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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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The bill seeks to amend the Parliamentary Business Resources Act
2017 and the Independent Parliamentary Expenses Authority Act 2017 to
respond to a number of recommendations of the Independent Review into the
Parliamentary Business Resources Act 2017 and the Independent
Parliamentary Expenses Authority Act 2017.
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Portfolio
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Special Minister of State
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Introduced
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House of Representatives on 27 March 2024
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Bill status
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Received the Royal Assent on 30 May 2024
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2.202 Item 32 of Schedule 1 to the bill substitutes section 16 of the Parliamentary Business Resources Act 2017 (PBR Act). Subsection 16(1) provides that the Prime Minister may, in writing, determine that the Commonwealth must provide specified goods, services, premises, equipment or facilities, or pay specified allowances or expenses to:
• a former Prime Minister (paragraph 16(1)(a)); or
• a spouse or dependent child of a former Prime Minister (subparagraph 16(1)(b)(i)); or
• an employee of a former Prime Minister employed under the Members of Parliament (Staff) Act 1984 (subparagraph 16(1)(b)(ii)).[243]
2.203 Previously, subsection 16(1) provided that a person who is a former Prime Minister is to be provided with any goods, services, premises, equipment or any other facility determined from time to time by the Prime Minister. Former subsection 16(3) of the PBR Act provided that determinations made under subsection 16(1) are legislative instruments but are exempt from disallowance. Former subsection 16(3) was omitted by the bill.
2.204 In Scrutiny Digest 6 of 2024 prior to the passage of the bill, the committee sought the Special Minister of State’s advice as to:
• whether the intention is for determinations made under proposed subsection 16(1) of the Parliamentary Business Resources Act 2017 to be legislative instruments or non-legislative;
• if the determinations are to be non-legislative, why this is the case, in light of the history of such determinations being legislative instruments; and
• if the intention is for the determinations to be legislative instruments exempt from disallowance, the justification and legislative basis for this exemption.[244]
2.205 The Acting Special Minister of State (the acting minister) advised the committee that a determination made under subsection 16(1) of the PBR Act is a non-legislative instrument because it is administrative in character. The acting minister advised that such instruments therefore do not meet the requirements for legislative instruments prescribed in subparagraph 8(4)(b)(i) of the Legislation Act 2003.
2.206 The committee thanks the acting minister for this response.
2.207 However, the advice provided does not appear to address a key component of the committee’s concerns. As noted in Scrutiny Digest 6 of 2024, instruments made under the earlier version of subsection 16(3) were classified as legislative in nature on the face of the PBR Act. As the bill has changed the nature of these instruments from legislative to non-legislative, the committee expects a sound justification as to why these instruments are considered administrative in character.
2.208 However, in light of the fact that the bill has received the Royal Assent the committee makes no further comment in relation to this matter.
2.209 Subsection 280(3) of the National Anti-Corruption Commission Act 2022 (NACC Act) appropriates the Consolidated Revenue Fund for the purpose of making payments of financial assistance to, or for the benefit of, parliamentarians under arrangements prescribed by the National Anti-Corruption Commission Regulations 2023 (NACC Regulations). Item 1 of Schedule 3 seeks to amend subsection 280(3) of the NACC Act to add the words ‘former parliamentarians’, with the effect that the standing appropriation will extend to all payments that can be made in accordance with the NACC Regulations, including those made to former parliamentarians. This provision therefore seeks to amend an existing standing appropriation.
2.210 In Scrutiny Digest 6 of 2024, the committee requested the acting minister’s advice as to:
• why it is necessary and appropriate to include a standing appropriation (rather than providing for the relevant appropriations in the annual appropriation bills);
• whether the bill places a limitation on the amount of funds that may be appropriated or duration in which it will exist for and, if not, whether consideration could be given to the appropriateness of including such constraints;
• whether the standing appropriation is subject to a sunset clause and, if not, whether it would be appropriate for such a clause to be included in the bill; and
• what mechanisms are in place to report to the Parliament on any expenditure authorised by the standing appropriation.[247]
2.211 The acting minister advised that Part 5 of the NACC Regulations prescribe arrangements for the Commonwealth to provide financial assistance to current and former parliamentarians in relation to certain NACC matters, and these matters, while relating to matters arising under or in relation to the NACC Act, also arise as a result of their position or duties as a parliamentarian.
