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Parliamentary Business Resources Bill 2017 [and] Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 97, 2016-17 10 MAY 2017

Parliamentary Business Resources Bill 2017 [and] Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017 Cathy Madden and Deirdre McKeown Politics and Public Administration Section

Contents

The Bills Digest at a glance ................................................... 2

Purpose of the Bill ............................................................... 3

Structure of the Bill ............................................................. 3

Background ......................................................................... 4

Committee consideration .................................................... 6

Senate Finance and Public Administration Legislation Committee

Senate Standing Committee for the Scrutiny of Bills .............. 7

Policy position of non-government parties/independents ..... 7

Position of major interest groups ......................................... 7

Financial implications .......................................................... 8

Special appropriations ............................................................. 8

Statement of Compatibility with Human Rights .................... 8

Parliamentary Joint Committee on Human Rights .................. 8

Key issues and provisions..................................................... 8

Other provisions ................................................................ 14

Concluding comments ....................................................... 14

Date introduced: 30 March 2017

House: House of Representatives

Portfolio: Finance

Commencement: The new Act established by the Parliamentary Business Resources Bill will commence on the sooner of:

• a day fixed by Proclamation, which cannot be before the Consequential and Transitional Provisions Bill receives Royal Assent or

• 12 months after both Bills have received Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Parliamentary Business Resources Bill 2017 home page, and the Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017 home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

May 2017.

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The Bills Digest at a glance The Parliamentary Business Resources Bill 2017 (PBR Bill) and the Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017 (PBR (CTP) Bill) are a continuation of a major overhaul of the remuneration and work expenses of members of the federal Parliament. These major reforms commenced earlier in 2017 with the retrospective abolition of the Life Gold Pass scheme and the establishment of the Independent Parliamentary Expenses Authority (IPEA).1

These two Bills implement a principles-based framework that delineates between parliamentarians’ remuneration and work expenses, as recommended by numerous reviews and audits.2 The PBR Bill introduces a ‘dominant purpose test’ as a purpose-based eligibility criteria for all work expenses, allowances and other public resources, which means that members can only use public resources for the dominant purpose of conducting parliamentary business. Parliamentary business includes four streams: parliamentary duties, electorate duties, party political duties and official duties. Members also have to ensure value for money in incurring expenses or claiming allowances or other public resources. The scheme introduces new obligations on members to use public resources appropriately, in good faith, ethically and be accountable for their use. Financial penalties can be imposed for contravention of these legislative requirements.

The 2017 Bills streamline the legislative basis of the framework into a single piece of legislation: the Parliamentary Business Resources Act 2017 (PBR Act) rather than the eight that underpin the existing scheme. The PBR (CTP) Bill repeals the Parliamentary Entitlements Act 1990 and the Parliamentary Allowances Act 1952 and removes from the other relevant Acts those provisions relating to members remuneration and work expenses.

The PBR (CTP) Bill makes consequential amendments to the legislation governing the IPEA to provide an additional function relating to rulings on travel resources. The Bill also provides transitional provisions to facilitate the move from the existing scheme to the new scheme.

1. See Parliamentary Entitlements Legislation Amendment Bill 2017 (now Act no. 4 of 2017), Independent Parliamentary Expenses Authority Bill 2017 (now Act no. 2 of 2017), and Independent Parliamentary Expenses Authority (Consequential Amendments) Bill 2017 (now Act no. 3 of 2017).

2. See, for example, J Conde and D Tune (Chairs), An independent parliamentary entitlements system: review, Department of the Prime Minister and Cabinet (PM&C), Canberra, February 2016; and B Belcher, J Conde, J Mason and A Fels, Review of parliamentary entitlements, (Belcher Review), Committee for the Review of Parliamentary Entitlements, Canberra, April 2010.

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Purpose of the Bills The purpose of the Parliamentary Business Resources Bill 2017 (the PBR Bill) is to establish a new framework for remuneration, business resources and travel resources for current and former members of the federal Parliament in a single legislative authority. Members’ parliamentary remuneration and entitlements will be separated into two streams: remuneration (base salary, additional salary, electorate allowance) and business resources (office facilities and equipment, travel expenses and so on). It establishes obligations on members of Parliament (members) for the use of public resources, establishes a ‘dominant purpose test’ and the requirement to ensure value for money.

Contravention of members’ obligations will incur a financial penalty. The Independent Parliamentary Expenses Authority (IPEA) will have an additional function of providing rulings on travel expenses for members, former members and members’ staff.

The PBR Bill continues a number of schemes operating under existing arrangements such as injury compensation for members and legal assistance for ministers.

The Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017 (PBR (CTP) Bill):

• amends the Independent Parliamentary Expenses Authority Act 2017 to change definitions and provide the additional function of ruling on travel expenses

• amends the Ministers of State Act 1952 to remove reference to salaries and allowances

• amends the Remuneration Tribunal Act 1973 to remove references to members of Parliament

• amends the Remuneration and Allowances Act 1990 to remove reference to senators, members, ministers and office holders of the Parliament

• repeals the Parliamentary Entitlements Act 1990 and Parliamentary Allowances Act 1952 and

• makes consequential amendments to five other Acts.

The Bill also includes provisions to facilitate the transition from the existing entitlements (work expenses) scheme to the new business resources framework.

Structure of the Bills The PBR Bill is divided into seven parts. Each part commences with a simplified outline of the part that explains the effect of the operative provisions.3

Part 1 contains general provisions, including commencement, the objects of the Act, a simplified outline of the Act and definitions.

Part 2 establishes the remuneration stream of the new framework and allows members to salary sacrifice.

Part 3 establishes the work expenses, allowances and other public resources stream of the new framework, setting obligations on the use of public resources and establishing that the Commonwealth must provide public resources.

Part 4 sets out the compliance and enforcement scheme applying to the new work expenses scheme, conferring power on IPEA to make rulings in relation to travel, and establishing a financial penalty scheme.

Part 5 provides for schemes that currently are available to members to be available under the new framework such as injury compensation, insurance and legal assistance to ministers.

