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Parliamentary Service Amendment Bill 2012



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ISSN 1328-8091

BILLS DIGEST NO. 75, 2012-13 11 February 2013

Parliamentary Service Amendment Bill 2012

Dr Nicholas Horne Politics and Public Administration Section

Contents

Purpose of the Bill ................................................................................................................................... 3

Background ............................................................................................................................................. 4

Committee consideration ....................................................................................................................... 4

Senate Finance and Public Administration Legislation Committee .................................................... 4

Policy position of non-government parties/independents..................................................................... 5

Financial implications .............................................................................................................................. 5

Statement of Compatibility with Human Rights ..................................................................................... 5

Key issues and provisions ........................................................................................................................ 5

Schedule 1—amendment of the Parliamentary Service Act 1999 ......................................................... 5

Departmental secretaries and the Senior Executive Service .............................................................. 5

Departmental secretaries ................................................................................................................ 5

The Senior Executive Service ........................................................................................................... 6

The Parliamentary Service Commissioner ........................................................................................... 7

Functions ......................................................................................................................................... 7

The Parliamentary Service Commissioner and confidentiality of information ............................... 8

Immunity from civil proceedings for the Parliamentary Service Commissioner ........................... 10

The Parliamentary Service Merit Protection Commissioner ............................................................. 10

Functions ....................................................................................................................................... 10

The Parliamentary Service Merit Protection Commissioner and confidentiality of information .................................................................................................................................... 12

Immunity from civil proceedings for the Parliamentary Service Merit Protection Commissioner ................................................................................................................................ 14

Whistleblower reports ...................................................................................................................... 15

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PS role statement, PS Values and PS Employment Principles ........................................................... 16

PS Values and PS Employment Principles ...................................................................................... 16

The PS Code of Conduct .................................................................................................................... 19

Scope of the PS Code of Conduct .................................................................................................. 19

Breaches of the Code of Conduct .................................................................................................. 20

Non-ongoing PS employees............................................................................................................... 23

Legislative instruments ...................................................................................................................... 23

Employment matters ..................................................................................................................... 23

Classification of directions, rules and determinations as legislative instruments ........................ 24

Release of personal information ....................................................................................................... 24

Other amendments ........................................................................................................................... 25

Acting appointments ..................................................................................................................... 25

Miscellaneous amendments .......................................................................................................... 25

Schedule 2—application, saving and transitional provisions ............................................................... 26

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Parliamentary Service Amendment Bill 2012

Date introduced: 28 November 2012

House: Senate

Portfolio: Private Senator's Bill

Commencement: Sections 1-3, Part 12 and item 68 of Schedule 1, and Part 13 of Schedule 2 all commence on the day the Act receives Royal Assent. Parts 1-11 and items 69-92 of Schedule 1, and Parts 1-12 of Schedule 2, commence on the later of: the 28th day after the Act receives Royal Assent or immediately after the commencement of Schedule 1 to the Public Service Amendment Bill 2012 (yet to be enacted).1 If Schedule 1 to the Public Service Amendment Bill 2012 does not commence, then Parts 1-11 and items 69-92 of Schedule 1, and Parts 1-12 of Schedule 2, will not commence.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Parliamentary Service Amendment Bill 2012 (the Bill) is to amend the Parliamentary Service Act 1999 (Cth)2 so as to:

 delineate and expand the roles and responsibilities of departmental secretaries in the Parliamentary Service (PS)

 further define the functions of the Senior Executive Service (SES) in the PS

 extend the functions of the Parliamentary Service Commissioner (PSC) and Parliamentary Service Merit Protection Commissioner (PSMPC)

 introduce provisions relating to the use and protection of information provided to the PSC and the PSMPC in connection with their functions

 revise and rationalise the current PS Values, insert a new role statement for the PS and PS Employment Principles, amend the scope of the PS Code of Conduct, and extend current provisions relating to breaches of the Code

 establish a procedural framework for whistleblower reports and

1. The homepage for the Public Service Amendment Bill 2012 is at: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DId%3A%22legislation%2Fbillhome%2Fr4763 %22;rec=0

2. The Parliamentary Service Act 1999 is available at: http://www.comlaw.gov.au/Details/C2012C00705

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 make a range of technical changes and amendments to existing arrangements including for non-ongoing employees and the legislative instrument status of directions, rules and determinations made under the Act.

Background

The Bill follows on from the Public Service Amendment Bill 2012 (which was passed by the Parliament on 7 February 2013) which makes a range of changes to the Public Service Act 1999 (Cth) and related legislation. The Bill reflects several (although by no means all) provisions of the Public Service Amendment Bill with necessary adaptations for the PS. A summary of the policy context for the Public Service Amendment Bill 2012 can be found in the associated Bills Digest.3

Amendment of the Parliamentary Service Act 1999 (the Act) requires a separate Bill as the PS, which is established by that Act, is not part of the Australian Public Service (APS), and thus does not come under the Public Service Act.

Under the Act, the Speaker of the House of Representatives and the President of the Senate (the Presiding Officers) oversee the administration of the Department of the House of Representatives and the Department of the Senate respectively. The Presiding Officers jointly oversee the administration of the Department of Parliamentary Services and the Parliamentary Budget Office.

Committee consideration

Senate Finance and Public Administration Legislation Committee

On 29 November 2012 the Bill was referred to the Senate Finance and Public Administration Legislation Committee for inquiry and report by 5 February 2013. In its report of 5 February 2013 the Committee noted points of comparison with the Public Service Amendment Bill 2012 and concluded that:

… the amendments proposed in the Bill make the necessary changes to the Parliamentary Service Act to maintain its alignment with the relevant provisions of the Public Service Act as amended. The proposed amendments will ensure that the framework of both services, particularly in relation to employment conditions and professional standards, are comparable but appropriate modifications have been incorporated to ensure that the independence of the Parliamentary Service in serving the Parliament is preserved.

4

3. See N Horne and J Tomaras, Public Service Amendment Bill 2012, Bills Digest, no. 9, 2012-13, Parliamentary Library, Canberra, 2012, pp. 4-5, viewed 7 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1861138% 22

4. Senate Finance and Public Administration Legislation Committee (SFPALC), Parliamentary Service Amendment Bill 2012, SFPALC, Canberra, February 2013, p. 17, viewed 7 February 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=fapa_ctte/completed_inquirie s/2010-13/psa_bill2012/report/index.htm

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The Committee accordingly recommended that the Bill be passed.5

Policy position of non-government parties/independents

The Opposition has supported passage of the Bill in the Senate.

Financial implications

The Explanatory Memorandum states that the Bill ‘has limited financial impact’ and that its proposals ‘are either cost-neutral or are expected to be met from the existing resources of the parliamentary departments’.6

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.7 The Government considers that the Bill is compatible.

Key issues and provisions

Schedule 1—amendment of the Parliamentary Service Act 1999

Departmental secretaries and the Senior Executive Service

Departmental secretaries

The Bill proposes to repeal the existing provisions of the Act dealing with the roles and responsibilities of secretaries of parliamentary departments and introduce revised roles and responsibilities.

