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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PARLIAMENTARY ENTITLEMENTS LEGISLATION AMENDMENT BILL
2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the Special Minister of State, Senator the Hon Scott Ryan)
Parliamentary Entitlements Legislation Amendment Bill 2017
GENERAL OUTLINE
The Parliamentary Entitlements Legislation Amendment Bill 2017 (the Bill) amends
the Parliamentary Entitlements Act 1990 to:
- require that if an adjustment to certain travel claims is made or required, a
loading of 25 per cent in addition to the full amount of the adjustment will
apply; and
- restrict the 'additional travel for children' entitlement for senior officers to
children under the age of 18 from where it currently stands at under the age
of 25.
The Bill also amends the Members of Parliament (Life Gold Pass) Act 2002 to rename
the Act the Parliamentary Retirement Travel Act 2002, and implement reforms to the
Life Gold Pass scheme, including those announced in the 2014-15 Budget (which are
to commence from 14 May 2014). These measures change the name of the entitlement
from the Life Gold Pass to the Parliamentary Retirement Travel Entitlement, and
reduce, remove, and reform benefits under the entitlement. Specifically, the Bill:
- imposes time limits, after which a person's ability to access travel under the
Parliamentary Retirement Travel Entitlement expires, including that the
entitlement of all persons (other than a former Prime Minister) expire at the
commencement of this Bill;
- imposes additional limits on access to the entitlement, closing it to people who
had not met the qualifying periods before 14 May 2014 and mandating that no
person who retires after the commencement of this Bill can access benefits
under the scheme, unless they are the Prime Minister or a former Prime
Minister when they retire;
- provides for future Prime Ministers who had not entered or re-entered the
Parliament before 6 March 2012 to become a holder of a Parliamentary
Retirement Travel Entitlement;
- reduces the number of trips available per financial year under the
Parliamentary Retirement Travel Entitlement;
- removes the ability of spouses or de facto partners, other than those of a
retired former Prime Minster, to access travel under the Parliamentary
Retirement Travel Entitlement; and
- requires that travel under the Parliamentary Retirement Travel Entitlement be
for a purpose that is for the public benefit and not for a commercial purpose or
a private purpose.
The Bill also implements a further reform to the Parliamentary Retirement Travel
Entitlement, from the day after Royal Assent, to remove the entitlement to travel by
the spouse or de facto partner of the Prime Minister or a sitting former Prime
Minister, who has satisfied the qualifying period for the issue of a Parliamentary
Retirement Travel Entitlement.
Additionally, the Bill amends the Parliamentary Entitlements Act 1990 and the
Members of Parliament (Life Gold Pass) Act 2002 to address the risk that payments
made in the course of administering these acts may constitute a breach of section 83
2
of the Constitution. These mechanisms will include a statutory basis for recovering
such payments made outside of entitlement. Mechanisms to address the risk of
breaches of section 83 of the Constitution have been included in many other acts,
including via the Financial Framework Legislation Amendment Act (No. 2) 2012.
A similar bill, the Parliamentary Entitlements Legislation Amendment Bill 2014
(2014 Bill), was previously passed by the House of Representatives on
28 October 2014. The 2014 Bill was introduced into the Senate on 29 October 2014.
The 2014 Bill was referred to the Senate Finance and Public Administration
Legislation Committee (the Committee). The Committee tabled its report on 24
November 2014. The Committee made several recommendations, the intent of which
were accepted by the Government. The Bill includes changes to the 2014 Bill to give
effect to the recommendations of the Committee.
Financial Impact Statement
As announced in the 2014-15 Budget, the Government will achieve savings of
$5.0 million over five years by reducing Life Gold Pass, severance and post-
retirement travel entitlements for parliamentarians and certain office holders when
they leave Parliament. Further savings are expected from the expiry of travel for
persons, other than retired former Prime Ministers and their spouse or de facto
partner, at the commencement of the Bill.
The financial impact of the amendments to the Parliamentary Entitlements Act 1990
is low.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights has been prepared 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.
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PARLIAMENTARY ENTITLEMENTS LEGISLATION AMENDMENT
BILL 2017
NOTES ON CLAUSES
Clause 1 Short title
1. Clause 1 provides for the short title of the Act to be the Parliamentary
Entitlements Legislation Amendment Act 2017.
Clause 2 Commencement
2. Clause 2 provides that :
a. sections 1 to 4 commences the day the Act receives the Royal Assent,
b. Schedule 1 of the Act is taken to have commenced on 14 May 2014,
and
c. Schedule 2 of the Act commences on the day after this Act receives the
Royal Assent.
Clause 3 Schedule(s)
3. Clause 3 provides that legislation that is specified in a Schedule to this Act is
amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to the Act has effect according
to its terms.
Clause 4 Compensation for acquisition of property
4. Clause 4 provides a constitutional safety net equivalent to section 32 of the
current Members of Parliament (Life Gold Pass) Act 2002, to provide a
reasonable amount of compensation in circumstances where any provisions
in the Bill are found to result in an acquisition of property otherwise on just
terms under section 51(xxxi) of the Constitution.
4
Schedule 1 - Amendments commencing on 14 May 2014
Part 1 - Main Amendments
Members of Parliament (Life Gold Pass) Act 2002
Items 1 and 2
5. These items amend the long title and short titles of the Members of
Parliament (Life Gold Pass) Act 2002 to remove the reference to Life Gold
Pass and substitute the new name for the scheme, the Parliamentary
Retirement Travel Entitlement. The new short title for the Act is the
Parliamentary Retirement Travel Act 2002 (PRT Act). References below are
to the new short title (the PRT Act), as effected by this item.
Item 3
6. This item repeals and replaces the simplified outline in section 3 of the
PRT Act to reflect the amendments in the Bill.
Item 4
7. This item inserts a new section 3A into the PRT Act, which gives effect to
the change of the name of the scheme, from the Life Gold Pass to the
Parliamentary Retirement Travel Entitlement (the new name).
8. New subsection 3A(2) provides that a reference in this Act to the new name
includes (if the reference relates to a time before the commencement of this
section) a reference to the old name. As an example of where this subsection
would apply, see references in new section 4C to the new name (see item 12,
below).
Item 5
9. This item amends the definition of domestic return trip in section 4. This
will have the effect that all travel under the Parliamentary Retirement Travel
Entitlement is subject to the purpose test specified in new section 4AA (see
item 9 below), in addition to the previous requirements that the travel be
wholly within Australia and on scheduled transport services.
Item 6
10. The item inserts a definition of end of a Parliament. New section 4C places
time limits on the Parliamentary Retirement Travel Entitlement for certain
persons (see item 12 below). Some Parliamentary Retirement Travel
Entitlements will expire at the end of a Parliament. This item makes it clear
that, for the purposes of the PRT Act, a Parliament ends when the House of
Representatives is dissolved or expires. This definition is relevant to the
Parliamentary Retirement Travel Entitlement of both former members of the
House of Representatives and former Senators.
Item 7
11. This item repeals the definition of holder of a Life Gold Pass in section 4 of
the PRT Act, which is consequential to the change of the name of the scheme
to the Parliamentary Retirement Travel Entitlement.
