ALRC accountability and governance requirements are met through its Chief Executive Instructions. These reference the Model Chief Executive Instructions (CEIs) and provide the governance 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 Financial Management and Accountability Act 1997 (Cth) (FMA Act).
The Minister responsible for the ALRC is the Attorney-General of Australia.
The ALRC is a statutory agency under the FMA Act and an employer subject to the Public Services Act 1999 (Cth).
The ALRC is constituted under the Australian Law Reform Commission Act 1996 (Cth) (the ALRC Act). Section 20 of the ALRC Act states that the Attorney-General may refer matters to the ALRC for review. In 2012–13, the ALRC received Terms of Reference for one new inquiry into Serious Invasions of Privacy in the Digital Era and the Attorney-General also released for community consultation draft Terms of Reference for two additional ALRC inquiries: Legal Barriers for People with Disability and a review of the Native Title Act 1993 (Cth).
Members of the Commission
The President is the CEO of the ALRC. During 2012–13 there were two full-time Commissioners (including the President) and four part-time Commissioners. Table 7 lists members of the ALRC and their terms of appointment. On 30 June 2013, there were six members of the ALRC—two full-time members and four part-time members.
Table 7: Members 2012–13
Term of appointment
Professor Rosalind Croucher
BA (Hons), LLB (Syd), PhD (UNSW), AMusA (AMEB), FRSA, FACLM (Hon), FAAL, TEP
5 February 2007–4 February 2010 as Commissioner
14 December 2009–13 December 2014 as President
Professor Jill McKeough
LLB (UNSW), BA (UNSW), LLM (Syd), FAAL
1 May 2012–31 October 2013
The Hon Justice Berna Collier
BA, LLB (Qld), LLM (Melb)
2 October 2007–1 October 2010 and reappointed 28 October 2010–26 October 2013
The Hon Susan Ryan AO
BA, MA, Hon.DLitt (Macquarie), Hon.DUniv (Canb), Hon.DUniv (SA), FAICD
7 March 2012–31 March 2013
The Hon Justice Nye Perram SC
BA, LLB (Hons) (Syd), BCL (Dist) (Oxon)
28 November 2012–27 November 2015
The Hon Justice John Eric Middleton QC
LLB (Hons) (Melb), BCL (Oxon)
28 November 2012–27 November 2015
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 8th 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 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, 4th edition, Thomson LBC 2006 and Intellectual Property in Australia, 3rd edition, Lexis Nexis 2004.
Professor McKeough is on leave from UTS for the duration of her appointment at the ALRC.
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.
The Hon Justice Nye Perram, Part-time Commissioner
Justice Nye Perram was appointed a part-time Commissioner of the ALRC for a term of three years on 28 November 2012. He graduated from the University of Sydney with a Bachelor of Arts and a Bachelor of Laws and from the University of Oxford with a Bachelor of Civil Law. Justice Perram practised as a barrister in New South Wales from 1993 and was appointed senior counsel in 2006. At the time of his appointment he was a member of the Law and Justice Foundation and the New South Wales Bar Council. Justice Perram has specialised in constitutional law, administrative law, commercial law and equity. In 2005, he was a Director of the Public Interest Law Clearing House, an independent, not-for-profit legal referral service. He is currently Deputy President of the Copyright Tribunal.
The Hon Justice John Middleton, Part-time Commissioner
Justice Middleton was appointed a part-time Commissioner of the ALRC for a term of three years on 28 November 2012. He was appointed to the Federal Court of Australia effective from 31 July 2006, appointed a Deputy President of the Australian Competition Tribunal effective from 16 February 2009 and appointed a presidential member of the Administrative Appeals Tribunal effective from 24 November 2010.
Justice Middleton graduated from the University of Melbourne as Bachelor of Laws (First Class Honours) and from the University of Oxford as Bachelor of Civil Law (First Class Honours). He was the Winter Williams Scholar (University of Oxford (1976)). He was admitted to practise as a barrister and solicitor of the Supreme Court of Victoria in 1976. After serving as Associate to Sir Ninian Stephen, then Justice of the High Court of Australia, he was called to the Bar in 1979 where he practised predominantly in Constitutional and Administrative Law, Resources Law and Commercial Law.
