Statutes of Newfoundland and Labrador 2021 Chapter A-22.1

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

1. This Act may be cited as the Auditor General Act, 2021.

Interpretation

2. (1) In this Act

(a) "agency of the Crown" means an authority, board, commission, foundation, agency, corporation, association, institute or other body of persons, whether incorporated or unincorporated, 50% or more of the members of which or 50% or more of the members of the board of management or board of directors of which,

(i) are appointed by an Act of the Legislature or by the Lieutenant-Governor in Council, or

(ii) where not so appointed, in the discharge of their duties are public officers or servants of the Crown or are responsible to the Crown for the proper discharge of their duties;

(b) "agent" means a person engaged, on a fee basis, to act on behalf of the auditor general for a limited period of time respecting a particular matter;

(c) "audit" means any examination of accounts, records, reports, activities or operations conducted in accordance with generally accepted auditing standards or with other applicable professional standards;

(d) "auditor general" means the Auditor General of Newfoundland and Labrador appointed under section 4;

(e) "audit working papers" include draft reports and all other documents which record the planning of, execution of and the evidence obtained during an audit;

(f) "commission" means the House of Assembly Management Commission continued under section 18 of the House of Assembly Accountability, Integrity and Administration Act;

(g) "Crown controlled corporation" means a corporation that is not an agency of the Crown and

(i) 50% or more of its issued and outstanding shares are vested in the Crown or in the name of a minister of the Crown, or

(ii) the appointment of a majority of its board of directors are made or approved by the Lieutenant-Governor in Council;

(h) "deputy auditor general" means the person appointed under section 11;

(i) "former Act" means the Auditor General Act;

(j) "generally accepted auditing standards" means the Canadian generally accepted auditing standards;

(k) "government funding" means, unless the context indicates otherwise, a grant, transfer, advance of money, loan, loan guarantee, trust, indemnity or any form of payment or financial assistance, whether recurring or one-time, made directly or indirectly by a department, an agency of the Crown or a Crown controlled corporation;

(l) "public money" means all money received, held or collected for or on behalf of the province by the minister responsible for the Financial Administration Act or other public officer in the public officer's official capacity or by a person authorized to receive, hold or collect that money, and includes

(i) all revenues of the province,

(ii) money borrowed by the province or received through the issue and sale of securities, and

(iii) money paid to the province for a special purpose; and

(m) "speaker" means the Speaker of the House of Assembly.

(2) Words and expressions used in this Act and not defined in subsection (1) have the same meaning as in the Financial Administration Act.

Office of the Auditor General

3. The Office of the Auditor General is continued.

Appointment of auditor general

4. On resolution of the House of Assembly, the Lieutenant-Governor in Council shall appoint a qualified auditor as Auditor General of Newfoundland and Labrador.

Status of auditor general

5. (1) The auditor general is an officer of the House of Assembly and is not eligible to be nominated for election, to be elected or to sit as a member of the House of Assembly.

(2) The auditor general shall not hold another public office or carry on a trade, business or profession.

(3) The auditor general shall not hold a public office within one year of ceasing to be the auditor general.

Term of office

6. (1) Unless the auditor general sooner resigns, dies or is removed from office, the auditor general shall hold office for 10 years from the date of appointment.

(2) Once having served as auditor general, a person is not eligible for re-appointment to that office.

(3) The auditor general may resign as auditor general in writing addressed to the speaker, or, where there is no speaker or the speaker is absent, to the Clerk of the House of Assembly.

Removal or suspension

7. The Lieutenant-Governor in Council, on resolution of the House of Assembly passed by a majority vote of the members of the House of Assembly actually voting, may suspend or remove the auditor general from office because of an incapacity to act or for misconduct, cause or neglect of duty.

Suspension when House of Assembly not in session

8. When the House of Assembly is not in session, the Lieutenant-Governor in Council may suspend the auditor general because of an incapacity to act or for misconduct, cause or neglect of duty but the suspension shall not continue in force beyond the end of the next session of the House of Assembly.

Acting auditor general

9. (1) The Lieutenant-Governor in Council may, on the recommendation of the commission, appoint an acting auditor general where

(a) the auditor general is temporarily unable to perform the duties;

(b) the office of the auditor general becomes vacant or the auditor general is suspended when the House of Assembly is not in session; or

(c) the office of the auditor general becomes vacant or the auditor general is suspended when the House of Assembly is in session, but the House of Assembly does not pass a resolution to appoint an auditor general before the end of that session.

