Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to deal with consequential and transitional matters in connection with the enactment of the Parliamentary Business Resources Act 2017, and for related purposes
Administered by: Finance
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 30 Mar 2017
Introduced HR 30 Mar 2017

 

 

2016-2017

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

PARLIAMENTARY BUSINESS RESOURCES (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2017

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of the Special Minister of State, Senator the Hon Scott Ryan)

 

 


 

PARLIAMENTARY BUSINESS RESOURCES (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2017

 

OUTLINE

The Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017 (the Bill) deals with minor consequential and transitional matters arising from the new parliamentary work expenses framework set out in the Parliamentary Business Resources Bill 2017 (PBR Bill).

The Bill:

 

·         Repeals the old parliamentary work expenses framework (e.g. the Parliamentary Entitlements Act 1990, including its subordinate legislation, and other related legislation such as the Parliamentary Allowances Act 1952).

 

·         Makes minor consequential amendments to Commonwealth legislation, which are essential to the operation of the PBR Bill (e.g. amends the Independent Parliamentary Expenses Authority Act 2017, the Remuneration Tribunal Act 1973 and the Ministers of State Act 1952).

 

·         Provides transitional provisions required to move from the old framework to the new parliamentary work expenses framework, including the preservation of the Parliamentary Injury Compensation Scheme Instrument 2016.

FINANCIAL IMPACT

Nil.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in the Bill and assesses that the amendments are compatible with Australia’s human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A.

 

 

Abbreviation or common terms and phrases

Full term or description

Acts Interpretation Act

Acts Interpretation Act 1901

ADA

Age Discrimination Act 2004

FOI

Freedom of Information

FOI Act

Freedom of Information Act 1982

IPEA

The Independent Parliamentary Expenses Authority

IPEA Act

Independent Parliamentary Expenses Authority Act 2017

IPEA (CA) Act

Independent Parliamentary Expenses Authority (Consequential Amendments) Act 2017

Legislation Act

Legislation Act 2003

MOPS

a person employed under Parts III or IV of the Members of Parliament (Staff) Act 1984

MOS Act

Ministers of State Act 1952

PA Act

Parliamentary Allowances Act 1952

PBR Bill

Parliamentary Business Resources Bill

PCS Act

Parliamentary Contributory Superannuation Act 1948

PE Act

Parliamentary Entitlements Act 1990

PE Regs

Parliamentary Entitlements Regulations 1997

PGPA Act

Public Governance, Performance and Accountability Act 2013

PICS

Parliamentary injury compensation scheme

PS Act

Parliamentary Superannuation Act 2004

PRT Act

Parliamentary Retirement Travel Act 2002

RA Act

Remuneration and Allowances Act 1990

Review

An Independent Parliamentary Entitlements System Review Report (February 2016, available at: http://finance.gov.au/sites/default/files/independent-parliamentary-entitlements-system-review-feb-2016.pdf)

RT Act

Remuneration Tribunal Act 1973

SIS Act

Superannuation Industry (Supervision) Act 1993

SMOS

The Special Minister of State

SRC Act

Safety, Rehabilitation and Compensation Act 1988

The old work expenses framework

The PE Act and other relevant legislation as at March 2017

The new work expenses framework

The new legislative framework established under the PBR Bill


 

NOTES ON CLAUSES

Clause 1 – Short title

1                    Clause 1 is a formal provision specifying the short title of the Bill. Once enacted, the short title of the Bill will be the Parliamentary Business Resources (Consequential and Transitional Provisions) Act 2017.

Clause 2 – Commencement

2                    Clause 2 provides for the commencement of the provisions in the Bill, stating when provisions of the Bill will come into effect, as set out in the table.

·           Item 1 in the table provides that Sections 1 to 3, concerning the formal aspects of this Bill, will commence on the day the Bill receives Royal Assent.

·           Item 2 in the table provides that Schedule 1, Part 1, concerning amendments to relevant Commonwealth legislation, will commence immediately after the commencement of section 3 of the IPEA Act, or the commencement of section 3 of the PBR Bill, whichever is the later. However, this item makes it clear that if the PBR Bill does not commence, the provisions in Schedule 1, Part 1 also do not commence.

·           Item 3 in the table provides that Schedule 1, Part 2, concerning amendments that are contingent in nature, will commence at the same time as the commencement of section 3 of the PBR Bill or not at all, if these provisions do not commence.

·           Item 4 in the table provides that Schedule 1, Part 3 will commence immediately after the commencement of Schedule 1 to the IPEA (CA) Act, or at the same time as the commencement of section 3 of the PBR Bill, whichever is later. However, this item makes it clear that if the PBR Bill does not commence, the provisions in Schedule 1, Part 3 also do not commence.

·           Item 5 in the table provides that Schedules 2 and 3 commence at the same time as section 3 of the PBR Bill, or not at all, if that section does not commence.

3                    Subclause 2(2) will provide that any information in column 3 of the table is not part of this Bill. Information may be inserted in this column, or information in it may be edited, in any published version of this Bill.