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Item 8
12. This item inserts a new definition of holder of a Parliamentary Retirement
Travel Entitlement into section 4 of the PRT Act, to reflect the change of the
name of the scheme, and also provide that it does not include a person who
cannot be, or has ceased to be, a holder of a Parliamentary Retirement Travel
Entitlement because of new sections 4B and 4C (in addition to the current
restrictions in section 4A, see item 12 below). These new sections apply to
all members except for former Prime Ministers (who were Prime Minister
before 14 May 2014):
a. new subsection 4B(1) prevents someone who did not satisfy the
relevant Parliamentary Retirement Travel Entitlement qualifying
period before 14 May 2014 from becoming a holder of a Parliamentary
Retirement Travel Entitlement; and
b. new subsection 4B(2) prevents someone who retires from the
Parliament on or after the commencement of this Bill from becoming a
holder of a Parliamentary Retirement Travel Entitlement.
13. This item also inserts a definition of nominal expiry time for a Parliamentary
Retirement Travel Entitlement, which is defined in new subsection 18(4) of
the PRT Act, and a definition of Parliamentary Retirement Travel
Entitlement, which is defined in new section 3A of the PRT Act.
14. This item also inserts a definition of senior office holder into section 4.
Under the current scheme, former senior office holders are treated identically
to former members who were not senior office holders. However, under
these reforms, different time limits and different benefits apply between
former members and former senior office holders.
15. A senior office holder is defined to mean Ministers, the President of the
Senate, the Speaker of the House of Representatives, and the Leader of the
Opposition in the House of Representatives. A senior office holder does not
include a Prime Minister: the entitlements of former Prime Ministers are
separately specified in the PRT Act. A senior office holder does not include a
Parliamentary Secretary, however, former Parliamentary Secretaries may be
able to receive entitlements in their capacity as former members.
Item 9
16. This item inserts new section 4AA, which makes travel under the
Parliamentary Retirement Travel Entitlement subject to a purpose test.
17. To satisfy the purpose test, a return trip must be for the public benefit, and
must not be undertaken for a commercial or private purpose. The result of
this is that the rationale for the trip must be directed to a purpose that is for
the public benefit, for the trip to be within entitlement. Commercial purpose
is defined in section 4 as 'a purpose relating to the derivation of financial
gain or reward, whether as a board member, an office-holder, an employee, a
self-employed person or otherwise'.
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Item 10
18. This item amends the heading of section 4A to clarify that this section relates
to the closing of the Parliamentary Retirement Travel Entitlement to new
members, other than to members who become Prime Minister.
Item 11
19. This item inserts new subsection 4A(1A), which states that nothing in
section 4A prevents a former member who has been the Prime Minister from
becoming a holder of a Parliamentary Retirement Travel Entitlement. This
item allows for any future Prime Minister to become a holder of a
Parliamentary Retirement Travel Entitlement, even where they have not
entered, or re-entered, the Parliament before 6 March 2012 (the Life Gold
Pass scheme was previously closed to such persons). This amendment is
included for compatibility with the other reforms in the Bill and for
consistency between the benefits available to people who have served as
Prime Minister.
Item 12
Section 4B
20. Under existing section 4A, in general terms, the Parliamentary Retirement
Travel Entitlement scheme is closed to people who were not a holder of a
Parliamentary Retirement Travel Entitlement and who had not entered, or re-
entered, the Parliament before 6 March 2012. This item inserts new
section 4B, which places two additional limitations on access to the
entitlement.
21. New subsection 4B(1) has the effect that a person must have satisfied the
Parliamentary Retirement Travel Entitlement qualifying period before
14 May 2014. If they failed to do this, they cannot become a holder of a
Parliamentary Retirement Travel Entitlement. This rule does not apply to a
person who is the Prime Minister, or a former Prime Minister, when they
retire. Under subsection 30(2) of the PRT Act, the qualification periods for a
Parliamentary Retirement Travel Entitlement are specified in a determination
of the Remuneration Tribunal (currently Part 8 of Remuneration Tribunal
Determination 2012/04 - Members of Parliament - Entitlements).
22. New subsection 4B(2) has the effect that a person cannot become a holder of
a Parliamentary Retirement Travel Benefit if they retire on or after the
commencement of the Bill (which is also the latest that a person's PRT
Entitlement will expire under these amendments, unless they are a former
Prime Minister. See new section 4C below). This rule does not apply to a
person who is the Prime Minister, or a former Prime Minster, when they
retire.
Section 4C
23. New section 4C imposes time limits, after which a person's Parliamentary
Retirement Travel Entitlement expires (other than for a former Prime
Minister that is the holder of a PRT entitlement). The effects of expiry are
that the person ceases to be able to access benefits under the PRT Act and
can never again become a holder of a Parliamentary Retirement Travel
Entitlement (new paragraph 4C(2)(b)).
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24. The time limits are as follows:
a. For a former senior office holder (other than a former Prime Minister),
who retired from the Parliament on or after 14 May 2008, the earliest
of:
i. the end of 72 months, starting on the date of their retirement;
ii. the next end of a Parliament to occur after:
the date of their retirement; or
the end of the current Parliament if the retirement
occurs during a Parliament; and
iii. the day that section 1 of this Bill commences (the day of
Royal Assent) (subsection 4C(6)).
b. For a former member (other than a former senior office holder or
Prime Minister), who retired on or after 14 May 2011, the earliest of:
i. the end of 36 months, starting on the date of their retirement;
ii. the next end of a Parliament to occur after:
the date of their retirement; or
the end of the current Parliament if the retirement
occurs during a Parliament; and
iii. the day that section 1 of this Bill commences (the day of
Royal Assent) (subsection 4C(7)).
25. The time limits provided in section 4C, as set out above, exclude, in the
event that it occurs, the parliament during which a person retires so that:
a. in the case of Senior Office Holders - these parliamentarians will have
an entitlement that ends after two full parliamentary terms, unless that
period would exceed 6 years or extend past the commencement of the
Bill; and
b. in the case of parliamentarians other than Senior Officer Holders or
former Prime Ministers - these parliamentarians will have an
entitlement that ends after one full parliamentary term, unless that
period would exceed 3 years or extend past the commencement of the
Bill.
26. If, by applying these rules (in subsections 4C(6) and 4C(7)) a person's
Parliamentary Retirement Travel Entitlement would have expired before the
end of 13 May 2014, their entitlement is instead taken to expire at the end of
13 May 2014 (subsection 4C(8)).
a. Example: A member, who had not served as a senior office holder or
the Prime Minister, retired during the course of the 43rd Parliament and
became a holder of a Life Gold Pass (as it was then known) on their
retirement. Applying the rule in subsection 4C(7), they would have
ceased to be entitled to a Parliamentary Retirement Travel Entitlement
on 5 August 2013, which was the date of the next end of a Parliament
after their retirement. The effect of subsection 4C(8) would be that
they remained entitled until the end of 13 May 2014.
27. New section 4C also makes provision to ensure that a former senior office
holder or former member who had, as at the end of 13 May 2014, already
8
enjoyed a Life Gold Pass (as it was then known) for at least 72 or 36 months,
respectively, will lose access to travel as of the end of 13 May 2014:
a. if a former senior office holder became a holder of a Life Gold Pass (as
it was then known) before 14 May 2008 (that is, at least 72 months
prior to the commencement of this section on 14 May 2014), their
entitlement is taken to expire at the end of 13 May 2014 (subsection
4C(4)); and
b. if a former member (other than a former senior office holder or
Prime Minister) became a holder of a Life Gold Pass (as it was then
known) before 14 May 2011 (that is, at least 36 months prior to the
commencement of this section on 14 May 2014), their entitlement is
taken to expire at the end of 13 May 2014 (subsection 4C(5)).
