Bill 29 - An Act to Amend the Auditor General Act

BILL 29

An Act to Amend the Auditor General Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 1 of the Auditor General Act, chapter 118 of the Revised Statutes, 2011, is amended

(a) by repealing the definition “agency of the Crown”;

(b) by adding the following definitions in alphabetical order:

“audit” means an audit or examination conducted in accordance with Canadian generally accepted auditing standards or any other professional standards that the Auditor General considers appropriate. (audit)

“auditable entity” means (entité auditable)

(a) a department,

(b) a public entity,

(d) a service provider, or

(e) a funding recipient.

“department” means a department as defined in the Financial Administration Act. (ministère)

“funding” includes financial assistance, a tax credit and a waiver of fees. (financement)

“funding recipient” means a person or an organization that has received funding from a department, a public entity or a trust fund. (bénéficiaire de financement)

“personal information” means personal information as defined in the Right to Information and Protection of Privacy Act. (renseignements personnels)

“public entity” means (entité publique)

(a) an entity whose financial statements are included in the financial statements of the Province, other than a department,

(b) a Crown corporation, including a board, Crown corporation or commission listed under Part IV of the First Schedule of the Public Service Labour Relations Act,

(c) an entity whose board is, or the majority of the members of which are, appointed by an Act, a Minister appointed under section 2 of the Executive Council Act or the Lieutenant-Governor in Council,

(d) an entity that is accountable to or supervised by the Province or a Minister appointed under section 2 of the Executive Council Act, or

(e) an entity listed under Part II or III of the First Schedule of the Public Service Labour Relations Act.

“service provider” means a person or an organization that (fournisseur de services)

(a) delivers programs or services on behalf of the Province, or

(b) collects money from the Province or on behalf of the Province.

“trust fund” means a trust that is held by or on behalf of the Province or whose financial statements are included in the financial statements of the Province. (fonds fiduciaire)

2 The Act is amended by adding after section 1 the following:

Use of “vérification” and “audit”

1.1 Unless the context requires otherwise, when construing the French version of any other Act or any regulation, the words “vérification” and “audit” shall be read and construed as having the same meaning, and other parts of speech and grammatical forms of those words shall be read and construed as having corresponding meanings.

3 The Act is amended by adding after section 3 the following:

Administration of the Office of the Auditor General

3.1 The Auditor General shall administer the affairs of the Office of the Auditor General.

4 Subsection 4(10) of the Act is amended by striking out “appointed under a contract for professional services to assist him or her for a limited period of time or in respect of a particular matter” and substituting “appointed by the Auditor General under a contract for professional services”.

5 Section 6 of the Act is amended by striking out “appointed to assist him or her” and substituting “appointed by the Auditor General”.

6 Section 7 of the Act is repealed and the following is substituted:

Immunity

7 No action or other proceeding lies or shall be instituted against the Auditor General, a former Auditor General, a person employed in the Office of the Auditor General, a former employee of the Office of the Auditor General or a person appointed by the Auditor General under a contract for professional services for any act done in good faith in the exercise or performance or the intended exercise or performance of a power or duty under this or any other Act or for any neglect or default in the exercise or performance in good faith of such a power or duty.

7 The Act is amended by adding after section 7 the following:

Indemnity

7.1( 1) Any costs, charges and expenses, including money paid to settle an action or satisfy a judgment, reasonably incurred by the Auditor General, a former Auditor General, a person employed in the Office of the Auditor General or a former employee of the Office of the Auditor General in respect of any proceeding in which the individual is involved in connection with the powers or duties of the individual under this Act or any other Act may be paid from the funds allocated for the Office of the Auditor General, except costs, charges and expenses that are occasioned by the individual’s own wilful neglect or wilful default.

7.1( 2) On receiving notification of a proceeding in respect of which a person may be indemnified under this section, the Office of the Auditor General may appoint the legal counsel that it considers appropriate to represent the person in the proceeding and the legal counsel may settle the matter with the consent of that Office.

