Reports
Actions for Ensuring contract management capability in government - Department of Education
Ensuring contract management capability in government - Department of Education
This report examines whether the Department of Education has the required contract management capability to effectively manage high-value goods and services contracts (over $250,000). In 2017–18, the department managed high-value goods and services contracts worth $3.08 billion, with most of the contracts running over multiple years.
NSW government agencies are increasingly delivering services and projects through contracts with third parties. These contracts can be complex and governments face challenges in negotiating and implementing them effectively.
Contract management capability is a broad term, which can include aspects of individual staff capability as well as organisational capability (such as policies, frameworks and processes).
In 2017–18, the Department of Education (the Department) managed high-value (over $250,000) goods and services contracts worth $3.08 billion, with most of the contracts running over multiple years. The Department delivers, funds and regulates education services for NSW students from early childhood to secondary school.
This audit examined whether the Department has the required capability to effectively manage high-value goods and services contracts.
We did not examine infrastructure, construction or information communication and technology contracts. We assessed the Department against the following criteria:
- The Department’s policies and procedures support effective contract management and are consistent with relevant frameworks, policies and guidelines.
- The Department has capable personnel to effectively conduct the monitoring activities throughout the life of the contract.
The NSW Public Service Commission and the Department of Finance, Services and Innovation are included as auditees as they administer policies which directly affect contract management capability, including:
- NSW Procurement Board Directions and policies
- NSW Procurement Agency Accreditation Scheme
- NSW Public Sector Capability Framework.
The Department of Finance, Services and Innovation's responsibility for NSW Procurement will transfer to NSW Treasury on 1 July 2019 as part of changes to government administrative arrangements announced on 2 April 2019 and amended on 1 May 2019.
Conclusion The Department of Education's procedures and policies for goods and services contract management are consistent with relevant guidance. It also has a systemic approach to defining the capability required for contract management roles. That said, there are gaps in how well the Department uses this capability to ensure its contracts are performing. We also found one program (comprising 645 contracts) that was not compliant with the Department's policies. The Department has up-to-date policies and procedures that are consistent with relevant guidance. The Department also communicates changes to procurement related policies, monitors compliance with policies and conducts regular reviews aiming to identify non-compliance. The Department uses the NSW Public Service Commission's capability framework to support its workforce management and development. The capability framework includes general contract management capability for all staff and occupation specific capabilities for contract managers. The Department also provides learning and development for staff who manage contracts to improve their capability. The Department provides some guidance on different ways that contract managers can validate performance information provided by suppliers. However, the Department does not provide guidance to assist contract managers to choose the best validation strategy according to contract risk. This could lead to inconsistent practice and contracts not delivering what they are supposed to. We found that none of the 645 contracts associated with the Assisted Schools Travel Program (estimated value of $182 million in 2018–19) have contract management plans. This is contrary to the Department's policies and increases the risk that contract managers are not effectively reviewing performance and resolving disputes. |
Appendix one - Response from agencies
Appendix two - About the audit
Appendix three - Performance auditing
Parliamentary Reference: Report number #325 - released 28 June 2019
Copyright reserved by the Audit Office of New South Wales. All rights reserved. No part of this publication may be reproduced without prior consent of the Audit Office of New South Wales. The Audit Office does not accept responsibility for loss or damage suffered by any person acting on or refraining from action as a result of any of this material.
Actions for Managing growth in the NSW prison population
Managing growth in the NSW prison population
The Department of Justice has relied heavily on temporary responses to accommodate growing prisoner numbers according to a report released today by the Acting Auditor-General for New South Wales, Ian Goodwin.
At the time of this audit, the NSW Department of Justice (DOJ) was responsible for delivering custodial corrections services in New South Wales through its Corrective Services NSW division (Corrective Services NSW). From 1 July 2019, the Department of Family and Community Services and Justice will be responsible for these functions.
Within DOJ, Corrective Services NSW is responsible for administering sentences and legal orders through custodial and community-based management of adult offenders. Its key priorities are:
- providing safe, secure and humane management of prisoners
- reducing reoffending
- improving community safety and confidence in the justice system.
The prison population in New South Wales grew by around 40 per cent between 2012 to 2018, from 9,602 to 13,630 inmates. This rate of growth was higher than experienced prior to 2012. DOJ forecasts growth to continue over the short and longer-term.
DOJ has responded to inmate population growth by doubling-up and tripling-up the number of prison beds in cells, reactivating previously closed prisons, and a $3.8 billion program of new prison capacity. DOJ has also developed a long-term prison infrastructure strategy that projects long-term needs and recommended investments to meet these needs.
This audit assessed how efficiently and effectively DOJ is responding to growth in the NSW prison population. In this report, we have not analysed the sources of demand or recommended ways that custody may be avoided. These are largely government policy issues.
The Productivity Commission’s Report on Government Services outlines the performance indicator framework for corrective services in Australia (Appendix three). We have used measures from this framework to assess the efficiency and effectiveness of DOJ’s responses to prison bed capacity needs.
