Chapter 4

Chapter 4

Limitations of program review mechanisms

4.1        The government referred to several audit and review mechanisms in an attempt to assure the community that P21 projects obtain value for money. However, on the evidence provided, the committee majority is concerned that the audit and review mechanisms have serious limitations. These are discussed below.

Accountability issues under the partnership model

4.2        The committee majority understands that under the partnership model, state governments are responsible for P21 project implementation, including ensuring that value for money is achieved. Despite this, as noted by the ANAO, DEEWR also has a responsibility on behalf of the Commonwealth to assure the Commonwealth parliament that state education authorities achieve value for money.[1]

4.3        The Auditor-General, Mr Ian McPhee, gave evidence to the Finance and Public Administration Committee that:

It is a very contemporary issue. We see it in other areas, too. Obviously it is an issue in Commonwealth-state relations, but it plays out to some extent in, say, defence procurement, where the Commonwealth is acquiring equipment from major defence suppliers. It is a question of who is responsible for what in some of those areas. That is why we have raised this issue—perhaps it is time to look at the Auditor-General’s mandate to be clear about this. I think we see the benefits of a partnership arrangement, where the responsibilities are clear. I accept your point that it does not absolve a Commonwealth department from getting some level of assurance around value for money—we accept that.[2]

4.4        Mr McPhee also said:

...On my understanding of some of these projects, it is not as though the Commonwealth money was solely used for a building. In some cases my understanding is that the education authority supplemented that funding with funding of their own, and put additional money in to build something which made a whole lot more sense....it is an example, though, of how, if you are trying to put the value for money responsibility back on the Commonwealth for the Commonwealth component of a larger project which is being funded by an education authority, it gets even more cloudy. Someone may have got a grant for $800,000, or $1 million dollars, and they have supplemented it with $2 million more. Who is responsible for getting value for the $3 million? The answer is: the education authority because that is where the responsibility lies.[3]

4.5        The Auditor-General advised that, notwithstanding the transfer of the responsibility for the implementation of the P21 projects to the states, there remains a residual responsibility on DEEWR to ensure value for money is achieved by the Commonwealth:

...if you plan to allocate responsibility to another party, you need to have confidence in the ability of the other party to manage the risks in terms of their own responsibilities; otherwise, the problem comes back to the Commonwealth. We see that in some other areas. If the Commonwealth seeks to offload risk in some areas—quite reasonably—but the other party does not manage to effectively mitigate the risk, then there is no question that it will probably come back to the Commonwealth.[4]

4.6        He also stated that the issue of residual Commonwealth responsibility is becoming more important given the increasing use of the partnership model:

...We certainly raised it as an issue. I have to say that it has not up until recently been a matter unduly concerning me, but the way the Commonwealth-state relations are going with the expectation that there is a partnership in place, with one party providing the funding and the other responsible for delivering outputs or outcomes, it does become a more topical matter for consideration.[5]

4.7        The committee majority notes a response from the Auditor-General to the Finance and Public Administration References Committee during its inquiry into COAG reforms relating to health and hospitals. Questions were also raised during this inquiry about accountability arrangements in response to federal public administration developments. The Auditor General responded:

...Broadly, our submissions suggest that there would be benefits in extending the Auditor-General's mandate to allow the ANAO to 'follow the money trail' in certain circumstances; particularly where, in the opinion of the Auditor-General, following the money trail would be significant in the context of an audit of a Commonwealth entity...[6]

Committee view

4.8        Whilst acknowledging that much work has been undertaken to develop the partnership model, the committee majority notes that responsibilities and accountabilities under the partnership model need greater clarification. The lines of accountability to the federal parliament under the model are not sufficiently clear. This lack of clarity has significant implications for the P21 program, and for other Commonwealth programs, for example, the government's new healthcare funding approach.

4.9        The committee majority strongly endorses the Auditor-General's proposal to extend the mandate of the Auditor-General to allow the ANAO to 'follow the money trail'. This will assist in ensuring that inadequate accountability mechanisms for state expenditure of Commonwealth money are significantly enhanced.

