Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Senate Legislation Committees Report on the examination of annual reports No. 2 of 2009, September 2009


Download PDF Download PDF

Australian Senate

Senate Legislation Committees

Reports on the examination of annual reports No. 2 of 2009

September 2009

I

Australian Senate

Senate Legislation Committees

Reports on the examination of annual reports No.2 of 2009

September 2009

© Parliament of the Commonwealth of Australia 2009

ISSN 1834-4054

This document was printed by the Printing Unit, Department of the Senate, Parliament House, Canberra.

TABLE OF CONTENTS

Community Affairs Committee Nil return

Economics Committee

Annual reports (No. 2 of 2009), dated September 2009

Education, Employment and Workplace Relations Committee

Annual reports (No. 2 of 2009), dated September 2009 33

Environment, Communications and the Arts Committee

Annual reports (No. 2 of 2009), dated September 2009 57

Finance and Public Administration Committee

Annual reports (No. 2 of 2009), dated September 2009 73

Foreign Affairs, Defence and Trade Committee

Annual reports (No.2 of 2009), dated September 2009 107

Legal and Constitutional Affairs Committee

Annual reports (No. 2 of 2009), dated September 2009 143

Rural and Regional Affairs and Transport Committee

Annual reports (No. 2 of 2009), dated September 2009 169

The Senate

Economics

Legislation Committee

Annual reports (No. 2 of 2009)

September 2009

I

© Commonwealth of Australia 2009

ISBN 978-1-74229-176-5

Printed by the Senate Printing Unit, Parliament House, Canberra.

Senate Economics Legislation Committee

Members Senator Annette Hurley, Chair Senator Alan Eggleston, Deputy Chair Senator Doug Cameron Senator Barnaby Joyce Senator Louise Pratt Senator Nick Xenophon

South Australia, ALP Western Australia, LP New South Wales, ALP Queensland, NATS Western Australia, ALP

South Australia, IND

Secretariat Mr John Hawkins, Secretary Mr Glenn Ryall, Senior Research Officer Ms Meredith Bond, Executive Assistant

Suite SG.64 Parliament House Canberra ACT 2600 Ph: 02 6277 3540 Fax: 02 6277 5719

E-mail: economics.senaph.gov.au Internet: http://www.aph.gov.au/senate — economics/

111

3

iv

4

TABLE OF CONTENTS

Membership of Committee . ffl

Review of Annual Reports 1

Introduction 1

Purpose and requirements of annual reports 2

Reports referred to the committee 3

Timeliness 3

Remarks made in the Senate 5

Bodies not presenting annual reports to the Senate 5

Other comments on reports 5

Future developments 11

Appendix 1 13

Abbreviations 13

Appendix 2 15

Portfolio structure and outcomes for the Innovation, Industry, Science and Research Portfolio 15

Appendix 3 . 17

Portfolio structure and outcomes for the Resources, Energy and Tourism Portfolio 17

Appendix 4 . 19

Portfolio structure and outcomes for the Treasury Portfolio 19

Appendix 5 . . 21

Innovation, Industry, Science and Research Portfolio

List of annual reports tabled in the Senate during the period 1 November 2008 to 30 April 2009 21

V

5

Appendix 6 23

Resources, Energy and Tourism Portfolio

List of annual reports tabled in the Senate during the period 1 November 2008 to 30 April 2009 23

Appendix 7 25

Treasury Portfolio

List of annual reports tabled in the Senate during the period 1 November 2008 to 30 April 2009 25

Vi

6

S

REVIEW OF ANNUAL REPORTS

Introduction 1.1 Annual reports of departments and agencies are referred to Senate legislation committees under Senate Standing Order 25(20) in accordance with an allocation of departments and agencies in a resolution of the Senate.

1.2 The Economics Legislation Committee is responsible for the scrutiny of departments and agencies in the following portfolios:

Innovation, Industry, Science and Research;

Resources, Energy and Tourism; and

Treasury. ]

1.3 The current structures and outcomes for each of these portfolios are summarised in Appendices 2, 3 and 4, respectively. Lists of the annual reports considered in this report are provided in Appendices 5, 6 and 7.

1.4 Standing order 25(20) requires the committee to:

• examine each annual report referred to it and report to the Senate whether the report is apparently satisfactory;

• consider in more detail, and report to the Senate on, each annual report which is not apparently satisfactory, and on the other annual reports which it selects for more detailed consideration;

• investigate and report to the Senate on any lateness in the presentation of annual reports;

• in considering an annual report, take into account any relevant remarks about the report made in debate in the Senate;

• if the committee so determines, consider annual reports of departments and budget-related agencies in conjunction with examination of estimates;

• report on annual reports tabled by 31 October each year by the tenth sitting day of the following year, and on annual reports tabled by 30 April each year by the tenth sitting day after 30 June of that year;

• draw to the attention of the Senate any significant matters relating to the operations and performance of the bodies furnishing the annual reports; and

• report to the Senate each year whether there are any bodies which do not present annual reports to the Senate and which should present such reports. 2

1 Journals of the Senate, No. 2, 13 February 2008, pp 97-98. 2 Standing Order 25(20), Standing Orders and other orders of the Senate, June 2009, p. 28.

7

Page 2

Purpose and requirements of annual reports

1.5 Annual reports provide information on the success (or otherwise) of departments and agencies in meeting targets outlined in budget statements, their primary function being to assist in ensuring the public accountability of government departments and agencies. This is undertaken through the tabling of annual reports in the Parliament; and their scrutiny by Senate committees in accordance with Senate

Standing Order 25(20). This process thus allows Parliament to make informed judgments on the executive's performance in administering government programs.

1.6 Departments of State and Executive Agencies present their annual reports pursuant to sections 63(2) and 70(2) of the Public Service Act 1999, respectively. For 2007-08, these were required to comply with the Department of the Prime Minister and Cabinet's Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, approved by the Joint Committee of Public Accounts and Audit on 18 June 2008 (hereafter referred to as 'the Requirements for Annual Reports').3

1.7 Section 3(1) of the Requirements for Annual Reports states that 'As a matter of policy, they [the annual reporting requirements] also apply to prescribed agencies under section 5 of the Financial Management and Accountability Act 1997 (FMA Act)4. The 2007-08 financial statements of departments and agencies subject to the

FMA Act must be produced in accordance with the Financial Management and Accountability Orders (Financial Statements for reporting periods ending on or after 1 July 2007).

1.8 Commonwealth authorities and companies present their annual reports pursuant to their own enabling legislation and/or sections 9 and 36 of the Commonwealth Authorities and Companies Act 1997 (CAC Act), respectively. 2007-08 reports of Commonwealth authorities subject to the CAC Act must be

produced in accordance with the Commonwealth Authorities and Companies (Report of Operations) Orders 2008 and the Commonwealth Authorities and Companies Orders (Financial Statements for reporting periods ending on or after 1 July 2007). Annual reports of Commonwealth companies are required to be based on the reporting requirements under the Corporations Act 2001.

1.9 The Department of Finance and Deregulation (Finance) publishes a chart that shows which agencies are subject to the FMA Act and the CAC Act. This information is available on the Finance website at

http ://www . finance.gov. au/financial-framework/fma-legislationIfma-agencies.html; and http ://www .finance.gov .au/financial-framework/cac-legislation/cac-bodies .htm 1.

3 The latest version of the Requirements forAnnual Reports can be found on the DPMC website at: http://www.dpmc.gov.auJguidelines/docs/annual_report_requirements.pdf.

4 Department of the Prime Minister and Cabinet, Requirements forAnnual Reports, 18 June 2008, p.1.

8

Page 3

1.10 The enabling legislation of some agencies may require that agency to report on matters other than those included in the guidelines, or impose different reporting requirements, for example in relation to the date by which the report should be presented. The committee's view is that such agencies, while bound by their enabling legislation, should also comply with the requirements imposed under the government's policy, to the extent that the requirements do not conflict.

Reports referred to the committee

1.11 Under Standing Order 25(20)(f), the committee is required to report on the annual reports of departments and agencies tabled in the Senate between 1 November and 30 April of the following year by the tenth sitting day after 30 June of that year. This year that date is 9 September 2009. The committee is also required to report on annual reports tabled in the Senate between 1 May and 31 October each year by the tenth sitting day of the following year.

1.12 This report examines the following annual reports which were tabled in the Senate or presented to the President between 1 November 2008 and 30 April 2009:

• Anglo-Australian Observatory (AAO) - Annual Report 2007-08

• Australian Bureau of Statistics (ABS) - Annual Report 2007-08

• Australian Institute of Marine Science (AIMS) - Annual Report 2007-08

• Australian Prudential Regulation Authority (APRA) - Annual Report 2007-08

• Australian Research Council (ARC) - Annual Report 2007-08

• Australian Statistics Advisory Council (ASAC) - Annual Report 2007-08

• Commonwealth Scientific and Industrial Research Organisation (CSIRO) - Annual Report 2007-08

• Department of Innovation, Industry, Science and Research (DIISR) - Annual Report 2007-08

• hF Investments Pty Limited, 1ff (CM) Investments Pty Limited, hF BioVentures Pty Limited, hF Foundation Pty Limited and hF Neo Pty Limited (IIF companies) - Annual Reports 2007-08

• Innovation Australia - Annual Report 2007-08

• National Competition Council (NCC) - Annual Report 2007-08

• Snowy Hydro Limited - Consolidated Financial Report 2007-08

• Tourism Australia - Annual Report 2007-08

Timeliness

1.13 Standing Order 25(20)(c) requires the committee to report to the Senate on the late presentation of annual reports.

9

Page 4

1.14 Section 4 of the Requirements for Annual Reports states that annual reports of departments and agencies under the FMA Act framework are to be presented to each House of Parliament on or before 31 October in the year the report is given.

1.15 Section 9 of the CAC Act stipulates that the deadline for furnishing the Minister with the annual reports of Commonwealth agencies is the 15th day of the 4th month after the end of the financial year, that is, 15 October where the end of the financial year is 30 June. Section 36 of the CAC Act stipulates that Commonwealth companies must give their annual reports to the responsible Minister by the earlier of the following:

four months after the end of the financial year, or

21 days before the next annual general meeting of the company after the end of the financial year.

1.16 Government agencies reporting in accordance with their own legislation are often required to prepare for the relevant Minister their annual report 'as soon as is practicable' after a particular date. The committee draws attention to sections 34C(2) and 34C(3) of the Acts Interpretation Act 1901, which stipulate that where no date for providing a report to a Minister is specified, the report should be presented no more than six months after the reporting period, and the Minister must provide the report to the Parliament within 15 sitting days after he or she receives it.

1.17 While the legislative requirements for the tabling of annual reports vary between different types of agencies the Government's policy is 'that all annual reports should be tabled by 31 October' .5

1.18 The committee notes that none of the annual reports considered in this report have met the requirement set down by this policy. The committee is mindful that many of the reports were tabled on time in the House of Representatives. However, the committee suggests that it would be useful for all agencies to present their annual reports to both the Senate and House of Representatives on the same day so that reports are not received late in the Senate. This is consistent with section 4 of the Requirements for Annual Reports which states that annual reports are to be presented to each House of Parliament on or before 31 October. The committee brings to the attention of all departments and agencies the provision, under Standing Order 166, of presenting documents to the President of the Senate when the Senate is not sitting. 6

5 Department of the Prime Minister and Cabinet, Requirements forAnnual Reports, 18 June 2008, p. 1; Department of the Prime Minister and Cabinet, Tabling Circular No. 1/2008, Tabling of 2007-08 Departmental and Agency Annual Reports, p. 1; and Department of the Prime Minister and Cabinet, Guidelines for the Presentation of Government Documents to the Parliament (Including Government Responses to Committee Reports, Ministerial Statements, Annual Reports and Other Instruments), July 2008, paragraph 4.10.

6 See Department of the Prime Minister and Cabinet, Guidelines for the Presentation of Government Documents to the Parliament (Including Government Responses to Committee Reports, Ministerial Statements, Annual Reports and Other Instruments), paragraphs 8.1-8.7.

10

Page 5

Documents presented in this manner are deemed to be tabled out of session on the date on which they are presented to the President.

1.19 While it is government policy that all annual reports should be tabled by 31 October, dates for the tabling of annual reports set in legislation vary between agencies and as such will be considered in the specific comments on annual reports below where necessary.

Remarks made in the Senate

1.20 Senate Standing Order 25(20)(d) directs the committee to take into account remarks made in the Senate when considering annual reports.

1.21 None of the annual reports considered in this report have been the subject of debate in the Senate.

Bodies not presenting annual reports to the Senate

1.22 The committee is required to report to the Senate each year under Standing Order 25 (20)(h) on whether there are any bodies not presenting annual reports to the Senate which should. The committee is satisfied that there are no such bodies within the Innovation, Industry, Science and Research; Resources, Energy and Tourism; or Treasury portfolios.

Other comments on reports

1.23 The Requirements for Annual Reports outlines the Government's view of the purpose of annual reports:

The primary purpose of annual reports of departments is accountability, in particular to the Parliament.

Annual reports serve to inform the Parliament (through the responsible Minister), other stakeholders, educational and research institutions, the media and the general public about the performance of departments in relation to services provided. Annual reports are a key reference document and a document for internal management. They form part of the historical record. 7

1.24 In accordance with Standing Order 25(20)(a) the committee is required to

examine reports and inform the Senate as to whether they are 'apparently satisfactory'. The committee considers compliance with the reporting guidelines specified by the legislation under which departments and agencies present their annual reports.

1.25 The committee considers that the reports it has examined are generally 'apparently satisfactory'.

7 Department of the Prime Minister and Cabinet, Requirements for Annual Reports, 18 June 2008, p. 2.

11

Page 6

1.26 Despite this, the committee believes that some aspects of agency annual reports can be improved. In this report the committee has particularly focussed on examining whether or not agency annual reports contain:

• appropriate compliance indexes; and

• discussion of external scrutiny and parliamentary accountability.

Compliance indexes

1.27 While no longer mandatory under the reporting requirements, the committee recommends the inclusion of a compliance index in annual reports, which preferably should include a nil return entry where the agency has nothing to report under an item. A compliance index is a useful feature of reports and considerably assists the committee's task of assessing reports. It also assists agencies by clearly showing that their compliance obligations have been met.

1.28 Where agencies have reporting requirements under various Acts the inclusion of a comprehensive compliance index covering all relevant requirements is a useful addition to agency annual reports.

External scrutiny and parliamentary accountability

1.29 The Requirements for Annual Reports states that annual reports:

must provide information on the most significant developments in external scrutiny of the department and the department's response, including particulars of:

(a) judicial decisions and decisions of administrative tribunals that have had, or may have, a significant impact on the operations of the department; and

(b) reports on the operations of the department by the Auditor-General (other than the report on financial statements), a Parliamentary committee or the Commonwealth Ombudsman. 8

1.30 Clause 11 of Schedule 1 of the Commonwealth Authorities and Companies (Report of Operations) Orders 2008 states that the same requirements apply to Commonwealth authorities that present their annual reports in accordance with the provisions of section 9 of the CAC Act.

1.31 Annual reports should be a primary reference document for parliamentarians and others looking for information about external scrutiny of government agencies. As noted above, the primary purpose of annual reports is accountability to the Parliament - it is therefore important that details about external scrutiny are included in a clear

manner in annual reports. It is particularly important that details about parliamentary

8 Department of the Prime Minister and Cabinet, R equirements for Annual Reports, 18 June 2008, p. 8.

12

Page 7

scrutiny are included in annual reports, including appearances at Senate estimates hearings (which are the subject of bi-annual reports to the Senate).

Anglo-Australian Observatory (AAO) - Annual Report 200 7-08

1.32 The Anglo-Australian Observatory (AAO) was established by the Agreement between the Government of the Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland to provide for the Establishment and Operation of a Large Optical Telescope (Canberra, 25 September 1969). The Anglo-Australian Telescope Board (AATB) oversees the operations of the

AAO and presents its annual report to both the Australian and United Kingdom Governments in accordance with Article 8 of the Agreement and section 19 of the Anglo-Australian Telescope Agreement Act 1970 (the AATA Act).

1.33 The committee considers that the AATB has met its reporting requirements under the Agreement and the AATA Act.

Australian Bureau of Statistics (ABS) - Annual Report 2007 -0810

1.34 The Australian Bureau of Statistics (ABS) is a prescribed agency under the FMA Act. The ABS therefore presents its report in accordance with the Requirements for Annual Reports. Further requirements are specified in sections 24(1) and 24(3) of the Australian Bureau of Statistics Act 1975.

1.35 The committee considers that the ABS has largely met its reporting requirements in relation to these Acts and commends the ABS for including a detailed compliance index at the beginning of its 2007-08 annual report.

1.36 In relation to external scrutiny, the committee notes that the ABS appeared before the committee at the June 2008 Senate estimates hearings. The committee suggests that references to such appearances before Senate committees should be included in future reports as these appearances are an important aspect of external

scrutiny of government agencies. Reports on the additional and budget estimates hearings are tabled in the Senate each year by all Senate committees.

Australian In stitute of Marine Science (AIMS) - Annual Report 2007-08"

1.37 The Australian Institute of Marine Science (AIMS) is a Commonwealth authority and therefore presents its annual report in accordance with the provisions of section 9 of the CAC Act.

9 See also comments under 'timeliness' at paragraphs 1.17-1.18 and 'future developments' at paragraph 1.64.

10 See also comments under 'timeliness' at paragraphs 1.17-1.18.

11 See also comments under 'timeliness' at paragraphs 1.17-1.18.

13

Page 8

1.38 The committee considers that AIMS has met its reporting requirements under the Act and commends AIMS for including a compliance index in its report.

Australian Prudential Regulation Authority (APRA) - Annual Report 2007-08

1.39 As a result of the passage of the Governance Review Implementation (Treasury Portfolio Agencies) Act 2007 the Australian Prudential Regulation Authority (APRA) was brought under the FMA Act from 2007-08. APRA was therefore subject to the Requirements for Annual Reports for this report. Further requirements are specified in section 59 of the Australian Prudential Regulation Authority Act 1998.

1.40 The committee considers that APRA has largely met its reporting requirements under these Acts. The committee commends APRA for its inclusion of a 'statutory report' which systematically addressed its reporting requirements under a number of Acts and incorporated detailed information relating to parliamentary scrutiny.

1.41 However, in relation to timeliness the committee notes that APRA's 2007-08 annual report was tabled in the Senate on 10 November 2008 - ten days after the 31 October deadline specified in the Requirements for Annual Reports.

Australian Research Council (ARC) - Annual Report 20070812

1.42 The Australian Research Council (ARC) is a prescribed agency under the FMA Act. The ARC therefore presents its report in accordance with the Requirements for Annual Reports. Further requirements are specified in section 46 of the Australian Research Council Act 2001 (ARC Act).

1.43 The committee considers that the ARC has met its reporting requirements in relation to these Acts and commends the ARC for including a comprehensive compliance index which included annual reporting requirements stipulated in the ARC Act. The committee also commends the ARC for providing a comprehensive overview relating to external scrutiny, including comprehensive details relating to scrutiny by parliamentary committees.

Australian Statistics Advisory Council (ASAG) —Annual Report 2007-08 13

1,44 The Australian Statistics Advisory Council (ASAC) is required to present an

annual report in accordance with sections 24(2) and 24(3) of the Australian Bureau of Statistics Act 1975. The committee notes that there are only a few requirements in the Act relating to ASAC's annual reports, and considers the report to be satisfactory.

12 See also comments under 'timeliness' at paragraphs 1.17-1.18. 13 See also comments under 'timeliness' at paragraphs 1.17-1.18.

14

Page 9

Corniii on wealth Scientific and Industrial Research Organisation (CSIRO) - Annual Report 2007-08 1

1.45 The CSIRO is a Commonwealth authority and therefore presents its annual report in accordance with the provisions of section 9 of the CAC Act. Further requirements for its report are specified in section 51 of the Science and Industry Research Act 1949 (the SIR Act).

1.46 The committee considers that the CSIRO has largely met its reporting requirements under these Acts and commends the CSIRO for including a comprehensive compliance index which included annual reporting requirements stipulated in the SIR Act.

1.47 In relation to external scrutiny, the committee notes that the CSIRO appeared before the committee at Senate estimates hearings twice during 2007-08. The committee suggests that references to such appearances before Senate committees should be included in future reports as these appearances are an important aspect of external scrutiny of government agencies. Reports on the additional and budget estimates hearings are tabled in. the Senate each year by all Senate committees.

Department of Innovation, Industry, Science and Research (DIISR) - Annual Report 200708 1

1.48 The Department of Innovation, Industry, Science and Research (DIISR) is a Department of State under the Public Service Act 1999 and presents its annual report in accordance with the provisions of section 63 of that Act, the FMA Act and the Requirements for Annual Reports. The report also includes the annual report of IP Australia.

1.49 The committee considers that DIISR has largely met its reporting requirements under the above Acts and commends the Department for the inclusion of a comprehensive compliance index.

1.50 In relation to external scrutiny, the report provided useful details about relevant Australian National Audit Office audit reports and a report by the Commonwealth Ombudsman. However, the committee notes that DIISR appeared

before the committee at Senate estimates hearings twice during 2007-08. The committee suggests that references to such appearances before Senate committees should be included in future reports as these appearances are an important aspect of external scrutiny of government agencies. Reports on the additional and budget

estimates hearings are tabled in the Senate each year by all Senate committees.

14 See also comments under 'timeliness' at paragraphs 1.17-1.18. 15 See also comments under 'timeliness' at paragraphs 1.17-1.18.

15

Page JO

hF Investments Ply Limited, hF (CM) In vesttn en ts Ply Limited, hF Bio Ventures Ply Limited, hF Foundation Ply Limited and hF Neo Ply Limited (hF companies) - Annual Reports 200 70816

1.51 hF Investments Pty Limited, 111 7 (CM) Investments Pty Limited, hF BioVentures Pty Limited, 1ff Foundation Pty Limited and 1fF Neo Pty Limited (the hF companies) are Commonwealth companies and are therefore required to report under section 36 of the CAC Act.

1.52 The committee considers that the 111 7 companies have largely met these requirements. However it notes that the letter of transmittal to the Minister is dated 24 December 2008, well after the four-month deadline specified in section 36(1A) of the CAC Act.

Innovation Australia - Annual Report 2007-08'

1.53 On 27 September 2007 a new statutory body, Innovation Australia, was established to consolidate the administration and oversight of Commonwealth innovation and venture capital programs that were previously the responsibility of the Industry Research and Development Board (IRDB) and the Venture Capital Registration Board (VCRB). As a result, from the 2007-08 financial year Innovation Australia will report on the combined activities that were previously the responsibility of the IRDB and VCRB. Innovation Australia is required to present its annual report in accordance with section 46 of the Industry Research and Development Act 1986 (the IRD Act).

1.54 The committee considers that Innovation Australia has largely met its reporting requirements under the Act. However, the committee notes that the report was sent to the Minister on 29 January 2009 - well after the six-month deadline specified in section 34C(2) of the Acts Interpretation Act 1901 which applies where 'an Act requires a person to furnish a periodic report to a Minister but does not specify a period within which the report is to be so furnished'.

1.55 Furthermore, as the requirements in the IRD Act are quite detailed the committee suggests a specific compliance index should be included in future reports.

National Competition Council (NCC) - Annual Report 200 7-08"

1.56 The National Competition Council (NCC) is a prescribed agency under the FMA Act. The NCC therefore presents its report in accordance with the Requirements for Annual Reports. Further requirements for its report are specified in section 290 of the Trade Practices Act 1974 (the TP Act).

16 See also comments under 'timeliness' at paragraphs 1.17-1.18. 17 See also comments under 'timeliness' at paragraphs 1.17-1.18. 18 See also comments under 'timeliness' at paragraphs 1.17-1.18.

16

Page 11

1.57 The committee considers that the NCC has largely met its reporting requirements in relation to these Acts. The committee commends the NCC for including a compliance index against FMA Act reporting requirements, although suggests that the requirements in section 290 of the TP Act could also be included in the compliance index in future reports.

1.58 In relation to external scrutiny, the committee notes that the NCC appeared before the committee at the June 2008 Senate estimates hearings. The committee suggests that references to such appearances before Senate committees should be included in future reports as these appearances are an important aspect of external scrutiny of government agencies. Reports on the additional and budget estimates hearings are tabled in the Senate each year by all Senate committees.

Snowy Hydro Limited - Consolidated Financial Report 2007-08

1.59 Under section 55 the Snowy Hydro Corporatisation Act 1997 Snowy Hydro Limited is required to table its financial reports in Parliament. Given that there are no further requirements imposed on Snowy Hydro by the legislation, the committee considers the report to be satisfactory.

Tourism Australia - Annual Report 200 7-08'

1.60 Tourism Australia is a Commonwealth authority and therefore presents its annual report in accordance with the provisions of section 9 of the CAC Act. Further requirements for its report are specified in section 39 of the Tourism Australia Act 2004 (the TA Act).

1.61 The committee considers that Tourism Australia has largely met its reporting requirements under these Acts. However, the committee suggests that future reports could be improved by including a specific compliance index, particularly given the additional reporting requirements imposed on Tourism Australia in section 39 of the TA Act.

1.62 In relation to external scrutiny, the committee notes that Tourism Australia appeared before the committee at Senate estimates hearings twice during 2007-08. The committee suggests that references to such appearances before Senate committees should be included in future reports as these appearances are an important aspect of external scrutiny of government agencies. Reports on the additional and budget estimates hearings are tabled in the Senate each year by all Senate committees.

Future developments

1.63 As noted in the committee's Report on Annual Reports (No. 1 of 2009), the Governance Review Implementation (AASB and AUASB) Act 2008 was assented to on 30 June 2008. As a result, the Australian Accounting Standards Board and Auditing

19 See also comments under 'timeliness' at paragraphs 1.17-1.18.

17

Page 12

and Assurance Standards Board will be brought under the Financial Management and Accountability Act 1997 (FMA Act) from the 2008-09 financial year. Under the new arrangements, two agencies prescribed under the FMA Act will be established to support the operations of the AASB and AUASB. The agencies will be referred to as the 'Office of the Australian Accounting Standards Board' and the 'Office of the Auditing and Assurance Standards Board'. Under the previous arrangements the Financial Reporting Council was responsible for financial and administrative matters of the two boards in addition to providing strategic oversight. Under the new arrangements the FRC will still be responsible for providing strategic oversight, but will undertake only an advisory role with respect to financial and administrative matters. 2°

1.64 On 3 November 2005 representatives of the Governments of Australia and the United Kingdom signed the Supplementary Agreement between the Government of the Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland concerning the Anglo-Australian Optical Telescope at

Siding Spring, New South Wales, Australia. Under the Supplementary Agreement the United Kingdom Government will cease its involvement in the Anglo-Australian Observatory (AAO) from 1 July 2010. From this date the Anglo-Australian Telescope Board (AATB) will cease to exist and the Australian Government will become the sole owner of AATB assets. It is expected that legislation to establish new governance arrangements for the AAO will be introduced into Parliament by the end of 2009. 21

Senator Annette Hurley Chair

20 Explanatory Memorandum, Governance Review Implementation (AASB and AUASB) Bill 2008, p. 8.

21 Department of Innovation, Industry, Science and Research, Anglo -Australian Telescope Board (AATB)/Anglo-Australian Observatory (AA 0) fact sheet, 25 May 2009, http://www.innovation .gov.au/Section!AboutDllSRlFactSheets/Pages/Anglo- AustralianTel escopeBoard(AATB)Anglo-AustralianObservatory(AAO).aspx (accessed 24 August 2009).

18

Appendix 1

Abbreviations

AAO Anglo-Australian Observatory

AASB Australian Accounting Standards Board

AATA Act Anglo-Australian Telescope Agreement Act 1970

AATB Anglo-Australian Telescope Board

ABS Australian Bureau of Statistics

AIMS Australian Institute of Marine Science

APRA Australian Prudential Regulation Authority

ARC Australian Research Council

ARC Act Australian Research Council Act 2001

ASAC Australian Statistics Advisory Council

AUASB Auditing and Assurance Standards Board

CAC Act Commonwealth Authorities and Companies Act 1997

CSIRO Commonwealth Scientific and Industrial Research Organisation

DIISR Department of Innovation, Industry, Science and Research

DPMC Department of the Prime Minister and Cabinet

FMA Act Financial Management and Accountability Act 1997

FRC Financial Reporting Council

hF companies IIF Investments Pty Limited, 1ff (CM) Investments Pty Limited, 1ff BioVentures Pty Limited, hF Foundation Pty Limited and hF Neo Pty Limited

IRD Act Industry Research and Development Act 1986

IRDB Industry Research and Development Board

NCC National Competition Council

19

Page 14

SIR Act Science and Industry Research Act 1949

TP Act Trade Practices Act 1974

VCRB Venture Capital Registration Board

Appendix 2

Portfolio structure and outcomes for the Innovation, Industry, Science and Research Portfolio

Portfolio Overview

Portfolio Minister

Minister for lnnoatian, Industry, Science and Research Senator the Hon Ken Carr

Minister for Small Sness, Independent Contractors and the Service Eccicrey Minister Assisting the °nance Minister on Dereguiaicr, The Hon Or Craig Emerson MP

Department of Innovation, Industry, Science and Research Portfolio Secretary: Mr Mark I Paterson AD

Outcome 1: Enhanced opportunities for bjsiness innovation and gro*tn through national ieaderslp in converting knowledge and ideas into new processes. services. products and marketa ble devices: fosterng ousmess cooperation: Celivenrig aoice: assistance; and btssirtess. me35arern51t

and online serces.

Outcome 2: The generation, utifisation and awareness of science and research knowledge t1rOLI i lv&sfrrent in research, research training and infrastructure. science communication skill deeicpneit and coiabcadon with industry, urti raites arid research institutes domestically and

in:errat101a11y.

Agency - Commonwealth Scientific and Industrial Research Organisation (CSIRO) Chief Executive Officer: Dr Megan Clark

Oi.itccme: Innovative scienittic and technology solutions to national thafenges and cpportunies to benefit industry. the ervtrorimem arid the community. tfrcugn scientific researcri and capaullity cieieloomem, services and athice.

Agency - Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) Chief Executive Officer: Mr Russell Taylor

Outcome: Further understanding of Australian Inc G er-3Lt cultures, past and present through undertaking and publishing researth, and providing access to prim and audiovisual coliections.

Agency - IF Australia Director General: Mr Philip Noonan

Outcome: Increased innoation investment and trade i n Australia. ard by Australians overseas. through the aomirrstraticr of lbs regisirabe intellectual oroperly rights system, promoting public awareness and industry

enaanement. and advising government .

Agency - Australian Nuclear Science and Technology Organisation (AHSTO) Chief Executive Officer: Or Mi Paterson

Outcome: improved knowledge, innovative capacity and althcare through nuc1ea-based facites. research. :rairuilg. products, se -vices, and advice to Government, industry, the education sec:om and the Australian

poplaton.

Agency Australian Research Council (ARC) Chief Executive Officer: Prof. Margaret Sheil Outcome: (3roi of knowledge and innovat on inrough managing researci fiinding schemes, measJn-ig research

ecelIence and providing advice.

Agency - Australian Institute of Marine Science (AIMS) Chief Executive Officer: Or Ian Foiner Outcome: Growth of kncwecg-e to suoport protection and sustainacle development of Australias marine resources

throtigl" nricvatve marine science and technology.

1 Portfolio Budget Statements 2009-10, Innovation, Industry, Science and Research portfolio,

p-5.

21

Page 16

22

Appendix 3

Portfolio structure and outcomes for the Resources, Energy and Tourism Portfolio

Portfolio Overview Portfolio Minister Minister for Resources and Energy

Minister for Tourism The Hon Martin Ferguson AM MP

Department of Resources Energy and Tourism

Portfolio Secretary

Mr John Pierce

Outcome 1: The improved strength, competitiveness and

sustainability of the Resources. Energy and Tourism industries to

enhance Australia 's prosperity through implementation of

government policy and programs.

