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Parliamentary Expenses Amendment (Transparency and Accountability) Bill 2015

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2013-2014-2015

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

THE SENATE

 

 

 

PARLIAMENTA RY EXPENSES AMENDMENT (TRANSPARENCY AND ACCOUNTABILITY) BILL 2015

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of Senator Xenophon)



 

PARLIAMENTARY EXPENSES AMENDMENT (TRANSPARENCY AND ACCOUNTABILITY) BILL 2015

 

 

OUTLINE

This Bill seeks to put in place a disclosure regime for members, Parliamentary office-holders and Ministers in respect of travel entitlements to ensure greater transparency and accountability. The Bill does not seek to change the existing rules regarding the management of entitlements, but instead requires disclosure when these entitlements are claimed.

 

NOTES ON CLAUSES

Part 1 - Preliminary

Clause 1 - Short Title

This clause is a formal provision and specifies that the Bill, once enacted, may be cited as the Parliamentary Expenses Amendment (Transparency and Accountability) Act 2015 .

 

Clause 2 - Commencement

This clause provides for the commencement of clauses 1 to 3 of the Bill on the day the Bill receives Royal Assent and Schedule 1 on the day after the Bill receives Royal Assent.

Clause 3 - Schedules

This clause states that each Act specified within a Schedule to this Bill is amended or repealed as set out by the provisions of the Bill.

 

Schedule 1

 

Part 1 - Amendments to the Parliamentary Entitlements Act 1990

 

This Part relates to the reporting of travel entitlements by members, Parliamentary office-holders and Ministers.

 

Item 1 inserts several new definitions into section 3 of the Act.

 

Claim is defined to be a claim or request for a benefit in relation to a member, Parliamentary office-holder or Minister that is made to the Commonwealth, regardless of whether it is made by the member, Parliamentary office-holder or Minister personally. This ensures that claims or requests lodged by staff or authorised persons on behalf of a member, Parliamentary office-holder or Minister are covered by the provisions in the Bill.

 

Claimant is defined to be the member, Parliamentary office-holder or Minister to whom a claim relates.

 

Designated travel benefit means a benefit paid by the Commonwealth in relation to the travel of a claimant, but does not include travel to or from Canberra for the purpose of sitting days of the House of Parliament of which the claimant is a member, or travel for the purpose of Parliamentary Committee hearings or meetings. This definition is relevant in relation to the types of travel benefit to which the disclosure regime in the Bill will apply.

 

Q uarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December, and is relevant in respect of the reporting requirements in the Bill.

 

Item 2 inserts three new sections to outline the requirements for monthly explanatory statements to be lodged in relation to travel benefits claimed.

 

Section 5 requires that a claimant lodge a monthly statement for all ‘designated travel benefits’ claimed in the month, apart from those that relate to Parliamentary sittings, or meetings or hearings of Parliamentary Committees.

 

Subsection 5A(1) outlines the circumstances in which an explanatory statement must be lodged for a designated travel benefit.

 

Paragraph 5A(1)(a) states that the section applies if a member, Parliamentary office-holder or Minister is entitled to a benefit under section 4 or 5 of the Parliamentary Entitlements Act 1990 .

 

Paragraph 5A(1)(b) states that the benefit must be a ‘designated travel benefit’, as defined in item 1 of the Bill.

 

P aragraph 5A(1)(c) states that a statement must be lodged if one or more claims for such a benefit have been made during the month.

 

Subsection 5A(2) states that the claimant must provide an explanatory statement to the Department of Finance, and outlines the information that must be provided in such a statement.

 

Paragraph 5A(2)(a) includes a requirement for information on the purpose or purposes of the travel. This should involve a clear, brief statement that is in line with the intention of this Bill, and provides a level of detail that would allow a reasonable person to have an understanding as to the purpose of the travel.

 

For example, a claimant travelling to a location for a particular meeting should include information about the topic of the meeting and the other attendees. The personal details of an individual who is meeting with the claimant do not need to be provided, but a statement as to whether they are a constituent or details of the organisation they are representing is suitable.

