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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-09-28 Daily Xml
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Bills

Statutes Amendment (Ombudsman and Auditor-General) (Terms of Office) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 14 September 2023.)

The Hon. J.M.A. LENSINK (11:02): I rise to make some remarks in relation to this bill, which we are largely supportive of but have some amendments to, and I note that other honourable members have as well. This is not a complex bill, but I guess some of the time frames—there are different views.

I would, at the outset, like to thank both Mr Wayne Lines and Mr Andrew Richardson for their distinguished service in the roles of Ombudsman and Auditor-General respectively. They have served with distinction in carrying out their duties. We also thank the people who work with them in such incredibly important roles. We know that the roles of Ombudsman and Auditor-General are very important to this state, as they are indeed in all jurisdictions, in ensuring there is a level of transparency and independence and oversight of government accounts and government processes.

In particular, the Auditor-General, in the lead-up to the end of the 2018 parliamentary term, had done some reports in an area which was and continues to be of great interest to me—that is, the South Australian Housing Trust or South Australian Housing Authority in terms of maintenance and the oversight that was not taking place. It was that office which had uncovered the fact that there had been no asset inspection report done of Housing Trust properties since 2003 and as a result their desktop survey showed that there was some $700 million worth of public housing maintenance backlog that needed to be addressed.

We have also seen tabled recently that the Auditor-General has sought to have access to cabinet documents, which this government—now that Labor has been re-elected—continues to deny. When we were in government, as a member of the Marshall cabinet, we certainly considered those requests and determined that they were in the best interests of the state to provide those, so that the financial accounting within those submissions was able to be properly scrutinised.

There are clearly the annual reports that are tabled by both of those statutory officers, as well as from time to time a number of other examinations. Most recently, we have had management of SA Health's personal protective equipment (PPE) and cloud computing in SA government. The Ombudsman clearly has a very important role in FOI determinations and a range of other areas.

I think in terms of vulnerable persons there are directions there that have been very useful for governments to understand how they can best approach those issues. They do have very important roles to review financial matters and agencies, and with particular projects, and also in looking at the process of government to determine whether they are appropriate and what recommendations arise out of those.

In relation to this particular bill, it relates to their terms of appointment. I understand it was the Ombudsman who sought to make some recommendations to government, and now the Auditor-General has also been captured by this review. What we are seeking to amend through amendments that have been tabled, which I appreciate members considering, is that rather than the language that is used in the government's bill at clause 2(1), which talks about a term 'not exceeding 7 years' (which in other words is up to seven) and then enables a subsequent total of 10, the Liberal Party is of the view that we should explicitly state that it is a term of seven years initially and then can be reappointed for up to a further three years to make that a total of 10.

We are also attracted to the amendments that have been tabled by other members. I think there are identical amendments from both the Hon. Connie Bonaros and the Hon. Robert Simms in relation to the Auditor-General that that be for a simple 10 years and that it be a single appointment rather than one which is able to be reappointed.

I note that the Auditor-General wrote to all members via the Clerks to place on the record his particular concerns about officers who may be reaching the end of their first term and perhaps not scrutinising things as closely as they would in that period leading up to hoping to be reappointed. I am not inclined to agree that that should be an issue. I think these appointments are required to be frank and fearless and therefore we are not encouraged to agree with that particular view.

In saying that, I do thank them for their service. I look forward to the committee stage of the debate and just make those brief explanations in support of the Liberal Party's amendments.

The Hon. S.L. GAME (11:09): I rise briefly in support of the Statutes Amendment (Ombudsman and Auditor-General) (Terms of Office) Bill 2023. One of the cornerstones of a progressive society is the eradication of age discrimination and this bill takes a commendable step in that direction. The arbitrary age cut-off at 65 is an outdated concept that does not reflect the abilities and contributions of our older professionals.

As we have seen globally, many individuals remain at their professional peak well beyond this age. I am proud to remind this chamber that I successfully lobbied this government to remove the age limit on trainees. By eliminating this restriction, we have opened the door for individuals of all ages to pursue new opportunities.

By aligning South Australia with other jurisdictions, we are not only making a statement against age discrimination but also ensuring that we draw from the broadest talent pool possible. Moreover, fixed-term appointments as proposed might address any potential complacency issues. By setting a clear term, appointees are encouraged to be proactive and impactful within that time frame. It is paramount that we have contemporary, fair and effective processes and this bill is a step in the right direction.