28. New section 4C does not apply to a former Prime Minister that is the holder
of a Parliamentary Retirement Travel Entitlement, so the existing
arrangements for such persons under the PRT Act continue, subject to other
relevant amendments in the Bill.
Item 13
29. This item amends subsections 9(2), (3) and (4) of the PRT Act to omit the
words 'former member' (wherever occurring), and substitutes the words
'former Prime Minister' for them. This is a consequential amendment to
reflect that, under the amendments in the Bill, the entitlements of a surviving
spouse or de facto partner of a holder of a Parliamentary Retirement Travel
Entitlement will cease, except in the case of a surviving spouse or de facto
partner of a holder of a Parliamentary Retirement Travel Entitlement who
served as Prime Minister.
Item 14
30. This item amends subsections 9A(1) and 9B(1) of the PRT Act to include a
note stating that 'spouse or de facto partner entitlements under this Act are
limited to a spouse or de facto partner of a retired former Prime Minister'.
31. Sections 9A and 9B of the PRT Act deal with the entitlement of spouses and
de facto partners, and the nomination of a spouse or de facto partner. The
note reflects the fact that, under the amendments in the Bill, these sections
will only have relevance to a spouse or de facto partner of a retired former
Prime Minister. Benefits will no longer be available under the PRT Act to the
spouse or de facto partner of other persons.
Item 15
32. This item amends the table in subsection 10(1). It reduces the amount of trips
that may be accessed by a former Prime Minister, who has retired from the
Parliament and is a holder of a Parliamentary Retirement Travel Entitlement.
It reduces the number of trips to a maximum of 30 domestic return trips per
year (from the previous maximum of 40 domestic return trips per year).
9
Item 16
33. This item amends the table in subsection 10(1) to reduce the amount of trips
that may be accessed by the spouse or de facto partner of a former Prime
Minister, where the former Prime Minister has retired from the Parliament
and is a holder of a Parliamentary Retirement Travel Entitlement. It reduces
the number of trips to a maximum of 20 domestic return trips per year (from
the current maximum of 40 domestic return trips per year). Of these 20 trips,
the spouse or de facto partner may access up to 10 trips as
non-accompanying/joining trips (that is, trips where the spouse or de facto
partner does not accompany or join the former Prime Minister).
Item 17
34. This item amends the definition of non-accompanying/joining trip in
subsection 10(3), to remove the reference to the travel being for the purpose
of accompanying or joining the former Prime Minister. This is a
consequential amendment to remove any doubt about the interaction of this
section with the purpose test in new section 4AA (see item 9), but does not
change the legal effect of this section. The new definition is that a trip is a
non-accompanying/joining trip where the spouse or de facto partner is not
accompanying or joining the former Prime Minister.
Item 18
35. This item repeals items 1 to 5 of the table in subsection 11(2) and inserts new
table items 1 and 2. This item will have the following effects on the number
of trips that will be available in each year to holders of a Parliamentary
Retirement Travel Entitlement:
a. for a person who has served as a senior office holder (but not as the
Prime Minister), the maximum number of domestic return trips per
year will remain at 10; and
b. for a former member, who has not served as a senior office holder or
the Prime Minister, the maximum number of domestic return trips per
year will be 5 (reduced from the previous maximum of 10 domestic
return trips per year).
36. This item also has the effect that the spouse or de facto partner (or surviving
spouse or de facto partner) of a holder of a Parliamentary Retirement Travel
Entitlement (who is not a former Prime Minister) will no longer be able to
access travel under the PRT Act.
Item 19
37. This item repeals Part 4 of the PRT Act, which provides for the entitlements
of spouses or de facto partners of sitting members. The effect of this is that
the spouse or de facto partner of a sitting member who has served the
qualifying period for the issue of a Parliamentary Retirement Travel
Entitlement (including the Prime Minister and a sitting former Prime
Minister), is no longer entitled to travel under the PRT Act.
10
Item 20
38. This item amends the simplified outline of Part 5 to repeal and replace
paragraphs (b) and (c), to reflect the amendments in the Bill relating to
spouse and de facto travel entitlements and the expiry of entitlements.
Item 21
39. This item inserts a heading to improve the readability of section 4.
Item 22
40. This item amends the table in subsection 14(1). This amendment is
consequential to the amendment in item 18. It ensures that benefits provided
by the amended item 2 of the table in Part 3 are captured by the pro-rating
mechanism in section 14. For former Prime Ministers, members and senior
office holders, when calculating the 'remaining period' for the pro-rating
mechanism in subsection 14(2), that period begins on 'the day after the day
on which the former member retires from the Parliament'.
Item 23
41. This item amends the table in subsection 14(1). This amendment is
consequential to the amendment in item 18. The relevant cell addresses the
start date for calculating the 'remaining period' for the pro-rating mechanism
in subsection 14(2) in relation to the entitlements of spouses and de facto
partners of former members. This item amends the cell to reflect that, under
these amendments, spouses or de facto partners of former members (other
than of retired former Prime Ministers) have no entitlement to travel under
the PRT Act.
Item 24
42. This item amends table item 2 of the table in subsection 14(1) to reflect that,
under the amendments in the Bill, access to travel under the PRT Act by the
spouse or de facto partner of a former member (other than that of a retired
former Prime Minister) is removed.
Item 25
43. This item repeals table item 3 of the table in subsection 14(1), which is made
redundant by the amendments in the Bill, as access to travel under the PRT
Act for the spouse or de facto partner of a sitting member (including the
Prime Minister and a sitting former Prime Minister) is removed.
Item 26
44. This item amends subsection 14(2) to clarify that, for the purpose of item 1
of the table in subsection 14(1), the number of trips to which the former
member is entitled during the year in which they retire is simply the number
worked out using the formula in subsection 14(2A).
45. This item also amends subsection 14(2) to reflect the fact that, under the
amendments in the Bill, the access to travel under the PRT Act by spouses or
de facto partners of sitting and former members (other than of retired former
Prime Ministers) is removed. The item therefore removes references to Part
3, under which entitlements of spouses or de facto partners of former
11
members who have not served as Prime Minister were previously provided.
It also replaces references to a spouse or de facto partner of members or
former members with references to the spouse or de facto partner of a retired
former Prime Minister.
Item 27
46. This item inserts a new pro-rating mechanism to address instances where a
Parliamentary Retirement Travel Entitlement expires during a year under
these amendments (see new subsections 4C(6) and (7)). This mechanism
makes appropriate reductions to the number of domestic return trips available
to a holder of a Parliamentary Retirement Travel Entitlement in the financial
year in which their entitlement would reach its maximum term (the
maximum term is 72 months from retirement, in the case of former senior
office holders, and 36 months from retirement, in the case of members).
47. The Parliamentary Retirement Travel Entitlement of a former senior office
holder or former member may, under new section 4C, expire prior to the
maximum term:
a. for a former senior office holder, this will be where the second end of a
full Parliament to occur after the date of retirement, or the
commencement of this Bill (subsection 4C(6)), occurs prior to 72
months from their retirement; and
b. for a former member, this will be where the next end of a full
Parliament to occur after the date of retirement, or the commencement
of this Bill (subsection 4C(7)), occurs prior to 36 months from their
retirement.
