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SNL2004 CHAPTER T-8.1

TRANSPARENCY AND ACCOUNTABILITY ACT

Amended:

CHAPTER T-8.1

AN ACT TO ENHANCE THE TRANSPARENCY AND ACCOUNTABILITY OF THE GOVERNMENT AND GOVERNMENT ENTITIES TO THE PEOPLE OF THE PROVINCE

(Assented to December 16, 2004 )

Analysis




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 Transparency and Accountability Act .

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Definitions

        2. In this Act

             (a)  "activity plan" means a 3 year plan prepared by a category 3 government entity;

             (b)  "annual report" means the report prepared annually by a government entity;

             (c)  "business plan" means a 3 year plan prepared by a category 2 government entity;

             (d)  "chairperson" means the head of the governing body of a public body;

             (e)  "chief executive officer" means the person responsible for the day to day operation of a public body;

              (f)  "comptroller general" means the Comptroller General of Finance appointed under the Financial Administration Act ;

             (g)  "department" means a department of the government created under the Executive Council Act and includes a branch of the executive government of the province;

             (h)  "fiscal year" means the fiscal year of a government entity;

              (i)  "governing body" means the persons who exercise authority over or have direction and control of a public body;

              (j)  "government entity" means a department or a public body;

             (k)  "minister" means the minister appointed under the Executive Council Act to preside over a department;

              (l)  "public body" means

                      (i)  a corporation, the ownership of which or a majority of the shares of which is vested in the Crown,

                     (ii)  a corporation, commission or body, the majority of the members of which, or a majority of the members of the board of directors of which, are appointed by an Act, the Lieutenant-Governor in Council or a minister,

                    (iii)  a school board elected under the Schools Act, 1997,

                    (iv)  a corporation, commission or other body that the Lieutenant-Governor in Council may, by regulation, designate as a public body,

but does not include

                     (v)  a court established under the Judicature Act , or

                    (vi)  the Provincial Court of Newfoundland and Labrador ;

            (m)  "responsible minister" means the minister responsible for a government entity;

             (n)  "strategic direction" means the articulation of a desired physical, social or economic outcome that would normally require action or involvement of more than one government entity; and

             (o)  "strategic plan" means a 3 year plan prepared by a category 1 government entity.

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This Act takes precedence

        3. Where there is a conflict between this Act and another Act, this Act takes precedence.

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Categorization of government entities

        4. (1) The Lieutenant-Governor in Council shall establish criteria for the categorization of government entities as either category 1, 2 or 3 government entities.

             (2)  The Lieutenant-Governor in Council shall, using the criteria established under subsection (1), categorize all government entities as either category 1, 2 or 3 government entities.

             (3)  Notwithstanding the category into which a government entity has been placed, the Lieutenant-Governor in Council may order the application of a provision of this Act applicable to an entity in another category to the entity, either in substitution for the requirement to which it would otherwise be subject, or in addition to that requirement.

             (4)  The following provisions do not apply to the Memorial University of Newfoundland:

             (a)  subparagraph 5(2)(a)(i);

             (b)  subsections 5(3), (9), (10) and (11) but the strategic plan of the university may be amended by the Board of Regents and in that case a copy of the amendments shall be provided to the minister responsible for the university;

             (c)  subparagraph 6(2)(a)(i);

             (d)  subsections 6(3), (9), (10) and (11) but the business plan of the university may be amended by the Board of Regents and in that case a copy of the amendments shall be provided to the minister responsible for the university;

             (e)  paragraph 7(2)(a);

              (f)  subsections 7(3), (9), (10) and (11) but the activity plan of the university may be amended by the Board of Regents and in that case a copy of the amendments shall be provided to the minister responsible for the university; and

             (g)  subsections 20(2) and (3).

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Strategic plans

        5. (1) Each category 1 government entity shall, every 3 years, prepare a strategic plan for the government entity.