The Hon. R.A. SIMMS (11:10): I rise to speak very briefly on the Statutes Amendment (Ombudsman and Auditor-General) (Terms of Office) Bill and to indicate that the Greens will be supporting the bill, albeit with amendments. The bill changes the term of the Ombudsman and Auditor-General to be fixed; that is, for seven years, with an option to extend to a maximum of 10 years. Currently, the legislation calls for those positions to expire when the office holder turns 65 years of age.

This bill removes the age discrimination precedent setting a term expiry at a certain age and will allow for applicants over the age of 65. It will also ensure that any younger person holding the role is not there for decades. All members of this place received a letter from the Auditor-General asking us to consider two recommendations; that is, to create a fixed term of 10 years and to not allow for reappointment after that term is complete.

I note that both the Greens and SA-Best have filed identical amendments and I indicate to the chamber that in the event that the amendment from the Hon. Connie Bonaros is successful the Greens will not proceed with our amendment—it would not be required. We will, of course, be supporting the amendment from the Hon. Connie Bonaros, which I anticipate will be dealt with first.

We note the amendments that have been filed by the opposition. Those amendments would allow for the reappointment of both the Auditor-General and the Ombudsman after their initial term. The Greens consider that to be against the spirit of the bill and therefore we are not in support of those amendments. I will make some general remarks about the Auditor-General, and I share the comments of the Hon. Michelle Lensink.

I want to put on the public record the appreciation of the Greens for the important work that these public officers do—that is, the Ombudsman and the Auditor-General. They are vital public roles that they perform. They offer fearless, independent advice. I share the concerns of the Hon. Michelle Lensink in relation to the Auditor-General's call to access cabinet documents not being actioned by the Malinauskas government.

This is a basic transparency measure. It is one that this house has supported when we supported the bill from the Hon. Heidi Girolamo and yet it has stalled in the lower house. That is very disappointing, because sunlight is the best disinfectant in our democracy and, really, the Auditor-General should have access to this vital information. I am not sure why the Malinauskas government is holding that up, but I do urge them to show leadership in this area of transparency, to listen to the calls of the Auditor-General and others and take action.

The Hon. C. BONAROS (11:13): I rise on behalf of SA-Best to speak on the Statutes Amendment (Ombudsman and Auditor-General) (Terms of Office) Bill 2023. At the outset, I echo the sentiments expressed by the Hon. Robert Simms and the Hon. Michelle Lensink regarding the role of both the Auditor-General and the Ombudsman, the fearless advice that those bodies provide, and also express our disappointment regarding the stalling of that previous bill dealing with cabinet documents.

The bill before us now has come on the eve of the retirement of the Ombudsman, Mr Wayne Lines, and the Auditor-General, Mr Andrew Richardson. We understand that the amendments to the Ombudsman Act that the government has proposed are at the suggestion or advice of the current Ombudsman. As others have said, the bill seeks to remove the compulsory retirement age of 65 and set a term limit of seven years, with a maximum of 10 years in total, replicating the terms of the heads of other integrity agencies, including the ICAC, the Judicial Conduct Commissioner and the Office for Public Integrity.

It also seeks to set those same terms for the Auditor-General. My understanding from the briefing was that, because this came at the request of the Ombudsman, the government's position was: we are going to have two vacancies so we will deal with them together. We wholeheartedly support the removal of the age discriminatory 65-year age for both positions, especially given that many Australians now are working well beyond 65—and, I would say, including my colleague. Did I just give away your age, Frank?

There is an expectation now that 65 is a discriminatory age to choose. I think it flows from that that there are probably other age limits in other pieces of legislation that we could also review at the same time, but that is a discussion for another day.

We are less comfortable with the remaining amendments, having regard to the unique role of the Auditor. The Auditor-General, as we have said, is tasked with reviewing budgets and putting under the microscope what the government is telling the public, particularly in the area of budget expenditure. That is directly what that previous cabinet documents bill feeds into.

Without the critical eye of the Auditor-General we would be left with no alternative but to trust the executive to order its own expenditure and accounts. It continues to go against the grain of independence that the reviewer's position is subject to appointment and reappointment by the very same executive, which is something I will comment on more in a moment.

The outgoing Auditor-General, as has been referenced, wrote to all members of parliament to share his concerns about the proposed amendments to the Public Finance and Audit Act. I think it is appropriate that we table that letter, and I seek to do so.

Leave granted.