Witnesses not compellable

7.2 The Auditor General, a former Auditor General, a person employed in the Office of the Auditor General, a former employee of the Office of the Auditor General or a person appointed by the Auditor General under a contract for professional services is not required to give testimony in any civil proceeding, except in a proceeding under this Act, respecting information obtained in the exercise or performance of his or her powers or duties under this Act or any other Act.

8 Section 8 of the Act is repealed and the following is substituted:

Preservation of secrecy

8( 1) The Auditor General and a person employed in the Office of the Auditor General or appointed by the Auditor General under a contract for professional services shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her employment or duties under this Act or any other Act and shall not communicate any of those matters to any person.

8( 2) Subject to subsection (3), subsection (1) does not apply if communication is required in connection with the applicable professional standards, the administration of this Act or any proceedings under this Act or under the Criminal Code (Canada).

8( 3) Information provided to the Auditor General shall not be communicated by a person required to preserve secrecy under subsection (1) without the consent of each holder of any privilege to which the information is subject.

9 The Act is amended by adding after section 8 the following:

Dispute resolution

8.1( 1) For the purposes of section 8(3), if the Auditor General and an auditable entity are unable to agree as to whether information disclosed to the Auditor General is subject to a claim of privilege, the Auditor General and the auditable entity may enter into an arbitration agreement as defined in the Arbitration Act.

8.1( 2) An arbitration hearing is open to the public unless the arbitrator orders that the public be excluded from all or part of the arbitration hearing.

8.1( 3) The Arbitration Act applies to an arbitration under this Act, but if there is a conflict between a provision of this Act and a provision of the Arbitration Act, the provision of this Act prevails.

8.1( 4) If the Auditor General and the auditable entity do not enter into an arbitration agreement under subsection (1), either party may make an application to The Court of Queen’s Bench of New Brunswick or a judge of that Court to determine whether the information is subject to a claim of privilege.

8.1( 5) If the Auditor General and an auditable entity are unable to agree under subsection (1), a person required to preserve secrecy under subsection 8(1) shall not disclose the information unless a determination that the information is not subject to a claim of privilege is made on the matter and all appeals from that determination have been finally determined or the time for appealing has expired.

Personal information

8.2 The Office of the Auditor General shall not retain personal information collected in the course of an audit after the period required by applicable professional standards.

10 The heading “Audits” preceding section 9 is repealed and the following is substituted:

Audits of financial statements of public entities and trust funds

11 Section 9 of the Act is repealed and the following is substituted:

9( 1) For the purposes of this section, an audit does not include a performance audit conducted under section 9.1.

9( 2) Despite any other Act, the Auditor General may audit or appoint a qualified auditor to audit the accounts of a public entity or a trust fund.

9( 3) Despite any other Act and subject to the approval of the Auditor General, a public entity or a trust fund may appoint a qualified auditor, other than the Auditor General, to audit the accounts of the public entity or the trust fund.

9( 4) When the accounts of a public entity or a trust fund are audited by a qualified auditor other than the Auditor General, the qualified auditor shall provide to the Auditor General, without delay

(a) after completing the audit, a copy of his or her report of findings and recommendations and a copy of the audited financial statements of the public entity or trust fund,

(b) on the request of the Auditor General, any working papers, files, reports, schedules and other documents in respect of the audit or in respect of any other audit of the public entity or trust fund, and

(c) on the request of the Auditor General, a full explanation of work performed, tests obtained and any other information within the qualified auditor’s knowledge in respect of the public entity or trust fund.

9( 5) If the Auditor General is of the opinion that any information that is provided to him or her under subsection (4) is insufficient, he or she may conduct an additional audit or may appoint a qualified auditor to conduct an additional audit of the accounts of the public entity or trust fund.

9( 6) The Auditor General may charge reasonable fees as a recovery for the costs of audits conducted under subsection (2) or (5) or section 12.