             (2)  A strategic plan shall

             (a)  set out the goals and objectives to be met during the period covered by the plan taking into account

                      (i)  the strategic direction of the government in the area of the government entity’s mandate as communicated to the government entity by the responsible minister,

                     (ii)  the government entity’s mandate as set out in the Act or other instrument creating it, and

                    (iii)  the financial resources of the government entity;

             (b)  identify objective performance measures specific to the goals and objectives set out in the plan;

             (c)  set out the fiscal years covered by the plan; and

             (d)  contain the other information required by the Lieutenant-Governor in Council.

             (3)  A strategic plan shall be submitted to the responsible minister who shall approve it upon being satisfied the plan is in keeping with

             (a)  the strategic direction of the government in the area of the government entity’s mandate as communicated to it by the minister;

             (b)  the mandate of the government entity; and

             (c)  the financial resources of the government entity.

             (4)  A strategic plan shall include a statement that the responsible minister, where the plan relates to a department, or the governing body of the public body, where the plan relates to a public body, is accountable for the preparation of the plan and for achieving the specific goals and objectives of the plan.

             (5)  A strategic plan shall be signed by the responsible minister, where the plan relates to a department, and by the chairperson of the public body, where the plan relates to a public body.

             (6)  A strategic plan shall be submitted to the responsible minister by the date set by the minister.

             (7)  A strategic plan shall be made public by the responsible minister not later than 3 months after the beginning of the first fiscal year of the period covered by the plan by

             (a)  presenting the plan to the House of Assembly; and

             (b)  other effective methods, including electronically.

             (8)  Where the House of Assembly is not in session at the time a plan is required to be presented under subsection (7), section 19.1 of the House of Assembly Act applies as if the plan were a report of an officer of the House of Assembly.

             (9)  A strategic plan may, subject to the approval of the responsible minister, be amended.

           (10)  Subsection (3) applies to amendments made under subsection (9).

           (11)  The amendments shall be made public within one month of their approval by the minister in the manner provided for in subsections (7) and (8).

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Business plans

        6. (1) Each category 2 government entity shall, every 3 years, prepare a business plan for the government entity.

             (2)  A business plan shall

             (a)  set out the goals and objectives to be met during the period covered by the plan taking into account

                      (i)  the strategic direction of the government in the area of the government entity’s mandate as communicated to the government entity by the responsible minister,

                     (ii)  the government entity’s mandate as set out in the Act or other instrument creating it, and

                    (iii)  the financial resources of the government entity;

             (b)  identify objective performance measures specific to the goals and objectives set out in the plan;

             (c)  set out the fiscal years covered by the plan; and

             (d)  contain the other information required by the Lieutenant-Governor in Council.

             (3)  A business plan shall be submitted to the responsible minister who shall approve it upon being satisfied the plan is in keeping with

             (a)  the strategic direction of the government in the area of the government entity’s mandate as communicated to it by the minister;

             (b)  the mandate of the government entity; and

             (c)  the financial resources of the government entity.

             (4)  A business plan shall include a statement that the responsible minister, where the plan relates to a department, or the governing body of the public body, where the plan relates to a public body, is accountable for the preparation of the plan and for achieving the specific goals and objectives of the plan.

             (5)  A business plan shall be signed by the responsible minister, where the plan relates to a department, and by the chairperson of the government entity that prepared it, where the plan relates to a public body.

             (6)  A business plan shall be submitted to the responsible minister by the date set by the minister.

             (7)  A business plan shall be made public by the responsible minister not later than 3 months after the beginning of the first fiscal year of the period covered by the plan by

             (a)  presenting the plan to the House of Assembly; and

             (b)  other effective methods, including electronically.

             (8)  Where the House of Assembly is not in session at the time a plan is required to be presented under subsection (7), section 19.1 of the House of Assembly Act applies as if the plan were a report of an officer of the House of Assembly.

             (9)  A business plan may, subject to the approval of the responsible minister, be amended.

           (10)  Subsection (3) applies to amendments made under subsection (9).

           (11)  The amendments shall be made public within one month of their approval by the minister in the manner provided for in subsections (7) and (8).

