Independent Parliamentary Expenses Authority Bill 2017 [2017] AUSStaCSBSD 44 (15 February 2017)

• Independent Parliamentary Expenses Authority Bill 2017
• Parliamentary scrutiny 23

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Independent Parliamentary Expenses Authority Bill 2017

Purpose	This bill seeks to establish the Independent Parliamentary Expenses Authority as an independent statutory authority with responsibilities relating to work expenses of parliamentarians and their staff
Portfolio	Finance
Introduced	House of Representatives on 9 February 2017

Parliamentary scrutiny ^[23]

1.38 One of the functions of the proposed Independent Parliamentary Expenses Authority is to produce regular public reports on parliamentarians' and MOPS staff^[24] travel expenditure (and other related reports as the Authority considers appropriate).^[25]

1.39 Clause 60 provides that certain sensitive information must not be included in these public reports. Paragraphs 60(1)(a) and (b) provide that where the Authority or the Attorney-General is of the opinion that disclosure of certain information would be contrary to the public interest because it would prejudice the security, defence, or international relations of the Commonwealth, this information must not be included by the Authority in a public report.

1.40 Additionally, paragraph 60(1)(c) provides that information must not be included in a public report if the Authority is of the opinion that disclosure of the information would be likely to result in serious harm to the individual, or any of the individuals, to whom the information relates. 'Harm' is defined as having 'the same meaning as in the Dictionary to the Criminal Code', that is, physical or mental harm (whether temporary or permanent).^[26] The explanatory memorandum notes that:

This paragraph is intended to protect individuals from threats to their personal safety that fall short of national security matters covered by paragraphs (a) and (b). It might, for example, be necessary to protect an MP who has suffered family violence, or who is being stalked by a member of the public.^[27]

1.41 Subclause 60(2) provides that where such a determination in relation to the non-disclosure of sensitive information has been made, the Authority also cannot disclose that information to Parliament, a member of Parliament or a parliamentary committee. The explanatory memorandum notes that this provision is modelled on subsection 37(3) of the Auditor-General Act 1997. Therefore, it is intended 'to act as a declaration for the purposes of section 49 of the Constitution'; that is, it is intended to affect the scope of the powers, privileges and immunities of Parliament. The explanatory memorandum suggests that this limitation is necessary:

...given the highly sensitive nature of information that would be covered by a determination under subclause 60(1). It is also consistent with existing concepts of public interest immunity. The Government guidelines for official witnesses before Parliamentary Committees and related matters, February 2015, notes that public interest immunity claims may be made in relation to information the disclosure of which would, or might reasonably be expected to, 'damage Australia's national security, defence or international relations', or 'endanger the life or physical safety of any person' (at paragraph 4.6.1).^[28]

1.42 In seeking to make a declaration for the purposes of section 49 of the Constitution, subclause 60(2) represents a significant intrusion on the powers, privileges and immunities of the Parliament. It is therefore important that the Parliament is very clear about the necessity and rationale for such a provision before it legislates to place limitations on its own powers.

1.43 It is unclear to the committee in what instances the inclusion of historical travel information in public reports may prejudice the security, defence or international relations of the Commonwealth. The committee notes that regular reports on travel expenditure are currently released by the Department of Finance every six months. It is proposed that over time the Authority will shift to quarterly and then monthly reporting,^[29] although there is no suggestion that public reporting will occur in real-time or before the relevant travel has been undertaken. There is also no indication as to how the content of the public reporting by the Authority will differ from the content of current public reporting by the Department of Finance. The committee notes the current public reporting does not go to the level of detail as to the specific addresses stayed at by the parliamentarian or staff member. The explanatory memorandum suggests that 'it is not anticipated clause 60 would be used frequently'.^[30]

1.44 The committee notes that even if it is considered necessary to limit the ability of the Authority to include particular information in a public report, it is not clear that the Parliament should take the significant step of legislating to pre-emptively limit its own powers to require the production of information. The committee notes that there are existing processes in place that provide a basis for parliamentary committees to handle sensitive information.^[31]

1.45 In addition, the committee notes that the current drafting of clause 60 provides that information must not be included in a public report or released to Parliament on the basis that either the Authority or the Attorney-General is 'of the opinion' that the disclosure could cause prejudice or harm. The committee notes that this does not require the Authority or Attorney-General to 'reasonably' hold this opinion and, as such, any review of such a decision would be extremely difficult to challenge.

1.46 In order to further understand the necessity of proposed clause 60 in light of the existing public reporting regime of historical travel information, the committee requests that the Minister provide examples of how the public release of historical information relating to parliamentarians' travel expenditure by the Authority could prejudice the security, defence, or international relations of the Commonwealth or cause harm to an individual (if the information published does not include specific addresses).

1.47 The committee also seeks the Minister's advice as to why the provision is drafted so that the information must not be disclosed on the basis only of the Authority or Attorney-General's 'opinion' that the disclosure could cause prejudice or harm, rather than their 'reasonable belief'.

Pending the Minister's reply, the committee draws Senators' attention to the provision, as it may be considered to insufficiently subject the exercise of legislative power to parliamentary scrutiny, in breach of principle 1(a)(v) of the committee's terms of reference.

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[23] Subclause 60(2).

[24] MOPS staff is defined as a person employed under Parts III or IV of the Members of Parliament (Staff) Act 1984, see explanatory memorandum, p. 28.

[25] Paragraphs 12(1)(d), 12(1)(e), 12(1)(s) and 12(1)(t).

[26] Clause 4.

[27] Explanatory memorandum, p. 25.

[28] Explanatory memorandum, p. 25.

[29] Explanatory memorandum, p. 9.

[30] Explanatory memorandum, p. 25. In 2010 the Auditor-General advised the Privileges Committee that the equivalent provision in s 37(3) of the Auditor-General Act 1997 had only been used once since its inception: Mr Ian McPhee, Auditor-General, Submission No 9 to the Senate Committee of Privileges, Statutory secrecy provisions and parliamentary privilege – an examination of certain provisions of the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009, June 2010, p. 2.

[31] For example, the Senate Committee of Privileges has noted that the standing orders, privilege resolutions and the resolution of the Senate relating to public interest immunity claims all provide a sound structure for committees to either handle sensitive information and retain it on an in-camera basis or, in cases where a claim of public interest immunity has been made out, to decide to not receive the information at all. Senate Committee of Privileges, Statutory secrecy provisions and parliamentary privilege – an examination of certain provisions of the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009, June 2010, p. 30.