In this section, we analyse system-wide indicators as DOJ has not consistently published or reported data for individual correctional centres over the period of review.
Appendix one - Response from agency
Appendix two - Managing women in custody
Appendix three - Corrective services performance indicator framework
Appendix four - About the audit
Appendix five – Performance auditing
Parliamentary Reference: Report number #319 - released 24 May 2019
Actions for Wellbeing of secondary school students
Wellbeing of secondary school students
The Department of Education has a strong focus on supporting secondary school students’ wellbeing. However, it is difficult to assess how well the Department is progressing as it is yet to measure or report on the outcomes of this work at a whole-of-state level.
The Department of Education’s (the Department) purpose is to prepare young people for rewarding lives as engaged citizens in a complex and dynamic society. The Department commits to creating quality learning opportunities for children and young people, including a commitment to student wellbeing, which is seen as directly linked to positive learning outcomes. Wellbeing is defined broadly by the Department as “the quality of a person’s life…It is more than the absence of physical or psychological illness”. Student wellbeing can be supported by everything a school does to enhance a student's learning—from curriculum to teacher quality to targeted policies and programs to whole-school approaches to wellbeing.
Several reforms have aimed to support student wellbeing in recent years. 'Local Schools, Local Decisions' gave NSW schools more local authority to make decisions, including schools' approaches to support student wellbeing. In 2016, the 'Supported Students, Successful Students' initiative provided $167 million over four years to support the wellbeing of students. From 2018, the 'Every Student is Known, Valued and Cared For' initiative provides a principal led mentoring program, and a website with policies, procedures and resources to support student wellbeing.
This audit assessed how well the Department of Education supports secondary schools to promote and support the wellbeing of their students and how well secondary schools are promoting and supporting the wellbeing of their students.
Conclusion
The Department has implemented a range of programs and reforms aimed at supporting student wellbeing. However, the outcomes of this work have yet to be measured or reported on at a system level, making it difficult to assess the Department's progress in improving student wellbeing.
Secondary schools have generally adopted a structured approach to deliver wellbeing support and programs, using both Department and localised resources. The approaches have been tailored to meet the needs of their school community. That said, public reporting on wellbeing improvement measures via annual school reports is of variable quality and needs to improve.
The Department’s wellbeing initiatives are supported by research and consultation, but outcomes have not been reported on
The Department’s development of wellbeing policy, guidance, tools and resources has been transparent, consultative and well researched. It has drawn on international and domestic evidence to support its aim to deliver a fundamental shift from welfare to wellbeing at the school and system level.
However, the key performance indicator to monitor and track progress in wellbeing has yet to be reported on despite the strategic plan including this as a priority for the period 2018 to 2022. This includes not yet reporting a baseline for the target, nor how it will be measured.
The Department’s wellbeing resources are mostly well targeted but there is room for improvement
The Department’s allocation of resources to deliver wellbeing initiatives in schools is mostly well targeted, reflects a needs basis and supports current strategic directions. This could be improved with some changes to formula allocations and clearer definitions of the resourcing required for identified wellbeing positions in schools. The workforce modelling for forecasting supply and demand, specifically for school counsellors and psychologists, needs to separately identify these positions as they are currently subsumed in general teacher numbers.
Schools' reporting on wellbeing improvement measures is of variable quality and needs to improve
Schools we visited demonstrated a variety of approaches to wellbeing depending on their local circumstances and student populations. They make use of Department policies, guidelines, and resources, particularly mandatory policies and data collections, which have good compliance and take-up at school level. Professional learning supports specific wellbeing initiatives and online systems for monitoring and reporting have contributed to schools’ capacity and capabilities.
Schools report publicly on wellbeing improvement measures through annual school reports but this reporting is of variable quality. The Department plans to improve the capability of schools in data analysis and we recommend that this include the setting and evaluation of improvement targets for wellbeing.
The implementation of the 2015 Wellbeing Framework in schools is incomplete and the Department has not effectively prioritised and consolidated tools, systems and reporting for wellbeing
Schools' take up of the 2015 Wellbeing Framework is hindered by it not being linked to the school planning and reporting policy and tools—the School Excellence Framework. At some schools we visited, this disconnect has led to a lack of knowledge and confidence in using it in schools. The Department has identified the need to improve alignment of policies, frameworks and plans and has commenced work on this.
We found evidence of overburdening in schools for addressing student wellbeing—in the number of tools, online systems for information collection, and duplication in reporting. Following the significant reforms of recent years, the Department should consolidate its efforts by reinforcing existing effective programs and systems and addressing identified gaps and equity issues, rather than introducing further change for schools. In particular, methods and processes for complex case coordination need improvement.
The NSW Department of Education commits to creating quality learning opportunities for students. This includes strengthening students’ physical, social, emotional and spiritual development. The Department sets out to enable students to be healthy, happy, engaged and successful.
