Division 3Determinations by employing bodies for principal executive offices

An Act to establish a tribunal in relation to the remuneration and allowances, and recreation leave entitlements, of the holders of certain public and other offices, and for related purposes ## Part I—Preliminary #### 1 Short title This Act may be cited as the Remuneration Tribunal Act 1973. #### 2 Commencement This Act shall come into operation on the day on which it receives the Royal Assent. ## Part II—Remuneration etc. for certain offices and appointments ### Division 1—Preliminary #### 3 Interpretation (1) In this Part, unless the contrary intention appears: > Aboriginal Corporation of the National Aboriginal Conference means the corporation of that name registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006. > ACT office means: (a) an office or appointment specified in any of paragraphs (fc) to (fh) of subsection 3(4), as modified by regulations in force under the A.C.T. Self‑Government (Consequential Provisions) Act 1988; or (b) an office or appointment specified in subsection 73(1) of the Australian Capital Territory (Self‑Government) Act 1988. > allowance includes, but is not limited to, an annual allowance and a travelling allowance. > Australian Public Service Commissioner means the Australian Public Service Commissioner appointed under the Public Service Act 1999. > Commonwealth higher education institution means a higher education institution established by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory or the Northern Territory). > Departmental Secretary means a Secretary of a Department appointed under the Public Service Act 1999. > employing body, in relation to a principal executive office for which the Minister has, under section 3B, declared a person, authority or body to be the employing body, means that person, authority or body. > enactment has the same meaning as in section 3 of the Australian Capital Territory (Self‑Government) Act 1988. > executive education office means an office of the Vice‑Chancellor, or Deputy Vice‑Chancellor, of the Australian National University. > higher education institution means an institution that is a higher education institution within the meaning of the Employment, Education and Training Act 1988 (other than an institution declared by the regulations not to be a higher education institution for the purposes of this Act), and includes any other institution declared by the regulations to be a higher education institution for the purposes of this Act. > member means a member of the Tribunal and includes a person appointed temporarily in the place of a member under subsection 33(4) of the Acts Interpretation Act 1901‑1973. > office includes position. > President means President of the Tribunal and includes a member appointed under section 4A. > principal executive office means any of the following offices or appointments: (a) Managing Director of the Australian Postal Corporation; (c) Chief Executive Officer of Australian Rail Track Corporation Limited; (e) Director of Aviation Safety of the Civil Aviation Safety Authority; (g) Managing Director of the Export Finance and Insurance Corporation; (j) Governor of the Reserve Bank of Australia; (k) Deputy Governor of the Reserve Bank of Australia; (m) any other office or appointment declared by the Minister under subsection 3A(1) to be a principal executive office. > public office has the meaning given by subsection (4). > public statutory corporation means a corporation established for a public purpose by a law of the Commonwealth or a law of a Territory but does not include an institution of tertiary education or a corporation established for a public purpose by a law of the Australian Capital Territory. > Tribunal means the Tribunal established by subsection 4(1). (2) A reference in this Part to remuneration shall be read as including a reference to annual allowances. (3) A reference in this Part to an office includes a reference to an office that, within the meaning of the Australian Capital Territory (Self‑Government) Act 1988, is an office of member of the Assembly or Minister and any office in or in connection with that Assembly that can be held only by a member of that Assembly. (4) In this Part, a reference to a public office is a reference to: (a) an office established by, or an appointment made under, a law of the Commonwealth (other than this Act); (b) an office established by, or an appointment made under, a law of a Territory (other than an enactment), being an office or appointment, or an office or appointment included in a class of offices or appointments, specified by the Minister, by a notice in writing given to the President, to be an office or appointment or a class of offices or appointments to which this Part is to apply; (c) an appointment made by the Governor‑General or a Minister of State otherwise than under a law of the Commonwealth or a law of a Territory, being an appointment, or an appointment included in a class of appointments, specified by the Minister, by a notice in writing given to the President, to be an appointment or a class of appointments to which this Part is to apply; (d) an office or appointment in the service or employment of a public statutory corporation, being an office or appointment that is specified by the Minister, by a notice in writing given to the President, to be a senior office or senior appointment, as the case may be, in the service or employment of the corporation to which this Part is to apply; (da) an appointment as a director of an incorporated company limited by guarantee where the interests and rights of the members in or in relation to the company are beneficially owned by the Commonwealth, being an appointment that is specified by the Minister, by a notice in writing given to the President, to be an appointment to which this Part is to apply; (e) an appointment as a director of an incorporated company all the stock or shares in the capital of which is or are beneficially owned by the Commonwealth; (f) an office or appointment in the service or employment of an incorporated company referred to in paragraph (da) or (e), being an office or appointment that is specified by the Minister, by a notice in writing given to the President, to be a senior office or senior appointment, as the case may be, in the service or employment of the company to which this Part is to apply; (fa) an office of member of the Aboriginal Corporation of the National Aboriginal Conference; (fb) an executive education office; (g) an office or appointment, or an office or appointment included in a class of offices or appointments, prescribed by the regulations for the purposes of this paragraph; but does not include a reference to any of the following offices or appointments: (j) the office of President of the Fair Work Commission; (ja) an office of member of the