Bishop case rests on whether fundraiser was Speaker's 'official business'

Prime Minister Tony Abbott has said Speaker Bronwyn Bishop is on "probation" after spending more than A$5000 of taxpayers' money on a helicopter trip from Melbourne to Geelong to attend a Liberal Party fundraiser, but has stopped short of saying Bishop broke the rules.

Bishop has defended her actions, telling reporters on Saturday that:

The fact of the matter is it was done within entitlement but, as I said, the amount of money was clearly far too large and that's why I'm paying it.

On Monday, Bishop's chief of staff, Damien Jones, told The Conversation that:

The Department of Finance has commenced a review into the charter undertaken on 5 November 2015. The Speaker has subsequently asked the Department to review all presiding officer charter she has undertaken. It is inappropriate for the Speaker to continue to offer commentary whilst this process is now underway.

No explicit prohibition, but meaning of rules is clear

I was a member of the Review of Parliamentary Entitlements Committee in 2009-10.

The question in this case is whether Bishop can justify attending the party fundraiser primarily for official business as Speaker.

There are rules about travel entitlements such as direct travel costs and overnight allowances. They are set out in Remuneration Tribunal Determination 2014/16: Members of Parliament – Travelling Allowance, August 2014.

As the Speaker is an "office holder", it is worth examining the rules for ministers and office holders. They are similar to the rules for ordinary MPs. Section 3.8 of the Remuneration Tribunal determination of August 2014 reads as follows:

Travelling allowance shall be payable to a Minister (other than the Prime Minister) or an office holder for each overnight stay in a place other than his or her home base when that stay is occasioned primarily by:

a) sittings of the House of Parliament or direct travel to or from such sittings; or

b) official business as a Minister or as an office holder; or

c) meetings of, or the formal business of, parliamentary committees of which he or she is a member or direct travel to or from such meetings; or

d) meetings in Canberra of his or her parliamentary political party, of its executive or of its committees (see clause 1.6.2) or direct travel to or from such meetings; or

e) meetings of his or her parliamentary political party executive (see clause 1.6.2) outside Canberra or direct travel to or from such meetings; or

f) meetings, other than in Canberra, of a parliamentary political party, or of its executive, or of its committees, and attendance at the national and state conferences of a political party, to which he or she belongs (see clause 1.6.2), and meetings outside the electorate on electorate business up to a maximum of ten overnight stays per annum in total, and direct travel to or from such meetings or conferences.

There is no explicit statement that attendance at party events, party fundraisers and so on is prohibited.

However, it is clear from the way in which the rules are spelled out that the travel entitlements do not cover attendance at party events, other than those specified above. It is especially obvious that attendance at a party fundraising event is not covered.

'Official business'

There is, however, a criterion that states that if a minister or an office holder attends primarily on official business as an office holder, there is a travel entitlement.

Could it be said that this rule might cover attendance by the Speaker at a party function?

There are some non-party functions where travel entitlements might apply: attendance at a university, say, to give a talk about the Speaker's role in a seminar on this topic might well be covered as official business of the Speaker.

However, to claim that attendance at a party function is occasioned primarily by official business as Speaker raises many questions.

By way of analogy, if a minister claims entitlement for attendance at a party event because they were attending primarily on official business as a minister, this would seem not easily allowable.

Also, if the party event were principally a fundraiser and the Speaker claimed to have attended on the basis that the visit is "occasioned primarily by … official business as an office holder", there would be a considerable onus on the Speaker to produce information that demonstrates that this criterion was satisfied notwithstanding that the event was a fundraiser. What official business would take the Speaker to an event that was a party fundraiser?

Turning to the Geelong function, it seems clear that if the Speaker attends what is purely a party function such as a fundraiser simply as a member of her party, then the travel allowance does not apply.

On the other hand, if the Speaker is invited to a function in her official capacity, then more information is required. Was the Speaker invited in her capacity as Speaker? Did she give a speech about the role of the Speaker? Even then, was it official business?

Another interesting question is whether the Speaker thought subjectively that she had been invited as Speaker on official business for the event rather than as a member of the Liberal Party. The test would, however, seem to be objective.

Some comparisons have been made with the case of former speaker Peter Slipper, accused of misusing taxpayer-funded taxi vouchers. To my mind, however, that was a different type of case. There were allegations of deceit and dishonesty and it seems appropriate that such claims are referred to the police (as it happened, Slipper was ultimately found not guilty of any of these allegations).

The case concerning the present Speaker on the surface appears different.

Judgement needed

The umpire in a disputed case like this appears to be the finance minister (and ultimately the prime minister). Finance officials look at claims and if there are problems they are typically referred back to the member of Parliament, and then the finance minister.

The Review of Parliamentary Entitlements Committee on which I sat briefly considered whether that rule should be spelled out in more detail but in that, as in several other matters, the committee concluded that there were boundary issues that made precise definition somewhat problematic.

For example, it generally felt that if a member of a party attended a parliamentary function by car and then subsequently used the car to go on to a nearby party event, then that kind of incidental expenditure was not a problem under the criteria.

The committee's belief was that it was difficult to fashion a precise rule to cover all these situations and, in the end, judgement is required on these matters.

What's important is that MPs are made to be as transparent as possible by posting details of their expenditure on their entitlements on the website of each MP but this has not been widely adopted. Some information is available on the Department of Finance website. Transparency will make MPs quite careful about the expenses they claim and the public will be as well informed as possible.

Allan Fels, Professorial Fellow, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.