Welfare and wellbeing
The Department’s approach has significantly shifted from student welfare to wellbeing of the whole child and young person. Wellbeing is defined in departmental policy and strategy documents broadly, and as directly linked to learning and positive learning outcomes. “Wellbeing can be described as the quality of a person’s life…It is more than the absence of physical or psychological illness…Wellbeing, or the lack of it, can affect a student’s engagement and success in learning…”
Student wellbeing can be supported by everything a school does to enhance a student's learning—from curriculum to teacher quality to targeted policies and programs to whole-school approaches to wellbeing. Distinctions between wellbeing and welfare in the school context are outlined below.
Welfare | Wellbeing |
---|---|
Operates from a basis of student need and doesn't always take into account a whole child view. | For all students. |
Rather than building on the strengths of students, operates from a deficit model of individual student problems or negative behaviours. | Goes beyond just welfare needs of a few students and aims for all students to be healthy, happy, successful and productive individuals who are active and positive contributors to the school and society in which they live. |
Appendix one - Response from agency
Appendix two - Key policies, guidance, and systems
Appendix three - Funding and resources for schools
Appendix four - Measuring wellbeing
Appendix five - About the audit
Appendix six - Performance auditing
Parliamentary Reference: Report number #318 - released 23 May 2019
Actions for Firearms regulation
Firearms regulation
There are gaps in how the Firearms Registry administers the firearms licencing and registration scheme for existing licence holders, according to a report released today by the Auditor-General for New South Wales, Margaret Crawford. These gaps reduce the Registry’s effectiveness in regulating firearms use and ownership.
While the Firearms Registry has systems to promptly update details in the firearms register for changes in firearm ownership and for criminal or anti-social behaviour of licence holders, some key information, including addresses, is not accurate or up-to date. 'This exposes a critical gap in the Registry’s data on the location of licence holders and their firearms,' Ms Crawford said.
The Firearms Registry may also be making unsound or inconsistent administrative decisions due to a lack of clear internal policies and guidance. These decisions include licence suspensions or revocations, assessing reasons for the acquisition of firearms, and initiating enforcement actions for breaches by licence holders. Ms Crawford noted that 'these gaps mean the Registry cannot be confident it conducts aspects of its licencing activities effectively.'
The report’s recommendations aim to improve the integrity of the data in the register and ensure that the Firearms Registry is making sound and consistent decisions in regulating firearms use and ownership.
Firearms used by the general public in NSW are regulated through the Firearms Act 1996 (NSW) (the Act) and the Firearms Regulation 2017 (NSW) (Regulation). In October 2018, there were over 237,500 firearm licence holders and just over one million registered firearms in NSW.
The Act and Regulation reflect the National Firearms Agreement reached by all Australian jurisdictions in 1996 and confirmed in 2017. This Agreement sets out the minimum requirements for regulating firearms. The Act recognises that possessing and using firearms are privileges conditional on the overriding need to ensure public safety.
The NSW Police Force (NSW Police), which includes the Firearms Registry (the Registry), is responsible for administering the Act and Regulation, and for operating the NSW firearms licensing and registration scheme. Relevant third parties such as approved clubs, firearms dealers and shooting ranges also carry some administrative and oversight responsibilities under the Act and Regulation.
The role of the Registry includes administering the following requirements under the Act and Regulation that are relevant to this audit:
- licence conditions
- licence suspensions and revocations
- initiating seizure of firearms
- assessing permits to acquire firearms
- administering the good reason test
- maintaining the register of firearms
- approving alternative safe storage arrangements.
The Registry's other activities identified in this report support its regulatory responsibilities under the NSW Government framework for better regulation.
This audit assessed how well the Registry administers the requirements of the Act and Regulation for existing firearms licence holders. To effectively administer these requirements, the Registry should have:
- a reliable database that supports the firearms licensing and registration scheme
- appropriate risk-based policies and procedures for the Registry’s operation that are consistent with the Act and Regulation.
We did not assess the Registry’s processes in assessing and issuing firearms licences to new applicants or renewing licences of existing licence holders. We also did not examine the administrative actions conducted by police officers who are not part of the Registry.
See Section 1 for details on the role of the Registry. See Appendix six for details of the audit.
The Registry is promptly advised of the sale of firearms or potential criminal or anti-social behaviour activity of licence holders and it promptly updates relevant information in the register.
Licence holders do not always advise the Registry of their address changes within the time required. The Registry does not have processes to efficiently identify these changes if not advised. This exposes a critical gap in the Registry's data on the location of some firearms. While the Registry has implemented a number of programs for checking the accuracy of data in the register, some of these programs have either ceased or been severely curtailed. For example, the Registry was conducting various checks on the accuracy of the data relating to the description of firearms in the register and correcting errors. These checks ceased after July 2017, with only around 50 per cent of the register checked.
There is an increased risk of the Registry making unsound or inconsistent administrative decisions.
The Registry lacks appropriate policies and guidance for important administrative decisions and sanctions. These include making decisions about licence suspensions and revocations, assessing good reasons for acquiring firearms, and initiating some enforcement actions. There is also limited review of these critical decisions.
