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Public Service Bill 1999

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1999

 

 

 

The Parliament of the Commonwealth of Australia

 

House of Representatives

 

 

 

 

 

 

 

 

Public Service Bill 1999

 

 

 

 

 

Explanatory Memorandum

 

 

 

 

 

(Circulated by Authority of the Minister for Education, Training and Youth Affairs and the Minister Assisting the Prime Minister for the Public Service, the Honourable David Kemp, MP)

 

 

 

 

 

 

 

 

 

Cat. No.        ISBN



CONTENTS

CONTENTS............................................................................................................................................................................... ii

Public Service Bill 1999 - OUTLINE......................................................................................................................... 1

Financial Impact Statement................................................................................................................................ 1

Background - The Current Legislative Framework............................................................................. 2

Background - Development of the Bill........................................................................................................ 2

Public Employment (Consequential and Transitional) Amendment Bill 1999....................... 5

Public Service Bill 1999.............................................................................................................................................. 6

NOTES ON CLAUSES............................................................................................................................................................. 7

Part 1 - Preliminary................................................................................................................................................... 7

Clause 1- Short title...................................................................................................................................................... 7

Clause 2 - Commencement........................................................................................................................................... 7

Clause 3 - Objects of this Act....................................................................................................................................... 7

Clause 4 - This Act binds the Crown......................................................................................................................... 7

Clause  5 -  This Act extends to things outside Australia...................................................................................... 7

Australian Territories.................................................................................................................................................. 7

Clause 6 - Engagement of employees in Department or Executive Agency....................................................... 8

Part 2 - Interpretation............................................................................................................................................ 9

Clause 7 - Interpretation............................................................................................................................................. 9

Acting SES employee.................................................................................................................................................. 9

Agency......................................................................................................................................................................... 9

Agency Head............................................................................................................................................................... 9

Agency Minister........................................................................................................................................................ 10

APS............................................................................................................................................................................ 10

APS employee........................................................................................................................................................... 10

APS Values................................................................................................................................................................ 11

Classification Rules................................................................................................................................................... 11

Code of Conduct........................................................................................................................................................ 11

Commissioner............................................................................................................................................................ 12

Commissioner’s Directions....................................................................................................................................... 12

Department................................................................................................................................................................ 12

Executive Agency...................................................................................................................................................... 12

Head........................................................................................................................................................................... 13

Head of Mission........................................................................................................................................................ 13

Locally engaged employee......................................................................................................................................... 13

Merit Protection Commissioner................................................................................................................................ 14

Non-SES employee.................................................................................................................................................... 14

Overseas.................................................................................................................................................................... 14

Prime Minister’s Department................................................................................................................................... 14

Public Service Minister.............................................................................................................................................. 14

Secretary.................................................................................................................................................................... 15

SES............................................................................................................................................................................. 15

SES employee............................................................................................................................................................ 15

Statutory Agency...................................................................................................................................................... 15

Other Notes on Interpretation.................................................................................................................................. 15

Concept of office....................................................................................................................................................... 15

Instruments................................................................................................................................................................ 16

Superannuation.......................................................................................................................................................... 17

Clause 8 - Workplace Relations Act........................................................................................................................ 17

Part 3 - The Australian Public Service......................................................................................................... 18

Clause 9 - Constitution of the APS.......................................................................................................................... 18

Clause 10 - APS Values............................................................................................................................................. 18

(a) Apolitical............................................................................................................................................................. 18

(b) Merit.................................................................................................................................................................... 18

(c) No discrimination................................................................................................................................................. 19

(d) Highest ethical standards..................................................................................................................................... 19

(e) Accountability..................................................................................................................................................... 19

(f)  Responsiveness.................................................................................................................................................... 20

(g) Service delivery.................................................................................................................................................... 20

(h) High quality leadership........................................................................................................................................ 21

(i)  Cooperative workplace relations......................................................................................................................... 21

(j)  A good workplace................................................................................................................................................ 21

(k) Results focus........................................................................................................................................................ 21

Definition of Merit.................................................................................................................................................... 21

Implementation of APS Values................................................................................................................................. 22

Extension of APS Values........................................................................................................................................... 22

Clause 11 - Commissioner’s Directions about APS Values................................................................................ 22

Clause 12 - Agency Heads must promote APS Values......................................................................................... 23

Clause 13 - The APS Code of Conduct................................................................................................................... 23

(1) Honesty............................................................................................................................................................... 23

(2) Care and diligence................................................................................................................................................. 23

(3) Respect and courtesy........................................................................................................................................... 23

(4) Compliance with the law..................................................................................................................................... 23

(5) Compliance with directions................................................................................................................................. 24

(6) Confidentiality..................................................................................................................................................... 24

(7) Avoidance of conflict of interest.......................................................................................................................... 24

(8) Use of Commonwealth resources........................................................................................................................ 24

(9) No false or misleading information...................................................................................................................... 24

(10)     No improper advantage.................................................................................................................................. 25

(11)     Upholding the integrity of the APS............................................................................................................... 25

(12)     Upholding Australia’s reputation.................................................................................................................. 25

(13)     Any other conduct requirement..................................................................................................................... 25

Agency Codes............................................................................................................................................................ 25

Clause 14 - Agency Heads bound by Code of Conduct....................................................................................... 26

Clause 15 - Breaches of the Code of Conduct....................................................................................................... 26

Current disciplinary provisions................................................................................................................................. 26

Inadequacy of 1922 PSA........................................................................................................................................... 27

Sanctions for breach................................................................................................................................................... 27

Agency procedures.................................................................................................................................................... 28

Procedural fairness..................................................................................................................................................... 28

Transitional................................................................................................................................................................ 29

Clause 16 - Protection for public interest whistleblowers................................................................................. 29

Crimes Act................................................................................................................................................................. 29

Agency procedures.................................................................................................................................................... 29

Review of actions...................................................................................................................................................... 30

Non-APS matters...................................................................................................................................................... 30

Clause 17 - Prohibition on patronage and favouritism...................................................................................... 30

Clause 18 - Promotion of employment equity........................................................................................................ 30

Clause 19 - Limitation on Ministerial directions to Agency Head................................................................... 31

Part 4 - APS employees............................................................................................................................................ 32

Division 1 - APS employees generally............................................................................................................. 32

Clause 20 - Employer powers etc. of Agency Heads............................................................................................. 32

Clause 21 - Prime Minister’s directions to Agency Heads.................................................................................. 33

Clause 22 - Engagement of APS employees........................................................................................................... 33

Categories of employment......................................................................................................................................... 33

Conditions................................................................................................................................................................. 33

Probation................................................................................................................................................................... 34

Citizenship................................................................................................................................................................ 34

Formal qualifications................................................................................................................................................. 34

Security and character clearances............................................................................................................................... 34

Health Clearances...................................................................................................................................................... 35

Other conditions........................................................................................................................................................ 35

Citizenship requirement............................................................................................................................................ 35

Clause 23 - Classification Rules.............................................................................................................................. 35

Current position........................................................................................................................................................ 35

New arrangements..................................................................................................................................................... 36

Clause  24 - Remuneration and other conditions................................................................................................. 36

Introduction............................................................................................................................................................... 36

Agency Head............................................................................................................................................................. 37

Public Service Minister.............................................................................................................................................. 38

Clause 25 - Assignment of duties............................................................................................................................. 38

Clause 26 - Voluntary moves between Agencies................................................................................................... 38

Clause 27 - Compulsory moves between Agencies............................................................................................... 39

Clause 28 - Suspension.............................................................................................................................................. 39

Clause 29 - Termination of employment................................................................................................................. 40

Clause 30 - Retirement............................................................................................................................................... 41

Clause 31 - Forfeiture of additional remuneration.............................................................................................. 41

Clause 32 - Right of return for election candidates............................................................................................. 42

Clause 33 - Review of actions................................................................................................................................... 43

Present position......................................................................................................................................................... 43

New approach........................................................................................................................................................... 43

External review.......................................................................................................................................................... 45

Reports...................................................................................................................................................................... 45

Division 2 - The Senior Executive Service..................................................................................................... 45

Clause 34 - SES employees....................................................................................................................................... 46

Clause 35 - Constitution and role of SES.............................................................................................................. 46

Clause 36 - Commissioner’s Directions on SES matters..................................................................................... 47

Clause 37 - Incentive to retire.................................................................................................................................. 47

Clause 38 - Termination............................................................................................................................................ 47

Division 3 - Heads of Mission................................................................................................................................ 48

Clause 39 - Heads of Mission (HoMs).................................................................................................................... 48

Part 5 - The Public Service Commissioner.................................................................................................... 50

Division 1 - Public Service Commissioner’s functions etc.................................................................. 50

Clause 40 - Public Service Commissioner............................................................................................................. 50

Clause 41 -  Public Service Commissioner’s functions........................................................................................ 51

(a) Evaluation of incorporation of APS Values......................................................................................................... 51

(b) Evaluation of compliance systems for Code of Conduct..................................................................................... 51

(c) Public interest whistleblowing............................................................................................................................. 51

(d) Reports to the Public Service Minister................................................................................................................ 52

(e) Promotion of APS Values and Code of Conduct................................................................................................. 52

(f)  Breaches by Agency Heads................................................................................................................................. 52

(g) APS employment policies and practices............................................................................................................. 52

(h) Continuous improvement.................................................................................................................................... 52

(i)  APS training and development............................................................................................................................. 53

(j)  Leadership in the APS......................................................................................................................................... 53

(k) Advice and assistance.......................................................................................................................................... 53

(l)  Functions conferred by Regulations.................................................................................................................... 53

Other functions.......................................................................................................................................................... 53

Clause 42 -  Public Service Commissioner’s Directions..................................................................................... 54

Clause 43  -  Public Service Commissioner’s inquiry powers............................................................................ 54

Special inquiries......................................................................................................................................................... 55

Information gathering powers.................................................................................................................................... 55

Relationship with other laws..................................................................................................................................... 56

Confidentiality........................................................................................................................................................... 56

Penalties..................................................................................................................................................................... 57

Clause 44 - Annual report......................................................................................................................................... 57

Annual report on PSMPC......................................................................................................................................... 57

Deadlines................................................................................................................................................................... 57

State of the Service Report........................................................................................................................................ 57

Division 2 - Commissioner’s appointment, conditions, etc................................................................ 58

Clause 45 - Appointment of Commissioner............................................................................................................ 58

Clause 46 - Remuneration etc.................................................................................................................................. 58

Clause 47 - Removal from office............................................................................................................................... 58

Clause 48 - Acting Commissioner............................................................................................................................ 59

Part 6 - The Merit Protection Commissioner............................................................................................ 60

Division 1-Merit Protection Commissioner’s functions etc............................................................. 60

Clause 49 - Merit Protection Commissioner......................................................................................................... 60

Clause 50 - Merit Protection Commissioner’s functions..................................................................................... 60

Report by Merit Protection Commissioner............................................................................................................ 61

Report by the Public Service Commissioner.......................................................................................................... 61

Clause 51- Annual report.......................................................................................................................................... 61

Division 2-Merit Protection Commissioner’s appointment, conditions etc........................... 61

Clause 52 - Appointment of Merit Protection Commissioner............................................................................. 61

Clause 53 - Remuneration etc.................................................................................................................................. 61

Clause 54 - Removal from office............................................................................................................................... 62

Clause 55 - Acting Merit Protection Commissioner............................................................................................ 62

Part 7 - Secretaries of Departments............................................................................................................. 63

Clause 56 - Creation of offices of Secretary........................................................................................................... 63

The present position................................................................................................................................................. 63

Creation of office....................................................................................................................................................... 64

Abolition of office..................................................................................................................................................... 64

Name of office........................................................................................................................................................... 64

Clause 57 - Responsibility for managing Department......................................................................................... 64

‘Under the Minister’................................................................................................................................................. 64

Clause 58 - Appointment etc. of Secretary............................................................................................................. 65

Appointment............................................................................................................................................................. 65

Reports...................................................................................................................................................................... 65

Multiple appointments............................................................................................................................................. 65

Irregularities............................................................................................................................................................... 65

Clause 59  - Termination of appointment............................................................................................................... 65

Termination............................................................................................................................................................... 65

Reports...................................................................................................................................................................... 66

Application of WRA................................................................................................................................................. 66

Clause 60 - Engagement of former Secretaries..................................................................................................... 66

Clause 61 - Remuneration and other conditions.................................................................................................. 66

Consultation with Remuneration Tribunal................................................................................................................ 66

Discretionary allowances and payments................................................................................................................... 66

Retiring age................................................................................................................................................................ 67

Clause 62 - Acting Secretary.................................................................................................................................... 67

Clause 63 - Annual report......................................................................................................................................... 68

Part 8 - Management Advisory Committee............................................................................................... 70

Clause 64 - Management Advisory Committee..................................................................................................... 70

Part 9 - Executive Agencies................................................................................................................................. 71

Background................................................................................................................................................................ 71

Clause 65 - Establishment etc. of Executive Agencies......................................................................................... 71

Staffing arrangements................................................................................................................................................. 71

Office of Agency Head.............................................................................................................................................. 72

Clause 66 - Responsibility for managing Agency................................................................................................. 72

Clause 67 - Appointment etc. of Head..................................................................................................................... 72

Clause 68 - Remuneration and other conditions.................................................................................................. 73

Consultation with Remuneration Tribunal................................................................................................................ 73

Clause 69 - Acting Head............................................................................................................................................ 73

Irregularities............................................................................................................................................................... 73

Clause 70 - Annual report......................................................................................................................................... 73

Deadlines................................................................................................................................................................... 74

Part 10 - Administrative arrangements and reorganisations.................................................... 75

Clause 71 - Arrangements with States and Territories........................................................................................ 75

Clause 72 - Machinery of government (MoG) changes....................................................................................... 75

MoG changes: movement between APS Agencies.................................................................................................... 75

MoG changes: movement out to non-APS (Commonwealth) authorities................................................................. 75

MoG changes: movement into APS Agencies from other Commonwealth employment......................................... 76

MoG changes: movement into APS Agency............................................................................................................. 76

Effect of determination.............................................................................................................................................. 76

WRA termination etc. rules....................................................................................................................................... 76

Interpretation............................................................................................................................................................. 76

Controlling interest.................................................................................................................................................... 76

Transfer to State or Territory.................................................................................................................................... 77

Part 11 - Miscellaneous......................................................................................................................................... 78

Clause 73 - Payments of money in special circumstances................................................................................... 78

Present law................................................................................................................................................................ 78

Proposed future arrangements................................................................................................................................... 78

Payments in special circumstances............................................................................................................................ 78

Large amounts............................................................................................................................................................ 78

Conditions................................................................................................................................................................. 79

Appropriations.......................................................................................................................................................... 79

Clause 74 - Locally engaged  employees............................................................................................................... 79

Present position......................................................................................................................................................... 79

Engagement................................................................................................................................................................ 80

Rights, duties and powers of employer..................................................................................................................... 80

Clause 75 - Attachment of salaries to satisfy judgement debts........................................................................... 80

Clause 76 - Release of personal information......................................................................................................... 81

Information Privacy Principles.................................................................................................................................. 81

New PS Regs............................................................................................................................................................. 81

Clause 77 - Positions................................................................................................................................................. 81

Introduction............................................................................................................................................................... 81

Creation of formal positions...................................................................................................................................... 82

Nomination to positions............................................................................................................................................ 82

Interpretation............................................................................................................................................................. 82

Clause 78 - Delegation of powers or functions..................................................................................................... 82

Prime Minister........................................................................................................................................................... 82

Public Service Minister.............................................................................................................................................. 83

Agency Minister........................................................................................................................................................ 84

Public Service Commissioner..................................................................................................................................... 84

Agency Head............................................................................................................................................................. 85

Delegations to a ‘second delegate’............................................................................................................................. 86

General rules about delegations................................................................................................................................. 86

Clause 79 - Regulations............................................................................................................................................ 87

Attachments.................................................................................................................................................................... 89

ATTACHMENT A................................................................................................................................................................... 90

Key powers and responsibilities of Secretaries in a devolved APS*........................................... 90

ATTACHMENT B................................................................................................................................................................... 92

Public Service Act 1922 : Summary of Legislative History.................................................................. 92

ATTACHMENT C................................................................................................................................................................... 95

List of agencies currently staffed under the Public Service Act 1922 ..................................... 95

ATTACHMENT D................................................................................................................................................................ 102

Text of sections 32-35 of Auditor-General Act 1997............................................................................. 102

Power of Auditor-General to obtain information........................................................................... 102

Access to premises etc.......................................................................................................................................... 102

False statements etc............................................................................................................................................ 103

Self-incrimination no excuse.......................................................................................................................... 103

ATTACHMENT E................................................................................................................................................................. 105

Major powers and functions of all Agency Heads as provided in Public Service Bill 1999             105

ATTACHMENT F................................................................................................................................................................. 106

Abbreviations............................................................................................................................................................ 106

 

 



Public Service Bill 1999 - OUTLINE

1.                The Public Service Bill 1999 (hereafter ‘Bill’) is intended to replace the current legislative framework for the establishment and management of the Australian Public Service (‘APS’).

 

2.                The Bill is an element in the Government’s public service reform agenda, which has three parts

•                 modernising the APS legislative framework- this is being done in this Bill which is a careful balance between devolved responsibility and improved accountability;

•                 simplifying APS awards and agreement-making processes - this will be done by the Department of Employment, Workplace Relations and Small Business (‘DEWRSB’) in accordance with the Workplace Relations Act 1996 (‘WRA’); and

•                 transforming the APS management culture - this will be the responsibility of Agency Heads.

 

3.                This public service reform agenda is being implemented within the new workplace relations framework that has been set out in the WRA .   The Government considers that the APS should operate, to the maximum extent consistent with its public responsibilities, under the same industrial relations and employment arrangements as apply to the rest of the Australian workforce.

 

4.                Within community standards the Bill sets out

•                 the important values and culture the Parliament wants in the APS (see Bill Part 3);

•                 the role and powers of Agency Heads, and their relationship to Ministers, in a clear and public way;

•                 a clear statement to those within the APS, and to the Australian people, of the conduct that is expected of public servants (see Bill cl.13);

•                 significant new inquiry, evaluation and reporting powers for the Public Service Commissioner (see Bill Part 5 Division 1);

•                 an independent mechanism for review of employment actions affecting the employment of an APS employee (see Bill cl.33 and Bill Part 6); and

•                 a mechanism by which Government decisions on administrative arrangements and reorganisations can be implemented (see Bill Part 10).

Financial Impact Statement

5.                The Bill seeks to provide a legal framework for APS employment which achieves an optimal balance between improved accountability and devolved responsibility (summarised at Attachment A) so as to maximise the efficiency and effectiveness of the APS. The framework should also encourage managers to transform the present APS management culture by seeking maximum value for money rather than minimum risk-taking.

 

6.                This Bill is intended to improve the quality of people management in the APS. This, in turn, is expected to translate, among other things, into

•                 more efficient, effective and ethical use of the Commonwealth’s resources (cf. Financial Management and Accountability Act 1997 (‘FMA Act’) s.44);

•                 responsiveness to Government in providing timely advice and implementing the Government’s policies and programs; and

•                 fair, effective, impartial and courteous services for all Australians.

