Commonwealth Numbered Regulations - Explanatory Statements

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PARLIAMENTARY ENTITLEMENTS REGULATIONS (AMENDMENT) 1998 NO. 269

EXPLANATORY STATEMENT

STATUTORY RULES 1998 NO. 269

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

Parliamentary Entitlements Act 1990

Parliamentary Entitlements Regulations (Amendment)

The Parliamentary Entitlements Act 1990 (the Act) confers certain benefits upon members of each House of Parliament, Ministers and parliamentary office-holders.

Section 12 of the Act provides that the Governor-General may make regulations for the purposes of paragraph 5(1)(b).

Paragraph 5(1)(b) of the Act provides that members, parliamentary office-holders and Ministers are entitled to such additional benefits as are prescribed by the regulations.

The purpose of the Regulations is to amend the Parliamentary Entitlements Regulations (the Principal Regulations) to enable the Commonwealth to pay assistance to present and former Ministers for legal proceedings against them arising out of the performance of their ministerial duties. Assistance under the Regulations will not be available to institute legal proceedings. The Regulations replace administrative arrangements of similar effect which had been in place since approximately 1984. The intention of the Regulations, consistently with the intention of the administrative arrangements which they replace, is to equate the provision of assistance to Ministers with the guidelines applicable for the provision of assistance for legal proceedings to Commonwealth officers. It is not intended that the Regulations exclude other lawful arrangements for providing assistance, for example, existing arrangements in relation to administrative law challenges to a Minister's decisions or in relation to subpoenas to Ministers relating to their current portfolio or other lawful ad hoc arrangements which the Government might wish to make.

In its February 1997 report, 'Payment of a Minister's Legal Costs Part 2', the Senate Legal and Constitutional References Committee welcomed advice from the Attorney-General's Department that it was developing a proposal for a statute-based scheme to be established by regulations under the Act. The Regulations have been made having regard to the recommendations in that report.

The effect of the Regulations is to provide a firm legal basis for providing Commonwealth assistance to Ministers in relation to matters covered by the Regulations, to provide transparent criteria and procedures capable of sensible, consistent and predictable application, and to provide for appropriate monitoring and control of expenditure and reporting of expenditure to Parliament. In particular, the Regulations amend the principal Regulations:

*       to enable assistance to be given to present and former Ministers:

-       for certain legal proceedings against them, whether or not they have been

       instituted, including claims for damages and other relief and criminal

       proceedings, where the proceedings have arisen out of the performance of

       their ministerial duties (new regulations 5, 6 and 10);

-       for inquiries involving a Minister, where the proceedings have arisen out of

       the performance of their ministerial duties, but not a court challenge to the

       conduct or validity of the inquiry (new regulations 5, 6 and 10);

-       where Ministers are sued only because of being, or having been, the holder

       of the office of Minister. These types of 'figurehead' proceedings are

       intended to cover matters in which the Minister has no involvement,

       responsibility or power and is being sued as the Government's

       representative (new regulations 5, 6 and 10); and

-       where subpoenas to give evidence or to produce documents are received by

       Ministers in their capacity as Ministers and relate to their current or

       previous portfolio (new regulations 5 and 6);

*       to establish who can make decisions to give assistance (new regulation 7) and

       the manner in which applications should be made (new regulation 8);

*       to establish the level of assistance that can be given to Ministers (new regulation 9

       and new subregulation 15(3));

*       to establish the criteria relevant to giving assistance (new regulation 10);

*       to provide for the revocation of decisions to give assistance and the recovery of

       moneys paid in certain circumstances (new regulation 11);

*       to deal with the relationship of the scheme for providing assistance under the

       regulations with other schemes providing assistance (new regulation 12);

*       to provide for conditions to be imposed on a decision to give assistance

        (new regulations 1316);

*       to require the Secretary of the Attorney-General's Department to monitor

       strategies in legal proceedings for which assistance has been given and to

       inform the approving Minister if he or she considers that proposed expenditure

       on the proceedings is unreasonable (regulation 17);

*       to require the Attorney-General to report to Parliament on decisions to give

       assistance and to table a consolidated statement of expenditure at the end of

       each financial year (regulation 18). The Regulations commence on notification

       in the Gazette. Details of the regulations are attached.

