a framework for reforming the independence and accountability of statutory officers of parliament: a...

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Considerable attention has been given to the independence of auditors-general in theliterature. However, there are other officers of parliament who also have roles that mayrequire protection from the excessive use of power by the executive arm of government. Inresponse to the recent Public Accounts and Estimates Committee Inquiry into a LegislativeFramework for Victorian Statutory Officers of Parliament, the study compares the enablinglegislation of four Victorian officers of parliament in terms of their powers, independence,funding and mandate as well as the accountability mechanisms available to parliamentin terms of their appointment, tenure and oversight. The four officers are: the auditor-general; the ombudsman; the regulator-general; and the director of public prosecutions.A number of notable differences in the enabling legislation are identified and reformoptions for strengthening such legislation are presented.

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Considerable attention has been given to theindependence of auditors-general in theliterature. However, within that literature therehas been limited comparison of the provisionswithin their enabling legislation that providefor their independence as well as their account-ability. Further, auditors-general are only oneof a number of independent parliamentaryofficers with roles that may require protectionfrom the excessive use of power by the executivearm of government.

Therefore a key motivation of this study isto examine the legislative provisions for theindependence and accountability of otherofficers of parliament in addition to the auditor-general. Although the independence andaccountability provisions as contained in theenabling legislation of the auditors-general ofAustralia have been compared (De Martinis andClark, forthcoming), a similar comparison of thelegislative provisions for the independence andaccountability of other officers has not beenundertaken. Examining the enabling legislationof other officers of parliament is importantbecause such officers also contribute to theenhancement of government and public sectoraccountability (Mulgan 1997).

Further motivation comes from examiningthe enabling legislation of two officers of theparliament of Victoria that have receivedgovernment and media attention. The enablinglegislation of the director of public prosecutionsunderwent significant challenge during 1994(Corns 1994; Zifcak 1997). Also, a number ofchanges to the enabling legislation of theauditor-general of Victoria were made by theKennett government and the subsequent Bracksgovernment (Craswell 1997; English andGuthrie 2001; Houghton and Jubb 1998).

Therefore, it is not surprising that in April2000, the Victorian Public Accounts andEstimates Committee (PAEC) commenced aninquiry into a legislative framework forVictorian statutory officers of parliament. ThePAEC was to undertake an inquiry and reporton:1. An appropriate legislative framework for

Victorian officers of Parliament such as theOmbudsman, the Auditor-General and otherstatutory office-holders, that wouldrecognise the special position of statutoryofficers of the Parliament in terms of theirrelationship with the Victorian Parliamentbut which also ensures that their greater

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Reforming the Independence and Accountability of Statutory Officers of Parliament

autonomy is accompanied by very clearaccountability requirements; and

2. Developments in this area in other juris-dictions.

The PAEC inquiry follows an earlier similarinquiry into officers of parliament conductedin New Zealand (Finance and ExpenditureCommittee 1989). The New Zealand inquiryrecommended conferring the status of ‘officerof the parliament’ to officers who should beafforded protection from the arbitrary use ofpower by the executive arm of government, withsuch positions being created only rarely. Whileproposing protection from the excesses of theexecutive, the committee recommended anumber of mechanisms to ensure that, in turn,the officers of parliament were accountable toparliament. The PAEC has not yet presented areport on its findings and recommendations.

The purpose of this paper is to compare theenabling legislation of four statutory officersof parliament in Victoria with regard to theiraccountability to parliament as well as theirindependence from the parliament, includingthe adequacy of their powers, funding andmandate. The four Victorian statutory officersof parliament, who may be considered to beofficers of the parliament in terms of theirrelationship with parliament, are: the auditor-general (Audit Act 1994); the director of publicprosecutions (Public Prosecutions Act 1994);the ombudsman (Ombudsman Act 1973); andthe regulator-general (Office of the Regulator-General Act 1994). As at 1 January 2002, theOffice of the Regulator-General became theEssential Services Commission. These officerswere chosen to provide a sample that may beperceived as representing key officers of theparliament, regardless of whether their enablinglegislation explicitly identifies them as such.

