91Decision-maker

91  Decision-maker

Decision-maker needs the power to grant the underlying approvals

 (1) The person who decides a request for assistance (the decision-maker) must be a person who holds the power to approve any expenditure and grant any indemnities necessary to provide that assistance.

Note: Providing legal assistance involves approving expenditure, and, in some cases, granting indemnities. It will be necessary to consider who has the power elsewhere at law to do these things in each case.

 For a non-corporate Commonwealth entity, the authority to spend may stem from the executive power. This might be exercised by the accountable authority (see, for example, section 23 of the Public Governance, Performance and Accountability Act 2013), or, in some instances, a Minister in the relevant portfolio.

 For a non-corporate Commonwealth entity, the authority to approve indemnities might be found in section 60 of the Public Governance, Performance and Accountability Act 2013 (which is held by the Finance Minister, but may be delegated to certain persons under section 107 of that Act).

Decision-maker is usually the accountable authority or Minister

 (2) Unless subsection (1) requires otherwise, the decision-maker must be the following person:

 (a) for requests involving a current or former employee, or a former statutory office-holder or accountable authority of an entity—the current accountable authority of the relevant entity;

 (b) for a current statutory office-holder or accountable authority—a Minister in the relevant portfolio;

 (c) for an employee mentioned in subparagraph 89(b)(i)—the Minister with responsibility for the Members of Parliament (Staff) Act 1984, subject to the condition that the Minister must consult with the Attorney‑General before making a decision.

Substitute when ordinary decision-maker cannot act

 (3) If the decision-maker mentioned in subsection (2):

 (a) has a conflict of interest; or

 (b) would not be an appropriate person to consider a particular request for any other reason; or

 (c) does not have the power to approve the relevant expenditure or grant the relevant indemnity (see subsection (1)); 

the responsible entity must refer the request to a person mentioned in subsection (4).

 (4) Where subsection (3) applies, then, subject to subsection (1), the request must be referred to:

 (a) a relevant portfolio Minister, if the decision-maker would otherwise have been an accountable authority; or

 (b) the Attorney-General or a person chosen by the Attorney-General, if the decision-maker would otherwise have been a Minister.