Statutory Rules 1998 No. 2691
__________________
Parliamentary Entitlements Regulations2 (Amendment)
I, WILLIAM PATRICK DEANE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Parliamentary Entitlements Act 1990.
Dated 25 August 1998.
WILLIAM DEANE
Governor-General
By His Excellency’s Command,
DARYL WILLIAMS
Attorney-General
for the
Minister for Finance and Administration
____________
1. Commencement
1.1 These Regulations commence on gazettal.
2. Amendment
2.1 The Parliamentary Entitlements Regulations are amended as set out in these Regulations.
3. New Part heading
3.1 Before regulation 1, insert:
“Part 1—Preliminary”.
4. New Part heading
4.1 After regulation 2, insert:
“Part 2—Additional benefits”.
5. New Part
5.1 Add at the end:
“Part 3—LEGAL ASSISTANCE TO MINISTERS
“Division 1—Preliminary
Definitions
“5. In this Part, unless the contrary intention appears:
approving Minister has the meaning given by regulation 7.
applicant means a person who is, or has been on or after 24 May 1990, a Minister.
ministerial duties means duties or conduct arising from occupying the office of Minister.
proceedings means:
(a) a claim for damages or compensation against an applicant; or
(b) a prosecution of an applicant; or
(c) proceedings, in which damages or compensation are not claimed, that are brought against an applicant before a court, tribunal, person or body that may award damages or compensation; or
(d) a claim that an applicant has a legal liability and should take some resulting action; or
(e) an inquiry into matters involving an applicant or the conduct of an applicant (but not a challenge to the validity or conduct of the inquiry); or
(f) a threat to start proceedings mentioned in paragraph (b) or (c).
Secretary means the Secretary to the Attorney-General’s Department.
subpoena includes a summons or other compulsory process to appear to give evidence or to produce documents.
Application of Part
“6. This Part applies to proceedings, or a subpoena received by an applicant related to his or her ministerial duties, in relation to a matter happening on or after 24 May 1990.
“Division 2—Assistance
Approving Minister
“7. (1) For an application for assistance under regulation 9, the approving Minister is the Attorney-General unless subregulation (2), (3) or (4) applies.
“(2) If the Attorney-General is involved and the Prime Minister is not involved, the approving Minister is the Prime Minister.
“(3) If the Prime Minister and the Attorney-General are involved in the same matter, the approving Minister is the Minister for Finance and Administration.
“(4) If the Prime Minister, the Attorney-General and the Minister for Finance and Administration are involved in the same matter, the approving Minister is another Minister, who is not involved in the matter, appointed by the Prime Minister.
“(5) If all Ministers are involved in the matter, the approving Minister is the Attorney-General.
Application for assistance
“8. An applicant may apply in writing to the approving Minister for assistance under regulation 9.
Assistance to an applicant
“9. (1) For subsection 5 (1) of the Act, subject to this Part, the approving Minister may approve payment by the Commonwealth of:
(a) the costs of an applicant’s legal representation in relation to proceedings and other costs related to proceedings; and
(b) damages or costs awarded against an applicant; and
(c) a reasonable amount payable by an applicant in the settlement of proceedings; and
(d) a fine or penalty imposed on an applicant; and
(e) the costs of legal representation in responding to a subpoena and other costs related to providing a response to a subpoena.
“(2) Assistance is payable in accordance with the approval, subject to these Regulations.
“(3) Assistance extends to the payment of costs for an appeal against, or a review of, a decision in proceedings for which the approval was given.
“(4) The approving Minister may reduce the amount of assistance payable if the approving Minister is satisfied that the applicant has breached these Regulations or a condition of the approval.
“(5) The approving Minister may defer making a decision whether to approve payment of assistance in whole or part until the proceedings reach a point at which the approving Minister considers it appropriate to make the decision.
“(6) Assistance approved in relation to the defence of an indictable offence must be limited initially to the preparation and conduct of committal proceedings.
