Annual reports of statutory agencies
1.1
The annual reports of the following statutory agencies in the
Attorney-General's portfolio were referred to the committee for examination and
report during the period 1 November 2016 to 30 April 2017:
-
Australian Human Rights Commission;
-
Australian Commission for Law Enforcement Integrity;
-
Australian Crime Commission;[1]
-
Australian Institute of Criminology;
-
Australian Security Intelligence Organisation;
-
Australian Transaction Reports and Analysis Centre;
-
CrimTrac Agency;
-
Federal Circuit Court of Australia;
-
Federal Court of Australia;
-
National Archives of Australia; and
-
Office of the Commonwealth Ombudsman.[2]
1.2
No annual report was referred to the committee over this time period
from the Immigration and Border Protection portfolio. As of 1 July 2015, there
are no statutory agencies in that portfolio.
Consideration of annual reports
1.3
The committee considered, but has not reported on, the annual reports of
the Australian Commission for Law Enforcement Integrity and the Australian
Crime Commission. The Parliamentary Joint Committee on the Australian
Commission for Law Enforcement Integrity and the Parliamentary Joint Committee
on Law Enforcement have specific responsibility for overseeing these agencies.
1.4
Similarly, the committee has considered, but not reported on, the annual
report of the Office of the Commonwealth Ombudsman, as the Senate Finance and
Public Administration Legislation Committee has responsibility for overseeing
this agency.
1.5
While the committee has considered all reports presented during this
period, on this occasion it has decided to examine issues of compliance with mandatory
reporting requirements in the reports of the Federal Court of Australia and the
Australian Institute of Criminology, for the reasons set out in the preface of
this report, and the Australian Security Intelligence Organisation, in relation
to its performance statements.
Federal Court of Australia
1.6
The Federal Court of Australia (Federal Court, the court) tabled its
annual report for 2015–16 in the Senate on 7 November 2016. This report also
included the annual report of the National Native Title Tribunal, which the
committee found to be satisfactory.
1.7
The report is in most respects a comprehensive representation of the
court's activities, although the committee did identify a number of matters
about which it sought further information.
1.8
The committee has assessed the Federal Court's report for 2015–16
against the requirements for non-corporate commonwealth entities as set out in
the preface of this report, specifically using the mandatory list of
requirements provided in Schedule 2 of the Public Governance, Performance
and Accountability Rule 2014 (PGPA Rule) as a main reference point, as this
is the method by which all other annual reports for the portfolio were
assessed.
1.9 The Federal Court appears to not have followed a number of requirements
for 2015–16 in the preparation of the annual report, and does not appear to
have used the list of requirements prescribed by the PGPA Rule.
1.10
The committee raised its concerns about the report during the Budget
Estimates 2017–18 hearing on 18 August 2017[3]
and in a subsequent letter to the Federal Court's Chief Executive Officer and
Principal Registrar, Mr Warwick Soden. The court's response has been considered
in the committee's analysis below.
List of requirements
1.11
The list of requirements, included in Appendix 11 of the report,[4]
does not closely match any version provided by either the Department of Prime
Minister and Cabinet in previous years or the Department of Finance for 2015–16.
As the list does not include any references to the PGPA Rule or other
guidelines, the committee was unable to identify its source. The list of
requirements is defined as an 'aid to access' in the PGPA Rule, and consistency
in format across all departments and agencies is essential for analysis and
comparison of performance information.[5]
1.12
In his response to the committee's inquiry, the Registrar, Mr Soden,
stated that the court had used a 'condensed version of the required list' and
that this error would be rectified in the 2016–17 report by using the correct
index in accordance with the Department of Finance Resource Management Guide
(RMG) No. 135: Annual reports for non-corporate Commonwealth entities.[6]
The committee thanks Mr Soden for his explanation and undertaking, which
the committee considers to be an acceptable outcome.
Did not meet specific requirements
1.13
The letter of transmittal to the Attorney-General, signed by the Hon
James Allsop, Chief Justice, stated that the report had been prepared in
accordance with section 18S of the Federal Court of Australia Act 1976. The
committee noted that this letter did not meet two criteria under section 17AI
of the PGPA Rule, requiring that it be signed by the accountable authority
under the PGPA Act, who in this instance is the Registrar of the Federal Court[7]
and that it state that the report was prepared under section 46 of the PGPA
Act.[8]
1.14
However, the committee notes that the letter of transmittal met all
requirements under the Federal Court of Australia Act 1976 which, in
contrast to the PGPA Rule, requires the signature of the Chief Justice. The
Federal Court has proposed that future letters of transmittal will include
signatures of both the Chief Justice and the Registrar to ensure 'complete
compliance' with both Acts.[9]
The committee is pleased with this approach.