This comparison of the enabling legislationallows for the identification of provisions thatcould be enhanced to strengthen further the in-dependence and accountability of the officers.Such a comparison enables the identificationof the differences in the enabling legislation,where the differences found are used to assessrelative strengths and weaknesses of the enabl-ing legislation with respect to the independenceand accountability provisions. The identifica-tion of weaknesses subsequently justifies thepresentation of reform options in the conclusion.

In order to assist the PAEC to report on anappropriate legislative framework for Victorian

(or other) officers of parliament, and followingon from JCPA (1989, 1996) and English andGuthrie (2000), this study uses an independenceand accountability framework to examine thecurrent legislative frameworks applicable to theabove four parliamentary officers with regardto independence, mandate and funding issues.Also compared are the accountability mech-anisms available to parliament in terms of theirappointment, tenure and oversight. The modeldeveloped by English and Guthrie (2000), inrespect of auditors-general, is adapted here as amodel that can have wider application to otherofficers of parliament. Thus the model providesa framework that can be adopted by legislatorsin considering reforms to the enabling legisla-tion provisions for independence and account-ability of independent officers of parliament.

Interestingly, in Victoria, the term ‘parlia-mentary officer’ does not appear to be clearlydefined. There is a Parliamentary Officers Act1975, with the officers identified within thatAct being the clerks of each house of parliamentand other similar staff who work within Parlia-ment House. Particular enabling legislation thatcreates an officer may refer to that officer asbeing an officer of the parliament. For example,the auditor-general is referred to as an officer ofthe parliament in the Constitution Act 1975,section 94 B(1). If the term is taken to meanofficers who are appointed by the parliament,or by the governor-in-council on its behalf, thenan even wider scope of the notion of officers ofparliament is created. Barrett (1996a:138) statesthat ‘… it remains an open question at this pointin time as to what being an “Officer of theParliament” means in practice, particularly inrelation to the audit office itself’. Therefore,before any legislative framework is developed,it will be necessary to provide an appropriateand adequate definition. Note, however, it isbeyond the scope of this paper to identify thoseofficers who should be deemed to be indepen-dent statutory officers of parliament.

The paper is structured as follows. The nextsection provides a review of the key literatureand, in particular, presents the independenceand accountability framework that forms thebasis of the analysis. Using this framework, theenabling legislation of the four Victorianofficers of parliament are then compared. Finallywe present a summary and conclusion includingreform options for strengthening the enablinglegislation based on the findings. The reform

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Clark and De Martinis

options are justified in their attempt to addressthe findings.

Key Literature

Literature on public sector accounting, account-ability and auditing is extensive (see, forexample, English and Guthrie 1991; Funnel andCooper 1998; Mulgan 1997; Taylor 1992;Zifcak 1997). In particular, the literature givesconsiderable attention to the 1997 review ofVictoria’s Audit Act 1994 (Maddock et al. 1997)and the apparent threats to the independence ofthe Auditor-General of Victoria (Craswell 1997;De Martinis et al. 1998; English and Guthrie2001; Guthrie and English 1997; Houghton andJubb 1998). This incident involving the Aud-itor-General was preceded by a similar incidentin 1993 involving attempts to restructure theoffice of the director of public prosecutions.Corns (1994:277) cites the claim made by thethen Director of Public Prosecutions, BernardBongiorno QC:

… that the proposed reforms would effect-ively undermine prosecutorial independ-ence and allow political considerations to

influence key prosecution decisions andstructures.

