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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
INDEPENDENT PARLIAMENTARY EXPENSES AUTHORITY BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the Special Minister of State, Senator the Hon Scott Ryan)
INDEPENDENT PARLIAMENTARY EXPENSES AUTHORITY BILL 2017
OUTLINE
The Independent Parliamentary Expenses Authority Bill 2017 (the Bill) would establish the
Independent Parliamentary Expenses Authority (the Authority) as an independent statutory
authority with responsibilities relating to work expenses of parliamentarians and their staff,
ensuring that taxpayers' funds are spent appropriately and in compliance with the rules.
The Bill does not change the work expenses framework, but rather establishes independent
oversight and allows guidance to be provided to parliamentarians and their staff in relation to
their work expenses.
The Bill will deliver on the commitment made by the Prime Minister, Malcolm Turnbull, in
January 2017 to create an independent statutory body, governed by a board, with
accountability, reporting, and auditing responsibilities for the work expenses of
parliamentarians and their staff.
The Bill provides that the Authority is constituted by a Chair and members, who meet one of
the following criteria:
the President of the Remuneration Tribunal
a former judicial officer
a former member of parliament
a person with substantial experience or knowledge of, and significant standing, in
auditing, and
may also include a person with substantial experience or knowledge of, and
significant standing, in public administration or corporate governance.
Appointments will be made by the Governor-General.
The Bill provides that the Authority will be a listed entity for the purposes of the
Public Governance, Performance and Accountability Act 2013 (PGPA Act). The Bill will
provide for a Chief Executive Officer (CEO) of the Authority, with functions of managing
the administration of the Authority and assisting the Authority in the performance of its
functions. The CEO will be the accountable authority for the purposes of the PGPA Act, and
the Agency Head for the purposes of the Public Service Act 1999 (PS Act).
The Bill provides that the functions of the Authority include:
advising parliamentarians on travel expenses, allowances, and related expenses
monitoring parliamentarians' use of travel expenses, allowances, and related expenses
administering travel expenses, allowances, and related expenses, including processing
of these claims
reporting on work expenses under the existing parliamentary work expenses
framework
auditing of work expenses claims under the existing parliamentary work expenses
framework, and
making rulings about travel expenses and allowances, where authorised by a law to do
so.
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 1
The Bill provides for an independent review of the Authority to be conducted 3 years after
the commencement of the Bill.
Financial impact statement
The establishment of the Independent Parliamentary Expenses Authority will have financial
implications which will be considered as part of the 2017-18 budget.
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Independent Parliamentary Expenses Authority Bill 2017
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
The Independent Parliamentary Expenses Authority Bill 2017 establishes the Independent
Parliamentary Expenses Authority (the Authority) as an independent statutory authority with
responsibilities relating to work expenses of parliamentarians and their staff, ensuring that
taxpayers' funds are spent appropriately and in compliance with the rules. The Bill does not
change the work expenses framework, but rather establishes independent oversight and
allows guidance to be provided to parliamentarians and their staff in relation to their work
expenses.
The Bill provides that the Authority is constituted by a Chair and members, who meet one of
the following criteria:
the President of the Remuneration Tribunal
a former judicial officer
a former member of parliament
a person with substantial experience or knowledge of, and significant standing, in
auditing, and
may also include a person with substantial experience or knowledge of, and
significant standing, in public administration or corporate governance.
The Bill provides that the functions of the Authority include:
advising parliamentarians on travel expenses, allowances, and related expenses
monitoring parliamentarians' use of travel expenses, allowances, and related expenses
administering travel expenses, allowances, and related expenses, including processing
of these claims reporting on work expenses
auditing of work expenses claims, and
making rulings about travel expenses and allowances, where authorised by a law to do
so.
Human rights implications
This Bill engages the following rights:
right to privacy in Article 17 of the International Covenant on Civil and Political Rights
(ICCPR), and
right to freedom of expression in Article 19 of the ICCPR.
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 3
Right to Privacy
Article 17 of the ICCPR provides that:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
2. Everyone has the right to the protection of the law against such interference or
attacks.
The right to privacy is not absolute. However, limitations on the right must be authorised by
law and must not be arbitrary.
Authorised by law
To the extent that the right to privacy is limited by the information collection, sharing and
reporting functions of the Authority, this is provided for in the Bill and is therefore authorised
by law.
The Authority has the power to collect information:
The Secretary must give certain information (which may include personal
information) to the Authority (clause 34).
The Authority can require a person to provide it with information or documents
relevant to the Authority's reporting and auditing functions (Part 5).
The Authority may share and publish information:
The Authority must give certain information (which may include personal
information) to the Secretary (clause 33).
The Authority may publish reports (which may include personal information) about
MP work expense matters and MOPS staff travel expenditure matters
(paragraphs 12(1)(d), (e), (s) and (t)).
As noted in the Bill, each of the reporting functions specified in clause 12 is an authorisation
for the purposes of the Privacy Act 1988 (Privacy Act). The Authority will be subject to the
Privacy Act and any collection, use, or disclosure of personal information will be in
accordance with that Act and the applicable Australian Privacy Principles. Furthermore, the
Authority's ability to publish personal information as part of its reports is also limited by
paragraph 60(1)(c) of the Bill, which would prevent the Authority from including information
in a public report where it would be likely to result in serious harm to the individual to whom
the information relates.
Not arbitrary
Interference with privacy will be arbitrary where the relevant measures are not in accordance
with the provisions, aims and objectives of the ICCPR and are not 'reasonable in the
particular circumstances'. A measure which interferes with privacy will be reasonable if it is
based on reasonable and objective criteria and the interference allowed by the measure is
proportionate to the purpose for which the measure has been adopted.
The purpose of the relevant measures in the Bill, including regular public reporting of
parliamentary work expenses, is to ensure that the expenditure of public funds receives
appropriate scrutiny (including by the media and the public). The interference permitted by
the measures is reasonable in the circumstances, because there is a legitimate public interest
in the publication of information about the use of public funds in relation to parliamentarians'
work expenses and the travel expenses of their staff. Additionally, there are some limits on
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 4
the classes of information the Authority will collect and use. For example, the Authority's
information-gathering powers are subject to the privilege against self-incrimination
(clause 55), parliamentary privilege, and legal professional privilege (clause 58).
In the case of the sharing of information between the Authority and the Secretary, the
potential interference with privacy is reasonable and proportionate, because the Secretary and
Authority need only share such information that the other 'reasonably requires' for the
performance of their functions.
The potential interference with privacy occasioned by the Authority's publication of personal
information in its reports is also reasonable and proportionate. Although the Authority's
power to publish personal information in subclause 12(2) of the Bill is expressed in broad
terms, the potential interference must be balanced against the significant public interest in
maintaining confidence in Australia's representative institutions. Furthermore, paragraph
60(1)(c) of the Bill contains a safeguard to protect individuals who may be exposed to harm
as a consequence of having their personal information included in a public report of the
Authority. Paragraph 60(1)(c) will allow the Authority to balance its obligations to achieve
transparency in the expenditure of public funds and protect the privacy of individuals.
Freedom of expression
Article 19 of the ICCPR relevantly provides that:
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions,
but these shall only be such as are provided by law and are necessary:
a. For respect of the rights or reputations of others;
b. For the protection of national security or of public order (order public), or of
public health or morals.
Clause 60 of the Bill prohibits the Authority from including information in public reports that
would, in its opinion or in the opinion of the Attorney-General, prejudice the security,
defence or international relations of the Commonwealth, or, in the opinion of the Authority,
would be likely to result in serious harm to an individual to whom the information relates.
The Authority is a statutory body and as such is not vested with human rights. Nevertheless,
this prohibition may engage the right to freedom of expression of the individual members of
the Authority. This right is not absolute and may be subject to restrictions for the protection
of, amongst other things, national security and public order. The prohibition on publication or
disclosure of certain information is only enlivened in situations where disclosure of the
information would prejudice the security, defence or international relations of the
Commonwealth, or raise a risk of harm to an individual. The limitation on freedom of
expression falls within the exceptions provided by Article 19(3), and is a permissible
limitation on this right.