48. Because the date of the end of a Parliament is often uncertain, the pro-rating
formula is based on the 72 month or 36 month 'maximum term' and does not
take into account the date of the relevant end of a Parliament. However, this
does not operate to enable a person to access travel under the Parliamentary
Retirement Travel Entitlement between the relevant end of a Parliament and
the end of their maximum term. Any travel must be undertaken or
commenced before the expiry of a person's Parliamentary Retirement Travel
Entitlement under new section 4C.
Item 28
49. This item inserts new subsections 18(3) and (4) into section 18 of the PRT
Act, which deals with the effect on a person's Parliamentary Retirement
Travel Entitlement where a superannuation order has been made under the
Crimes (Superannuation Benefits) Act 1989 (Crimes Super Act) and is later
revoked. In these circumstances a person's entitlement to travel under the
PRT Act are suspended until the order is revoked.
50. The addition of new subsections 18(3) and (4) are consequential to the
reforms relating to the addition of new sections 4B and 4C
(see item 12, above), which provide for limitations on becoming a holder of a
Parliamentary Retirement Travel Entitlement, and for the expiry of
entitlements, respectively, for persons other than a former Prime Minister.
12
51. New subsection (3) makes it clear that nothing in section 18 is to be taken to
result in a person (who is not a former Prime Minister) resuming being the
holder of a Parliamentary Retirement Travel Entitlement, or requiring the
entitlement to be restored to them. This is consistent with the other reforms
in the Bill, which result in the Parliamentary Retirement Travel scheme
ending on the commencement of the Bill, other than for former
Prime Ministers.
52. For former Prime Ministers, the existing rules in the table in subsection 18(2)
of the PRT Act will continue to apply on their terms, resulting in them again
being able to access the Parliamentary Retirement Travel Entitlement, at the
time that the superannuation order is revoked.
Item 29
53. This item makes a consequential amendment to paragraph 21(a) to reflect
that, under the amendments in the Bill, travel under the Parliamentary
Retirement Travel Entitlement by the spouse or de facto partner of a former
member (other than a former Prime Minister) is removed.
Item 30
54. For the sake of clarity, this item amends the heading of section 22 to reflect
the fact that section 22 is only relevant to stop-overs by the spouse or de
facto partner of a former Prime Minister who has retired from the Parliament.
Item 31
55. This item amends paragraphs 22(f) and (g) of the PRT Act to remove
references to travel being for the purpose of accompanying or joining the
former Prime Minister. This is a consequential amendment to remove any
doubt about the interaction of these paragraphs with the purpose test in new
section 4AA (see item 9), but does not change the legal effect of these
paragraphs. See also item 17 above.
Item 32
56. This item repeals sections 23 and 24 of the PRT Act, which address
stop-overs of spouses or de facto partners of former members (other than
former Prime Ministers), and of sitting members, respectively. As the
amendments in this Bill remove access to travel under the Parliamentary
Retirement Travel Entitlement for spouses or de facto partners of former
members (other than former Prime Ministers) and of sitting members,
sections 23 and 24 are redundant.
Item 33
57. This item amends the reference to a 'surviving spouse or de facto partner of a
former member' in subsection 28(2) to be a reference to a 'surviving spouse
or de facto partner of a retired former Prime Minister'. This is consequential
to the fact that the amendments in the Bill remove access to travel under the
Parliamentary Retirement Travel Entitlement by the surviving spouse or de
facto partner of the holder of a Parliamentary Retirement Travel Entitlement,
other than those of a retired former Prime Minister.
13
Item 34
58. This item adds a note to subsection 29(1), stating that spouse or de facto
partner entitlements under the PRT Act are limited to a spouse or de facto
partner of a retired former Prime Minister. This is consequential to the
removal of spouse or de facto partner travel under the PRT Act, other than
for those of retired former Prime Ministers, by the amendments in the Bill.
Items 35 and 36
59. These items repeal Schedule 1 to the PRT Act, and the section of the PRT
Act that gives effect to that Schedule (section 34). Schedule 1 relates to a
transitional period that began on 30 December 2002 and ended on
30 June 2003. It is now spent, and so, in the interests of clarity, these items
remove it. However, to avoid doubt, item 40 of the Bill retains the rule in
item 9 of Schedule 1 to the PRT Act that prevents a person from carrying
forward entitlements that they had in relation to the transitional period.
Part 2 - Other amendments
Members of Parliament (Life Gold Pass) Act 2002
Item 37
60. This item amends the whole of the PRT Act (other than section 3A) to omit
each reference to Life Gold Pass and substitute the reference to
Parliamentary Retirement Travel Entitlement, the new name of the
entitlement under the PRT Act.
Part 3 - Other provisions relating to the amendments
Item 38
61. This item contains a number of definitions for the purposes of the application
provisions in Part 3 of the Bill (see items 39 to 41 below).
Item 39
62. This item contains provisions relating to the application of the amendments
in Schedule 1 to the Bill.
63. Subitem 39(1) provides that the amendments in Schedule 1 apply in relation
to domestic return trips undertaken after the commencement time (defined in
item 38 as the start of 14 May 2014). The amendments commence from this
date because they were announced by the Government in the 2014-15 Budget
on 13 May 2014. Persons whose benefits were affected by these amendments
were informed of the Government's announcement and the effect it would
have on their eligibility to access Life Gold Pass (as it was then known)
benefits from 13 May 2014.
64. Subitem 39(2) provides an exception to the commencement of Schedule 1
amendments from 14 May 2014 for return trips that a person had started to
take before 14 May 2014. The effect of this is that where, prior to
14 May 2014, a person had taken or started to take a return trip that was
within their pre-14 May 2014 entitlements, their entitlement to that trip is not
affected by the amendments in the Bill. However, such trips are counted
toward the number of trips that the person could access during the remainder
of the 2013-14 financial year, under these reforms.
14
65. Subitem 39(3) provides that travel a person took, or started to take, under
table item 1 or 2 in the table in subsection 12(2) of the PRT Act, between
14 May 2014 and the day after the Bill receives the Royal Assent, is taken to
have been in accordance with the PRT Act as amended by this schedule. The
effect of this subitem is that any travel by the spouse or de facto partner of
the Prime Minister or a sitting former Prime Minister before the Bill receives
the Royal Assent is not outside of entitlement due to the repeal of Part 4 of
the PRT Act by this Schedule.
66. Subitem 39(4) specifies, to avoid doubt, that the amendments in Schedule 1
apply to all persons who, before 14 May 2014: were a holder of a travel
entitlement (defined in item 38 as a Life Gold Pass, or, from the
commencement of the Bill, a Parliamentary Retirement Travel Entitlement);
had satisfied the relevant qualifying period for the issue of a travel
entitlement; or, were such a person's spouse or de facto partner. It also
clarifies that the amendments apply to persons (and where relevant, their
spouse) who would have been a holder of, or satisfied the qualifying period
for a travel entitlement, but for section 17 of the PRT Act. Section 17 of the
PRT Act deals with the suspension of a travel entitlement, or suspension of
the ability to serve the qualifying period for the issue of a travel entitlement,
where a person is subject to a superannuation order, under the Crimes
(Superannuation Benefits) Act 1989.
Item 40
67. Schedule 1 to the PRT Act, which is now redundant, is repealed by items 35
and 36 of the Bill. However, to avoid doubt, this item retains the rule in
item 9 of Schedule 1 to the PRT Act that prevents a person from carrying
forward entitlements that they had in relation to the transitional period.
Item 41
68. This item provides that from 14 May 2014 (the commencement time), a
reference in an instrument to the old travel entitlement name (Life Gold Pass)
is taken to be a reference to the new entitlement name (Parliamentary
Retirement Travel Entitlement).