Legislative Assembly, of member of the Council, or of Minister of the Territory, within the meaning of the Northern Territory (Self‑Government) Act 1978; (k) an office of Departmental Secretary; (l) an office or appointment the terms and conditions of which are fixed under the Trade Representatives Act 1933; (m) an office or appointment (other than the office of Director‑General of Security) in the Australian Security Intelligence Organisation; (n) the Chief Executive Centrelink (within the meaning of the Human Services (Centrelink) Act 1997); (o) the Chief Executive Medicare (within the meaning of the Human Services (Medicare) Act 1973); (oa) the Child Support Registrar; (p) persons who are employed under section 42 of the Naval Defence Act 1910; (q) an office or appointment in the service or employment of a higher education institution; (r) an office or appointment in the Defence Force other than an appointment as: (i) Chief of the Defence Force; or (ii) Vice Chief of the Defence Force; or (iii) Chief of Navy; or (iv) Chief of Army; or (v) Chief of Air Force; (ra) a principal executive office; (s) an office or appointment in the Australian Federal Police other than an office or appointment that is specified by the Minister, by a notice in writing given to the President, to be a senior office or senior appointment, as the case may be, in the Australian Federal Police to which this Part is to apply; (t) except as provided by paragraph (d) or (f), an office or appointment in the service or employment of a public statutory corporation or of an incorporated company; (u) an office or appointment the remuneration in respect of which is required by law to be fixed by or in consultation with, or in accordance with arrangements made with, the Government of a State or of a country other than Australia; (v) an office or appointment, or an office or appointment included in a class of offices or appointments, prescribed by the regulations for the purposes of this paragraph. (5) A reference in this Part to the making of an appointment includes, unless the contrary intention appears, a reference to: (a) the making of a contract with a person for the performance of services by the person; and (b) the issuing of a Commission, or of another instrument (whether of a formal or informal nature), to a person appointing, authorizing or requesting him or her, either alone or together with another person or other persons, to hold an inquiry or perform other functions, duties or services; and the person with whom such a contract is made or to whom such a Commission or other instrument is issued shall be deemed for the purposes of this Part to be the holder of an appointment. #### 3A Principal executive offices (1) The Minister may, by writing, declare that a specified office or appointment is a principal executive office. (2) The Minister may, by writing, declare that a specified principal executive office is assigned to a specified classification within the classification structure determined by the Tribunal under subsection 5(2A). (3) A declaration made under subsection (2) as to the classification to which a principal executive office is assigned may state that the assignment of the office to the classification is a temporary assignment. If the declaration so states, the assignment ceases to be an assignment of the office to the classification at the end of the term of appointment of the person who held the office when the assignment was made. (4) If the Minister makes a declaration under subsection (2) as to the classification to which a principal executive office is assigned, the Minister may give a notice in writing to the employing body for the office fixing the remuneration within that classification that is to be the commencing remuneration for the office. (5) A notice given under subsection (4) fixing a commencing remuneration for a principal executive office may state that the remuneration so fixed is a temporary commencing remuneration. If the notice so states, that remuneration ceases to be the commencing remuneration for the office at the end of the term of appointment of the person who held the office when the notice was given. (6) For each declaration under this section, the Minister must seek the advice of the Tribunal and take that advice into account. #### 3B Employing body The Minister may, by writing, declare that a specified person, authority or body is the employing body for a specified principal executive office. #### 3C Provisions relating to declarations under sections 3A and 3B (1) This section applies to the following declarations: (a) declarations under subsection 3A(1); (b) declarations under subsection 3A(2); (c) declarations under section 3B. (2) Two or more declarations may be contained in the same instrument, whether they relate to the same principal executive office or to different principal executive offices. (3) A copy of every instrument containing a declaration or declarations is to be published in the Gazette. ### Division 2—Determinations and reports by the Remuneration Tribunal #### 4 Establishment of Remuneration Tribunal (1) For the purposes of this Part, there is hereby established a Tribunal to be known as the Remuneration Tribunal. (2) The Tribunal shall consist of three members appointed by the Governor‑General on a part‑time basis. (3) Subject to this Part, a member holds office for a period not exceeding 5 years, but is eligible for re‑appointment. (4) A person shall not be appointed as a member if he or she is: (a) a member of the Parliament; (b) a person appointed or engaged under the Public Service Act 1999; (c) the holder of a public office; (d) a Justice or Judge of a federal court or of the Supreme Court of a Territory; or (e) a person who, by virtue of an Act, has the same status as a Justice or Judge of a court referred to in paragraph (d). (5) The Governor‑General shall appoint one of the members to be the President of the Tribunal. (7) The exercise of the powers, and the performance of the functions, of the Tribunal are not affected by a vacancy in the membership of the Tribunal. (8) In this section, President does not include an acting President. #### 4A Acting President The Minister may appoint a member to act as President: (a) during a vacancy in the office of President; or (b) during any period, or during all periods, when the President is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his or her office. > Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. #### 4B Disclosure of interest by Tribunal members (1) Where the President is taking part, or is to take part, in the consideration of a matter by the Tribunal and the President has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of his or her functions in relation to the matter: (a) the President must, in writing, disclose the interest to the Minister; and (b) the President must not