Conclusion
The Bill is compatible with human rights because to the extent that it may limit human rights,
those limitations are reasonable, necessary and proportionate to the objective of ensuring
transparency and accountability in the spending of public funds.
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 5
INDEPENDENT PARLIAMENTARY EXPENSES AUTHORITY BILL 2017
NOTES ON CLAUSES
Part 1-Preliminary
Clause 1--Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2--Commencement
2. This clause would provide for the commencement of each provision of the Bill, as set
out in the table. Item 1 in the table provides that sections 1 to 2, concerning the formal
aspects of the Bill, as well as anything in the Bill not elsewhere covered by the table, will
commence on the day on which the Bill receives Royal Assent.
3. Item 2 in the table would provide that sections 3 to 64, which contain the substantive
provisions of the Bill, would commence on a single day to be fixed by proclamation.
However, if the provisions do not commence before 12 months from the day after the Bill
receives the Royal Assent, they will commence on that day.
4. The 12 month proclamation period for commencement is necessary to ensure that
commencement of the Bill aligns either with the start of a calendar or a financial year,
depending on the date of final passage of the Bill, and to align commencement with a
forthcoming Bill to establish a new framework for parliamentary work expenses.
5. Subclause 2(2) provides that any information in column 3 of the table is not part of
this Act. Information may be inserted in this column, or information in it may be edited, in
any published version of this Act
Clause 3--Simplified outline of this Act
6. Clause 3 would provide a simplified outline of the Bill to aid readers of the Act.
Clause 4--Definitions
7. Clause 4 would provide definitions to support the operation of provisions of the Bill.
Key definitions are designed to capture particular expenses and allowances currently
provided under the existing parliamentary work expenses framework and anticipate the
Authority's role in administering aspects of a future parliamentary work expenses framework.
These definitions are discussed throughout the Explanatory Memorandum where they are
relevant to the operation of a particular clause.
Clause 5--Benefits or expenses in connection with travel
8. A number of definitions set out in clause 4 refer to costs that are benefits or expenses
connected with both travel and overseas travel for the purposes of the Bill.
9. Clause 5 would provide examples of benefits or expenses in connection with travel,
and in connection with travel overseas, to aid the interpretation of the definitions contained in
clause 4.
Clause 6--Vacancy in the office of a member of the Authority
10. Clause 6 would provide that for the purposes of references in the Bill or the Acts
Interpretation Act 1901 to a vacancy in the office of a member of the Authority, there are
taken to be 4 offices of members of the Authority in addition to the Chair of the Authority.
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 6
11. This is particularly relevant to the Minister's power to make acting appointments
under clause 18, and section 33A of the Acts Interpretation Act, which provides standard
rules relating to acting appointments.
Clause 7--Crown to be bound
12. Clause 7 would provide that the Bill binds the Crown in the right of the
Commonwealth.
Clause 8--Extension to external Territories
13. Clause 8 would provide that the Bill extends to every external Territory.
Clause 9--Extra-territorial operation
14. Clause 9 would provide that the Bill has extra-territorial operation. This is necessary
to ensure that the Authority can oversee international travel and related work expenses of
MPs and MOPS staff.
Part 2--Independent Parliamentary Expenses Authority
Division 1--Introduction
Clause 10--Simplified outline of this Part
15. Clause 10 would provide a simplified outline of Part 2 to aid readers of the Act.
Division 2--Authority's establishment, functions, power and liabilities
Clause 11--Independent Parliamentary Expenses Authority
16. Clause 11 would establish the Authority and would clarify the treatment of the
Authority for the purposes of the PGPA Act.
17. Subclause 11(2) would provide that for the purposes of the PGPA Act:
the Authority is prescribed as a listed entity, meaning it is a non-corporate
Commonwealth entity for the purposes of the PGPA Act,
the CEO is prescribed for the purposes of item 3 in the table in subsection 12(2) of the
PGPA Act to be the Accountable Authority of the Authority. The Accountable
Authority of a Commonwealth entity has certain duties and obligations in respect of
the entity's management and the management of its resources under the PGPA Act,
the following are officials for the purposes of section 13 of the PGPA Act and have
certain duties and obligations in respect of the management of the Authority and its
resources under the PGPA Act:
o the Chair of the Authority
o the other members of the Authority
o the CEO
o the Authority's staff
o any persons assisting the Authority under clause 50 (for example, officers and
employees of Agencies under the Public Service Act 1999, or officers and
employees of a State or Territory) by providing services in connection with the
Authority's functions under clause 12 of the Act, as well as
o consultants engaged by the CEO under clause 51, to assist the Authority in the
performance of its functions under clause 12.
18. Paragraph 11(2)(d) would clarify that the purposes of Authority includes the functions
of the Authority set out in clause 12, and the functions of the CEO set out in clause 37. This
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 7
is relevant to concepts established in the PGPA Act such as the duty of the CEO (as the
Accountable Authority) to govern the Authority in a way that promotes the achievement of
the purposes of the Authority (see paragraph 15(1)(b) of the PGPA Act).
Clause 12--Functions of the Authority
19. Clause 12 would set out a number of specific functions that the Authority may
perform. Functions that relate to the travel expenses and allowances for MPs have been
generally mirrored in respect of travel expenses and allowances for MOPS staff.
20. Importantly, the Bill would establish the Authority with functions to enable it to
administer travel expense and allowances for MPs and MOPS staff under both the existing
parliamentary work expenses framework and any future work expenses framework that may
be established, especially one established to implement the recommendations of An
Independent Parliamentary Entitlements System Review. Consequently, some of the functions
are drafted so that the Authority can also administer a future legislative scheme only. None of
the functions that this Bill would confer on the Authority provide new or alter existing work
expenses to MPs or MOPS staff. The functions merely provide the Authority with functions
to administer aspects of the existing parliamentary work expenses framework, or a future
work expenses framework implemented through separate legislation.
21. Personal advice: paragraphs 12(1)(a) and 12(1)(p) would allow the Authority to
provide personal advice to:
MPs and former MPs, and
MOPS staff
on MP travel expenditure matters and MOPS travel expenditure matters respectively.
22. 'MP travel expenditure matter' would be defined by clause 4 to include:
a matter relating to, or a claim made for, 'MP travel expenses' that are incurred
after the transition time (defined by clause 4 as a time declared by a future Act).
This would cover travel expenses that may be provided under a future
parliamentary work expenses framework
matters relating to, or a claim made for, a 'designated parliamentary travel benefit'
(defined by clause 4). This would cover travel expenses provided under the
existing parliamentary work expenses framework to a person specified under that
framework (for example, the existing parliamentary work expenses framework
makes provision for some travel expenses to be provided to a spouse of an MP, a
dependent child of an MP, a designated or nominated person of an MP, and in
some instances a former MP--although this would not cover a travel expense
covered by the Members of Parliament (Life Gold Pass) Act 2002 or the
Parliamentary Retirement Travel Act 2002), and
matters relating to, or a claim made for, an allowance payable to an MP in
connection with one or more overnight stays by the MP.
23. 'MOPS travel expenditure matter' would be defined by clause 4 to include matters
relating to, or claims made for, travel expenses or allowances incurred by a MOPS staff
member for official business. This would include matters relating to, or claims under the
existing parliamentary work expenses framework as well as a future parliamentary work
expenses framework. For MOPS staff to claim expenses or allowances in respect of travel the
travel must be undertaken at the direction of their employing MP.
24. 'Personal advice' takes its ordinary meaning and is intended to cover both general
advice given personally to MPs or MOPS staff, as well as advice that is specific to the
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 8
personal circumstances of MPs or MOPS staff. It is intended that documents produced by the
Authority in respect of providing or producing advice under these paragraphs, including
internal working documents, will be exempt from the FOI Act to allow the Authority to give
frank advice to MPs and MOPS staff about their travel expenses and allowances and to
encourage early engagement with the Authority on such matters. Consequently, the
exemption would also extend to the request for advice from the MP or MOPS staff member.
