Chapter 1Introduction and background
Referral
1.1On 6 March 2023, the Governor-General Amendment (Cessation of Allowances in the Public Interest) Bill 2023 (the bill) was introduced into the Senate by Senator David Shoebridge.
1.2On 9 March 2023, pursuant to the recommendations of Report No. 2 of 2023 of the Senate Selection of Bills Committee, the Senate referred the bill to the Finance and Public Administration Legislation Committee (the committee) for inquiry and report by 10 May 2023. On 10 May 2023, the Senate agreed to extend the presentation of the final report until 31 July 2023.
Conduct of the inquiry
1.3The committee agreed to open submissions on 9 March 2023 and set 3 April 2023 as the closing date. The committee wrote to a range of key stakeholder groups, organisations and individuals, drawing their attention to the inquiry and inviting them to make a written submission.
1.4The committee received 16 submissions, including one name withheld submission, which are available on the committee's webpage and listed at Appendix 1.
1.5The committee held a public hearing by videoconference on 21 July 2023. The witness list can be found in Appendix 2.
1.6Details of the inquiry, including links to the bill and associated documents, are published on the committee's website.
1.7The committee thanks all those who contributed to the inquiry by making submissions and giving evidence to the committee at the public hearing.
Acknowledgement of submitters and witnesses
1.8At the outset, the committee acknowledges the context in which this bill has been introduced. In the bill's introduction in the Senate, Senator Shoebridge questioned the appropriateness of former Governor-General, Dr Peter Hollingworth, continuing to receive a publicly funded allowance despite ongoing allegations and inquiries into his handling of child sexual abuse claims brought to him during his time as Archbishop of the Brisbane diocese in the 1990s. His time as Archbishop predated his appointment as Governor-General in 2001 by Her Majesty the Queen, on the advice of then Prime Minister the Hon. John Howard AC.
1.9The committee notes that the Royal Commission into Institutional Responses to Child Sexual Abuse commissioned by the Gillard Government found, amongst other things, that the institutions involved had been reluctant to address the issue.
1.10The committee concurs with the Royal Commission's findings that the sexual abuse of a child is the greatest of personal violations perpetrated against the most vulnerable in our community and that it is one of the most traumatic and potentially damaging experiences and can have lifelong adverse consequences.
1.11The extent to which the conduct of a former Governor-General should call into question their receipt of a public allowance is a legitimate matter of public debate. Most submitters and witnesses sought to put forward their views in this regard. The committee expects that submitters and witnesses will want to continue raising these concerns.
Report structure
1.12This chapter begins with a brief description of the pension and allowances payable to former Governors-General. It does not discuss other entitlements of the office. The chapter finishes by setting out the purpose and key provisions of the bill.
1.13The second and concluding chapter outlines the key issues put forward in evidence and presents the committee's views and recommendation.
Role and appointment of the Governor-General
1.14The Governor-General of Australia is the representative of the Monarch, currently King Charles III, and serves as Australia's Head of State of Australia with a range of constitutional and ceremonial duties. The Governor-General is also the Commander-in-Chief of the Australian Defence Force. The Governor-General is appointed by the Monarch, who acts on the advice of the Prime Minister, usually for a term of 5 years.
1.15Section 61 of the Constitution of Australia (the Constitution) provides:
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
1.16On the evolution of the duties of the Governor-General, Former Governor-General, Sir Paul Hasluck observed in 1979:
[they] are of various kinds. Some are laid on him by the Constitution, some by the Letters Patent and his Commission. Others are placed on him by Acts of the Commonwealth Parliament. Others come to him by conventions established in past centuries in Great Britain or by practices and customs that have developed in Australia.
All of these duties have a common characteristic. The Governor-General is not placed in a position where he can run the Parliament, run the Courts or run any of the instrumentalities of government; but he occupies a position where he can help ensure that those who conduct the affairs of the nation do so strictly in accordance with the Constitution and the laws of the Commonwealth and with due regard to the public interest.
1.17In addition to the role's prescribed duties, the Governor-General has come to be active in the Australian community, for example acting as a patron to numerous community groups, charities and organisations. The role has been consolidated as one that is widely respected and valued in Australian constitutional, ceremonial, and especially community life. It is therefore thought desirable for the Governor-General to be someone able to engage the modern Australian community, and 'interpret the nation to itself'.