Geoscience Australia

Chief Executive Officer

Dr Neil Wilriams PSM

Outcome 1: Informed government, industry and

community decisions on the economic, social

and environmental management of the nation 's

natural resources through enab ling access to

geoscientitic and statt31 intormatiou

Natior al Offshore Petroleum Safety

Authority

Chief Executive Officer

Mr John Clegg

Outcome 1: An Australian oil and gas

industry that properly controls the health

and safety risks to the workforce and its

offshore petroleum operations.

Tourism Australia

Managing Director

Mr Geoff Buckley

Outcome 1: Increase demand for Australia

as a destination, strengthen the travel distribution system, and contribute to the

development of a sustainable tourism

industry through consumer marIetirig. trade

development and research activities

1 Portfolio Budget Statements 2009-10, Resources, Energy and Tourism portfolio. p. 5.

23

Page 18

24

Appendix 4

Portfolio structure and outcomes for the Treasury Portfolio'

Portfolio Overview Portfolio Minister - Treasurer The Hon Wayne Sn MP

Assistant Treasurer and Minister for Competition Policy and Consumer Affairs The Hon Chris Bowen MP Minister for Superannuation and Corporate Law Senator the Hon Nick Sherry

Department of the Treasury Secretary: Dr Ken Henry AC

Informed decisions on the development and implementation of policies to improve the wellbeing of the Australian people, including by achieving strong sustainable econocic qrCMth, through the provision of advice to government and the efficient administration of fe

Australian Bureau of Statistics Statistician: Mr Brian Pink

Intorrisd decisions, research and discussion within governments and the community by leading the collection, analysis and provision of high quality, objective and relevant statistical information

Australian Competition and Consumer Commission Chairperson' Mr Graeme Samuel

Lawful competition, consumer protection, and regulated national infrastructure markets and services through regulation, including enforcement, education, price monitoring and determining the terms of access to infrastructure services

Australian Office of Financial Management Chief Executive Officer Mr Neil Hyden

To enhance the Commonwealths capacity to manage its net debt portfolio, offering the prospect of savinos in debt servicing costs and an irnorovement in the net worth of the Commonwealth over time

Australian Prudential Regulation Authority Chairman: Dr john Laker

nh2nced public confidence in Australia's financial institutions through a franiev1ork of prudential req ulalion icfl balances financial safety and efficiency, competition. contestability and cornoetitive neutrality

Australian Securities and Investments Commission Chairman: Mr Tony D'Aloisio

Outcome 1: Improved confidence in financial market integrity and protection of investors and consumers through research, policy, education, compliance and deterrence that mitigates emerging risks Outcome 2 Streamlined and cost-effective interaction and access to information for business and the cubic, through registry. licensino and business facilitation services

Australian Taxation Office Commissioner: Mr Michael D'Ascenzo

Confidence in the administration of aspects of Australia's taxation and superannuation systems through helping people understand their rights and obligations, improving ease of compliance and access to benefits. ane managing non-compliance with the law

Commonwealth Grants Commission Secretary: Mr John Spasqevic

Informed Government decisions on fiscal equalisation between the States and Territories through advice and recommendations on the distribution of C-ST revenue and health care grants

Corporations and Markets Advisory Committee Convenor: Mr Richard St John

Informed decisions by Government on issues relating to corporations regulation and financial products, services and markets through independent and expert advice

1 Portfolio Budget Statements 2009-10, Treasury portfolio, pp 6-7.

25

Page 20

Inspector-General of Taxation Inspector-General: Mr All Noroozi

Improved tax administration throuoh community consuitation review. and indeoendent adv ice to Government

National Competition Council President: Mr David Crawford

Competition in markets that are dependent on access to nationally sgniflcant monopoloy infrastructure, through recommendations and decisions prornotirm the efficient ooeration of, use of and investment in infrastructure

Office of the Auditing and Assurance Standards Board Chawnian: Ms Merran Kelsall

The formulation and making of audiung and assurance standards that are used by auditors of Australian

entity financial reoorts or for other auditing and assurance enoagements

Office of the Australian Accounting Standards Board Acting Chairman: Mr Bruce Porter

The forniutation and making of accounting standards that are used by Australian entities ru prepare financial reports and enable users of tnese reports to make informed decisions

Productivity Commission Chairman: Mr Gary Banks AO

elI-infornied policy decision-making and public understanding on maters retatinzi to Australia 's productivity and living slaedards, based on independent and transoarent analysis from a community-wide peiective

Royal Australian Mint Chief Executive Officer: Ms Janine Murphy

The coinage needs of the Australian economy, collectors and foreign countries are met through the manufacture and sale of circulating coins, collector coins and other minted like products

26

Appendix

5

Innovation, Industry, Science and Research Portfolio

List of annual reports tabled in the Senate during the period 1 November 2008 to 30 April 2009

Reporting Body Legislation Date of Date sent Date Date tabled

transmittal to received

letter Minister by

Minister

Anglo-Australian Agreement undated 28/10/2008 28/10/2008 3/12/2008

Observatory (AAO) between the Government of the Commonwealth of Australia and the

Government of the United Kingdom of Great Britain and Northern Ireland

to provide for the Establishment and Operation of a Large Optical

Telescope (Canberra, 25 September 1969) - Article 8

Anglo-Australian Telescope Agreement Act 1970—

section 19

Australian Institute Commonwealth 22/9/2008 N/A N/A 11/11/2008

of Marine Science Authorities and (AIMS) Companies Act

1997— section 9

27

Page 22

Reporting Body Legislation Date of Date sent Date Date tabled

transmittal to received

letter Minister by

Minister

Australian Research Australian 8/10/2008 13/10/2008 13/10/2008 11/11/2008

Council (ARC) Research Council

Act 2001 - section 46

Financial Management and Accountability Act 1997

Commonwealth Science and 10/2008 N/A N/A 11/11/2008

Scientific and Industry Research

Industrial Research Act 1949 - Organisation section 51

(CSIRO)

Commonwealth Authorities and Companies Act 1997— section 9

Department of Public Service Act 24/9/2008 25/9/2008 25/9/2008 11/11/2008

Innovation, 1999 - section 63

Industry, Science and Research Financial

(DTTSR) Management and

Accountability Act 1997

hF Investments Pty Commonwealth 24/12/2008 19/2/2009 23/2/2009 10/3/2009

Limited, IIF (CM) Authorities and Investments Pty Companies Act

Limited, hF 1997— section 36

BioVentures Pty Limited, hF Foundation Pty Limited, hF Neo Pty Limited

Innovation Industry Research undated 29/1/2009 29/1/2009 10/3/2009

Australia and Development

Act 1986— section 46

28

Appendix 6

Resources, Energy and Tourism Portfolio

List of annual reports tabled in the Senate during the period 1 November 2008 to 30 April 2009

Reporting Body Legislation Date of Date sent Date Date tabled

transmittal to received

letter Minister by

Minister

Snowy Hydro Snowy Hydro N/A 3/11/2008 6/11/2008 2/12/2008

Limited Coiporatisation

Act 1997— section 55

Tourism Australia Tourism Australia 15/10/2008 15/10/2008 15/10/2008 11/11/2008

Act 2004— section 39

Commonwealth Authorities and Companies Act 1997— section 9

29

Page 26

Reporting Body Legislation Date of Date sent Date Date

transmittal to received tabled!

letter Minister by presented*

Minister

National Competition Trade Practices 29/8/2008 29/8/2008 1/9/2008 11/11/2008

Council (NCC) Act 1974 -

section 290

Financial Management and Accountability Act 1997

32

The Senate

Education, Employment

and Workplace Relations Legislation Committee

Annual reports (No. 2 of 2009)

September 2009

©

Commonwealth of Australia 2009

ISBN 978-1-74229-177-2

Printed by the Senate Printing Unit, Parliament House, Canberra.

111

Senate Standing Committee on Education,

Employment & Workplace Relations Legislation Committee

Members Senator Gavin Marshall, Chair Senator Gary Humphries, Deputy Chair Senator Catryna Bilyk Senator Michaelia Cash Senator Jacinta Collins Senator Sarah Hanson-Young

Victoria, ALP

Australian Capital Territory, LP Tasmania, ALP Western Australia, LP Victoria, ALP

South Australia, AG

Secretariat

Mr John Carter, Secretary Ms Lyn Beverley, Principal Research Officer Ms Jacqui Phillips, Senior Research Officer Ms Katie Meyers, Research/Estimates Officer Ms Lauren McDougall, Executive Assistant

PO Box 6100 Parliament House Canberra ACT 2600 Ph: 02 6277 3521 Fax: 02 6277 5706

E-mail: eewr.senaph.gov.au Internet: http://www.aph.gov.au/senate/committee/eet —ctte/index.htm

35

36

Table of Contents

Members iii

Chapter 1 1

Introduction 1

Terms of reference 1

Role of annual reports 2

Annual reports referred 2

Method of assessment 2

Timeliness in tabling annual reports 3

General comments on reports 3

Chapter 2 5

Review of annual reports 5

Workplace Ombudsman 5

Workplace Authority 6

Australian Fair Pay Commission Secretariat 8

Office of the Australian Building and Construction Commissioner 9

Comments made in the Senate 11

Bodies not presenting annual reports to the Senate 11

Appendix 1 13

Allocation of annual reports to the committee 13

Appendix 2 15

Compliance table of annual reports referred 15

Appendix 3 17

Administrative Arrangements Order for the Department of Education, Employment and Workplace Relations 17

37

38

Chapter 1

Introduction

1.1 This is the Senate Education, Employment and Workplace Relations Committee's (the committee) second report on annual reports for 2009. It provides an overview of the committee's examination of annual reports for the 2007-08 financial year.

Terms of reference

1.2 This report was prepared pursuant to Standing Order 25(20) relating to the consideration of annual reports by committees. The Standing Order states:

Annual reports of departments and agencies shall stand referred to the committees in accordance with an allocation of departments and agencies in a resolution of the Senate. Each committee shall:

(a) Examine each annual report referred to it and report to the Senate whether the report is apparently satisfactory.

(b) Consider in more detail, and report to the Senate on, each annual report which is not apparently satisfactory, and on the other annual reports which it selects for more detailed consideration.

(c) Investigate and report to the Senate on any lateness in the presentation of annual reports.

(d) In considering an annual report, take into account any relevant remarks about the report made in debate in the Senate.

(e) If the committee so determines, consider annual reports of departments and budget-related agencies in conjunction with examination of estimates.

(f) Report on annual reports tabled by 31 October each year by the tenth sitting day of the following year, and on annual reports tabled by 30 April each year by the tenth sitting day after 30 June of that year.

(g) Draw to the attention of the Senate any significant matters relating to the operations and performance of the bodies furnishing the annual reports.

(h) Report to the Senate each year whether there are any bodies which do not present annual reports to the Senate and which should present such reports.

I Amended 24 August 1994, 13 February 1997, 11 November 1998, 3 December 1998, 13 February 2002, 19 November 2002, 14 August 2006: with effect from 11 September 2006,

39

.

S

S

S

7

Role of annual reports

1.3 Annual reports place a great deal of information about government departments and agencies on the public record. Accordingly, the tabling of annual reports is an important element of accountability to Parliament, assisting in the effective examination of the performance of departments and agencies, and the administration of government programs.

Annual reports referred

1.4 In accordance with Senate Standing Order 25(20)(f) this report examines those annual reports tabled between 1 November 2008 and 30 April 2009. The committee examined the reports of the:

Departmental reports

Annual National Report of the Australian Vocational Education and Training System 2007

Prescribed agencies (under FMA Act)

Australian Fair Pay Commission Secretariat

Office of the Australian Building and Construction Commissioner

Office of the Workplace Ombudsman

Workplace Authority

Statutory authorities / bodies

Coal Mining Industry (Long Service Leave Funding) Corporation

Remuneration Tribunal

Skills Australia

Commonwealth companies under the CAC Act

Teaching Australia— Australian Institute for Teaching and School Leadership Ltd

Reports on the operations of Acts

Schools Assistance (Learning Together— Achievement Through Choice and Opportunity) Act 2004. Report

1.5 The legislation establishing the agencies reported on below, and the tabling dates of the annual reports are listed at Appendix 2. Details of all annual reports falling within the purview of the committee are set out at Appendix 1.

Method of assessment

1.6 Senate Standing Orders require the committee to examine the annual reports referred to it to determine whether they are timely and 'apparently satisfactory'. In

40

3

making this assessment, the committee considers whether the reports comply with the relevant requirements for the preparation of annual reports of departments and authorities.

1.7 The requirements are set down in the following instruments:

for portfolio departments: the Public Service Act 1999, sections 63(2) and 70(2), and the Requirements for Departmental Annual Report, for Departments, Executive Agencies and FMA Act Bodies, Department of Prime Minister and Cabinet, revised June 2008;

• for Commonwealth authorities and companies: the Commonwealth Authorities and Companies Act 1997, in particular sections 9, 36 and 48; and

• for non-statutory bodies: the guidelines are contained in the Government response to the Senate Standing Committee on Finance and Public Administration Report on Non-Statutory bodies, Senate Hansard, 8 December 1987, pp 2643-45

Timeliness in tabling annual reports

1.8 Standing Order 25(20)(c) requires the committee to report to the Senate on the late presentation of annual reports.

1.9 Annual reports must be tabled in Parliament by 31 October each year, except where an agency's own legislation specifies a timeframe for its annual report. 2 Those agencies reporting under the Commonwealth Authorities and Companies Act 1997 are required to provide their annual reports to the minister by the 15th day of the fourth month after the end of the financial year. Where the financial year ends on 30 June, this deadline translates to 15 October. 3

1.10 The committee recognises that some agencies are required to comply with other timeframes stipulated in their enabling legislation, such as 'as soon as practicable after the 30 June'. 4 Nonetheless, the committee reminds all agencies that the government considers it best practice for annual reports to be tabled by 31 October each year.

General comments on reports

1.11 The committee has found, under the terms of standing order 25(20), that all reports described here are apparently satisfactory. In making this assessment, the

2 Department of Prime Minister and Cabinet, Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2006, p. 2.

3 Commonwealth Authorities and Companies Act 1997, section 9

4 Australian Research Council Act 2001, section 46

41

4

committee considers aspects such as the timeliness of presentation and compliance with relevant reporting requirements.

1.12 However, the committee once again strongly encourages the use of compliance indexes in annual reports. Compliance indexes allow for easier readability of annual reports, and illustrate fulfilment of reporting requirements set out by the Department of the Prime Minister and Cabinet.

42

S

2

Chapter 2

Review of annual. reports

Workplace Ombudsman

2.1 The Workplace Ombudsman is an independent body tasked with protecting and enforcing the rights of employees and employers under workplace relations law. While litigation is an option available to the Ombudsman when investigating workplace relations breaches, voluntarily compliance is actively promoted and encouraged.

2.2 For the financial year ending June 2008, the Workplace Ombudsman recovered $36 612 481 for more than 27 000 employees. The Ombudsman's review states that ninety-five per cent of this amount was recovered from employers without resorting to litigation. As community awareness of the role of the Workplace Ombudsman increases, so to has the number of matters for investigation. During the reporting period, the office of the Workplace Ombudsman finalised more than 24 000 investigations from claims and 4 800 from targeted compliance activities. 1

2.3 In order to assess how effectively industry is complying with federal

workplace laws, the Workplace Ombudsman conducts four national campaigns a year, in addition to the two state-based campaigns carried out annually by all states. These campaigns typically consist of an industry-wide education phase followed by compliance audits of a targeted number of employers. Audits are also conducted as needed in response to local issues that may arise. The Workplace Ombudsman completed three national campaigns in the reporting period 2:

Fast Foods and Juice Bars Campaign

National Trolley Collecting Campaign

National Human Services Campaign

2.4 In addition, a fourth campaign -the National Road Transport Campaign- commenced in May 2008. The committee notes that the National Trolley Collecting campaign in which 83 employers were audited resulted in $41683 being recovered on behalf of 317 employees. The Campaign was undertaken due to a high number of

claims from the industry, particularly from those considered vulnerable workers' by

Workplace Ombudsman, Annual Report 2007-08, p. 2. Workplace Ombudsman, Annual Report 2007-08, pp 14-15.

43

6

the Ombudsman. More than $11 million was recovered on behalf of employees by the Workplace Ombudsman as a result of campaigns conducted during 2007-08.

2.5 The committee notes that the reporting period saw an increase in staff levels from 292 to 413 employees as at 30 June 2008, a growth of 41 per cent. The Workplace Ombudsman points to efficient recruitment practises as assisting this growth, with the recruitment practices of the agency being commended by the Australian Public Service Commission. 4

2.6 Expenditure on consultancies totalled $941 000 in 2007-08, an increase of $277 000 from the 2006-07 financial year. 5 A contract of $596 940 for Executive Leadership Training supplied by the Hay Group represented 63 per cent of total consultancy expenditure for the reporting period. 6

2.7 The committee considers that the Workplace Ombudsman report is apparently satisfactory in meeting the reporting requirements under the Financial Management and Accountability Act 1997.

Workplace Authority

2.8 The 2007-08 annual report of the Workplace Authority is the agency's first annual report. The Workplace Authority took on many of the staff and functions of the Office of the Employment Advocate, and also some staff and tasks of DEEWR. The Director's Review notes that a major challenge to the newly created agency was the administration of the fairness test. Although the fairness test applied to agreements lodged on or after 7 May 2007, the legislation did not come into force until 1 July 2007. The retrospective nature of the legislation resulted in a backlog of more than

54 000 agreements that could not be assessed until the change in the law came into effect. The report notes that the short lead time also meant that employers, employees and their representative organisations did not fully understand their new legal obligations, which increased the time taken to finalise agreements.

2.9 Eight months after the creation of the Workplace Authority, new amendments to workplace relations law were introduced. The Individual Transitional Employment Agreement (ITEA) and the No-disadvantage Test (NDT) were created, leading to the reduction in the agency's budget, as the Workplace Authority was no longer required to promote and assist in the making of Australian Workplace Agreements (AWAs).

Workplace Ombudsman, Annual Report 2007-08, pp 16-17. Australian Public Service Commission, Better, Faster- Streamlining Recruitment in the APS, 2007, p. 14. Workplace Ombudsman, Annual Report 2006-07, p. 105. 6 Workplace Ombudsman, Annual Report 2007-08, p. 106.

44

7

The new legislation resulted in the agency establishing a new policy guide, business rules, systems and staff training on the no-disadvantage test. During the reporting period, the Workplace Infoline dealt with almost one million enquiries, many of which were from employees seeking information regarding workplace entitlements, 7

2.10 The Workplace Authority Annual Report 2007-08 lists the number of workplace agreements lodged, and the number of employees covered by agreements between when the Transition to Forward with Fairness Act 2008 came into effect on 28 March 2008 and 30 June 2008. By the end of the reporting period, just over 93 000 employees were covered by workplace agreements made under the new legislation, 70 per cent of whom were covered by a type of collective agreement. The committee notes that the majority of employees covered by these agreements are employed in NSW, Victoria, Western Australia and Queensland. Furthermore, results show that over half of all the ITEAs and collective agreements were lodged by a small number of industries, including mining, accommodation and food services, retail trade, construction and manufacturing. 8

2.11 In addition to staff transferred from the Office of the Employment Advocate (OEA), the Workplace Authority recruited a further 250 employees to carry out fairness test assessments. A large proportion of these employees were temporarily contracted through employment agencies while the Workplace Authority carried out an assessment into the agency's staffing requirements and subsequently introduced an appropriate recruitment process. The amendments to the Workplace Relations Act

1996 during the reporting year changed some functions of the Workplace Authority, resulting in the closure of offices in Hobart, Adelaide, Darwin and Townsville. 9

2.12 During the reporting period, the Workplace Authority was involved in two actions on behalf of employees, under the Act (as it was prior to 27 March 2006) in the Federal Court. Both cases were originally commenced by the Office of the Employment Advocate. One of the cases before the court is an action relating to alleged breaches by the Commonwealth of freedom of association provisions of the Act, concerning a national day of protest. The Workplace Authority was also involved

in a matter before both the Federal Magistrates court and the Australian Industrial Relations Commission during 2007-08, relating to an alleged unfair dismissal. 10

2.13 The committee considers that the Workplace Authority report is apparently satisfactory in meeting the reporting requirements under the Financial Management and Accountability Act 1997.

The Workplace Authority, Annual Report 2007-08, pp 1-2. The Workplace Authority, Annual Report 2007 - 08, p. 75. The Workplace Authority, Annual Report 2007-08, p. 8. ° The Workplace Authority, Annual Report 2007-08, p. 72.

45

8

Australian Fair Pay Commission Secretariat

2.14 The Australian Fair Pay Commission Secretariat (AFPC) Annual Report focuses on the work undertaken by the Secretariat in assisting the Australian Fair Pay Commission conduct wage reviews and deliver wage-setting decisions. The Director's review notes the work performed by the Secretariat during the Commission's third minimum wage review, with research, consultation and submissions continuing to form the bulk of the Secretariat workload. The 2007-08 Budget appropriated an additional $5 million over three years to the Secretariat to create and publish new Australian Pay and Classification Scales."

2.15 During the 2007-08 financial year, the AFPC Secretariat implemented consultation processes in relation to wage reviews, which enabled the Commission to hear a range of stakeholder organisations. Additional consultations on specific disability and research matters were undertaken by the Disability Roundtable and the Research Advisory Committee, and a further 24 targeted focus group consultations occurred during the year. The AFPC received 96 submissions to the 2008 Minimum Wage Review. 12

2.16 The committee notes that the Secretariat provide the same information regarding ecological development and environmental performance in the 2007-08 annual report as it does for the previous financial year. The Annual Report 2007-08 comments that the Secretariat has worked with building management to implement measures that would minimise the Secretariat's impact on the environment. However, it is not explained what these measures entail. Under section 516A of the Environment Protection and Biodiversiiy Conservation Act 1999 (the EPBC Act), the environmental reporting requirements of agencies, authorities and departments are outlined. Paragraph 516(6)(d) requires that annual reports identify any measures taken to minimise the impact of activities on the environment.' 3 The committee encourages the AFPC Secretariat to include more detailed information in the final report of the agency for the 2008-09 financial year, and in subsequent annual reports of Fair Work Australia. 14

2.17 The committee considers that the Australian Fair Pay Commission Secretariat

report is apparently satisfactory in meeting the reporting requirements under the Financial Management and Accountability Act 1997.

Australian Fair Pay Commission Secretariat, Annual Report 2007-08, p. 3. 12 Australian Fair Pay Commission Secretariat, Annual Report 2007-08, p. 11. 13 Environment Protection and Biodiversity Act 1999, para. 5 16A(6)(d). 14 Australian Fair Pay Commission Secretariat, Annual Report 2007-08, p. 19.

46

9

Office of the Australian Building and Construction Commissioner

2.18 The Commissioner's review highlighted the 'significant impact' that the ABCC has had on workplace relations, claiming that the number of industrial disputes fell to the lowest levels recorded during the reporting period. The office was involved in around 50 continuing investigations at the end of the 2007-08 financial year 15 in an industry of some 937 300 employees. ' 6

2.19 The ABCC Annual Report 2007-08 cites results of the modelling conducted

by Econtech, which indicates the contribution the office has made to productivity in the building industry. 17

2.20 During the reporting period, ABCC inspectors conducted a total of 1714 site visits, 114 less than in 2006-07. Of the 1714 site visits for 2007-08, 131 were part of an investigation. The committee notes a 10 per cent increase in the number of site visits relating to right of entry compliance conducted for 2007-08. 18 For the reporting period, the ABCC conducted 225 investigations into suspected contraventions of workplace laws, slightly more than for 2006_07 .19 The majority of investigations occurred in Victoria and Western Australia, and trade unions were the subject of 67 per cent of investigations. 20

2.21 As noted in the committee's Report on Annual Reports (no. 2 of 2008), the

ABCC developed Code site visit program in 2006 in order to promote awareness of the Code on projects and to provide advice on compliance. During the 2007-08 financial year, 597 Code site visits occurred; 388 more than in 2006-07. The reporting period saw an increase in the number of projects to which the code applies, reflecting the 2003 decision of the government to expand the application of the code to construction projects not directly funded by the Commonwealth .21

2.22 The ABCC client satisfaction survey included in their Annual Report 2007-08 reported that overall client satisfaction with the service provided by the ABCC was high. A sample group of 128 clients who had been in contact with the agency between 1 August 2007 and 20 November 2007 was chosen as potential respondents to the

15 Office of the Australian Building and Construction Commissioner, Annual Report 2007-08, p. 8 16 Australian Bureau of Statistics, A Statistical Overview of the Construction Industry, May Quarter 2007, available at: http://www.abs.gov.auIAUSSTATS/abs(2i.flSf/PreViOUSPrOdUCtS/ 1350.OFeature%2OArtic1e 1 Au

g%202008?opendocument&tabnameSum1narY&PFOdflO 13 50.O&issue=Aug%202008&num &view= 17 Ibid., p. 16.

18 Ibid., p. 25.

19 Ibid., p. 24.

20 Ibid., p. 28.

21 Ibid., pp 32-34.

47

10

survey. The ABCC conducted the survey in June 2008 using the 36 clients from the sample group who agreed to participate in the study. 22

2.23 The committee notes that the survey was the subject of interest during the committee's Additional Estimates hearings in February 2009. Senator Cameron questioned the 'technical strength' of the survey, and asked the ABC Commissioner how many union officials were included in the study; Mr Lloyd undertook to provide this information on notice. 23 The ABCC later informed the committee that one union official was involved in the survey. 24 The committee recognises that there is a possibility that other union officials may not have agreed to partake in the survey, but some committee members point out that the lack of union representation limits the ability of the agency to effectively gauge client satisfaction across all spectrums of the building and construction industry.

2.24 The Annual Report 2007-08 includes information on industry forums held by the agency each year. The ABCC reports that leading representatives from industry associations, unions and DEEWR are invited to attend these forums to 'express their views on and discuss major workplace relations issues in the building and construction industry' 25. The committee notes that this too was the subject of questioning in Additional Estimates, when Senator Cameron inquired as to why the ABCC do not indicate in their annual report that unions have declined to attend the industry forums. The ABC Commissioner took this question on notice, and later provided the committee with the following answer:

Union representatives attended one of the two industry forums convened during 2007-08. The attendance of invitees at the forums was not considered material for inclusion in the Annual Report. 26

2.25 The committee recommends that the ABCC identify forum participants in its

next annual report to enable a more thorough assessment of its engagement with the entire building and construction industry.

2.26 Overall the committee considers the ABCC report to be apparently satisfactory in meeting the reporting requirements under the Financial Management and Accountability Act 1997.

22 Ibid., p. 27. 23 Committee Hansard, 26 February 2009, pp 43- 44. 24 Additional Estimates 2008 - 09, Question on Notice EEWR1161 —

09, available at:

http://www.aph.gov.aulSenate/committee/eet ctte/estimates/add0809/index.htm 25 Office of the Australian Building and Construction Commissioner, Annual Report 2007 - 08, p. 16. 26 Additional Estimates 2008-09, Question on Notice EEWRI 15609, available at: http://www.aph.gov.aulSenate/committee/eet ctte/estimates/add 0809/index.htrn

48

11

Comments made in the Senate

2.27 The committee is obliged, under Senate Standing Order 25(20)(d), to consider any remarks made about these reports in the Senate. The committee is satisfied that there were no comments to consider for these reports.

Bodies not presenting annual reports to the Senate

2.28 The committee is required to report to the Senate each year on whether there are any bodies not presenting annual reports to the Senate which should. The committee is satisfied that there are no such bodies.

Senator Gavin Marshall

Chair

49

50

Appendix 1

Allocation of annual reports to the committee Education, Employment and Workplace Relations a Department of Education, Employment and Workplace Relations Education

• Australian Curriculum, Assessment and Reporting Authority a Australian vocational and further education and training system

• Indigenous education and training—National report to Parliament

• Australian National University

• Australian Learning and Teaching Council [formerly the Carrick Institute] • Department of Education, Employment and Workplace Relations

• Higher Education Report [calendar year]

• Schools Assistance (Learning Together—Achievement Through Choice and Opportunity) Act 2004—Report on financial assistance granted to each state in respect of .

• States Grants (Primary and Secondary Education Assistance) Act 2000— Financial assistance granted to States in respect of

• Teaching Australia: Australian Institute for Teaching and School Leadership Limited

Employment and Workplace Relations a Air Passenger Ticket Levy (Collection) Act 2001 • Australian Building and Construction Commissioner a Australian Fair Pay Commission and Australian Fair Pay Commission

Secretariat

• Australian Industrial Relations Commission and Australian Industrial Registry a Coal Mining Industry (Long Service Leave Funding) Corporation

• Comcare Australia

• Defence Force Remuneration Tribunal'

• Department of Education, Employment and Workplace Relations— Agreement making under the Workplace Relations Act 1996

Forwarded to the Foreign Affairs, Defence and Trade Committee also.

51

14

• Remuneration Tribunal

• Safety, Rehabilitation and Compensation Commission

• Seafarers Safety, Rehabilitation and Compensation Authority (Seacare)

• Skills Australia

• Workplace Authority

• Workplace Ombudsman

52

Appendix 2

Compliance table of annual reports referred

List of annual reports referred by the Senate to the committee during the period 1 November 2008 to 30 April 2009 Education, Employment and Workplace Relations portfolio

Letter of

Received by (Presented*)

Body/Report Enabling legislation and timeliness Transmittal

Minister Tabled

Date

Coal Mining Industry (Long Service Leave Coal Mining industry (Long Service 9/09/2008 - (7/11/2008)

Funding) Corporation Lea vefunding) Act 1996 and 10/11/2008

Commonwealth Authorities and Companies Act 1997

Teaching Australia— Australian Institute for Section 36 of the Commonwealth 1/10/2008 9/10/2008 11/11/2008

Teaching and School Leadership Authorities and Companies Act /997

Workplace Authority Section 163B of the Workplace October 12/09/2008 11/11/2008

relations Act 1996 and Section 70 of the Public Service Act 1999.

Australian Fair Pay Commission Section 28 of Workplace Relations Act 23/10/2008 9/10/2008 12/11/2008

1996

Australian Fair Pay Commission Secretariat Section 70 of the Public Service Act 23/10/2008 9/10/2008 12/11/2008

1999 and section 49 of the Workplace Relations Act

Schools Assistance (Learning Together- Schools Assistance (Learning - 31/10/2008 26/11/2008

Achievement Through Choice and Opportunity) Act Together—Achievement Through 2004 Choice and Opportunity) Act 2004

Report on financial assistance granted to each State in respect of 2007

*Reports presented out of session

Skills Australia Section 27 of the Skills Australia Act October 19/10/2008 2/12/2008

2008

Remuneration Tribunal Section 12AA(2) of the Remuneration - 29/09/2008 3/12/2008

Tribunal Act 1973

Annual National Report of the Australian SkillingAustraliav Workforce Act 2005 - - (12/12/2008)

Vocational Education and Training System 2007 3/02/2009

Workplace Ombudsman Section 70 of the Public Service Act 3/11/2008 - 3/02/2009

'999

Australian Building and Construction Commissioner Subsection 14(1) of the Building and 19/09/2008 - (22/12/2008)

Construction Industry Improvement Act 3/02/2009

2005

CA

S

a

a

S

a

S

Appendix 3

Administrative Arrangements Order for the Department of Education, Employment and Workplace Relations [Extract from the Administrative Arrangements Order, made on 25 January 20081

PART 6 THE DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Matters dealt with by the Department Education policy and programs including schools, vocational, higher education and Indigenous education, but excluding migrant adult education

Education and training transitions policy and programs

Science awareness programs in schools

Training, including apprenticeships and training services

Policy, co-ordination and support for education exports and services

Income support policies and programs for students and apprentices

Employment policy, including employment services

Job Network

• Labour market and income support policies and programs for people of working age

• Workplace relations policy development, advocacy and implementation

• Promotion of flexible workplace relations policies and practices

• Co-ordination of labour market research

• Australian government employment workplace relations policy, including administration of the framework for agreement making and remuneration and conditions

• Occupational health and safety, rehabilitation and compensation

• Equal employment opportunity

• Work and family programs

S Services to help people with disabilities obtain employment, other than supported employment

S Youth affairs and programs

• Early childhood and childcare policy and programs

55

56

The Senate

Standing Committee on

Environment, Communications and the Arts

Annual reports (No. 2 of 2009)

September 2009

57

© Commonwealth of Australia 2009

ISBN 978-1-74229-178-9

This document was printed by the Senate Printing Unit, Parliament House, Canberra

58

Legislation Committee Membership

Members Senator Anne McEwen (ALP, SA) (Chair) Senator Simon Birmingham (LP, SA) (Deputy Chair) Senator Scott Ludlam (AG, WA) Senator Kate Lundy (ALP, ACT) Senator the Hon Judith Troeth (LP, VIC) Senator Dana Wortley (ALP, SA)

Committee Secretariat Dr Ian Holland, Secretary Ms Jacquie Hawkins, Research Officer

Committee Address Environment, Communications and the Arts Legislation Committee P0 Box 6100 Parliament House Canberra ACT 2600

Tel: 02 6277 3526

Fax: 02 6277 5818

Email: eca.senaph.gov.au

Internet: http://www.aph.gov.au/senate/committee/eca —ctte/index.htm

iv

60

Contents

Committee Membership

Report to the Senate 1

Introduction 1

Annual reporting requirements 1

Purpose of annual reports 2

Reports referred to the Committee 3

Remarks made in the Senate 4

Timeliness

Comments on annual reports 5

Bodies not presenting annual reports to the Senate 7

Summary 7

Appendix 1 - Annual reports referred to the Committee 9

61

vi

62

Report to the Senate

Introduction 1.1 By virtue of the operations of Senate Standing Order 2 5(20) and a Senate order of 12 February 2008,1 the Senate refers to this committee for examination and report the annual reports of departments and agencies of the following two portfolios:

• Broadband, Communications and the Digital Economy; and

• Environment, Water, Heritage and the Arts.

