Corporate governance

ALRC accountability and governance requirements are met through its Chief Executive Instructions. These reference the Model Chief Executive Instructions (CEIs) and provide the framework to ensure that the ALRC meets its obligations and responsibilities with regard to the proper use and management of public money, public property and other resources of the Commonwealth, in line with the requirements of the FMA Act.

Ministerial powers

The Minister responsible for the ALRC is the Attorney-General of Australia.

The ALRC is a statutory agency under the Financial Management and Accountability Act 1997 (FMA Act) and an employer subject to the Public Services Act 1999.

The ALRC is constituted under the Australian Law Reform Commission Act 1996 (the ALRC Act). Section 20 of the ALRC Act states that the Attorney-General may refer matters to the ALRC for review. In 2011–12, two matters were referred to the ALRC—the inquiry into Commonwealth legal barriers to older persons participating in the workforce or other productive work (in March 2012) and an inquiry into copyright and the digital economy (in June 2012).

Members of the Commission

The President is the CEO of the ALRC. During 2011–12 there were three full-time Commissioners (including the President) and three part-time Commissioners appointed. Table 7 lists members of the ALRC during 2011–12, and their current terms of appointment. On 30 June 2012, there were five members of the ALRC—two full-time members and three part-time members.

Table 7: Members 2011–12

Professor Rosalind Croucher—President

Before her appointment as ALRC Commissioner and President, Professor Croucher was Dean of Law at Macquarie University (from 1999). Prior to this she was a member of the Law Faculties of the University of Sydney and the University of New South Wales. Professor Croucher served as Chair of the Council of Australian Law Deans (2002), Vice President (Western Pacific), International Academy of Estate and Trust Law (1998–2005), Chair of the Scientific Committee for the World Congress of Medical Law 2004 and on the Program Committee for the 8^th biennial conference of the International Association of Women Judges, 2006.

Professor Croucher has lectured and published extensively, principally in the fields of equity, trusts, property, inheritance and legal history. She is an Honorary Fellow of the Australian College of Legal Medicine and a Foundation Fellow of the Australian Academy of Law.

Professor Croucher is on leave from Macquarie University for the duration of her appointment at the ALRC.

Professor Terry Flew—Commissioner

Professor Flew is Professor of Media and Communications at the Queensland University of Technology (QUT). He was Portfolio Director in the Creative Industries Faculty and the author of New Media: An Introduction (Oxford)—Australia’s leading new media textbook, Understanding Global Media (Palgrave, 2007) and The Creative Industries, Culture and Policy (Sage, 2011).

Professor Flew is a Chief Investigator with the Australian Research Council Centre of Excellence for Creative Industries and Innovation and a Work Program Leader in New Media Services for the Smart Services Co-operative Research Centre and is active in the International Communications Association. Professor Flew was on leave from the Queensland University of Technology for the duration of his appointment to the ALRC.

Professor Jill McKeough—Commissioner

Professor Jill McKeough was appointed Dean of the Faculty of Law at the University of Technology, Sydney (UTS) in 2005. She was Head of School, Associate Dean (undergraduate) and Director of Postgraduate Programs in the Law Faculty at UNSW. In 2004 she was elected a member of the UNSW University Council, serving until her appointment at UTS.

Professor McKeough is admitted as a Barrister of the Supreme Court of NSW. She was Chair of the Council of Australian Law Deans (CALD), and is a member of the International Legal Services Advisory Council (ILSAC), a member of the Professional Standards Board of Patent and Trade Mark Attorneys and Board member of the AustLII Foundation.

Professor McKeough’s many publications include Intellectual Property: Commentary and Materials, 4^th edition, Thomson LBC 2006 and Intellectual Property in Australia, 3^rd edition, Lexis Nexis 2004.

Professor McKeough is on leave from UTS for the duration of her appointment at the ALRC.

The Hon Justice Susan Kenny—Part-time Commissioner

Justice Susan Kenny has been a Federal Court judge since October 1998. She has previously been a Commissioner of the Human Rights and Equal Opportunity Commission, as well as President of the Administrative Review Council. She is a member of the Council of the National Judicial College of Australia, the Council of the Australian Institute of Judicial Administration, and the Executive, International Organisation for Judicial Training, Chair of the Advisory Board, Institute of Legal Studies, Australian Catholic University, a member of the International Law Advisory Board, Law School, Monash University, a Foundation Fellow of the Australian Academy of Law and a member of the Advisory Board, Centre for International and Public Law, ANU.

The Hon Justice Berna Collier—Part-time Commissioner

Justice Berna Collier was appointed a Federal Court judge on 8 February 2006. Prior to this she was one of three national Commissioners of the Australian Securities and Investments Commission, a position she held from 5 November 2001 and a director of the Australian Prudential Regulation Authority from November 2001 until June 2003. From July 1997 until February 2006 she was Clayton Utz Professor of Commercial Law at Queensland University of Technology. Justice Collier was awarded the Centenary Medal for service to Australian society through corporate regulation in recognition of her work in this area.

