Auditor of Parliamentary Allowances and Entitlements Bill 2000
1998-1999-2000
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Auditor of Parliamentary Allowances and Entitlements Bill 2000
Explanatory Memorandum
Circulated by Hon K C Beazley
ISBN: 0642 454612
Auditor of Parliamentary Allowances and Entitlements Bill 2000
Outline
This Bill establishes an office of Auditor of Parliamentary Allowances and Entitlements. The Auditor will investigate complains relating to the use of entitlements; inquire into any matter referred by the Minister or Parliament; undertake sample audits of the use of entitlements by members of parliament; undertake inquiries on his or her own initiative; make recommendations for changes to the entitlements system and provide advice to members of parliament on ethical issues associated with the use of parliamentary entitlements.
The Auditor of Parliamentary Allowances and Entitlements will be an independent officer of the Parliament with a wide range of powers, modelled on those of the Auditor-General and the Ombudsman. These include powers to enter premises, access and copy documents and report to parliament on any MP who refuses to cooperate with an inquiry or on any other matter.
The Australian Labor Party considers that it is necessary for such an office to be created to help restore community confidence in the way in which Members of the Commonwealth Parliament use their various entitlements. In fact the ALP believes that the creation of such an Office is a long overdue reform. Other countries have recognised the need for similar offices and have acted years ago. The Americans have their Office of Government Ethics. In Canada it's the Ethics Counsellor and in the United Kingdom, the Parliamentary Commissioner for Standards.
These proposals were incorporated into the ALP Platform in 1998. The relevant section reads:
"In order to enhance the accountability of parliamentarians for their expenditure of allowances, Labor will table details of expenditure of travel and other allowances annually and will establish an independent auditor of parliamentary allowances and entitlements with appropriate powers of investigation",
Financial Impact
Additional funding will be required for the Office, however it is proposed that the financial impact will be somewhat reduced by the intention that staff be provided from the Auditor-General's Office. This does not mean that additional funding will not be involved but it should be less than would otherwise be the case.
NOTES ON CLAUSES
PART 1 - PRELIMINARY
Clause 1 - Short Title
This clause identifies the legislation as The Auditor of Parliamentary Allowances and Entitlements Bill 2000.
Clause 2 - Commencement
This clause provides that the Act will commence on the day on which it receives the Royal Assent.
Clause 3 - Act binds the Crown
This clause provides that the Act binds the Crown in right of the Commonwealth, but that it does not make the Crown liable to be prosecuted for an offence.
Clause 4 - Act extends to things outside Australia
This clause provides that the Act extends to actions and matters occurring outside Australia unless the contrary intention appears.
Clause 5 - Definitions
This clause defines terms and expressions used in the Act.
Part 2 - The Auditor of Parliamentary Allowances and Entitlements
Clause 6 - Auditor of Parliamentary Allowances and Entitlements
This clause provides that there is to be an Auditor of Parliamentary Allowances and Entitlements, and that an appointment to the Office should be made as soon as practicable whenever it becomes vacant.
Clause 7 - Independence of Auditor
This clause provides that the Auditor is an independent officer of the Parliament, with the functions, powers, rights, immunities and obligations as specified in this Act and other laws but with no other implied functions etc. It also provides that the powers of each House in relation to the Auditor are those set out in this Act in any other laws, and that the Parliament has no other implied powers in the matter.
This clause also provides that subject to this Act and other laws the Auditor is to have complete discretion in the performance or exercise of his or her functions or powers and that the Auditor is not subject to direction from anyone in relation to investigations, the conduct of inquiries or the priority to be given to any matter.
Clause 8 - Appointment of Auditor
This clause provides that the Auditor be appointed by the Governor-General, on
Back to Top the recommendation of a Minister, for a term of 10 years. The Auditor can be a full or a part time officer and a person cannot be appointed if they have already served in that role.
Clause 9 - Minister must refer recommendation for appointment of Auditor to the Joint Committee of Public Accounts and Audit
This clause requires that before a recommendation can be made for the appointment of an Auditor the Minister must have referred the proposal to the Joint Committee of Public Accounts and Audit and that the Committee must have approved the proposal.
Clause 10 - Remuneration of Auditor
This clause provides for the Remuneration Tribunal to determine the remuneration of the Auditor or, failing that for the remuneration to be set by regulation. Regulations are to provide for any allowances payable to the Auditor.
Clause 11 - Recreation leave etc
This clause provides for the Remuneration Tribunal to determination leave entitlements. The Minister may grant the Auditor other leave of absence on such terms and conditions as the Minister determines.
Clause 12 - Resignation
This clause provides that the Auditor may resign by giving notice in writing to the Governor-General.
Clause 13 - Removal from office etc.
