes of investing public money under this section in securities of the Commonwealth, the Commonwealth is to be treated as if it were a separate legal entity to the entity issuing the securities.

(3) An investment of public money under this section must not be inconsistent with the terms of any trust that applies to the money concerned.

(4) If an amount invested under this section was debited from a Special Account, then expenses of the investment may be debited from that Special Account.

(5) Upon realisation of an investment of an amount debited from a Special Account, the proceeds of the investment must be credited to that Special Account.

(6) At any time before an investment matures, the Finance Minister or Treasurer, as the case requires, may, on behalf of the Commonwealth, authorise the re investment of the proceeds upon maturity in an authorised investment with the same entity.

Non-compliance is reportable where public money is invested in an investment which is not authorised under section 39.

Non-compliance is reportable where public money is invested without a delegation from the Finance Minister. In particular, a special account which has an investment capacity still requires a delegation from the Finance Minister to exercise investment power.

Section 40 Custody etc. of securities An official who receives any bonds, debentures or other securities in the course of carrying out duties as an official must deal with them in accordance with the regulations.

Non-compliance is reportable against section 40 of the FMA Act where the mandatory requirements of Regulation 20 are not followed.

Section 47 Recovery of debts (1) A Chief Executive must pursue recovery of each debt for which the Chief Executive is responsible unless:

(a) the debt has been written off as authorised by an Act; or(b) the Chief Executive is satisfied that the debt is not legally

recoverable; or(c) the Chief Executive considers that it is not economical to

pursue recovery of the debt.(2) For the purposes of subsection (1), a Chief Executive is responsible

for:

(a) debts owing to the Commonwealth in respect of the operations

Non-compliance is reportable where a Chief Executive does not pursue recovery of each debt for which the Chief Executive is responsible unless subparagraphs 1(a) to (c) are applicable.

Where a debt was not pursued during the reporting period, it should be reported as non-compliance against section 47.



of the Agency; and(b) debts owing to the Commonwealth that the Finance Minister

has allocated to the Chief Executive.

Regulation 17 Prompt banking of received money (Act, s 10)

(1) An official who:

(a) receives public money in a bankable currency; or(b) receives money in a bankable currency that becomes public

money on receipt;must bank the money.

(2) The official must bank the money as soon as practicable, but in any case not later than:

(a) the next banking day; or(b) a banking day approved by the Chief Executive for this

paragraph.

Non-compliance is reportable against section 10 for each

transaction where an official does not bank the public money

the next banking day or a banking day approved by the Chief

Executive, as required by Regulation 17.

Regulation 18 Public money in

non-bankable currency (Act, s 10)

(1) An official who receives public money in a non-bankable currency must take reasonable steps to safeguard the money.

(2) In subregulation (1):

non-bankable currency means:

(a) a currency that cannot be banked; or(b) a currency the banking of which would, in the opinion of the

Chief Executive of the Agency by which it is received, involve significant costs or administrative difficulty.

Non-compliance is reportable where reasonable steps to safeguard the money are not taken. This may be indicated if the non-bankable currency is lost or stolen and reasonable steps were not taken.

Regulation 20 Custody etc of securities (Act, s 40)

If an official, in the course of carrying out duties as an official, receives bonds, debentures or other securities, the official must:

(a) issue a receipt for the bonds, debentures or other securities received; and

(b) maintain a register of all bonds, debentures or other securities received; and

(c) take reasonable steps to safeguard the bonds, debentures or other securities.

Non-compliance is reportable against section 40 of the FMA Act where the mandatory requirements of Regulation 20 are not complied with.

5. The Maintenance of Agency Accounts and Records

Section 44A Keeping responsible Minister and Finance Minister informed

(1) A Chief Executive must:

(a) give the Minister responsible for the Agency such reports, documents and information in relation to the operations of the Agency as that Minister requires; and

(b) give the Finance Minister such reports, documents and information in relation to the financial affairs of the Agency as that Minister requires.

Non-compliance is reportable where the Chief Executive does not provide financial information to the responsible Minister or the Finance Minister as required and within the time limits set by the Minister concerned.



(2) A Chief Executive must comply with a requirement under paragraph (1)(a) or (b) within the time limits set by the Minister concerned.

(3) This section does not limit any other power that a Minister has to require information from an Agency.