Currently under the framework established by the Act there are four departmental secretaries: the Clerk of the House of Representatives, the Clerk of the Senate, the Secretary of the Department of Parliamentary Services, and the Parliamentary Budget Officer. Under section 53A of the Act the proposed provisions in the Bill relating to secretaries would not apply to the Parliamentary Budget Officer.

5. Ibid.

6. Explanatory Memorandum, Parliamentary Service Amendment Bill 2012, p. 3, viewed 8 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fs881_ems_2f b08069-11bb-47e4-9f2b-901fa0024f57%22

7. The Statement of Compatibility with Human Rights can be found at pages 5-8 of the Explanatory Memorandum to the Bill.

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Under current section 57 of the Act the responsibilities of secretaries (other than the Parliamentary Budget Officer) are briefly and broadly delineated: secretaries are responsible for managing their departments and advising the Presiding Officers in matters relating to their departments. Secretaries are also required to assist the Presiding Officers to fulfil the Officers’ accountability obligations to the Parliament and provide factual information, as required by the Parliament, in relation to the operation and administration of the departments.

The Bill proposes to introduce an expanded and detailed (but not exhaustive) listing of secretaries’ roles and responsibilities (item 1, proposed section 57). The President of the Senate has indicated that the revised descriptions are meant to ‘better capture the service and performance expected’ of secretaries.8 Under the amendments the roles of secretaries would include: principal advisers to the Presiding Officers on matters relating to the departments; leaders providing stewardship within the departments and across the PS in partnership with other secretaries; and any other role prescribed by the Determinations (item 1, proposed subsection 57(1)).9

The proposed amendments would preserve current secretaries’ responsibilities with added explicit requirements to manage departmental affairs efficiently, effectively, economically and ethically and in a way not inconsistent with the interests of the PS as a whole (item 1, proposed paragraphs 57(2)(a) and (f)). The amendments also propose new responsibilities to provide leadership, strategic direction and a focus on departmental results; implement measures relating to departments’ legal compliance; engage with stakeholders; and other responsibilities as prescribed by the Determinations (item 1, proposed paragraphs 57(2)(c)-(e) and (h)). It is noteworthy that these fundamental responsibilities have been absent from the existing list of secretaries’ responsibilities in section 57 of the Act, particularly given that one of the objects of the Act is ‘to establish a non-partisan Parliamentary Service that is efficient and effective in serving the Parliament’ (paragraph 3(a)).10

Under the application, saving and transitional provisions of the Bill the new specified roles and responsibilities would apply to existing secretaries on commencement (Schedule 2, item 3).

The Senior Executive Service

The Bill proposes to further define and expand the functions of SES employees in the PS. Currently, under section 35 of the Act, the function of the SES is to provide a group of PS employees who individually provide one or more of the following at a high level: professional expertise, policy

8. J Hogg (President of the Senate), ‘Second reading speech: Parliamentary Service Amendment Bill 2012’, Senate, Debates, 28 November 2012, p. 10 076, viewed 7 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2Fa313cbaa-0111-489d-96e4-ef24e85fa333%2F0087%22

9. The Parliamentary Service Determination 2003/2 is the subordinate legislation to the Act and is available at: http://www.comlaw.gov.au/Details/F2009C00565 10. Emphasis added. The other objects of the Act as listed in section 3 are: (b) to provide a legal framework for the effective and fair employment, management and leadership of PS employees; (c) to define the powers and

responsibilities of secretaries, the Parliamentary Librarian, the PSC and the PSMPC; and (d) to establish rights and

obligations of PS employees.

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advice, and management. SES employees also promote the PS Values, compliance with the PS Code of Conduct, and cooperation with other departments.

The Bill would repeal the existing SES function provisions in the Act and recast the base function of the SES group as providing strategic leadership of the highest quality that contributes to an effective and cohesive PS (item 2, proposed subsection 35(2)). In terms of the functions of individual SES employees, the Bill would require SES employees to provide one or more of the following at a high level: professional or specialist expertise, policy advice, program or service delivery, and regulatory administration (item 2, proposed paragraph 35(3)(a)).

The Bill would retain the function of promoting the PS Values and compliance with the PS Code of Conduct, with the addition of also promoting the PS Employment Principles (to be inserted by the amendments) (item 2, proposed paragraph 35(3)(c)). The function of promoting cooperation with other departments would be expanded to promoting cooperation within and between departments, including to deliver outcomes across departmental boundaries (item 2, proposed paragraph 35(3)(b)).

Under the application, saving and transitional provisions of the Bill the new specified functions for individual SES employees would apply to existing SES employees on commencement (Schedule 2, item 4).

The Parliamentary Service Commissioner

The Bill proposes to make changes to the existing framework for the office of the PSC in a number of areas including the Commissioner’s functions, confidentiality of information, and legal immunity.

Functions

Currently under section 40 of the Act the PSC’s functions include giving advice to the Presiding Officers on the management policies and practices of the PS, and inquiring into and reporting on matters relating to the PS where requested to do so by the Presiding Officers.

The Bill would retain the PSC’s existing functions in section 40 of the Act and introduce the following new functions for the office:

 inquiring into PS employees’ reports of breaches of the PS Code of Conduct (whistleblower reports) made to the PSC or the PSC’s authorised person, subject to Determinations made for the purposes of the whistleblower provisions in section 16 of the Act

 other functions as conferred on the PSC by the Act, the Determinations or any other law and

 doing anything incidental or conducive to the performance of the PSC’s functions (item 5, proposed paragraphs 40(1)(c)-(e)).

The Bill would require the PSC to notify the Presiding Officers in writing before commencing an inquiry into a whistleblower report and would enable the PSC to include recommendations in

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reports made in the performance of the PSC’s functions (item 6, proposed subsections 40(1A) and (2)).

Currently under section 41 of the Act the PSC, when conducting inquiries under section 40 into matters relating to the PS at the request of the Presiding Officers, has the same information-gathering powers as those possessed by the Auditor-General under the Auditor-General Act 1997 (Cth). The Bill would extend these powers to the PSC when discharging the new function of inquiring into whistleblower reports (item 7, proposed amendment to section 41).

The Bill would alter requirements in the Act relating to the provision of advice by the PSC on the PS Values. Currently under section 11 the PSC must provide advice to the Presiding Officers to assist them to ensure that the PS incorporates and upholds the PS Values and to assist them to determine, where necessary, the scope or application of each Value. The Bill would remove the requirement for the PSC to provide this advice, making its provision discretionary, and would also specify that the advice be in writing (item 16, proposed section 11).

The Bill would empower the PSC to delegate in writing the PSC’s powers or functions relating to inquiring into whistleblower reports to former senior officials (item 8, proposed subsection 70(1AA)). ‘Former senior official’ would be defined as a person who previously held, but who no longer holds, an office or appointment under legislation; or a former SES employee who is no longer an SES employee and who does not hold an office or appointment under legislation; or a former SES employee under the Public Service Act who is no longer an SES employee and who does not hold an office or appointment under legislation (item 9, proposed subsection 70(8)).