1.2 Standing Order 25(20) requires that the committee shall:

(a) Examine each annual report referred to it and report to the Senate whether the report is apparently satisfactory.

(b) Consider in more detail, and report to the Senate on, each annual report which is not apparently satisfactory, and on the other annual reports which it selects for more detailed consideration.

(c) Investigate and report to the Senate on any lateness in the presentation of annual reports.

(d) In considering an annual report, take into account any relevant remarks about the report made in debate in the Senate.

(e) If the committee so determines, consider annual reports of departments and budget-related agencies in conjunction with examination of estimates.

(f) Report on annual reports tabled by 31 October each year by the tenth sitting day of the following year, and on annual reports tabled by 30 April each year by the tenth sitting day after 30 June of that year.

(g) Draw to the attention of the Senate any significant matters relating to the operations and performance of the bodies furnishing the annual reports.

(h) Report to the Senate each year whether there are any bodies which do not present annual reports to the Senate and which should present such reports.

1,3 This report deals with reports tabled in the Senate during the period from 1 November 2008 to 30 April 2009 as required by standing order 25(21)(f).

Annual reporting requirements

1.4 On 18 June 2008 the Joint Committee of Public Accounts and Audit (JCPAA) agreed to revised Requirements for Departmental Annual Reports put forward by the Department of Prime Minister and Cabinet. The Requirements apply to annual reports

1 Journals of the Senate, No. 1, 12 February 2008, pp 10-11,

63

2

for departments of state pursuant to subsection 63(2) and executive agencies pursuant to subsection 70(2) of the Public Service Act 1999. They also apply to prescribed agencies under section 5 of the Financial Management and Accountability Act 1997.

1.5 Under the Requirements, annual reports of departments and executive and prescribed agencies must be tabled by 31 October. If a department is unable to meet this deadline, an extension of time to report can be sought under the provisions of subsections 34C (4)-(7) of the Acts Interpretation Act 1901. These provisions provide for the secretary to advise the responsible minister of the reasons for the slippage. The responsible minister is to table this explanation in the Parliament on the next available sitting day. 2

1.6 Under section 48 of the Commonwealth Authorities and Companies Act 1997 (the CAC Act), the Minister for Finance outlines the annual reporting requirements for Commonwealth authorities and companies in the Commonwealth Authorities and Companies (Report of Operations) Orders 2002. Section 9 of the CAC Act applies to Commonwealth authorities and specifies the deadline for the presentation of an annual report to the responsible Minister. Section 36 of the CAC Act outlines the reporting obligations of Commonwealth companies.

1.7 Some statutory authorities are required to follow the departmental guidelines if their head has the powers of a secretary as defined under the Public Service Act 1999.

1.8 Requirements for the annual reports of non-statutory bodies are set out in the Government Response to recommendations of the then Senate Standing Committee on Finance and Government Operations in its report entitled, Reporting Requirements for the Annual Reports of Non-Statutory Bodies. The response was incorporated into the

Senate Hansard of 8 December 1987.

Purpose of annual reports

1.9 As stated in the Requirements, the primary purpose of annual reports is accountability, in particular to the Parliament. They inform the Parliament, other stakeholders, education and research institutions, the media and the general public about departments' performance in providing services. They are a key reference as well as an internal management document and form part of the historical record. '

2 Department of the Prime Minister and Cabinet, Requirements for Annual Reports for

Departments, Executive Agencies and FMA Act Bodies, Canberra, 18 June 2008, P. 2. 3 Official Senate Hansard, 8 December 1987, pp 2643-45. 4 Department of the Prime Minister and Cabinet, Requirements forAnnual Reports for Departments, Executive Agencies and FMA Act Bodies, 18 June 2008, p. 3.

64

3

Reports referred to the Committee

1.10 This report reviews six reports from agencies and the department within the Broadband, Communications and the Digital Economy portfolio, and five reports of agencies and the department within the Environment, Water, Heritage and the Arts portfolio.

1.11 The following reports have been referred to the committee: Prescribed agency Great Barrier Reef Marine Park Authority - Annual Report 2007-2008

Statutory authorities National Environment Protection Council - Annual Report 2007-2008

Commonwealth companies Teistra Sale Company Limited - Annual Report for the period ended 30 June 2008

Reports on the operation ofActs/Agreements Australian Broadcasting Corporation Equity and Diversity Annual Report 1 September 2007 to 31 August 2008

Australian Communications and Media Authority Communications Report 2007-2008

Australian Competition & Consumer Commission Teistra's compliance with the price control arrangements 1 July 2007 to 30 June 2008

Australian Postal Corporation (Australia Post) Equal employment opportunity program - Report for 2007-2008

Department of Broadband, Communications and the Digital Economy Funding of Research and Consumer Representation in relation to Telecommunications —Annual Report 2007-2008

Department of the Environment, Water, Heritage and the Arts The National and Commonwealth Heritage Lists - 1 January 2004 to 30 June 2008 Energy use in the Australian Government's Operations - Report for 2006-2007

Murray-Darling Basin Commission - Annual Report 2007-2008

1.12 Appendix 1 provides an alphabetical record in more detail, including:

the basis under which the organisation operates, for example, department or statutory authority;

65

4

• dates indicating the progressive stages in presentation of the annual reports; and

• the date each report was tabled in, or deemed to be presented to, the Senate.

Remarks made in the Senate

1.13 As required under the terms of Standing Order 25(20)(d), the committee notes that one of the annual reports dealt with in this report was the subject of comment in the Senate:

Teistra Sale Company Limited: Senator Macdonald. 5

1.14 The committee notes that comments were made in the Chamber in relation to an annual report reviewed in its Report No. 1 of 2009 which was tabled on 12 March 2009:

Bureau of Meteorology Annual Report: Senators Barnett, Macdonald and Bob Brown. 6

Timeliness

1.15 As noted above, the annual report requirements state that if a department is unable to meet the tabling deadline, an extension of time to report can be sought under the provisions of subsections 34C (4)-(7) of the Acts Interpretation Act 1901. These provisions provide for the secretary to advise the responsible minister of the reasons for the slippage. The responsible minister is to table this explanation in the Parliament on the next available sitting day.

1.16 All reports reviewed in this report were tabled after the 31 October deadline. The terms of Section 9 of the CAC Act, require that annual reports be given to the responsible Minister by 15 October. As a matter of policy, they also apply to prescribed agencies under section 5 of the Financial Management and Accountability Act 1997 (FMA Act). Under Section 36 of the CAC Act, the content of annual reports

for Commonwealth companies is based on reporting requirements under the Corporation Act 2001. 8

1.17 The committee notes that the annual report of the Great Barrier Reef Marine

Park Authority did not meet all the reporting deadlines. The report was tabled in the

5 Senate Hansard, 12 March 2009, pp 68-69. 6 Senate Hansard, 12 March 2009, pp 64-66. 7 Department of the Prime Minister and Cabinet, Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, Canberra, 13 June 2008, p. 2. 8 Department of the Prime Minister and Cabinet, Requirements for Annual Reports for

Departments, Executive Agencies and FMA Act Bodies, Canberra, 13 June 2008, p. 2.

66

5

House of Representatives on 13 November 2008 and in the Senate on 25 November 2008, thereby missing the tabling deadline of 31 October.

1.18 However the committee does note that the report was submitted to the Minister on 23 September 2008 and received by the Minister on 24 September, before the deadline of 15 October noted above. 9

1.19 In previous reports on annual reports, the committee has acknowledged advice from the National Environment Council that its enabling legislation requires it to include reports by each member of the Council (ie Commonwealth, State and Territory ministers) in its annual report which leads to its report being tabled after 31 October each year. 10

1.20 The Requirements for Annual Reports states that 'where an agency's own legislation provides a timeframe for its annual report ... that timeframe applies. However, it remains the Government's policy that all annual reports should be tabled by 31 October'. 1' The committee encourages agencies to table annual reports in a timely manner.

Comments on annual reports

1.21 The committee comments on several of the annual reports referred to it:

Great Barrier Reef Marine Park Authority

1.22 As a result of a review conducted during 2006 of the Great Barrier Reef Marine Park Act 1975, a number of legislative amendments were made including to change the Authority from reporting under the Commonwealth Authorities and Companies Act 1997 to reporting as a prescribed agency under the Financial

Management and Accountability Act 1997.

1.23 The amendments also established a requirement for a periodic Great Barrier Reef Outlook Report and statutory provisions directed at ensuring that:

the development of zoning plans for the Marine Park is done in a transparent and accountable manner, is based on robust scientific and socio economic information and appropriately involves communities, users of the Marine Park and other interested persons and organisations.

12

9 The Senate, Order ofBusiness, 2008/46, Tuesday, 25 November 2008, p. 5.

10 See Environment, Communications, Information Technology and the Arts Legislation Committee, Annual reports (No. 2 of 2007), September 2007; 1 (No. 2 of 2006), September 2006; Annual reports (No. 2 of 2005), September 2005; Annual reports (No. 2 of 2004), September 2004; Annual reports (No. 2 of 2003), September 2003, p. 4, and Annual reports (No. 2 of 2002), September 2002, pp 28-29. 11 Department of the Prune Minister and Cabinet, Requirements for Annual Reports for

Departments, Executive Agencies and FMA Act Bodies, Canberra, 13 June 2007, p. 2. 12 Great Barrier Reef Marine Park Authority Annual Report 2007-2008, pp 8-9.

67

6

1.24 The annual report notes that further amendments, introduced into Parliament in June 2008, are expected to take effect during the 2008-2009 financial year. 13

1.25 The Chairman's Introduction notes the ongoing preparation of the first Great Barrier Reef Outlook Report which will include:

assessments of biodiversity; ecosystem health, ecosystem resilience; commercial and non-commercial use; factors influencing environments, economic and social values; management effectiveness and risks to the ecosystem, together with an overall assessment of the longer-term outlook for the Reef ecosystem. 14

The report is due to be provided to the Minister by 30 June 2009.

1.26 The report notes that two more Traditional Use of Marine Resources Agreements (TUMRAs) were accredited during the year with the Mamu and Wuthathi people, bringing the total to four TUMRAs now in place. The two new agreements cover the next five years.

1.27 TUMRAs form the basis for collaboration between the Authority, the Queensland Government and Traditional Owner groups on sea country use, to achieve sustainable use of marine resources while maintaining strong cultural and spiritual connections to the Reef. 15

Murray-Darling Basin Commission

1.28 This reporting year marks the 20th anniversary of the Commission and also its last, as the Commission has now been subsumed into the new Murray-Darling Basin Authority.

1.29 Among the many activities noted in the report has been planning to ensure a smooth transition of functions and staff to the new Authority. 16

1.30 The report notes the development of further Caps on surface water diversions including the creation for the first time of a Cap for the ACT, set for 40 GL with a provision for population growth and progress being made on the setting of Caps for the Border Rivers and Condamine-Balonne.' 7

1.31 Other programs being undertaken include:

13 Great Barrier Reef Marine Park Authority Annual Report 2007-2008, p. 2.

14 Great Barrier Reef Marine Park Authority Annual Report 2007-2008, p. 2.

15 Great Barrier Reef Marine Park Authority Annual Report 2007-2008, p. 3. 16 Murray-Darling Basin Commission Annual Report 2007-2008, p. 9. 17 Murray-Darling Basin Commission Annual Report 2007-2008, p. 5.

68

7

• delivering environmental water to high-priority sites along the Murray, particularly to replenish critical drought refuges and protect threatened species;

• proposed program of long-term maintenance and improvement works on Hume and Dartmouth dams and Lake Victoria, including spillway capacity upgrades, strengthening a retaining wall and works on filters and drainage;

• launch of the mid-term report of the Sustainable Rivers Audit - a first-ever Basin-wide 'report card' on the ecological health of 23 river valleys;

• Sea to Hume program, which aims to build specially designed fishways giving native fish free access to the entire length of the Murray from the sea to the Hume Dam; and

S controlling salinity through the Basin Salinity Management Strategy. 18

The National and Commonwealth Heritage Lists

1.32 The committee notes the tabling of the first review and report on the National and Commonwealth Heritage Lists, covering the period from 1 January 2004 to 30 June 2008.

1.33 The Environment Protection and Biodiversity Conservation Act 1999 requires the Minister to ensure that at least once in every five year period after the implementation of the National and Commonwealth Heritage Lists, the lists are reviewed and a report of the review is tabled in each House of the Parliament. 19 The Act also specifies seven topics which must be covered by the review. 20

Bodies not presenting annual reports to the Senate

1.34 Standing Order 25(21)(h) requires the committee to report to the Senate each year whether there are any bodies which do not present annual reports to the Senate which should present such reports. The committee is aware of no such body.

Summary

1.35 The terms of Standing Order 25(20)(a) require the committee to report to the Senate on whether annual reports are apparently satisfactory. In making this assessment, the committee considers such aspects as timeliness of presentation and compliance with relevant reporting requirements.

18 Murray-Darling Basin Commission Annual Report 2007-2008, pp 5-8. 19 Department of the Environment, Water, Heritage and the Arts, The National and Commonwealth Heritage Lists, 1 January 2004 - 30 June 2008, p. 5. 20 Department of the Environment, Water, Heritage and the Arts, The National and

Commonwealth Heritage Lists, 1 January 2004 - 30 June 2008, p. 5.

69

8

1.36 The committee finds that the annual reports referred to it have provided an

appropriately comprehensive description of the activities of the reporting bodies and were of a commendably high standard of presentation. They generally met the requirements of the various guidelines that apply to them and were timely in their presentation to the Parliament, except where noted above.

1.37 Accordingly, the committee is pleased to report its finding that the annual reports referred to it for examination and tabled in the period under examination were apparently satisfactory.

Senator Anne McEwen Chair

70

APPENDIX 1

Annual reports referred to the Standing Committee on Environment, Communications and the Arts between 1 November 2008 and 30 April 2009

Broadband, Communications and the Digital Economy portfolio

21 Statutory Authority includes statutory office-holders. 22 Dates shown are: A The date shown on a letter of transmittal printed with the annual report (if any) B Date submitted to the Minister, as recorded in the Senate's Order of Business (if any)

C Date received by the Minister, as recorded in the Senate's Order of Business (if any) 23 The date in parenthesis shows the date that the report was presented out of session to the President / Deputy President / Temporary Chairman of Committees.

Name Type'' Dates22 Tabled"

Australian Broadcasting Corporation Report on the A. - 04/02/09

Equity and Diversity Annual Report operation of an B. 26/11/08

1 September 2007 to 31 August 2008 Act C. 26/11/08

Australian Communications and Media Report on the A. - 03/02/09

Authority operation of an B. - (Received

Communications Report 2007-08 Act C. - 05/12/08)

Australian Competition & Consumer Report under A. - 10/03/09

Commission paragraph B. 27/11/08

Teistra's compliance with the price 151 CM( 1)(b) of C. 18/12/08

control arrangements Trade Practices

1 July 2007 to 30 June 2008 Act 1974

Australian Postal Corporation Report on the A. - 26/11/08

(Australia Post) operation of an B. 23/10/08

Equal employment opportunity Act C. 23/10/08

program Report for 2007-08

Department of Broadband, Report on the A. - 17/03/09

Communications and the Digital operation of a B. 06/03/09

Economy Grants Program C. 11/03/09

Funding of Research and Consumer Representation in relation to Telecommunications Annual Report 2007-2008, December 2008

Teistra Sale Company Limited Directors' Report A. 28/09/08 02/12/08

Annual Report for the period ended 30 B. 30/09/08

June 2008 C. 02/10/08

71

10

Environment, Water, Heritage and the Arts portfolio

Name Type Dates Tabled

Department of the Environment, Report on the A. - 03/02/09

Water, Heritage and the Arts operation of an B. - (Received

The National and Commonwealth Act C. - 12/01/09)

Heritage Lists 1/12/04-30/6/2008

Department of the Environment, Report under A. - 10/03/09

Water, Heritage and the Arts EEGO policy B. - (Received

Energy use in the Australian C. - 05/03/09)

Government's Operations Report for 2006-2007

Great Barrier Reef Marine Park Prescribed A. 31/10/08 25/11/08

Authority agency B. 23/09/08 (H of Reps

Annual Report 2007-08 C. 24/09/08 13/11/08)

Murray-Darling Basin Commission Report under the A. 02/10/08 25/11/08

Annual Report 2007-2008 M-D Basin B. 10/11/08

Agreement 1992 C. 10/11/08

National Environment Protection Statutory A. - 10/03/09

Council Authority B. - (Received

Annual Report 2007-2008 C. - 13/02/09)

72

The Senate

Finance and Public Administration

Legislation Committee

Annual reports (No. 2 of 2009)

September 2009

73

C Commonwealth of Australia 2009

ISBN 978-1-74229-179-6

P0 Box 6100

Parliament House

Canberra ACT 2600

Ph: 02 6277 3530

Fax: 02 6277 5809

E-mail: fpa.sen(aph.gov.au Internet: www.aph.gov.au/senate_fpa

Printed by the Senate Printing Unit, Parliament House, Canberra.

Membership of the Committee

Members Senator Helen Polley (Chair)

Senator Cory Bernardi (Deputy Chair)

Senator Doug Cameron

Senator Jacinta Collins

Senator Scott Ryan

Senator Rachel Siewert

ALP, TAS

LP, SA

ALP, NSW

ALP, VIC

LP, VIC

WA, AG

Secretariat

Mr Stephen Palethorpe

Ms Nina Boughey

Mr Bill Bannear

Mr Alex Wilson

Ms Sophia Fernandes

Committee Secretary

Senior Research Officer

Research Officer

Research Officer

Executive Assistant

76

TABLE OF CONTENTS

Membership of the Committee iii

Abbreviations vii

Recommendations ix

Chapter 1 1

Introduction 1

Terms of reference 1

Allocated portfolios 2

Restructure of portfolios 2

Operation Sunlight reforms 3

Method of assessment 3

Reports examined . 5

Non-reporting bodies 6

Timeliness .6

Chapter 2 9

Assessment of reports 9

Australian River Company 9

Australian Industry Development Corporation 9

Appendix 1 13

Administrative Arrangements Order for the Department of the Prime Minister and Cabinet 13

Appendix 2 15

Administrative Arrangements Order for the Department of Finance and Deregulation 15

Appendix 3 19

Administrative Arrangements Order for the Department of Human Services 19

77

Appendix 4

21

Administrative Arrangements Order for the 21

Department of Climate Change 21

Appendix 5 23

Dates relating to the timeliness of presentation and debate in the Senate 23

78

Abbreviations

AJDC Australian Industry Development Corporation

APEC Australian Political Exchange Council

ARCo Australian River Company

CAC Act Commonwealth Authorities and Companies Act 1997

the committee Senate Finance and Public Administration Committee

FOI Act Freedom of Information Act 1982

FMA Act Financial Management and Accountability Act 1997

PBS Portfolio Budget Statements

PM&C Department of the Prime Minister and Cabinet

the PM&C Guidelines Requirements for Annual Reports: for Departments, Executive Agencies and FMA Act Bodies

Vii

79

80

Recommendations

Recommendation 1 2.8 The committee recommends that the Australian Industry Development Corporation ensure that its next annual report fulfils the requirements of section 8 of the Freedom of Information Act 1982.

Recommendation 2

2.10 The committee recommends that where a Commonwealth authority or company pays for the services of a 'related entity' company, the annual report should include an explanation of the decision-making process to engage that company.

ix

81

82

Chapter 1

Introduction

1.1 This is the Senate Finance and Public Administration Committee's (the committee) second report on annual reports for 2009. It provides an examination of annual reports for the 2007-08 financial year tabled in the Senate between 1 November 2008 and 30 April 2009. Copies of this and other committee reports can be obtained from the Senate Table Office, the committee secretariat or online at: www.aph.gov.au/senate fpa.

Terms of reference

1.2 Under Senate Standing Order 25(20) the annual reports of certain departments and agencies stand referred to committees for examination and assessment. Each committee is required to:

(a) examine each annual report referred to it and report to the Senate whether the report is apparently satisfactory;

(b) consider in more detail, and report to the Senate on each annual report which is not apparently satisfactory, and on the other annual reports which it selects for more detailed consideration;

(c) investigate and report to the Senate on any lateness in the presentation of annual reports;

(d) in considering an annual report take into account any relevant remarks about the report made in debate in the Senate;

(e) if the committee so determines, consider annual reports of departments and budget-related agencies in conjunction with examination of estimates;

(f) report on annual reports tabled by 31 October each year by the tenth sitting day of the following year, and on annual reports tabled by 30 April each year by the tenth sitting day after 30 June of that year;

(g) draw to the attention of the Senate any significant matters relating to the operations and performance of the bodies furnishing the annual reports; and

(h) report to the Senate each year whether there are any bodies which do not present annual reports to the Senate and which should present such reports.

83

S

2

Allocated portfolios

1.3 The Senate last amended the continuing order relating to the allocation of departments and agencies to committees on 13 February 2008. 1 In accordance with that resolution, the committee has responsibility for the oversight of the following portfolios:

Parliament; 2

Prime Minister and Cabinet (including Climate Change);

Finance and Deregulation; and

Human Services.

Restructure of portfolios

1.4 Since the committee's most recent report on annual reports (March 2009) there have been no changes to the departments and agencies allocated to the committee's four portfolios. The committee notes that funding has been provided to the Department of the Prime Minister and Cabinet for the establishment of two new agencies: the Office of the Information Commissioner; and the National Security Legislation Monitor. The establishment of each of these agencies is contingent on the passage of the relevant legislation. 3

1.5 There have been several changes with respect to authorities and companies allocated to each portfolio by the Commonwealth Authorities and Companies Act 1997 (CAC Act). Teistra Sale Company Pty Ltd has been wound up, with the last annual report published being for 2007-08. Health Services Australia, previously in

the Human Services portfolio, has merged with Medibank Private, which falls within the Finance and Deregulation portfolio. The Albury-Wodonga Development Corporation, previously allocated to this committee under its own legislation has now been prescribed under the CAC Act. The corporation's annual report for 2008-09 will now have to fulfil the reporting requirements of the CAC Act.

1.6 For further discussion of changes made to agencies under the committee's oversight, see paragraphs 1.5-1.8 in the committee's previous report: Budget estimates 2009-1

1 Journals of the Senate, 13 February 2008, pp 98-99. 2 As a matter of comity between the Houses, it is traditional that neither House inquires into the operations of the other House. For this reason, neither the annual report of, nor the proposed expenditure for, the Department of the House of Representatives is referred to a Senate

committee for review.

3 Budget Paper No, 2, Budget Measures 2009-10, May 2009, pp 372-373.

4 Senate Finance and Public Administration Committee, Budget estimates 2009 10, June 2009, pp 1-4.

84

3

Operation Sunlight reforms

1.7 As part of the government's implementation of the Operation Sunlight reforms, the Portfolio Budget Statements (PBS) for the 2009-10 financial year feature program-based rather than output-based reporting. This means that all agency outcome statements have been reviewed and replaced with statements that are more

specific and targeted.

1.8 The committee notes the 'clear read' principle for annual reports, whereby information in the report should be easily comparable to the appropriations and targets contained in the Budget documents.

1.9 The government has advised that it has agreed to a number of changes to annual reports in response to the report of former Senator Andrew Murray into budget transparency. 5 These changes include:

disclosure of movements of appropriations by outcome;

• details of departmental appropriations expected to be carried over in to the new financial year to meet future obligations; and

• introduction of agency resource statements.

1.10 The committee expects to see these changes reflected in 2008-09 annual reports.

Method of assessment

1.11 Annual reports, together with the estimates process, provide a valuable mechanism for parliamentary (and public) scrutiny of the operations of government. As the official Commonwealth guidelines state:

(a) The primary purpose of annual reports of departments is accountability, in particular to the Parliament.

(b) Annual reports serve to inform the Parliament (through the responsible Minister), other stakeholders, educational and research institutions, the media and the general public about the performance of departments in relation to services provided. Annual reports are a key reference document and a document for internal management. They form part of the historical record .6

5 Government response to Operation Sunlight - Overhauling Budgetary Transparency by Senator Andrew Murray, June 2008, pp 1-17, www.fmance.gov.au/financial-framework/financial-management-pol icy-guidance/operation-sunlight/index .html (accessed 2 September 2009).

6 Department of the Prime Minister and Cabinet, Requirements for Annual Reports:for departments, executive agencies and FMA Act bodies, June 2008, p. 2, emphasis added.

85

4

1 A2 Senate Standing Order 25(20) requires that the committee examine reports referred to it to determine whether they are timely and 'apparently satisfactory'. In forming its assessment, the committee considers whether the reports comply with the relevant legislation and guidelines for the preparation of annual reports. The principal Acts which apply to departments, statutory agencies and authorities, and Commonwealth companies are:

• Public Service Act 1999;

• Parliamentary Service Act 1999;

• Financial Management and Accountability Act 1997 (FMA Act); and

• Commonwealth Authorities and Companies Act 1997 (CAC Act).

1.13 Statutory authorities report under their respective enabling legislation. For example, the Australian Electoral Commission reports under section 17 of the Commonwealth Electoral Act 1918.

1.14 The committee also assesses whether reports comply with the Requirements for Annual Reports: for Departments, Executive Agencies and FMA Act Bodies (the PM&C Guidelines), issued by the Department of the Prime Minister and Cabinet (PM&C) with the approval of the Joint Committee of Public Accounts and Audit. This is the authoritative source outlining the requirements for preparing and presenting annual reports for bodies prescribed under the FMA Act .7

1.15 The principles underlying the PM&C Guidelines are as follows:

The content of annual reports should:

(a) be consistent with the purposes of annual reports - in particular, annual reports should be written in plain English and provide sufficient information and analysis for the Parliament to make a fully informed judgement on departmental performance;

(b) align with the overall accountability framework;

(c) reflect the harmonisation, as far as practicable, of reporting regimes within government (including PBSs and PAESs) and between the government and non-government sectors; and

(d) merit reporting - the relative benefits and costs of reporting should be considered!

1.16 Commonwealth authorities and companies report under the CAC Act and thus have different reporting requirements.

7 These guidelines may be found at: www.pmc.gov.au/guidelines/docs/annual report requirements.pdf (accessed 5 August 2009).

8 Department of the Prime Minister and Cabinet, Requirements for Annual Reports:for departments, executive agencies and FMA Act bodies, June 2008, P. 3.

86

.

5

1.17 The annual report of a Commonwealth authority must include a report of operations as set out in the Commonwealth Authorities and Companies (Report of Operations) Orders 2008, financial statements and the Auditor-General's report on those financial statements.

1.18 Commonwealth companies must include in their annual report a copy of the company's financial report, director's report and auditor's report as required by the Corporations Act 2001.0 Commonwealth companies that are wholly-owned by the Commonwealth must also supply any additional information or report required by the Finance Minister's Orders.

Reports examined

1.19 During the period between 1 November 2008 and 30 April 2009, 11 annual report that were tabled in the Senate, or presented 'out of session' to the President of the Senate were referred to the committee for examination. These comprised the annual reports of two Commonwealth authorities, three Commonwealth companies, and one organisation reporting under its own terms of reference. These reports are categorised as follows:

Commonwealth Authorities

Albury-Wodonga Development Corporation—Annual Report 2007-08--pursuant to section 32 of the Albury-Wodonga Development Act 1973;'' and

Australian Industry Development Corporation—Annual Report 2008— pursuant to section 9 of the CAC Act.

Commonwealth Companies

ASC Ply Ltd—Annual Report 2008—pursuant to section 36 of the CAC Act;

Australian River Company Ltd—Annual Report 2007—pursuant to section 36 of the CAC Act; and

Tesitra Sale Company Ltd—Annual Report for the period ending 30 June 2008— pursuant to section 36 of the CAC Act.

Other

Australian Political Exchange Council—Annu al Report 2006-07—pursuant to own terms of reference.

9 These orders may be found at: www.finance.gov.aulfinancial-frameworklcac-legislation/cac -finance-ministers-orders.html (accessed 5 August 2009).

10 Where the auditor's report supplied is not by the Auditor-General, the company must also include a report by the Auditor-General.

11 Please note for the 2007-08 period, the Albury-Wodonga Development Corporation was not a Commonwealth authority prescribed by the CAC Act.

87

6

Reports not examined

1.20 In addition, three annual reports on the operation of legislation and two other annual reports were received. The committee is not obliged to report on Acts, statements of corporate intent, surveys, corporate plans or errata. The following documents were referred to the committee but not examined:

• Australian Public Service Commissioner—State of the Service Report 2007-08;

• Office of the Renewable Energy Regulator—Increasing Australia's Renewable Electricity Generation Annual Report 2007-08;

• Freedom of Information Act 1982 Annual Report 2007 - 08;

• Department of Finance and Deregulation—Issues from the Advance to the Finance Minister as a Final Charge for the year ended 30 June 2008; and

• Member of Parliament "Staff) Act 1984 — Annual Report 2007 - 08.

Non-reporting bodies

1.21 Standing Order 25(20)(h) requires that the committee inquire into, and report on, any bodies which do not present annual reports to the Senate but should present such reports.

1.22 The committee continues to approach this in two ways. First, the committee examines the Administrative Arrangements Order (last updated 1 July 2008) for the list of legislation administered by portfolio ministers and consequently, departments and agencies.

1.23 Second, the committee consults the Department of Finance's listing of Australian Government Bodies. The list identifies the agencies that are required to report and the Acts under which they report. 12 Based on the above checks, the committee considers it has received all reports that it is required to receive.

Timeliness

1.24 Most reports are required to be tabled in Parliament by 31 October each year unless another date is specified, for example, in an agency's legislation, charter and/or terms of reference. Commonwealth companies reporting under the CAC Act are required to provide an annual report to the responsible Minister four months after the end of the company's financial year.' 3 For example, where the company's financial year ends on 30 June, the report must be furnished to the Minister by 31 October.

