Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697807195299.pdf (Jamaica)
JAl\1AICA [L.S.]

No.Jo-2011 I assent, ( \" J \ _~~L_.

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Governor-General.

AN ACT to Amend the Public Bodies Management and Accountability Act.

The date notified bv the Miruster [ bringing the Act i~to operation] BE IT ENACTED by The Queen's Most Excellent Majesty, by and with the advice and consent of the Senate and House of Representatives of Jamaica, and by the authority of the same, as follows:­ 1.

This Act may be cited as the Public Bodies Management and Short title.
Accountability (Amendment) Act, 2011, and shall be read and ~~~struction construed as one with the Public Bodies Management and commence· Accountability Act (hereinafter refem~d to as the principal Act) menl, and all amendments thereto.

2 [No.

The Public Bodies Management and Accountability Act, 2011 Amendment of section 2 of principal Act.

(2) This Act shall come into operation on a day to be appointed by the Minister by notice published in the Gazette.

2.
Section 2 of the principal Act is amended­ (a) in the definition of "government company", by deleting the words "by the holding of shares"; (b) in the definition of "public body", by inserting immediately after the words "government company" the words ", but does not include an executive agency designated under the Executive Agencies Act"; (c) by inserting the following definitions in the appropriate alphabetical sequence­ "financial distribution" means a distribution made from profits, surpluses or equity; "financial year" in relation to a public body means, except as may be otherwise provided in any other enactment, a period of twelve months beginning on the 1 st day ofApril of a calendar year and ending on the 31 st day of March of the next calendar year; "statutory body or authority" means a body corporate established by an Act ofPari iament over which the Govemment or an agency ofthe Government exercises control.
Amendment of section 2A of primcipalAct.

3.
3.

Section 2A of the principal Act is amended by deleting subsection (1 ) and substituting therefor the following­ (1) Before the end of each financial year, the Minister " shall cause to be prepared in such form as may be approved by him, estimates ofrevenue and expenditure for public bodies, with respect to the ensuing financial year, containing­ (a) summary (If the corporate plan submitted by each public body, pursuant to section 7; 711e Public Bodies Munagement and Accountability [No.
3 Act, 2011 (b) information necessary for the compilation of the Fiscal Policy Paper, as it rdates to that public body; and (c ) other data and infom1ation perlaining to those public bodies, as the Minister considers appropriate.".

4.

The principal Act is amended by inserting next after section • • 2A the toll owing <1.

', sectIOn 28-­ 2B.
The Minister may by order, subject to ;" Mini:,tcr rnay Ci\Clnpt aHirrnative resolution, exempt a public body from public body_ all or any of the provisions of this Act", 5.-(1) Section 3 of the principal Act is repealed and the following substituted therefor-­ " Account> of public bodies_ 3.--(1) The accounts of public bodies shall be prepared in accordance with generally accepted accounting prineipJes promulgated from time to time, by the Institmc of Chartered Accountants of other body as the Minister may Jamaica, or specify by (2) As soon possible after the end of each not more than four months there­ linuncial II public body shall submit the after, the board audited fmancial statements annual report of the public responsible Minister, who and statements to be laid on shall cause tlw the Table of Ihe House of Representatives and of the Senate.".
6.

Section 4 of the substituted therelor--­ is repealed and the following " SI),uc'­ 4.-(1) shall act in holdin!

!s and distnbUllOllS.

under sectIOn k: shares, a public body with regulations made Insertion of new sectIOn 2B in principal Act.

Repeal and replacement of section 3 of principal Act Repeal and replacement of section 4 of principal Act 4 [No. ]
The Public Bodies Management and Accountability Act, 2011 (2) The Minister may from time to time direct the Accountant-General, in writing, as to the manner in which the Accountant-General should exercise his powers as a shareholder in any government company.