Clause 3 – Schedules

4                    Clause 3 provides that any legislation that is specified in a Schedule to this Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Bill has effect according to its terms.


 

Schedule 1 – Amendments

5                    Schedule 1 – Amendments deals with the main amendments to relevant Commonwealth legislation. This Schedule is intended to support the operation of the PBR Bill. These amendments ensure the retained provisions reflect the new work expenses framework going forward.

Part 1 – Amendment of the Independent Parliamentary Expenses Authority Act 2017

Independent Parliamentary Expenses Authority Act 2017

Item 1 Section 3

6                    Item 1 repeals and substitutes the simplified outline in section 3 of the IPEA Act. The IPEA Act was drafted to ensure it could perform its functions in relation to the then existing expenses framework, as well as any future framework.  The revised simplified outline will aid readers of the Act by making clear the scope of IPEA’s functions under the PBR Bill.

Item 2 – Section 4

7                    Item 2 inserts a new subsection (1) in section 4 (Definitions) of the IPEA Act to account for new subsection (2) (see item 12). Subsection (2) makes it clear that a reference in this Bill to an amount or resource that is payable or provided under this Bill or any other Act includes an amount or resource that is purportedly payable or provided under that Act (See clause 57 of the PBR Bill, which provides for recoverable payments).

Items 3-11 – Section 4

8                    Items 3 to 11 repeal and substitute definitions in section 4 of the IPEA Act to align with the new framework set out in the PBR Bill. The proposed changes:

·      are consistent with recommendation 2 of the Review, removing references to the previous language of benefit and allowance

·      consolidate previous, multiple definitions to ensure readability. Further, the definition of the term MP travel resource now includes travel undertaken under the Members of Parliament (Life Gold Pass) Act 2002, which was previously not included within IPEA’s functions (item 8), and

·      provides operational consistency between the IPEA Act and the concepts outlined in the PBR Bill.

9                    The following table explains the changes made to the definitions in section 4 of the IPEA Act:

PBR (CTP) Bill Item

IPEA Act definition

Location of provision (or equivalent) following commencement of the PBR Bill

3

designated parliamentary benefit

designated parliamentary travel benefit

These definitions are not being directly replaced, but will be covered by the new definitions of MP travel resource and MP work resource (see items 8 and 10).

4

member of parliament

This definition will be replaced by a new definition of member of parliament, consistent with the definition in the PBR Bill.

5

MOPS travel allowance

MOPS travel expenditure matter

MOPS travel expense

These three definitions will be replaced by the term MOPS travel resource (see item 6).

7

MP travel allowance

MP travel expenditure matter

MP travel expense

MP travel expenses law

These four definitions will be replaced by the term MP travel resources (see item 8). 

9

MP work expense

MP work expense matter

MP work expense law

These three definitions will be replaced by the term MP work resource (see item 10).

11

spouse

transition time

These definitions will no longer be required, following the passage of the PBR Bill.

Item 12 At the end of section 4

10                Item 12 clarifies that the references to amounts payable include amounts that are purportedly payable. This ensures that claims made for resources which are processed and found to be invalid (for example, do not meet the relevant criteria) can be processed. Where amounts are found to be invalid, these amounts can be recovered via the debt recovery provisions set out in the PBR Bill.

Item 13 Section 5 (heading) and item 14 Subsection 5(1)

11                Items 13 and 14 account for new terminology, in line with recommendation 2 of the Review. That is, removing the previous language of benefit and allowance.

Item 15 – After paragraph 5(1)(a)

12                Item 15 inserts a new paragraph (aa) into section 5 of the IPEA Act to include the cost of taxis or other local transport as an expense or allowance that is in connection with travel.

Item 16 – Subsection 5(2)

13                Item 16 amends subsection 5(2) of the IPEA Act to remove reference to benefits and add a reference to allowances, consistent with the terminology of the new work expenses framework.

Item 17 – Section 10

14                Item 17 updates the simplified outline of Part 2 of the IPEA Act to account for IPEA’s revised functions following passage of the PBR Bill. The IPEA Act was drafted to ensure that IPEA could perform its functions in relation to the existing expenses framework, as well as any future framework (such as the PBR Bill). The simplified outline will aid readers of the Bill, make clear the scope of the Bill’s functions and account for new terminology. It also aligns with recommendation 2 of the Review, relating to terminology.

Item 18 – Section 12

15                Item 18 updates the functions of IPEA to align with the framework set out in the PBR Bill. It also accounts for the new terminology and consolidates the references to parliamentarians with MOPS staff.