15
Schedule 2 - Amendments commencing on the day after Royal Assent
Parliamentary Entitlements Act 1990
Item 1
69. This item inserts a definition of claim into section 3 of the Parliamentary
Entitlements Act 1990 (PE Act). It provides that claim means a claim or
request for a benefit that is made to the Commonwealth.
Item 2
70. This items amends subparagraph (b)(i) in the definition of dependent child
in section 3 of the PE Act, which is defined in relation to a Senior Officer.
Currently, a person who is receiving full-time education at a school, college
or university, and is wholly or substantially dependent upon the Officer is
considered a dependent child if they are at least 16 but under 25. Item 2
changes this to such persons who are at least 16 but under 18.
71. This will have an effect on the entitlement of a Senior Officer (other than a
Parliamentary Secretary) to certain travel for their dependent children. This
entitlement is currently found in item 4 of Part 2 of Schedule 1 to the PE Act.
For the purposes of this entitlement, a Senior Officer includes a Minister (but
not a Parliamentary Secretary), the Leader or Deputy Leader of the
Opposition in the House of Representatives or the Senate, the President of
the Senate or the Speaker of the House of Representatives (see definitions of
Senior Officer and Opposition Office Holder in section 3 of the PE Act).
72. This amendment does not affect the family reunion travel entitlement,
available to parliamentarians, currently under Remuneration Tribunal
Determination 2012/04: Members of Parliament - Entitlements.
Item 3
73. This item provides that the amendment made by item 2 applies to travel
undertaken after the commencement of that item. This means that, under the
travel entitlement of Senior Officers, no travel may be undertaken by a
dependent child who is aged 18 and over, but under 25, from the day after
the Bill receives the Royal Assent. Where travel is commenced but not
completed by such a dependent child prior to the day after the Bill receives
the Royal Assent, the travel may be completed under the entitlement.
16
Item 4
74. This item inserts the following new definitions into section 3 of the PE Act,
which are relevant to other amendments made by the Bill.
Definition of prescribed travel benefit. Prescribed travel benefit is
defined to mean a benefit covered by a determination under section
10B, which is a new section inserted by this Bill (see item 7 below).
Definition of provides goods, services or facilities. This definition
ensures that a reference to the Commonwealth providing goods,
services or facilities in the PE Act extends to situations where the
Commonwealth pays for the provision of the goods, services or
facilities by another person (whether or not pursuant to an arrangement
between the other person and the Commonwealth).
Definition of Secretary. Secretary is defined to mean the Secretary of
the Department. It is intended that, by operation of subsection 19A(3)
of the Acts Interpretation Act 1901, the Department referred to is, at
the commencement of the Bill, the Department of Finance.
Item 5
75. This item inserts a new Part and Division heading, to assist with the
readability of the PE Act.
Item 6
76. This item inserts a new section 7A into the PE Act. Subsection 7A(1) creates
a statutory obligation in relation to the making of claims for benefits under
the PE Act (see definition of benefit in section 3 of the PE Act). The
obligation is to not make a claim for a benefit in excess of entitlement (either
wholly or partly).
77. Subsection 7A(2) states that, in determining whether a claim is made in
contravention of subsection (1), section 10A is to be disregarded.
Section 10A, which is a new section inserted by this Bill (see item 7 below),
contains a mechanism designed to address the risk of breaches of section 83
of the Constitution, but does not extend the boundaries of the benefits which
may be provided to a parliamentarian under the PE Act. Therefore, in
determining whether the obligation in subsection 7A(1) has been
contravened, section 10A should not be taken into account. Subsection 7A(2)
puts this beyond doubt.
78. Subsection 7A(3) provides that a contravention of the obligation in
subsection 7A(1) does not of itself prevent the provision of a benefit pursuant
to the claim. This subsection is a technical provision that is intended to
address any suggestion that a claim in contravention of section 7A is void for
the purposes of, for example, clause 3.1 of Remuneration Tribunal
Determination 2016/08: Members of Parliament - Travelling Allowance,
which requires a claim to be made for travelling allowance to be paid. If the
Department were to pay an amount to which a person was entitled, despite
errors in the claim form, then, without subsection 7A(3), the result could be
that even the amount to which a person was legitimately entitled would be
recoverable under proposed paragraph 10A(1)(c). Subsection 7A(3) will
ensure that this unintended result is avoided.
17
Item 7
79. The item inserts new sections 10A, 10B, 10C and 10D into the PE Act.
Section 10A
80. New section 10A introduces a mechanism to address the risk that payments
made in the course of administering the PE Act may constitute a breach of
section 83 of the Constitution. This mechanism reflects those introduced into
other acts, including via the Financial Framework Legislation Amendment
Act (No. 2) 2012, to address this risk. It also includes a statutory mechanism
for recovering payments made, and the cost of benefits provided, outside of
entitlement.
81. Section 10A authorises the Commonwealth to pay an amount to a recipient,
purportedly as a benefit, entitlement, or amount where the Commonwealth
does not otherwise have power under the PE Act to make a payment, and
provides that such an amount is recoverable from the person receiving the
benefit. This provision would have the effect that payments made,
purportedly as or for benefits, but outside the boundaries of an entitlement,
would attract the coverage of the standing appropriation in section 11 of the
PE Act, thereby mitigating the risk of breaches of section 83 of the
Constitution.
82. However, Section 10A does not extend the boundaries of any benefits that a
person is entitled to under the PE Act. Paragraphs 10A(1)(c) and 10A(2)(c)
ensure that the cost of a benefit provided outside the boundaries of an
entitlement under the PE Act will be recoverable from the person receiving
the benefit. Under these paragraphs, the amount of the payment made to the
person, or the amount of the payment of the costs of providing goods,
services or facilities to the person, is a debt due to the Commonwealth. This
amount is recoverable in a court of competent jurisdiction.
83. Subsection 10A(1) addresses payments made directly to the recipient. This
will cover benefits under the PE Act that are provided in the form of cash
payments to the recipient, such as travelling allowance.
84. Subsection 10A(2) addresses entitlements under the PE Act that are provided
in the form of goods, services or facilities to the recipient, such as flights and
office requisites and stationery. The definition of provides goods, services or
facilities, inserted by item 4 (see above), clarifies that this includes situations
where the Commonwealth pays for the provision of the goods, services or
facilities by another person (whether or not pursuant to an arrangement
between the other person and the Commonwealth).
18
85. Subsection 10A(3) provides that the reference in subsection 10A(2) to the
Commonwealth not having the power to provide goods, services or facilities
purportedly by way of benefit includes a reference to the Commonwealth
only having power to provide lower-cost goods, services or facilities. This
will ensure that the mechanism in subsection 10A(2) will apply where a
person is provided with a benefit in the form of a good, service or facility
that is at a cost which is greater than the cost of that to which they were
entitled under the PE Act. This will ensure that, in these circumstances, the
risk of a breach of section 83 is addressed, and the difference in cost between
what was provided and what the person was entitled to is recoverable from
the person.
86. Subsection 10A(4) provides an alternative means of recovery of a debt under
paragraph 10A(1)(c) or 10A(2)(c). It gives the Secretary of the
Department of Finance the discretion to direct that a debt may be recovered
from an amount that is payable to the recipient by way of benefit. However,
before making such a direction, the Secretary is required to consult with the
recipient (10A(5)).
