Parliamentary Business Resources (Office Holder) Determination 2017

This legislative instrument, the Parliamentary Business Resources (Office Holder) Determination 2017, is a determination made under section 7 of the Parliamentary Business Resources Act 2017 (the Act). Its sole operative function is to identify which members of the Australian Parliament are “office holders” for the purposes of the Act. By specifying the positions and functions in Schedule 1, the Determination triggers access for those members to additional parliamentary business resources - including extra staff, travel entitlements, office accommodation, and other support - that are not available to ordinary backbenchers. The Act itself defines “office holder” by reference to this Determination: a member is an office holder if the member holds a position specified in Schedule 1, or performs a function of a kind specified in Schedule 1 (s 5 of the Determination). The Determination therefore acts as the gateway that distinguishes between resource allocations for standard members and for members who hold leadership, opposition, whips, committee, or presiding officer roles. The list in Schedule 1 covers 13 categories: Leader and Deputy Leader of the Opposition, Shadow Ministers, leaders of minority parties, party whips (with a minimum party size of five in the relevant House), the Second Deputy Speaker, members of the Speaker’s Panel, Temporary Chairs of Committees, and chairs or deputy chairs of properly constituted parliamentary committees (including joint and single-House committees). The Determination was originally registered on 20 December 2017 and commenced on 1 January 2018. It was amended by the Parliamentary Business Resources (Office Holder) Amendment Determination (No. 1) 2018, which replaced the entire Schedule 1 from 17 September 2018. The amendment is likely to have refined the list - for example, clarifying the definition of whips or adding new roles - but the instrument itself does not explain the rationale. The endnotes confirm that the 2018 amendment substituted the whole Schedule. No further amendments have been made. In practical terms, the Determination is a short but critical piece of delegated legislation. Without it, the Act’s resource allocation rules would lack definition of who qualifies for enhanced entitlements. The Determination does not prescribe the quantum of resources; that is left to other determinations under the Act (such as those on work expenses, travel, and office facilities). Instead, it sets the threshold for eligibility.

The central concept is that of an “office holder”. Under the Act, a “member” is broadly defined (a senator or member of the House of Representatives). An “office holder” is a subset: a member who holds a position or performs a function of a kind determined by the Minister under section 7. The Determination executes that delegation. The key machinery is the list in Schedule 1. However, an “office holder” is not the same as a “minister” or “parliamentary secretary”. Those categories are separately defined in the Act and are dealt with under other provisions. The Determination covers only opposition office holders, presiding officers, committee chairs, and party whips. Notably, it includes “Leader of a minority party” - a term that borrows its definition from the Parliamentary Business Resources Regulations 2017. That cross-reference means that the scope of this category depends on the regulations, not the Determination itself. A “minority party” is not defined in the Determination; the Act says it has the same meaning as in the regulations. This creates a layered legislative scheme: the primary Act, the regulations (which define minority party), and this Determination (which lists positions and functions). Another important concept is that a member can become an office holder not only by holding a named position but also “performs a function of a kind specified in Schedule 1”. For instance, item 13 covers “Chair or Deputy Chair of a properly constituted Parliamentary Committee”. If a member temporarily acts as chair of a committee, they may be performing that function even if not formally appointed. However, the phrase “properly constituted” introduces some discretion: it implies a committee established under a standing order, resolution, or Act, and excludes informal or ad hoc groups. The Determination also uses the term “Shadow Minister” without further definition. This is an unofficial role; the Act does not define it. In practice, the Leader of the Opposition determines who is a Shadow Minister. The Determination defers to that political determination. Similarly, “Party Whip” is not defined, but the condition that the party must have at least five members in the relevant House sets an objective size threshold. The note to item 9 confirms that a party may have multiple whips for a single House. The Determination also includes the Second Deputy Speaker and members of the Speaker’s Panel (House of Representatives) and Temporary Chairs of Committees (Senate). These are procedural roles in the chamber. The inclusion of committee chairs and deputy chairs extends office-holder status to members who chair parliamentary committees, including joint committees. This is a broad category that could include many members, given the large number of committees. In summary, the Determination creates a closed set of criteria. It does not confer discretionary power - a member either fits a description or does not. The main concepts are eligibility triggers, not ongoing duties.

