Bill returned from the Senate with amendments.

Ordered that the amendments be taken into consideration forthwith.

Senate's amendments—

(1) Clause 3, page 2 (after line 15), after paragraph (b), insert:

(ba) to define the powers and responsibilities of Agency Heads, the Public Service Commissioner and the Merit Protection Commissioner; and

(2) Clause 7, page 5 (after line 22), after the definition of locally engaged employee , insert:

merit , in relation to the engagement and promotion of employees, means assessment of the relative suitability of candidates for employment or promotion using a competitive selection process, where the assessment is:

(a) based on the relationship between a candidate's work-related qualities and the work-related qualities identified by the Agency as required for the job; and

(b) the sole consideration in a decision to engage or promote an employee.

(3) Clause 8, page 6 (line 11), omit "This", substitute "Subject to subsection 20(1A), this".

(4) Clause 10, page 7 (lines 28 and 29), omit "a fair, flexible, safe and rewarding workplace;", substitute:

its employees with:

(i) a fair, flexible, safe, healthy and rewarding workplace free from harassment; and

(ii) remuneration rates and conditions of employment commensurate with their responsibilities; and

(iii) fair and consistent treatment, free of arbitrary or capricious administrative acts or decisions; and

(iv) the right to be represented by unions; and

(v) opportunities for appropriate training and development; and

(vi) opportunities for appropriate participation in the decision-making processes of the Agency in which they are employed;

(5) Clause 10, page 7 (line 31), at the end of subclause (1), add:

; (l) the APS promotes equity in employment;

(m) the APS provides a reasonable opportunity to all eligible members of the community to apply for APS employment;

(n) the APS is a career-based service to enhance the effectiveness and cohesion of Australia's democratic system of government;

(o) the APS provides a fair system of review of decisions taken in respect of APS employees.

(6) Clause 10, page 8 (lines 1 to 12), omit subclause (2).

(7) Clause 11, page 8 (lines 14 to 18), omit subclause (1), substitute:

(1) The Commissioner must issue directions in writing in relation to each of the APS Values for the purpose of:

(a) ensuring that the APS incorporates and upholds the APS Values; and

(b) determining where necessary the scope or application of the APS Values.

(8) Clause 14, page 10 (line 9), at the end of the clause, add "and are subject to sanctions for breaches of the Code, to be determined by the Prime Minister on the recommendation of the Commissioner".

(9) Clause 15, page 10 (lines 15 and 16), omit "include the following", substitute "are".

(10) Clause 15, page 10 (line 21), at the end of subclause (2), add:

; (f) admonishment.

(11) Clause 15, page 10 (lines 24 and 25), omit "The procedures must have due regard to procedural fairness.", substitute "The procedures must be based on minimum standards, determined by the Commissioner, and must have due regard to procedural fairness.".

(12) Clause 16, page 11 (after line 7), after paragraph (a), insert:

(aa) the Merit Protection Commissioner or a person authorised for the purposes of this section by the Merit Protection Commissioner; or

(13) Clause 17, page 11 (after line 14), after subclause (1), insert:

(1A) A breach of subsection (1) is to be treated as a breach of the Code of Conduct.

(14) Clause 20, page 12 (after line 7), after subclause (1), insert:

(1A) An Agency Head must not enter into an Australian Workplace Agreement, within the meaning of the Workplace Relations Act 1996 , with an APS employee.

(1B) The regulations may prescribe exemptions from the requirement set out in subsection (1A), in relation to particular categories of APS employees.

Note: For example, a particular category of APS employees could include "SES employees of the X Agency".

(15) Clause 22, page 13 (after line 5), at the end of the clause, add:

(5) Subject to this Act and to relevant awards and certified agreements, an Agency Head must engage a person as an APS employee on a permanent basis unless subsection (6) or (7) applies.

(6) An Agency Head may engage a person as an APS employee on a fixed term of less than 6 months if, in the Agency Head's opinion, the need for temporary assistance will not adversely affect the maintenance of a career service or a stable workforce.

(7) An Agency Head may engage a person as an APS employee on a fixed term of more than 6 months if, in the Agency Head's opinion, the employee is required to perform duties in relation to a project or task that has a fixed duration and:

(a) the Agency Head determines that the duties require skills or ability that is not, or cannot be made, available within the Agency; or

(b) in the case of a vacancy caused by a permanent officer being placed temporarily in another position or being on long term leave, there is no suitable permanent employee to fill the temporary vacancy.

