An Act to provide for the employment of consultants and staff by Ministers, certain office‑holders, Senators and Members of the House of Representatives, and for related purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Members of Parliament (Staff) Act 1984.
2 Commencement
(1) Part I shall come into operation on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act shall come into operation on such day as is, or such respective days as are, fixed by Proclamation.
3 Interpretation
In this Act, unless the contrary intention appears:
Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.
office‑holder means:
(a) a person who holds a relevant office;
(aa) a person, not being a Senator or Member of the House of Representatives, who held the office of Prime Minister; or
(b) a person in respect of whom a determination by the Prime Minister under section 12 is in force.
pensioner means:
(aa) a person to whom an invalidity pension, within the meaning of the Superannuation Act 1990 is payable; or
(a) a person to whom an invalidity pension within the meaning of the Superannuation Act 1976 is payable; or
(b) a person to whom a pension under the Superannuation Act 1922 is payable, being a person who was retired on the ground of invalidity or of physical or mental incapacity to perform the person’s duties.
relevant office means:
(a) an office of Minister;
(b) the office of Leader of the Opposition in the Senate;
(c) the office of Leader of the Opposition in the House of Representatives;
(d) the office of Deputy Leader of the Opposition in the Senate;
(e) the office of Deputy Leader of the Opposition in the House of Representatives; or
(f) an office of leader or deputy leader, in a House of the Parliament, of a recognized political party (other than an office that is held by a person who also holds an office referred to in any of the preceding paragraphs of this definition).
relevant Secretary, in relation to a consultant appointed, or proposed to be appointed, by a Minister, means the Secretary of the Department administered by the Minister or, if there is more than one Department administered by the Minister, whichever Secretary the Minister considers appropriate.
3A Relationship with Fair Work Acts
(1) This Act has effect subject to the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
(2) Subsection (1) is not intended to imply anything about the relationship between this Act and any Act other than the Fair Work Act 2009 or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Part II—Ministerial consultants
4 Ministers may engage consultants
(1) A Minister may, with the approval of the Prime Minister, on behalf of the Commonwealth, engage, under an agreement in writing, a natural person, body corporate or partnership as a consultant.
(2) An agreement for the engagement by a Minister of a consultant under subsection (1) shall contain one or more of the following provisions:
(a) a provision to the effect that the consultant is engaged to perform, under the supervision of the Minister, such tasks as are specified in the agreement;
(b) a provision to the effect that the consultant is engaged to perform, under the supervision of the Minister, such tasks as are from time to time specified by the Minister;
(c) a provision to the effect that the consultant is engaged to perform, under the supervision of the relevant Secretary, such tasks as are specified in the agreement;
(d) a provision to the effect that the consultant is engaged to perform, under the supervision of the relevant Secretary, such tasks as are from time to time specified by the Secretary with the Minister’s consent.
(3) Subject to subsection (4), a Minister who engages a consultant under subsection (1) may determine which of the provisions referred to in subsection (2) is or are to be included in the agreement under which the consultant is engaged.
(4) In an agreement for the engagement by a Minister of a consultant under this Part, a task shall not be specified by the Minister, for the purposes of a provision of the kind referred to in paragraph (2)(c), without the agreement of the relevant Secretary.
5 Terms and conditions of engagement
(1) The terms and conditions of an engagement by a Minister of a natural person under this Part, other than terms and conditions relating to any matter in relation to which:
(a) a determination is to be made by the Minister under section 4 or 8; or
(b) express provision is made by section 9;
shall be determined by the Prime Minister.
(2) The terms and conditions of an engagement by a Minister of a body corporate or a partnership under this Part, other than terms and conditions relating to any matter in relation to which:
(a) a determination is to be made by the Minister under section 4; or
(b) express provision is made by section 9;
shall be determined by the Prime Minister.
(3) The terms and conditions of an engagement under this Part that are determined by the Prime Minister under subsection (1) or (2) shall be specified in the agreement relating to the arrangement.