In recent times the literature has acknowledgeda model of accountability that comprises a num-ber of complementary ‘agencies’, processes andchannels of accountability between the publicand public servants (Mulgan 1997). Figure 1,sourced from Mulgan (1997), depicts the‘agencies’ of accountability to include freedomof information legislation, courts, ministers,parliament and committees and officers ofparliament including the ombudsman and theauditor-general. The four main processes ofaccountability comprise reporting or account-ing, information-seeking or investigation,assessment or verification, and direction andcontrol. The agencies can ensure the account-ability of governments or public servantsthrough a number of channels. However, theliterature acknowledges that the effectivenessof these accountability agencies, particularlyin the context of the role of public sector audit,depends on the existence of legislative provi-sions that ensure independence and adequatefunding, as well as powers related to a compre-hensive mandate (Barrett 1996a, 1996b; De

THE PUBLIC

FOI COURTS

AAT

PARLIAMENT OMBUDSMAN

AUDITOR-GENERALSECRETARY

PUBLIC SERVANT

MINISTERS

Channels of AccountabilityLines of control

THE PUBLIC

FOI COURTS

AAT

COURTS

AAT

PARLIAMENT OMBUDSMAN

AUDITOR-GENERALSECRETARY

PUBLIC SERVANT

MINISTERS

Channels of AccountabilityLines of control

Figure 1: Main Channels of Public AccountabilitySource: Mulgan (1997).

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Martinis and Clark, forthcoming; English andGuthrie 1991, 2000, 2001; Funnell, 1996,1997; Taylor 1996a, 1996b).

Debate on the role of public sector audit inpublic accountability represents a significantpart of the literature on public accountability(see, for example, De Martinis et al. 1998;English and Guthrie 1991, 2000; Funnell andCooper 1998; Mulgan 1997; Taylor 1992;Walsh 1995). English and Guthrie (2000) pre-sent a framework on the independence andaccountability for auditors-general, which thisstudy adapts to facilitate an examination of theappropriateness and adequacy of current legisla-tive frameworks of all parliamentary officerswith regard to mandate, independence and fund-ing issues. The adapted framework provides thebasis for reporting on an appropriate legislativeframework for the Victorian officers of parlia-ment that: (i) recognises the special position ofstatutory officers of the parliament in terms oftheir relationship with the Victorian parliament;and (ii) ensures that their greater autonomy isaccompanied by very clear accountabilityrequirements.

Comparison of the EnablingLegislation

Based on landmark reports on the Common-wealth auditor-general by the Joint Committeeof Public Accounts (JCPA) (JCPA 1989, 1996),English and Guthrie (2000) examine the role,powers and independence of the Common-wealth auditor-general in the context of theaccountability mechanisms available to parlia-ment, as per Table 1. The two-part frameworkdescribes (i) the accountability mechanismsavailable to parliament related to audit scope,auditor-general appointment, tabling of reports,funding and oversight, and (ii) the powersrequired by auditors-general to conduct auditsrelated to independence, mandate and fundingsource. On the accountability mechanismsavailable to parliament (ie Table 1, column 1),discussion includes issues related to theappointment of the officers, their scope of func-tion, powers of parliament or other officers/com-mittees in relation to each officer, and fundingand oversight of the officers. On the powersgranted to perform duties (ie Table 1, column2), discussion includes issues related to scopeand mandate, independence from direction/control by the executive and funding.

On the issue of accountability, Table 1,column 1, presents mechanisms available to theparliament in respect of the auditors-general.These include no impediment to the scope ofthe auditor-general in conducting financialstatements and performance audits all govern-ment entities. Further, that parliament havepowers to appoint and oversee the office of theauditor-general, as well as to request audits andhave all audit reports tabled in parliament. Theparliament is the client, not the executive orauditee. In respect of funding, the model pro-poses that funding be determined by theparliament with input from the parliamentaryaudit committee. Finally, that there be oversightof the office of the auditor-general through anindependent audit of the auditor-general. Theseaccountability mechanisms available to parlia-ment in respect of the auditor-general can begeneralised to provide a framework for evaluat-ing the accountability of other officers ofparliament to the parliament.