take part, or continue to take part, in the consideration of the matter, unless the Minister consents in writing. (2) Where a member other than the President is taking part, or is to take part, in the consideration of a matter by the Tribunal and the member has or acquires an interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions in relation to the matter: (a) the member must, in writing, disclose the interest to the President; and (b) the member must not take part, or continue to take part, in the consideration of the matter, if the President gives a direction under subsection (3). (3) Where the President becomes aware: (a) that a member is taking part, or is to take part, in the consideration of a matter by the Tribunal; and (b) that the member has, in relation to the consideration of the matter, an interest referred to in subsection (2); then, if the President considers that the member should not take part, or continue to take part, in the consideration of the matter, the President is to give a direction in writing to the member accordingly. #### 5 Functions of Tribunal (1) The functions of the Tribunal are to inquire into, and report to the Minister on, matters referred to in section 6 and to inquire into, and determine, matters referred to in section 7 (other than subsection 7(3D)), having regard to national minimum wage orders made by the Fair Work Commission. (2) An additional function of the Tribunal is to provide advice to the Australian National University and the University of Canberra in relation to terms and conditions (including remuneration and allowances) on which executive education offices in those bodies are to be held. (2A) An additional function of the Tribunal is to: (a) determine a classification structure for principal executive offices; and (b) in connection with determinations made under paragraph (a), exercise the powers referred to in subsections 7(3D), (3E) and (3F). (2B) An additional function of the Tribunal is: (a) to inquire into, and determine, matters referred to in Division 4; and (b) in connection with determinations made under that Division, to perform such other functions and exercise such other powers as are conferred on the Tribunal by that Division. (2D) An additional function of the Tribunal is to provide advice, for the purposes of the Parliamentary Service Act 1999, in relation to terms and conditions (including remuneration and allowances) for the following offices: (a) the office of Parliamentary Service Commissioner; (b) the office of Parliamentary Service Merit Protection Commissioner; (c) offices of Secretary (other than the Parliamentary Budget Officer); (d) the office of Parliamentary Librarian. (2E) The Parliamentary Business Resources Act 2017 may confer additional functions on the Tribunal. (3) In providing advice under this section in relation to the terms and conditions as to remuneration on which principal executive offices or executive education offices are to be held, the Tribunal must have regard to the superannuation entitlements of the holders of those offices. #### 6 Inquiries and reports by the Tribunal into the salaries of officers of higher education institutions (2A) The Tribunal, from time to time as provided by this Part, is to inquire into, and report to the Minister on, the rates of salaries in relation to: (a) Vice‑Chancellors, Principals and other chief executive officers of higher education institutions (other than Commonwealth higher education institutions); and (b) deputies (however described) of officers referred to in paragraph (a); that should be used as a basis for making grants in relation to recurrent expenditure in connection with those institutions, and the dates as from which those rates of salary should be so used. (3) Where the Tribunal inquires into a matter referred to in subsection (2A): (a) the Tribunal may also inquire into, and report on, any matter that is, or is considered by it to be, significantly related to the first‑mentioned matter; and (b) if the Minister, by a notice in writing given to the President, requests the Tribunal to inquire into, and report on, a matter specified in the notice, being a matter that is, or is considered by the Minister to be, significantly related to the first‑mentioned matter, the Tribunal shall inquire into, and report on, the matter specified in the notice. (4) If the Tribunal reports that alterations are desirable in respect of a matter, it shall, in its report, recommend the nature and extent of the alterations that should be made. (5) The Minister shall cause a copy of a report to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by him or her. #### 7 Inquiries and determinations by Tribunal (3) The Tribunal shall, from time to time as provided by this Part, inquire into, and determine, the remuneration to be paid to the holders of public offices other than holders of those offices who are members of, or candidates for election to, either House of the Parliament. (3AA) The Tribunal, as provided by this Part, is to inquire into, and determine, the recreation leave entitlements of the full‑time holders of relevant offices other than holders of those offices who are members of, or candidates for election to, either House of the Parliament. (3AB) For the purposes of subsection (3AA), a relevant office is a public office in relation to which a law of the Commonwealth provides that the holder of the office has such recreation leave entitlements as are determined by the Tribunal. (3AC) The holder of a public office that is a relevant office within the meaning of subsection (3AA) may take recreation leave only with the approval of the person, authority or body, or a delegate of the person, authority or body, who may, under a law of the Commonwealth, grant leave of absence other than recreation leave to the holder of that office. (3AD) Where a law of the Commonwealth does not specify a person, authority or body who may grant leave of absence other than recreation leave to the holder of such an office, the Tribunal may specify a person, authority or body whose approval is required in relation to the taking of recreation leave by the holder of that office. (3A) The Tribunal may make a determination under subsection (3) or (3AA) in relation to persons included in a class of persons specified in the determination without specifying in the determination every person who is included in that class. (3B) The Tribunal may determine that the remuneration to be paid to the holder of an office is the same as that of the holder of another office referred to in the determination, including another office the remuneration payable to the holder of which is determined by some other Commonwealth tribunal or authority. (3C) The Tribunal may determine that the recreation leave entitlements of the full‑time holder of a public office are the same as those of the holder of another