3. Commonwealth drafting policy is to include a simplified outline of Acts and parts of Acts as aids to readers’ understanding of the operative provisions. See: Office of Parliamentary Counsel (OPC), Drafting direction no. 1.3A: simplified outlines, document release 1.2, reissued November 2016. The effect of subsection 13(1) of the Acts Interpretation Act 1901 is that a simplified outline will generally form part of the Act and can therefore be used for interpretation purposes, for whatever value it may have in construing the particular provision under consideration. For example, a simplified outline might be relied upon to help resolve ambiguities in, or doubts about, the scope of other provisions of an Act. See further: DC Pearce and RS Geddes, Statutory interpretation in Australia, 8th edn, LexisNexis, Chatswood, 2014, p. 197; H v Minister for Immigration and Citizenship (2010) 188 FCR 393, [2010] FCAFC 119 at [88]-[89]; and Gheko Holdings Pty Ltd v Chief Executive Medicare [2013] FCA 164 at [30]-[33]. The effect of section 15AB of the Acts Interpretation Act is that statements in the Explanatory Memorandum to a Bill that describe the intended effect of a simplified outline are also relevant to the degree of weight a court may place upon its provisions. (For example the Explanatory Memoranda to the PBR Bill and the PBR (CTP) Bill state that the provisions containing simplified outlines are not intended to be operative provisions and direct readers to rely on the substantive provisions of the Bills.)

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Part 6 sets out the functions of the Remuneration Tribunal in the new scheme.

Part 7 contains provisions dealing with miscellaneous matters, including the timing of the payment of remuneration and work expenses and the provision of resources, the setting of annual limits for ministerial salary, debt recovery for incorrect payments and a three yearly independent review of the Act.

The PBR (CTP) Bill is divided into preliminary sections and three schedules. The preliminary sections mainly deal with commencement of the Act. Schedule 1 relates to amendments of the Independent Parliamentary Expenses Authority Act 2017 and amendments to nine other Acts primarily to align terminology and cross-references to legislation. Schedule 2 repeals two Acts as their provisions are consolidated in the proposed PBR Act. Schedule 3 contains application and transitional provisions.

Background The Bills introduce the most extensive modification to parliamentary remuneration and entitlements since the introduction of the Parliamentary Entitlements Act 1990 which provided a legislative basis for parliamentary entitlements and benefits.4

Reviews and Australian National Audit Office (ANAO) reports Since 1990 numerous reviews and ANAO reports have recommended substantive changes to the governance framework of parliamentary remuneration and entitlements. These reports have exposed the complexity, piecemeal nature and opaque structural framework of the system. A number of issues such as the lack of definitions of key terms such as ‘parliamentary business’, contradictory interpretation, overlapping array of legislation, determinations and regulations, and lack of transparency have been raised consistently.5

These reviews also identified the need for a principles-based legislative system to underpin parliamentary entitlements, an improvement to the protocol for handling allegations of misuse of entitlements and more detailed and frequent reporting of entitlements.6

The main recommendations in the 2010 report by the Committee for the Review of Parliamentary Entitlements (the Belcher Review) concerned the establishment of two streams: parliamentary remuneration to be determined by the Remuneration Tribunal and ‘tools of trade’ entitlements to be governed by a single piece of legislation with the Special Minister of State ‘determining tools of trade entitlements under the regulating power of legislation’.7 These proposals were supported by the 2016 report on an independent parliamentary entitlements system (2016 Independent review), which recommended that the Government establish ‘remuneration’ and ‘work expenses’ as the two streams of support provided to parliamentarians and create a single legislative framework for the determination and administration of ‘work expenses’.8

Both the 2010 Belcher Review9 and the 2016 Independent review10 made recommendations regarding a legislative basis for the entitlements of former Prime Ministers.

Existing legislative framework The complexity of the current system is illustrated by the number of Acts, Regulations and Determinations governing parliamentary remuneration, entitlements and superannuation:

• Independent Parliamentary Expenses Authority Act 2017

• Ministers of State Act 1952

4. D Beddall, ‘Second reading speech: Parliamentary Entitlements Bill 1990’, House of Representatives, Debates, 8 May 1990, p. 67. 5. For examples see C Madden and D McKeown, Parliamentary remuneration and entitlements: 2016 update, Research paper series, 2015-16, Parliamentary Library, Canberra, 9 June 2016; Conde and Tune, An independent parliamentary entitlements system: review, op. cit.; C Madden, ‘Parliamentary entitlements: inquiries and reports’, FlagPost, Parliamentary Library blog, 10 August 2015; Belcher Review, op. cit.;

Remuneration Tribunal, Review of the remuneration of members of parliament: initial report, Remuneration Tribunal, Canberra, December 2011; Australian National Audit Office (ANAO), Administration of travel entitlements provided to parliamentarians, performance audit report, 42, 2014-15, ANAO, Canberra, 2015. 6. The BeIcher Review, op. cit. 7. Ibid., Recommendations 1-3, pp. 12-13. 8. Conde and Tune, An independent parliamentary entitlements system: review, op. cit., Recommendation 6. 9. The Belcher Review, op. cit., Recommendation 35, p. 95 10. Conde and Tune, An independent parliamentary entitlements system: review, op. cit., paragraph 9.6, p. 136.

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• Parliamentary Allowances Act 1952

• Parliamentary Contributory Superannuation Act 1948

• Parliamentary Entitlements Act 1990 and Parliamentary Entitlements Regulations 1997

• Parliamentary Superannuation Act 2004

• Remuneration and Allowances Act 1990

• Remuneration Tribunal Act 1973 and Remuneration Tribunal Determinations.

The 2016 Independent review noted that previous reviews of the parliamentary entitlements system had concluded:

… the system, having evolved piecemeal and without adequate rationalisation, is complex, confusing, incomplete, contradictory and immensely difficult to follow and administer. The problem has worsened as demands on, and external scrutiny of, parliamentarians has increased. The complexity of the system’s rules and regulations imposes stress on parliamentarians and their staff, and on those who administer the system. Parliamentarians can too easily run foul of rule interpretations or eligibility requirements. This has undermined public confidence, not only in parliamentarians, but also in the system itself.