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Activity plans

        7. (1) Each category 3 government entity shall, every 3 years, prepare an activity plan for the government entity.

             (2)  An activity plan shall take into account

             (a)  the strategic direction of the government in the area of the government entity’s mandate as communicated to the government entity by the responsible minister;

             (b)  the government entity’s mandate as set out in the Act or other instrument creating it;

             (c)  the financial resources of the government entity; and

             (d)  the fiscal years covered by the plan.

             (3)  An activity plan shall be submitted to the responsible minister who shall approve it upon being satisfied the plan is in keeping with

             (a)  the strategic direction of the government in the area of the government entity’s mandate as communicated to it by the minister;

             (b)  the mandate of the government entity; and

             (c)  the financial resources of the government entity.

             (4)  An activity plan shall include a statement that the responsible minister, where the plan relates to a department, or the governing body of the public body, where the plan relates to a public body, is accountable for the preparation of the plan and the achievement of its objectives.

             (5)  An activity plan shall be signed by the responsible minister, where the plan relates to a department, and by the chairperson of the government entity to which it relates, where the plan relates to a public body.

             (6)  An activity plan shall be submitted to the responsible minister by the date set by the minister.

             (7)  An activity plan shall be made public by the responsible minister not later than 3 months after the beginning of the first fiscal year of the period covered by the plan by

             (a)  presenting the plan to the House of Assembly; and

             (b)  other effective methods, including electronically.

             (8)  Where the House of Assembly is not in session at the time a plan is required to be presented under subsection (7), section 19.1 of the House of Assembly Act applies as if the plan were a report of an officer of the House of Assembly.

             (9)  An activity plan may, subject to the approval of the responsible minister, be amended.

           (10)  Subsection (3) applies to amendments made under subsection (9).

           (11)  The amendments shall be made public within one month of their approval by the minister in the manner provided for in subsections (7) and (8).

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Period covered by plan

        8. The Lieutenant-Governor in Council may approve a longer or shorter period for a plan required under section 5, 6 or 7.

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Annual reports

        9. (1) A government entity shall each year prepare and submit to the responsible minister an annual report on its preceding fiscal year.

             (2)  Not later than the date set by the Lieutenant-Governor in Council, the responsible minister shall, every year, make public the annual report on the preceding fiscal year for each government entity for which he or she is the responsible minister.

             (3)  The annual report of a category 1 or category 2 government entity made public under subsection (2) shall compare actual results for the applicable fiscal year of its strategic plan or business plan with the projected results of that plan for the fiscal year.

             (4)  Where an annual report referred to in subsection (3) discloses a variance between the actual and projected results of the government entity for the applicable fiscal year of the government entity's plan, the report shall provide an explanation of the variance.

             (5)  An annual report relating to the activity plan of a category 3 government entity shall present information on the activities of the entity carried out during the preceding fiscal year in compliance with its mandate.

             (6)  The annual report of a government entity shall include the audited financial statement of the entity, where the entity is required to prepare one, and a comparison of it with the amount voted by the House of Assembly related to the entity.

             (7)  An annual report required by this section shall be presented to the responsible minister not later than the date set by the Lieutenant-Governor in Council.

             (8)  A responsible minister may require the government entity submitting a report to provide additional information and the information shall be provided within the time set by the minister.

             (9)  An annual report made under this section shall

             (a)  where the report is that of a department, be signed by the responsible minister and include a statement that the minister is accountable for the actual results reported; and

             (b)  where the report is that of a public body, be signed by the chairperson of the body and include a statement that the governing body is accountable for the actual results reported.

           (10)  An annual report shall be made public by the responsible minister by

             (a)  presenting the report to the House of Assembly; and

             (b)  other effective methods, including electronically.

           (11)  Where another Act requires a report to be presented to the House of Assembly respecting the activities of a government entity for a fiscal year, the report under this section satisfies that requirement subject to any additional reporting requirements established by the other Acts.

