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Second Session, Thirty-Seventh Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.
It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications.

Bill 43

THE AUDITOR GENERAL ACT


Table of Contents Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

DEFINITIONS

Definitions

1           In this Act,

"department" means a department or branch of the government; (« ministère »)

"external auditor" means a professional auditor or firm of professional auditors appointed to audit the financial statements of a government organization; (« vérificateur externe »)

"government organization" means a department, government agency or fund included in the summary financial statements of the government reporting entity referred to in clause 65(1)(b) of The Financial Administration Act; (« organisme gouvernemental »)

"public money" means public money as defined in The Financial Administration Act; (« fonds publics »)

"recipient of public money" means

(a) a person, organization or other body

(i)  that has received, directly or indirectly, a grant, loan or advance from the government or a government organization,

(ii) to whom the government or a government organization has transferred property for no consideration or consideration substantially less than its fair market value, or

(iii) for whom the government or a government organization has guaranteed the performance of an obligation or given an indemnity,

(b) a business entity or organization that has received a tax credit under a Manitoba law, or

(c) a business entity or organization that has issued a share, debt obligation or other security, if a person is eligible for a tax credit under a Manitoba law in respect of that acquisition or ownership of the security,

but does not include a government organization. (« bénéficiaire de fonds publics »)

PART 2

AUDITOR GENERAL

Appointing the Auditor General

2(1)        On the recommendation of the Standing Committee of the Assembly on Privileges and Elections, the Lieutenant Governor in Council must appoint an Auditor General of Manitoba, as an officer of the Assembly, to provide the Assembly with independent information, advice and assurance under this Act.

Role respecting government policy objectives

2(2)        Nothing in this Act is to be interpreted as entitling the Auditor General to question the merits of policy objectives of government.

Appointment process

3(1)        The President of the Executive Council must convene a meeting of the Standing Committee on Privileges and Elections if

(a) the office of Auditor General is vacant;

(b) the term of the Auditor General in office will expire within 12 months; or

(c) the Auditor General has resigned and the resignation takes effect within 12 months.

Recommendations of committee

3(2)        The Standing Committee on Privileges and Elections must consider candidates for the position of Auditor General and make recommendations to the President of the Executive Council.

Meetings of committee

3(3)        To carry out its responsibilities, the Standing Committee on Privileges and Elections may meet during a session of the Legislature or during a recess after prorogation.

No other public office

3(4)        The Auditor General may not be nominated for, be elected as, or sit as a member of the Assembly, and may not hold any other public office or engage in any partisan political activity.

Term

4           The Auditor General is to hold office during good behaviour for a term of 10 years, and may be reappointed for further terms of 10 years each.

Salary

5(1)        The Auditor General must be paid a salary within the range of salaries paid to senior deputy ministers in the civil service, and is entitled to the same privileges of office as a senior deputy minister.

No reduction in salary

5(2)        The Auditor General's salary must not be reduced except by a resolution of the Assembly carried by a vote of 2/3 of the members voting.

Civil Service Superannuation Act applies

6(1)        The Auditor General is an employee within the meaning of The Civil Service Superannuation Act.

Civil Service Act does not apply

6(2)        The Civil Service Act, except sections 42 and 43, does not apply to the Auditor General.

Suspension or removal

7(1)        The Lieutenant Governor in Council may suspend or remove the Auditor General from office on a resolution of the Assembly carried by a vote of 2/3 of the members voting.

Suspension if Assembly not sitting

7(2)        When the Assembly is not sitting, the Lieutenant Governor in Council may suspend the Auditor General for cause, if advised to do so in writing by a majority of a committee consisting of the President of the Executive Council and the recognized leaders of the members belonging to the political parties in opposition.  But a suspension imposed when the Assembly is not sitting may not continue beyond the end of the next sitting.

Deputy Provincial Auditor General

8(1)        On the Auditor General's recommendation, the Lieutenant Governor in Council may appoint a Deputy Auditor General in accordance with The Civil Service Act.

Duties

8(2)        If the Auditor General is absent or unable to act or if the office is vacant, the Deputy Auditor General has the powers and must carry out the responsibilities of the Auditor General.

Salary in certain cases

8(3)        During any period that the Deputy Auditor General must assume the Auditor General's responsibilities for an extended period, the Lieutenant Governor in Council may direct that the Deputy be paid a salary within the same range as the Auditor General.

No other public office

8(4)        The Deputy Auditor General may not be nominated for, be elected as, or sit as a member of the Assembly, and may not hold any other public office or engage in any partisan political activity.