The issue—the Governors-General Pension Scheme
1.18Section 3 of the Constitution provides that a salary shall be payable to the Governor-General, 'an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds'.
1.19The Parliament did not legislate on the salary of Governors-General until 1974 under the Governor-General Act 1974 (the Act). In addition to the salary of the Governor-General, the Act also makes provisions in relation to:
the Payment of Allowances to persons, and to the spouses of persons, who have held the office of Governor‑General;
to establish the office of Official Secretary to the Governor‑General; and
to provide for the employment of staff of the Governor‑General, and for related purposes.
1.20The view that former Governors-General should be able to meet social obligations which might be expected to devolve upon them because of occupancy of the office provided a rationale for the inclusion of certain facilities and privileges in retirement. The then Prime Minister, the Hon. Gough Whitlam MP, outlined the basis for the retirement provisions, stating:
There has never been any legislative retirement provision for a Governor-General. Consequently, in a number of cases, it has been necessary for the Government to make ex gratia payments to former Governors-General or to their widows. There are many calls on a man who has been Governor-General or on a woman who is the wife or widow of a former Governor-General arising from the position they have held. It is only reasonable to recognise this. We now propose by this Bill to make provision for the future under legislation rather than by ex gratia payment.
1.21Parliament, therefore, has agreed to the payment of post-retirement allowances for former Governors-General since 1974.
1.22The provisions in relation to the allowances are contained in Section 4 of the Act. Section 4(1) provides that an allowance is payable to former Governors-General, and Section 4(2) provides that an allowance is payable to their spouse if the former Governor-General dies.
1.23Section 4(3) of the Act stipulates the rate of allowance payable:
(a)in the case of a person who has held office as Governor‑General—60 per cent of the rate of the salary payable to the Chief Justice of the High Court of Australia at that time; or
(b)in the case of a person who is a spouse of a deceased person who held office as Governor‑General—five‑eighths of the rate applicable under paragraph(a) at that time to a person who has held office as Governor‑General.
1.24The salary and allowances of judicial officers are set under the Remuneration Tribunal Act 1973. The Remuneration Tribunal (Judicial and Related Offices—Remuneration and Allowances) Determination 2022 instrument, in force as of 2March 2023, specifies the current base salary of the Chief Justice of the High Court of Australia as being $624 880. Therefore, the pension amount payable to former Governors-General is currently $374 928.
1.25The Department of Finance administers the allowance through the Governors-General Pension Scheme (the Scheme) which is governed by the Act. It is non-contributory. That is, Governors-General do not contribute to the scheme that provides their pension. The allowance is paid out of the Consolidated Revenue Fund as an annual allowance for life. It is subject to tax at the time of payment under the pay-as-you-go tax arrangements, although a 10 per cent tax offset applies to those aged 60 and over.
1.26There are currently six former Governors-General who are eligible to receive the pension.
1.27There are currently no provisions within the Act to end allowances payable to former Governors-General. However, there are statutes containing provisions to provide pensions and ongoing benefits to other public office holders that do contain mechanisms by which said benefits can be revoked. These are discussed below.
Governor of Queensland
1.28The Queensland Governors (Salary and Pensions) Act 2003 (the Qld Act) is similar to the Governor-General Act 1974 in that it sets out a pension payable to former Queensland Governors and their spouses. However, Division 4 of the Qld Actprovides that a former Governor may have their entitlements revoked if a tribunal finds that the former Governor misbehaved in a way that justifies the ending of the entitlement.
Federal Parliamentarians
1.29The Parliamentary Contributory Superannuation Act 1948 provides for a contributory superannuation scheme under which benefits are paid to former members of federal Parliament, their spouses and orphan children. Membership of the Parliamentary Contributory Superannuation Scheme (the PCSS) was compulsory for all persons who entered Parliament prior to the closure of the PCSS to new members from 9 October 2004.
1.30A member who is disqualified through the operation of the Constitution's section 44 paragraph (i) concerning citizenship of a foreign power, or paragraph (ii) concerning treason or conviction for an offence, or through section 45 paragraph (iii), as it relates to services rendered to the Parliament, is entitled to a refund of contributions only.