office referred to in the determination, including another office the entitlements of the holder of which are determined by some other Commonwealth tribunal or authority. (3D) The Tribunal may, from time to time as provided by this Part: (a) hold inquiries for the purpose of performing its function under subsection 5(2A); and (b) in determining under that subsection a classification structure for principal executive offices, determine the terms and conditions (including remuneration and allowances, or bands of remuneration and allowances) applicable to each classification within the classification structure. (3E) The Tribunal may, from time to time, make recommendations as to any matters relating to principal executive offices, either generally or in respect of a particular principal executive office or particular principal executive offices. (3F) In determining under subsection (3D) the terms and conditions as to the remuneration or band of remuneration that is to be applicable to a classification within a classification structure, the Tribunal must have regard to the superannuation entitlements of the holders of principal executive offices assigned to the classification. (4) Where the Tribunal inquires into a matter referred to in subsection (3), (3AA) or (3D): (a) the Tribunal may also inquire into, and either determine or report on, any matter that is, or is considered by it to be, significantly related to the first‑mentioned matter; and (b) if the Minister, by a notice in writing given to the President, requests the Tribunal to inquire into, and either to determine or report on, a matter specified in the notice, being a matter that is, or is considered by the Minister to be, significantly related to the first‑mentioned matter, the Tribunal shall inquire into the matter specified in the notice and either determine or report on that matter, as the case may be, in accordance with the request. (4A) The Tribunal may inquire into and determine the travelling allowances to be paid to members of committees established under section 54, and members of sub‑committees established under subsection 58(1A), of the Fisheries Administration Act 1991 in relation to the performance of their duties as members of the committees or sub‑committees. (4B) The Tribunal may inquire into and determine the travelling allowances to be paid to the President of the Fair Work Commission for travel within Australia. (5) Subject to subsection (5A), a determination of the Tribunal shall be in writing and shall come into operation, or shall be deemed to have come into operation, on such date as the Tribunal specifies in the determination. (5A) A determination to which this subsection applies comes into operation according to subsections (5C) and (5D). (5B) Subsection (5A) applies to a determination that relates to the remuneration to be paid to a holder of: (a) an office of Justice or Judge of a federal court or of the Supreme Court of a Territory; or (b) the office of a person who, under an Act, has the same status as a Justice or Judge of a court referred to in paragraph (a). (5C) So far as it relates to a holder of an office referred to in subsection (5B), a determination to which subsection (5A) applies takes effect on the latest of the following: (a) the date specified by the Tribunal in the determination; (b) the day after the fifteenth sitting day of the House of Representatives after a copy of the determination is laid before that House; (c) the day after the fifteenth sitting day of the Senate after a copy of the determination is laid before the Senate. (5D) Except to the extent that subsection (5C) applies, a determination to which subsection (5A) applies takes effect according to subsection (5). (5E) Where, under subsection (5C), a determination, so far as it relates to a particular office, comes into operation after the date specified in the determination, a person who held the office at any time during the period of deferral is entitled to receive the difference between: (a) the remuneration that would have been payable to him or her in respect of that period if the determination had come into operation according to subsection (5); and (b) the remuneration that was payable to him or her in respect of that period. (5F) For the purposes of subsection (5E), the period of deferral is the period commencing on the date specified in the determination and ending on the day on which the determination comes into operation in relation to the holder of the particular office. (6) The Tribunal must give the Minister a copy of every determination made by the Tribunal, other than a determination that relates to an ACT office. (6A) The Tribunal must give the Chief Minister of the Australian Capital Territory a copy of every determination made by the Tribunal in relation to an ACT office. (7) The Minister shall cause a copy of a determination, other than a determination that relates to an ACT office or that is made under Division 4, to be laid before each House of the Parliament within 15 sitting days of that House after the determination is received by him or her. (8) If either House of the Parliament, within 15 sitting days of that House after a copy of a determination has been laid before that House, passes a resolution disapproving of the determination, then: (a) if the determination has not come into operation—the determination shall not come into operation; or (b) if the determination has come into operation—the determination shall not have any force or effect in respect of a period on or after the day on which the resolution was passed. (8A) If the Legislative Assembly for the Australian Capital Territory, within 30 sitting days of the Assembly after a copy of a determination that relates to an ACT office is given to the Chief Minister, passes a resolution disapproving of the determination, then: (a) if the determination has not come into operation—the determination does not come into operation; or (b) if the determination has come into operation—the determination does not have any force or effect after the day on which the resolution is passed. (9) Remuneration (including salary) or allowances to which a subsisting determination applies shall, notwithstanding the provisions of any other law of the Commonwealth, of any law of a State or Territory, of any instrument having effect by virtue of such a law or of any contract, but subject to the succeeding provisions of this section: (a) in the case of remuneration or allowances payable to a person who: (i) holds an office or appointment as, or as a member of, or in the service or employment of, a public statutory corporation or an office or appointment as a member of a body established to manage, conduct or control the business or affairs of, or otherwise to perform functions in relation to, such a corporation; or (ii) holds an office or appointment as a director of, or