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Parliamentary Service Bill 1997 [No. 2]
Bills Digest No. 170 1997-98
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Parliamentary Service Bill 1997 [No.2]
This is one of a number of bills that may provide further triggers for a double dissolution election.(1)
Section 57 of the Australian Constitution provides, in part, that:
If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.
The Bill was first introduced on 23 Octobe r 1997 and, together with the Parliamentary Service (Consequential Amendments) Bill 1997, was passed a week later. The Consequential Amendments Bill was passed without amendment by the Senate and received Royal Assent on 7 December 1997 but has yet to come into effect.
The Senate passed the original Bill with 43 amendments on 19 November 1997. The Senate amendments all proved unacceptable to the House which laid the Bill aside on 5 December 1997.
The present Bill is identical to the Bill passed by the House on 30 October 1997.
Since the early years of federation, the Parliamentary Departments have been staffe d under the common service-wide arrangements provided by the Public Service Act.(2)
The Public Service Act 1922 (the 1992 Act) provides that the administration of the Parliament is conducted through five Parliamentary Departments: the Department of the House of Representatives, the Department of the Senate, the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff and the Joint House Department.
The Department of the House of Representatives and the Department of the Senate are responsible for the provision of procedural, information and administrative services to Members and Senators respectively. The Department of the Parliamentary Library is re sponsible for the provision of library, reference and research services to Members and Senators. The Department of the Parliamentary Reporting Staff (DPRS) provides reporting, information technology, telecommunications and broadcasting services to the Parliament through Hansard, the Parliamentary Information Systems Office (PISO) and the Sound and Vision Office (SAVO). The Joint House Department performs building management, maintenance and catering functions associated with Parliament House.
The Presiding Officers (the Speaker of the House of Representatives and the President of the Senate) singly and jointly constitute the 'employing authorities' for the Parliament. In effect, the Speaker is the 'minister' for the House of Representatives and the President is the 'minister' for the Senate. The Speaker and the President have joint responsibility for the Joint House Department, the Department of the Parliamentary Library and for DPRS. Some powers presently exercised by the Public Service Commissioner are also exercised by the Presiding Officers.(3)
The total running costs of the five Parliamentary Departments for 1997-98 are in the order of $133 million.
The proposed Parliamentary Service, based on present Average Staffing Levels across all Departments, is likely to total about 1250 employees.(4) This compares with the projected numbers for the Australian Public Service(5) of about 115 000 by June 1998.(6)
Since 1982, the appropriations for the Parliamentary Departments have been by a separate Bill. This followed the Fraser Government's consideration of the report of the Senate Select Committee on Parliament's Appropriations and Staffing tabled on 18 August 1981. The Government agreed to a separate Appropriation Bill for Parliamentary Departments and further agreed that an Appropriation Bill of this kind would not be treated as a Bill for the ordinary annual services of the Government. Each Parliamentary Appropriation Bill is intended to cover both recurrent and capital expenditure and recognises that detailed control by the Parliament over individual items in this area is not necessary.
The Parliamentary Departments will also be subject to the new financial accounting and reporting measures for the Commonwealth public sector that were agreed by the Parliament on 29 September 1997 and came into effect on 1 January 1998.(7)
The Parliamentary Departments are also subject to the Workplace Relations Act 1996. All Parliamentary Departments are presently negotiating, or have negotiated, new certified agreements under this legislation.
The proposal to create a separate Parliamentary Service under separate legislation has a relatively short history.
In December 1994, the Report of the Public Service Act Review Group (the McLeod Report) accepted the view of the then Presiding Officers that the Parliamentary Departments be covered in a new Public Service Act, rather than by separate legislation.(8)
The immediate history of the present Bill is outlined in a submission made by the Secretary of DPRS and the Acting Parliamentary Librarian (John Templeton) and the Secretary of the Joint House Department (Michael Bolton) to the Joint Committee of Public Accounts (JCPA) inquiry into the Public Service Bill 1997 and the Public Employment (Consequential and Transitional) Amendment Bill 1997.(9) That submission also deals in detail with the central issue of mobility between the two services. It states:
3. On 13 May 1997 the Prime Minister wrote to the Speaker and the President advising that the government, when considering the content of the legislation to replace the 1922 Act, had decided that 'it would be more appropriate for the parliamentary departments to be covered by their own legislation in future.' The Prime Minister said this decision recognised 'the unique position of the staff of the departments providing services to the Parliament and the independence of the Presiding Officers.'
