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When does an office fall within the determinative jurisdiction of the Tribunal?
The Tribunal is required to determine remuneration for offices that meet the definition of "public office" in sub-section 3(4) of the Remuneration Tribunal Act 1973 (the Act) along with a range of other offices and appointments such as Departmental Secretaries, Principal Executive Offices and Members of Parliament. All offices established by a Commonwealth law (also known as statutory offices) and appointments made under a Commonwealth law are ‘public offices’ unless the relevant legislation provides otherwise. Legislation that establishes the office, board or committee will generally indicate how remuneration is to be determined. It may be necessary for administering agencies to seek legal advice on whether an office is in the Tribunal's determinative jurisdiction.
Some offices that are not automatically in the Tribunal's jurisdiction (because they are not created in legislation) can be placed in the Tribunal's jurisdiction. These are most commonly appointments made by the Governor-General or a Minister of State.
This process is commonly known as ‘referral-in’. Referral-in occurs when the Minister responsible for the Tribunal (the Minister Assisting the Prime Minister for the Public Service) writes to the Tribunal President specifying that the Tribunal must determine remuneration for that office. This would usually occur as the result of a request to that Minister from the Minister with portfolio responsibility for the office.
The Tribunal does not determine its own remuneration, that is a matter for Government.
What are the factors typically considered when deciding whether to refer a non-statutory office or appointment into the Tribunal’s jurisdiction?
Factors that might be considered include:
- the desirability of having remuneration determined by an experienced, independent authority;
- whether the office will be established for a short or a long time; and
- the significance of the role and responsibilities of the office.
If an office is in the Tribunal’s jurisdiction, does the Tribunal have to determine a specific level of remuneration?
Yes, noting different arrangements apply in respect of Principal Executive Offices (PEOs) – see the PEO page on the Tribunal’s website for more information.
In order to have the Tribunal make a determination for an office, a submission must be made to the Tribunal.
If an office in the Tribunal’s jurisdiction is abolished, should the Tribunal be advised?
Yes, the responsible Department or agency should advise the Tribunal at enquiry [at] remtribunal.gov.au as soon as possible so that redundant entries may be removed from the relevant determination(s).
What should an acting appointee be paid?
Generally, the Tribunal has no authority in relation to the remuneration of acting appointees.
Section 33A of the Acts Interpretation Act 1901 provides that the person or body who has the power to appoint a person to act in a particular office also has the power to determine the acting appointee's remuneration and allowances unless the enabling legislation (i.e. the Act establishing the office) provides otherwise.
Departments/agencies may need to seek their own legal advice regarding their particular circumstances.
Is the Tribunal involved in the appointment of office holders?
No. The Tribunal determines or advises on remuneration for a public office. Questions on appointment procedures for offices considered by Cabinet should be referred to the Cabinet Secretariat in the Department of the Prime Minister and Cabinet.
Is there an obligation to advise the Tribunal of a new appointment to an office or the resignation of an office holder?
There is no obligation to advise the Tribunal. However, we appreciate such advice as it ensures that correspondence to office holders is correctly addressed and, in the case of a resignation, that any person-specific clauses are removed from the relevant determination.
Where a new Principal Executive Office (PEO) appointment is made, the Tribunal must be advised on the remuneration determined by the employing body for that office holder within 4 weeks of that determination being made.
What information needs to be included in a remuneration submission for an office?
Comprehensive Submission Guidelines are available on the Tribunal’s website.
The guidelines identify the information and data that the Tribunal expects to be included in a submission. Please note that the Tribunal also expects the submission to include an indication of support from the responsible Minister. If it doesn’t, the Tribunal will likely write to the relevant Minister seeking his or her views on the remuneration for the office.
You may also contact the Tribunal’s Secretariat for advice on your particular submission.
Can we make a submission to the Tribunal before the legislation establishing an office has received Royal Assent?
Yes. The Tribunal may agree to provide indicative advice on remuneration pending passage of the legislation. Once the legislation has passed, the relevant Department should advise the Tribunal’s Secretariat of that fact and of any amendments to the legislation during its passage. The Tribunal will then issue a formal determination.
When do changes to a determination, such as a remuneration increase, take effect?
For offices other than Judicial Offices each Tribunal determination comes into effect from a date specified in the determination. Where no date is specified, the date of effect is the day after the determination has been registered with the Federal Register of Legislation.
A remuneration increase for holders of Judicial Office cannot be passed on until after the disallowance period of the relevant determination has passed. In both the House of Representatives and the Senate, the disallowance period is 15 parliamentary sitting days after the determination has been tabled.
These arrangements are necessary because sub-section 72(iii) of the Constitution expressly prohibits diminution of a Judge's remuneration while the Judge remains in office - if the increase was put into effect immediately, the Parliament's right to disallow the determination would effectively be removed.
After the disallowance period has passed, any remuneration increase is then paid to Judicial Officers, with any necessary arrears paid from the date the Tribunal determined as the effective date of the increase.