The Determination directly affects any member of the Australian Parliament who holds a position listed in Schedule 1 or who performs a function listed there. Those members become entitled to additional resources under the Act, which include higher caps on travel, additional staff, more generous office budgets, and in some cases separate entitlements for staff travel or family reunion travel. Currently, there are 151 members in the House of Representatives and 76 senators, but only a subset are office holders. The list includes roughly: the Leader and Deputy Leader of the Opposition (2), the Senate equivalents (2), Managers of Opposition Business (2), Shadow Ministers (which can be up to 30 or more), leaders of minority parties (usually a handful of minor party senators and crossbenchers), party whips for each party with at least five members in a House (at least 2 per major party per House, plus whips for minor parties that meet the threshold), the Second Deputy Speaker, members of the Speaker’s Panel (around 4-8), Temporary Chairs of Committees in the Senate (typically all senators who are not ministers or opposition whips), and chairs and deputy chairs of all parliamentary committees (potentially 40-50 or more positions). The total number of office holders can exceed 100, depending on how many committee roles are filled by the same member. Members who hold multiple designated positions (e.g., a Shadow Minister who is also a committee chair) are still an office holder - the Determination does not create double entitlements, but the Act’s resource caps apply on a per-member basis. The Determination also indirectly affects the staff of those office holders (more resources means more staff), the Department of Finance (which administers entitlements and must verify office-holder status), and the taxpayer (who funds the additional resources). The decision to expand the Schedule in 2018 likely added new categories, increasing the number of office holders and thus the fiscal cost. The Determination does not affect ordinary backbenchers, who are not office holders and must operate under the standard resource limits set out in other determinations. It also does not affect ministers or parliamentary secretaries, who are office holders under separate provisions of the Act (those roles are not listed in Schedule 1 because the Act already designates them as office holders in its own definition). However, the Determination affects the distribution of resources within parties: whips and Shadow Ministers receive additional staff and allowances, which can influence internal party dynamics. For minority parties, the inclusion of their leaders as office holders provides additional resources that might not otherwise be available, which could affect their ability to scrutinise government and represent constituents. In economic terms, the Determination is a tool for rationing public resources among members. It creates a classification that confers benefits on some while denying them to others. The criteria are objective but politically sensitive - being left off the list can affect a member’s ability to perform their role effectively.

The Determination itself imposes no duties on members. It is purely definitional. However, by classifying a member as an office holder, it confers certain rights and obligations under the Act. The primary right is access to additional parliamentary business resources, as set out in other instruments made under the Act: the Parliamentary Business Resources (Work Expenses) Determination, the Parliamentary Business Resources (Travel) Determination, and the Parliamentary Business Resources (Office Facilities) Determination. For example, office holders typically have higher annual work expenses caps, can use domestic air travel at public expense more freely, and can employ additional staff under the Members of Parliament (Staff) Act 1984. The right to these resources is conditional on the resources being used for “parliamentary business” as defined in the Act. The Act imposes duties on all members, including office holders: they must not use resources for personal or party political purposes (other than in limited circumstances for party business). Office holders also have specific reporting obligations. Under the Act, the Minister must table reports on the use of resources by office holders (and other members). Office holders may be required to certify that their resource use complies with the Act and determinations. The Act also imposes a duty to repay amounts for unauthorised use. The Determination does not create those duties, but it is a prerequisite for triggering them for the affected class. For a member who holds a position that is not listed, the Determination acts as a constraint: they cannot claim the enhanced resources. This can create tension if a member performs a de facto leadership role but does not hold a listed position. For example, a “Shadow Parliamentary Secretary” is not mentioned - only “Shadow Minister”. The Determination thus defines the limits of entitlement. It also creates a right of review? The Act does not appear to provide a statutory right to review the classification; it is a matter of fact whether the member holds the position. If there is a dispute, it would likely be resolved internally by the Department of Finance, possibly leading to administrative law remedies (judicial review) if the decision is unreasonable. In practice, the Department relies on official records (who is listed as Leader of the Opposition, who is sworn as a Shadow Minister by the Leader of the Opposition, etc.). The Determination imposes a duty on the Department to correctly identify office holders. For the member, there is a duty to inform the Department if they cease to hold an office-holder position, because resources must cease. The Act makes it an offence to receive resources to which a member is not entitled. So, a member who continues claiming office-holder resources after losing a shadow ministry could face penalties.