The Commissioner of Police’s response to this report (Appendix one) indicates he disagrees with some of our findings and recommendations based on his view that the firearms licensing and registration scheme is a ‘co-regulatory model’. The conclusion and recommendations of this report are based on the provisions in the Act which indicate that the Commissioner, and through him the NSW Police Force (including the Firearms Registry), is the responsible regulator. We acknowledge that other stakeholders have obligations to undertake certain actions in accordance with the Act and Regulation. This is further discussed below.
To effectively administer the requirements of the Act and Regulation, the register that supports the firearms licensing and registration scheme should have readily accessible, accurate and up-to-date information regarding the status of licence holders and registered firearms.
Appendix one - Response from agency
Appendix two - Reasons for firearms licences to be suspended or revoked
Appendix three - Licence holder obligations
Appendix four - Firearms licence categories
Appendix five - Firearms distribution
Appendix six - About the audit
Appendix seven - Performance auditing
Parliamentary reference - Report number #315 - released 28 February 2019
Actions for Compliance of expenditure with Section 12A of the Public Finance and Audit Act 1983 - Law Enforcement Conduct Commission
Compliance of expenditure with Section 12A of the Public Finance and Audit Act 1983 - Law Enforcement Conduct Commission
The Hon. Troy Grant MP, Minister for Police and Minister for Emergency Services requested an audit under section 27B(3)(c) of the Public Finance and Audit Act 1983, to determine whether expenditure on overseas travel by the Law Enforcement Conduct Commission (the Commission) complied with section 12A of the Public Finance and Audit Act 1983.
On 9 November 2018, the Hon. Troy Grant MP, Minister for Police and Minister for Emergency Services (the Minister), requested an audit under s. 27B(3)(c) of the Public Finance and Audit Act 1983 (the PF&A Act) to determine whether the expenditure of $8,074.66 on overseas travel by the Law Enforcement Conduct Commission (the LECC) complied with s. 12A of the PF&A Act.
In forming my audit conclusion, I have reviewed documentation provided by the Minister and the LECC, made enquiries of LECC staff, and sought independent legal advice on key aspects of the PF&A Act and the Law Enforcement Conduct Commission Act 2016 (the LECC Act) and their interface.
In my opinion, the LECC did not comply with s. 12A of the PF&A Act because the Minister:
- had not delegated his authority to approve expenditure for overseas travel to an officer in the LECC
- had specifically declined approving a request from the LECC to incur expenditure on the travel in question.
Despite this, the LECC incurred the expenditure.
In my view, the LECC required the Minister’s approval to incur the overseas travel expenditure before it could legally spend funds for this purpose from its appropriation.
The LECC is an independent investigative body, funded by appropriation, to oversight NSW Police and the Crime Commission
The Bill to establish the LECC was introduced to parliament following a review of the police oversight system.1 The establishment of the LECC drew together functions previously undertaken by the Police Integrity Commission, the Ombudsman and the Inspector of the Crime Commission. It aimed to ‘remove overlapping responsibilities, inefficiencies and failures’ and ‘create a single civilian law enforcement oversight body’.2
Part 4 of the LECC Act sets out the functions of the Commission as an independent investigative body. The objects of the LECC Act are summarised in Appendix one. The LECC Act provides that the Minister cannot direct the LECC on how to perform its functions.
Notably, s. 22 of the LECC Act states:
The Commission and Commissioners are not subject to the control or direction of the Minister in the exercise of their functions.
For the financial year ended 30 June 2018, under s. 22 of the Appropriation Act 2017 (NSW), $21,195,000 was appropriated to the Minister for the LECC’s services. This provided the statutory basis for the sum in question to be drawn from the Consolidated Fund, but only in accordance with the PF&A Act.
The PF&A Act is the legislation that governs the administration of public finances
The PF&A Act determines how expenditure is to occur and sets out the conditions under which such expenditure can occur in NSW public sector agencies.The LECC is an agency within the NSW public sector.
Section 12A of the PF&A Act stipulates that:
A Minister to whom a sum of money is appropriated out of the Consolidated Fund for a use or purpose (whether by an annual Appropriation Act or other Act) may delegate to another Minister or to an officer of any authority, or authorise another Minister to delegate to an officer of any authority, the committing or incurring of expenditure from the sum so appropriated.
Section 12 of the PF&A Act also stipulates that:
Expenditure shall be committed or incurred by an officer of an authority only within the limits of a delegation in writing conferred on the officer by a person entitled to make the delegation.
The relevant ‘authority’ in this case was the Office of the Law Enforcement Conduct Commission (Office of the LECC) - a body which, under the Government Sector Employment Act 2013 (the GSE Act)3 employs the staff of the LECC.
Prima facie, as the LECC is funded by appropriation and is subject to the PF&A Act, its officers can only commit or incur expenditure with a delegation from the Minister.