Background - The Current Legislative Framework

7.                The current legislative framework for the APS is principally contained in the Public Service Act 1922 (‘1922 PSA’ - see Attachment B for a summary of its legislative history). 

 

8.                The 1922 PSA has been amended over 100 times.  However, the amendment process has been of a piecemeal nature, resulting in the present patchwork of provisions enacted over more than 75 years.  This patchwork means that the Act is still being used as a mechanism of control and is riddled with unnecessary restrictions and arcane details. This had led to critical comment about the 1922 PSA, and in particular to arguments that

(a)              it has become excessively complex and fragmented;

(b)              it does not set out the current allocation of people management policy responsibilities among the central agencies;

(c)              its language and organisational layout continue to reflect the climate of a previous age with central regulation of people management policy and operations; and

(d)              it is not user-friendly to personnel units and line managers operating in an increasingly devolved management environment.

 

9.                The current Bill is directed towards remedying these deficiencies and enacting modern legislation to provide a more effective legal framework for people management in the APS into the year 2000 and beyond.

Background - Development of the Bill

10.              In November 1996 the Minister for Industrial Relations issued a discussion paper entitled Towards a Best Practice Australian Public Service (‘TBPAPS Paper’).  This paper emphasised that:

•                 the workplace arrangements for the public service should be based upon those in the private sector;

•                 there needs to be far greater flexibility in the manner in which staff are managed;

•                 agency heads should be accountable for the running of their organisations and have the maximum autonomy over financial and people management;

•                 the high level of process that derives from legislative and industrial restrictions, and which imposes high overhead costs on public administration, should be removed;

•                 the concept of the APS as a single labour market, defined in terms of common employment standards, conditions and job classifications is no longer appropriate; but that

•                 the common ethos and values that distinguish public administration need to be maintained.

 

11.              In May 1997 the Public Service and Merit Protection Commission (‘PSMPC’) and the then Department of Workplace Relations and Small Business (‘DWRSB’) - formerly the Department of Industrial Relations - issued a further document Accountability in a Devolved Management Framework (‘ADMF’ Paper).  Following the consultation process on the earlier paper, this paper argued (p.4) that

‘The Public Service Act 1922 needs to be substantially rewritten...

To achieve maximum flexibility while maintaining a high level of accountability, the new Public Service Act will establish an interlocking system of powers and responsibilities, integrated within a genuinely devolved managerial environment.  While employment decisions will be the responsibility of individual agencies, public accountability will be monitored for the Service as a whole.  A schematic representation of this balance between improved accountability and devolved responsibility is set out in the following Table [1] .

For the first time the Act will provide a model of accountability in which the public interest is clearly articulated.  It will recognise that public servants and the programs they deliver are paid for by the public.  As a consequence, the public service needs to maximise its efficiency within a simplified and transparent accountability matrix.

It is proposed that the new Act will recognise the distinctive ethos of Australia’s public administration and Parliament’s expectations of the public service.  The public interest in maintaining public service integrity and professionalism will be met by the obligations relating to: a core of statutory Values, encompassing qualities such as political impartiality, high ethical standards, workplace equity and employment decisions based on merit; a code of conduct; directions set by the Public Service Commissioner; and the internal and external review of grievances.’

 

12.              The paper went on to point out (p.6) that the current legislative framework has a number of serious deficiencies and omissions which would be rectified by the Public Service Bill 1997

•                 the character or purpose of public service is not clearly identified;

•                 the ethos of public service is not defined;

•                 there is no acknowledgement of the need for a non-partisan and apolitical public service;

•                 there is no prohibition on Ministerial direction of public service staffing decisions;

•                 although there are scattered and contradictory references to merit there is no clear statement of the principle and how it is to be applied;

•                 there is no code of conduct;

•                 the respective roles, responsibilities and powers of Ministers, Secretaries and the Public Service Commissioner are not set out; and

•                 there is no explicit provision for the Public Service Commissioner to report through the Minister to the Parliament.

 

13.              From consultations and discussions on this paper it is clear that there is strong general support for a Bill which promotes and enhances the ethos of public service.  Accordingly the 1997 Bill recognised that

•                 the primary employment relationship is between Agency Head on behalf of the Commonwealth as employer and APS employee at the agency level (cf WRA para 3(b));

•                 employment matters should generally be left to the same workplace processes that apply in the rest of the community.

 

14.              Following the introduction of the Public Service Bill 1997 into the House of Representatives it was referred to the Joint Committee of Public Accounts (‘JCPA’) together with the accompanying Public Employment (Consequential and Transitional) Amendment Bill 1997.  The Committee’s Report 353, ‘An Advisory Report on the Public Service Bill 1997 and the Public Employment (Consequential and Transitional) Amendment Bill 1997’ (‘JCPA Report’) was handed down on 29 September 1997.

15.              The Government accepted the thrust of the recommendations of the Committee, either fully or in large measure.

16.              The Bill incorporates amendments introduced by the Government in the House of Representatives.  Those amendments primarily reflected recommendations of the JCPA which had been accepted by Government.  They included also amendments made to clarify the meaning of clauses of the Bill and amendments of a technical nature.  The principal purpose of the Bill was not affected by the amendments which were made.

17.              The JCPA supported the need for a new Public Service Act and favoured simplification, modernisation and the more accessible format of the Bill.  The Government accepted the JCPA’s recommendations which identified opportunities for improvement in the following areas

•                 strengthening of the APS Values;

•                 strengthening the references in the Bill to merit as a fundamental principle of APS employment by including a definition of merit in relation to the engagement and promotion of APS employees;

•                 enhancing the level of scrutiny and reporting of agency workplace diversity programs; and

•                 securing mobility rights for the staff of the Parliamentary Departments and staff of Members of Parliament.

18.              The recommendation on the extension of whistleblower protection for APS employees (recommendation 13) has been referred to the Attorney-General’s Department and will be a matter for future Government consideration.

19.              The Government also accepted an element of the Committee’s recommendation dealing with review of Australian Public Service employment actions (recommendation 14).  The Government noted the Committee’s comments on the desirability of separating the Public Service Commissioner’s standard setting functions from the proposed review role.  The Government agrees that such a separation seems a sensible solution to a complex issue.

20.              As a result, the 1997 Bill incorporated an amendment to allow for the establishment of a statutory office of Merit Protection Commissioner.  Appointment and conditions arrangements will be consistent with the provisions relating to the Public Service Commissioner.  The staff necessary to assist the Merit Protection Commissioner will be provided by the Public Service Commissioner.

21.              The Public Service Bill 1997 was introduced into the Senate on 11 November 1997.  The Senate effected significant amendments to that Bill and it was returned to the House of Representatives with those amendments at the end of November 1997.

22.              On 5 December 1997, the Minister Assisting the Prime Minister for the Public Service informed the House of Representatives that the Government had rejected outright the amendments made to the Public Service Bill 1997 by the Senate, and that the legislation would be returned to the Senate unchanged after three months.  That Bill was formally laid aside in the House of Representatives on 5 December 1997.

23.              The Bill was subsequently reintroduced unchanged into the House of Representatives on 5 March 1998.  After passage through the House, the legislation was returned to the Senate which made the same amendments to the Bill as it had in November 1997.  On 6 April 1998 the Government again rejected outright the amendments made by the Senate, and the Bill was laid aside.

 

Public Employment (Consequential and Transitional) Amendment Bill 1999

24.              With the establishment of the new legal framework for APS employees set out in this Bill, certain other provisions will be necessary

•                 to validate actions and decisions taken under the former legislation;

•                 to cover some aspects of the transition from the old to the new employment framework; and

•                 to make consequential amendments to other legislation which incorporate references to the 1922 PSA framework.

 

25.              These proposed provisions are set out in the Public Employment (Consequential and Transitional) Amendment Bill 1999 (hereafter CTA Bill).  Details are provided in a separate explanatory memorandum on that Bill.

Public Service Bill 1999

26.              Notes on the clauses of the current Bill are set out below.

27.              References in these notes to the Auditor-General Act 1997 and the Financial Management and Accountability Act 1997 should be read in the context that those enactments commenced on 1 January 1998.

 



NOTES ON CLAUSES

Part 1 - Preliminary

Clause 1- Short title

1.1.             The Bill, when passed, will be known as the Public Service Act 1999 (Bill cl.1).

Clause 2 - Commencement

1.2.             The Bill will commence on a day to be fixed by Proclamation (Bill s-cl.2(1)).

 

1.3.             If the Bill does not commence within six months of assent by the Governor-General, it will come into operation at the end of that six months (Bill s-cl.2(2)).

Clause 3 - Objects of this Act

1.4.             The main objects of the Bill will be

(a)              to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public (Bill para 3(a));

(b)              to provide a legal framework for the effective and fair employment, management and leadership of APS employees (Bill para 3(b)) - this will reflect the proposed APS Value that the APS will have leadership of the highest quality (see Bill para 10(1)(h)); and

(c)              to establish rights and obligations of APS employees (Bill para 3(c)).

Clause 4 - This Act binds the Crown

1.5.             The Crown in right of the Commonwealth will be bound by the Bill, but will not be liable for prosecution because of this (Bill cl.4 - same as FMA Act s.3 and same as WRA s.6 in relation to the Commonwealth). 

 

1.6.             Offence provisions are created in relation to the Public Service Commissioner’s inquiry powers (see Bill cl.43).

Clause  5 -  This Act extends to things outside Australia

1.7.             Unless a contrary intention appears, the provisions of the Bill will apply outside Australia (Bill s-cl.5(1) - same as FMA Act s.4).  This displaces the principle of construction that an Act normally operates only in Australia (see Acts Interpretation Act 1901 (‘AIA’) para 21(b)).

Australian Territories

1.8.             The Bill will also apply to all Australian Territories (Bill s-cl.5(2) - to same effect as 1922 PSA s.7B).

 

1.9.             By virtue of the AIA (para 17(p)), the Australian Territories are as follows

•                 the Australian Capital Territory;

•                 the Northern Territory;

•                 the Jervis Bay Territory;

•                 the Territory of Norfolk Island;

•                 the Territory of the Cocos (Keeling) Islands;

•                 the Territory of Christmas Island;

•                 the Territory of Ashmore and Cartier Islands;

•                 the Territory of Heard and McDonald Islands;

•                 the Territory of the Coral Sea Islands; and

•                 the Australian Antarctic Territory.

Clause 6 - Engagement of employees in Department or Executive Agency

1.10.           All persons who are to be employed in a Department of State or an Executive Agency will be required to be engaged under this Bill, or under the authority of another Commonwealth Act (Bill s-cl.6(1) - no equivalent in 1922 PSA).  This engagement will result in the person being an ‘employee’ in the common law sense.

 

1.11.           There will be exceptions from this requirement for

•                 persons engaged on an honorary basis (Bill para 6(2)(a) - similar exception in 1922 PSA para 8(a)); and

•                 persons engaged by the Australian Secret Intelligence Service (Bill para 6(2)(b) - cf. 1922 PSA s.33A notification dated 19 December 1996 which refers to ‘officers of the Australian Secret Intelligence Service’ - Commonwealth Gazette No.PS1, 9 January 1997, p.7).

 

1.12.           The Bill will not provide authority for the engagement of persons to perform services on a non-employee basis.

 

1.13.           In addition, Agency Heads will still retain whatever powers they might otherwise have to engage independent contractors (Bill s-cl.6(3) - no change from current law but no explicit equivalent in 1922 PSA).  A person who is called a ‘consultant’ is not necessarily an independent contractor - that status will depend on the terms of the engagement.

 

 



Part 2 - Interpretation

Clause 7 - Interpretation

2.1.             There are various interpretative provisions for the purposes of the Bill (Bill cl.7).

Acting SES employee

2.1.1.          When used in the Bill, the term ‘acting SES employee’ will mean a non-SES employee who is acting in a position usually occupied by an SES employee.

 

2.1.2.          This term is used in the provisions relating to delegations (see Bill cl.78) to take account of acting arrangements given that the Bill is not drafted with reference to the concept of office for APS employees.

Agency

2.1.3.          When used in the Bill, the term ‘agency’ will mean

(a)              a Department of State (excluding any part of the ‘constitutional’ Department of State established pursuant to s.64 of the Constitution that is an Executive Agency or a Statutory Agency) - the current Departments of State are listed at Attachment C, Part B;

(b)              an Executive Agency established by the Governor-General under this Bill (see Bill cl.65); or

(c)              any body or group of persons declared by an Act to be a Statutory Agency for the purposes of this Bill - see, e.g. Bill cl.40 in relation to the Public Service Commissioner - the current APS statutory agencies with separate staffing arrangements are listed at Attachment C, Parts C and D.

 

2.1.4.          The Bill has been prepared on the following premises in relation to an employee’s agency

•                 at any time while a person is an APS employee, the person will be ‘in’ a particular Agency;

•                 an APS employee cannot be in more than one Agency at the same time;

•                 an APS employee’s Agency at a particular time will be

-        the Agency in which the person was engaged; or

-        if the person has moved to another Agency, the Agency to which the person last moved.

Agency Head

2.1.5.          When used in the Bill, the term ‘Agency Head’ will mean

(a)              the Secretary of a Department of State (excluding any part of the ‘constitutional’ department that is an Executive Agency or a Statutory Agency); or

(b)              the Head of an Executive Agency established by the Governor-General (see Bill cl.65); or

(c)              the Head of a Statutory Agency declared by an Act to be a Statutory Agency for the purposes of this Bill.

 

2.1.6.          Normally, an Agency Head will be an individual.  The constituting legislation for some Statutory Agencies makes the Agency Head a body corporate (e.g.  Australian Securities and Investments Commission - empowered by s.120 of the Australian Securities and Investments Commission Act 1989 , until amended by the CTA Bill, Schedule 1, item 215)

 

2.1.7.          The major powers and functions that will be explicitly conferred by this Bill on all Agency Heads are summarised at Attachment E.

 

2.1.8.          Public sector employers are required to act through a prescribed employing authority for the purposes of the WRA and the Rules of the AIRC (WRA s.352).  It is intended to amend the WR Regs to specify the Minister for Employment, Workplace Relations and Small Business and the Agency Head as the ‘employing authority’ in relation to the employees in each Agency for the purposes of the WRA (cf WR Regs Schedule 2 items 1 to 3).

 

2.1.9.          An Agency Head will be able to act on behalf of the Commonwealth in relation to Australian Workplace Agreements (AWAs) with persons in the Agency who are engaged under the PS Bill (CTA Bill Schedule 1, item 964 amending WRA s.170WK).

Agency Minister

2.1.10.        When used in the Bill, the term ‘Agency Minister’ will mean

(a)              if the agency is a Department of State - the Minister who administers the Department;

(b)              if the agency is an Executive Agency - the Minister who administers the Executive Agency;

(c)              if the agency is a Statutory Agency - the Minister who administers the provision of the Act that provides for the appointment of the Head of that Agency. 

APS

2.1.11.        When used in the Bill, the term ‘APS’ will mean the Australian Public Service constituted by this Bill (see Bill cl.9).

 

2.1.12.        The main purpose in defining the APS is to deal with references to the APS in other legislation (e.g. ‘SES employee in the APS’).

APS employee

2.1.13.        When used in the Bill, the term ‘APS employee’ will mean

(a)              a person who is engaged by an Agency Head under this Bill as an employee for the purposes of an Agency (see Bill cl.22); or

(b)              a person who, as a result of changes in machinery of government arrangements is engaged as an APS employee by the Public Service Commissioner (see Bill cl.72).

 

2.1.14.        The term ‘APS employee’ will include SES employees (see Bill cl.34), but will not include

•                 Agency Heads;

•                 Heads of Mission (HoMs) who are employed under the Australian Trade Commission Act 1985 (see Bill s-cl.39(1) - other HoMs will be APS employees); or

•                 locally engaged employees of Australian missions overseas (see Bill cl.74).

 

2.1.15.        Existing officers and employees under the 1922 PSA, other than locally engaged staff (see 1922 PSA s.82AF), will, when this Bill commences, become APS employees within the meaning of this Bill (see CTA Bill cl.5).

 

2.1.16.        The use of the term ‘employee’ rather than ‘officer’ is considered to be in keeping with more modern approaches to APS employment.  As G J McCarry has commented ( Aspects of Public Sector Employment Law , the Law Book Company, 1984, p.22)

‘...Relatively few public officials require the status of an officer.  Those who do can be identified readily enough, and treated as such, as is done, for example, in New South Wales for the purpose of fixing remuneration for holders of ‘statutory’ offices.  The rest, the great bulk of public sector permanent staff, ought be recognised for what they are, namely employees, and described and regulated as such.  The fact that some of them may at times exercise independent functions conferred by statute or the like does not, without more, require that they be officers...’

APS Values

2.1.17.        When used in the Bill, the term ‘APS Values’ will mean the APS Values established by the Bill (see Bill cl.10 - no equivalent in 1922 PSA).

Classification Rules

2.1.18.        When used in the Bill, the term ‘Classification Rules’ will mean the rules about the classification of work and employees that are made by the Minister who will administer this Bill (see Bill cl.23).

Code of Conduct

2.1.19.        When used in the Bill, the term ‘Code of Conduct’ will mean the conduct rules for APS employees set out in the Bill (see Bill cl.13).

Commissioner

2.1.20.        When used in the Bill, the term ‘Commissioner’ will mean the Public Service Commissioner appointed under this Bill (see Bill cl.40).

 

2.1.21.        When this Bill commences, the person who is the Public Service Commissioner under the 1922 PSA will become Public Service Commissioner under this Bill for the unexpired part of his or her term (see CTA Bill s-cl.5(2)).

Commissioner’s Directions

2.1.22.        When used in the Bill, the term ‘Commissioner’s Directions’ will mean the directions issued by the Public Service Commissioner

•                 in relation to APS Values (see Bill cl.11); or

•                 about employment matters relating to SES employees (see Bill cl.36).

 

2.1.23.        It is proposed that Commissioner’s Directions will be issued on the following subjects

•                 Diversity in Employment;

•                 Merit in Employment;

•                 SES Employment;

•                 Public Interest Whistleblowing; and

•                 Delegation.

Department

2.1.24.        When used in the Bill, the term ‘Department’ will mean a Department of State established by the Governor-General under s.64 of the Constitution excluding any part of the ‘constitutional’ department that is itself

•                 an Executive Agency (see Bill cl.65); or

•                 a Statutory Agency declared by an Act to be a Statutory Agency for the purpose of this Bill (see, e.g. Bill cl.40 relating to the Public Service Commissioner).

 

2.1.25.        A list of current Departments of State is at Attachment C, Part B.  The term ‘Department’ when used in this Bill will not include the Parliamentary Departments (listed at Attachment C, Part A) - these Departments are now proposed to be established under the Parliamentary Service Bill 1999.

Executive Agency

2.1.26.        When used in the Bill, the term ‘Executive Agency’ will mean an Executive Agency established by the Governor-General under this Bill (see Bill cl.65).