Section 48 Accounts and records (1) A Chief Executive must ensure that accounts and records of the Agency are kept as required by the Finance Minister’s Orders.

(2) The Finance Minister is entitled to full and free access to the accounts and records kept under subsection (1). However, the Finance Minister’s access is subject to any law that prohibits disclosure of particular information.

Non-compliance is reportable where the records of the agency are not kept as required by the Finance Minister’s Orders.

Section 49 Annual financial statements (1) A Chief Executive must give to the Auditor General the annual financial statements required by the Finance Minister’s Orders.

(2) The financial statements must be prepared in accordance with the Finance Minister’s Orders and must give a true and fair view of the matters that those Orders require to be included in the statements.

(3) If financial statements prepared in accordance with the Finance Minister’s Orders would not otherwise give a true and fair view of the matters required by those Orders, the Chief Executive must add such information and explanations as will give a true and fair view of those matters.

(4) In the financial statements, the Chief Executive must state whether, in his or her opinion, the financial statements give a true and fair view of the matters required by Finance Minister’s Orders.

Non-compliance is reportable where the requirements of subsections 49(1) to (4) are not met.

Section 50 Additional financial statements

A Chief Executive must, when required by the Finance Minister, give the Finance Minister financial statements covering a period of less than a financial year. The Finance Minister may require the statements to include some or all of the details that are required to be included in the annual financial statements.

Non-compliance is reportable where a Chief Executive has not provided financial statements covering a period of less than a financial year, when required by the Finance Minister.

Section 51 Reporting requirements if Agency ceases to exist or Agency functions are transferred

Agency ceases to exist

(1) If an Agency (the old Agency) ceases to exist, then, to the extent that its functions are not transferred to one or more other Agencies, the financial statements that would have been required to be prepared under section 49 by the Chief Executive of the old Agency must be prepared by another Chief Executive nominated by the Finance Minister.

Transfer of Agency functions

(2) If a function of an Agency (the transferring Agency) is transferred to one or more other Agencies, either because the transferring Agency ceases to exist or for any other reason, the financial statements

Non-compliance is reportable where the financial statements for a function which has been moved (either by transfer or if an agency ceases to exist) are not prepared by the Chief Executive nominated by the Finance Minister.



under section 49 for that function must be prepared by the Chief Executive or Chief Executives nominated by the Finance Minister.

6. Miscellaneous Requirements

Section 12 Receipt and spending of public money by outsiders

(1) An official or Minister must not enter into an agreement or arrangement for the receipt, custody or payment of public money by an outsider unless:(a) the Finance Minister has first given a written authorisation for

the agreement or arrangement; or(b) the agreement or arrangement is expressly authorised by this

Act or by another Act.Penalty: Imprisonment for 7 years.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2) An outsider commits an offence if:(a) the outsider receives or has custody of public money under an

agreement or arrangement mentioned in subsection (1); and(b) the outsider makes a payment of the public money; and(c) that payment is not authorised by the agreement or

arrangement.Penalty: Imprisonment for 2 years.


outsider means any person other than the Commonwealth, an official or a Minister.

Non-compliance is reportable where an official enters into an arrangement which is not authorised by a Section 12 delegate or the Finance Minister and the arrangement:

involves the receipt, custody or payment of public money, and

was intended to replace the requirements of the FMA Act or Regulations (i.e. the “outsider” was not intended to be treated as an “allocated official”11when performing a financial task).

Note: Where the outsider does not comply with the terms of the authorised arrangement, this should not be reported for Certificate purposes, and may result in penalties.

Section 33 Finance Minister may approve act of grace payments

(1) If the Finance Minister considers it appropriate to do so because of special circumstances, he or she may authorise the making of any of the following payments to a person (even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability):(a) one or more payments of an amount or amounts specified in

the authorisation (or worked out in accordance with the authorisation);

(b) periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation), during a period specified in the authorisation (or worked out in accordance with the authorisation).

Note: See also subparagraph 65(2)(a)(ia) (which allows regulations to be made about the Finance Minister considering a report from specified

Non-compliance is not reportable for the purposes of the Certificate.

That said, non-compliance is reportable by Finance against Regulation 29, or the Delegation if the requirements or directions are not met.

1 An allocated official is a person outside the Commonwealth who performs a financial task and temporarily becomes an official of the FMA Act agency.



persons before authorising a total amount that is more than a specified amount).