The Minister did not delegate his right to approve expenditure on overseas travel
In April 2017, the Minister approved the LECC’s financial delegations under the authority vested in him by s. 12A of the PF&A Act. However, he reserved his right to approve any expenditure on overseas travel. This effectively required the LECC to obtain his approval for each instance of such expenditure.4
The Minister declined approval of a LECC request for an officer to travel overseas
In August 2017, the Chief Commissioner sought the Minister’s approval to incur overseas travel expenditure. The Minister exercised his right under the PF&A Act to decline the request and confirmed this in writing:
Establishment of LECC being in its infancy, travel is not supported at this time. Operating priorities should be the focus at this time.
The LECC paid the overseas travel expenses without a delegation or Ministerial approval
In October 2017, despite the absence of a delegation or approval from the Minister to incur expenditure on overseas travel, the Chief Commissioner approved a total of $8,074.66 for the LECC’s Director of Covert Services to travel to, and attend an international conference.
The LECC booked and paid for the travel in four payments between October and December 2017. Over the same period the Chief Commissioner reimbursed the agency for these expenses from his personal funds. On 13 October 2017, the Chief Commissioner wrote to the Minister asking him to reconsider his decision. On 12 January 2018, in the absence of a response from the Minister, the Chief Commissioner directed the LECC’s finance officer to ‘repay the relevant costs to my account’.5 On 16 January 2018, the LECC’s Chief Executive Officer approved the reimbursement to the Chief Commissioner, which occurred on 17 January 2018. Appendix three provides further detail on the series of payments.
The Chief Commissioner first disclosed he had been reimbursed for the expenses, without Ministerial approval, in March 2018. In August 2018, the Chief Commissioner made a further disclosure about the expenditure at Budget Estimates.6
The Chief Commissioner argues the overseas travel expenditure was properly incurred
The Chief Commissioner argues the LECC’s overseas travel expenditure was properly incurred because:
- the travel was undertaken in pursuit of the detective and investigative functions specified in s. 26(b)(i) of Part 4 of the LECC Act7
- a specific reservation in public policy cannot be qualified by general rules of public policy.8 The Chief Commissioner argues s. 22 of the LECC Act is a specific provision that conflicts with the general provisions in ss. 12 and 12A of the PF&A Act. In his view, the conflict is resolved by applying the principle that a specific later provision effectively repeals an earlier general provision. In his view, the LECC Act contains a specific provision that the Minister cannot direct the LECC in exercising its functions, whereas the PF&A Act contains general provisions which deal with the spending of public money.
The Chief Commissioner believes the Minister’s decision7:
- was not made in the bona fide exercise of the power conferred on him by the PF&A Act as it interfered with the management of the LECC’s operating priorities
- and his failure to enquire into the operational situation of the LECC were not decisions a rational decision maker could have made
- was made for an improper purpose and was biased, in that the Minister had approved expenditure for a member of NSW Police to travel to the conference, but denied the same to a member of the LECC, which oversights NSW Police
- breached s. 22 of the LECC Act, because it directed the LECC Commissioners in the exercise of their functions.
The Crown Solicitor and Solicitor General advised the expenditure breached the PF&A Act
On 7 September 2017, the Crown Solicitor advised the Office of Police (part of the Department of Justice) that:
The Minister’s authority to determine whether or not to approve a particular expenditure from the amount appropriated from the Consolidated Fund for the purpose of the Commission under the Constitution Act 1902 and the PF&A Act is not affected by s.22 of the LECC Act. These have different spheres of operation. It is not unusual for otherwise independent bodies to be subject to restrictions with respect to the use of public moneys.9
Subsequently, the Crown Solicitor asked the Solicitor General to review the matter of her previous advice. On 14 December 2017, the Solicitor General concurred with the Crown Solicitor’s advice. He concluded that:
Although LECC has a high degree of independence under its legislation, it is a body operating in the public sector and within the context of the broad policies of the government of the day in relation to public administration... it is not a function of LECC or its Commissioners to deal directly with money appropriated to the Minister out of the Consolidated Fund.10
The Secretary of the Department of Justice forwarded the Crown Solicitor’s and the Solicitor General’s advice to the Chief Commissioner.11 The Chief Commissioner continues to contest the Crown Solicitor’s and the Solicitor General’s advice.12
The Minister referred the matter to the Inspector of the LECC
In August 2018, the Minister referred the Chief Commissioner’s disclosure in Budget Estimates13 that he had been personally reimbursed for an expense concerning overseas travel by an officer of the LECC, to the Inspector of the LECC (the Inspector).14 The Inspector is the person, under s. 122 of the LECC Act, responsible for 'auditing the operation of the Commission for the purpose of monitoring compliance with the law of the State'. On 4 September 2018, the Inspector recused himself from investigating the Minister’s complaint.15 In his letter to the Premier dated 19 September 2018, he wrote ‘I informed the Minister for Police that I had acquired information in my capacity as Inspector of LECC (and in the discharge of my statutory functions) prior to receiving his letter of complaint…’. He further suggested to the Minister and the Premier that an Assistant Inspector be appointed to investigate the complaint under s. 121(1) of the LECC Act to give ‘proper and independent’ consideration to the Minister’s complaint.16
The Minister asks the Auditor General to audit the transaction’s compliance with the PF&A Act
An Assistant Inspector appointed under section 121 of the LECC Act can exercise any function of the Inspector, including ‘auditing the operations of the Commission’. The reasons why an Assistant Inspector was not appointed to investigate the matter are not apparent. Instead, on 9 November 2018, the Minister requested the Auditor General to conduct an audit of whether the expenditure complied with s. 12A of the PF&A Act.17