(3) All dividends payable in respect of shares held by the Accountant-General in a government company shall be paid in accordance with regulations made under section 24.
(4) An annual financial distribution made by a self-financed statutory body or authority to the Consolidated Fund shall be in accordance with regulations made under section 24.

(5) Nothwithstanding subsections (3) and (4), a public body may be requested by the Financial Secretary to pay a special distribution into the Consolidated Fund in accordance with regulations made under section 24.
(6) Notwithstanding the provisions of section 25(3) of the Companies Act (which relate to the filing of accounts by private companies) a public body which is a Government company shall file accounts in accordance with that section.".

Amendment of section 5 of principal Act.

after subsection (4) the fo]owing as subsection (5}­ 7.
Section 5 of the principal Act is amended by inserting next (5) The Minister shall not give his approval under " subsection (1) unles:; satisfied that the proposed borrowing is consistent with the debt reduction target specified in section 48C(1)(b) of the Financial Administration and Audit Act.".

The Public Bodies Management and Accountability [No. ]

5 Act, 2011 8.
5 Act, 2011 8.

The principal Act is amended by inserting next after section 5, Insertion of new sections 5A,5B,and5C in principal the following as sections 5A to 5C- " Payments to 5A.-{l) Subject to subsection (4), no payment Act.

public body.
public body.

shall be made from the Consolidated Fund to any public body by way of­ (a) grant; (b) capital contribution; (c) loan; or (d) assignmen: ofrevenue, and no guarantee may be given to any such public body, being a guarantee which may necessitate payment from the Consolidated Fund, unless the conditions set out in subsection (2) are met.
(2) The conditions referred to in subsection (1) are that­ (a) the prior approval of the House of Representatives has been obtained for such payment or guarantee (as the case maybe); (b) subject to section 58, an agreement in writing has been made between the Financial Secretary and the public body, stating the terms and conditions under which the payment or guarantee will be made; and (c) where appropriate, the public body has lodged with the Financial Secretary and any other accounting officer concerned, copies of-­ (i) its constitution or, as the case may be, its articles of incorporation; and 6 [No. ]
The PuNic Bodies A1mwgcmcnt and Accountdhility Act.

HIll (i i) its latest annual report and audited financtal statements.

(3) Where any agreement referred to in subsection (2)(h) 1S in force, the puhlic hody shall, within four months nfter the end of the financial year.
submit to its accounting oJlicer--­ (a) its latest annual report and audited financial statement; and (b) a certificate, signed by the auditor ofthat public body, stating whether tIll' terms of agreement have been met (4) Kotv.ithstll1ding subst;ction (1 ), guarantees which are still outstanding at the date of com­ Bodies Management and mencement of the Accountability (Amendment) Act, 20n, may be paid fi:om the Consolidated Fund.

PO\\~rs of il\;eoul1ting otlkcr in relation to public bodies.
5B.~-{ 1) The accou'lting oflica concerned shalL in rdation to any agr;:ement rekrrcd to in section 5A(2)(b)­ (a) out such investi!

'ations as may be nC1':I.?SSaI'j ofthe circumstances in which ttl(: payment or guarantee is sought, and sh311 report his findings to the Minister and to the responsible Minister; (b) ensure that provision is made prior to the eXl.
?cutinn ,)fany sUI..~h agreement for the elTective carrying out of Govemment policy and fi,)r the protection of the fimmcial inh:~rcstsorlheGovcmmcnt if­ (i) thl~re is a defhult in complying with the terms of any such ar.rcI'11lcnt; or The Public Bodies Management and Accountability [No. ]
7 Act,201l (li) the accounting officer has reiSOnable grounds for believing that any such default is likely to occur; (c) carry out such investigation as may be necessary in the circumstances giving rise to such default or the likelihood thereof, and report his findings to the Minister and to the responsible Minister.