(4) Without limiting the generality of subsection (1) or (2), an agreement for the engagement by a Minister of a consultant under this Part shall make provision for the payment to the consultant of an amount by way of compensation for the early termination of the engagement if the engagement is terminated by subsection 9(1) or by the Minister under subsection 9(2) before the expiration of the period specified in the agreement as the term of the engagement.
(5) An agreement under section 4 may be varied in a manner provided for in the agreement.
6 Natural persons may be engaged under contracts of employment or contracts for services
An agreement for the engagement of a natural person as a consultant under this Part shall specify whether the agreement is to be taken to be a contract of employment or a contract for services.
7 Engagement of natural persons under contracts of employment
(1) In this section, relevant agreement means an agreement under section 4 that is to be taken to be a contract of employment.
(2) The engagement of a natural person as a consultant under a relevant agreement may be on a full‑time or part‑time basis.
(3) Subject to section 8, a term or condition of the engagement of a natural person as a consultant under a relevant agreement may be specified in the agreement by reference to the entitlement that the person would have:
(a) if a specified Act applied in relation to the person; or
(b) if a specified Act applied in relation to the person with such modifications as are set out in the agreement.
8 Superannuation
(1) In this section:
relevant agreement means an agreement under section 4 that is to be taken to be a contract of employment.
relevant person means a natural person other than:
(a) a person who, immediately before being engaged under this Part, was an eligible employee within the meaning of the Superannuation Act 1976; or
(ab) a person who, immediately before being engaged under this Part, was a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(b) a pensioner.
(2) A relevant agreement for the engagement by a Minister of a relevant person as a consultant may contain provisions determined by the Minister in relation to the provision to the person of superannuation benefits or benefits in the nature of superannuation benefits.
(3) Without limiting the generality of subsection (2), a relevant agreement for the engagement of a relevant person as a consultant may provide:
(a) that, if the person was engaged before 1 July 1990, the Superannuation Act 1976 applies in relation to the person as if the person were a temporary employee within the meaning of that Act;
and, where a relevant agreement so provides, the Superannuation Act 1976 applies in relation to the person in accordance with the agreement.
(3A) Without limiting subsection (2), a relevant agreement for the engagement of a relevant person after 30 June 1990 as a consultant may provide that the Superannuation Act 1976 applies in relation to the person as if the person were a temporary employee within the meaning of section 13 of that Act if:
(a) immediately before the person was so engaged, deferred benefits were applicable to him or her under that Act or the Superannuation Act 1922; or
(b) the person became, by virtue of his or her being so engaged, a re‑employed former contributor with preserved rights within the meaning of the Superannuation Act 1976.
(3B) Where a relevant agreement so provides, the Superannuation Act 1976 applies in relation to the person in accordance with the agreement.
(3C) Without limiting subsection (2), a relevant agreement for the engagement of a relevant person as a consultant may provide that the Superannuation Act 1990 applies in relation to the person as if the person were a temporary employee within the meaning of that Act if the relevant person:
(a) is engaged after 30 June 1990; and
(b) is not a person to whom paragraph (3A)(a) or (b) applies.
(3D) Where a relevant agreement so provides, the Superannuation Act 1990 applies in relation to the person in accordance with the agreement.
(4) Notwithstanding anything in the Superannuation Act 1976 or any other Act, the Superannuation Act 1976:
(a) does not apply in relation to a relevant person engaged as a consultant under this Part unless the application of that Act is expressly provided for, in accordance with subsection (3) or (3A), in the agreement for the engagement of the person; and
(b) does not apply in relation to such a person except as provided by subsection (3) or (3B).
(4A) The Superannuation Act 1990 applies in relation to a relevant person if the person makes a declaration and election under subsection 244(1) of the Superannuation Act 1976.
(4B) If the relevant person revokes, under section 247 of the Superannuation Act 1976, the declaration and election made under subsection 244(1) of that Act, subsection (4) applies in relation to the person as if he or she had not made the declaration and election.
(4C) Subject to subsection (4A), in spite of anything in the Superannuation Act 1990 or any other Act, the Superannuation Act 1990:
(a) applies in relation to a relevant person engaged as a consultant under this Part only if the application of that Act is expressly provided for in the agreement for the engagement of the person; and
(b) applies in relation to such a person only as provided by subsection (3D).
