Background

1. The Public Service Act 1999 requires that Australian Public Service (APS) employees, agency heads and statutory office holders abide by the APS Code of Conduct. The APS Code of Conduct, consistent with duties under the Public Governance, Performance and Accountability Act 2013 (PGPA Act), requires officials to declare the receipt of gifts, benefits and hospitality. Collectively, these requirements establish obligations for officials and Commonwealth entities in relation to how they manage the provision and receipt of gifts, benefits and hospitality.

2. Section 27 of the PGPA Act states that an official must not improperly use their position to gain, or seek to gain, a benefit to themselves or another person, or to cause, or seek to cause, detriment to the entity, the Commonwealth, or any other person.¹ The National Anti-Corruption Commission Act 2022 also contains provisions against conduct that adversely affects (or could adversely affect) the honest and impartial exercise of any public official’s powers, functions or duties.²

3. The Australian Public Service Commission (APSC) publishes Guidance for Agency Heads – Gifts and Benefits. The principles underpinning this guidance are that:

• agency heads are meeting public expectations of integrity, accountability, independence, transparency and professionalism in relation to gifts and benefits; and
• there is consistency in relation to agency heads’ management of gifts and benefits across APS agencies and Commonwealth entities and companies.

4. The Australian Communications and Media Authority (ACMA), established under the Australian Communications and Media Authority Act 2005³ (ACMA Act), is a non-corporate Commonwealth entity covered by the Public Service Act 1999. ACMA is the Australian Government regulator for a range of legislation covering Australia’s telecommunications, broadcasting, radiocommunications, unsolicited communications and certain online content. The ACMA Act establishes ACMA as a Commonwealth statutory authority and the ACMA Chair as the accountable authority.⁴ The Online Safety Act 2021 establishes the eSafety Commissioner as a statutory office holder⁵, supported by ACMA, and sets out the eSafety Commissioner’s functions and powers. In accordance with section 184 of the Online Safety Act 2021, ACMA must make available members of the staff of ACMA to assist the eSafety Commissioner to perform their functions and exercise their powers and are subject to the directions of the eSafety Commissioner. As at 30 June 2023, ACMA had 525 staff working in Canberra, Melbourne and Sydney.⁶

Rationale for undertaking the audit

5. Section 27 of the PGPA Act states that an official must not improperly use their position to gain, or seek to gain, a benefit to themselves or another person, or to cause, or seek to cause, detriment to the entity, the Commonwealth, or any other person. Public service entities must meet public expectations of integrity, accountability, independence, transparency, and professionalism. Acceptance of a gift or benefit that relates to an official’s employment can create a real or apparent conflict of interest that should be avoided.⁷

6. Public confidence in Commonwealth entities and the APS can be damaged when gifts and benefits that create a conflict of interest are accepted or not properly declared. APSC states in its publication, APS Values and Code of Conduct in practice, that the risk of the appearance of a conflict can be damaging to public confidence:

The appearance of a conflict can be just as damaging to public confidence in public administration as a conflict which gives rise to a concern based on objective facts.⁸

7. This audit provides assurance to the Parliament that ACMA has complied with gifts, benefits and hospitality requirements.

Audit objective and criteria

8. The objective of the audit was to assess whether ACMA had complied with gifts, benefits and hospitality requirements.

9. To form a conclusion against the objective, the ANAO adopted the following two high-level audit criteria.

Did ACMA have effective arrangements in place to manage gifts, benefits and hospitality?

Were ACMA’s controls and processes for gifts, benefits and hospitality operating effectively in accordance with policies and procedures?

10. The audit examined the management of gifts, benefits and hospitality within ACMA over the period from 1 July 2021 to 30 September 2023.

Conclusion

11. ACMA is partly effective in managing and controlling the risks associated with giving and receiving gifts, benefits and hospitality. ACMA’s policies are largely in place to manage gifts, benefits and hospitality. The implementation of its policies is partly effective, with deficiencies in enforcing the requirements for: making declarations of gifts, benefits and hospitality; complying with declaration timeframes; and the completion of mandatory training and conflicts of interest declarations.

12. ACMA has established largely fit-for-purpose arrangements to manage the compliance requirements and risks associated with the management of gifts, benefits and hospitality. ACMA has implemented policies for gifts, benefits and hospitality that include an internal declaration process to support the public reporting requirements for all officials including the agency head. The policies also identify business functions where the acceptance or provision of gifts, benefits and hospitality may create increased risk of conflicts of interest, impacting on ACMA’s integrity and independence as the Australian Government regulator for communications and media services. ACMA’s policy does not include the requirement in the APSC Guidance to declare items based on their market value and items accepted by the agency head’s immediate families and dependants where it is related to the agency head’s official duties. ACMA’s suite of mandatory training covers obligations relating to gifts, benefits and hospitality. Risks associated with the acceptance or provision of gifts, benefits and hospitality, and the controls in place to manage them, have not been identified, assessed, and documented in ACMA’s Strategic Risk Register, fraud and corruption risk register, and divisional risk registers.

13. ACMA’s controls are partly effective in supporting its compliance with gifts, benefits and hospitality requirements. Analysis identified 19 instances of gifts, benefits and hospitality that were not declared in accordance with ACMA’s policy requirements. Of ACMA’s declarations of gifts, benefits and hospitality, 42 per cent did not meet ACMA’s declaration timeframe of 14 days. Mandatory training and conflicts of interest declarations were not completed as required in ACMA’s policies. For Senior Executive Service (SES) officers’ conflicts of interest declarations that were completed in 2022 and 2023, ACMA could not provide evidence that the ACMA Chair as the accountable authority had reviewed these as required by ACMA’s policy.

Supporting findings

Arrangements for managing gifts, benefits and hospitality

14. ACMA’s Strategic Risk Register contains an assessment of an integrity-related risk and controls such as declarations of conflicts of interests, training, enhanced identity authentication checks, and awareness of the National Anti-Corruption Commission. The risk assessment does not identify and assess controls to address potential impacts to integrity from gifts, benefits and hospitality. ACMA’s fraud and corruption risk register makes no reference to risks or controls arising from the provision or acceptance of gifts, benefits and hospitality. ACMA’s divisional risk registers, including for the Office of the eSafety Commissioner, do not identify controls to manage and reduce risks to its integrity, particularly where the provision and acceptance of gifts, benefits and hospitality may create conflicts of interest for specific functions and positions. (See paragraphs 2.6 to 2.14)

15. ACMA has established requirements for its staff pertaining to being offered, accepting and offering gifts, benefits and hospitality. ACMA’s policy framework aligns with the APSC Guidance except in the areas of reporting items at market value, and the declaration of items received by the agency head’s immediate families and dependants where it is associated with the agency head’s official duties. ACMA’s policy framework could be strengthened to cover the range of circumstances of gifts, benefits and hospitality impacting conflicts of interest, particularly given ACMA’s role as a regulator of communications and media services. (See paragraphs 2.18 to 2.51)

16. ACMA has established mandatory training arrangements that include learning relating to the Commonwealth Resource Management Framework, fraud awareness and the APS Values and Code of Conduct. These topics include the potential conflicts of interest impacts from gifts, benefits and hospitality. (See paragraphs 2.53 to 2.55)

17. ACMA has established policy and processes that centralise the reporting of receipt and provision of gifts, benefits and hospitality declarations. The process supports the collation of items that are reportable under the APSC Guidance and ACMA’s policy framework for reporting gifts, benefits and hospitality. ( See paragraphs 2.56 to 2.60)

Implementation and effectiveness of arrangements for managing gifts, benefits and hospitality