16                For example, the IPEA Act sets out that personal advice on travel expenses may be provided to parliamentarians (paragraph 12(1)(a) of the IPEA Act) as well as MOPS staff (paragraph 12(1)(p) of the IPEA Act). Item 18 consolidates the references to personal advice so that proposed paragraph 12(1)(a) of the IPEA Act will set out that personal advice can be provided to both members and former members of parliament about matters relating to MP travel resources as well as MOPS staff on matters relating to MOPS travel resources. This consolidation of functions has been made throughout section 12 of the IPEA Act in relation to IPEA’s functions, including around:

·      issuing general advisory documents (proposed paragraph 12(1)(b))

·      monitoring (proposed paragraph 12(1)(d))

·      preparing regular reports (proposed paragraph 12(1)(e))

·      preparing other reports (proposed paragraph 12(1)(g))

·      conducting audits (proposed paragraph 12(1)(i))

·      processing claims (proposed paragraph 12(1)(j)), and

·      recovering overpayments (proposed paragraph 12(1)(o)).

The functions have also been amended to include the rulings provided for in clause 37 of the PBR Bill, which provides IPEA with the ability to make rulings in relation to MP travel resources.

Item 19 – Paragraphs 33(1)(a) and (b)

17                Item 19 updates the references used in paragraphs 33(1)(a) and (b) of the IPEA Act to refer to the new definitions of MP work resources and MOPS travel resources, in relation to the material required to be shared between the Secretary and IPEA.

Item 20 – Subsection 53(1)

18                Item 20 would update the references to subsection 12(1) of the IPEA Act with the changes proposed in Item 18.

Item 21 – Section 63

19                Item 21 would provide for the repeal of transitional and application provisions relating to the functions of IPEA under section 63 of the IPEA Act as originally enacted and substitutes a provision that allows legislative rules made under the IPEA Act to prescribe matters of a transitional nature relating to the abolition of the body known as the Independent Parliamentary Expenses Authority as established under section 65 of the Public Service Act 1999. This effectively replicates subsection 63(8) of the IPEA Act as originally enacted. Furthermore, section 19D of the Acts Interpretation Act will apply to any transitional issues that arise due to the machinery of government changes around the establishment of IPEA.

20                Subsections 63(1) to (7) of the IPEA Act as originally enacted are essentially application provisions for the functions of IPEA under section 12 of the IPEA Act as originally enacted. These subsections are no longer required given the amendments to section 12 made by this Bill. However, to the extent that subsections 63(1) to (7) of the IPEA Act as originally enacted are still required, item 7 of Schedule 3 to the Bill provides that the functions IPEA has prior to the commencement of this Bill will still continue to apply after the commencement in relation to matters that occurred prior to the commencement (and including prior to the commencement of the IPEA Act). This effectively continues the operation of section 12 of the IPEA Act as originally enacted where IPEA exercises powers in respect of matters that occurred prior to the commencement of this Bill.

Part 2 – Other amendments

Age Discrimination Act 2004

Item 22 – Schedule 1 (table item 38)

21                Item 22 deletes references to the PE Act to account for the new framework upon enactment of the PBR Bill. The PBR Bill replaces the PE Act as the primary legislation dealing with parliamentary work expenses (public and other resources under the PBR Bill). The Attorney-General’s Department has been consulted in relation to this proposed amendment to the ADA.

Ministers of State Act 1952

Item 23 – Title

22                Item 23 amends the title of the MOS Act, making it clear that the MOS Act will determine the number of the Ministers of State but that provision for the limit on total annual salaries will be made under the PBR Bill as part of a new simplified system.

Item 24 – At the end of section 4

23                Item 24 adds a note to make it clear that the PBR Bill will set out the limit of the annual amount that can be appropriated for the salaries of Ministers of State (in accordance with section 66 of the Constitution).

Item 25 – Sections 5 and 6

24                Item 25 repeals certain provisions in the MOS Act relating to salaries and allowances. Sections 5 and 6 are being repealed by this Act because equivalent provisions will be made under the PBR Bill. For the avoidance of doubt, the provision determining the number of Ministers of State will remain in the MOS Act and operation of that provision is uninterrupted by this Bill.

Parliamentary Contributory Superannuation Act 1948

Items 26 to 39

25                Items 26 to 39 delete and amend concepts in the PCS Act to account for the new work expenses framework in the PBR Bill. References are also updated to the PBR Bill. Updated definitions include allowance by way of salary, office holder, parliamentary allowance, and salary. These new definitions improve readability and ensure operational consistency of the PCS Act with the PBR Bill.

Parliamentary Retirement Travel Act 2002

Item 40 – Section 4

26                Item 40 inserts a definition of Remuneration Tribunal Minister as the Minister that administers the RT Act. This is relevant to other amendments to the PRT Act made by this Bill.

Item 41 – Section 26

27                Item 41 amends section 26 of the PRT Act by deleting the phrase determined from time to time by the Remuneration Tribunal and inserts prescribed under section 30 of the Parliamentary Business Resources Act 2017. This reflects the change in the framework, in that under the PBR Bill the travel expenses for members will be prescribed in regulations in accordance with reports of the Remuneration Tribunal (see clause 35 of the PBR Bill).

