EXPLANATORY STATEMENT

Select Legislative Instrument 2009 No. 219

Issued by the Authority of the Special Minister of State

Parliamentary Entitlements Act 1990

Parliamentary Entitlements Amendment Regulations 2009 (No. 1)

The Parliamentary Entitlements Act 1990 (the Act) provides Members of each House of Parliament (Members) with a range of benefits, including those set out in Part 1, Schedule 1 to the Act. Section 12 of the Act provides, in part, that the Governor-General may make regulations for the purposes of section 9 of the Act.

Subsection 9(1) of the Act provides that a benefit set out in Schedule 1 to the Act may be varied or omitted by a determination made by the Remuneration Tribunal under the Remuneration Tribunal Act 1973.

Subsection 9(2) of the Act provides that a benefit set out in Schedule 1 to the Act may be varied or omitted by the regulations. The Parliamentary Entitlements Regulations 1997 (the Principal Regulations), in part, provide a printing entitlement for Members, under regulations 3 and 3A, for personalised letterhead stationery, newsletters for distribution to constituents and other printed materials, as approved by the Special Minister of State, for distribution to constituents.

The Regulations commence on 1 October 2009 and amend the Principal Regulations to:

(a)           combine the printing entitlement with the Communications Allowance, provided under clauses 10.4 to 10.13 of Remuneration Tribunal Determination 2006/18;

(b)          reflect a 25 per cent reduction from the current quantum of the printing entitlement;

(c)           stipulate that the printing and communications entitlement may only be used for parliamentary or electorate purposes, but not party, electioneering, personal or commercial purposes;

(d)          stipulate that the printing and communications entitlement may only be used to print on paper, card that does not weigh more than 700 grams per square metre or flat, magnetised material;

(e)           exclude how-to-vote cards from being printed and limit the number of postal vote applications that can be produced;

(f)            stipulate that a statement be inserted on all material printed using the entitlement, except for personalised letterhead stationery, acknowledging that the material has been produced by the Member at Australian Government expense; and

(g)           stipulate that the maximum amount that can be spent on office requisites and stationery, provided under item 7, Part 1, Schedule 1 to the PE Act, is $35,000, indexed annually, with a pro‑rated amount to apply for the period 1 October 2009 to 30 June 2010.

Details of the Regulations are set out in the Attachment.

Consultation and Regulatory Impact

No consultation in relation to these Regulations was undertaken because they do not have a direct or significant indirect impact on business, and do not restrict competition. The Office of Best Practice Regulation has confirmed that the preparation of a Regulation Impact Statement is not necessary, as the amendments have a nil or low impact on business or the economy or individuals, apart from the Federal Parliamentarians affected.

ATTACHMENT

Details of the Parliamentary Entitlements Amendment Regulations 2009 (No. 1)

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Parliamentary Entitlements Amendment Regulations 2009 (No. 1).

Regulation 2 – Commencement

This regulation provides for the Regulations to commence on 1 October 2009.

Regulation 3 – Amendment of the Parliamentary Entitlements Regulations 1997

This regulation provides that the Principal Regulations are amended as set out in Schedule 1.

Schedule 1 – Amendments

Item [1] inserts a division heading into the Principal Regulations, prior to regulation 3 titled ‘Division 1 Printing and communications entitlement’. This new division provides for the new printing and communications entitlement.

Item [2] omits regulations 3 and 3A from the Principal Regulations (which provided a printing entitlement for Members) and substitutes the new regulations listed and described below.

New Regulation 3

New regulation 3 provides that Division 1 applies to all Members. ‘Member’ is defined in section 3 of the Act to mean a member of either House of the Parliament.

New Regulation 3AA

New regulation 3AA sets out the rules for the new printing and communications entitlement.

Subregulation 3AA(1) provides that for subsection 5(1) of the Act (which provides that Members, Parliamentary office-holders and Ministers are entitled to such additional benefits as are prescribed by the regulations), the additional benefit of a printing and communications entitlement is prescribed.

The printing and communications entitlement is intended to replace:

·               the printing entitlement previously provided under regulations 3 and 3A of the Principal Regulations; and

·               the Communications Allowance provided under Remuneration Tribunal Determination 2006/18, titled Members of Parliament – Entitlements (the Determination).

The printing and communications entitlement ‘covers the field’ in relation to the above two entitlements. Given this, if the provisions setting out a Communications Allowance in the Determination, or the provisions relating to the aggregation of the Communications Allowance and the charter entitlement, are still in force at the commencement date of the Amending Regulations, they will be void, in accordance with section 10 of the Act. Subsection 10(2) of the PE Act provides that where the Principal Regulations are inconsistent with a determination of the Remuneration Tribunal, including where the Principal Regulations intend to cover the field in respect of a particular subject matter (as is the case here), the determination is void to the extent of the inconsistency. This makes it clear that there is no scope for the Remuneration Tribunal to provide additional benefits dealing with the Communications Allowance or printing entitlement.