18. ACMA has implemented preventative controls through its policies and declarations for gifts, benefits and hospitality, mandatory staff training, conflicts of interest declarations and delegations. ACMA’s preventative controls do not enable ACMA to effectively manage its risks relating to gifts, benefits and hospitality. ACMA relies on staff knowing its policy requirements and declaring all gifts, benefits and hospitality in a timely manner. ACMA has relied on staff to have undertaken the training and declaring potential conflicts of interest as its key preventative controls. Measures for staff training, conflicts of interest declarations and the timeliness of declaring gifts, benefits and hospitality within 14 days have not been effectively enforced to ensure compliance. (See paragraphs 3.2 to 3.33)

19. ACMA has establish detective controls through its bi-annual PGPA Management Assurance Survey and quarterly reminders to relevant officials as the key mechanisms to detect non-compliance with its policy requirements. ACMA’s quarterly email reminders and conflicts of interest declaration process support detection for its management of gifts, benefits and hospitality requirements. (See paragraphs 3.38 to 3.40)

20. When non-compliance with gifts, benefits and hospitality policy requirements is identified, ACMA seeks the staff member involved to make the declaration for collation and publication, where applicable, onto the gifts, benefits and hospitality register on ACMA’s website. (See paragraphs 3.41 to 3.43)

21. The ACMA Chair reviews the quarterly gifts, benefits and hospitality register and approves its publication on ACMA’s website. These declarations are reliant on staff knowing the declaration requirements within ACMA’s Official Hospitality and Business Catering Guide or from having received the quarterly reminder emails, rather than assurance arrangements that validate control effectiveness for its gifts, benefits and hospitality requirements. (See paragraphs 3.44 to 3.48)

Recommendations

Summary of entity response

22. The proposed audit report was provided to ACMA. ACMA’s summary response to the audit is provided below and its full response is at Appendix 1.

The ACMA, including the Office of the eSafety Commissioner (eSafety), acknowledges the ANAO’s findings and agrees with, and has already taken steps to implement, the three recommendations identified in the Report. The ACMA remains committed to strengthening our controls for managing the risks associated with the giving and receiving of gifts, benefits and hospitality, including managing real and perceived conflicts of interest.

The ACMA will also implement all the additional opportunities for improvement identified in the Report in line with government best practice. Actions arising from the ANAO’s audit will include improved processes to ensure compliance with updated internal policies, additional reviews and cross-checking to avoid omissions and errors and better documentation of the assessment of conflicts of interest and actions to be taken where conflicts are identified. The ACMA thanks the ANAO audit team, who were professional and collaborative during their engagement with our staff.

Key messages from this audit for all Australian Government entities

23. This audit is part of a series of performance audits reviewing compliance with gifts, benefits and hospitality in selected non-corporate Commonwealth entities:

• Australian Communications and Media Authority;
• Department of the Treasury; and
• Murray Darling Basin Authority.

24. Key messages from this audit series will be outlined in an ANAO Insights product available on the ANAO website.

Introduction

1.1 The Public Service Act 1999 requires Australian Public Service (APS) employees and agency heads to uphold the APS Values and Code of Conduct.⁹ The APS Code of Conduct, consistent with duties under the Performance and Accountability Act 2013 (PGPA Act), requires officials not to improperly use their duties, status, power or authority to gain, or seek to gain, a benefit for themselves or any other person, or to cause, or seek to cause, detriment to the entity, the Commonwealth, or any other person. Collectively, these requirements establish obligations for officials and Commonwealth entities in relation to how they manage the provision and receipt of gifts, benefits and hospitality.

1.2 The National Anti-Corruption Commission Act 2022 contains provisions against conduct that adversely affects (or could adversely affect) the honest or impartial exercise or performance of a public official’s powers, functions or duties.

1.3 The Australian Public Service Commission (APSC) publishes Guidance for Agency Heads – Gifts and Benefits.¹⁰ The principles underpinning this guidance are that:

• agency heads are meeting public expectations of integrity, accountability, independence, transparency, and professionalism in relation to gifts and benefits; and
• there is consistency in relation to agency heads’ management of gifts and benefits across the APS agencies and Commonwealth entities and companies.¹¹

1.4 Agency heads must publish a register of gifts and benefits, valued at over $100 (excluding GST), they accept on a quarterly basis. A link to the register must also be provided to APSC for publication on APSC’s website.

1.5 In the course of their official duties, APS employees may interact with many individuals and organisations, and may receive offers of gifts, benefits and hospitality as part of these interactions. The acceptance of such offers can pose risks to public confidence in entities and the APS more broadly, particularly in meeting the APS Values and the public’s expectations of integrity, accountability, independence, transparency and professionalism.¹²

1.6 The Australian Communications and Media Authority (ACMA), established under the Australian Communications and Media Authority Act 2005¹³ (ACMA Act), is a non-corporate Commonwealth entity covered by the Public Service Act 1999. ACMA is the Australian Government regulator for a range of legislation covering Australia’s telecommunications, broadcasting, radiocommunications, unsolicited communications and certain online content. The ACMA Act establishes ACMA as a Commonwealth statutory authority and the ACMA Chair as the accountable authority.¹⁴ The Online Safety Act 2021 establishes the eSafety Commissioner as a statutory office holder¹⁵, supported by ACMA, and sets out the Commissioner’s functions and powers. In accordance with subsection 184 of the Online Safety Act 2021,¹⁶ ACMA must make available members of the staff of ACMA to assist the eSafety Commissioner to perform their functions and exercise their powers and are subject to the directions of the eSafety Commissioner.

Previous reports

1.7 Auditor-General Report No. 47 2017–18 Interim Report on Key Financial Controls of Major Entities reviewed the gifts and benefits policies of 26 major Australian Government entities, including all departments of state.¹⁷ This report identified:

• the merit of developing a whole of government gifts and benefits policy setting the minimum requirements for entities to include within their policies;
• regular review and monitoring of entities’ gifts and benefits policies increases accountability;
• centrally maintained gifts, benefits and hospitality registers assist entities in meeting accountability and transparency obligations; and
• transparency is enhanced through the publication of entities’ gifts and benefits registers on the internet.

1.8 The Australian Public Service Commissioner issued guidance on 18 October 2019 for reporting of gifts and benefits. The ANAO reviewed the status of the implementation of the guidance as part of Auditor-General Report No. 38 2019–20 Interim Report on Key Financial Controls of Major Entities. The report found that all 24 entities covered by the report had established a register of gifts and benefits, and that, except for one entity, all had recorded gifts and benefits received by the agency head which exceed $100. Publication of received gifts and benefits was undertaken by approximately 79 per cent of entities.¹⁸

Rationale for undertaking the audit

1.9 Section 27 of the PGPA Act states that an official must not improperly use their position to gain, or seek to gain, a benefit to themselves or another person, or to cause, or seek to cause, detriment to the entity, the Commonwealth, or any other person. Public service entities must meet public expectations of integrity, accountability, independence, transparency, and professionalism. Acceptance of a gift or benefit that relates to an official’s employment can create a real or apparent conflict of interest that should be avoided.

1.10 Public confidence in Commonwealth entities and the APS can be damaged when gifts and benefits that create a conflict of interest are accepted or not properly declared. APSC states in its publication, APS Values and Code of Conduct in practice, that the risk of the appearance of a conflict can be damaging to public confidence:

The appearance of a conflict can be just as damaging to public confidence in public administration as a conflict which gives rise to a concern based on objective facts.¹⁹

1.11 This audit provides assurance to the Parliament that ACMA has complied with gifts, benefits and hospitality requirements.

Audit objective, criteria and scope

1.12 The objective of the audit was to assess whether ACMA had complied with gifts, benefits and hospitality requirements.

1.13 To form a conclusion against the objective, the ANAO adopted the following two high-level audit criteria:

• Did ACMA have effective arrangements in place to manage gifts, benefits and hospitality?
• Were ACMA’s controls and processes for gifts, benefits and hospitality operating effectively in accordance with its policies and procedures?

1.14 The audit examined the management of gifts, benefits and hospitality within ACMA over the period from 1 July 2021 to 30 September 2023.