This clause provides that the Governor-General may remove the Auditor from office if each House presents an address seeking this on the grounds of misbehaviour or physical or mental incapacity. The Governor-General must remove the Auditor from office if he or she does any of the following:.
* becomes bankrupt
* applies for relief under a law for bankrupt or insolvent debtors
* agrees to settle by partial payment with his or her creditors
* assigns remuneration for the benefit of creditors.
Clause 14 - Acting appointment
This clause provides that the Minister may appoint a person to act as Auditor if there is a vacancy in the office of the Auditor and during any period when the Auditor is absent from duty or from Australia. The person acting in this position is entitled to the same remuneration and allowances as apply to the Auditor.
Clause 15 - Staff of the Auditor
This clause provides that staff necessary to assist the Auditor must be engaged under the Public Service Act 1999.
Part 3 -- Main functions and powers of the Auditor
Clause 16 - Functions
Clause 16 provides that the Auditor's functions include to:
* receive and investigate complaints about the possible misuse of parliamentary entitlements and allowances;
* inquire into and report on matters referred to the Auditor by the Minister;
* report on any matter referred to the Auditor by either House of the Parliament;
* undertake sample audits of the use of parliamentary entitlements and allowances by members or groups of Members of either House of the Parliament or by persons employed or engaged under the MOPS Act;
* inquire on his or her own initiative into any matter relevant to this Act;
* report to the Minister and to each House on any matter in connection with this Act;
* make recommendations to the Minister or to either House for changes to the system of parliamentary allowances and entitlements; and
* provide advice to Members or to persons employed or engaged under the MOPS Act on ethical issues in regard to parliamentary allowances and entitlements.
Clause - 17 Powers of the Auditor in relation to members of the Parliament and their staff
The Auditor may request a person to do all or any of the following:
* provide the Auditor with any information that the Auditor requests;
* produce any documents in the custody or under the control of the person requested by the Auditor to answer questions relating to a person's receipt or use of parliamentary entitlements and allowances
The Auditor may request that the information to answers to questions be given either orally or in writing;
The Auditor may, with the consent of the Senator or Member concerned enter and remain on any premises occupied in an official capacity by the Senator or Member; and the Auditor may:
* have full and free access at all reasonable times to any documents or other property;
* examine, make copies of or take extracts from any document;
A person who refuses to comply with a request by the Auditor must be given the opportunity to provide the Auditor with written reasons for not complying with the request. After considering any response the Auditor may report to the relevant House in relation to:
* the nature of the request;
* the reasons given for not complying with the request;
* any other relevant information;
Back to Top * whether the Auditor recommends that the relevant House exercise its powers in relation to the Senator or Member of the House of Representatives concerned.
Clause 18 - Application
This Subdivision applies to any person who is not covered by Subdivision A, which applies to Senators and Members and their staff.
Clause 19 -- Purpose for which information gathering powers may be used
The powers may be used for the purpose of, or in connection with, a function mentioned in above.
Clause 20 -- Power of Auditor to obtain information
This clause provides that the Auditor may, by written notice, direct a person to do all or any of the following:
* provide the Auditor with any information that the Auditor requires;
* attend and give evidence before the Auditor or an authorised person;
* produce to the Auditor any documents in the custody or under the control of the person;
The Auditor may direct that:
* the information or answers to questions be given either orally or in writing;
* the information or answers to questions be verified or given on oath or affirmation.
A person must not wilfully obstruct, hinder or resist the Auditor or any other person in the exercise of his or her functions under this Act without reasonable excuse or provide information or make a statement to the Auditor or to an authorised person knowing that it is false or misleading in a material particular.
Clause 21 Access to premises etc.
This clause provides that the Auditor or an authorised person may, at all reasonable times, enter and remain on any premises; and is entitled to full and free access at all reasonable times to any documents or other property. The Auditor may examine, make copies of or take extracts from any document for the purposes of inquiring into a person's receipt or use of parliamentary entitlements or allowances.
Clause 22 -- False statements etc.
A person must not make a statement to the Auditor or to an audit official that the person knows is false or misleading.
A person must not give an audit official a document that the person knows is false or misleading.
Clause 23 -- Self-incrimination no excuse
This clause provides that a person is not excused from producing documents or answering questions which might tend to incriminate the person or make the person liable to a penalty.
Subdivision C--Other powers
Clause 24 -- Auditing standards
The Auditor may, by notice published in the Gazette, set auditing standards that are to be complied with.
Clause 25 -- Reports to Parliament
This clause provides that the Auditor may, at any time, cause a report to be tabled in either House of the Parliament on any matter connected with the receipt and use of parliamentary entitlements and allowances.