           (12)  Where the Act establishing a public body requires it to prepare and make public an annual report on its activities in the preceding year, the public body may make the report, other than a report required under this section, public as provided for in that Act.

           (13)  Section 19.1 of the House of Assembly Act applies to an annual report under this section as if the report were a report of an officer of the House of Assembly.

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Use of Corporations Act

      10. (1) A corporation shall not be incorporated under the Corporations Act to carry on a public purpose on behalf of the Crown without the prior approval of the Lieutenant-Governor in Council.

             (2)  In giving an approval under subsection (1), the Lieutenant-Governor in Council may determine the purpose, powers, governance structure, and authority to borrow and incur debt of the corporation.

             (3)  The minister responsible for a corporation incorporated under the Corporations Act to carry on a public purpose on behalf of the Crown shall prepare a statement containing information respecting

             (a)  the purpose for its incorporation;

             (b)  its objects and powers;

             (c)  its governance structure;

             (d)  its authority to borrow money and incur debt; and

             (e)  the date of its incorporation

and shall make the statement public not later than 4 weeks after the date of incorporation by

              (f)  presenting the statement to the House of Assembly; and

             (g)  other effective methods, including electronically.

             (4)  Section 19.1 of the House of Assembly Act applies to a statement prepared in accordance with subsection (3) as if the statement were a report of an officer of the House of Assembly.

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Power to borrow and incur debt

      11. (1) Where the Act, or the articles of incorporation establishing a public body, authorizes the public body to borrow money for the purpose of carrying on its day to day operations, the public body shall annually submit an estimate of the borrowing requirement for the fiscal year to the responsible minister who shall obtain approval in writing from the Minister of Finance before granting approval himself or herself.

             (2)  Notwithstanding the Act, or the articles of incorporation establishing a public body, the public body shall not borrow money, or otherwise incur debt, for the purpose of acquiring real property for the use of the public body, or for the purpose of erecting, repairing, adding to, furnishing or equipping a building for the use of the public body, without the prior approval, in writing, of its responsible minister and the Minister of Finance.

             (3)  Subsection (2) does not apply to an amount borrowed for minor repairs or minor acquisitions of furniture or equipment where the amount is included in the amount approved under subsection (1).

             (4)  Subsections (1) and (2) do not apply to a public body that is required by the Act by which it is established to obtain the approval of the Lieutenant-Governor in Council before borrowing money or otherwise incurring debt.

             (5)  Where

             (a)  the Minister of Finance gives approval to a public body to borrow money or otherwise incur debt under subsection (2); or

             (b)  the Lieutenant-Governor in Council gives an approval to a public body to borrow money or otherwise incur debt,

the Minister of Finance shall give notice of the approval to the House of Assembly within 12 sitting days of the approval having been given.

             (6)  Where the House of Assembly is not in session at the time the Minister of Finance is required to give a notice in accordance with subsection (5), section 19.1 of the House of Assembly Act applies to the notice as if the notice were a report of an officer of the House of Assembly.

             (7)  For the purpose of this section, incurring debt does not include normal trade payables.

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Three year forecasts   and semi-annual updates

      12. On the day the budget is presented, the Minister of Finance shall publish a 3 year fiscal forecast and shall, semi-annually, report on the economic and fiscal position of the province.

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Three year forecasts for government and economy

      13. On the day the budget is presented and at other times when directed to do so by the Lieutenant-Governor in Council, the Minister of Finance shall publish a 3 year forecast respecting the impact of policy decisions of the government and significant economic developments on the fiscal performance of the government and the performance of the province’s economy.

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Accrual accounting information

      14. (1) Notwithstanding the Financial Administration Act or another Act, all government entities shall prepare their annual budgets using accrual accounting and cash-based information.

             (2)  A public body shall provide the responsible minister with the budget preparation information respecting the public body requested by the minister and within the time requested.

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Financial information report

      15. Notwithstanding the Financial Administration Act or another Act, all government entities shall report required financial information in a manner consistent with generally accepted accounting principles.