 

2.1.27.        There are no equivalent bodies under the 1922 PSA.

Head

2.1.28.        The 1922 PSA provides (s.18B and s-sec.25(4)) that the Public Service Commissioner, the Auditor-General and the Commissioner of Taxation have Secretary powers in relation to the APS organisations under their respective control.  In similar fashion, various statutory office-holders have been accorded Secretary powers under their own enabling legislation as, for example, the Australian Statistician under s.16 of the Australian Bureau of Statistics Act 1975 .  These statutory office holders are often described colloquially as the ‘Head’ of their agencies.

 

2.1.29.        When used in the Bill, the term ‘Head’ will mean

(a)              in relation to an Executive Agency - the person appointed as Head of that Agency by the Agency Minister (see Bill cl.67 - no equivalent in 1922 PSA); and

(b)              in relation to a Statutory Agency - the person declared by an Act to be the Head of the Statutory Agency (see, e.g., Bill cl.40 in relation to the Public Service Commissioner).

 

2.1.30.        The CTA Bill will amend the staffing provisions in the Acts constituting the current APS statutory agencies to ensure that they contain an appropriate declaration - the current titles of the Heads of Statutory Agencies are at Attachment C, Parts C and D.

Head of Mission

2.1.31.        When used in the Bill, the term ‘Head of Mission’ will mean the head in an overseas country of

(a)              an Australian diplomatic mission; or

(b)              an Australian consular mission.

 

2.1.32.        The term will cover the heads of both

•                 Australian missions accredited to overseas countries; and

•                 Australian permanent missions to international organisations (e.g. the United Nations in New York and Geneva).

 

2.1.33.        This term ‘Head of Mission’ is used in the provisions requiring a Head of Mission to be an APS employee or an Austrade employee (see Bill cl.39).

Locally engaged employee

2.1.34.        When used in the Bill, the term ‘locally engaged employee’ will mean a person engaged overseas to perform duties overseas as an employee (see Bill cl.74).

 

2.1.35.        The equivalent term in 1922 PSA is ‘overseas employee’ (s.82AF).  These persons are also often referred to as ‘locally engaged staff (LES)’.

Merit Protection Commissioner

2.1.36.        When used in this Bill, the term ‘Merit Protection Commissioner’ will mean the Merit Protection Commissioner appointed under this Bill (see Bill cl.49).

Non-SES employee

2.1.37.        When used in the Bill, the term ‘non-SES employee’ will mean an APS employee who is not a member of the Senior Executive Service (SES).

 

2.1.38.        APS employees will be either non-SES employees or SES employees.

Overseas

2.1.39.        When used in this Bill the term ‘overseas’ will mean outside Australia and the Territories.

 

2.1.40.        The term ‘overseas’ is used in

•                 the Code of Conduct requirement that APS employees when on duty overseas must uphold the good reputation of Australia (see Bill s-cl.13(12)); and

•                 the power given to an Agency Head to engage persons overseas to perform duties overseas as employees (see Bill cl.74).

Prime Minister’s Department

2.1.41.        When used in the Bill, the term ‘Prime Minister’s Department’ will mean the Department of the Prime Minister and Cabinet.

 

2.1.42.        The term is used in the provisions relating to

•                 the reports by the Secretary of the Department of the Prime Minister and Cabinet that are required before the appointment or termination of a Secretary of any Department of State other than the Department of the Prime Minister and Cabinet (see Bill cls.58 and 59); and

•                 the constitution of the Management Advisory Committee (see Bill cl.64).

Public Service Minister

2.1.43.        When used in the Bill, the term ‘Public Service Minister’ will mean the Minister who will administer this Bill.

 

2.1.44.        Similarly, the term ‘Finance Minister’ is defined in the FMA Act (s.5) to mean the Minister who administers that Act.  The AIA (s-sec.19A(2)) deals with the situation where more than one Minister is involved.

 

2.1.45.        The powers and functions of the Public Service Minister are listed in the Ex Memo when setting out the provisions in relation to delegations (see Bill s-cls.78(2) and (3)).

Secretary

2.1.46.        When used in the Bill, the term ‘Secretary’ will mean the Secretary of a Department of State (these Departments are listed in Attachment C, Part B).

 

2.1.47.        Existing Secretaries to Departments under 1922 PSA will, when this Bill commences, become Secretaries of the corresponding Department under this Bill as if they had been appointed as a Secretary under this Bill for the unexpired part of their fixed term (see CTA Bill s-cl.5(1)).

SES

2.1.48.        When used in the Bill, the term ‘SES’ will mean the Senior Executive Service established by this Bill (see Bill cl.35).

SES employee

2.1.49.        When used in the Bill, the term ‘SES employee’ will mean an APS employee who is classified as an SES employee under the Classification Rules made by the Minister who will administer this Bill (see Bill cl.34).

 

2.1.50.        Existing SES officers under 1922 PSA will, when this Bill commences, become SES employees (see CTA Bill s.cls 5(3) and (4)).

Statutory Agency

2.1.51.        When used in the Bill, the term ‘Statutory Agency’ will mean a body or group of persons declared by an Act to be a Statutory Agency for the purposes of this Bill. 

 

2.1.52.        The CTA Bill will amend the staffing provisions of the legislation establishing the current APS statutory agencies to ensure that they contain such a declaration.

 

2.1.53.        A list of the agencies with separate staffing arrangements under the 1922 PSA is at Attachment C, Parts C-D - those at Parts E and F do not have separate staffing provisions.

Other Notes on Interpretation

2.2.             The notes, below, deal with some other matters of interpretation not specifically set out in this Bill

•                 concept of office;

•                 instruments for the purpose of AIA s.33; and

•                 superannuation.

Concept of office

2.2.1.          The structure of the 1922 PSA, and of the APS personnel systems which are derived from it, are based on the concept that officers of the APS occupy and have tenure in formally-created offices.

 

2.2.2.          As the McLeod Report commented (para 3.21) its ‘all-pervasive nature results in significant rigidities in APS management arrangements’.  The concept also produces a degree of legislative complexity (e.g. ‘unattachment’) which pervades the 1922 PSA. 

 

2.2.3.          Accordingly, the Bill is drafted without any use of the concept of office other than in relation to Agency Heads.  Formal positions will be able to be created if needed for delegation purposes (see Bill cl.77).

Instruments

2.2.4.          References to ‘notice in the Gazette’ or ‘in writing’ have the effect that the document so described is an ‘instrument’ which will be able, unless the contrary intention appears in the Bill, to be repealed, rescinded, revoked, amended or varied (see AIA s-sec.33(3)).

 

2.2.5.          The Bill includes the following references to ‘in the Gazette’

•                 making by Public Service Minister of Classification Rules (see Bill s-cl.23(1));

•                 determination by Public Service Minister of remuneration and other terms and conditions of employment (see Bill s-cl.24(3));

•                 certain inquiries initiated by the Public Service Commissioner (see Bill para 43(1)(a));

•                 referral of a matter by the Public Service Minister to Public Service Commissioner to inquire and report (see Bill paras 43(1)(c)); and

•                 orders by Governor-General in relation to Executive Agencies (see Bill s-cl.65(1)).

 

2.2.6.          The Bill includes the following references to ‘in writing’

•                 Public Service Commissioner’s Directions about APS Values (see Bill s-cl.11(1));

•                 Prime Minister’s directions relating to the management and leadership of APS employees (see Bill cl.21);

•                 determination by Agency Head of remuneration and other terms and conditions of employment (see Bill s-cl.24(1));

•                 agreement for voluntary move between agencies (see Bill s-cl.26(1));

•                 direction by Public Service Commissioner for compulsory move between Agencies (see Bill s-cl.27(1);

•                 notice relating to forfeiture of additional remuneration (see Bill s-cl.31(1));

•                 Public Service Commissioner’s Directions on SES matters (see Bill cl.36);

•                 notices to and from SES officer about retirement with a specified benefit (see Bill cl.37);

•                 direction by Agency Minister about a Head of Mission (see Bill s-cl.39(2));

•                 determination of remuneration and other conditions of appointment for Public Service Commissioner (see Bill cl.46), Merit Protection Commissioner (see Bill cl.53), for Secretaries (see Bill cl.61) and for Heads of Executive Agencies (see Bill cl.68);

•                 nomination of member of Management Advisory Committee (see Bill para 64(2)(d));

•                 determination in relation to Machinery of Government changes (see Bill s-cl.72(1));

•                 creation of formal positions (see Bill s-cl.77(1)); and

•                 delegations of powers (see Bill cl.78).

Superannuation

2.2.7.          The 1922 PSA contained several references to superannuation which are not translated into this Bill.

 

2.2.8.          Some of the references to superannuation are not required because appropriate provisions are included in other legislation.  For example, provisions prohibiting invalidity retirement under the 1922 PSA without the approval of the CSS or PSS Board are not required because the Superannuation Act 1976 and the Superannuation Act 1990 make it clear that invalidity retirement without such an approval is not possible.

 

2.2.9.          Other references to superannuation in the 1922 PSA related to matters that are not addressed in this Bill.

 

2.2.10.        The CTA Bill also contains a number of consequential amendments to the existing superannuation legislation (CTA Bill Schedule 1).

Clause 8 - Workplace Relations Act

2.3.             This Bill will have effect subject to the WRA (Bill s-cl.8(1)).  This will ensure that the Bill operates within the general community workplace relations framework created by the WRA and that any specific exemptions are explicitly set out in this Bill as listed below.

 

2.4.             The Bill specifically provides that Division 3 of Part VIA of the WRA dealing with termination of employment will not apply to

•                 termination of the appointment of a Secretary or of a Head of an Executive Agency (see Bill cls.59 and 67);

•                 termination of the employment of an SES employee (see Bill cl.38); or

•                 Machinery of Government (MoG) changes (see Bill cl.72).



Part 3 - The Australian Public Service

Clause 9 - Constitution of the APS

3.1.             The Australian Public Service as constituted by this Bill will consist of (Bill cl.9)

•                 Agency Heads; and

•                 APS employees.

 

3.2.             This constitutes the APS in terms of people (same as 1922 PSA s.10).  The APS will include statutory office holders who are Agency Heads or APS employees, but not other statutory office holders who are not APS employees (e.g. Second Commissioners of Taxation or Second Parliamentary Counsel). 

 

3.3.             This definition of the APS will be important for references in other legislation to matters relating to the APS (e.g. terms such as ‘SES employee in the APS’).

Clause 10 - APS Values

3.4.             For the first time in primary Commonwealth public service legislation the Bill will contain a clear declaration of APS Values (Bill cl.10), within which the employment powers of Agency Heads will be exercised and for which they will be accountable (see ADMF Paper p.11).  These Values will provide the context within which powers specified in the Bill will be exercised.  The Values are designed to

•                 provide the philosophical underpinning for the APS;

•                 reflect public expectations of the relationship between public servants and the Government, the Parliament and the Australian community (cf objects in Bill para 3(a));

•                 articulate the culture and operating ethos of the APS; and

•                 support and inform the Commissioner’s Directions to be issued under the authority of the Bill.

 

3.5.    Details of each value are set out below.

(a)              Apolitical

3.5.1.          The APS will be apolitical and will perform its functions in an impartial and professional manner (Bill para 10(1)(a)).  This value will be reinforced by a specific limitation on Ministerial directions to an Agency Head, in particular staffing decisions relating to APS employees (see Bill cl.19).

(b)              Merit

3.5.2.          The APS will be a public service in which employment decisions are based on merit (Bill para 10(1)(b)).

 

3.5.3.          Provisions reflecting merit principles have appeared in Commonwealth public service legislation since Federation.  The 1902 PSA provided for open competitive entry to the Service and promotion on merit.  These principles were carried over into the 1922 PSA.

 

3.5.4.          The Public Service Commissioner will issue a Commissioner’s Direction (see Bill cl.11) on Merit in Employment (see ADMF Paper pp.12-14).

(c)              No discrimination

3.5.5.          The APS will provide a workplace that is free from discrimination and that recognises the diverse backgrounds of APS employees (Bill para 10(1)(c)).  The concept of discrimination is that which is referred to in the principal object of the WRA where it is stated that:

‘3.  The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by...

(j)   respecting and valuing the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin....’

 

3.5.6.          The Public Service Commissioner will issue a Commissioner’s Direction (see Bill cl.11) on Diversity in Employment (see ADMF Paper pp.15-16).  Each Agency Head will also be required to have a Workplace Diversity Program for the Agency to assist in giving effect to this and all the other APS Values (see Bill cl.18).

(d)              Highest ethical standards

3.5.7.          The APS will have the highest ethical standards (Bill para 10(1)(d)). 

 

3.5.8.          The proposed Code of Conduct (see Bill cl.13) will ensure that APS employees are clear about the ethical standards they are expected to meet (see ADMF Paper p.14).

(e)              Accountability

3.5.9.          The APS will be accountable for its actions within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public (Bill para 10(1)(e)).  This takes account of JCPA recommendation 2.

 

3.5.10.        This Value, along with the objects clause of this Bill, makes clear the lines of accountability of the APS.  While employment decisions will be the responsibility of individual agencies, public accountability will be monitored for the APS as a whole (see ADMF Paper p.4 and Attachment A to this Ex Memo which summarises the ways in which this Bill will improve accountability).

(f)               Responsiveness

3.5.11.        The APS will be responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government’s policies and programs (Bill para 10(1)(f)).  This takes account of JCPA recommendation 2.

 

3.5.12.        This value of responsiveness recognises one of the philosophical underpinnings of the APS.  It will be set within the context of the statutory framework created by the Parliament in relation to any particular agency.

 

3.5.13.        The Guidelines on Official Conduct of Commonwealth Public Servants points out (pp.6-7) that

‘The public service exists to provide advice to, and give effect to the policies of, the government of the day elected by the Australian people.  Elected governments, whatever their political make-up, are entitled to expect loyalty and dedication from the public service.  This professional commitment is owed to the government of the day, not to the political party or parties to which the members of the government belong.  This distinction is generally well understood by politicians and public servants.

Governments increasingly have to make their decisions and implement their programs in an environment of rapid social, economic and political change, to which they need continually to respond and adapt in order to achieve their policy objectives.

To assist government in this, the public service itself needs to be able to act quickly and effectively, both in implementing policies and programs, and in providing advice to government in the process of policy development.

The main responsibilities of a public servant to the government are

•    to carry out decisions and implement programs promptly, conscientiously and effectively; and

•    to provide advice which: represents the facts accurately; is impartial and maintains a high standard of professional integrity; is sensitive to the intent and direction of government policy; and is as comprehensive as practicable in setting out the advantages and disadvantages of the main options available and their consequences.

In both policy development and program implementation, public servants need to exercise judgement as to which facts are most relevant, which policy options are most applicable and which considerations in delegated decision-making are most important.  In exercising judgement, merit should be the basis of considering choices to be made or put forward for consideration.  Public servants should ensure that ministers are aware of the values which underlie the policy advice they have given, for example, by underlining the possible differential impact of policy options on different groups...’

(g)              Service delivery

3.5.14.        The APS will deliver services fairly, effectively, impartially and courteously to the Australian public (Bill para 10(1)(g)).

(h)              High quality leadership

3.5.15.        The APS will have leadership of the highest quality (Bill para 10(1)(h)). 

 

3.5.16.        The Government is determined that the leadership potential of the SES (see Bill Part 4 Division 2) will be further developed (see TBPAPS Paper pp.11-12).  This responsibility will rest with Agency Heads (see Bill cl.12) as well as with the Public Service Commissioner (see Bill para 41(1)(j)).

(i)               Cooperative workplace relations

3.5.17.        The APS will establish cooperative workplace relations based on consultation and communication (Bill para 10(1)(i)).

(j)               A good workplace

3.5.18.        The APS will provide a fair, flexible, safe and rewarding workplace (Bill para 10(1)(j)).  Each Agency Head will be required to implement a Workplace Diversity Program (see Bill cl.18) to promote fairness in employment and a family friendly environment (see ADMF Paper p.15).

(k)              Results focus

3.5.19.        The APS will focus on achieving results and managing performance (Bill para 10(1)(k)).

 

3.5.20.        This focus on results will be assisted by giving Agency Heads all of the ‘rights, duties and powers’ of an employer (see Bill cl.20).  A strategic and integrated approach to managing performance is more likely to be achieved in this way rather than by detailed and centralised prescription of APS-wide approaches (ADMF Paper p.27).

Definition of Merit

3.5.21         The JCPA Report recommended (recommendation 6) that the Public Service Bill contain a definition of merit.  In response to that recommendation, the Bill includes the following definition (s-cl.10(2)):

‘(2)   For the purpose of paragraph (1)(b), a decision relating to engagement or promotion is based on merit if:

(a)     an assessment is made of the relative suitability of the candidates for the duties, using a competitive selection process; and

(b)    the assessment is based on the relationship between the candidates’ work-related qualities and the work-related qualities genuinely required for the duties; and

(c)     the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties; and

(d)    the assessment is the primary consideration in making the decision.’

Implementation of APS Values

3.5.22.        The APS Values will be implemented through

•                 the Commissioner’s Directions (see Bill cl.11);

•                 the Code of Conduct (see Bill s-cl.13(11)); and

•                 the obligation on Agency Heads and the SES to promote and uphold the Values (see Bill cl.12 and para 35(2)(c)).

Extension of APS Values

3.5.23.        Any extension of the APS Values outside the APS to Commonwealth bodies not staffed under this Bill will be carried out later as a separate project (see also McLeod Report para 2.46).

Clause 11 - Commissioner’s Directions about APS Values

3.6.             The Public Service Commissioner will be required to issue Commissioner's Directions in relation to the APS Values (Bill s-cl.11(1) - no equivalent in 1922 PSA).

 

3.7.             Commissioner’s Directions will only be issued where it is deemed essential to establish a process framework within which Agency Heads must operate (ADMF Paper p.12).  If necessary, the Directions will be able

•                 to deal with the circumstances of a particular agency (see AIA s-sec.33(3A); or

•                 to determine the scope or application of a particular value (Bill s-cl.11(1)(e)).

 

3.8.             In this way the Commissioner would, where necessary, be able to

•                 resolve any conflicts that arise in practice between the APS Values;

•                 support programs for particular groups (e.g. youth; Aboriginal and Torres Strait Islander peoples as per PS Regs r.71B);

•                 ensure fairness (e.g. that the claims of those most needing training are properly considered);

•                 ensure appropriate selection procedures for different types of work (e.g. casual employment); and

•                 address specific requirements for particular jobs (e.g. restrictions on ‘persons actively engaged in electoral or political affairs’ for certain jobs in the Australian Electoral Commission as per PS Regs r.71AA).

 

3.9.             There will also be a Commissioner’s Direction on SES employment matters (see Bill cl.36).

Clause 12 - Agency Heads must promote APS Values

3.10.           An Agency Head will be required to uphold and promote the APS Values (Bill cl.12).

 

3.11.           A similar requirement will be imposed on SES employees (see Bill para 35(2)(c)).

Clause 13 - The APS Code of Conduct

3.12.           The Bill will include a statutory Code of Conduct (Bill cl.13 - cf McLeod Bill para D.3).  This will ensure that the Code is legally enforceable and will strengthen its role as a public statement of the standards of behaviour and conduct that are expected of those who work in core public employment (see ADMF Paper pp.14-15).