The Determination itself contains no penalty provisions. Penalties and enforcement mechanisms are found in the primary Act, the Parliamentary Business Resources Act 2017. Under that Act, it is a criminal offence for a member to use parliamentary business resources for a purpose not authorised by the Act or a determination. The maximum penalty is imprisonment for two years (s 24 of the Act). Additionally, a member who receives resources to which they are not entitled - for example, because they are not an office holder but claimed office-holder-level travel - may be required to repay the amount, and the Act includes a civil penalty regime. The Act empowers the Minister to issue guidelines and the Department to recover debts. The Determination plays a role in enforcement because it sets the boundaries of the class. If a member incorrectly assumes they are an office holder and claims enhanced resources, they may face investigation. Conversely, if the Department wrongly denies office-holder status to a member who does hold a listed position, the member could challenge that as a breach of the Act. There is no independent enforcement body created by the Determination; the Auditor-General and the Department of Finance are the usual overseers. The Act provides for the Minister to table periodic reports on resource use, and those reports are public. This creates a measure of transparency. However, the Determination’s categories can be ambiguous. For instance, the phrase “performs a function of a kind specified” (s 5) means that a member not formally appointed as a committee chair but acting in that role could be an office holder. If the Department disagrees about whether the function is being performed, there is potential for dispute. Enforcement in such cases would require a factual assessment. The legislation history shows no amendment to the Determination that would affect penalties. The 2018 amendment only changed Schedule 1, leaving the rest of the instrument unchanged. In practice, enforcement risk for members is low unless there is deliberate misuse. The more common compliance issue arises from changes in office-holder status (e.g., after a reshuffle) and failing to adjust claims accordingly. The Act’s penalty provisions apply equally to all members, but office holders face higher stakes because their entitlement caps are larger, so any misuse could involve larger sums. No litigation history is apparent from the source. The absence of recorded court cases suggests that disputes are resolved administratively or that the definitions are sufficiently clear to avoid litigation. However, the 2018 amendment may have been a response to unintended coverage or gaps. In economic terms, enforcement costs are borne by the taxpayer, and the penalty regime is designed to deter overclaiming.

This Determination operates as a piece of delegated legislation under the Parliamentary Business Resources Act 2017. Its interaction with other laws is primarily horizontal, within the same legislative package. The Act is the parent statute, and this Determination is one of several made under it. The Act itself defines “office holder” in section 7 as “a member who holds a position, or performs a function, of a kind determined under this section”. So without this Determination, the term “office holder” in the Act would have no content. The Determination fills that gap. The Act also defines “minority party” by reference to the Parliamentary Business Resources Regulations 2017. That definition is used in the Determination’s Schedule 1 item 8: “Leader of a minority party”. Therefore, the Determination depends on the regulations for this category. If the regulations change the definition of “minority party”, the scope of office holder changes automatically. The Determination also interacts with other determinations under the Act, such as the Work Expenses Determination, the Travel Determination, and the Office Facilities Determination. Those instruments often distinguish between “office holders” and “other members”, granting different caps or conditions. For example, the Travel Determination might provide that an office holder can claim business class airfares while other members can only claim economy. The Determination thus serves as the eligibility filter for those benefits. It also interacts with the Members of Parliament (Staff) Act 1984. That Act governs the employment of staff for members. The level of staffing is linked to office-holder status. The Department of Finance administers both regimes and will cross-check the Determination. The Determination does not interact directly with state laws, as it concerns federal parliamentary resources. It may also interact with the Fair Work Act 2009 indirectly if staff of office holders are employees, but that is through the staff Act. There is no express interaction with the Constitution. However, the power to determine office holders is incidental to the Commonwealth’s power over its own parliamentary processes (s 51(xxxix) and s 61). The Determination is made by the Minister, who is the Special Minister of State, under delegation from the Parliament. Finally, the Determination interacts with the Legislation Act 2003 because it is a legislative instrument. It is registered on the Federal Register of Legislation, subject to disallowance by Parliament, and must be compiled and published. The endnotes confirm that section 48D of the Legislation Act operated to repeal the original section 2 (commencement) upon commencement. This is a standard interaction.