Item 42 – Before subsection 30(1)

28                Item 42 inserts a new subsection (1A) into section 30 of the PRT Act to allow the Remuneration Tribunal to make determinations under the Act. This continues the arrangement where the Remuneration Tribunal determines the qualifying period for a Parliamentary Retirement Travel Entitlement under the PRT Act (which as at March 2017 only provides travel to former Prime Ministers and their spouses). This is required as the current powers under section 7 of the RT Act are being repealed from the RT Act by this Bill and consolidated into the PBR Bill. This ensures continuity of the arrangements under the PRT Act.

Items 43 and 44 – Subsections 30(1), (2); and subsection 30(3)

29                Items 43 and 44 inserts references under subsection (1A) in subsections 30(1) and (2) and (3) of the PRT Act. This reflects the insertion of subsection (1A) above, providing the Remuneration Tribunal to make determinations under the PRT Act (consistent with their role under the RT Act as at March 2017). 

Item 45 – Subsection 30(4)

30                Item 45 repeals subsection 30(4) of the PRT Act. Subsection 30(4) of the PRT Act deals with trips commenced prior to the commencement of section 30 of the PRT Act, so is now redundant and can be repealed.

Item 46 – Paragraph 30(5)(b)

31                Item 46 inserts the phrase and whether made under subsection (1A) or any other Act after the word section in paragraph 30(5)(b) of the PRT Act. This item clarifies that the PRT Act (other than Part 6) does not affect the corresponding provisions of another determination of the Remuneration Tribunal (whether made before or after the commencement of section 30 of the PRT Act and whether made under subsection 30(1A) of the PRT Act or any other Act).

Item 47 – After section 30

32                Item 47 inserts a new section 30AA into the PRT Act to deal with requirements for determinations made by the Remuneration Tribunal. Consistent with the PBR Bill and the Remuneration Tribunal’s functions under the RT Act as at March 2017, this insertion sets out a number of requirements in relation to the Remuneration Tribunal’s power to determine matters. This includes:

·        That the determination must be in writing (subsection 30AA(1))

·        That the determination may come into effect on a specified day or on the occurrence of the day an event specified in the determination occurs or occurred (subsection 30AA(2))

·        That the Tribunal must provide the Remuneration Tribunal Minister with a copy of the determination (subsection 30AA(3))

·        That the Tribunal must publish its reasons for making the determination on its website and notify the Remuneration Tribunal Minister (subsection 30AA(4)), and

·        That the determination is a legislative instrument, but section 42 (disallowance) of the Legislation Act does not apply to the determination (subsection 30AA(5)). Exemption from disallowance is consistent with the arrangements under the RT Act as at March 2017 and ensures that the independence of the Remuneration Tribunal is preserved.

Parliamentary Superannuation Act 2004

Items 48 and 49 – Section 3 (definition of allowance by way of salary); and Section 3 (definition of office holder)

33                Items 48 and 49 delete and amend concepts in the PS Act to account for the new work expenses framework and to align the new definitions with the PBR Bill. Updated definitions include allowance by way of salary and office holder. These new definitions ensure operational consistency of the PS Act with the PBR Bill.

Item 50 – Section 3 (paragraph (b) of the definition of parliamentary allowance)

34                Item 50 inserts as in force immediately before the commencement of the Parliamentary Business Resources Act 2017 after the reference to the RT Act in section 3 (paragraph (b) of the definition of parliamentary allowance) of the PS Act to align the PS Act with the new parliamentary work expenses framework.

Item 51 – Section 3 (at the end of the definition of parliamentary allowance)

35                Item 51 inserts ; or (c) base salary (within the meaning of the Parliamentary Business Resources Act 2017) at the end of the definition of parliamentary allowance in section 3 of the PS Act to align with the new work expenses framework.

Item 52 – Section 3 (definition of salary)

36                Item 52 updates the definition of salary in section 3 of the PS Act to account for the meaning of Ministerial salary in the PBR Bill.

Item 53 – Subsection 8(3)

37                Item 53 updates references in subsection 8(3) of the PS Act from the RA Act to the PBR Bill to align with the new work expenses system.

Remuneration and Allowances Act 1990

Items 54, 55 and 56 – Subsection 3(5); Sections 6 and 7; and Schedules 3 and 4

38                Items 54, 55 and 56 repeal provisions of the RA Act that are redundant due to the relevant operative provisions being relocated into the PBR Bill.

39                The Department of the Prime Minister and Cabinet has been consulted in relation to these proposed amendments to the RA Act.

Remuneration Tribunal Act 1973

Items 57 and 58 – Subsection 3(1) (definition of additional Parliamentary office holder salary); and Subsection 3(1) (definition of parliamentary base salary)

40                Items 57 and 58 delete and amend several definitions in subsection 3 of the RT Act (for example, additional parliamentary office holder salary and parliamentary base salary) to account for the new framework following the end of the transition period and enactment of the PBR Bill.