The Hon. C. BONAROS: In that correspondence, the Auditor outlined why he considered a term of up to seven years as being too short and as being too closely aligned to election cycles. He also took issue with the possibility of reappointment, something which only remains in Victoria and the Northern Territory. Those jurisdictions can be distinguished from South Australia.

We are the only Australian jurisdiction where the appointment rests solely in the hands of the executive. South Australia's weak independent safeguards have actually been highlighted in successive reviews by the Australasian Council of Auditors General, including in the Independence of Auditors General.

In scoring and ranking jurisdictions, the reviews have had regard to who makes the appointment, the extent of the involvement of parliament, how the term of appointment is determined, whether reappointment is possible, who makes the reappointment, and who determines remuneration. We have not ranked at all well in those reviews.

In the latest 2020 update, South Australia continued its ranking as one of the weakest jurisdictions in terms of independence, mostly due to the executive having direct control of the appointment, the term length and the remuneration process. In relation to the remuneration determination, the Australasian Council of Auditors General highlighted:

Remuneration and the determination of other terms and conditions of employment is considered among the statutory safeguards because it is a key determinant of status and rank, and has a major impact on the calibre of persons who might be attracted to the role. Reducing remuneration could be used to effectively downgrade the status of the Auditor-General. The capacity of the Executive to influence remuneration is therefore of importance, as is the transparency of the process by which remuneration is determined.

The review goes on to identify the commonwealth, New South Wales, Western Australia and the ACT as jurisdictions where remuneration is determined by an independent tribunal. On that note, I foreshadow that I will be moving an amendment along the lines of what those review outcomes show and also what the Auditor-General has recommended, that the remuneration be armed with the task of setting the pay of the Auditor-General as opposed to the executive. The review noted:

Eligibility for reappointment has been recognised as an undesirable practice by the [International Organization of Supreme Audit Institutions] because it might compromise independence. Where an incumbent is eligible for reappointment, as the time for reappointment approaches, the incumbent could become reluctant to criticise, or seek prominence by being overly critical or controversial. An option for reappointment could also enable the Executive to exert pressure on an incumbent. This is more likely if the Executive makes the appointment, and less [likely] where the appointment is made through a more public Parliamentary appointment process.

As I said, we have filed an amendment to remove the possibility of reappointment, as has the Hon. Robert Simms. I think it is fair to say that the amendments that were filed by the opposition were probably done predating the advice that was received from the Auditor. I am hoping there is a consensus that, given we have that advice, at this stage we are open to supporting the advice of the Auditor-General, at least between the houses and limited to the Auditor-General in scope.

Of course, had we had the benefit of more time and perhaps greater scope in the bill, we may have sought to implement some safeguards in the appointment process, such as a requirement for the executive to consult with the parliamentary committee, appointment directly by parliament or a parliamentary committee, or perhaps the capacity for parliament or a committee to veto or recommend an appointment.

I do intend to test the appetite of the Attorney on reviewing the appointment and remuneration processes in a moment, particularly in light of the Auditor-General's Report of 2023, 'Modernising SA public sector and strengthening audit independence', which was tabled earlier this week. I also, as I said, intend to test the appetite of the government in terms of ensuring there is a review of this piece of legislation, in line with what the Auditor himself has said, given that it has been some time since this legislation has been the subject of review, given that our ranking is of such low standing and given all the issues that the Auditor-General has highlighted in those reviews.

I will just say, on that point of review, I understand the government took this opportunity to basically kill two birds with one stone, and we have advice in relation to the Ombudsman but now we also have advice in relation to the Auditor. In terms of consistency, I think it is worth noting that there are a number of appointments that are made throughout government and I think it is a little bit unfair to say there is consistency when we have other appointments that do not fit within that same bracket that the Attorney will refer to.

My feedback to the Attorney has certainly been that if you want consistency across the board, then go and look at all those appointments and review all of them and make them consistent. In this instance, I think there is justification for what the Auditor has asked for because I think their role is unique compared even, for instance, to the Ombudsman, in terms of the work they undertake, and so I am strongly supportive of what the Auditor has said.

In relation to the report that was tabled this week—and I will do this now rather than when we get to the amendments—the report recommends that the Public Finance and Audit Act be reviewed to clearly establish all the powers and features of contemporary public sector audit and strengthen the Auditor-General's independence. The act has provided a workable basis for most of the Auditor-General's responsibilities for many years, but, unlike other audit acts around Australia, it has had very few changes since it was passed in 1987. In reviewing it, the matters raised in this report should be considered.