 

3.13.           To amount to a breach of the Code, the conduct concerned must happen while the person is an APS employee.  Furthermore, misconduct proceedings will not apply after a person ceases to be an APS employee, even if the breach happened while the person was an APS employee.

 

3.14.           Details of each element of the Code are set out below.  In response to JCPA recommendation 5, the various propositions for possible amendments to cl.13, outlined in Appendix IV of the JCPA report, were considered in detail.  Amendments were adopted by the Government to s-cl.13(3) and s-cl.13(9).

(1)              Honesty

3.14.1.        An APS employee will be required to behave honestly and with integrity in the course of employment (Bill s-cl.13(1)).

(2)              Care and diligence

3.14.2.        An APS employee will be required to act with care and diligence in the course of employment (Bill s-cl.13(2)).

(3)              Respect and courtesy

3.14.3.        An APS employee will be required, when acting in the course of employment, to treat everyone with respect and courtesy, and without harassment (Bill s-cl.13(3)).

(4)              Compliance with the law

3.14.4.        An APS employee will be required, when acting in the course of employment, to comply with all applicable Commonwealth, State or Territory laws (including subordinate legislation) (Bill s-cl.13(4) - based on 1922 PS Regs para 8A(b)).

 

3.14.5.        The requirement to comply with applicable laws will include requirements in this Bill (e.g. prohibition on patronage in Bill cl.17).

(5)              Compliance with directions

3.14.6.        An APS employee will be required to comply with any ‘lawful and reasonable’ direction given by someone in the same Agency having authority to give the direction (Bill s-cl.13(5) - based on 1922 PS Reg para 8A(c)).

(6)              Confidentiality

3.14.7.        An APS employee will be required to maintain ‘appropriate confidentiality’ about dealings that the employee has with any Minister or member of a Minister’s staff (Bill s-cl.13(6)).

 

3.14.8.        This requirement will complement

•                 the confidentiality requirements in the Information Privacy Principles (‘IPPs’) in relation to personal information; and

•                 the restrictions in the Crimes Act 1914 on the unauthorised disclosure of information by Commonwealth officers (s.70).

 

3.14.9.        Section 70 of the Crimes Act 1914 provides that

‘70.  (1)   A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he is authorised to publish or communicate it, any fact or document which comes to his knowledge, or into his possession, by virtue of being a Commonwealth officer, and which it is his duty not to disclose, shall be guilty of an offence.

        (2)   A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him), any fact or document which came to his knowledge, or into his possession, by virtue of having been a Commonwealth officer, and which, at the time when he ceased to be a Commonwealth officer, it was his duty not to disclose, shall be guilty of an offence.

Penalty: Imprisonment for two years.’



(7)     Avoidance of conflict of interest

3.14.10.      An APS employee will be required to disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with employment as an APS employee (Bill s-cl.13(7) - based on 1922 PS Regs r.8B).

(8)              Use of Commonwealth resources

3.14.11.      An APS employee will be required to use Commonwealth resources in a proper manner (Bill s-cl.13(8) - this requirement is wider than 1922 PS Regs para 8A(g)).

(9)              No false or misleading information

3.14.12.      An APS employee will be prohibited from providing false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment (Bill s-cl.13(9) - no equivalent in 1922 PSA or in 1922 PS Regs).

(10)            No improper advantage

3.14.13.      An APS employee will be prohibited from making improper use of inside information, or the employee’s duties, status, power or authority, in order to gain or seek to gain a benefit or advantage for him/her self or any other person (Bill s-cl.13(10) - based on 1922 PS Regs para 8A(h) in relation to official information or documents).

(11)            Upholding the integrity of the APS

3.14.14.      An APS employee will be required to behave at all times in a way that upholds (Bill s-cl.13(11) - wider than 1922 PS Regs para 8A(i))

•                 the APS Values; and

•                 the integrity and good reputation of the APS.

(12)            Upholding Australia’s reputation

3.14.15.      An APS employee will be required when overseas on duty to uphold the good reputation of Australia (Bill s-cl.13(12) - no equivalent requirement in 1922 PSA or in 1922 PS Regs).  This requirement is intended to apply to situations where an APS employee is involved in conduct overseas which by virtue of the person’s status as an APS employee, the nature of the conduct and the degree in which the APS employee is, or may be seen as, representing Australia overseas, the good reputation of Australia may be damaged or threatened.

 

3.14.16.      This requirement is consistent with the statement by the Minister for Foreign Affairs (15 May 1997) that

‘Maintaining and strengthening Australia’s reputation abroad is the duty and privilege of all who can be regarded as Australian representatives, not just those assigned to serve in our diplomatic missions.’

(13)           Any other conduct requirement

3.14.17.      An APS employee will be required to comply with any other conduct requirement that may be prescribed (Bill s-cl.13(13) - the approach of 1922 PSA from 1987 was to insert almost all conduct requirements in the 1922 PS Regs).

Agency Codes

3.14.18.      Agency Heads will be able to supplement the Code of Conduct with any further or more detailed requirements that may be needed because of the particular operational circumstances of that Agency.

Clause 14 - Agency Heads bound by Code of Conduct

3.15.           Agency Heads will be bound by the Code of Conduct (Bill cl.14).  There is no equivalent obligation in 1922 PSA apart from the disciplinary provisions in relation to Agency Heads who are Secretaries (see 1922 PSA s-sec.56A-60).

 

3.16.           One of the functions of the Public Service Commissioner will be to inquire into, and report to the Prime Minister on, alleged breaches of the Code by Agency Heads (see Bill para 41(1)(f)).

Clause 15 - Breaches of the Code of Conduct

Current disciplinary provisions

3.17.1.        The present framework of disciplinary provisions was put in place by the Public Service Amendment Act 1978 .  It replaced procedures established by the 1922 PSA which had undergone few significant modifications since the time of their original enactment, and which were derived in turn from the 1902 PSA and comparable provisions in the preceding public service legislation of the Australian colonies.

 

3.17.2.        The 1978 amendments to the disciplinary provisions were based on a report in 1973 by a Joint Council Sub-Committee, subsequently endorsed by Joint Council, which concluded that the following points should be regarded as fundamental in framing a revised set of provisions

•                 the primary aim of disciplinary provisions should be to facilitate efficient administration and public confidence in the integrity of the administration;

•                 there should be no unnecessary concern with the private lives of staff members;

•                 the disciplinary provisions should be seen as a complement to other management processes of supervision, leadership and staff counselling - disciplinary action should generally be seen as a last resort; and

•                 the disciplinary process should continue to be essentially administrative rather than judicial, but the principles of natural justice and fairness should be observed.

Inadequacy of 1922 PSA

3.17.3.        The McLeod Report was very critical of the current procedures

‘5.13   The Act sets out detailed provisions (s.55-s.63T) on the manner in which misconduct is dealt with in the APS.  These provisions are highly prescriptive and extensive, running to almost 40 pages.  The Discipline Handbook, which is based on the Act and intended to give further guidance on the discipline process, runs to over 200 pages.  There was widespread criticism of the complexity and legalistic nature of the current provisions and their heavy emphasis on process and concepts analogous to the criminal law.  The philosophy and language of the process is outdated and out of touch with modern management philosophies.

5.14    The manner in which appeals are conducted by the MPRA’s Disciplinary Appeal Committees (DACs) was also the subject of criticism where, it was alleged by a number of those consulted, process appears more important than outcome....’

 

3.17.4.        Accordingly, as indicated in the ADMF Paper (p.28), the Bill will provide a means for developing new approaches for dealing with misconduct which

•                 dispense with red tape;

•                 enable Agency Heads to adopt procedures appropriate to their agencies; and

•                 ensure procedural fairness.

Sanctions for breach

3.17.5.        The New PS Regs will be able to prescribe sanctions that an Agency Head may impose for conduct of any APS employee in the Agency that is found to be a breach of the Code in accordance with procedures established by the Agency Head (Bill s-cl.15(1) - cf 1922 PSA s.62 dealing with inquiries into misconduct following a charge by an authorised officer under s.61).

 

3.17.6.        The sanctions that will be able to be prescribed by the New PS Regs will include (Bill s-cl.15(2))

(a)              termination of employment (based on 1922 PSA para 62(6)(b));

(b)              reduction in classification (based on 1922 PSA s-para 62(6)(a)(vii));

(c)              reassignment of duties (based on 1922 PSA s-paras 62(6)(a)(iv) and (v));

(d)              reduction in salary (based on 1922 PSA s-paras 62(6)(a) (iii) and (vi)); or

(e)              deductions from salary by way of fine (based on 1922 PSA s-paras 62(6)(a)(ii) and (v)).

 

3.17.7.        It is proposed that the New PS Regs will contain provisions relating to sanctions along the general lines of the provisions contained in 1922 PSA having regard to the recommendations in the McLeod Report (para 6.66 R89) about ensuring a link between the quantum of a fine and salary movements.

 

3.17.8.        The sanction involving a reassignment of duties (including to a different location) is intended to be used in situations where the integrity and effectiveness of the APS may be compromised if an employee is not removed from a particular location, for example a small office, even though the conduct in question does not warrant termination of employment.  It would be used only after careful consideration of all the circumstances, taking into account the impact on the employee, such as the financial costs and the effect of dislocation on the employee and his or her family.

Agency procedures

3.17.9.        Agency Heads will be required to establish procedures for determining whether an APS employee in the Agency has breached the Code (Bill s-cl.15(3)).  The Public Service Commissioner will monitor the procedures developed by agencies to ensure consistency and fairness and this will be reported on in the annual State of the Service report.  This takes account of JCPA recommendation 4.

 

3.17.10.      This provision reflects the McLeod Report view that Agency Heads should be enabled (para 5.17) ‘to deal with allegations of misconduct to finality as expeditiously as possible’.

Procedural fairness

3.17.11.    The procedures established by an Agency Head must have due regard to procedural fairness (Bill s-cl.15(3)).

 

3.17.12.    The rules of procedural fairness have been described by Margaret Allars ( Introduction to Australian Administrative Law , Butterworths, Sydney, 1990 p.236) as follows

‘The three principles of procedural fairness are the hearing rule, the bias rule and the no evidence rule.  The hearing rule, based on the maxim audi alteram partem , requires a decision-maker to give an opportunity to be heard to a person whose interests will be adversely affected by the decision.  The bias rule, based on the maxim nemo debet esse judex in propria sua causa , requires a decision-maker to be disinterested or unbiased in the matter to be decided...

The no evidence rule, which has developed comparatively recently, requires that a decision be based upon logically probative evidence...’

 

3.17.13.      The concept of ‘procedural fairness’ has also been used in other recent Commonwealth legislation:

•                 Corporations Legislation Amendment Act 1994 which applies (Schedule 4) the rules of procedural fairness to an inquiry conducted by a Panel under s.195 of the Australian Securities and Investments  Commission Act 1989 ; and

•                 Health Insurance (Quality Assurance Confidentiality) Amendment Act 1992 which (s.3) excluded proceedings for breach of procedural fairness from the immunity from suit which is given (s.106Q) to members of certain assessment or evaluation committees (based on a similar exclusion in s.124ZB of the Health Insurance Act 1973 ).

Transitional

3.17.14.      The transitional arrangements in relation to pre-commencement misconduct will be as follows (see CTA Bill cl.10)

•                 where an APS employee was charged before this Bill commences and the charge was dealt with to finality: no action will be possible under this Bill;

•                 where an APS employee was charged before the commencement of this Bill and the charge was not dealt with to finality: regulations will be made to enable the matter to be completed under 1922 PSA;

•                 where an APS employee was not charged before the commencement of this Bill: the Agency Head will be able to impose the same sanctions as are allowed under the Bill provided that the conduct was both misconduct under the 1922 PSA and a breach of the new Code of Conduct.

 

3.17.15.      This approach is the same as that taken when the current misconduct provisions were inserted by the Public Service Amendment Act 1978 (see s.49 of that Act).

Clause 16 - Protection for public interest whistleblowers

3.18.           Anyone performing functions in or for an Agency will be prohibited from victimising or discriminating against people who report (i.e. ‘blow the whistle on’) breaches or alleged breaches of the Code of Conduct (Bill cl.16 - no equivalent in 1922 PSA).

 

3.19.           These reports will be able to be made to (Bill cl.16)

(a)              the Public Service Commissioner or a person authorised by the Commissioner (Bill para 16(a)) - the Commissioner will be able to investigate these reports under his special inquiry powers (see Bill para 41(1)(c) and para 43(1)(b)); or

(b)              an Agency Head or a person authorised by the Agency Head (Bill para 16(b)).

Crimes Act

3.19.1.        The provision of such reports to the persons specified in this Bill would be regarded as authorised disclosure and hence would not be an offence under s.70 of the Crimes Act 1914 .

Agency procedures

3.19.2.        It is proposed that the Commissioner will issue a Commissioner’s Direction outlining the minimum procedures to be followed by Agencies when the Agency Head or an authorised person receives a report alleging a breach of the Code of Conduct.

 

3.19.3.        Some Agencies already have whistleblowing schemes in place.  The Department of Defence, for example, encourages disclosures through line management or chain of command, and their procedures may provide a useful model for other Agencies when developing their own schemes.

Review of actions

3.19.4.        The New PS Regs will set out the procedures to be followed where the breach that is reported is related to a request by an APS employee for a review of an action that relates to her or his APS employment (see Bill cl.33).

Non-APS matters

3.19.5.        Persons who wish to report concerns about non-APS matters will continue to be able to report these to the Commonwealth and Defence Force Ombudsman.

Clause 17 - Prohibition on patronage and favouritism

3.20.           A person exercising powers under this Bill or the New PS Regs in relation to APS employees and their engagement will be required to do so without patronage or favouritism (Bill s-cl.17(1)). 

 

3.21.           This rule will be wide enough to apply to any Minister.  However, it will not apply to

•                 any direction about Heads of Mission (Bill s-cl.17(2)); or

•                 appointment etc. of Secretaries or Heads of Executive Agencies (who are not included in the definition of APS employees).

Clause 18 - Promotion of employment equity

3.22.           An Agency Head will be required to establish a workplace diversity program to assist in giving effect to the APS Values (Bill cl.18 - cf 1922 PSA s.22B requiring EEO programs and WRA para 3(j) about ‘respecting and valuing the diversity of the workforce’).

 

3.23.           The Commissioner’s Directions will

•                 set out the substantive requirements for a workplace diversity program; and

•                 require all Agency Heads to report annually to the Public Service Commissioner on their workplace diversity programs.

3.24.           The Commissioner’s Directions will ensure that the Commissioner has the power and the information necessary to comment on agency programs.  The Public Service Commissioner will provide, through guidelines and Best Practice Advice, assistance to agencies to develop and apply performance indicators and criteria which they can use to report annually on their program.  This takes account of JCPA recommendations 9, 10, 11 and 12.

Clause 19 - Limitation on Ministerial directions to Agency Head

3.25.           An Agency Head will not be subject to direction by any Minister in relation to individual APS staffing decisions (Bill cl.19 - no equivalent provision in 1922 PSA).  This limitation on a Minister’s powers of direction will reinforce the APS Value of an apolitical public service (see Bill para 10(1)(a)).

 

3.26.           The limitation will not apply to the appointment of Heads of Mission (see Bill cl.39).  As Executive Council appointments, they are outside the limitation which relates to the ordinary powers of an Agency Head under Division 1 and 2 of Part 4).

 



Part 4 - APS employees

Division 1 - APS employees generally

Clause 20 - Employer powers etc. of Agency Heads

4.1.             An Agency Head will, on behalf of the Commonwealth, have all the rights, duties and powers of an employer (Bill s-cl.20(1) - cf NZ State Sector Act 1988 s-sec.59(2)).  Because, constitutionally, the ultimate employer of any APS employee is the Crown in right of the Commonwealth, the Agency Head will be given ‘the rights, duties and powers’ of, but will not be described as, ‘the employer’.

 

4.2.             This will change the basis of the current system where many of the current staffing powers are exercised by Agency Heads, but only by delegation from the Public Service Commissioner.  This change will ensure that at law an Agency Head will have all the powers of an ordinary employer recognising that the employment laws for the APS are to be aligned as far as possible with the private sector.

 

4.3.             These general powers will enable an Agency Head to do the following without separate statutory authority

•                 establish appropriate employment and management arrangements that best support the functions of the Agency, while having due regard to the needs of employees;

•                 create administrative positions if these are needed (creation of positions where these are needed to achieve certainty of delegation is dealt with in Bill cl.77);

•                 determine any arrangements in relation to the resignation of APS employees;

•                 require APS employees not to engage in employment outside the Agency without permission;

•                 deal with underperformance - including to reduce remuneration for poor performance where this is expressly provided for in AWAs, certified agreements, or other arrangements with an employee (reduction in classification following misconduct proceedings is covered in Bill cl.15 - see also Bill cl.24 dealing with determination-making power); at common law it is not possible to reduce remuneration unless this is an express term of the contract of employment; and

•                 re-engage a person who has ceased to be an APS employee (cf 1922 PSA s.47B) - the Commissioner’s Direction on Merit in Employment will allow re-engagement in certain circumstances without a full merit selection process.

 

4.4.             Any specific powers that are required to achieve consistency with the rights, duties and powers of an ordinary employer will be prescribed by regulation (Bill s-cl.20(2)).

 

4.5.             No attempt has been made to duplicate obligations that an Agency Head might have under other legislation (e.g. under Part 7 of the FMA Act dealing with the special financial responsibilities of ‘Chief Executives’).

Clause 21 - Prime Minister’s directions to Agency Heads

4.6.             The Prime Minister will be able to issue general written directions to Agency Heads relating to the management and leadership of APS employees (Bill cl.21). 

 

4.7.             As is the case now, Agency Heads will be expected to observe Government policy directions in the administration of their agencies (see ADMF Paper p.9).  Ministerial directions in relation to ordinary individual staffing decisions will be limited (see Bill cl.19 and s-cl.74(3)).

Clause 22 - Engagement of APS employees

4.8.             An Agency Head will be able, on behalf of the Commonwealth, to engage persons as employees for the purposes of the Agency (Bill s-cl.22(1) - cf 1922 PSA s.42 which provides for appointment to the Service).  This power of engagement will be exclusive to the Agency Head or a delegate of an Agency Head (see Bill s-cl.78(6)), except for

•                 certain machinery of government changes (see Bill cl.72); or

•                 cases authorised by some other Act.

 

4.9.             One effect will be that an Agency Head will not be able to be compelled to engage a particular person unless this is expressly provided for in this Bill or in some other Act.  For example, an Agency Head could still be compelled to re-engage a person under WRA ‘reinstatement’ rules (e.g. WRA para 170CR(1)(b)).

Categories of employment

4.9.1.          Unlike the 1922 PSA, because it does not spell out detailed staffing rules, the Bill does not need to specify different categories of employment.  The spelling out of different categories of staff with different rules and rights attached to each was one of the sources of complexity in the 1922 PSA.

 

4.9.2.          However, it will be important for Agency Heads to spell out when engaging staff the basis on which they are engaged.  In particular, they will need to spell out in the notice of engagement whether the staff member is engaged on a continuing, fixed-term or casual basis and if their engagement is subject to a probationary period - as this will be a major factor in determining the entitlements of the staff member under other legislation, such as superannuation, long service leave and access to remedies in relation to termination of employment provisions under the WRA, as well as under industrial awards and agreements (e.g. eligibility for redundancy benefits).