9( 7) The Auditor General may retain and expend the fees charged under subsection (6) in the manner and for the purposes that the Auditor General considers appropriate.

12 The Act is amended by adding after section 9 the following:

Performance audit

9.1( 1) The Auditor General may conduct a performance audit of an auditable entity or any program, service, process or function of an auditable entity.

9.1( 2) The performance audit under subsection (1) may be conducted in respect of

(a) governance, economy, efficiency or effectiveness,

(b) performance monitoring or performance reporting,

(d) the compliance with policy, legislation or appropriations,

(e) the management and appropriate use of public money or other resources or property, and

(f) the maintenance of any required documents including accounting records.

9.1( 3) If the auditable entity falls exclusively within paragraph (d), paragraph (e) or paragraphs (d) and (e) of the definition “auditable entity” in section 1, a performance audit under subsection (1) shall be limited to

(a) the program or service delivered on behalf of the Province,

(b) the money collected from the Province or on behalf of the Province, or

Joint audit

9.2( 1) With respect to public money that is spent jointly or programs that are administered jointly, the Auditor General may conduct a joint audit with the Auditor General of Canada or a Provincial Auditor or an Auditor General of another province or a territory of Canada.

9.2( 2) A joint audit of an auditable entity referred to in subsection 9.1(3) shall be limited to a performance audit under section 9.1.

13 The heading “Powers respecting redeemed securities” preceding section 10 of the Act is repealed.

14 Section 10 of the Act is repealed.

15 Section 11 of the Act is repealed and the following is substituted:

Duty respecting Public Accounts

11 The Auditor General shall audit the financial statements of the Province required by section 41 of the Financial Administration Act to be included in the Public Accounts and shall express his or her opinion as to the fair presentation of the financial statements.

16 The heading “Power to inquire into financial affairs of Province” preceding section 12 of the Act is repealed and the following is substituted:

Audits on request

17 Subsection 12(1) of the Act is repealed and the following is substituted:

12( 1) On the request of the Legislative Assembly, a committee of the Legislative Assembly, the Lieutenant-Governor in Council, the Chair of the Board of Management or a member of Executive Council, the Auditor General may audit and report on any matter related to the financial affairs of the Province or to public property or on any funding recipient or any person or organization that is requesting funding from the Province if, in the opinion of the Auditor General, the assignment does not interfere with his or her primary responsibilities.

18 Section 13 of the Act is repealed and the following is substituted:

Access to information

13 Despite any other Act, the Auditor General is entitled

(a) to free access at all convenient times to information, including files, documents, records, agreements and contracts, despite that they may be confidential or private, that relates to the fulfilment of his or her responsibilities, and

(b) to require and receive from officers and employees of an auditable entity the information, reports and explanations that he or she considers necessary to fulfil his or her responsibilities.

19 The Act is amended by adding after section 13 the following:

Evidence

13.1 For the purposes of this Act, the Auditor General may

(a) issue a summons to witness to compel the attendance of witnesses,

(b) administer oaths and affirmations, and

Obstruction

13.2( 1) No person shall obstruct the Auditor General, a person employed in the Office of the Auditor General or a person appointed by the Auditor General under a contract for professional services in the exercise or performance or the intended exercise or performance of his or her powers or duties under this Act or any other Act, and no person shall conceal or destroy any documents that the Auditor General considers necessary for the purposes of this Act or any other Act.

13.2( 2) A person who violates or fails to comply with subsection (1) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.

20 The heading “Representatives in a department or agency” preceding section 14 of the Act is repealed and the following is substituted:

Representatives in an auditable entity

21 Section 14 of the Act is repealed and the following is substituted:

14( 1) The Auditor General may station in any auditable entity one or more persons employed in the Office of the Auditor General or one or more persons appointed by the Auditor General under a contract for professional services to enable the Auditor General to exercise or perform his or her powers or duties, and the auditable entity shall provide the necessary office accommodation for those persons.