87. Subsection 10A(4) specifically only applies to amounts payable to the
recipient as a benefit (subsection 10A(4)(b)). Benefit is defined in section 3
of the PE Act to mean a benefit provided by or under the PE Act, which
includes a benefit:
a. provided under the Parliamentary Entitlements Regulations 1997;
b. determined by the Remuneration Tribunal under section 7 of the
Remuneration Tribunal Act 1973; or
c. in Schedule 1 to the PE Act.
This allows deductions to be made from payments of benefits that are to be
made directly to the person, which currently includes travelling allowance
(under Remuneration Tribunal Determination 2016/08: Members of
Parliament - Travelling Allowance) and private vehicle allowance (under
Remuneration Tribunal Determination 2012/04: Members of Parliament -
Entitlements).
88. Subsection 10A(4) does not allow a deduction from benefits that are not
provided by or under the PE Act. In particular, it does not enable deductions
to be made from a parliamentarian's salary, which does not fall within the
definition of a benefit, and is not provided under the PE Act.
89. Subsection 10A(6) is included to address situations in which a benefit is
provided to a parliamentarian under the PE Act that relates to the activities of
another person under the PE Act. This is to avoid doubt on the application of
section 10A to, for example, family travel benefits that are provided under
the PE Act to parliamentarians. Benefits provided under the PE Act include
those provided under the Parliamentary Entitlements Regulations 1997,
determined by the Remuneration Tribunal under section 7 of the
Remuneration Tribunal Act 1973, or in Schedule 1 to the PE Act. Subsection
10A(5) provides that, to avoid doubt, any benefits for a parliamentarian that
are accessed by another person (other than a staff member), are benefits of
the parliamentarian. Therefore, for the purposes of section 10A, any
overpayment of such a benefit is recoverable from the parliamentarian.
19
90. Although paragraph 10A(6)(b) provides an exception in respect of purported
benefits that relate to the activities of a staff member, such debts will be
recovered from staff members, in accordance with existing practice, through
debt recovery arrangements under the Commonwealth Members of
Parliament Staff Enterprise Agreement 2012 - 2015.
Sections 10B, 10C and 10D - 25% Loading in Relation to Adjustments
91. New sections 10B, 10C and 10D establish a 25% loading in relation to
adjustments to prescribed travel benefits.
Section 10B
92. A new division heading is inserted before section 10B.
93. New section 10B provides for the Minister, by legislative instrument, to
determine that a specified benefit in respect of travel is a prescribed travel
benefit (subsection 10B(1)). The loading established by new sections 10C
and 10D only applies in relation to prescribed travel benefits.
94. In an instrument under this section, a benefit may be specified by reference
to the specific provision or provisions under which it is provided.
Alternatively, a benefit may be specified through a description of its
characteristics.
95. Subsection 10B(2) provides that a benefit may be specified by reference to a
determination of the Remuneration Tribunal as in force at a particular time or
as in force from time to time. This establishes a contrary intention for the
purposes of subsection 14(2) of the Legislation Act 2003 which, in effect,
provides that legislative instruments may only incorporate by reference non-
disallowable legislative instruments (which include determinations of the
Remuneration Tribunal) as in force or existing at the time when the
legislative instrument takes effect.
96. Subsection 10B(2) will ensure that a legislative instrument, made under
section 10B will continue to be effective, despite amendments or changes to
a Remuneration Tribunal determination to which it refers, to specify a
prescribed travel benefit.
97. Subsection 10B(2) is not intended to be an exhaustive statement of the ways
in which a benefit could be specified.
Section 10C
98. New section 10C applies a penalty of a 25% loading for contraventions of
the obligation in new section 7A in respect of travel benefits prescribed in an
instrument made under section 10B. The loading applies where a person
makes a claim for a prescribed travel benefit and a payment is made by the
Commonwealth which exceeds their entitlement This section does not apply
if the overpayment is attributable, to any extent, to an administrative error
within the Department of Finance (new subsection 10C(1)).
99. The 25% loading applies to the amount that is paid outside of entitlement to a
person (the excess), less any repayment made within 28 days of the claim
(subsection 10C(3)). Where only part of the amount paid outside of
entitlement is repaid within the 28 day period, the loading applies to the
amount outstanding at the end of the 28 day period.
20
100. The following examples illustrate the scope of the loading provisions:
Example 1: A parliamentarian is entitled to a prescribed travel benefit
relating to 2 overnight stays away from their home base, but submits a
claim for 3 overnight stays. A prescribed travel benefit in relation to 3
overnight stays is paid by the Department of Finance. No repayment is
made within 28 days of the claim. The loading would apply in this
situation, as the payment was made in accordance with the claim and
the excess payment is not attributable, to any extent, to administrative
error within the Department. The value of the loading will be 25% of
the payment for 1 night of the prescribed travel benefit (the amount
paid outside of entitlement).
Example 2: A parliamentarian is entitled to a prescribed travel benefit
relating to 2 overnight stays away from their home base, but submits a
claim for 3 overnight stays. A prescribed travel benefit in relation to 3
overnight stays is paid by the Department of Finance. The
Parliamentarian makes a repayment within 28 days of the claim. The
loading may apply in this situation, as the payment was made in
accordance with the claim and the excess payment is not attributable,
to any extent, to administrative error within the Department. The value
of the loading will be determined by how much of the overpayment
was repaid by the parliamentarian within 28 days - if the full amount
of the overpayment was repaid, no loading applies. However, if the
parliamentarian made a partial repayment within 28 days, the loading
will apply to the outstanding balance of the overpayment.
Example 3: A parliamentarian submits a claim for a prescribed travel
benefit as a non-Minister. The prescribed travel benefit is paid by the
Department of Finance to the parliamentarian at the higher rate which
applies to Ministers. The loading would not apply in this situation, as
the excess payment is attributable to administrative error within the
Department.
Example 4: A parliamentarian is entitled to a prescribed travel benefit
relating to 2 overnight stays away from their home base. The
parliamentarian submits a claim for a prescribed travel benefit for 3
overnight stays. However, the Department of Finance pays the
prescribed travel benefits for 4 overnight stays. The loading would not
apply in this situation as the excess payment is attributable, to some
extent, to administrative error within the Department.
101. Subsection 10C(5) provides that the amount of the penalty is a debt due to
the Commonwealth by the recipient and may be recovered by action in a
court of competent jurisdiction.
102. Subsection 10C(6) provides an alternative method of recovery of the loading
via a reduction in amounts payable by way of benefit to the recipient. This
subsection is equivalent to new subsection 10A(4), including that the
Secretary is required to consult with the recipient before directing that a debt
may be recovered from an amount that is payable to the recipient by way of
benefit.
21
Section 10D
103. New section 10D applies where a voluntary repayment is made relating to a
claim for a prescribed travel benefit (as determined by the Minister under
new section 10B), in circumstances where there is no finding that benefits in
excess of entitlement have been provided. In such cases, new section 10C
does not apply (paragraph 10D(1)(e)). In these circumstances new section
10D provides that, where a parliamentarian makes a voluntary repayment, a
loading of 25% of the repayment amount will apply, provided the repayment
is not made within 28 days of the claim (paragraph 10D(1)(c)) and is not
attributable, to any extent, to an administrative error within the Department
(paragraph 10D(1)(d)). The loading amount is recoverable by a reduction in
future amounts payable by way of benefit, which operates in the same way as
for new section 10A (see above).