11

Impetus for change Two entitlement breaches provided the final impetus for reform, although there have been numerous alleged breaches in the past.12 Firstly, the former Speaker, Bronwyn Bishop’s, chartering of a helicopter to take her to a party fundraiser led to her resignation as Speaker and the setting up of the review of an Independent Parliamentary Entitlements System by the then Prime Minister Tony Abbott in 2015.13 Secondly, the 2017 controversy around the alleged misuse of parliamentary entitlements that culminated in the resignation of the Minister for Health, Sussan Ley, led Prime Minister Malcolm Turnbull to announce the establishment of the Independent Parliamentary Entitlements Authority and flag further legislative reform relating to a new business expenses scheme.14

On 9 February 2017 the Government introduced the Parliamentary Entitlements Legislation Amendment Bill 2017, with the primary purpose of abolishing access to the Life Gold Pass for all current and former eligible members, except for former Prime Ministers. The Bill introduced a legislative basis for the 25 per cent penalty loading where a member of parliament makes a travel claim in excess of entitlement, strengthened the declaration on the travel form and limited the dependent child travel entitlement. The Bill also established a legislative basis for recovering overpayments made under the Parliamentary Entitlements Act.15

On the same day the Prime Minister introduced the Independent Parliamentary Expenses Authority Bill 2017 (IPEA Bill) and a Consequential Amendments Bill. The IPEA Bill is modelled on the British Independent Parliamentary Standards Authority (IPSA).16 In his second reading speech introducing the IPEA legislation the Prime Minister stated that his Government would present ‘a further significant Bill’ to the Parliament which ‘will improve the legislative and administrative framework of the parliamentary work expenses system—further encouraging transparency, accountability and value for money’.17

11. Conde and Tune, An independent parliamentary entitlements system: review, op. cit., paragraph 6, p. 2. 12. See, for example, M McKenna and G Chambers, ‘Taxpayers still being taken for a ride’, The Australian, 10 January 2017, p. 1. 13. T Abbott (Prime Minister), Transcript of press conference: Sydney: 2 August 2015: speaker; reform of parliamentary entitlements, media release, 2 August 2015.

14. M Turnbull (Prime Minister), Transcript of press conference: Sydney: 13 January 2017: resignation of Sussan Ley from Cabinet; parliamentarians' entitlements; visit from the Prime Minister of Japan, Shinzo Abe, media release, 13 January 2017. 15. For more detail on this Bill see C Madden and D McKeown, Parliamentary Entitlements Legislation Amendment Bill 2014, Bills digest, 56, 2014-15, Parliamentary Library, Canberra, 25 November 2014. 16. For more details on IPSA see C Madden and D McKeown, ‘Independent Parliamentary Expenses Authority’, FlagPost, Parliamentary Library

blog, 7 February 2017. 17. M Turnbull (Prime Minister), ‘Second reading speech: Independent Parliamentary Expenses Authority Bill 2017’, House of Representatives, Debates, 9 February 2017, p. 457.

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Overview of Parliamentary Business Resources (PBR) Bill 2017 The Bill implements many of the recommendations of the 2016 review An Independent Parliamentary Entitlements Scheme.18 Key recommendations of the Review included:

• establishing a ‘principles-based system’ in which parliamentarians would consider whether their work expenditure represents an efficient, effective and ethical use of public resources

• changing the terminology from entitlements and benefits to ‘work expenses’ and creating a single framework for parliamentarians’ work expenses

• adopting an inclusive definition of ‘parliamentary business’ and

• clarifying and strengthening the division of responsibilities between the Remuneration Tribunal, the Parliamentary Entitlements Act 1990 and the Special Minister of State.

Sixteen of the recommendations related to aspects of parliamentarians’ travel. Another key theme of the findings and recommendations was increasing transparency through more detailed and more frequent reporting.19 The review also recommended significant non-legislative reforms, including investment in enhanced information technology systems and audit and assurance programs to support the administration of parliamentarians’ work expenses, and enhanced oversight and accountability.20

As noted above, the Bill splits the existing scheme into remuneration and work expenses, in an attempt to make the scheme less complex and provides a high level principles-based framework. Much of the detail of what constitutes Parliamentary business and the description of business and travel resources will be provided in regulations and determinations. (Most determinations are non-disallowable legislative instruments.)

The Bill establishes a ‘dominant purpose test’ to be applied by members of parliament when claiming expenses, allowances and public resources.21 When asked whether members of parliament could lodge a claim for attending a party fundraiser, Special Minister of State, Senator Scott Ryan, indicated that a ruling on this matter would be made by the IPEA.22

However, under clause 6 of the PBR Bill the Minister is required to make a determination in relation to activities that constitute one of the four streams of parliamentary business and may determine activities to be excluded. The Minister may make a determination imposing a general exclusion on attendances at party fundraisers under subclause 6(3). Alternatively, it would be open to the Minister to prescribe specific activities to be parliamentary business under subclause 6(4) that a member could potentially carry out at a fundraising event—for example, giving speeches or holding consultations with attendees on matters of public policy.

The PBR Bill also implements key recommendations of the 2016 Independent review by strengthening penalties for entitlements breaches and the obligation of members to ‘spend money in a way that is ethical, prudent and cost-effective’.23 The Bill also assumes authority for the existing entitlements framework currently described in the Parliamentary Entitlements Act 1990.

Role of the IPEA The PBR Bill and the PBR (CTP) Bill should be considered in conjunction with the role of the IPEA which has advising, monitoring, reporting, auditing and processing functions relating to the work expenses, travel expenses and travel allowances of members of parliament, certain travel expenses of former members of parliament and the travel expenses and travel allowances of staff employed under the Members of Parliament (Staff) Act 1984.24

18. Conde and Tune, An independent parliamentary entitlements system: review, op. cit. 19. Ibid., pp. 4-16 and Chapter 6. 20. Ibid., especially Chapters 6 and 7 and Recommendations 30-34. 21. Parliamentary Business Resources Bill 2017, clause 26. 22. See, for example, K Murphy, ‘New travel expenses rules would still let MPs attend sporting events, Scott Ryan signals’, Guardian Australia

(online), 28 March 2017. 23. S Ryan (Special Minister of State), Government to introduce further reforms to politicians’ expenses, media release, 28 March 2017; Conde and Tune, An independent parliamentary entitlements system: review, op. cit., Recommendations 5, 6 and 35. 24. Independent Parliamentary Expenses Authority Act 2017, section 10.

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Under the provisions of these Bills the IPEA will have the additional function of making ‘authoritative rulings on whether a parliamentarian’s travel satisfies the new rules’.25

The IPEA plays a key role in furthering transparency and accountability in the new framework through more frequent reporting on work resources of members of parliament and increased monitoring and auditing of travel expenses.

Committee consideration Senate Finance and Public Administration Legislation Committee The two Bills have been referred to the Senate Finance and Public Administration Legislation Committee for inquiry and report by 9 May 2017. Details of the inquiry are at Committee homepage.

Senate Standing Committee for the Scrutiny of Bills At the time of writing the Committee had not reported on the Bills.