4. On 18 May 1997 the then Minister Assisting the Prime Minister for the Public Service, Mr Reith, released a discussion paper 'the Public Service Act 1997: Accountability in a Devolved Management Framework'. The discussion paper reiterated the government's decision to remove the parliamentary departments from the proposed Public Service Act 1997 and in respect of future mobility between the APS and the Parliament said: 'APS employees who wish to work in the parliamentary departments can either resign from the APS or seek leave from their Secretaries.'
5. The Public Service Bill 1997, introduced into the House of Representatives on 26 June 1997, reflects that position. There are no provisions which allow an APS employee to move to employment in the Parliament without penalty. Equally there are no provisions which will give an employee of the Parliament the right to apply for employment in the APS and, if successful on merit, to move to the APS without penalty.(10)
In his evidence to the JCPA, the Clerk of t he Senate put similar views regarding mobility, Mr Evans observing that:
There must be ready mobility between the Public Service and the parliamentary service in the sense that public servants should be able to come readily to the parliamentary service and to bring with them the entitlements that they have as public servants…I stress that we do not envisage parliamentary staff taking with them all the entitlements that they have as parliamentary staff, because some are peculiar and do not exist in the Public Service…
Without ready mobility, the parliamentary service will wither on the vine, because it relies for recruitment on the Public Service very heavily. We rely on getting good people coming from the Public Service and going back again. If they do not feel that they can readily move to the parliamentary service and go back again, we will not get the quality of staff that we have been getting in the past. So that mobility is absolutely crucial. The absence of it would so cripple the parliamentary departments that it would cripple the parliament.(11)
The JCPA's Report supports the establishment of the Parliamentary Service as a separate service.(12) Reflecting the importance of mobility between the two services, the JCPA recommended that:
The Parliamentary Service Bill should provide for reciprocal mobility arrangements between the Parliamentary Service and the Australian Public Service which enable staff of either service to compete on merit for jobs in the other service and to carry over relevant entitlements.
If the Parliamentary Service Bill is not enacted at the same time as the Public Service Bill 1997, relevant provisions should be included in the Public Service Bill 1997 to ensure this mobility.(13)
The Senate Finance and Public Administration Legisla tion Committee reported on 2 October 1997 on the two Public Service Bills and observed in relation to the proposed Parliamentary Service Bill that:
It is desirable that the two services have broadly similar structures to facilitate mobility between the two. Thus concerns raised with regard to the parliamentary service are broadly similar to those raised with regard to the new 'APS'.(14)
Clause 26 of the present Bill makes provision for reciprocal mobility between the two services.
The Senate Standing Committee on Appropriations and Staffing has considered the Bill and commended it to the Senate.(15)
The main clauses of the Bill as first introduced are discussed in Bills Digest No.68 of 1997-98.
The present Bill largely mirrors the provisions of the Public Service Bill 1997. Accordingly, the overwhelming majority of Senate amendments to the Bill as first debated in the Senate were also moved in relation to the Public Service Bill 1997. Those amendments are discussed in Bills Digest No.164 .
It is to be anticipated that the Senate will focus on the amendments proposed when this Bill and the Public Service Bill 1997 were last considered by it in November 1997.
This Digest concentrates on the more significant of the Senate’s amendments to the present Bill which do not replicate amendments moved in relation to the Public Service Bill 1997.
Clause 54 continues the offices of the Clerk of the Senate and Clerk of House of Representatives (the Clerks).
Clause 57 deals with the appointment of the Clerks. Each Clerk is to be appointed after the relevant Presiding Officer has consulted members of the relevant Chamber. The Bill does not stipulate the method or nature of such consultation.
Subclause 57(3) provides that the maximum term of appointment for each Clerk is 10 years. It also provides that a person may only serve one term as Clerk. Reflecting the provisions of the Public Service Act 1922 , the Clerks of each House presently enjoy tenure subject to age retirement at 65 or early termination on grounds of incapacity. Clause 74 translates the Clerks to the structure created by the present Bill and deems their term of office to have begun from the date on which the new Bill commences. Hence the Bill will affect the tenure of both the present Clerks but their previous service will not count towards the maximum 10 year period for which they may remain in office.