The exemption from the FOI Act would be implemented through the Independent
Parliamentary Expenses Authority (Consequential Amendments) Bill 2017.
25. General advice: paragraphs 12(1)(b) and 12(1)(q) would allow the Authority to issue
general advisory documents in respect of MP and MOPS travel expenditure matters (defined
by clause 4 of the Bill and referred to above at paragraph 22). This could include handbooks
or guidelines that detail the law relating to MP and MOPS travel expenditure matters to assist
MPs and MOPS staff in understanding and accessing travel expenses and allowances. Such
documents can be made accessible on the Authority's website at the Authority's discretion
(see subparagraphs 12(1)(b)(ii) and 12(1)(q)(ii)).
26. Monitoring of expenditure: paragraphs 12(1)(c) and 12(1)(r) would allow the
Authority to monitor MP and MOPS staff travel expenditure matters (defined by clause 4 of
the Bill and referred to above at paragraph 22). This function is administrative in nature and
may involve keeping, or checking, records of an individual's access to travel expenses and
allowances to advise, or produce reports, on relevant budgets or caps.
27. Regular reports on expenditure: paragraphs 12(1)(d) and 12(1)(s) would allow the
Authority to prepare regular reports on MP work expense matters and MOPS travel
expenditure matters respectively. At present reports of this kind are released every six months
by the Department of Finance. Over time, reporting will shift to a quarterly and then monthly
basis to improve transparency and accountability for both MP and MOPS staff work
expenses.
28. 'MP work expense matter' would be defined by clause 4 to include:
a matter relating to, or a claim made for, travel or other work expenses that are
incurred after the transition time (defined by clause 4 as a time declared by a
future Act). This is designed to cover travel or work expenses that may be
provided under a future work expenses framework
a matter relating to, or a claim made for, a designated parliamentary benefit
(defined in clause 4 of the Bill). This is designed to cover:
work expenses currently provided under the existing parliamentary work
expenses framework, except for those which are in the nature of salary
(such as those currently under provided under Determination 2016/16:
Members of Parliament--Base Salary, Additional Salary for
Parliamentary Office Holders, and Related Matters of the Remuneration
Tribunal)
travel expenses provided to a Minister of State under the executive power,
and
the provision of some travel expenses for a former MP as authorised by a
law, but excluding the Members of Parliament (Life Gold Pass) Act 2002
and the Parliamentary Retirement Travel Act 2002, and
a matter relating to, or a claim made for, an 'MP travel allowance' (defined in
clause 4 of the Bill), which would cover an allowance payable to an MP in
connection with one or more overnight stays by the MP.
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 9
29. MOPS travel expenditure matters would be defined in clause 4 of the Bill and further
clarification is provided on this term at paragraph 223 above.
30. This means that the reports prepared under paragraphs 12(1)(d) and 12(1)(s) would be
able to cover:
travel or other work expenses provided under both the existing parliamentary
work expenses framework and a future work expenses framework in respect of
MPs, and
travel expenses and allowances for MOPS staff under both the existing
parliamentary work expenses framework and a future work expenses framework.
31. Subparagraphs 12(1)(d)(ii) and 12(1)(s)(ii) would provide that the Authority must
publish the reports produced under paragraphs 12(1)(d) and 12(1)(s).
32. Other reports: paragraphs 12(1)(e) and 12(1)(t) would provide the Authority with
the discretion to produce other reports in addition to the reports they are required to produce
and publish under paragraphs 12(1)(d) and 12(1)(s). Reports under paragraphs 12(1)(e) and
12(1)(t) can be related to MP work expense matters (defined in clause 4 and referred to above
at paragraph 28) and MOPS travel expenditure matters respectively (defined in clause 4 and
referred to above at paragraph 23). Subparagraphs 12(1)(e)(ii) and 12(1)(t)(ii) provide the
Authority with the discretion to publish these reports as it considers appropriate. A report
prepared under these paragraphs may encompass a wide range of reporting documents, many
of which may only be of use to the internal administration and management of the
Authority's affairs.
33. Audits: paragraphs 12(1)(f) and 12(1)(u) would allow the Authority to exercise its
discretion to conduct, or arrange for the conduct of, audits relating to both MP work expense
matters (defined in clause 4 and referred to above at paragraph 28) and MOPS travel
expenditure matters (defined in clause 4 and referred to above at paragraph 23) respectively.
This means that an audit may cover:
travel or other work expenses provided under both the existing parliamentary
work expenses framework and a future work expenses framework in respect of
MPs, and
travel expenses and allowances for MOPS staff under both the existing
parliamentary work expenses framework and a future work expenses framework.
34. For the purposes of paragraphs 12(1)(f) and 12(1)(u) audit has its ordinary meaning.
Subclause 63(7) would clarify that it is immaterial whether an audit relates to a matter that
occurred before, at, or after the commencement of this Bill. This ensures that the function of
auditing MP and MOPS staff work expenses is wholly transferred from the Department of
Finance to the Authority, such that there are no legacy arrangements relating to future audits
of MP and MOPS staff work expenses.
35. Claims processing and related functions: paragraphs 12(1)(g) and 12(1)(v) would
provide the Authority with claims processing functions in respect of the following:
'MP travel expenses', covering travel expenses that may be provided by a future
parliamentary work expenses framework
'designated parliamentary travel benefits', covering travel expenses provided
under the existing parliamentary work expenses framework to a person specified
under that framework (for example, the existing parliamentary work expenses
framework makes provision for some travel expenses to be provided to a spouse
of an MP, a dependent child of an MP, a designated or nominated person of an
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 10
MP, and in some instances a former MP--although this would not cover a travel
expense covered by the Members of Parliament (Life Gold Pass) Act 2002 or the
Parliamentary Retirement Travel Act 2002)
'MP travel allowances', covering allowances payable to an MP in connection with
one or more overnight stays by an MP
'MOPS travel expenses', covering expenses incurred in connection with travel by
a MOPS staff member for official business, and
'MOPS travel allowances', covering an allowance payable to a MOPS staff
member in connection with travel for official business.
36. Clause 4 would clarify that a claim under paragraphs 12(1)(g) and 12(1)(v) includes a
request and subclause 63(2) would clarify that a claim can be made before, or can relate to a
matter that occurred before, the commencement of the Bill. This would ensure, for example,
that if an MP lodged a claim and it had not been processed prior to the commencement of the
Bill, it could be processed by the Authority after the commencement of the Bill.
37. Paragraphs 12(1)(h), 12(1)(i) and 12(1)(j) would allow the Authority to incur or pay
an MP travel expense or pay an MP travel allowance on behalf of the Commonwealth where
it is authorised by a law of the Commonwealth. This would allow the Authority to incur or
pay travel expenses provided under a new work expenses framework, or pay travel
allowances to an MP in connection with one or more overnight stays by an MP.
38. Similarly, paragraphs 12(1)(w), 12(1)(x) and 12(1)(y) provide that in respect of
MOPS staff members, the Authority can incur or pay a MOPS travel expense, or pay a MOPS
travel allowance, on behalf of the Commonwealth where:
it is authorised by or under a law of the Commonwealth
by an agreement made under a law of the Commonwealth (such as an Enterprise
Agreement), or
in the case of a MOPS travel expense--as provided by the executive power of the
Commonwealth.
39. Paragraphs 12(1)(k) and 12(1)(l) would allow the Authority to make a payment in
respect of a designated parliamentary travel benefit (defined in clause 4 and referred to above
at paragraph 35) or provide, or arrange for the provision of, goods, services, facilities by way
of a designated parliamentary travel benefit. This would allow the Authority to make
payments or arrange for the provision of goods, services, or facilities in respect of existing
travel expenses provided under the existing parliamentary work expenses framework. This
could cover arranging for the provision of a private-plated vehicle consistent with existing
determinations of the Remuneration Tribunal, or arranging for the use of special purpose
aircraft under the Parliamentary Entitlements Act 1990.