Audit methodology

1.15 To address the audit objective, the audit methodology included:

• examining ACMA’s documentation including its policies, procedures, risk assessments, registers, assurance and reporting activities relating to the management of gifts, benefits and hospitality;
• meetings with ACMA staff regarding the control frameworks and assurance activities in place to manage risks relating to gifts, benefits and hospitality; and
• testing the effectiveness of ACMA’s control framework for gifts, benefits and hospitality and assessing members’ and officials’ compliance with ACMA’s control framework using ACMA’s system tools²⁰ to review and analyse emails and other files.

1.16 The audit was conducted in accordance with ANAO Auditing Standards at a cost to the ANAO of approximately $368,481.

1.17 The team members for this audit were Yardstick Advisory, Jonathan Muller and Corinne Horton.

2.1 Section 16 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act)²¹ requires accountable authorities of Commonwealth entities to establish and maintain appropriate systems of risk oversight, management and internal control for the entity.

2.2 Section 27 of the PGPA Act states that an official must not improperly use their position to gain, or seek to gain, a benefit to themselves or another person, or to cause, or seek to cause, detriment to the entity, the Commonwealth, or any other person. Public service entities must meet public expectations of integrity, accountability, independence, transparency, and professionalism. Acceptance of a gift or benefit that relates to an official’s employment can create a real or apparent conflict of interest that should be avoided.

2.3 The Commonwealth Risk Management Policy²² supports the implementation of section 16 of the PGPA Act, by requiring non-corporate Commonwealth entities (including ACMA) to: formalise their approach to managing risks²³; embed risk management into the culture and work practices²⁴; define staff’s risk management responsibilities²⁵; and review the effectiveness of controls.²⁶

2.4 Commonwealth officials must also uphold and promote the Australian Public Service (APS) Values and Employment Principles and abide by the Code of Conduct contained in the Public Service Act 1999 (PS Act).

2.5 The audit assessed the alignment of ACMA’s arrangements for managing gifts, benefits and hospitality with the PGPA Act and APSC Guidance for Agency Heads – Gifts and Benefits, as well as examining whether training and education was available to officials.

Has ACMA identified appropriate arrangements for managing the risks of gifts, benefits and hospitality?

2.6 ACMA has established Accountable Authority Instructions (September 2023)²⁷ (AAIs), the Risk Management Policy and Guide (November 2021), and a Fraud and Corruption²⁸ Control Plan (November 2021), which set out ACMA’s risk management approach and requirements of its staff. This includes: the requirement to undertake and document risk assessments; the requirement to implement controls and treatments to address risks; information to staff about the risk management process; staff’s risk management responsibilities; and the availability of risk training.

2.7 In accordance with ACMA’s Risk Management Policy and Guide, and Fraud and Corruption Control Plan, ACMA’s risk assessments are documented in its Strategic Risk Register, fraud and corruption risk register and divisional risk registers.

2.8 ACMA’s Strategic Risk Register (dated 24 October 2023)²⁹ includes an integrity-related risk, which is described as: ‘public trust in the ACMA is adversely impacted by perceived or real integrity issues.’ This risk assessment identifies ACMA’s controls and treatments for the integrity risk, which are as follows.

• Conflict of interest declarations are required from staff and contractors for each specific procurement process in which they are involved.
• Provide comprehensive training to employees involved in identity proofing processes …
• Implement strong authentication mechanisms, such as biometrics, one-time passwords, or smart cards, to enhance the verification process and reduce the risk of impersonation …
• Enhanced focus on integrity elements through recruitment processes.
• As part of the onboarding process conduct criminal history, identity and employment referee checks for all new starters.
• The ACMA will proactively inform staff about the role and responsibilities of the National Anti-Corruption Commission (NACC) as an independent federal integrity commission tasked with investigating and reporting on serious or systemic corruption conduct.
• Ethical standards and codes of conduct will outline the principles of ethical and moral conduct and the expectations for behaviour and decision making.
• Internal Audit program includes coverage of areas of integrity risk including credit card usage, travel and leave management, gifts and hospitality and fraud arrangements.
• Implementation of the SES Performance Leadership Framework, an initiative out of the APS Reform to achieve ‘an APS that embodies integrity in everything it does.’

2.9 The integrity risk assessment does not describe controls for gifts, benefits and hospitality as a means of managing conflicts of interest (actual or apparent) that have the potential to impact ACMA’s integrity. ACMA has established controls for managing gifts, benefits and hospitality that apply to all officials, Authority members and the eSafety Commissioner.³⁰ The following controls are not included in the Strategic Risk Assessment.

• ACMA’s policies and procedures to support its compliance with the management of gifts, benefits and hospitality – ACMA’s Official Hospitality and Business Catering Guide, the People Management Instruction – Workplace Behaviour and Review, and the Human Resources Guide – Identifying and Managing Conflicts of Interest (analysis of these policies is outlined from paragraphs 2.18 to 2.45).
• ACMA’s Official Hospitality and Business Catering Guide includes the controls for all staff to make declarations of gifts, benefits and hospitality that have been offered and accepted by ACMA staff and gifts, benefits and hospitality provided by ACMA to external parties. It also requires a delegate’s review and approval of the declaration, to assist in identifying conflicts of interest and addressing the potential impacts to ACMA’s integrity from the offer and acceptance of gifts, benefits and hospitality.
• ACMA’s People Management Instruction – Workplace Behaviour and Review, and the Human Resources Guide – Identifying and Managing Conflicts of Interest specify the requirements for all staff to make annual declarations of conflicts of interest, including those that may arise from gifts, benefits and hospitality. While the risk assessment refers to conflicts of interest declarations for procurement activities, it does not refer to this annual declaration requirement.
• Training courses for staff are provided under ACMA’s policies People Management Instruction – Performance and Development and the Organisational Capability Framework. Related to the management of gifts, benefits and hospitality, mandated training modules cover the Commonwealth Resource Management Framework, fraud awareness and Integrity in the APS which includes the Values and Code of Conduct.

2.10 The risk assessment identifies a treatment relating to an internal audit of gifts and hospitality. An internal audit of gifts and hospitality has not been conducted, was not in ACMA’s internal audit programs for 2021–23 and is not planned to occur as part of ACMA’s internal audit work program for 2023–26.

ACMA’s fraud risk assessments

2.11 ACMA’s fraud and corruption risk register (May 2023)³¹ documents ACMA’s identification and assessment of its fraud and corruption risks. It does not refer to risks or controls arising from providing, accepting or being offered gifts, benefits and hospitality. For example, one fraud risk which is titled ‘Administrative’, has one source: ‘Exploit business processes for personal benefit’. The risk register does not specify which business processes could be exploited and how, or outline controls that address gaps and vulnerabilities.

ACMA’s divisional risk assessments

2.12 ACMA’s divisional risk registers do not identify or assess risks to integrity and conflicts of interest from the giving and receiving of gifts, benefits and hospitality. The risk registers do not refer to the impacts of gifts, benefits and hospitality to ACMA’s integrity, or document controls for managing gifts, benefits and hospitality to avoid actual or apparent conflicts of interest.

2.13 The APSC’s APS Values and Code of Conduct in Practice identifies the following ‘agency activities with heightened risk of conflict of interest’³²:

• regulating individual or business activities;
• procurement and recruitment;
• distribution of goods, services or funds (such as the allocation of grants); and
• making binding decisions.³³

2.14 As the regulator of communications and media services under a range of legislation³⁴, ACMA’s business functions include all of the above activities with heightened risk of conflicts of interest. ACMA’s risk assessments and controls, including for the Office of the eSafety Commissioner, do not reflect the nature of such heightened risks.

Has ACMA developed fit-for-purpose policies and procedures for the acceptance and provision of gifts, benefits and hospitality?