(2) Any such gua:antee agreement may provide for the inspection on a regular basis, by the principal accounting officer concerned, ofthe accounts ofthe public body.
(3) For the purpose of any inspection mentioned in subsection (2), the accounting officer concerned shall be entitled at all reasonable times to examine the public body's­ (a) assets; (b) accounts; (c ) documents: (d) files; and (e) other records, in whatever form they may be.

Powers of Minister in cases of default.
5C.- (1) Where a report is made to the Minister pursuant to section 5B in respect of any default by a public body, the Minister may, after consultation with the Minister responsible for that public body­ (a) direct that any guarantee agreement made in re.ation to that body pursuant to section SA(l) be revised; (b) specify the remedial action to be taken by that body; (c) direct that an investigation of the circumstances ofthe default be carried out by persons specified by him.

8 [No, ] Th.
8 [No, ] Th.

: Public Bodi?s Management and Accountability Act, 2011 (2) Where any principal accounting officer is responsible for any default in complying with the terms of any such guarantee agreement, the public body concerned may appeal to the Minister responsible for that body to take appropriate action,".

Amendment of section 6 of principal Act.

9.


Section 6 ofthe principal Act is amended by renumbering the section as subsection (1) and inserting the following as subsection (2)­ "(2) The Minister shall, after consultation with the Audi tor-General, the Institute of Chartered Accountants of Jamaica, and such other persons having expertise in corporate governance as the Minister considers appropriate, prescribe and keep under review, a code of conduct for boards of directors of public bodies.".
Insertion of ncw6Ain principal Act.

10.

The principal Act is amended by inserting next after section 6 the following as section 6A­ 6A.

Every public body shall adhere to the e mes overnment s procurement ru cs an d glil'd)' 1 "Public thebodies and G ' Govemmcnt's made under any enactment.".

procurement rules.

Amendment of section 8 of principal Act.

11.
Section 8 of the principal Act is amended~- (a) in the marginal note by inserting next after the word "committees", the words "and auditors" ; (b) by inserting next after subsection (4) the following subscctions­ (5) The auditor of a public body shall be " entitled t(1-­ (a) attend an annual general meeting of the public body; (b) receive all notices of and other com­ munications relating to any annual general meeting which any member of the public body is entitled to receive; and The Public Bodies Management and Accountability [No. ]
9 Act, 201 J (C) be heard at any such annual general meeting which he attends, regarding any part of the business of the meeting which concerns him as auditor.

(6) For the purpose ofensuring that the audit committee of a public body has the capability to perfonn the duties ofthe audit committee, the board may co-opt, to perform the duties of the audit committee, individuals who are not members of the board but who possess a broad range of qualifications relevant to the functions ofthe public body.
(7) At least one member of the audit committee shall be a qualified accountant, registered under the Public Accountancy Act, or possess expertise in the area of finance.

(8) Every individual co-opted pursuant to subsection (6) shall have all the rights and responsibilities of the other members of the audit committee in respect the work ofthat committee.".
12.-(1) Section 9 ofthe principal Act is amended in subsection 1(a), by inserting next after sub-paragraph (iii) the following as sub-paragraph (iv)­ Amendmentof s,;ti?n?

I ~:.~mclpa " (iv) the independence ofthe auditors auditing the public body;".

13.
Section 13 of the principal Act is amended­ (a) in subsection (1), by deleting the words "The Minister" and substituting therefor the words "Subject to subsection (2), the Minister"; (b) by renumbering subsections (2) to (5) as subsections (3) to (6); (c) by inserting next after subsection (1) the following as subsection (2)­ " (2) A person is not qualified to be appointed or hold an appointment as an auditor for a public body unless he is a registered public accountant under the Public Accountam:y Act"; Amendment of section 13 of principal Act.
10 [No.

The Public Bodies Management and Accountability Act, 2011 lnsenion of new sections I3A, I3B and I3C in principal Act.

(d) delete from subsection (6), as renumbered, the numeral "(4)" and substitute therefor the word and numerals "( 1)" "or (5)".

14.
14.