40. Rulings on travel expenses: paragraphs 12(1)(m) and 12(1)(z) would allow the
Authority to give rulings if an MP travel expenses law, or a law of the Commonwealth with
respect to MOPS staff travel and allowances, authorised such a ruling. The existing
parliamentary work expenses framework would not allow the Authority to make a ruling in
relation to travel expenses or allowances. However, a future parliamentary work expenses
framework, or an amendment to the existing framework, may confer power on the Authority
to make such rulings.
41. An 'MP travel expenses law' would be defined by clause 4 of the Bill to cover a law
that provides travel expenses and allowances to individuals as part of both the existing
parliamentary work expenses framework and a future parliamentary work expenses
framework (but does not include laws in the nature of salary, such as those currently provided
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 11
under Determination 2016/16: Members of Parliament--Base Salary, Additional Salary for
Parliamentary Office Holders, and Related Matters of the Remuneration Tribunal).
42. Debt recovery: paragraphs 12(1)(n), 12(1)(o) and 12(1)(za) relate to debt recovery
and set-off in respect of travel expenses and allowances for MPs and MOPS staff. The
provisions would only be enlivened where an existing or future law of the Commonwealth
provided a debt recovery or set-off mechanism in respect of an MP or a MOPS staff travel
expense or allowance.
43. Functions conferred by other laws: paragraphs 12(1)(zb) and 12(1)(zc) would allow
the Authority to perform any functions that are conferred on it by an MP work expenses law,
or any other law of the Commonwealth.
44. 'MP work expenses law' would be defined by clause 4 to cover relevant legislation in
the existing and future work expenses frameworks, which may confer additional functions on
the Authority. The definition includes:
a law of the Commonwealth which relates to:
'MP work expenses' (defined by clause 4 of the Bill to cover travel
expenses or other expenses that may be provided after the transition time
declared by a future Act - the intention being to capture work expenses
under a future parliamentary work expenses framework)
'MP travel allowance' (defined by clause 4 of the Bill to cover allowances
payable to an MP in connection with one or more overnight stays by an
MP)
the Parliamentary Entitlements Act 1990 and its subordinate legislation, and
determinations made by the Remuneration Tribunal under relevant sections of the
Remuneration Tribunal Act 1973 as they relate to a benefit (however described)
for MPs (including Ministers of State or holders of a relevant parliamentary
office) that is not in the nature of salary (such as those currently under provided
under Determination 2016/16: Members of Parliament-Base Salary, Additional
Salary for Parliamentary Office Holders, and Related Matters of the
Remuneration Tribunal).
45. Functions conferred by the legislative rules: paragraph 12(1)(zd) would allow
additional functions to be conferred on the Authority by legislative rules. The Authority will
be the first independent statutory authority to administer parliamentary work expenses. A
legislative instrument of this kind would allow flexibility to address matters that may arise as
a consequence of the unique and complex nature of the existing and emerging parliamentary
work expenses framework.
46. Incidental functions: paragraph 12(1)(ze) would provide that, for avoidance of
doubt, the Authority also has any functions that are incidental to or would allow it to perform
any of the other functions listed in subclause 12(1).
47. Subclause 12(2) would clarify that a report produced under any of the Authority's
reporting functions may include personal information within the meaning of the Privacy Act.
The note to subsection 12(2) clarifies that each of the paragraphs referred to in
subclause 12(2) constitutes an authorisation for the purposes of the Privacy Act and other
laws.
48. Importantly, clause 60 would establish a regime in respect of public reporting that
would allow certain information to be protected from disclosure where there is a risk that
public reporting could be misused to harm MPs, their staff, or the Commonwealth.
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 12
Relevantly, where the inclusion of certain information (including personal information under
the Privacy Act) may cause serious harm to an MP or a MOPS staff member the Authority
must not include such information in a public report. These provisions would assist the
Authority to achieve balance in transparent public reporting, and the protection of individuals
who are the subject of that reporting.
49. Subclauses 12(3)-(5) would clarify that provisions of subclause 12(1) would not, by
implication, prevent an agent of the Commonwealth (other than the Authority) from having
the authority to incur an MP travel expense, designated parliamentary benefit, or MOPS
travel expense on the Commonwealth. This is intended to ensure that, for example, MPs can
continue to use Cabcharge vouchers to pay for taxi travel, or to use the Commonwealth travel
provider to book travel.
Clause 13--Powers of the Authority
50. Clause 13 would broaden the scope of the Authority's functions set out in clause 12 to
include any additional functions that are necessary or convenient to be done for or in
connection for the performance of the functions set out in clause 12.
Clause 14--Authority has privileges and immunities of the Crown
51. Clause 14 would confirm that the Authority has the privileges and immunities of the
Crown in the right of the Commonwealth. Notwithstanding this, clause 7 would clarify that
the Act binds the Crown in the right of the Commonwealth.
Division 3--Membership of the Authority
Clause 15--Membership of the Authority
52. Clause 15 would provide that the membership of the Authority consists of a Chair, the
President of the Remuneration Tribunal, and at least two and not more than three other
members.
Clause 16--Appointment of members of the Authority
53. Clause 16 of the Bill would provide rules for appointment of the members of the
Authority.
54. Subclause 16(1) would provide that each member of the Authority (other than the
President of the Remuneration Tribunal) is to be appointed by the Governor-General.
In accordance with section 33AA of the Acts Interpretation Act, the power to appoint
includes a power to reappoint.
55. Subclauses 16(2)-(4) would provide that the Authority must include the following
appointed members:
either a former Commonwealth judicial officer or a former judge of the Supreme
Court of a State or Territory,
a former member of parliament (member of parliament is defined by clause 4 of
the Bill as either a senator, or a member of the House of Representatives), and
a person who the Minister is satisfied has substantial experience or knowledge,
and significant standing in the field of auditing (for example, a former Auditor-
General).
56. Subclause 16(5) would provide that if five members are appointed to the Authority,
the fifth member must be a person who the Minister is satisfied has substantial experience or
knowledge, and significant standing in the field of either public administration or corporate
governance. Subclause 16(5) would not require a fifth member to be appointed to the
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 13
Authority, but sets out the requirements that will apply if the Authority is to consist of five
members.
57. Subclause 16(6) would provide that the members of the Authority, including the
Chair, would hold office on part-time basis.
58. Subclause 16(7) would provide that the performance of the functions, or the exercise
of the powers, of the Authority is not affected merely because its membership is not as
required unless a continuous period of three months has elapsed since its membership ceased
to be as so required. This provision is intended to ensure that the operations of the Authority
are not affected by unexpected vacancies in the membership arising from resignations,
deaths, terminations or other unforeseen circumstances. A three month time limit is set to
ensure that the membership of the Authority is replenished within a reasonable period. An
acting appointment under clause 18 of the Bill would satisfy this requirement.
59. Subclause 16(8) clarifies that the office held by the President of the Remuneration
Tribunal on the Authority is not a public office for the purposes of paragraph 4(4)(c) of the
Remuneration Tribunal Act, which would otherwise prevent a member of the Remuneration
Tribunal from holding another public office. A potential conflict of interest for the President
is avoided by subclause 19(4), which provides for the President to be paid fees and
allowances as prescribed by legislative rules made by the Minister under clause 64 of the Bill.
Clause 17--Period of appointment for members of the Authority
60. Clause 17 would provide that a member of the Authority holds office for the term
specified in the instrument of appointment, not exceeding 5 years. However, in accordance
with section 33AA of the Acts Interpretation Act, a member would be able to be reappointed
upon the expiration of this term.
Clause 18--Acting members of the Authority
61. Clause 18 would provide that the Minister may, by writing, appoint an acting Chair
(subclause 18(1)) or other acting member of the Authority (subclause 18(2)), where the
relevant office is vacant or the person holding that office is absent or unable to perform their
duties.
