Public Finance and Audit Regulation 2015

Part 1 Preliminary

1 Name of Regulation

This Regulation is the Public Finance and Audit Regulation 2015.

2 Commencement

This Regulation commences on the day on which it is published on the NSW legislation website.

Note—

This Regulation repeals and replaces the Public Finance and Audit Regulation 2010, which would otherwise be repealed on 1 September 2015 by section 10 (2) of the Subordinate Legislation Act 1989.

3 Definitions

(1)  In this Regulation—

Department has the same meaning as it has in Division 4A of Part 3 of the Act.

statutory body has the same meaning as it has in Division 3 of Part 3 of the Act.

the Act means the Public Finance and Audit Act 1983.

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

(2)  Notes included in this Regulation do not form part of this Regulation.

Part 2 Statutory bodies

Division 1 Financial reports

Note—

Section 41B (1) (a) of the Act requires a statutory body’s financial report to be prepared in accordance with Australian Accounting Standards.

4 Income and expenditure and balance sheet information

(1)  For the purposes of section 41B (1) (c) (vi) and (g) of the Act, the following particulars must be shown separately in the financial report of a statutory body—

(a)  the amount of emoluments or other benefits paid or due and payable, directly or indirectly, to members or directors (however described) of the body, but not including amounts paid by way of salary to full-time members or directors of the body,

(b)  the total amounts paid or becoming payable to consultants engaged by the statutory body (other than the NSW Trustee and Guardian or the Senate or Council of a university) during the financial year,

(c)  the description and amount of loans, advances or money otherwise due to the body by members or directors (however described) of the body, or officers or employees of the body holding executive decision-making positions, or relatives of those members, directors, officers or employees, but not including loans, advances or money otherwise due for the purpose of carrying out official duties, such as travelling advances and the like,

(d)  the description and amount of loans, advances or money otherwise due to the body by a corporation, a director of which is a member or director (however described) of the body, or an officer or employee of the body holding an executive decision-making position.

(2)  Any such particular may be included in the financial report by way of note or otherwise.

(3)  The requirements of this clause are in addition to any other matters necessary to exhibit a true and fair view of the financial position and financial performance of the body.

5 Rounding off

If appropriate, all amounts shown in the financial report of a statutory body may be expressed by reference to the nearest $1,000.

6 Exclusion of budget information from certain financial reports

(1)  The financial report of a statutory body submitted under section 41A of the Act to the Auditor-General for audit must not include or be accompanied by a budget of the statutory body or any budget information.

(2)  Subclause (1) does not apply to the financial report of a statutory body if the statutory body is required by or under the Act (including by a condition of an exemption granted under the Act or a direction of the Treasurer under the Act) to include a budget or budget information in that report.

7 Certification

For the purposes of section 41C (1B) (b) of the Act, the following matters are required to be included in a statement to the Auditor-General—

(a)  a statement as to whether, in the opinion of the person or persons who are to sign the statement, the financial report has been prepared in accordance with the provisions of the Act, this Regulation and the Treasurer’s directions,

(b)  a statement as to whether each person who is to sign the statement is aware, as at the date on which the person signs the statement, of any circumstances that would render any particulars included in the financial report misleading or inaccurate.

8 Exemptions

(1)  The Treasurer may, on application by a statutory body made at any time, grant an exemption from any or all of the provisions of this Division, in relation to the financial report of the body for a particular financial year.

(2)  An exemption may be granted subject to such conditions as the Treasurer may determine.

(3)  An exemption ceases to apply if the Treasurer, by notice in writing, so informs the statutory body to which the exemption was granted.

(4)  Details of an exemption, and the reasons for the exemption, must be included as a separate note in the notes within the financial report for the financial year in which the exemption applies.

Division 2 Miscellaneous

9 Excluded statutory bodies for purposes of Division 3 of Part 3 of Act

For the purposes of section 39(1B) of the Act, each of the following persons, groups of persons, bodies or entities is declared not to be a statutory body for the purposes of Division 3 of Part 3 of the Act—

(a)  Art Gallery of New South Wales Trust Staff Agency,

(b)  Australian Museum Trust Staff Agency,

(c)  Barangaroo Delivery Authority Staff Agency,

(d)  Buroba Pty Ltd (ACN 065 388 150),

(e)  COH Property Trust,

(f)  Destination NSW Staff Agency,

(g)  Environment Protection Authority Staff Agency,

(h)  Health Care Complaints Commission Staff Agency,

(i)  Independent Pricing and Regulatory Tribunal Staff Agency,

(j)  Infrastructure NSW Staff Agency,

(k)  Institute of Sport Staff Agency,

(l)  Kolling Joint Venture Management Pty Ltd (ACN 629 650 237),

(m)  Legal Aid Commission Staff Agency,

(n)  Local Land Services Staff Agency,

(o)  Macquarie University Clinical Associates Ltd (ACN 606 405 270),

(p)  Macquarie University Property Investment Company Pty Limited (ACN 124 571 277),