Attachment

Regulation 1

Subregulation 1.1 provides for the Regulations to commence on gazettal.

Regulation 2

Subregulation 2.1 provides for the Principal Regulations to be amended as set out in these Regulations.

Regulation 3

Subregulation 3.1 inserts a new Part heading before regulation 1 of the Principal Regulations.

Regulation 4

Subregulation 4.1 inserts a new Part heading after regulation 2 of the Principal Regulations.

Regulation 5

Subregulation 5.1 adds a new Part to the end of the Principal Regulations. New Part 3, which incorporates new regulations 5 to 18, sets out the scheme for providing assistance to Ministers for certain legal proceedings arising out of the performance of their ministerial duties.

New Regulation 5 - Definitions

New regulation 5 defines certain terms used in new Part 3. In particular, 'proceedings' for which assistance can be given under the Regulations covers:

*       claims for damages against a Minister;

*       a prosecution of a Minister or threat of prosecution;

*       proceedings or threatened proceedings against a Minister, in which no damages

       have been claimed, before bodies empowered to award damages;

*        a claim that the Minister is liable to take some action other than to pay damages;

*       an inquiry into matters involving a Minister but not a challenge to the validity or

       conduct of the inquiry.

New Regulation 6 - Application

New regulation 6 provides for new Part 3 to apply to proceedings, and to subpoenas received by a Minister in relation to his or her ministerial duties, in relation to matters which occurred on or after the commencement date of the Act on 24 May 1990. It is made clear in the definition of an 'applicant' that a Minister can only apply for assistance where he or she is, or has been, a Minister on or after the commencement of the Act.

New Regulation 7 - Approving Minister

New regulation 7 prescribes the Ministers who can approve an application for assistance under new Part 3. The effect is that an approval will not be given by a Minister who is himself or herself seeking assistance under the regulations, except where all Ministers are involved in the matter, in which case the Attorney-General will give the approval.

New Regulation 8 - Application for assistance

New regulation 8 prescribes the manner in which an application by a Minister for assistance is to be made. A Minister may apply in writing to the relevant approving Minister.

New Regulation 9 - Assistance to an applicant

New subregulation 9(1) prescribes the type of assistance for which an approving Minister may approve payment by the Commonwealth. Depending on the nature of the proceedings, an approving Minister may approve payment for one or more of the categories of assistance. For example, for a damages claim against a Minister, assistance may be given for the costs of the Minister's legal representation and the cost of any damages or costs awarded against the Minister or agreed to in a reasonable settlement.

New subregulation 9(2) requires assistance to be paid in accordance with the approval and subject to the Regulations.

New subregulation 9(3) provides for assistance to extend to the payment of costs for an appeal against, or a review of, a decision in proceedings for which the approval is given. A power to revoke assistance exists in new regulation 11.

New subregulation 9(4) permits the approving Minister to reduce assistance if satisfied that the applicant has breached the new regulations or a condition of the approval.

New subregulation 9(5) permits the approving Minister to defer a decision to approve assistance in whole or in part until the proceedings reach a point when the Minister considers it is appropriate to consider approving the payment. The purpose of this subregulation is to enable a decision to be deferred until such time as more facts become known about the matters in issue or other information is provided. It would be open to an approving Minister to approve the payment of an applicant's legal representation costs, but to defer a decision to pay any damages to a later date.

New subregulation 9(6) requires a decision to give assistance in respect of an indictable offence against a Minister to be limited in the first instance to the preparation and conduct of the committal proceedings. It is intended that a decision to provide any further assistance could be made after that stage of the proceedings.

New subregulation 9(7) prohibits a decision to pay a fine, penalty or costs awarded against a Minister in criminal proceedings until the result of the criminal proceedings is known.