Recommendation 5

4.10      The committee majority recommends strengthening accountability mechanisms for oversight of state expenditure of Commonwealth money. This should include enhancing the powers of the Auditor-General to 'follow the money trail' to ensure value for money is achieved by the Commonwealth for state expenditure of Commonwealth monies.

Limitations of ANAO oversight

4.11      On 25 June 2009, the Senate agreed to a motion requesting the Auditor‑General investigate the implementation of the P21 program.[7]

4.12      Following publication of the ANAO Performance Audit Report, Building the Education Revolution – Primary Schools for the 21st Century,[8] Coalition senators raised questions about value for money with the Auditor-General.[9]  The Auditor-General noted that, while the ANAO holds a mandate under the Auditor-General Act 1997 to undertake performance audits of Commonwealth bodies, this mandate does not allow an assessment to be made of the performance of education authorities in managing the delivery of individual projects, including procurement processes, in their respective jurisdictions.[10]

4.13      At the committee's public hearing in Canberra on 19 May 2010, the Auditor-General explained to the committee the limitations of the ANAO regarding examining value for money in detail:

There has been some interest in the question of value for money in the individual projects being delivered to schools. The question has also arisen of whether this audit should have considered this issue within its scope. Several points need to be made in this context. Firstly, as mentioned in the report, responsibility for expenditure on individual projects, including achieving value for money for each project, rests with the education authorities, including the state and territory education departments and block grant authorities. My mandate, under the Auditor-General Act 1997, enables me to undertake performance audits of Commonwealth entities, with the exception of GBEs [government business enterprises]. That mandate does not allow an assessment to be made of the performance of education authorities in managing the delivery of individual projects, including procurement processes, in their respective jurisdictions. Secondly, the scope of the audit was influenced by the early state of the implementation of the program and the extent of the information held by the department in relation to individual project costs.[11]

DEEWR's capacity to assess whether value for money is being achieved

4.14      The ANAO emphasised that while investigating value for money of individual projects was outside its powers, DEEWR had a responsibility on behalf of the Commonwealth to ensure that the BER implementation represents value for money.[12]

4.15      In considering the Commonwealth's capacity to assess state governments’ ability to achieve value for money, the ANAO emphasised that DEEWR could have taken greater account of the varying approaches that the education authorities took when it defined its reporting requirements:

We were conscious that the 22 educational authorities each had different approaches, to varying degrees, of how they were going to implement it. As you would be aware from your briefings, some used a centralised procurement approach and some had a decentralised to the schools based approach. We were of the view that if the Commonwealth department could have had a greater focus on the strategies employed by those respective education authorities to be able to see whether or not they felt the procurement approaches of large bodies or the decentralised ones were effective, that would have informed them to ask, ‘Do we have confidence in their arrangements in terms of optimising value for money?’ That would inform them where to focus any subsequent detailed checking.[13]

4.16      The Auditor-General told the Finance and Public Administration Committee during the May/June 2010-11 budget estimate hearings that the ANAO examined reporting arrangements to the Commonwealth, starting with the implementation plans that each education authority had to submit to DEEWR. However, the ANAO stated that this:

...did not give a lot of insight in terms of the respective implementation approaches. We also looked at the data that came forward in the application process to see if we could look at some of the costing data and the square metreage. Again, a lot of it was assumption driven and had inaccuracies in it. So our ability to even form opinions there was limited.[14]

4.17      The ANAO also stated that it found 'no evidence' that DEEWR had mechanisms in place to assure value for money from each of the education authorities overseeing the P21 implementation, and that more should have been done about this:

Senator MASON—All right; let me ask a direct question. You are right, Minister. In the ANAO’s opinion, did DEEWR have adequate mechanisms in place to assure itself that value for money is being achieved for Commonwealth money by each of the 22 implementing education authorities?