in the service or employment of, an incorporated company; being a corporation or company that has funds under its control that are lawfully available to pay the remuneration or allowances—be paid in accordance with the determination out of those funds; and (aa) in the case of remuneration or allowances payable to a person who holds an office of Magistrate within the meaning of the law of the Northern Territory known as the Justices Act as in force from time to time—be paid in accordance with the determination out of public moneys of the Territory within the meaning of Part V of the Northern Territory (Self‑Government) Act 1978; and (acaa) in the case of remuneration or allowances payable to a person who holds an office or appointment under Part 3A of the Aboriginal and Torres Strait Islander Act 2005—be paid in accordance with the determination out of money of the Torres Strait Regional Authority that is lawfully available to pay the remuneration or allowances; and (aca) in the case of remuneration or allowances payable to a person who holds an office or appointment under Part 4 of the Aboriginal and Torres Strait Islander Act 2005—be paid in accordance with the determination out of money of the Aboriginal and Torres Strait Islander Commercial Development Corporation that is lawfully available to pay the remuneration or allowances; and (acaaa) in the case of remuneration or allowances payable to a person who holds an office or appointment under Part 4A of the Aboriginal and Torres Strait Islander Act 2005—be paid in accordance with the determination out of money of the Indigenous Land and Sea Corporation that is lawfully available to pay the remuneration or allowances; and (acb) in the case of remuneration or allowances payable to a person who holds an office or appointment under the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989—be paid in accordance with the determination out of money of the Australian Institute of Aboriginal and Torres Strait Islander Studies that is lawfully available to pay the remuneration or allowances; and (ad) in the case of remuneration or allowances payable to a person who holds the office of Commissioner of Private Health Insurance Administration, an office of member of the Private Health Insurance Administration Council or the office of Director of that Council—be paid in accordance with the determination out of funds under the control of that Council; and (b) in any other case—be paid in accordance with the determination out of the Consolidated Revenue Fund. (10) A member of, or a candidate for election to, either House of the Parliament is not entitled to be paid, and shall not be paid, any remuneration or allowances in respect of his or her holding, or performing the duties of, a public office but he or she shall be reimbursed: (a) in the case of a public office to which paragraph (9)(a) applies—out of the funds of the corporation or company concerned; or (b) in any other case—out of the Consolidated Revenue Fund, such expenses as he or she reasonably incurs in respect of his or her holding, or performing the duties of, that office. (11) Except as prescribed, or as authorized or approved by or under any other law of the Commonwealth or any law of a Territory, a person is not entitled to be paid any remuneration in respect of his or her holding, or performing the duties of, a public office on a part‑time basis if the person holds any office or appointment, or is otherwise employed, on a full‑time basis in the service or employment of the Commonwealth, the Administration of a Territory, a public statutory corporation, an incorporated company referred to in paragraph 3(4)(da) or an incorporated company all the stock or shares in the capital of which is or are beneficially owned by the Commonwealth or by a public statutory corporation. (11A) For the purposes of subsection (11), an office of member of the Aboriginal Corporation of the National Aboriginal Conference shall be deemed to be an office in the service of the Commonwealth. (12) Except as prescribed, a person is not entitled to be paid any remuneration in respect of his or her holding, or performing the duties of, a public office if the person holds a judicial office in the service of the Government of a State or of a country other than Australia. (12A) Where the same person holds each of two public offices on a full‑time basis: (a) if the salary applicable to one of those offices is higher than the salary applicable to the other of those offices—he or she shall be remunerated only by the salary and annual allowance (if any) applicable to the office to which the higher salary is applicable; or (b) if the same salary is applicable to each of those offices: (i) where an annual allowance is applicable to one only of those offices—he or she shall be remunerated only by the salary and annual allowance applicable to that office; (ii) if an annual allowance is applicable to each of those offices but the annual allowance applicable to one of those offices is higher than the annual allowance applicable to the other of those offices—he or she shall be remunerated only by the salary and annual allowance applicable to the office to which the higher annual allowance is applicable; or (iii) if the same annual allowance is applicable to each of those offices—he or she shall be remunerated only by the salary and annual allowance applicable to one of those offices. (13) The Consolidated Revenue Fund is appropriated for the purposes of subsections (9) and (10). (14) Nothing in a determination affects the operation of section 17 of the Remuneration and Allowances Act 1973. #### 8 Time of making reports and determinations (1) Subject to this section, the Tribunal shall, as soon as practicable after the commencement of this Act, and at subsequent intervals of not more than 1 year, make: (a) reports on the matters referred to in subsection 6(2A); and (b) determinations in respect of the matters referred to in subsection 7(3). (2) Where: (a) an office came into existence before the commencement of the Remuneration and Allowances Amendment Act 1983 and the Tribunal has not determined the remuneration to be paid in respect of that office; (aa) an office comes into existence after that commencement; or (b) a substantial change in the functions or duties to be performed by the holder of an office has occurred since the Tribunal last determined the remuneration to be paid in respect of that office; the Tribunal shall, as soon as practicable but without prejudice to its obligations under subsection (1), inquire into and determine the remuneration to be paid in respect of that office. (2A) Subsection (2) does not apply in relation to the holder of an office who is a member of, or a candidate for election to, either House of the Parliament. (3) Where the Tribunal inquires into, and determines, the remuneration to be paid