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Non-compliance statement

      16. Where a plan or report required to be made public under this Act

             (a)  is not made public within the required time;

             (b)  does not include all the required information; or

             (c)  does not present the information in the required manner,

then, at the time the plan or report is required to be made public, the responsible minister shall make public a written statement giving the reasons for the non-compliance.

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Preparation of plans and reports

      17. (1) In preparing a plan or report under this Act, a government entity shall present the information in a form and language that is as precise and as readily understandable as practicable.

             (2)  To the extent reasonably possible,

             (a)  where this Act requires information to be made public respecting planning and respecting the reporting of results in relation to the same matter, the information shall be presented in a readily comparable manner; and

             (b)  the information contained in a plan or report under this Act for one government entity shall be readily comparable to the information contained in the reports or plans of all other government entities belonging to the same category.

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Government entity shall provide information

      18. (1) A minister may require a public body for which he or she is the responsible minister to provide the information for the purpose of this Act he or she requests and within the time he or she may require.

             (2)  Where a public body is required to provide information under subsection (1), the public body shall provide the information to the responsible minister

             (a)  by the date required by the minister; or

             (b)  where no date is established, as soon as reasonably practicable.

             (3)  Where a public body does not provide the information required under subsection (1) in accordance with this section, a person authorized in writing by the responsible minister may examine the books, records of accounts, documents and other records of the public body for the purpose of obtaining the information.

             (4)  Where an examination is authorized under subsection (3), the public body and the officers and employees of it shall take all necessary steps to

             (a)  make available the facilities and records of the public body; and

             (b)  assist in the conduct of the examination.

             (5)  A person shall not hinder or obstruct a person conducting an examination under subsection (3).

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Audits and information to the comptroller general

      19. (1) The chairperson of a public body shall ensure that the public body engages an auditor on a timely basis and that the audit of the public body is completed in a timely manner.

             (2)  A public body shall provide the comptroller general with a copy of the public body's audited financial statements, together with information related to the audited financial statements the comptroller general may request, within the time required by the comptroller general.

             (3)  A government entity shall, where requested to do so by the comptroller general, provide him or her with interim financial statements and related information within the time required by the comptroller general.

             (4)  Where directed to do so by the President of the Treasury Board, a public body shall permit the comptroller general to review the books of account and other financial records of the public body.

             (5)  The comptroller general shall include, where appropriate, and in accordance with generally accepted accounting principles, the audited financial statements of a public body with the Public Accounts required to be prepared by section 59 of the Financial Administration Act .

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Powers of minister re: remediation

      20. (1) Where, following a review of a public body's annual report, the minister responsible for the public body believes the public body is failing to meet the objectives set out in its plan, the minister may make recommendations to the public body that, in the minister's opinion, will ensure the public body's activities are more consistent with the objectives of its plan.

             (2)  Where a public body does not give effect to a recommendation of the responsible minister and does not provide reasons for not doing so that satisfy the minister, the minister may report concerning the matter to the Lieutenant-Governor in Council.

             (3)  Where the Lieutenant-Governor in Council receives a report of a responsible minister under subsection (2), the Lieutenant-Governor in Council may direct the public body to carry out a recommendation of the minister and the public body shall carry out the recommendation.

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Performance contracts

      21. (1) The responsible minister of a department shall enter into a performance contract with the deputy minister of that department and the chairperson of the governing body of a public body shall enter into a performance contract with the chief executive officer of the public body.

             (2)  The Lieutenant-Governor in Council shall determine the matters to be included in a contract between a deputy minister of a department and the minister responsible for the department.

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Regulations

      22. The Lieutenant-Governor in Council may make regulations to give effect to the purpose of this Act.

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Transition

      23. The Lieutenant-Governor in Council may establish different time periods within which a public body shall comply fully with the requirements of this Act respecting the preparation of its plans but all public bodies shall comply fully by April 1, 2008 .

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Commencement

      24. This Act or a section, subsection or paragraph of this Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.  (In force Dec. 15/06)

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