(5) A Minister is not empowered to determine provisions for the purposes of subsection (2) except in accordance with arrangements approved by the Finance Minister.
9 Termination of engagement
(1) The engagement of a consultant under this Part terminates if the Minister by whom the consultant was engaged:
(a) dies;
(b) ceases to hold office as a Minister; or
(c) ceases to administer the Department administered by the Minister at the time when the consultant was engaged.
(2) A Minister may at any time, by notice in writing given to a consultant engaged by the Minister under this Part, terminate the engagement of the consultant.
(3) A consultant engaged by a Minister under this Part may at any time, by notice in writing given to the Minister, terminate the engagement.
(4) The engagement of a consultant that is not terminated:
(a) by subsection (1);
(b) by the Minister under subsection (2); or
(c) by the consultant under subsection (3);
terminates at the expiration of such period not exceeding 3 years as is specified, in the agreement under which the consultant was engaged, as the term of the engagement.
(5) Where the engagement of a person under this Part is terminated by subsection (1), the Prime Minister may by writing direct that the engagement of the person shall be deemed:
(a) not to have been so terminated; and
(b) to have continued, or to continue, until a specified date;
and, where the Prime Minister so directs, the engagement of the person under this Part shall for all purposes be deemed to have continued, or to continue, until that date.
Part III—Staff of office‑holders
12 Determinations by Prime Minister
The Prime Minister may, by writing, determine that, having regard to the Parliamentary duties of a Senator or a Member of the House of Representatives, the Senator or Member ought to be empowered to employ staff under this Part.
13 Office‑holders may employ staff
(1) An office‑holder may, on behalf of the Commonwealth, employ, under an agreement in writing, a person as a member of the office‑holder’s staff.
(2) The power conferred on an office‑holder by subsection (1) is not exercisable otherwise than in accordance with arrangements approved by the Prime Minister, and the exercise of that power is subject to such conditions as are determined by the Prime Minister.
14 Terms and conditions of employment
(1) Subject to any applicable determination made under subsection (3), the terms and conditions of employment of a person employed by an office‑holder under this Part, other than terms and conditions (in this section referred to as prescribed terms and conditions) relating to any matter in relation to which:
(a) a determination is to be made by the office‑holder under section 15; or
(b) express provision is made by section 16;
are to be ascertained in accordance with the agreement for the employment of the person.
(3) The Prime Minister may by writing determine that the terms and conditions of employment of a person employed under this Part (other than prescribed terms and conditions) are varied (whether by the variation of particular terms and conditions or by the inclusion of new terms and conditions, not being prescribed terms and conditions) as specified in the determination.
(4) A determination under subsection (3) may be expressed to apply in relation to all persons employed under this Part, in relation to all persons included in a class of persons so employed or in relation to a specified person so employed.
15 Superannuation
(1) In this section:
relevant person means a person other than:
(a) a person who, immediately before being employed under this Part, was an eligible employee within the meaning of the Superannuation Act 1976; or
(ab) a person who, immediately before being employed under this Part, was a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(b) a pensioner.
(2) An agreement under section 13 for the employment by an office‑holder of a relevant person as a member of the office‑holder’s staff may contain provisions determined by the office‑holder in relation to the provision to the person of superannuation benefits or benefits in the nature of superannuation benefits.
(3) Without limiting the generality of subsection (2), an agreement under section 13 for the employment of a relevant person may provide:
(a) that, if the person was employed before 1 July 1990, the Superannuation Act 1976 applies in relation to the person as if the person were a temporary employee within the meaning of that Act;
and, where an agreement so provides, the Superannuation Act 1976 applies in relation to the person in accordance with the agreement.
(3A) Without limiting subsection (2), an agreement, under section 13, for the employment of a relevant person after 30 June 1990 may provide that the Superannuation Act 1976 applies in relation to the person as if the person were a temporary employee within the meaning of section 11 of that Act if:
(a) immediately before the person was so employed, deferred benefits were applicable to him or her under that Act or the Superannuation Act 1922; or
(b) the person became, by virtue of his or her being so employed, a re‑employed former contributor with preserved rights within the meaning of the Superannuation Act 1976.