The Parliamentary Service Commissioner and confidentiality of information

The Bill proposes to introduce provisions relating to the use and protection of information provided to the PSC in connection with the PSC’s inquiry functions. The proposed provisions relate to, but do not reproduce, the existing framework for information confidentiality in the Determinations.

A category of information, ‘protected information’, would be established (item 44, proposed subsection 65AA(1)). Protected information would be information obtained by entrusted persons (being the PSC, the PSC’s delegates, those acting under the PSC’s direction or authority, and members of staff assisting the PSC) in connection with the performance or exercise of the following of the PSC’s inquiry functions:

 inquiries into matters relating to the PS at the request of the Presiding Officers

 inquiries into whistleblower reports and

 any other functions, duties or powers under the Act or Determinations as prescribed by the Determinations (item 44, proposed subsection 65AA(1)).

Under the amendments, current and former entrusted persons would be prohibited from directly or indirectly making a record of, disclosing, or otherwise using protected information except as authorised by that provision or the Determinations (item 44, proposed subsection 65AA(2)). Entrusted persons would be authorised to make records of, disclose, or otherwise use protected

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information for the purposes of, or in connection with, the performance or exercise of their functions, duties or powers under the Act or Determinations (item 44, proposed subsection 65AA(3)).

The PSC would be authorised to disclose protected information:

 in reports prepared for purposes connected with the performance or exercise of the PSC’s functions or powers if the PSC was satisfied that the disclosure was necessary for setting out grounds for report conclusions and recommendations (item 44, proposed subsection 65AA(4)), and

 to persons, the public or sections of the public if the PSC was satisfied that the disclosure was in the interests of a department or person, or in the public interest, and the disclosure was not likely to interfere with a review or inquiry under the Act or the Determinations (item 44, proposed subsection 65AA(5)). In making such a disclosure, the PSC would be prohibited from disclosing individuals’ names or any material that would enable an individual to be identified unless satisfied that such a disclosure was fair and reasonable in all the circumstances (item 44, proposed subsection 65AA(6)).

Under the Bill, current and former entrusted persons would not be compellable to disclose protected information in any proceedings before courts or persons authorised by law or party consent to hear, receive and examine evidence (item 44, proposed subsection 65AA(7)).

Inadmissibility of providing information or documents to the Parliamentary Service Commissioner

The Bill (item 44, proposed section 65AC) would also make the provision of information and documents to the PSC inadmissible as evidence against a person in proceedings (other than in proceedings for certain criminal offences) where:

 the PSC requested information or a document from a person for purposes connected with the performance or exercise of the PSC’s inquiry functions as listed in proposed subsection 65AA(1) (or any other functions, duties or powers under the Act or Determinations as prescribed by the Determinations)

 a person reasonably believed that information or a document was relevant for purposes connected with the performance or exercise of the PSC’s inquiry functions as listed in proposed subsection 65AA(1) (or any other functions, duties or powers under the Act or Determinations as prescribed by the Determinations)

 the information or document was obtained lawfully by the person and provided to the PSC and

 by providing the information or document to the PSC, the person

- contravened any other law

- might have tended to self-incriminate or incur liability to a penalty

- disclosed legal advice given to a Presiding Officer or a department

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- disclosed a communication between a person performing or exercising functions, duties or powers in a department and another person or body, and the communication was protected against disclosure by legal professional privilege or

- otherwise acted contrary to the public interest (item 44, proposed subsections 65AC(1)-(3)).

The inadmissibility would not otherwise affect claims of legal professional privilege made in relation to the information or document (item 44, proposed subsection 65AC(6)).

The amendments would also exempt persons from any penalty under any other law by reason of providing the information or document to the PSC and, to the extent that providing the information or document to the PSC involved a disclosure of personal information, the disclosure would be taken to be authorised for the purposes of the Privacy Act 1988 (Cth) (item 44, proposed subsections 65AC(4) and (5)).

The Explanatory Memorandum states that the purpose of these provisions is to ‘protect Parliamentary Service employees who provide information to the Commissioner to assist in the performance of certain of the Commissioner’s functions’.11

Immunity from civil proceedings for the Parliamentary Service Commissioner

Currently the Determinations provide immunity from civil proceedings for the PSC and related personnel in connection with the PSC’s statutory function of inquiring into PS matters at the request of the Presiding Officers in relation to whistleblower reports regarding breaches of the PS Code of Conduct.

The Bill proposes to embed immunity for the PSC and related personnel in the Act and widen its coverage (item 46, proposed subsection 70A(1)). Immunity would apply to the PSC and the PSC’s delegates, those acting under the PSC’s direction or authority, and members of staff assisting the PSC in relation to anything done or omitted to be done in good faith in the performance or exercise (real or purported) of the PSC’s functions of inquiring into PS matters at the request of the Presiding Officers; inquiring into whistleblower reports; and any other functions, duties or powers under the Act or Determinations as prescribed by the Determinations.

The Parliamentary Service Merit Protection Commissioner

The Bill proposes to make changes to the existing framework for the office of the PSMPC.

Functions

Currently under section 48 of the Act the functions of the PSMPC include inquiring into whistleblower reports regarding breaches of the PS Code of Conduct; inquiring into and reporting on alleged breaches of the Code of Conduct by the PSC; inquiring into and reporting on PS actions

11. Explanatory Memorandum, p. 28.

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(actions, including refusals or failures to act, by departmental secretaries, the Parliamentary Librarian, or PS employees in relation to the employment of a PS employee) at the request of the Presiding Officers; conducting reviews of certain PS actions in accordance with the Determinations; and such other functions as prescribed by the Determinations.

The Bill would amend the PSMPC’s current function of inquiring into whistleblower reports to specify that such inquiries would be subject to relevant Determinations (item 38, proposed paragraph 48(1)(a)). Currently under section 48 of the Act the PSMPC, when conducting inquiries into PS actions at the request of the Presiding Officers, has the same information-gathering powers as those possessed by the Auditor-General under the Auditor-General Act 1997 (Cth). The Bill would extend these powers to the PSMPC when conducting inquiries into whistleblower reports (item 39, proposed amendment to subsection 48(2)).

Inquiries by the Parliamentary Service Merit Protection Commissioner into possible Code of Conduct breaches by current and former employees

The Bill would introduce a new function for the PSMPC of inquiring into and determining possible breaches of the PS Code of Conduct by current and former PS employees (item 32, proposed paragraph 48(1)(ca)). At present under section 15 of the Act departmental secretaries determine possible breaches of the PS Code of Conduct by current PS employees, although this too would be amended by the Bill (see below). The PSMPC would only be able to undertake such inquiries where requested to do so by the relevant secretary, where the PSMPC considered it appropriate, and where the current or former PS employee concerned agreed in writing (item 33, proposed subsection 48A(1)).

The PSMPC would have the same powers as departmental secretaries in conducting inquiries into possible breaches (item 33, proposed subsection 48A(6)). The new function for the PSMPC of inquiring into possible breaches by current and former PS employees is a notable change; the inclusion of former employees is presumably intended to avoid the situation of an employee resigning in order to avoid investigation and potential adverse findings. The requirement that employees/former employees would have to agree to the PSMPC’s inquiry, however, could render the new function ineffectual where agreement was withheld. As is noted below, the Bill does not seek to extend the application of sanctions for breach to former PS employees.