Policy position of non-government parties/independents At the time of the release of the 2016 Independent review the Greens reportedly described its recommendations as 'a lukewarm collection of half-measures'.26 Senator Nick Xenophon has called for a number of changes to the parliamentary entitlements system including greater independent oversight of the system.27

The Bills are not controversial. At the time of writing, non-government parties and independent members of Parliament do not appear to have commented publicly on the Bills. The Opposition, the Australian Greens and other minor parties and independents supported the recent reforms to the remuneration and work expenses framework. Although the Senate crossbench and one Liberal Senator moved amendments to the Parliamentary Entitlements Legislation Amendment Bill 2017 and the Independent Parliamentary Expenses Authority Bill 2017 these were negatived.28 Senator Nick Xenophon has also supported significantly higher penalty loadings than the 25 per cent proposed in the Bill.29

Position of major interest groups The Association of Former Members of the Parliament of Australia (AFMPA) has raised concerns in relation to the function of the Remuneration Tribunal under clause 45 of the PBR Bill to determine that portion of salary not to be considered for superannuation purposes for beneficiaries of the Parliamentary Contributory Superannuation Act 1948 (PCSS). The AFMPA maintains that the delinking of salary should only occur if other expense allowances such as electorate allowance are rolled into parliamentary salary.30 In 2016 these matters were raised in the High Court in a case brought by four former members of Parliament who had argued that the changes to the calculation of the retiring allowance and to the Life Gold Pass entitlement introduced in 2011 and 2012 amounted to an unlawful acquisition of their property by the Commonwealth under section 51(xxxi) of the Constitution. In its judgement on the 12 October 2016 the High Court held, by a majority that the Members of Parliament (Life Gold Pass) Act 2002 and its subsequent amendment were not laws with respect to the acquisition of property.31

25. Ryan, Government to introduce further reforms to politicians’ expenses, op. cit. 26. S Medhora, ‘Politicians should prove travel is good value and job-related, says report’, Guardian Australia (online), 23 March 2016. 27. N Xenophon (Senator), About bloody time. PM's announced entitlement reforms closely resemble bill introduced by Nick Xenophon in 2015, media release, 16 January 2017.

28. Parliament of Australia, ‘Parliamentary Entitlements Legislation Amendment Bill 2017 homepage’, Australian Parliament website and Parliament of Australia, ‘Independent Parliamentary Expenses Authority Bill 2017 homepage’, Australian Parliament website. 29. N Xenophon, ‘Major parties fail to support tougher penalty for entitlements misuse’, Nick Xenophon, blog, 20 February 2017. 30. Association of Former Members of the Parliament of Australia, Submission to the Senate Legislation Finance and Public Administration

Committee, Inquiry into the Parliamentary Business Resources Bill 2017 and Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017 [Provisions], submission no. 2, 19 April 2017. 31. Cunningham & others v Commonwealth of Australia & Anor (2016) 335 ALR 363, [2016] HCA 39.

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A submission by the Department of Finance outlines the recommendations of the Belcher Review and the legislative history of the de-linking of the setting of base salary and additional salaries from the retiring allowance of PCSS members.32

Financial implications The PBR Bill will have no direct financial impact.33 The PBR (CTP) Bill has nil financial impact.34

Special appropriations Clause 59 of the PBR Bill provides an appropriation for the making of payments under or for the purposes of the proposed PBR Act, and for making other payments in the course of administering that Act.35

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bills’ compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bills are compatible. In particular, it is said that the PBR Bill will enhance and promote parliamentarians’ right to work and their right to just and favourable conditions of work under Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights.36

Parliamentary Joint Committee on Human Rights At the time of writing the Joint Committee on Human Rights had not reported on the Bills.

Key issues and provisions—Parliamentary Business Resources Bill Part 1, Division 2 (clauses 5-9) inserts key definitions underpinning the new framework, such as dependent child (the definition in the Parliamentary Entitlements Act 1990 had only changed in February 2017), member of parliament (which is revised from the definition in the Independent Parliamentary Expenses Authority Act 2017 to include a minister and the presiding officers), and value for money.37 Clause 6 provides the core definition of ‘parliamentary business’ although the detail of its constituent parts—‘parliamentary duties’, ‘electorate duties’, party political duties’ or ‘official duties’—is to be determined by the Minister (subclause 6(4)). Subclause 6(2) clarifies that parliamentary business cannot be used for the dominant purpose of providing a personal benefit for the member or someone else nor for pursuing a commercial purpose. The Minister can also make a determination under subclause 6(3) specifically excluding an activity from parliamentary business. Subclause 6(6) provides that a Ministerial determination made under clause 6 will be a legislative instrument that is not subject to disallowance. The Explanatory Memorandum states that the non-disallowable status of Ministerial determinations is intended to ‘provide members with certainty about what activities are covered at any particular time’.38

Clause 7 defines the term ‘office holder’. It allows the Minister to determine, by legislative instrument, that a person who holds a specified position or who performs specified functions may be an office holder for the

32. Department of Finance (DoF), Submission to the Senate Legislation Finance and Public Administration Committee, Inquiry into the Parliamentary Business Resources Bill 2017 and Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017 [Provisions], submission no. 3, 5 May 2017.

33. The 2016-17 Budget provided funding for the departmental and administered items relating to members’ remuneration and work expenses, for example, Appropriation Act (No. 1) 2016-2017, Schedule 1, Department of Finance, Outcome 3. The main financial implications of the new scheme will relate to the establishment of the Independent Parliamentary Expenses Authority (IPEA) as a separate entity. The Public Governance, Performance and Accountability (Section 75 Transfers) Determination 2016-2017 under the Public Governance, Performance and Accountability Act 2013 authorises the transfer of the administration of, and provision of advice on, parliamentary travel expenses and allowances functions from the Department of Finance to the IPEA. This Determination does not cover the expected costs of setting up the IPEA as an executive agency such as appointing the board, additional staff, enhanced ITC and lease of new premises. The funding for IPEA will be expected in the 2017-18 Budget—see Explanatory Memorandum, Independent Parliamentary Expenses Authority Bill 2017, p. 2.

