Bills Digest No. 52,
2018–19
PDF version [568KB]
Joseph Ayoub
Law and Bills Digest Section
6
February 2019
Contents
Purpose and structure of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Concluding comments
Date introduced: 5
December 2018
House: House of
Representatives
Portfolio: Finance
Commencement: Upon
Royal Assent
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at February 2019.
Purpose and
structure of the Bill
The purpose of the Parliamentary Service Amendment
(Post-election Report) Bill 2018 (the Bill) is to amend the Parliamentary
Service Act 1999 to change the deadline for the publication of the post-election
report of election commitments which is published by the Parliamentary Budget
Officer following a general election.
These changes are made by Schedule 1 to the Bill.
Background
Post-election
report
Section 64MA of the Parliamentary Service Act requires
the Parliamentary Budget Officer to prepare and publish a post-election report for
a designated parliamentary party which sets out the impacts that
a party’s election commitments will have on the Commonwealth budget.[1]
A designated parliamentary party is a political party with at least five
members who were members of Parliament immediately before the caretaker period.[2]
The post-election report must include:
- costings
of all the election commitments of a designated parliamentary party that the
Parliamentary Budget Officer, in their best professional judgement, reasonably
believes would have a material impact on the Commonwealth budget estimates for
the current financial year and the following three financial years and
- for
each designated parliamentary party, the total combined impact those election
commitments are likely to have on the Commonwealth budget estimates for the
current and following three financial years.[3]
The Parliamentary Budget Officer must prepare the
report before the end of 30 days after the caretaker period and publicly
release it ‘as soon as practicable, but not later than 30 days after the
end of the caretaker period’.[4]
The caretaker period begins at the time the House of Representatives is
dissolved and continues until the election result is clear or, if there is a
change of government, until the new government is appointed.[5]
As the Parliamentary Budget Office (PBO) was established
in 2012, only two post-election reports have been completed—following the 2013
and 2016 general elections. The 2013 post-election report was publicly released
on 18 October 2013, however Parliament did not return until 12 November 2013.[6]
The 2016 post-election report was released on 5 August 2016 while Parliament
returned on 30 August 2016.[7]
Parliamentary Budget
Office independent review
In 2016 and in accordance with the requirements of the Parliamentary
Service Act,[8]
the Joint Committee of Public Accounts and Audit (JCPAA) initiated an
independent review of the PBO which was carried out by Dr Ian Watt, former
Secretary of the Department of Prime Minister and Cabinet and Mr Barry
Anderson, former Deputy Director of the US Congressional Budget Office.[9]
The independent review’s report, Parliamentary
Budget Office review 2016–17: report of the independent review panel
(Report) was provided to the JCPAA on 17 March 2017.
The Report recommended that the publication of the post-election
report should be delayed to the later of the first sitting day of Parliament
following a general election or 30 days after the return of the writs.[10]
The recommendation was made in response to stakeholder concerns that, while the
post-election report ‘served as an important source of fiscal discipline on
parliamentary parties in the election’, it has ‘received little attention’:[11]
Many stakeholders were not aware of the Post-election
Report’s existence. Others noted that, while a worthy document (and a
potentially valuable resource for commentators and academics), both the 2013
and 2016 Post-election Reports received little media and public attention, and
had virtually no impact on the public policy debate relative to the amount
of work put into their publication.
