Remuneration Tribunal Act 1973

Holders of public offices. All persons whose remuneration or recreation leave entitlements are determined by the Tribunal, including: Departmental Secretaries, the Australian Public Service Commissioner, principal executive office holders (listed in s 3(1)), and many other office holders under Commonwealth and Territory law.

Members of the Tribunal. Three part-time members appointed by the Governor-General for up to five years (section 4). The President chairs proceedings and has casting votes. Members are subject to conflict-of-interest disclosure obligations under section 4B.

Commonwealth agencies and employing bodies. Must pay remuneration in accordance with Tribunal determinations. Where the Tribunal has determined bands of remuneration for principal executive offices, the relevant employing body must keep remuneration within those bands.

Members of Parliament. Indirectly affected because the Tribunal determines the remuneration for MPs and Senators (though the Act does not allow the Tribunal to set Parliamentary salaries without Parliament's approval; s 44(iv) of the Constitution affects who can hold public offices while being a Member).

Any person seeking Parliamentary eligibility. If a person holds an office for which remuneration is set by the Remuneration Tribunal, that remuneration is relevant to whether the office constitutes an "office of profit under the Crown" under s 44(iv) of the Constitution, which would disqualify the person from being a Member of Parliament while holding that office.

Tribunal inquiry obligations (section 7(3)). The Tribunal must, from time to time as provided by Part II, inquire into and determine the remuneration for holders of public offices. This is a standing obligation.

Conflict-of-interest disclosure (section 4B). Tribunal members must disclose in writing to the President (or, for the President, to the Minister) any interest that could conflict with the proper performance of their functions. A member with such an interest may not continue to take part unless the President (or Minister, for the President) consents in writing.

Reporting obligations (Part III). Introduced later (added to the Act after original enactment), Part III requires reporting of remuneration paid to senior executives of Commonwealth entities and relevant bodies within a specified publication period after each reporting period (section 16C).

Ministerial powers to extend Tribunal jurisdiction (sections 3, 3A, 3B). The Minister may: notify the President in writing to specify Territory offices to which Part II applies; declare an office or appointment to be a principal executive office; and declare the employing body for a principal executive office.

Tribunal discretion in determining remuneration (section 7). The Tribunal may determine remuneration at the same level as another office (section 7(3B)), set a class-wide determination (section 7(3A)), determine recreation leave entitlements (section 7(3AA)), specify who must approve recreation leave (section 7(3AD)), and make recommendations on principal executive office matters (section 7(3E)).

Inquiry-and-determination structure (sections 7-8). The Tribunal may inquire into ancillary matters significantly related to the primary inquiry, and may either determine or report on those matters (section 7(4)). The Minister may also request the Tribunal to inquire into and determine or report on specific matters by written notice (section 7(4)(b)).

Recoverable payments (sections 16A-16B). If the Commonwealth makes a payment purportedly as a benefit under this Act without power to do so, the relevant amount is a debt owed by the recipient to the Commonwealth and may be recovered by the accountable authority of the relevant Commonwealth entity. The Commonwealth may also recover overpayments by deduction from future benefits (unless the recipient is a Justice or Judge).

The Act does not create criminal offences. The primary enforcement mechanism for non-compliance with Tribunal determinations is the obligation on the Commonwealth and employing bodies to pay in accordance with determinations, with recovery provisions under sections 16A-16B for overpayments.

Section 17 provides a general regulation-making power for the Governor-General.

Inquiry initiation. The Tribunal initiates inquiries based on its standing obligation under section 7(3) and in response to Ministerial requests under section 7(4)(b).

Determination process. The Tribunal holds inquiries and makes determinations. Parties (including affected office holders and their employing bodies) may appear before the Tribunal. Determinations bind the Commonwealth from the date specified in the determination.

Classification structure for principal executive offices (section 5(2A)). The Tribunal may, from time to time, determine a classification structure. The Tribunal must have regard to the superannuation entitlements of the holders of principal executive offices in setting remuneration bands (section 7(3F)).

Reporting cycle (Part III, section 16C). The applicable publication period for remuneration reporting is four months after the end of each reporting period (or a lesser period prescribed by Ministerial instrument). Reports must be publicly available within this period (section 16C(8)).