2.18 The APSC Guidance establishes the requirement that agency heads are to publish a register of gifts, benefits and hospitality that have been accepted and are above $100.³⁵ This disclosure includes gifts, benefits and hospitality accepted by their immediate families and dependants where it is related to the official duties of the agency head.³⁶ The APSC Guidance also stipulates a ‘strong expectation³⁷’ that items received by staff are also published on the register. Further, the APSC’s APS Values and Code of Conduct in Practice provides that ‘agencies may require the employees to disclose offers which were not accepted, for example, where the offer could be perceived as a bribe’.³⁸

2.19 ACMA’s Official Hospitality and Business Catering Guide requires officials to ‘estimate the value of any hospitality, gift or benefit received or declined, and record it using Declaration of Receipt of Official Hospitality, Gifts and Benefits Form’. ACMA’s Official hospitality and Business Catering Guide does not require the publication of offers declined by officials that have been recorded and reported.

2.21 ACMA has established, through its AAIs and its Official Hospitality and Business Catering Guide (policy framework), its requirements for its staff in managing gifts, benefits and hospitality. This policy framework stipulates the conditions for being offered, accepting and offering gifts, benefits and hospitality; the requirements for making declarations when being offered, accepting and offering gifts, benefits and hospitality; the circumstances for managing items over certain financial thresholds; and the internal delegations for approving the provision and acceptance of gifts, benefits or hospitality. Table 2.1 sets out ACMA’s policy framework’s acceptance, approval and reporting thresholds.

2.22 Where gifts are more than $100 and the items become the property of ACMA, the Official Hospitality and Business Catering Guide requires staff to seek approval to retain or to dispose via sale or donation. The treatment is required to be documented in the declaration form for gifts, benefits and hospitality and recorded on ACMA’s internal gifts, benefits and hospitality register. Analysis of ACMA’s and eSafety Commissioner’s internal gifts, benefits and hospitality register and compliance with threshold approval requirements are outlined at paragraph 3.32.

2.23 ACMA’s policy framework has established delegations for reviewing the offering and acceptance of gifts, benefits or hospitality. ACMA does not have a process or delegations for reviewing declarations of offers that have been declined, particularly to review such offers for risks to conflicts of interest.

2.24 Authority members travelled interstate to attend events such as: gala dinners, studio openings, and industry awards dinners which were declared. The total cost to ACMA of attending a gifted event is not considered when approving attendance. ACMA’s Official Hospitality and Business Catering Guide does not require officials to specify what the cost of flights, accommodation, meals and incidentals will be incurred by ACMA for attending gifted hospitality events, and weigh these against the perceived benefit to its operations. Further, it does not prompt officials to consider what other business could be conducted at the same time and location, if travel to the event is required. ACMA’s Official Travel Guide states that ‘official travel must only be undertaken where there is a demonstrated business need and where other communication tools, such as teleconferencing and videoconferencing, are not an effective option’. Declarations of gifts, hospitality and benefits submitted by Authority members did not document the business need of attending the event to justify travel.

2.26 ACMA’s policy framework establishes the types of items which should not be accepted and the conflicts of interest situations where the gift, benefit or hospitality is not to be accepted.

2.27 The Official Hospitality and Business Catering Guide states that: ‘ACMA officials must not accept offers of hospitality, gift or benefit that may lead to a real or perceived conflict of interest or a perception that ACMA is favouring the organisation.’ This includes:

• offers of sponsored travel including transport, accommodation or living expenses paid for by private organisations;
• offers from entities that are tendering for services to ACMA, are subject to ACMA’s investigations, or are participants in spectrum auctions; and
• offers of cash or equivalents such as gift vouchers or gifts of property … in particular those offered by another ACMA official.

2.28 The ANAO’s analysis of the implementation of ACMA’s Official Hospitality and Business Catering Guide is outlined at paragraph 3.10.

2.29 ACMA’s policy framework establishes requirements for providing gifts and official hospitality. Official hospitality at an ACMA event may be provided if:

• the meal or event being provided is for the purpose of establishing or maintaining relationships with key non-Commonwealth stakeholders;
• non-Commonwealth attendees outnumber the combined number of ACMA and Commonwealth attendees at the event; and
• ACMA delegates have approved entering into an arrangement to purchase the official hospitality, gift or benefit. These delegates are ACMA’s Chair, the Chief Executive Officer, General Manager — Corporate and Research, the Chief Finance Officer, the Authority Secretariat, the eSafety Commissioner and three ACMA staff supporting the eSafety Commissioner.

2.30 In relation to the provision of hospitality, the Official Hospitality and Business Catering Guide states that ‘public money must not be spent on staff functions’ such as: ‘routine section, branch or divisional meetings, celebratory or farewell lunches, and morning and afternoon teas, flowers for farewells, condolences, or other occasions related to a staff member’.

2.31 For Authority members³⁹, the Authority Code of Conduct⁴⁰ stipulates that they ‘should not accept gifts, subsidised travel and official hospitality where that acceptance could be perceived as improper influence’.⁴¹ Authority members ‘may accept customary official gifts, hospitality, tokens of appreciation and similar formal gestures’.⁴² The Authority Code of Conduct also includes that, ‘as a general rule, benefits should not be accepted from parties that have an active matter before the Authority … or during competitive processes for the allocation of grant funding or other resources (such as spectrum auction processes). At other times, the acceptance or provision of a benefit will be a matter for individual judgement’.⁴³

2.32 Table 2.2 compares the APSC Guidance and ACMA’s policy and practices for gifts, benefits and hospitality:

Table 2.2: ACMA policy and practices — alignment with APSC guidance

Key: ✔ ACMA’s policy and practices meet the APSC Guidance ✘ ACMA’s policy and practices do not meet the APSC Guidance.

Note a: APSC Guidance for Agency Heads – Gifts and Benefits [Internet], paragraph 2, available from https://www.apsc.gov.au/working-aps/integrity/integrity-resources/guidance-agency-heads-gifts-and-benefits [accessed 26 February 2024].

Note b: ibid., paragraph 4.

Note c: ibid.; APSC, Agency Head gifts and benefits registers [Internet], available from https://www.apsc.gov.au/agency-head-gifts-and-benefits-registers [accessed on 2 March 2024].

Note d: APSC Guidance for Agency Heads – Gifts and Benefits [Internet], paragraph 2, available from https://www.apsc.gov.au/working-aps/integrity/integrity-resources/guidance-agency-heads-gifts-and-benefits [accessed 26 February 2024].

Note e: APSC, Guidance for Agency Heads – Gifts and Benefits [Internet], paragraph 10, available from https://www.apsc.gov.au/working-aps/integrity/integrity-resources/guidance-agency-heads-gifts-and-benefits [accessed 26 February 2024].

Note f: ibid., paragraph 19.

Note g: ibid., paragraph 13.

Note h: ibid., paragraph 22.

Source: APSC and ACMA Official Hospitality and Business Catering Guide.

Valuation of gifts, benefits and hospitality

2.33 ACMA’s and eSafety Commissioner’s internal gifts, benefits and hospitality registers recorded 131 items that had been accepted by officials for the reporting period 1 July 2021 to 30 September 2023. Analysis of 78 items⁴⁴ recorded in ACMA’s and the eSafety Commissioner’s gifts, benefits and hospitality registers found one instance where staff estimated the value of the received items, one instance where the declared value was below market value, and one instance where the declaration did not include sufficient detail to determine the market value of the gift. Table 2.3 provides details of these instances.

Table 2.3: Gifts declared where declared value is below market value, or market value cannot be determined

Source: ACMA Gifts, Benefits and Hospitality Register.

