PREFACE
Terms of reference
On 29 September 2010, 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.
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.
Annual reporting requirements
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 and approved by the Joint Committee of Public Accounts and
Audit, the Requirements for Annual Reports for Departments, Executive
Agencies and FMA Act Bodies, (the Requirements for Annual Reports) the
annual reports of departments, and executive and prescribed agencies, must be
tabled in each House of Parliament by 31 October.[1] If a department is unable to meet this
deadline, the secretary of that department 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 (CAC Act) set out guidelines for
the annual reports of Commonwealth authorities. The content of annual reports
of Commonwealth companies is based on the reporting requirements under the Corporations
Act 2001, in accordance with section 36 of the CAC Act.
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
Government Response was incorporated into the Senate Hansard of 8 December
1987.[3]
'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.
The reports examined by the committee in this report were
found to be of a satisfactory standard, adequately describing the functions,
activities and financial positions of the departments and agencies. The
committee finds all submitted annual reports to be
'apparently satisfactory'.
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 Requirements for Annual Reports published in 2009 state
that:
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]
...
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.[5]
The committee is pleased to note that the most recent
guidelines (issued June 2010) have been amended to include the following advice
in addition to that set out above:
If Senate Estimates is scheduled to occur prior to 31
October, it is best practice for annual reports to be tabled prior to those
hearings.[6]
The amendment reflects the fact that supplementary budget
estimates hearings are now generally held in late October rather than November
as was previously the case.
Some Senators experienced frustration at the hearings for the
supplementary budget estimates round on 19 and 20 October 2009 in relation to
the lack of availability of departmental and agency annual reports:
Senator BARNETT—Mr Wilkins, we have heard from a range
of agencies this morning regarding annual reports that were forwarded to the
department as long ago as early September, in one instance. It is now
19 October and here we are at estimates without any annual reports from
Attorney-General's or its agencies. In our annual committee report on the
annual reports we strongly encouraged agencies of the department to table
annual reports before Senate estimates. No doubt you have read that annual
report of the legal and constitutional affairs committee. Is there a particular
reason why these reports have not been tabled and made available to our
committee prior to these estimates?
Mr Wilkins—There is no reason of that sort. I take my
obligation to be to comply with the law, and the law says it needs to be in by
the 31st, as I understand, and that is what we are working towards.[7]
...
Mr Wilkins—...I take my portfolio responsibilities
seriously. The key issue for us is making sure that they are tabled within the
statutory time, and you will probably find that is a general view of
secretaries. As I said to you, if you have a report that says something
different, maybe it is a good idea to actually flag that in the law.
...
Senator BARNETT—...Together with other committee
members, I take my position on the committee seriously, and that is why in our
annual report on annual reports we strongly encourage them to be tabled as soon
as possible so that we can consider them before estimates. Please bear in mind
the views of our committee.
Mr Wilkins—I have taken that on board.
Senator BARNETT—Thank you.[8]
The revised Requirements for Annual Reports issued on
23 June 2010 will apply to annual reports for the financial year ending on
30 June 2010. The committee encourages departments and agencies to prepare,
and ministers to table, annual reports as soon as possible so that they can be
considered during the committee's examination of supplementary budget
estimates.
Subsection 9(1) of the CAC Act requires
the director of a Commonwealth authority to:
(a) prepare an annual
report in accordance with Schedule 1 for each financial year; and
(b) give it to the responsible Minister by the deadline for the financial year
for presentation to the Parliament.
...
(2) The deadline is:
(a) the 15th day of the 4th month after the end of the financial year; or
(b) the end of such further period granted under subsection 34C(5) of the Acts
Interpretation Act 1901.
Under section 36 of the CAC Act:
(1) A Commonwealth company
must give the responsible Minister:
(a) a copy of the company's financial report, directors' report and auditor's
report that the company is required by the Corporations Act 2001 to have
for the financial year (or would be required by that Act to have if the company
were a public company); and
(b) any additional report under subsection (2); and
(c) in the case of a wholly-owned Commonwealth company— any additional
information or report required by the Finance Minister's Orders.
(1A) The Commonwealth company must give the reports and information
by:
(a) if the company is required by the Corporations Act 2001 to hold an
annual general meeting—the earlier of the following:
(i) 21 days before the
next annual general meeting after the end of the financial year;
(ii) 4 months after the end of the financial year; and
(b) in any other case—4 months after the end of the financial year; or the end
of such further period granted under subsection 34C(5) of the Acts
Interpretation Act 1901.
A table listing the annual reports of departments and agencies
tabled in the Senate (or presented out of session to the President of the
Senate) between 1 November 2009 and 30 April 2010, and which have been referred
to the committee for examination, can be found at Appendix 1.[9]
A number of annual reports for 2008-09 referred to the
committee were tabled in the Senate after 31 October 2009. The committee
notes that, among these reports, the following prescribed agencies under the Financial
Management and Accountability Act 1997 (FMA Act) tabled their reports in
the Senate after 31 October 2009:
- Australian Commission for Law Enforcement Integrity;
- Australian Crime Commission;
- Australian Customs and Border Protection Service;
-
Australian Human Rights Commission; and
- Commonwealth Director of Public Prosecutions.
However, the committee also acknowledges that the annual
reports of all of the agencies above, except for the Australian Crime
Commission, were tabled in the House of Representatives on
29 October 2009.
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