The principal Act is amended by inserting next after section 13 the following as sections 13A, 13B and 13C­ "Audit of 13A.--(l) Notwithstanding anything to the contrary contained in any other enactment, the accounts ~~~~b~; Auditor General may, if he thinks fit, audit the accounts of any public body, and shall do so if Auditor the House of Representatives, by resolution, so directs.

General.
General.

(2) The Auditor General's report on his examination and audit of any accounts audited pursuant to subsection (1) shall be submitted to the responsible Minister for presentation, subject to the requirements of subsection (3)(a), to the House of Representatives.
(3) The requirements of this subsection are that­ (a) the responsible Minister shall­ (i) (ii) obtain the observations ofthe public body concerned on any matter to which attention has been drawn by the Auditor General in his report; and cause such observations to be presented to the House of Representatives, together with the report; (b) if the responsible Minister fails, within two months after receipt of the report, to present it to the House of Re­ presentatives, the Auditor General shall transmit a copy of the report to the Speaker of the House to be presented by him to the House.
The Public Bodies Management and Accountability Act, 2011 [No. ]

) ) Powers of Audilor General 10 order audit of books of public body.

Auditor General to be infomlcd re tennina­ tion of audilor's servIces.
13B.--(1) In exercise ofhis duties under section 13A, the Auditor General may authorize any person who is a registered public accountant under the Public Accountancy Act, to inspect, examine or audit the books and accounts of any public body which the Auditor General may require to be examined or audited; and that person shall report his findings to the Auditor General.
(2) In exercise of his duties in relation to public bodies, the Auditor General, or any auditor appointed by the Auditor General shall have like powers as are vested in the Auditor General for the purpose ofexamining accounts under sections 25 and 28 ofthe Financial Administration andAudit Act.

(3) Each public body referred to in subsection (I) shall pay the person authorized pursuant to subsection (1) such fees as may be determined by the Auditor General, after consultation with the Financial Secretary.
13C.

Where­ (a) the appointment of an auditor is not renewed by the board of a public body, the board shall inform the Auditor General in writing ofthe reasons therefor; or (b) any auditor withdraws his services in relation to the audit ofthe accounts ofany public body, he shall inform the Auditor General in writing of such withdrawal, and the Auditor General shall inquire into the matter and report his findings to the Minister."

.

12 [No. ]

The Public Bodies Management and Accountability Act, 20ll 15.
Subsection (1) ofsection 14 ofthe principal Act is amended Am:ndmentror .

secllon 14 ° principal Act.

by msertmg next after the words "shall ascertain" the words "and .

thereafter shall report to the board,".

Amendment of section 19 of principal Act.

16.
Section 19 of the principal Act is amended by- (a) re-numbering the section as subsection (1); (b) inserting immediately after the words "by him" the words, "including any director or officer who has provided such report in his professional capacity"; and (c) inserting the following as subsections (2) and (3)­ (2) A director or officer of a public body shall " not be in breach ofhis duty under section 17 (1) if, he believed in the existence of information which, if true, would render the director's or officer's exercise of care, diligence and skill in the performance of his duty to be reasonably prudent (3) For the purposes ofthis section, a director or officer shall be deemed to have acted with due care, diligence and skill where, in the absence of fraud or bad faith, the director or officer reasonably relied, in good faith.
on documents relating to the affairs of the public body, including financial statements, reports of experts or on information presented by other directors or, where appropriate, other officers and professionals.".

17.

The principal Act is amended by inserting next after section .. Insertion of new sections 19 the following as sections 19A, 19B and 19C­ 19A,19B and 19Cin principal Act.

"Indemni­ fication of directors.

etc.