in respect of an office in accordance with subsection (2), the Tribunal may also inquire into, and either determine or report on, any matter that is, or is considered by it to be, significantly related to that remuneration. (4) In subsections (2), (2A) and (3), office means a public office. #### 8A Time of making recreation leave determinations (1) Subject to this section, the Tribunal may, from time to time, make determinations in respect of the matters referred to in subsection 7(3AA). (2) Where: (a) a public office becomes a relevant office within the meaning of subsection 7(3AA) and is held by a person on a full‑time basis; or (b) a public office, being such a relevant office, comes into existence and is held by a person on a full‑time basis; or (c) a substantial change in the functions or duties to be performed by the holder of a public office has occurred since the Tribunal last determined the recreation leave entitlement of a full‑time holder of that office; the Tribunal must, as soon as practicable but without prejudice to its obligations under subsection (1), inquire into and determine the recreation leave entitlements of a full‑time holder of that office. (3) Subsection (2) does not apply in relation to the holder of a public office who is a member of, or a candidate for election to, either House of the Parliament. (4) Where the Tribunal inquires into, and determines, the recreation leave entitlements of a full‑time holder of a public office in accordance with subsection (2), the Tribunal may also inquire into, and either determine or report on, any matter that is, or is considered by it to be, significantly related to those entitlements. #### 8B Hearings in relation to discriminatory determinations (1) If a determination is referred to the Tribunal under section 46PX of the Australian Human Rights Commission Act 1986, the Tribunal must hold a hearing to review the determination. (2) Section 10 applies to the hearing as if it were a meeting of the Tribunal. (3) The Tribunal must decide whether or not the hearing is to be held in public. (4) If the Tribunal decides that the hearing is not to be held in public, then, subject to subsection (5), it may decide the people who may be present. (5) The Sex Discrimination Commissioner is entitled to notice of, and to be present at, the hearing and may make submissions to the Tribunal. (6) In this section: > determination includes a variation to a determination. #### 8C Review of discriminatory determinations (1) If: (a) a determination has been referred to the Tribunal under section 46PX of the Australian Human Rights Commission Act 1986; and (b) the Tribunal considers that the determination is a discriminatory determination; the Tribunal must take the necessary action to remove the discrimination, by setting aside the determination, setting aside terms of the determination or varying the determination. (2) In this section: > determination has the same meaning as in section 8B. > discriminatory determination means a determination that: (a) has been referred to the Tribunal under section 46PX of the Australian Human Rights Commission Act 1986; and (b) requires a person to do an act that would be unlawful under Part II of the Sex Discrimination Act 1984 except for the fact that the act would be done in direct compliance with the determination. (3) For the purposes of the definition of discriminatory determination in subsection (2), the fact that an act is done in direct compliance with the determination does not of itself mean that the act is reasonable. #### 9 Resignation and removal from office (1) A member may resign his or her office by writing signed by him or her and delivered to the Governor‑General. (2) The Governor‑General may remove a member from office for misbehaviour or physical or mental incapacity. (3) A member ceases to hold office if he or she becomes a person mentioned in subsection 4(4). #### 10 Meetings of the Tribunal (1) The President may convene meetings of the Tribunal. (2) The President shall preside at all meetings of the Tribunal at which he or she is present. (3) In the event of the absence of the President from a meeting, another member nominated by the President shall preside. (4) At a meeting of the Tribunal: (a) the procedure shall be as determined by the Tribunal; (b) two members constitute a quorum; (c) all questions shall be decided by a majority of votes of the members present and voting; and (d) the member presiding has a deliberative vote and, in the event of an equality of votes, also has a casting vote. #### 11 Method of inquiry by Tribunal (1) In the performance of the functions of the Tribunal: (a) the Tribunal may inform itself in such manner as it thinks fit; (b) the Tribunal may receive written or oral statements; (c) the Tribunal is not required to conduct any proceeding in a formal manner; and (d) the Tribunal is not bound by the rules of evidence. (2) The Minister may, if he or she thinks fit, appoint a person or persons to assist the Tribunal in an inquiry. #### 12 Fees and allowances A member and any person appointed under subsection 11(2) to assist the Tribunal shall be paid such fees and allowances as are prescribed. #### 12AA Annual report (1) The Tribunal shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report of the operations of the Tribunal during the year that ended on that 30 June. (1A) The Tribunal shall include in the report an assessment of the general operation of subsection 5(2). (2) The Minister shall cause a copy of a report furnished to him or her under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which he or she receives the report. ### Division 3—Determinations by employing bodies for principal executive offices #### 12C Terms and conditions determined by employing body (1) Subject to subsection (2), the employing body for a principal executive office may, in writing, determine the terms and conditions (including remuneration and allowances) applying to the office. (2) Except with the written consent of the Tribunal, an employing body must not determine terms and conditions in respect of a principal executive office that are inconsistent with terms and conditions determined by the Tribunal under subsection 7(3D) in respect of the classification to which the office is assigned. (3) If a determination is in force under this section for a principal executive office, the determination overrides any provision of another Act that provides for the terms and conditions applying to the principal executive office, unless that other provision refers to, and is expressed to override, this section. ### Division 4—Remuneration etc. for Departmental Secretaries #### 13 Determination of classification structure etc. (1) The Tribunal must determine a classification structure for offices of Departmental Secretary. (2) The Tribunal may also determine any matter that is, or is