Clause 26 -- Reports to Minister
This clause provides that the Auditor must bring to the attention of the Minister any important matter that comes to the attention of the Auditor while conducting an audit or giving advice.
Clause 27 -- Annual report
Clause 27 provides that as soon as practicable after 30 June in each year, the Auditor must prepare a report on the operations of the Auditor during that year and produce a copy of the report to be tabled in each House of the Parliament.
Part 4--Performance of certain functions
Division 1--Investigation of complaints
Clause 28 - Complaints
A person may make a complaint, in writing, to the Auditor in relation to the use by a person of parliamentary entitlements and allowances.
Clause 29 Investigation of complaints
Before commencing an investigation, the Auditor must inform the person who is, or persons who are, the subject of the complaint that a complaint has been made.
An investigation must be conducted in private and may be conducted in such
Back to Top manner as the Auditor thinks fit.
The Auditor may obtain information from such persons, and make such inquiries, as he or she thinks fit.
* The Auditor must not make a report in respect of an investigation in which he or she sets out opinions that are, either expressly or impliedly, critical of a person unless, before completing the investigation, he or she has given that person an opportunity to appear before him or her, or before an authorised person, and to make such submissions as he or she thinks fit, either orally or in writing, in relation to the receipt or use of parliamentary entitlements and allowances to which the investigation relates.
* Where the Auditor becomes of the opinion, either before or after completing an investigation, that there is evidence that a person has committed an offence, the Auditor must refer the matter to the Australian Federal Police.
* Where the Auditor becomes of the opinion, either before or after completing an investigation, that there is evidence that a person, being a person employed under the Public Service Act 1999 or the Parliamentary Service Act 1999, has been guilty of a breach of the code of conduct, the Auditor must bring that evidence to the notice of the appropriate person.
Clause 30 -- Discretion not to investigate complaints
This clause provides that the Auditor may decide not to investigate a complaint if the complaint is frivolous or was not made in good faith or if the Auditor believes that, in all the circumstances, investigation is not warranted.
If the Auditor does not investigate a complaint the Auditor must table in the relevant House a statement outlining the nature of the complaint and the reasons for exercising his or her discretion.
Clause 31 -- Offence of making a false complaint
This Clause provides that a person must not make a complaint that is false or misleading.
Division 2--Inquiries by the Auditor
Clause 32 -- Inquiries by the Auditor
This clause provides that the Auditor may conduct an inquiry into any matter in connection with the receipt or use of parliamentary entitlements and allowances:
Clause 33 -- Reports of inquiries
As soon as practicable after completing a report of an inquiry the Auditor must table a copy in each House of the Parliament and give a copy to the Minister.
Division 3--Sample audits
Clause 34 -- Sample audits
This clause provides that the Auditor may, at any time, conduct an audit of the use of parliamentary entitlements and allowances by individual Members or groups of Members of either House of the Parliament, or by persons employed or engaged under the MOPS Act.
Division 4--Advice and recommendations
Clause 35 -- Advice
This clause provides that a Senator, a Member of the House of Representatives or a person employed or engaged under the MOPS Act, may request the Auditor to provide advice on ethical issues connected with the use of that person's parliamentary allowances or entitlements and that the Auditor may give oral or written advice.
Clause 36 -- Recommendations
This clause provides that at any time the Auditor may make recommendations for changes to the system of parliamentary entitlements and allowances.
Clause 37 -- Auditor not to be sued
This clause provides that neither the Auditor, nor a person acting under his or her direction or authority, is liable to an action, suit or proceeding for an act done in good faith in connection with his or her work under this Act.
Clause 38 - Protection from civil actions
This clause provides that civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person by reason of any of the following:
* the making of a complaint to the Auditor;
* the provision of information or a document to the Auditor
Clause 39 -- Disclosure of information by Auditor
The Auditor must not disclose information with respect to a particular investigation where the disclosure of that information is likely to interfere with the carrying out of any other investigation or the making of a report.
The Auditor must not set out opinions that are critical of a person (unless the requirements of subsection 29(5) have been met) or disclose the name of a complainant or any other matter that would enable a complainant to be identified unless it is fair and reasonable to do so.
Clause 40 - Officers to observe secrecy
This clause provides that an officer must not make a record of, or divulge or communicate to any person, any information acquired by him or her by reason of his or her being an officer, being information that was disclosed or obtained under the provisions of this Act.
Clause 41 -- Delegation by Auditor
The Auditor may delegate any of the Auditor's powers or functions to a person who is a member of staff.
Clause 42 -- Appropriation
The costs of the administration of this Act are to be paid out of money appropriated by the Parliament for the purpose.
Clause 43 -- Regulations
The Governor-General may make regulations prescribing all matters that are required permitted or necessary or convenient.