(q)  Macquarie University Property Investment Trust,

(r)  Mental Health Commission Staff Agency,

(s)  MUH Operations Pty Ltd (ACN 139 479 691),

(t)  Multicultural NSW Staff Agency,

(u)  MUPH Clinic Pty Limited (ACN 127 854 111),

(v)  MUPH Hospital Pty Limited (ACN 127 854 120),

(w)  MU Property Investment Company No. 3 Pty Limited (ACN 136 874 612),

(x)  Natural Resources Commission Staff Agency,

(y)  New South Wales Electoral Commission Staff Agency,

(z)  New South Wales Non-Budget Long Service Leave Pool,

(za)  New South Wales Structured Finance Activities,

(zb)  NSW Education Standards Authority Staff Agency,

(zc)  SAS Trustee Corporation Staff Agency,

(zd)  Sydney Opera House Trust Staff Agency,

(ze)  TAFE Commission (Senior Executives) Staff Agency,

(zf)  The Sydney Business School Pty Limited (ACN 113 001 399),

(zg)  The University of New South Wales Foundation Limited (ACN 003 630 984),

(zh)  Trustees of the Museum of Applied Arts and Sciences Staff Agency,

(zi)  UrbanGrowth NSW Development Corporation Staff Agency,

(zj)  Valley Commerce Pty Ltd (ACN 004 530 787),

(zk)  Western City and Aerotropolis Authority Staff Agency.

cl 9: Subst 2019 (261), Sch 1 [1]; 2019 (645), Sch 1.

10 Statutory bodies for purposes of Division 4 of Part 3 of Act

For the purposes of section 44 (1) of the Act, each of the following persons, groups of persons or bodies is prescribed as a statutory body for the purposes of Division 4 of Part 3 of the Act—

(a)  a person, group of persons or body set out in Part 1 of Schedule 1,

(b)  a person, group of persons or body having the control or management of a fund or account set out in Part 2 of Schedule 1.

Part 3 Departments

Division 1 Financial reports

pt 3, div 1, hdg: Ins 2019 (261), Sch 1 [2].

Note—

Section 45E (1) (a) of the Act requires a Department’s financial report to be prepared in accordance with Australian Accounting Standards.

11 Certification of financial reports

For the purposes of section 45F (1B) (b) of the Act, the following matters are required to be included in a statement made by a Department Head—

(a)  a statement as to whether, in the opinion of the Department Head, the financial report has been prepared in accordance with the provisions of the Act, this Regulation and the Treasurer’s directions,

(b)  a statement as to whether the Department Head is aware, as at the date on which the Department Head signs the statement, of any circumstances that would render any particulars included in the financial report misleading or inaccurate.

12 Exemptions

(1)  The Treasurer may, on application by a Department Head made at any time, grant an exemption from any or all of the provisions of this Part, in relation to the financial report of the Department for a particular financial year.

(2)  An exemption may be granted subject to such conditions as the Treasurer may determine.

(3)  An exemption ceases to apply if the Treasurer, by notice in writing, so informs the Department Head of the Department in respect of which the exemption was granted.

(4)  Details of an exemption, and the reasons for the exemption, must be included as a separate note in the notes within the financial report for the financial year in which the exemption applies.

Division 2 Miscellaneous

pt 3, div 2 (cl 12A): Ins 2019 (261), Sch 1 [3].

12A Excluded Departments for purposes of Division 4A of Part 3 of Act

For the purposes of section 45A (1B) of the Act, each of the following persons, groups of persons, bodies or entities is declared not to be a Department for the purposes of Division 4A of Part 3 of the Act—

(a)  Albury Wodonga Health Employment Division,

(b)  Bureau of Health Information Special Purpose Service Entity,

(c)  Cancer Institute NSW Special Purpose Service Entity,

(d)  Central Coast Local Health District Special Purpose Service Entity,

(e)  Central Coast Water Corporation,

(f)  Clinical Excellence Commission Special Purpose Service Entity,

(g)  Energy Corporation of New South Wales,

(h)  Far West Local Health District Special Purpose Service Entity,

(i)  Fisheries Administration Ministerial Corporation,

(j)  Health Education and Training Institute Special Purpose Service Entity,

(k)  Hunter New England Local Health District Special Purpose Service Entity,

(l)  Illawarra Shoalhaven Local Health District Special Purpose Service Entity,

(m)  Justice Health and Forensic Mental Health Network Special Purpose Service Entity,