(2) Where the office of the auditor general becomes vacant and an acting auditor general is appointed under paragraph (1)(b) or (c), the term of the acting auditor general shall not extend beyond the end of the next session of the House of Assembly.

(3) An acting auditor general holds office until

(a) the auditor general returns to the duties after a temporary inability to perform;

(b) the suspension of the auditor general ends or is dealt with in the House of Assembly; or

Salary, pension and benefits

10. (1) The auditor general shall be paid a salary fixed by the Lieutenant-Governor in Council after consultation with the commission.

(2) The salary of the auditor general shall not be reduced except on resolution of the House of Assembly.

(3) The auditor general is subject to the Public Service Pensions Act, 2019 where the auditor general was subject to that Act before appointment as auditor general.

(4) Where the auditor general was not subject to the Public Service Pensions Act, 2019 before appointment as auditor general, the auditor general shall be paid, for contribution to a registered retirement savings plan, an amount equivalent to the amount which the auditor general would have contributed to the Public Service Pension Plan were the circumstances in subsection (3) applicable.

(5) The auditor general is eligible to receive the same benefits as a deputy minister, with the exception of a pension where subsection (4) applies.

Deputy auditor general

11. (1) The Lieutenant-Governor in Council may, on the recommendation of the auditor general, appoint a qualified auditor as deputy auditor general.

(2) The salary of the deputy auditor general shall be fixed by the Lieutenant-Governor in Council after consultation with the commission.

(3) The deputy auditor general is a member of the public service of the province and is an employee for the purposes of the Public Service Pensions Act, 2019 and is entitled to all the benefits under the Public Service Pension Plan.

Staff

12. (1) The auditor general shall, in the manner provided by law, appoint those auditors and other employees that the auditor general considers necessary to enable the auditor general to carry out the auditor general's functions under this Act.

(2) Persons employed under subsection (1) are members of the public service of the province and are employees for the purposes of the Public Service Pensions Act, 2019 and are entitled to all the benefits under the Public Service Pension Plan.

(3) The personnel management policies, as they relate to the public service of the province apply to auditor general's office.

(4) The Conflict of Interest Act, 1995 applies to the auditor general, the deputy auditor general and employees of the auditor general's office.

Oath of office

13. (1) Before beginning to perform the duties of the auditor general, the auditor general shall swear an oath or affirm before the speaker or the Clerk of the House of Assembly to faithfully and impartially perform the duties of the office and to not disclose information received under this Act, except as provided by this Act.

(2) Before beginning to perform their duties, the deputy auditor general, an employee of the auditor general's office and an agent shall swear an oath or affirm before the auditor general that they shall faithfully and impartially perform their duties and that they shall not, except as provided by this Act, disclose information received by them under this Act.

(3) A copy of each oath or affirmation administered to an employee of the auditor general's office or an agent shall be kept by the office.

Delegation of authority

14. The auditor general may delegate in writing to an employee of the auditor general's office authority to exercise a power or perform a duty of the auditor general other than reporting to the House of Assembly.

Agents

15. (1) The auditor general may engage an agent for the purpose of conducting an audit that the auditor general is empowered to conduct or to perform a service that the auditor general considers necessary for a purpose related to the exercise or performance of the auditor general's powers and duties under this or another Act.

(2) The Conflict of Interest Act, 1995 applies to an agent.

Auditor of provincial accounts

16. The auditor general is the auditor of the financial statements and accounts of the province and shall make those examinations and inquiries that the auditor general considers necessary to enable the auditor general to report as required by this Act.

Report on financial statements

17. The auditor general shall

(a) examine

(i) the financial statements required by the Financial Administration Act to be included in the public accounts of the province, and

(ii) any other statement that is

(A) required to be audited by the auditor general under the Financial Administration Act, or

(B) presented for audit by the Minister of Finance; and

(b) express an opinion as to whether the financial statements are presented fairly, in all material respects, in accordance with Canadian public sector accounting standards, together with reservations the auditor general may have.

Performance audit

18. (1) The auditor general may conduct an audit of the performance of a department, an agency of the Crown or a Crown controlled corporation or any activity, program, process or function of a department, an agency of the Crown or a Crown controlled corporation.