 

If the claimant is travelling for the purpose of attending an event, the statement should include information about the event, by whom it was organised, its purpose, and the reason why it is relevant or necessary for the claimant to attend.

 

Statements made in relation to other purposes should have a similar level of detail and be made in the spirit of transparency.

 

Paragraph 5A(2)(b) includes a requirement for the claimant to detail the proportion of the claimant’s business hours spent on each of the purposes outlined in paragraph 5A(2)(a).

 

For example, a claimant is making a claim for travel on a day during which they worked for eight hours. They have listed attending four meetings as the purpose for their travel. The claimant would, therefore, be required to state that their business hours totalled eight hours, and that they spent (for example) forty minutes at the first meeting, an hour at the second, 30 minutes at the third, and thirty minutes at the fourth meeting.

 

Paragraph 5A(2)(c) requires the claimant to provide details on the dates, times and locations of the travel. These details should be listed for each leg of travel for which a benefit is claimed. A specific address at each destination is not required, but the town, city or suburb should be included. Times should be as specific as possible for each leg of travel undertaken.

 

Paragraph 5A(2)(d) requires the number of all flights (if any) for which a benefit is claimed to be provided.

 

Paragraph 5A(2)(e) requires the claimant to provide details of any other means of travel taken. This refers to, for example, a hire car, ComCar, charter service, or other means of commercial or non-commercial travel for which a benefit is claimed or the claimant does not pay out of their own pocket.

 

Paragraph 5A(2)(f) requires the claimant to list the number of nights for which accommodation costs were claimed (if any).

 

Paragraph 5A(2)(g) requires the claimant to detail the total amount claimed for designated travel benefits. This should include all benefits claimed during the travel, such as cost of flights, per diem benefits, hire cars, and so on.

 

Paragraph 5A(2)(h) requires the claimant to include a declaration that each benefit has been claimed in accordance with this Act and any other relevant law of the Commonwealth. It is suitable for the Minister to determine a relevant form of words for this declaration under subsection 5A(4) of this Bill, and for the claimant to provide positive indication (such as a signature) of their agreement with the declaration.

 

Subsection 5A(3) allows the purpose or purposes of the travel to be listed as confidential, providing there is a statement from the claimant that, if the purpose of the travel is stated, there is likely to be a risk of prejudice to national security. The intention of this exemption is that the claimant should still provide details of any other purposes for the travel that are not likely to pose such a risk.

 

Subsection 5A(4) requires the statement to be given to the Department within 7 days of the end of the calendar month in which the travel was completed (p aragraph 5A(4)(a) ) and in the form or forms declared by the Minister (p aragraph 5A(4)(b) ).

 

Subsection 5A(5) requires that the Department of Finance publish the explanatory statement on its website within 14 days of receipt. The intent of this provision is to ensure the public have access to these statements.

 

Subsection 5A(6) clarifies the application of section 5A.

 

Paragraph 5A(6)(a) states that the section applies where there is more than one purpose for the travel and ( paragraph 5A(6)(b)) a designated travel benefit may be claimed in relation to one of those purposes.

 

Section 5B outlines the requirement for an explanatory statement to be lodged monthly in respect of charter transport benefits. For the purpose of this statement, charter transport should reasonably be considered to be a non-commercial service scheduled and paid for primarily for the use of the member, Parliamentary office-holder or Minister.

 

Subsection 5B(1) outlines the circumstances in which this section applies.

 

Paragraph 5B(1)(a) states that the section applies when, if in a calendar month, a member, Parliamentary office-holder or Minister is entitled to a benefit under section 4 or 5 for charter transport and ( paragraph 5B(1)(b) ) one or more claims for such a benefit are made by the claimant during the month.

 

Subsection 5B(2) outlines the details to be provided in the statement to the Department.

 

Paragraph 5B(2)(a) requires the statement to include the purpose or purposes of the travel. It is intended that this statement should be equivalent to that set out in paragraph 5A(2)(a), and be a clear, brief statement that is in line with the intention of this Bill, and that provides a level of detail that would allow a reasonable person to have an understanding as to the purpose of the travel.

