Explanatory Statement: Remuneration Tribunal (Compensation for Loss of Office for Holders of Certain Public Offices) Determination 2018
- The Remuneration Tribunal Act 1973 (the Act) establishes the Remuneration Tribunal (the Tribunal) as an independent statutory authority responsible for reporting on and determining the remuneration, allowances and entitlements of key Commonwealth office holders. These include Judges of Federal Courts and most full-time and part-time holders of public offices, including Specified Statutory Offices. An additional function of the Tribunal is to determine a classification structure for Principal Executive Offices and the terms and conditions applicable to each classification within the structure.
Consultation
2. Section 11 of the Act advises that in the performance of its functions the Tribunal:
- may inform itself in such manner as it thinks fit;
- may receive written or oral statements;
- is not required to conduct any proceeding in a formal manner; and
- is not bound by the rules of evidence.
3. The Tribunal normally receives submissions on remuneration from a portfolio minister, or a Secretary, program manager or employing body (in respect of a Principal Executive Office) with responsibility for the relevant office(s). The Tribunal will normally seek the views of the relevant Portfolio Minister prior to determining remuneration for an office.
4. The Tribunal may reach a decision based on the information provided in the submission and other publicly available information such as portfolio budget statements, annual reports, corporate plans, legislation and media releases. On occasion it may wish to meet with relevant parties or seek further information from the relevant minister or person making the submission.
5. Amongst other relevant matters in deliberating on appropriate remuneration for an office the Tribunal informs itself on:
- the main functions, responsibilities and accountabilities of the office;
- the organisational structure, budget and workforce;
- the requisite characteristics, skills or qualifications required of the office holder(s); and
- the remuneration of similar, comparator, offices within its jurisdiction.
Restructure of Determination
6. The Tribunal has taken the opportunity to review, restructure and reformat its determinations to reflect standard Commonwealth drafting practice and to improve clarity and readability. This has involved the restructuring and rewording of certain provisions. The Office of Parliamentary Counsel was engaged to assist in this process. Consultation was considered unnecessary by the Tribunal as there have been no changes to the terms and conditions set out in the previous determination.
Retrospectivity
7. Any retrospective application of this determination is in accordance with subsection 12(2) of the Legislation Act 2003 as it does not affect the rights of a person (other than the Commonwealth or an authority of the Commonwealth) to that person’s disadvantage, nor does it impose any liability on such a person.
The power to repeal, rescind and revoke, amend and vary
8. Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Details of the determination are as follows:
SECTIONS 1 – 4
9. Specify the authority for and the commencement date of the determination and supersedes the previous determination, Determination 2014/17 Compensation for Loss of Office for Holders of Public Office (as amended), applying to the offices covered by this determination.
SECTIONS 5 – 7
10. Contain definitions of certain words used in the determination and outline the application of the determination and the effect of instruments specified in Schedules to the determination.
SECTION 8
11. Sets out the entitlement to compensation for loss of office.
SCHEDULE 1 – REPEALS
12. Schedule 1 specifies instruments which have been amended or repealed.
Authority: Sub-sections 7(3) and 7(4)
Remuneration Tribunal Act 1973
Overview
The Remuneration Tribunal (Compensation for Loss of Office for Holders of Certain Public Offices) Determination 2018 was enacted to restructure and reframe the previous compensation determinations for certain public office holders, enhancing clarity and readability. This determination was introduced to address the need for a more coherent and accessible framework for compensating public office holders for loss of office, aligning with standard Commonwealth drafting practices. The determination was made under the authority of the Remuneration Tribunal Act 1973, with the objective of ensuring that the compensation framework remains transparent and fair. The determination was reviewed and reformed without any changes to the actual terms and conditions, thus consultation was deemed unnecessary. It is important to note that any retrospective application of this determination is in accordance with the Legislation Act 2003, ensuring it does not adversely affect the rights of individuals, other than the Commonwealth or its authorities.
Scope and Application
The Remuneration Tribunal (Compensation for Loss of Office for Holders of Certain Public Offices) Determination 2018 applies to the remuneration, allowances, and entitlements of key Commonwealth office holders as established under the Remuneration Tribunal Act 1973. This includes Judges of Federal Courts and most full-time and part-time holders of public offices, such as Specified Statutory Offices. The Act sets out the Tribunal's functions and its approach to determining remuneration, including the consideration of various factors such as the main functions, responsibilities, and accountabilities of the office, the organisational structure, budget, workforce, and requisite characteristics, skills, or qualifications required of the office holder, as well as the remuneration of similar offices within its jurisdiction. The Tribunal’s approach to determining remuneration is not bound by formal procedures or the rules of evidence, allowing it to inform itself in a manner it deems fit. The application of this Determination is national in scope, covering all Commonwealth public office holders within the specified categories. While the Determination has been restructured for clarity, there have been no changes to the terms and conditions set out in previous determinations. Any retrospective application of this Determination does not adversely affect the rights of individuals, other than the Commonwealth or its authorities, or impose any liability on such persons. The Determination also allows for the repeal, rescission, revocation, amendment, or variation of any legislative or administrative instruments under the authority provided by the Acts Interpretation Act 1901.
Key Provisions
The Remuneration Tribunal (Compensation for Loss of Office for Holders of Certain Public Offices) Determination 2018 primarily focuses on setting out the terms and conditions for compensation for loss of office for holders of certain public offices. The determination starts by specifying its authority and commencement date, as outlined in Sections 1 to 4 (sections 1-4). These sections establish the legal basis for the determination and its application, superseding the previous determination from 2014 (Determination 2014/17). Sections 5 to 7 (sections 5-7) provide definitions and outline the application of the determination, including the effect of instruments specified in the Schedules. Section 8 (section 8) is the central provision that sets out the entitlement to compensation for loss of office.
The obligations and requirements imposed by the determination on the parties it governs include the provision of relevant information to the Tribunal. The Tribunal is required to inform itself on various aspects such as the main functions, responsibilities, and accountabilities of the office, the organisational structure, budget and workforce, and the requisite characteristics, skills, or qualifications required of the office holder(s) (section 5). The Tribunal may also consider the remuneration of similar, comparator, offices within its jurisdiction when deliberating on appropriate remuneration for an office. The Tribunal is not bound by formal procedures or the rules of evidence but can conduct proceedings in a manner it deems fit (section 11).
The determination also includes provisions regarding its retrospective application. Under subsection 12(2) of the Legislation Act 2003, any retrospective application of the determination does not affect the rights of a person to their disadvantage nor does it impose any liability on such a person (section 7). This ensures that the retrospective application of the determination does not negatively impact individuals other than the Commonwealth or an authority of the Commonwealth.
The determination does not explicitly state any offences, penalties, or consequences for breach. However, under the Remuneration Tribunal Act 1973 and the Acts Interpretation Act 1901, the Tribunal has the power to repeal, rescind, revoke, amend, or vary any instrument of a legislative or administrative character (subsection 33(3) Acts Interpretation Act 1901). This implies that if there is a breach or need for amendment in the determination, the Tribunal has the authority to make the necessary changes. The specific consequences for non-compliance with the determination would depend on the nature of the breach and any relevant legislation governing such actions.