PART 3

RESPONSIBILITIES OF THE AUDITOR GENERAL

AUDIT OF ACCOUNTS AND FINANCIAL STATEMENTS

Audit of government accounts

9(1)        The Auditor General is the auditor of the accounts of the government, including those relating to the Consolidated Fund, and must make any examinations and inquiries that he or she considers necessary to enable the Auditor General to report as required by this Act.

Audit of other public money

9(2)        The Auditor General is responsible for examining and auditing public money that is not part of the Consolidated Fund, unless an Act provides otherwise.

Audit of the Public Accounts

9(3)        The Auditor General is responsible for examining and auditing the financial statements included in the Public Accounts under The Financial Administration Act, and any other statements the Minister of Finance presents for audit.

Opinion about the Public Accounts

9(4)        The Auditor General must express an opinion as to whether the financial statements included in the Public Accounts fairly present information in accordance with the accounting policies of the government stated in the Public Accounts and on a basis consistent with that of the preceding year, and must set out any reservations the Auditor General might have.

Report to ministers

9(5)        At least once in each year, the Auditor General shall make a report about the examinations and audits conducted under this section to the minister responsible for each government organization concerned and to the Minister of Finance.  The Auditor General must allow at least 14 days for those ministers to review and comment on the report before finalizing it for submission to the Assembly under subsection 10(1).

Advice to officials

9(6)        The Auditor General may advise appropriate officers and employees of matters discovered in conducting examinations and audits under this section.

Annual report to Assembly

10(1)       No later than December 31 in each year, the Auditor General must report to the Assembly about the examinations and audits conducted under section 9.

Content of the report

10(2)       The report must indicate anything resulting from the work of the Auditor General that he or she considers should be brought to the Assembly's attention, including, but not limited to, circumstances in which

(a) required information was not provided or was not provided within a reasonable time;

(b) accounts were not properly kept or public money was not fully accounted for;

(c) essential records were not maintained, or the rules and procedures applied were insufficient, to

(i) safeguard and control public property,

(ii) secure an effective check on the assessment, collection and proper allocation of revenue, or

(iii) ensure that expenditures were made only as authorized;

(d) public money was expended for purposes other than those for which it was appropriated by the Legislature;

(e) financial and administrative provisions of Acts, regulations, policies and directives were not complied with.

Report may include recommendations

10(3)       The report may include any recommendation the Auditor General wishes to make, and may draw attention to and make recommendations about any audit conducted by an external auditor under section 12.

SPECIAL REPORT TO ASSEMBLY

Special report to Assembly

11          The Auditor General may make a special report to the Assembly on any matter of pressing importance or urgency that he or she considers should not be deferred until the next annual report under section 10 is presented.

AUTHORITY OVER EXTERNAL AUDITORS

Scope of an external audit

12(1)       When an external auditor is appointed to audit the financial statements of a government organization, the Auditor General may require the external auditor to give the Auditor General a description of the proposed scope of the audit before the audit is begun.  The Auditor General may then require changes to be made in the scope of the audit.

Further directions

12(2)       Before an external auditor issues an audit opinion on the financial statements of a government organization, the Auditor General may require the external auditor to

(a) give the Auditor General a copy of the proposed audit opinion, the financial statements, and any recommendations arising out of the audit of the financial statements; and

(b) conduct additional examinations relating to the financial statements.

Audit working papers

12(3)       The Auditor General may require an external auditor to give the Auditor General a copy of the audit working papers.

Audit opinion

12(4)       As soon as an audit is completed, an external auditor must give the Auditor General a copy of the audit opinion on the financial statements of a government organization and any recommendations arising out of the audit of the financial statements.

Reliance on external auditor's report

13          In order to fulfil his or her responsibilities as the auditor of the government's accounts, the Auditor General may rely on the report of an external auditor of a government organization or of a subsidiary of a government organization.

AUDIT OF OPERATIONS

Audit of operations

14(1)       In carrying out his or her responsibilities under this Act, the Auditor General may examine and audit the operations of a government organization with regard to any of the following matters:

(a) whether financial and administrative provisions of Acts, regulations, policies and directives have been complied with;

(b) whether public money has been expended with proper regard for economy and efficiency;

(c) whether the Assembly has been provided with appropriate accountability information;

(d) whether the form and content of financial information documents is adequate and suitable.

Report to ministers

14(2)       At least once in each year, the Auditor General shall make a report about the examinations and audits conducted under this section to the minister responsible for each government organization concerned and to the Minister of Finance.  The Auditor General must allow at least 14 days for those ministers to review and comment on the report before finalizing it for submission to the Assembly.