(16) Page 13 (after line 5), after clause 22, insert:

22A Engagement and promotion based on merit

The engagement or promotion of an APS employee for any period in excess of 3 months must be on the basis of merit.

(17) Clause 23, page 13 (line 11), after "time to time", insert "but may not diminish any such provisions".

(18) Clause 24, page 13 (lines 24 to 26), omit ". For this purpose, award and certified agreement have the same meanings as in the Workplace Relations Act 1996 .", substitute ", but may not diminish any such provisions.".

(19) Clause 24, page 14 (lines 1 and 2), omit "because of special circumstances.", substitute ", provided any such determination does not diminish any provision of an award or certified agreement as in force at a particular time or as in force from time to time.".

(20) Clause 24, page 14 (after line 4), at the end of the clause, add:

(5) For the purposes of this section, award and certified agreement have the same meanings as in the Workplace Relations Act 1996 .

(21) Clause 25, page 14 (line 7), after "Agency,", insert "consistent with any provision in an award or certified agreement,".

(22) Clause 25, page 14 (after line 8), at the end of the clause, add:

(2) An employee may apply to the Agency Head to decline a proposed transfer within 7 days after the employee receives notice of the transfer. The transfer is not to take effect unless the Agency Head rejects the application.

(23) Clause 29, page 15 (lines 2 to 5), omit subclause (1) and the note, substitute:

(1) An Agency Head may at any time following due process, by notice in writing, terminate the employment of an APS employee in the Agency if, in the opinion of the Agency Head, termination is justified on any of the following grounds:

(a) unsatisfactory work performance;

(b) physical or mental incapacity;

(c) loss of essential qualifications;

(d) a serious breach of the Code of Conduct;

(e) being excess to the requirements of the Agency.

Note: The Workplace Relations Act 1996 has rules and entitlements that apply to termination of employment.

(24) Clause 29, page 15 (lines 8 and 9), omit subclause (3).

(25) Clause 31, page 15 (after line 25), after subclause (2), insert:

(2A) If an Agency Head, the Commissioner or the Merit Protection Commissioner receives any non-Commonwealth remuneration for performing duties pertaining to their offices, then the Agency Minister may give a notice in writing to the Agency Head, Commissioner or Merit Protection Commissioner in relation to the whole, or a specified part, of the remuneration.

(2B) The amount notified by the Agency Minister:

(a) is taken to have been received by the Agency Head, Commissioner or Merit Protection Commissioner, as the case may be, on behalf of the Commonwealth; and

(b) may be recovered by the Commonwealth from the Agency Head, Commissioner or Merit Protection Commissioner as a debt in a court of competent jurisdiction.

(26) Clause 33, page 16 (after line 19), after subclause (2), insert:

(2A) An application for review of an APS action (other than action which involves or has resulted in termination of employment) in respect of promotion to determine who is the most meritorious officer, redeployment, inefficiency or misconduct is to be determined by a Review Committee consisting of:

(a) an independent convenor nominated by the Merit Protection Commissioner; and

(b) a nominee of the relevant Agency Head; and

(c) an employee representative nominated in accordance with the regulations or in accordance with the provisions of an award or a certified agreement.

Note: The Workplace Relations Act 1996 has rules and entitlements that apply to the termination of employment.

(2B) For the purposes of paragraph (2A)(c), the provisions of an award or certified agreement prevail over the provisions of the regulations to the extent of any inconsistency.

(2C) A determination by a Review Committee is binding on the Agency Head.

(2D) The Merit Protection Commissioner is to make recommendations to the relevant Agency Head in respect of an application for review of any APS action, other than an action included in subsection (2A), which has not been satisfactorily resolved at the Agency level.

(27) Clause 36, page 17 (line 19), at the end of the clause, add ", including engagement, promotion, redeployment, mobility and termination".

(28) Clause 38, page 18 (lines 3 to 5), omit the clause, substitute:

38 Termination of employment

In the case of termination of the employment of an SES employee, the Commissioner must certify that the termination meets the minimum requirements specified in a direction issued under section 36 and that the termination is in the best interests of the APS.(29)

Clause 44, page 22 (after line 19), at the end of the clause, add:

(4) The report must be prepared in accordance with guidelines approved by the Joint Committee of Public Accounts and Audit on behalf of the Parliament.

(30) Clause 46, page 23 (line 10), at the end of the clause, add "on the advice of the Remuneration Tribunal and are to be published in the Gazette ".

(31) Clause 49, page 25 (lines 8 and 9), omit "and made available by the Public Service Commissioner".