Some stakeholders considered that this reflected the
timing of the Post-Election Report: it is released after a general election
but usually before parliamentary sittings resume, at a time when interest in
the detail of commitments (apart from the Government’s) made in the run up to
the election is at a very low ebb. [Emphasis added][12]
In addition to the timing change to the post-election
report, the Report also recommended that the post-election report should
include the financial impact over the medium term of:
- the
top ten policy proposals by dollar value
- any
proposal with an impact of over $1 billion in a year
- proposals
with a materially different impact beyond the forward estimates and
- the
overall election platform for each political party.[13]
The Report further recommended that the PBO should allow
political parties with fewer than five parliamentary members with the option to
have the financial impacts of their election commitments included in the
post-election report.[14]
According to the Explanatory Memorandum, the latter two
recommendations do not require legislative change and ‘the Parliamentary Budget
Office is already working to implement these changes to the scope of the
report’.[15]
The additional time provided by the proposed amendment is intended to also ‘help
accommodate the additional work being undertaken by the Parliamentary Budget
Office’.[16]
The PBO also agreed with the Report’s recommendations. The
actions taken by it in relation to each recommendation can be found in the Parliamentary
Budget Officer’s letter to the JCPAA dated 30 April 2018.[17]
Where a minor party opts-in to have their election commitments
assessed, the PBO has stated that it will release an ‘addendum containing the
financial implications of the election commitments of those minor parties as
soon as possible after the release of the main report’.[18]
However, the provisions which govern the post-election report, namely sections
64MA and 64MAA of the Parliamentary Service Act do not appear to enable
the Parliamentary Budget Officer to include minor parties’ election commitments
in the post-election report, unless two or more minor parties elect to be
treated as a single designated parliamentary party under
subsection 64MA(2).[19]
In this respect, it appears that the Government is relying
on the Parliamentary Budget Officer’s general functions as outlined in section
64E of the Parliamentary Service Act in order to include the impact of
minor parties’ election commitments on the Commonwealth budget as an addendum
to the post-election report. While the Parliamentary Budget Officer considers
that a legislative change is not required to give effect to this, it is
unlikely that the assessment of minor parties’ election commitments would be
governed by the procedural and reporting requirements of sections 64MA and
64MAA of the Parliamentary Service Act.[20]
Committee
consideration
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bills had not considered the Bill.
Senate
Standing Committee for Selection of Bills
The Senate Standing Committee for Selection of Bills deferred
consideration of the Bill until its next meeting.[21]
Joint
Committee of Public Accounts and Audit
Following a general election, subsection 64T(1) of the Parliamentary
Service Act enables the JCPAA to request that the Parliamentary Budget
Officer cause a review of the operations of the PBO. As noted above, the JCPAA
initiated an independent review of the PBO in 2016.[22]
According to the Explanatory Memorandum, the JCPAA and the Presiding Officers ‘have
agreed to the change in timing for the publication of the report’.[23]
Policy
position of non-government parties/independents
It does not appear that any particular views have been
expressed on the proposed changes.
Position of major
interest groups
The independent review consulted with a range of
stakeholders when conducting its inquiry including parliamentarians,
Commonwealth government departments and agencies, external think tanks,
journalists and various economic development agencies—a full list of
stakeholders involved is available at Appendix G to the Report.[24]
It appears that consultation occurred generally and no submissions as such are
available.
While some stakeholders considered that the post-election
report ‘served as a source of fiscal discipline on parliamentary parties in the
election’, there was also ‘general agreement’ that it is ‘not as useful for
public policy debate as it might be’.[25]
Accordingly, it appears that reforms intended to increase the impact that the
post-election report has on the public policy debate would likely be welcomed.
Notwithstanding this position, Professor Sinclair Davidson
writing for The Conversation argued in August 2016 that the
post-election report ‘won’t hold any political party to account, nor provide
any additional transparency to the electoral process’.[26]
Davidson’s criticism is primarily levied on the basis that the post-election
report is published after the election while voters are
‘forward-looking’ and he also argues that the ‘costings simply determine if the
numbers are correctly calculated, not whether the policy is plausible or even
sensible’.[27]
Financial
implications
According to the Explanatory Memorandum, ‘the Bill has no
financial impact as it only changes the timing of the publication of the
report’.[28]
In relation to the inclusion of minor parties’ election commitments in the
post-election report, former Parliamentary Budget Officer Phil Bowen stated in
2017 Senate Estimates it ‘would not only take resources to do that but also you
would expect that it would involve more time as well’.[29]
The PBO also receives additional funding of approximately
$500,000 in an election year.[30]
The Report notes that the election year funding ‘is
subject to the effects of indexation and efficiency dividend impacts for three
years prior to being available to the PBO in the expected year of the
election’. It appears that the PBO received additional funding in the 2018–19
budget in anticipation of a 2019 general election.[31]
Statement of Compatibility
with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible as it does not raise any human
rights issues.[32]
Parliamentary
Joint Committee on Human Rights
At the time of writing, the Parliamentary Joint Committee
on Human Rights had not yet considered the Bill.