Report to officials

14(3)       The Auditor General may advise appropriate officers and employees of matters discovered in conducting examinations and audits under this section.

Report to Assembly

14(4)       The Auditor General must report to the Assembly annually on the work carried out under this section, and may bring to the Assembly's attention anything he or she considers necessary, including recommendations.

AUDIT OF RECIPIENT OF PUBLIC MONEY

Audit of recipient of public money

15(1)       The Auditor General may conduct an examination and audit in respect of public money received by a recipient of public money, including the matters listed in subsection 14(1), and may require the recipient to prepare and give to the Auditor General the financial statements setting out the details of the disposition of the public money received.

No obstruction

15(2)       No person shall obstruct or provide false or misleading information to the Auditor General or a person employed under the Auditor General in conducting an examination or audit under this section, or conceal or destroy any records or things relevant to an examination or audit.

Offence

15(3)       A person who contravenes subsection (2) is guilty of an offence and is liable on summary conviction to a fine of not more than $10,000.

Reliance on report of other auditor

15(4)       The Auditor General may rely on the report of an auditor appointed by a recipient of public money.

SPECIAL AUDIT ON REQUEST

Special audit on request

16(1)       When requested to do so by the Lieutenant Governor in Council or the Minister of Finance, or by resolution of the Standing Committee on Public Accounts, the Auditor General may examine and audit the accounts of a government organization, recipient of public money or other person or entity that in any way receives, pays or accounts for public money.  But the Auditor General is not obliged to do so if he or she is of the opinion that it would interfere with the primary responsibilities of the Auditor General.

Report

16(2)       The Auditor General must report the findings of an audit under this section to the person or body that requested the audit and to the minister responsible for any government organization concerned.

Report submitted to the Assembly

16(3)       The Auditor General may submit a report of an audit under this section to the Assembly if it is in the public interest to do so, but must allow at least 14 days for the minister responsible for the government organization and the Minister of Finance to review and comment on the report before finalizing it for submission to the Assembly.

JOINT AUDIT

Joint audit

17          With respect to public money that is spent jointly, the Auditor General may undertake a joint audit with the Auditor General of Canada, an Auditor General or Provincial Auditor of another province or territory, or an auditor of a municipality.

PART 4

POWERS OF THE AUDITOR GENERAL

Access to records

18(1)       Despite any other Act, the Auditor General is entitled to access at all reasonable times to the records of any government organization that are necessary for the purpose of this Act.

Access to information

18(2)       The Auditor General may require and is entitled to receive any information necessary for the purpose of this Act from

(a) any person in the public service or formerly in the public service;

(b) any current or former director, officer, employee or agent of a government organization or of a recipient of public money; or

(c) any other person, organization or other body that the Auditor General believes on reasonable grounds may have information relevant to an examination or audit under this Act.

No access to Cabinet confidences

18(3)       Despite subsections (1) and (2), the Auditor General shall not have access to information described in subsection 19(1) of The Freedom of Information and Protection of Privacy Act, except in the circumstances mentioned in subsection 19(2) of that Act.

Part V of Evidence Act powers

19          The Auditor General or his or her delegate may examine any person on oath on any matter that the Auditor General considers relevant to an examination and audit under this Act, and for that purpose the Auditor General or delegate has the powers of a commissioner appointed under Part V of The Manitoba Evidence Act.

Staff in government organizations

20          To carry out responsibilities under this Act more effectively, the Auditor General may place a person or persons employed under the Auditor General in any government organization, and the organization must provide the necessary office accommodation.

Security requirements

21          The Auditor General must ensure that every person employed under the Auditor General who is to examine records of a government organization complies with any security requirements applicable to persons employed in that organization.

PART 5

GENERAL PROVISIONS

STAFF AND OFFICE OF THE AUDITOR GENERAL

Staff appointed under Civil Service Act

22(1)       Officers and employees necessary to enable the Auditor General to perform his or her duties must be appointed in accordance with The Civil Service Act.

Civil Service Superannuation Act applies

22(2)       Officers and employees of the Auditor General, including the Deputy Auditor General, are employees within the meaning of The Civil Service Superannuation Act.

Office of the Auditor General

23          The Auditor General is responsible for the internal operations of his or her office and for the persons employed under the Auditor General.  For those purposes, the Auditor General may

(a) establish office policies and procedures consistent with practices followed by the government;

(b) charge fees for services provided by the office on a basis approved by the Lieutenant Governor in Council;

(c) delegate to any person employed under the Auditor General any responsibility or power that the Auditor General has under this Act, other than the responsibility to report to the Assembly;

(d) maintain an independent bank account; and

(e) contract for professional services.

