Committees

The decision-making functions of the ACCC and AER are supported by the agency’s committee framework, which comprises statutory committees and corporate governance committees. The ACCC and AER governance structure is shown in Figure 4.1: ACCC and AER governance structure.

The ACCC makes statutory decisions through the Commission, aided by specialist subject-matter committees, called Commission subcommittees, comprising subgroups of Commissioners (see Figure 4.2: ACCC operational committees). Under the Competition and Consumer Act 2010 (Cth) (CCA), the ACCC can be directed to undertake in-depth inquiries into certain matters. Project inquiry boards have been established to provide strategic guidance in relation to these inquiries or as a direct result of recommendations made by the ACCC to continue to monitor markets.

The AER makes its decisions through its Board.

The agency is governed and its administration is overseen by governance committees.

Both the Commission and the AER Board may delegate certain other decisions and powers to Commissioners, members or senior employees.

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Figure 4.1: ACCC and AER governance structure

Commission

The Commission meeting is the forum in which the ACCC exercises its decision-making role under the CCA. Matters presented to the Commission for decision include mergers, authorisations and notifications; whether to begin court proceedings; and decisions about access to infrastructure facilities.

The requirements for Commission meetings are contained in s. 18 of the CCA.

The Commission is also discussed under About the ACCC and the AER.

Commission subcommittees

The Commission is supported by several subject-specific subcommittees, which help streamline the Commission’s decision-making. Each subcommittee comprises full-time members and associate members who have expertise on the particular subjects that the subcommittee considers. Table 4.3: Subject-matter committees of the ACCC-current roles and membership at 30 June 2020 provides a brief explanation of each subcommittee.

Inquiry project boards

Under the CCA, the ACCC can be directed to undertake in-depth inquiries into certain matters. Inquiry project boards have been established to provide strategic guidance in relation to these inquiries or as a direct result of recommendations made by the ACCC to continue to monitor markets.

Figure 4.2: ACCC operational committees

AER Board

The AER has its own Board, which is an independent statutory entity. Board members are appointed under Part IIIAA of the CCA, following a process outlined in the Australian Energy Market Agreement. The Board now comprises two Commonwealth members and three state/territory members. One member is appointed as the Chair and another member is appointed as the Deputy Chair. The Treasury Laws Amendment (2019 Measures No. 2) Act 2019 (Cth), which was passed in October 2019, approved the expansion of the Board from three to five members. It also established a new Deputy Chair position, which is a change from previous AER Board models.

The Board meeting is the forum in which the AER exercises its decision-making role under its statutory powers. During these meetings, the Board also provides strategic guidance and direction and oversees the AER’s performance.

As of July 2020 the Board will be supported by four subject-specific committees (Policy and Governance, Networks, Compliance and Enforcement, Markets) to provide the opportunity for timely strategic direction and informal discussion between Board members and employees.

The Board is also supported by employees who are engaged exclusively on energy matters. It also has access to the ACCC’s specialist legal and economic employees.

The Board is further discussed under About the ACCC and the AER.

Corporate governance

The ACCC and AER corporate governance framework provides oversight of the agency’s planning, performance, financial management, resource management and accountability.

The corporate governance framework consists of two types of committees:

• governance committees
• executive management committees.

Corporate Governance Board

The Corporate Governance Board is at the apex of the corporate governance structure. It meets at least 10 times each year (generally on a monthly basis). All ACCC Commissioners and the AER Chair and Deputy Chair are part of the Corporate Governance Board. The Audit Committee and Legal Committee support its work. The Corporate Governance Board, aided by these committees and by executive management committees, is well equipped to oversee our strong corporate and financial performance.

Responsibilities include:

• strategy setting and corporate planning
• internal budgets and resource management
• performance monitoring and reporting
• risk oversight and management
• agency accountability.

Members: Rod Sims (Chair), AER Chair or nominated representative, ACCC Deputy Chairs, AER Deputy Chair, all other ACCC Commissioners, and Chair of the Audit Committee (for so long as this role is filled by an ACCC Commissioner or AER Board member).

Legal Committee

The Legal Committee meets monthly and oversees the ACCC’s and AER’s processes and systems, including:

• managing and forecasting its pipeline of investigations and cases and the resulting legal and related expenditure, within its budget, and ensuring accurate information and forecasts relating to legal expenditure are provided monthly to the Corporate Governance Board
• overseeing the ACCC and AER’s pipeline of investigations and cases and the resulting legal and related expenditure and providing advice to the Board
• ensuring accurate information and forecasts relating to legal expenditure are provided monthly to the Board
• reviewing the ACCC’s approaches to enhancing the effectiveness of the reporting of the ACCC’s legal and related expenditure relevant to achieving outcomes in the interests of consumers and the economy
• advising the Board on the effectiveness of our internal enforcement and specialist legal and economic resourcing, coupled with our external legal services panel arrangements, to best meet the needs of the ACCC and AER
• providing advice generally to the Board on the ACCC and AER’s policies, processes and systems that relate to its standing and capacity as an agency that uses litigation and refers briefs for criminal prosecution as key regulatory tools.