(32) Clause 49, page 25 (after line 9), at the end of the clause, add:

(3) For the purposes of this Act:

(a) the Merit Protection Commissioner and the APS employees assisting the Merit Protection Commissioner together constitute a Statutory Agency; and

(b) the Merit Protection Commissioner is the Head of that Statutory Agency.

(33) Clause 50, page 25 (lines 10 to 13), omit the clause, substitute:

50 Merit Protection Commissioner's functions

The Merit Protection Commissioner's functions are:

(a) to facilitate and support the proper and efficient operation of Review Committees in accordance with subsection 33(2A);

(b) to make recommendations to Agency Heads in respect of applications for review of APS actions in accordance with subsection 33(2D);

(c) to consider and report to the Public Service Minister on any matter relating to APS employment (including such a matter referred to the Merit Protection Commissioner by the Public Service Minister);

(d) to enquire into reports made to the Merit Protection Commissioner (or to a person authorised by the Merit Protection Commissioner) as mentioned in section 16;

(e) any function prescribed by the regulations.

(34) Clause 51, page 25 (lines 16 and 17), omit "Public Service Commissioner", substitute "Public Service Minister, for presentation to the Parliament,".

(35) Clause 51, page 25 (lines 19 and 20), omit subclause (2), substitute:

(2) The report is to be prepared in accordance with guidelines approved by the Joint Committee of Public Accounts and Audit on behalf of the Parliament.

(36) Page 25 (after line 20), after clause 51, insert:

51A Capacity to report to the Prime Minister and Parliament

Where action that is, in the opinion of the Merit Protection Commissioner, adequate and appropriate in the circumstances is not taken with respect to the matters and recommendations included in a report to an Agency or an investigation of a grievance, the Merit Protection Commissioner may in writing inform the Agency Minister, the Prime Minister, the President of the Senate and the Speaker of the House of Representatives.

(37) Clause 52, page 26 (line 6), after "Governor-General", insert "on a full-time basis and".

(38) Clause 53, page 26 (line 11), at the end of the clause, add "on the advice of the Remuneration Tribunal and are to be published in the Gazette ".

(39) Page 27 (after line 17), after clause 55, insert:

Division 3—Miscellaneous

55A Immunity from suit

The Merit Protection Commissioner, a member of a Review Committee established under subsection 33(2A) or a person acting under the direction or authority of the Merit Protection Commissioner is not liable to an action, suit or proceeding for or in relation to an act done or omitted to be done in good faith in exercise or purported exercise of any power or authority conferred by this Act.

55B Protection from civil actions

(1) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person by reason of:

(a) the making of an application to the Merit Protection Commissioner under this Act; or

(b) the making of a statement to, or the furnishing of a document or information to, an officer for the purposes of this Act.

(2) In subsection (1), officer means:

(a) the Merit Protection Commissioner; or

(b) a member of a Review Committee established under subsection 33(2A); or

(c) an employee of the Statutory Agency established under subsection 49(3); or

(d) a person, not being a person referred to in paragraph (c), to whom the Merit Protection Commissioner has delegated any of his or her powers under section 78.

55C Officers to observe secrecy

(1) In this section, officer means:

(a) the Merit Protection Commissioner; or

(b) a member of a Review Committee established under subsection 33(2A); or

(c) an employee of the Statutory Agency established under subsection 49(3); or

(d) a person, not being a person referred to in paragraph (c), to whom the Merit Protection Commissioner has delegated any of his or her powers under section 78.

(2) Subject to this section, an officer shall not, directly or indirectly, and either while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate to any person, any information acquired by the officer by reason of his or her being an officer, being information that was disclosed or obtained under the provisions of section 33.

Penalty: $1,000 or imprisonment for 6 months or both.

(3) Subsection (2) does not prevent an officer:

(a) from making a record of, or divulging or communicating to any person, information acquired by the officer in the performance of his or her duties as an officer for purposes connected with the exercise of the powers and with the performance of the functions of the Merit Protection Commissioner under this Act; or

(b) from divulging or communicating information to a person:

(i) if the information was furnished by an officer of an Agency or Commonwealth authority in the performance of his or her duties as such an employee—with the consent of the principal officer of the Agency or authority or of the responsible Minister; or

(ii) if the information was furnished by a person otherwise than as set out in subparagraph (i)—with the consent of the person who furnished the information.

(4) Subsection (2) does not prevent the Merit Protection Commissioner or a person to whom the Merit Protection Commissioner has delegated powers or functions under section 78 from disclosing, in a report made under this Act, such matters as, in his or her opinion, ought to be disclosed in the course of setting out the grounds for the conclusions and recommendations contained in the report.