The matters raised in that report are critical and I do not think they should be ignored. There is a review of the PFAA which states that it is a significant task and will ultimately be necessary to ensure that South Australia's public audit legislation clearly provides for all of the powers and functions of contemporary practice. This report, which I am sure honourable members have now had the opportunity to turn their minds to, provides some of the public audit principles that should be referenced in any such review. It is the Auditor's view that it should also look at establishing a dedicated audit act in line with what other jurisdictions are doing.

As I said, the Auditor has also made the point that under current legislation no parliamentary committee has an express oversight. The Auditor has made reference to the fact that parliament does not play an active role. They have made reference to the fact that auditing the whole-of-government financial statements should be a statutory requirement, that agencies that are being audited need the provisions around that auditing to be strengthened to ensure independence.

There are a number of other recommendations in relation to passenger transport, in relation to the Independent Auditor's Report, in relation to the audit of all accounts, in relation to the Adelaide Oval redevelopment, in relation to the review mechanisms of the Auditor's performance, and other powers that would modernise that act.

There is nothing in there that we should be ignoring. We get these reports for a reason, and all of us should be concerned about what the Auditor is telling us in these reports, and we should be looking at those. I urge the government to support this review provision because it is unacceptable that South Australia remains the most vulnerable jurisdiction, according to the report that I referred to earlier, to executive influence. On that note, I indicate that we will be supporting the bill with amendments and will speak to the amendments as I move them.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:26): I thank the Hon. Michelle Lensink, the Hon. Sarah Game, the Hon. Robert Simms and the Hon. Connie Bonaros for their contributions. There are a number of amendments on file that we will deal with as we get to them. I might just reiterate that the reason we have this bill before us, as the Hon. Connie Bonaros set out in her second reading contribution, is as a result of correspondence from the retiring current Ombudsman, who recommended the term and the length of term that is suggested in this bill of up to seven years.

We thought that was sensible and we took the opportunity to look at other similar integrity agency officers, such as the Auditor-General. We thought it was a reasonable thing for consistency for integrity agencies, and the ICAC, the Office of Public Integrity and the Judicial Conduct Commissioner are all in line with what the Ombudsman had suggested in an appointment of up to seven years.

We respect the Auditor-General's views about the appointment. It is our view that it is a reasonable thing that these similar integrity agencies have a similar term, which is why we have suggested up to seven years for the Auditor-General. We acknowledge that the Auditor-General holds a different view, which speaks to the fierce independence in which the Auditor-General carries out his role, and we have some amendments filed. I will say from the outset that it is the government's preference that the bill, in the form that we put forward, is passed, but we recognise that the Legislative Council will have different views from the government from time to time, and certainly will on this one.

It will be our preference that no amendments are passed. We will find out when the amendments are put, but I suspect it will be the will of the chamber that the bill is amended. I suspect the amendments to do with the review clause and the remuneration that the Hon. Connie Bonaros has put forward will find favour with this chamber. I indicate that, once people indicate their views on it, we do not intend to divide but we will understand the will of the chamber.

The other sets of amendments that have been filed are in terms of the length of time of appointment. The opposition has amendments that change it from 'up to seven years' to 'a fixed term of seven years', and the Hon. Connie Bonaros and the Hon. Robert Simms have amendments that give effect very strictly to the recommendation that the Auditor-General has made.

It is our view that the Liberal amendments are more in line with what other integrity agencies have—the ICAC commissioner, the Office for Public Integrity and the Judicial Conduct Commissioner. If it was looking at the two competing amendments and the length of time, we would prefer the bill as we put it, but I think the amendments from the opposition are closer to other integrity agencies with the seven years than the amendments of the Hon. Connie Bonaros and Hon. Robert Simms, but we will see what plays out in the chamber in relation to those amendments.

Bill read a second time.

The Hon. C. BONAROS (11:30): I move contingent notice of motion No. 3 standing in my name:

That it be an instruction to the committee of the whole on the bill that it have power to consider a new clause to provide for a review of the Public Finance and Audit Act 1987.

Motion carried.

Committee Stage

In committee.

Clause 1.