(3) Conditions may be attached to payments under this section. If a condition is breached, the payment may be recovered by the Commonwealth as a debt in a court of competent jurisdiction.

Note: Act of grace payments under this section must be made from money appropriated by the Parliament. Generally, an act of grace payment can be debited against an Agency’s annual appropriation, providing that it relates to some matter that has arisen in the course of its administration.

Section 39 A Minister must inform Parliament of involvement in a company by the Commonwealth or a prescribed body

(1) The Minister who has the responsibility for any of the following events must table a notice of the event in each House of the Parliament as soon as practicable after the event occurs:

(a) the Commonwealth or a prescribed body forms, or participates in forming, a company;

(b) the Commonwealth or a prescribed body acquires shares in a company (either by purchase or subscription) or disposes of shares in a company;

(c) the Commonwealth or a prescribed body becomes a member of a company;

(d) a variation occurs in the rights attaching to company shares held by the Commonwealth or a prescribed body;

(e) a variation occurs in rights of the Commonwealth or a prescribed body as a member of a company;

(f) the Commonwealth or a prescribed body ceases to be a member of a company.

(2) The notice must be in the form, and contain the particulars, set out in the regulations.

(3) This section does not apply to:

(a) an event mentioned in paragraphs (1)(a) to (f) that occurs in relation to:

(i) an authorised investment made under section 39; or (ii) an investment made under the Future Fund Act 2006; or

(b) anything that results from the transfer to a Minister of any property that is to be dealt with as unclaimed property under Part 9.7 of the Corporations Act 2001; or

(c) a company that is conducted for the purposes of an intelligence or security agency (within the meaning given by section 85ZL of the Crimes Act 1914).


Non-compliance is not reportable against this section for the purposes of the Certificate. There is a mandatory requirement under section 39A, however, it is the responsible Minister who must table the notice to each House of the Parliament.

The Certificate is a report from the Chief Executive of the agency to the responsible Minister. As such this is not a reportable requirement for Certificate purposes.



company includes a body of a kind prescribed by the regulations for the purposes of this section.

prescribed body means a body corporate that is, or is included in, an Agency.

Section 41 Misapplication or improper use of public property

An official or Minister must not misapply public property or improperly dispose of, or improperly use, public property.

Non-compliance is reportable where an official misapplies, improperly disposes of, or improperly uses public property.

The improper use of public property will be subject to the individual circumstances of the agency and should be considered in the context of CEIs and internal operational guidance.

Reported instances against section 41 generally relate to circumstances where fraud, theft, wilful misconduct or misappropriation has been identified.

Section 42 Liability for loss etc. of public property

(1) If:(a) a loss of public property occurs; and(b) at the time of the loss, an official or Minister had nominal

custody of the property as described in subsection (2);the official or Minister is liable to pay to the Commonwealth the amount of the loss. However, it is a defence if the person proves that he or she took reasonable steps in all the circumstances to prevent the loss.(2) A person (the custodian) has nominal custody of public property if

both of the following conditions are satisfied:

(a) the custodian has taken delivery of the property and has not returned it to the person entitled to receive the property on behalf of the Commonwealth;

(b) when the custodian took delivery of the property the custodian signed a written acknowledgment that the property was delivered on the express condition that the custodian would at all times take strict care of the property.

(3) If:

(a) a loss of public property occurs; and (b) an official or Minister caused or contributed to the loss by

misconduct, or by a deliberate or serious disregard of reasonable standards of care;

the official or Minister is liable to pay to the Commonwealth the amount of the loss. However, if the person’s misconduct or disregard was not the sole cause of the loss, the person is liable to pay only so much of the amount of the loss as is just and equitable having regard to the person’s share of the responsibility for the loss.

(4) A person’s liability under this section that arises when the person is

The loss of public property is not in itself a reportable instance of non compliance for the purpose of the Certificate.

Non-compliance is reportable where there has been no payment to the Commonwealth and there was no reasonable defence (such as taking reasonable steps to prevent the loss) for the official not to become liable for the loss.



an official or Minister is not avoided merely because the person ceases to be an official or Minister.

(5) An amount payable to the Commonwealth under this section is recoverable as a debt in a court of competent jurisdiction.

(6) The Commonwealth is not entitled to recover amounts from the same person under both subsections (1) and (3) for the same loss.