34. Explanatory Memorandum, Parliamentary Business Resources Bill 2017 (PBR Bill), p. 6; and Explanatory Memorandum, Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017 (PBR (CTP) Bill), p. 2. 35. See further: Explanatory Memorandum, PBR Bill, pp. 47-48. 36. The Statement of Compatibility with Human Rights can be found at pages 50-51 of the Explanatory Memorandum to the PBR Bill and

pages 20-21 of the Explanatory Memorandum to the PBR (CTP) Bill. 37. See Parliamentary Entitlements Legislation Amendment Act 2017, Schedule 2, item 2; and Independent Parliamentary Expenses Authority Act 2017, section 7. 38. Explanatory Memorandum, PBR Bill, p. 12.

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purposes of the proposed PBR Act. Legislative instruments made under clause 7 will be subject to disallowance (given the absence of a provision stating that they are non-disallowable).39

Clause 9 sets out examples of expenses that may be incurred in connection with domestic travel and overseas travel.

Part 2, Division 2 (clauses 14-16) provides the legislative authority for the payment of remuneration to members as determined by the Remuneration Tribunal, thereby establishing the first pillar of the new framework. Clause 14 provides for members to be remunerated at a rate determined by the Remuneration Tribunal. Subclauses 14(2) and (3) provide that remuneration must include base salary, and may include electorate allowance and an additional salary determined for office holders. Subclause 14(4) outlines other payments that may be included as remuneration such as provision of a private plated car, an allowance instead of a private plated car, or payments in relation to internet or telephone services provided to the member’s private residence.

Clause 15 allows for the payment of allowances and expenses to former members determined by the Remuneration Tribunal.

Clause 16 provides for the first time a legislative basis for goods and services to be provided to a former Prime Minister. The Prime Minister will determine the provision of the goods, services, premises, equipment or other facilities. Previously access to such items had been at the Prime Minister’s discretion. Subclause 16(3) indicates that while the Determination is a legislative instrument it is not subject to disallowance. The Explanatory Memorandum states that this is intended to prevent determinations in relation to former Prime Ministers from becoming subject to the political process.40

Part 2, Division 3 (clauses 17-23) provides for members of Parliament to be able to salary sacrifice into a superannuation fund. Under the current scheme this is provided for in Schedule 3, Part 1 of the Remuneration and Allowances Act 1990. That Schedule is repealed by item 56 of Schedule 1 to the PBR (CTP) Bill.

Part 3 (clauses 24-35) of the PBR Bill sets up the second pillar of the new framework: work expenses, allowances and other public resources. This Part strengthens the responsibility and accountability of members to use public resources appropriately and for the dominant purpose of parliamentary business for which they have been claimed. Under the existing scheme each member is individually accountable for his or her use of entitlements as they are required to certify that use was within entitlement. The precise form of the certification required depends on the nature of the entitlement, but generally it includes certifying that the entitlement has been used for parliamentary or electorate purposes. The certification process is an integral part of the accountability framework that, among other things, serves to protect members from unwarranted criticism regarding their use of entitlements. The other integral part of the accountability framework is the regular checks of parliamentary entitlements usage conducted by Finance.41

Clause 25 provides that members are personally responsible and accountable for their use of public resources, must be prepared to justify publically their use and must act ethically and in good faith in using and accounting for the use of public resources in conducting their parliamentary business. Under the existing scheme Finance provides advice that ‘it is in the member’s interest to be satisfied that the use is publicly defensible’— subclause 25(3) gives a legislative basis to this test.42 The Explanatory Memorandum states that ‘while no express consequences flow from a failure to comply with these obligations under the Bill, a member can expect that acting inconsistently with these obligations will not meet community expectations around the use of public resources’.43 It also provides some examples of members’ obligations of personal responsibility, accountability and good faith.44

Clause 26 establishes a key provision in the new framework, which is the ‘dominant purpose test’ applying to the use and claiming of expenses, allowances and public resources. Members must only claim expenses, allowances

39. Legislation Act 2003 , sections 42 and 44. 40. Ibid., p. 17. 41. DoF, ‘Entitlements handbooks: senators and members’ entitlements handbook’, DoF website, 9 October 2015. 42. Ibid.

43. Explanatory Memorandum, PBR Bill, p. 20. 44. Ibid., p. 21.

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or any other public resources when the dominant purpose of incurring that expense or claiming that allowance or public resource is conducting the member’s parliamentary business (subclause 26(1)). Subclause 26(3) prohibits a member from using public resources provided by the Commonwealth, which will be prescribed in regulation as set out in clause 33, other than for the dominant purpose of conducting the member’s parliamentary business. Members cannot use public resources provided by the Commonwealth under clause 33, for commercial purposes (subclause 26(4)). Importantly, a member who contravenes his or her obligations under clause 26 may be liable to pay a penalty loading under clause 38. (discussed below).

The Explanatory Memorandum also provides some guidance about the intended meaning and application of the ‘dominant purpose test’.45 It states that the term ‘dominant purpose’ is intentionally undefined in the Bill and is intended to attract its ordinary meaning. It also refers to the remarks of the 2016 Independent review in recommending a ‘dominant purpose test’, which drew an analogy to a similar test under the law of evidence (relating to legal professional privilege in a lawyer-client communication) and suggested that ‘[a]n activity would fall within the scope of “parliamentary business” where undertaken for the “ruling”, “prevailing” or “most influential” purpose of conducting parliamentary business’.46 The Explanatory Memorandum also states:

The test in the context of the Bill would be whether, but for the parliamentary business, the member would have undertaken the activity; or incurred or claimed the expense, allowance or other public resource. Where they would have taken the same action without the parliamentary business, the test is not satisfied. 47

Members will also have to ensure value for money when incurring expenses, claiming allowances or using other public resources (clause 27). Value for money requires the use of public money to be efficient, effective and economic (clause 5). The Explanatory Memorandum states that the term ‘value for money’ is ‘generally consistent’ with the expectations placed on the use of public resources by Commonwealth officials under the Public Governance, Performance and Accountability Act 2013 (PGPA Act).48 It also indicates that clause 27 is intended to be interpreted consistently with the views of the 2016 Independent review about the matters that a member should take into consideration in determining whether expenditure represents value for money—for example, whether it is commensurate with the scale and scope of the relevant parliamentary business; whether there are alternative ways of meeting the need; and consideration of the whole-of-life costs of an asset.49

Clause 28 imposes an obligation on members not to make claims or incur expenses in breach of conditions. Persons who contravene this obligation may be liable to pay a penalty loading under clause 38.

Clause 29 clarifies that the Commonwealth does not have to provide public resources if a member breaches the dominant purpose test, the value for money test or relevant conditions.