14( 2) The Auditor General shall require every person stationed in an auditable entity under subsection (1) to comply with any security requirements applicable to, and to take any oath of secrecy required to be taken by, persons employed in that auditable entity.

22 Section 15 of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out “report annually” and substituting “report at least annually”;

(b) by repealing subsection (2).

23 The Act is amended by adding after section 15 the following:

Annual business plan and performance report

15.1 The Auditor General shall submit annually to the Clerk of the Legislative Assembly a business plan and a performance report for his or her office.

Audit working papers

15.2 Working papers in respect of an audit by the Auditor General shall not be laid before the Legislative Assembly or any committee of the Legislative Assembly.

24 Section 17 of the Act is repealed and the following is substituted:

Reporting matters discovered during audits

17( 1) The Auditor General may advise officers and employees of an auditable entity of matters discovered during his or her audit, including evidence of

(a) fraud or other illegal activity,

(b) inappropriate behaviour of an officer or an employee, including conflicts of interest and misuse of public property,

(d) public money having been collected, used or accounted for inappropriately or for purposes other than those intended,

(e) an appropriation having been exceeded or applied to a purpose or in a manner not authorized by the Legislature, or

(f) an expenditure having been made without authority.

17( 2) The Auditor General may advise the Legislative Assembly if he or she discovers evidence referred to in subsection (1).

17( 3) If a matter under subsection (1) involves a member of the Legislative Assembly, the Auditor General may advise the Speaker of the Legislative Assembly, the Attorney General of New Brunswick and the leader of the political party to which the member belongs.

25 The heading “Assisting Standing Committee on Public Accounts” preceding section 18 of the Act is repealed and the following is substituted:

Assisting committees of the Legislative Assembly

26 Section 18 of the Act is amended

(a) by renumbering the section as subsection 18(1);

(b) by adding after subsection (1) the following:

18( 2) On the request of any other committee of the Legislative Assembly, the Auditor General, a person employed in the Office of the Auditor General or a person appointed by the Auditor General under a contract for professional services and designated by the Auditor General may attend meetings of the committee to assist the committee as required.

27 The heading “Vérification des comptes du Bureau du vérificateur général” preceding section 19 of the French version of the Act is repealed and the following is substituted:

Audits des comptes du Bureau du vérificateur général

28 Section 19 of the Act is amended

(a) in subsection (1) by striking out “on the advice of the Board of Management”;

(b) by repealing subsection (2) of the French version and substituting the following:

19( 2) Le vérificateur nommé en vertu du paragraphe (1) audite les comptes du Bureau du vérificateur général et fait rapport au président de l’Assemblée législative des résultats de son audit au plus tard le 31 décembre ou, si elle ne siège pas, dans les dix jours de l’ouverture de la session suivante.

29 The heading “Submission of estimate of expenses to Board of Management” preceding section 20 of the Act is repealed and the following is substituted:

Submission of estimate of expenses to Legislative Administration Committee

30 Section 20 of the Act is repealed and the following is substituted:

20( 1) The Auditor General shall submit annually to the Legislative Administration Committee, or any other standing committee of the Legislative Assembly that the Speaker of the Legislative Assembly considers appropriate, an estimate of the sums that will be required to be provided by the Legislature for the salaries, allowances and expenses of the Office of the Auditor General during the next fiscal year and an estimate of the fees that may be recovered under subsection 9(6) during the next fiscal year.

20( 2) The committee under subsection (1) shall review the estimate submitted, determine the allocation of funds for the Office of the Auditor General and submit the allocation to the Board of Management for inclusion, without revision, in the Main Estimates.

31 The Act is amended by adding after section 21 the following:

Regulations

22 The Lieutenant-Governor in Council may make regulations

(a) defining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both;

(b) respecting any other matter that the Lieutenant-Governor in Council considers necessary or advisable to carry out effectively the intent of this Act.