Item 59 – After subsection 5(2D)

41                Item 59 inserts a new subsection (2E) after subsection 5(2D) of the RT Act, which states The Parliamentary Business Resources Act 2017 may confer additional functions on the Tribunal. This item makes it clear that the powers of the Tribunal to determine matters in respect of parliamentarians is removed from the RT Act and relocated in a new single piece of legislation (PBR Bill). This approach is consistent with recommendation 3 of the Review.

Item 60 – Section 6 (heading)

42                Item 60 amends the heading in section 6 of the RT Act and substitutes it with Inquiries and reports by the Tribunal into the salaries of officers of higher education institutions. This item reflects updates to the Tribunal’s powers in respect of parliamentarians, which will be transferred to the new framework following enactment of the PBR Bill.

Item 61 – Subsection 6(1)

43                Item 61 repeals subsection 6(1) of the RT Act, which allowed the Remuneration Tribunal to inquire into, and report to the Prime Minister on, whether alterations to the salaries payable to Ministers of State are desirable. The Remuneration Tribunal will continue to perform this function as this subsection is being incorporated into the PBR Bill.

Item 62 – Subsection 6(3)

44                Item 62 deletes the reference to (1) or in subsection 6(3) of the RT Act. This is consequential to the repeal of subsection 6(1) by item 61 (see above).

Item 63 – Subsections 7(1) to (2A)

45                Item 63 repeals subsections 7(1) to (2A) of the RT Act to account for the fact that these powers in respect of parliamentarians are being relocated into the PBR Bill.

Item 64 – Subsection 7(4)

46                Item 64 deletes the reference to (1), (2) in subsection 7(4) of the RT Act to account for the fact that these subsections have been repealed under this Bill (see item 63 above).

Item 65 – Subsection 7(5G)

47                Item 65 repeals subsection 7(5G) of the RT Act to account for the fact that subsection 7(2A) is repealed under this Bill (see item 63 above).

Item 66 – Subsection 7(7)

48                Item 66 omits the phrase that is referred to in subsection (8AA) or in subsection 7(7) of the RT Act, as subsection (8AA) is repealed by this Bill (see item 67 below).

Item 67 – Subsection 7(8AA)

49                Item 67 repeals subsection 7(8AA) of the RT Act. Subsection 7(8AA) deals with disallowance of determinations of the Remuneration Tribunal relating to members of parliament. (8AA) is not longer required as the relevant powers have been relocated to the PBR Bill.

Item 68 – Section 7A

50                Item 68 repeals section 7A of the RT Act. Section 7A provides that the Tribunal must provide reasons for determinations made in relation to members of parliament. This is relocated into the PBR Bill.

Item 69 – Paragraph 8(1)(a)

51                Item 69 deletes the reference to subsections 6(1) from paragraph 8(1)(a), to reflect that 6(1) is repealed by this Bill (see item 61 above).

Item 70 – Paragraph 8(1)(b)

52                Item 70 deletes the reference to subsections 7(1) and (2) of the RT Act in paragraph 8(1)(b) to reflect that these subsections are repealed by this Bill (see item 63 above).

Safety, Rehabilitation and Compensation Act 1988

Items 71, 72 and 73 – Section 69 (note); Subsections 73(1) and 73A(1); and Subparagraph 91(3)(a)(vi)

53                Item 71, 72 and 73 changes references to the PE Act in section 69, subsections 73(1) and 73A(1), and subparagraph 91(3)(a)(vi) of the SRC Act to be references to the PBR Bill to ensure that the SRC Act continues to apply to the PICS in the same way under the new work expenses framework.

54                As at March 2017, the PICS is a legislative instrument made under section 9A of the PE Act. It establishes an injury compensation scheme for parliamentarians and the spouse of the Prime Minister that is consistent with compensation for Commonwealth employees provided under the SRC Act. The power under the PE Act to formulate the scheme will effectively be replicated in the PBR with minor updates to the drafting style. However, as the PICS instrument will be made under a new Act, the references in the SRC Act to the PE Act are required to be updated to reflect this change.

55                The Department of Employment has been consulted in relation to these proposed amendments to the SRC Act.

Part 3 – Contingent amendments

Freedom of Information Act 1982

Item 74 Division 1 of Part II of Schedule 2 (item dealing with Independent Parliamentary Expenses Authority)

56                Item 74 makes a minor consequential amendment to Division 1 of Part 2 of Schedule 2 to the FOI Act to remove reference to personal advice provided under paragraph 12(1)(p) of the IPEA Act, to reflect the new paragraph number in subsection 12(1) of the IPEA Act as a result of this Bill. This does not change the effect of the exemption in the FOI Act as inserted by the IPEA (CA) Act.

57                The Attorney-General’s Department has been consulted in relation to this proposed contingent amendment to the FOI Act.


 

Schedule 2 – Repeals

Parliamentary Allowances Act 1952

Item 1 – The whole of the Act

58                Item 1 repeals the PA Act and its subordinate legislation at the same time as the PBR Bill commences to simplify the new work expenses framework and to create a clearer and more transparent regime. All relevant provisions under the PA Act have been incorporated into the PBR Bill, so this Act is no longer required.