Part 3, Division 3 creates the legislative basis upon which the Commonwealth must pay work expenses and allowances and provide other public resources. Clause 30 specifies that the Commonwealth must pay the travel expenses of a member as prescribed by regulations. Clause 31 specifies that the Commonwealth must pay travel allowance, as prescribed by regulations and for domestic travel, allowances as determined by the Remuneration Tribunal.

Clause 32 obliges the Commonwealth to pay for work expenses and other public resources that are prescribed in regulations that relate to the member’s conduct of parliamentary business. The Explanatory Memorandum indicates that this clause is intended to cover, for example, the costs of commercial services for printing, or the purchase of office requisites or stationery. It notes that the work expenses incurred or other public resources to be provided under this clause are generally at the discretion of the member acting within any conditions imposed by the regulations.50 Clause 33 obliges the Commonwealth to provide public resources that are determined by the Minister under regulations or, in exceptional circumstances, by written determination (provided that the Minister is satisfied that the expenses or public resources provide value for money).

45. This will be relevant to the interpretation of clause 26: Acts Interpretation Act, section 15AB. 46. Explanatory Memorandum, PBR Bill, p. 22. 47. Ibid.

48. Ibid., p. 23. 49. Ibid.

50. Ibid., p. 25.

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Part 4 (clauses 36-39) establishes a legislative scheme for compliance with and enforcement of the requirements of the non-remuneration stream (work expenses, allowances and other public resources) under Part 3. Division 2 of Part 4 (clause 37) provides that the IPEA may give written rulings in relation to members’ travel expenses or travel allowances. The ruling can be initiated by the IPEA on its own motion or on application by the member to whom the ruling relates. The IPEA is an independent statutory authority to commence on 1 July 2017, an interim body commenced operation on 3 April 2017.51 The IPEA’s functions relate to the work expenses, travel expenses and travel allowances of members of parliament, former members and members’ staff. The functions include advice on travel related work expenses, monitoring travel costs, processing claims to the contracted travel service provider, audits and regular reports on work expenses, travel expenses and allowances.

Subclause 37(4) provides that a ruling is conclusive evidence of the matters it deals with (for example, a finding that a member contravened his or her obligations under clauses 26-28 discussed above) although provision is made for circumstances in which the ruling ceases to be conclusive evidence of the matters stated in the ruling (subclause 37(5)). A ruling by the IPEA is not a legislative instrument (subclause 37(7)).

Schedule 1 of the PBR (CTP) Bill makes consequential amendments to the IPEA Act to change the terminology from ‘work expenses’ and ‘travel expenses’ to ‘work resources’ and ‘travel resources’, revise definitions and include an additional function for the IPEA of giving rulings on travel resources.

Part 4, Division 3 of the PBR Bill provides for a penalty scheme for the new framework, similar to the penalties contained in the Parliamentary Entitlements Act 1990. Subclause 38(4) provides for a 25 per cent loading if members contravene obligations relating to the use of public resources (clauses 26, 27 and 28). If a member repays the payment within 28 days they will not incur a 25 per cent loading (clause 38(3)). If a member relies on personal advice from the IPEA that is proven to be incorrect the member will not incur a penalty (clause 58). The 25 per cent loading measure was first given a legislative basis in 2017 with the passing of the Parliamentary Entitlements Legislation Amendment Bill 2017, where it was applied to incorrect claims of certain travel benefits.52 The PBR Bill allows for the recovery of a debt through the repayment by a member (with or without the penalty loading) or through reduction of future payments to the member (subclauses 38(3) and 38(6) and clause 57). The Explanatory Memorandum provides a useful diagram setting out the process for penalties and enforcement.53

Part 5 (clauses 40-42) relates to other resources such as an injury compensation scheme and legal assistance and insurance.

Clause 41 allows the Minister to determine an injury compensation scheme for members and the spouse of the Prime Minister. The current injury compensation scheme is based on the scheme applying to Commonwealth public servants under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Claims under the scheme are administered by Comcare.54 The current injury compensation scheme commenced following the amendment of the Parliamentary Entitlements Act 1990 by the Parliamentary Entitlements Amendment (Injury Compensation Scheme) Act 2016.55 It was established by the Parliamentary Injury Compensation Scheme Instrument 2016 and applies to injuries suffered from 1 January 2016 onwards.56 Subclause 41(2) of the PBR Bill allows the new injury compensation scheme to be determined by the Minister be in the same form as the current scheme. Despite the repeal of the Parliamentary Entitlements Act by item 2 of Schedule 2 to the PBR (CTP) Bill, the Parliamentary Injury Compensation Scheme Instrument 2016 will be continued in existence under item 4 of Schedule 3 to the PBR (CTP) Bill.

Clause 42 allows regulations to be made for the provision of resources to a member.

51. Independent Parliamentary Expenses Authority website. 52. C Madden, Parliamentary Entitlements Legislation Amendment Bill 2017, Bills digest, 62, 2016-17, Parliamentary Library, Canberra, 14 February 2017.F 53. Explanatory Memorandum, Parliamentary Business Resources Bill 2017, p. 29. 54. Ibid., p. 33. 55. P Pyburne, C Lorimer and C Madden, Parliamentary Entitlements Amendment (Injury Compensation Scheme) Bill 2016, Bills digest, 87, 2015-

16, Parliamentary Library, Canberra, 24 February 2016. 56. Parliamentary Entitlements Act 1990, subsection 9A(4).

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Subclause 42(2) provides for legal assistance for ministers and provision of insurance to members and persons connected to the member. Under the existing scheme legal assistance is provided under Part 3 of the Parliamentary Entitlements Regulations 1997 and insurance under regulation 3EB. Subclause 42(3) provides a range of matters that regulations may deal with in regard to resources, such as specify requirements or impose limits and other conditions.

Part 6 (clauses 43-47) relates to the functions of the Remuneration Tribunal. This Part has to be read in conjunction with the PBR (CTP) Bill.

The Remuneration Tribunal Act 1973 (RT Act) establishes the Remuneration Tribunal which, among other things, determines base salary for members, additional salary for office holders and certain entitlements for members when they are engaged in parliamentary, electorate or official business.