CONFIDENTIALITY

Confidentiality

24(1)       The Auditor General and everyone employed under the Auditor General shall preserve secrecy concerning all matters that come to their knowledge in the course of their work under this Act, and shall not communicate those matters to any person unless required to do so in connection with the proper administration of this Act or a proceeding under this Act, or in a court of law.

Exception

24(2)       Nothing in subsection (1) limits the Auditor General's right to report under this Act on the conclusions of an examination or audit.

Working papers confidential

25          The working papers relating to an examination or audit by the Auditor General or a person employed under the Auditor General are confidential and must not to be laid before the Assembly or any committee of the Assembly.

ANNUAL REPORT OF AUDITOR GENERAL'S OFFICE

Annual audit of Auditor General's office

26(1)       Each year, an auditor whose appointment is approved by the Legislative Assembly Management Commission must examine the accounts of the office of the Auditor General and prepare a report.  The Commission may also direct the auditor to conduct an audit respecting any of the matters listed in subsection 14(1).

Annual report

26(2)       Before August 1 each year, the Auditor General must report to the Assembly on the operations of his or her office.  The report must include

(a) information on the performance of the office; and

(b) the report on the annual audit under subsection (1).

ESTIMATES

Estimates

27(1)       The Auditor General shall present annually to the Legislative Assembly Management Commission estimates of the amount of money that will be required for the purpose of this Act.

Special report

27(2)       The Auditor General may make a special report to the Assembly if he or she thinks that the amount of money provided in the estimates submitted to the Legislature is inadequate.

Money

27(3)       The money required for the purpose of this Act is to be paid out of the Consolidated Fund from money authorized by an Act of the Legislature.

Unexpended money to be paid into Consolidated Fund

27(4)       All money which has been authorized by an Act of the Legislature to be paid and applied for the purposes of this Act that remains unexpended at the end of the fiscal year must be paid to the Minister of Finance and becomes part of the Consolidated Fund.

TABLING REPORTS IN THE ASSEMBLY

Tabling reports in the Assembly

28(1)       When making a report to the Assembly under this Act, the Auditor General must submit the report to the Speaker.  The Speaker must lay a copy of it before the Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the beginning of the next sitting.

Distribution to members of the Assembly

28(2)        On receiving a report under this Act, the Speaker must direct that copies be sent to the members of the Assembly.

Referral to Public Accounts Committee

28(3)       A report to the Assembly under this Act stands referred to the Standing Committee on Public Accounts.

PROTECTION FROM LIABILITY

Protection from liability

29          No proceeding may be instituted against the Auditor General, the Deputy Auditor General, or any person employed under the Auditor General,

(a) for any act done in good faith in the performance or intended performance of a duty or in the exercise or intended exercise of a power under this or any other Act or regulation; or

(b) for any neglect or default in the performance or intended performance or in the exercise or intended exercise in good faith of a duty or power described in clause (a).

TRANSITIONAL, CONSEQUENTIAL, REPEAL AND COMING INTO FORCE

Transitional

30          The Provincial Auditor appointed under The Provincial Auditor's Act continues in office as the Auditor General under this Act as if appointed under this Act for a term that expires on the day the appointment under The Provincial Auditor's Act would expire.

Consequential amendments

31          The Acts listed in the Schedule are amended as described in the Schedule.

Repeal

32          The Provincial Auditor's Act, R.S.M. 1987, c. P145, is repealed.

C.C.S.M. reference

33          This Act may be referred to as chapter A180 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

34          This Act comes into force on a day fixed by proclamation.

SCHEDULE

The following Acts are amended in the provision listed opposite the title of the Act:

(a) by striking out "Provincial Auditor" wherever it occurs, including in the section heading, and substituting "Auditor General":