Subregulation 3AA(2) sets out that the printing and communications entitlement is for the cost of commercial services for first, printing (paragraph 3AA(2)(a)) and, second, the communication and distribution of information in hard copy as well as electronically (including the establishment and maintenance of websites) (paragraph 3AA(2)(b)).

Subregulation 3AA(3) specifically provides that the printing and communications entitlement must only be used for parliamentary and electorate purposes and that it must not be used for party, electioneering, personal or commercial purposes or for producing how-to-vote material. The requirement that the entitlement be used for ‘parliamentary or electorate purposes’ provides greater accountability (the previous printing entitlement did not include these parameters) and consistency with other entitlements provided under the PE Act, the Principal Regulations and determinations of the Remuneration Tribunal. A definition of ‘electioneering’ is provided in new subregulation 3AA(10), explained below.

Paragraph 3AA(4)(a) provides that under the printing and communications entitlement, printing is permissible only if it is on either paper or card that does not weigh more than 700 grams per square metre. This means that any material can be produced on paper or card up to a certain thickness, but would preclude the printing of anything not paper or card based, such as, for example, t-shirts, caps, stress balls, or stubby holders.

Unlike the current printing entitlement, there is no rule that material be printed for distribution to constituents. This retains the flexibility that existed under the previous Communications Allowance.

Paragraph 3AA(4)(b) provides that the printing and communications entitlement can also be used to print on flat magnetised material. This enables Members to continue to print magnetised material permissible under the previous printing entitlement (for example, magnetised community information cards and calendars). Items that are not printed directly onto flat magnetised material will not be able to be printed using the printing and communications entitlement. For example, a bottle-opener attached to a magnet would be outside this entitlement.

Subregulation 3AA(5) provides that all material printed using the printing and communications entitlement must include the following statement on every page:

This material has been produced at Australian Government expense by [insert name of member].

Subregulation 3AA(5) provides one exception to this rule, namely, that the statement is not required to be printed on personalised letterhead stationery. A definition of personalised letterhead stationery is provided in subregulation 3AA(10) and is subject to the limitations in subregulations 3AA(7) and (8) (see below). As section 3 of the PE Act defines member to mean a member in either House of the Parliament, the effect of subregulation 3AA(5) is that both Senators and Members of the House of Representatives must provide this statement on all material they print using the printing and communications entitlement. A note at the end of subregulation 3AA(5) makes it clear that where material consists of more than one page, the statement must appear on every page of the material.

Subregulation 3AA(6) provides further rules for the printed statement required by subregulation 3AA(5). The statement must be:

(a)           in either Times New Roman or Arial font (paragraph 3AA(6)(a)). A member can choose which of these two fonts to use, but no other font types are acceptable;

(b)          of a colour that allows the statement to be easily read (paragraph 3AA(6)(b)). This means that, although a member may use any colour to print the statement, the colour used must ensure the statement is clearly recognisable and visible in combination with any other colour used for the printed material. For example, a document printed on white paper would require the statement to be in a dark colour, such as black;

(c)           if the printed material is A4 size or smaller, the statement must be printed in a minimum font size of 10 point (paragraph 3AA(6)(c)). For example, an A5 document (which is half the size of an A4 document) will still require the statement to be printed in 10 point font; and

(d)          if the printed material is larger than A4 size, the statement must be printed in a proportionately larger font size to enable the statement to be easily read. To achieve this, paragraph 3AA(6)(d) provides that for material larger than A4 size, the statement must be a minimum font size of 10 point plus one point for each A4 size of material (or part thereof). A note at the end of subregulation 3AA(6) gives an example of how this is intended to operate and provides that: for material that is printed on material the equivalent of 4 A4 sized pieces of paper (i.e. the item is printed on A2 sized paper), the minimum font size for the statement is 14 point. A further example would be that for an A3 document, the minimum font size for the statement would be 12 point font (an A3 document is twice the size of an A4 page). For multi-page items, the size of the statement is based on the page size of the document, not the overall size of the publication (i.e. the statement on a four page publication made up of only A4-sized pages is required to be made in a minimum of 10 point font);

Subregulation 3AA(7) provides that, subject to subregulation 3AA(8), personalised letterhead stationery may include the details outlined in paragraphs (a) to (k) of subregulation 3AA(7). These details are:

(a)           the Member’s name and title;

(b)          the address, postal address and contact details of a Member’s electorate office, Parliament House office and capital city office (if applicable);

(c)           other contact details of the member, including their electronic contact details. The examples provided include, such as a Member’s email address, and website addresses;

(d)          for a member – their electoral division;

(e)           for a Senator - the Senator’s State or Territory;

(f)            an electorate, State or Territory map;

(g)           a brief description of the electorate, State or Territory;

(h)           a photograph of the member;

(i)             the Commonwealth Coat of Arms;

(j)            the Australian flag;

(k)          a political party logo.