(n)  Mid North Coast Local Health District Special Purpose Service Entity,

(o)  Ministerial Development Corporation constituted under the Growth Centres (Development Corporations) Act 1974,

(p)  Murrumbidgee Local Health District Special Purpose Service Entity,

(q)  Nepean Blue Mountains Local Health District Special Purpose Service Entity,

(r)  New South Wales Crime Commission Staff Agency,

(s)  Northern NSW Local Health District Special Purpose Service Entity,

(t)  Northern Sydney Local Health District Special Purpose Service Entity,

(u)  Office of the Greyhound Welfare and Integrity Commission,

(v)  Office of the Law Enforcement Conduct Commission,

(w)  Residual Transport Corporation of New South Wales,

(x)  Soil Conservation Commission of New South Wales,

(y)  South Eastern Sydney Local Health District Special Purpose Service Entity,

(z)  South Western Sydney Local Health District Special Purpose Service Entity,

(za)  Southern NSW Local Health District Special Purpose Service Entity,

(zb)  The Agency for Clinical Innovation Special Purpose Service Entity,

(zc)  The Sydney Children’s Hospitals Network (Randwick and Westmead) (incorporating The Royal Alexandra Hospital for Children) Special Purpose Service Entity,

(zd)  Western NSW Local Health District Special Purpose Service Entity,

(ze)  Western Sydney Local Health District Special Purpose Service Entity.

pt 3, div 2 (cl 12A): Ins 2019 (261), Sch 1 [3].

Part 4 Miscellaneous

13 Payment of accounts

(1)  This clause applies to a contract entered into by or on behalf of an authority for the supply of goods or services (or both) to the authority.

(2)  The Head of an authority must nominate the holder of a position within the staff establishment of the authority to be the accounts complaints officer for the authority.

(3)  An order form issued by an authority must include—

(a)  a statement to the effect that, if a payment is not made within the time required by subclause (4), the supplier should take the matter up with the accounts complaints officer for the authority, and

(b)  the telephone number of the accounts complaints officer, and

(c)  a statement that, if payment is not made within the time determined by this clause, the Head of the authority—

(i)  must, if required to do so by the Treasurer’s directions, pay the supplier penalty interest of an amount or at a rate determined by the Treasurer’s directions, and

(ii)  may pay the supplier penalty interest of an amount or at a rate determined by the Treasurer’s directions in other cases.

(4)  The Head of an authority must ensure that payment is made to the supplier in the circumstances, and by the time (if any), that the authority is required by the Treasurer’s directions to pay such accounts.

(5)  If payment is not made to a supplier in accordance with subclause (4), the Head of the authority (or a person appointed by the Head of the authority)—

(a)  must, if required to do so by the Treasurer’s directions, direct that the supplier be paid penalty interest of the amount or at the rate determined by the Treasurer’s directions, and

(b)  may direct that the supplier be paid penalty interest of the amount or at the rate determined by the Treasurer’s directions in other cases.

(6)  An interest payment under this clause must be met from within the authority’s approved budget.

14 Definition of “officer of an authority”

(1)  For the purpose of the definition of officer of an authority in section 4 (1) of the Act—

(a)  a person who is authorised under an insurance services contract to exercise functions for the purposes of sections 12 and 13 of the Act (whether or not the person is a party to that contract) is prescribed in relation to the NSW Self Insurance Corporation, but only for the purposes of exercising those functions that the person is authorised to exercise under the contract, and

(b)  an employee of Cubic Transportation Systems (Australia) Pty Limited (ABN 82 003 617 561) who is authorised by instrument in writing by the Secretary of the Department of Transport to exercise functions for the purposes of sections 12 and 13 of the Act is prescribed in relation to Transport for NSW, but only for the purposes of exercising those functions that the person is authorised to exercise by that instrument, and

(c)  a statutory officer who is not a Public Service employee under the Government Sector Employment Act 2013 but who is the head of, or exercises functions in relation to, a Public Service agency under that Act is prescribed in relation to that agency.

(2)  In this clause—

insurance services contract means an agreement or arrangement entered into by the NSW Self Insurance Corporation in accordance with section 8 (1) (b) of the NSW Self Insurance Corporation Act 2004.