The Hon. J.M.A. LENSINK: It was remiss of me in my second reading speech not to mention the key principle in this, which other members spoke to, namely, that the appointment should be for a fixed term and not merely expire once the person reaches the age of 65. Of course that is something we all agree with. Those other ways of doing things are certainly anachronistic, and we agree with all the sentiments about 65 being ageist.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–3]—

Page 2, line 5—Delete '(Terms of Office)'

The amendments refer to the review provision, which we will consider shortly. Because we are inserting the review provision, we have to change the short title of the bill, therefore amendment No. 1 is necessary as a result of that. I will speak to the substantive amendment when we get to it, which is the review, but in effect, because we are inserting this, we need to change the short title of the bill. That is the purpose of this one.

The CHAIR: The Hon. Ms Bonaros, I have just been informed that really you should speak to the review now.

The Hon. C. BONAROS: I can speak to the review now. I will not move it yet, but I will speak to it now. I have referred in my second reading to the need for a review in line with what the Auditor-General has both written to us and also identified in the most recent report of 2023, which was provided to all of us in this place a couple of days ago, and also those other reports that, again, I have referred to during my second reading speech. There is something that I want to quote from the Auditor-General, which I think is important as a matter of record, from this most recent report:

South Australia ranks ninth of the 10 jurisdictions in the survey of independence

In each of the…surveys, South Australia has ranked ninth of the 10 jurisdictions covered. In the 2020 survey, six jurisdictions scored 327 or more points. At 262 points (up from 240…), South Australia was 80 points lower than top ranked ACT.

The survey acknowledged that, compared to the previous survey in 2013, [there had been] legislative amendments [which] had made a significant increase in independence.

However, it is important to note two principles:

[Firstly] the existence of an appropriate and effective constitutional/statutory/legal framework and of de facto application provisions of this framework—in 2020 South Australia remained the most vulnerable to Executive Government influence.

[Secondly] Financial and managerial/administrative autonomy and the availability of appropriate human, material, and monetary resources—South Australia was one of the jurisdictions where the legislation is silent regarding the budget for the audit office, leaving it under the direct control of the Executive Government.

They are two points that do need to be the subject of a review, together with everything else that the Auditor has asked for. I will say this: it is all well and good, with respect to the Attorney and the government, to say to us, 'This is what we think we need to do, and we do not necessarily think that there needs to be a review,' but I think I probably speak for some members when I say that, when it comes to the Auditor-General, we will be guided by the Auditor-General, not the government, in terms of the recommendations for independence and appropriate scrutiny.

I urge members to take into account what the Auditor has said and where South Australia is ranking, and also in relation to—we will get to the remuneration shortly—the budgets. It might not be this government's intention, but we cannot foresee what every future government will do. If we are the worst jurisdiction in terms of executive influence, there is absolutely nothing to prevent a future government from implementing a salary, for instance, that is not particularly attractive for someone to fill this role.

There is nothing preventing a future government from starving the Auditor's office of resources for an appropriate budget to be able to undertake the roles that they are prescribed to undertake. They are really the key reasons I think the Auditor has laid this out for us, and I just do not think they should be ignored. I think the government's position at a minimum should be to follow the advice of the Auditor-General.

The Hon. J.M.A. LENSINK: The Liberal opposition is supporting this set of amendments that the Hon. Ms Bonaros has spoken to very eloquently, I believe, so we will be supporting this amendment and the consequential ones.

The Hon. R.A. SIMMS: The Greens will also be supporting the amendment.

The Hon. K.J. MAHER: The government will not be supporting this amendment. We understand the motivation behind the amendment. This is a very simple, confined bill in terms of length of appointment and removing the age barrier, whereas this amendment, as we understand it, proposes a review of the entire Public Finance and Audit Act and how it works. But recognising that I think every other member of this chamber is supporting the amendment, I indicate that we do not intend to divide on this first one and the subsequent amendments in relation to this review provision.

Amendment carried; clause as amended passed.

Clause 2.

The Hon. J.M.A. LENSINK: I move:

Amendment No 1 [Lensink–1]—

Page 2, line 8 [clause 2(1)]—Before 'expiring' insert 'a term'

Amendment No 2 [Lensink–1]—

Page 2, line 10 [clause 2(1)]—Delete 'not exceeding' and substitute 'an initial term of'

I spoke to these amendments in my second reading contribution but just for the sake of the committee debate: we have sought that it be an appointment fitting the seriousness of the role, so in effect these will affect both the appointment of the Ombudsman and the Auditor-General in identical ways. The effect of these will be that there will be a first appointment for seven years rather than what the government's clause says, which is open, and then an ability to have a subsequent reappointment, or however we should put it, for an additional three years, which we believe is consistent with other jurisdictions.