If a printed document contains details other than those specified in subregulation 3AA(7), it will not be considered to be personalised letterhead stationery under the entitlement.

Subregulation 3AA(10) defines personalised letterhead stationery to mean letterhead paper, envelopes, compliments slips and business cards for the Member.

Subregulation 3AA(8) provides that if personalised letterhead stationery includes the Commonwealth Coat of Arms, the stationery must not include the Australian flag or a political party logo. This is consistent with guidelines on the use of the Commonwealth Coat of Arms issued by the Department of the Prime Minister and Cabinet.

Subregulation 3AA(9) provides that a Member may use the printing and communications entitlement to print postal vote applications, subject to express limitations. The limitations are that the number of postal vote applications that can be printed per federal election cannot exceed a maximum of 50 per cent of the number of enrolled voters in the Member’s electorate, State or Territory as at the last working day of March that precedes an election. The March date aligns with data already provided by the Australian Electoral Commission (AEC) for the purposes of determining Members’ communications allowance budgets.

The AEC provides standard text for what can be included in a postal vote application. Previously, this template enabled other information to be included (for example, enabling a Member to solicit a vote for themself). However, as the printing and communications entitlement cannot be used for ‘electioneering’ (see commentary below), a member will no longer be able to seek support for his or her re‑election on a postal vote application produced under this entitlement.

Subregulation 3AA(10) provides a definition of electioneering and personalised letterhead stationery for the purposes of regulation 3AA. Electioneering is defined to mean a communication that explicitly:

(a)           seeks support for, denigrates or disparages:

(i)             the election of a particular person or persons; or

(ii)           a particular political party or political parties; or

(b)          encourages a person to become a member of a particular political party, or political parties; or

(c)           solicits subscriptions or other financial support.

New Regulation 3AB

New regulation 3AB sets out the quantum of the printing and communications entitlement for a member of the House of Representatives. The amount represents the sum of 75 per cent of the current printing entitlement available to a Member of the House of Representatives and the amount of the Communications Allowance currently available to a member of the House of Representatives under the Determination. Paragraph 3AB(1)(a) reflects the current Communications Allowance amount by providing that the first component of the printing and communications entitlement is the product of the standard rate of postage and the number of enrolled voters within the electoral boundaries for the Member’s electorate, as at the last working day in the March before a financial year.

The standard rate of postage is defined in subregulation 3AB(3) as the rate of postage for carriage within Australia of standard postal articles by ordinary post, as determined by Australia Post under the Australian Postal Corporation Act 1989. The current rate is $0.55.

Paragraph 3AB(1)(b) provides for an amount to be added to the amount calculated in paragraph 3AB(1)(a). The amount provided under paragraph 3AB(1)(b) for the 2009-10 financial year is $81,301. This amount reflects the 25 per cent reduction in the current printing entitlement amount of $100,000, pro rated on a daily basis for the period 1 October 2009 (when the Regulations commence) to 30 June 2010. For subsequent financial years the amount is $75,000, that is, 75 per cent of the current printing entitlement.

Subregulation 3AB(2) provides a rule for electorates that come into existence after the last working day in March of a calendar year, to reflect the current rule in paragraph 10.4(b) of the Determination. For such electorates, the printing and communications entitlement for the following financial year is the product of the standard rate of postage and the number of enrolled voters, within the electoral boundaries for the member’s electorate as at the close of the electorate roll for the last general election.

As outlined above, subregulation 3AB(3) defines the term ‘standard rate of postage’ for regulation 3AB.

New regulation 3AC

New regulation 3AC sets out the quantum of the printing and communications entitlement for a Senator for a financial year and reflects the 25 per cent reduction from the current printing entitlement. This provision specifies that it is:

(a)           $41,050 for the 2009-2010 financial year. This amount is made up of 75 per cent of the current printing entitlement amount of $16,667, and the current Communications Allowance entitlement of $27,500, pro rated on a daily basis for the period 1 October 2009 (when the Regulations commence) to 30 June 2010; and

(b)          $40,000 for subsequent financial years, that is, the sum of 75 per cent of the current printing entitlement and the current Communications Allowance entitlement of $27,500.

Several aspects of the Communications Allowance under the Determination will not apply for the new printing and communications entitlement, as follows:

(a)           the carry over and call forward provisions in clauses 10.5, 10.6, 10.10 and 10.11 of the Determination;

(b)          clauses 10.7 and 10.8 of the Determination are not required as the rules in these clauses, which deal specifically with the cessation and reinstating of the communications allowance entitlement for Members contesting an election, are covered by the application of section 7 of the PE Act; and

(c)           clause 11 relating to the existing ability of a Member to aggregate their Communications Allowance and charter entitlement.