Constitution s 44(iv). Section 44(iv) disqualifies a person who holds "any office of profit under the Crown" from being chosen or sitting as a Member of Parliament. In Re Nash [No 2] [2017] HCA 52, the High Court confirmed that s 7 of the Remuneration Tribunal Act is relevant to whether a position is an "office of profit under the Crown": Ms Hollie Hughes's appointment to the AAT (whose members receive remuneration determined by the Tribunal under s 7) was found to constitute such an office, disqualifying her from being returned to the Senate while holding the position.

Public Service Act 1999 (Cth). The Australian Public Service Commissioner is defined as the Commissioner appointed under the Public Service Act. Departmental Secretaries are persons appointed under the Public Service Act. These connections link the Remuneration Tribunal's determinations to APS employment.

Public Governance, Performance and Accountability Act 2013 (PGPA Act). Sections 16A-16B of the Remuneration Tribunal Act use the PGPA Act definitions of accountable authority and non-corporate Commonwealth entity for the recovery of overpayments.

Acts referenced in the public office definition. The Remuneration Tribunal's jurisdiction depends on whether an office is established by or under a Commonwealth Act. This means the Tribunal's coverage extends to every statutory body created by Commonwealth legislation whose officers are not covered by the APS employment framework.

State and Territory laws for ACT offices (section 3(3)). For the purposes of Part II, references to an office include the office of member of the Australian Capital Territory Assembly and related offices, and offices in connection with that Assembly that can only be held by a member.

The constitutional dimension: office of profit. Re Nash [No 2] makes clear that holding an office for which remuneration is set by the Remuneration Tribunal can disqualify a person from Parliamentary membership under s 44(iv) of the Constitution. Anyone moving between Parliamentary candidacy and senior Commonwealth appointments (including AAT membership, statutory authority positions, and principal executive offices) must check whether their current position is an "office of profit under the Crown."

Part-time and ex-officio positions are not automatically excluded. The definition of public office in section 3(4) does not limit coverage to full-time positions. Part-time board members of Commonwealth statutory bodies may have remuneration set by the Tribunal. However, the "office of profit" question under s 44(iv) of the Constitution depends on whether the position is actually remunerated, not just covered by the Tribunal.

Employing body declarations change liability. Where the Minister declares an employing body for a principal executive office under section 3B, that body (rather than the relevant Commonwealth department or agency) becomes responsible for employment obligations under the Tribunal's determinations.

Classification structure updates affect multiple positions. Changes to the classification structure for principal executive offices under section 5(2A) may simultaneously affect remuneration bands for many positions. An employing body that is unaware of an updated classification structure may inadvertently pay outside the determined band.

Reserve Bank Governor appointment. The Governor of the Reserve Bank is a principal executive office listed in section 3(1)(j). The Remuneration Tribunal sets the classification and remuneration band for this position. The Reserve Bank Board, as employing body, must pay within that band. A newly appointed Governor must also satisfy s 44(iv) of the Constitution before serving simultaneously in any Parliamentary role.

APS Commissioner leave entitlements. The Australian Public Service Commissioner holds an office for which recreation leave entitlements are determined by the Remuneration Tribunal under section 7(3AA). The Commissioner may take recreation leave only with the approval of the person or body specified in the Tribunal's determination. If no person or body is specified, the Tribunal may make a further determination specifying who can approve leave (section 7(3AD)).

Overpayment recovery. A Commonwealth entity mistakenly pays a principal executive office holder an amount exceeding the Tribunal-determined band. Under section 16A, the amount is a debt due to the Commonwealth. The accountable authority of the non-corporate Commonwealth entity responsible for making the payment may recover the amount in a court of competent jurisdiction, or by deduction from future benefits if the recipient is still receiving them.

Parliamentary candidacy and AAT appointment. Following Re Nash [No 2], a person who has been nominated as a candidate for a Federal election but not yet declared elected must resign from any AAT appointment before nomination, because the AAT appointment generates remuneration determined under section 7 of the Remuneration Tribunal Act and therefore constitutes an "office of profit under the Crown" for s 44(iv) purposes.