(3B) Where an agreement so provides, the Superannuation Act 1976 applies in relation to the person in accordance with the agreement.
(3C) Without limiting subsection (2), an agreement, under section 13, for the employment of a relevant person may provide that the Superannuation Act 1990 applies in relation to the person as if the person were a temporary employee within the meaning of that Act if the relevant person:
(a) is engaged after 30 June 1990; and
(b) is not a person to whom paragraph (3A)(a) or (b) applies.
(3D) Where an agreement so provides, the Superannuation Act 1990 applies in relation to the person in accordance with the agreement.
(4) Notwithstanding anything in the Superannuation Act 1976 or any other Act, the Superannuation Act 1976:
(a) does not apply in relation to a relevant person employed under this Part unless the application of that Act is expressly provided for, in accordance with subsection (3) or (3A), in the agreement for the employment of the person; and
(b) does not apply in relation to such a person except as provided by subsection (3) or (3B).
(4A) The Superannuation Act 1990 applies in relation to a relevant person if the person makes a declaration and election under subsection 244(1) of the Superannuation Act 1976.
(4B) If the relevant person revokes, under section 247 of the Superannuation Act 1976, the declaration and election made under subsection 244(1) of that Act, subsection (4) applies in relation to the person as if he or she had not made the declaration and election.
(4C) Subject to subsection (4A), in spite of anything in the Superannuation Act 1990 or any other Act, the Superannuation Act 1990:
(a) applies in relation to a relevant person employed under this Part only if the application of that Act is expressly provided for in the agreement for the employment of the person; and
(b) applies in relation to such a person only as provided by subsection (3D).
(5) An office‑holder is not empowered to determine provisions for the purposes of subsection (2) except in accordance with arrangements approved by the Finance Minister.
16 Termination of employment
(1) The employment of a person under this Part terminates if the office‑holder by whom the person was employed dies.
(2) The employment of a person under this Part terminates if:
(a) in the case of a person employed by a person who holds a relevant office—the last‑mentioned person ceases to hold the relevant office;
(b) in the case of a person employed by a Senator in respect of whom a determination by the Prime Minister under section 12 is in force—the Senator ceases to be a Senator or the determination is revoked; or
(c) in the case of a person employed by a Member of the House of Representatives in respect of whom a determination by the Prime Minister under section 12 is in force—the Member ceases to be a Member of the House of Representatives or the determination is revoked.
(2A) For the purposes of paragraph (2)(b), a Senator shall be deemed not to have ceased to be a Senator while he or she continues to be entitled to the Parliamentary allowance that was payable to him or her as a Senator.
(2B) For the purposes of paragraph (2)(c), a Member of the House of Representatives shall be deemed not to have ceased to be such a Member while he or she continues to be entitled to the Parliamentary allowance that was payable to him or her as such a Member.
(3) An office‑holder may at any time, by notice in writing given to a person employed by the office‑holder under this Part, terminate the person’s employment.
(3A) The notice must specify the ground or grounds that are relied on for the termination.
Note 1: The Fair Work Act 2009 has rules and entitlements that apply to termination of employment. See, for example, Parts 3‑1 (general protections) and 3‑2 (unfair dismissal) of that Act.
Note 2: Additional rules or procedures to be followed in terminating the employment of a person under this Part may be set out in:
(a) the agreement for the employment of the person; or
(b) fair work instruments (within the meaning of the Fair Work Act 2009); or
(c) determinations made under subsection 13(2) or 14(3) of this Act.
Note 3: Termination of employment may be unlawful under anti‑discrimination laws in certain circumstances.
(4) A person employed by an office‑holder under this Part may at any time, by notice in writing given to the office‑holder, terminate the person’s employment.