Parliamentary Entitlements Act 1990

Item 2 – The whole of the Act

59                Item 2 repeals the PE Act and its subordinate legislation at the same time as the PBR Bill commences, to simplify the new work expenses framework and to create a clearer and more transparent regime. As the PBR Bill replaces the work expenses system the PE Act is no longer required.


 

Schedule 3 – Application and transitional provisions

60                Schedule 3 to the Bill relates to the operation of the PBR Act and provides for application and transitional provisions. Application provisions are required to ensure that certain provisions in the PBR Act work at the appropriate time.

Item 1 – Interpretation

61                Item 1 makes it clear that the abbreviation of the Parliamentary Business Resources Act 2017 in this Schedule 3 is PBR Act and that definitions in the PBR Bill have the same meaning when used in this Schedule 3.

Item 2 – Application of Part 2 (remuneration etc.) of the Parliamentary Business Resources Act 2017

62                Item 2 deals with the application of provisions in Part 2 of the PBR Bill relating to remuneration and salary sacrificing under the new work expenses framework.

63                Subitem (1) sets out that Division 2 of Part 2 of the PBR Bill applies in relation to:

(a)                remuneration payable or to be provided;

(b)               expenses and allowances payable under clause 15 of the PBR Bill, and

(c)                goods, services, premises, equipment and any other facility to be provided under clause 16 of the PBR Bill

in relation to the day item 1 commences and later days. This ensures continuity of remuneration arrangements, with a transition to the provisions of the PBR Bill from the day it commences.

64                Subitems (2), (3) and (4) apply to the salary sacrificing provisions of the PBR Bill (Division 2 of Part 2), and provide that:

(a)                clause 21 of the PBR Bill applies in relation to calendar months that commence at or after the commencement of item 2 (subitem (2))

(b)               an election under clause 1D of Schedule 3 to the RA Act as in force immediately before the commencement of this item is taken to be an election under clause 18 of the PBR Bill (subitem (3)), and

(c)                the repeal of clause 1G of Schedule 3 to the RA Act that is made in this Bill applies in relation to calendar months that commence at or after the commencement of item 2 (subitem (4)).

65                The overall effect of these subitems is that salary sacrifice elections made under the old work expenses framework will apply until the end of the calendar month after the PBR Bill commences, with the next month then covered by the PBR Bill based on elections deemed to have been made under that Bill.

Item 3 – Application of other Parts of the Parliamentary Business Resources Act 2017

66                Item 3 deals with the application of other parts of the PBR Bill.

67                Subitem (1) provides for Divisions 2 and 3 of Part 3 of the PBR Act to apply in relation to claims made and expenses incurred after the commencement of this item, where the associated parliamentary business was conducted after that commencement.

68                Subitem (2) provides that Division 3 of Part 4 of the PBR Bill applies in relation to public resources provided after the commencement of this item.

69                Subitem (3) provides that clause 55 of the PBR Bill applies in relation to financial years that end after the commencement of this item.

Item 4 – Continuation of Parliamentary injury compensation scheme

70                Item 4 preserves the PICS instrument so that it remains in force and so that the same assistance for injuries continues to apply to parliamentarians under the new work expenses framework (subitem (1)). Made under the PE Act by the SMOS, as at March 2017, the PICS instrument establishes an injury compensation scheme for parliamentarians as well as the spouse of the Prime Minister. The benefits provided as part of the scheme are intended to mirror those provided to Commonwealth public servants under the SRC Act.

71                Subitem (2) provides for the PICS instrument saved under subitem (1) to apply to new injuries after commencement of this item in relation to the events set out in paragraphs (a) to (d).

72                Subitem (3) makes minor consequential modifications and transitional arrangements required to ensure that the instrument remains in force and that, where appropriate, references are updated. As some of the terms used in the PICS instrument are reliant on the definitions in the PE Act, this subitem explains the intention that references in the PICS instrument should be updated to account for the PBR Bill (e.g. parliamentary activities under the PE Act should be translated as meaning parliamentary business). However, in practice, there will be no substantial change to the operation of injury compensation.

73                Subitem (4) provides for continuing application of the PICS instrument as made under the PE Act for injuries that occur before the commencement of this item as set out in paragraphs (a) to (d).

74                Subitem (5) allows the regulations to prescribe additional modifications for the application of subitems (2) or (4). The power to provide additional modifications does not limit the modification power provided under item 11 of Schedule 3 to the Bill (subitem (6)), nor does it prevent an instrument being made under clause 41 of the PBR Bill (subitem (7)).

75                Subitem (8) allows the first instrument made after the commencement of this item (and the subsequent saving of the old Parliamentary injury compensation scheme instrument) to have retrospective operation even where it would affect a person’s rights to their disadvantage, or impose retrospective liabilities on the person. This provides a contrary intention for the purposes of subsection 12(2) of the Legislation Act.