Key issues and
provisions
Item 1 of Schedule 1 to the Bill repeals the
current deadline, contained in subsection 64MA(1) of the Parliamentary
Service Act, by which the Parliamentary Budget Officer must prepare the
post-election report.
Item 2 of Schedule 1 inserts proposed
subsection 64MA(1A) into the Parliamentary Service Act and specifies
the new deadline by which the Parliamentary Budget Officer must prepare
the
post-election report before the later of:
- 30
days after the end of the caretaker period and
- seven
days before the first sitting day of either or both Houses of Parliament.
Item 4 of Schedule 1 repeals subsection
64MC(1) of the Parliamentary Service Act which contains the current
deadline by which the Parliamentary Budget Officer must publicly release
the
post-election report and inserts a new deadline. Proposed subsection 64MC(1)
of the Parliamentary Service Act requires the Officer to publicly
release the post-election report as soon as practicable after preparing the
report and before the later of:
- 30
days after the end of the caretaker period and
- seven
days before the first sitting day of either or both Houses of Parliament.
According to the Explanatory Memorandum, it is expected
that the post-election report would generally be published seven days prior to
the resumption of Parliament:
Based on timeframes of previous elections, it is likely that
the post-election report would generally be required to be published by seven
days before the resumption of Parliament following a general election. This is
because this date generally falls later than 30 days after the end of the
caretaker period.[33]
Subsections 64MB(2) and (3) of the Parliamentary
Service Act enable the Parliamentary Budget Officer to request information
from a Commonwealth body to help the Parliamentary Budget Officer prepare the
post-election report up until 30 days after the caretaker period. Item 3
of Schedule 1 amends subsection 64MB(3) to enable the Parliamentary
Budget Officer to make such a request up until the day on which the post-election
report is publicly released under proposed subsection 64MC(1) of the Parliamentary
Service Act.
Concluding comments
The Bill makes minor amendments to the Parliamentary
Service Act to enable the Parliamentary Budget Officer to publish the
post-election report closer to the resumption of Parliament. The Explanatory
Memorandum states that the delayed publication ‘is not only intended to
accommodate the changed scope of the report’, but also expects that it will ‘enhance
the visibility of the post-election report by moving the timing closer to the
resumption of parliamentary sittings’.[34]
The proposed changes implement a recommendation of the 2016
independent review of the PBO and may encourage greater scrutiny of the
budgetary impact of parties’ election commitments following a general election.
[1]. Parliamentary
Service Act 1999, subsection 64MA(1).
[2]. Ibid.,
definition of designated parliamentary party contained in
section 7. Under subsection 64MA(2) of the Parliamentary Service Act, the
Parliamentary Budget Officer may treat two or more political parties as a
single designated parliamentary party if, together, they would have been a
designated parliamentary party and the parties request the Parliamentary
Budget Officer to do so.
[3]. Ibid.,
subsection 64MA(1).
[4]. Ibid.,
subsections 64MA(1) and 64MC(1).
[5]. Department
of the Prime Minister and Cabinet (PM&C), Guidance
on caretaker conventions, PM&C, Canberra, 2018, p. 1.
[6]. Parliamentary
Budget Office (PBO), Post-election
report of election commitments: 2013 general election, PBO, Canberra,
2013, p. v; Australia, House of Representatives, ‘Meeting
of the House’, Votes and proceedings, 1, 12 November 2013, p. 1.
[7]. PBO,
Post-election
report of election commitments: 2016 general election, Canberra, 2016,
p. v; Australia, House of Representatives, ‘Meeting
of the House’, Votes and proceedings, 1, 30 August 2016, p. 1.
[8]. Following
a general election, subsection 64T(1) of the Parliamentary Service Act
enables the Joint Committee of Public Accounts and Audit (JCPAA) to request
that the Parliamentary Budget Officer cause a review of the operations of the
PBO.