As the Hon. Ms Bonaros stated during the course of this debate, we did draft and file these amendments prior to the Auditor-General writing to all of us, but we continue to believe that these are the best way forward.

The Hon. K.J. MAHER: As I indicated in my second reading summing-up, it is the government's preference that the bill goes through as we introduced it into this place. We think that brings it much more into line with the appointments for other integrity agencies, including the ICAC, the OPI and the Judicial Conduct Commissioner. However, we do recognise there is a will of this chamber to make a change.

As I indicated in the second reading summary, our preference is for the change to be more in line with the seven years, even though it is not the 'up to' but a fixed term of seven years that the opposition is moving rather than the 10 years for the Auditor-General proposed by the Hon. Connie Bonaros. As I have said, we prefer no change but we prefer this change, so I indicate we will be supporting the opposition's amendments.

The Hon. C. BONAROS: I can speak to this amendment now before I speak to my amendment. I will just make the point that the reason we are moving the second set of amendments is precisely that they are based on the Auditor-General's advice to members of this parliament, acknowledging again that the Liberal amendments were filed prior to receipt of that advice.

If we are going to follow the Auditor-General's instructions when it comes to cabinet documents, when it comes to reviews, when it comes to all those other issues they have identified as things we ought to be considering to ensure there is no possibility of undue influence by the executive, and because we are the most vulnerable jurisdiction, then it follows, for me at least, that we ought to be following the advice of the Auditor-General in relation to the term of appointment because it has been carefully crafted to avoid all those other things that we have said we are concerned about.

The Hon. R.A. SIMMS: I concur with the comment of the Hon. Connie Bonaros.

Amendments carried; clause as amended passed.

Clause 3.

The CHAIR: At clause 3 there are amendments in the name of the Hon. Mr Simms, the Hon. Ms Bonaros and the Hon. Ms Lensink. We will deal with the Hon. Ms Lensink's amendment first.

The Hon. J.M.A. LENSINK: I move:

Amendment No 3 [Lensink–1]—

Page 2, line 21 [clause 3(1)]—Delete 'a term not exceeding' and substitute 'an initial term of'

I have already spoken to this amendment. I think members understand the principles.

The CHAIR: These amendments are overlapping, so now we will go to the Hon. Ms Bonaros, and then we will work out which sequence I put them in.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 2, line 21 [clause 3(1)]—Delete 'not exceeding 7 years' and substitute 'of 10 years'

This amendment seeks to change '7 years' to '10 years' in line with the Auditor-General's Report. I will remind particularly the opposition on this point—I do not think I need to remind my friends on the crossbench. We have just talked about the dangers the Auditor-General has spoken of in terms of reappointments. I acknowledge that, while you can have an initial term of seven years and a reappointment for three, the Auditor himself has said he does not think that is a good outcome. There should be one appointment, 10 years maximum, and a salary set by the Remuneration Tribunal to minimise as much as possible any influence of the executive on the Auditor-General.

It is firmly our position that we should be following that advice, which is fearless and free from any political interference. I am not suggesting political interference, but the government has a preferred position; the Auditor has told us what their preferred position is for very good reason.

I do not think it is fair to say that there is consistency. I understand there is consistency among positions here, but when we were referred to the interstate jurisdictions I noted that there are subtle differences between all those jurisdictions and whether they do indeed allow reappointment or not. Those jurisdictions that do allow reappointment have other safeguards in place which we do not have in place. That is a really critical point. Without the safeguards, reappointment, the Auditor-General is telling us, just is not appropriate.

The Hon. R.A. SIMMS: I want to indicate that the Greens support the amendment. Obviously, it is identical to the one I had intended to move—

The CHAIR: And you will now not be?

The Hon. R.A. SIMMS: —which I will now not be proceeding with. The Hon. Connie Bonaros has outlined the reasons for the amendment. The Greens certainly share the views that have been articulated by the Hon. Connie Bonaros and the rationale for the amendment.

The Hon. K.J. MAHER: I reiterate very briefly the point that I have made before. Although I acknowledge what the Hon. Connie Bonaros has said that there are differences between different states around Australia in terms of length of time for appointment of Auditor-Generals, it is our view that it is preferable and there is merit in internal consistency in the integrity agencies. These competing amendments have different time frames. We prefer the opposition's time frame in preference to the time frames that are being suggested for the Auditor-General by the Hon. Connie Bonaros.

