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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 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;
• 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 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.