2 Second reading speech of Minister Troy Grant for the LECC Bill.
3 Per the definition of ‘authority’ in s. 4(1) of the PF&A Act and the definition of ‘Public Service agency’ in s. 3 of the GSE Act and Part 3 of Schedule 1 to the GSE Act.
In forming my adverse conclusion, I considered the Chief Commissioner’s argument that s. 22 of the LECC Act prevailed over those sections of the PF&A Act that deal with spending public money, and:
- the principles of statutory interpretation that might apply when a potential conflict between a general provision in one Act and specific provisions in another exists
- whether an apparent conflict exists
- whether the Chief Commissioner was entitled to incur the expenditure without Ministerial approval
- whether the Minister was lawfully entitled to withhold approval for the expenditure from the Chief Commissioner.
The principles of statutory interpretation apply where potential conflicts exist between Acts
A basic principle of statutory interpretation is that all legislation be given its full scope and effect. Courts, and thereby other interpreters, are not at liberty to consider any word or meaning as superfluous. The starting point is that all words must be given some meaning and effect.18 If there is an apparent conflict between two Acts, the pieces of legislation should be read in such a way as to avoid that conflict by giving the words the construction that produces the greatest harmony and the least inconsistency.19
One way conflict can be avoided is to apply the approach that a later general provision does not override an earlier specific provision.20 However, this approach is rebuttable, as a later general Act might also be said to qualify an earlier specific Act.21 The reverse can also apply, in that a later specific Act can be claimed to qualify or supersede an earlier general provision. In such a case, it is said that the later Act impliedly repeals the earlier. This is an easier case to make out because it is apparent the parliament has dealt with the specific instance and it would be reasonable to expect that it had considered any contrary general legislation. However, here again, the courts have qualified this approach by suggesting it should be presumed unlikely that a parliament would intend to contradict itself. If the specific Act was intended to qualify an earlier general Act, then the legislation would have spelt this out.
One must therefore always start from the premise that all words are to be given meaning and effect, and that meaning should enable both pieces of legislation to operate. It is only where the point is reached that it is not possible for both pieces of legislation to operate to their full extent that the approaches to resolving conflicts can be usefully invoked. The approaches may then be useful to determine which is the primary provision and which provision must give way to the requirements set out in that primary provision.
Is there an apparent conflict between the LECC Act and the PF&A Act that needs to be resolved?
No. The LECC Act deals specifically with the operational functions of the LECC, while the PF&A Act deals with the specific issue of expenditure by a delegate of the Minister.
The Chief Commissioner argues that s. 22 of the LECC Act is a specific provision and should take precedence over general delegation provisions in the PF&A Act, namely ss. 12 and 12A. He argues this because s. 22 deals specifically with the operation of the LECC and prohibits the Minister from directing the LECC in the performance of its functions. In his view, this includes the administrative and financial functions impliedly invested in the LECC for it to perform the specific functions referred to in the LECC Act.
However, it can also be readily argued that s. 22 of the LECC Act deals with the general issue of Minister's directions to the LECC and the PF&A deals with the specific issue of expenditure by a delegate of the Minister. While the expenditure of funds may be essential for the LECC to perform its functions, that expenditure is controlled by the PF&A Act, as it controls all expenditure from the Consolidated Fund. The PF&A Act is the specific legislation that relates to expenditure.
The issues that have arisen can be resolved by looking at the effect of the two Acts in their application to the facts. In my view, the PF&A Act and the LECC Act can be applied to the facts under consideration as they deal with different issues and are thereby capable of separate operation.
Was the LECC able to incur expenditure without Ministerial approval?
No. The PF&A Act applies to the LECC in the same way it applies to all NSW Government agencies. While the Minister had approved the LECC’s financial delegations under the authority vested in him by s. 12A of the PF&A Act, he reserved his right to approve all expenditure on overseas travel. This effectively required the LECC to obtain his approval for each instance of such expenditure. As the Minister did not approve the overseas travel request, the Chief Commissioner was not legally able to authorise the expenditure.
The PF&A Act determines how expenditure is to occur and sets out the conditions under which such expenditure can occur in New South Wales public sector agencies. Expenditure can ‘only be committed or incurred by an officer of an authority within the limits of a delegation in writing conferred on the officer by a person entitled to make the delegation’.22
Was the Minister lawfully entitled to withhold approval of the overseas travel expenditure?