Section 43 Gifts of public property An official or Minister must not make a gift of public property unless:

(a) the making of the gift is expressly authorised by law; or(b) the Finance Minister has given written approval to the gift

being made; or(c) the Commonwealth acquired the property to use it as a gift.

Non-compliance is reportable where an official makes a gift of public property inconsistent with subsections 43(a) to (c).

The Finance Minister has delegated this power to Chief Executives with conditions. Non-compliance is reportable against the Delegation (Schedule 1, Part 17) where the directions are not followed.

Section 45 Fraud control plan A Chief Executive must implement a fraud control plan for the Agency. For this purpose, fraud includes fraud by persons outside the Agency in relation to activities of the Agency.

Non-compliance is reportable where a fraud control plan for the agency has not been developed and implemented.

Section 46 Audit committee (1) A Chief Executive must establish and maintain an audit committee with functions that include:

(a) helping the Agency to comply with obligations under this Act, the regulations and Finance Minister’s Orders; and

(b) providing a forum for communication between the Chief Executive, the senior managers of the Agency and the internal auditors of the Agency and the Auditor-General.

(2) The committee must be constituted in accordance with the regulations (if any).

Non-compliance is reportable where an audit committee is not established or maintained to undertake the functions at subparagraphs (a) and (b). Non-compliance is also reportable against section 46 if the audit committee is not constituted in accordance the requirements of Regulation 22C.

Section 52 Chief Executive’s instructions (1) The regulations may authorise Chief Executives to give instructions to officials in their Agencies on any matter on which regulations may be made under this Act.

(2) An instruction cannot create offences or impose penalties.

(3) An instruction is not a legislative instrument.

Non-compliance is not reportable against this section for the purposes of the Certificate. This section does not contain a compliance element. This section is a discretionary power of the Chief Executive.

Section 53 Chief Executive may delegate powers

(1) A Chief Executive may, by written instrument, delegate any of the following powers and functions to an official in any Agency:

(a) the Chief Executive’s powers or functions under this Act (including powers or functions that have been delegated to the Chief Executive under section 62 or 62A);

(b) the Chief Executive’s power to give instructions under regulations referred to in section 52.

Non-compliance is reportable against this section for the purposes of the Certificate.

This section is a discretionary power of the Chief Executive. That said, non-compliance is only reportable where the Chief Executive is subject to directions under sections 62 or 62A and the Chief Executive does not give corresponding directions to the second delegate.



1AA) If:

(a) the Chief Executive delegates a power or function to a person; and

(b) the power or function is not one that has been delegated to the Chief Executive under section 62 or 62A;

the Chief Executive may give directions to the person in relation to the exercise of that power or the performance of that function. The person must comply with any such directions.

1A) If the Chief Executive delegates to a person (the second delegate) a power or function that has been delegated to the Chief Executive under section 62 or 62A, then that power or function, when exercised or performed by the second delegate, is taken for the purposes of this Act to have been exercised or performed by the Finance Minister or Treasurer.

(2) If the Chief Executive is subject to directions in relation to the exercise of a power, or the performance of a function, delegated to the Chief Executive under section 62 or 62A, then:

(a) the Chief Executive must give corresponding directions to the second delegate; and

(b) the Chief Executive may give other directions (not inconsistent with those corresponding directions) to the second delegate in relation to the exercise of that power or the performance of that function.

(3) The second delegate must comply with any directions of the Chief Executive.

Regulation 16A

Guidelines on fraud (Act s 64) (1) The Minister for Home Affairs may issue guidelines (to be called Fraud Control Guidelines) about the control of fraud, dealing with fraud risk assessments, the preparation and implementation of fraud control plans and reporting of fraud.

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

Non-compliance is reportable against Regulation 16A where an official does not comply with the mandatory requirements of the Fraud Control Guidelines (FCGs). The mandatory requirements are indicated by the term “must” in the FCGs.

The FCGs are a legislative instrument.

Regulation 22AA

Notice of share acquisitions and other events (Act s 39A)

(1) A notice of an event mentioned in subsection 39A (2) of the Act must be in the form in Schedule 1A.

(2) The notice must include the particulars set out in the table.

Item Particular

1. The name and portfolio of the Minister who has the responsibility for the event

2. The nature of the event


There is a mandatory requirement under Regulation 22AA. That said, this is not a reportable requirement for the purposes of the Certificate. Refer to section 39A.



