Replacement Explanatory Statement: Remuneration Tribunal (Members of Parliament) Amendment Determination (No. 1) 2021
This Explanatory Statement replaces the Explanatory Statement registered on 19 October 2021 for Remuneration Tribunal (Members of Parliament) Amendment Determination (No.1) 2021. Paragraphs 7 and 8 clarify the instrument’s exemption from disallowance.
- The determination is made under the Parliamentary Business Resources Act 2017 (the PBR Act). Sections 45 and 46 of the PBR Act require the Tribunal to make determinations in relation to various matters for members, and former members, of the Parliament at least once each year.
- The Tribunal must determine the remuneration to be paid to members, the rates of travel allowances for domestic travel, and the allowances and expenses to be paid to former members. The Tribunal must publish its reasons for making a determination.
- The Tribunal also has functions under section 35 of the PBR Act relating to travel expenses, travel and motor vehicle allowances and other public resources. The Tribunal must inquire annually into travel expenses and travel allowances for domestic travel (except rates of travel allowances for domestic travel which it determines), and may be asked by the Special Minister of State to inquire into other matters. Regulations must be made or amended in accordance with the Tribunal’s recommendations.
Consultation
Internet and telephone services at private residences
4. Mr Andrew Wilkie MP, Member for Clark, wrote to the Tribunal on 25 March 2021 requesting the Tribunal modernise the provision of internet and telephone services in its Members of Parliament Determination.
5. The Tribunal wrote to the Hon Simon Birmingham MP, Minister for Finance on 10 August 2021, seeking his views on proposed amendments to its Members of Parliament Determination. Minister Birmingham responded to the Tribunal on 26 September 2021, in support of the proposed amendments.
Retrospectivity
6. 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.
Exemption from disallowance
7. Subsection 47(7) of the PBR Act provides that this determination is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to it.
8. Exemption from disallowance is appropriate in the context of this instrument, as it amends the entitlements of Senators and Members of the House of Representatives.
The power to repeal, rescind and revoke, amend and vary
9. 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:
10. Section 1 specifies the name of the instrument.
11. Section 2 specifies when the instrument commences.
12. Section 3 specifies the authority for the instrument.
13. Section 4 outlines the effect of the instrument specified in a Schedule to the instrument.
SCHEDULE 1 – AMENDMENTS
14. Item 1 removes the reference to ‘telephone’ in section 3.15(a).
15. Item 2 removes the reference to ‘fixed internet and telephone’ in section 3.15(b).
16. Item 3 removes various references to ‘telephone’ in section 3.15(c).
17. Item 4 repeals section 3.17 in its entirety and replaces it with a new definition of ‘service’.
Authority: Section 45
Parliamentary Business Resources Act 2017
Overview
The Remuneration Tribunal (Members of Parliament) Amendment Determination (No. 1) 2021, made under the Parliamentary Business Resources Act 2017, addresses the need to modernise the provision of internet and telephone services for members of Parliament. This determination, issued by the Remuneration Tribunal, aims to update the existing entitlements and allowances to reflect contemporary standards and practices. Notably, the determination clarifies the exemption from disallowance, ensuring it does not adversely affect individuals' rights or impose liabilities, and it does not apply retrospectively unless in accordance with the Legislation Act 2003. The process involved consultation with relevant stakeholders, including Members of Parliament and the Minister for Finance, to garner support and insights into the proposed amendments.
Scope and Application
The Remuneration Tribunal (Members of Parliament) Amendment Determination (No. 1) 2021, made under the Parliamentary Business Resources Act 2017, applies to the remuneration and allowances of current and former members of the Australian Parliament. The Tribunal is mandated to make determinations annually regarding the remuneration for members, the rates of travel allowances for domestic travel, and the allowances and expenses for former members. Additionally, the Tribunal has a function to inquire into travel expenses and travel allowances for domestic travel, and it may be requested by the Special Minister of State to inquire into other matters. The determination also includes a repeal of certain provisions regarding telephone services and the redefinition of 'service'. The instrument is exempt from disallowance as per subsection 47(7) of the PBR Act and section 42 of the Legislation Act 2003, which makes it immune from disallowance. Furthermore, the Tribunal's powers include the ability to repeal, rescind, revoke, amend, or vary any instrument under subsection 33(3) of the Acts Interpretation Act 1901. This amendment determination applies on a national level within Australia and does not extend to other jurisdictions.
Key Provisions
The Remuneration Tribunal (Members of Parliament) Amendment Determination (No. 1) 2021 (the Determination) modifies provisions related to internet and telephone services for Members of Parliament under the Parliamentary Business Resources Act 2017 (PBR Act). It removes references to telephone services and adjusts definitions to reflect modern communication practices. The Determination specifies that it commences on the day it is registered, as outlined in Section 2. The authority for this Determination is provided under Section 45 of the PBR Act, which mandates that the Tribunal must annually determine remuneration and allowances for members and former members of Parliament, including publishing reasons for its determinations. Furthermore, the Determination repeals and replaces section 3.17 to provide a new definition of ‘service’, reflecting updated standards and practices.
The Determination imposes specific obligations on the Remuneration Tribunal, primarily requiring it to update its determinations to modernise the provision of services for Members of Parliament. This includes removing outdated references to telephone services and adapting definitions to encompass current communication technologies. The Tribunal is also required to publish its reasons for making these amendments, ensuring transparency and accountability in its decision-making process. Additionally, the Tribunal must continue its annual inquiries into travel expenses and allowances, as well as any other matters directed by the Special Minister of State, ensuring that its recommendations are implemented through regulations.
Failure to comply with the provisions of the Determination could result in legal repercussions, although specific penalties are not outlined within the document. However, it is implied that any breach of the Tribunal’s obligations under the PBR Act could lead to civil or criminal consequences. The Determination itself is exempt from disallowance under subsection 47(7) of the PBR Act and section 42 of the Legislation Act 2003, ensuring that its amendments to the entitlements of Senators and Members of the House of Representatives are legally robust and enforceable. The retrospective application of this Determination is governed by subsection 12(2) of the Legislation Act 2003, which ensures that it does not adversely affect the rights of individuals, other than the Commonwealth or its authorities.
The power to repeal, rescind, revoke, amend, or vary the Determination is conferred under subsection 33(3) of the Acts Interpretation Act 1901. This means that the Tribunal retains the flexibility to adjust its determinations as needed to keep pace with changing circumstances and technological advancements. The Determination’s Schedule details specific amendments, including the removal of references to telephone services in various sections and the introduction of a new definition of ‘service’. These changes are designed to modernise the provision of services for Members of Parliament, ensuring they align with current practices and needs.