Members: Sarah Court (Chair), Chief Operating Officer, senior managers.

Audit Committee

The Audit Committee provides independent advice and assurance to the Accountable Authority (the ACCC Chair) through the Corporate Governance Board. Its functions are to review, report on and provide advice on the ACCC and AER’s financial reporting, performance reporting, risk oversight and management, and system of internal control. The committee provides an annual written statement to the Chair setting out its views about these four areas. It meets four times per year, as well as holding an additional meeting focusing on the ACCC and AER financial statements. The committee also attends a meeting of the Corporate Governance Board at least once per year.

Members:

• Jim Cox PSM (Chair). Mr Cox has qualifications in economics and extensive experience in infrastructure regulation, economics and public policy. He has been a senior executive in state and federal government including roles with the Reserve Bank of Australia, the Department of the Prime Minister and Cabinet, and the Department of Social Security, as well as a member of the NSW Independent Pricing and Regulatory Tribunal. Mr Cox had been a Board member of the AER since 2013 and was appointed AER Deputy Chair in 2020. Mr Cox attended four of the five audit committee meetings in 2019–20. As an AER Board member he did not receive additional remuneration for his role chairing the Audit Committee.
• Kathy Grigg (independent member). Ms Grigg has qualifications in economics and accounting, and has held senior executive positions in various entities including that of Chief Financial Officer. She is a fellow of the Australian Institute of Company Directors and the Australian Society of Certified Practising Accountants. Ms Grigg is an experienced non-executive director across commercial and government entities and has significant experience as a Board chair and chair of audit, risk and compliance committees. Ms Grigg was appointed to the ACCC and AER Audit Committee commencing on 1 August 2018 and her term was renewed for a further two years commencing 1 August 2020. During 2019–20 she attended four of five audit committee meetings and received total remuneration of $10 937.50 (excluding GST).
• Don Cross (independent member). Mr Cross has qualifications in accounting, business administration and fraud control and has strong risk management, audit and financial management expertise. He is a member of the Australian Institute of Company Directors and the Australian Society of Certified Practising Accountants, and a fellow of the Institute of Chartered Accountants Australia and New Zealand. Mr Cross was a partner with KPMG for twenty-one years and has extensive experience delivering internal audit and assurance services to the public sector. He currently serves as chair of the Department of the Treasury Audit Committee and also its Financial Statement Sub-committee. Mr Cross was appointed to the ACCC and AER Audit Committee commencing on 1 June 2020 and attended his first meeting in July 2020.
• Clare Lewis was an independent member of the Audit Committee until 30 November 2019. During her time on the committee, Ms Lewis was a senior executive of the Australian Securities and Investments Commission (ASIC). She has extensive skills and experience in audit, finance and risk management, particularly in the context of a federal regulatory agency. Ms Lewis attended all three committee meetings in the period for which she was a member of the committee. As she served on the Audit Committee under a reciprocal arrangement with ASIC, Ms Lewis did not receive additional remuneration for this role.

The Audit Committee’s terms of reference are published on the ACCC website.

Executive management committees

The ACCC has a number of executive management committees that support the governance committees and help to ensure that the organisation is managed effectively.

Executive Management Board

The Executive Management Board manages the organisation in line with the expectations and limitations set by the Accountable Authority (the Chair) and the Corporate Governance Board.

Members: Chief Operating Officer (Chair), Executive General Managers, AER Chief Executive Officer, Chief Information Officer, Chief Financial Officer, General Manager Executive and Governance, General Manager People and Culture, and General Manager Strategic Communications.

The Executive Management Board is supported by subcommittees, led by senior managers, that provide advice to it as required.

Consultative committees

The ACCC and AER host and participate in a wide range of consultative committees and forums to encourage discussion around consumer, competition and regulatory issues relevant to our work.

Corporate and business plans

The ACCC and AER Corporate Plan 2019–20 meets the requirements of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) and Public Governance, Performance and Accountability Rule 2014, as well as our obligations under the Regulator Performance Framework. To achieve our purpose, each division of the agency develops an annual business plan that aligns our operations and risk management with the strategies and priorities set out in the Corporate Plan and the 2019–20 Portfolio Budget Statement. Our Corporate Plan is available on the ACCC website. This annual report describes the outcomes against both the Portfolio Budget Statement and the Corporate Plan.

Internal audit

The ACCC and the AER’s internal audit function provides assurance that we are meeting our obligations and adds value to the management and governance of our operations.

The ACCC and AER Internal Audit Plan sets out a four-year internal audit work program. This plan is reviewed annually with the oversight of the Audit Committee and is approved by the Corporate Governance Board. Audit topics are selected with reference to areas of significant risk and to ensure that all major functions, systems and divisions are audited on a regular basis.

The following internal audits were conducted during 2019–20:

• Market studies and inquiries
• Criminal cartel investigations
• Managing leave.