104. New subsection 10D(4) provides that the amount recoverable by reduction of
future benefit under subsection 10D(2) is reduced by any amount of payment
in respect of the loading amount, which is made directly to the
Commonwealth.
Item 8
105. This item inserts a new Part heading, repeals and replaces section 11, and
inserts new section 11A into the PE Act.
Section 11
106. New section 11 replaces the appropriation of the Consolidated Revenue
Fund for the payment of benefits under the PE Act. The new section expands
the appropriation in the previous section 11 (which also dealt with the
appropriation of the Consolidated Revenue Fund) to also include the making
of payments in the course of the administration of the PE Act (new paragraph
11(b)). This paragraph addresses the risk of section 83 breaches in
circumstances where there is an inadvertent or mistaken payment of an
amount that does not result in a parliamentarian receiving a benefit to which
he or she is not entitled under the PE Act. Examples of such situations would
be an inadvertent or incorrect payment to a service provider.
107. Although new paragraph 11(b) does not refer to recovery of amounts, any
amounts paid under this paragraph would be recovered from, for example,
the service provider using the Commonwealth's legal rights under contract or
common law.
Section 11A
108. New section 11A provides the Secretary of the Department of Finance with
the power to delegate all or any of the Secretary's powers under the PE Act
to an SES employee, or an acting SES employee in the Department of
Finance (subsection 11A(1)).
109. This will apply to the Secretary's powers to deduct a debt or a 25% loading
from future benefits under new subsections 10A(4), 10C(6), and 10D(2) of
the PE Act.
22
110. Subsection 11A(2) provides that, in exercising powers under a delegation,
the delegate must comply with any directions of the Secretary. However, it
does not require the Secretary to provide such directions.
Parliamentary Retirement Travel Act 2002
Item 9
111. This item repeals the existing section 31 (Appropriation) in the PRT Act, and
inserts new sections 30A and 31.
Section 30A
112. New section 30A introduces a mechanism to address the risk that payments
made in the course of administering the PRT Act may constitute a breach of
section 83 of the Constitution. This mechanism reflects those introduced into
other acts, including via the Financial Framework Legislation Amendment
Act (No. 2) 2012, to address this risk. It also includes a statutory mechanism
for recovering such payments made for travel outside of entitlement.
113. Section 30A authorises the Commonwealth to pay an amount to a recipient,
purportedly by way of an entitlement of a person to travel at Commonwealth
expense where the Commonwealth does not otherwise have power under the
PRT Act to make a payment, and provides that such an amount is
recoverable from the person receiving the entitlement. This provision would
have the effect that payments made, purportedly by way of such travel
entitlements, but outside the boundaries of an entitlement, would attract the
coverage of the standing appropriation in section 31 of the PRT Act, thereby
mitigating the risk of breaches of section 83 of the Constitution.
114. However, Section 30A does not extend the boundaries of any entitlements
that a person is entitled to under the PRT Act. Paragraph 30A(1)(c) ensures
that the payment will be recoverable from the recipient of the travel. Under
this paragraph, the amount of the payment is a debt due to the
Commonwealth by the recipient of the travel. This amount is recoverable in a
court of competent jurisdiction.
115. Subsection 30A(2) provides that the reference in subsection 30A(1) to the
Commonwealth not having the power to make a payment of an amount
purportedly by way of an entitlement of a person to travel at Commonwealth
expense includes a reference to the Commonwealth only having power to
make a payment for lower cost travel.
116. Subsections 30A(3) and (4) address the interaction between the debt
provision in new paragraph 30A(1)(c) and the existing debt recovery regime
in section 33 of the PRT Act. This subsection will ensure that an amount
cannot be recovered twice. If an amount is recovered under subsection 33(2),
the amount cannot be recovered under paragraph 30A(1)(c) (subsection
30A(3)). If an amount is recovered under paragraph 30A(1)(c), it cannot be
recovered under subsection 33(2) (subsection 30A(4)).
23
Section 31
117. New section 31 deals with the appropriation of the Consolidated Revenue
Fund for the payment of the costs of travel under the PRT Act, and expands
the appropriation in the previous section 31 (which also dealt with the
appropriation of the Consolidated Revenue Fund) to also include the making
of payments in the course of the administration of the PRT Act (new
paragraph 31(b)). This paragraph addresses the risk of section 83 breaches in
circumstances where there is an inadvertent or mistaken payment of an
amount that does not result in an entitled person receiving travel to which he
or she is not entitled. Examples of such situations would be an inadvertent or
incorrect payment to a service provider.
118. Although new paragraph 31(b) does not refer to recovery of amounts, any
amounts paid under this paragraph would be recovered, for example, from
the service provider using the Commonwealth's legal rights under contract or
common law.
24
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Parliamentary Entitlements Legislation Amendment 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 Bill amends the Parliamentary Entitlements Act 1990 (PE Act) to implement the
reforms to parliamentary entitlements announced by the Government on
9 November 2013 by:
imposing a 25 per cent loading on travel claims submitted that require
subsequent adjustment; and
limiting the travel entitlement provided to the dependent children of Senior
Officers to those who are less than 18 years of age.
The Bill also amends the Members of Parliament (Life Gold Pass) Act 2002
(LGP Act) to implement reforms to the Life Gold Pass scheme, including those
announced in the 2014-15 Budget. These measures change the name of the
entitlement to the Parliamentary Retirement Travel Entitlement, and reduce, remove,
and reform the entitlements under the scheme.
The Bill will also amend both the PE Act and the LGP Act to address the risk that
certain payments may constitute a breach of section 83 of the Constitution (including
establishing a statutory basis for recovering such overpayments).
25% loading on certain adjustments to travel claims
The Bill amends the PE Act to require that if an adjustment to certain travel claims is
made or required, a loading of 25 per cent in addition to the full amount of the
adjustment will apply.
Loading where there is a breach of a statutory obligation
The Bill includes a new obligation that a person must not make a claim for a benefit
that is in excess of entitlement (whether wholly or partly). This obligation only relates
to benefits provided under the PE Act.
This loading may apply where a person breaches the obligation, in respect of a
prescribed travel entitlement, and a subsequent adjustment is required. Where this
obligation is contravened in respect of a prescribed travel entitlement, and an amount
25
Attachment A
is paid in excess of entitlement, pursuant to the claim, a loading of 25% will apply to
that amount. If the loading is not repaid, the loading may be recovered as a debt due
to the Commonwealth in a court of competent jurisdiction. The loading may also be
recovered by a deduction from a future benefit that is payable. This ability to deduct
only extends to benefits that are provided under the PE Act. Deduction from a
parliamentarian's salary will not be enabled by this provision.
The loading does not apply if the amount is repaid within a 28 day grace period. It
also does not apply if the payment in excess of entitlement is attributable, to any
extent, to administrative error within the Department of Finance.
Loading in other circumstances where a subsequent adjustment is made
The loading also applies in circumstances where a person voluntarily makes a
subsequent adjustment to a payment of a prescribed travel benefit, where there is no
finding of a breach of the statutory obligation.
However this loading is only recoverable by a deduction from a future benefit that is
payable. This ability to deduct only extends to benefits that are provided under the
PE Act. Deduction from a parliamentarian's salary will not be enabled by this
provision.
The loading does not apply if the amount is repaid within a 28 day grace period. It
also does not apply if the repayment is of an amount that is attributable, to any extent,
to administrative error within the Department of Finance.
Additional travel for children entitlement
The Bill restricts the 'additional travel for children' entitlement for Senior Officers to
children under the age of 18. In specified circumstances, the entitlement currently
extends to children under 25 years of age.