Senate amendments to clause 57 would alter the method of appointment, providing that each Presiding Officer must formally consult the relevant Chamber before making a new appointment. The Senate also proposed a new subsection 57(2A) that would require each House to determine the form of consultation.
Clause 9 creates a separate Australian Parliamentary Service.
The Parliamentary Service is to consist of all persons employed by the (presently five) Parliamentary Departments, including Departmental Secretaries, SES and non SES staff.
Clause 26 allows for the movement of staff between the Public Service and the Parliamentary Departments without a break in continuity of employment or loss of accrued benefits. This appears to meet the substantive requirements stipulated by the JCPA in Report No. 353 as discussed above. The clause does not specifically deal with movement of staff between Parliamentary Departments. This matter is presumably to be dealt with by another statutory instrument.
Clauses 76 and 77 deal with specific 'rights of return' for employees who are working in non-APS Commonwealth agencies. The provisions are the equivalent of those in the Public Employment (Consequential and Transitional) Amendment Bill 1997.
The Senate amended Clause 26 to add a provision dealing with compulsory moves between Parliamentary Departments and between the proposed Parliamentary Service and the APS. The amendment would have added subclause 26A empowering the Parliamentary Service Commissioner (with the agreement of the relevant Presiding Officer or Officers) to transfer excess Parliamentary Service employees to another Parliamentary Department or to the APS. This proposed amendment (if carried) will only apply to staff engaged in the Parliamentary Departments under the Public Service Act 1922 at the time that this Act comes into effect.
The proposed amendment is designed to protect the current rights of existing parliamentary staff. Those rights, in relation to redundancy and redeployment, are secured by the Public Service Act 1922 and relevant industrial awards. Presently, excess staff have the opportunity of seeking redeployment anywhere in the APS. The creation of a separate Parliamentary Service limits redeployment options to the much smaller pool of positions available in the Parliamentary Departments.
The Government opposed this amendment as first moved and did not expand on its reasons for continuing its opposition to proposed clause 26A in the form finally proposed.(16)
The Parliamentary Service Commissioner
Clause 38 creates the position of Parliamentary Service Commissioner (PARSC).
Clause 42 provides that the PARSC may be appointed for a period of up to 5 years. The appointment is renewable and may (but need not) be held by the person occupying the office of Public Service Commissioner.
The PARSC's functions are detailed in clause 39 and are somewhat more limited than those given to the Public Service Commissioner under the Public Service Bill 1997. Subclause 39(1) of the present Bill provides that the PARSC may give advice to the Presiding Officers on management policies and practices. Where requested, the PARSC may inquire into and report on matters relating to the Parliamentary Service that are referred for investigation by the Presiding Officers.
By contrast, clause 41 of the Public Service Bill 1997 empowers the Public Service Commissioner to initiate inquiries into a wider and more detailed series of matters than are to be given to the PARSC. The matters on which the Public Service Commissioner ( but not the PARSC) may instigate an inquiry include the operation of the legislated Code of Conduct and core Service Values provided for under the respective Bills.
Clause 40 of the present Bill confers certain investigative powers on the PARSC. These include powers identical to those that may be exercised under the Auditor-General Act 1997. It is stated in the Explanatory Memorandum that this clause is the equivalent of clause 43 in the Public Service Bill 1997 [No.2]. This is largely correct. It may be noted, however, that clause 43 of the Public Service Bill 1997 is structured to provide separately for the Public Service Commission to exercise additional powers in relation to the conduct of 'special inquiries'. Such ‘special inquiries’ may include investigations into the adequacy of Agency procedures for ensuring compliance with the Public Service Code of Conduct and the incorporation of Service Values into agency operations.
Maintenance of Parliamentary Service Values
Clause 11 provides that the PARSC may advise the Presiding Officers in relation to implementation and scope for application of the Parliamentary Service Values.