The CHAIR: What I am going to do is put the Hon. Ms Lensink's amendment first. If that should be successful, it in effect knocks out your amendment, the Hon. Ms Bonaros.

Members interjecting:

The CHAIR: Thanks for the commentary; that's enough.

The Hon. J.M.A. Lensink's amendment carried; the Hon. C. Bonaros's amendment negatived; clause as amended passed.

Clause 4.

The Hon. C. BONAROS: I move:

Amendment No 3 [Bonaros–1]—

Page 3, line 8 [clause 4, inserted paragraph (c)]—Delete 'and is not reappointed'

Perhaps we can get some advice from those who know better than me, but if there is any suggestion under the previous amendments—and I have to say I am utterly disappointed where we have landed—that there can be a reappointment, then my position would be to ensure that we cannot have a reappointment. I am sure that I am wrong, based on the advice that is going to come back, but I just want to make sure first.

It is my understanding that in order to deal with my next amendment we will need to recommit clause 3, but in passing clause 3 we have also overlooked the amendment that I have in relation to the Remuneration Tribunal. In any event, the advice is that we have to recommit clause 3. That will achieve two ends: firstly, it will prevent a further reappointment for three years, so there will be an initial term of seven years with no reappointment for three; and, secondly, it will enable us to deal with the Remuneration Tribunal setting the package of the Auditor-General as opposed to the executive. I am seeking on two fronts to recommit clause 3.

The CHAIR: So you have moved, the Hon. Ms Bonaros, your amendment at clause 4 and we are going to deal with that now. The recommittal will be at the end of this process. When I report progress, we will go back to the amendment that you have at clause 3. You have moved your amendment No. 3 [Bonaros-1] at clause 4.

The Hon. C. BONAROS: I will not speak to this amendment again. As I said previously, it simply seeks to strike out the words 'and is not reappointed'. Therefore, if we stick with what we have at the moment, up until now we have seven years. This will prevent a further appointment for three years and will limit that at seven years. I think that is more in line with what the Auditor has said than where we were previously.

I also acknowledge, perhaps for the Attorney's sake, given we have ourselves into this little kerfuffle, that this might be an issue that we consider between the houses to ensure that we land on an appropriate term in line with that advice. I will certainly be seeking to move this amendment on the basis that there is no reappointment from the initial term.

The Hon. K.J. MAHER: I thank the honourable member for her amendment. I indicate that the government will be opposing this amendment. As I have said, our preference is the bill that we introduced to parliament, which brings the Auditor-General and the Ombudsman much more in line with other heads of integrity agencies like ICAC, the OPI and the Judicial Conduct Commissioner.

I do wonder if the effect of having passed the Liberals' amendments for a term of seven years—in passing this and saying there is no possibility of reappointment—is actually going further away from what the Auditor-General recommended in his correspondence—

The CHAIR: Which it is.

The Hon. K.J. MAHER: —which was a 10-year term, because the possibility of reappointment could make it a 10-year term, whereas the effect of this amendment makes it just a seven-year term, which I think possibly takes it further away. Passing this, I suspect, will take it further away from what the Auditor-General has recommended, so we will be opposing it. It would not be on the basis of possibly taking it further away than what the Auditor-General recommended but on the basis of having it more in line with the terms of appointment for the heads of other integrity agencies.

The Hon. J.M.A. LENSINK: The effect of this will be to limit it to just seven years. I wonder whether the Attorney might be open to negotiation between the houses. I think—and often this happens when we have multiple competing amendments—if we were to choose the third option then, from our point of view, this would be it. The first option is ours, and the second option would be for the straight 10 years, which was the original amendment by the Hon. Ms Bonaros. If the Attorney is happy to commit to negotiation between the houses on that basis, we will not support this amendment because this is probably the worst of the three options.

The Hon. K.J. MAHER: In response, I can indicate that we would be happy to consider it. I do not want that to be taken as 'we will make changes', but we absolutely would be happy to consider it between the houses.

The Hon. C. BONAROS: I am going to make one point for the benefit of all members. I think this is important, and it is the only point I will make. This is the problem with wrapping up the Auditor-General's changes with the Ombudsman's changes prior to the advice being received from the Auditor-General. I acknowledge that, on both fronts, we might have got it wrong now, and so we should be looking at this outside because we might now be going against the advice of the Auditor. I acknowledge that. It might be the government's preferred position, but we have before us the Auditor-General's preferred position, which is what we have been trying to get through this place.