For the purposes of this entitlement, a Senior Officer includes a Minister (but not a
Parliamentary Secretary), the Leader or Deputy Leader of the Opposition in the House
of Representatives or the Senate, the President of the Senate or the Speaker of the
House of Representatives (see definitions of Senior Officer and Opposition Office
Holder in section 3 of the PE Act).
Amendments to the Life Gold Pass scheme
The Bill will also amend the Members of Parliament (Life Gold Pass) Act 2002 to
implement reforms to the Life Gold Pass scheme, including those announced in the
2014-15 Budget. These measures rename the entitlement to the Parliamentary
Retirement Travel Entitlement, and reduce, remove, and reform benefits under the
scheme.
The measures that were announced as part of the 2014-15 Budget apply
retrospectively from the end of 13 May 2014 (the day of the Budget announcement).
The other reforms in the Bill commence, or have effect, the day after Royal Assent.
26
Attachment A
At the time of the announcement, affected people were advised of the impact the
proposed reforms would have on their eligibility to access travel from 13 May 2014.
The measures do not affect the validity of return trips commenced up to the end of 13
May 2014.
Time limits on the Parliamentary Retirement Travel Entitlement
The Bill imposes time limits, after which a person's ability to access the
Parliamentary Retirement Travel Entitlement expires. For a former member, this time
limit is the earliest of:
36 months from the date of their retirement;
the next expiry of a Parliament to occur after:
o the date of their retirement; or
o where their retirement occurs during a Parliament - the end of the
current Parliament; and
the commencement of section 1 of the Bill (the day of Royal Assent).
For a former senior office holder, this time limit is the earliest of:
72 months from the date of their retirement;
the second expiry of a Parliament to occur after
o the date of their retirement; or
o if the retirement occurs during a Parliament - the end of the current
Parliament; and
the commencement of section 1 of the Bill (the day of Royal Assent).
The time limits do not apply to a person who has served as Prime Minister.
Consistent with these new time limits, a person who retired 36 or more months prior
to 13 May 2014 (or 72 or more months prior if they are a former senior office holder)
is no longer able to access travel benefits from the end of 13 May 2014.
A senior office holder is defined as a Minister (other than the Prime Minister or a
Parliamentary Secretary), the President of the Senate or the Speaker of the House of
Representatives, or the Leader of the Opposition in the House of Representatives.
Further limits on access to the Parliamentary Retirement Travel Entitlement
Under existing section 4A of the Members of Parliament (Life Gold Pass) Act 2002,
in general terms, the Life Gold Pass scheme was already closed to people who were
not in Parliament on 6 March 2012. In addition, this Bill provides that, except for a
person who has been or becomes Prime Minister:
- the Parliamentary Retirement Travel Entitlement is closed to a person who has
not met the qualifying period for the Parliamentary Retirement Travel
Entitlement before 14 May 2014; and
- a person who retires on or after the commencement of the Bill (day of Royal
Assent) cannot access benefits under the Parliamentary Retirement Travel
Entitlement.
27
Attachment A
Reduction in number of trips available under the Parliamentary Retirement Travel
Entitlement
These amendments also reduce the benefits available to a person under the
Parliamentary Retirement Travel Entitlement. For a former member, the entitlement is
reduced from a maximum of 10 domestic return trips per year, to a maximum of 5
domestic return trips per year. For a person who has served as a senior office holder,
the maximum annual number of domestic return trips per year will remain at 10. The
maximum annual number of domestic return trips per year of a retired former Prime
Minister will be reduced from 40 to 30.
The spouse or de facto partner (or surviving spouse or de facto partner) of a holder of
a Parliamentary Retirement Travel Entitlement (or of a sitting member who has
satisfied the qualifying period for a Parliamentary Retirement Travel Entitlement,
including the Prime Minister or a sitting former Prime Minister) will no longer be able
to access benefits under the scheme. The entitlement of the spouse or de facto partner
of a retired former Prime Minister will be reduced from 40 to 20 domestic return trips
per year.
Travel under the Parliamentary Retirement Travel Entitlement subject to public
benefit test
As a result of these amendments, all travel under the Parliamentary Retirement Travel
Entitlement will be subject to a public benefit test. Currently, travel must not be taken
for a commercial purpose. Under these amendments, a holder of a Parliamentary
Retirement Travel Entitlement (or an entitled spouse or de facto partner) may only
undertake travel for a purpose that meets the public benefit test. The public benefit
test is satisfied if the person undertakes the trip for a purpose that is for the public
benefit and is not for a commercial purpose or a private purpose.
Administrative Measures
The Bill also amends the Parliamentary Entitlements Act 1990 and the Members of
Parliament (Life Gold Pass) Act 2002 to address the risk that payments made in the
course of administering these acts may constitute a breach of section 83 of the
Constitution. These mechanisms each include a statutory basis for recovering such
payments made outside of entitlement. Mechanisms to address the risk of breaches of
section 83 of the Constitution have been included in many other acts, including via
the Financial Framework Legislation Amendment Act (No. 2) 2012.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Statutory Obligation
The new statutory obligation does not create a criminal offence. This is on the basis of
both the definition of 'criminal offence' in Australian Law and the definition of
'criminal offence' in International Human Rights Law. Therefore, it does not engage
the rights and freedoms in Article 14 of the International Covenant on Civil and
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Attachment A
Political Rights ([1980] ATS 23). In any case, the obligation, and the recovery and
application of the loading, are subject to the review of the courts, and to the norms of
administrative law.
Amendments to the Life Gold Pass scheme
Article 5 of the International Convention on the Elimination of all Forms of Racial
Discrimination ([1975] ATS 40) obliges states to 'guarantee the right of everyone ...
to equality before the law' in the enjoyment of 'the right to own property alone as
well as in association with other'. Article 16 of the Convention on the Elimination of
All Forms of Discrimination Against Women ([1983] ATS 9) also references the right
to 'ownership, acquisition, management, administration, enjoyment and disposition of
property', in the context of the equal enjoyment of this right by men and women.
The Bill does not engage these rights to own property. In particular, the amendments
to the Life Gold Pass scheme do not affect the equality of people before the law to the
enjoyment of the right to own property alone as well as in association with others.
Rather, the Bill reduces, and in some cases removes, the gratuitous statutory benefits
afforded to certain persons under the Life Gold Pass scheme. Statutory benefits are
inherently susceptible to statutory variation and such variation does not engage
individual property rights.
Article 7 of the International Covenant on Economic, Social and Cultural Rights
([1976] ATS 5) obliges states to 'guarantee the right of everyone to the enjoyment of
just and favourable conditions of work'. Article 5 of the International Convention on
the Elimination of all Forms of Racial Discrimination ([1975] ATS 40) guarantees
'the right of everyone ... to equality before the law in the enjoyment of the rights ... to
just and favourable remuneration'. Although Life Gold Pass benefits are provided to
people who have served in the Parliament for a certain period, the reduction and
removal of those benefits by these amendments cannot be said to infringe upon any
right to just and favourable conditions of work and remuneration. Life Gold Pass
travel is not in the nature of remuneration; rather it is more properly characterised as a
gratuitous benefit. Even if these benefits could be said to be in the nature of
remuneration, their removal would not deprive the remuneration of parliamentarians
of its character as just and favourable, for the purposes of International Human Rights
Law.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Senator the Hon Scott Ryan
Special Minister of State
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