(5) A person who is or has been an officer is not competent and may not be required, in any proceedings before a court (whether exercising federal jurisdiction or not) or before a person authorised by a law of the Commonwealth or of a State or Territory, or by consent of parties, to hear, receive or examine evidence or to disclose any information acquired by the person by reason of his or her being or having been an officer, being information that was disclosed or obtained under the provisions of section 16 or 33.

(6) Subject to subsections (7) and (8), nothing in this Act is to be taken to preclude the Merit Protection Commissioner from disclosing information, or making a statement, to any person or to the public or a section of the public with respect to the performance of a function of the Merit Protection Commissioner under this Act if, in the opinion of the Merit Protection Commissioner, it is in the interests of any Agency, Commonwealth authority or person, or is otherwise in the public interest, so to disclose that information or to make that statement.

(7) The Merit Protection Commissioner must not disclose information or make a statement under subsection (6) with respect to a particular review where the disclosure of that information, or the making of that statement, is likely to interfere with the carrying out of that review or of any other review.

(8) The Merit Protection Commissioner must not, in disclosing information or making a statement under subsection (6) with respect to a particular review disclose the name of an applicant or any other matter that would enable an applicant to be identified unless it is fair and reasonable in all the circumstances to do so.(40)

Clause 57, page 28 (lines 13 to 15), omit the clause, substitute:

57 Responsibilities of Secretaries

(1) The Secretary of a Department, under the Agency Minister, is responsible for the general working, and all the business, of the Department and is to advise the Agency Minister in all matters relating to the Department.

(2) The Secretary of a Department has a duty to assist the Agency Minister to fulfil his or her accountability obligations to the Parliament by providing full and accurate information to the Parliament about the factual and technical background to policies and their administration.

(41) Clause 59, page 29 (lines 16 and 17), omit subclause (4).

(42) Clause 61, page 29 (line 26), at the end of the clause, add "on the advice of the Remuneration Tribunal and are to be published in the Gazette ".

(43) Clause 63, page 30 (after line 19), at the end of the clause, add:

(2) The report is to be prepared in accordance with guidelines approved by the Joint Committee of Public Accounts and Audit on behalf of the Parliament.

(44) Clause 65, page 32 (after line 21), at the end of the clause, add:

(5) Executive agencies are accountable to the Government, the Parliament and the Australian public in the same way as Departments.

(45) Clause 66, page 32 (lines 22 to 24), omit the clause, substitute:

66 Responsibilities of Heads of Executive Agencies

(1) The Head of an Executive Agency, under the Agency Minister, is responsible for the general working, and all the business, of the Agency.

(2) The Head of an Executive Agency has a duty to assist the Agency Minister to fulfil his or her accountability obligations to the Parliament by providing full and accurate information to the Parliament about the factual and technical background to policies and their administration.

(46) Clause 67, page 33 (line 2), omit "a relevant Secretary", substitute "the Secretary of the Prime Minister's Department".

(47) Clause 67, page 33 (lines 5 to 10), omit subclauses (4) and (5), substitute:

(4) Before terminating the appointment of the Head of an Executive Agency, the Agency Minister must receive a report about the proposed termination from the Commissioner and the Secretary of the Prime Minister's Department.

(48) Clause 68, page 33 (line 18), at the end of the clause, add "on the advice of the Remuneration Tribunal and are to be published in the Gazette ".

(49) Clause 70, page 34 (after line 8), at the end of the clause, add:

(2) The report is to be prepared in accordance with guidelines approved by the Joint Committee of Public Accounts and Audit on behalf of the Parliament.

(50) Clause 72, page 36 (lines 3 and 4), omit subclause (3), substitute:

(3) Determinations under this section are to provide that the provisions of any relevant awards or certified agreements continue to apply to affected APS employees until new provisions are agreed to by those employees.

(51) Clause 78, page 39 (after line 27), after subclause (5), insert:

(5A) The Merit Protection Commissioner may, in writing, delegate to an APS employee any of the Merit Protection Commissioner's powers or functions under this Act (other than this section).

(52) Clause 78, page 40 (after line 3), after subclause (6), insert:

(6A) An Agency Head may not delegate a power or function under subsection (6) to a person who is not an APS employee or a person appointed to an office under a law of the Commonwealth, by the Governor-General or a Minister, unless the Commissioner approves in writing the proposed delegation.