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


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

Defence portfolio

Judge Advocate General

1.1        The Judge Advocate General Report for the period 1 January to 31 December 2006 was tabled in the Senate on 7 August 2007.

1.2        The office of Judge Advocate General (JAG) of the Australian Defence Force (ADF) is a statutory body created under the Defence Force Discipline Act 1982 (DFDA). The JAG must be, or have been, a Federal Court or a Supreme Court judge. The position has a number of functions, including making procedural rules for service tribunals, providing the final legal review of proceedings within the Australian Defence Force (ADF), and, reporting upon the operation of laws relating to the discipline of the ADF. ‘The JAG also has a significant role in the promotion of the jurisprudential welfare and education of the ADF’.[1]

1.3        Section 196A of the DFDA requires the JAG to prepare for, and provide to, the Minister for Defence a report relating to the operation of the DFDA, the regulations and rules of procedure made under it, and the operation of any other law of the Commonwealth or ACT, in so far as that law relates to the discipline of the Defence force.

Overview of the JAG Report

Independence of the JAG

1.4        The 2006 report began with an overview of the JAG's position in the military justice system and the functions of members of his office. He stated that the Office of the JAG and its functions are 'indicative of the legislation's desire for an appropriate civilian judicial oversight of the operation of the DFDA and related legislation'.[2] He noted further that the JAG 'necessarily also plays a significant role in the promotion of the jurisprudential welfare and education of the ADF'.[3] He upheld the view of previous JAGs that the JAG should 'not act as general legal adviser to the ADF, nor the government, as that would be inconsistent with judicial office'.[4]

1.5        The JAG is very aware of the importance of his office being, and being seen to be, independent. In this context, he was pleased to report in his 2004 report that his concerns about the need to have his office physically separated from the broader Defence legal office had been addressed satisfactorily.[5] In his current report, the JAG referred to the announcement by the Chief of the Defence Force and the Secretary of the Department that an integrated Australian Defence Headquarters was to be created. His office is to form part of this headquarters for administrative and reporting purposes. The JAG reported that this change was important and was pleased to note that 'the necessary arrangements were effected in 2007'.[6]

Funding arrangements

1.6        In the 2005 report, the JAG referred to the existing funding arrangements for his office which continued to be part of the Defence Legal budget and the expenditure certified by the Head, Defence Legal (HDL). He believed that this arrangement was inappropriate and would be resolved in early 2006. At that time, he explained:

During the year the then CDF, General Cosgrove, acceded to my request that financial responsibility for OJAG be removed from Defence Legal and devolved to the Office of VCDF. However, that had not occurred by the end of the reporting period.[7]

1.7        In the current report, the JAG drew attention to the OJAG's budget continuing to be part of the Defence Legal budget and the expenditure of the OJAG certified by the HDL.[8] He argued that this arrangement was 'inappropriate in terms of the OJAG's independence'.[9]

Defence Legislation Amendment Act 2006 and the Australian Military Court

1.8        The committee notes that the JAG made a valuable contribution to the committee's inquiry into the Defence Legislation Amendment Bill 2006. In his submission to that inquiry, he highlighted a number of serious flaws in the proposed legislation. His evidence in part led the committee to recommend that 'the government review the bill based on evidence presented to the committee and amend or re–draft the bill accordingly before proceeding with it'.[10] Following this recommendation, the bill underwent significant amendment before its enactment.

1.9        The JAG, however, still holds reservations about some aspects of the legislation. In his annual report, the JAG wrote in detail on the Defence Legislation Amendment Act (DLAA 2006) and the Australian Military Court. He wrote:

As finally enacted, DLAA 2006 does not fully address the concerns that I have raised in my Annual Report for 2005 and my submissions to the Senate Foreign Affairs, Defence and Trade Legislation Committee. This is disappointing. In my view, the legislation does not achieve 'world's best practice' for the AMC, and in some instances, significantly adds to the risk involved in moving from the current arrangements to the new. The intention is that CMJ and the military judges will enjoy appropriate independence from the chain of command. I do not believe that this has been achieved.[11]