3. The name of the company involved in the event4. If the company is incorporated in Australia:

(a) the company’s ACN; or (b) the company’s ARBN (if the company has an ARBN)

5. If the company is a foreign company:(a) the jurisdiction in which the company is incorporated; and(b) any incorporation identifier provided for the company in that jurisdiction; and(c) the company’s ARBN (if the company has an ARBN)

6. The address of the company’s principal place of business7. Whether the company is included in an official list of a stock

exchange and, if so, the name of the stock exchange8. Whether the company is:

(a) a company limited by shares; or(b) a company limited by guarantee; or(c) a company limited by guarantee and shares; or(d) an unlimited company; or(e) a no liability company

9. Whether the company is:(a) a public company (a company that is not a proprietary company within the meaning of section 9 of the Corporations Act 2001); or(b) a large proprietary company; or(c) a small proprietary company

10. Whether the company is a company with only 1 member11. If the company is a foreign company, a description of the legal

structure of the company12. If, before or after the event, there were 1 or more ultimate

holding companies:(a) the name of each ultimate holding company; and

(b) if applicable, the ACN or ARBN of each ultimate holding company; and

(c) for each ultimate holding company that is a foreign company, the jurisdiction in which it is incorporated and the incorporation identifier (if any) provided for the company in that jurisdiction

---------------------------------------------(3) The notice must also include a short statement about the event,

setting out the particulars in the table.

Item Information



1. The reasons for the event

2. Whether the Commonwealth or a prescribed body will be under an obligation or will have a liability because of the event

3. Whether, because of the event, the Commonwealth or a prescribed body:

(a) has, or will have, control of the company; or

(b) no longer has, or will no longer have, control of the company

4. The dollar value of any consideration paid or received by the Commonwealth or a prescribed body in relation to the event

5. Any other areas where the interests of the Commonwealth or a prescribed body have been affected by the event ---------------------------------------------

(4) In this regulation, each of the following terms has the meaning given by section 9 of the Corporations Act 2001:

(a) ACN (short for ‘Australian Company Number’);(b) ARBN (short for ‘Australian Registered Body Number’);(c) company limited by guarantee;(d) company limited by shares;(e) foreign company;(f) large proprietary company;(g) no liability company;(h) small proprietary company;(i) ultimate holding company;(j) unlimited company.

Regulation 22C

Audit committees (Act, s 46) Membership

(1) A Chief Executive who is appointing one or more members of an audit committee must:

(a) have regard to:(i)the Agency’s governance framework and assurance mechanisms;

and(ii)the key risks to the Agency, including risks relating to program

delivery and implementation; and(b)ensure that each member to be appointed has, in the Chief

Executive’s opinion, appropriate skills and experience to carry out the committee’s functions, including the ability to advise the Chief Executive about how the Chief Executive can manage the key risks; and

(c) ensure, as far as practicable, that the committee includes at least one member who is not an employee of the Agency (an

Non-compliance is reportable against section 46 of the FMA Act where the Chief Executive has not provided terms of reference to the Audit Committee, including the criteria at Regulation 22C (1)(a) to (c).



external member).(2)The Chief Executive must appoint a member of an audit committee

(who may be an external member) as the Chair of the committee.

(3)The Chief Executive must give an audit committee terms of reference that include particulars of:

(a) its functions; and(b) the frequency of its meetings; and(c) its membership.

Functions of audit committee

(4)In addition to subsection 46 (1) of the Act, the functions of an audit committee include the following, unless the Chief Executive decides, in writing, that the committee is not to have a particular function:

(a)reviewing periodically the adequacy of the Agency’s governance arrangements;

(b)reviewing the operational effectiveness of the Agency’s risk management framework;

(c)reviewing the adequacy of the Agency’s internal control environment;

(d)reviewing the adequacy of the Agency’s controls that are designed to ensure the Agency’s compliance with legislation;

(e)advising the Chief Executive about the internal audit plans of the Agency;

(f)advising the Chief Executive about the professional standards to be used by internal auditors in the course of carrying out audits in the Agency;

(g)as far as practicable, coordinating work programs relating to internal and external audits;

(h)reviewing the adequacy of the Agency’s response to reports of internal and external audits;

(i)reviewing the content of reports of internal and external audits, for the purpose of identifying material that is relevant to the Agency, and advising the Chief Executive about good practices;

(j)advising the Chief Executive about action to be taken on significant matters of concern, or significant opportunities for improvement, that are mentioned in reports of internal and external audits;

(k)advising the Chief Executive on the preparation and review of the Agency’s financial statements;

(l)providing any other advice to the Chief Executive about the Chief Executive’s obligations under the Act.



