AG Kim MacPherson concerned Liberal bill will erode her power

New Brunswick's auditorgeneral says she's worried that some of her independent powers could be eroded by a Liberal bill now before the legislature.

Kim MacPherson says she objects to the repeal of Section 12(2) of the AuditorGeneral Act, which gives her the powers of a commission of inquiry in certain investigations.

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MacPherson says she has asked for that section to be broadened so it's available during any investigation.

Instead, the Liberals are repealing it altogether so those powers won't be available at all.

"Back in the day, when legislators put it in there, it was put in there for a reason, and I don't know of any circumstances today that would warrant changing it and repealing it," MacPherson told CBC News on Monday.

"I don't fully understand the implications of repealing that section, but once it's out, it's out forever. We don't know what the future will hold and when it will be appropriate and possibly necessary for that section to be at the purview of the auditor general."

The repeal is part of a two-step process the provincial government is using during what it says is a routine modernization of statutes.

One bill will replace the existing Inquiries Act with an entirely new law of the same name.

The second bill amends dozens of other provincial laws that refer to the old Inquiries Act. In updating those laws so they refer to the new act, the government is also changing some provisions.

The Auditor General Act is among the acts being changed.

The existing act allows the auditorgeneral to take on the powers of a commission of inquiry when the cabinet, a minister, or the legislature asks her to conduct an audit.

Those powers include the ability to subpoena witnesses to testify under oath.

AG asked for broader powers

MacPherson says she asked the government to broaden that provision so that it applied to all her investigations, not just those requested by the cabinet, a minister, or the legislature.

"Each time [I've been consulted], I have indicated I have concerns with repealing 12(2)," she said.

But in a statement Monday, Deputy AttorneyGeneral Johanne Bray said MacPherson's concerns were "noted and discussed in a series of meetings" going back to January 2014.

"In fact, she was contacted as recently as last Thursday to further discuss her concerns but she has not responded to the invitation," Bray said in the statement. "Regrettably, numerous attempts to explain the drafting techniques undertaken to achieve changes the Auditor General has agreed to in principle have been unsuccessful."

The amendments also change the wording that applies to the auditorgeneral's power to gather information.

The existing law says she has "free access" to information she needs, and can "require and receive" any information she needs. It also says she can "require evidence to be given under oath."

The amendment would change the wording to say she can "order a person to produce any information" relevant to the audit.

Atcon audit

MacPherson has launched a second audit of the Atcon affair, which saw taxpayers lose around $70 million in loans and loan guarantees granted by the Liberal government of Shawn Graham.

She says she doesn't know whether she would need inquiry powers to do that work.

"It's early days. I have no idea," she said.

"I have never been in a position to do that, and I hope never to be."

She pointed out that former conflict-of-interest commissioner Patrick Ryan had to use inquiry powers when he was investigating a conflict complaint against former premier Shawn Graham.

Ryan wanted access to confidential cabinet documents, but was turned down at first by the PC government of David Alward. He had to use Inquiries Act powers to order the documents turned over.

MacPherson says it's "in the public interest in my view, whether it's Atcon or any other file, that for the independence of the auditorgeneral's office, [Section 12(2)] should remain intact."

Previous fights with government

This isn't MacPherson's first clash with the Gallant government.

Last year, she said she disagreed with how the Liberals were accounting for future pension liabilitiesand argued it may their deficit projections unreliable.

And in December she said the Atcon case required a second audit that she would conduct even if the legislature didn't give her the funding she needed to do it.

February's budget gave MacPherson and other arm's-length legislative watchdog offices a tiny increase to account for inflation. MacPherson had told MLAs an audit similar to the one she planned for Atcon cost $1 million.

MacPherson said Monday she is starting the audit even without the funding.

"I'm trying to do it as frugally and efficiently as possible," she said.

She said the Legislative Administration Committee, which oversees her budget, told her it will consider supplementary funding for her at a later date.

"There's a number of mechanisms the government has to fund it outside the normal budget process," she said.