 

Paragraph 5B(2)(b) requires the statement to include the reasons why it was necessary or desirable to take charter transport, as opposed to commercial transport. For example, these reasons may include a lack of commercial services available or at a suitable time, or that a charter service would result in a lower cost to the Commonwealth.

 

Subsection 5B(3) states that the purpose of the travel may be listed as confidential if the statement also includes a declaration by the claimant that stating the purpose of the travel is likely to be a risk of prejudice to national security. The intention of this exemption is that the claimant should still provide details of any other purposes for the travel that are not likely to pose such a risk.

 

Subsection 5B(4) requires the statement to be given to the Department within 7 days of the end of the calendar month in which the travel was completed ( paragraph 5B(4)(a) ) and in the form or forms approved by the Minister ( paragraph 5B(4)(b) ).

 

Subsection 5B(5) requires the Department to publish the statements on its website within 14 days of receipt. The intent of this provision is to ensure the public have access to these statements.

 

Section 5C introduces a requirement for an explanatory statement to be provided in relation to family travel benefits.

 

Subsection 5C(1) states that this section applies if a member, Parliamentary office-holder or Minister is entitled to a benefit under section 4 or 5 of the Parliamentary Entitlements Act 1990 for the costs of travel for a dependent child and/or spouse ( paragraph 5C(1)(a) ) and one or more claims for the benefit are made by the claimant during the month ( paragraph 5C(1)(b) ).

 

Subsection 5C(2) outlines the information that must be included in the statement.

 

Paragraph 5C(2)(a) requires the statement provide details on to whom the costs of the travel related. It is not expected that the claimant provide the names of the family members for whom the benefit was claimed. Instead, a description such as ‘spouse’ or ‘dependent child’ is sufficient, with such a description to be provided for each family member for whom the benefit was claimed.

 

Paragraph 5C(2)(b) requires the statement include details on the dates, times and locations of the travel. These details should be listed for each leg of travel for which a benefit is claimed. A specific address at each destination is not required, but the town, city or suburb should be included. Times should be as specific as possible for each leg of travel undertaken.

 

Paragraph 5C(2)(c) requires the statement include a total of the cost of the travel claimed under the benefit.

 

Paragraph 5C(3) requires the statement to be given to the Department within 7 days of the end of the calendar month in which the travel is completed ( paragraph 5C(3)(a) ) and in the form or forms approved by the Minister ( paragraph 5C(3)(b) ).

 

Subsection 5C(4) states that the Department must publish the statements on its website within 14 days of receipt. The intent of this provision is to ensure the public have access to these statements.

 

Item 3 inserts seven new sections into the Act in relation to claims that are made in excess of the entitlement.

 

Section 7A states that a person must not make a claim for a benefit if that claim is wholly or partly in excess of the entitlement. A note to this section states that the penalties set out in section 7B of this Bill may apply if such a claim is made in relation to travel benefits.

 

Section 7B outlines a series of loadings that apply in respect of a contravention of section 7A.

 

Subsection 7B(1) sets out the circumstances in which this section will apply.

 

Paragraph 7B(1)(a) states that the section applies if a claimant makes a claim for a travel benefit in contravention of section 7A.

 

Paragraph 7B(1)(b) states that the section applies if the Commonwealth has also paid an amount, or has provided goods, services or facilities as a benefit in response to the claim.

 

Paragraph 7B(1)(c) states that the section applies if, in addition, either the amount of the payment exceeds the amount (if any) to which the recipient was entitled ( subparagraph 7B(1)(c)(i) ) or the Commonwealth’s costs of providing the goods, services or facilities exceed what they would have been if the goods, services or facilities (if any) to which the recipient was entitled had been provided instead ( subparagraph 7B(1)(c)(ii) ).

 

Paragraph 7B(1)(d) states that the section applies if, in addition, the excess was not attributable, to any extent, to administrative error within the Department.