So I suggest that would be an appropriate course of action to ensure we are not moving further away from the Auditor-General's advice. The preferred position would still be to stick with the Auditor-General's advice, as given to all of us.

The Hon. R.A. SIMMS: I worry that we might be starting to make a bit of a meal of an entree here, but I agree with the comments made by the Hon. Connie Bonaros. From our perspective, the Greens were keen to honour the intent or the advice of the Auditor-General, and that is why we have moved amendments to give effect to that advice. Certainly, our view is that we should, as a parliament, try to follow the advice of those independent agencies. In terms of whether or not there is potential scope for amendments to be considered between the houses, I will leave that for the Attorney-General to consider.

Amendment negatived; clause passed.

New clause 5.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–3]—

Page 3, after line 8—Insert:

5—Insertion of section 42A

After section 42 insert:

42A—Review of Act

(1) The Minister must cause a review of the operation of this Act to be undertaken, and a report on the review to be prepared and submitted to the Minister.

(2) The review must be completed, and the report on the review submitted to the Minister, within 2 years of the commencement of this section.

(3) The Minister must cause a copy of the report provided under this section to be laid before both Houses of Parliament within 6 sitting days after receiving the report.

I have already spoken to this amendment. It is the provision relating to a need for review in line with everything the Auditor-General has highlighted in the report that was handed down this week and subsequent reports to that.

The Hon. R.A. SIMMS: The Greens are supportive of the call for the review.

New clause inserted.

Schedule 1.

The Hon. C. BONAROS: I move:

Amendment No 3 [Bonaros–3]—

Page 3, line 14 [Schedule 1 clause 1(2)]—After 'Act' insert:

(other than clause 5)

Amendment carried; schedule as amended passed.

Title passed.

Bill reported with amendment.

Bill recommitted.

Clause 3.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–2]—

Page 3, after line 5—After subclause (2) insert:

(3) Section 24(4)—delete 'Governor' and substitute 'Remuneration Tribunal'

I move the amendment standing in my name, namely, that we delete 'Governor' and substitute 'Remuneration Tribunal'. In the report that I have referred to, the Auditor has stated:

Remuneration and the determination of other terms and conditions of employment is considered among the statutory safeguards because it is a key determinant of status and rank, and has a major impact on the calibre of persons who might be attracted to the role. Reducing remuneration could be used to effectively downgrade the status of the Auditor General. The capacity of the Executive to influence remuneration is therefore of importance, as is the transparency of the process by which remuneration is determined.

The Auditor goes on to say:

In New Zealand, the Commonwealth, New South Wales, Western Australia and now the Australian Capital Territory, remuneration is determined by an independent tribunal.

In those jurisdictions where they do not have the tribunal determining it, there are other safeguards; for instance, Queensland, which is obliged to consult with the parliamentary committee before determining remuneration, and Tasmania, where remuneration is determined by a statutory tie to the auditor-generals in other jurisdictions.

I think the amendment speaks for itself. If we are talking about lifting or eliminating as far as possible executive influence on the Auditor-General, then there has been made a very good case as to why this remuneration should be set by the tribunal and not by the executive of the day.

The Hon. R.A. SIMMS: I support the amendment, and I want to thank the Hon. Connie Bonaros for putting it forward. The points that she has made I think are very compelling. Certainly from the Greens' perspective, we have always been concerned about the potential for the executive to exert unfair influence over independent agencies, and one way that could potentially occur, or at least there could be a perception of that occurring, is through the capacity of the executive to influence the remuneration.

Carving that off and having an entirely independent body look at it, such as the Remuneration Tribunal, really does make sense. I want to thank the Hon. Connie Bonaros for identifying this because I think it is a good addition to the bill.

The Hon. K.J. MAHER: I indicate that the government does not support the amendment. We understand what is trying to be done and why it is trying to be done, because it was a recommendation of the Auditor-General. However, as I have said before, one of the aims that we are trying to do with the bill before us is to bring consistency to similar officers in those integrity agencies. This will take the Auditor-General out of line with the head of ICAC, the head of OPI, the head of the Judicial Conduct Commission and the Ombudsman, but if that seems to be the wish of the Auditor-General and the will of the chamber, so be it.

Amendment carried; clause as further amended passed.

Bill reported with further amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (12:12): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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