(5)A Chief Executive may add to, or vary, the functions of an audit committee, having regard to:

(a) the Agency’s governance framework and assurance mechanisms; and

(b) the key risks to the Agency, including risks relating to program delivery and implementation.

Regulation 22D

Estimates (1) A Chief Executive must prepare budget estimates for each financial year, and for any other periods directed by the Finance Chief Executive.

(2) The estimates must be:

(a) prepared in the form specified by the Finance Chief Executive; and

(b) provided as required by the Finance Chief Executive.

Non-compliance is reportable where the Chief Executive has not prepared budget estimates in accordance with Regulation 22D.

Non-compliance is reportable where CFO sign-off of the budget estimates is not provided in the timeframes required by the Finance Secretary.

These timeframes are communicated through the relevant Estimates Memorandum issued by Finance.

Regulation 22E

Assistance to Parliamentary Budget Officer (Act s 64)

(1) The Finance Minister may issue guidelines in relation to the provision of assistance to the Parliamentary Budget Officer, including:

(a) the provision of information to the Parliamentary Budget Officer; and

(b) requirements for the confidentiality of advice given to the Parliamentary Budget Officer; and

(c) the making of adequate arrangements for the provision of the assistance.

Note The position of Parliamentary Budget Officer has been established by the Parliament.

(2) The guidelines are to have a title approved by the Finance Minister.

(3) An official performing duties in relation to the provision of assistance to the Parliamentary Budget Officer must act in accordance with any guidelines issued under subregulation (1).

Non-compliance is reportable against Regulation 22E where an official does not comply with the mandatory requirements of the Guidelines.

The Guidelines are a legislative instrument.

As at April 2013 there were no Guidelines issued.

Regulation 23 Disposal of property found on Commonwealth premises etc (Act s 41)

(1) If:

(a) property (other than money, or property to which subregulation (2) applies) is found on premises, or in an aircraft, vessel, vehicle, container or receptacle, under the control of the Commonwealth; and

(b) the property is not claimed by its owner within 3 months from the date on which it is so found;

the Commonwealth may dispose of the property.

Non-compliance is reportable where an official does not dispose of public property by sale unless it is impractical, or undesirable.

Non-compliance is also reportable where the Commonwealth does not pay the owner of the property in accordance with subregulation 23(4), if applicable.



(2) The Commonwealth may, at any time, dispose of:

(a) live plants or animals; or(b) perishable goods; or(c) articles that are, or could be, dangerous or noxious; (d) found on premises, or in an aircraft, vessel, vehicle, container

or receptacle, under the control of the Commonwealth.(3) The Commonwealth must dispose of the property by sale, unless it

is impracticable, or undesirable in the public interest, to do so.

(4) If:

(a) the Commonwealth has disposed of property by sale; and(b) the person who was the owner of the property immediately

before the sale makes a claim on the Commonwealth in respect of the property;

the Commonwealth must pay to the person an amount equal to the amount for which the property was sold less the aggregate of any amounts reasonably spent by the Commonwealth for the storage, maintenance or disposal of the property.

(5) If property is sold by the Commonwealth, any right in respect of the property vested in a person before the sale ceases to exist at the time of the sale.

Regulation 24 Finance Minister may delegate powers

(1) The Finance Minister may delegate to an official, by written instrument, all of the Finance Minister’s powers or functions under these Regulations (other than this power of delegation).

(2) If a delegation by the Finance Minister relates to the Finance Minister’s powers or functions under regulation 9 or 10, the Finance Minister may also delegate the power of delegation under subregulation (1) in relation to those powers or functions.

(3) In exercising powers and functions under a delegation, the official must comply with any directions of the Finance Minister.

(4) This regulation does not, by implication, limit:

(a) any other power of the Finance Minister to authorise a person to act on behalf of the Finance Minister; or

(b) any other power of an official to authorise a person to act on behalf of the official.

Non-compliance is not reportable against Regulation 24 for the purposes of the Certificate.

This is a discretionary power of the Finance Minister.