Name of Act Provision(s) amended
The Agricultural Credit Corporation Act 22(2)
The Agricultural Societies Act 48
The Arts Council Act 12
The Balanced Budget, Debt Repayment and Taxpayer Accountability Act 3(6); 8(9)
The Brandon University Act 26
The Centennial Centre Corporation Act 7(2)
Le Centre Culturel Franco-Manitobain Act 8(1) and 8(2)
The Civil Service Act 1(1) – "employing authority";
7(5)
The Civil Service Superannuation Act 12(1) and (2)
The Communities Economic Development Fund Act 19
The Community Child Day Care Standards Act 31(4)
The Conservation Districts Act 32(1) and (2)
The Co-operative Associations Loans and Loans Guarantee Act 8(2)
The Cooperative Promotion Trust Act 10
The Council on Post-Secondary Education Act 17(2)
The Crop Insurance Act 12
The Crown Corporations Public Review and Accountability Act 12(1) and (2); 18(2)(e)
The Development Corporation Act 27
The Economic Innovation and Technology Council Act 23
The Education Administration Act 9(10)
The Embalmers and Funeral Directors Act 7(1)
The Financial Administration Act 44(2)(c); 65(1)(a)(ii) and (b)(iii)
The Fiscal Stabilization Fund Act 8
The Manitoba Foundation Act 13(1)
The Freedom of Information and Protection of Privacy Act 1 – "officer of the Legislative Assembly"; 44(1)(h)
The Gaming Control Act 55(12)
The Government Purchases Act 15
The Manitoba Habitat Heritage Act 25
The Manitoba Hazardous Waste Management Corporation Act 18(1) and (2)
The Manitoba Health Research Council Act 13(1) and (2)
The Health Services Act 78(6)
The Health Services Insurance Act 7
The Helen Betty Osborne Memorial Foundation Act 11(1)
The Heritage Manitoba Act 15
The Highway Traffic Act 282(11)
The Horse Racing Commission Act 8(1) and (2)
The Hospital Capital Financing Authority Act 7
The Housing and Renewal Corporation Act 4(2) and (3)
The Manitoba Hydro Act 44(1) and (2)
The Interpretation Act Schedule – "Provincial Auditor"
The Legal Aid Services Society of Manitoba Act 27
The Legislative Assembly Act 16(1)
The Legislative Assembly Management Commission Act 6(b); 9(1)
The Liquor Control Act 30(1), (3) and (4); 31(1)
The Manitoba Lotteries Corporation Act 8(1) and (3); 24(1) and (2);
25(1) and (2)
The Municipal Board Act 59(3)
The Manitoba Natural Resources Development Act 5(1) and (2)
The Northern Affairs Act 11(5), (9) and (10)
The Ombudsman Act 8
The Pari-Mutuel Levy Act 14(2)
The Pension Benefits Act 12
The Manitoba Public Insurance Corporation Act 17(3) and (4)
The Public Printing Act 20(1)
The Public Schools Finance Board Act 2(5); 12(1)
The Public Servants Insurance Act 7(2)
The Public Trustee Act 17(1) and (2); 19
The Public Utilities Board Act 57(3)
The Social Services Administration Act 11(3)
The Soldiers' Estates Act 5
The Special Operating Agencies Financing Authority Act 22
The Sustainable Development Act 16(1)(b)
The Teachers' Pensions Act 41(10); 51(2) and (3)(a)
The Manitoba Trade and Investment Corporation Act 14
The University of Manitoba Act 21
The University of Winnipeg Act 31
The Veterinary Services Act 16(1) and (3)(b)
The Vulnerable Persons Living with a Mental Disability Act 10(3)
The Manitoba Water Services Board Act 48(1) and (2)
The Workers Compensation Act 69(1) and (2)

(b) by striking out "The Provincial Auditor's Act" and substituting "The Auditor General Act":

Name of Act Provision(s) amended
The Interpretation Act Schedule — "Provincial Auditor"

(c) by striking out "Provincial Auditor's" and substituting "Auditor General's"

Name of Act Provision(s) amended
The Public Trustee Act 19

(d) by striking out "The Provincial Auditors Act" and substituting "The Auditor General's Act":

Name of Act Provision(s) amended
The Legislative Assembly Management Commission Act 9(3)

Explanatory Note

This Bill replaces the existing Provincial Auditor's Act.  It changes the law in a number of respects:

  • A new section provides for recruitment of the Auditor General through the Standing Committee on Privileges and Elections.  This is consistent with the process followed for other officers of the Legislative Assembly.
  • The name "Provincial Auditor" is changed to "Auditor General".
  • A new section describes the Auditor's mandate to audit the operations of government organizations to ensure, among other things, that public money has been spent with proper regard for economy and efficiency.
  • New provisions strengthen the Auditor's right of access to information and records so that audits are conducted more effectively.
  • The Auditor's responsibility is clarified with respect to the confidentiality of information obtained during the conduct of examinations and audits.
  • An annual report on the operations of the Auditor's office is required at the end of each fiscal year.  The report will include information on the operations of the office, as well as audited financial statements.
  • The Auditor's reports to the Legislative Assembly are submitted to the Speaker and are automatically referred to the Public Accounts Committee for review.

The Bill also includes consequential amendments to several other Manitoba statutes because of the change in name to "Auditor General".