76                This power is not designed to undermine the Parliament’s legislative responsibility or powers of scrutiny. Rather, the modification clause is intended to be used for matters that relate to the transition from the old work expenses framework to the new work expenses framework. While every effort has been taken to ensure the accuracy and completeness of the Bill and to plan for the details of the transition, given the size, scope and complexity of the legislative changes (and in the case of the Parliamentary injury compensation scheme, the sensitive nature of the risks should some transitional matters not adequately covered) it is prudent to provide a means of quickly and easily addressing any issues that are not apparent at this time or that may later emerge in respect of the transition.

77                The modification power is limited in scope as it only relates to transitional matters and in the case of allowing the Parliamentary injury compensation scheme instrument to override section 12(2) of the Legislation Act, this is limited to one instance only, which emphasises the transitional nature of this power. This is especially important in the case of the Parliamentary injury compensation scheme instrument which currently contains penalty provisions and notification requirements. The intention is to update references in the Parliamentary injury compensation scheme instrument so that it relates to the new terminology used in the PBR Bill; it is not to retrospectively take coverage away from people previously covered by the scheme or impose obligations on them.

78                Overriding the application of subsection 12(2) of the Legislation Act is necessary to address any risk that remaking the instrument retrospectively, even in a way that did not change the existing provisions, would enliven subsection 12(2) of the Legislation Act. Were subsection 12(2) of the Legislation Act allowed to operate in this instance it would severely compromise the continuous operation of the Parliamentary injury compensation scheme instrument.

Item 5 – Approvals in force

79                Item 5 preserves and maintains approvals in force under the old work expenses framework. The intention of this provision is to ensure that any allowances or benefits that have been approved under the PA Act or the PE Act, which the Commonwealth is liable for, will be validated as if the equivalent category remuneration or work expense had been approved under the PBR Bill (for example, electorate office accommodation approved by the minister).

Item 6 – Application of the repeal of the Parliamentary Allowances Act 1952 and the Parliamentary Entitlements Act 1990

80                Item 6 deals with the application of the repeal of the PA Act and the PE Act and any instruments under these Acts, other than the PICS instrument. It validates all allowances and benefits to which a person became entitled under the PA Act, the PE Act, or any instruments (other than the PICS instrument before commencement of this item, or where they became entitled after commencement in relation to activities conducted before commencement.

81                This ensures that members will not be disadvantaged by the transition to the new work expenses framework, and can continue conducting their business up to the transition on the basis that any use of work expenses under the old work expenses system will be able to be paid by the Commonwealth.

Item 7 – Application of amendments of the Independent Parliamentary Expenses Authority Act 2017

82                Item 7 deals with the application of consequential amendments to the IPEA Act.

83                Subitem 7(1) essentially allows the powers and functions of IPEA under section 12 of the IPEA Act as originally enacted to continue to the extent that IPEA needs to deal with matters that occurred prior to the commencement of this Bill and including prior to the commencement of the IPEA Act. This means that other parts of the IPEA Act that relate to these functions and powers are also continued in effect (for example, relevant definitions that have been repealed by this Bill will continue in effect as well as the application provisions for the powers and functions of IPEA under section 63 of the IPEA Act as originally enacted).

84                Subitem 7(2) also provides that where rules have been made under subsection 63(8) of the IPEA Act as originally enacted, those rules are taken to commence under new section 63 of the IPEA Act.

85                Subitems 7(3) and (4) provide an equivalent to subitem 7(1) in respect of the information sharing and gathering powers of IPEA under the IPEA Act as originally enacted.

Item 8 – Application of amendments of the Age Discrimination Act 2004

86                Item 8 makes it clear that amendments to the ADA Act made by Schedule 1 of the Bill apply to things done by a person after item 8 commences.

87                However, subitem (2) provides that the ADA Act as in force before the commencement of this item continues to apply to things under the PICS under the PE Act to the extent that it continues to apply under this Schedule (see subitem 4(4) above).

Item 9 – Application of amendments of the Parliamentary Contributory Superannuation Act 1948 and the Parliamentary Superannuation Act 2004

88                Consistent with current arrangements, item 9 of Schedule 3 makes it clear that amendments of the PCS Act and the PS Act made by Schedule 1 to this Act apply in relation to the calendar month that starts on or after the commencement of this item 9.

Item 10 – Application of amendments of the Safety, Rehabilitation and Compensation Act 1988

89                Item 10 deals with application of amendments to the SRC Act. Subitem (1) ensures that the amendments made by this Act to section 91 of the SRC Act apply in relation to expenses, charges, obligations and liabilities incurred or undertaken by Comcare under the PBR Bill after this item commences. Section 91 of the SRC Act deals with money payable to Comcare.

90                However, subitem (2) provides that the SRC Act as in force before the commencement of this item continues to apply in relation to any expenses, charges, obligations and liabilities incurred or undertaken by Comcare under the PE Act in performance and exercise of its functions under the PICS under the PE Act to the extent that it continues to apply under this Schedule (see subitem 4(4) above).