Yes. If one accepts the premise that the PF&A Act determines the basis on which public money can be spent, it follows that the Minister could exercise the discretion reserved to him by financial delegation and withhold approval of the overseas travel expenditure for the LECC officer.
Section 22 of the LECC Act prevents the Minister from directing the LECC to send (or not to send) an officer to a conference. However, the Minister did not direct the LECC as to whether the person should or should not attend the conference. Rather, he exercised the responsibility given to him to determine how public funds were to be spent.
The appropriation to the LECC provided funding to the delegate of the Minister to support the performance of the agency’s functions. However, the expenditure of money for overseas travel was governed by ss. 12 and 12A of the PF&A Act. This gave the Minister discretion to approve or refuse to approve expenditure for overseas travel on a case by case basis. It follows from this that the Chief Commissioner was not entitled to spend money for overseas travel, even though in the Commissioner’s view it was beneficial to the performance of the LECC’s functions.
It may be suggested that the Minister’s refusal to provide funding for a particular function may have the same effect as directing an agency not to perform that function. NSW’s constitutional structure of government establishes that public money can only be spent in accordance with legislation and if expenditure requires a Minister’s approval, that approval establishes the ability of an agency to spend that money. That said, in reserving approval for certain types of expenditures, care should be exercised not to unduly interfere with the legitimate functions of independent agencies.
This assurance audit is a ‘direct engagement’ whereby the Auditor‑General provides the Minister and parliament with reasonable assurance about whether $8,074.66 spent on overseas travel by the LECC complied, in all material respects with s. 12A of the PF&A Act.
My audit was conducted in accordance with applicable Standards on Assurance Engagements (ASAE 3100 ‘Compliance Engagements’).
In conducting my audit, I have complied with:
- the independence requirements of Australian Auditing and Assurance Standards
- ASQC 1 ‘Quality Control for firms that Perform Audits and Reviews of Financial Reports and Other Financial Information, Other Assurance Engagements and Related Service Engagements’
- relevant ethical pronouncements.
Parliament promotes independence by ensuring the Auditor‑General and the Audit Office of New South Wales are not compromised in their roles by:
- providing that only parliament, and not the executive government, can remove an Auditor‑General
- mandating the Auditor‑General as auditor of public sector agencies
- precluding the Auditor‑General from providing non‑audit services.
I have reviewed documentation provided by the Minister and the LECC, gained an understanding of the LECC’s controls and processes for approving and making expenditure and made enquiries of LECC staff. I have also:
- gained an understanding of the relevant pieces of legislation and case law
- reviewed the advice of the Crown Solicitor and the Solicitor‑General
- sought independent legal advice on key aspects of the PF&A Act and the Law Enforcement Conduct Commission Act 2016 (the LECC Act) from an acknowledged expert in statutory interpretation
- conducted interviews with key persons
- reviewed the documentation listed in Appendix four.
Actions for Supply of secondary teachers in STEM-related disciplines
Supply of secondary teachers in STEM-related disciplines
The NSW Department of Education’s plans and strategies to respond to the demand for secondary teachers in STEM-related disciplines are limited by incomplete data and underperforming scholarship and sponsorship program. The Department does not collect sufficient information to monitor what disciplines teachers actually teach nor does it predict supply and demand for teachers by discipline and location. This restricts the Department’s ability to track and forecast the supply and demand for secondary teachers in STEM-related disciplines.
In recent years, Australian and international education policy has focused on improving outcomes in Science, Technology, Engineering and Mathematics (STEM) subjects. However, research has identified a shortage of qualified secondary teachers in STEM-related disciplines 1. This is projected to worsen due to a combination of student population increases, an ageing workforce, and fewer people going into teaching. Shortfalls are likely to be more acute in rural and remote areas, and areas of low socio-economic status.
The Department of Education (the Department) has a variety of strategies to encourage teachers to practise in locations or disciplines of need. These include scholarships for tertiary students going into teaching, sponsorships for teachers seeking approval to teach additional disciplines, and incentives to attract teachers to rural and remote locations.
This audit assessed the effectiveness of the Department's workforce plans and strategies in responding to the demand for secondary teachers in STEM-related disciplines. We assessed:
- how well the Department tracks the supply and demand for secondary teachers in STEM-related disciplines across NSW
- whether the Department has effective strategies to attract and retain secondary teachers in STEM-related disciplines.
There are two key shortcomings that fundamentally limit the effectiveness of the Department's plans and strategies to respond to the demand for secondary teachers in STEM-related disciplines. First, the Department is not accurately tracking the supply and demand for secondary teachers by discipline due to incomplete data. Second, not all scholarship and sponsorship places are allocated and many scholars withdraw from the programs before completion. The Department has recognised and started to address these problems with a new workforce model, revised incentives and scholarship programs.
