Auditor-General will not inquire into appointment of Telecommunications Commissioner

In July 2012, the Auditor-General received a request from Clare Curran MP to investigate the recent appointment process for the Telecommunications Commissioner. Ms Curran was concerned that the appointment process might have been flawed, because the position description that was initially published contained an error. The error was that the appendix that described the role and functions of the Commissioner was out of date and based on legislation that had been substantially amended.

The Auditor-General has decided not to inquire into this matter for the reasons set out below.

As the public sector auditor, the Auditor-General focuses on financial, governance, management, and organisational issues. All inquiry requests are therefore assessed to see if they raise systemic issues of this kind and involve questions of significant public interest. There are other accountability mechanisms specifically designed for resolving individual complaints about decisions, to hear appeals, and to consider the legality of public sector decision-making.

The Telecommunications Act 2001 requires the Minister to make a subjective assessment of whether a person meets the criteria for appointment. This fits with the traditional understanding that Ministers have a great deal of discretion when making appointments. There is no suggestion that the person who has been appointed does not meet the statutory criteria.

Accordingly, we have therefore concluded that this matter does not raise a significant issue about public administration and the use of public resources that would warrant investigation by this Office. The main issue is a legal question about whether a known mistake at the start meant that the final decision could not stand legally. Answering a legal question of that kind is the responsibility of the courts, through judicial review.