1.15
While a comprehensive review of the Federal Court's work was included in
Part 2 of the annual report, this was not a review by the accountable authority
(i.e. the Registrar), as required by subsection 17AD(a) of the PGPA Rule. The
Federal Court explained in its response to the committee that the 'year in
review' section did not have a signature as it was a general report on the work
of the court over the financial year.[10]
The committee encourages the Federal Court to include a review from the
Registrar in future reports.
1.16
The annual performance statement, which is required under paragraph 17AD(c)(i)
and section 16F of the PGPA Rule, and paragraph 39(1)(b) of the PGPA Act,
was presented in an unusual manner: as a two-page appendix at the end of the
report, referring to multiple sections of narrative within the body of the
report for further detail.[11]
While it is the committee's view that this performance statement strictly meets
the requirements of the PGPA Rule and PGPA Act, it does not meet the Department
of Finance recommendations for the presentation of annual performance
statements, which set out a structure and the type of details to be included in
the discussion of results.[12]
The Federal Court acknowledged in their response to the committee that the
annual performance statement was not presented correctly and that this would be
rectified in the 2016–17 annual report.[13]
1.17
Subparagraph 17AE(1)(a)(iv) of the PGPA rule requires a 'description of
the purposes of the entity as included in corporate plan'. While this item was
included in the list of requirements, the committee was unable to identify
either this description or any reference to the corporate plan in the annual
report, and notes that the indexed page included only brief outlines of the
Federal Court's objectives, establishment, and functions and powers on a title
page.[14]
The Federal Court responded to the committee's concerns, stating that it would
'ensure that there is a clearer link between the court's purpose and its
corporate plan in its 2016–17 report'.[15]
Conclusion
1.18
While the committee identified a number of shortcomings with the Federal
Court's report, on balance it considers the report to be apparently
satisfactory. The committee's subsequent inquiries to the court were met with a
commitment to rectify the content and presentation of reports going forward,
which the committee considers to be a positive outcome.
Australian Institute of Criminology
1.19
The Australian Institute of Criminology (AIC) tabled its annual report
for 2015–16 in the Senate on 7 November 2016.
1.20
The report was prepared in accordance with section 46 of the PGPA Act
and section 49 of the Criminology Research Act 1971.
1.21
The annual report of the AIC largely met the requirements of the PGPA
Act and PGPA Rule in reporting the functions, activities, performance and
financial position of the agency for the 2015–16 period.
1.22
While it is not its usual practice to examine the annual reports of a
single agency in consecutive years, the committee is concerned about a repeated
omission in staffing statistics and a significant inaccuracy in the
presentation of the list of requirements in AIC's report for 2015–16.
Omissions in staffing statistics
1.23
This is the second consecutive year that AIC have failed to include statistics
on employees who identify as Indigenous. Statistics on staff location were also
not included in the annual report.
1.24
While the committee acknowledges that its advice to remedy the error
from the 2014–15 AIC annual report was published in the Report on Annual
Reports (No. 2 of 2016)[16]
and would not have been available to AIC for the preparation of its 2015–16
report, this requirement is clearly stated in the PGPA Rule and Department of
Finance guidelines.
1.25
Statistics on employees who identify as Indigenous and on staff
location, both required under paragraph 17AG(4)(b) of the PGPA Rule, were
indexed in AIC's list of requirements[17]
but no information in relation to those statistics was provided on the indexed
pages[18]
or elsewhere in the 2015–16 report.
1.26
The committee notes that other staffing statistics provided under
paragraph 17AG(4)(b) of the PGPA Rule, including statistics on staff
classification, status and gender, were otherwise acceptable.
1.27
The committee requests that future reports of the AIC include all
required staffing statistics, or statements explaining why certain statistics
have been omitted. For example, the committee considers that it would be
appropriate for an agency with all members of staff based in Canberra to make a
simple statement to that affect.
List of requirements incomplete
1.28
The mandatory list of requirements is included in the AIC annual report
for 2015–16 as Appendix 4: Compliance index.[19]
1.29
The first section of this index was produced with a high degree of
fidelity to Schedule 2 of the PGPA Rule. However, all items from 'Assets
management' onwards have been excluded from the list entirely. The committee
notes that the omitted section of the list exactly matches pages four and five
of the five-page Schedule 2, and questions whether this was an inadvertent
error in the typesetting of the annual report.
1.30
Despite this apparent error, the committee notes that mandatory requirements
which were omitted from the list have, in most cases, been included in the
annual report in accordance with the PGPA Rule and the Department of Finance guidelines.