 

Subsection 7B(2) outlines the circumstances in which a claimant is considered liable to pay a penalty. This occurs when a claimant has contravened section 7A in relation to a travel benefit ( paragraph 7B(2)(a) ) and has either not previously contravened that section ( subparagraph 7B(2)(a)(i) ) in relation to such a benefit or has previously contravened that section in relation to such a benefit once in the previous twelve months ( subparagraph 7B(2)(a)(ii) ), then the claimant is liable to pay the Commonwealth an amount equal to 200 per cent of the amount of the contravention.

 

Subsection 7B(3) outlines the circumstances in which a claimant is considered liable to pay a further penalty. This occurs when a claimant has contravened section 7A in relation to a travel benefit ( paragraph 7B(3)(a) ) and has previously contravened that section in relation to a travel benefit more than twice in the previous twelve months ( paragraph 7B(3)(b) ) then the claimant is liable to pay the Commonwealth an amount equal to 400 per cent of the amount of the contravention.

 

Subsection 7B(4) clarifies that the amount of the penalty is a debt due to the Commonwealth ( paragraph 7B(4)(a) ) and may be recovered by action in a court of competent jurisdiction ( paragraph 7B(4)(b) ).

 

Section 7C requires the Department to publish details of penalties paid under section 7B.

 

Subsection 7C(1) states that the Department must, as soon as practicable after the end of each quarter, prepare and publish a report on the Department’s website of any penalties paid under section 7B in relation to claims in excess of travel benefits during the quarter.

 

Subsection 7C(2) states that the report must include the number and value of any penalties paid during the quarter ( paragraph 7C(2)(a) ) and the claimant who paid the penalties ( paragraph 7C(2)(b) ). This is to ensure transparency and openness in the claims process.

 

Section 7D relates to report on contraventions of section 7A.

 

Subsection 7D(1) states that the Secretary of the Department must, as soon as practicable after the end of each quarter, provide to the Commonwealth Ombudsman a copy of the report prepared under section 7C in relation to claims made in excess of travel benefits ( paragraph 7D(1)(a) ), and a report on the circumstances of each contravention of section 7A to which the report relates ( paragraph 7D(1)(b) ), and a report on the circumstances of any other contraventions, or suspected contraventions, of section 7A during the quarter ( paragraph 7D(1)(c) ).

 

Subsection 7D(2) states that the report must include any matters specified in regulations made for the purpose of this subsection, without limiting the requirements in paragraph 7D(1)(b).

 

Section 7E outlines the requirement for the Commonwealth Ombudsman to provide the Minister with an assessment of section 7A contraventions.

 

Subsection 7E(1) states that the Commonwealth Ombudsman must, as soon as practicable after receiving a report under section 7D, give the Minister an assessment of the circumstances of each contravention of section 7A ( paragraph 7E(1)(a) ) and each suspected contravention of 7A in the report.

 

Subsection 7E(2) states that the assessment by the Commonwealth Ombudsman may include any recommendations the Ombudsman considers appropriate.

 

Subsection 7E(3) states that the Minister is not bound by any recommendations made by the Commonwealth Ombudsman.

 

Subsection 7E(4) states that the assessment must also include a statement for the purpose of tabling in Parliament that sets out or paraphrases as much of the content of the assessment as the Ombudsman considers can be tabled without adversely affecting the privacy of any person.

 

Section 7F requires the Minister to table the statement from the Commonwealth Ombudsman (as set out in subsection 7E(4)) to be laid before each House of Parliament within 15 sitting days of that House after the Minister receives the assessment.

 

Section 7G clarifies the application of the Ombudsman Act 1976 to these sections.

 

Subsection 7G(1) states that the Ombudsman Act 1976 applies in relation to the Ombudsman’s preparation of an assessment under section 7E (including consideration of the report under section 7D), so that the preparation of the assessment is treated as an investigation for the purposes of that Act.

 

Subsection 7G(2) states that the Commonwealth Ombudsman’s functions include those conferred on the Ombudsman by sections 7D to 7F of this Bill.