1.10      He identified three main areas of concern:

  • Failure to provide for the automatic transition of the existing CJA and JAs and DFMs to the new Court for the duration of their current terms of appointment. He explained that the failure to do so 'has the real prospect of weakening the integrity of trials conducted under the existing arrangements pending the establishment of the AMC and it greatly increases the risk so far as the move from the existing arrangements to establishment of the AMC is concerned'.[12]
  • The provisions for the removal of CMJ and the military judges effectively by the Executive. The legislation provides for the termination of appointment by the Governor–General on the recommendation of the Minister. In the JAG's view this is 'effectively termination by the Executive' which he regarded as 'regrettable'. According to the JAG, this provision does not provide proper independence to the member of the AMC. He stated further that the appointment and removal provisions appear 'to equate the AMC with a tribunal rather than a court exercising a quasi–criminal jurisdiction' and that the approach taken 'is certainly not world class practice'.[13]
  • The decision to appoint CMJ and the military judges for a term of years rather than until compulsory retirement age.[14] The JAG noted the decision by Canada to move to appointments to compulsory retirement age for their military judges on the recommendation of a former Chief Justice of Canada. He suggested that this move must bring into question the decision to appoint the judges of the AMC merely for a term of years. He noted further that it would be 'appreciated that...being civilian judges, the judge advocates in the United Kingdom are appointed until retirement age'.[15]

1.11      The JAG also noted that the current legislative scheme does not provide any safeguards for military jurors being subject to command influence concerning the performance of their military duties nor protection from reporting on their performance as a military juror.[16] He noted for the government's consideration the desirability of incorporating provisions similar to those in the Jury Act 1977 NSW sections 68, 68A, 68B, 68C and 69.[17]

1.12      He concluded his remarks on the DLAA 2006 by recognising that while the legislation introduces desirable reform, 'it has proceeded on the basis of according the bare minimum so far as issues of fundamental importance are concerned such as the guarantees of independence'.[18]

Statistics on summary trials

1.13      The JAG commented on the recording of statistics on summary trials. He observed:

...responsibility for the Discipline Tracking and Case Flow Management System was transferred to the Inspector–General, Australian Defence Force (IG–ADF). Accordingly, IG–ADF has provided the statistics for the summary trials for this report drawing upon the electronic system. The responsible officer within the Office of IG–ADF has invited to my attention the marked decline in the number of summary trials when compared to previous years. The possibility that the figures have been distorted as a result of a failure to enter all relevant data cannot be discounted. This requires further investigation and, if necessary, remedial action to maintain the integrity of the data base.[19]

Future of the JAG

1.14      In his report, the JAG stated, as far as he was aware, that no decision had been made as to whether or not the position of the JAG should continue. He referred to his observation in his 2005 report that his reports to Parliament 'have been an important part of the self–regulating process that was put in place for military discipline with the introduction of the DFDA'.

1.15      He stated that 'if the decision is taken to abolish the position, it is important that some mechanism replace the role of the JAG's annual report in inviting to Parliament's attention, the jurisprudential currency of the military justice system'.[20]

Committee view

1.16      In reviewing the JAG's 2005 annual report, the committee considered that the JAG's report was an invaluable tool for providing independent and expert systemic insight into the operation of the military justice system. It believed that the JAG's statutory independence provides an effective mechanism for making the types of frank and critical observations and recommendations contained in the JAG's report. The committee cited his report as an example of how independence and impartiality in the reporting regime can improve the overall function and accountability of the military justice system. The committee welcomed and endorsed the JAG's proactive stance in using his annual report to identify problems in the military justice system, suggest improvements to the system, and also his initiative in providing public information regarding the operation of particular aspects of the military justice system.

1.17      The JAG's 2006 annual report again demonstrates the value of having such a strong independent civilian judicial oversight of the operation of the DFDA and related legislation.

Foreign Affairs and Trade portfolio

Bilateral councils

1.18      There are nine bilateral foundations, councils and institutes (FCI). The first FCI, the Australia–Japan Foundation, was created as a statutory body under the Australia–Japan Foundation Act 1976. Since then, the following FCIs have been established: Australia–China Council, Australia–India Council, Australia–Indonesia Institute, Australia–Korea Foundation, Council on Australia–Latin America Relations, Council for Australian–Arab Relations, Australia–Malaysia Institute and Australia–Thailand Institute.