Judges
1.31The provisions for the payment of pensions to former Judges are contained in the Judges’ Pension Act 1968 (Judges' Pension Act).
1.32Section 72(ii) of the Constitution states that the Justices of the High Court and of the other courts created by Parliament:
(ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.
1.33Accordingly, section 17 of the Judges' Pension Actprovides that, unless the Governor-General otherwise directs, a pension under that Act is not payable to a judge who has been removed under section 72 of the Constitution or under any similar provision in an Act.
Purpose of the bill
1.34On 17 October 2018, on the motion of Senator Rachel Siewert, the Senate agreed to the following resolution:
That the Senate – … expresses concern that there are currently no mechanisms within the Governor General Act 1974 to cease the pensions or ongoing payments to former Governors-General where such a payment is no longer in the interest of the public, for instance when unconscionable or illegal behaviour is committed.
1.35The bill seeks to address this perceived shortcoming by providing powers to stop paying allowances to former Governors-General, and their spouses, when they have engaged in 'serious misconduct'. The explanatory memorandum sets out that:
For the purposes of this Bill, serious misconduct involves inappropriate, improper, wrong or unlawful conduct. Examples of serious misconduct could include corruption, sexual misconduct, sexual harassment, theft, fraud and other criminal behaviour.
1.36The bill was previously introduced into the Senate during the 46th Parliament on 13 November 2019 by former Senator Siewert. While Senator Siewert tabled a second reading speech to be incorporated into Hansard, the Senator did not seek to further debate the bill during the 46th Parliament, and it subsequently lapsed.
1.37In the second reading speech tabled by Senator Siewert, the Senator stated that serious misconduct would also include an 'omission to act'. She explained that the inclusion of an omission to act in the definition of serious misconduct was necessary because 'it sends a clear signal to people in power that the cover up of abuse and illegal behaviour is never acceptable'.
1.38As outlined above, similar powers exist for other public offices. Senator Shoebridge stated that the omission of such a provision for the Governor-General was likely 'unintentional' and that the passing of this bill would provide 'much needed accountability and transparency in the issuing of these pensions'.
1.39Both Senator Siewert and Senator Shoebridge acknowledged work done by victims and survivors of abuse and their advocates that contributed to the bill's introduction. Senator Siewert stated that public pressure alone would not strip a former Governor-General of their entitlements and, for that reason, the bill 'represents an important step toward redress for the survivors of abuse'.
Key provisions of the bill
1.40The bill is comprised of one schedule with four items which would amend the Governor-General Act 1974 and would commence the day after Royal Assent.
1.41Proposed subsection 4AGA provides that a payment of a standard allowance may be ceased if it is in the public interest to do so. An enlivened cessation event would also make a spouse ineligible to receive an allowance under new subsection 4(2A).
1.42Subsections 4AGA(2) and (3) provide two mechanisms that would constitute a cessation event and would enliven subsections 4AGA and/or 4(2A). Specifics on the mechanisms are provided at new subsections 4AGB and 4AGC.
1.43The first mechanism is through a Ministerial declaration. The Minister, in this case the Minister for Finance, may make a declaration through a legislative instrument. According to 4AGB(2) the declaration must set out:
(a)the person it applies to;
(b)the reason for making the declaration; and
(c)a summary of information considered in the process.
1.44The bill would have retrospective effect in so far as the pension cessation provisions could be enlivened based on a former Governor-General's past conduct—including conduct prior to the individual's appointment as Governor-General. This is specified at proposed subsection 4AGB(6) which stipulates that, in determining whether the conduct is serious misconduct, the Minister must disregard the following:
(a)when the former Governor-General was appointed to the office;
(b)when the conduct took place; and
(c)whether the conduct took place in Australia or elsewhere.
1.45The second mechanism provides that a House of Parliament may pass a resolution declaring that the former Governor-General, or their spouse, cease to be paid entitlements due to having engaged in serious misconduct.
Consideration by the Scrutiny of Bills Committee
1.46The bill was not reported on by the Senate Standing Committee on the Scrutiny of Bills (Scrutiny of Bills Committee).
Compatibility with human rights
1.47The Parliamentary Joint Committee on Human Rights did not make any comment on the bill.
1.48However, as stated in the Explanatory Memorandum, the bill is considered compatible with the human rights and freedoms recognised in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.