The PSMPC would be required to establish written procedures for the Code of Conduct breach inquiries; these procedures would have to be publicly available, comply with basic procedural requirements prescribed by the Determinations, and have due regard to procedural fairness (item 33, proposed subsections 48A(2) and (4)). The procedures could vary for different categories of current or former PS employee and for current or former PS employees found to have committed/been convicted of offences in respect of conduct alleged to constitute a breach of the Code of Conduct (item 33, proposed subsection 48A(3)). The PSMPC would be required to report on the results of inquiries to requesting departmental secretaries (item 33, proposed subsection 48A(7)). Despite the preservation of a requirement for due regard to procedural fairness, the ability to vary procedures that apply to different categories of PS employees may be in tension with broader considerations of fairness.

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The Bill would empower the PSMPC to delegate in writing any of the PSMPC’s powers or functions under the Act (except the power to delegate) to an APS employee made available to the PSMPC by an agency head or to a PS employee made available to the PSMPC by a department secretary (item 8, proposed subsection 70(1AB)). Delegates of the PSMPC would not be subject to direction by any person other than the PSMPC in relation to their exercise of the delegated powers or functions (item 9, proposed subsection 70(6)). Powers or functions exercised by delegates of the PSMPC who were APS employees would be taken, for the purposes of the APS Code of Conduct, to have been exercised in connection with their APS employment (item 9, proposed subsection 70(7)).

Review of actions relating to employment by the Parliamentary Service Merit Protection Commissioner

Currently section 33 of the Act requires the Determinations to provide that, where a review of a Parliamentary Service action (for the purposes of section 33 an action, including a refusal or failure to act, by a person in the capacity of a departmental secretary or PS employee) relating to an PS employee’s employment follows an application or referral to the PSMPC, the review must be conducted by a person nominated by the PSMPC or by a three member committee constituted in accordance with the Determinations.

The Bill would amend this requirement by adding the PSMPC as one of the parties able to conduct such reviews under the Determinations (the other options of a person nominated by the PSMPC or a three-member committee would be preserved) (item 40, proposed paragraph 33(4)(d)).

The Parliamentary Service Merit Protection Commissioner and confidentiality of information

The Bill proposes to introduce provisions relating to the use and protection of information provided to the PSMPC in connection with the PSMPC’s inquiry functions. The proposed framework relates to, but does not reproduce, the existing framework for information confidentiality in the Determinations.

A category of information, ‘protected information’, would be established (item 44, proposed subsection 65AB(1)). Protected information would be information obtained by entrusted persons (being the PSMPC, the PSMPC’s delegates, those acting under the PSMPC’s direction or authority, members of staff assisting the PSMPC, members of committees established or appointed under the Determinations by the PSMPC, and any other person prescribed by the Determinations) in connection with the performance or exercise of the PSMPC’s functions and any other functions, duties or powers under the Act or Determinations as prescribed by the Determinations. The Determinations would also be able to prescribe a second category of entrusted person (prescribed entrusted persons) for the confidentiality provisions (item 44, proposed subsection 65AB(1)).

Under the amendments, current and former entrusted persons would be prohibited from directly or indirectly making a record of, disclosing, or otherwise using protected information except as authorised by that provision or the Determinations (item 44, proposed subsection 65AB(2)). Entrusted persons would be authorised to make records of, disclose, or otherwise use protected information for the purposes of, or in connection with, the performance or exercise of their

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functions, duties or powers under the Act or Determinations (item 44, proposed subsection 65AB(3)).

The PSMPC would be authorised to disclose protected information:

 in reports prepared for purposes connected with the performance or exercise of the PSMPC’s functions or powers if the PSMPC was satisfied that the disclosure was necessary for setting out grounds for report conclusions and recommendations (item 44, proposed subsection 65AB(4)) and

 to persons, the public or sections of the public if the PSMPC was satisfied that the disclosure was in the interests of a department or person, or in the public interest, and the disclosure was not likely to interfere with a review or inquiry under the Act or the Determinations (item 44, proposed subsection 65AB(5)). In making such a disclosure, the PSMPC would be prohibited from disclosing individuals’ names or any material that would enable an individual to be identified unless satisfied that such a disclosure was fair and reasonable in all the circumstances (item 44, proposed subsection 65AB(6)).

Under the Bill current and former entrusted persons would not be compellable, in any proceedings before courts or persons authorised by law or party consent to hear, receive and examine evidence, to disclose protected information obtained in connection with the performance or exercise of the following of the PSMPC’s functions:

 inquiries into whistleblower reports

 inquiries into alleged breaches of the Code of Conduct by the PSC

 inquiring into PS actions by departmental secretaries, the Parliamentary Librarian, or PS employees in relation to the employment of PS employees at the request of the Presiding Officers

 conducting reviews of certain PS actions in accordance with the Determinations

 such other functions as prescribed by the Determinations and

 any other functions, duties or powers under the Act or Determinations as prescribed by the Determinations (item 44, proposed subsection 65AB(7)).

In addition, current and former prescribed entrusted persons would not be competent, and could not be compelled, to disclose protected information in any proceedings before courts or persons authorised by law or party consent to hear, receive and examine evidence (item 44, proposed subsection 65AB(8)).

Inadmissibility of providing information or documents to the Parliamentary Service Merit Protection Commissioner

The Bill (item 44, proposed section 65AD) would also make the provision of information and documents to the PSMPC inadmissible as evidence against a person in proceedings (other than in proceedings for certain criminal offences) where:

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 the PSMPC requested information or a document from a person for purposes connected with the performance or exercise of the PSMPC’s functions, including the new function of inquiring into and determining possible breaches of the PS Code of Conduct by current and former PS employees, and any other functions, duties or powers under the Act or Determinations as prescribed by the Determinations

 a person reasonably believed that information or a document was relevant for purposes connected with the performance or exercise of the PSMPC’s functions (and any other functions, duties or powers under the Act or Determinations as prescribed by the Determinations)

 the information or document was obtained lawfully by the person and provided to the PSMPC and

 by providing the information or document to the PSMPC, the person

- contravened any other law

- might have tended to self-incriminate or incur liability to a penalty

- disclosed legal advice given to a Presiding Officer or a department

- disclosed a communication between a person performing or exercising functions, duties or powers in a department and another person or body, and the communication was protected against disclosure by legal professional privilege or

- otherwise acted contrary to the public interest (item 44, proposed subsections 65AD(1)-(3)).

The inadmissibility would not otherwise affect claims of legal professional privilege made in relation to the information or document (item 44, proposed subsection 65AD(6)).

The amendments would also exempt persons from any penalty under any other law by reason of providing the information or document to the PSMPC and, to the extent that providing the information or document to the PSMPC involved a disclosure of personal information, the disclosure would be taken to be authorised for the purposes of the Privacy Act 1988 (Cth) (item 44, proposed subsections 65AD(4) and (5)).