2.34 In relation to the charity fundraising event gifted by the Australian Football League (AFL), the event’s tickets were advertised at $1,000 per person (at a table with the market value of $10,000 for 10 attendees). Two tickets to this event were accepted by ACMA officials supporting the Office of the eSafety Commissioner and were reported as $150.00 per person in value.⁴⁵ The internal declaration form had initially declared these items at $1,000 each. On review of the declaration form, the Head of Business Operations within ACMA’s Office of the eSafety Commissioner discussed the event with the declaring official and amended the declared value of the lunch to $150 each. The item was reported in ACMA’s gifts, benefits and hospitality register at the revised value of $150 each.

2.35 In relation to the two tickets to the 2023 AFL Grand Final, the declared value appeared to be lower than market value, based on a previous occurrence of the same event and analysis of publicly available information.⁴⁶ In this instance, two tickets to the AFL Grand Final (including lunch in the Olympic Room) were declared with a value of $150 each. ACMA advised the ANAO on 26 February 2024 that the value of $150 each was advised by the AFL following a telephone call. On 26 February 2024, ACMA advised the ANAO that the eSafety Commissioner’s gifts, benefits and hospitality register would be updated to reflect the market value, in line with the APSC Guidance. Two tickets to the previous year’s 2022 AFL Grand Final accepted by the eSafety Commissioner were recorded on the eSafety Commissioner’s gifts, benefits and hospitality register at a total value of $920.00. As of 13 May 2024, the eSafety Commissioner had not updated their gifts, benefits and hospitality register to disclose the AFL Grand Final 2023 tickets at market value.

2.36 The bottle of wine, chocolates and condiments declared at a value of $80 could not be verified, as there were no details about the products received in the declaration. In other declarations, the brand and type of wine was identified allowing an independent review of market value against the declared value.

2.37 Lack of guidance on quantification of values, and the ability for staff to estimate the value of a gift or benefit received, increases the risk that values may be under-reported and/or avoid the requirement for delegate pre-approval.

Conflict-of-interest policies

2.40 ACMA has established a People Management Instruction – Workplace behaviour and review (January 2019) and a Human Resources Guide – Identifying and Managing Conflicts of Interest (January 2024⁴⁷) (conflicts of interest policies). The conflicts of interest policies highlight to staff the statutory requirements to avoid conflicts of interest and the following management processes:

• all staff are to make conflicts of interest declarations on commencement, annually thereafter and on changes to personal circumstances;
• staff to make conflicts declarations associated with certain activities and decisions, such as procurement or recruitment;
• line managers’ sign off on the declarations and, where relevant, conflict management strategies; and
• SES officers declarations and management strategies to address real or apparent conflicts are provided to ACMA’s Chair for review.

2.41 ACMA’s Human Resources Guide – Identifying and Managing Conflicts of Interest includes the following examples that could create potential conflicts of interest:

• receiving gifts or hospitality from, or giving gifts and hospitality to, third parties;
• financial interests, including shares, directorships or commercial/business interests;
• family, personal, and social relationships;
• affiliations or contacts with professional lobbyists;
• political affiliations and activities;
• membership of or affiliations with community groups and non-government organisations;
• secondary employment outside the APS, including unpaid and voluntary work; and
• moving from the APS to outside employment in a similar field.

2.42 ACMA’s People Management Instruction – Workplace Behaviour and Review states that ‘ACMA employees should take all reasonable steps to avoid conflicts of interest. Steps which an employee may take may include:

• not accepting any gift, benefit or hospitality from external stakeholders, licensees, suppliers or contractors except in accordance with ACMA’s AAI or the Official Hospitality and Business Catering Guide;
• divesting shares in a company which is likely to be affected by action or inaction by ACMA in the area in which the employee usually works (for example, shares in a media company while working in the media control section); and
• disclosing any personal relationships or affiliations with prospective providers when involved in a procurement process.’

2.43 ACMA’s annual self-assessment and declaration of interests is supported by ACMA’s human resources information management system, which maintains the records of: staff’s interest declarations; the proposed management actions to address actual or apparent conflicts (where applicable); and their manager’s approvals for staff, or the Chair’s approval for SES officers.

2.44 The APSC’s APS Values and Code of Conduct in Practice identifies that agency heads must monitor compliance with the agency’s policy for disclosing and managing conflicts of interest.⁴⁸ ACMA’s Official Hospitality and Business Catering Guide does not refer to ACMA’s conflicts of interest policies, particularly to declare any actual or perceived conflicts of interest that may arise from being offered or accepting gifts, benefits or hospitality. This would support the monitoring of correlations between potential conflicts of interest and other business activities such as procurements or regulatory decisions. ACMA’s conflicts of interest and gifts, benefits and hospitality register processes operate separately in different business areas within ACMA — the conflicts of interest declarations sit within ACMA’s human resources function, while the official hospitality and gift declarations and reporting sit within ACMA’s finance function.

2.45 Analysis of the application of the conflict-of-interest policies is outlined at paragraphs 3.15 to 3.26.

Other related policies

2.46 As outlined in paragraph 2.13, the APSC’s APS Values and Code of Conduct in Practice identifies business functions that have a heightened risk of conflicts of interest, including those that may arise from gifts, benefits and hospitality.⁴⁹ ACMA has established:

• conflicts of interest declaration requirements for recruitment, which requires staff who are on recruitment panels to declare any actual or apparent conflicts of interest;
• AAIs for procurement and contracting, the Procurement and Contract Management Guide, ACMA’s Procurement Process Checklist and templates to support procurement documentation. Staff undertaking a procurement are required to identify and declare any actual or apparent conflicts of interest, and procurement templates outline conflict-of-interest sign-off requirements from procurement evaluators and the delegate; and
• an investigations policy to support how it investigates whether broadcasters, telecommunications companies and other businesses are following the law. ACMA’s investigations policy does not refer to conflicts of interest or the potential impact of gifts, benefits or hospitality in ACMA’s investigations activities.

2.47 ACMA managed the Regional and Small Publishers Innovation Fund (which ended at 30 June 2023) and continues to provide grants related to the National Plan to End Violence Against Women and Children – Online Safety Community Grants Program through ACMA’s Office of the eSafety Commissioner. ACMA developed a conflicts of interest policy for the Regional and Small Publishers Innovation Fund grant program which covered conflicts arising from the acceptance gifts, services or benefits. ACMA developed grant opportunity guidelines and conflicts declaration forms for the Preventing Tech-based Abuse of Women (PTAW) Grants Program and the Online Safety Grants Program (OSGP) delivered through ACMA’s Office of the eSafety Commissioner. The grant opportunity guidelines and conflicts declaration forms refer to financial benefits that could create actual or perceived conflicts. They do not draw staff’s attention to ACMA’s Official Hospitality and Business Catering Guide, and the actual or perceived conflicts that could arise from receiving gifts, benefits and hospitality from grant recipients.

Policy for benefits associated with official travel

2.49 The Whole of Australian Government Travel Arrangements⁵⁰ (Travel Arrangements) establish the mandatory policy requirements for official travel for approximately 140 entities, including ACMA.⁵¹ The Travel Arrangements establish the policy requirement that entities must select the lowest priced airfare that meets the practical business needs of the traveller and must not select fares or flights based on a traveller’s personal preference for a particular carrier.⁵² In relation to benefits associated with official travel, the Travel Arrangements establish the following requirements.

• Frequent flyer points — the accrual of frequent flyer points on official travel is not permitted.⁵³
• Status credits — the accrual of airline status credits is permitted on official travel.⁵⁴
• Promotional offers for bonus status credits or bonus frequent flyer points — promotional offers from airlines, such as bonus status credits or bonus frequent flyer points, should not be accepted. The Travel Arrangements stipulate that government officials should not obtain a benefit from Commonwealth funded activities, and that the acceptance of such an offer may influence the choice of airline for air travel.⁵⁵

2.50 The Remuneration Tribunal is the independent statutory body that administers the remuneration of key commonwealth offices⁵⁶, including the offices for ACMA’s Chair, Deputy Chair, Authority members and the eSafety Commissioner.⁵⁷ The Remuneration Tribunal (Official Travel) Determination 2023⁵⁸ provides:

• at section 14, that office holders are encouraged to use their agency’s travel-related provider arrangements where they exist; and
• at section 15, that frequent flyer points accrued at the Commonwealth’s expense are not to be used for private purposes.