Conditions

4.9.3.          Any engagement of an APS employee (see Bill s-cl.22(1) and cl.72) will be able to be subject to conditions (Bill s-cl.22(2)). 

 

4.9.4.          Without limiting the generality of the power to impose conditions, the Bill specifically recognises that conditions will be able to be imposed in relation to five specified matters (Bill s-cl.22(2))

•                 probation;

•                 citizenship;

•                 formal qualifications;

•                 character and security clearances; and

•                 health/clearances.

 

4.9.5.          The specific recognition of these conditions will make it clear that a termination of employment for breach of one of these conditions will not, for that reason alone, be

•                 ‘harsh, unjust or unreasonable’ for WRA purposes (see WRA para 170CA(1)(c)); or

•                 ‘unfair or unlawful’ for WRA purposes (see WRA s-sec.170CG and 170CK).

 

4.9.6.          Each of the specific conditions is dealt with below.

Probation

4.9.7.          The Bill specifically recognises that a condition will be able to be imposed in relation to probation (Bill para 22(2)(a)).  This continues the current approach that, subject to a discretion vested in the Public Service Commissioner, an appointment of an officer (other than a Secretary) should ‘in the first instance, be an appointment on probation’ (see 1922 PSA s.47).

 

4.9.8.          An employee serving a period of probation or a qualifying period of employment is excluded from the termination of employment requirements in the WRA if the duration of the period or the maximum duration of the period, as the case may be, is known in advance and is three months or less or, if more than three months, is reasonable having regard to the nature and circumstances of the employment (see WRA para 170CC(1)(b) and WR Regs para 30B(1)(c)).

Citizenship

4.9.9.          The Bill specifically recognises that a condition will be able to be imposed in relation to citizenship (Bill para 22(2)(b)).  See below (Bill s-cl.22(4)). 

Formal qualifications

4.9.10.        The Bill specifically recognises that a condition will be able to be imposed in relation to formal qualifications (Bill para 22(2)(c) - cf 1922 PSA s.33A). 

Security and character clearances

4.9.11.        The Bill specifically recognises that a condition will be able to be imposed in relation to security and character clearances (Bill para 22(2)(d)).  This resolves an area of uncertainty in the current employment framework and gives effect to a recommendation in the McLeod Report (para 4.46 R37) that

‘...the new Act should contain a provision that...applicants...for whom the secretary judges it necessary, will need to satisfy the secretary as to their suitability to be employed in the APS, as appropriate, based on a character check and an assessment of their security status.  Employees’ security status may also be assessed before they are transferred or promoted to duties which require it.’

Health Clearances

4.9.12.        The Bill specifically recognises that a condition will be able to be imposed in relation to health clearances (Bill para 22(2)(e)).  This will give Agency Heads more flexibility than under the current employment framework which requires new staff to undergo a test of physical fitness before their recruitment can be confirmed (1922 PSA para 47(2)(b) and para 47(11)(a)). 

Other conditions

4.9.13.        Specifying these conditions will not limit by implication the conditions that may otherwise be applied to the engagement of an APS employee (Bill s-cl.22(3)).

Citizenship requirement

4.9.14.        The Public Service Reform Act 1984 removed the requirement that appointees to the APS be British subjects.  An Australian citizenship requirement was inserted in its place, but with provision for that requirement to be waived in specific cases with the approval of the Prime Minister.  Subsequently, the Public Service Legislation (Streamlining) Act 1986 allowed the appointment on probation of persons who were not Australian citizens, but on the basis that their appointments would be confirmed only if citizenship was granted.  In exceptional cases, and only in accordance with arrangements approved by the Prime Minister, a person who was not an Australian citizen could be appointed without probation or have his or her appointment confirmed without citizenship having been granted.

 

4.9.15.        The Bill continues this general approach but recognises the new devolved framework.  An Agency Head will not be able to engage a non-Australian citizen unless the Agency Head considers it appropriate to do so (Bill s-cl.22(4)).

Clause 23 - Classification Rules

4.10.           In the APS context, classification structures define classes of work according to work requirements, skills and responsibilities and are linked to a specific salary or range of salaries.

Current position

4.10.1.        Currently, classifications are only approved classifications for the purpose of 1922 PSA if they are included in a s.28 declaration, in a s.82D determination, or in an award.  APS classification levels currently exist in awards (only variable by agreement with the unions or via arbitration), and in agreements under the WRA (which may vary the award provisions, provided the changes involve classifications already authorised under s.28).

 

4.10.2.        It is considered that there should be a systematic mechanism for categorising employees, for the immediate future.  It is therefore considered that the application of the merit principle and the mobility arrangements should operate for the foreseeable future via the classification system.  To ensure that these principles operate APS-wide as intended, centralised prescription of the classification system is needed.

New arrangements

4.10.3.        The Minister who will be administering this Bill will be able, by notice in the Commonwealth Gazette , to make rules about the classification of APS employees (Bill s-cl.23(1)).  These rules will be described in this Bill as ‘Classification Rules’ (see Bill cl.7).  The rules will be able to be varied (see AIA s-sec.33(3)).

 

4.10.4.        An Agency Head will be required to comply with these Classification Rules (Bill s-cl.23(3) - cf 1922 PSA ss.27 and 28 dealing with classification of offices and officers).  The Classification Rules will recognise classifications established by awards (Bill s-cl.23(2)).  It is intended that Agency Heads should apply the Classification Rules, not only when exercising powers under this Bill, but also when exercising powers under other laws in relation to APS employees (e.g. WRA power to enter into AWAs and CAs, which will need to be consistent with the Rules).

 

4.10.5.        Because of the move away from APS-wide pay-setting, it is proposed that the Commissioner’s Direction on Diversity in Employment define promotion in terms of movement to a higher classification level.  It is proposed that the new Classification Rules will enable groupings of classifications at comparable levels; movement within such a grouping would not be a promotion.

 

4.10.6.        SES employees will be those APS employees who are classified as SES employees under the new Classification Rules (see Bill cl.34).

Clause  24 - Remuneration and other conditions

Introduction

4.11.1         Currently remuneration and other conditions for APS employees are dealt with as follows

•                 salary (including performance pay) and allowances are usually covered by WRA (awards, certified agreements and AWAs), but sometimes under determinations (see 1922 PSA s.82D);

•                 fringe benefits (e.g. cars, accommodation) are sometimes covered by WRA, sometimes by non-statutory means (either as a privilege or an entitlement) and sometimes under determinations (see 1922 PSA ss.82D and s.89);

•                 superannuation is sometimes covered by specific Acts, sometimes under WRA and sometimes by non-statutory means (e.g. AGEST) - the cross-references to the superannuation legislation in 1922 PSA are not necessary and have been omitted from this Bill - the CTA Bill will contain some consequential amendments to the superannuation legislation;

•                 leave entitlements are sometimes covered by specific legislation (e.g. LSL and maternity leave) and sometimes under WRA (annual leave, sick leave, jury leave, leave without pay)(see 1922 PSA s.82D);

•                 hours of work are usually dealt with under WRA, but 1922 PSA has some rules (ss.29C and 29D) about part-time work (see also 1922 PSA s.82D).

 

4.11.2         A full list of the legislation other than the 1922 PSA which at that time related to APS terms and conditions is contained in Appendix 5 to the McLeod Report.

Agency Head

4.11.3         An Agency Head will be able from time to time to determine the remuneration and other terms and conditions of employment for APS employees in that Agency (Bill s-cl.24(1)).  This is one of the ordinary powers of an employer but is explicitly stated to emphasise the change from the current employment framework where these matters are determined centrally.

 

4.11.4         While agreements under the WRA are expected to establish most remuneration and conditions entitlements, Agency Heads may wish to continue to use this authority to determine specific matters, for example, conditions for SES, or for Australia-based employees working overseas or in remote localities.

 

4.11.5         This power

•                 will be delegable (see Bill s-cl.78(6));

•                 will be subject to any inconsistent determinations by the Minister administering this Bill (see Bill s-cl.24(4));

•                 will allow for different determinations for different classes (AIA s-sec 33(3A));

•                 will be exercised within the framework provided by other Commonwealth laws dealing with matters such as superannuation, compensation, LSL and maternity leave (Bill s-cl.24(1) Note).

 

4.11.6         In addition such a determination will be able to apply, adopt or incorporate, with or without modification, any of the provisions of the following as in force at a particular time or as in force from time to time (Bill s-cl.24(2))

•                 an award

‘an award or order that has been reduced to writing under subsection 143(1), but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA’ (WRA s.4); or

•                 a certified agreement

‘an agreement certified under Division 4 of Part VIB’ (WRA s.4).

 

4.11.7         It is proposed that, as is currently the case in relation to 1922 PSA s.82D determinations, regulations will be made under the WRA to allow AWAs and CAs to be inconsistent with determinations made under cl.24 of the Bill.

 

4.11.8         As a matter of practice, Agency Heads will be expected to take reasonable steps to ensure that every APS employee in the Agency has ready access to the documents that set out their remuneration and other terms and conditions of employment (cf Bill s-cl.15(4)).

Public Service Minister

4.11.9         The Public Service Minister will also be able, by notice in the Commonwealth Gazette , to determine the remuneration and other terms and conditions of APS employees (Bill s-cl.24(3) - cf 1922 PSA s.82D).

 

4.11.10       This power

•                 will only be exercisable where the Minister is of the opinion that it is desirable to do so because of special circumstances (Bill s-cl.24(3));

•                 will not be delegable (Bill s-cl.78(2));

•                 will allow for different determinations in respect of different classes (AIA s-sec.33(3A);

•                 will override any inconsistent determination by an Agency Head (Bill s-cl.24(4)); and

•                 will operate within the context of the other Commonwealth laws referred to earlier.

Clause 25 - Assignment of duties

4.12.           An Agency Head will be able, from time to time, to determine (Bill cl.25)

•                 the duties of an APS employee in the Agency; and

•                 the places at which those duties are to be performed - this could include duties in the Territories or outside Australia (see Bill cl.5).

 

4.13.           This power is, again, one of the ordinary powers of an employer and is expressly included in the Bill to emphasise that all the ordinary ‘rights, duties and powers’ of an employer have been given to Agency Heads.

Clause 26 - Voluntary moves between Agencies

4.14.           An Agency Head will be able to arrange with an existing APS employee for that employee to move to the Agency Head’s Agency from another Agency (Bill s-cl.26(1)).  Any movement that is a promotion will be subject to the Commissioner’s Direction on Merit in Employment (see Bill para 10(1)(b) and cl.11 and also ADMF Paper pp.12-14).

 

4.15.           The agreement with the employee will have effect according to its terms but will be subject to any regulations (Bill s-cl.26(2)).  Guidelines to be issued by the Commissioner will suggest sensible approaches in normal circumstances for dates of release etc.

 

4.16.           These movements between Agencies by agreement between an Agency Head and an APS employee are separate from any movements effected by the Public Service Commissioner between agencies

•                 where an APS employee is excess (see Bill s-cl.27(1)); or

•                 to give effect to machinery of government changes (see Bill cl.72).

Clause 27 - Compulsory moves between Agencies

4.17.           The Public Service Commissioner will be able to move an excess APS employee from one Agency to another (Bill s-cl.27(1)).  This retains the power of redeployment by transfer in the current employment framework (see 1922 PSA s.76L, s.76W and s.51) and will facilitate the effective redeployment of excess employees (ADMF Paper p.29).

 

4.18.           As a matter of practice, this power will normally only be exercised by the Public Service Commissioner after consultation with each of the Agency Heads.

 

4.19.           An APS employee will be regarded as an excess APS employee for the purposes of this power of redeployment (but not for any other purpose) only if the Agency Head has notified the Public Service Commissioner that the employee is excess to the requirements of the Agency (Bill s-cl.27(2)).

Clause 28 - Suspension

4.20.           The New PS Regs will prescribe the circumstances in which an APS employee can be suspended from duty with or without remuneration (Bill cl.28).

 



4.21.           The reason for a suspension power is as follows

•                 without an explicit suspension power, it would not be clear that an Agency Head would be able to suspend an APS employee.  This power is not an implied term in the common law contract of employment; and

•                 such a power is needed in cases where it is believed that a person may have committed misconduct or has been charged with a criminal offence or been found guilty of one, pending investigation, the hearing of charges or a decision on what action needs to be taken as a result.

 

4.22.           It is proposed that the provisions for suspension to be set out in the New PS Regs will deal with the matters that are covered in the suspension provisions in 1922 PSA (see s-sec.63B, 63C and 63JA).

 

4.23.           The rules of procedural fairness will apply to any suspension.

Clause 29 - Termination of employment

4.24.           An Agency Head will be able to terminate the employment of any APS employee in the Agency (Bill s-cl.29.(1)). 

 

4.25.           A notice of termination of employment must include a statement of the reasons for the termination (Bill s-cl.29(2)).  However, non compliance with s-cl(2) will not affect the termination (Bill s-cl.29(3)).

 

4.26.           Section 25D of the AIA sets out the required content of a Statement of Reasons.

 

4.27.           There will be no further prescription in the Bill and no lengthy processes will be mandated.

 

4.28.           However, (subject to the exclusions from coverage set out in the WR Regs) any termination of a non-SES employee would be subject to the WRA rules in relation to termination of employment (Bill cl.29 Note).  As pointed out in the ADMF Paper (p.29)

‘...non-SES employees will have the protection against dismissal on discriminatory grounds available to them under the Workplace Relations Act (section 170CK).  Dismissals which are harsh, unjust or unreasonable will be open to review by the Australian Industrial Relations Commission (s.170CE) with the possibility of reinstatement or compensation after a successful application.’

 

4.29.           In addition, it is not lawful for Agency Heads to terminate employment on any of the grounds set out in s.170CK of the WRA, except as allowed by that section in the case of an inherent requirement of the job.

 

4.30.           It will be possible to modify the exercise of the power to terminate under cl.29 through Certified Agreements or AWAs under the WRA where this clause and the relevant conditions are prescribed for the purposes of s-secs.170LZ(4) and 170VR(4) of the WRA.  An Agency Head will not be able to incorporate these terms in a common law contract of employment.  For example, a Certified Agreement or an AWA, might set out agreed processes for managing underperformance, redundancy or provisions relating to compensation for early termination of a fixed term engagement.

 

4.31.           The termination of employment provisions of the WRA (Division 3 of Part VIA) will not apply to

•                 the termination of

-        the appointment of a Secretary (see Bill cl.59);

-        the appointment of a Head of an Executive Agency (see Bill cl.67);

-        the employment of an SES employee (see Bill cl.38); or

•                 MoG changes (see Bill cl.72).

4.32.           The termination of employment of an SES employee will be subject to the terms of relevant provisions of the Commissioner’s Direction on SES employment (see Bill cl.36)

Clause 30 - Retirement

4.33.           An APS employee who has reached minimum retiring age will be entitled to retire at any time by notice in writing to the Head of that employee’s Agency (Bill s-cl.30(1)).  This provision is the same in substance as 1922 PSA s-secs.76B(1) for Secretaries; 76I(1) for SES; and 76U(1) for other officers.

 

4.34.           The minimum retiring age will be 55 years, or such other age as is prescribed by regulations (s-cl.30(2)).  This provision is the same in substance as 1922 PSA s-sec.76B(2) for Secretaries; 76I(2) for SES; and 76U(2) for other officers. 

 

4.35.           The New PS Regs will be able to prescribe a different age either generally or for specified classes of employees (see AIA s-sec.33(3A) - no change from 1922 PSA).  At this stage, no prescription is proposed.

Clause 31 - Forfeiture of additional remuneration

4.36.           An Agency Head will have the power to notify an APS employee about forfeiture of any remuneration the employee has received from a person other than the Commonwealth for performing duties as an APS employee (Bill s-cl.31(1) - based on 1922 PSA s­sec.91A(1)).

 

4.37.           Any amount that is notified in this way (Bill s-cl.31(2))

•                 will be taken to have been received by the APS employee on behalf of the Commonwealth; and

•                 will be able to be recovered by the Commonwealth from the APS employee in a court of competent jurisdiction.

 

4.38.           This provision is based on 1922 PSA (s-sec.91A(1)) except that the Bill provides a recovery mechanism.  The 1922 PSA only requires the person to pay without specifying the consequences if the person does not.

 

4.39.           As with 1922 PSA, the Bill does not deal with ‘double’ Commonwealth remuneration for the same duties.  The entitlement of a full-time APS employee to receive other remuneration from the Commonwealth is dealt with in s-sec.7(11) of the Remuneration Tribunal Act 1973

‘(11)  Except as prescribed, or as authorised or approved by or under any other law of the Commonwealth or any law of a Territory, a person is not entitled to be paid any remuneration in respect of his holding, or performing the duties of, a public office on a part-time basis if the person holds any office or appointment, or is otherwise employed, on a full-time basis in the service or employment of the Commonwealth, the Administration of a Territory, a public statutory corporation, an incorporated company referred to in paragraph 3(4)(da) or an incorporated company all the stock or shares in the capital of which is or are beneficially owned by the Commonwealth or by a public statutory corporation.’

Clause 32 - Right of return for election candidates

4.40.           An APS employee who has resigned to contest an election will, in certain circumstances, have a right to be re-engaged as an APS employee (Bill s-cl.32(2)).

 

4.41.           The circumstances will be as follows (Bill s-cl.32(1))

•                 the type of election has been prescribed in the regulations (this will initially include those elections currently specified in 1922 PSA: Commonwealth; State; Territory; Aboriginal and Torres Strait Islander Commission (ATSIC); Torres Strait Regional Authority (TSRA));

•                 the resignation took effect not earlier than six months before the closing date for nominations; and

•                 the APS employee was a candidate in the election but failed to be elected.

 

4.42.           The APS employee will be required to apply for re-engagement in accordance with the regulations and within the time limits specified in the regulations (Bill s-cl.32(2)).

 

4.43.           It is proposed that the provisions to be set out in the New PS Regs will enable all provisions relating to this matter to be set out systematically in the one place.  The New PS Regs will be generally along the lines of the provisions in 1922 PSA (see s.47C for officers and s.82B for employees) and a little-known Determination No.58 of 1988.

 

4.44.           In brief, the New PS Regs will enable a person who meets the requirements of cl.32

•                 to be engaged as an APS employee within two months of the results of an election being declared;

•                 to have the period between the resignation and the new engagement recognised as a period of service for sick leave, recreation leave, long service leave as per the Long Service Leave (Commonwealth Employees) Act 1976 and for salary incremental purposes (if applicable); and

•                 to have the engagement at the same classification level.

 

4.45.           If an APS employee meets the requirements of the regulations, a right to be engaged again in APS employment does not amount to the person holding an office of profit under the Crown during the period between the person’s resignation and engagement again.

 

4.46.           The CTA Bill will amend s.120 of the Superannuation Act 1976 to replace the references in that section to s.47C of the 1922 PSA with references to cl.32 of the Bill.