The Explanatory Memorandum states that the purpose of these provisions is to ‘protect Parliamentary Service employees who provide information to the [PS]MPC to assist in the performance of the [PS]MPC’s functions’.12

Immunity from civil proceedings for the Parliamentary Service Merit Protection Commissioner

Currently the Determinations provide immunity from civil proceedings for the PSMPC and related personnel in relation to anything done or omitted to be done in good faith in the exercise of powers or authorities conferred by the Act.

12. Explanatory Memorandum, p. 28.

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The Bill proposes to embed immunity for the PSMPC and related personnel in the Act. Immunity would apply to the PSMPC and the PSMPC’s delegates, those acting under the PSMPC’s direction or authority, members of staff assisting the PSMPC, members of committees established or appointed under the Determinations by the PSMPC, and any other person prescribed by the Determinations in relation to anything done or omitted to be done in good faith in the performance or exercise (real or purported) of functions, duties and powers conferred by the Act or the Determinations (item 46, proposed subsection 70A(2)).

Whistleblower reports

Currently section 48 of the Act empowers the PSMPC to inquire into whistleblower reports made to the PSMPC or the PSMPC’s authorised person. The Act also prohibits victimisation of or discrimination against PS employees who report Code of Conduct breaches to departmental secretaries, the PSC, or the PSMPC (section 16). Currently the Determinations set out a procedural framework for whistleblower reports including a discretionary power for departmental secretaries to issue procedures for handling reports in departments.

The Bill proposes to establish a procedural framework in the Act for whistleblower reports related to some elements of the existing procedural framework in the Determinations. The Bill would insert into the Act a requirement for departmental secretaries to establish procedures:

 providing a pathway for PS employees to make whistleblower reports to secretaries or their authorised persons and

 for secretaries to deal with such reports (item 37, proposed subsection 16(2)).

The procedures established by secretaries would have to comply with basic procedural requirements (if any) prescribed by the Determinations (item 37, proposed subsection 16(3)). Procedures established by departmental secretaries would not be legislative instruments (item 37, proposed subsection 16(4)). Additionally, the Bill would provide that the Presiding Officers could not give general directions to secretaries relating to their exercise of powers under section 16 in relation to particular individuals (item 31, proposed amendment to subsection 20(4)).

The Bill would also authorise the Determinations to prescribe procedures for PS employees to make whistleblower reports to the PSC or PSMPC or to their authorised persons, and also to prescribe procedural requirements that the PSC and PSMPC would have to comply with in dealing with whistleblower reports (item 37, proposed subsection 16(5)). Currently the Determinations require the PSC to either refer whistleblower reports to the Presiding Officers or handle reports in accordance with standing requests concerning handling made by the Presiding Officers. The Bill would maintain the current application of section 16 to the Parliamentary Librarian as if the Librarian was a PS employee (item 18 and item 37, proposed subsection 16(7)).

Under the amendments the Determinations would also be authorised to prescribe circumstances in which departmental secretaries, the PSC, or the PSMPC could decline to conduct an inquiry into a whistleblower report or discontinue an existing inquiry (item 37, proposed subsection 16(6)).

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Currently the only basis in the Determinations for the non- or partial investigation of whistleblower reports is where they are considered to be frivolous or vexatious.

PS role statement, PS Values and PS Employment Principles

The Bill proposes to insert a new role statement for the PS into the Act stating that the PS ‘serves the Parliament by providing professional support, advice and facilities to each House of the Parliament, to parliamentary committees and to Senators and Members of the House of Representatives, independently of the Executive Government of the Commonwealth’ (items 12-14, proposed subsection 9(2)).

PS Values and PS Employment Principles

The Bill also proposes to repeal the existing 15 PS Values in section 10 of the Act and in their place insert five new Values together with seven new PS Employment Principles relating to employment decisions and workplace standards.

The 15 PS Values currently specified in section 10 of the Act are as follows:

 the PS provides professional advice and support for the Parliament independently of the Executive Government of the Commonwealth

 the PS provides non-partisan and impartial advice and services to each House of the Parliament, to committees of each House, to joint committees of both Houses and to Senators and Members of the House of Representatives

 the PS has the highest ethical standards

 the PS performs its functions with probity and is openly accountable for its actions to the Parliament

 the PS has leadership of the highest quality

 employment decisions in the PS are based on merit

 the PS provides a workplace that is free from discrimination and recognises and utilises the diversity of the Australian community

 the PS establishes workplace relations that value communication, consultation, co-operation and input from employees on matters that affect their workplace

 the PS provides a fair, flexible, safe and rewarding workplace

 the PS focuses on achieving results and managing performance

 the PS uses Commonwealth resources properly and cost-effectively

 the PS promotes equity in employment

 the PS provides a reasonable opportunity to all eligible members of the community to apply for PS employment

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 the PS is a career-based service to enhance the effectiveness and cohesion of Australia’s democratic system of government and

 the PS provides a fair system of review of decisions taken in respect of PS employees.

The proposed five new PS Values are:

 Committed to service—the PS is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Parliament

 Ethical—the PS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does

 Respectful—the PS respects the Parliament and all people, including their rights and their heritage

 Accountable—the PS performs its functions with probity and is openly accountable for its actions to the Parliament and the Australian community and

 Impartial—the PS is non-partisan and provides advice that is frank, honest, timely and based on the best available evidence (item 15, proposed section 10).

It is important to note that some of the substance of the existing Values would not be retained in the proposed Values. The proposed ‘Ethical’ Value, for example, states that ‘the PS demonstrates leadership’, but does not specify ‘leadership of the highest quality’ or ‘the highest ethical standards’ as the current Values do. Similarly, the Value of using Commonwealth resources properly and cost-effectively would be shed. These changes are not insignificant and may render the proposed Values less comprehensive, and less meaningful, as an articulation of the ethos of the PS. For the same reason the proposed Values may also be less effective in fostering a shared understanding and culture among PS employees, and of less worth in providing high-level guidance regarding expectations of behaviour and the performance of roles and responsibilities. In this light, a judicious retention of more of the content of the existing Values may be desirable.

Perhaps most significant here is the removal of the crucial Value of providing advice and support for the Parliament independently of the executive government and its relocation to the proposed PS role statement. The second reading speech states that the role statement ‘confirms the independence of the Parliamentary Service from the Executive Government’13, but the removal of this principle from the Values means that independence from the Executive Government would no longer be an embedded requirement for the PS under the Act as it is currently (sections 12 and 13 require departmental secretaries and PS employees to uphold the Values). This would seem to be a retrograde step given the central importance of independence from the government for the PS and its operations.

13. J Hogg (President of the Senate), ‘Second reading speech: Parliamentary Service Amendment Bill 2012’, op. cit., p. 10 075.

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In place of a current requirement for the Presiding Officers to issue written Determinations in relation to each of the PS Values (section 11), the Bill would provide that the making of such Determinations was discretionary and for any of the Values as opposed to all (item 16, proposed subsection 11A(1)). Such Determinations would be for the specified purposes of ensuring that the PS incorporates and upholds the Values and determining where necessary the scope or application of the Values (item 16, proposed subsection 11A(1)); the Values would have effect subject to any restrictions in the Determinations (item 16, proposed subsection 11A(3)). Receiving advice from the PSC, and having regard to it, would be prerequisites for the Presiding Officers to make such Determinations (item 16, proposed subsection 11A(2)); where Determinations were made the PSC’s advice would have to be tabled in the Parliament (item 16, proposed subsection 11A(4)).