62. OPC drafting direction 3.6 notes (at paragraph 126) that provisions on acting
appointments:
... are fleshed out by a number of provisions in the [Acts Interpretation Act] that operate
in relation to acting appointments. These are as follows:
section 20 provides that a reference to the holder of an office covers a person who
performs for the time being the duties of the office;
section 33AB deals with the validity of things done under appointments;
paragraph 33A(1)(a) provides that an acting appointment may be expressed to
have effect only in the circumstances specified in the instrument of appointment;
paragraph 33A(1)(b) provides that the appointer may determine the terms and
conditions of the appointment (including remuneration and allowances) and may
terminate the appointment at any time;
paragraph 33A(1)(ba) provides that a person appointed to act in a vacant office
must not continue to act in the office for longer than 12 months;
paragraph 33A(1)(c) provides that, if the appointee is acting in the office and,
during the course of acting the office becomes vacant, the appointee may
continue to act until the appointer directs otherwise, the vacancy is filled, or 12
months expires (whichever happens first);
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 14
paragraph 33A(1)(d) provides that the appointment ceases to have effect if the
appointee resigns in writing delivered to the appointer;
paragraph 33A(1)(e) provides that the appointee has, and may exercise, all the
powers of the holder of the office and must perform all the functions and duties
of the holder of the office. It also provides that the establishing Act and any other
Act applies to the appointee as if the appointee were the holder of the office.
Division 4--Terms and conditions for members of the Authority.
Clause 19--Remuneration
63. Clause 19 would provide that the remuneration to be paid to appointed members of
the Authority (that is, members other than the President of the Remuneration Tribunal) is
determined by the Remuneration Tribunal. Where no determination of that remuneration by
the Tribunal is in operation (for example, at commencement of the Authority), members are
to be paid remuneration prescribed by the legislative rules made by the Minister under clause
64 of the Bill.
64. Subclause 19(2) would provide that a member of the Authority is to be paid the
allowances that are prescribed by the legislative rules.
65. Subclause 19(3) would provide that subclauses 19(1) and (2) have effect subject to the
Remuneration Tribunal Act. OPC drafting direction 3.6 explains that the effect of this
provision is that:
If the Tribunal does determine allowances of the kinds covered by subsection (2), subsection
(3) of the standard provision ensures that the Tribunal's determination prevails over any
regulations or other instruments made for the purposes of subsection (2).
Subsection (3) also ensures the application of provisions of the Remuneration Tribunal Act
1973 that have the effect, in certain circumstances, of debarring the office-holder from
receiving remuneration (for instance, if he or she is at the same time a full-time public
servant).
66. Paragraph 15(b) would make the President of the Remuneration Tribunal an ex officio
member of the Authority. To allow the President to be a member of the Authority without
unacceptable conflicts of interests (in setting his or her own remuneration for that role),
subclause 19(4) would provide that the standard remuneration provisions for members will
not apply to the President of the Remuneration Tribunal. Instead, fees and allowances for the
President would be set by the legislative rules made by the Minister under clause 64 of the
Bill. This is consistent with the Remuneration Tribunal Act, which provides in section 12 that
fees and allowances for members of the Remuneration Tribunal are as prescribed.
Clause 20--Disclosure of interests
67. Section 29 of the PGPA Act requires an official of a Commonwealth entity to disclose
details of material personal interests that the official has that relate to the affairs of the entity.
Subparagraphs 11(2)(c)(i) and (ii) of the Bill would provide that the Chair and members of
the Authority are officials of the Authority for the purposes of the finance law (within the
meaning of the PGPA Act). This obligation accordingly applies to them.
68. Subclause 20(1) would provide that when making a disclosure under section 29 of the
PGPA Act, a member of the Authority must make a disclosure to the Minister.
Subclause 20(3) would provide that a failure to make such a disclosure will result in the
member being taken not to comply with section 29 of the PGPA Act.
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 15
69. Subclause 20(2) would provide that subclause 20(1) would apply in addition to any
rules made for the purposes of section 29 of the PGPA Act. Relevantly, section 16A of the
Public Governance, Performance, and Accountability Act Rule 2014 provides that members
appointed to bodies must make disclosures to each other appointed member of the body.
Accordingly, members of the Authority would be required to make disclosures of material
personal interests to the other members of the Authority.
70. Paragraph 24(2)(c) of the Bill would provide that a member may be terminated by the
Governor-General where the member fails, without reasonable excuse, to comply with
section 29 of the PGPA Act. This is an important integrity measure to ensure that members
do not have conflicts of interest that affect their duties as members.
Clause 21--Paid work
71. Clause 21 would provide that a member of the Authority must not engage in any paid
work that conflicts or may conflict with the proper performance of their duties.
72. Paragraph 24(2)(b) would provide the Governor-General with the power to terminate
a member's appointment for non-compliance with this provision. This is an important
integrity measure to ensure that members do not engage in other work that may conflict with
the performance of their duties as members of the Authority.
Clause 22--Leave of absence
73. Clause 22 would provide for leave arrangements for members.
74. Subclause 22(1) would provide that the Minister may grant a leave of absence to the
Chair of the Authority on the terms and conditions as to remuneration or otherwise that the
Minister determines.
75. Subclause 22(2) would provide that the Chair of the Authority may grant leave of
absence to a member of the Authority on the terms and conditions that the Chair determines.
This may be useful, for example, to allow the Chair from time to time to excuse a part-time
member from attending a meeting of the Authority.
76. The ability to grant a leave of absence under clause 22 is also important in the context
of paragraph 24(2)(d) of the Bill, which would provide the Governor-General with the power
to terminate a member's appointment where they are absent from three consecutive meetings,
unless they are on a leave of absence under clause 22.
Clause 23--Resignation
77. Clause 23 would provide that a member of the Authority may resign their
appointment by giving the Governor-General a written resignation, and that the resignation
takes effect on the day it is received by the Governor-General or, if a later day is specified in
the resignation, on that later day.
Clause 24--Termination of appointment
78. Clause 24 would provide grounds for termination of the appointment of an appointed
member of the Authority, that is, a member of the Authority other than the President of the
Remuneration Tribunal (provisions for removal of the President from office may be found in
section 9 of the Remuneration Tribunal Act). This provision is closely modelled on the
standard termination provision provided in OPC drafting direction 3.6. The choice of the
Governor-General as the decision-maker on termination is intended to reinforce the
independence of the Authority.
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 16
79. Subclause 24(1) would provide that an appointed member may be terminated by the
Governor-General for misbehaviour, or if the member is unable to perform the member's
duties because of physical or mental incapacity. However, termination for incapacity would
not be available where a member is able to perform duties if a reasonable adjustment (such as
accessibility software for a member with a vision impairment) is made.
80. Subclause 24(2) would provide a number of other specific grounds for termination,
including:
bankruptcy and related grounds (24(2)(a))
unapproved outside work (24(2)(b))
an undeclared conflict of interest (24(2)(c)), and
absence without leave (24(2)(d)).
81. These termination provisions are intended to promote the integrity and effective
operation of the Authority.
Clause 25--Other terms and conditions
82. Clause 25 would empower the Governor-General to determine the terms and
conditions (if any) under which a member holds office in relation to matters not covered by
the Bill.
Division 5--Decision-making by the Authority
Clause 26--Holding of meetings
83. Clause 26 would provide that the Authority must hold such meetings as are necessary
to efficiently perform its functions, and that the Chair may convene a meeting at any time.
Clause 27--Presiding at meetings
84. Clause 27 would provide that the Chair will preside at all meetings, unless he or she is
not present at the meeting, in which case the members of the Authority present at the meeting
must appoint one of their number to preside.
Clause 28--Quorum
85. Clause 28 would provide that two members of the Authority constitute a quorum at a
meeting of the Authority.
Clause 29--Voting at meeting etc.
86. Clause 29 would provide that a question arising at meetings of the Authority are to be
determined by a majority of the votes of the members of the Authority who are present and
cast a vote. In the event of the votes being equal, the member presiding at that meeting has a
casting vote.