Clause 33 - Review of actions

Present position

4.47.1.        The paper People Management and Administrative Law (PSC State of the Service Paper No.3, 1994) drew attention to the concerns that managers had about the complexity and legalism surrounding current review processes.

 

4.47.2.        The ADMF Paper states (p.20) that

‘At present there are too many avenues of appeal, resulting in complicated and convoluted processes.  The responsibility to afford public servants a right of review of employment decisions needs to be balanced against the need to reduce the costs associated with an appeals culture.

Furthermore, if fundamental changes are to be made to the culture of the workplaces across the APS, it is imperative that effective employment practices and relationships are cemented at local levels.  Agencies must take direct responsibility for establishing good employee relations policies—an attribute which is integral to the new devolved agreement making approach.  Far greater emphasis, therefore, must be placed on resolving grievances at the agency level with less legalistic processes.’

New approach

4.47.3.        The Bill will provide the statutory framework for this new, streamlined approach to review of actions, while ensuring that they assist in the protection of the merit principle.

 

4.47.4         In response to the JCPA comments on the desirability of separating the Public Service Commissioner’s standard setting functions from the review function, a statutory office of Merit Protection Commissioner will be established under Part 6 of this Bill.  The appointment of an independent statutory officer will ensure the separation of the functions of setting standards and of reviewing employment decisions which apply those standards to individual APS employees.

 

4.47.5.        An APS employee will be entitled to seek a review, in accordance with the regulations, of any action affecting the employee’s APS employment (Bill s-cl.33(1)).  This would also cover a refusal or failure to act (Bill s-cl.33(4)).

 

4.47.6.        The New PS Regs will be able to prescribe exceptions to the entitlement to a review (Bill s-cl.33(2)).  It is proposed that the regulations will exclude

 

•                 Frivolous or vexatious applications for review (Bill Note to s-cl.33(2));

 

•                 Actions that are more appropriately dealt with by another external review body

(i.e. under the WRA to the AIRC);

 

•                 The action is about the policy, strategy, nature, scope, resources or direction of the APS or an Agency;

 

•                 The action is action by the Governor-General or a Minister;

 

•                 The action is action taken, or not taken, in accordance with a direction or reference given by a Minister under the Bill or another Act;

 

•                 The action is the giving of a direction by the Public Service Commissioner under cl.11 or cl.36 of the Bill;

 

•                 The action is action taken, or not taken, for a special inquiry under cl.43 of the Bill;

 

•                 The action is action taken, or not taken, under cl.72 of the Bill in relation to the implementation by the Commissioner of machinery of government changes;

 

•                 The action arises under any of the following Acts:

                  -         Australian Security Intelligence Organization Act 1979,

                  -         Safety, Rehabilitation and Compensation Act 1988

                  -         Superannuation Act 1976

                  -         Superannuation Act 1990;

 

•                 The action relates to the engagement of an APS employee;

 

•                 The action relates to the promotion of an APS employee as an SES employee (whether or not the employee is already an SES employee); or

 

•                 The action determines, under cl-25 of the Bill, duties of an APS employee, or the place or places where they are to be performed, if the action does not involve:

                  -         reduction in classification; or

                  -         relocation to another place; or

                  -         a promotion for which the applicant for review was an applicant; or

                  -         the reassignment of an employee to duties that the employee could not be    reasonably expected to perform.

 

4.47.7.        Locally engaged employees overseas (who are not ‘APS employees’) will also not have this entitlement to a review.

External review

4.47.8.        The New PS Regs will be able to set out the powers available to the Merit Protection Commissioner or to any other person or body conducting such a review (Bill s-cl.33(3).  The functions of the Merit Protection Commissioner will be:

•                 to be responsible for a streamlined, review process external to the Agency of the aggrieved employee;

•                 to monitor the progress of reviews that have been sought;

•                 to review Agency decisions where reviews have been sought but not satisfactorily resolved; and

•                 make a recommendation to the Agency Head about the decision; and

•                 if necessary, report to the Public Service Commissioner.

 

Note:          The Merit Protection Commissioner may use an independent reviewer to review an action or agency decision on her or his behalf.

                  An application for review may also be handled direct by the Merit Protection Commissioner in certain circumstances (i.e. sensitive cases).

Reports

4.47.9.        The regulations will provide that where the Merit Protection Commissioner is not satisfied with the action taken by the Agency Head the Merit Protection Commissioner must tell the Agency Head in writing and report the matter to the Public Service Commissioner.

 

4.47.10       The Public Service Commissioner must, upon receipt of a report from the Merit Protection Commissioner, consider the report and if not satisfied with the action taken by the Agency Head, he or she must include details of the action taken by the Agency Head in relation to the recommendation, and other relevant information, in his or her annual report on the state of the APS, prepared under s-cl.44(2) of the Bill.

 

4.47.11       The Public Service Commissioner may also report to the Agency  Minister, or provide a separate report to Parliament, about any matter contained in a report to Public Service Commissioner by the Merit Protection Commissioner.

 

Division 2 - The Senior Executive Service

4.48.           The APS will continue to have a Senior Executive Service (SES) (Bill Part 4 Division 2).  The ADMF Paper stated (p.23)

‘It is proposed the concept of the SES be retained and that the new Public Service Act  should include, for the first time, a clear statement of the purpose of the SES.’

 

4.49.           The current SES was established by the Public Service Reform Act 1984 .  It replaced and reshaped the former Second Division of the APS established under the 1922 PSA.  The Second Division’s role had been to constitute a grouping of senior staff who, under the Secretaries of Departments, were required to exercise

‘executive or professional functions in the more important offices of the Service’ (PSA former s.24 - repealed by Public Service Acts Amendment Act 1982 , s.15 with effect from 1 July 1984).’

 

4.50.           The changes effected by the Reform Act were directed towards the establishment of a more unified and cohesive group of senior executive staff to undertake higher-level policy advice, managerial and professional responsibilities in APS agencies. The amendments also emphasised the nature of the SES as an APS-wide management resource with provision for its members to be deployed in and between agencies and for a greater degree of central management, leadership and involvement in the selection, development and placement of senior staff.  The essential characteristics of SES employment, as established by the Reform Act  in 1984, have remained in place.

Clause 34 - SES employees

4.51.           SES employees will be those APS employees who are classified as SES employees under the Classification Rules made by the Minister responsible for administering this Bill (Bill cl.34).  SES classifications currently derive their authority from declarations under 1922 PSA  and from clause 20.6 of the Australian Public Service Award 1998 (1922 PSA s-sec.28(1A) declarations were made on 4 January 1990 and 10 August 1990).

 

4.52.           The current distinction between SES and SES (Specialist) will not be retained - all will be simply SES employees.

Clause 35 - Constitution and role of SES

4.53.           The Senior Executive Service (SES) will consist of the SES employees (Bill s-cl.35(1) - based on 1922 PSA s-sec.26AA(1)).

 

4.54.           The function of the SES will be to provide a group of APS employees each of whom will carry out the following functions within her or his agency (Bill s-cl.35(2)

(a)              the provision, at a high level, of one or more of the following: professional expertise; policy advice; or management (based on 1922 PSA para 26AA(2)(a) which refers to ‘higher level policy advice, managerial and professional responsibilities’);

(b)              the promotion of cooperation between agencies (no equivalent in 1922 PSA); and

(c)              the promotion, by personal example and other appropriate means, of the APS Values (see Bill cl.10) and the Code of Conduct (see Bill cl.13 - no equivalent in 1922 PSA).

 

4.55.           The mobility expectations in relation to SES employees will remain as a matter of Government policy (cf 1922 PSA para 26AA(2)(b)), but it is not considered necessary to include these expectations in the new Bill.

Clause 36 - Commissioner’s Directions on SES matters

4.56.           The Public Service Commissioner will be required to issue Commissioner's Directions about employment matters relating to SES employees (Bill cl.36 - no direct equivalent in 1922 PSA, but see ADMF Paper p.23).

 

4.57.           It is proposed that the Commissioner’s Directions will be issued initially in relation to the engagement, promotion and separation of SES employees.

Clause 37 - Incentive to retire

4.58.           An Agency Head will be able to notify an SES employee that the employee will become entitled to a specified redundancy benefit if the employee retires within a specified time (Bill s-cl.37(1) - based on 1922 PSA s-sec.76R(1), except that the notice will now be given by the Agency Head, not the Public Service Commissioner (see ADMF Paper p.23).

 

4.59.           If the SES employee retires within the specified period the employee will (Bill s-cl.37(2))

(a)              be entitled to the specified redundancy benefit (based on 1922 PSA s-para.76R(2)(b)(i)); and

(b)              be taken, for all purposes, to have been compulsorily retired from the APS  (based on 1922 PSA s-para 76R(2)(b)(ii)) - this is relevant for superannuation purposes).

Clause 38 - Termination

4.60.           Division 3 of Part VIA of the WRA (dealing with termination of employment) will not apply to the termination of employment of an SES employee (Bill cl.38).

 

4.61.           The Commissioner’s Directions on SES employment matters will specify minimum requirements in relation to the termination of employment of an SES employee, involving:

 

•                 an assessment having been made, with due regard to procedural fairness, that the grounds for termination have been fully established; and

 

•                 the employee having been given full information about other employment in the Agency that the Agency Head, having regard to the assessment, considered could be made available to the employee; and

 

•                 the Public Service Commissioner having certified that he or she is satisfied that the termination is in the best interest of the APS; and

 

•                 publication in the Gazette of notice of the termination.

 

Division 3 - Heads of Mission

4.62.           Heads of Mission (HoMs) are executive appointments made by the Governor-General in Council as an exercise of prerogative power recognised by s.67 of the Australian Constitution.

 

4.63.           Currently, APS officers who become HoMs take leave without pay from the APS and become unattached officers.

 

4.64.           The 1922 PSA provides only very limited scope for discipline of ‘unattached officers’: the only grounds of misconduct for which they can be held responsible being ‘conduct bringing the (Australian Public) Service into disrepute’ (1922 PSA s.63J).  This is not adequate, considering the level of managerial responsibility, in terms of both financial and personnel issues, that HoMs are expected to exercise and the delegations that they currently hold.

 

4.65.           There have also been certain other technical problems involving the application of the misconduct provisions to officers who were unattached at the time of the misconduct but who subsequently resume duty as officers. Legislative amendment aimed at curing these technical problems has already been attempted, but the result has been that the legislation is complex and not easy to understand.

Clause 39 - Heads of Mission (HoMs)

4.66.           The appointment of a HoM by the Governor-General will not be able to take effect (Bill s-cl.39(1)) unless the person is

•                 an APS employee; or

•                 a person employed under the Australian Trade Commission Act 1985 - this will cover arrangements at AUSTRADE posts overseas.

 

4.67.           An Agency Head will be required to comply with any direction by the Minister responsible for that Agency (see definition of ‘Agency Minister’ in Bill cl.7) to ensure that the person can become a HoM (Bill s-cl.39(2)).

 

4.68.           No problems in international law arise out of HoMs remaining APS employees and therefore being on the same disciplinary basis as other diplomatic officers. Although HoMs are ‘plenipotentiaries’ as far as the receiving States (or, in some cases, organisations) to whom they are accredited are concerned, this status does not limit the terms or conditions which Australia as a sending State may impose on the appointment of HoMs. Similarly, there are no Australian constitutional objections to the new approach.

 

4.69.           There would be no change in the current arrangements whereby the Minister for Foreign Affairs recommends to the Governor-General the appointment of a HoM and also sets the terms and conditions of that appointment

•                 the HoM would be paid a salary as an APS employee and would be subject to the general provisions of the Bill applying to APS employees;

•                 however, the terms and conditions of appointment of HoMs, which may differ from those applying to APS employees serving overseas in other capacities, will be set by the employing Agency Head at the direction of the Minister for Foreign Affairs;

•                 determinations of the Remuneration Tribunal will not apply to such an appointment.



Part 5 - The Public Service Commissioner

5.1.             The position of Public Service Commissioner will be continued in the new Bill and the role will be enhanced (Bill Part 5).

Division 1 - Public Service Commissioner’s functions etc.

5.2.             There has been an office of Public Service Commissioner since the Administrative Arrangements Act 1987 abolished the former three-member Public Service Board (‘PSB’) and established the office of Public Service Commissioner (s.11 - amending 1922 PSA ss.11-17).  The 1987 Act included provisions for the appointment, tenure, remuneration etc. of the Commissioner.  It also provided that all references to the PSB in legislation and other instruments (other than matters occurring before the commencement of the new provisions) were to be read as references to the Commissioner (s-sec.11(7) of 1987 Act).

 

5.3.             The Second Reading Speech on the 1987 Act foreshadowed further legislation

‘to give full effect to the Government’s proposals for the distribution of the Board's powers’ (Senate Hansard 17 September 1987, p.85).

 

5.4.             In the meantime, delegation arrangements have continued, with the former PSB powers formally vested in the Public Service Commissioner through the Administrative Arrangements Act 1987 , and exercised by Secretaries under Commissioner delegations rather than the formal devolution of powers previously intended.

Clause 40 - Public Service Commissioner

5.5.             There will be a Public Service Commissioner (Bill s-cl.40(1)).

 

5.6.             The current Public Service Commissioner (appointed under 1922 PSA s.11) will continue in office for the unexpired period of her current appointment (see CTA Bill s-cl.5(2)).

 

5.7.             The PSMPC will continue to be a non-incorporated body

•                 the staff to assist the Public Service Commissioner will be required to be engaged under this Bill (Bill s-cl.40(2));

•                 existing PSMPC staff will, when the Bill commences, become APS employees under the Bill in the Statutory Agency to be constituted by the Commissioner and the staff (see CTA Bill cl.5 and next para of Ex Memo).

 

5.8.             In keeping with the new framework for APS staffing provided for in the Bill (Bill s-cl.40(3))

(a)              the Public Service Commissioner and the APS employees assisting the Commissioner will together constitute a Statutory Agency for the purposes of the new Bill (cf 1922 PSA s-sec.18B(1));

(b)              the Public Service Commissioner will be the Agency Head of this Agency (cf 1922 PSA s-sec.18B(2)), and hence the person able to exercise the ‘rights, duties and powers of an employer’ in respect of the APS employees in this Agency (see Bill s-cl.20(1)).

 

5.9.             Similar provisions will be included in the CTA Bill in relation to the other Statutory Agencies with APS employees (see list at Attachment C Parts C and D).

Clause 41 -  Public Service Commissioner’s functions

5.10.           The Public Service Commissioner will have a range of functions, some of which are specified in the Bill, to give effect to two key roles (see ADMF Paper pp.16-17)

•                 to uphold the ethos of public service and maintain appropriate standards of behaviour by public servants; and

•                 to promote and facilitate good practice in the management of public servants.

 

5.11.           The Commissioner’s functions as specified in the Bill will be much wider than under 1922 PSA and are set out below. 

(a)              Evaluation of incorporation of APS Values

5.11.1.        The Public Service Commissioner will have a specific statutory function to evaluate the extent to which Agencies incorporate the APS Values (Bill para 41(1)(a) - no equivalent in 1922 PSA - see also Bill cl.10 and ADMF Paper p.11). 

 

5.11.2.        The Commissioner will be able

•                 to take account of any such evaluation when considering what Commissioner’s Directions should be issued in relation to the APS Values (see Bill cl.11); and

•                 to hold special inquiries to assist in the evaluation (see Bill para 43(1)(a)). 

 

5.11.3.        The Commissioner will be able to use the special inquiry power for this function provided that there is notification in the Commonwealth Gazette (see Bill para 43(1)(a)).

(b)              Evaluation of compliance systems for Code of Conduct

5.11.4.        The Public Service Commissioner will have a specific statutory function to evaluate the adequacy of systems and procedures in Agencies for ensuring compliance with the Code of Conduct (Bill para 41(1)(b) - no equivalent in 1922 PSA - see also Bill cl.13 and ADMF Paper pp.14-15).

 

5.11.5.        The Commissioner will be able to use the special inquiry power for this function provided that there is notification in the Commonwealth Gazette (see Bill para 43(1)(a)).

(c)              Public interest whistleblowing

5.11.6.        The Public Service Commissioner will have a specific statutory function to inquire into reports made to the Commissioner by a public interest whistleblower (Bill para 41(1)(c)).

 

5.11.7.        The Commissioner will be able to use the special inquiry power in relation to whistleblowing allegations - but, to preserve privacy, will not be required to notify these special inquiries in the Commonwealth Gazette (see Bill para 43(1)(b)).

(d)              Reports to the Public Service Minister

5.11.8.        The Public Service Commissioner will have a specific statutory function to consider and report on public service matters to the Minister who will be responsible for administering this Bill (Bill para 41(1)(d)). 

 

5.11.9.        The Minister will also be able to request that a special inquiry be conducted by the Commissioner for the purpose of such a report (see Bill para 43(1)(c)).

(e)              Promotion of APS Values and Code of Conduct

5.11.10.      The Public Service Commissioner will have a specific statutory function to promote (Bill para 41(1)(e))

•                 the APS Values (see Bill cl.10); and

•                 the Code of Conduct (see Bill cl.13).

 

5.11.11.      There is no equivalent function given to anyone in the 1922 PSA.

(f)               Breaches by Agency Heads

5.11.12.      The Public Service Commissioner will have a specific statutory function to inquire into, and report to the Prime Minister on, alleged breaches of the Code of Conduct by Agency Heads (Bill para 41(1)(f) - no equivalent in 1922 PSA).

 

5.11.13.      The Commissioner will be able to use the special inquiry powers in relation to these allegations - but to preserve privacy will not be required to notify these special inquiries in the Commonwealth Gazette (see Bill para 43(1)(b)).

(g)              APS employment policies and practices

5.11.14.      The Public Service Commissioner will have a specific statutory function to develop, promote, review and evaluate APS employment policies and practices (Bill para (41)(1)(g)).

 

5.11.15.      This function will replace a much more limited power in 1922 PSA (s.22A) in relation to personnel management reviews.

 

5.11.16.      The Commissioner will be able to use the special inquiry power for this function provided there is notification in the Commonwealth Gazette (see Bill para 43(1)(a)).

(h)              Continuous improvement

5.11.17.      The Public Service Commissioner will have a specific statutory function to facilitate continuous improvement in people management throughout the APS (Bill para 41(1)(h) - no equivalent in 1922 PSA).

(i)               APS training and development

5.11.18.      The Public Service Commissioner will have a specific statutory function to coordinate and support APS-wide training and career development opportunities (Bill para 41(1)(i) - no equivalent in 1922 PSA).

(j)                Leadership in the APS

5.11.19.      The Public Service Commissioner will have a specific statutory function to contribute to, and foster, leadership in the APS (Bill para 41(1)(j) - no equivalent in 1922 PSA).

(k)              Advice and assistance

5.11.20.      The Public Service Commissioner will have a specific statutory function to provide advice and assistance on public service matters to Agencies on request (Bill para 41(1)(k) - no equivalent in 1922 PSA).

(l)                Functions conferred by Regulations

5.11.21.      The Public Service Commissioner will have a specific statutory function to undertake any functions conferred by the New PS Regs (Bill para 41(1)(l).  One example, would be the role to be given to the Commissioner in relation to review of actions, following receipt of a report from the Merit Protection Commissioner in accordance with regulations made for the purposes of cl.33 of the Bill.