[9]. JCPAA,
Independent
review of Parliamentary Budget Office, media release, 29 March 2017, p.
1.
[10]. I
Watt and B Anderson, Parliamentary
Budget Office review 2016–17: report of the independent review panel,
Canberra, March 2017, recommendation 12, p. 43.
[11]. Ibid.,
p. 41.
[12]. Ibid.,
p. vi.
[13]. Ibid.,
recommendation 11, pp. 42–3. On 3 October 2018 the PBO published PBO
Guidance 02/2018: post‐election report of election commitments:
medium‐term reporting, outlining how the PBO will include the
medium‐term financial impacts of election commitments in the post‐election
report.
[14]. Ibid.,
recommendation 13, p. 44. On 27 April 2018, the PBO published PBO
Guidance 01/2018: allowing minor parties to opt in to the PBO’s post-election
report of election commitments, outlining how minor parties can opt-in.
[15]. Explanatory
Memorandum, Parliamentary Service Amendment (Post-election Report) Bill
2018, p. 1.
[16]. Ibid.,
p. 2.
[17]. Letter
from the Parliamentary Budget Officer to the JCPAA dated 30 April 2018, Parliamentary
Budget Office implementation of recommendations: report of the independent
review panel - March 2017, 30 April 2018, pp. 3–9.
[18]. PBO
Guidance 01/2018: allowing minor parties to opt in to the PBO’s post-election
report of election commitments, op cit., p. 3.
[19]. Subsection
64MAA(4) of the Parliamentary Service Act states that the post-election
report ‘must not include costings of election commitments other than ... those in
the list prepared by the Parliamentary Budget Officer under subsection
64MA(5)’. Subsection 64MA(5) only refers to costings of a ‘designated Parliamentary
party’ and as noted in footnote two of this Digest, ‘designated Parliamentary
party’ means ‘a political party at least 5 members of which were
members of the Parliament of the Commonwealth immediately before the caretaker
period’. While subsection 64MA(2) allows the Parliamentary Budget Officer to
treat two or more parliamentary parties as a single designated parliamentary
party should the parties choose to, the proposed addition to include individual
minor parties as an addendum to the post-election report does not appear to
fall within the ambit of sections 64MA and 64MAA of the Parliamentary Service
Act.
[20]. Parliamentary
Budget Office implementation of recommendations: report of the independent
review panel - March 2017, op. cit., p. 2.
[21]. Senate
Standing Committee for the Selection of Bills, Report,
15, 2018, The Senate, Canberra, 6 December 2018, p. 4.
[22]. Parliamentary
Service Act, subsection 64T(1).
[23]. Explanatory
Memorandum, Parliamentary Service Amendment (Post-election Report) Bill
2018, p. 1.
[24]. Parliamentary
Budget Office review 2016–17: report of the independent review panel,
op. cit., pp. 105–6.
[25]. Ibid.,
p. 41.
[26]. S
Davidson, ‘Latest PBO costings won't hold any parties to account’,
The Conversation, 5 August 2016, p. 1. Professor Davidson is Professor
of Institutional Economics at RMIT and a fellow with the Institute of Public
Affairs.
[27]. Ibid.,
pp. 1–2.
[28]. Explanatory
Memorandum, Parliamentary Service Amendment (Post-election Report) Bill
2018, p. 1.
[29]. Senate
Finance and Public Administration Legislation Committee, Official
committee Hansard, 22 May 2017, p. 47.
[30]. Parliamentary
Budget Office review 2016–17: report of the independent review panel,
op. cit., p. 45.
[31]. Ibid.,
p. 94; Australian Government, Agency
resourcing: budget paper no. 4, 2018–19, p. 33.
[32]. The
Statement of Compatibility with Human Rights can be found at page 2 of the
Explanatory Memorandum to the Bill.
[33]. Explanatory
Memorandum, Parliamentary Service Amendment (Post-election Report) Bill
2018, p. 4.
[34]. Ibid.,
p. 1.
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