(5) Where the employment of a person under this Part is terminated by subsection (1) or (2), the Prime Minister may by writing direct that the employment of the person shall be deemed:
(a) not to have been so terminated; and
(b) to have continued, or to continue, until a specified date;
and, where the Prime Minister so directs, the employment of the person under this Part shall for all purposes be deemed to have continued, or to continue, until that date.
19 Power to employ electorate staff not affected
Nothing in this Part affects the power of an office‑holder who is a Senator or a Member of the House of Representatives to employ staff under Part IV.
Part IV—Staff of Senators and Members
20 Senators and Members may employ staff
(1) A Senator or a Member of the House of Representatives may, on behalf of the Commonwealth, employ, under an agreement in writing, a person as a member of the staff of the Senator or Member.
(2) The power conferred on a Senator or Member of the House of Representatives by subsection (1) is not exercisable otherwise than in accordance with arrangements approved by the Prime Minister, and the exercise of that power is subject to such conditions as are determined by the Prime Minister.
21 Terms and conditions of employment
(1) Subject to any applicable determination made under subsection (3), the terms and conditions of employment of a person employed by a Senator or Member of the House of Representatives under this Part, other than terms and conditions (in this section referred to as prescribed terms and conditions) relating to any matter in relation to which:
(a) a determination is to be made by the Senator or Member under section 22; or
(b) express provision is made by section 23;
are to be ascertained in accordance with the agreement for the employment of the person.
(3) The Prime Minister may by writing determine that the terms and conditions of employment of a person employed under this Part (other than prescribed terms and conditions) are varied (whether by the variation of particular terms and conditions or by the inclusion of new terms and conditions, not being prescribed terms and conditions) as specified in the determination.
(4) A determination under subsection (3) may be expressed to apply in relation to all persons employed under this Part, in relation to all persons included in a class of persons so employed or in relation to a specified person so employed.
22 Superannuation
(1) In this section:
relevant person means a person other than:
(a) a person who, immediately before being employed under this Part, was an eligible employee within the meaning of the Superannuation Act 1976; or
(ab) a person who, immediately before being employed under this Part, was a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(b) a pensioner.
(2) An agreement under section 20 for the employment by a Senator or Member of the House of Representatives of a relevant person as a member of the staff of the Senator or Member may contain provisions determined by the Senator or Member in relation to the provision to the person of superannuation benefits or benefits in the nature of superannuation benefits.
(3) Without limiting the generality of subsection (2), an agreement under section 20 for the employment of a relevant person may provide:
(a) that, if the person was employed before 1 July 1990, the Superannuation Act 1976 applies in relation to the person as if the person were a temporary employee within the meaning of that Act;
and, where an agreement so provides, the Superannuation Act 1976 applies in relation to the person in accordance with the agreement.
(3A) Without limiting subsection (2), an agreement, under section 20, for the employment of a relevant person after 30 June 1990 may provide that the Superannuation Act 1976 applies in relation to the person as if the person were a temporary employee within the meaning of section 11 of that Act if:
(a) immediately before the person was so employed, deferred benefits were applicable to him or her under that Act or the Superannuation Act 1922; or
(b) the person became, by virtue of his or her being so employed, a re‑employed former contributor with preserved rights within the meaning of the Superannuation Act 1976.
(3B) Where an agreement so provides, the Superannuation Act 1976 applies in relation to the person in accordance with the agreement.
(3C) Without limiting subsection (2), an agreement, under section 20, for the employment of a relevant person may provide that the Superannuation Act 1990 applies in relation to the person as if the person were a temporary employee within the meaning of that Act if the relevant person:
(a) is engaged after 30 June 1990; and
(b) is not a person to whom paragraph (3A)(a) or (b) applies.
(3D) Where an agreement so provides, the Superannuation Act 1990 applies in relation to the person in accordance with the agreement.
(4) Notwithstanding anything in the Superannuation Act 1976 or any other Act, the Superannuation Act 1976:
(a) does not apply in relation to a relevant person employed under this Part unless the application of that Act is expressly provided for, in accordance with subsection (3) or (3A), in the agreement for the employment of the person; and
(b) does not apply in relation to such a person except as provided by subsection (3) or (3B).