 

5.11.22.      Any report by the Public Service Commissioner under his statutory functions will be able to include recommendations (Bill s-cl.41(2)).

Other functions

5.11.23.      The Commissioner will also have a range of other functions and powers under the Bill.  For example

•                 to issue Commissioner’s Directions (see Bill cls.11 and 36);

•                 to move an excess employee to another Agency (see Bill s-cl.27(1));

•                 to conduct special inquiries (see Bill cl.43);

•                 to prepare an annual report on the State of the Service (see Bill s-cl.44(2));

•                 to report on the proposed appointment, or termination of appointment, of the Secretary of the Department of the Prime Minister and Cabinet (see Bill s-cls.58(2) and 59(2));

•                 to act as Executive Officer to the Management Advisory Committee (see Bill cl.64);

•                 to implement MoG changes (see Bill cl.72); and

•                 to delegate any Commissioner powers or functions (see Bill cl.78).

Clause 42 -  Public Service Commissioner’s Directions

5.12.           As mentioned earlier, the Public Service Commissioner will be able, from time to time, to issue Commissioner’s Directions that will prescribe minimum mandatory procedures in relation to

•                 the APS Values (see Bill cl.11); or

•                 the SES (see Bill cl.36).

 

5.13.           Any such Directions will not be able to create offences or impose penalties (Bill s-cl.42(1)).

 

5.14.           However, Agency Heads and APS employees will be required to comply with all Commissioner’s Directions (Bill s-cl.42(2) - no equivalent in 1922 PSA).  In addition, these Directions will prescribe the minimum requirements with which agencies must comply.  Agency Heads will be free to establish standards above the minimum required, provided they are not inconsistent with the intent of the Values and Directions.

 

5.15.           Commissioner’s Directions may be made by applying, adopting or incorporating any matter n the Classification Rules as in force from time to time, or at a particular time (s-cl.42(3)).  This is important as the definition in the Commissioner’s Directions of what constitutes a ‘promotion’ will be framed in terms of movement to a higher group of classifications as set out in the Classification Rules.

 

5.16.           Any Commissioner’s Direction will be disallowable by resolution of either House of the Parliament (Bill s-cl.42(4) - AIA s.46A sets out how the disallowances will operate).

 

5.17.           As a disallowable instrument the Directions will be able to prescribe matters by reference to other instruments (AIA s.49A)

•                 in the case of an Act or regulations

‘as in force at a particular time or as in force from time to time’; and

•                 in any other case

‘as in force or existing’ when the Direction takes effect.

Clause 43  -  Public Service Commissioner’s inquiry powers

5.18.           To enable the Public Service Commissioner to effectively discharge his or her functions it is essential that the Commissioner be able to obtain information.  Accordingly, the Bill proposes (in cl.43) that the Public Service Commissioner have information gathering powers similar to those in the AG Act (ss.32-35 - the extensive priority and scope proposed to be accorded to the Auditor-General under AG Act ss.30 and 31 are not applied in the case of the Public Service Commissioner).

Special inquiries

5.18.1.        The Public Service Commissioner will be able to conduct a special inquiry (Bill s-cl.43(1))

•                 into any matter referred to the Public Service Commissioner under Bill para 41(1)(d) by the Minister administering this Bill (Bill para 43(1)(c));

•                 to evaluate (Bill para 43(1)(a))

-        the extent to which Agencies incorporate the APS Values (supporting the function in Bill para 41(1)(a));

-        the adequacy of systems and procedures in Agencies for ensuring compliance with the Code of Conduct (supporting the function in Bill para 41(1)(b)); and

-        APS employment policies and practices (supporting the function in Bill para 41(1)(g)); or

•                 into any allegation of breaches of the Code of Conduct (Bill para 43(1)(b)) made

-        by a public interest whistleblower (supporting the function in Bill para 41(1)(c)); or

-        about an Agency Head (supporting the function in Bill para 41(1)(f)).

 

5.18.2.        The first two groups of inquiries will only be ‘special inquiries’ within the meaning of the Bill (i.e. attracting the compulsory information gathering powers) if they are notified in the Commonwealth Gazette (Bill para 43(1)(a) and (c)).  To preserve the privacy of individuals at the inquiry stage, there will be no requirement to notify the third group of special inquiries in the Commonwealth Gazette .

Information gathering powers

5.18.3.        The Public Service Commissioner will have the same information gathering powers in relation to a special inquiry as are available to the Auditor-General under the Auditor-General Act 1997 (Bill s-cl.43(2) applying ss.32-35 of the AG Act - these sections are set out for reference at Attachment D).

 

5.18.4.        A brief summary of these provisions in the AG Act as they will apply to the Public Service Commissioner when conducting a special inquiry is as follows

•                 The Public Service Commissioner will be able to direct a person in writing to

-        provide any information required;

-        attend to give evidence before the Commissioner or authorised official; or

-        produce documents in the custody, or under the control, of the person.

•                 Any such directions by the Commissioner would be expected to detail reasonable deadlines and the form in which the information is to be supplied.

•                 The Commissioner will be able to direct information or answers to questions to be given orally or in writing and, if necessary, to be verified under oath or affirmation.

•                 The oath or affirmation may be administered by the Commissioner or an authorised official.

•                 Where persons are required to attend to provide information or answers to questions, the regulations (under the AG Act) will be able to prescribe scales of expenses allowable to those persons to compensate for their time or out-of-pocket expenses.

•                 The Public Service Commissioner or a person authorised by the Commissioner will be able to enter and remain on any Commonwealth premises.

•                 To remain on premises and perform Commissioner functions, authorised officials must, if requested, produce written authority which states they are working on behalf of, and may exercise the powers of, the Commissioner;

-        written authorisation would include instruments signed by the Commissioner or official identity cards indicating the powers delegated to the official;

-        where an authorised official enters, or proposes to enter, premises, the occupier must provide all reasonable facilities to assist in the effective exercise of the Commissioner’s powers.

•                 A person will be required to produce a document to, or answer a question of, the Commissioner or authorised officer even if the document or answer may incriminate the person.  However, the answer to the question or the document will not be able to be used as evidence against the person in criminal proceedings other than proceedings for an offence of not providing information or giving false statements to the Commissioner or an authorised official.

•                 Penalties are proposed for intentionally providing false or misleading information.  If a person giving information is aware the information may be false or misleading, the person must identify that information and, where possible, detail the extent of the problem.

Relationship with other laws

5.18.5.        This Bill contains no equivalent to s.30 of the AG Act which was intended to ensure that Parliament was expressly alerted to any restrictions that might be sought in the future that would limit the Auditor-General’s powers (Guide to AG Bill p.18).

Confidentiality

5.18.6.        Confidentiality will be ensured through

•                 s.70 of the Crimes Act 1914   in relation to facts or documents which come into a person’s knowledge or possession by virtue of being a Commonwealth official where there is a duty not to disclose (see Ex Memo para 3.14.9);

•                 the Code of Conduct in relation to dealings with Ministers and their staff (see Bill s-cl.13(6));

•                 the Information Privacy Principles in relation to personal information as defined in the Privacy Act 1988 .

Penalties

5.18.7.        Penalties for non-compliance will be as set out in the AG Act (see Attachment D).

 

5.18.8.        1922 PSA s-sec.19(2), although it is expressed to create an offence, does not specify any penalty. 

Clause 44 - Annual report

Annual report on PSMPC

5.19.1.        After the end of each financial year the Public Service Commissioner will be required to give a report to the Minister responsible for the legislative provisions dealing with the appointment of the Commissioner, for presentation to the Parliament, on the activities of the PSMPC during the year (Bill s-cl.44(1) - based on 1922 PSA s.15).

 

5.19.2         The Bill allows for flexibility in relation to submission of annual reports to the Parliament.  This flexibility is aimed at assisting Government achieve a better alignment of key accountability and reporting mechanisms in respect of APS agencies.  These include not only annual reports but also a range of other instruments outside the scope of this Bill such as:

 

•     portfolio budget statements;

 

•     implementation of accrual budgeting, and

 

•     reporting of financial performance.

 

5.19.3.        Similar annual reporting requirements will be imposed on Secretaries (see Bill cl.63) and Heads of Executive Agencies (see Bill cl.70).  The annual reporting requirements for the Heads of other Statutory Agencies with APS staff are dealt with in their constituting legislation.



Deadlines

5.19.4.        The deadlines for the preparation etc. of the annual report will be those that apply generally in relation to periodic reports (AIA s.34C).

State of the Service Report

5.19.5.        The Commissioner’s annual report will include a report on the State of the Service (Bill s-cl.44(2)).

 

5.19.6.        There is no equivalent provision in the current 1922 PSA.  However, the 1902 PSA (s.11) required the then Public Service Commissioner to report on ‘the condition and efficiency’ of the public service.  The 1922 PSA (former s.22) imposed a similar obligation on the PSB until it was abolished in 1987.

 

5.19.7.        It is envisaged the State of the Service Report will contain factual information plus an evaluation component.  An Agency Head will be required to give the Public Service Commissioner any information that the Commissioner requires for the purpose of preparing the State of the Service Report (Bill s-cl.44(3)).  Where possible the performance information required from Agencies for input to the State of the Service Report will be information that agencies themselves would find useful.

 

5.19.8         The State of the Service Report will include also the annual report of the Merit Protection Commissioner, provided to the Public Service Commissioner under cl.51 of the Bill on the activities of the Merit Protection Commissioner during the year. 

 

Division 2 - Commissioner’s appointment, conditions, etc.

Clause 45 - Appointment of Commissioner

5.20.           The Public Service Commissioner will be appointed by the Governor-General for a specified period of up to five years (Bill cl.45 - based on 1922 PSA s-secs.11(1) to (3)).

 

5.21.           The Commissioner will be able to be re-appointed (AIA s-sec.33(4A)).

 

5.22.           The current Public Service Commissioner (appointed under 1922 PSA. s.11) will continue in office for the unexpired period of her current appointment (see CTA Bill s-cl.5(2)).

Clause 46 - Remuneration etc.

5.23.           The remuneration and other conditions of appointment for the Public Service Commissioner will be as determined in writing by the Minister responsible for administering this Bill (‘described as the Agency Minister’ - Bill cl.46).

 

5.24.           As a matter of practice, the Agency Minister would normally only make such a determination after consultation with the Remuneration Tribunal.

Clause 47 - Removal from office

5.25.           The Governor-General will be able to remove the Public Service Commissioner following a prayer for removal from both Houses of Parliament, in the same session of the Parliament, on the ground of misbehaviour or physical or mental incapacity (Bill s-cl.47(1) - based on AG Act Schedule 1, cl.6 and on 1922 PSA s.17).

 

5.26.           The Governor-General will be required to remove the Commissioner from office if the Commissioner becomes bankrupt or insolvent (Bill s-cl.47(2) - based on AG Act Schedule 1, cl.6 and on 1922 PSA s.17).

Clause 48 - Acting Commissioner

5.27.           The Minister responsible for administering this Bill will be able to appoint an acting Commissioner (Bill s-cl.48(1) - based on PSA s.18A which confers this appointment power on the Prime Minister who is the responsible Minister under the current AAO).

 

5.28.           The framework rules provided by the AIA will apply to any such acting appointment (see AIA s.33A)

•                 the appointment will be able to be expressed to have effect only in the circumstances specified in the instrument of appointment;

•                 the Minister will be able to determine the terms and conditions of appointment and to terminate the appointment at any time;

•                 where the office is, or becomes vacant, the appointee will only be able to act for 12 months;

•                 the appointment will cease to have effect if the appointee resigns; and

•                 the appointee will have all the powers, functions and duties of the Commissioner.

 

5.29.           Appointments will not be affected by irregularities (Bill s-cl.48(2) - based on 1922 PSA s-sec.18A(8)). 

 

5.30.           Similar provisions will apply to acting appointments of

•                 Secretaries (see Bill cl.62 where power exercised by Prime Minister); and

•                 Heads of Executive Agencies (see Bill cl.69 where power exercised by the Minister who administers the relevant Agency - described as ‘the Agency Minister’).



Part 6 - The Merit Protection Commissioner

Division 1-Merit Protection Commissioner’s functions etc

6.1.             An office of Merit Protection Commissioner will be established as a separate and independent office within the Public Service and Merit Protection Commission.  This office is to be established in response to the JCPA comments that a

                  ‘review mechanism which builds on the current model of a separate statutory officer within the structure of the PSMPC may offer a more independent review process than is proposed in the current version of the Regulations’.

6.2.             The provisions relating to the appointment and conditions of the Merit Protection Commissioner will be based on the provisions in the Bill relating to the Public Service Commissioner.

6.3.             The Public Service Minister will have the discretion to recommend to the Governor-General either a full time or part time appointment.

Clause 49 - Merit Protection Commissioner

6.4.             There is to be a Merit Protection Commissioner (Bill s-cl.49(1)).

6.5.             The staff necessary to assist the Merit Protection Commissioner will be required to be engaged under this Bill and made available by the Public Service Commissioner (Bill s-cl.49(2)).

Clause 50 - Merit Protection Commissioner’s functions

6.6.             The Merit Protection Commissioner is to have such functions as may be prescribed by regulations made for the purposes of clause 33 of the Bill on review of actions (Bill cl.50).  As indicated above in relation to clause 33 (paragraph 4.48.8 refers), it is proposed that these functions include

•                 to be responsible for a streamlined, review process external to the Agency of the aggrieved employee;

•                 to monitor the progress of reviews that have been sought;

•                 to review Agency decisions where reviews have been sought but not satisfactorily resolved; and

•                 make a recommendation to the Agency Head about the decision; and

•                 if necessary, report to the Public Service Commissioner.

Note:  paragraph 4.48.8 also notes that an application for review may, in certain cases, be handled direct by the Merit Protection Commissioner, who may also use an independent reviewer to act on her or his behalf.

Report by Merit Protection Commissioner

6.6.1.          It is proposed that the regulations in relation to review will provide that, if the Merit Protection Commissioner is not satisfied with the action taken by the relevant Agency Head in relation to the recommendation (i.e. unresolved matter in the opinion of the Merit Protection Commissioner), the Merit Protection Commissioner must tell the Agency Head in writing that he or she is not satisfied and is reporting the matter to the Public Service Commissioner.

Report by the Public Service Commissioner

6.6.2.          It is proposed that the regulations in relation to review will provide that the Public Service Commissioner must consider any report from the Merit Protection Commissioner in relation to a review of action. 

6.6.3           If the Public Service Commissioner is not satisfied with the action taken by the Agency Head, he or she must include details of the action taken by the Agency Head in relation to the recommendation, and other relevant information, in his or her annual report prepared under s-cl.44(2) of the Bill.

 

6.6.4           The Public Service Commissioner may also report to the Agency  Minister, or provide a separate report to Parliament, about any matter contained in a report to the Public Service Commissioner by the Merit Protection Commissioner.

Clause 51- Annual report

6.7.             After the end of each financial year, the Merit Protection Commissioner will be required to give a report to the Public Service Commissioner on the activities of the Merit Protection Commissioner during the year (Bill s-cl.51(1)).

6.8.             The Merit Protection Commissioner’s report is to be included in the Public Service Commissioner’s report under s-cl.44(2) of the Bill, that is, the annual report on the State of the Service (Bill s-cl.51(2)).

Division 2-Merit Protection Commissioner’s appointment, conditions etc

Clause 52 - Appointment of Merit Protection Commissioner

6.9.             The Merit Protection Commissioner is to be appointed by the Governor-General for a period of up to five years (Bill cl.52 - based on Bill cl.45 - Appointment of Commissioner).

Clause 53 - Remuneration etc.

6.10.           The remuneration and other conditions of the Merit Protection Commissioner are to be determined in writing by the Public Service Minister (Bill cl.53 - based on Bill cl.46 - Remuneration etc of Commissioner).

Clause 54 - Removal from office

6.11.           The Governor-General will be able to remove the Merit Protection Commissioner from office following a prayer for removal from both Houses of Parliament, in the same session of the Parliament, on the ground of misbehaviour or physical or mental incapacity (Bill s-cl.54(1) - based on s-cl.47(1) of the Bill - removal from office of the Public Service Commissioner).

6.12.           The Governor-General will be required to remove the Merit Protection Commissioner from office if the Merit Protection Commissioner becomes bankrupt or insolvent (Bill s-cl.54(2) - based on s-cl.47(2) of the Bill - removal from office of the Public Service Commissioner).

Clause 55 - Acting Merit Protection Commissioner

6.13.           The Public Service Minister will be able to appoint an acting Merit Protection Commissioner (Bill s-cl.55(1) - based on cl.48 of the Bill - Acting Commissioner).

6.14.           The framework rules provided by the AIA will apply to any such acting appointment (see AIA s.33A)

•                  the appointment will be able to be expressed to have effect only in the circumstances specified in the instrument of appointment;

•                  the Minister will be able to determine the terms and conditions of appointment and to terminate the appointment at any time;

•                  where the office is, or becomes vacant, the appointee will only be able to act for 12 months;

•                  the appointment will cease to have effect if the appointee resigns; and

•                  the appointee will have the powers, functions and duties of the Commissioner.

6.15.           Appointments will not be affected by irregularities (Bill s-cl.55(2) - based on s-cl.48(2) of the Bill) - appointment of acting Public Service Commissioner.



Part 7 - Secretaries of Departments

7.1.             The office of Secretary will be continued for the Departments of State (Bill Part 7).

 

7.2.             At present the Secretary of a Department under his or her Minister is responsible for the general working of that Department and for providing advice to the Minister in all matters relating to the Department (1922 PSA s-sec.25(2)).

 

7.3.             Offices of Secretary have existed in the APS since Federation

•                 In both the 1902 PSA and 1922 PSA, the formal provisions defining the role of those offices referred to them as ‘Permanent Heads of Departments’ but the offices themselves were listed in Schedules to those Acts as Secretaries in most cases, although the title ‘Director-General’ has been used in some instances under the 1922 PSA.

•                 The listings in both Acts have included the office of Comptroller-General of Customs and the 1922 Act includes the Secretary-equivalents of the five Parliamentary Departments (listed at Attachment D, Part A).

•                 Prior to repeal of the formal four-Division structure of the APS (with effect from 1 July 1984) offices of Permanent Head were included in the First Division.

•                 The Public Service Reform Act 1984 abolished the generic Permanent Head title and formally established ‘Secretary’ as the standard title other than for the Parliamentary Departments.

 

7.4.             The legislative provisions for Secretaries have been expanded progressively particularly during the 1970s and 1980s, from their relatively brief coverage of basic salary, appointment and disciplinary provisions in the original 1922 PSA

•                 The appointment provisions were modified significantly by the Public Service Amendment (First Division Officers) Act 1976 , the Public Service Reform Act 1984, the Administrative Arrangements Act 1987 , and the Prime Minister and Cabinet (Miscellaneous Provisions) Act 1994 .

•                 The present framework of disciplinary provisions was inserted by the Public Service Amendment Act 1978.

•                 Provisions for retirement and redeployment of Secretaries were added by the Public Service Reform Act 1984 and have since been modified by the Public Service Legislation (Streamlining) Act 1986 , the Administrative Arrangements Act 1987 and the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 1992 .