Mr Cahill—Our assessment was that their assurance arrangements were focused on the individual projects. Did we find evidence that they had done an assessment of the 22 different education authorities? Correct me if I am wrong, but I think we found no evidence that they had done such an assessment.

Senator MASON—So there was no evidence that value for money was being achieved—sorry, that the Commonwealth could assure itself that value for money was being achieved by the 22 education authorities. That is correct, is it not?

Mr Cahill—Correct.[15]

Committee view

4.18      The Commonwealth Auditor-General's mandate should be extended to enable it to investigate how state education authorities manage individual project deliveries funded by the Commonwealth.

4.19      The committee majority is exceedingly concerned by the ANAO's finding that 'DEEWR did not possess the oversight mechanisms to ensure that education authorities were securing value for money'.[16] 

4.20      The committee majority is alarmed that Commonwealth government instrumentalities do not currently have the capacity to effectively monitor whether the $14 billion of taxpayers’ money for the P21 program is being spent so as to secure value for money.

Concerns over state-based audit and review mechanisms

4.21      The ANAO noted that recent reform to federal financial relations:

...recognises that government Education Authorities are accountable to their governments and parliaments for their service delivery performance, including in respect to the delivery of programs for which the Australian Government provides a financial contribution.[17]

4.22      As DEEWR had a direct relationship with the BGAs, questioning in Senate estimates hearings revealed concerns relating to the capacity of state auditors-generals to review those funds. It was clarified that the funds for the independent and Catholic schools flowed through the state and territory treasuries but the extent to which a state auditor-general was able to scrutinise this was unclear.[18]

4.23      DEEWR provided the committee with a list of audits underway in the states and territories just before this report was tabled.[19] The committee notes, however, that the results of such audits may not be available until P21 projects are well underway or completed.

4.24      The Stuarts Point Public School P&C noted:

DET has now agreed to undertake an audit of our project but the basis of that audit is not clear though it is our understanding that the audit will examine whether the proper processes have been followed, whether the actual costs of the project are in line with the ECS, and whether the costs are in line with ‘benchmarks’. We have tried in vain to find out the basis for these ‘benchmarks’ but our current understanding is that they will be based on similar BER projects. The audit has just added to our frustration because, as far as we can ascertain, at no time will it address the fundamental question of whether the building being constructed at Stuarts Point is worth $931,000.[20]

4.25      Miss Karina Daniels, President of Stuarts Point Public School's P&C Association stated:

We have written to the director of the BER, Mr Angus Dawson, and we initially asked him to particularly examine two line items in our individual costing because we felt that they were totally off the wall and totally inapplicable to our project. We asked to be audited and we wrote to him twice. We finally got a response over the school holidays from an auditor, who asked us to meet, I think, two days later. We did meet with that auditor over the school holidays and we then found that we would not be getting an individual cost for the project and that an audit would not find that out either; an audit would just check that the individual project had cost somewhere approximating the estimated cost.[21]

Committee view

4.26      Based on the evidence it has received the committee majority cannot reassure itself that adequate audits are occurring in the states to effectively address the question of whether individual P21 projects are achieving value for money.

The BER Implementation Taskforce – how effective will it be?

4.27      On 12 April 2010, the Minister for Education, Employment and Workplace Relations announced the establishment of a Commonwealth BER Implementation Taskforce to investigate, where necessary, allegations of waste and failure to achieve value for money in the program.

4.28      The BER Implementation Taskforce will also investigate complaints involving individual school projects and will produce a six-monthly report indicating the number and nature of complaints received and the actions taken to resolve these complaints. Under its terms of reference, the taskforce is required to:

1. receive, investigate and respond to complaints regarding the full operation of BER, including individual school projects, in particular:

(a) by referring complaints or evidence of potential breaches of the law, regulations or guidelines to the appropriate authority for action; and

(b) ensuring arrangements are in place between the Commonwealth and States and Territories to minimise duplication of complaints handling processes.