2.212 The acting minister advised that it is a constitutional requirement that legal financial assistance for current parliamentarians be provided as a statutory entitlement rather than an agreement between a parliamentarian and the Commonwealth. The acting minister further advised that as legal financial assistance is driven by demand, it would not be possible to predict annual requirements or appropriate to limit funding available once a current or former parliamentarian meets the requirements for financial assistance. This approach is consistent with the PBR Act.
2.213 The acting minister advised that Part 5 of the NACC Regulations prescribes the parameters within which financial assistance can be provided including eligibility for parliamentarians. If eligible, the NACC Regulations also provide that the approving official is able to impose additional conditions on the provision of any financial assistance at any time and the costs of an applicant’s legal representation and disbursements will be paid only so far as they are certified to be reasonable.
2.214 In relation to review and sunsetting, the acting minister advised there is no sunsetting clause as it would not be appropriate to limit funding for financial assistance once a parliamentarian has met the eligibility criteria and other conditions within Part 5 of the NACC Regulations. The acting minister further advised that section 278 of the NACC Act sets out the requirement for a statutory review after five years of operation and this provides an opportunity for review of the overall operation of the NACC Act. Additionally, the NACC Regulations are subject to the usual sunsetting process.
2.215 Finally, the acting minister advised that there are established processes in section 25 of the NACC Regulations for reporting to the Parliament in respect of assistance provided under Part 5. This requires the Attorney-General to inform both Houses of Parliament of each decision to pay assistance under Part 5, including reasons for the decision and any limits on expenditure, as soon as possible. It also requires the Attorney-General to, within three months after the end of each financial year, table in each House a consolidated statement of expenditure under Part 5 for the year, specifying the expenditure for each matter.
2.216 The committee thanks the acting minister for this detailed response.
2.217 The committee notes the advice that legal financial assistance is provided as a statutory entitlement and that, as it is driven by demand, it is not possible to predict annual requirements or appropriate to limit funding available once an individual is eligible. Nevertheless, the committee considers that this should not necessarily preclude including an appropriation in an annual appropriation bill, as it should be possible for the Executive to request the Parliament to appropriate additional money where required.
2.218 The committee further notes the acting minister’s advice that the NACC Regulations prescribe the parameters within which financial assistance can be provided, including the ability to impose additional conditions by the approving official, and that these operate as safeguards in relation to expenditure. The committee further notes the advice that while there is no sunset clause tied to the standing appropriation, there are other mechanisms for review over the operation of the NACC Act as a whole and the NACC Regulations are subject to the usual sunsetting process. The committee also notes the advice provided as to reporting requirements. While the committee considers that there could be stronger constraints and oversight mechanisms in the bill to improve transparency and oversight over any financial assistance that may be appropriated, there committee nevertheless welcomes the additional information provided. The committee considers it would have been preferable had this key information been included in the explanatory memorandum to the bill.
In light of the fact that the bill has received the Royal Assent the
committee makes no further comment in relation to this matter.
[241] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Parliamentary Business Resources Legislation Amendment (Review Implementation and Other Measures) Bill 2024, Scrutiny Digest 7 of 2024; [2024] AUSStaCSBSD 127.
[242] Schedule 1, item 32, section 16. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iv) and (v).
[243] Subsection 16(2) provides that a determination made under subsection 16(1) may impose limits or other conditions including a requirement that the provision of resources be dependent on a decision of a specified person or relate to specified persons or classes of persons within the confines of the provision.
[244] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2024 (15 May 2024) pp. 45–47.
[245] The acting minister responded to the committee’s comments in a letter dated 6 June 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 7 of 2024).
[246] Schedule 3, item 1. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iv).
[247] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2024 (15 May 2024) pp. 48–50.
[248] The acting minister responded to the committee’s comments in a letter dated 6 June 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 7 of 2024).
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2024/127.html