1.19      The FCIs 'promote people–to–people links and accurate, contemporary images of Australia in support of the government’s foreign and trade policy goals'.[21] They operate both in Australia and abroad to shape perceptions of Australia held by individuals and organisations overseas. As DFAT explained:

FCI projects are expected to foster perceptions of contemporary Australia as scientifically, technologically and educationally advanced, economically enterprising and culturally diverse. FCI activities are required to build networks and contacts, influence opinion-makers and facilitate exchange of knowledge.[22]

1.20      As part of its inquiry into Australia's public diplomacy, the committee considered the FCIs. The following table was provided to the committee. It lists government funded expenditures by the nine FCIs from 2002–2003 to 2005–2006.[23] The Australia–Japan Foundation spent $2.5 million in government funds for the financial year; the next highest was the Australia–China Council with $745,731.

Table 14.3: Expenditure by the nine foundations, councils and institutes

FCI Expenditure

2002–2003

2003–2004

2004–2005

2005–2006

Australia China Council

$732,851

$752,596

$752,132

$745,731

Australia India Council

$738,172

$749,900

$749,390

$739,419

Australia Indonesia Institute

$848,583

$785,104

$784,390

$729,275

Australia Malaysia Institute*

 

 

 

$288,216

Australia Thailand Institute**

 

 

 

$297,668

Australia Korea Foundation

$719,731

$743,229

$746,190

$737,854

Australia Japan Foundation***

$3,413,093

$3,322,763

$3,159,338

$2,500,000

Council for Australian–Arab Relations

$149,583

$399,899

$492,030

$470,528

Council on Australia Latin America Relations

 

 

 

$414,493

Total

$5,869,162

$6,000,895

$5,931,338

$6,177,453

*          The AMI was established in April 2005. Its first budget was for 2005–06.
**        The ATI was established in June 2005. Its first budget was for 2005–06.
***      The AJF was an independent statutory authority until 2006. AJF expenditure includes staffing and administrative costs.

1.21      With regard to annual reports, the committee notes that during the current reporting period three CFIs tabled reports in Parliament: Australia–Japan Foundation (see Report on Annual Reports, No 1 of 2007), Australia–Indonesia Institute and Australia–China Council. In its report on Australia's public diplomacy, Australia's public diplomacy: building our image, the committee observed that accountability is an important aspect of government funding. It stated further:

The committee notes that DFAT's annual report contains a section on the FCIs but conveys very little information especially on expenditure. Some FCIs produce an annual report that is presented to Parliament and some do not. The annual reports of the Australia–China Council, the Australia–Indonesia Institute and the Australia–Japan Foundation are tabled. Some FCIs, such as the Australia–Korea Foundation, have in the past had their annual report tabled in Parliament but now do not. The most recent annual report for the Australia–India Council available on DFAT's website is for financial year 2001–2002 and for the Australia–Korea Foundation is financial year 2003–2004.[24]

1.22      The committee noted that not all FCIs are required to table an annual report. It recommended, however, that each FCI produce an annual report to be tabled in Parliament. It noted that this requirement would not alter the current arrangement of DFAT'S annual report containing a summary of the FCI reports.[25]

1.23      The following table sets out the reporting pattern of FCIs over recent years.

Foundation/council/institute (FCI)

Annual report tabling requirements

History of reports tabled in Parliament

Australia–China Council

Established by Executive Council Order in 1978. The Council reports to the Minister for Foreign Affairs.
As soon as practicable after 30 June each year, the Council shall provide the Minister with an annual report on Council activities during the period of 12 months ending on 30 June.

Report 94–97: 02 Dec 98
Report 97–98: 02 Dec 98
Report 98–99: 07 Dec 99
Report 99–00: 25 Sep 02
Report 00–01: 25 Sep 02
Report 01–02: 25 Sep 02
Report 02–03: 10 Feb 04
Report 03–04: 30 Nov 04
Report 04–05: 29 Nov 05
Report 05–06: 20 Mar 07

Australia–India Council

Established by Order–in–Council in 1992, reporting to the Minister for Foreign Affairs. Although not formally required to do so, the council regularly submits an annual report on its activities to the Minister and the Australian Parliament

Report 92–93: 13 Dec 93
Report 93–94: not received
Report 94–95: 25 Oct 95
Report 95–96: 13 May 97
Report 96–97: 13 May 98
Report 97–98: not received
Report 98-99: 06 Jun 00
Report 99–00: 20 Jun 01
Report 00–01: 25 Jun 02
Report 01–02: not received
Report 02–03: not received
Report 03–04: not received
Report 04–05: not received
Report 05–06: not received

Australia–Indonesia Institute

Although not required to do so, the Institute submits an annual report to the Minister for Foreign Affairs and the Parliament.
No specific date prescribed for tabling.