The proposed PS Employment Principles would state that the PS is ‘a career-based service that’:

 makes fair employment decisions with a fair system of review

 recognises that the usual basis for engagement is as an ongoing PS employee

 makes decisions relating to engagement and promotion that are based on merit

 requires effective performance from each employee

 provides flexible, safe and rewarding workplaces where communication, consultation, cooperation and input from employees on matters that affect their workplaces are valued

 provides workplaces that are free from discrimination, patronage and favouritism and

 recognises the diversity of the Australian community and fosters diversity in the workplace (item 15, proposed subsection 10A(1) and item 11, proposed amendment to section 7).

In light of the proposed Principle that the usual basis for engagement is as an ongoing PS employee, the Bill would repeal a current statement to this effect in subsection 22(3) and include a note in the section 22 provisions iterating the Principle (items 20 and 21, proposed amendments to subsections 22(2) and 22(3)).

The Employment Principles would have effect subject to any restrictions in the Presiding Officers’ Determinations relating to the Principles (item 47, proposed subsection 11C(4); see further below). Departmental secretaries would be required to uphold and promote the Employment Principles in addition to the existing requirement to uphold and promote the PS Values (item 17, proposed section 12). Secretaries would also be required to establish workplace diversity programs to assist in giving effect to the Employment Principles rather than to the PS Values as is currently required (item 19, proposed amendment to section 18).

In light of the proposed Principle concerning the provision of workplaces that are free from discrimination, patronage and favouritism, the Bill would repeal a current prohibition in section 17 of the Act on exercising powers under the Act or the Determinations in relation to the engagement of PS employees, or otherwise in relation to PS employees, with patronage or favouritism (item 18). Consequent upon this the Bill would also repeal a current provision (section 17A) specifying that the prohibition in section 17 applies to the Parliamentary Librarian as if the Librarian was a PS employee (item 18). Given that favouritism and patronage are improper, it would perhaps be desirable to

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retain the prohibition. A broad PS-wide principle concerning the provision of workplaces free from discrimination, patronage and favouritism may not necessarily operate with the same strength and guidance as an explicitly stated prohibition against favouritism and patronage.

The amendments also largely reproduce existing provisions in subsection 10(2) of the Act providing that engagement or promotion decisions are merit-based if they involve, as the primary consideration, focused assessments of candidates’ relative suitability to perform the duties using competitive selection processes; this would be augmented by the addition of another element (currently a separate PS Value) of having given all eligible members of the community a reasonable opportunity to apply (item 15, proposed subsection 10A(2)).

The Bill would give the Presiding Officers a discretionary power to make Determinations in relation to the PS Employment Principles (akin to the Presiding Officers’ power to make Determinations in relation to the PS Values as set out in item 16) (item 47, proposed subsection 11C(2)). The Determinations would be for the specified purposes of ensuring that the PS incorporates and upholds the Employment Principles and determining where necessary the scope or application of the Employment Principles (item 47, proposed subsection 11C(2)). The Employment Principles would have effect subject to any restrictions in the Presiding Officers’ Determinations (item 47, proposed subsection 11C(4)). The PSC would be empowered to provide written advice to the Presiding Officers for the specified purposes of ensuring that the PS incorporates and upholds the Employment Principles and determining where necessary the scope or application of the Employment Principles (item 47, proposed subsection 11B(2)). Receiving such advice, and having regard to it, would be prerequisites for the Presiding Officers to make Determinations in relation to the Employment Principles (item 47, proposed subsection 11C(3)); where Determinations were made the PSC’s advice would have to be tabled in the Parliament (item 47, proposed subsection 11C(5)).

The PS Code of Conduct

The Bill proposes to amend the scope of the PS Code of Conduct and extend current provisions regarding breaches of the Code.

Scope of the PS Code of Conduct

Currently four elements of the PS Code of Conduct in the Act require PS employees, in the course of their PS employment, to behave honestly and with integrity; to act with care and diligence; to treat everyone with respect and courtesy and without harassment; and to comply with all applicable Australian laws (subsections 13(1)-(4)). The amendments would replace ‘the course of’ with ‘connection with’ in these four elements of the Code, thereby broadening their application beyond behaviour and actions occurring in the course of PS employment. These elements would apply to conduct having a connection with PS employment (item 23, proposed amendment to subsections 13(1)-(4)).

A further element of the Code currently requires PS employees to behave at all times in a way that upholds the PS Values and the integrity and good reputation of the PS (subsection 13(11)); this

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would be amended by the insertion of additional requirements to uphold the PS Employment Principles and the integrity and good reputation of PS employees’ departments (item 24, proposed subsection 13(11)). These additions would appear to provide useful clarification and guidance.

Currently the Act stipulates that departmental secretaries and statutory office holders are bound by the Code of Conduct in the same way as PS employees (section 14). The Bill would amend this provision to specify that statutory office holders are bound by the Code subject to any Determinations (item 26, proposed subsection 14(2)). The Determinations would be able to prescribe the extent to which office holders are bound by the Code, and prescribe differently with respect to different statutory office holders or different classes of statutory office holders (item 26, proposed subsection 14(2A)). Currently the Determinations prescribe the class of office holders that is included within the definition of ‘statutory office holder’ in section 14.

Breaches of the Code of Conduct

The Bill proposes to extend the powers of departmental secretaries in relation to Code of Conduct breaches as follows:

 secretaries would be empowered to determine possible breaches of the PS Code of Conduct by former PS employees as well as by current PS employees (item 30, proposed subsection 15(3)), and

 secretaries would be empowered to impose sanctions on PS employees for PS Code of Conduct breaches were the PSMPC had found a breach through the PSMPC’s new inquiry function (see above) (item 28, proposed amendment to subsection 15(1)).

The new function for secretaries of inquiring into possible breaches by former PS employees is a notable change and is presumably intended to deal with the situation of employees resigning in order to avoid investigation and potential adverse findings.

The Bill does not seek to extend the range of sanctions or extend their application to former PS employees found to have breached the Code of Conduct; sanctions currently provided for in the Act are termination of employment, reduction in classification, reassignment of duties, reduction in salary, salary deductions by way of fine, and reprimand (section 15).

The basic current requirement for secretaries to establish procedures for determining breaches would be retained with additional elements. Secretaries would be required to establish written procedures for determining breaches by both current and former PS employees and for the imposition of sanctions on PS employees (item 30, proposed subsection 15(3)). The procedures could vary for different categories of current or former PS employee and for current or former PS employees found to have committed/been convicted of offences in respect of conduct alleged to constitute a breach of the Code of Conduct (item 30, proposed subsection 15(5)). As is the case currently, the procedures would need to have due regard to procedural fairness and comply with basic procedural requirements set out in the PSC’s Directions; the current requirement for the PSC to issue such Directions would also be preserved (item 30, proposed subsections 15(4) and (6)). Despite the preservation of a requirement for due regard to procedural fairness, the ability to vary

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procedures according to different categories of PS employees may be in tension with broader considerations of fairness. The Bill would also provide that the Presiding Officers could not give general directions to secretaries relating to their exercise of powers under section 15 in relation to particular individuals (item 31, proposed amendment to subsection 20(4)).