2.51 ACMA has established an AAI for Official Travel and ACMA’s Official Travel Guide which includes the Travel Arrangements’ requirements relating to lowest practical fare, not accruing frequent flyer points, and the allowance to accrue status credits. It does not include the requirement that promotional offers from airlines on bonus status credits and bonus frequent flyer points should not be accepted.

Has ACMA developed effective training and education arrangements to promote compliance with managing gifts, benefits and hospitality?

2.53 ACMA has established its staff training arrangements through its People Management Instructions – Performance and Development and its Organisational Capability Framework. These documents establish the policy requirement that staff undertake training to support their knowledge of their workplace responsibilities.

2.54 ACMA has implemented training through ‘Learnhub’ where staff can access APS-wide training courses. Under ACMA’s Organisational Capability Framework, ACMA’s mandatory training regime for all staff includes the following courses.

• Commonwealth Resource Management Framework — covers the duties of officials, and managing and expending public resources.
• Fraud Awareness — covers officials’ obligations in relation to fraud prevention, detection and reporting.
• Integrity in the APS — covers the APS integrity framework and the APS Values and Code of Conduct, including conflicts of interest, and scenarios and examples relating to gifts and benefits that impact conflicts of interest risks.

2.55 Analysis of ACMA’s implementation of these training and education arrangements is outlined in paragraphs 3.2 to 3.4.

Has ACMA established appropriate monitoring and reporting arrangements for gifts, benefits and hospitality?

2.56 The APSC’s APS Values and Code of Conduct in Practice identifies, at section 5.3, that agency heads must monitor compliance with the agency’s policy for disclosing and managing conflicts of interest.⁵⁹

2.57 ACMA’s Official Hospitality and Business Catering Guide requires all staff to declare and report accepted gifts, benefits and hospitality worth over $20 (see Table 2.1) within 14 days. Declared items are reported to a centralised gifts, benefits and hospitality reporting function within ACMA’s Chief Finance Officer’s team. The Chief Finance Officer’s team sends emails on a quarterly basis to executive assistants supporting SES officers and Authority members, and administration officers, about the declaration requirements for gifts, benefits and hospitality. This process serves as a reminder to review the past quarterly period and to submit the approved declarations for gifts, benefits and hospitality.

2.58 To support its compliance with the reporting requirements outlined in the APSC Guidance, ACMA’s Chief Finance Officer’s team collates the declarations and the gifts, benefits and hospitality register on a quarterly basis in line with the APSC Guidance. ACMA’s Chair reviews and approves the release of the gifts, benefits and hospitality register. ACMA’s Chief Finance Officer is responsible for the public reporting of ACMA’s gifts benefits and hospitality register on its website.

2.59 ACMA has published a gifts, benefits and hospitality register on a quarterly basis on its website since the inception of the gifts, benefits and hospitality register publication requirements established by the APS Commissioner in October 2019. As the APSC Guidance requires agency heads to publish their gifts, benefits and hospitality registers on a quarterly basis, it may take up to three months to publish gifts, benefits and hospitality publicly. ACMA’s published gifts, benefits and hospitality register includes items valued above $100.00 declared by ACMA officials, including ACMA officials supporting the Office of the eSafety Commissioner. The eSafety Commissioner has also published a separate gifts, benefits and hospitality register since October 2019 on the eSafety Commissioner’s website.

2.60 For the period 1 July 2021 to 30 September 2023, the total value of declared gifts, benefits and hospitality received by ACMA and eSafety Commissioner was $14,400.48 excluding items listed as ‘unknown’ in value, which are the Qantas Chairmans Lounge and Virgin Australia lounge membership. Declarations of airline lounge memberships were first declared by the ACMA Chair and the eSafety Commissioner on 30 June 2023 and 1 July 2023, further details are provided in paragraph 3.6.

2.61 The ANAO’s analysis of instances of gifts, benefits and hospitality that would have met ACMA’s policy requirements for recording and reporting and were not declared is presented in paragraphs 3.12 to 3.14.

3.1 Section 16 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) requires accountable authorities of Commonwealth entities to establish and maintain appropriate systems of internal control.⁶⁰ Implementation of effective controls aim to manage identified risks.⁶¹ In accordance with the APSC’s APS Values and Code of Conduct in practice, compliance with the requirements for gifts, benefits and hospitality supports agencies to manage actual or perceived conflicts of interest.⁶²

Does ACMA have effective preventative controls for the management of gifts, benefits and hospitality?

Control for enforcing staff training

3.2 As outlined at paragraphs 2.53 to 2.55, ACMA has established mandatory training and the use of the ‘Learnhub’ platform to support staff’s learning and awareness of: the Commonwealth resource management framework, fraud awareness and the Commonwealth integrity framework, including the APS Values and Code of Conduct. This includes conflicts of interest and the potential impacts to conflicts from gifts, benefits and hospitality.

3.3 ACMA did not analyse data on training completion rates among its staff and has not enforced the mandatory training components in accordance with ACMA’s Organisational Capability Framework. The Organisational Capability Framework outlines mandatory training requirements for officials. ACMA was unable to demonstrate that its staff have met its mandatory training requirements.

3.4 Table 3.1 sets out ANAO’s analysis of the completion rates of ACMA’s mandatory training. Staff have met mandatory training requirements, with 71 per cent completing the integrity related training, while the SES officers’ completion rate is at 65 per cent. ACMA Authority members have not completed the integrity training.

Table 3.1: ANAO’s analysis of completion rates for ACMA mandatory training

Note a: ANAO tested completion rates for APS officials who held an Australian Government Payment Card during 1 July 2021 to 30 September 2023.

Source: ACMA Human Resources team.

Control for travel-related benefits

3.5 Travel-related benefits may include the earning of loyalty reward points, such as airline frequent flyer points and status credits.⁶³ In line with the Whole of Australian Government Travel Arrangements⁶⁴ and as outlined at paragraph 2.49, ACMA’s Official Travel Guide stipulates that all travellers are not to earn frequent flyer points and that they are permitted to earn status credits. ACMA’s Official Travel Guide does not specify that staff are not to accept airlines’ promotional offers for bonus status credits or frequent flyer points.

3.6 On 20 October 2023, the APSC Guidance was amended to include the reporting of exclusive memberships such as airline lounges.⁶⁵ During the period of 1 July 2021 to 30 September 2023, ACMA and the eSafety Commissioner reported airport memberships listed in Table 3.2.

Table 3.2: Airport lounge memberships reported

Source: ACMA information.

3.7 Under the Travel Arrangements, ACMA uses the stipulated travel management services supplier. This arrangement generally limits staff’s ability to accrue frequent flyer points on official travel from any airline.

3.8 The ANAO’s review of ACMA records and official travel bookings identified one ACMA official who registered to receive bonus status credit offers from an airline in 2018, 2020, 2021 and 2022. Correspondence from the airline to the official outlined information about promotional offers of double status credits or double frequent flyer points for bookings made within a promotional period. The relevant official had signed up to the promotional offer to receive double status credits with that airline, and made nine bookings involving 19 flights for official travel with that airline within the promotion periods for 2018, 2020, 2021 and 2022. ACMA’s flight booking records show that seven of the nine bookings did not select the ‘best fare of the day’, equating to $3,518.00 of potential savings.

3.9 In accordance with Department of Finance’s guidance on the Travel Arrangements⁶⁶, such bonus offers are not consistent with the Travel Arrangements and should not be taken, because travellers’ ‘acceptance of such an offer may influence the choice of airline for future official air travel’.⁶⁷ The acceptance of these benefits from Australian Government funded activity incentivise officials to preference specific airlines and limits ACMA’s ability to demonstrate that it has booked the cheapest practical airfare and has achieved value for money in these bookings.