The Determination has been amended once since its commencement. The original instrument was registered on 20 December 2017 as F2017L01690 and came into force on 1 January 2018. It contained the initial Schedule 1 listing office holders. The Parliamentary Business Resources (Office Holder) Amendment Determination (No. 1) 2018 was registered on 14 September 2018 as F2018L01285 and commenced on 17 September 2018. That amendment replaced the entire Schedule 1. The effect was to substitute a new list of positions and functions. The amendment history table in endnote 4 states: “Schedule 1 … rs F2018L01285”. That is the only amendment. The original section 2 (commencement) was repealed by operation of the Legislation Act 2003 (s 48D), which automatically repeals commencement provisions once the instrument is in force. That repeal is noted as “rep LA s 48D” in the amendment history for section 2. The compiled version available today includes the Schedule 1 as substituted, and the commencement provision is no longer present. The 2018 amendment likely resulted from a review of the original list, possibly to add clarity or include additional roles. For example, the original 2017 version may not have included “Second Deputy Speaker” or “Member of the Speaker’s Panel”, or it may have had different wording for committee chairs. Without access to the original text, we cannot be certain of the exact changes. However, the fact that the whole Schedule was replaced suggests a comprehensive revision. The amendment also would have affected who qualifies as an office holder from 17 September 2018. Members who became office holders as a result of the amendment would have gained additional resource entitlements from that date. The amendment did not make any changes to the body of the Determination (sections 1-5). The definitions and authority remain unchanged. This indicates that the conceptual framework of “member holds position or performs function” was considered satisfactory; only the content of the list needed updating. Since 2018, there have been no further amendments. The Determination as compiled includes editorial changes and notes. The endnotes confirm that any editorial changes (under s 15W of the Legislation Act 2003) would not alter the effect. The amendment history is short, suggesting that the categories of office holders are relatively stable and that political changes (e.g., creation of new parliamentary committees) are accommodated by existing broad wording (e.g., “Chair or Deputy Chair of a properly constituted Parliamentary Committee”). The lack of frequent amendment also indicates that the Determination is not a tool for fine-tuning resource distribution; rather, it is a fixed baseline. The 2018 amendment may have been a one-off correction or expansion. Any future change would require a new amending instrument.

The instrument itself, its endnotes, and the parent Act do not record any litigation history. There is no reference to court cases, tribunal decisions, or legal challenges. This is not surprising for a definitional determination. The categories are fairly clear, and disputes about office-holder status are likely resolved internally by the Department of Finance or through ministerial determination rather than by resort to courts. However, it is possible that litigation could arise indirectly. For instance, if a member is denied resources on the basis that they are not an office holder, they might seek judicial review of the Department’s decision. Such a challenge would test whether the Determination correctly applies to the member’s position. But no such reported case is mentioned in the source. The absence of litigation can also be attributed to the political nature of the roles: party leaders control who holds shadow ministries and whips, so internal party processes are more likely to sort out disputes. Additionally, the Determination’s reliance on formal positions (e.g., “Leader of the Opposition” is a defined constitutional position) reduces ambiguity. For positions like “Shadow Minister”, the Leader of the Opposition designates the role, and the Department accepts that designation. If there were a dispute about whether someone is a “Shadow Minister” (e.g., if a Leader tries to remove a member but the member claims they still hold the role), it would be a political/legal matter unlikely to be litigated solely under this Determination. The other potential area is committee chairs: “properly constituted Parliamentary Committee” could be contested if an ad hoc committee is formed. But the Parliament usually resolves such questions through motion. The litigation history is therefore nil as far as the source reveals. This does not mean the Determination is immune from legal challenge; it is a legislative instrument and can be challenged for validity (e.g., if made beyond power). But no such challenge has occurred. The 2018 amendment may have been partly to avoid litigation by clarifying the coverage. For example, if the original list omitted “Temporary Chair of Committees”, that could have led to a claim by a senator that they were entitled to office holder status. The amendment might have closed that loophole. In an economic sense, the lack of litigation is efficient: it reduces legal costs and uncertainty. However, it also means there is no judicial gloss on the meaning of phrases like “performs a function of a kind specified”. That remains an open question.

Several subtle features of the Determination can trip up members, administrators, and advisers.

First, the critical phrase “performs a function of a kind specified in Schedule 1” creates a secondary avenue for office-holder status beyond holding a formal title. This is easily overlooked. A member who does not hold the position of “Chair of a Parliamentary Committee” but acts as chair temporarily (e.g., due to absence) could be performing that function. If the Department does not recognise that, the member may be underentitled. Conversely, a member who assumes they are an office holder because they sometimes chair a committee not properly constituted (i.e., not established under standing orders) might overclaim.