The Hon Susan Ryan AO—Part-time Commissioner

The Hon Susan Ryan was appointed as Australia’s first Age Discrimination Commissioner with the Australian Human Rights Commission on 30 July. Ms Ryan was the Independent Chair of the IAG and NRMA Superannuation Plan, President of the Australian Institute of Superannuation Trustees from 2000 to 2007, a member of the Australian Council of Superannuation Investors from 2001 to 2007, a member of the ASX Corporate Governance Council from 2003 to 2007 and CEO of the Association of Superannuation Funds of Australia from 1993 to 1997.

From 1975 to 1988 she was a Senator for the ACT. She served in the Labor Government as Minister for Education and Youth Affairs, Minister Assisting the Prime Minister on the Status of Women and Special Minister of State.

In 1990, Ms Ryan was appointed an Officer of the Order of Australia for her contribution to Parliament. She published her autobiography, Catching the Waves in 1999.

Remuneration

The Commonwealth Remuneration Tribunal determines the remuneration for all ALRC Commissioners.

Policies

The Chief Executive Instructions and the ALRC’s Policy Manual contain the ALRC’s current policies, guidelines and procedures on a range of administrative matters. ALRC policies are regularly reviewed and revised, as required. All new and revised policies are approved by the President.

New policies developed and implemented during 2011–12 include:

• Chief Executive Instructions

• ALRC Enterprise Agreement 2011–14

• Audit Committee Charter

• Consultative Committee Terms of Reference

• Information Classification Policy

• Health and Wellbeing Allowance Policy

• Fraud Control and Risk Management (updated)

• Managing Suspected Breaches of the APS Code of Conduct Policy

• Business Continuity Plan

• Performance Appraisal System (updated)

• Procurement and Purchasing Policy (updated)

• Travel Policy (updated)

• Conflict of Interest Policy

• Facebook Policy

Policies that concern interaction with members of the public are published on the ALRC website. New staff members are advised of ALRC policies as part of the induction process and all staff have access to the policies via the intranet.

A full list of ALRC policies is included in Appendix B.

Corporate planning

The ALRC’s Corporate Plan 2011–2013 is publicly available on the ALRC website and is reproduced in Appendix A.

Financial management and audit

The audit of the 2011–12 financial statements was performed by the Australian National Audit Office (ANAO).

With the ALRC’s move to an FMA body in July 2011, the President re-constituted an Audit Committee in compliance with s 46 of the Financial Management and Accountability Act 1997 and reg 22C of the Financial Management and Accountability Regulations.

The objective of the ALRC Audit Committee is to provide independent assurance and assistance to the President on the ALRC’s risk, control and compliance framework, and its financial statement responsibilities. The ALRC Audit Committee comprises three members, appointed by the President as follows:

• ALRC Part-time Commissioner

• ALRC Executive Director

• External Member with financial expertise

From March 2012, the members of the Audit Committee were:

• Part-time Commissioner: Justice Berna Collier

• Executive Director: Ms Sabina Wynn

• External Member: Mr Peter Bowen, Chief Financial Officer, Federal Court

The ALRC Finance Manager attends meetings of the Audit Committee as an observer. A representative of the ANAO is also invited to attend meetings of the Audit Committee.

The former Audit Committee met on 29 August 2011 and approved the ALRC’s financial statements for 2010–11, and the ALRC’s 2011–12 budget. The newly constituted Audit Committee met on 22 March 2012.

The ALRC has developed an Audit Charter in line with the requirements of the FMA Act. As outlined in FMA reg 22C (4), the Chief Executive may add to, or vary, the functions of an FMA Audit Committee having regard to the agency’s governance framework and assurance mechanisms and the key risks to the agency, including the risks relating to program delivery and implementation.

The variations in the ALRC Audit Charter are based on the following considerations:

• the ALRC is a single function agency with one principal activity—conducting inquiries into issues of law, as referred to it by the Attorney-General, for the purpose of formulating law reform recommendations;

• the administrative and financial processes and procedures of the ALRC vary little from year to year; and

• the relative small size of the agency and its budget means that the Charter of the Audit Committee should reflect the straightforward nature of ALRC operations.

The ALRC has developed an Audit Forward Plan that sets a meeting schedule and outlines the activities of the Audit Committee over the next financial year.

Fraud control and risk management

The ALRC has a commitment to fraud control and for promoting efficient, effective and ethical use of Commonwealth resources. The ALRC conducted a fraud risk assessment and reviewed and updated its Fraud Control Plan in April 2012. This updated Plan was developed from a risk assessment and is an integral part of the ALRC’s Assurance and Governance Framework. The Plan is a strategic document drawing together all fraud prevention, detection, minimisation and reporting initiatives adopted by the ALRC to control fraud. The Plan is reviewed annually by the ALRC Audit Committee. The ALRC also has a Fraud Policy Statement that sits alongside the Fraud Control Plan.