Clause 30--Conduct of meetings
87. Clause 30 would provide that the Authority may regulate proceedings at its meetings
as it considers appropriate, as long as it does not contravene Division 5 of the Bill.
Clause 31--Minutes
88. Clause 31 would provide that the Authority must keep minutes of its meetings.
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 17
Division 6--Delegation.
Clause 32--Delegation by the Authority
89. Clause 32 would allow the Authority to delegate any or all of its functions and powers
to a member of the Authority (including the Chair), the CEO, a member of the staff of the
Authority, or a person assisting the Authority under clause 50 (for example, officers and
employees of Commonwealth Agencies or authorities; or officers and employees of a State or
Territory).
90. The ability to delegate to any of the staff assisting the Authority is necessary because
of the large volume of claims processing and administrative work that will be undertaken by
the Authority, particularly in relation to processing travel expenses and allowances, and is
consistent with existing practice.
91. As noted in the Bill, sections 34AA to 34A of the Acts Interpretation Act contains
provisions relating to delegations. These include:
delegations may be made to specified offices or positions (in addition to specified
persons) (section 34AA)
powers that may be delegated do not include the power to delegate
(paragraph 34AB(1)(b))
a function, duty or power that is delegated is, when performed by the delegate,
deemed to have been performed by the person or body that delegated the power
(paragraph 34AB(1)(c))
a delegation does not prevent the performance of the delegated power by the
person or body that delegated the power (paragraph 34AB(1)(d))
where a performance of a power is dependent on a person's opinion, belief etc.,
the delegate may exercise the power upon the delegate's opinion, belief etc.
(section 34A).
92. Subclause 32(2) would provide that the delegate, in performing or exercising the
delegated power, must comply with any written directions of the Authority.
93. The delegation will remain in force despite a change of membership
(subclause 32(3)), but may be varied or revoked by the Authority (subclause 32(4)).
Division 7--Other matters
Clauses 33 and 34--Authority must give information to the Secretary; Secretary must
give information to the Authority
94. Under the administration scheme that would be established by the Bill, some
functions relating to MP and MOPS work expenses would continue to be administered by the
Department of Finance. Others would be transferred to the Authority. The Authority, in
particular, would have an overarching function of reporting on, and auditing all MP work
expenses, and all travel expenses and allowances of MOPS staff.
95. In order to perform its functions, particularly reporting and auditing, the Authority
would from time to time require information held by the Department of Finance. Similarly, in
undertaking its continuing functions in relation to MP work expenses other than travel
expenses and allowances, the Department of Finance would from time to time require
information held by the Authority.
96. To enable this information exchange to take place, clauses 33 and 34 would provide
for information exchange between the Authority and the Secretary of the Department of
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 18
Finance, and vice versa, that is reasonably required for the performance of the functions of
either entity.
97. Subclauses 33(2)-(3) and 34(2)-(3) would clarify that this information exchange may
include personal information within the meaning of the Privacy Act, to ensure that privacy
considerations do not prevent this information exchange. As noted above, this limitation to
privacy is necessary to ensure the effective administration and scrutiny of MP and MOPS
staff work expenses. However, privacy obligations would otherwise continue to apply to
information held by either agency in accordance with usual principles.
Part 3--CEO of the Authority
Division 1--Introduction
Clause 35--Simplified outline of this Part
98. Clause 35 would provide a simplified outline of Part 3 to aid readers of the Act.
Clause 36--CEO
99. Clause 36 would provide for the CEO of the Authority.
Clause 37--Functions of the CEO
100. Clause 37 would provide for the functions of the CEO to be:
to manage the administration of the Authority. This is consistent with provisions
making the CEO the Accountable Authority for the purposes of the finance law
(paragraph 11(2)(b)), and the Agency Head for the purposes of the Public Service
Act (paragraph 49(2)(b)), and
to assist the Authority in the performance of its functions. The functions of the
Authority are set out in clause 12.
101. The Authority would also be able to delegate certain of its functions to the CEO under
paragraph 32(1)(b).
Clause 38--Powers of the CEO
102. Clause 38 would provide that the CEO has the power to do all things necessary or
convenient to be done for or in connection with the performance of his or her functions.
103. As Accountable Authority and Agency Head of the Authority, the CEO will also have
a range of management powers for the Authority under the PGPA Act and the Public
Service Act.
Clause 39--Directions by the Authority
104. Subclause 39(1) would provide that the Authority may give written directions to the
CEO about the performance of the CEO's function under paragraph 37(b) of assisting the
Authority in the performance of its functions. This reflects the Authority's responsibility for
the statutory functions of the Authority. Subclause 39(2) would provide that the CEO must
comply with a direction given under subclause 39(1). Subclause 39(4) would provide that a
direction given by the Authority under subclause 39(1) is not a legislative instrument.
Subclause 39(4) is included to assist readers, as the instrument is not a legislative instrument
within the meaning of section 8 of the Legislation Act 2003, and is merely declaratory of the
law.
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 19
105. Subclause 39(3) provides that the CEO would not have to comply with directions to
the extent that:
the direction deals with the allocation of resources for the performance of the
Authority's functions
compliance with the direction would be inconsistent with the CEO's functions or
powers under the PGPA Act, or
the direction relates to the CEO's performance of functions under the Public
Service Act.
106. Clause 39 is intended to clearly delineate the respective roles of the Authority and the
CEO, with the Authority ultimately responsible for the statutory functions of the Authority,
and the CEO ultimately responsible for the day to day management of the finances, staff and
operations of the Authority.
Division 2--Appointments
Clause 40--Appointment of CEO
107. Subclause 40(1) would provide that the CEO is to be appointed by the Minister.
The period of appointment would be limited to 5 years (subclause 40(4)). However, in
accordance with section 33AA of the Acts Interpretation Act, the power to appoint includes a
power to reappoint.
108. Subclause 40(1) would provide that a person must not be appointed CEO unless the
Minister is satisfied that the person has appropriate qualifications, knowledge or experience.
109. The CEO must hold office on a full-time basis. This recognises the significance of
the role of CEO as Accountable Authority and Agency Head.
Clause 41--Appointment of acting CEO
110. Clause 41 would provide that the Minister may, by writing, appoint an acting CEO
where the office of CEO is vacant or the CEO is absent or unable to perform their duties.
A person must not be appointed to act as CEO unless the Minister is satisfied that the person
has the appropriate qualifications, knowledge or experience (subclause 41(2)).
111. OPC drafting direction 3.6 notes (at paragraph 126) that provisions on acting
appointments:
... are fleshed out by a number of provisions in the [Acts Interpretation Act] that operate
in relation to acting appointments. These are as follows:
section 20 provides that a reference to the holder of an office covers a person who
performs for the time being the duties of the office;
section 33AB deals with the validity of things done under appointments;
paragraph 33A(1)(a) provides that an acting appointment may be expressed to
have effect only in the circumstances specified in the instrument of appointment;
paragraph 33A(1)(b) provides that the appointer may determine the terms and
conditions of the appointment (including remuneration and allowances) and may
terminate the appointment at any time;
paragraph 33A(1)(ba) provides that a person appointed to act in a vacant office
must not continue to act in the office for longer than 12 months;
paragraph 33A(1)(c) provides that, if the appointee is acting in the office and,
during the course of acting the office becomes vacant, the appointee may
continue to act until the appointer directs otherwise, the vacancy is filled, or 12
months expires (whichever happens first);
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 20
paragraph 33A(1)(d) provides that the appointment ceases to have effect if the
appointee resigns in writing delivered to the appointer;
paragraph 33A(1)(e) provides that the appointee has, and may exercise, all the
powers of the holder of the office and must perform all the functions and duties
of the holder of the office. It also provides that the establishing Act and any other
Act applies to the appointee as if the appointee were the holder of the office.
Division 3--Terms and conditions for the CEO
Clause 42--Remuneration of the CEO
112. Subclause 42(1) would provide for the remuneration of the CEO to be determined by
the Remuneration Tribunal. However, if a remuneration determination is not in place (for
example, at the commencement of the Authority), the Minister may determine the CEO's
remuneration by legislative rules under clause 64 in the interim.