Item 11 – Transitional regulations

91                Item 11 confers regulation-making powers on the Governor-General, to make transitional provisions related to the transition from the PE Act to the PBR Bill. Subitem 11(2) permits regulations for the purposes of this item to modify the Bill, but only in relation to the first 12 months after this item commences. Subitem 11(3) provides clear contrary intention to subsection 12(2) of the Legislation Act. This allows the regulations to make retrospective modifications in the first 12 months even where those modifications affect a person’s rights disadvantageously, or impose retrospective liabilities on the person.

92                The transition from the old work expenses framework to the new work expenses framework is a major undertaking and this item is designed to allow for any issues that may arise during the transition period, or are not apparent at this time, to be addressed efficiently and effectively. While every effort has been taken to ensure the accuracy and completeness of this Bill and to plan for the details of the transition, it is considered that the size and scope of the legislative changes dictates that it is prudent to provide a means for regulations of this kind to be made, should relevant circumstances arise.

93                The regulation-making power is not designed to undermine Parliament’s legislative responsibility. This is demonstrated by the focus of subitem 11(1), which specifies that the power is only for matters of a transitional nature while the transition from the PE Act to the PBR Bill is underway. Subitem 11(2) is also limited in scope by only permitting the regulations to modify the PBR Bill for the first 12 months after this item commences. Again, this emphasises the transitional nature of the regulations that may be made under this item.

Subitem 11(4) makes it clear nothing that the Bill does, or does not, deal with is intended to limit the regulations that may be made under subitem 11(1). This ensures that after the first 12 months (the limit of the ambit of subitem 11(2)) where regulations are made that deal with matters of a transitional nature, provided they do not expressly conflict with the provisions of the Bill, they will be covered by the power provided in subitem 11(1).

 

Attachment A

 

Statement of Compatibility with Human Rights

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

 

Parliamentary Business Resources (Consequential and Transitional Provisions) 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 Parliamentary Business Resources (Consequential and Transitional Provisions) Bill 2017 (the Bill) makes consequential and transitional arrangements to ensure a smooth transition from the old parliamentary work expenses framework established primarily under the Parliamentary Entitlements Act 1990 (the PE Act) to the new work expenses framework established by the Parliamentary Business Resources Bill (PBR Bill).

The Bill repeals a number of Acts and provisions in Acts that exist under the old work expenses framework where an equivalent provision is provided in the new PBR Bill; this includes:

·         the Parliamentary Entitlements Act 1990

·         the Parliamentary Allowances Act 1952

·         provisions in the Ministers of State Act 1952

·         provisions in the Remuneration Tribunal Act 1973, and

·         provisions in the Remuneration and Allowances Act 1990.

The Bill also makes consequential amendments to the following Acts in order to update references from the old work expenses framework to the new work expense framework, including:

·         the Independent Parliamentary Expenses Authority Act 2017

·         the Freedom of Information Act 1982

·         the Age Discrimination Act 2004

·         the Parliamentary Contributory Superannuation Act 1948

·         the Parliamentary Superannuation Act 2004

·         the Parliamentary Retirement Travel Act 2002, and

·         the Safety, Rehabilitation and Compensation Act 1988.

The amendments are not designed, nor do they, expressly affect the rights of any person under the abovementioned Acts. Rather the amendments merely recognise that parliamentary work expenses will now be provided under a new single legislative head of the authority, the PBR Bill.

The Bill also contains necessary application and modification provisions to ensure the smooth transition from the old work expenses framework to the new work expense framework. For example, the Bill contains a modification power to allow a new Parliamentary injury compensation scheme instrument to be remade in a way that would override 12(2) Legislation Act 2003. This means that it could retrospectively impose a penalty or reporting obligation on a person in respect of the operation of the Parliamentary injury compensation scheme; although the intention is only to continue the existing penalties and reporting obligations that currently exist under the Parliamentary injury compensation scheme. Therefore, it is possible that this could engage the applicable rights and freedoms. However, to the extent that it would engage the applicable rights and freedoms, it is considered reasonable, necessary, and proportionate to achieve the objective of providing continuous coverage for members under Parliamentary injury compensation scheme.

Human Rights Implications

The amendments are machinery in nature. They are intended only to continue the rights and obligations that exist under the old work expenses framework in the transition to the new work expenses framework, provided under a new single head of legislative authority, the PBR Bill.

To the extent that the amendments give rise to the possibility that the applicable rights and freedoms could be engaged, it is considered reasonable, necessary, and proportionate to achieving the objective of a smooth transition from the old work expenses framework to the new work expenses framework. Therefore, given the consequential and transitional arrangements provided in the Bill do not expressly expand or limit existing rights and freedoms under the current work expenses framework, the Bill is compatible with human rights.

Conclusion

The Bill is compatible with human rights because it does not expressly expand or limit the applicable rights and freedoms. To the extent that it may allow for human rights to be expanded or limited in the future, this is considered reasonable, necessary and proportionate to achieving the objectives of the Bill.

 

The Special Minister of State, Senator the Hon Scott Ryan