“(7) Assistance for payment of a fine or penalty imposed or costs awarded against the applicant in criminal proceedings must not be approved until the fine or penalty is imposed or the costs are awarded.
Consideration by approving Minister
“10. (1) Before giving approval under regulation 9, the approving Minister must:
(a) consult other Ministers in accordance with arrangements approved by the Prime Minister; and
(b) for proceedings mentioned in paragraph (e) of the definition in regulation 5 of proceedings—be satisfied that:
(i) the inquiry relates to the performance by an applicant of ministerial duties; and
(ii) it is appropriate to give assistance; and
(c) for proceedings other than those mentioned in paragraph (b)—be satisfied that:
(i) the proceedings relate to actual or alleged performance or non-performance by the applicant of ministerial duties and the applicant acted reasonably and responsibly in relation to the matters giving rise to the proceedings; or
(ii) the proceedings arose only because the applicant is, or has been, the holder of the office of Minister.
“(2) Approval must not be given for assistance for proceedings that have arisen out of a motor vehicle incident for which:
(a) the applicant’s liability is insured; or
(b) the approving Minister considers that the applicant’s liability should reasonably have been insured.
“(3) Approval may be refused if there has been unreasonable delay in applying for assistance.
Revocation of approval
“11. (1) An approval under regulation 9 may be revoked by the approving Minister, by notice given to the applicant:
(a) so far as it provides for expenditure to be incurred, after the notice is given, for costs of an appeal or review; or
(b) if the approving Minister is satisfied that the applicant has breached a condition of the approval.
“(2) Where the grounds mentioned in paragraph (1) (b) exist:
(a) all or part of the approval may be revoked; and
(b) the applicant may be required to repay all or part of any money paid under the approval after the condition was breached.
Other arrangements
“12. (1) These Regulations do not affect an applicant’s eligibility for assistance other than under these Regulations.
“(2) However, in considering whether to approve assistance under these Regulations or the amount of assistance, the approving Minister may take into account any payment received or receivable by the applicant other than under these Regulations.
“Division 3—Conditions
Control by Commonwealth
“13. If an approval under paragraph 9 (1) (b) or (c) has been given, the Commonwealth may control the conduct of the defence of the proceedings.
Assistance by applicant
“14. The applicant must give to the Commonwealth the assistance that it requests in exercising its control under regulation 13.
General conditions
“15. (1) An approval under regulation 9 may be subject to the condition that the Australian Government Solicitor or another nominated legal practitioner will represent the applicant.
“(2) An approval may be subject to other conditions imposed by the approving Minister at any time.
“(3) The costs of an applicant’s legal representation and other related costs will be paid only so far as they are certified by the Secretary, or another officer designated by the Secretary, to be reasonable.
Recovery of costs
“16. (1) An approval under regulation 9 for the Commonwealth to arrange for the defence of an applicant is subject to the condition that, if an award of costs is made in the applicant’s favour, the applicant must take all steps directed by the Commonwealth to recover the costs and must pay to the Commonwealth any costs recovered.
“(2) The approval includes approval for the payment of the reasonable expense, certified by the Secretary or another officer designated by the Secretary, of the steps reasonably taken or directed to be taken by the applicant to recover those costs.
“Division 4—Monitoring and reporting
Monitoring
“17. The Secretary or another officer designated by the Secretary must:
(a) monitor strategies adopted by an applicant in legal proceedings for which assistance under regulation 9 has been approved; and
(b) inform the approving Minister if the Secretary or the other officer considers that proposed expenditure on the proceedings is unreasonable.
Reporting
“18. The Attorney-General must:
(a) inform the Parliament of each decision to pay assistance under this Part, including reasons for the decision and any limits on expenditure, as soon as possible; and
(b) within 3 months after the end of each financial year, table a consolidated statement of expenditure under this Part for that year, specifying the expenditure for each matter.”.
NOTES
1. Notified in the Commonwealth of Australia Gazette on 26 August 1998.
2. Statutory Rules 1997 No. 318.