(2) An audit referred to in subsection (1) may include examination of

(a) the governance, economy, efficiency and effectiveness of any activity, program, process or function;

(b) performance monitoring and reporting;

(d) compliance with policy, legislation or appropriations;

(e) the stewardship over and appropriate use of public money and other resources and property; and

(f) the maintenance of financial and other records.

Audit of agencies of Crown and Crown controlled corporations

19. (1) Notwithstanding any other Act or regulation, the auditor general is the auditor of the financial statements and accounts of all agencies of the Crown and Crown controlled corporations and shall make those examinations and inquiries that the auditor general considers necessary to enable the auditor general to report as required by this Act.

(2) Notwithstanding subsection (1), where the auditor general considers it necessary the auditor general may appoint an agent to conduct an audit of the financial statements of an agency of the Crown or a Crown controlled corporation.

(3) Where an agent has been appointed to conduct an audit of the financial statements of an agency of the Crown or of a Crown controlled corporation, the agent shall immediately

(a) deliver to the auditor general after completion of the audit a copy of the auditor's report, the recommendations to management and a copy of the audited financial statements of the agency of the Crown or the Crown controlled corporation;

(b) make available to the auditor general, when requested by the auditor general, all working papers, reports, schedules and other documents in respect of the audit; and

(c) provide to the auditor general, when requested by the auditor general, a full explanation of work performed, tests and examinations made and the results obtained, and other information relating to the audit within the knowledge of that auditor in respect of the agency of the Crown or the Crown controlled corporation;

(4) Where the auditor general is of the opinion that the information, explanation or document that is provided, made available or delivered under subsection (3) is insufficient to permit the auditor general to exercise the auditor general's powers or duties under this Act, the auditor general may conduct or cause to be conducted an additional examination and investigation of the records and operations of the agency of the Crown or the Crown controlled corporation that the auditor general considers necessary.

Improper retention of public money

20. (1) Where during the course of an audit, the auditor general becomes aware of an improper retention or misappropriation of public money or another activity that may constitute an offence under the Criminal Code or another Act, the auditor general shall immediately report the improper retention or misappropriation of public money or other activity to the Lieutenant-Governor in Council.

(2) In addition to reporting to the Lieutenant-Governor in Council under subsection (1), the auditor general shall attach to the report referred to in subsection 23(1) a list containing a description of the activities referred to in subsection (1) and the dates on which those activities were reported to the Lieutenant-Governor in Council.

Audit

21. (1) The auditor general may at any time audit

(a) a matter relating to the financial affairs or operations of the province;

(b) a matter relating to public property;

(c) a person or organization that has, after the coming into force of this section, received government funding that the auditor general determines to be material; or

(d) a person or organization who collects public money.

(2) For the purposes of paragraph (1)(c) and subsection (3), "government funding" does not include remuneration or income support payments.

(3) An audit referred to in paragraph (1)(c) shall be limited to the records, files, documents and accounts of the person or organization in relation to the use of the government funding.

Special assignments

22. (1) Where in the opinion of the auditor general an assignment does not interfere with the duties of the auditor general under this Act, the auditor general may, at the request of the Lieutenant-Governor in Council, the House of Assembly or the Public Accounts Committee of the House of Assembly, audit

(a) a matter relating to the financial affairs or operations of the province;

(b) a matter relating to public property;

(d) a person or organization who collects public money.

(2) Where the auditor general completes an audit in accordance with subsection (1), the auditor general shall

(a) report back to the Lieutenant-Governor in Council, the House of Assembly or the Public Accounts Committee, as applicable; and

(b) disclose to the public the subject of the audit.

Reports of auditor general

23. (1) The auditor general shall as the auditor general considers necessary but at least annually report to the House of Assembly on

(a) the work of the office;

(b) whether, in carrying out the work of the office, the auditor general received all the information including reports and explanations the auditor general required;

(d) audits, examinations and inquiries performed under this Act.