Fraud against the ALRC is defined as dishonestly obtaining a benefit, or causing a loss, by deception or other means. The President has responsibility for the corporate governance of the ALRC and for ensuring compliance with the Commonwealth Fraud Control Guidelines. The ALRC Audit Committee is responsible for the ongoing monitoring and review of the fraud control framework, including the actions agreed to in the ALRC’s Fraud Control Plan. The Executive Director is the Fraud Control Officerand is responsible for ensuring that the appropriate processes are in place to manage the risk of fraud in the ALRC.

During 2011–12, the ALRC has taken all reasonable measures to minimise the incidence of fraud and has raised awareness of fraud control among employees to foster an environment that encourages employee involvement in the strategies to prevent fraud. The ALRC provides annual training in fraud prevention to all staff and this was conducted in April 2012.

Overall, the ALRC has a low to negligible residual fraud risk profile, with an effective control environment. In accordance with s 8.14 of the Commonwealth Fraud Control Guidelines(the Fraud Control Guidelines), the ALRC collects any information relating to fraudulent matters and reports it to the Attorney-General’s Department and the Australian Federal Police annually. No fraudulent activity was detected in 2011–12.

Enterprise risk management

Enterprise risk management is a vital component of public sector management and is consistent with the obligations under the FMA Act. The ALRC’s Enterprise Risk Management Plan was reviewed in April 2012, as part of the Fraud Control Review. The objective of the Plan is to identify and articulate any organisational risks and to develop a mechanism to track and report on controls in place, and treatments required, to mitigate these risks.

The ALRC has continued to assess and manage its risks through:

• appropriate levels of insurance, including cover for public liability, directors’ liability, and property loss or damage, with nature and levels of cover reviewed annually;

• a positive approach to work health and safety, based on preventative strategies, flexible return to work arrangements and early response to injury;

• provision of training to staff to ensure that they understand their responsibilities and have the skills necessary to fulfil their responsibilities;

• transparent reporting of financial management and operational matters, both internally and externally;

• updated administrative policies aimed at preventing fraud and managing risk; and

• developing a Fraud Control Plan and Business Continuity Plan.

Ethics

The ALRC fosters a culture of integrity, honesty and fairness in the workplace and actively seeks to comply with all relevant laws, regulations, codes and government standards.

Employees of the ALRC are Australian public servants and must follow the APS Code of ConductandAPS Valueswhicharticulate the culture and operating ethos of the ALRC and provide the framework within which employment powers will be exercised by the President. ALRC employees are expected to comply with the APS Code and other ALRC policies, and with any lawful direction given by the President and/or their supervisor.

Any suspected or real breaches of the APS Code of Conduct will be dealt with in accordance with the ALRC‘s Procedures for Determining Breaches of the Code of Conduct, established in accordance with s 15(3) of the Public Service Act 1999. During 2011–12, there were no suspected or actual breaches of the APS Code of Conduct.

Conflict of interest

The ALRC Conflict of Interest Policy has been developed to protect the ALRC’s reputation and integrity; to ensure that employees understand what a conflict of interest is, and how to recognise and avoid a conflict of interest; and to outline the ALRC’s process for disclosing an actual or potential conflict of interest. This Policy applies to Commissioners, employees, contractors and consultants engaged or employed by the ALRC.

Section 39 of the Australian Law Reform Commission Act 1996 (ALRC Act) requires members to disclose any material personal interest in a matter under consideration by the Commission. Section 13 (7) of the Public Service Act 1999, which contains the APS Code of Conduct, requires that an APS employee must disclose and take reasonable steps to avoid any conflict of interest (real or perceived) in connection with APS employment. In addition, s 10 of the Act requires that the Australian Public Service performs its functions in an impartial and professional manner.

ALRC employees are required to disclose a potential or actual conflict of interest in advance. Failing to disclose appropriately may be regarded as misconduct. The Executive Director maintains a Conflict of Interest Register that records any reported conflict of interest within the ALRC, for the purpose of monitoring and managing the conflict.

During 2011–12 there were no conflict of interest disclosures.

Full-time members of the ALRC and the Executive Director make annual declarations of private interests, which are provided to the Attorney-General. Updated declarations of interest have been provided to the Attorney-General for 2011–12.

Indemnity

The ALRC carries directors’ liability insurance for members of the ALRC. Details are as follows:

• Professor Rosalind Croucher—President

• Professor Jill McKeough—Commissioner

Nature of liability

The ALRC insures against damages arising as a consequence of a wrongful act of a director, including an error by omission or commission; a misstatement or misleading statement; or negligent breach of duty.

The ALRC has not indemnified or agreed to indemnify any current or former officer against a liability other than by coverage under the directors’ liability insurance.

Significant developments 2012–13

The ALRC will complete its inquiry into Commonwealth legal barriers to older persons participating in the workforce or other productive work in March 2013 and will expect referral of a new inquiry at that time. The Copyright and the Digital Economy inquiry will be completed in November 2013.

There are no other significant developments forecast for 2012–13.