113. Subclause 42(2) would provide that the CEO is to be paid the allowances prescribed
by the legislative rules made by the Minister under clause 64 of the Bill.
Clause 43--Leave of absence of the CEO
114. Clause 43 would deal with the CEO's leave entitlements. The recreation leave
entitlements of the CEO would be determined by the Remuneration Tribunal.
Subclause 43(2) would provide that the Minister may grant the CEO leave of absence, other
than recreation leave, on the terms or conditions that the Minister determines.
115. The ability to grant a leave of absence under clause 43 is important in the context of
paragraph 46(2)(b) of the bill, which would allow the Minister to terminate the appointment
of the CEO where they are absent for 14 consecutive days, or 28 days in 12 months, without a
leave of absence.
Clause 44--Other employment of the CEO
116. Clause 44 would provide that the CEO must not engage in paid work outside the
duties of his or her office without the Minister's approval.
Clause 45--Resignation of the CEO
117. Clause 45 would provide that the CEO of the Authority may resign their appointment
by giving the Governor-General a written resignation, and that the resignation takes effect on
the day it is received by the Governor-General or, if a later day is specified in the resignation,
on that later day.
Clause 46--Termination of appointment of the CEO
118. Clause 46 would provide grounds for termination of the appointment of the CEO.
This provision is closely modelled on the standard termination provision provided in OPC
drafting direction 3.6.
119. Subclause 46(1) would provide that the CEO may be terminated by the Minister for
misbehaviour, or if the CEO is unable to perform his or her duties because of physical or
mental incapacity. However, termination for incapacity would not be available where the
CEO is able to perform duties if a reasonable adjustment (such as accessibility software for
people with vision impairment) is made.
120. Subclause 46(2) would provide a number of other specific grounds for termination,
including:
bankruptcy and related grounds (46(2)(a))
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 21
absence without leave (46(2)(b))
unapproved outside work (46(2)(c)), and
an undeclared conflict of interest (46(2)(d)).
121. These termination provisions are intended to promote the integrity and effective
operation of the Authority.
Clause 47--Other terms and conditions of the CEO
122. Clause 47 would provide for the Minister to determine terms and conditions for the
CEO on any matters not covered by the Bill.
Part 4--Staff of the Authority etc.
Clause 48--Simplified outline of this Part
123. Clause 48 would provide a simplified outline of Part 4 to aid readers of the Act.
Clause 49--Staff
124. Subclause 49(1) would provide that the staff of the Authority are to be persons
engaged under the Public Service Act.
125. Subclause 49(2) would provide that, for the purposes of the Public Service Act, the
CEO and the staff of the Authority together constitute a Statutory Agency, and the CEO of
the Authority is the head of that Statutory Agency.
Clause 50--Persons assisting the Authority
126. Clause 50 would provide for the officers and employees of:
other APS agencies
Commonwealth authorities
a State or Territory, or
a State or Territory authority
to be made available to assist the Authority in the performance of its functions.
Clause 51--Consultants
127. Clause 51 would empower the CEO to engage consultants to assist in the performance
of the Authority's functions, on behalf of the Commonwealth.
Part 5--Information-gathering powers
Clause 52--Simplified outline of this Part
128. Clause 52 would provide a simplified outline of Part 3 to aid readers of the Act.
Clause 53--Authority may obtain information and documents
129. Clause 53 would provide the Authority with powers to obtain information or a
document from a person where it is relevant to the performance of the following functions
(subclause 53(1)):
preparing and publishing regular reports on MP work expense matters
(paragraph 12(1)(d))
preparing other reports on MP work expense matters that the Authority considers
appropriate that may or may not be published (for example internal financial reports,
statements, or reports for the purposes of an audit) (paragraph 12(1)(e))
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 22
conducting, or arrange for the conduct, of an audit in relation to MP work expense
matters (paragraph 12(1)(f))
preparing and publishing regular reports on MOPS travel expenditure matters
(paragraph 12(1)(s))
preparing other reports on MOPS travel expenditure matters that the Authority
considers appropriate that may or may not be published (for example internal
financial reports, statements, or reports for the purposes of an audit)
(paragraph 12(1)(t)), or
conducting, or arrange for the conduct, of an audit in relation to MOPS travel
expenditure matters (paragraph 12(1)(u)).
130. Subclauses 53(2) and (3) would provide that the Authority may, by written notice,
request the production of information or a document, or a copy of a document. The notice
may specify the manner and form by which information or a document must be produced,
and a timeframe, which must be no less than 14 days.
131. Subclause 53(4) would establish an offence for a failure to comply with a notice
issued under subclause 53(2) to provide information or a document to the Authority, and
provide a maximum penalty for the offence of 30 penalty units. At February 2017, a penalty
unit is defined by section 4AA of the Crimes Act 1914 (Crime Act) as $180.
132. Subclause 53(5) would provide that a notice to produce documents or information
must note this criminal offence, and the effect of sections 137.1 and 137.2 of the Criminal
Code, which create offences for providing false or misleading information or documents to
Commonwealth entities.
133. While clause 53 would provide the Authority with broad powers to compel the
production of information or a document, which may include personal information, the
powers are limited to matters that relate to its functions (as set out in clause 12), and do not
abrogate the following protections:
privilege or immunity against self-incrimination and self-exposure to a civil or
criminal penalty (see clause 55)
parliamentary privilege (see subclause 58(1)), and
legal professional privilege (see subclause 58(2)).
134. The Authority would also be an APP entity for the purposes of section 6 of the
Privacy Act and must handle any personal information it collects, stores, uses or discloses in
a manner consistent with the Australian Privacy Principles.
135. The proposed penalty for the offence in subclause 53(3) is consistent with the Guide
to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, and is
also similar to other offences concerned with a failure to comply with a notice, such as
subsection 167(3) of the Anti-Money Laundering and Counter Terrorism Finance Act 2006.
This measure is a necessary and proportionate measure to ensure both the integrity of the
Authority's reporting and auditing functions and transparency in the administration of
parliamentary work travel expenses and allowances. Such measures are also critical to
strengthening public trust and confidence in the administration of parliamentary travel
expenses and allowances.
Clause 54--Copying documents--reasonable compensation
136. Clause 54 would provide that where a person is required to make copies of documents
that are the subject of a written notice under subclause 53(2), they are entitled to be paid
reasonable compensation by the Authority for complying with that notice. This may cover the
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 23
cost of photocopying the documents, posting the documents, or producing the documents in
any other manner the Authority has requested, such as an electronic copy on a removable
Universal Serial Bus storage device.
Clause 55--Self incrimination
137. Clause 55 would provide that a person is excused from giving information or
producing a document for the purposes of Part 3 of the Act where doing so might tend to
incriminate or expose the person to a penalty. Clause 55 would limit the scope of the
Authority's power to obtain information and documents by preserving the common law
privilege against self-incrimination and self-exposure to a civil or administrative penalty.
Clause 56--Copies of documents
138. Clause 56 would clarify the powers of the Authority to deal with and make copies of
documents produced for the purposes of Part 3 of the Act.
139. Subclause 56(1) would allow the Authority to inspect a document or a copy of a
document produced in accordance with Part 3 of the Act, and:
make a copy of the document (the form of which is not limited, for example: a written
or typed reproduction, a transcript, or a photograph), or
take or retain extracts from the document.
140. Subclause 56(2) would allow the Authority to retain possession of a copy of a
document made and produced for the purposes of a notice provided by the Authority under
subclause 53(2). Subclause 56(2) does not specifically deal with documents covered by a
notice, which would be dealt with in clause 57.
Clause 57--Authority may retain documents
141. Clause 57 would clarify the powers of the Authority to deal with documents produced
to the Authority under Part 3 of the Act. Clause 57 would allow the Authority to retain
possession of documents produced under Part 3 for as long as it considers necessary, but
makes arrangements for the person who would otherwise be entitled to the possession of the
documents, to have access to and use of the documents.