(2) A report of the auditor general under subsection (1) shall include the results of the auditor general's examination of the accounts of the province and shall identify anything the auditor general considers significant, including instances where

(a) collections of public money

(i) have not been effected as required under Acts, regulations, directives or orders,

(ii) have not been fully accounted for, or

(iii) have not been properly reflected in the accounts of the province;

(b) disbursements of public money

(i) have not been made in accordance with the authority of a supply vote or an Act,

(ii) have not complied with regulations, directives or orders applicable to those disbursements,

(iii) have not been properly reflected in the accounts of the province, or

(iv) have not been made for the purposes for which they were appropriated;

(d) assets acquired, administered or otherwise held are not adequately safeguarded or accounted for;

(e) accounting systems and management control systems that relate to revenue, disbursements, the safeguarding or use of assets or the determination of liabilities were not in existence, were inadequate or had not been complied with; or

(f) factors or circumstances relating to an expenditure of public money that should, in the opinion of the auditor general, be brought to the attention of the House of Assembly.

(3) The auditor general shall not question the merits of policy objectives of the government under this Act.

(4) A report of the auditor general referred to in subsection (1) shall be submitted to the speaker and the speaker shall table the report before the House of Assembly at the earliest opportunity after receipt of the report.

(5) Where the House of Assembly is not in session at the time the report is required to be tabled under subsection (4), section 19.1 of the House of Assembly Act applies.

Access to records

24. Where a person or organization receives government funding or collects public money, the auditor general shall have unrestricted access to the records of that person or organization that

(a) directly relate to the use of the government funding or the collection of public money; and

(b) are necessary to complete the audit.

Access to information

25. (1) Notwithstanding any other Act or law, a department, an agency of the Crown or a Crown controlled corporation shall, where required by the auditor general, provide

(a) information regarding its

(i) power, duties and activities,

(ii) organization,

(iii) financial transactions, and

(iv) methods of business; and

(b) access to all books, accounts, financial records, reports, electronic data records, explanations, files and all other documents or property belonging to or in use by the department, agency of the Crown or Crown controlled corporation necessary for the performance of the duties of the auditor general under this Act.

(2) The auditor general shall have access to any information that the auditor general considers necessary to fulfill the duties relating to an audit.

Cabinet records

26. (1) Sections 25 and 27 do not apply to cabinet records as defined in paragraph 2(a.2) of the Management of Information Act.

(2) Notwithstanding subsection (1) where the auditor general determines that it is necessary for the performance of the auditor general's duties under this Act, the Clerk of the Executive Council shall disclose the following cabinet records to the auditor general:

(a) final decisions of Cabinet; and

(b) cabinet records, including explanations, analysis and policy options, relating to public expenditures,

but shall not disclose the substance of deliberations of Cabinet.

Examination and subpoena

27. (1) The auditor general or a person authorized by the auditor general may summon and examine on oath or affirmation a person who, in the opinion of the auditor general, has information related to an audit under this Act.

(2) Where a person summoned under subsection (1) does not appear for examination, the auditor general or a person authorized by the auditor general may apply to a judge of the Supreme Court for an order that a subpoena be issued from the court requiring the person named in the subpoena to appear before the auditor general or a person authorized by the auditor general at the time and place referred to in the subpoena to testify to all matters within that person's knowledge relating to an audit under this Act.

(3) Where required, the person named in the subpoena shall produce any documents or records in the person's possession relating to an audit under this Act.

(4) A person named in a subpoena issued under this section is entitled to reasonable expenses.

Obstruction

28. A person shall not

(a) obstruct the auditor general, the deputy auditor general, an employee of the auditor general's office or an agent in the conduct of an audit under this Act or any other Act; or

(b) conceal, falsify or destroy any documents requested by the auditor general, the deputy auditor general, an employee of the auditor general's office or an agent relating to an audit.

Prohibition

29. Notwithstanding sections 25 and 27, the auditor general shall not be permitted access to information the disclosure of which may be refused under section 31 of the Access to Information and Protection of Privacy Act, 2015.

Audit working papers

30. (1) Audit working papers of the auditor general's office shall not be laid before the House of Assembly or a committee of the House of Assembly.

(2) The Access to Information and Protection of Privacy Act, 2015 does not apply to the disclosure of audit working papers.

Joint audits

31. (1) The auditor general may undertake with an auditor general of another province or the auditor general of Canada a joint audit of a department, an agency of the Crown, a Crown controlled corporation or other entity or program that is administered or funded by the government or any other government.