15 Prescribed investments

(1)  For the purposes of section 20 (e) of the Act, the following investments are prescribed—

(a)  a promissory note made by—

(i)  a statutory body constituted under an Act of the Commonwealth or a State, or

(ii)  an eligible company,

(b)  a loan of money on the security of a letter of credit which is confirmed by an authorised deposit taking institution,

(c)  an advance to an authorised deposit taking institution or an eligible company secured by such legally enforceable documents or other security as the Secretary of the Treasury or an officer of the Treasury authorised by the Secretary for the purpose may approve,

(d)  futures contracts traded on the Sydney Futures Exchange Limited,

(e)  forward rate agreements that comply with the Public Authorities (Financial Arrangements) Act 1987,

(f)  option contracts traded on the Sydney Futures Exchange Limited,

(g)  option contracts with an authorised deposit taking institution or an eligible company or with a statutory body constituted under an Act of the Commonwealth or of a State,

(h)  securities the repayment of which is guaranteed by the Government of a State,

(i)  deposits with the New South Wales Treasury Corporation, including investments in an investment facility of the Treasury Corporation made available to public authorities for investment of their surplus funds (being a unit trust scheme within the meaning of the Duties Act 1997),

(j)  the purchase and sale before, and at, maturity of an investment prescribed by any of the preceding paragraphs.

(2)  The Treasurer may—

(a)  nominate the prescribed investments, if any, in which money must be invested, and

(b)  determine the amount of money that must be invested in each prescribed investment so nominated.

(3)  In this clause—

eligible company means—

(a)  a company that is accredited with a rating of between “AAA” and “AA” by Standard & Poor’s (Australia) Pty Ltd or is accredited with a rating of between “Aaa” and “Aa” by Moody’s Investors Service Pty Limited, or

(b)  a company whose liabilities are unconditionally guaranteed by a company to which paragraph (a) applies.

cl 15: Am 2016 No 55, Sch 1.24.

16 Statutory authorities to pay dividends to Consolidated Fund

For the purposes of section 59B (2) of the Act, the following statutory authorities are prescribed—

(a)  the statutory bodies specified in Schedule 2 to the Act,

(b)  the corporations specified in Schedule 5 to the State Owned Corporations Act 1989.

17 Repeal and savings

(1)  The Public Finance and Audit Regulation 2010 is repealed.

(2)  Any act, matter or thing that, immediately before the repeal of the Public Finance and Audit Regulation 2010, had effect under that Regulation continues to have effect under this Regulation.

Schedule 1 Prescribed audits

(Clause 10)

Part 1 Persons, groups of persons or bodies

Agricultural Scientific Collections Trust

AustLII Foundation Limited

Belgenny Farm Agricultural Heritage Centre Trust

The Brett Whiteley Foundation

Buroba Pty Ltd

C. B. Alexander Foundation

City West Housing Pty Limited

The Commissioner for Uniform Legal Services Regulation

Cowra Japanese Garden Maintenance Foundation Limited

Cowra Japanese Garden Trust

Eif Pty Limited

Gosford City Council, being a water supply authority listed in Schedule 3 to the Water Management Act 2000

The Illawarra Health and Medical Research Institute Ltd

The Legal Services Council

Local health districts within the meaning of the Health Services Act 1997

Minister administering the Environmental Planning and Assessment Act 1979 (a corporation)

Minister administering the Heritage Act 1977 (a corporation)

National Art School

Networks NSW Pty Limited

NSW Businesslink Pty Limited

NSW Fire Brigades Superannuation Pty Limited

State Super Financial Services Australia Limited

Sydney Educational Broadcasting Ltd

Trustees of the Farrer Memorial Research Scholarship Fund

The trustees for the time being of The Art Gallery of New South Wales Foundation

Trustee of the Home Purchase Assistance Fund

Each board of management, state conservation area trust and trust board established for a state conservation area within the meaning of the National Parks and Wildlife Act 1974

The trustees for the time being of each superannuation scheme established by a trust deed as referred to in section 127 of the Superannuation Administration Act 1996

United States Studies Centre

Universities Admissions Centre (NSW & ACT) Pty Limited

Valley Commerce Pty Ltd

Wyong Council, being a water supply authority listed in Schedule 3 to the Water Management Act 2000

Part 2 Funds or accounts

Crown Employees (NSW Fire Brigades Firefighting Staff Death and Disability) Superannuation Fund

Energy Investment Fund

Home Building Compensation Fund

Macquarie University Professorial Superannuation Scheme

The funds for the time being under the management of the New South Wales Treasury Corporation, as trustee

Parliamentary Contributory Superannuation Fund

State Super Allocated Pension Fund established by State Super Allocated Pension Fund Trust Deed dated 23 November 1993