On the issue of independence, both publicand private sector auditors are required to com-ply with professional standards such as AUP 32(AuSB 2002). In general, AUP 32 states thatauditors should be, and appear to be, indepen-dent from the auditee. This requirement couldapply to other officers of parliament with respectto the executive or government of the day.Table 1, column 2, contains more specific inde-pendence requirements applicable to auditors-general and, again, these are adapted within thisstudy for other officers of parliament. Theserequirements include the need for an adequatemandate, as well as the need for sufficient fund-ing as recommended by parliament to enablethe effective exercise of such a mandate. Othernecessary powers relate to independence fromdirection by the executive by way of havingsuch independence enshrined in law, free ofdirection/control from executive, discretion todetermine type of work, reporting to parliamentnot the executive, wide information-gatheringpowers, and appointment by parliament — notthe executive.

The officers’ enabling legislation as at Sep-tember 2000 was examined to determine whetherthe accountability mechanisms (Table 1,column 1) and the required powers (Table 1,column 2) were or were not explicitly addressed.The Parliamentary Officers Act 1975 was alsoreviewed. However, the provisions relating to

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these officers have not been reported upon, astheir duties and relationship with the parliamentare quite different from others who may beconsidered officers of the parliament.

To facilitate the comparison across eachofficer’s enabling legislation, the framework ascontained in Table 1 was restructured to formthe basis of the analyses as appearing in thefirst column of Tables 2 to 5. Tables 2 to 5 providea summary of the key features of the enablinglegislation of each officer under the separateaccountability mechanisms and requiredpowers. A total of 30 issues are contained withinthese tables. The enabling legislation was thenexamined to determine the extent to which the

issues as contained in Tables 2 to 5 wasaddressed. To validate our findings in terms ofaccuracy and errors, the relevant parts of Tables2 to 5 were sent to each officer. Comments werereceived from each officer or a representativeand, where necessary and deemed appropriate,amendments based on such comments wereincorporated in the relevant parts of this paperand the tables.

It is noted that, by practice or convention,some officers may have more or less indepen-dence or accountability to the parliament thansuggested by the analysis of the legislationalone. This is because such practice or conven-tion may not reflect a literal interpretation and

Table 1: Accountability Mechanisms Available to Parliament Related toAudit Mandate, Independence and Funding

Source: English and Guthrie (2000).

Accountability Mechanisms Available to Parliament

Scope of audit in the public sector� No impediment to AG conducting financial

statements and performance audits of allgovernment entities.

Powers of parliament in relation to audit� Parliamentary audit committee to appoint, oversee

AG and his/her office.� Power to request audits.� All audit reports to be tabled in the parliament.� Recognition that parliament is the client, not the

executive or auditee.

Funding determined by parliament� Funding determined by parliament via input from

parliamentary audit committee

Oversight of AG� Independent audit of AG

Powers Required by Auditors-General (AG) to Conduct Audits

Mandate to perform audits1. Financial statement audits of agencies2. Performance audits of agencies3. Financial statement audits of authorities and

companies4. Performance audits of authorities and companies

Independence from direction by the executive1. Independence enshrined in law2. Free of direction/control from executive3. Discretion to determine type of audit and auditee4. Reporting to parliament not the executive5. Wide information-gathering powers6. Audit committee of parliament to advise on audit

priorities and oversee audit function7. Appointment of the AG by parliament not the

executive8. AG an officer of the parliament9. ANAO a statutory authority and AG to determine

terms and conditions of employment of staff

Funding of AG1. Sufficient to enable AG to exercise effective

mandate2. Funding level recommended by parliamentary

audit committee not by treasury3. No cost recovery from auditees

1. Parliament to appoint independent auditor of AG2. Independent auditor to report to parliamentary

audit committee

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Audit-General Director of Public Ombudsman Regulator-General Prosecutions