(2) A report of a joint audit under subsection (1) shall be submitted to the speaker and the speaker shall table the report before the House of Assembly at the earliest opportunity after receipt of the report.

Office accommodation

32. A department, an agency of the Crown and a Crown controlled corporation shall provide the necessary office accommodation and facilities for employees of the auditor general's office and agents conducting an audit.

Confidentiality

33. The auditor general, the deputy auditor general, an employee of the auditor general's office and an agent shall keep confidential all matters that come to their knowledge in the course of their employment or duties under this Act and shall not disclose those matters to another person, except as may be required in connection with the discharge of their duties under this Act or the Criminal Code.

Disclosure

34. (1) Where a department, an agency of the Crown or a Crown controlled corporation discloses to the auditor general, either voluntarily or in response to a request, summons or subpoena, any information over which the department, agency of the Crown or Crown controlled corporation asserts immunity or privilege, including solicitor-client privilege, the immunity or privilege is not waived or defeated for any purpose by the disclosure.

(2) Where the auditor general determines that it is necessary to disclose information over which a department, an agency of the Crown or a Crown controlled corporation asserts immunity or privilege, including solicitor-client privilege, the immunity or privilege is not waived or defeated for any purpose by the disclosure.

Limitation of liability

35. (1) The auditor general, a former auditor general, the deputy auditor general, a former deputy auditor general, current and former employees of the auditor general's office, agents and former agents are not liable in a proceeding for an act done or not done or for a statement or report made by them in good faith in connection with a matter they are authorized or required to do under this Act or the former Act.

(2) An action shall not be commenced against the auditor general for

(a) the publication of a report under this Act or any other Act;

(b) the publication of an extract or summary of a report under this Act or any other Act; or

(3) Where an action is commenced against the auditor general, a former auditor general, the deputy auditor general, a former deputy auditor general, a current or former employee of the auditor general's office or an agent or former agent related to the performance of duties in good faith in connection with a matter they are authorized or required to do under this Act or the former Act, the House of Assembly shall indemnify that person against all costs, charges and expenses relating to the action.

Audit of office

36. (1) The commission shall appoint a qualified auditor to annually conduct an audit of the financial statements of the auditor general's office.

(2) The auditor appointed under subsection (1) has the same powers and shall perform the same duties in relation to an audit of the financial statements of the auditor general's office that the auditor general has or performs in relation to an audit performed under this Act.

(3) The auditor appointed under subsection (1) shall submit a report to the commission and the speaker shall table the report before the House of Assembly at the earliest opportunity after the commission receives the report.

(4) Where the House of Assembly is not in session at the time the report is required to be tabled under subsection (3), section 19.1 of the House of Assembly Act applies as if the report were a report of an officer of the House of Assembly.

(5) The auditor appointed under subsection (1) shall provide a copy of the report to the auditor general.

Goods and services

37. Subject to the Public Procurement Act the auditor general may, within the limits of the appropriation approved by the Legislature for the auditor general's office and without the approval of the Treasury Board,

(a) engage the professional services, including counsel, consultants, accountants and other experts; and

(b) acquire goods,

that the auditor general considers necessary for a purpose related to the exercise or performance of the powers and duties under this or another Act.

Report through Minister of Finance

38. Where the auditor general considers it necessary or is required to report to the Lieutenant-Governor in Council, the report shall be made through the Minister of Finance.

Financing operations

39. (1) The auditor general shall submit annually to the commission for its approval estimates of the sums that will be required to be provided by the Legislature for the payment of the salaries, allowances and expenses of the auditor general's office under this Act during the next fiscal year.

(2) The commission shall review and may alter as it considers necessary the estimates submitted under subsection (1) and, upon completion of the review, the speaker shall submit the estimates as approved by the commission to the House of Assembly for the purpose of inclusion in the estimates of the province for approval by the Legislature.

Offence and penalty

40. A person who

(a) obstructs the auditor general, the deputy auditor general, an employee of the auditor general's office or an agent in the conduct of an audit under this Act or any other Act;

(b) conceals, falsifies or destroys any documents requested by the auditor general, the deputy auditor general, an employee of the auditor general's office or an agent relating to an audit;

(d) makes a false statement to or misleads or attempts to mislead the auditor general, the deputy auditor general, an employee of the auditor general's office or an agent in the exercise or performance of his or her powers and duties under this Act,

is guilty of an offence and liable on summary conviction to a fine of not more than $1,000 or to imprisonment for a term not exceeding 3 months, or to both.