19A.-(1) Except in respectofanaction by or on behalf ofa public body to obtain a judgment in its favour.

the public body may indemnify­ (a) a director or officer ofthe public body; (b) a former director or officer of the public body; or a person who acts or The Public Bodies Management and Accountability [No. ]
13 Act, 2011 acted at the request of the public body as a director or officer of a public company of which the public body is or was a member or creditor, and his legal representatives, against all costs, charges and expenses (including an amount paid to settle an action or satisfY ajudgment) reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding, to which he is made a party by reason of being, or having been, a director or officer ofthat public body_ (2) Subsection (1) does not apply unless the director or officer to be so indemnified­ (a) acted honestly and in good faith, with a view to the best interests ofthe public body; and (b) in the case of a criminal or adminis­ trative action or proceeding that was enforced by a monetary penalty, had reasonable grounds for believing that his conduct was lawful.
Indemnity for derivative action.

19B.

A public body may with the approval of the Court, indemnifY a person referred to in section 19A in respect of an action­ (a) by or on behalf of the public body to obtain a judgment in its favour; and (b) to which he is made a party by reason of being or having been a director or an officer of the public body, against all costs, charges and expenses reasonably incurred by him in connection with the action, if 14 [No. ]
The Public Bodi?s Management and Accountability Act, 2011 Righi to indemnity.

he fulfills the conditions set out in subsection (2) of section 19A.

19C.
Notwithstanding anything in section 19A or 19B, a person described in section 19A is entitled to indemnity from the public body in respect of all costs, charges and expenses reasonably incurred by him in connection with the defence of any civiL criminal or administrative action or proceeding to which he is made a party by reason of being, or having been, a director or officer of the public body, ifthe person seeking idemnity­ (a) was substantially successful on the merits in his defence of the action or proceeding; (b) qualified in accordance with standards set out in section 19A or 19B; and (c) is fairly and reasonably entitled to indemnity.".
Amendment of section 20 of principal Act.

18.

Section 20 of the principal Act is deleted and the following substituted therefor­ " 20.
In the exercise of any powers conferred on a board by a relevant enactment or any constituent documents in relation to--­ (a) emoluments payable to the staff ofa public body; (b) any other policies and guidelines applicable, the board shall act in accordance with such guidelines as are issued from time to time by the Minister responsible for the public service and the Minister, respectively.".

The Public Bodies Management and Accountability [No. ]

15 Act,2011 19.
15 Act,2011 19.

Section 23 of the principal Act is deleted and the following Amendmentof section 23 of principalAcl.

substituted therefor- " 23.

Every public body shall prepare in the prescribed form and submit to the responsible Minister and the Minister, the half-yearly, quarterly and other reports in accordance with Parts II, III and IV ofthe Second Schedule.

", 20.

The principal Act is amended by inserting next after section Amendmentof section 23A of principalAcl.
23 the followmg as sectIOn 23A- .

. "

23A-(I) The Registrar ofCompanies shall, within four months after the end ofeach financial year, prepare and submit to the Minister a report on all government companies containing­ (a) a list of any subsidiaries of such companies, specifYing any additions thereto, or deletions theref;om during the financial year; and (b) information on any default by such companies in complying witl';.

the relevant provisions of the Companies Act.


(2) The Minister shall cause a copy of the report submitted under subsection (1) te be laid on the Table of the House of Representatives.".

21.

Section 24 of the principal Act it; amended in subsection (l) Amendmentof ~- (a) inserting next after the words "this Act" the words "and without prejudice to the generality ofthe foregoing, may in particular­ (i) specify criteria for the creation of public bodies; section 24 cl~~ Act.