considered by it to be, significantly related to the classification structure determined under subsection (1). (3) The Tribunal must, from time to time, determine the classification to which each office of Departmental Secretary is assigned. (4) The Tribunal may hold inquiries for the purpose of performing its functions under subsections (1), (2) and (3). (5) The Secretary of the Department that is administered by the Prime Minister may, from time to time after the Tribunal has made its first determination under subsection (3), make recommendations to the Tribunal about matters relating to the assignment of a particular office of Departmental Secretary to a particular classification. #### 14 Amount of remuneration Remuneration for certain Secretaries (1) The Tribunal must, from time to time, determine the amount of remuneration that is to be paid to: (a) the Secretary of the Department that is administered by the Prime Minister; and (b) the Secretary of the Department that is administered by the Treasurer. (2) The amount of remuneration determined under subsection (1) must be consistent with the classification structure determined by the Tribunal under section 13. > Note: Determinations made by the Tribunal under subsection (1) must be published in accordance with section 16. Remuneration for other Secretaries (3) The Secretary of the Department that is administered by the Prime Minister, in consultation with the President of the Tribunal and the Australian Public Service Commissioner, must, from time to time, assign each Departmental Secretary (other than a Departmental Secretary referred to in subsection (1)) to an amount of remuneration. (4) The amount of remuneration to which a Departmental Secretary is assigned under subsection (3) must be consistent with the classification structure determined by the Tribunal under section 13. (5) An assignment made under subsection (3): (a) must be in writing; and (b) comes into operation on the date specified in the instrument of assignment. (6) The Secretary of the Department that is administered by the Prime Minister must give the Minister a copy of each instrument of assignment made under subsection (3). (7) For the purposes of subsection 5(3AB) of the Superannuation Act 1976, an assignment under subsection (3) of this section of a Departmental Secretary to an amount of remuneration is taken to be a determination made under the Remuneration Tribunal Act 1973 in respect of the remuneration of the Departmental Secretary. #### 15 Determination of other terms and conditions The Tribunal must, from time to time, inquire into, and determine, the terms and conditions (other than remuneration) that are to apply to the offices of Departmental Secretary. #### 16 Publication of determinations made by the Tribunal under this Division The Tribunal must ensure that a determination made by the Tribunal under this Division is published in the Gazette, and on the Tribunal’s website, within 14 days after it is made. > Note 1: A determination made by the Tribunal under this Division must be in writing and comes into operation on the date specified in the determination: see subsection 7(5). > Note 2: The Tribunal must give the Minister a copy of each determination made by the Tribunal under this Division: see subsection 7(6). ## Part IV—Miscellaneous #### 16A Recoverable payments (1) If, apart from this subsection, the Commonwealth does not have power under this Act to pay an amount (the relevant amount) to a person (the recipient) purportedly as a benefit, then the Commonwealth may pay the relevant amount to the recipient. Recovery (2) If a payment is made under subsection (1) to the recipient, the relevant amount: (a) is a debt due to the Commonwealth by the recipient; and (b) may be recovered by the accountable authority of the relevant Commonwealth entity, on behalf of the Commonwealth, in a court of competent jurisdiction. (3) If: (a) a payment is made under subsection (1) to the recipient; and (b) the recipient is receiving, or is entitled to receive, a benefit; then: (c) the relevant amount; or (d) such part of the relevant amount as the accountable authority of the relevant Commonwealth entity determines; may, if the accountable authority so directs, be recovered by deduction from that benefit, unless the recipient is a Justice or Judge of a federal court. Appropriation (4) For the purposes of subsection 7(13), if a payment under subsection (1) of this section relates to remuneration (including salary) or an allowance under subsection 7(9), the payment is taken to be remuneration or an allowance under subsection 7(9). (5) For the purposes of subsection 7(13), if a payment under subsection (1) of this section relates to reimbursement under subsection 7(10), the payment is taken to be reimbursement under subsection 7(10). Definitions (6) In this section: > accountable authority has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > benefit means: (a) remuneration (including salary) or an allowance under subsection 7(9); or (b) a reimbursement under subsection 7(10). > non‑corporate Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > relevant Commonwealth entity, in relation to a recovery under this section of the whole or part of a relevant amount, means: (a) the non‑corporate Commonwealth entity that paid the relevant amount under subsection (1) on behalf of the Commonwealth; or (b) if a different non‑corporate Commonwealth entity is prescribed in an instrument under subsection (8)—that non‑corporate Commonwealth entity. (8) The Minister may, by legislative instrument, prescribe a non‑corporate Commonwealth entity for the purposes of paragraph (b) of the definition of relevant Commonwealth entity in subsection (6). #### 16B Recoverable death payments (1) If, apart from this subsection, the Commonwealth does not have power under this Act to pay an amount (the relevant amount) in any of the following circumstances: (a) the relevant amount is deposited to an account kept in the name of a deceased person; (b) the relevant amount is deposited to an account kept in the names of a deceased person and another person; (c) the relevant amount is paid by way of a cheque made out to a deceased person; the Commonwealth may pay the relevant amount in the circumstances mentioned in paragraph (a), (b) or (c), so long as: (d) on the last day on which changes could reasonably be made to the payment of the relevant amount, the accountable authority of the relevant Commonwealth entity did not know that the deceased person had died; and (e) apart from this subsection, the relevant amount would have been payable as a benefit to the deceased person if the deceased person had not died. (2) If a payment is made under subsection (1), the relevant amount is taken to have been paid to the deceased person’s estate. Recovery (3) If a payment is made under subsection (1), the relevant