The Department’s current workforce planning model does not provide the information needed to target workforce plans and strategies to areas of need. This is because it does not predict supply and demand for teachers by discipline and location. An internal review in 2017 acknowledged the limitations of this model. In response the Department developed a new model, which it is currently enhancing, to predict supply and demand for teachers by discipline and location. For this to be successful, the Department needs to monitor the level of out-of-field teaching and improve data on the willingness of teachers to work in particular locations.
The Department does not allocate all available scholarship and sponsorship places and around 30 per cent of recipients do not complete the term of their agreement. An internal review in 2017 highlighted that some programs were not targeting workforce need and that there were no key performance indicators to determine the overall effectiveness of these programs. However, scholarship programs and incentives are promoted well through social media and face-to-face events at Universities. Further, the Department has used findings from internal reviews of incentives and scholarships in 2016 and 2017 to inform recent changes to programs.
The Department has little oversight of access to practicum placements for pre-service teachers in areas of need. Professional experience agreements were established with each University in 2015 to improve the placement process for disciplines of need. Initial teacher education students must complete several ‘practicum placements’ before they can be qualified to teach in a school. Several universities we consulted reported difficulties finding practicum placements for pre-service teachers specialising in STEM-related disciplines. The Department is now revising the agreements to improve the quality of data it collects on the number, location and subject area of practicum placements.
The Department is not accurately tracking the supply and demand for secondary teachers by discipline due to incomplete data.
The Department’s current workforce planning model does not accurately predict supply and demand for teachers by discipline and location. An internal review in 2017 acknowledged the limitations of this model. In response the Department developed a new model which it is currently enhancing to address the findings of the review. For this model to be successful, the Department needs to monitor the level of out-of-field teaching and improve data on the willingness of teachers to work in particular locations. Further work also needs to be undertaken to refine the assumptions that underpin the Department’s workforce planning models as it starts to predict the need for teachers by discipline.
The Department has not publicly reported on the supply and demand for teachers by discipline since 2015. While it does report annually on its current workforce profile, this information is not detailed enough to inform future strategies or programs. More detailed public reporting may help the Department to influence the future supply of teachers by communicating its projected areas of need. Planned improvements to the Department's workforce planning model, as relayed to us, will add to the data available on areas of need. Once available, this should be reported publicly.
Recommendations
By December 2019, the Department of Education should:
- Improve its workforce planning model to better understand and communicate supply and demand for teachers by:
- determining the extent, and analysing the impact, of out-of-field teaching by permanent and temporary teachers in each school
- sourcing additional data to more accurately reflect teacher location preferences
- projecting supply and demand by subject level and geographic area
- regularly reporting on the supply and demand for secondary teachers in each discipline to communicate future areas of need to future teacher education students.
The Department's current scholarship and sponsorship programs are not allocating all available places and many scholars withdraw from the programs before completion. An internal review in 2017 raised several issues with the effectiveness of programs and the Department has started to revise its scholarship, sponsorship and incentive programs.
An internal review in 2017 highlighted that scholarship and sponsorship programs were not targeting workforce need, and that there were no key performance indicators to determine the overall effectiveness of these strategies. In addition, the review found that only 79 per cent of available scholarship placements are allocated each year, and 31 per cent of scholarship recipients withdraw prior to completing their required service period. The Department recently announced changes to its scholarship programs from 2019 onwards.
The Department has incentives to encourage teachers to work in rural and remote areas, including teachers in STEM-related disciplines. Incentives include access to priority transfers, rental subsidies and other allowances. Research conducted in 2016 examined the influence of incentives in encouraging teachers to work in rural and remote areas. The Department used findings of this research when updating its set of rural and remote incentives in 2017.
The Department promotes its scholarship and sponsorship programs through the teach.NSW website. It uses social media to direct applicants to this website. It also promotes its programs through careers fairs, University open days, and professional events. Past applicants have reported that the website clearly communicates eligibility criteria and the terms of agreement for all scholarship programs.
The Department could strengthen its relationship with universities to attract teachers to areas of need by collecting and analysing data on practicum placements, facilitating placements for scholarship recipients, and communicating predicted teacher needs by discipline.
Recommendations
By December 2019, the Department of Education should:
2. Implement changes to address the findings of the 'Teacher Scholarship Realignment' report, including by:
- testing a range of program designs with target candidates to determine the best options to attract more suitable applicants
- establishing key performance indicators, and setting targets, to better monitor the effectiveness of the programs
- reducing the number of scholars appointed to over-establishment positions
- increasing the proportion of scholars appointed to priority locations
- further analysing scholarship recipients career paths to inform future improvements to the scholarship programs.
3. Review its role in the practicum placement process of pre-service teachers by:
- analysing how many students each school accommodates per year, to ensure there are appropriate placements available for students in high needs disciplines
- working with universities to facilitate practicum placements for scholarship recipients
- establishing mechanisms for ongoing monitoring of its partnerships with universities to ensure they are meeting their aims.
Appendix one - Response from agency
Appendix two - About the audit
Appendix three - Performance auditing
Parliamentary Reference - Report number #313 - released 29 January 2019.