Item [3] inserts, after regulation 3AC, a heading titled ‘Division 2 Other additional benefits’ into the Principal Regulations.

Item [4] inserts, after Part 3, a new Part 4 titled ‘Transitional provisions’, which deals with transitional arrangements.

New Regulation 19

New regulation 19 provides transitional arrangement to address circumstances where Members have used their printing entitlement and Communications Allowance prior to the commencement of the Amending Regulations.

Subregulation 19(1) provides that, for the 2009-2010 financial year, if a Member has incurred expenditure under the ‘former entitlement’ (defined under subregulation 19(2)) between 1 July 2009 and 30 September 2009, that is equal to or in excess of the quantum of the new printing and communications allowance for the 2009-2010 financial year set out in new regulations 3AB and 3AC, that is:

(a)           for Members of the House of Representatives – the sum of the amount specified in paragraphs 3AB(1)(a) and $81,301; or

(b)          for Senators – $41,050,

the Member is not entitled to the printing and communications allowance for the remainder of the 2009‑2010 financial year. Paragraph 19(1)(d) makes it clear that no recovery action will be taken for Members who have otherwise spent within entitlement an amount equal to or in excess of the abovementioned amounts – i.e. the equivalent/excess amount spent will be taken to be within entitlement. For clarity, this transitional provision would not cover expenditure incurred in relation to the ‘former entitlement’ (i.e. amounts paid by the Commonwealth) which are subsequently found to be outside entitlement altogether.

For example, Senator X prints items using the former entitlement (and is invoiced for these items) in August 2009. The invoice is paid by the Commonwealth in November 2009. However, in December 2009 it is identified that the items printed are not within the parameters of the former printing entitlement. This amount would be a debt owing to the Commonwealth and would not be considered under these transitional arrangements.

Subregulation 19(2) defines relevant terms for subregulation 19(1). The term ‘former entitlement’ is defined to be the printing entitlement and Communications Allowance, as at 30 September 2009 – i.e. prior to the commencement of the Amending Regulations. In particular, the term ‘communications allowance’ (in 19(2)(a)(ii)) includes the amount aggregated under clause 11 of the Determination.

Item [5] omits item 3 from Part 1, Schedule 1 to the PE Act. Item 3 was previously omitted by clause 10.13 of the Determination and provides an annual amount of $9,000 for the cost of postage in relation to Parliamentary or electorate business (other than party business). The amendment made in item [5] is of a technical nature to ensure that the effect of clause 10.13 of the Determination will be continued if or when that clause is repealed from the Determination.

Item [6] substitutes item 7, Part 1, Schedule 1 to the PE Act and inserts new item 7. New subitem 7(1) retains the entitlement of Members to office accommodation in the electorate, together with equipment and facilities (including for personal staff) necessary to operate the office, as approved by the Minister, for purposes related to Parliamentary, electorate or official business, but not commercial business. A reference to ‘requisites and stationery’ is inserted into this subitem.

The Minister has previously approved, under item 7, certain office requisites and stationery under this item, for Members. New item 7 is unchanged (except for the insertions mentioned above), except that new subitem 7(2) now provides that, under the entitlement provided in subitem 7(1), and to the extent that it relates to office requisites and stationery, the entitlement is subject to a specified limit. The specified limit is $26,178 for the period 1 October 2009 to 31 July 2010, and $35,000 indexed annually for subsequent financial years. The indexation mechanism is not stipulated, rather, the Minister may approve the appropriate indexing mechanism.

Under new subitem 7(3), it is specified that the entitlement cannot be used for ‘electioneering’ purposes. The definition of the term electioneering is the same as in the new subregulation 3AA(10) of the PE Regs, in relation to the printing and communications entitlement.

Item [7] provides for a new item 7A. New item 7A provides an entitlement to purchase publications (including electronic publications) for purposes related to Parliamentary, electorate or official business, but not commercial business. This entitlement replaces the entitlement currently provided to Members for newspapers and periodicals under item 7, Part 1, Schedule 1 to the Act. The entitlement for the 2009‑2010 financial year is limited as follows:

(a)    for Members of the House of Representatives whose electorate has a demographic rating (as determined by the AEC) of inner metropolitan or outer metropolitan – $3,419;

(b)   for Members of the House of Representatives not included in the paragraph (a) or Senators not included in the paragraph (a) – $4,572.

The demographic rating for each electorate is publicly available on the AEC’s website.

For subsequent financial years, the abovementioned limits are increased in accordance with the Consumer Price Index.