Report 99–00: 06 Dec 00
Report 00–01: 12 Mar 02
Report 01–02: 12 Nov 02
Report 02–03: 14 Oct 03
Report 03–04: 17 Nov 04
Report 04–05: 09 May 06
Report 05–06: 09 May 07

Australia–Japan Foundation

Australia–Japan Foundation Act 1976 and Commonwealth Authorities and Companies Act 1997, s9.
Minister to table within 15 days of receiving report (by 31 Oct).

Report 98–99: 19 Oct 99
Report 99–00: 28 Oct 00
Report 00–01: 12 Feb 01
Report 01–02: 25 Mar 03
Report 02–03: 03 Dec 03
Report 03–04: 08 Dec 04
Report 04–05: 06 Dec 05
Report 05–06: 18 Oct 06

Australia–Korea Foundation

Established May 1992 by Order–in–Council.
The Australian–Korea Foundation (AKF) is a non–statutory body established by the Australian Government in May 1992. It is not required to submit an annual report but follows the practice of other bilateral foundations with secretariats in the Department of Foreign Affairs and Trade.
Usually tables a report in the early part of the year.

Report 94–95: 25 Jun 96
Report 95–96: 26 Mar 97
Report 96–97: 11 Nov 98
Report 97–98: 12 Oct 99
Report 98–99: 19 Jun 01
Report 99–00: 19 Jun 01
Report 00–01: 04 Mar 03
Report 01–02: 24 Jun 03
Report 02–03: 16 Jun 04
Report 03–04: 11 May 05
Report 04–05: not received
Report 05–06: not received

Australia–Malaysia Institute

Established March 2006 by the Minister for Foreign Affairs.

Report 2005–2006 posted on DFAT website.
Not tabled in Parliament.

Australia–Thailand Institute

Established June 2005 by the Minister for Foreign Affairs.

Report 05–06 posted on DFAT website.
Not tabled in Parliament.

Council for Australia Arab Relations (CAAR)

Establishment of CAAR announced December 2002 by the Minister for Foreign Affairs. First meeting 14 March 2003.

Mentioned in DFAT annual report 2002–2003.
Annual report 2004–2005 on DFAT website.
Not tabled in Parliament.

Council for Australia–Latin America Relations (CLR)

Established 1 July 2001 by the Minister for Foreign Affairs.

Annual report 2001–2002
Annual report 2002–2003
Annual report 2003–2004
Annual report 2004–2005
Annual report 2005–2006
All above reports on FADT website.
Not tabled in Parliament.

1.24      The committee now considers the two annual reports that were tabled after 31 October 2006.

Australia–China Council (ACC)

1.25      The Australia–China Council Annual Report 2005–2006 was tabled in the Senate on 20 March 2007. The Council was established by an Executive Council Order in 1978 and reports to the Minister for Foreign Affairs. Although not required so do so, the Australia–China Council (ACC) has published annual reports since its establishment. The requirement for annual reporting was formalised in an amendment to the Council's Orders in Council in 2004.[26]

1.26      The mission of the Council is to foster in Australia and China a greater awareness and understanding of each others’ countries; and, to develop and expand the areas of contact and exchange between Australia and China and their people.[27]

1.27      The ACC secretariat is part of the East Asia Branch of the Department of Foreign Affairs and Trade. The secretariat implements Council decisions and administers Council programs, funding and activities. It liaises closely with other parts of DFAT; the Australian Embassy in Beijing; the Consulates–General in Shanghai, Guangzhou and Hong Kong; and the Australian Commerce and Industry in Taipei.[28]

1.28      The committee notes that in his report, the outgoing Chair, Dr John Yu, commented on the strengthening of Australia's relationship with China through various visits and activities during 2005–2006.

Australia's relationship with China was strengthened further in 2005–2006 by Premier Wen Jiabao's visit in April 2006 and by Prime Minister Howard's visit to China in June. During Premier Wen's visit, government–to–government agreements and memoranda of understanding were signed across a wide range of fields including technology, the service industries, occupational health and safety, agricultural technical cooperation and agricultural market access.