(a) Appointment by Governor-in-council* Governor-in-council Governor-in-council Governor-in-council(b) Term of office 7 years At least 10 years, at 10 years 5 years

most 20 years(c) Eligible for re- Yes Yes Yes Yes

appointment(d) Remuneration Governor-in-council Judicial Remuneration Governor-in-council Governor-in-council

determined by and Tribunal Act 1995(e) Officer to be

paid out ofConsolidated Yes Yes Yes YesFund

(f) Removal from Parliament Parliament Parliament Parliamentoffice by

(g) Appointment of Governor-in-council Governor-in-council Governor-in-council Governor-in-councilacting officer

(h) Annual workplan to be Yes No No Yessubmitted toparliament

(i) Power to requestinvestigations or Parliament Not explicitly stated Parliament Ministeraudits

(j) Annual report to Not explicit as tobe tabled directly Yes To parliament via the Yes who receives theto parliament attorney-general annual report

(k) Submission of otherreports to Parliament No other reports required Parliament Minister

application of the enabling legislation. Anexamination of instances where such variationsbetween practice and the legislative provisionoccur is beyond the scope of the present study.However, as an example of where such a diver-gence was found, the Commonwealth auditor-general, by convention, presents an annual workplan to parliament without there being alegislative requirement to do so. It is only inthe case of the auditor-general of Victoria that alegislative requirement to submit an annualplan to parliament exists.

Accountability Mechanism Availableto ParliamentPowers of Parliament in Relation to VictorianOfficers of ParliamentTable 2 shows a number of differences betweenthe four Victorian officers in relation to thepowers of parliament. Although there isconsistency over the appointment and removalof the officers, there are significant differencesin other areas. Of note is the degree of difference

in the terms of office, eligibility for reappoint-ment, and in the requirement for an annual workplan. A more detailed description follows below.

(a) AppointmentFor each officer examined, the appointment tothe position is by the governor-in-council. Inthe case of the auditor-general the legislationfurther provides that the appointment by thegovernor-in-council is on the recommendationof the parliamentary committee (ie the PAEC).In the case of the regulator-general, associateregulators-general may be appointed, with theseappointments being made by the minister ratherthan the governor-in-council.

(b) Term of OfficeThe legislation reveals differences in theperiods for which the officers may be appointed,and their eligibility for reappointment. Theauditor-general is appointed for seven years;the director of public prosecutions is to beappointed for at least 10 years and at most 20

Table 2: Powers of Parliament in Relations to Victorian Officers of Parliament

* On the recommendation of the PAEC.

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years; the ombudsman is appointed for a termof 10 years; while the regulator-general isappointed for five years. The appointment ofthe auditor-general and the director of publicprosecutions are provided for in the Constitu-tion Act 1975, whereas the other officers’appointments are provided for in their respect-ive enabling legislation.

(c) Eligibility for ReappointmentThe ombudsman is the only officer not eligiblefor reappointment.

(d) RemunerationRemuneration for the auditor-general, theombudsman and regulator-general is deter-mined by the governor-in-council. In the caseof the director of public prosecutions, salaryand allowances are determined under theJudicial Remuneration Tribunal Act 1995.

(e) Payments out of Consolidated FundIn terms of the source of funds for thesepayments, the auditor-general, the director ofpublic prosecutions and the ombudsman arepaid from the Consolidated Fund. The legisla-tion is silent on this matter in respect of theregulator-general.

(f) Removal from OfficeRemoval of each officer can only be by parlia-ment.

(g) Appointment of Acting OfficersThe appointment of an acting officer is by thegovernor-in-council, which is the same as theprocess for appointing the substantive officeholder.

(h) Submission of Annual Work PlanThe auditor-general is the only officer requiredto submit an annual plan describing theproposed work program for that year to theparliament, with the draft plan being subject toconsideration and comment by the parlia-mentary committee. The auditor-general is thenrequired to report upon the performance of thatplan following that year. The other parlia-mentary officers do not appear to be subject toany parliamentary or ministerial direction as toan annual work plan. The director of publicprosecutions must consult with the director’scommittee before making a special decision.

