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Wednesday, 28 November 2012
Page: 10075


The PRESIDENT (15:35): I table the explanatory memorandum to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Bill amends the Parliamentary Service Act 1999 (the Act) and runs in parallel with, but is distinct from, the Public Service Amendment Bill 2012 that has passed the House of Representatives.

The Act established for the first time a separate Parliamentary Service, independent of the Executive Government of the day. That legislation complemented widespread changes to the Australian Public Service which were introduced in the Public Service Act 1999 (the APS Act).

The Public Service Amendment Bill 2012 amends the Public Service Act 1999 to ensure the Australian Public Service is able to continue serving the Australian Government, the Parliament and the Australian public to a high standard. It implements recommendations of the report, Ahead of the Game: Blueprint for the Reform of Australian Government Administration, which require legislative change.

This Parliamentary Service Amendment Bill contains various amendments to the Act, most of which reflect changes to the Public Service Act 1999 in the Public Service Amendment Bill.

Changes to Act, arising from the Public Service Amendment Bill

1. Values and Employment Principles

The current set of 15 Parliamentary Service Values in section 10 of the Act will be amended to include a shorter set of five Parliamentary Service Values and a set of Parliamentary Service Employment Principles comprising items from the current Values that reflect organisational aspirations. There will also be a statement about the role of the Parliamentary Service.

It is worth noting that the Public Service Amendment Bill does not include an equivalent of this role statement. This statement in this Parliamentary Service Amendment Bill confirms the independence of the Parliamentary Service from the Executive Government

Section 11 of the Act will be amended so that the Parliamentary Service Commissioner may advise the Presiding Officers in relation to any of the Values, and the Bill moves the power for the Presiding Officers to make determinations about the Values to proposed section 11A.

The Bill will enable the Commissioner to give advice (but not directions) to the Presiding Officers about employment matters and the Employment Principles.

Proposed section 11C in the Bill will enable the Presiding Officers to make determinations on employment matters and the Employment Principles. Additionally, section 12 of the Act will be amended to require a Secretary to promote the new Employment Principles (in addition to the Parliamentary Service Values).

2. Code of Conduct

The Bill provides, through amendment of section 13 of the Act, that the first four elements of the Parliamentary Service Code of Conduct will apply where there is a connection with the employee's employment and, for example, will cover behaviour in circumstances such as training away from Canberra.

Subsection 13(11) of the Act will be amended to require employees to behave in a way that upholds the integrity and good reputation of their departments (as well as the Parliamentary Service, to which the current provision only applies), and the proposed Parliamentary Service Employment Principles as well as the Parliamentary Service Values.

Amendments to section 14 of the Act will provide for the Determinations to set out how the Code of Conduct is to be applied to statutory office holders such as the Parliamentary Librarian.

A number of amendments to section 15 will allow action to be taken in relation to Parliamentary Service employees who may have knowingly provided false or misleading information, wilfully failed to disclose relevant information, or otherwise failed to behave honestly and with integrity in connection with their engagement as a Parliamentary Service employee.

The amendments will also enable the procedures for determining whether a Parliamentary Service employee has breached the Code of Conduct to provide separately for different categories of employee, including employees convicted of a criminal offence.

The Bill explicitly provides that a determination of a breach of the Parliamentary Service Code of Conduct may be made after an employee has separated from the Parliamentary Service.

These amendments will require Secretaries to establish procedures for the above and for determining sanctions. Importantly, the procedures must have due regard for procedural fairness. The Presiding Officers' determinations may prescribe limitations on the power of a Secretary to determine sanctions.

Section 20 of the Act will be amended to clarify that Secretaries are not subject to general directions in relation to investigations into Code of Conduct breaches or whistleblower reports (as is already the case in relation to other staffing powers of Secretaries); and state that directions issued under section 20 are legislative instruments (noting, however, that the disallowance and sunsetting provisions of the Legislative Instruments Act 2003 do not apply to these instruments).

A new section 48A will enhance the Parliamentary Service Merit Protection Commissioner's functions (the MPC) to allow the MPC to determine, when requested to do so by the relevant Secretary, whether there has been a breach of the Code of Conduct. The consent of the employee concerned is required before the MPC may commence his or her inquiry. The Merit Protection Commissioner would have the discretion to decline such a request and would be required to establish appropriate procedures, which may entail different provisions for different classes of employee, (including employees who have been convicted of criminal offences).