1.31
However, the committee identified two mandatory requirements, both from
the omitted section of the list, which it believes were not included in this
annual report:
-
a statement that 'Annual reports contain information about actual
expenditure on contracts for consultancies. Information on the value of
contracts and consultancies is available on the AusTender website', under
paragraph 17AG(7)(d) of the PGPA Rule, although all other requirements for
consultants reporting were met; and
-
a website reference to where the entity’s Information Publication
Scheme statement pursuant to Part II of FOI Act can be found, under
paragraph 17AH(1)(d) of the PGPA Rule.
Some requirements may not be
applicable
1.32
It was unclear if a number of mandatory requirements were applicable to
AIC due to their omission from the list. These included:
-
an assessment of effectiveness of assets management where asset
management is a significant part of the entity’s activities, under subsection
17AG(5) of the PGPA Rule;
-
if an entity entered into a contract with a value of more than
$100 000 (inclusive of GST) and the contract did not provide the Auditor‑General
with access to the contractor’s premises, the report must include the name of
the contractor, purpose and value of the contract, and the reason why a clause
allowing access was not included in the contract, under subsection 17AG(8) of
the PGPA Rule, which may have been broadly covered in a section on access
clauses;[20]
-
either if the entity conducted advertising campaigns, a statement
to that effect in prescribed wording, or if the entity did not conduct
advertising campaigns, a statement to that effect, under subparagraphs 17AH(1)(a)(i)
and (ii) of the PGPA Rule;
-
a statement about information on grants awarded, under paragraph 17AH(1)(b)
of the PGPA Rule; and
-
any correction of material from previous annual reports, under
paragraph 17AH(1)(d) of the PGPA Rule.
Conclusion
1.33
Despite the incomplete nature of the mandatory list of requirements, the
committee finds the annual report of AIC to be 'apparently satisfactory'.
Australian Security Intelligence Organisation
1.34
The Australian Security Intelligence Organisation (ASIO) tabled its
annual report for 2015–16 in the Senate on 7 November 2016. A classified
version of the annual report was also made available to the Attorney-General,
the Minister for Finance, other national security ministers, senior officials,
the Inspector-General of Intelligence and Security, and is accessible to the
Australian National Audit Office.[21]
1.35
The report was prepared in accordance with the requirements of section
46 of the PGPA Act and section 94 of the Australian Security Intelligence
Organisation Act 1979.
1.36
In accordance with determinations made by the Attorney-General and the
Minister for Finance under the PGPA Act, the version of the annual report
tabled in parliament does not include classified material. The tabled report differs
from the classified report in the following ways:
-
Some detail has not been included in the annual performance
statements at Part 3;[22]
-
Part 6, which 'contains classified information about performance
and corporate management'[23],
has been excluded; and
-
Two appendices have been excluded:
-
Reporting on special intelligence operations (Appendix G); and
-
Reporting on authorisations for telecommunications data (Appendix
H).[24]
1.37
The committee wishes to acknowledge the work of ASIO in producing a
report for parliament which not only provides unclassified summaries of annual
performance information in Part 3, but also includes comprehensive narrative
discussions of performance measures and demonstrative case-studies in Part 4.
Accountability and performance
statements
1.38
The committee commends ASIO for providing a great level of detail in its
unclassified report which, along with the Portfolio Budget Statements (PBS) and
corporate plan, forms a critical part of the formal accountability mechanism
between the agency and the Parliament.[25]
In previous Reports on Annual Reports, this committee has emphasised the
importance of a 'clear read' between performance information in annual reports
and the relevant PBS.[26]
1.39
However, the committee was unable to identify any reference to the key
performance indicators set out in the PBS for 2015–16[27]
in this annual report. It was unclear whether this performance information may
have been included in Part 6 of the classified report.
1.40
Furthermore, two performance measures listed in Part 3 were taken from
the 2016–17 corporate plan, which was not yet published or in effect during the
reporting period.[28]
In each instance, the measure was described as 'an evolution' from a
deliverable set out in the PBS for 2015–16, but did not match the PBS and could
not be considered a 'clear read'.
1.41
The committee notes that ASIO’s corporate plan and PBS were 'refined and
aligned in 2016–17 to ensure clarity across these strategic documents'[29]
and therefore anticipates that future annual reports from ASIO will benefit
from the clearer performance targets set in the PBS for 2016–17[30]
and 2017–18.[31]
Conclusion
1.42
The committee wishes to thank ASIO for the vital role it continues to play
in protecting the national security of Australia and for its comprehensive
unclassified reporting of the agency's work.
1.43
The committee considers the annual report of ASIO to be 'apparently
satisfactory'.
Senator the Hon.
Ian Macdonald
Chair
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