However, non-compliance is reportable where an official does not comply with any directions of the Finance Minister. Where the section or regulation which has been delegated does not have a compliance element, non-compliance is reportable against the relevant Schedule and Part of the Delegation.

For example, see the explanation at Regulation 29 below.

Regulation 29 Act of grace payments and waiver of debts (Act, ss 33 and 34)

(1) If a proposed authorisation under subsection 33 (1) of the Act would involve, or be likely to involve, a total amount of more than $250 000, the Finance Minister:

(a) must ask the persons mentioned in subregulation (3) to give

Non-compliance is not reportable against this Regulation by all agencies for the purposes of the Certificate.

Non-compliance can only be reported by Finance, where the requirements of subregulation 29(1) (a) and (b) are not met.



him or her a report on the proposed authorisation, in the capacity of an Advisory Committee; and

(b) must not authorise the payment without considering the report of the Advisory Committee.

(2) If a proposed waiver under subsection 34 (1) of the Act would involve, or be likely to involve, a total amount of more than $250 000, the Finance Minister:

(a) must ask the persons mentioned in subregulation (3) to give him or her a report on the proposed authorisation, in the capacity of an Advisory Committee; and

(b) must not authorise the payment without considering the report of the Advisory Committee.

(3) The persons are:

(a) either:

(i) the Chief Executive Officer of Customs; or

(ii) if the Agency that is responsible for the matter on which the Committee has to report is the Australian Customs and Border Protection Service — a Chief Executive nominated by the Finance Minister; and

(b) either:

(i) the Secretary to the Department of Finance and Deregulation; or

(ii) if the Agency that is responsible for the matter on which the Committee has to report is the Department of Finance and Deregulation — a Chief Executive nominated by the Finance Minister; and

(c) either:

(i) the Chief Executive of the Agency that is responsible for the matter on which the Committee has to report; or

(ii) if there is no Agency responsible for the matter — a Chief Executive nominated by the Finance Minister.

(4) A member of an Advisory Committee may appoint a deputy to act in his or her place.

(5) An Advisory Committee may prepare its report without having a meeting

Non-compliance is reportable against the Delegation (Schedule 1, Part 11 to 13 as appropriate) where a delegate has not exercised the power in accordance with the directions in the Delegation.

Regulation 30 Finance Minister may approve payments pending probate etc

(1) If, at the time of a person’s death, the Commonwealth owed an amount to the person, the Finance Minister may authorise payment of that amount to the person who the Minister considers should receive the payment.

(2) The Minister may authorise the payment without requiring

Non-compliance is reportable where, when deciding who should be paid, a person’s entitlement to the property of the deceased person is not taken into account in accordance with subregulation 3.



production of probate of the will of the deceased person or letters of administration of the estate of the deceased person.

(3) In deciding who should be paid, the Finance Minister must have regard to the persons who are entitled to the property of the deceased person under the deceased person’s will or under the law relating to the disposition of the property of deceased persons.

(4) Subject to subregulation (5), after the payment is made, the Commonwealth has no further liability in respect of the payment.

(5) This regulation does not relieve the recipient from a liability to deal with the money in accordance with law.

(6) This regulation does not have the effect of appropriating the CRF for the purposes of payments under this regulation.

(7) This regulation extends to a case in which the deceased person died before the commencement of this regulation.

Regulation 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.

Non-compliance is reportable where the old employer does not give reasonable assistance to the new employer to prepare the invoice for the purposes of Regulation 33.

Regulation 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.(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.

Years of service Weighting factor x

Less than 1 0.5At least 1 but less than 2 0.6At least 2 but less than 4 0.7At least 4 but less than 6 0.8

Non-compliance is reportable where the old employer does not pay the new employer within 30 days of the receipt of a correctly rendered invoice.



At least 6 but less than 8 0.9At least 8 1.0

Policies - Australian Government Foreign Exchange Risk Management Guidelines;

- the Guidelines for the Management of Special Accounts

- Australian Government Cost Recovery Guidelines;

- Guidelines for Issuing and Managing Indemnities, Guarantees, Warranties and Letters of Comfort; and

- Commonwealth Property Management Guidelines

Agencies should consult with Resources Management Branch if they require further information on reportable policies.

Note: Non-compliance is not reportable against section 20 or 21 of the

FMA Act as these sections establish a Special Account and do not contain

mandatory requirements for the management of a Special Account.


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