12 This list may be found at: www.finance.gov.au/publications/flipchart/index.html (accessed 5 August 2009).

13 Commonwealth Authorities and Companies Act 1999, s. 36.

88

7

1.25 Commonwealth authorities are required to report by the 15th day of the fourth

month after the end of the financial year, which for authorities reporting on a standard financial year basis would be would be October 15 •14

1.26 One report was received by the minister after the prescribed deadline. The

Australian River Company's annual report for the year ended 30 November 2007 should have been received by the Minister by 31 March 2008, but was not received until 3 September 2008. A note in that annual report explains that after initial presentation to the Minister in March 2008, which would have been within the

deadline, the report was redrafted to take into account recommendations made by this committee in Annual reports (No. 1 of2008).' 5

1.27 The committee notes that the Australian Political Exchange Council (APEC) reports under its own terms of reference which simply state that the organisation should 'arrange for regular reporting on the Council's activities to Parliament, the Principals and sponsors." 6 Though no deadline is specified, the committee encourages

APEC to adopt the practice of reporting within 4 months of the end of the financial year.

14 Commonwealth Authorities and Companies Act 1999, S. 9. 15 Senate Finance and Public Administration Committee, Annual reports (No. I of2008), March 2008, pp 19-24, www.aph.gov.au/senate/committee/fapa ctte/annual/2008/report 1/report.pdf

(accessed 2 September 2009).

16 www.po1exchangg.org.au/the_counci1/aims_of_the_council.html (accessed 6 August 2009).

89

90

Chapter 2

Assessment of reports

2.1 The committee has found that one report, The Australian Industry Development Corporation annual report for 2008, neglected to include information in accordance with the Freedom of Information Act 1982, but that all other reports are 'apparently satisfactory'. The committee notes that all financial statements received an unqualified report from the Auditor-General.

Selected Agencies

Australian River Company

2.2 The committee has selected the Australian River Company's (ARCo) 2007 annual report for review to assess whether improvements have been made since the committee last reviewed a report by this company in Annual reports (No. 1 of 2008)

2.3 In that report, the committee found that the ARCo annual report for 2006 lacked detailed information regarding the principal activities of the company and progress made in winding up the company following a ministerial direction in 2002. ARCo's annual report for 2007 has included adequate detail in both of these areas.

2.4 The committee also asked that an explanation be given regarding the basis upon which ARCo made the decision to pay for the services of a company of which an ARCo director was a shareholder and director. The 2007 ARCo report discloses that Acton Corporate Partners, a company of which a director of ARCo is a shareholder and director, was again paid for advisory and other services. Though the amount is small, and smaller still than in 2006, no detail of the selection process has been

included in the report, despite the committee's concern that this could lead to a perception of a conflict of interest. The committee reiterates the statements it made in its Annual reports (No. I of 2008) regarding this issue.'

Australian Industry Development Corporation

2.5 The Australian Industry Development Corporation (A[DC), as a Commonwealth Authority prescribed under the CAC Act, must fulfil the requirements outlined in the Commonwealth Authorities and Corporations (Report of Operations) Orders.

1 Senate Finance and Public Administration Committee, Annual reports (No. I 0f2008), March 2008, pp 19-24.

91

10

Freedom of Information

2.6 The AIDC 2008 report fulfils the majority of the requirements outlined in the orders. However, it does not include information required under subsection 8(1) of the Freedom of Information Act 1982 (FOI Act). Under the FOI Act, Commonwealth Authorities must include in their annual report:

i) a statement setting out particulars of the organization and functions of the agency, indicating, as far as practicable, the decision- making powers and other powers affecting members of the public that are involved in those functions;

ii) a statement setting out particulars of any arrangements that exist for bodies or persons outside the Commonwealth administration to participate, either through consultative procedures, the making of representations or otherwise, in the formulation of policy by the agency, or in the administration by the agency, of any enactment or scheme;

iii) a statement of the categories of documents that are maintained in the possession of the agency, being categories that comply with subsection (6);

iv) a statement of particulars of the facilities, if any, provided by the agency for enabling members of the public to obtain physical access to the documents of the agency; and

v) a statement of any information that needs to be available to the public concerning particular procedures of the agency in relation to Part III, and particulars of the officer or officers to whom, and the place or places at which, initial inquiries concerning access to documents may be directed.'

2.7 A good example of a report that does fulfil the reporting requirements of the FOI Act can be found in the 2007-08 Annual report of the Albury-Wodonga Development Corporation. The committee recommends that the AIDC should include information required by the P01 Act in its next annual report.

Recommendation 1

2.8 The committee recommends that the Australian Industry Development Corporation ensure that its next annual report fulfils the requirements of section 8 of the Freedom of Information Act 1982.

Conflicts of interest

2.9 The AIDC 2008 annual report, like the ARCo 2007 annual report, includes a section on transactions with board member related entities. This section discloses that AIDC paid over $20 000 to two companies that were connected to current or past

2 Freedom of Information Act 1982, para. 8(1)(a).

92

11

board members of the AIDC. The report specifies that these transactions were on

normal commercial terms and conditions. Though this may be an acceptable level of disclosure for a private company, the committee recommends that as a Commonwealth authority, an explanation should be given as to why the services of those particular companies were engaged. In the absence of such information, the AIDC risks the perception that a conflict of interest exists in the hiring of these companies.

Recommendation 2

2.10 The committee recommends that where a Commonwealth authority or company pays for the services of a 'related entity' company, the annual report should include an explanation of the decision-making process to engage that company.

Senator Helen Polley

Chair

93

94

13

Appendix 1

Administrative Arrangements Order for the Department of the Prime Minister and Cabinet

Extract from the Administrative Arrangements Order, made on 25 January 2008, amended 1 May 2008 and updated 1 July 2008]

PART 16 THE DEPARTMENT OF THE PRIME MINISTER AND CABINET

Matters dealt with by the Department

Co-ordination of Government administration

Assistance to Cabinet and its Committees

Policy advice and administrative support to the Prime Minister

Intergovernmental relations and communications with State and Territory Governments

Australian honours and symbols policy

Government ceremonial and hospitality

Counter terrorism policy co-ordination

National security policy co-ordination

Work and family policy co-ordination

Privacy

Freedom of information

Management of government records

Old Parliament House

Legislation administered by the Minister

Administrative Arrangements Act 1987

Archives Act 1983

Auditor-General Act 1997

Australian Capital Territory Government Service (Consequential Provisions) Act 1994

95

14

Complaints (Australian Federal Police) Act 1981, Part III

Defence Act 1903, Part IIIAAA insofar as it relates to the powers or functions of the Prime Minister as an authorising minister

Family Law Act 1975, Part XIVA

Flags Act 1953

Freedom of Information Act 1982, except to the extent administered by the Attorney-General

Governor-General Act 1974

House of Representatives(Quorum) Act 1989

Inspector-General ofIntelligence and Security Act 1986

Office ofNational Assessments Act 1977

Ombudsman Act 1976

Parliamentary Commission oflnquiiy (Repeal) Act 1986

Parliamentary Presiding Officers Act 1965

Privacy Act 1988, except to the extent administered by the Attorney-General

Public Service Act 1999

Resource Assessment Commission Act 1989

Royal Commissions Act 1902

Royal Powers Act 1953

Royal Style and Titles Act 1973

Senate ('Quorum) Act 1991

96

15

Appendix 2

Administrative Arrangements Order for the Department of Finance and Deregulation

[Extract from the Administrative Arrangements Order, made on 25 January 2008, amended 1 May 2008 and updated 1 July 2008]

PART 9 THE DEPARTMENT OF FINANCE AND DEREGULATION

Matters dealt with by the Department

Budget policy advice and process, and review of governmental programs

Government financial accountability, governance and financial management frameworks, including procurement policy and services

Shareholder advice on Government Business Enterprises and commercial entities treated as GBEs

Reducing the burden of government regulation

General policy guidelines for Commonwealth statutory authorities

Superannuation related to former and current members of parliament and Australian Government employees

Asset sales

Strategic management of non-Defence Commonwealth-owned property in Australia, including construction, major refurbishment, acquisition, ownership and disposal of real property

Electoral matters

Administration of Parliamentarians' entitlements

Administration of the Australian Government's self-managed general insurance fund (Comcover)

Government on-line delivery and information technology and communications management

Evaluation and audit of Indigenous programs and operations

Advice on the Future Fund

Central advertising system

97

16

Legislation administered by the Minister

Aboriginal and Torres Strait Islander Act 2005, Part 4B

Aerospace Technologies ofAustralia Limited Sale Act 1994

AIDC Sale Act 1997

Airports (Transitional) Act 1996

Albury- Wodonga Development Act 1973

Annual Appropriation Acts

Appropriation (Supplementary Measures) Act (No. 1) 1999

Appropriation (Supplementary Measures) Act (No. 2) 1999

Audit (Transitional and Miscellaneous) Amendment Act 1997

Australian Capital Territory (Planning and Land Management) Act 1988, section 27 insofar as it relates to the declaration of land in the Australian Capital Territory to be National Land where the land is required for Commonwealth purposes other than for the special purposes of Canberra as the National Capital

Australian Industry Development Corporation Act 1970

CFM Sale Act 1996

Commonwealth Authorities and Companies Act 1997

Commonwealth Electoral Act 1918

Commonwealth Electoral Legislation (Provision ofInformation) Act 2000

Commonwealth Funds Management Limited Act 1990

Commonwealth Vehicles (Registration and Exemption from Taxation) Act 1997

CSL Sale Act 1993

Financial Management and Accountability Act 1997

Future Fund Act 2006

Lands Acquisition Act 1989

Lands Acquisition (Defence) Act 1968

Lands Acquisition (Northern Territory Pastoral Leases) Act 1981

98

17

Lands Acquisition (Repeal and Consequential Provisions) Act 1989

Loan (War Service Land Settlement) Acts

Medibank Private Sale Act 2006

Members of Parliament (Life Gold Pass) Act 2002

Members of Parliament (Staff) Act 1984

Ministers of State Act 1952

Northern Territory (Commonwealth Lands) Act 1980

Northern Territory (Self-Government) Act 1978, sections 69 and 70

Papua New Guinea (Staffing Assistance) Act 1973, insofar as it relates to superannuation and retirement benefits

Papua New Guinea (Staffing Assistance) Termination Act 1976

Parliamentary Allowances Act 1952

Parliamentary Contributory Superannuation Act 1948

Parliamentary Entitlements Act 1990

Parliamentary Precincts Act 1988

Parliamentary Superannuation Act 2004

Parliamentary Retiring Allowances (Increases) Acts

Public Accounts and Audit Committee Act 1951

Public Works Committee Act 1969

Qantas Sale Act 1992, except to the extent administered by the Treasurer or the Minister for Infrastructure, Transport, Regional Development and Local Government

Referendum (Machinery Provisions) Act 1984

Representation Act 1983

Salaries Adjustment Act 1956

Superannuation Acts

Superannuation Benefits (Supervisory Mechanisms) Act 1990

99

18

Superannuation (Distribution of Surplu s) Act 1974

Superannuation (Pension increases) Acts

Superannuation ('Productivity Benefit) Act 1988

Supply Acts

Surplus Revenue Acts

Territory Authorities (Financial Provisions) Act 1978

Transferred Officers' Allowances Act 1948

Western Australia (South-West Region Water Supplies) Agreement Act 1965

100

19

Appendix 3

Administrative Arrangements Order for the

Department of Human Services

[Extract from the Administrative Arrangements Order, made on 25 January 2008, amended 1 May 2008 and updated 1 July 2008]

PART 12 THE DEPARTMENT OF HUMAN SERVICES

Matters dealt with by the Department

Development, delivery and co-ordination of government services, and development of policy on service delivery

Monitoring and management of service delivery and purchaser/provider relationships involving Centrelink, Medicare Australia, the Child Support Agency, Australian Hearing, Health Services Australia and CRS Australia

Legislation administered by the Minister

Australian Hearing Services Act 1991, except to the extent administered by the Minister for Health and Ageing

Child Support (Assessment) Act 1989, insofar as it relates to the exercise of the powers and functions conferred on the Registrar under the Act

Child Support Legislation Amendment (Reform of the Child Support Scheme - Initial Measures) Act 2006, insofar as it relates to the exercise of the powers and functions conferred on the Registrar under the Act

Child Support Legislation Amendment (Reform of the Child Support Scheme - New Formula and Other Measures) Act 2006, insofar as it relates to the exercise of the powers and functions conferred on the Registrar under the Act

Child Support (Registration and Collection) Act 1988, insofar as it relates to the appointment of the Registrar and the exercise of the powers and functions conferred on the Registrar under the Act

Commonwealth Services Delivery Agency Act 1997

Medicare Australia Act 1973

101

102

21

Appendix 4

Administrative Arrangements Order for the

Department of Climate Change

[Extract from the Administrative Arrangements Order, made on 25 January 2008, amended 1 May 2008 and updated 1 July 2008]

PART 4 THE DEPARTMENT OF CLIMATE CHANGE

Matters dealt with by the Department

Development and co-ordination of domestic and international climate change policy

International climate change negotiations

Design and implementation of emissions trading

Mandatory renewable energy target policy, regulation and co-ordination

Greenhouse emissions and energy consumption reporting

Climate change adaptation strategy and co-ordination

Co-ordination of climate change science activities

Legislation administered by the Minister

National Greenhouse and Energy Reporting Act 2007

Renewable Energy (Electricity) Act 2000

Renewable Energy (Electricity) (Charge) Act 2000

103

104

29/10/08

4/2/09

Li

Appendix 5

Dates relating to the timeliness of presentation and debate in the Senate Reporting Body 1 Sent to Minister

PRIME MINISTER AND CABINET PORTFOLIO

Received by I Tabled in the Consideration Minister Senate or in the Senate -

presented out of debate

sitting(*)

Public Service Commissioner - State of the Service Report

Office of the Renewable Energy Regulator - Increasing Australia's Renewable

Electricity Generation, Annual Report 2008

Freedom of Information Act 1982, Annual Report 2007-08

FINANCE AND ADMINISTRATION PORTFOLIO

Albury-Wodonga Development Corporation

ASC Pty Ltd

Australian Industry Development Corporation

Australian Political Exchange Council 2006-07

Australian River Co. Ltd

Department of Finance and Deregulation - Issues from the Advance to the Finance Minister as a Final Charge for the Year

Members of Parliament (Staff) Act 1984, Annual Report 2007-08

Telstra Sale Company Ltd

31/10/08 31/10/08 2/12/08

28/10/08

7/4/09 20/4/09 16/6/09

16/10/08

29/10/08

26/9/08

17/12/08

3/9/08

16/10/08

30/10/08

1/10/08

17/12/08

8/9/08

5/11/08*

3/12/08

4/2/09

22/12/08*

25/11/08

2/10/08 2/10/08 11/11/08

21/11/08

30/9/08

21/11/08 23/12/08*

2/10/08 2/12/08

105

106

The Senate

Foreign Affairs, Defence and Trade Legislation Committee

Annual reports (No. 2 of 2009)

September 2009

107

© Commonwealth of Australia

ISBN 978-1-74229180-2

This document is produced from camera—ready copy prepared by the Senate Standing Committee on Foreign Affairs, Defence and Trade secretariat, and printed by the Senate Printing Unit, Parliament House, Canberra.

11

108

The committee

Senator Mark Bishop. ALP, WA (Chair) Senator Russell Trood, LP, Qid (Deputy Chair) Senator Don Farrell, ALP, SA Senator Michael Forshaw, ALP, NSW Senator Helen Kroger, LP, Vic Senator Scott Ludlam, GRN, WA

Secretariat

Dr Kathleen Dermody, Secretary Ms Pamela Corrigan, Research Officer

Parliament House Canberra ACT 2600 Phone: (02) 6277 3535 Fax: (02) 6277 5818 e—mail: fadt.senaph.gov.au Internet: http://www.aph.gov.au/senate — fadt

ill

109

110

Contents

The committee

Preface

Introduction 1

Role of annual reports 2

Assessment of annual reports 2

Annual reports considered 3

General comments on the annual reports 3

Timeliness in tabling reports 3

Comments made in the Senate 3

Matters of significance 3

Bodies not presenting annual reports to the Senate 3

Standard of reports 4

Chapter 1-----Annual reports of statutory and non-statutory authorities and government companies

Defence portfolio 5

Australian Military Court 5

AMC caseload 6

Military juries 7

Response to committee's recommendations .9

AMC—High Court decision 9

Committee view 10

Judge Advocate General 10

Funding 11

Establishment of the Australian Military Court 11

Evidence in proceedings before a summary authority 11

Appeals from Summary Authority 13

Role and function of the JAG 13

AMC—High Court decision 14

Committee view 15

Director of Military Prosecutions 15

Prosecution policy 16

Significant cases 17

Role of superior officers 17

V

111

Matters for consideration 18

DMP's assessment 19

Committee view 19

Recent development—decision of the High Court 19

ASC Pty Ltd 21

Appendix 1 —Annual reports referred to the committee

Defence portfolio 23

Departments 23

Statutory authorities 23

Non—statutory authorities and government companies 23

Foreign Affairs and Trade portfolio 24

Department 24

Statutory authorities 24

Non—statutory authorities and government companies 24

Appendix 2—Compliance table of the annual reports referred to the committee for scrutiny for the period 2007-2008

Defence—Non-statutory authorities and government companies 25

Appendix 3—Reporting requirements and guidelines

Departmental reports 27

Authority for requirements 27

Commencement and reporting period 27

Timetable 28

Commonwealth authorities and companies 28

Non—statutory bodies 29

Vi

112

Preface

Introduction 1. The committee is responsible for examining annual reports of departments and agencies within two portfolios: Defence (including the Department of Veterans' Affairs), and Foreign Affairs and Trade.'

2. Under Standing Order 25(20), the committee is required to report on annual reports tabled by 31 October each year by the tenth sitting day of the following year, and on reports tabled by 30 April each year by the tenth sitting day after 30 June of that year.

3. The standing order states:

Annual reports of departments and agencies shall stand referred to the committees in accordance with an allocation of departments and agencies in a resolution of the Senate. Each committee shall:

a) Examine each annual report referred to it and report to the Senate whether the report is apparently satisfactory;

b) Consider in more detail, and report to the Senate on, each annual report which is not apparently satisfactory, and on the other annual reports which it selects for more detailed consideration;

c) Investigate and report to the Senate on any lateness in the presentation of annual reports;

d) In considering an annual report, take into account any relevant remarks about the report made in debate in the Senate;

e) If the committee so determines, consider annual reports of departments and budget-related agencies in conjunction with examination of estimates;

f) Report on annual reports tabled by 31 October each year by the tenth sitting day of the following year, and on annual reports tabled by 30 April each year by the tenth sitting day after 30 June of that year;

g) Draw to the attention of the Senate any significant matters relating to the operations and performance of the bodies furnishing the annual reports; and

h) Report to the Senate each year whether there are any bodies which do not present annual reports to the Senate and which should present such reports.

1 See Appendix 1 for a list of all departments and agencies under these portfolios.

113

2

Preface

Role of annual reports

4. Annual reports place a great deal of information about government departments and agencies on the public record. Accordingly, the tabling of annual reports continues to be an important element of accountability to Parliament. The information provided in annual reports assists Parliament in the effective examination of the performance of departments and agencies and the administration of government programs. Indeed, as noted in the Requirements for Annual Reports:

Annual reports serve to inform the Parliament (through the responsible Minister), other stakeholders, educational and research institutions, the media and the general public about the performance of departments in relation to services provided. Annual reports are a key reference document and a document for internal management. They form part of the historical record.

Annual reports and Portfolio Budget Statements (PBSs) are the principal formal accountability mechanisms between government and departments and from departments through (or on behalf of) government to the Parliament.2

Assessment of annual reports

5. The annual reports are examined by the committee to determine whether they are timely and 'apparently satisfactory'. 3 The committee considers whether the reports comply with the relevant requirements for the preparation of annual reports of departments and authorities.

6. The requirements are set down in the following instruments:

• for portfolio departments: Public Service Act 1999, subsections 63(2) and 70(2), and the Requirements for annual reports for departments, executive agencies and FMA Act bodies, Department of Prime Minister and Cabinet, 18 June 2008;

• for Commonwealth authorities and companies: the Commonwealth Authorities and Companies Act 1997; in particular, the Commonwealth Authorities and Companies (Report of Operations) Orders 2002; and

• for non—statutory bodies: the guidelines are contained in the government response to the report of the Senate Standing Committee on Finance and Government Operations on Non—statutory Bodies, Senate Hansard, 8 December 1987, vol s124, pp. 2643-45 (requirements were modified in 1987).

2 Requirements for annual reports for departments, executive agencies and FMA Act bodies, Department of Prime Minister and Cabinet, 18 June 2008, P. 2. Also at www.dpmc.gov.au/guldel]nes/index.cfm

3 See Appendix 2 for a compliance table of the reports referred to the committee for scrutiny.

114

Preface

3

Excerpts of the reporting requirements are at Appendix 3.

Annual reports considered

7. The annual reports of the following organisations have been examined by the committee:

ASC Pty Ltd Australian Military Court Director of Military Prosecutions Judge Advocate General

General comments on the annual reports

Timeliness in tabling reports

8. A table detailing the dates relating to the timeliness of presentation is at Appendix 2.

Comments made in the Senate

9. The committee is obliged, under Senate Standing Order 25(20)(d), to consider any remarks made about these reports in the Senate. There were no comments in the Senate on any of these reports.

Matters of signi ficance

10. In accordance with S025, the committee is to note any significant matters relating to the operations and performance of the bodies presenting their annual report. The committee found no matters of significance relating to the operations and performance of the bodies presenting their report. It draws attention, however, to

findings contained in the Audits of the Financial Statements ofAustralian Government Entities for the Period Ended 30 June 2008. The audit found that while the Department of Defence had resolved seven significant audit risk issues, three remained. The Defence Materiel Organisation had one significant audit issue. 4 These are mentioned in detail in the relevant sections of this report.

Bodies not presenting annual reports to the Senate

11. The committee is required to report to the Senate each year on whether there are any bodies that do not present annual reports to the Senate and which should present such reports. The committee is satisfied that there are no bodies, within these portfolios, which do not meet their reporting requirements to the Senate.

4 Australian National Audit Office, Audits of the Financial Statements ofAustralian Government Entities for the Period Ended 30 June 2008, Audit Report No. 14, 2008-09, p. 84.

115

4

Preface

Standard of reports

13. The committee found all reports to be generally of a high standard. They effectively described the function, activities and financial positions of the various departments and agencies. The committee therefore finds all of the annual reports to be 'apparently satisfactory'.

116

Chapter 1

Annual reports of statutory and non-statutory authorities and government companies

Defence portfolio

Australian Military Court

1.1 The Australian Military Court report for the period 1 January to 31 December 2008 was tabled in the Senate on 16 June 2009. This is the second report of the Australian Military Court and is submitted in accordance with section 1 96C of the Defence Force Discipline Act 1982 (DFDA).

1.2 The Australian Military Court (AMC) came into existence on 1 October 2007, under amendments to the DFDA effected by the Defence Legislation Amendment Act 2006 (DLAA 06). The DLAA 06 provisions for the Australian Military Court are that:

a) Although not a court within the terms of chapter III of the constitution, the AMC will be a court of record and its hearings will, subject to some exceptions, be public. The AMC will be able to sit at any place in or outside Australia.

b) The AMC will be headed by the Chief Military Judge (CMJ) appointed by the Governor—General for a term often years. In addition, the AMC will comprise two permanent military judges and no more than eight reserve part-time military judges. Military judges will also be appointed by the Governor— General for terms of ten years.

c) CMJ and the military judges must be members of the Australian Defence Force (ADF) holding a rank not lower than brigadier (or other service equivalent) in the case of CMJ, and lieutenant colonel (or service equivalent) in the case of the military judges. The appointments by the Governor—General will be made

following a selection process established under the legislation. The CMJ and the military judges will be automatically promoted by one rank on the five-year anniversary of appointment.

d) The remuneration of CMJ and the military judges to be independently fixed by the Commonwealth Remuneration Tribunal.

e) Termination of appointment as CMJ or a military judge by the Governor— General for cause.

f) A military judge will have the ability to try a service offence on his or her own or with a military jury depending on the seriousness of the offence and the wishes of the accused.

117

6

Chapter 1—Annual reports of statutory and non-statutory authorities and government companies

g) A military jury will comprise twelve commissioned officers for serious offences, or six commissioned officers for less serious offences. If the accused is not an officer, it will be possible for senior warrant officers to serve as military jurors.

h) Majority verdicts by a military jury will be possible in circumstances where the jury is split, so long as there is a five-sixth majority in favour of conviction.

i) The AMC will be able to receive evidence given by video or audio link.

j) The CMJ will be empowered to make rules for the AMC and will report to Parliament on the operation of the AMC.

k) Appeals against punishment or conviction from the AMC will lie to the Defence Force Discipline Appeal Tribunal (DFDAT) (at present, in relation to conviction only, from the DFDAT to the Full Court of the Federal Court and, with special leave, to the High Court of Australia). The appeal against sentence is new and will replace the existing internal review.'

1.3 The legislation also provides for a registrar of the AMC to assist the CMJ by providing administrative and management services in connection with proceedings before the AMC. 2

AMC caseload

1.4 In his report on the AMC, the Chief Military Judge, Brigadier I D Westwood AM, detailed the number of cases before the Court during the reporting period. There were 114 matters referred for trial and 92 trials were conducted:

These comprised 28 contested trials and 64 pleas of guilty. Of these matters, 15 were jury trials (two of which were 12 person juries and 13 of which were six person juries). There were 20 matters withdrawn by the DMP prior to trial. Military jury trials were conducted at Defence establishments in Darwin, Townsville, Sydney, Canberra, Melbourne, Adelaide and Perth. No AMC proceedings were conducted outside of Australia during the reporting period. Trials by military judge alone were conducted at most major Defence establishments around Australia. 3

1.5 Four summary appeals were lodged but none was finalised during the reporting period. The CMJ observed that:

Both the total number of matters dealt with by the Court, and the proportion of those proceeding to trial with a military jury are considerably greater than would have been expected on the basis of the matters proceeding to

1 Australian Military Court, report for the period 1 October to 31 December 2007, pp. 1-3. 2 Australian Military Court, report for the period 1 October to 31 December 2007, pp. 1-2,4. 3 Australian Military Court, report for the period 1 October to 31 December 2008, p. 6.

118

Chapter 1—Annual reports of statutory and non-statutory authorities and government companies

7

trial under the old arrangements before court martial and Defence Force magistrate.

1.6 The first AMC jury trial commenced on 23 June 2008. In his annual report, the judge advocate general also referred to the court's caseload (see JAG, paragraph 15).

Military juries

1.7 In its fourth progress report on reforms to Australia's military justice system and in its previous report on annual reports, the committee noted the CMJ's comments that the number of jury trials is 'likely to considerably exceed the number of matters proceeding to a court martial in recent years'. At that time, he also noted that jury trials are considerably more resource intensive both in terms of the administrative effort required to run the trial and in terms of the personnel taken from other duties for the trial itself . 6 The CMJ raised the same matter in his current annual report, noting that jury trials are much more administratively complex to arrange than trial by judge alone'. He explained further:

The Registrar estimates that 78 hours are required for the preparation and pre-trial administration of a military jury trial. On average 74 personnel are screened by the Registrar's staff for each military jury trial. This can be contrasted with the average of 14 hours for the preparation and pre-trial administration of a trial by military judge alone. Case management

conferences were undertaken by the Registrar in respect of the more complex matters in order to list the matter as 'ready for trial'. In respect of most military jury trials pre-trial directions hearings were conducted with the military judge presiding. 7

1.8 The CMJ reported, however, that although the listing arrangements did not operate at first as effectively as he would have desired, 'these difficulties were addressed by the end of March' and he was pleased with the number of matters which were heard during the reporting period. 8

1.9 The committee in its previous report on annual reports recorded that there were initial problems with arrangements for the constitution and selection of military juries. Further to this, CMJ reported that during the 2007 reporting period, the

4 Australian Military Court, report for the period 1 October to 31 December 2008, p. 7. 5 Australian Military Court, report for the period 1 October to 31 December 2008, P. 12, paragraph 43.

6 Senate Foreign Affairs, Defence and Trade Legislation Committee, Reforms to Australia military justice system, Final progress report, June 2009, paragraph 2.79.

7 Australian Military Court, report for the period 1 October to 31 December 2008, p. 7, paragraph 25.

8 Australian Military Court, report for the period 1 October to 31 December 2008. p. 7, paragraph 26.

119

8

Chapter I—Annual reports of statutory and non-statutory authorities and government companies

registrar had written to the service chiefs seeking their support for the panelling of military juries on a tn-service basis. The issue was not resolved during 2007. By mid March 2008, each of the service chiefs had agreed to such an approach as an interim measure, pending appropriate legislation. CMJ then issued drafting instruction to parliamentary counsel on amending AMC rules to provide for the revised jury arrangements. The new rules commenced on 6 June 2008 and have operated successfully since that time. 9

1.10 He noted further his previous reference to the potential disadvantages in having military jury related matters dealt with in the AMC rules as opposed to being covered in legislation.

... it would be highly desirable for the legislation to address issues of juror protection and to create offences concerning interference with jurors or misconduct by military jurors in the discharge of their duties. 10

1.11 In his current report, he noted, however, his understanding that 'during the 2009 calendar year steps will be taken to have many of the requirements for military juries transferred from the AMC rules to the DFDA'."

1.12 In regard to both matters, the CMJ was pleased to report that:

.there is currently policy approval to make legislative provision for the juries. It is proposed that this legislation will address panelling and constitution of military juries, and the issues of juror protection and the creation of appropriate offences concerning interference with jurors or misconduct by military jurors in the discharge of their duties that I noted in the 2007 report as requiring action. During the reporting period the jury arrangements were governed by the revised AMC Rules. ' 2

1.13 The CMJ explained the relationship of the AMC with the JAG in the context of the new environment:

In my report for 2007, I referred to my agreement with the JAG Major General the Hon Justice RRS Tracey RFD, that the AMC would provide his office with administrative support pending a formal decision on the retention, and if retained, the role and function of the JAG. Those arrangements continued during the reporting period such that the AMC bid

for and maintained an appropriate budget allocation for the functions of the JAG and provided staff support in connection with the JAG's

9 Australian Military Court, report for the period 1 October to 31 December 2008, p. 9, paragraph 31.

10 Senate Standing Committee on Foreign Affairs, Defence and Trade, Reforms to Australia's military justice system, Fourth progress report, September 2008, paragraph 2.27.

11 Australian Military Court, report for the period 1 October to 31 December 2008, p. 11, paragraph 42.

12 Australian Military Court, report for the period 1 October to 31 December 2008, p. 9, paragraph 32.

120

Chapter 1—Annual reports of statutory and non-statutory authorities and government companies

9

responsibilities for legal reports as part of the (now superseded) internal review process for summary proceedings, and in connection with the JAG's annual report to Parliament.'3

Response to committee's recommendations

1.14 The CMJ cited two recommendations made by the committee in its fourth progress report on reforms to Australia's military justice system. They were:

Recommendation 8—The committee recommends that the Government amend the DFDA to require the AMC to publish material such as court lists, transcripts of proceedings and judgements in a readily and easily accessible form. 14

Recommendation 9—The committee recommends that the CMJ appear before the Committee to give evidence on the operation of the AMC and matters raised in the CMJ's annual report when invited by the committee to do so.' 5

1.15 He noted that he had been consulted in connection with the government's response to the recommendations but that the response had not been released. 16 Since the tabling of the CMJ annual report, the government has made public its response.

1.16 The government substantially agreed with recommendation 8 and indicated that the Act will be amended to provide for the publication of the court lists, rulings, findings and sentencing remarks, subject to any non-publication orders made by a military judge. The government did not agree that full transcripts of proceedings

should be published as a matter of course for reasons of privacy, practicality (particularly if a new trial were to be ordered) and because it is inconsistent with the practice in the civil courts.

1.17 The government agreed with the committee's recommendation that the CMJ appear before the committee when invited to do so.