Justice Middleton was appointed one of Her Majesty’s Counsel for the State of Victoria in 1991 and subsequently became Chairman of the Victorian Bar Council. He was awarded the Centenary Medal in 2003 for services as a former Chairman, Bar Council, to the community and to education.
The Commonwealth Remuneration Tribunal determines the remuneration for all ALRC Commissioners.
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 or updated during 2012–13 include:
Chief Executive Instructions (updated)
Corporate Plan (updated)
Agency Multicultural Plan and Diversity Commitment
Reconciliation Action Plan (updated)
Managing Suspected Breaches of the APS Code of Conduct Policy (updated)
Records Management Policy (updated)
Protective Security Policy
Internet and Email Policy (updated)
Physical and Electronic Records Storage Policy
Business Continuity and Safety Plan (updated)
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.
The ALRC’s Corporate Plan 2011–13 is published in Appendix A. The recently updated Corporate Plan 2013–15 is published on the ALRC website.
Financial management and audit
The audit of the 2011–12 financial statements was performed by the Australian National Audit Office (ANAO). The ANAO conducted an interim audit of the ALRC’s 2012–13 accounts and provided an interim report on the 18 June 2013.
The ALRC Audit Committee is established in compliance with s 46 of the Financial Management and Accountability Act 1997 (Cth) and reg 22C of the Financial Management and Accountability Regulations (Cth).
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 Audit Committee met on 3 September 2012 and approved the ALRC financial statements for 2011–12, and the ALRC’s 2012–13 budget. The Audit Committee also met on 26 March 2013.
The ALRC has an Audit Forward Plan that sets a meeting schedule and outlines the activities of the Audit Committee over the next financial year.
The ALRC has an Audit Charter in line with the requirements of the FMA Act 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 ALRC Audit Charter is 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 relatively small size of the agency and its budget means that the Charter of the Audit Committee should reflect the straightforward nature of ALRC operations.
Fraud control and risk management
The ALRC has a commitment to fraud control and to promoting efficient, effective and ethical use of Commonwealth resources. The ALRC Fraud Control Plan (FCP) was updated in April 2012 and will be updated again in March 2014. The FCP is a strategic document drawing together all fraud prevention, detection, minimisation and reporting initiatives adopted by the ALRC to control fraud. It was developed from a risk assessment and is an integral part of the ALRC’s Assurance and Governance Framework. The FCP is reviewed annually by the ALRC Audit Committee. The ALRC also has a Fraud Policy Statement that sits alongside the FCP.
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 FCP. 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 2012–13, 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.
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 2012–13.
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 (ERMP) was reviewed in April 2012 and will be updated again in March 2014, alongside the Fraud Control Review. The objective of the ERMP 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 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;
- training staff, ensuring 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
- reviewing the Fraud Control Plan and Business Continuity Plan bi-annually.
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.
ALRC employees are Australian public servants and must follow the APS Values andAPS Code of Conduct, whicharticulate 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 of Conduct and other ALRC policies, and with any lawful direction given by the President 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 2012–13, 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 (Cth), 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 2012–13 there were no conflict of interest disclosures.
Full-time Commissioners of the ALRC and the Executive Director make annual declarations of private interests, which are provided to the Attorney-General each year. Updated declarations of interest were provided to the Attorney-General on 7 August 2012.
The ALRC carries directors’ liability insurance for full time Commissioners of the ALRC. The following members are currently covered:
- 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 2013–14
The ALRC will complete its Inquiry into Copyright and the Digital Economy in November 2013 and its Inquiry into Serious Invasions of Privacy in the Digital Era by June 2014.
The Attorney-General, the Hon Mark Dreyfus QC MP, has indicated that he will be providing the ALRC with Terms of Reference for an Inquiry into the Native Title Act 1993 and an inquiry into Legal Barriers for People with Disability and will appoint two new Commissioners to oversee these Inquiries. This will mean that the ALRC will be working on four significant Inquiries during 2013–14.
Additional resources will be made available to the ALRC for the period 2013–14 to allow this additional work to be carried out.