(4A) The Superannuation Act 1990 applies in relation to a relevant person if the person makes a declaration and election under subsection 244(1) of the Superannuation Act 1976.
(4B) If the relevant person revokes, under section 247 of the Superannuation Act 1976, the declaration and election made under subsection 244(1) of that Act, subsection (4) applies in relation to the person as if he or she had not made the declaration and election.
(4C) Subject to subsection (4A), in spite of anything in the Superannuation Act 1990 or any other Act, the Superannuation Act 1990:
(a) applies in relation to a relevant person employed under this Part only if the application of that Act is expressly provided for in the agreement for the employment of the person; and
(b) applies in relation to such a person only as provided by subsection (3D).
(5) A Senator or a Member of the House of Representatives is not empowered to determine provisions for the purposes of subsection (2) except in accordance with arrangements approved by the Finance Minister.
23 Termination of employment
(1) The employment of a person under this Part terminates if the Senator or Member of the House of Representatives by whom the person was employed:
(a) dies; or
(b) ceases to be a Senator or a Member of the House of Representatives, as the case may be.
(1A) For the purposes of paragraph (1)(b):
(a) a Senator shall be deemed not to have ceased to be a Senator while he or she continues to be entitled to the Parliamentary allowance that was payable to him or her as a Senator; and
(b) a Member of the House of Representatives shall be deemed not to have ceased to be such a Member while he or she continues to be entitled to the Parliamentary allowance that was payable to him or her as such a Member.
(2) A Senator or Member of the House of Representatives may at any time, by notice in writing given to a person employed by the Senator or Member under this Part, terminate the person’s employment.
(2A) The notice must specify the ground or grounds that are relied on for the termination.
Note 1: The Fair Work Act 2009 has rules and entitlements that apply to termination of employment. See, for example, Parts 3‑1 (general protections) and 3‑2 (unfair dismissal) of that Act.
Note 2: Additional rules or procedures to be followed in terminating the employment of a person under this Part may be set out in:
(a) the agreement for the employment of the person; or
(b) fair work instruments (within the meaning of the Fair Work Act 2009); or
(c) determinations made under subsection 20(2) or 21(3) of this Act.
Note 3: Termination of employment may be unlawful under anti‑discrimination laws in certain circumstances.
(3) A person employed by a Senator or Member of the House of Representatives under this Part may at any time, by notice in writing given to the Senator or Member, terminate the person’s employment.
(4) Where the employment of a person under this Part is terminated by subsection (1), the Prime Minister may, by writing direct that the employment of the person shall be deemed:
(a) not to have been so terminated; and
(b) to have continued, or to continue, until a specified date;
and, where the Prime Minister so directs, the employment of the person under this Part shall for all purposes be deemed to have continued, or to continue, until that date.
Part VI—Miscellaneous
31 Annual report
As soon as practicable after 30 June in each year, the Prime Minister shall cause to be prepared a report:
(a) setting out, in respect of each Minister who held office at any time during the year ending on that 30 June, the name of each consultant engaged by the Minister under section 4 during that year and the name of each consultant engaged by the Minister under section 4 before the commencement of that year who performed tasks during that year pursuant to the engagement; and
(b) specifying, in respect of each consultant named pursuant to paragraph (a):
(i) the period of engagement of the consultant;
(ii) which of the provisions referred to in subsection 4(2) is or are included in the agreement under which the consultant was engaged;
(iii) where the agreement under which the consultant was engaged contained a provision of the kind referred to in paragraph 4(2)(a) or (c)—the tasks specified in the agreement for the purposes of that provision; and
(iv) where the agreement under which the consultant was engaged contained a provision of the kind referred to in paragraph 4(2)(b) or (d)—the general nature of the tasks that the consultant was engaged to perform;
and shall cause a copy of the report to be laid before each House of the Parliament.
32 Powers may be exercised by authorised person
An office‑holder, Senator or Member of the House of Representatives may, in writing, authorise another person to exercise, on his or her behalf, a power conferred on the office‑holder, Senator or Member by Part III or IV of this Act, and a person so authorised may exercise the power accordingly.
33 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