AMC—High Court decision

1.18 Since the tabling of this year's AMC annual report, the High Court has ruled that that the provisions of Division 3 of Part VII of the Defence Force Discipline Act

13 Australian Military Court, report for the period 1 October to 31 December 2008, P. 4, paragraph 31.

14 Senate Standing Committee on Foreign Affairs, Defence and Trade, Reforms to Australia military justice system, Fourth progress report, September 2008, p. 68. 15 Senate Standing Committee on Foreign Affairs, Defence and Trade, Reforms to Australia's military justice system, Fourth progress report, September 2008, p. 71. 16 Australian Military Court, report for the period 1 October to 31 December 2008, pp. 20-21,

paragraphs 76 and 77.

121

10

Chapter 1 —Annual reports of statutory and non-statutory authorities and government companies

1982—Australian Military Court—are invalid. This matter will be discussed in following parts of this report.

Committee view

1.19 The CMJ's annual report is an important tool for providing independent and expert insight into the administration of Australia's military justice system. This report is an example of how independence and impartiality can improve the overall function and accountability of the system.

1.20 The committee finds that the second report of the Australian Military Court adequately complies with all reporting requirements for statutory authorities.

Judge Advocate General

1.21 The Judge Advocate General report for the period 1 January to 31 December 2008 was tabled in the Senate on 16 June 2009.

1.22 The Office of Judge Advocate General of the Australian Defence Force (ADF) is a statutory body created under the Defence Force Discipline Act 1982 (DFDA). The Judge Advocate General (JAG) must be, or have been, a Federal Court or a Supreme Court judge.

1.23 The functions of the JAG are prescribed by the DFDA. Prior to the Defence Legislation Amendment Act 2006 (DLAA 06) creating the Australian Military Court (AMC), the JAG was responsible for the following functions: making procedural rules for service tribunals, nominating the defence force magistrate (DFM) for matters referred for trial at that level; nominating the judge advocate (JA) for courts martial; and providing the final legal review of proceedings within the ADF. Most importantly, the JAG provided the annual report on the operation of the DFDA and related legislation to Parliament through the minister. 17

1.24 Since 1 October 2007, the AMC has existed as a standing court with rules made by the Chief Military Judge (CMJ). There is no longer an internal review of proceedings before the AMC. Rather, this has been replaced with an enhanced right of appeal to the Defence Force Discipline Appeals Tribunal (DFDAT). The JAG retained responsibility for an annual report to Parliament on the discipline proceedings as a whole, but the legislation now provides for the CMJ to report separately so far as the AMC is concerned. 18

1.25 At that time, the JAG was also responsible for the making of summary authority rules under DFDA section 149 and with providing the final legal review of

17 Judge Advocate General, Annual Report 2008, p. 2. 18 Judge Advocate General, Annual Report 2008, p. 2.

122

Chapter 1—Annual reports of statutory and non-statutory authorities and government companies 11

summary proceedings. With the passage of the DLAA 08, those functions were reduced further to give effect to the ongoing reforms to the military justice system. 19

Funding

1.26 In light of the new military justice environment, the Judge Advocate General, Major General the Honourable Justice Tracey, stated:

As I indicated in my report for 2007, the OJAG is separate from the AMC. However, the CMJ, Brigadier Tan Westwood AM, has agreed that the Court will continue to provide administrative support to the JAG and what was the separate OJAG budget was, during the reporting year, managed as part of the Court's finances. As I noted last year, this is not ideal, but I nonetheless consider it appropriate in terms of resources. While these

informal arrangements between the Court and OJAG are not desirable on a long term basis, both CMJ and I believe that the arrangements provide a cost effective short term solution pending a final decision on the role (if any) for the JAG once the current military justice reforms are implemented. 20

1.27 The CMJ also referred to this arrangement in his annual report (see CMJ,

paragraph 1.12).

Establishment of the Australian Military Court

1.28 The JAG outlined the progress made in establishing the court. He noted that trials by judge alone proceeded satisfactorily throughout the year and, after overcoming difficulties with military jury trials, the court 'was able to exercise jurisdiction over the full range of offences provided for the DFDA'. He reported that

in October 2008, the court assumed additional responsibility for appeals from decisions of summary authorities.

1.29 He drew attention, however, to the mounting workload of the court and suggested that urgent consideration be given to the appointment of additional military judges. 1

Evidence in proceedings before a summary authority

1.30 In a number of reports, the committee has raised concerns about the rules of evidence in proceedings before a summary authority. In September 2007, it found with regard to the proposed provisions governing the rules of evidence that:

The language is clear about not being bound by the rules of evidence but there is no equally forcefully statement in the provision about natural justice and procedural fairness. There is no stated requirement for a

19 Judge Advocate General, Annual Report 2008, P. 2. 20 Judge Advocate General, Annual Report 2008, p. 3, paragraph 9. 21 Judge Advocate General, Annual Report 2008, p. 4, paragraph 13.

123

12

Chapter 1—Annual reports of statutory and non-statutory authorities and government companies

summary authority to observe as a minimum the principles that underpin the rules of evidence. 22

1.31 In light of the committee findings, the bill was amended. In its fourth progress

report, the committee again referred to the rules of evidence in proceedings before a summary authority. This time the committee was concerned with the actual rules themselves. It stated:

The committee is firmly of the view that formulating the simplified rules of evidence was no easy task especially given the limited time available to have them ready. It takes particular note of Captain Willee's concern that when deadlines are so tight, 'they almost invite error'. The committee believes that an expeditious promulgation of the modified rules of evidence was desirable but not at the expense of sound and considered deliberation. At this late stage in the committee's consideration of the evidence, it has not been able to examine in detail these rules of evidence or to be satisfied that the concerns raised by the Law Council in August have been adequately addressed. As noted previously, the rules were registered on 18 September to come into operation on 20 September. In chapter 5, the committee considers the importance of consultation in drafting legislation, including subordinate legislation. 23

1.32 The committee endorsed the JAG's view that these rules must provide

sufficient detail and 'clarity that can be understood by those who have to implement them'. The difficulty distilling such a large and comprehensive body of legislation into clear and concise rules in a short timeframe underlines the need for them to undergo scrutiny. 24

1.33 In his annual report, the JAG commented on the Summary Authority Rules (SARs). He noted that 'Only time will tell as to how effectively the new arrangements will work in practice'. The JAG stated, however, his belief that:

.the new SARS address the legislative intent, and strike an appropriate balance between affording accused persons being tried at the summary level with appropriate legal safeguards while nonetheless relieving summary authorities from an obligation to comply with formal legal standards that were, in practice, largely unattainable. 25

22 Standing Committee on Foreign Affairs, Defence and Trade, Defence Legislation Amendment Bill 2007, [Provisions], September 2007, paragraph 3.30.

23 Standing Committee on Foreign Affairs, Defence and Trade, Reforms to Australia 's military justice system, Fourth progress report, September 2008, paragraph 2.52.

24 Standing Committee on Foreign Affairs, Defence and Trade, Reforms to Australia's military justice system, Fourth progress report, September 2008, paragraph 2.53.

25 Judge Advocate General, Annual Report, pp. 6-7, paragraph 19.

124

Chapter 1—Annual reports of statutory and non-statutory authorities and government companies 13

Appeals from Sum maly Authority

1.34 The JAG agreed with the views of a previous JAG, Major General Roberts-Smith, who argued that 'the automatic review [of all proceedings resulting in a conviction] was an important safeguard in the case of summary proceedings which are conducted by officers without legal qualifications'. The current JAG supported the CMJ in his suggestion that 'consideration be given to reinstating the automatic review process in connection with summary proceedings, at least in limited form'. 26

Role and function of the JAG

1.35 In his 2007 annual report, the JAG stated that in the context of the new military justice environment:

The Office of the Judge Advocate General and its functions are indicative of the legislature's desire for an appropriate civilian judicial oversight of the operation of the DFDA and related legislation.

The JAG necessarily also plays a significant role in the promotion of the jurisprudential welfare and education of the ADF. 27

1.36 He endorsed the views of his predecessor, Major General Roberts—Smith, as to the desirability of retaining the broad oversight role of the JAG:

If used properly, the JAG's annual report is an important part of the self— regulatory machinery to keep the DFDA, and the discipline system as a whole, current. In this respect, it is quite wrong to envisage those functions currently performed by the JAG will be equivalently transferred to the Chief Judge Advocate and the Registrar of Military Justice.

The position of JAG has, and could continue to have, complete independence and a professional objectivity.. .The central notion of the position of JAG was statutory supervision by senior civilian judicial authority. That cannot be an attribute of the Chief Judge Advocate or the Director of Military Prosecutions, who must necessarily be permanent military officers.

If the position is to be discontinued, some thought must be given as to what mechanism should be put in place to ensure that this overarching monitoring and updating continues. 28

26 Judge Advocate General Annual Report 2008, p. 8, paragraph 23. 27 Judge Advocate General Annual Report 2007, pp. 2-3. 28 Judge Advocate General Annual Report 2007, pp. 2-3.

125

14

Chapter 1—Annual reports of statutory and non-statutory authorities and government companies

1.37 During its inquiry into the progress of reforms to Australia's military justice system, the committee took evidence from the JAG on the future role of his office. It noted that:

Consistent with the views of his predecessor, the current JAG, Major General Richard Tracey, strongly supported the retention of the office as an important means for achieving 'a just and transparent military justice system'. He traced the history of the office of the Judge Advocate General

noting its evolution over time to 'reflect changes in the military discipline system'. He was of the view that the JAG could have a continuing important role especially through the JAG's annual reports to parliament which 'provide an independent judicial insight into military discipline within the ADF'.

Both the CMJ and the DMP are permanent military officers, while the JAG is a senior civilian judicial officer. In contrast to the reports of the CMJ and the DMP on particular aspects of the discipline system, the JAG's report provides oversight and assessment of the operation of the military discipline system as a whole and any related legislation within the reporting year. The JAG is also well placed to make comparisons between the ADF military discipline system and any relevant developments in military discipline overseas. 29

1.38 The committee also noted the views of the JAG that his role need not be

limited to a reporting function. He suggested that the experienced senior civilian judicial standing and independence of the JAG could be used to enhance the fairness, quality, efficiency and effectiveness of the Australian military discipline system into the future. It concluded:

For a number of years, the committee has commended the JAG's annual report as an important means of providing the necessary judicial oversight of the DFDA. With the creation of the AMC and the appointment of a CMJ, the committee urges the government to ensure that the level of independent civilian oversight of Australia's military justice system continues. It is of the opinion that the JAG has a vital and valuable role to play in providing this oversight and that this critical oversight work continue. Nevertheless, the committee supports the CDF's proposal to refer the matter of the JAG to the newly created review team. 30

AMC—High Court decision

1.39 The committee notes the High Court's ruling that the Australian Military Court is invalid. During this time of uncertainty, the importance of the JAG's role as a highly qualified judge who provides independent judicial oversight of the ADF's discipline system is magnified.

29 Standing Committee on Foreign Affairs, Defence and Trade, Reforms to Australia's military justice system, Fourth progress report, September 2008, paragraphs 5.34-5.36.

30 Standing Committee on Foreign Affairs, Defence and Trade, Reforms to Australia's military justice system, Fourth progress report, September 2008, paragraph 5.40.

126

Chapter 1—Annual reports of statutory and non-statutory authorities and government companies 15

Committee view

1.40 The JAG's 2007 annual report again demonstrates the value of having such a strong independent civilian judicial oversight of the operation of the DFDA and related legislation.

1.41 The committee finds that the report adequately complies with all reporting requirements for statutory authorities.

Director of Military Prosecutions

1.42 The Director of Military Prosecutions report for the period 1 January to 31 December 2008 was tabled in the Senate on 16 June 2009. This is the second report presented to Parliament by the Director of Military Prosecutions (DMP).

1.43 The Office of the DMP is a statutory body created under the Defence Force Discipline Act 1982 (DFDA). The position of the DMP was created by section 188G of the DFDA; Brigadier L A McDade commenced her five year appointment on

12 June 2006.' The office holder must be a legal practitioner with not less than five years experience, and be a member of the permanent navy, regular army or permanent air force, or be a member of the reserves rendering full—time service, holding a rank not lower than the rank of commodore, brigadier or air commodore. 32

1.44 Under section 188GA of the act, the DMP has the following functions:

a) to carry on prosecutions for service offences in proceedings before the Australian Military Court (AMC), whether or not instituted by the DMP;

b) to seek the consent of the Directors of Public Prosecutions as required by section 63;

c) to make statements or give information to particular persons, or to the public, relating to the exercise of powers or the performance of duties or functions under the Act;

d) to represent the service chiefs in proceedings before the Defence Force Discipline Appeal Tribunal (DFDAT);

e) to do anything incidental or conducive to the performance of any of the preceding functions. 33

31 Director of Military Prosecutions, Annual Report 2008, p. 1. 32 Director of Military Prosecutions, Annual Report 2007, pp. 1 and 28.

33 Director of Military Prosecutions, Annual Report 2007, pp. 1-2.

127

16

Chapter 1—Annual reports of statutory and non-statutory authorities and government companies

1.45 In addition to his or her function under subsection (1), the DMP also has:

a) the function conferred on the DMP by or under this Act or any other law of the Commonwealth; and

b) such other functions as are prescribed by the regulations. 34

1.46 Brigadier L A McDade reported that during the period under review, minor amendments and revisions were made to the prosecution policy. The changes relate to the legislative amendments made to the DFDA on 20 March 2008. The new policy, which includes a prosecution and disclosure policy, is appended to the annual report. 35

1.47 The report clearly describes the operation and financial position of the Office of the DMP (ODMP) for the reporting period. The office was adequately funded during the reporting period and complied with Financial Management and Accountability Act 1997 (FMA Act). 36

Prosecution policy

1.48 The DMP also reported on a request relating to the prosecution policy from the Inspector-General of the Australian Defence Force (IGADF):

During the reporting period the Inspector-General of Australian Defence Force (IGADF) requested that I consider whether section 1 88GE of the DFDA, which empowers me to issue directions and guidance to Service police investigators and also to prosecutors, made it appropriate for me to

issue a prosecution policy for the whole of the ADF.

While there will be much in common between my prosecution policy and the ADF prosecution policy for summary trials, each policy will include matters which are unique to it and which either have no bearing on or would be inappropriate to be included in the other policy. Therefore, I advised IGADF that I would not issue a prosecution policy for the whole of

the ADF. 17

1.49 The DMP noted that during the reporting period all legal officers at ODMP either already held, or obtained soon after their posting, an ACT practising certificate. 38 She also provided the following data for the reporting period:

219 matters were received and 196 matters were completed, 39

34 Director of Military Prosecutions, Annual Report 2008, pp. 1-2. 35 Director of Military Prosecutions, Annual Report 2008, pp. 1-2. 36 Director of Military Prosecutions, Annual Report 2008, p. 18, paragraph 69. 37 Director of Military Prosecutions, Annual Report 2008, p. 2, paragraphs 5-6. 38 Director of Military Prosecutions, Annual Report 2008, paragraph 13.

39 Director of Military Prosecutions, Annual Report 2008, paragraph 25.

128

Chapter I—Annual reports of statutory and non-statutory authorities and government companies 17

• 13 jury trials, 14 judge alone trails and 63 sentencing hearings were conducted at various locations in Australia; 40

• 78 matters were not proceeded with due to the determination that there were no reasonable prospects of success, or that to prosecute would not have enhanced or enforced service discipline;

• 46 matters were referred back for summary disposal; and

• 5 matters were referred to civilian Directors of Public Prosecution. 41

Significant cases

1.50 The DMP's report cites a number of significant cases heard during the reporting period. These cases provide a valuable insight into matters coming before the military courts and hopefully will go some way to educating members of the ADF about their military discipline system. 42

Role of superior officers

1.51 In her report, the DMP referred to the role of superior authorities. Section 5A of the DFDA permits 'superior authorities' to represent the interests of the ADF in relation to charges that are being considered by the DMP for trial. The CDF and service chiefs have appointed a number of superior authorities who are usually senior officers of one or two-star rank. The DMP explained that the superior authority construct is unique:

Their purpose is to make representations to me essentially on matters which would equate to 'public interest' considerations for prosecution in a civilian criminal court. None of my civilian counterparts have a similar 'adviser' on public interest matters.

Although there is nothing in the DFDA or any other legislation that which obliges me to do so, since being appointed DMP I have as a matter of routine, consulted with the relevant superior authority when considering charges in respect of an ADF member.

The feedback I have received from superior authorities generally has been that my consultation has been worthwhile, in that it notifies them of charges being considered by me. Of more than 200 letters sent to superior authorities, I have received only one negative response. On this basis, I

have determined to continue to engage with superior authorities. 43

40 Director of Military Prosecutions, Annual Report 2008, paragraph 27.

41 Director of Military Prosecutions, Annual Report 2008, paragraph 27.

42 Director of Military Prosecutions, Annual Report 2008, pp. 8-13. 43 Director of Military Prosecutions, Annual Report 2008, pp. 12-13.

129

18

Chapter 1—Annual reports of statutory and non-statutory authorities and government companies

Matters for consideration

1.52 The DMP raised a number of matters that in her view warrant close consideration. The DMP:

recommended that it is an appropriate time to review the investigative authority of Inspector General Division (IGD) into matters of fraud and to determine whether, given the creation of the Director Defence Counsel Services, ADFIS, DMP and the AMC, it remains appropriate for IGD to continue to investigate fraud and related offences allegedly committed by ADF members. This is primarily where the amount involved is greater than $20,000 or at all ;44

suggested that the DFDA be amended to create a credit card offence which can be tried either summarily or before the AMC—the DMP has received briefs of evidence disclosing Defence travel card, Defence purchasing card or Defence fuel card misuse for less than $100; 45

recommended the inclusion in the DFDA of aggravated assault provisions so that the criminal responsibility provisions for aggravated assault and common assault under the DFDA are uniform; 46

suggested that the DFDA be amended to grant service tribunals the capacity to impose global punishments in appropriate circumstance s; 47

noted that there appears to be no-one responsible for ensuring that a member who is fined by the court actually pays the fine, or a member reduced in rank by the court has his rank reduced and that this situation requires attention; 48

recommended that the AMC investigate the use of Commonwealth court facilities in appropriate regions and that more matters be listed for trial in Canberra at the AMC; 49 and

opposed a possible amendment to the DFDA that would provide for a minister to issue directions and guidelines to DMP—the grounds for opposition include that 'the office of DMP would be subject to the directions and guidance of a minister or authority who does not hold legal office'. 50

44 Director of Military Prosecutions, Annual Report 2008, p. 6, paragraph 22. 45 Director of Military Prosecutions, Annual Report 2008, pp. 14-15.

46 Director of Military Prosecutions, Annual Report 2008, p. 15. 47 Director of Military Prosecutions, Annual Report 2008, pp. 15-17. 48 Director of Military Prosecutions, Annual Report 2008, p. 17.

49 Director of Military Prosecutions, Annual Report 2008, pp. 17-18.

50 Director of Military Prosecutions, Annual Report 2008, p. 14, paragraph 52.

130

S

S

S

S

S

.

.

Chapter 1—Annual reports of statutory and non-statutory authorities and government companies 19

DMP's assessment

1.53 In the conclusion to her report, Brigadier McDade stated:

In my previous report, I indicated that that ODMP had undergone a period of growth and consolidation. My previous report also expressed confidence that greater openness, transparency and independence in the military justice system and the prosecution process would serve to enhance service discipline. It is my belief that the 'bedding down' of the operation of the AMC and ODMP, and the changes to the DFDA implemented in the latter half of 2008, go a long way to providing the ADF with a military system

able to meet the demands of the future military operations and the expectations of the Australian and international communities. I look forward to the continued refinement of Service discipline in this context. 51

1.54 The committee finds that the report adequately complies with all reporting requirements for statutory authorities.

Committee view

1.55 In large measure, the responsibility for providing the necessary visibility and oversight of the ADF's discipline system rests with an independent CMJ, an independent DMP, and a JAG, who is an independent senior civilian judge with oversight responsibility. Their independent and critical voice is vital to the health of the system. They are well placed to identify and issue early warning signals of problems in the discipline system. In particular, the requirement for the CMJ, the JAG and the DMP to provide an annual report to the minister for presentation to the Parliament is an important means of upholding the integrity of the ADF's discipline system.

1.56 The committee notes that the government has agreed to the committee's recommendation that 'the Defence Act 1903 be amended to include in section 110 the requirement for the IGADF to, as soon as practicable after 31 December each year, prepare and give to the minister, for presentation to the Parliament, a report relating to the functions of his office as set out in section 1 lOC (1)'. For a number of years, the committee has recommended the introduction of such a reporting regime for the

IGADF, and welcomes the change.

Recent development—decision of the High Court

1.57 As noted previously, the High Court has ruled that the AMC is constitutionally invalid. This decision has enormous implications for the Chief Military Judge, the Director of Military Prosecutions and the Judge Advocate General. The committee will have to wait for legislation addressing this matter before it can make any defmitive findings. Nonetheless, it takes this opportunity to refer to a

number of its findings including its report on Australia's military justice system tabled

51 Director of Military Prosecutions, Annual Report 2008, pp. 18-19.

131

S

20 Chapter 1—Annual reports of statutory and non-statutory authorities and government companies

in June 2005. In this report on the effectiveness of Australia's military justice system, the committee recommended that:

the government amend the DFDA to create a permanent Military Court capable of trying offences under the DFDA currently tried at the Court Martial or Defence Force Magistrate level ;52 and

the permanent military court to be created in accordance with Chapter III of the Commonwealth Constitution to ensure its independence and impartiality. 53

1.58 In 2006, the Defence Legislation Amendment Bill 2006 was introduced in

Parliament. Its main purpose was to give effect to the government's undertaking to enhance Australia's military justice system. It proposed to replace the current system of trials by Courts Martial and Defence Force Magistrates with an 'Australian Military Court'. The committee identified a raft of concerns with the proposed legislation and stated unequivocally:

.the government settled for the barest minimum reforms required to its service tribunals to escape a constitutional challenge. In so doing, the committee takes the view that, in striving for the minimum, the government has not removed the risk that at some stage the High Court may find that

54 the AMC is constitutionally invalid.

1.59 In light of the committee's findings, the bill was amended but was not referred to the committee for inquiry and report. The bill as amended was passed by the Parliament and received assent on 11 December 2006.

1.60 The High Court's decision on the invalidity of the AMC has cast a great deal of uncertainty over the operation of ADF's disciplinary system. The committee recognises the need for the government to give urgent consideration to this matter. Despite this need for immediate attention, the committee takes this opportunity to urge the government to ensure that it consults widely, especially with independent experts in military and in constitutional law, before introducing legislation designed to address the long-term future of the AMC.

52 Senate Foreign Affairs, Defence and Trade References Committee, The effectiveness of Australia's military justice system, June 2005, Recommendation 18, p. liii. 53 Senate Foreign Affairs, Defence and Trade References Committee, The effectiveness of Australia's inilitaiy justice system, June 2005, Recommendation 19, p. liv. 54 Standing Committee on Foreign Affairs, Defence and Trade. Defence Legislation Amendment

Bill 2006 [Provisions], October 2006, pp. 5-6.

132

Chapter 1 Annual reports of statutory and non-statutory authorities and government companies 21

ASC Pty Ltd

1.61 The ASC Pty Ltd Annual Report was tabled in the Senate on 3 December 2008.

1.62 The ASC Pty Ltd (formerly known as Australian Submarine Corporation), established in 1985, is Australia's largest specialised defence shipbuilding organisation. It is widely known as the designer and builder of the world's best conventional submarines.

1.63 It is a non-statutory, proprietary company limited by shares registered under the Corporations Act and is subject to the Commonwealth Authorities and Companies Act 1997 (CAC Act). All the shares issued in the capital of ASC are owned by the Minister for Finance and Deregulation. In accordance with its constitution, ASC is

subject to direction by the minister. 55 On 11 June 2004, ASC was proclaimed as a government business enterprise under the CAC Act. 56

1.64 In his chairman's report, Mr John Prescott, AC, stated that the 2007/2008 year was the most notable for the company's sizeable investment in its infrastructure:

The opening of ASC West on 30 April 2008 marked a fundamental change in the way ASC will conduct its submarine business in Western Australia. This $35 million purpose-built facility comprises a submarine maintenance hail, workshops, stores warehouse and offices. It amalgamates three different premises into one consolidated, cutting-edge complex and will enable us to achieve higher levels of efficiency and effectiveness.

Meanwhile, construction of our 100 million shipyard at Osborne commenced during the year. Scheduled for completion in late 2009, our world-class shipbuilding facility will be the future of all Hobart Class Air Warfare Destroyer (AWD) production.

57

1.65 The committee notes that ASC is positioning itself to return to the private

sector. The chairman stated that, for eight years, ASC has worked to overcome various impediments to the company's viability and long-term growth, in preparation for the privatisation of the company:

The Board and management of ASC continue to fully support ASC! s return to the private sector. It is hoped that the sale will be completed during the 2008/2009 financial year, thus enabling the company to focus on upcoming challenges of the AWD program and next generation submarine. 58

55 ASC Pty Ltd, Report for 2008, pp. 2 and 20.

56 ASC Pty Ltd, Report for 2008, p. 20.

57 ASC Pty Ltd, Report for 2008, p. 5.

58 ASC Pty Ltd. Report for 2008, p. 5.

133

22

Chapter 1—Annual reports of statutory and non-statutory authorities and government companies

1.66 ASC has presented a comprehensive and informative report. The committee finds that it adequately complies with all reporting requirements for non-statutory company.

Senator Mark Bishop

Chair

134

Appendix 1

Annual reports referred to the committee Defence portfolio Departments

Department of Defence

Department of Veterans' Affairs, Repatriation Commission and the National Treatment Monitoring Committee (NATMOC)

Statutory authorities

Army and Air Force Canteen Service Board of Management

Australian Military Court

Australian Military Forces Relief Trust Fund

Australian Strategic Policy Institute Limited

Australian War Memorial

Commonwealth Ombudsman and Defence Force Ombudsman

Defence Force Remuneration Tribunal

Defence Force Retirement and Death Benefits Authority

Defence Housing Authority

Director of Military Prosecutions

Judge Advocate General

Inspector—General of Intelligence and Security, Office of the (not tabled)

Military Superannuation and Benefits Board of Trustees No 1

Repatriation Medical Authority

Royal Australian Air Force Veterans' Residences Trust Fund

Royal Australian Navy Central Canteens Fund

Royal Australian Navy Relief Trust Fund

Veterans' Review Board

Non—statutory authorities and government companies

ASC Pty Ltd, formerly known as Australian Submarine Corporation Pty Limited

135

24

Appendix 1—Annual reports referred to the Committee

Foreign Affairs and Trade portfolio

Department

Department of Foreign Affairs and Trade

Statutory authorities

Australian Centre for International Agricultural Research

Australian Safeguards and Non—Proliferation Office

Australian Trade Commission (Austrade)

Export Finance and Insurance Corporation

Non—statutory authorities and government companies

Australian Agency for International Development (AusAID)

136

Appendix 2

Compliance table of the annual reports referred to the committee for scrutiny for the period 2007-2008

Scrutiny of reports tabled after 31 October 2008

@ Date report * Date report

Enabling legislation

submitted to presented to

Department/agency

Date on letter minister (if President

and of transmittal known)

0 # Date tabled in

timeliness /o Date report the Senate

received by minister (if " Date tabled in

known) ELtRepresentatives

Defence—statutory authorities

Australian Military Defence Force 20 Apr 09 # 16 Jun 09

Court Discipline Act 1982,

section 196C. As soon as practicable after 31 December each year.

Director of Military Defence Force 17 Apr 09 # 16 Jun 09

Prosecutions Discipline Act 1982,

section 196B. As soon as practicable after 31 December each year.

Judge Advocate Defence Force 06 May 09 # 16 Jun 09

General Discipline Act 1982,

section 196A(1). As soon as practicable after 31 December each year. JAG reports for the period 1 January to 31 December each year.

Defence—Non-statutory authorities and government companies

ASC Pty Ltd ASC Pty Ltd is a 29 Oct 08 # 16 Jun09

proprietary company limited by shares registered under the Corporations Act and is subject to the

137

26

Appendix 2—Scrutiny of reports tabled after 31 October 20

Scrutiny of reports tabled after 31 October 2008

@ Date report * Date report

Enabling legislation

submitted to presented to

Department/agency

Date on letter minister (1 President

and of transmittal known)

# Date tabled in

timeliness % Date report the Senate

received by minister (if A Date tabled in

known) [I/Representatives

Commonwealth Authorities and Companies Act 1997.

138

Appendix 3

Reporting requirements and guidelines Departmental reports' A uthority for requirements

These annual report requirements are prepared pursuant to subsections 63(2) and 70(2) of the Public Service Act 1999 and were approved by the Joint Committee of Public Accounts and Audit on 18 June 2008.

Commencement and reporting period

The requirements apply for annual reports for financial years ending on or after 30 June 2008.

Application

(1) The requirements apply to annual reports for departments of state pursuant to subsection 63(2) and for executive agencies pursuant to subsection 70(2) of the Public Service Act 1999. As a matter of policy, they also apply to prescribed agencies under section 5 of the Financial Management and Accountability Act 1997 (FMA Act).

In respect of Commonwealth authorities and companies, section 9 of the Commonwealth Authorities and Companies Act 1997 (CAC Act) provides that the directors of Commonwealth authorities must prepare an annual report for the responsible Minister who must, in turn, table the annual report in both houses of the Parliament 'as soon as practicable'. Part I of

Schedule 1 to the CAC Act details content that must be included in annual reports. Under section 36 of the CAC Act, the content of annual reports for Commonwealth companies is based on reporting requirements under the Corporations Act 2001.

(2) In most cases the term 'department' is used in these requirements to refer to all departments and agencies that will be preparing annual reports under these requirements. Similarly, 'secretary' is used to refer to a departmental secretary or to an agency head of one of those other bodies.

(3) In the case of an agency (including an executive agency established under section 61 of the Public Service Act 1999) that is neither prescribed under

1 Excerpt from the Requirements for annual reports for departments, executive agencies and FMA Act bodies, Department of Prime Minister and Cabinet, 18 June 2008, pp. 1 and 2.

139

28

Appendix 3—Reporting requirements and guidelines

the FMA Act nor comes with the Commonwealth Authorities and Companies Act 1997 (CAC Act), these requirements may be used to the extent that they are consistent with any reporting requirements contained in the agency's own legislation (if any).

(4) In cases of machinery of government change during the reporting period, where functions or offices are gained or lost, the established practice is that the gaining department must report on that function or office for the entirety of the reporting period, whether or not the losing department continues to exist. However, in relation to financial statements, the general rules is that each Chief Executive who had responsibility for a function must sign off on financial statements relating to the period of their individual responsibility and include them in their own annual reports. If, for any reason, the losing department does not produce an annual report that covers the period it had the function, the financial statements from the earlier period must be published in the gaining department's annual report.

Timetable

A copy of the annual report is to be laid before each House of the Parliament on or before 31 October in the year in which the report is given.

The provisions of subsections 34C(4)—(7) of the Acts Interpretation Act 1901 apply in relation to an application for extension of the period.

Where an agency's own legislation provides a timeframe for its annual report, for example 'within six months' or 'as soon as practicable after 30 June in each year', that timeframe applies. An extension under the Acts Interpretation Act would need to be sought only should a specified timeframe not be met.

However, it remains the Government's policy that all annual reports should be tabled by 31 October.

Commonwealth authorities and companies

The Commonwealth Authorities and Companies Act 1997 (the CAC Act) contains detailed rules about reporting and accountability for commonwealth authorities and commonwealth companies. Commonwealth companies also must meet other reporting requirements as set out in Corporations Law.

The Commonwealth Authorities and Companies (Report of Operations) Orders 2002, made under section 48 of the CAC Act, enables organisations to comply with the specific requirements for tabling reports.

The notes from the Commonwealth Authorities and Companies (Report of Operations) Orders 2002 are set out below.

140

Appendix 3—Reporting requirements

and guidelines 29

• Basis for annual report: Section 9 of the CAC Act requires directors of a Commonwealth authority to prepare an annual report in accordance with Schedule 1 of the CACAct.