State Super Fixed Term Pension Plan established by State Super Fixed Term Pension Plan Trust Deed dated 14 July 1999

State Super Personal Retirement Plan established by State Super Personal Retirement Plan Trust Deed dated 3 April 1990

State Super Investment Fund established by State Super Investment Fund—Cash Fund Constitution dated 22 November 1991, State Super Investment Fund—Capital Stable Fund Constitution dated 22 November 1991, State Super Investment Fund—Balanced Fund Constitution dated 22 November 1991 and State Super Investment Fund—Growth Fund Constitution dated 24 April 1997

The superannuation fund amalgamated under the Superannuation Administration Act 1991 and continued to be amalgamated under the Superannuation Administration Act 1996

University of Sydney Professorial Superannuation System

sch 1: Am 2016 (55), cl 3; 2016 (205), cl 3; 2016 (206), cl 3; 2019 (432), cl 3.

Schedule 2 Special provisions for COVID-19 pandemic concerning financial reporting

Part 1 Interpretation

1 Definitions

In this Schedule—

accountable authority has the same meaning as in the Government Sector Finance Act 2018.

assets, commitments, contingent liabilities, expenses, income and liabilities have the same meanings as in the Australian Accounting Standards.

controlled entity has the same meaning as in the Government Sector Finance Act 2018.

Crown land manager has the same meaning as in the Crown Land Management Act 2016.

Department means a Department within the meaning of Division 4A of Part 3 of the Act.

exempt Department means a Department that is an exempt Department because of the operation of Part 2 of this Schedule.

exempt statutory body means a statutory body that is an exempt statutory body because of the operation of Part 2 of this Schedule.

relevant agency means a Department or statutory body.

relevant transaction means a transaction, approved or directed by the Premier or Treasurer or other Minister, for the sale, lease, assignment, transfer or other disposal of assets or liabilities of the State to a non-government sector entity.

retained State interest, in relation to a relevant transaction, means an interest or right in or related to an asset or liability disposed of under a relevant transaction that is held by or on behalf of the State as a consequence of the transaction.

statutory body means a statutory body within the meaning of Division 3 of Part 3 of the Act.

2 Effect of Schedule on other provisions of Regulation

This Schedule does not limit the operation of clauses 9 and 12A of this Regulation.

Part 2 Exempt Departments and exempt statutory bodies

3 Small agencies

A Department or statutory body meeting all of the following requirements is an exempt Department or exempt statutory body (as the case requires)—

(a)  the assets, liabilities, income, expenses, commitments and contingent liabilities of the Department or statutory body are each less than $5,000,000,

(b)  the total cash or cash equivalents held by the Department or statutory body is less than $2,500,000,

(c)  at least 95% of the Department’s or statutory body’s income is derived from money paid out of the Consolidated Fund or from money provided by other relevant agencies,

(d)  the Department or statutory body does not administer legislation for a Minister by or under which members of the public are regulated.

4 Crown land managers

A Department or statutory body meeting all of the following requirements is an exempt Department or exempt statutory body (as the case requires)—

(a)  the Department or statutory body is a Crown land manager,

(b)  the requirements referred to in clause 3(a), (b) and (d),

(c)  the income of the Department or statutory body, derived from sources other than money paid out of the Consolidated Fund or money provided by other relevant agencies, is less than $100,000.

5 Special purpose staff agencies

A Department or statutory body that comprises solely of persons who are employed to enable another particular relevant agency to exercise its functions is an exempt Department or exempt statutory body (as the case requires).

6 Retained State interests

A Department or statutory body meeting all of the following requirements is an exempt Department or exempt statutory body (as the case requires)—

(a)  the sole purpose of the Department or statutory body (the first agency) is to hold and manage retained State interests arising from a particular relevant transaction, and all of its activities relate to that purpose,

(b)  the first agency’s financial position and financial performance are consolidated within the financial statements of another relevant agency (the second agency),

(c)  the first agency and the second agency each has the same accountable authority,

(d)  if there is another relevant agency that is also a controlled entity of the second agency, the second agency and that controlled entity have the same sole purpose.

Part 3 Modification of reporting requirements

7 Reporting requirements for exempt Department

For the purposes of section 45(4C) of the Act, Division 4A of Part 3 of the Act applies to an exempt Department except for sections 45D–45H.

8 Reporting requirements for exempt statutory body

For the purposes of section 39(3C) of the Act, Division 3 of Part 3 of the Act applies to an exempt statutory body except for sections 41A–42.

Part 4 General

9 Repeal of Schedule

This Schedule is repealed on 1 November 2021.

sch 2: Ins 2020 No 6, Sch 1.5.