New Regulation 10 - Consideration by approving Minister

New subregulation 10(1) prescribes the criteria to which an approving Minister must have regard before giving approval to give assistance. The approving Minister is required to:

*       consult other Ministers in accordance with arrangements approved by the

       Prime Minister; and

*       for inquiries - be satisfied that the inquiry relates to the performance of a Minister

       of ministerial duties and that it is appropriate for assistance to be given;

*       for other proceedings - be satisfied that the proceedings relate to the

       performance or non-performance of ministerial duties and that the applicant

       acted reasonably and responsibly, or be satisfied that the Minister is sued only

       because he or she is the holder of the office of Minister.

New subregulation 10(2) prohibits assistance to be given for proceedings arising out of a motor vehicle incident where the Minister is insured or, if there is no insurance, the approving Minister considers that the liability should reasonably have been insured. For example, if the Minister uses his or her private car to perform ministerial duties it would be expected that the Minister would be responsible for arranging his or her own insurance.

New subregulation 10(3) enables assistance to be refused if there has been unreasonable delay by a Minister in applying for assistance. The purpose of this provision is to preserve the integrity of some of the measures applicable to an approval for assistance, for example, the monitoring of strategies in the proceedings (new regulation 17) or the determination of which solicitors should act for the Minister (new subregulation 15(1)).

New Regulation 11 - - Revocation of approval

New subregulation 11(1) permits a decision to give assistance to be revoked so far as it allows for the payment of future costs in an appeal or a review, or where the applicant has breached a condition of the approval. It is intended that costs incurred in an appeal or review up until the revocation would be payable.

Subregulation 11(2) permits the whole or partial revocation of a decision to give assistance where the Minister is satisfied that there has been a breach of a condition and further permits the recovery of any moneys paid after the breach.

New Regulation 12 - Other arrangements

New subregulation 12(1) provides that the new regulations do not affect a Minister's eligibility for assistance under any other arrangement. It is not intended, for example, that the regulations replace arrangements where a Minister is a party to administrative law proceedings challenging decisions or conduct by a Minister.

New subregulation 12(2) serves to prevent double-dipping where a Minister is eligible under the regulations and under some other arrangement.

New Regulation 13 - Control by the Commonwealth

New regulation 13 enables the Commonwealth to take control of the conduct of a Minister's defence in civil proceedings where the Commonwealth has fully indemnified the Minister for all costs.

New Regulation 14 - Assistance by applicant

New regulation 14 requires a Minister to give to the Commonwealth the assistance that it requests in exercising its control under regulation 13.

New Regulation 15 - General conditions

New subregulation 15(1) permits the approving Minister to determine whether the Australian Government Solicitor or other legal practitioner will represent the Minister.

New subregulation 15(2) enables an approving Minister to impose other conditions at any time.

New subregulation 15(3) restricts expenditure for the cost of a Minister's defence to amounts certified as reasonable by the Secretary to the Attorney-General's Department or an officer designated by the Secretary.

New Regulation 16 - Recovery of costs

New subregulation 16(1) requires a Minister to take steps to recover costs awarded in his or her favour where the Commonwealth has paid for the defence of the Minister and to pay any costs recovered to the Commonwealth.

New subregulation 16(2) extends the approval for assistance to expenses incurred in recovering costs awarded in the Minister's favour, but only to the extent that they are certified as reasonable by the Secretary to the Attorney-General's Department (or by a designated officer).

New Regulation 17 - Monitoring

New regulation 17 requires the Secretary to the Attorney-General's Department (or a designated officer) to monitor strategies adopted by an applicant in legal proceedings for which assistance has been given and to inform the approving Minister if he or she considers that proposed expenditure on the proceedings is unreasonable.

New Regulation 18 - Reporting

New regulation 18 requires the Attorney-General to inform Parliament as soon as possible of each decision to give assistance under the new Regulations including giving reasons for the decision and any limits on expenditure and, within 3 months after the end of each financial year, to table a consolidated statement of expenditure under new Regulations for that year.


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