• Report of operations requirement: The annual report must include a report of operations prepared by the directors in accordance with Finance Minister's Orders (clause 1 of Schedule 1 of the CAC Act).

• Financial statements requirement: The annual report must include financial statements prepared by the directors (clause 2 of Schedule 1 of the CAC Act) and the Auditor—General's report on those financial statements.

• Tabling requirements: Section 9 of the CAC Act provides that the directors must give the annual report to the responsible Minister by the 15th day of the 4th month after the end of the Commonwealth authority's financial year. Where a

Commonwealth authority's financial year ends on 30 June, this means that the annual report must be given to the responsible Minister by 15 October. The responsible Minister must in turn table the annual report in both Houses of the Parliament 'as as soon as practicable'. Under subsection 34C(3) of the Acts Interpretation Act 1901, this means within 15 sitting days.

Non—statutory bodies

The annual report of a non—statutory body shall contain the following information (after Senate Hansard, 8 December 1987, pp. 2643-2645):

• The annual report shall show the date of establishment of each new non— statutory body (NSB) and, in relation to each existing NSB, information regarding the date if its establishment in as much detail as is available.

• The annual report shall contain a statement of each NSB's objectives and functions.

• The annual report shall contain an account of each NSB's significant activities during the year.

• The annual report shall contain an indication that the creation or continued existence of each NSB, its functions and its organisation have received Ministerial approval.

• The annual report shall show the date in which each NSB will cease to exist or before which it will be reviewed (whichever is the earlier).

• In the case of any NSB whose continued existence, functions and organisation have been reviewed and whose continued existence has been approved by the Minister, the annual report shall show a summary of the outcome of the review.

• The annual report will contain a list of any positions provided for ex—officio government members on each NSB and of any positions provided for representatives nominated by particular non—government organisations.

141

30

Appendix 3—Reporting requirements and guidelines

• The annual report shall show the maximum term of appointment of each on an NSB.

• Except in cases where there may be little or no continuity of membership from one meeting to the next, the annual report will show the names of individual members of each NSB, and their terms of appointment.

• The report will show the manner in which the level of remuneration paid (if any) to members of each NSB is determined.

• The report will show the manner in which each NSB is funded.

• The report will show a summary of any other financial arrangements such as the kinds of expenditure that can be made from the funds provided, and the nature of secretariat services provided and the way in which these are funded.

• In respect of each NSB, the annual report shall indicate whether one of its functions is to distribute funds to other organisations or individuals.

• AN NSB with its own accounting system shall provide an audited financial statement.

• When an NSB operates through its parent body accounts, the NSB shall provide an account of receipts and expenditure on a program basis. It will also show:

• the NSB's work reflected in the parent body's published program structure,

• performance related to objectives and measured in terms of stated criteria, in accordance with standard program budgeting techniques, and

• the amounts of any grants made by each NSB.

142

The Senate

Legal and Constitutional Affairs

Legislation Committee

Annual reports (No. 2 of 2009)

September 2009

143

© Commonwealth of Australia

ISBN: 978-1-74229-181-9

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

144

MEMBERS OF THE COMMITTEE

Members Senator Patricia Crossin, Chair, ALP, NT

Senator Guy Barnett, Deputy Chair, LP, TAS

Senator David Feeney, ALP, VIC

Senator Mary Jo Fisher, LP, SA

Senator Scott Ludlam, AG, WA

Senator Gavin Marshall, ALP, VIC

Secretariat

Mr Peter Hallahan Secretary

Ms Margaret Cahill Research Officer

Ms Cassimah Mackay Executive Assistant

Suite Sl. 61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon,sen(aph.gov.au

146

TABLE OF CONTENTS

MEMBERS OF THE COMMITTEE iii

PREFACE vii

Terms of reference vii

Role of annual reports viii

Timing of presentation of reports on annual reports viii

'Apparently satisfactory' Viii

Timeliness viii

Conclusion ix

CHAPTER 1 1

ANNUAL REPORTS OF STATUTORY AUTHORITIES.. 1

Attorney-General's Portfolio 1

Immigration and Citizenship Portfolio I

Australian Security Intelligence Organisation 2

Australian Human Rights Commission (formerly the Human Rights and Equal Opportunity Commission) 5

Migration Agents Registration Authority 6

National Native Title Tribunal 7

CHAPTER 2 . 9

REPORTS ON THE OPERATION OF ACTS AND PROGRAMS 9

Protection visa processing taking more than 90 days and refugee reviews taking more than 90 days 9

Australian Crime Commission Assumed Identities Annual Report 2007-08 11

APPENDIX 1 13

ANNUAL REPORTS REFERRED 13

List of annual reports referred 13

List of reports on the operation of acts 14

147

148

PREFACE

Terms of reference On 13 February 2008, a resolution of the Senate allocated the following portfolios to the Senate Standing Committee on Legal and Constitutional Affairs:

• Attorney-General's portfolio; and

• Immigration and Citizenship portfolio.

This report was prepared pursuant to Standing Order 25(20) relating to the consideration of annual reports by committees. The Standing Order states:

Annual reports of departments and agencies shall stand referred to the committees in accordance with an allocation of departments and agencies in a resolution of the Senate. Each committee shall:

(a) Examine each annual report referred to it and report to the Senate whether the report is apparently satisfactory;

(b) Consider in more detail, and report to the Senate on, each annual report which is not apparently satisfactory, and on the other annual reports which it selects for more detailed consideration;

(c) Investigate and report to the Senate on any lateness in the presentation of annual reports;

(d) In considering an annual report, take into account any relevant remarks about the report made in debate in the Senate;

(e) If the committee so determines, consider annual reports of departments and budget-related agencies in conjunction with examination of estimates;

(f) Report on annual reports tabled by 31 October each year by the tenth sitting day of the following year, and on annual reports tabled by 30 April each year by the tenth sitting day after 30 June of that year;

(g) Draw to the attention of the Senate any significant matters relating to the operations and performance of the bodies furnishing the annual reports; and

(h) Report to the Senate each year whether there are any bodies which do not present annual reports to the Senate and which should present such reports.

Vii 149

Role of annual reports

Annual reports place a great deal of information about government departments and agencies on the public record. Accordingly, the tabling of annual reports is an important element of accountability to Parliament, as the information provided in annual reports assists in the effective examination of the performance of departments and agencies and the administration of government programs.

Timing of presentation of reports on annual reports

Standing Order 25(20)(f) requires that committees report on annual reports tabled by 31 October each year by the tenth sitting day of the following year and on annual reports tabled by 30 April each year by the tenth sitting day after 30 June of that year.

Under the guidelines issued by the Department of Prime Minister and Cabinet, the annual reports of departments and executive and prescribed agencies must be tabled by 31 October.' If a department is unable to meet this deadline, the secretary is to advise the responsible Minister of the reasons for the delay and the expected tabling date. The responsible Minister is to table this explanation in the Parliament on the next available sitting day. 2

Orders made by the Minister under section 48 of the Commonwealth Authorities and Companies Act 1997 set out guidelines for the annual reports of statutory bodies.

Guidelines for the annual reports of non-statutory bodies are set out in the Government Response to recommendations of the then Senate Standing Committee on Finance and Government Operations in its report entitled, Reporting Requirements for the Annual Reports of Non-Statutory Bodies. The response was incorporated into the Senate Hansard of 8 December 1987.

'Apparently satisfactory'

Under the terms of Standing Order 25(20)(a), the committee is required to report to the Senate whether reports are 'apparently satisfactory'. In making this assessment, the committee considers such aspects as compliance with relevant reporting guidelines.

Timeliness

Under standing order 25(20)(c), the committee must also report to the Senate on any lateness in the presentation of annual reports. The Public Service Act 1999 requires that reports be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit. These guidelines state:

1 Department of the Prime Minister and Cabinet, Requirements for Annual Reports, Canberra, 17 June 2009.

2 Department of the Prime Minister and Cabinet, Guidelines for the Presentation of Government Documents to the Parliament, Canberra, July 2008, P. 5. 3 Official Senate Hansard, 8 December 1987, pp 2643 -45. VI"

150

A copy of the annual report is to be presented to each House of the

Parliament on or before 31 October in the year in which the report is given. 4

A table listing the annual reports tabled (or presented to the President out of session) between 1 November 2008 and 30 April 2009 and which have been referred to the committee for examination in this report can be found at Appendix 1.

As noted in its first report for 2009, the committee was concerned by the number of agencies that were required to table reports by 31 October 2008 and failed to do so. The committee considers the timely tabling of annual reports an important element of accountability. Agencies are reminded that 'it remains the Government's policy that all annual reports should be tabled by 31 October'. 5

Conclusion

The committee examined all of the annual reports submitted between 1 November 2008 and 30 April 2009 and found them to be of a satisfactory standard, adequately describing the functions, activities and financial positions of the department or agency. The committee therefore finds all submitted annual reports to be 'apparently satisfactory'.

4 Department of the Prime Minister and Cabinet, Requirements for Annual Reports, Canberra, 17 June 2009, paragraph no. 4.

5 Department of the Prime Minister and Cabinet, RequireinentsforAnnual Reports, Canberra, 17 June 2009, paragraph no. 4.

ix

151

152

.

S

S

S

S

S

S

I

S

I

S

S

.

I

S

S

S

CHAPTER 1

ANNUAL REPORTS OF STATUTORY AUTHORITIES 1.1 The following reports of statutory authorities for the financial year 2007-08 were referred to the committee for examination and report:

Attorney-General's Portfolio

Administrative Appeals Tribunal

Administrative Review Council

Audio-Visual Copyright Society Limited (S creenrights)

Australian Crime Commission'

Australian Government Solicitor

Australian Institute of Criminology and Criminology Research Council

Australian Law Reform Commission

Australian Security Intelligence Organisation

Commonwealth Ombudsman 2 [Prime Minister and Cabinet portfolio]

Copyright Agency Limited

Family Court of Australia

Federal Court of Australia

Federal Magistrates Court

High Court of Australia

Human Rights and Equal Opportunity Commission (now Australian Human Rights Commission)

Insolvency and Trustee Service Australia

National Capital Authority

National Native Title Tribunal

Classification Board and Classification Review Board

Office of Parliamentary Counsel

Immigration and Citizenship Portfolio

Migration Agents Registration Authority

Also stands referred to the Joint Committee on the Australian Crime Commission, under the Australian Crime Commission Act 2002.

Forwarded to the Finance and Public Administration Committee also.

153

Page 2

• Migration Review Tribunal

• Refugee Review Tribunal

1.2 In each of these reports, the committee's custom has been to select a small number of reports for closer examination. On this occasion, the committee decided to select the annual reports of the following agencies:

S Australian Security Intelligence Organisation • Human Rights and Equal Opportunity Commission S Migration Agents Registration Authority S National Native Title Tribunal

Australian Security Intelligence Organisation

1.3 The annual report of the Australian Security Intelligence Organisation (ASIO) was tabled in the Senate on 11 November 2008. As indicated in the letter of transmittal, this report is provided to the Attorney-General in an unclassified form for tabling, while a classified annual report is also provided to the Attorney-General in accordance with section 94 of the Australian Security Intelligence Organisation Act

1979.

1.4 ASIO's role as Australia's security service limits the information which is included in the unclassified annual report. Subsection 94(4) of the Act allows the Minister to make deletions from the classified report 'in order to avoid prejudice to security, the defence of the Commonwealth, the conduct of the Commonwealth's international affairs or the privacy of individuals.'

1.5 The level of scrutiny available with regard to ASIO's operations was the subject of questioning during the recent budget estimates 2009-10 hearings. The Director-General of Security described the role of the unclassified report within the broader accountability regime for the organisation.

Senator LUDLAM—How do the Australian public know if they are getting value for money? What are your distinct outputs? How are we measuring the success of the agency, particularly benchmarked against big increases in funding?

Mr Irvine—I frankly think that is a difficult question to answer to the full satisfaction of the Australian public in the sense that, necessarily, ASIO's activities and its successes cannot be made public. So what the system has in place is, first of all, a form of reporting which is public. The annual report of ASIO is put forward in an unclassified form for the public. That necessarily tends to speak in generalities. For the government itself, there is a much more complete report of a highly classified nature. The second area of oversight, if you like, is through the Joint Parliamentary Committee on Intelligence and Security, which looks into the management and administration of ASIO. There are other measures of oversight that ensure or add substance to the notion of assurance to the Australian public that ASIO is indeed working effectively and with appropriate levels of probity.

154

Page 3

Senator LUDLAM—T am a little more familiar with the role of the joint parliamentary committee, but can you describe for us in broad terms the classified reporting obligations that you have, presumably to the Attorney-General? What sort of form do they take?

Mr Irvine—In essence it takes the form of a typical Public Service annual report but sometimes it goes into quite considerable detail about cases and statistics that perhaps cannot be made public and so on. 3

1.6 It was noted in the annual report that ASIO is the only agency within the Australian intelligence community that produces a publicly available annual report. 4

1.7 The committee found the report for 2007-08 adhered to the reporting requirements under section 94 of the ASIO Act and followed the requirements for annual reporting. Taking into account the limitations placed on the agency with regards to public reporting, the annual report provided a good account of activities, initiatives and financial position for the year under review.

1.8 The one-page summary of key statistics for 2007-08 in the introductory section of the report was a useful inclusion. It provided quick access to key items of continuing interest, including staffing numbers and budget, and a snapshot of the ASIO's work throughout the year in review, often with a comparative figure for the previous year. 6

1.9 The report stated that terrorism continues to pose a significant security threat to Australia and counter-terrorism continues to be a major priority for the organisation. 'Terrorism ..... currently commands the majority of ASIO's operational attention and resources.' 7 However, ASIO is also building capability to meet the

growing demands in the areas of countering espionage and foreign intelligence. 8 It was reported that ASIO has boosted the level of resources devoted to counter-espionage work and plans to build further capability through to 2010-11.

1.10 ASIO reported on the progress of the Next Generation Border Security (NGBS) initiative. ASIO has worked with the Department of Immigration and Citizenship on this initiative which is aimed at improving service delivery related to border security through better identification and prevention of entry to Australia of

3 Committee Hansard, 26 May 2009, p. 138. 4 Australian Security Intelligence Organisation Report to Parliament 2007-08, p. 61. 5 Australian Security Intelligence Organisation Report to Parliament 2007-08, p. 122.

6 Australian Security Intelligence Organisation Report to Parliament 2007-08, p. viii

7 Australian Security Intelligence Organisation Report to Parliament 2007-08, p. 3.

8 Australian Security Intelligence Organisation Report to Parliament 2007-08, p. vii.

9 Australian Security Intelligence Organisation Report to Parliament 2007-08, p. 7.

155

Page 4

people of security concern. 10 The report advised that the implementation of the NGBS is well advanced and the committee looks forward to further updates.

1.11 The report notes an increase in ASIO's involvement in criminal and legal litigation during 2007-08. This includes the provision of information to support terrorism prosecutions, civil litigation and review of administrative decisions." In response to this growing trend, a Legal Division was created in July 2007.12

1.12 Staffing numbers have continued to increase during the reporting period. The ASIO workforce grew from 1356 to 1492 during 2007-08 but was still below the target growth figure of 170 for the year. However, ASIO reported that the organisation was still confident of achieving its target of 1860 by 2010-11.'

1.13 The growth in staffing has put pressure on ASIO's office accommodation and a new central office building was approved in the 2007-08 Federal Budget. The new building is scheduled for completion by 2012.14

1.14 The total price of ASIO's outputs increased by $69.345m in 2007-08. It was reported that the agency received a significant equity injection of $1 59m during the year which allowed ASIO to continue its major capital investment activities. 15

1.15 The committee noted that the report referred to several recent reviews and inquiries that ASIO cooperated with during 2007-08. These included the Homeland and Boarder Security Review (the Smith Review) and the Clarke inquiry into the handling by Australian agencies of investigations following attempted bombings in the United Kingdom in June 2007. The report also provided a summary of the recommendations which related directly to ASIO which came out of the review of interoperability between the Australian Federal Police (AFP) and its national security partners conducted by the Honourable Sir Laurence Street AC KCMG QC. It noted that implementation of these recommendations, working with the AFP and the Commonwealth Director of Public Prosecutions, was well advanced. 1 6

1.16 The committee considers the ASIO annual report to be 'apparently

satisfactory'.

10 Australian Security intelligence Organisation Report to Parliament 2007-08, p. 20. 11 Australian Security Intelligence Organisation Report to Parliament 2007-08, p. 23. 12 Australian Security Intelligence Organisation Report to Parliament 2007-08, p. 24. 13 Australian Security Intelligence Organisation Report to Parliament 2007-08, p. 45. 14 Australian Security Intelligence Organisation Report to Parliament 2007-08, p. 55.

15 Australian Security Intelligence Organisation Report to Parliament 2007-08, p. xiv.

16 Australian Security Intelligence Organisation Report to Parliament 2007-08, p. 64.

156

Page 5

Australian Human Rights Commission (formerly the Human Rights and Equal Opportunity Commission)

1.17 The committee commends the Australian Human Rights Commission (AHRC) on a report that is well presented and which provides a good account of the commission's performance and activities for the year in review. The report also clearly articulates the Commission's role and objectives. It includes a review of the 'HRE0C21' summit, a planning exercise 'to initiate a AHRC-wide strategic planning process by creating a refreshed vision for AHRC's future and a concrete plan of action that would make the vision happen'. 17 The outcomes from the summit included a new vision and mission, a new strategic plan and a full-time position to implement these. 18

1.18 The committee notes that a compliance index was not included in the report. While the inclusion of a compliance index is not mandatory, the committee recommends agencies include one as a useful cross reference to the annual reporting requirements.

1.19 The report began with a summary of milestones for the year under review. 19 Amongst the range of items highlighted was the appointment of Ms Elizabeth Broderick as Sex Discrimination Commissioner and Commissioner responsible for Age Discrimination; the reaccreditation of three national Indigenous Legal Advocacy courses of which AHRC is the copyright holder; and the implementation of the Community Partnerships for Human Rights Program, a set of initiatives to assist the achievement of social inclusion for Australia's Muslim communities and to help decrease marginalisation and discrimination on the basis of race or religion. 20

1.20 Complaints handling forms a significant part of the work of AHRC. The Commission has responsibility for the investigation and conciliation of complaints lodged under federal anti-discrimination and human rights law, and provides information to the public about the law and the complaint process. 21 The annual report provided a detailed account of the Commission's performance in this area and

included extensive use of tables and graphs. Additionally, the committee found the use of case studies to illuminate the work of the Complaints Handling Section a useful inclusion in this chapter.

1.21 During 2007-08 the volume of both inquiries and complaints increased. Inquiries increased by 13 per cent from the previous year and 32 per cent in comparison to the average number of enquiries received over the previous four years. The number of complaints for the period increased by 17 per cent from the previous

17 Human Rights and Equal Opportunity Commission Annual Report 2007-2008, p. 1.

18 Human Rights and Equal Opportunity Commission Annual Report 2007-2008, p. 2.

19 Human Rights and Equal Opportunity Commission Annual Report 2007-2008, pp v-vu.

20 Human Rights and Equal Opportunity Commission Annual Report 2007-2008, pp v-vi.

21 Human Rights and Equal Opportunity Commission Annual Report 2007-2008, p. 43.

157

Page 6

reporting year and 28 per cent in comparison with the average number of complaints over the past four years. 22 Despite these increases, the Commission reported that it had exceeded its targets for the performance standards for timeliness, the conciliation rate and customer satisfaction. 23

1.22 The report made references to budget pressures impacting on the organisation. The committee notes that the outgoing President, the Honourable John von Doussa QC, expressed concern that budget restraints were 'seriously limiting research and policy initiatives that could otherwise be undertaken to enhance the understanding and enjoyment of human rights in Australia and our near Pacific neighbours.' 24 Similarly, the Race Discrimination Commissioner stated that:

It is with continuing disappointment I note ... that HREOC must continue its works in an environment of ever-diminishing financial resources and staff reductions at the very time that modest budget supplementation could offer such significant benefits to the entire nation. 25

1.23 The committee considers the annual report of AHRC to be 'apparently satisfactory'.

Migration Agents Registration Authority

1.24 The Migration Agents Registration Authority (MARA) was established to ensure relevant provisions of the Migration Act 1958 are administered and to regulate the migration advice profession. 26 From 1 July 2009 MARA has been attached to the Department of Immigration and Citizenship as a discrete office.

1.25 As stated in the letter of transmittal, MARA prepares its annual report in accordance with Guidelines for the Presentation of Government Documents to the Parliament and to the extent that it is relevant to its operation, it also complies with the Requirement for Annual Reports for Departments, Executive Agencies and FMA Act Bodies 2008.

1.26 MARA's annual report sets out a clear account of organisational performance for the year under review. Appendix Four presents the performance targets for MARA as provided for in the Deed of Agreement entered into between the Commonwealth and the Migration Institute of Australia (MIA). These targets are referenced to relevant sections in the report .27

22 Human Rights and Equal Opportunity Commission Annual Report 2007-2008, p. 43. 23 Human Rights and Equal Opportunity Commission Annual Report 2007-2008, pp 44-45.

24 Human Rights and Equal Opportunity Commission Annual Report 2007-2008, p. xiii. 25 Human Rights and Equal Opportunity Commission Annual Report 2007-2008, p. 131. 26 Migration Agents Registration Authority 2007-2008 Annual Report, p. 6.

27 Migration Agents Registration Authority 2007-2008 Annual Report, p. 35.

158

Page 7

1.27 The committee notes that MARA generally performed well against performance targets. The section of the report dealing with performance in relation to complaints provided detailed data on various aspects of the complaint handling processes, including volume, finalising times, sources and issues. MARA met or

exceeded performance targets in the area of complaint finishing times. 28 It was noted in the Executive Officer's report that the complaint handling processes have become more streamlined and flexible, the complaint backlog had been eradicated and processing times are at a record low. 29

1.28 The report included a summary of progress on the implementation of recommendations of the Commonwealth Ombudsman's report on MARA's complaint handling process which was released in June 2007. ° MARA accepted all of the Ombudsman's recommendations and reported good progress on their implementation, but acknowledged that further improvements are required. 3'

1.29 Appendix Nine of the report contained a special purpose financial report on MARA for the period 1 July 2003 to 30 June 2008 which received a qualified independent audit report. The qualification related to a carried forward surplus of $771 240 that had been identified by MIA to be surplus funds from the performance of the statutory functions of MARA that existed at 30 June 2003. The auditor advised that this balance was not audited and did not have an opinion on the accuracy or

otherwise of this amount. 32

1.30 The committee considers the annual report of MARA to be 'apparently satisfactory'.

National Native Title Tribunal

1.31 The annual report of the National Native Title Tribunal outlines the Tribunal's activities during the year, detailing changes in legislation and external factors affecting the Tribunal and forecasts within the native title system, particularly the resolution of native title applications.

1.32 The Tribunal lists its key results, which include an operating surplus of $2.95 million 33 for 2007-08 and an increase of $3.08 million in net equity due to

28 Migration Agents Registration Authority 2007-2008 Annual Report, p. 15. 29 Migration Agents Registration Authority 2007-2008 Annual Report, p. 5.

30 Migration Agents Registration Authority 2007-2008 Annual Report, pp 36-39.

31 Migration Agents Registration Authority 2007-2008 Annual Report, p. 36. 32 Migration Agents Registration Authority 2007-2008 Annual Report, p. 58. 33 National Native Title Tribunal Annual Report 2007-2008, p. 705.

159

Page 8

accumulated surplus 34 . The Tribunal attributes its operating surplus as being largely due to reductions in suppliers' expenditure and depreciation. 35

1.33 Staffing numbers at 30 June 2008 show no change from the previous reporting period, however that level was not sustained throughout that period as 75 employees left the Tribunal, resulting in a 30 per cent turnover, an 8 per cent increase in staff turnover from the last reporting period. 36 The Tribunal did not give a reason for the increase in turnover however the committee notes the Tribunal has continued its employee survey to assess staff satisfaction and determine people-management priorities37 .

1.34 The Tribunal achieved an overall client satisfaction rate of 94 per cent, which equates to an average of 7.15 out of a maximum of 10. The target client satisfaction rate is 80 per cent. The committee notes the client satisfaction rate has risen steadily since 200338 and attributes commissioned research into the satisfaction of its clients and stakeholders as the basis of the improved ratings.

1.35 The Tribunal provided a useful summary of significant decisions of the Full Court of the Federal Court that were handed down. These decisions are noted as significant because they illustrate interpretation and application of the principles laid down by the High Court.

1.36 The report provides comprehensive performance information, including presentation of performance indicators and useful maps of Indigenous land use agreements. The inclusion of trend data over several years is a practical and helpful comparison of performance indicators and results.

1.37 The Tribunal noted that the number of Indigenous Land Use Agreements was 57, far exceeding the predicted total figure of 45, with the most significant activity occurring in Queensland.

1.38 The committee considers the annual report of the Tribunal to be 'apparently satisfactory'.

' National Native Title Tribunal Annual Report 2007-2008, p. 105. 35 National Native Title Tribunal Annual Report 2007-2008, p. 105. 36 National Native Title Tribunal Annual Report 2007-2008, p. 90-91. 37 National Native Title Tribunal Annual Report 2007-2008, p. 89. 38 National Native Title Tribunal Annual Report 2007-2008, p. 99.

160

CHAPTER 2

REPORTS ON THE OPERATION OF ACTS AND PROGRAMS

2.1 Standing Order 2 5(20) does not provide for consideration of reports on the implementation or operation of acts or programs. The committee is not therefore required to include them in its report on the examination of annual reports. However, the committee chose to examine the following reports:

S Protection Visa Processing Taking More Than 90 days for the Reporting Period 1 July 2008 to 31 October 2008 (published by the Department of Immigration and Citizenship); and

S Report Pursuant to Section 440A of the Migration Act on the conduct of Refugee Review Tribunal reviews not completed within 90 days for the period 1 July 2008 to 31 October 2008 (published by the Refugee Review Tribunal); and

S Australian Crime Commission (ACC) annual report on assumed identities for 2007-08.

Protection visa processing taking more than 90 days and refugee reviews taking more than 90 days

2.2 Section 65A of the Migration Act 1958 imposes a requirement for the Minister to make a decision on a protection visa application within 90 days of the lodgement of the application. If this target is exceeded, under section 91Y of the Act the Secretary of the Department of Immigration and Citizenship (DIAC) is required to report on protection visa applications for which decision making has taken over 90 days. Similarly, section 440A requires the Refugee Review Tribunal (RRT) to report on reviews not completed within 90 days.

2.3 The Department and the RRT are required to report every four months with the latest reports reviewed by the committee covering the period 1 July 2008 to 31 October 2008.

Protection visa processing taking more than 90 days

2.4 The table below compares protection visa processing by DIAC taking more than 90 days for the three previous reporting periods.

1 November 2007 1 March 2008 to 1 July 2008 to 31

to 29 February 30 June 2008 October 2008

2008

Total number 396 375 366

undecided outside

161

Page 10

2.5 The committee was pleased to note the decrease in both the total number of applications undecided and on hand over 90 days old and the total number of applications decided outside 90 days from the previous reporting period. The report identified 92 applications where delays were attributable to DIAC, an increase of 23 from the previous report. The Secretary noted that 'the Department continues to work on strategies to eliminate delays, improves adherence to the 90 day timeframe and to clear older cases as quickly as possible.' 1

Refugee Review Tribunal reviews not completed within 90 days

2.6 This table outlines the number of RRT reviews not completed within 90 days for the previous three reporting periods.

2.7 The committee was pleased to note an increase in the percentage of reviews completed within 90 days from the previous reporting period.

1 Protection Visa Processing Taking More Than 90 Days for the Reporting Period 1 July 2008 to 31 October 2008, Letter of Transmittal.

of 90 day period

Total number 251 443 388

decided outside of

90 day period

Total number 647 818 754

processed outside

of 90 day period

Percentage of total 16.6% 28.9% 23%

applications

processed outside

of 90 day period

1 November 2007 1 March 2008 to 1 July 2008 to 31

to 29 February 30 June 2008 October 2008

2008

Reviews completed 216 (32%) 266(31%) 186(25%)

outside of 90 days

Reviews completed 453 (68%) 603(69%) 557(75%)

within 90 days

Total 669 869 743

162

Page 11

Australian Crime Commission Assumed Identities Annual Report 2007-08

2.8 Section 15XUA(2) of the Crimes Act 1914 requires that, within three months after 30 June in each year, the ACC must prepare, and provide to the Minister, a report which must include:

The number of authorisations issued by an authorising person from the agency during the year covered by the report;

a general description of the activities undertaken by approved officers when using their assumed identities during the year covered by the report; and

a statement whether or not any fraud or any other unlawful activity was identified by an audit during the year covered by the report.

2.9 A letter from the Chief Executive Officer of the ACC to the Minister for Home Affairs dated 14 October 2008 was tabled in the Senate on 25 November 2008 advising of ACC's failure to report on the use of assumed identities for the period ending 30 June 2008 by the prescribed deadline. The Chief Executive Officer advised the Minister that he was 'satisfied that the required records of assumed identities were

kept and audited for the period ending 30 June 2008 as required by the Act.' 2 He further advised that alternative processes were in place within the ACC to ensure that all statutory reporting requirements are being implemented.

2.10 Tabled with the letter was the ACC's report for 2007-08. The report indicated that 14 authorisations were issued in the period and that staff and approved persons conducted operations to gather intelligence and evidence against individuals and criminal networks under investigation by the ACC .3

2.11 The committee noted that the report title and page two of the letter referred to the wrong reporting period, that is, 2006-07 rather than 2007-08. An erratum has not yet been tabled in the Senate but the committee understands that one will be presented shortly.

Senator Trish Crossin Committee Chair

2 Letter from Chief Executive Officer, ACC to the Minister for Home Affairs dated 14 October 2008.

3 Australian Crime Commission, Assumed Identities Annual Report 2006-07 Section 15XUA(2) Crimes Act 1914, dated 14 October 2008.

163

164

2

APPENDIX 1

ANNUAL REPORTS REFERRED

List of annual reports referred

Also stands referred to the Joint Committee on the Australian Crime Commission, under the Australian Crime Commission Act 2002. Forwarded to the Finance and Public Administration Committee also.