2. assess value for money aspects of individual projects, including project oversight and administration;

3. investigate and assess at its own discretion areas of the operation of BER, especially as they impinge on the outcomes of projects at schools; and

4. make recommendations to the responsible authority about changes to policy, contracts or projects required to ensure the objectives of the BER are realised.[22]

4.29      Since the BER Implementation Taskforce was established additional persons, including two deputy chairs with experience in the construction industry and an expert advisory panel, have been appointed.[23] Questions are emerging as to the effectiveness of this taskforce. The committee's reservations about this matter are discussed below.

BER Implementation Taskforce – not able to consider all contracts

4.30      The committee majority is concerned that the BER Implementation Taskforce will not adequately review whether value for money is being achieved in all P21 projects. 

4.31      Based on the evidence given to the committee, the BER Implementation Taskforce appears to only investigate contracts where a formal complaint has been made to it. There is also uncertainty about whether the BER Implementation Taskforce will compare the difference in the costs being incurred in the government sector in contrast to similar structures in the non-government sector.

4.32      The committee majority considers that a taskforce charged with the responsibility of investigating allegations of waste and failure to achieve value for money in the BER P21 program should have access to all costings and should be able to examine all relevant contracts to enable it to properly discharge its function to ensure the community that value for money is being achieved.

Recommendation 6

4.33             The committee majority recommends that the BER Implementation Taskforce be given access to all costings and be able to examine all relevant contracts to enable it to properly discharge its function to ensure the community that value for money is being achieved.

Release of funding

4.34      By August 2010, the Commonwealth will have paid $11.8 billion of BER funding to the state education authorities.[24]

4.35      The committee majority notes that the Commonwealth is due to release the next tranche of BER funding on 1 July 2010.[25] It would be unconscionable for the Commonwealth to release this money before the BER Implementation Taskforce reports its initial findings and recommendations to the Minister for Education in August 2010 on the improvements needed to ensure value for money is being achieved by the P21 program.

Recommendation 7

4.36      To ensure that further taxpayer money is not subject to waste and mismanagement, the committee majority recommends that the release of any further BER funding be delayed until the BER Implementation Taskforce reports to the Minister for Education in August 2010.

Releasing the BER Implementation Taskforce report

4.37      The BER Implementation Taskforce is due to report in August to the Minister for Education.[26] The committee majority notes, however, that there has been no commitment by the government that the BER Implementation Taskforce report will be made public.

4.38      Given the significant number of concerns raised in relation to potential waste and mismanagement in the P21 program and the significant community interest in the outcomes of the BER Implementation Taskforce's work, the committee majority considers that the BER Implementation Taskforce report should be made publicly available when it is presented to the Minister for Education.

Recommendation 8

4.39      The committee majority recommends that the BER Implementation Taskforce report be made publicly available when it is presented to the Minister for Education.

Uncertainty in responsibility for determining value for money

4.40      The ANAO advised the committee that because of limitations in its mandate under the Auditor-General Act 1997 it cannot assess how state education authorities perform in the management of individual projects.

4.41      Whilst under the partnership model responsibility for value for money appears to lie with the states, DEEWR cannot absolve itself of its responsibility on behalf of the Commonwealth government to ensure that state education authorities achieve value for money. The committee majority is alarmed to note that the ANAO concluded in its report that DEEWR has not sufficiently assured itself that value for money is being achieved.

4.42      The committee majority also notes the uncertainty surrounding the effectiveness of the audits in respect of BER P21 projects currently being undertaken in various states.

4.43      In relation to the BER Implementation Taskforce the committee majority is disturbed that there continue to be serious questions over the taskforce's ability to determine value for money given that it will not be looking at all relevant contracts.

4.44      As a consequence of this uncertainty it is not possible for the government to assure the Australian taxpayer that value for money is being achieved by the P21 program. The committee majority therefore reinstates the call for a judicial inquiry into the BER P21 program to fully investigate whether value for money has being achieved.