In addition to trade, bilateral exchanges in education, the arts, human rights and academic scholarship have also expanded, including the continuation of the Human Rights Dialogue between Australia and China. These areas, which deepen mutual understanding and trust between our countries, are the primary focus for the Council.[29]

1.29      The ACC reports on its performance through one outcome and three outputs. Across the three outputs, the report describes programs such as the Australian studies program, youth exchanges programs (output 1), residency programs (output 2) and a diverse range of programs such as residency programs and delegation visits (output 3).[30]

1.30      The committee notes that in the administrative overview and appendices, the report provides information on administrative arrangements, financial statements and the organisation's strategic plan for 2006–2009.[31]

1.31      The Council has produced an interesting report that informs the reader on the operations and outcomes of the ACC. It is clearly written and presented in a simple and effective format. The committee finds that the report complies with the reporting requirements for non–statutory bodies.

Australia–Indonesia Institute

1.32      The Australia–Indonesia Institute Annual Report 2005–2006 was tabled in the Senate on 9 May 2007. The Institute was established in April 1989 under an Order–in–Council. The Institute reports to the Minister for Foreign Affairs and submits an annual report to the Minister on its activities.[32]

1.33      The mission of the Institute is 'to develop relations between Australia and Indonesia by promoting greater mutual understanding and by contributing to the enlargement over the longer term of the areas of contact and exchange between the people of Australia and Indonesia'.[33]

1.34      Under 'programs', the report states that the Institute supports and initiates activities consistent with its goals and on the basis of a strategic program set by the Board. It states also, that the policy of the Institute is to target groups and individuals in Australia and Indonesia who have an interest in a future relationship with substance with the other country, including through the enhancement of institutional links.

1.35      The Chairman, Mr Allan Taylor, reported that the year in review had been fruitful for the Institute's programs, including the Muslim Exchange Program, which has developed strong support in both Indonesia and Australia since its inception in 2002:

This year, as part of the Board's continuing commitment to promoting inter–faith programs, the Muslim Exchange Program brought twelve young emerging Indonesian Muslim leaders, in four groups to Australia as well as one group of Australian Muslim leaders to Indonesia. The visit program for the Indonesian groups introduced participants to a variety of contacts and experiences which helped to reinforce the strong theme of Australia as a modern and vibrant, diverse society and exposed them to a variety of Australian Muslim opinions.

The Institute sought to have a full Australia–Indonesia Youth Exchange Program (AIYEP) in 2005–2006 but concerns about the security situation and bird flu meant that the Board cancelled the Indonesian leg of the exchange. ... The Board in consultation with the Department of Foreign Affairs and Trade has developed arrangements which it hopes will allow AIYEP to proceed in 2006–2007.

1.36      The Institute receives its program funding from the Australian government in the form of an annual grant–in–trust administered by the Department of Foreign Affairs and Trade. The Institute received new program funding in 2005–2006 of $725,000.

1.37      The report states that the Institute was able to roll–over previously approved funding from AusAID of $237,553 in support of the second stage of the Partnerships in Education and Training in Regional Islamic Institutions (PETRII) which started in 2004–2005.

This project seeks to upgrade the research and lecturing skills of staff from Islamic tertiary institutions outside Java. In addition, an amount of $240,125 previously approved by AusAID to commence a new one–year program under the Learning Assistance Program for Islamic Schools (LAPIS) was rolled over for use in that financial year. This program is devoted to enhancing the teaching skills of educators from tsunami–affected institutions in Aceh.[34]

1.38      The committee notes that the total value of activities which received Institute funding was far greater than the amount of Institute funding. However, most of the activities involved substantial joint funding and in–kind support from other organisations and individuals in both countries.[35]

1.39      The report states that, in the course of the year, Board members and staff of the secretariat consulted with a broad range of other Australian organisations and individuals about political, economic and cultural developments between Australia and Indonesia.[36]

1.40      The Institute has produced an interesting report that informs the reader on the operations and outcomes of the Australia–Indonesia Institute. It is clearly written and presented in a simple and effective format. The committee finds that the report complies with the reporting requirements for non–statutory bodies.

 

Senator Marise Payne

Chair

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