amount: (a) is a debt due to the Commonwealth by the legal personal representative of the deceased person; and (b) may be recovered by the accountable authority of the relevant Commonwealth entity, on behalf of the Commonwealth, in a court of competent jurisdiction. Appropriation (4) For the purposes of subsection 7(13), if a payment under subsection (1) of this section relates to remuneration (including salary) or an allowance under subsection 7(9), the payment is taken to be remuneration or an allowance under subsection 7(9). (5) For the purposes of subsection 7(13), if a payment under subsection (1) of this section relates to reimbursement under subsection 7(10), the payment is taken to be reimbursement under subsection 7(10). Definitions (6) In this section: > accountable authority has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > benefit means: (a) remuneration (including salary) or an allowance under subsection 7(9); or (b) a reimbursement under subsection 7(10). > non‑corporate Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > relevant Commonwealth entity, in relation to a payment or recovery under this section of the whole or part of a relevant amount, means: (a) the non‑corporate Commonwealth entity that paid the relevant amount under subsection (1) on behalf of the Commonwealth; or (b) if a different non‑corporate Commonwealth entity is prescribed in an instrument under subsection (8)—that non‑corporate Commonwealth entity. (8) The Minister may, by legislative instrument, prescribe a non‑corporate Commonwealth entity for the purposes of paragraph (b) of the definition of relevant Commonwealth entity in subsection (6). #### 16C Reports about recoverable payments and recoverable death payments (1) During the applicable publication period for a reporting period, the accountable authority of the relevant Commonwealth entity must cause to be published, in such manner as the accountable authority thinks fit, a report that sets out: (a) both: (i) the number of payments made under subsection 16A(1) during the reporting period; and (ii) the total amount of those payments; and (b) both: (i) the number of payments made under subsection 16B(1) during the reporting period; and (ii) the total amount of those payments. (2) However, a report is not required if: (a) the number mentioned in subparagraph (1)(a)(i) is zero; and (b) the number mentioned in subparagraph (1)(b)(i) is zero. Deferred reporting (3) Paragraph (1)(a) of this section does not require a report to deal with a payment unless before the preparation of the report, an official of the relevant Commonwealth entity was aware the payment was made under subsection 16A(1). (4) Paragraph (1)(b) of this section does not require a report to deal with a payment unless before the preparation of the report, an official of the relevant Commonwealth entity was aware the payment was made under subsection 16B(1). (5) For the purposes of this section, if: (a) a payment was made under subsection 16A(1) or 16B(1) in a reporting period; and (b) either: (i) because of subsection (3) of this section, paragraph (1)(a) of this section did not require a report to deal with the payment; or (ii) because of subsection (4) of this section, paragraph (1)(b) of this section did not require a report to deal with the payment; and (c) during a later reporting period, an official of the relevant Commonwealth entity becomes aware that the payment was made under subsection 16A(1) or 16B(1), as the case may be; the payment is subject to a deferred reporting obligation in relation to the later reporting period. (6) If one or more payments made under subsection 16A(1) during a reporting period are subject to a deferred reporting obligation in relation to a later reporting period, the accountable authority of the relevant Commonwealth entity must, during the applicable publication period for the later reporting period: (a) prepare a report that sets out: (i) the number of those payments; and (ii) the total amount of those payments; and (iii) the reporting period during which the payments were made; and (b) if a report is required under subsection (1) in relation to the later reporting period—include the paragraph (a) report in the subsection (1) report; and (c) if paragraph (b) does not apply—publish, in such manner as the accountable authority thinks fit, the paragraph (a) report. (7) If one or more payments made under subsection 16B(1) during a reporting period are subject to a deferred reporting obligation in relation to a later reporting period, the accountable authority of the relevant Commonwealth entity must, during the applicable publication period for the later reporting period: (a) prepare a report that sets out: (i) the number of those payments; and (ii) the total amount of those payments; and (iii) the reporting period during which the payments were made; and (b) if a report is required under subsection (1) in relation to the later reporting period—include the paragraph (a) report in the subsection (1) report; and (c) if paragraph (b) does not apply—publish, in such manner as the accountable authority thinks fit, the paragraph (a) report. Reporting period (8) For the purposes of this section, a reporting period is: (a) a financial year; or (b) if a shorter recurring period is prescribed in an instrument under subsection (9)—that period. (9) The Minister may, by legislative instrument, prescribe a recurring period for the purposes of paragraph (8)(b). Applicable publication period (10) For the purposes of this section, the applicable publication period for a reporting period is the period of: (a) 4 months; or (b) if a lesser number of months is prescribed, in relation to the reporting period, in an instrument under subsection (11)—that number of months; beginning immediately after the end of the reporting period. (11) The Minister may, by legislative instrument, prescribe a number of months, in relation to a reporting period, for the purposes of paragraph (10)(b). Definitions relating to Commonwealth entities (12) In this section: > accountable authority has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > non‑corporate Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > official has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > relevant Commonwealth entity means: (a) the non‑corporate Commonwealth entity that is responsible for making payments under subsection 16A(1) or 16B(1) on behalf of the Commonwealth; or (b) if a different non‑corporate Commonwealth entity is prescribed in an instrument under subsection (13)—that non‑corporate Commonwealth entity. (13) The Minister may, by legislative instrument, prescribe a non‑corporate Commonwealth entity for the purposes of paragraph (b) of the definition of relevant Commonwealth entity in subsection (12). #### 17 Regulations The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act.