Controls for declaring gifts, benefits and hospitality

3.10 ACMA’s controls for identifying gifts, benefits and hospitality for declaration in its quarterly gifts, benefits and hospitality register require staff’s knowledge of the requirements for self-declaration. This is supported by a quarterly email to executive assistants for SES officers, and secretariat support staff of the Authority, seeking declarations in line with the quarterly reporting requirements.

3.11 ACMA’s official hospitality, gifts and benefits register has been published on its website since October 2019.⁶⁸ In line with ACMA’s Official Hospitality and Business Catering Guide, items of gifts, benefits and hospitality above $20 are reported internally, and include a range of hospitality from communications and media industry bodies and companies, hospitality at fundraising events, hospitality at industry awards dinners, gifts such as tickets to sports events (including the AFL grand finals), and airline chairman’s lounge memberships.

3.12 ANAO analysis of events attended by SES officers and Authority members identified 19 additional gifts or hospitality events received by officials which were not disclosed via ACMA’s and eSafety Commissioner’s official hospitality, gifts and benefits registers. These items include: AFL Women’s Season Launch; AFL game tickets; and hospitality provided by regulated entities such as the Australian Broadcasting Corporation and Telstra. Based on the 131 instances of gifts, benefits and hospitality declared by ACMA and eSafety Commissioner, 19 undeclared instances represented a 13 per cent non-compliance rate. ACMA and the Office of the eSafety Commissioner confirmed to the ANAO during the period February 2024 to April 2024, that eight items (of the 19 instances) were not declared. These items are outlined in Table 3.3.

3.13 The ANAO’s review of SES officers’ calendars and email records identified 11 offers of events which were accepted by officials. The offers of these events would meet ACMA’s declaration and reporting requirements in ACMA’s Official Hospitality and Business Catering Guide. ACMA and the Office of the eSafety Commissioner advised the ANAO in April 2024 that these were instances of:

• staff attending and reported that they did not consume food or beverages, or had paid for their own meals;
• staff had accepted the invitation and did not attend; and
• for staff who had left the entity so attendance could not be confirmed.
• Details of these events are provided in Table 3.4.

3.14 Analysis also identified one gift provided by an ACMA official supporting the Office of the eSafety Commissioner to another entity was not declared in accordance with ACMA’s Official Hospitality and Business Catering Guide.⁶⁹

Controls for conflicts of interest

3.15 ACMA’s conflicts of interest policies identify that gifts, benefits and hospitality have the potential to impact staff’s conflicts of interest. While staff in receipt of gifts, benefits and hospitality may make the declaration of the gift, benefit or hospitality, there is no reconciliation process to identify whether an actual or apparent conflict of interest arising from the gift, benefit or hospitality has also been declared as part of the conflicts of interest declarations managed within ACMA’s Human Resources team.

3.16 ACMA’s conflicts of interest policies establish a requirement for all staff and SES officers to complete an annual self-assessment of interests and record their assessment of any conflicts of interest by 15 April each year. Analysis of the timeliness of the annual self-assessment is presented in Table 3.5.

Table 3.5: Timeliness of responses to the annual conflicts of interest declarations

Source: ANAO analysis of ACMA documentation.

3.18 ACMA’s conflicts of interest policies state that the ACMA Chair reviews interests disclosed by SES officers. For 2022 and 2023, ACMA could not provide documentary evidence of the Chair’s review of, and decisions made on, SES officers’ interests and agreed conflict management actions.

3.19 Review of ACMA’s gifts, benefits and hospitality register identified instances of gifts accepted from external parties who were also awarded contracts; or who were existing suppliers to ACMA. Staff had disclosed receiving gifts, benefits and hospitality from four suppliers (of which one supplier is also an industry body). Table 3.6 outlines these identified instances.

3.20 From the instances outlined at Table 3.6, the ANAO found two instances where a perceived or potential conflict could arise due to senior officials accepting hospitality and gifts during or immediately after tender and procurement processes. These instances include:

• An Authority member had attended an end-of-year lunch hosted by Free TV Australia⁷⁰ during an open tender period. Free TV Australia was successful in the tender and awarded a contract of $383,614.⁷¹ The Authority member was not a member of the procurement panel, and the PGPA delegate who approved the procurement evaluation report was the Chief Financial Officer.
• An official who was on the evaluation panel for The Architecture Practice procurement had accepted four gifts from the supplier between December 2021 to December 2023. On three occasions, the official had also approved a change order within one month of receiving the gift. The internal declarations submitted by the official stated that three of the gifts would be provided to ACMA’s Social Club and one gift would be retained, consistent with ACMA’s Official Hospitality and Business Catering Guide, due to the gifts being valued at below $100 in each of the four instances. The original value of the supplier’s contract was $80,960 (in July 2021).⁷² As at December 2023, the contract value (through 22 published amendments⁷³) is $1,872,112.⁷⁴

3.21 ACMA’s Official Hospitality and Business Catering Guide states that:

ACMA officials must not accept offers of hospitality, gift or benefit that may lead to a real or perceived conflict of interest or a perception that the ACMA is favouring the organisation. This includes: … offers from entities tendering for services to the ACMA, subject to the ACMA investigations, participants in spectrum auctions, or any entities that could create a conflict of interest.

3.22 No disclosures of potential conflicts were evident in relation to the Authority member who attended the hospitality event hosted by Free TV, or in relation to gifts provided to the official by The Architecture Practice.

3.24 ACMA’s Human Resources Guide – Identifying and Managing Conflicts of Interest does not specify the level of detail required from staff in relation to their declarations. The conflicts of interest policies say that ‘financial interests, including shares’ should be declared, however, they do not specify what entities or types of entities would be relevant to the declaration.

3.25 ACMA conflicts of interest declarations show that 40 officials (staff and SES officers) have declared that they own shares in regulated entities such as Telstra, a major telecommunications company regulated by ACMA. Of these disclosures, there were four instances where three staff and one SES officer did not disclose the value or quantity of the shareholdings.

3.26 For SES officers’ disclosures, the People Management Instruction – Workplace Behaviour and Review document states that disclosures ‘will be reviewed by the Chair who will discuss any issues raised and take appropriate action to manage the conflict of interest, including recording any agreed action with regard to identified conflicts.’ One SES officer’s disclosure relating to shares in a regulated entity identified that the disclosure was reviewed by the Authority Secretary rather than the Chair. On 3 April 2024, ACMA advised the ANAO that the Office of the ACMA Chair maintains a register of SES conflicts of interest. On 29 May 2024, ACMA provided an email from the Authority secretary to the Chair’s stating that SES conflicts declarations for 2021 were ready for their review. There is no evidence that ACMA’s Chair had reviewed the SES register of conflicts of interest for 2022 and 2023.

Declarations of interests to the minister

3.27 Subsection 29(1) of the ACMA Act states that ‘a disclosure by a member or associate member under section 29 of the PGPA Act (which deals with the duty to disclose interests) must be made to the Minister’.⁷⁵ The APSC’s APS Values and Code of Conduct in Practice outlines that the APS Code of Conduct requires all employees to disclose details of any material personal interest of the employee in connection with their employment, and that this requirement is analogous with section 29 of the PGPA Act.⁷⁶

3.28 Analysis of disclosures submitted to the Minister for Communications⁷⁷ found that not all personal interests declared by Authority members had been reported. On 16 February 2024, ACMA advised the ANAO that ‘the Chair of the ACMA will assess, through discussions with the Member, the materiality of the [share] holding’ to determine the items to be reported to the minister. The process for making this determination was not formally documented.

Timeliness of declarations of gifts, benefits and hospitality

3.30 ACMA’s Official Hospitality and Business Catering Guide requires all staff to make declarations of gifts, benefits and hospitality within 14 days, while the APSC Guidance requires declarations to be made within 31 days.