Second, the definition of “minority party” is not in this instrument. It is in the Parliamentary Business Resources Regulations 2017. A member who thinks they are a leader of a minority party (e.g., a single independent with a party name) may not meet the definition in the regulations. The regulations may require a party to have been registered for a certain period or have a minimum number of members. This cross-referencing increases the compliance burden: one must check two instruments.

Third, the whip provision (item 9) imposes a party size threshold: “at least 5 members in the relevant House”. For a minor party with 4 senators, the party whip (however described) is not an office holder. This is a clear cut-off, but it may surprise smaller parties that have a whip role. The note says there may be more than one whip per party per House, but only if the party meets the threshold. A party with 5 members could have multiple whips, and all would be office holders. The cap is per party, not per whip.

Fourth, the list includes “Shadow Minister” but not “Shadow Assistant Minister” or “Shadow Parliamentary Secretary”. The term “Shadow Minister” is not defined. It is a convention. If the opposition designates a member as “Shadow Parliamentary Secretary” that member is not an office holder under this instrument. This creates a two-tier shadow ministry: those who get extra resources (Shadow Ministers) and those who do not. However, if the “Shadow Parliamentary Secretary” actually performs the function of a Shadow Minister (e.g., participates in shadow cabinet), they might argue they are performing a function of a kind specified. That is risky.

Fifth, the committee chair/deputy chair category (item 13) covers only “properly constituted Parliamentary Committees”. This excludes informal groups, caucus committees, or working groups. It also excludes committees of the whole House (which are not committees in this sense). It includes select, standing, and statutory committees, and both joint and single-House committees. Note that chairs of parliamentary friendship groups or portfolio committees within parties are not included.

Compliance with this Determination is not a standalone task; it is part of broader compliance with the Parliamentary Business Resources Act 2017 and its associated instruments. For a member, the key step is to determine correctly whether they are an office holder. That requires checking Schedule 1 against the member’s current positions and functions. A member should maintain a record of their official roles: letters of appointment as Shadow Minister, minutes of party meetings electing whips, resolution of appointment as committee chair, etc. If a member holds a listed position (e.g., Deputy Leader of the Opposition), compliance is straightforward: they are an office holder. If they hold a role not listed (e.g., Deputy Whip), they are not. But if they occasionally act in a listed role (e.g., as Temporary Chair of Committees), they should note the dates and ensure they only claim higher resources for those periods. The Department of Finance will rely on official notifications. The party whips and the Clerk of the Parliament usually notify the Department of changes. But a member should proactively inform the Department if they believe their status has changed, especially if the change is not formally gazetted (e.g., Shadow Minister reshuffle). For administrators, compliance means maintaining an up-to-date register of office holders. The Department should cross-check with parliamentary sources (e.g., House of Representatives Practice, Senate briefs). For the 2018 amendment, the Department had to update its systems on 17 September 2018 to reflect the new Schedule. Members who became new office holders on that date (e.g., newly included committee chairs) were entitled to increased resources from that date retroactively if the amendment was clear. The Department should have communicated the change. For members, the safest approach is to assume they are not an office holder unless they have written confirmation from the Department. Claiming resources based on a self-assessment of “performing a function” is risky. The Act allows recovery and penalties. If in doubt, a member should seek a determination from the Minister or the Department. There is no formal application process in the Determination, but a member can request a written advice. The Determination itself imposes no reporting or audit obligations. However, the Act requires the Minister to table reports on resource use, which will include data on how many office holders claimed what. So indirect compliance is enforced through transparency. For legal advisers, the key is to map the client’s roles against each item of Schedule 1. Careful attention to the regulations’ definition of “minority party” is needed. If a client is a committee chair of a “properly constituted” committee, ensure the committee was established by the House or by statute. A committee established by a resolution of a political party is not included. For a whip, confirm the party’s membership in the relevant House is at least five. If the party falls below five (e.g., due to resignation or death), whip status ceases immediately, and so does office-holder entitlement. Finally, keep a copy of the compiled Determination as at the relevant date. The endnotes contain the amendment history, which can be used to verify which version applied. The Department of Finance’s website and the Federal Register of Legislation are authoritative sources. The Determination is short; reading it fully is straightforward. The main compliance risk is failing to realise that “office holder” status can change without a formal instrument - for example, when a committee is dissolved or a party loses a member. Members should review their status at least after each electoral cycle or after any leadership change.