4.45      The committee majority concludes that the partnership model provides a means for avoiding appropriate scrutiny and accountability at the Commonwealth and state levels. The P21 program example has shown that the model fails to include appropriate oversight and assurance mechanisms at all levels, as evidenced by DEEWR's inability to assure the parliament of value for money; the lack of an ANAO mandate to follow the money trail; lack of appropriate assurance that robust state‑based review mechanisms are in place; and the committee's inability to access the information it requires to properly evaluate spending under the program.

Recommendation 9

4.46             In order to fully examine the systemic failure of Commonwealth oversight mechanisms, the committee majority recommends that a judicial inquiry be established to inquire into whether the BER program has achieved value for money.

Further work for the committee

Maintenance of state spending efforts

4.47      As set out in chapter 2 of this report, the committee is unable to satisfy itself that states and territories have met their obligations to maintain planned school infrastructure spending efforts in addition to receiving the money allocated under the P21 program.

4.48      The committee majority notes with concern media reporting suggesting that some state governments are using BER money inappropriately or using it to cover state budget shortfalls.

4.49      The committee majority will continue to pursue production of the state quarterly spending reports and other necessary information to enable it to answer questions in relation to this issue.

Fees paid to managing contractors

4.50      As set out in chapter 3 of this report, the committee, to date, has not received sufficient evidence to form conclusions about the concerns arising in relation to fees paid to managing contractors and therefore the true costs of buildings under the P21 program.

4.51      The committee will further investigate the issues surrounding managing contractors and the fees paid to them by state governments. It will also continue to pursue the release of accurate costings data.

Scrutiny of the BER Implementation Taskforce

4.52      The committee will use its next report to review and scrutinise the work and findings of the BER Implementation Taskforce, which is due to report to the Minister for Education in August 2010.

4.53      It will be critical to determine whether the BER Implementation Taskforce adequately addresses the questions over value for money.

Sanctions for failure to comply with BER Guidelines

4.54      In future hearings the committee will seek clarification of the sanctions available to government in the event that P21 projects do not comply with the BER Guidelines and the willingness of the government to apply the sanctions.

4.55      In answer to a question taken on notice during a 2009 estimates hearing of the committee, DEEWR indicated that the bilateral agreements entered into between the Commonwealth and the states/territories specifically require that funding for BER projects be expended for the purposes of the program and in accordance with both the bilateral agreement and the BER Guidelines. DEEWR also stated:

The Bilateral Agreements allow the Commonwealth to withhold or suspend payments to a state/territory if it has not fulfilled its obligations under that Bilateral Agreement...Further, at the completion of the Bilateral Agreement, any funds not spend in accordance with the Bilateral Agreement or not acquitted to the Commonwealth's satisfaction must be repaid to the Commonwealth within 20 days or as directed by the Commonwealth in writing...[27]

4.56      When subsequently asked what sanctions apply to BGAs who fail to comply with the guidelines and agreements, DEEWR indicated that these bilateral agreements allow the Commonwealth to 'withhold or suspend' payments. DEEWR also noted that these agreements contain a 'further power' in the event that the authority fails to comply with a requirement set out in the agreement, the authority may be required to repay a specified amount of the funding received.[28]

4.57      The answers given to the committee relating to sanctions have raised issues that require further clarification. This applies particularly to the possibility that there is a 'further power' in the agreements with the BGAs that may not be in the agreements with the states and territories. Thus, the Commonwealth might be lacking any real power to ensure that state and territory education authorities are achieving value for money, as well as lacking any real sanctions if they are not.

4.58      This issue of the 'further power' was the subject of discussion at estimates hearings in June 2010.[29] The committee is awaiting clarification from DEEWR on this matter.

Details of further hearings and submissions process

4.59      Given the concerns raised in this report it is critical that this Senate committee continue to scrutinise the BER P21 program.  In due course, the committee's inquiry website will list further details about the information that the committee seeks, a new closing date for submissions and hearing dates.[30]

 

Senator Michaelia Cash

Chair

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