3.31 Analysis of ACMA’s compliance with these declaration timeframe requirements is outlined in Table 3.7.

Table 3.7: ACMA compliance with declaration timeliness requirements

Source: ACMA and the eSafety Commissioner internal gifts, benefits and hospitality register.

Pre-approving the acceptance of hospitality above the $300 threshold

3.32 ACMA’s Official Hospitality and Business Catering Guide requires all staff to obtain the delegate’s pre-approval before accepting hospitality valued at above $300. Between 1 July 2021 and 30 September 2023, there were six instances of hospitality valued at above $300 accepted and declared by ACMA staff, where one instance was pre-approved, two instances were attended by a delegate, and three instances that were not pre-approved in accordance with ACMA’s Official Hospitality and Business Catering Guide. In one instance involving an Authority member, the official hospitality declaration form noted that while the delegate was aware of the event and the event was verbally approved at an Authority meeting before the event, written pre-approval was not sought from the delegate because the value of the event was determined to be in excess of $300 after the event. The acceptance of two tickets to a fundraising event from the AFL which were reported as $150.00 would have required written pre-approval from ACMA’s Chair or Deputy Chair/CEO as the market value of these tickets was $1,000 each.

Provision of official hospitality

3.33 ACMA’s Official Hospitality and Business Catering Guide states that officials must not enter into an arrangement to provide any hospitality, gift or benefit or acquit business catering expenses unless they have been delegated to do so and the proposed expenditure is within their delegation. A review of ACMA’s internal gifts register identified seven instances where the provision of official hospitality had been declared. In two of these instances a delegate was attending the event and four instances were pre-approved. In one instance the approval date from the delegate as recorded in the register is after the event which is not compliant with ACMA’s requirements.

Does ACMA have effective detective controls for the management of gifts, benefits and hospitality?

PGPA Management Assurance Survey

3.38 ACMA requires SES officers to complete a bi-annual PGPA Management Assurance Survey (survey). The survey includes a question on non-compliance with gifts, benefits and hospitality requirements. The survey aims to detect instances of gifts, benefits and hospitality that may not have been previously reported. On 26 March 2024, ACMA advised the ANAO that the survey is based on a self-assessment and the accuracy of responses is not reviewed. Any exceptions from the survey are reported to the ACMA Chair. For five (of the 19) instances of undeclared items identified by the ANAO, the relevant SES officer did not report non-compliance via their responses to the survey. Details of the 19 instances of undeclared items are outlined in paragraphs 3.12 to 3.14.

Other detective controls

3.39 As outlined at paragraph 3.10, ACMA sends a quarterly email to executive assistants for SES officers, and secretariat support staff of the Authority, seeking declarations in line with the quarterly reporting requirements. The quarterly email reminder supports ACMA to detect gifts, benefits and hospitality that may not have been reported within its 14-day timeframe.

3.40 As outlined in paragraphs 3.15 and 3.16, ACMA’s conflict-of-interest declaration processes also support the detection of potential conflicts that may not have already been disclosed or declared through the gifts, benefits and hospitality reporting process. Improved conflicts of interest processes could support the detection process. Issues relating to undeclared items have been outlined in paragraphs 3.12 to 3.14.

Does ACMA have effective processes for managing identified non-compliance?

3.41 ACMA’s process for identifying non-compliance is its quarterly emails to executive assistants supporting SES officers and Authority members, and administration officers, to remind officials to submit their declarations for gifts, benefits and hospitality. The timing of the quarterly email reminders aligns with the quarterly public reporting requirement in the APSC Guidance. These quarterly reminders have assisted ACMA in engaging senior executive support staff in reviewing declarations and identify items that have not been declared. There have been other instances where staff have self-identified at a later point in time, that they had not submit a gift, benefit or hospitality declaration. ACMA’s process for identified non-compliance involves enforcing the policy requirement for recipients or providers of gifts, benefits and hospitality to document the matter in a declaration and seek the appropriate delegate’s approval. Where these items are estimated to be over $100, these are publicly reported through the gifts register in line with the APSC Guidance.

3.42 As outlined at paragraph 3.38, ACMA uses the bi-annual PGPA Management Assurance to report and detect non-compliance with obligations and reports exceptions to the Chair. On 26 March 2024, ACMA advised that the bi-annual reports are also provided to the Audit and Risk Committee (ARC). The ARC reviews the PGPA Management Assurance survey year-end report as part of reviewing ACMA’s financial statements.

3.43 As outlined at paragraph 2.44, ACMA does not have processes for identifying potential conflicts of interest that may have arisen in the gift recipient’s decisions, such as regulatory, investigatory, grant or procurement decisions related to the gift provider.

Has ACMA implemented a sound and evidence-based assurance framework for gifts, benefits and hospitality?

3.44 The ACMA Chair reviews the quarterly gifts, benefits and hospitality register and approves its publication on ACMA’s website.

3.45 ACMA’s management of gifts, benefits and hospitality does not include internal reporting for management on control effectiveness. Further, there is no enforcement of control requirements for mandatory training (paragraphs 3.2 to 3.4) and for conflicts of interest declarations (paragraphs 3.15 to 3.22). The policy requirements did not have assurance arrangements to monitor training completion rates and conflicts of interest declaration completion rates. There has been no specific management reporting about control effectiveness and enforcement to support assurance over ACMA’s policy compliance.

3.46 As outlined at paragraph 2.44, ACMA does not have review processes for its gifts register to assess the conflicts of interest risk associated with offerors. For example, a gift offeror may be directly linked with a grantee, supplier or a regulated entity. As a result, there is no risk-based reporting or discussion undertaken at the senior management level about the potential impact of gifts, benefits and hospitality. This also limits the effectiveness of controls supporting conflicts of interest and gift management.

3.47 ACMA requires SES officers to complete a bi-annual PGPA Management Assurance Survey. The survey includes a question about compliance with gifts, benefits and hospitality requirements. Non-compliance with gifts, benefits and hospitality requirements has not been detected by the assurance survey for the period reviewed during the audit. On 26 March 2024, ACMA advised the ANAO that the survey is based on a self-assessment and the accuracy of responses are not reviewed. Any exceptions from the survey are reported to ACMA’s Chair.

3.48 ACMA does not maintain assurance mechanisms to monitor the active management of declared conflicts from being offered or accepting gifts, benefits and hospitality; or from other potential conflicts (such as 40 ACMA staff having declared that they own shares in regulated entities).

Appendix 1 Entity response

Appendix 2 Improvements observed by the ANAO

1. The existence of independent external audit, and the accompanying potential for scrutiny improves performance. Improvements in administrative and management practices usually occur: in anticipation of ANAO audit activity; during an audit engagement; as interim findings are made; and/or after the audit has been completed and formal findings are communicated.

2. The Joint Committee of Public Accounts and Audit (JCPAA) has encouraged the ANAO to consider ways in which the ANAO could capture and describe some of these impacts. The ANAO’s Corporate Plan states that the ANAO’s annual performance statements will provide a narrative that will consider, amongst other matters, analysis of key improvements made by entities during a performance audit process based on information included in tabled performance audit reports.

3. Performance audits involve close engagement between the ANAO and the audited entity as well as other stakeholders involved in the program or activity being audited. Throughout the audit engagement, the ANAO outlines to the entity the preliminary audit findings, conclusions and potential audit recommendations. This ensures that final recommendations are appropriately targeted and encourages entities to take early remedial action on any identified matters during the course of an audit. Remedial actions entities may take during the audit include:

• strengthening governance arrangements;
• introducing or revising policies, strategies, guidelines or administrative processes; and
• initiating reviews or investigations.

4. During the course of the audit, the ANAO observed that ACMA had initiated a review of its Strategic Risk Register and controls to manage integrity risks.