The amendments specify that the procedures would not constitute legislative instruments, and would require departmental secretaries to ensure that the procedures would be publicly available (item 30, proposed subsections 15(7) and (8)). Currently under the Act secretaries are required to take reasonable steps to ensure that all PS employees in their departments have ready access to the procedures (subsection 15(5)); this would no longer be a requirement due to the new requirement for procedures to be made public. Given the importance of these procedures in determining breaches of the Code of Conduct, a provision enabling the Determinations to require departmental secretaries to take steps to familiarise their employees with their procedures might be desirable.

The Bill would also create a new liability for breaching the Code of Conduct where a current or former PS employee, prior to engagement in the PS and in connection with their engagement, was found on investigation by a departmental secretary or by the PSMPC to have:

 knowingly provided false or misleading information to another PS employee or to a person acting on behalf of the Commonwealth

 wilfully failed to disclose to another PS employee or to a person acting on behalf of the Commonwealth information that the person knew or ought to have reasonably known was relevant or

 otherwise failed to behave honestly and with integrity (item 30, proposed subsection 15(2A)).

Where a current PS employee was found to have committed such a breach, departmental secretaries would be empowered to impose sanctions permitted by section 15 (item 30, proposed subsection 15(2A)). In reference to this new liability the Explanatory Memorandum states that:

When enacted, this provision will cover all current and former Parliamentary Service employees and will apply to conduct which is alleged to have occurred before or after the commencement time of the provision. This element of retrospectivity is necessary in light of the serious nature of the proscribed conduct. It is imperative that Senators, Members and the public have confidence in the way Parliamentary Service employees carry out their duties, and the standards of conduct expected of a Parliamentary Service employee are correspondingly high. Given this, it is appropriate that this provision operate to apply to existing Parliamentary Service employees who may have acted dishonestly or without integrity during the employment process.

14

In October 2012 the Senate Standing Committee for the Scrutiny of Bills raised concerns over the equivalent new liability provision proposed for the APS in the Public Service Amendment Bill 2012 (in item 44 of that Bill); at the time of writing this Digest the Scrutiny of Bills Committee had not considered the Parliamentary Services Amendment Bill 2012. In discussing the Public Service Amendment Bill 2012 the Committee expressed its concern that:

14. Explanatory Memorandum, p. 18.

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… the provision could have an unfair detrimental retrospective effect. It appears that conduct that did not amount to a breach of the code at the time of a person’s engagement as an APS employee may, by the operation of proposed 15(2A), be taken to be a breach of the code. Thus sanctions for breach of the code may be imposed on the basis of an obligation which was not part of the code at the time of the impugned behaviour.

15

In his response to the Committee the Special Minister of State stated that:

... given the requirement for public confidence in the integrity of APS employees it is appropriate that the proposed provision applies retrospectively to existing APS employees who may have been dishonest or failed to act with integrity when recruited … [r]etrospectivity is justified as it would be inefficient and confusing for employees to have two sets of procedures operating concurrently in an agency.

16

The Minister also expressed the view that ‘[i]n practice it is likely that the retrospective application of the proposed provision will affect only a limited number of employees’, and that ‘agency heads will have available guidance … which will make clear that where a period of time has elapsed since the misrepresentation, the fairness of a sanction of termination of employment will require close consideration’.17 The Minister indicated that the Explanatory Memorandum for the Public Service Amendment Bill 2012 would be amended to set out the ‘justification for, and scope of, the retrospectivity of the proposed provision’.18

In acknowledging the Minister’s response the Committee endorsed amending the Explanatory Memorandum for the Public Service Amendment Bill 2012, but ‘remain[ed] concerned about the retrospective operation of the proposed provision’:

In the Committee’s view, neither the belief that impugned conduct was or should have been recognised as inappropriate at the time of the conduct, nor the possible applicability of criminal offences concerning the provision of false or misleading statements to the Commonwealth, are sufficient reasons to retrospectively impose an additional penalty.

19

The Explanatory Memorandum for the Parliamentary Service Amendment Bill 2012, in outlining item 30, contains elements (with necessary changes) of the amended Explanatory Memorandum for the Public Service Amendment Bill 2012 and the Minister’s response to the Scrutiny of Bills Committee.20

15. Senate Standing Committee for the Scrutiny of Bills (SSCSB), Twelfth Report of 2012, SSCSB, Canberra, 10 October 2012, p. 427, viewed 7 February 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=scrutiny/bills/2012/index.htm

16. Ibid., p. 429. 17. Ibid. 18. Ibid. 19. Ibid., p. 430. 20. Explanatory Memorandum, pp. 18-19.

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Non-ongoing PS employees

Currently the Act defines ‘non-ongoing PS employee’ as a PS employee who is not ongoing (section 7); the Act also sets out three categories of PS employee: ongoing employees, employees engaged for a specified term or for the duration of a specified task, and employees engaged for irregular or intermittent duties (section 7). Under section 22, PS employees must be engaged in one of the three categories (section 22 also states that the usual basis for engagement is as an ongoing PS employee; the amendments would retain this as one of the new PS Employment Principles).

The Bill would make the following changes to the employment framework for non-ongoing PS employees:

 currently under section 22 the Determinations can limit the circumstances in which a person can be engaged as a non-ongoing PS employee for a specified term, for the duration of a specified task, or for irregular or intermittent duties; under the amendments the Determinations would be authorised to prescribe, rather than limit, the circumstances for engagement (item 41, proposed amendment to subsection 22(4)) and

 currently under section 29 the Determinations can prescribe grounds or procedures applicable to the termination of the engagement of non-ongoing PS employees; under the amendments the Determinations could only prescribe grounds for the termination, and for termination of employment rather than engagement (items 42 and 43, proposed amendments to subsections 29(4) and (5)).

The application, saving and transitional provisions of the Bill would provide for a range of circumstances in respect of the engagement of non-ongoing PS employees or termination of employment both prior to and after commencement of the amendments (Schedule 2, items 19-21).

Legislative instruments

Employment matters

The Bill would empower the PSC to provide advice to the Presiding Officers about employment matters relating to PS employees including engagement, promotion, redeployment, mobility, training schemes and termination (item 47, proposed subsection 11B(1)). The Presiding Officers would also be empowered to make Determinations about employment matters relating to PS employees including those set out in proposed subsection 11B(1) (item 47, proposed subsection 11C(1)). In light of these proposed powers a current requirement in the Act (section 36) for the PSC to issue guidelines about employment matters relating to SES employees would be repealed (item 54).

Currently under section 38 departmental secretaries cannot terminate SES employment unless the PSC has certified that all relevant requirements of the SES employment guidelines have been satisfied and is of the opinion that the termination is in the public interest; this would be amended so that the requirements of the Presiding Officers’ Determinations made under the proposed

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subsection 11C(1) would need to be satisfied in place of the PSC’s guidelines (item 55, proposed amendment to paragraph 38(a)).