SNL2015 cA-1.2 Amdt.

41. Schedule A of the Access to Information and Protection of Privacy Act, 2015 is amended by adding immediately after paragraph (b) the following:

(b.1) subsection 30(2) of the Auditor General Act, 2021;

SNL2007 cE-11.01 Amdt.

42. Subsection 5.4(5) of the Energy Corporation Act is amended by deleting the reference "Auditor General Act" and substituting the reference "Auditor General Act, 2021".

RSNL1990 cF-8 Amdt.

43. Paragraph 2(1)(a) of the Financial Administration Act is amended by deleting the reference "Auditor General Act" and substituting the reference "Auditor General Act, 2021".

SNL2007 cH-10.1 Amdt.

44. (1) Paragraph 2(c) of the House of Assembly Accountability, Integrity and Administration Act is amended by deleting the reference "Auditor General Act" and substituting the reference "Auditor General Act, 2021".

(2) Subsection 43(7) of the Act is amended by deleting the reference "Auditor General Act" and substituting the reference "Auditor General Act, 2021".

SNL2016 cI-2.1 Amdt.

45. The Schedule to the Independent Appointments Commission Act is amended by deleting the statutory reference "Auditor General Act, section 4" and substituting the statutory reference "Auditor General Act, 2021, section 4".

SNL2004 cL-24.1 Amdt.

46. (1) Subparagraph 2(1)(f)(iii) of the Lobbyist Registration Act is amended by deleting the reference "Auditor General Act" and substituting the reference "Auditor General Act, 2021".

(2) Paragraph 5(4)(l) of the Act is amended by deleting the reference "Auditor General Act" and substituting the reference "Auditor General Act, 2021".

(3) Paragraph 6(4)(l) of the Act is amended by deleting the reference "Auditor General Act" and substituting the reference "Auditor General Act, 2021".

RSNL1990 cM-7 Amdt.

47. (1) Subsection 38(2) of the Memorial University Act is repealed and the following substituted:

(2) Where an auditor other than the auditor general audits the accounts of the board, the auditor shall comply with subsection 19(3) of the Auditor General Act, 2021.

(2) Subsections 38(5) and (6) of the Act are repealed and the following substituted:

(5) Where the auditor general conducts a further examination and investigation under subsection (4), sections 20, 25, 27, 30, 31, 32 and 34 of the Auditor General Act, 2021 apply, with the necessary changes.

(6) Where the auditor general conducts an examination under subsection (3) or a further examination and investigation under subsection (4), he or she shall report on it to the House of Assembly, and section 23 of the Auditor General Act, 2021 applies, with the necessary changes, to the report.

(3) Section 38.1 of the Act is repealed.

SNL2019 cO-6.1 Amdt.

48. Subsection 23(5) of the Oil and Gas Corporation Act is amended by deleting the reference "Auditor General Act" and substituting the reference "Auditor General Act, 2021".

SNL2006 cR-7.1
Amdt.

49. (1) Section 2 of the Regional Health Authorities Act is amended by renumbering paragraph (a) as "(a.1)" and adding immediately before that paragraph the following:

(a) "auditor general" means the auditor general as defined in the Auditor General Act, 2021;

(2) Section 22 of the Act is repealed and the following substituted:

Auditor

22. The auditor general shall, in accordance with section 19 of the Auditor General Act, 2021, annually, audit the records, accounts and financial transactions of an authority.

SNL2014 cP-37.2 Amdt.

50. Paragraph 15(2)(a) of the Public Interest Disclosure and Whistleblower Protection Act is amended by deleting the reference "Auditor General Act" and substituting the reference "Auditor General Act, 2021".

SNL2016 cR-15.2 Amdt.

51. Paragraph 2(f) of the Rooms Act, 2016 is amended by deleting the reference "Auditor General Act" and substituting the reference "Auditor General Act, 2021".

SNL1991 c22 Rep.

52. The Auditor General Act is repealed.

Commencement

53. This Act, or a section, subsection, paragraph or subparagraph of this Act, comes into force on a day or days to be proclaimed by the Lieutenant-Governor in Council.

Queen's Printer