The entitlements for members currently set by Remuneration Tribunal Determinations are:

• electorate allowance

• travelling allowance for members and office-holders

• domestic travel by members, including by scheduled services, car transport, charter, private-plated vehicles, and privately owned vehicles

• family reunion travel by the spouse or nominee, dependent children and designated persons of a member

• severance benefits and travel after retirement as a member (where applicable)

• home telephone services.57

Clause 44 requires the Tribunal to report once a year on ministerial salaries provided for in section 66 of the Constitution. Under the existing scheme the Remuneration Tribunal is empowered, by subsection 6(1) of the RT Act, to report on salary for ministers of state. However, ministerial salary is ultimately a matter for executive government: while the Remuneration Tribunal reports on ministerial salary its recommendations are advisory only and Cabinet can vary ministerial salary if it so wishes.

Clauses 45 and 46 require the Tribunal to determine at least once a year the remuneration of members, the rates of travel allowance for domestic travel and allowances and expenses for former members. The Tribunal also determines the portion of salary that is not to be counted for the purpose of calculating superannuation benefits under the Parliamentary Contributory Superannuation Act 1948 for former members, office holders and ministers.

Schedule 1, Part 2 of the PBR (CTP) Bill (items 57-70) amends the RT Act to remove the provisions relating to members of Parliament, which are relocated to the proposed PBR Act by Part 6 of the PBR Bill (discussed above). Item 61 of the PBR (CTP) Bill repeals subsection 6(1) of the RT Act that provides for the Tribunal to report on minister’s salary. Item 63 repeals subsections 7(1) to (2A) of the RT Act, which currently provide authority for the Tribunal to determine allowances of members (such as base salary), the proportion of salary not to be counted as salary for superannuation purposes for members, office holders and ministers, and determine additional salary for office holders.

It is notable that once the PBR and the PBR (CTP) Bills are enacted the RT Act will no longer reflect that the Tribunal has a role in regard to members. The Explanatory Memorandum to the PBR (CTP) Bill notes that this reflects the intention to create a single legislative framework (in the proposed PBR Act) with respect to parliamentarians’ remuneration and work expenses.58 New subsection 5(2E) of the RT Act (inserted by item 59 of the PBR (CTP) Bill) makes it clear, on the face of the RT Act that the Tribunal retains statutory functions in relation to members. It indicates that the proposed PBR Act may confer additional functions on the Tribunal, and therefore clearly directs readers to the relevant statutory source of those functions.

Part 7 of the PBR Bill (clauses 48-61) makes provision for miscellaneous matters relevant to the operation of the new legislative framework. These provisions deal with matters including: when payments of remuneration start and end; annual limits on ministerial salaries; a “safe harbour clause” providing that a member does not incur a

57. Conde and Tune, An independent parliamentary entitlements system: review, op. cit., p. 34. 58. Explanatory Memorandum, PBR (CTP) Bill, p. 12 (commentary on item 59).

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debt if they relied on incorrect personal advice provided by IPEA; the appropriation of money; and the independent periodic review of the proposed PBR Act every three years.

Clause 49 outlines when remuneration commences to be paid to members and when it ceases to be paid. Clause 50 relates to when an office holder’s salary is to be paid. The PBR Explanatory Memorandum provides a useful table setting out the various alternative circumstances for commencement and cessation of payments.59 Currently, the Parliamentary Allowances Act 1952 outlines the timing of payment and cessation of remuneration under the existing scheme. The Parliamentary Allowances Act is repealed by Schedule 2 of the PBR (CTP) Bill. Clause 52 specifies that public resources will be provided if a member is eligible for payment of a base salary, office holder salary or a ministerial salary.

Division 3 of Part 7 sets out how the annual amounts of resources are to be calculated. Clause 53 provides that where a benefit is limited to an annual amount, a person becoming a member during the course of a financial year is allocated the entitlement on a pro rata basis worked out by the formula prescribed in subclause 53(2).

Clause 55 sets the annual sum available for ministerial salaries payable under section 66 of the Constitution. The annual limit was previously provided by section 5 of the Ministers of State Act 1952, which is repealed by item 25 of Schedule 1 to the PBR (CTP) Bill. Provision is made for the amount to be increased by regulations (paragraph 55(1)(b)), which will be a disallowable legislative instrument. Subclause 55(2) also provides that the regulations may provide for a higher amount (or a method for calculating a higher amount) by applying, adopting or incorporating by reference (with or without modification) any matter contained in a determination or report of the Tribunal as in force or existing from time to time. This means that the regulations can incorporate a determination or report of the Tribunal at a particular point in time, and any future amendments that the Tribunal may make to that determination or report will automatically be incorporated by reference in the regulations made under clause 55. The Explanatory Memorandum states that this mechanism (which is not currently provided for in the existing scheme) is necessary to ensure that the annual limit keeps pace with increases in base salary determined by the Tribunal and the Tribunal’s recommended increases to ministerial salaries, thereby ensuring that sufficient funds are available to pay salaries at current and future levels.60

Clause 56 provides that the PBR Act must be independently reviewed every three years. It does so by imposing an obligation on the Minister to cause an independent review to be conducted on the operation of the Act and whether it should be amended. The report must be tabled in Parliament. Clause 56 does not prescribe the qualifications of independent reviewers or any requirements in relation to the number of reviewers or consultation requirements in relation to their appointment. The combined effect of clause 56 and existing section 62 of the IPEA Act is that the legislative framework governing parliamentary resources should be subject to independent review during each parliamentary term. It remains to be seen whether the two statutory reviews will be conducted in a single process.

Clause 57 provides a mechanism for the recovery of payments purportedly made under the proposed PBR Act that were not, in fact, authorised under the Act (for example, if the person pays a work expense to a member who was not eligible because he or she breached clause 26). Clause 57 provides that the amount of the payment is a debt due to the Commonwealth and can be recovered in legal proceedings. The clause also provides an alternative method of recovering payments in the form of reductions of future amounts payable to the recipient. Subclause 57(3) also includes a provision that is designed to mitigate the risk that payments made in error may breach section 83 of the Constitution by providing authority for such payments.61 This is consistent with provisions currently in the RT Act and the Parliamentary Entitlements Act.62

The safe harbour provision in clause 58 includes the conditions for and limitations of the protection it provides to members who act in reliance on IPEA’s advice. It appears to be a significant component of the new scheme.

59. Explanatory Memorandum, PBR Bill, pp. 41-42. 60. Ibid., p. 45. 61. Section 83 of the Constitution provides that no money can be drawn from the Treasury of the Commonwealth unless authorised by an appropriation made by law.