 

 

Part 2 - Amendment to the Ombudsman Act 1976

 

The aim of this Part is to extend the scrutiny of the Commonwealth Ombudsman to the claiming of entitlements by members, Parliamentary office-holders and Ministers.

 

Item 4 inserts a new definition of Finance Department , stating that this term means the Department administered by the Minister administering the Public Governance, Performance and Accountability Act 2013, which is the Department that manages travel benefit claims.

 

Item 5 inserts a consequential amendment into existing paragraph 5(2)(a) of the Act, consistent with new section 5B in this Bill.

 

Item 6 inserts a new section 5B to extend the Commonwealth Ombudsman’s purview to Parliamentary entitlements.

 

Subsection 5B(1) states that, for the purposes of the Act, a claim made for a benefit under the Parliamentary Entitlements Act 1990 is taken to be an action that relates to a matter of administration, and therefore comes under the purview of the Ombudsman.

Subsection 5B(2) states that for the purposes of the application of the Act to the action, the claimant (as described in the Parliamentary Entitlements Act 1990) is taken to be a prescribed authority ( paragraph 5B(2)(a) ) and the action is to be treated as if it were an action taken by the prescribed authority ( paragraph 5B(2)(b) ). This subsection ensures the Commonwealth Ombudsman has the capacity to consider matters relating to benefit claims.

 

Subsection 5B(3) clarifies that the Ombudsman has this capacity regardless of whether the entitlement or claim relates to a period of time that occurred before or after the commencement of this section.

 

Item 7 inserts a new section 15A to create additional reporting obligations for the Ombudsman in relation to Parliamentary entitlement functions.

 

Subsection 15A(1) states that if the Ombudsman has prepared a report under section 15 of the Act in relation to a claim for a benefit under the Parliamentary Entitlements Act 1990 ( paragraph 15A(1)(a) ) and the report includes a recommendation in relation to a claimant ( paragraph 15A(1)(b) ) then the Ombudsman must give a copy of the report to the Finance Department ( paragraph 15A(1)(c) ) and publish the report on its website ( paragraph 15A(1)(d) ).

 

Subsection 15A(2) states that the Ombudsman must not publish a report under subsection (1) unless the claimant has been given notice in writing that the report will be published ( paragraph 15A(2)(a) ) and has been invited to make submissions on the content of the report ( paragraph 15A(2)(b) ).

 

 

 

 

 

 

 

 

 

 

 



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

 

PARLIAMENTARY EXPENSES AMENDMENT (TRANSPARENCY AND ACCOUNTABILITY) BILL 2015

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

 

Overview of the Bill

This Bill creates a new regime of transparency and accountability in relation to travel benefits claimed by members, Parliamentary office-holders and Ministers.

 

Human rights implications

This Bill engages the right to privacy, as contained in article 17 of the International Covenant on Civil and Political Rights (ICCPR), as it requires the publication of certain information relating to the claiming of travel benefits. However, this is considered to be a permissible limitation, as the information required:

a)       Does not include specific personal details of either the claimant or the claimant’s family;

b)       Does not require information relating to exact locations, and instead allows suburbs or cities to be used;

c)       Does not require the personal details of individuals involved in meetings or events attended by the claimant; and

d)       Contains provisions to allow the purpose of travel to be listed as ‘confidential’ where there is a likely security risk;

e)       Relates to Parliamentary office-holders and Ministers, who are individuals already in the public eye.

 

It is also important to note that the disclosure requirements in the Bill relate only to travel where a benefit is claimed, and as such the disclosure can be avoided if no benefit is claimed and travel is undertaken at the individual’s own expense.

 

Further, these disclosure provisions relate to claims that are paid by the Commonwealth, and as such the right of taxpayers to greater transparency on Commonwealth spending outweighs the slight limitations placed on the claimants.

 

 

Conclusion

This Bill is compatible with human rights as it the limits it places on the right to privacy are reasonable, necessary and proportionate.

 

 

Senator Nick Xenophon