Department/authority Submitted Received Tabled in

to by Minister Senate

Minister (if known) (Received in (if known) Senate out of

session)

Attorney-General's Portfolio

Administrative Appeals Tribunal - 8/10/08 20/10/08 11/11/08

Report for 2007-08

Administrative Review Council - 14/10/08 20/10/08 11/11/08

Report for 2007-08

Audio-Visual Copyright Society 3/11/08 10/11/08 25/11/08

Limited (Screenrights) - Report for 2007-08

Australian Crime Commission - 3/2/2009

Report for 2007-08' (9/1/09)

Australian Government Solicitor - 10/11/08

Report for 2007-08 (3/11/08)

Australian Institute of Criminology 9/10/08 9/10/08 11/11/08

and Criminology Research Council - Report for 2007-08

Australian Law Reform Commission 15/10/08 16/10/08 11/11/08

Report for 2007-08

Australian Security Intelligence 26/9/08 26/9/08 11/11/08

Organisation - Report for 2007-08

Commonwealth Ombudsman - Report 2/10/08 14/10/08 11/11/08

for 200782 [Prime Minister and Cabinet portfoliol

Copyright Agency Limited - Report 25/11/08 3/12/08 4/2/09

for 2007-08

Family Court of Australia - Report for 16/10/08 16/10/08 11/11/08

2007-08

Federal Court of Australia— Report for 16/10/08 22/10/08 11/11/08

2007-08

165

Page 14

List of reports on the operation of acts

Federal Magistrates Court— Report for 16/10/08 16/10/08 11/11/08

2007-08

Errata 3/2/09 (27/1/09)

High Court of Australia - Report for 3/2/09

2007-08 (16/12/08)

Human Rights and Equal Opportunity 20/10/08 21/10/08 11/11/08

Commission - Report for 2007-08

Insolvency and Trustee Service 10/10/08 13/10/08 11/11/08

Australia - Report for 2007-08 National Capital Authority - Report 3/2/09

for 2007-08 (9/12/2008)

National Native Title Tribunal - 21/10/08 22/10/08 11/11/08

Report for 2007-08 Classification Board and Classification 10/10/08 10/10/08 11/11/08

Review Board - Reports for 2007-08

Addendum tabled 3/2/09 (24/12/08)

Office of Parliamentary Counsel - 16/10/08 21/10/08 11/11/08

Report for 2007-08

Immigration and Citizenship Portfolio

Migration Agents Registration 29/10/08 31/10/08 11/11/08

Authority - Report for 2007-08 Migration Review Tribunal and 10/11/08

Refugee Review Tribunal - Report for (7/11/08)

2007-08

Department/authority Submitted Received Tabled in

to by Minister Senate

Minister (if known) (Received in

(if known) Senate out of

session)

Attorney- General's Portfolio

Australian Federal Police Act 1979— 26/11/08

Report on the Ombudsman's activities under Part V of the Act for 2007-08 Bankruptcy Act 1966 Report for 2007- 10110/08 13/10/08 11/11/08

08 on the operation of the Act

Crimes Act 1914— Authorisations for 13/10/08 16/10/08 25/11/08

the acquisition and use of assumed identities - Report for 2007-08 - Australian Crime Commission

166

Page 15

Crimes Act 1914 - Authorisations for 26/9/08 26/9/08 26/11/08

the acquisition and use of assumed identifies - Report for 2007-08 - Australian Customs Service

Criminal Code Act 1995— 10/9/08 12/9/08 11/11/08

Preventative detention and control orders report for 2007-08

National Security Information 23/9/08 24/9/08 12/11/08

(Criminal and Civil Proceedings) Act 2004 - Non-disclosure and Witness Exclusion Certificates Annual Report 2007-08

Telecommunications (Interception and 10/3/09

Access) Act 1979— Report for 2007-08 (13/2/09)

on the operation of the Act

Surveillance Devices Act 2004 - 10/2/09

Report for the year ending 30 June (6/2/09)

2008

War Crimes Act 1945— Report for 15/12/08 15/12/08 13/3/09

2007-08 on the operation of the Act

Immigration and Citizenship Porffolio

Migration Act 1958— Section 91Y - 15/12/08 15/12/08 4/2/09

Protection visa processing taking more than 90 days for the reporting period 1 July to 31 October 2008 Migration Act 1958 - Section 440A - 15/12/08 2/2/09 4/2/09

Conduct of Refugee Review Tribunal reviews not completed within 90 days for the period 1 July to 31 October 2008

Migration Act 1958— Section 4860 - 14/11/08 14/11/08 25/11/08

Assessment of detention arrangements - Personal identifiers 481/08 to 491/08 - Report by the Commonwealth and Immigration Ombudsman

Migration Act 1958— Section 4860— 14/11/08 14/11/08 25/11/08

Assessment of detention arrangements - Personal identifiers 481/08 to 491/08 - Government response to Commonwealth Ombudsman's report

Migration Act 1958 - Section 4860 - 3/2/09 3/2/09 4/2/09

Assessment of detention arrangements - Personal identifiers 492/08 to 508/09 Corrigenda

- Commonwealth Ombudsman's report 11/3/09

Migration Act 1958 - Section 4860 - 3/2/09 3/2/09 4/2/09

Assessment of detention arrangements - Personal identifiers 492/08 to 508/09 - Government response to Commonwealth Ombudsman's reports

167

168

The Senate

Rural and Regional

Affairs and Transport Legislation Committee

Annual reports (No. 2 of 2009)

September 2009

169

© Commonwealth of Australia

ISBN 978-1-74229-182-6

This document was produced from camera-ready copy prepared by the Senate Rural and Regional Affairs and Transport Legislation Committee, and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

II

170

Membership of the Committee

Members Senator Glenn Sterle

Senator Fiona Nash

Senator the Hon. Bill Heffernan

Senator Steve Hutchins

Senator Kerry O'Brien

Senator Rachel Siewert

ALP, Western Australia Chair

NPA, New South Wales Deputy Chair

LP, New South Wales

ALP, New South Wales

ALP, Tasmania

AG, Western Australia

Participating Members

Senator Abetz Senator Adams Senator Back Senator Barnett Senator Bernardi Senator Bilyk Senator Birmingham Senator Bishop Senator Boswell Senator Boyce Senator Brandis Senator B Brown Senator C Brown Senator Bushby Senator Cameron

Senator Cash Senator Colbeck Senator Collins Senator Coonan Senator Cormann Senator Crossin Senator Eggleston Senator Farrell Senator Feeney Senator Ferguson Senator Fielding Senator Fierravanti-Wells Senator Fifield Senator Fisher Senator Forshaw

Senator Fumer Senator Hanson-Young Senator Humphries Senator Hurley Senator Johnston Senator Joyce Senator Kroger Senator Ludlam Senator Lundy Senator Macdonald Senator McEwen Senator McGauran Senator McLucas Senator Marshall Senator Mason

Senator Milne Senator Minchin Senator Moore Senator Parry Senator Payne Senator Polley Senator Pratt Senator Ronaidson Senator Ryan Senator Scullion Senator Troeth Senator Trood Senator Williams Senator Wortley Senator Xenophon

111 171

Committee Secretariat

Ms Jeanette Radcliffe, Secretary Ms Jenene James, Research Officer

P0 Box 6100 Parliament House Canberra ACT 2600

phone: (02) 62773511 fax: (02) 6277 5811 e-mail: nat.senaph. gov.au internet: www.avh.gov.au/senate nat

iv 172

Table of Contents

Membership of the Committee iii

List of Abbreviations vii

Chapter 1 1

Overview 1

Terms of reference 1

Purpose of annual reports 2

Requirements 2

Reports referred to the committee 2

Reports not examined 3

Timeliness 4

Comments on reports 5

Senate remarks on annual reports 10

Comment on significant matters 10

Chapter 2 11

Annual reports of departments 11

Department of Agriculture, Fisheries and Forestry 11

Chapter 3 17

Annual reports of agencies 17

Agriculture, Fisheries and Forestry portfolio 17

Infrastructure, Transport, Regional Development and Local Government portfolio 25

Appendix 1 29

List of annual reports referred to the committee during the period 1 November 2008 to 30 April 2009 29

Agriculture, Fisheries and Forestry portfolio 29

Infrastructure, Transport, Regional Development and Local Government portfolio. 32

V

173

vi

174

List of Abbreviations

VII

AFMA Australian Fisheries Management Authority

AHA Animal Health Australia

ANAO Australian National Audit Office

APSC Australian Public Service Commission

APVMA Australian Pesticides and Veterinary Medicines Authority

ARTC Australian Rail Track Corporation

AUSVETPLAN Australian Veterinary Emergency Plan

AWBC Australian Wine and Brandy Corporation

CAC Act Commonwealth Authorities and Companies Act 1997

CAC Orders Commonwealth Authorities and Companies (Report of

Operations) Orders 2005

CASA Civil Aviation Safety Authority

CEO Chief Executive Officer

CPRS Carbon Pollution Reduction Scheme

CRDC Cotton Research and Development Corporation

DAA Dairy Adjustment Authority

DAFF Department of Agriculture, Fisheries and Forestry

EC Exceptional Circumstances

EPBC Act Environment Protection and Biodiversity Conservation Act

1999

EWC Export Wheat Commission

FMA Act Financial Management and Accountability Act 1997

FOI Act Freedom of Information Act 1982

175

Viii

FRDC Fisheries Research and Development Corporation

FTA Free Trade Agreement

FWPAL Forest and Wood Products Australia Ltd

FWPRDC Forest and Wood Products Research and Development Corporation

IRA import Risk Assessment

NRAC National Rural Advisory Council

NTC National Transport Commission

OH&S Act Occupational Health & Safety (Commonwealth Employment) Act 1991

PAES Portfolio Additional Estimates Statements

PBS Portfolio Budget Statements

PIERD Act Primary Industries and Energy Research and Development Act

1989

R&D Research and Development

RCP Regional and Community Projects

Requirements for Requirements for Annual Reports for Departments, Executive

Annual Reports Agencies and FMA Act Bodies

SRDC Sugar Research and Development Corporation

Strategy Commonwealth Disability Strategy

Uhrig review Review of the corporate governance of statutory authorities and

office holders

WEA Wheat Exports Australia (from 1 July 2008)

WEC Wheat Export Charge

WFA Winemakers' Federation of Australia

WTO World Trade Organization

176

Chapter 1

Overview

1.1 The committee is responsible for examining the annual reports of departments and agencies within two portfolios:

• Agriculture, Fisheries and Forestry; and

• Infrastructure, Transport, Regional Development and Local Government.

Terms of reference

1.2 Under Senate Standing Order 25(20), annual reports of departments and agencies shall stand referred to the legislation committees in accordance with an allocation of departments and agencies in a resolution of the Senate. Each committee shall:

(a) examine each annual report referred to it and report to the Senate whether the report is apparently satisfactory;

(b) consider in more detail, and report to the Senate on, each annual report which is not apparently satisfactory, and on the other annual reports which it selects for more detailed consideration;

(c) investigate and report to the Senate on any lateness in the presentation of annual reports;

(d) in considering an annual report, take into account any relevant remarks about the report made in debate in the Senate;

(e) if the committee so determines, consider annual reports of departments and budget-related agencies in conjunction with examination of estimates;

(f) report on annual reports tabled by 31 October each year by the tenth sitting day of the following year, and on annual reports tabled by 30 April each year by the tenth sitting day after 30 June of that year;

(g) draw to the attention of the Senate any significant matters relating to the operations and performance of the bodies furnishing the annual reports; and

177

2

(Ii) report to the Senate each year whether there are any bodies which do not present annual reports to the Senate and which should present such reports.1

Purpose of annual reports

1.3 The tabling and scrutiny of annual reports by Senate committees, under Standing Order 25(20), is an important element in the process of accountability to Parliament. The information provided in annual reports is placed on the public record and assists Parliament in its examination of the performance of departments and agencies and the administration of government programs.

Requirements

1.4 Annual reports are examined by the committee to determine whether they are timely and 'apparently satisfactory'. In forming its assessment, the committee considers whether the reports comply with the relevant legislation and guidelines for the preparation of annual reports:

• for departments of state and executive agencies these are: the Public Service Act 1999, subsections 63(2) and 70(2), and the Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, Department of Prime Minister and Cabinet, updated June 2008 and approved by the Joint Committee of Public Accounts and Audit on 18 June 2008;

• for Commonwealth authorities and companies: the Commonwealth Authorities and Companies Act 1997 (the CAC Act), sections 9, 36 and 48, and the Commonwealth Authorities and Companies (Report of Operations) Orders 2005 (CAC Orders); and

• for non-statutory bodies: the requirements are contained in the Government response to the report of the Senate Standing Committee on Finance and Government Operations on Non-statutory bodies, Senate Hansard, 8 December 1987, pp 2643-45.

Reports referred to the committee

1.5 Standing Order 25(20)(f) requires the committee to report on annual reports tabled by 30 April each year by the tenth sitting day after 30 June of that year. This year, that date is 9 September 2009. The committee is also required to report on annual reports tabled by 31 October each year by the tenth sitting day of the following year.

Standing orders and other orders of the Senate, June 2009, p. 28. (This Standing Order was amended 24 August 1994,13 February 1997, 11 November 1998, 3 December 1998, 13 February 2002, 19 November 2002, 14 August 2006: with effect from Ii September 2006, 13 May 2009: with effect on 14 May 2009).

178

3

1.6 This report considers annual reports which were tabled in the Senate or presented to the President of the Senate between 1 November 2008 and 30 April 2009. It includes annual reports submitted to the Minister before 31 October 2008, but tabled after that date and therefore not considered as part of the committee's report Annual reports (No. 1 of 2009).

1.7 The committee examined 13 annual reports of agencies within the Agriculture, Fisheries and Forestry portfolio and four annual reports of agencies within the Infrastructure, Transport, Regional Development and Local Government portfolio, as follows:

• Department of Agriculture, Fisheries and Forestry—Report for 2007-08;

• Australian Fisheries Management Authority—Report for 2007-08;

• Australian Wine and Brandy Corporation—Report for 2007-08;

• Cotton Research and Development Corporation—Report for 2007-08;

• Fisheries Research and Development Corporation—Report for 2007-08;

• Forest and Wood Products Research and Development Corporation— Report for 1 July to 31 August 2007;

• Sugar Research and Development Corporation Report for 2007-08;

• Australian Pesticides and Veterinary Medicines Authority—Report for 2007-08;

• Export Wheat Commission—Report for 2007-08;

• Australian Landcare Council—Report for 2007-08;

• Australian Livestock Export Corporation (LiveCorp)—Report for 2007-08;

• National Rural Advisory Council—Report for 2006-07;

• National Rural Advisory Council—Report for 2007-08;

• Civil Aviation Safety Authority—Report for 2007-08;

• National Transport Commission—Report for 2007-08;

• Australian Rail Track Corporation Ltd—Report for 2007-08; and

• Australian River Co. Limited—Report for 1 December 2006 to 30 November 2007.

1.8 A complete list of reports referred to the committee (including those not examined) appears at Appendix 1.

Reports not examined

1.9 The committee is not obliged to report on Acts, statements of corporate intent, surveys, corporate plans or errata. The following 10 documents were referred to the committee but have not been examined:

179

4

• Australian Livestock Export Corporation Limited—Statutory funding agreement with the Commonwealth for 2007-2010;

• Australian Meat and Live-stock Industry Act 1997—Report to Parliament on Live-stock Mortalities for Exports by Sea for the Reporting Period 1 July to 31 December 2008;

• Dairy Australia: Delivering for the dairy industry—Report for 2007-08;

• Dairy Australia Limited—Statutory funding agreement with the Commonwealth (Deed dated 18/4/07);

• Airservices Australia—Corporate Plan 2008-2013;

• Airservices Australia National Equity and Diversity Program 2007-2010—Progress Report 2007-08;

• Civil Aviation Safety Authority—Corporate Plan 2008-09 to 20 10-11;

• Sydney Airport Demand Management Act 1997— quarterly report on the maximum movement limit for the period 1 April to 30 June 2008;

• Sydney Airport Demand Management Act 1997— quarterly report on the maximum movement limit for the period 1 July to 30 September 2008; and

• Sydney Airport Demand Management Act 1997— quarterly report on the maximum movement limit for the period 1 October to 31 December 2008.

Timeliness

1.10 Standing Order 25(20)(c) requires the committee to report to the Senate on the late presentation of annual reports.

1.11 As stated in the Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies (Requirements for Annual Reports), annual reports must be tabled in Parliament by 31 October each year, except where an agency's own legislation specifies a timeframe for its annual report! Those agencies reporting under the CAC Act are required to provide their annual reports to the Minister by the 15th day of the fourth month after the end of the financial year. 3 Where the financial year ends on 30 June, this deadline translates to 15 October.

2 Department of Prime Minister and Cabinet, Requirements forAnnual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008, p. 1 (section 4).

3 Commonwealth Authorities and Companies Act 1997, s. 9.

180

S

1.12 As noted in the committee's report Annual reports (No. 1 of 2009), a number of annual reports were tabled in the Senate after the appropriate deadlines and will be examined in this report. 4

1.13 Although not subject to the timeframes in the CAC Act or the Financial Management and Accountability Act 1997 (FMA Act), the committee notes a substantial delay in the tabling of the National Rural Advisory Council (NRAC) Report for 2006-07 which was tabled on 3 February 2009, after NRAC's 2007-08

report and more than 18 months after the end of the reporting period.

1.14 The committee also notes a substantial delay in the tabling of the Australian River Co. Limited (ARCo) Report for 2007. While ARCo's financial year ends on 30 November, its report for 2007 was tabled in the Senate on 25 November 2008, almost 12 months after the end of the reporting period.

1.15 The committee recognises that some bodies are required to comply with the timeframes stipulated in their enabling legislation, and appreciates that the relevant deadlines are adhered to by those agencies. Nonetheless, the committee reminds all bodies that, as stated in the Requirements for Annual Reports, the government maintains its policy that all annual reports are to be tabled by 31 October. 5

Comments on reports

1.16 Under Standing Order 25(20)(a) the committee is required to scrutinise annual reports and inform the Senate as to whether they are 'apparently satisfactory'. To form this assessment the committee examines whether annual reports comply with the statutory reporting guidelines relevant to each particular report.

1.17 The committee considers that the reports examined are generally 'apparently satisfactory', although some do not comprehensively address all of their legislative requirements. While any divergence from these requirements is mostly minor in nature, the committee encourages agencies to pay particular attention to the matters discussed below.

Aids to Access: Indexes

Alphabetical indexes

1.18 Under subsection 8(2) of the Requirements for Annual Reports, all annual reports are required to incorporate aids to access, including alphabetical indexes. 6 The

4 Senate Standing Committee on Rural and Regional Affairs and Transport, Annual reports (No. 1 of 2009) , March 2009, p. 4.

5 Department of Prime Minister and Cabinet, R equirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008, p. 1 (section 4).

6 Department of Prime Minister and Cabinet, Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008, pp 4 and 16.

181

6

• committee notes the importance of an alphabetical index in assisting readers to navigate annual reports. While most reports did include alphabetical indexes, some were quite brief and did not effectively aid readers. The committee again notes that the Forest and Wood Products Research and Development Corporation (FWPRDC) and the National Transport Commission (NTC) would benefit from including an alphabetical index. The committee also notes that the Australian Rail Track Corporation Limited (ARTC) Annual Report 2008 no longer includes an alphabetical index.

Compliance indexes

1.19 As mentioned in the committee's previous reports on annual reports, although compliance indexes are no longer mandatory, the committee recommends their inclusion in annual reports. 7 Compliance indexes greatly facilitate the committee's task of ensuring adherence to reporting requirements, and also assist agencies to clearly demonstrate that all legislative obligations have been met.

1.20 The committee found that some compliance indexes were more useful than others. Unfortunately, many compliance indexes did not address all of the reporting requirements and, in some cases, the page references given in the compliance indexes were incorrect or too broad to be useful.

1.21 The committee commends those agencies which included compliance indexes for each piece of legislation they are required to report under, and notes that the compliance indexes of the Australian Fisheries Management Authority (AFMA), the Cotton Research and Development Corporation (CRDC), and the Export Wheat Commission (EWC) annual reports were exemplary. Further, the committee is pleased that a number of agencies have now adopted the recommended practice of including a nil, n/a or "-" entry where the body has nothing to report under an item.

1.22 The committee is disappointed that despite comments made in its previous reports, the FWPRDC, the NTC and the ARTC again failed to include compliance indexes in their annual reports. 8 Consequently the committee found it difficult to determine whether these reports complied with a number of relevant requirements.

7 Senate Rural and Regional Affairs and Transport Committee, Annual reports (No. 1 of 2006), p.4; Annual reports (No. 2 of 2006) , p. 5; Annual reports (No. 1 of 2007), p. 5; Annual reports (No. 2 of 2007), p. 5; Annual reports (No. 1 of 2008) , p. 5; Annual reports (No. 2 of 2008) , p. 6; and Annual reports (No. I of 2009), p. 6. 8 Senate Rural and Regional Affairs and Transport Committee, Annual reports (No. 1 of 2006)

p.4; Annual reports (No. 2 of 2006), p.5; Annual reports (No. 1 of 2007) , p. 6; Annual reports (No. 2 of 2007) , p. 6; Annual reports (No. 1 of 2008), p. 6; and Annual reports (No. 2 of 2008) pp 6-7.

182

7

Report on performance

1.23 The committee considers that most annual reports would benefit from an explanation (textual or visual) which clearly defines and links, where applicable, statutory objectives, annual operational plan or corporate plan objectives, research and development objectives and outputs/outcomes. This would assist in demonstrating how agencies have performed in relation to each of these requirements, as required

under the CAC Orders, and whether they have achieved their objectives. 9

Legislative requirements for Commonwealth authorities

1.24 The committee draws attention to section 17 of the CAC Orders which notes that the annual reports of Commonwealth authorities must include certain matters required by the relevant sections of the following

• Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) section 516A;

• Freedom of Information Act 1982 (FOI Act) subsection 8(1) ; and

• Occupational Health and Safety (Commonwealth Employment) Act 1991 (OH&S Act) section 74.

1.25 The committee encourages agencies to look carefully at the reporting requirements under these pieces of legislation when compiling upcoming reports.

1.26 The committee reminds agencies that they are required to report on all five requirements under subsection 516A(6) of the EPBC Act. Several agencies failed to include information required under paragraphs 516(6)(c) and (e) of the EPBC Act, in relation to documenting the effect of activities on the environment and mechanisms

for reviewing and improving these measures. The committee encourages agencies to address these requirements in more detail in future.

1.27 The committee observed that several agencies did not adequately address all requirements under subsection 8(1) of the FOI Act. In particular, the committee observed that a number of bodies omitted to provide information on arrangements that exist for others to participate in the agency's policy formulation process. The

committee notes that AFMA, the Civil Aviation Safety Authority (CASA) and the Department of Agriculture, Fisheries and Forestry (DAFF) addressed the FOI requirements comprehensively.

1.28 Omissions were again noted in most agencies' attempts to report against the OH&S Act, particularly regarding paragraph 74(1 )(c). The committee considers that

9 Commonwealth Authorities and companies (Report of Operations) Orders 2005, para. 10(1)(a). 10 Commonwealth Authorities and Companies (Report of Operations) Orders 2005, s. 17.

183

8

• the DAFF annual report provides a good example of how this requirement should be addressed.

Co,,,,,, on wealth Disability Strategy

1.29 Under section 18 of the CAC Orders, an assessment of an authority's performance in implementing the Commonwealth Disability Strategy (the Strategy) must be provided in accordance with the terms set out in the Guide to the Performance Reporting Framework. 1' The committee again observed significant variation in the level of detail provided regarding compliance with the Strategy. The committee strongly encourages agencies to assess compliance in accordance with the recommended guide in future reports.

Consultancy contracts and competitive tendering and contracting

1.30 The committee notes that under the Requirements for Annual Reports, agencies are required to provide information about consultancy contracts and any competitive tendering and contracting undertaken. 12 The committee reminds agencies that the method of presentation for this information is specified in detail in the Requirements for Annual Reports. While a majority of agencies provided some basic

information about consultancies, most of it was not in the required format and did not provide an adequate level of detail. In several annual reports, however, the committee was unable to locate any information about consultancies.

1.31 Consequently, the committee emphasises that, as a matter of best practice, CAC Act bodies should comply with the Requirements for Annual Reports, and provide all relevant detail in accordance with the required proforma. Further, the committee suggests that all agencies list consultancy and contract services in the compliance index or at the very least in the alphabetical index of their annual reports.

1.32 The committee commends the EWC for fully complying with this requirement and providing information on consultancy services in accordance with the mandatory proforma.

Fraud Control Certification

1.33 While most agencies provided varying degrees of information about their fraud control plans, the committee draws attention to the Commonwealth Fraud Control Guidelines 2002. Under these guidelines:

CEOs of agencies covered by the Commonwealth Fraud Control Guidelines are to certify to their Minister or Presiding Officer in their agency's annual

11 Commonwealth Authorities and Companies (Report of Operations) Orders 2005, s. 18. This Guide can be accessed on the Commonwealth Disability Strategy website at http://www.facs.gov.aulcds . 12 Department of Prime Minister and Cabinet, Requirements forAnnual Reports forDepartments,

Executive Agencies and FMA Act Bodies, June 2008, pp 10-12 and 25-28.

184

9

report that they are satisfied that their agency has prepared fraud risk assessments and fraud control plans, and has in place appropriate fraud prevention, detection, investigation, reporting and data collection procedures and processes that meet the specific needs of the agency and

comply with the Guidelines. 13

1.34 The committee encourages agency heads to make a specific certification in keeping with the guidelines. The committee highlights the Australian Wine and Brandy Corporation (AWBC) and DAFF annual reports as examples of how to fully comply with this requirement.

Consistency of reporting documents

1.35 The committee also took account of the Senate Finance and Public Administration Committee report, Transparency and accountability of Commonwealth public funding and expenditure, in its examination of annual reports. The committee took particular note of the following comment:

It would be useful therefore if Legislative and General Purpose Committees in their reports on annual reports checked that the reports accurately reflect the performance indicators in the PBSs and PAES. It would also be useful if they reported on comparisons of the final expenditure on outputs (or programs) with the estimates. 14

1.36 The committee notes that in several cases, performance indicators differed between budget documents and agencies' annual reports. The committee also found that estimates expenditure figures in budget documents and actual expenditure figures in annual reports were often not easily comparable.

1.37 The committee encourages agencies to ensure that outcome/output information and performance indicators remain consistent between budget documents and annual reports. Further, where there is variation between these documents, the accountability process would be enhanced if both the former and the new performance

information were provided, as well as the reasons for the revisions.

1.38 The committee notes that under the Requirements for Annual Reports the provision of such information is a mandatory requirement, and as a matter of best practice, CAC Act bodies should also provide this information. 15 In addition, agencies

are encouraged to provide information on expenditure by outcome/output in a form that is comparable with budget documentation.

13 Attorney-General's Department, Commonwealth Fraud Control Guidelines 2002, May 2002, p. 2. See also Department of Prime Minister and Cabinet, Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008, p. 7.

14 Senate Standing Committee on Finance and Public Administration, Transparency and accountability of Commonwealth public funding and expenditure, March 2007, p. 64.

15 Department of Prime Minister and Cabinet, Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008, p. 5.

185

10

Senate remarks on annual reports

1.39 In accordance with Senate Standing Order 25(20)(d), the committee is required to take into account remarks made in the Senate which are relevant to the annual reports under consideration. No substantive debate on annual reports within the committee's portfolios took place in the Senate.

Comment on significant matters

1.40 Finally, Senate Standing Order 25(20)(g) directs the committee to comment on significant matters raised in annual reports relating to the operations and performance of reporting bodies.

1.41 In Chapter 2, the committee has considered the annual report of the Department of Agriculture, Fisheries and Forestry.

1.42 In Chapter 3, the committee has considered the annual reports of the following agencies:

• Australian Fisheries Management Authority;

• Australian Wine and Brandy Corporation;

• Cotton Research and Development Corporation;

• Fisheries Research and Development Corporation;

• Forest and Wood Products Research and Development Corporation;

• Sugar Research and Development Corporation;

• Australian Pesticides and Veterinary Medicines Authority;

• Export Wheat Commission;

• Civil Aviation Safety Authority;

• National Transport Commission; and

• Australian Rail Track Corporation Ltd.

186

Chapter 2

Annual reports of departments

Department of Agriculture, Fisheries and Forestry 2.1 The Department of Agriculture, Fisheries and Forestry (DAFF) Annual Report 2007-08 was prepared in accordance with section 63 of the Public Service Act 1999. The committee notes the Senate's receipt of this report on 11 November 2008.

2.2 The report is presented in accordance with the checklist of requirements specified in the Department of Prime Minister and Cabinet's Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008 (Requirements for Annual Reports).

2.3 DAFF's Annual Report 2007-08 contains the following information:

• the secretary's yearly review highlighting the achievements of the department and future outlook;

• a departmental overview outlining DAFF's operations and organisational structure;

• report on performance as measured against performance indicators specified in the Portfolio Budget Statements (PBS);

• an overview of the department's management and accountability arrangements, including corporate governance practices, human resource management, internal and external scrutiny, reviews and evaluations, and purchasing; and

• appendices detailing workforce statistics, occupational health and safety, compliance with the Commonwealth Disability Strategy, environmental performance, freedom of information requests, discretionary grants, and advertising and market research.

2.4 The committee considers that DAFF has provided a comprehensive review of its performance for 2007-08. Its report is clear, well presented and easy to navigate.

Departmental overview

2.5 The secretary reported that:

The 2007-08 financial year was one of transition and change for the department's staff. The new Australian Government took office, with new policies, programs and emphases. The nation's agriculture, fishing and

187

12

forestry industries faced challenges ranging from continued drought and water shortages to emergency animal disease outbreaks. 1

2.6 On 16 June 2008, the department's structure was changed to better reflect the government's priorities for the portfolio .2

2.7 The committee notes the following items of significance for DAFF during 2007-08:

• continued provision of drought related assistance to farmers through the Exceptional Circumstances (EC) programs. In April 2008, the government announced a comprehensive national review to improve Australia's drought policy;

• introduction of several new drought related programs, including:

- a new EC Exit Grant in September 2007, for farmers in EC-declared areas who want to leave the industry;

the Transitional Income Support Program in June 2008, to assist farming families who are recovering from drought and in serious financial difficulty to adapt to changing circumstances, including climate change;

• continued implementation of measures to help the agricultural industry, including irrigators, respond to the drought and reduced water availability. More than 7800 grants of up to $20,000 were provided to irrigators in the Murray-Darling Basin for improvements in water efficiency, totalling over $144.8 million;

• implementation of reforms to Australia's wheat marketing arrangements, to introduce more competition and choice;

• work to gain, maintain and improve market access for Australian products through existing free trade agreements (FTAs), negotiations for new FTAs, and negotiations for the World Trade Organization (WTO) Doha Round;

• work on a challenge in the WTO by New Zealand against Australia's quarantine measures for New Zealand apples. The WTO's panel is expected to make its findings in the second half of 2009;

• coordination of the response to the equine influenza outbreak in August 2007, with eradication of the disease by the end of June 2008. The department was also responsible for implementing the recommendations of the independent Equine Influenza Commission of Inquiry in relation to improving Australia's quarantine system for importation of horses;

I Department of Agriculture, Fisheries and Forestry, Annual Report 2007-08, P. 1. 2 Department of Agriculture, Fisheries and Forestry, Annual Report 2007-08, p. 204. For details of the department's previous and current organisational structure see pp 13-14.

188

13

• announcement in February 2008 of a broad-ranging quarantine and biosecurity review (the Beale Review); and

• engagement with the Department of Climate Change in developing the government's Green Paper in relation to the Carbon Pollution Reduction Scheme (CPRS). 3

2.8 DAFF's priorities for 2008-09 include: national review of drought policy; continuing liaison with industry stakeholders on the CPRS; administration of programs announced under the new Australia's Farming Future package; and managing the new Caring for our Country initiative. 4

Report on performance

2.9 DAFF has measured its performance against performance indicators specified in the 2007-08 PBS. A helpful overview of DAFF's performance framework is provided at the beginning of the report on performance. 5

2.10 This is a comprehensive section of the report containing detailed and useful information. The committee particularly noted the following items:

• All of the major activities of the Sugar Industry Reform Program have now been completed. A small number of projects under the Regional and Community Projects component are yet to be finalised because flooding in some areas prevented work being completed on time. Those projects will be completed by the end of 2008 .6

• The department continued to work with the Dairy Adjustment Authority (DAA) and Dairy Australia Limited on arrangements for terminating the levy and winding up the Dairy Industry Adjustment Package. The DAA's independent internal auditor found the transition process to be timely and comprehensive. The final quarterly payment to eligible dairy

farmers was made in April 2008. DAFF is working to finalise wind-up arrangements in 2009. As part of the process, the secretary of the department became the sole member of the DAA from 1 July 2008.

• The department released the Commonwealth Fisheries Harvest Strategy policy in September 2007. The policy provides a framework for the management of commercial fish species for long-term biological

3 Department of Agriculture, Fisheries and Forestry, Annual Report 2007-08, pp 1-5 and 16. 4 Department of Agriculture, Fisheries and Forestry, Annual Report 2007-08, pp 1 and 4-5.

5 Department of Agriculture, Fisheries and Forestry Annual Report 2007-08, pp 26-27. 6 Department of Agriculture, Fisheries and Forestry, Annual Report 2007-08, pp 74, 75-76 and 94.