The regulator-general is required to consult theminister prior to conducting an inquiry. In allother respects, the other parliamentary officersdo not appear to be required to consult or conferin planning or determining their work program.

The director of public prosecutions isresponsible to the attorney-general for the dueperformance of his or her functions and exerciseof his or her powers under the Act. It is not clearwhat the implications of this provision are interms of determining the effective relationshipbetween the director of public prosecutions andthe attorney-general, and in particular theindependence of the director of publicprosecutions.

(i) Power to Request Investigations or AuditsIn the case of the ombudsman, the legislationprovides that the Legislative Council, Legisla-tive Assembly or a joint committee of bothhouses of parliament may refer to the ombuds-man any matter for investigation or report(Ombudsman Act 1973, section 16). In the caseof the regulator-general, the minister mayrequest inquiries.

(j) Tabling of Annual ReportsIn terms of provisions relating to annual report-ing, the auditor-general and the ombudsman areto submit an annual report directly to the parlia-ment, while the director of public prosecutionssubmits annual reports to the attorney-generalfor tabling in parliament. The regulator-generalis to produce an annual report; however, thelegislation is silent regarding the provisions forthe submission of this annual report to parlia-ment or the relevant minister. The Committeeof Public Prosecutions also submits an annualreport to the attorney-general which is to belaid before parliament.

(k) Submission of Other ReportsIn respect of other forms of reports, the auditor-general submits all audit reports to the parlia-ment. The ombudsman also submits his or herother reports directly to the parliament. How-ever, the regulator-general submits reports ofinquiries to the minister for tabling in parlia-ment, while the director of public prosecutionsdoes not appear to be subject to a provisionrequiring submission of other reports. Further,the ombudsman may be authorised to publishany report relating to the exercise of his or herfunctions.

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Funding of OfficesTable 3 shows that for the auditor-general,funding is determined in consultation with thePAEC, whereas costs for performance audits forauthorities are to be paid out of the money appro-priated to the parliament. In the case of the om-budsman, parliament is to appropriate funds foruse by the office of the ombudsman. In con-trast to that for the director of public prosecu-tions and the regulator-general, the relevantlegislation appears to be silent in respect of thefunding of the office.

Oversight of Offices

Table 4 shows that the office of the auditor-general is subject to an independent audit inrespect of the financial statements each year, aswell as being subject to an independent perform-ance audit at least every three years, with theindependent auditor being appointed by theparliament. Both the independent financialstatement auditor and the performance auditorare to report to parliament. All other offices aresubject to independent audit conducted by theauditor-general. However, the relevant legisla-tion for each officer other than the auditor-general does not explicitly refer to the conductof an audit.

Powers to Perform FunctionsMandate to Perform FunctionsSince the functions performed by the variousofficers differ, it is difficult to make comparisons

about the extent to which the relevant legisla-tion provides a comprehensive mandate to thoseofficers to perform their respective functions.There are, however, differences between theextent to which these officers may perform theirmandate at their own discretion without beingsubject to the direction of the parliament (or itscommittees), for example in respect of theplanning of their work (such as the auditor-general being required to consult with the PAECon the annual work plan), or in terms of beingsubject to requests to perform specific investiga-tions or audits (see the section Powers of Parlia-ment in Relation to Victorian Officers of Parlia-ment above).

Independence from Direction by Parliamentor its CommitteesTable 5 shows both similarities and differencesin issues affecting the independence of eachofficer from direction by parliament or itscommittees.

(a) Independence Enshrined in LawThe auditor-general, under the provisions of theConstitution Act 1975, is an independent officerof the parliament. Similarly, the office of theregulator-general is not subject to the directionor control of the minister in respect of anydetermination, report or inquiry. The directorof public prosecutions and the ombudsman donot appear to have any provision for the explicitenshrinement of their independence fromdirection provided with the relevant legislation.