Risk management

Risk management is a key element of our strategic planning, decision-making and business operations. The ACCC and AER aim for best practice in managing risk by identifying priority exposures, addressing them through improvement strategies and contingency planning, and monitoring and reviewing continuing risk.

The ACCC and AER Risk Management Framework has been established to deliver on our obligations under the PGPA Act and developed in accordance with the Commonwealth Risk Management Policy.

This framework formalises our risk management practices, sets out our risk appetite and tolerance statement, and details policies and strategies to strengthen risk culture and review risk management performance. It covers the agency’s strategic risks, as well as agency-wide and operational risks that sit across and within the agency’s business units.

Business continuity

Business continuity management strengthens business resilience, lessening the likelihood of incidents that may adversely affect ACCC and AER operations and minimising the impact if such incidents occur.

The ACCC and AER Business Continuity Plan was created in April 2017 following a substantial review of the business continuity framework. The Business Continuity Plan is subject to regular review and testing to ensure it continues to meet the needs of the agency. The agency conducted a business continuity desktop exercise in 2019, and it revised the Business Continuity Plan to incorporate findings from the exercise in early 2020.

Fraud control

The ACCC and AER Fraud Control Plan 2019–23 directs the agency’s approach to fraud prevention, detection, investigation, reporting and data collection procedures in a way that meets our specific needs and complies with the PGPA Act and the Commonwealth Fraud Control Guidelines. This plan was last updated in August 2019 and will be reviewed every two years to ensure it continues to meet the needs of the agency.

Conflicts of interest

The ACCC and AER are proud of our ethical standards and ensure there is continued public confidence in our integrity and that of our employees. Given that we often investigate misrepresentation of information or unconscionable business conduct and determine charges that impact on the cost of living, it is vital that we maintain the trust of the Australian people, government and businesses.

To maintain confidence in our integrity, the ACCC and AER have strict procedures to identify and properly manage any personal interests that may cause an actual or perceived conflict of interest.

As statutory office holders, Commissioners and Board members are held to high standards of conduct. These standards arise from the high ethical standards we set ourselves and are backed by legislation, codes of conduct and the common law. The Code of Conduct for Commission Members and Associate Members was recently updated and is available on the ACCC website.

ACCC members and AER Board members must provide an annual statement of material personal interests and not participate in matters in which they, or a member of their direct family, may have a real or perceived conflict of interest. ACCC members are also required to disclose interests not previously declared at Commission and committee meetings. AER Board members are required to disclose conflicts of interest at a Board meeting.

The ACCC and AER conflict of interest policy provides for all conflict of interest action to be recorded using a suite of online forms. Conflict of interest action requires a self-assessment and, where a conflict is identified, disclosure of the conflict and a plan to manage the conflict. The policy also provides for reporting on completion of the conflict of interest to senior management.

In addition, SES-level employees must declare any material personal interests in connection with their employment at the ACCC, and this must include a management plan to address any conflicts that arise from the declaration of interests.

ACCC Commissioners, AER Board members and employees cannot accept gifts or hospitality, because acceptance could compromise, or be seen to compromise, the organisation’s integrity. In some limited circumstances, employees are able to accept hospitality or gifts, such as chocolates or wine. To ensure transparency, a $50 minimum threshold is in place for formal declarations. This allows us to display a high level of integrity and ethical behaviour in our day-to-day work.

The agency has a gifts and hospitality policy for ACCC Commissioners, AER Board members and employees. The ACCC publishes a gifts register, which is updated quarterly for Commissioners and the AER Board and biannually for employees.

APS Values and Code of Conduct

The ACCC and AER are committed to driving a respectful culture throughout the organisation and upholding and promoting the behaviours specified in the Australian Public Service (APS) Values and Code of Conduct.

Employees learn about the APS Values and Code of Conduct in corporate induction sessions, and additional awareness training is incorporated into leadership programs.

Alleged misconduct by employees may be dealt with under the APS Code of Conduct. In 2019–20 the ACCC and AER investigated five potential breaches of the code. Two employees were terminated, one employee was reprimanded and reassigned, one employee was reprimanded and fined and one claim was not substantiated.

Environmental sustainability

The ACCC and the AER remain committed to the development of best practice in environmental sustainability and performance. We have established an internal Environment Network to explore ways the organisation and its employees can contribute to sustainability and environmental objectives. Our environmental strategies to improve sustainability and performance are consistent with government sustainability policies. This includes principles set out in the Australian Government Information and Communications Technology (ICT) Sustainability Plan 2010–2015, which still has relevance as a guide to minimising the impact of our operations on the environment.

Mandatory environmental reporting

The ACCC and the AER are required to report annually on their environmental performance under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). This is covered in full in Appendix 6: Ecologically sustainable development

We adhere to the Energy Efficiency in Government Operations Policy, the Australian Government ICT Sustainability Plan 2010–2015, and the National Packaging Covenant, using recommended key performance indicators to meet requirements.