Classification of directions, rules and determinations as legislative instruments

Currently under the Act the Presiding Officers may:

 give general directions to departmental secretaries in relation to the management and leadership of PS employees (such directions must be published in the Gazette and tabled in the Parliament) (section 20)

 make rules about the classifications of PS employees by notice in the Gazette (section 23)

 by notice in the Gazette, determine the remuneration and other terms and conditions of employment applying to PS employees if the Presiding Officers are of the opinion that it is desirable to do so because of exceptional circumstances (section 24) and

 make determinations generally prescribing matters that the Act requires or permits the Determinations to prescribe, or which are necessary or convenient for the Determinations to prescribe for carrying out or giving effect to the Act (section 71).

The Bill would provide that Presiding Officers’ directions, Classification Rules and determinations under sections 20, 23 and 24 would be legislative instruments not requiring gazettal or tabling (items 49, 50 and 52, proposed amendments to subsections 20(5), 23(1), and 24(3)). The Bill would also insert notes specifying that Presiding Officers’ directions, Classification Rules and determinations are not subject to the disallowance or sunsetting provisions of the Legislative Instruments Act 2003 (Cth) (items 49, 51 and 53, proposed amendments to subsections 20(5), 23(1), and 24(3)). The Bill would also provide that Presiding Officers’ determinations made under section 71 are legislative instruments (item 90, proposed amendment to subsection 71(1)) and would repeal a current provision stating that section 71 determinations are disallowable for the purposes of the Acts Interpretation Act 1901 (Cth) (item 92, proposed repeal of subsection 71(6)).

Under the application, saving and transitional provisions of the Bill the Classification Rules in force at commencement would remain in force at and after commencement (Schedule 2, item 27).

Release of personal information

Existing provisions in the Act (section 68) empower the Determinations to authorise the disclosure of personal information in specific circumstances and to impose restrictions on the collection, storage, access, use or further disclosure of personal information so disclosed.

The Bill would repeal section 68 (item 45) in order to relocate and amend the provisions so as to enable the Determinations to authorise the disclosure or use of personal information and to impose restrictions on the collection, storage, access, further use or further disclosure of personal information so disclosed (item 44, proposed section 65AE).

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Other amendments

Acting appointments

The Bill proposes to insert a note at the end of a number of existing sections which deal with acting appointments in relation to the offices of the Parliamentary Librarian, the PSC, the PSMPC, departmental secretaries, and the Parliamentary Budget Officer (items 56, 58, 60, 63, 66, proposed amendments to subsections 38F(1), 46(1), 53(1), 64(1), 64XF(1)). The notes would reference provisions of the Acts Interpretation Act 1901 which apply to acting appointments.

The Bill would also repeal an identical provision in sections 38F, 46, 53, 64, and 64XF governing the validity of things done by or in relation to those purporting to act as the Parliamentary Librarian, the PSC, the PSMPC, departmental secretaries, or the Parliamentary Budget Officer as the same rules already apply under section 33AB of the Acts Interpretation Act 1901 (items 57, 59, 61, 62, 64, 65, 67, proposed repeal of subsections 38F(3), 46(3), 53(3), 64(2), 64XF(2)).

Miscellaneous amendments

The Bill would make a number of miscellaneous amendments to the Act including:

 amending the definition of ‘parliamentary service employee’ in section 7 so as to include those engaged as PS employees by virtue of machinery of government changes under the Public Service Act (item 68, proposed amendment to section 7)

 re-wording part of subsection 23(4), which deals with reductions in PS employees’ classifications by departmental secretaries without employee consent, so as to provide that secretaries may only reduce classifications without consent in specified circumstances (currently section 23(4) states that secretaries cannot reduce PS employees’ classifications without employee consent except in specified circumstances) (item 69, proposed subsection 23(4))

 standardising references in various provisions to remuneration and other terms and conditions of employment/appointment to ‘terms and conditions’ of employment/appointment (items 71-73, 77, 78, 81, 82, 85-88, proposed amendments to subsections 24(1), 24(3), 38E(1), 44(1), 51(1), 63(1))

 extending the application of current provisions relating to the forfeiture of non-Commonwealth remuneration received by PS employees for the performance of their PS duties to the Parliamentary Librarian (item 76, proposed subsections 31(2A) and (2B))

 providing the PSC and the PSMPC with explicit powers to engage consultants to assist in the performance of their functions (items 79 and 84, proposed subsections 40(4) and 48(3A))

 removing a specified maximum for payments that the Presiding Officers may authorise in special circumstances (currently $100 000) in order to enable the Public Service Regulations 1999 (under the Public Service Act) to set the maximum (item 89, proposed amendment to subsection 66(4)) and

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 increasing the maximum penalty that the Determinations can prescribe for offences against the Determinations from 10 penalty units to 50 penalty units (item 91, proposed amendment to subsection 71(2)).21

Schedule 2—application, saving and transitional provisions

In addition to the application, saving and transitional provisions noted above, the Bill contains a range of application, saving and transitional provisions intended to deal with a variety of other matters and circumstances arising from the effect of the provisions in Schedule 1 including:

 workplace diversity programs in effect at commencement (Schedule 2, item 5)

 the application of procedures for dealing with alleged breaches of the Code of Conduct and for determining breaches (Schedule 2, items 7 and 8)

 investigations being conducted by departmental secretaries into breaches of the Code of Conduct prior to commencement (Schedule 2, items 9 and 10)

 allegations of breaches of the Code of Conduct made prior to commencement, or breaches alleged to have been committed by employees who are PS employees at commencement or who become PS employees (or former PS employees) after commencement (Schedule 2, items 11, 13, 14)

 an inquiry being conducted by the PSMPC at commencement into an alleged breach of the Code of Conduct by the PSC or such an inquiry which the PSMPC had decided to conduct, but had not yet begun by the PSMPC at commencement (Schedule 2, item 12)

 whistleblower reports made or referred prior to commencement (and inquiries being conducted into whistleblower reports prior to commencement), and whistleblower reports made after commencement referring to breaches occurring prior to commencement (Schedule 2, items 15-17)

 the application of the new confidentiality of information provisions, in connection with the PSC’s and the PSMPC’s functions, to protect information obtained at or after commencement, and the application of the Determinations for the confidentiality of information obtained prior to commencement (Schedule 2, items 22 and 23)

 the application of the new immunity provisions to acts or omissions at or after commencement, and the application of the Determinations to provide civil immunity for acts or omissions prior to commencement (Schedule 2, items 25 and 26)

 the application of Determinations of terms and conditions of employment and appointment in force prior to commencement (Schedule 2, items 29 and 30)

 the engagement of consultants by the PSC and PSMPC prior to commencement (Schedule 2, item 31) and

21. Under section 4AA of the Crimes Act 1914 (Cth) a ‘penalty unit’ is currently $170, thus the maximum fine that the Determinations could prescribe would increase from $1700 to $8500.

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 the application of Determinations prescribing penalties for offences against the Determinations at and after commencement (Schedule 2, item 32).

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