Table 3: Funding of OfficesAudit-General Director of Public Ombudsman Regulator-General

Prosecutions

(a) Funding of office Parliament Not explicitly stated Parliament Not explicitly stateddetermined by

Table 4: Oversight of OfficesAudit-General Director of Public Ombudsman Regulator-General

Prosecutions

(a) Independentfinancial statement Yes Not explicitly stated Not explicitly stated Not explicitly statedaudit

(b) Independentperformance Yes Not explicitly stated Not explicitly stated Not explicitly statedaudit

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Audit-General Director of Public Ombudsman Regulator-General Prosecutions

(a) Independence Yes Not explicitly stated Not explicitly stated Yesenshrined in law

(b) Discretion to Yes Not explicitly stated Yes Yesperform functions

(c) Access to No restrictions Not explicitly stated Restricted Restrictedinformation evident as to variety of

of informationaccessible

(d) Power to engage Yes Not explicitly stated Not explicity stated Yesconsultants andcontractors

(e) Determining Not explicitly stated Not explicitly stated Not explicitly stated Not explicitly statedterms andconditionsof staff

(b) Discretion to Perform FunctionsThe relevant legislation provides for discretionin varying degrees for the officers under con-sideration. The auditor-general has very explicitprovision for discretion, contained within theConstitution Act 1975, which provides ‘com-plete discretion’ in the performance or exerciseof functions or powers and is not subject todirection from anyone in relation to: whetheror not a particular audit is conducted; the way aparticular audit is to be conducted; or thepriority to be given to any particular matter.The director of public prosecutions does notappear to have explicit provision to exercisediscretion; however, this provision may be seenas being implicit, for example having the powerto discontinue criminal proceedings. Theombudsman has discretion to conduct inquiriesand investigations and regulate procedures. Theregulator-general has the discretion to conductinquiries as deemed fit.

(c) Access to InformationThe enabling legislation for auditor-general, theombudsman and the regulator-general makesuch a provision. There are, however, differencesin the wording of this provision and exemptionsto compliance. The ombudsman has power togather any information except any informationthat a person is not compelled to produce beforea court. The regulator-general has power toobtain information and documents except wherecompliance may tend to incriminate a person.The enabling legislation for the director of

public prosecutions does not explicitly providesuch a provision. However, it is likely that otherlegislative authority provides this power to thedirector of public prosecutions. It is noted thatthe ombudsman has no access to any delibera-tions of ministers and parliamentary committeesin the performance of his or her duties. In thecase of the auditor-general, there is no apparentlimitation to call for persons or documents. How-ever, the auditor-general does not have theauthority to access information held by privatesector contractors relating to services providedby such contractors to public sector agencies.This may be seen as a serious limitation in anera when contracting out is prevalent.

(d) Power to Engage Consultants andContractors

Each officer has the power to delegate thepowers of that office. In the case of the auditor-general, the legislation provides the furtherexplicit provision that persons may be engagedon a contract basis to conduct audits. Similarly,the regulator-general explicitly has the powerto engage consultants.

(e) Determining Terms and Conditions of StaffFor each officer the enabling legislation is silenton the matter of determination of the terms andconditions of staff. In the case of the auditor-general, the PAEC has the power to exempt theauditor-general from the employment provi-sions generally applicable to governmentagencies. However, this is not the same as the

Table 5: Independent from Direction by Parliament or its Committees

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auditor-general directly having the power todetermine the terms and conditions of staff.

Summary and Conclusion

Following on from JCPA (1989, 1996), Englishand Guthrie (2000) and De Martinis and Clark(forthcoming), this study used a two-part inde-pendence and accountability framework as abasis to examine the enabling legislation of fourVictorian statutory officers of parliament withregard to independence, mandate and fundingissues. This comparative analysis comprised theauditor-general, the director of public prosecu-tions, the ombudsman and the regulator-general.Whether or not these particular officers shouldhave the status of officers of parliament, andthe associated independence and account-ability, was not explored. Rather, the approachwas to evaluate the adequacy of the provisionsof their enabling legislation in terms of indepen-dence and accountability should they beconsidered to be officers of the parliament. Thefirst part of the framework provided an assess-ment of the accountability mechanism availableto parliament with reference to scope, powersof parliament (in relation to requesting andtabling of reports), funding and oversight. Thesecond part provided an assessment of thepowers and independence required by suchofficers to perform their function based on theextent of mandate, independence from directionby the executive and funding.