The Senate carried three amendments to this clause. Those amendments:
â¢ made it mandatory for the PARSC to give advice to the Presid ing Offciers on Parliamentary Service Values;
â¢ required that the Presiding Officers issue written determinations in relation to each of the Parliamentary Service Values;
â¢ provided that where an issued determination relating to Parliamentary Service Values is contrary to advice given by the PARSC, the Presiding Officers must inform each House of their reasons for not accepting that advice.
The substance of clause 11 is similar to the equivalent provision in the Public Service Bill 1997 [No.2]. The relationship between the PARCS and the Presiding Officers is, however, unique. Whereas the Public Service Commissioner can issue directions, the PARSC can only give advice. The above amendments to clause 11 arise out of this key difference.
SES employees are senior managers and specialists in each of the Parliamentary Departments. Like their equivalents in the APS, they are to be treated under the proposed Act as employees rather than holders of a particular office. As at December 1996, 26 of the Parliament's 1207 permanent staff were SES officers.(17) This compares with 1578 SES officers and approximately 120 000 permanent staff in the rest of the APS.(18)
Clause 34 outlines the role of the SES in the Parliamentary Service.
Clause 35 requires the PARSC to issue written guidelines relating to the employment of SES staff.
The Senate amended clause 35 obliging the Presiding Officers, on receiving advice from the PARSC, to issue determinations in writing about certain SES employment matters. A similar Senate amendment was carried in relation to clause 36 of the Public Service Bill 1997. The amendment to the Bill as first presented provided that the Presiding Officers must inform each House of their reasons for not accepting the PARSC’s advice in relation to the making of a determination affecting SES terms of employment.
Part 9 of the Bill makes provision for transition from the present arrangements under the Public Service Act 1922 to the new and free-standing legal framework.
Clause 78 provides for the continued operation of determinations relating to pay and conditions made under the Public Service Act 1922 .
Under proposed section 24 , Secretaries of Parliamentary Departments may from time to time determine in writing the remuneration and other terms and conditions of employment of their employees.
Existing determinations continue to have effect but may be revoked by the Secretaries in the same manner as determinations made under proposed section 24 of the Public Service Bill 1997. However, subclause 78(3) further provides that all unrevoked determinations will cease to have effect on the first anniversary of the new legislation coming into effect.
The Senate amended the Bill:
â¢ preventing Secretaries amending or revoking a determination in a way that diminishes any provisions in an award or certified agreement; and
â¢ extending the sunset provision in subclause 78(3) from 12 months to 3 years.
A similar amendment was moved in relation to the two Bills dealing with the APS. The amendment in that case was, however, not to the main Bill but to clause 9 of the Public Employment (Consequential and Transitional) Amendment Bill 1997.
1. The Senate’s rejection of the Workplace Relations Amendment Bill [No.2] on 25 March 1998 means that the pre-conditions for the Prime Minister requesting a double dissolution election have been met. The Government, however, is under no obligation to exercise this option either immediately or at all and may now proceed to stockpile any further Bills that come within the terms of section 57 prior to approaching the Governor-General.
2. For more detail see Explanatory Memorandum , Public Employment (Consequential and Transitional) Amendment Bill 1997: 22-23.
3. See principally sections 9-9C of the Public Service Act 1922 .
4. Budget Paper No.1 , 1997-98, 4-147.
5. Persons engaged under the Public Service Act 1922 .
6. PSMPC, APS Staffing Statistics Report 1996 :12 and Budget Paper No.1, 1997-98,
7. Auditor-General Act 1997 ; Audit (Transitional and Miscellaneous) Amendment Act 1997 ; Financial Management and Accountability Act 1997 ; and Commonwealth Authorities and Companies Act 1997.
8. Report at pages, 128-129.
9. Report No.353 , September 1997.
10. Submissions, volume 2, 186-187.
11. Transcript of evidence, 7 August 1997, 126-127.
12. Ibid., 137.
13. Ibid., 137.
14. Report, 5.
15. Report No. 28, 22 October 1997. The Report does not record the Committee's reasoning.
16. Senate, Parliamentary Debates , 19 November 1997, 9171-9173 and 9183-9185.
17. Statutory Office-holders are not classified as members of the SES.
18. PSMPC, APS Staffing Statistics Report 1996 , 48.
30 March 1998
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