7 Department of Agriculture, Fisheries and Forestry, Annual Report 2007-08, pp 76 and 90.

189

14

sustainability and economic profitability. In line with the policy, AFMA has developed harvest strategies for all relevant fisheries. 8

The department completed final funding rounds for the Securing our Fishing Future structural adjustment package. This included $17.9 million allocated in 2007-08 under the Fishing Community Assistance Grants program, to generate employment and economic activity in coastal communities affected by reductions in fishing activity. Funding was also provided under the Onshore Business Assistance program, to help onshore businesses adjust to reductions in fishing activity. In total, 33 business received over $2.5 million to exit from the onshore fishing sector and 64 businesses received over $10.25 million to develop their enterprises. These projects are expected to be completed by the end of 2008-09.

• Changes to the import risk analysis (IRA) process were implemented in September 2007 when new regulations came into effect. The changes increase the transparency of the IRA process, impose a regulated timeline on the conduct of an IRA, increase opportunities for consultation and allow for more extensive scientific scrutiny of IRAs. In March 2008, six IRAs commenced under the new IRA process. 10

Management and accountability

2.11 DAFF reported that legislative amendments and changed accountability arrangements in response to the Ubrig Review have largely been completed. The portfolio agencies affected by the changes are as follows:

• Australian Pesticides and Veterinary Medicines Authority;

• Forest and Wood Products Research and Development Corporation;

• Export Wheat Commission; and

• Australian Fisheries Management Authority.'

2.12 Three major ANAO performance audits relating to DAFF's activities were tabled during 2007-08. These reports are discussed below.

2.13 The ANAO Audit Report No. 6 of 2007-08, Australia's Preparedness for a Human Influenza Pandemic, focussed on DAFF and the Department of Health and Ageing, as it covered human and animal health components. The audit included an

assessment of action taken by DAFF to implement the recommendations from

8 Department of Agriculture, Fisheries and Forestry, Annual Report 2007-08, pp 82 and 92. 9 Department of Agriculture, Fisheries and Forestry, Annual Report 2007-08, pp 82-83 and 90-91.

10 Department of Agriculture, Fisheries and Forestry, Annual Report 2007-08, pp 193 and 195. 11 Department of Agriculture, Fisheries and Forestry, Annual Report 2007-08, pp 3 and 216.

190

15

Exercise Eleusis, which tested the response arrangements for avian influenza. While the ANAO found that DAFF had made considerable progress in implementing the recommendations from this exercise, it recommended that DAFF and Animal Health Australia (AHA) review a number of issues in relation to the Australian Veterinary

Emergency Plan (AUSVETPLAN). Both DAFF and AHA have agreed to the recommendation and a review has been completed. 12

2.14 The ANAO Audit Report No. 21 of 2007-08, Regional Delivery Model for the National Heritage Trust and the National Action Plan for Salinity and Water Quality, focussed on DAFF and the Department of Environment, Water, Heritage and the Arts, which jointly administer these programs. The ANAO found that progress in implementing improvements in administration since previous audits had been 'comprehensive and well focused on significant risks'. However, the ANAO identified several areas where administration still needs to be strengthened. The ANAO also noted that information in the DAFF and National Heritage Trust annual reports was

insufficient to make an informed judgement on the progress of programs against outcomes. Both departments have agreed to all four recommendations. 13

2.15 The ANAO Audit Report No. 26 of 2007-08, Tasmanian Forest Industry Development and Assistance Programs, found that DAFF had developed a sound framework for assessing and approving applications for these programs, however, in practice, not all processes and procedures were followed by the department when assessing and recommending applications to the Minister for funding. The ANAO also

noted that DAFF did not fully report against all outcome indicators in its Annual Report 2006-0 7. The ANAO made three recommendations which DAFF has accepted. 14

2.16 The committee notes that, after including increased expenses associated with

a range of activities, including drought support, quarantine and equine influenza, and costs of the move to new accommodation, DAFF generated an operating surplus of $0.73 million in 2007-08. In 2006-07, DAFF reported an operating deficit of $14.24 million."

12 Australian National Audit Office (ANAO), Australia's Preparedness for a Human Influenza Pandemic, Audit Report No. 6, 2007-08, pp 18, 20 and 30. See also Department of Agriculture, Fisheries and Forestry, Annual Report 200 7-08, pp 23 8-240.

13 Australian National Audit Office (ANAO), Regional Delivery Model for the National Heritage Trust and the National Action Plan for Salinity and Water Quality, Audit Report No. 21, 2007-08, pp 15-16, 24 and 27-29. 14 Australian National Audit Office (ANAO), Tasmanian Forest Industry Development and

Assistance Programs, Audit Report No. 26, 2007-08, pp 15, 17, and 29-30.

15 Department of Agriculture, Fisheries and Forestry, Annual Report 2007-08, p. 256.

191

16

Conclusion

2.17 The committee considers that DAFF's Annual Report 2007-08 complies with the reporting requirements of a Commonwealth department.

192

Chapter 3

Annual reports of agencies

3.1 The committee considered all of the following reports to be 'apparently satisfactory'.

Agriculture, Fisheries and Forestry portfolio

Commonwealth authorities

Australian Fisheries Management Authority

3.2 The committee is pleased to note that following comments made in its report Annual reports (No. 2 of 2008), AFMA has amended the directors' certification contained in its transmittal letter. This certification now includes a statement that directors are responsible for the preparation and content of the report under section 9 of the CAC Act, as specified in paragraph 4(1)(d) of the CAC Orders.

3.3 Once again, the committee notes that the name of the responsible minister at the time of the report was indicated, however, he was not the Minister for the whole financial year.' The committee draws attention to paragraph 8 (b) of the CAC Orders, which states that the report must specify the name of the responsible minister at the date of the report and the names of any other responsible ministers during the period covered by the report.

3.4 Overall, the committee commends AFMA for providing a comprehensive review of its performance for 2007-08, including AFMA's progress in implementing the December 2005 Ministerial Direction to end overfishing.

3.5 As part of its response to the Ministerial Direction in 2007-08, AFMA developed harvest strategies for all Commonwealth fisheries in line with the Commonwealth Harvest Strategy Policy and Guidelines released in September 2007. The majority of fisheries have implemented their harvest strategies and AFMA has established a Harvest Strategy Policy Advisory Committee to provide policy advice and guidance.2

3.6 The committee notes that the remaining challenges for AFMA in implementing the Ministerial Direction include 'resource sharing between recreational

1 Australian Fisheries Management Authority, Annual Report 2007-08, pp .4 and 9. See also Senate Standing Committee on Rural and Regional Affairs and Transport, Annual reports (No. 2 of 2008), November 2008, p. 12, 2 Australian Fisheries Management Authority, Annual Report 2007-08, pp 12-13.

193

18

and commercial fisheries, and resolution of Offshore Constitutional Settlements between the States and Territories and the C ommonwealth!.3

3.7 The committee notes that on 1 July 2008, AFMA changed from a statutory authority under the CAC Act to a commission of the same name under the FMA Act. The major impacts of this change are as follows:

• the AFMA Board was replaced by a commission with responsibility for domestic fisheries management;

• the Managing Director was replaced by a Chief Executive who is responsible for foreign fishing compliance, finance and human resources;

• AFMA's staff became subject to the Public Service Act 1999; and

• a number of changes were made to AFMA's financial arrangements .4

Australian Wine and Brandy Corporation

3.8 The committee commends the AWBC for certifying its compliance with the Commonwealth Fraud Control Guidelines in the prescribed manner, as outlined in paragraphs 1.33 and 1.34.

3.9 The committee notes that the AWBC has included a very brief general statement about the Commonwealth Disability Strategy, however, there was no assessment of its performance in implementing the strategy (as outlined in paragraph 1.29). The committee encourages the AWBC to include this information in upcoming reports. Similarly, the AWBC's reporting under the EPBC Act could also be addressed in more detail in future.

3.10 The committee notes the release of the industry strategy 'Wine Australia: Directions to 2025' in late 2007. One of its recommendations led to a review of wine industry national organisational structures. Following this review, the Winemakers' Federation of Australia (WFA) has decided to further investigate a proposal to establish an industry owned service body to undertake many of the functions currently undertaken by the AWBC and the WFA. 5

3.11 The AWBC reported that it had achieved an operating surplus of $7,000 for 2007-08, $17,000 less than the budgeted surplus of $24,000 in the PBS. The AWBC observed that 2007-08 was a difficult year as it endeavoured to implement the recommendations of the new industry strategy 'in an environment where revenue was

3 Australian Fisheries Management Authority, Annual Report 2007-08, p. 12. 4 Australian Fisheries Management Authority, Annual Report 2007-08, p. 70.

5 Australian Wine and Brandy Corporation, Annual Report 2007-08, p. 4.

194

19

adversely impacted by the smaller 2007 vintage, the decline in the value of wine exports and difficult trading conditions experienced by the wine sector'. 6

Cotton Research and Development Corporation

3.12 Once again, the committee commends the CRDC on a clear, concise and generally well constructed report. The compliance index was accurate, detailed and easy to follow, with separate sections for compliance under the CAC Act and the Primary Industries and Energy Research and Development Act 1989 (PIERD Act). This greatly assisted the committee in determining whether reporting requirements

had been met.

3.13 The committee notes that 2007-08 was the concluding year of the CRDC 2003-2008 Strategic R&D plan. The CRDC indicated that of the '16 triple-bottom-line industry targets that were established, 14 were effectively met and only two were partially met'. 7

3.14 The committee notes that the CRDC's final expenditure on outputs was $10.46 million, in line with the estimates in the Portfolio Budget Statements for 2007— 08.8 The CRDC reported that revenue for the year was $6.96 million, five percent lower than the budgeted income of $7.30 million and 39.5 percent lower than the

2006-07 total of $11.51 million. As the 2007-08 growing season was badly affected by drought, the estimated actual crop size was 550,000 bales, significantly less than the forecast production of 1.0 million bales. 9

Fisheries Research and Development corporation

3.15 While the committee observes that the FRDC has included more entries in its compliance index this year, its list of reporting requirements was still incomplete and not easy to follow. The committee encourages the FRDC to more closely align its compliance index with the reporting requirements as set out in the CAC Act, the CAC Orders and the PIERD Act.

3.16 The committee is pleased to note that, following the committee's previous comments, the FRDC has included details relating to significant acquisitions or dispositions of real property during the financial year. 10

6 Australian Wine and Brandy Corporation, Annual Report 2007-08, P. 29. 7 Cotton Research and Development Corporation, Annual Report 2007-08, p. 4. See also pp 7 and 10 for details of targets that were partially met.

8 Cotton Research and Development Corporation, Annual Report 2007-08, pp 13 and 14. See also Portfolio Budget Statements 2007-08, Agriculture, Fisheries and Forestry Portfolio, p. 182.

9 Cotton Research and Development Corporation, Annual Report 2007-08, p. 12. 10 Senate Standing Committee on Rural and Regional Affairs and Transport, Annual reports (No. 1 of2008), March 2008, P. 21.

195

20

3.17 The committee notes that in the FRDC's previous reports for 2004-05, 2005-06 and 2006-07, the FRDC fulfilled its reporting requirements under the FOI Act. However, the committee was disappointed to note that in the FRDC's annual report for 2007-08, readers are referred to the FRDC's website for details of its FOI Act reporting obligations. The committee emphasises that information required under subsection 8(1) of the FOI Act must be included in the body of the annual report, and encourages the FRDC to comply with this requirement in future reports.

3.18 In a previous report, the committee noted that the FRDC had introduced a new funding framework in 2006-07 to provide greater flexibility to meet stakeholder needs. In its 2007-08 report, the FRDC indicated that:

The changes did not come without problems and considerable time and resources were employed to explain the new system to stakeholders. The framework resulted in a more explicit policy focus on how and what the FRDC funds. ' 1

3.19 The FRDC reported that 'the election of a new Federal Government has seen a heightened focus on primary industries and climate change, food security and productivity'. This has resulted in the FRDC developing a climate change program and the development of the Seafood Trade and Market Access Form in partnership with

Seafood Services Australia and the Seafood Cooperative Research Centre. 12

3.20 The committee notes that Recfishing Research, an initiative of FRDC and Recfish Australia, began in July 2007. Its purpose is 'to target investment and the return on investment in recreational fishing research, development and extension on a national scale'. National priorities have been established and refined in consultation with key stakeholders.' 3

Forest and Wood Products Research and Development Corporation

3.21 The committee notes that the FWPRDC has once again failed to include a compliance index or an alphabetical index in its annual report and has not properly dated its letter of transmittal, as required under the CAC Orders.

3.22 The committee notes that on 3 September 2007, the FWPRDC was succeeded by Forest and Wood Products Australia Ltd (FWPAL), an industry-owned company operating under the Corporations Act 2001. This report covers the period from 1 July to 31 August 2007 and finalises the activities of the FWPRDC. 14

11 Fisheries Research and Development Corporation, Annual Report 2007-08, p. 7. 12 Fisheries Research and Development Corporation, Annual Report 2007-08, p. 7. 13 Fisheries Research and Development Corporation, Annual Report 2007-08, p. 8. 14 Forest and Wood Products Research and Development Corporation, Annual Report I Jub' to

31 August 2007, pp 1, 9 and 43-44.

196

21

3.23 The FWPRDC reported that during these two months, only a small number of projects were completed or initiated. In addition, preparatory work for the transition to FWPAL was undertaken, including finalising of agreements and completing and lodging of documents for incorporation of the new entity. FWPAL assumed all the

liabilities and assets of the FWPRDC from 3 September 2007.15

Sugar Research and Development Corporation

3.24 The committee reminds the SRDC that its annual report would benefit from a more comprehensive compliance index, with separate sections for compliance under the CAC Act and the PIERD Act.

3.25 The committee notes that the SRDC's income for the year was higher than forecast. The budget forecast was $11.196 million but actual income amounted to $12.158 million. This was primarily due to 'the receipt of $1 million of Regional and Community Projects (RCP) funds from the Sugar Industry Reform Program for R&D to accelerate the delivery of improved sugarcane varieties'. 16 Project expenditure of

those funds will commence from July 2008. Industry levies and government matching income were slightly below forecast due to reduced crop size, and other income (interest and royalties) was above forecast. 17

3.26 The SRDC indicated that expenditure on operations and R&D projects was $11.093 million, lower than the forecast of $13.063 million. Reduced project expenditure was due to delayed commencement of some new projects, delays in some milestones until 2008-09, and early conclusion of some projects. Operational

expenditure was slightly below forecast due to staffing changes. 18

Prescribed agencies

Australian Pesticides and Veterinary Medicines Authority

3.27 The committee notes that on 1 July 2007, the APVMA changed from a statutory authority under the CAC Act to an authority administered under the FMA Act. While the APVMA's powers and functions remain unchanged, a number of changes were made to the APVMA's governance arrangements. The Board of Directors was replaced by a chief executive officer (CEO), and a new advisory board,

consisting of up to nine part-time members, was created to provide advice and make

15 Forest and Wood Products Research and Development Corporation, Annual Report 1 July to 31 August 2007, p.9.

16 Sugar Research and Development Corporation, Annual Report 2007-08, p. 13. 17 Sugar Research and Development Corporation, Annual Report 2007-08, p. 13. 18 Sugar Research and Development Corporation, Annual Report 2007-08, p. 13.

197

22

recommendations to the CEO. APVMA staff are now subject to the Public Service Act 1999. 19

3.28 In August 2007, the APVMA was restructured to align 'management

responsibility and resource allocation with the new executive model of governance'. 20

3.29 While the APVMA's report contained a compliance index, the committee found it was difficult to follow, did not address all of the reporting requirements under the FMA Act, and included some items which are relevant under the CAC Act, but are not part of the checklist of requirements under the FMA Act. In addition, some of the page references were inaccurate. The committee encourages the APVMA to more closely align its compliance index with the checklist of requirements, as set out in the Requirements for Annual Reports. 21

3.30 Further, the committee notes that the compliance index for the APVMA's enabling legislation did not follow the new reporting requirements set out in Section 61 of the Agricultural and Veterinary Chemicals (Administration) Act 1992, which apply from the 2007-08 financial year onwards. 22

3.31 The committee reminds the APVMA that it is required to date its transmittal letter, as specified in the Requirements for Annual Reports. 23

3.32 The committee notes that the compliance index for 'summary resource tables by outcomes' referred to a number of tables providing information on performance against outputs, however, none of these tables contained financial information by outcomes, as specified in the Requirements for Annual Reports. 24

3.33 The APVMA is commended for complying with the requirement to complete a mandatory proforma listing each individual consultancy to the value of $10,000 or more. However, the committee observes that the summary statement on consultancies was not in accordance with the guidelines set out in the Requirements for Annual Reports. It contained a single statement about expenditure and number of contracts

19 Australian Pesticides and Veterinary Medicines Authority, Annual Report 2007-08, pp 2, 51-52 and 86. 20 Australian Pesticides and Veterinary Medicines Authority, Annual Report 2007-08, p. 2.

21 See 'Checklist of Requirements' in Department of Prime Minister and Cabinet, Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008, pp 30-32.

22 Agricultural and Veterinary Chemicals (Administration) Act 1992, Section 61. See also Table A, Section 14 of the notes to this Act.

23 Department of Prime Minister and Cabinet, Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008, p. 16. 24 Department of Prime Minister and Cabinet, Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008, pp 7 and 29.

198

23

awarded, however, separate details on the number of new and ongoing consultancies, and the total expenditure on both of these categories must be provided .25

3.34 The committee is pleased to note that, following the committee's comments in an earlier report, the APVMA has included a correction to its 2006-07 annual report. The APVMA has included a statement about expenditure on advertising and market research, indicating that no amounts over $10,000 were paid under this category

during 200607 .26

Export Wheat Commission

3.35 The committee notes that this is the first report of the EWC, covering the period 1 October 2007 to 30 June 2008. In line with the recommendations of the Uhrig Review and following changes to the Wheat Marketing Act 1989, the EWC replaced the Wheat Export Authority from 1 October 2007. The EWC is a statutory

commission under the FMA Act. The committee notes that the EWC was replaced by a new body, Wheat Exports Australia (WEA), on 1 July 2008.

3.36 Overall the committee found the EWC's report to be informative and well presented. The report contained a detailed and useful compliance index which aided the committee in its assessment of the report.

3.37 The committee commends the EWC for fully complying with the requirements relating to consultancy contracts and competitive tendering. As well as the summary statements for new and ongoing consultancies, a listing of individual consultancies was provided in accordance with the mandatory proforma set out in the Requirements for Annual Reports. 27

3.38 In addition, the EWC's reporting on OH&S, and under section 31 1A of the Commonwealth Electoral Act 1918 in relation to advertising and market research was particularly good.

3.39 The committee notes that the EWC has included a brief general statement about the Commonwealth Disability Strategy, however, there was no assessment of its performance in implementing the strategy (as outlined in paragraph 1.29). Instead, readers are referred to a web link for the Australian Public Service Commission's

(APSC's) State of the Service Report, with the EWC indicating that it had reported on

25 Department of Prime Minister and Cabinet, Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008, p. 11. 26 Senate Standing Committee on Rural and Regional Affairs and Transport, Annual reports (No. 1 of 2008), March 2008, p. 20.

27 Department of Prime Minister and Cabinet, Requ! rements forAnnual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008, pp 10-12 and 25-28.

199

24

its performance to the APSC through this report. The EWC is reminded that this information must be included in its annual report. 28

3.40 The EWC's reporting under the FOI Act did not contain information about arrangements that exist for others to participate in the agency's policy formulation process. The committee notes that various details on its consultation processes were provided elsewhere in the text under 'Communicating Results and Seeking Feedback' and 'Stakeholder Relations' but were not cross-referenced in the compliance index or the FOI appendix.

3.41 The committee notes that the compliance index for 'Summary resource tables by outcomes' referred to a number of tables providing information on performance against targets, however, none of these tables contained financial information by outcomes, as specified in the Requirements for Annual Reports. 29

3.42 The EWC reported that 'the past year has seen the greatest series of changes in Australia's wheat marketing arrangements since World War II'. The change of government in November 2007 led to reform of Australia's wheat marketing arrangements towards the liberalisation of bulk exports. The EWC undertook considerable preliminary work on new governance and other arrangements in the lead-up to the establishment of a new body, Wheat Exports Australia. In June 2008, legislation was passed to reform the export of wheat in bulk, ending the wheat export monopoly arrangements held by AWBI since privatisation of the Australian Wheat Board in 199930

3.43 The committee notes that the drought had a severe impact on the EWC's income, which was mainly based on the Wheat Export Charge (WEC), levied on the volume of wheat exports. During 2007-08 the EWC used funding from the Government, provided as a grant to the Wheat Export Authority in the previous financial year, to cover the costs of transition and ongoing operational costs. These funds were also drawn on to cover the transition to Wheat Exports Australia. 31

28 Department of Prime Minister and Cabinet, Requirements forAnnual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008, p. 13. 29 Department of Prime Minister and Cabinet, Requirements for Annual Reports for Departments, Executive Agencies and FMA Act Bodies, June 2008, pp 7 and 29. 30 Export Wheat Commission, Annual Report 2007-08, pp 12-13. 31 Export Wheat Commission, Annual Report 2007-08, p. 15.

200

25

Infrastructure, Transport, Regional Development and Local Government

portfolio

Commonwealth authorities

Civil Aviation Safety Authority

3.44 The committee considers that CASA has once again fulfilled its reporting requirements to a high standard. CASA has provided a comprehensive review of its functions, activities and outcomes for 2007-08 and its report is clear and well structured. The committee notes that CASA's reporting under the FOI, OH&S and Commonwealth Electoral Acts was particularly thorough.

3.45 The committee is pleased to note that, following the committee's previous comments, CASA's transmittal letter has been provided in a larger format that is easier to read. 32 However, the committee was disappointed that CASA's report no longer contains a certification of its compliance with the Commonwealth Fraud Control Guidelines, as outlined in paragraphs 1.33 and 1.34.

3.46 CASA reported that its three major undertakings for the year have gone through the development phase and are being implemented. These are:

• the Aviation Safety Oversight Program to define how individual staff do their work with airlines and operators;

• adjustments to CASA's organisational groups to facilitate their dealings with industry; and

• the Workforce Capability Framework to enable CASA to better define and put in place the skills to deliver operational and support functions. 33

3.47 The committee also notes the following items of significance for CASA:

• development of regulations for the alcohol and other drugs testing program during 2007-08 which came into effect on September 2008. An educational campaign for industry has commenced, along with commissioning of a Virtual Resource Centre, appointment of an

independent testing provider for random testing, and training of medical review officers; 34

• successful transfer of responsibility for regulating and administering Australia's airspace from Airservices Australia to CASA on 1 July 2007; 35

32 Senate Standing Committee on Rural and Regional Affairs and Transport, Annual reports

(No. 2 of 2008), November 2008, P. 15. 33 Civil Aviation Safety Authority, Annual Report 2007-08, pp 3 and 9.

34 Civil Aviation Safety Authority, Annual Report 2007-08, pp 8 and 45.

35 Civil Aviation Safety Authority, Annual Report 2007-08, p. 8.

201

26

• an above average result in the International Civil Aviation Organization audit of Australia's safety oversight capabilities in February 2008, particularly in relation to CASA's risk-based surveillance approach, airworthiness directives, defect-reporting system and safety promotion campaigns; 36 and

• announcement of the government's intention to appoint a Board for the 37 future governance of CASA, which is likely to be in place during 2009. National Transport Commission

3.48 In its previous reports the committee noted that while the NTC is not a Commonwealth authority for the purposes of the CAC Act, the NTC's enabling legislation states that certain sections of the CAC Act apply to it, including section 9 relating to annual reporting requirements. Under Schedule 1 of the CAC Act, an agency's annual report must include a report of operations prepared in accordance with the CAC Orders . 38 The committee is concerned that the NTC has once again

failed to address the majority of requirements under the CAC Orders.

3.49 The committee is disappointed that despite comments in its previous reports the NTC has again failed to include a compliance index or an alphabetical index. 39 The committee calls the NTC's attention to subsection 6(1) of the CAC Orders which clearly states that reports 'must be constructed having regard to the interests of users'.

3.50 The committee notes that the NTC's Annual Report 2008 was again an A4 size document. The NTC is reminded that the Printing standards for documents presented to Parliament clearly state that all documents to be presented to Parliament must be printed in international B5 size. 40

Commonwealth companies

Australian Rail Track Corporation

3.51 The committee is pleased to note that, following the committee's previous comments, the ARTC has included information in the director's report section of its Annual Report 2008 on the following:

36 Civil Aviation Safety Authority, Annual Report 2007-08, pp 5, 8 and 61. 37 Civil Aviation Safety Authority, Annual Report 2007-08, p. 5.

38 Senate Rural and Regional Affairs and Transport Committee, Annual reports (No. I of 2006), p. 4; Annual reports (No. 1 of 2007), pp 8-9; and Annual reports (No. 2 of 2008), p. 16. 39 Senate Rural and Regional Affairs and Transport Committee, Annual reports (No. I of 2006), p. 4; Annual reports (No. 1 of 2007), p. 6; and Annual reports (No. 2 of2008), p. 16.

40 This document can be accessed at http://www.aph.gov.au/house/committee/publ/printing standards.htm.

202

27

• events since the end of the financial year which may affect the corporation's operations; and

• dividends or distributions paid during the year. 4'

3.52 The committee notes that the ARTC annual report no longer contains an alphabetical index. The ARTC is reminded that its annual report would benefit from the inclusion of both an alphabetical and compliance index. The committee also encourages the ARTC to comply with the Printing standards for documents presented

to Parliament which specify that all documents to be presented to Parliament must be printed in international B5 size. 42

Senator Glenn Sterle Chair

41 As required under the Corporations Act 2001, ss. 299(1)(d) and 300 (IXa) and (b). See also Senate Standing Committee on Rural and Regional Affairs and Transport, Annual reports (No. 2 of 2008), November 2008, p. IT 42 This document can be accessed at

http://www.aph.gov.au/house/committee/publ/ printin2 standards.htm.

203

28

204

Appendix 1

List of annual reports referred to the committee during the period 1 November 2008 to 30 April 2009

Agriculture, Fisheries and Forestry portfolio Legislation Letter of Date Sent Date Tabling

transmittal to received by date*

date Minister Minister

Departments of State

Department of Agriculture, Public Service Act 1999 26/09/08 25/09/08 30/09/08 11/11/08

Fisheries and Forestry— Report for 2007-08 Financial Management

and Accountability Act 1997

Statutory authorities

Australian Fisheries Fisheries 10/10/08 15/10/08 15/10/08 25/11/08

Management Authority— Administration Act Report for 2007-08 1991

CACAct 1997

Australian Wine and Brandy Australian Wine and 1/10/08 1/10/08 1/10/08 11/11/08

Corporation—Report for Brandy Corporation 2007-08 Act 1980

CACAct 1997

Cotton Research and PIERD Act 1989 3/10/08 14/10/08 23/10/08 12/11/08

Development Corporation— Report for 2007-08 CACAct 1997

Fisheries Research and PIERD Act 1989 12/08/08 26/09/08 13/10108 3/02/09

Development Corporation— Report for 2007-08 CACAct 1997

Forest and Wood Products PIERD Act 1989 July 2008 2/10/08 2/10/08 11/11/08

Research and Development Corporation—Report for CAC Act 1997 1 July to 31 August 2007

205

30

Legislation Letter of Date Sent Date Tabling

transmittal to received by date*

date Minister Minister

Sugar Research and PIERD Act 1989 26/09/08 30/09/08 14/10/08 24/11/08*

Development Corporation— Report for 2007-08 CAC Act 1997 (20/11/08)

Prescribed agencies

Australian Pesticides and Agricultural and 2/10/08 2/10/08 11/11/08

Veterinary Medicines Veterinary Chemicals Authority—Report for 2007- (Administration) Act 08 1992

FMA Act 1997

Export Wheat Wheat Marketing Act 23/10/08 14/10/08 14/10/08 3/02/09*

Commission—Report for 1989 2007-08 (17/12/08)

FMA Act 1997

Other

Australian Landcare Natural Resources 27/10/08 6/11/08 1/12/08 3/02/09*

Council—Report for 2007- Management 08 (Financial Assistance) (11/12/08)

Act 1992 (ss.27(1)&(2))

Australian Livestock Export Australian Meat and 4/12/08 8/01/09 10/02/09

Corporation (LiveCorp)— Live-stock Industry Act Report for 2007-08 1997

Corporations Act 2001

Australian Livestock Export Dairy Produce Act n/a 2/09/08 11/09/08 10/02/09

Corporation Limited— 1986

Statutory funding agreement with the Commonwealth for Australian Meat and 2007-2010 Live-stock Industry Act

1997

Australian Meat and Australian Meat and n/a 4/02/09 20/02/09 11/03/09

Live-stock Industry Act Live-stock Industry Act 1997—Report to Parliament 1997 on Live-stock Mortalities for Exports by Sea for the

Reporting Period 1 July to 31 December 2008

206

31

* An asterisk denotes reports presented to the President out-of-session.

Legislation Letter of Date Sent Date Tabling

transmittal to received by date*

date Minister Minister

Dairy Australia: Delivering Dairy Produce Act 21/10/08 28/11/08 2/12/08 3/02/09*

for the Dairy Industry— 1986

Report for 2007-08 (18/12/08)

Corporations Act 2001

Dairy Australia Limited— Dairy Produce Act nla 2/09/08 11/09/08 10/02/09

Statutory funding agreement 1986 with the Commonwealth (Deed dated 18/4/07) Australian Meat and

Live-stock Industry Act 1997

National Rural Advisory Rural Adjustment Act December 17/03/08 18/03/08 3/02/09

Council—Report for 2006- 1992 2007

07

National Rural Advisory RuralAdjustrnentAct October 28/10/08 28/10/08 25/11/08

Council—Report for 2007- 1992 2008

08

207

32

Infrastructure, Transport, Regional Development and Local Government

portfolio

Legislation Letter of Date Date Tabling

transmittal Sent to received by date*

date Minister Minister

Statutory authorities

Civil Aviation Safety Civil Aviation Act 1988 30/09/08 9/10/08 9/10/08 11/11/08

Authority—Report for 2007- 08 CACAct 1997

National Transport National Transport 23/09/08 21/10/08 21/10/08 10/11/08*

Commission—Report for Commission Act 2003 2007-08 (5/11/08)

CACAct 1997

Companies

Australian Rail Track Corporations Act 2001 19/11/08 20/11/08 3/02/09*

Corporation Ltd—Report for 2007-08 (16/12/08)

Australian River Co. Corporations Act 2001 3/09/08 8/09/08 25/11/08

Limited—Report for 1 December 2006 to CACAct 1997

30 November 2007

Other

Airservices Australia— Air Services Act 1995 19/09/08 19/09/08 19/09/08 11/11/08

Corporate Plan 2008-2013 CAC Act 1997

Airservices Australia Equal Employment n/a 11/09/08 11/09/08 11/11/08

National Equity and Opportunity

Diversity Program 2007-10 (Commonwealth —Progress Report 2007-08 Authorities) Act 1987

Civil Aviation Safety Civil Aviation Act 1988 n/a 18/12/08 18/12/08 10/02/09

Authority—Corporate Plan 2008-09 to 2010-11 CACAct 1997

Sydney Aiiport Demand Sydney Aiiport n/a 22/10/08 24/10/08 2/12/08

Management Act 1997— Demand Management quarterly report on the Act 1997

maximum movement limit for the period 1 April to 30 June 2008

208

33

* An asterisk denotes reports presented to the President out-of-session.

Legislation Letter of Date Date Tabling

transmittal Sent to received by date*

date Minister Minister

Sydney Airport Demand Sydney Aiiport n/a 29/10/08 30/10/08 2/12/08

Management Act 1997— Demand Management quarterly report on the Act 1997

maximum movement limit for the period 1 July to 30 September 2008

Sydney Airport Demand Sydney Airport n/a 3/02/09 5/02/09 17/03/09

Management Act 1997— Demand Management quarterly report on the Act 1997

maximum movement limit for the period 1 October to 31 December 2008

209

210

THE PARLIAMENT OF THE

COMMONWEALTH OF AUSTRALIA

PARLIAMENTARY

PAPER No. 175 of 2009 ORDERED TO BE PRINTED ISSN 0727-4181