62. Ibid. See further: Office of Parliamentary Counsel, Drafting direction no. 3.1: constitutional law issues, document release 5.0, reissued January 2017, p. 11. Note that paragraph (b) of clause 59 includes another mechanism to mitigate the risk of breaching section 83 of the Constitution in respect of incorrect payments made in the course of administering the proposed PBR Act that did not result in a member receiving public or other resources to which he or she was not entitled. (For example, an inadvertent or incorrect payment to a contracted service provider.) See further: Explanatory Memorandum, PBR Bill, p. 48.

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Broad delegation powers are proposed to be conferred by clause 60. In particular, under subclause 60(1) the Minister can delegate any of his or her functions under the Act to the presiding officers or senior officials in the Department of Finance. The Explanatory Memorandum states that the power of delegation is considered necessary because some of the functions proposed to be conferred under the PBR Act might involve high volumes of administrative work (such as the provision of routine and low value resources) or other minor administrative matters.63

However, the powers that are capable of being delegated under clause 60 are not limited to the administrative matters (described in the Explanatory Memorandum). For example, subclause 60(1) could lawfully authorise the Minister to delegate his or her power to make Determinations about the matters within the concept of ‘parliamentary business’ under clause 6 to an Assistant Secretary (including an acting Assistant Secretary) at the Department of Finance.

Other provisions—consequential amendments and transitional measures The PBR (CTP) Bill amends seven pieces of legislation to revise references from the existing scheme to the new scheme in recognition that the PBR Bill will be the single head of legislative authority. The IPEA Act, Age Discrimination Act 2004, the Parliamentary Contributory Superannuation Act 1948, the Parliamentary Retirement Travel Act 2002, Parliamentary Superannuation Act 2004, the Safety, Rehabilitation and Compensation Act 1988 and the Freedom of Information Act 1982 are variously amended to update definitions and remove redundant references to repealed Acts or individual provisions and replace them with references to the new PBR Act.

Schedule 3 specifies application and transitional arrangements. In large part the provisions allow for the continuity of the provision of remuneration, payments, and schemes such as the injury compensations scheme, during the transition from the existing scheme to the new scheme.

Concluding comments These Bills continue the reform of members’ remuneration and work expenses but it is unclear as yet how the ‘dominant purpose test’ will operate in practice. As indicated earlier, Minister Ryan said he did not want to be prescriptive on ruling situations in or out as it will be a matter for the IPEA.64

The Bills provide the overarching framework but much of the detail is yet to be outlined in determinations and regulations such as what activities are included under parliamentary business, travel expenses, travel allowances and work expenses; what public resources which may be available; what a member has to provide in claiming public resources; which office holders are eligible for office holder salary and so on. It is notable that many of the legislative instruments will not be disallowable. The non-disallowable status of some of the determinations allows for certainty and avoids potential conflict of interest by members. The Explanatory Memorandum to the PBR Bill comments that non-disallowance vests primary control in the executive, so that the quantum and conditions of remuneration and expenses are not made subject to the political process.65

While Regulations under the PBR Act when enacted will determine work expenses that members may claim in the future they will presumably be similar to the entitlements available under existing legislation such as the PE Act and Regulations. Any changes may impact on how the various bodies involved in payments, such as the parliamentary departments and Department of Finance, operate.66

Although arguably making the system less complex, members will still have two sources of advice: the IPEA for travel, reporting and other matters managed by the IPEA and the Department of Finance for all other work expenses.67 Only the IPEA will be able to provide written rulings in regard to travel expenses. It is unclear whether the rulings will be released publically. The Special Minister of State in an interview said ‘so the rulings the authority will have the capacity to publish, and personally I think yes, that is exactly what will happen

63. Explanatory Memorandum, PBR Bill, p. 48. 64. K Murphy, ‘New travel expenses rules would still let MPs attend sporting events, Scott Ryan signals’, op. cit. 65. Explanatory Memorandum, PBR Bill, p. 17. 66. D Elder (Clerk of the House of Representatives), Submission to the Senate Legislation Committee on Finance and Public Administration,

Inquiry into the Parliamentary Business Resources Bill 2017 and Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017 [Provisions], submission no. 1, 11 April 2017. 67. DoF, Commencement of the Independent Parliamentary Expenses Authority, Departmental circular no. 2017/02, 6 April 2017.

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because if you’ve got a ruling that is exactly the same for you as for me—if we were both Members of Parliament—if one’s inside the rules and one’s outside the rules, that’s pretty black and white’.68

However, the IPEA functions in relation to rulings do not confer express authority on IPEA to publish rulings, in contrast to other express functions regarding the publication of general advisory documents and reports.

It would appear that Freedom of Information (FOI) information access will apply to rulings. The IPEA is only exempt from the Freedom of Information Act 1982 in respect of personal advice provided under the IPEA Act.69

Consideration might also be given to applying limitations to the powers of delegation conferred by clause 60, in order to introduce statutory safeguards that ensure the power of delegation can only be exercised in the circumstances relating to administrative activities such as the provision of public resources of a routine nature or debt recovery of a small amount. For example, the Ministerial power to determine the activities that constitute parliamentary business in clause 6 might be excluded from clause 60.

Although there will be a single head of legislative authority for remuneration and work expenses there continue to be multiple agencies involved in implementing the framework: Department of Finance, Department of the Senate, Department of the House of Representatives, Department of the Parliamentary Services, the Remuneration Tribunal and the IPEA. This is in contrast to the British system where a single agency, the Independent Parliamentary Standards Authority, oversees all elements of members’ remuneration and benefits.70

It remains to be seen whether the government will implement several non-legislative recommendations of the 2016 Independent review that would seem likely to have a significant impact on the effective operation of the new framework. In particular, the recommendations about ITC enhancement and the future arrangements under the Minchin Protocol (the Protocol followed when an Allegation is Received of Alleged Misuse of Entitlement by a Member or Senator).71

68. S Ryan (Special Minister of State), Transcript of interview with David Speers: Sky News PM Agenda: 28 March 2017: Parliamentary Business Resources Bill 2017; Electoral and Other Legislation Amendment Bill 2017; foreign donations, media release, 28 March 2017. 69. See paragraph 12(1)(a) of the IPEA Act, Schedule 2 of the FOI Act as proposed to be amended by Schedule 3 of the PBR (CTP) Bill 2017. 70. C Madden and D McKeown, ‘Independent Parliamentary Expenses Authority’, op. cit. 71. Conde and Tune, An independent parliamentary entitlements system: review, op. cit. For information on the Minchin Protocol see DoF,

‘Allegations of misuse’, DoF website, 17 February 2017.

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