142. Subclause 57(2) would provide that where the Authority takes possession of a
document, the Authority must supply the person who would otherwise be entitled to
possession of the document with a copy of the document certified as a true copy as soon as
practicable.
143. Subclause 57(3) would allow the certified copy to be received in all courts and
tribunals as evidence as if it were the original.
144. Subclause 57(4) would provide that the Authority must allow the person who would
otherwise be entitled to possession of the document to inspect and make copies of, or take
extracts from, the document, at such times and places, as the Authority considers appropriate.
Clause 58--Relationship of information gathering powers to other laws
145. Clause 58 would provide a limitation on the Authority's information-gathering
powers by preserving both parliamentary privileges and legal professional privilege.
146. Subclause 58(1) would provide that Part 3 of the Act is limited by any laws of the
Commonwealth that relate to the powers, privileges and immunities of the Senate and House
of Representatives, and of the members and committee of each House. Therefore, where
Independent Parliamentary Expenses Authority Bill 2017--Explanatory Memorandum Page 24
information or a document is the subject of parliamentary privilege, the Authority cannot
require its production under Part 3 of the Act.
147. Subclause 58(2) provides that Part 3 of the Act also does not affect the operation of
any law relating to legal professional privilege. Information or a document that is the subject
of legal professional privilege cannot be required to be produced under Part 3 of the Act.
Part 6--Miscellaneous
Clause 59--Simplified outline of this Part
148. Clause 59 would provide a simplified outline of Part 4 to aid readers of the Act.
Clause 60--Sensitive information not to be included in public reports
149. As greater information on MP work expenses is provided, on a more frequent basis,
circumstances may arise where there is a risk that public reporting could be misused to harm
MPs, their staff, or the Commonwealth.
150. Clause 60 would accordingly provide that certain information must not be included in
public reports by the Authority.
151. Paragraphs 60(1)(a) and (b) are modelled on subsection 37(1) and paragraph 37(2)(a)
of the Auditor-General Act 1997 and would provide that, where disclosure of certain
information would be contrary to the public interest because it would prejudice the security,
defence, or international relations of the Commonwealth, this information must not be
included by the Authority in public report. Subclause 60(1) would provide that this
determination may either be made by the Authority, or by the Attorney-General (by issuing a
certificate).
152. Paragraph 60(1)(c) is intended to ensure that information is not released that may
cause serious harm to an individual to whom the information relates (this is intended to
particularly cover MPs or MOPS staff members, but is not limited). Harm would be defined
by clause 4 to have the same meaning as in the Dictionary to the Criminal Code; the
Dictionary to the Code defines harm to mean physical or mental harm (whether temporary or
permanent). This paragraph is intended to protect individuals from threats to their personal
safety that fall short of national security matters covered by paragraphs (a) and (b). It might,
for example, be necessary to protect an MP who has suffered family violence, or who is being
stalked by a member of the public. This determination may be made only by the Authority.
153. Subclause 60(2) would provide that where such a determination has been made, the
Authority cannot disclose that information to Parliament. This provision is modelled on
subsection 37(3) of the Auditor-General Act 1997. As noted in the Explanatory Memorandum
to the Auditor-General Bill 1996, 'The effect of subclause 37(3) in these respects is to act as a
declaration for the purposes of section 49 of the Constitution', that is, to affect the scope of
the powers, privileges and immunities of Parliament. This limitation is necessary given the
highly sensitive nature of information that would be covered by a determination under
subclause 60(1). It is also consistent with existing concepts of public interest immunity. The
Government guidelines for official witnesses before Parliamentary Committees and related
matters, February 2015, notes that public interest immunity claims may be made in relation to
information the disclosure of which would, or might reasonably be expected to, 'damage
Australia's national security, defence or international relations', or 'endanger the life or
physical safety of any person' (at paragraph 4.6.1).
154. Subclause 60(3) would provide that, where information is omitted from a public
report because of an Attorney-General certificate, the Authority must state in the report that
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information has been omitted because of an Attorney-General certificate. This is important to
ensure transparency about when the Attorney-General's power to issue certificates has been
exercised.
155. Subclause 60(4) would make it clear that, where the Authority decides not to make a
public report, or omits information from a public report because of this clause, the Authority
may prepare a report that includes the information. If it does so, it must provide the report to
the Prime Minister and the Minister.
156. It is not anticipated clause 60 would be used frequently. However, it is important to
ensure that the increased transparency provided by the Authority is not misused.
Clause 61--Proceedings in the name of the Authority
157. Clause 61 would clarify that proceedings brought for or against the Commonwealth in
relation to the powers or functions of the Authority may be brought in the name of the
Authority.
Clause 62--Independent review
158. Clause 62 would require the Minister to ensure an independent review is undertaken
of the Act, commencing as soon as is practicable after 3 years from commencement of the
Bill.
159. Subclause 62(3) would require the review to produce a written report, and
subclause 62(4) would require this reported to be tabled in Parliament.
160. The establishment of the Authority would be a very significant reform to the
administration and oversight of MP and MOPS work expenses. It is important that a thorough
and independent review of the Act is conducted to ensure that Authority is meeting its
objectives of improving the accountability and transparency of MP work expenses.
161. Three years has been selected as the timeframe for a review to ensure the review can
consider sufficient information about the performance of the Authority to meaningfully
assess its performance.
Clause 63--Transitional provisions
162. Clause 63 would provide a number of rules to manage transitional issues.
163. Subclauses 63(1)-(7) are intended to ensure that a seamless transition can be made to
the Authority in taking up the functions listed in clause 12, in relation to its functions of
providing advice, processing claims, producing reports, recovering monies, and conducting
audits.
164. These provisions would ensure, for example, that a claim for travel expenses made
shortly before the commencement of the Authority could be dealt with by the Authority
without paperwork being resubmitted.
165. Subclause 63(8) would allow the Minister to make legislative rules under clause 64 of
the Bill relating to the abolition of the interim Authority. This is intended to ensure a
seamless transition to the statutory Authority, by allowing rules to be made addressing any
transitional issues that arise in implementation of the new Authority.
Clause 64--Legislative rules
166. Clause 64 would provide that the Minister may, by legislative instrument, make rules
prescribing matters required or permitted by the Act to be prescribed by the legislative rules,
or necessary and convenient to be prescribed for carrying out or giving effect to the Act.
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167. The Bill would specifically permit rules to be made under:
clause 12(1)(zd), to prescribe additional functions to be undertaken by the
Authority
clause 19, to prescribe remuneration and allowances for members of the Authority
in certain circumstances
clause 42, to prescribe remuneration and allowances for the CEO in certain
circumstances, and
clause 63, in relation to matters of a transitional nature arising from the abolition
of the interim Authority.
168. Subclause 64(2) would provide that legislative rules could not:
create an offence or civil penalty (64(2)(a))
provide powers of arrest, detention, entry, search or seizure (64(2)(b))
impose a tax (64(2)(c))
make an appropriation from the Consolidated Revenue Fund (64(2)(d)), or
directly amend the text of the Act (64(2)(e)).
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Glossary
Acts Interpretation Act Acts Interpretation Act 1901
Authority the Independent Parliamentary Expenses Authority
CEO The Chief Executive Officer of the Independent Parliamentary
Expenses Authority
Crimes Act Crimes Act 1914
Criminal Code the Criminal Code at Schedule 1 to the Criminal Code Act
1995
Finance law means the PGPA Act, the PGPA Rules, an instrument made
under the PGPA Act, or an Appropriation Act
FOI Act Freedom of Information Act 1982
MP a Senator or a member of the House of Representatives
MOPS staff a person employed under Parts III or IV of the Members of
Parliament (Staff) Act 1984
PGPA Act the Public Governance, Performance and Accountability Act
2013
Privacy Act Privacy Act 1988
Public Service Act Public Service Act 1999
Remuneration Tribunal Act Remuneration Tribunal Act 1973
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