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 Financial Management and Accountability Act 1997 (FMA Act).

From 1 July 2014, the Public Governance, Performance and Accountability Act 2013 (PGPA Act) will replace the FMA Act. The PGPA Act sets out the requirements for the governance, reporting and accountability of Commonwealth entities and for their use and management of public resources.

Ministerial powers

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.

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. 

Members of the Commission

The President is the CEO of the ALRC. During 2013–14 there were three Commissioners, in addition to the President, appointed to lead specific inquiries, and four part-time Commissioners. Table 7 lists members of the ALRC during 2013–14 and their current terms of appointment. On 30 June 2014, there were six members of the ALRC—two full-time members and four part-time members.

Table 7: Members 2013–14

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), 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 Barbara McDonald, Commissioner

Professor McDonald is a Professor of Law at the University of Sydney, where she has been a member of the full-time faculty since 1990. Prior to becoming an academic she practised in commercial litigation at Freehill, Hollingdale and Page, now Herbert Smith Freehills, with whom she has been a consultant since 2000. She has been a Visiting Professor at the University of Texas, Austin and is currently a Visiting Professor in law at the New College of the Humanities, London.

Professor McDonald has comprehensive academic experience in tort law, equity, remedies and media law, and has published widely in these areas, including many articles on the impact of tort reforms and the developing law of privacy.

Professor McDonald is a member of the editorial board of the Torts Law Journal and co‑author of Celebrity and the Law, published in 2010, with primary authorship of the chapters on defamation and privacy, and a contributing author to Fleming’s Law of Torts.

Professor Lee Godden, Commissioner

Professor Godden joined the ALRC from the Melbourne Law School, where she was Director of the Centre for Resources, Energy and Environmental Law.

She has a distinguished University teaching and research career spanning more than twenty years. She completed her doctoral thesis on the intersections between property law, native title and environmental law, before moving to the Melbourne Law School in 2002.

In 2007–8 she was Director, Office for Environmental Programs, The University of Melbourne. She is a member of Academic Advisory Group, Section on Energy, Environment, Resources and Infrastructure Law, International Bar Association. She is admitted to practice as an Australian Legal Practitioner in Victoria.

Professor Godden’s many publications include: Comparative Perspectives on Communal Lands and Individual Ownership, 2010 (with M. Tehan); Environmental Law: Scientific, Policy and Regulatory Dimensions, 2010 (with J Peel); and Property and the Law in Energy and Natural Resources, 2010 (with A. McHarg, B. Barton and A. Bradbrook).

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 Justice Nye Perram SC, 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 QC, 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 Honors) and from the University of Oxford as Bachelor of Civil Law (First Class Honors). 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 of the Bar Council, to the community and to education.

Graeme Innes AM, Part-time Commissioner

Graeme Innes has been Australia’s Disability Discrimination Commissioner since December 2005. During that time he also served as Australia’s Human Rights Commissioner for three and a half years and as Race Discrimination Commissioner for two years. Graeme is a Lawyer, Mediator and Company Director. As a Commissioner with the Australian Human Rights Commission, Graeme has led or contributed to the success of a number of initiatives including the Same Sex: Same Entitlements Inquiry, which resulted in removal of discrimination across federal law, and the drafting of the United Nations Convention on the Rights of Persons with Disabilities, and its ratification by Australia. Graeme was also crucial to the development of the National Disability Strategy and the Disability (Access to Premises – Buildings) Standards 2010, as well as the establishment of Livable Housing Australia.

Graeme has been a Member of the NSW Administrative Decisions Tribunal; the NSW Consumer, Trader and Tenancy Tribunal; and the Social Security Appeals Tribunal. Graeme was Chair of the Disability Advisory Council of Australia, and the first Chair of Australia’s national blindness agency, Vision Australia.

In 1995 Graeme was made a Member of the Order of Australia (AM). 

Remuneration

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

Policies

The Chief Executive Instructions and the ALRC 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 2013–14 include:

• Public Interest Disclosure Policy
• Audit Committee Charter and Forward Plan (updated)
• Fraud Control Plan (updated)
• Enterprise Risk Management Plan (updated)
• Operational Risk Management Framework (updated)
• Business Continuity Plan (updated)
• Conflict of Interest Policy (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 ALRC policies via the intranet.

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

Corporate planning

The ALRC Corporate Plan 2013–15 is publicly available on the ALRC website and is reproduced in Appendix A. 

Financial management and audit

The audit of the 2012–13 financial statements was performed by the Australian National Audit Office (ANAO). The ANAO has conducted an interim audit of the ALRC 2013–14 accounts and provided an interim report on 26 June 2014. No material issues were identified at this time.

The ALRC Audit Committee is established 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 2013, the members of the Audit Committee were:

• Part-time Commissioner: Justice Nye Perram
• 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 ALRC has an Audit Charter in line with the requirements of the FMA Act and 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.

The ALRC’s Audit Forward Plan sets a meeting schedule and outlines the activities of the Audit Committee over the next financial year. The Audit Committee met on 22 August 2013, 3 April 2014 and 2 June 2014.

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 Fraud Control Plan (FCP) was updated in May 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 Assurance and Governance Framework. The FCP is reviewed annually by the 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 FCP. The Executive Director is the Fraud Control Officer and is responsible for ensuring that the appropriate processes are in place to manage the risk of fraud.

During 2013–14, 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 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 2013–14. 

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 Enterprise Risk Management Plan (ERMP) was reviewed and updated in June 2014. 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 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, through 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 Values and APS Code of Conduct, which articulate 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 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 2013–14, there were no suspected or actual breaches of the APS Code of Conduct.

The ALRC has developed a Public Interest Disclosure Policy in accordance with the Public Interest Disclosure Act 2013. This Policy is available on the ALRC website and intranet.

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 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 2013–14 there were no conflict of interest disclosures.

Full-time Commissioners (members) of the ALRC and the Executive Director make annual declarations of private interests, which are provided to the Attorney-General in August of each year. 

Indemnity

The ALRC carries directors’ liability insurance for full time Commissioners of the ALRC. The following members are currently covered:

• Professor Rosalind Croucher—President
• Professor Barbara McDonald—Commissioner
• Professor Lee Godden—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 2014–15

The ALRC will complete its Inquiry into Capacity, Equality and Disability in Commonwealth Laws and its Review into the Native Title Act 1993 during 2014–15. The ALRC will also work on the Review of Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges (the Freedoms Inquiry). The ALRC expects that its Report, Serious Invasions of Privacy in the Digital Era (ALRC Report 123, 2014), will be tabled in Parliament and made publicly available.

During 2014–15, the ALRC will also negotiate a new Enterprise Agreement. On 1 July 2014, the ALRC will become a non-corporate Commonwealth entity under the Public Governance, Performance and Accountability Act 2013 (PGPA Act). This will require new Accountable Authority Instructions to be developed to replace the current Chief Executive Instructions and the updating of organisational policies to align them with the requirements of the PGPA Act.

In 2015, the ALRC will celebrate 40 years of law reform.