16 [No. ]

The Public Bodi.
'~s Management and Accountability Act, 2011 (ii) specify criteria for the evaluation of the viability of public bodies, using cost benefit analysis; (iii) in respect ofloans guaranteed to public bodies under the Approved Organizations and Authorities Loans (Government Guarantee) Act, prescribe a scale for commissions which may be imposed under section 3(2) ofthat Act, based on specified economic criteria and risk analysis, so as to ensure that such commissions are commensurate with the potential cost and risk, to the Government, ofsuch guarantees; (iv) specifY criteria for the appointment of boards of public bodies; (v) specifY criteria for the making of financial distributions to the Consolidated Fund by public bodies".
Amendment of section 25 of principal Act.
22.-{1) Section 25 ofthe principal Act is amended by deleting subsection (1) and substituting therefor the following- (I) If the Court is satisfied, on an application by the " Attorney-General, that any person has contravened any ofthe provisions of­ (a) section 3(3) (submission of annual report and audited financial statements); (b) section 4 (acquisition of shares and payment of dividends or annual financial distribution to the Governme.nt under regulations made under section 24); (c) section 5(1) and (2) (exercise of borrowing powers); (d) section 6 (corporate governance); The Public Bodies Management and Accountability [No. ]
17 Act, 2011 (e) section 7 (corporate plan); (f) section 7 A (power to request information); (g) section 8 (audit committees); (h) section 9 (duties ofaudit committees); (i) section 14 (general duties of auditors); (j) section 15 (failure to furnish information to auditors); (k) section 17 (fiduciary duties); (1) section 20 (levels ofemoluments); (m) section 21 (restriction on formation of new companies); (n) section 23 (other reports by public bodies), the Court may exercise any of the powers referred to in subsection (2).".
(2) Subsection (4) of section 25 is repealed.

23.

The principal Act is amended by deleting section 27 and Repeal and substituting therefor the following- "Supremacy 27.

Notwithstanding any provision of any other ~:I!~:~:t~ in law or enactment to the contrary, where that other law or enactment raises any inconsistency between public bodies.

this Act and that provision in relation to the operations of any public body, the provisions of this Act shall prevail.".

replacement of section 21 of principal Act.


inserting next after Part III the following as Part IV- 24.

The Second Schedule to the principal Act is amended by Amendment ~~~:~~~dto principal Act. "

PART IV.

Other Reports Other reports shall be submitted as may be required, from time to time by the Minister, and such reports shall contain such information as may be speciJ1ed by the Minister.".

18 [No. ]

The Public Bodies Management and Accountability Act, 2011 25.
The Approved Organizations and Auti1o.Y ities Loans (Government Guarantee) Act is amended­ (a) in section 2 by-­ (i) deleting from subsection (2) the full stop appearing at the end of paragraph (b) and substituting therefor a semi-colon; and (ii) inserting the following as paragraph (c)­ " (c) in respect of a public body, unless the guarantee is consistent with the fiscal targets for total debt specified in section 48C( I )(b) of the Financial Administration and Audit Act.
"; and (iii) by inserting next after subsection (2) the following subsection­ " (3) In this section and section 3, "public body" has the meaning assigned to it by section 2 of the Public Bodies lvfanagement and Accountability Act.
"; (b) in section 3, by deleting subsection (2) and substituting therefor the following­ " (2) Where any loan is guaranteed under this Act­ (a) after the 30th of December, 1969, the borrower shall pay to the Government as a commission such sum not exceeding one percent of the amount borrowed, as the Minister may determine; or (b) after the date ofcommencement ofthe Public Bodies Alanagement and Accountability (Amendment) Act, 2011, The Public Bodies Management and Accountability [No.
19 Act.20n if the borrower is a public body, the borrower shall pay to the Government as a commission such sum as may be prescribed by regulations made under section 24 of the Public Bodies Management andAccountability Act.".

Passed in the House of Representatives this 7th day of June, 2011 with four (4) amendments.

DELROY H. CHUCK Speaker.

Passed in the Senate this 24th day of June, 2011 with seven (7) amendments.

OSWALD G HARDING, OJ., C.D., Q.c.

President.


On the 20th day of August, 2011 the House of Representatives agreed to the amendments made by the Senate.

MARISA DALRYMPLE PHILIBERT Speaker.

This printed impression has been carefully compared by me with the Act which has passed the House of Representatives and Senate.

and has been found by me to be a true and correct printed copy of the said Act.

Clerk to the Houses ofParliament.