As an important safeguard, the note to proposed section 48A confirms that the MPC's findings under proposed section 48A, are reviewable under the Administrative Decisions (Judicial Review) Act 1977.

3. Whistleblower reports

The bill amends section 16 of the Act to require Secretaries to establish procedures for a Parliamentary Service employee to make a whistleblower report, and to establish procedures for dealing with whistleblower reports.

It also enables the Parliamentary Service Commissioner to inquire into whistleblowers' complaints after notifying the Presiding Officers of a proposed investigation.

Finally, an amendment to subsection 48(2) will extend the MPC's inquiry powers to whistleblowing inquiries.

4. Review of Actions

Subsection 33(4) (d) of the Act will be amended to clarify that reviews of action will be able to be conducted by the MPC personally. This will be in addition to the current arrangements which provide that the MPC must nominate another person or establish a three-member committee to conduct a review.

5. Senior Executive Service (SES)

The role of the SES in subsection 35(2) will be amended to capture better their whole of Parliamentary Service responsibilities. Section 36 which deals with the Commissioner's guidelines on SES matters will be repealed and a new section 11B inserted into the Act to provide that the Commissioner may give advice to the Presiding Officers about employment matters, including those relating to the SES.

Section 37 of the Act, which deals with an incentive for SES retirement, will be clarified so that the retirement of an SES employee under that section is valid even though the employee has not attained the minimum retirement age specified in the Act. Terminology will also be changed to ensure consistency with superannuation legislation.

6. Secretaries

The description of the roles and responsibilities of Secretaries will be expanded by amending section 57 to better capture the service and performance expected of them.

7. Confidentiality of Information

The provisions for the use, and confidentiality, of information in the province of the Commissioner and MPC are to be expanded and included in the Act, instead of the Determinations where they are currently located. Section 68 of the Act dealing with the release of personal information will be repealed as it will be covered in these new provisions.

There will also be a new provision to provide protections for a Secretary or Parliamentary Service employee who provides information to the Commissioner or the MPC in the course of the exercise their review or inquiry functions.

8. Immunity from suit

Provisions for immunity from civil proceedings for both the Commissioner and MPC will be moved from the current location of the Determinations to the Act.

9. Legislative instruments

Several provisions are to be amended to reflect the provision and requirements of the Legislative Instruments Act2003. For instance, the requirement to gazette Classification Rules is replaced; the Rules are to be prescribed to be legislative instruments and a note mentions that the disallowance and sunsetting provisions of the Legislative Instruments Act do not apply.

10. Miscellaneous amendments

There will also be a range of miscellaneous amendments related to the reduction of classification of employees, the terminology of the provisions for the appointment of departmental secretaries, and empowering the Parliamentary Service and Merit Protection Commissioners to engage consultants.

Subsection 66(4) of the Act will be amended to provide that the amount of payments the Presiding Officers may authorise, in relation to matters arising from Commonwealth employment, is the same as the amount prescribed by the Public Service Regulations.

And section 71 of the Act will be amended to increase the maximum number of penalty units for offences against the Presiding Officers ' determinations to be consistent with provisions in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, published by the Attorney-General ' s Department.

Amendments not directly related to Public Service Act changes

Other changes are proposed which are not directly related to the Public Service Act changes. These include enabling the Parliamentary Service Commissioner and Merit Protection Commissioner to delegate their powers and functions, enabling the determinations to vary the scope and application of the Values and Employment Principles (eg, to vary the application of merit to enable the direct engagement of people with disabilities in specified circumstances), and revising provisions dealing with acting arrangements for statutory office-holder positions to align them with the Acts Interpretation Act 1901.

Summary

This Bill ensures that the Parliamentary Service will continue to provide professional support of the highest calibre to all parliamentarians, independent of the executive government of the day.

In a number of sections, provisions have been strengthened and clarified to ensure that this continues. A number of items have been clarified and, where appropriate, brought into line with the revised Public Service Bill.

All parliamentarians depend on a professional, non-partisan parliamentary service. After more than a decade since the Parliamentary Service was first created, this bill will ensure that the service can continue to provide a high level of support and advice which will ultimately benefit the wider Australian community.

I commend the Bill to the Senate.

Debate adjourned.