This analysis revealed areas where suchprovisions may be further strengthened throughamendments in the enabling legislation. Forexample, the director of public prosecutions’remuneration determination process, theombudsman’s eligibility for reappointment, andthe regulator-general’s term of office. Also foundwas the requirement for only one officer, theauditor-general, to submit an annual work planto parliament. Arguably this is a requirementthat may be seen to inhibit the scope and inde-pendence of the auditor-general. Other notabledifferences exist in relation to the powers ofparliament to request investigations or audits,and in the case of the director of public prosecu-tions and the regulator-general an absence ofexplicit reference to funding mechanisms.However, the most important difference identi-fied was that two of the four officers, the auditor-general and the regulator-general, have their

independence enshrined in law.Overall, most of the deficiencies exist

because the enabling legislation is silent (ie thedominance of the ‘not explicitly stated’ entry).Therefore, such deficiencies could be addressedthrough appropriate amendments to theenabling legislation that explicitly address theissues.

It is acknowledged that, in general, somelegislative provisions give rise to specific obli-gations or actions that can be readily observedand measured, for example provision for allaudit reports to be tabled in parliament. How-ever, there are other legislative provisions thatmay be little more than symbolic statements,for example reference to the auditor-generalbeing an ‘independent officer of the parlia-ment’. Arguably, the outcomes of such symbol-ism may not be measurable in a quantitativemanner because evidence does not readily existto support the effectiveness of such symbolism.

Finally, based on findings of this study, twopossible reform options for strengthening theenabling legislation are suggested. The firstoption is to enact a ‘Statutory Officers of theParliament Act’ that would establish a legislativeframework for all statutory officers of parliamentwithin the jurisdiction. Although such a legisla-tive framework is possible, it may be necessaryto recognise within the current individuallegislation the different function of each officein the context of such a broad legislativeframework. The second option is to adopt a setof principles that form the basis of amendmentsto each separate act for statutory officers ofparliament. This overcomes the need to developan overall legislative framework for all officersof parliament within the jurisdiction. Yet, at theindividual level, all officers of parliament wouldhave enshrined in law the minimum level ofpower and independence to perform their duties,and parliament is provided with the necessaryminimum level of accountability mechanisms.

Note

* The authors wish to thank Ruth Kiraka for herinvaluable research assistance in collecting the datafrom the enabling legislation. This paper is anextension of part of our submission to the PublicAccounts and Estimates Committee Inquiry into aLegislative Framework for Victorian StatutoryOfficers of Parliament. We thank the auditor-general, the ombudsman, the regulator-general and

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the director of public prosecutions, or theirrepresentative, for comments on our analysis ofthe respective enabling legislation. We acknowl-edge comments from Haddon Storey, Public SectorResearch Unit, Victoria University. Also we thankthe anonymous reviewer of an earlier draft pre-sented at the Accounting Association of Australiaand New Zealand Accountability Symposium,2001, Auckland, and the participants. We also thankthe two anonymous referees. We are grateful forfunding provided by the Public Sector ResearchUnit, Victoria University. Responsibility for anyerrors remains with the authors.

ReferencesLegislationAudit Act 1994Constitution Act 1975Judicial Remuneration Tribunal Act 1995Office of the Regulator-General Act 1994Ombudsman Act 1973Parliamentary Officers Act 1975Public Prosecutions Act 1994

Monographs and ArticlesAuditing Standards Board of Australia (AuSB) 2002

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