Clause 56 - Creation of offices of Secretary

The present position

7.5.1.          The 1922 PSA makes no specific provision for the creation or abolition of an office of Secretary, nor does it specify the authority under which the title of such an office is established or varied.  However, the Governor-General’s power under 1922 PSA s-sec.36(1) to appoint a person to an office of Secretary implies the prior or concurrent exercise of the Governor-General’s power to create the office in question.

Creation of office

7.5.2.          Whenever a Department of State is established by the Governor-General, an office of Secretary of that Department will be created (Bill s-cl.56(1) - cf 1922 PSA Schedule 3 which lists the offices of Secretary  - see also para (a) of definition of ‘office of Secretary’ in 1922 PSA s.7).

 

7.5.3.          The concept of office has been retained only for the office of Secretary and for other Agency Heads.

Abolition of office

7.5.4.          Whenever a Department is abolished the office of Secretary of that Department will also be abolished (Bill s-cl.56(2)).

Name of office

7.5.5.          The Prime Minister will be able to allocate a name to, or change the name of, an office of Secretary (Bill s-cl.56(3)).

 

7.5.6.          Subject to any names allocated by the Prime Minister, the name of an office of Secretary will be ‘Secretary of [the name of the Department]’ (Bill s-cl.56(4)).  The use of the preposition ‘of’ will be consistent with the practice in relation to other Agency Heads, but will require transitional provisions where current legislation uses the preposition ‘to’ in relation to Secretaries (see CTA Bill cl.11 and Schedule 1).

Clause 57 - Responsibility for managing Department

7.6.             The Secretary of a Department will, under the Minister who administers that Department (‘described as the Agency Minister’), be responsible for managing that Department (Bill cl.57).

 

7.7.             This  provision will amend the current statement of responsibilities (in 1922 PSA s-sec.25(2)) to reflect the nature of the new employment framework

•                 the responsibility for ‘its general working, and for all the business thereof’ in 1922 PSA will be expressed as a responsibility ‘for managing the Department’;

•                 the requirement to advise the Minister ‘in all matters relating to the Department’ is omitted, having regard to the general responsibilities of Secretaries.

‘Under the Minister’

7.7.1.          The Bill still uses the concept ‘under the Minister’ in relation to the responsibilities of the Secretary.  This accords with the terminology inserted by para 14(1)(a) of the Public Service Reform Act 1984 and reflects the constitutional position.

 

7.7.2.          However, there will now be an explicit limitation on Ministerial directions in relation to ordinary individual APS staffing decisions (see Bill cl.19).

Clause 58 - Appointment etc. of Secretary

Appointment

7.8.1.          The Prime Minister will be able to appoint a person to be the Secretary of a Department for a period of up to five years (Bill s-cl.58(1) - based on 1922 PSA s-secs. 36(1) and 37(1) except that the power to appoint in 1922 PSA s-sec.36(1) has been changed from the Governor-General to the Prime Minister in Bill s-cl.58(1)).

Reports

7.8.2.          Before making such an appointment the Prime Minister must have received a report about the vacancy from

•                 the Public Service Commissioner in the case of the Secretary of the Department of the Prime Minister and Cabinet (Bill s-cl.58(2) - based on 1922 PSA para 36(3)(a) - similar requirement in Bill s-cl.59(2) in relation to termination); or

•                 the Secretary of the Department of the Prime Minister and Cabinet in the case of other Secretaries (Bill s-cl.58(3) - based on 1922 PSA para 36(3)(b) - similar requirement in Bill s-cl.59(3) in relation to terminations).

 

7.8.3.          The person preparing the report will be required to consult the person who is expected to be the Agency Minister when the appointment is made (Bill s-cl.58(4) - based on substance of 1922 PSA s-sec.36(4)).

Multiple appointments

7.8.4.          The same person will be able to hold more than one office of Secretary (Bill s-cl.58(5) - cf 1922 PSA s.40 dealing with dual appointment of Secretaries).

 

7.8.5.          The Prime Minister will be able to resolve any remuneration issues arising from the multiple appointments (see Bill cl.61).

Irregularities

7.8.6.          Appointments will not be affected by irregularities (Bill s-cl.58(6) - based on 1922 PSA s-sec.36(5)).

Clause 59  - Termination of appointment

Termination

7.9.1.          The Prime Minister will be able to terminate the appointment of any Secretary at any time (Bill s-cl.59(1) - based on 1922 PSA s-para 37(5)(b)(iii) - except that this power has been transferred to the Prime Minister from the Governor-General). 

 

7.9.2.          This power is in addition to the automatic termination on the abolition of the Department (see Bill s-cl.56(2)).

Reports

7.9.3.          Before terminating the appointment of a Secretary, the Prime Minister will be required to obtain a report about the proposed termination from

•                 the Public Service Commissioner in the case of the Secretary of the Department of the Prime Minister and Cabinet (Bill s-cl.59(2) - based on 1922 PSA para 37(12)(a));

•                 the Secretary of the Department of the Prime Minister and Cabinet in relation to any other Secretary (Bill s-cl.59(3) - based on 1922 PSA para 37(12)(b)).

Application of WRA

7.9.4.          The termination of employment provisions of the WRA (Division 3 of Part VIA) will not apply to the termination of appointment of a Secretary (Bill s-cl.59(4).  A similar approach will be taken in relation to Heads of Executive Agencies and SES employees (see Bill cls.67 and 38).

Clause 60 - Engagement of former Secretaries

7.10.           At any time after an appointment is terminated (see Bill cls.56 and 59) the Prime Minister may, on behalf of the Commonwealth, engage the former Secretary to perform specified duties (otherwise than as an APS employee), on terms and conditions determined by the Prime Minister (Bill cl.60 - to same effect as 1922 PSA s-secs.37(6) - (6B)).

Clause 61 - Remuneration and other conditions

7.11.           The remuneration and other conditions of a Secretary will be as determined by the Prime Minister (Bill cl.61).  The Prime Minister will be able to vary these conditions (see AIA s-sec.33(3)).

Consultation with Remuneration Tribunal

7.12.           As a matter of practice, the Prime Minister would normally only make such a determination after consultation with the Remuneration Tribunal.

Discretionary allowances and payments

7.12.1.        Under arrangements approved by the Prime Minister, the Public Service Commissioner will be responsible for advising on the appropriate levels of certain discretionary allowances or entitlements for Secretaries and other Agency Heads.

 

7.12.2.        This will apply to the following allowances and payments which accrue when an Agency Head is appointed on a fixed-term basis to a position which is located away from the person’s usual place of residence

•                 Settling In Allowance

•                 Temporary Accommodation Allowance.

Retiring age

7.12.3.        The Bill will not specify either a minimum or a maximum (compulsory) retiring age for Secretaries (cf 1922 PSA ss.76B and 76C).  However, the superannuation legislation will enable a minimum retiring age to be specified in the instrument of appointment.

Clause 62 - Acting Secretary

7.13.           The Prime Minister will be able to appoint someone to act during a vacancy in the office of Secretary or an absence from duty or an inability to perform those duties (Bill s-cl.62(1) - based on 1922 PSA s.39 - this power to appoint is wider than AIA s-sec.33(4) which does not extend to absences from duty or inability to perform duties).

 



7.14.           As an acting appointment to which the AIA (s.33A) applies

•                 the appointment will be able to be expressed to have effect only in the circumstances specified in the instrument of appointment;

•                 the Prime Minister will be able to determine remuneration and other conditions and to terminate the appointment;

•                 where an office is vacant, any appointment will be required to be for less than 12 months (to same effect as 1922 PSA s-secs.39(2) and (5));

•                 the appointment will cease to have effect if the appointee resigns;

•                 the appointee will have all the powers, functions and duties of the Secretary (to same effect as 1922 PSA s-sec.39(6) except that 1922 PSA does not mention duties).

 

7.15.           Acting appointments will not be affected by irregularities (Bill s-cl.62(2) - based on 1922 PSA s-sec.39(7)). 

 

7.16.           There is a similar provision in relation to acting appointments of Public Service Commissioner (see Bill cl.48), Merit Protection Commissioner (see Bill cl.55) or of the Head of an Executive Agency (see Bill cl.69).

Clause 63 - Annual report

7.17.           After the end of each financial year, the Secretary of a Department will be required to give to the Minister who administers that Department, for presentation to the Parliament, a report on the Department's activities during that year (Bill cl.63 - based on 1922 PSA s-sec.25(6)).  The same requirements will also be imposed on the Public Service Commissioner (see Bill s-cl.44(1)) and on the Heads of Executive Agencies (see Bill cl.70).

 

7.18.           The flexibility provided by this Bill in relation to departmental annual reports is aimed at assisting Government achieve a better alignment of key accountability and reporting mechanisms in respect of APS agencies.  These include not only annual reports but also a range of other instruments outside the scope of this Bill such as:

 

•                 portfolio budget statements;

 

•                 implementation of accrual budgeting; and

 

•                 reporting of financial performance.

 

7.19.           Annual reports will be prepared in accordance with the general requirements as in force from time to time.  The Minister for Finance Guidelines for Financial Statements require disclosure in Annual Reports, in relation to the $10,000 band of remuneration that commences at $100,000 and each successive $10,000 band, of the number of executive employees whose total remuneration for the reporting period falls within that band.  This takes into account JCPA Recommendation 17.

 

7.20.           The deadlines for the preparation etc. of the annual report will be those that apply generally in relation to periodic reports (see AIA s.34C).



Part 8 - Management Advisory Committee

8.1.             The current APS Management Advisory Board (MAB) will be replaced by a Management Advisory Committee with a composition and role that is more appropriate to the new legislative framework (Bill Part 8).

 

8.2.             The MAB was established by the Administrative Arrangements Act 1987 , as part of the successor arrangements to the former Public Service Board (s.22 of 1922 PSA refers).  Its functions are to advise the Government on significant issues relating to the management of the APS and to be a forum for considering major management activities with Service-wide effect.

Clause 64 - Management Advisory Committee

8.3.             There will be an APS Management Advisory Committee, with the function of advising the Government on matters relating to the management of the APS (Bill s-cl.64(1) - cf 1922 PSA s-secs.22(1) and (2)).

 

8.4.             The composition of the Management Advisory Committee (Bill s-cl.64(2)) will be as follows

•                 the Secretary of the Department of the Prime Minister and Cabinet as chair;

•                 all the other Secretaries of Departments of State;

•                 the Public Service Commissioner as Executive Officer; and

•                 such other persons as are nominated in writing by the Secretary of the Department of the Prime Minister and Cabinet.



Part 9 - Executive Agencies

Background

 

9.1.             New provisions will be included to enable the creation of Executive Agencies (Bill Part 9).  There are no equivalent provisions in the 1922 PSA.

 

9.2.             The purpose of the Executive Agency structure is to provide a degree of separation from departmental management where that is appropriate to the functions of the Agency, and something less than a statutory authority is warranted.  Direct access to a minister and a distinctness from wider departmental priorities will increase the opportunities for an Agency to further its goals.  The separation from departments will also provide greater flexibility in the appointment, tenure and remuneration arrangements for the head of the Agency, all of which would be determined by the minister.  Examples of bodies which could have been created as Executive Agencies if the mechanism had been available, are the Office of Asset Sales and the Office of Government Information Technology.

 

9.3              Executive Agencies will be non-statutory bodies headed by a person, possibly but not necessarily a public servant, appointed by, and directly accountable to, the minister responsible for the Agency.  Subject to appropriate pay-out conditions, the appointment of an Agency Head could be terminated at any time.  The Agency will be staffed by APS employees under the direction of the Agency Head.

 

9.4              The JCPA Report recommended (recommendation 16) that the provisions relating to the appointment and termination of appointment of the Head of an Executive Agency should include a requirement that the Agency Minister should be able to exercise the relevant powers only after having received a report from the Secretary of the Department of Prime Minister and Cabinet.  The Government has agreed that appropriate accountability arrangements should apply in these circumstances and that this should require the Agency Minister to receive a report from the relevant Secretary before making or terminating the appointment of the Head of an Executive Agency.

Clause 65 - Establishment etc. of Executive Agencies

9.5.             The Governor-General will be able, by order published in the Commonwealth Gazette   (Bill s-cl.65(1)), to

•                 establish or abolish an Executive Agency;

•                 allocate a name for the Agency or its Head;

•                 identify the responsible Minister; and

•                 specify its functions.

Staffing arrangements

9.5.1.          For the purposes of this Bill, the Executive Agency will consist of (Bill s-cl.65(2))

•                 the Agency Head; and

•                 the APS employees assisting the Agency Head.

Office of Agency Head

9.5.2.          An office of Agency Head will be established whenever an Executive Agency is established (Bill s-cl.65(3)). 

 

9.5.3.          The name of the office will be ‘Head’ of the Agency unless a different name has been allocated by the Governor-General (Bill s-cl.65(3)).  This will enable the allocation of non-standard names.

 

9.5.4.          The office of Agency Head will be automatically abolished when the Executive Agency is abolished (Bill s-cl.65(4)).

Clause 66 - Responsibility for managing Agency

9.6.             The Head of an Executive Agency will, under the agency Minister, be responsible for managing the Agency (Bill cl.66 - same as Bill cl.57 in relation to Secretaries).

Clause 67 - Appointment etc. of Head

9.7.             The Agency Minister will be able to appoint a person to be the Head of the Agency for a period of not more than five years specified in the instrument of appointment (Bill s-cl.67(1)).

 

9.8.             Before making an appointment under s-cl.67(1), the Agency Minister must have received a report about the vacancy from a relevant Secretary (s-cl.67(2)).

 

9.9.             The Agency Minister will be able to terminate the appointment at any time (Bill s-cl.67(3)).

 

9.10.           Before terminating an appointment under s-cl.67(3), the Agency Minister must have received a report about the proposed termination from a relevant Secretary (Bill s-cl.67(4)).

 

9.11.           The termination of employment provisions of the WRA (Division 3 of Part VIA) will not apply to the termination of appointment of a Head of an Executive Agency (Bill s-cl.67(5)).  A similar approach will be taken in relation to Secretaries and SES employees (Bill cls.59 and 38).

 

9.12.           For the purposes of cl.67, ‘relevant Secretary’ will mean the Secretary of any Department that is administered by the same Minister who is the Agency Minister for the Executive Agency (Bill s-cl.67(6)).

Clause 68 - Remuneration and other conditions

9.13.           The remuneration and other conditions for an Agency Head will be as determined by the Agency Minister (Bill cl.68).

 

9.14.           The Agency Minister will be able to vary these conditions (see AIA s-sec.33(3)).

Consultation with Remuneration Tribunal

9.14.1.        As a matter of practice, the Agency Minister would normally only make such a determination after consultation with the Remuneration Tribunal.

Clause 69 - Acting Head

9.15.           The Agency Minister will be able to appoint someone to act during a vacancy in the office or absence from duty or inability to perform the duty (Bill s-cl.69(1)).

 

9.16.           As an acting appointment to which the AIA (s.33A) applies

•                 the appointment will be able to be expressed to have effect only in the circumstances specified in the instrument of appointment;

•                 the Agency Minister will be able to determine remuneration and other conditions and to terminate the appointment;

•                 where an office is vacant, any appointment will be required to be for less than 12 months;

•                 the appointment will cease to have effect if the appointee resigns;

•                 the appointee will have all the functions, powers and duties of the Head of the Executive Agency.

Irregularities

9.16.1.        Acting appointments will not be affected by irregularities (Bill s-cl.69(2)).

 

9.16.2.        There is a similar provision in relation to acting appointments of Public Service Commissioner (see Bill cl.48), Merit Protection Commissioner (see Bill cl.55) or of Secretary (see Bill cl.62).

Clause 70 - Annual report

9.17.           After the end of each financial year, the Head of an Executive Agency will be required to give a report to the Agency Minister, for presentation to the Parliament, on the Agency’s activities during the year (Bill cl.70).

 

9.18.           The flexibility provided by this Bill in relation to annual reports is aimed at assisting Government achieve a better alignment of key accountability and reporting mechanisms in respect of APS agencies.  These include not only annual reports but also a range of other instruments outside the scope of this Bill such as:

 

•                 portfolio budget statements;

 

•                 implementation of accrual budgeting; and

 

•                 reporting of financial performance.

 

9.19.           Annual reports will be prepared in accordance with the general requirements as in force from time to time.  The Minister for Finance Guidelines for Financial Statements require disclosure in Annual Reports, in relation to the $10,000 band of remuneration that commences at $100,000 and each successive $10,000 band, of the number of executive employees whose total remuneration for the reporting period falls within that band.  This takes into account JCPA Recommendation 17.

 

9.20.           The same reporting requirements will also be imposed on Secretaries (see Bill cl.63) and on the Public Service Commissioner (see Bill s-cl.44(1)).  The annual reporting requirements for the other Heads of Statutory Agencies are dealt with in their constituting legislation.

Deadlines

9.20.1.        The deadlines for the preparation etc. of the annual report will be those that apply generally in relation to periodic reports (AIA s.34C).



Part 10 - Administrative arrangements and reorganisations

10.1.           Administrative arrangements and reorganisations are addressed in three separate areas of the 1922 PSA

•                 MoG changes, involving abolition of a Department or other changed administrative arrangements (s.51, covering the movement of officers between the affected APS agencies, and its companion provision (s.82BA) dealing with the relocation of affected temporary employees);

•                 arrangements for officers of the APS and State or Territory officers to be employed under reciprocal services arrangements (Division 9, ss.77-81); and

•                 transfers of functions and associated staff between the APS and other areas of Commonwealth employment (Division 9A, ss.81A-81C).

Clause 71 - Arrangements with States and Territories

10.2.           The Prime Minister will be able to arrange with an appropriate authority of a State or Territory (Bill s-cl.71(1) - based generally on 1922 PSA s-sec.77-81)

(a)              for an APS employee to perform services as an APS employee for a State or Territory or for an authority of a State or Territory; or

(b)              for a State or Territory employee to perform services in an Agency as a State employee.

 

10.3.           If the arrangement provides for the Commonwealth to re-imburse the State or Territory, there will need to be some available appropriation for the payment to the State or Territory.

Clause 72 - Machinery of government (MoG) changes

10.4.           Where the Public Service Commissioner considers that it is necessary or desirable to do so to give effect to an administrative re-arrangement, he or she will be able to do a number of things specified in the Bill (Bill s-cl.72(1)).

MoG changes: movement between APS Agencies

10.4.1.        The Commissioner will be able, by a written determination, to move APS employees to another APS Agency without anyone’s consent (Bill para 72(1)(a) - based on 1922 PSA ss.29, 51AA and 82BA).

MoG changes: movement out to non-APS (Commonwealth) authorities

10.4.2.        The Commissioner will be able to determine in writing that APS employees cease to be APS employees and become employees of a specified Commonwealth (non-APS) authority (Bill para 72(1)(b) - based on 1922 PSA s.81C).

MoG changes: movement into APS Agencies from other Commonwealth employment

10.4.3.        The Commissioner will be able to determine in writing that non-APS (Commonwealth) employees cease to be employed as non-APS employees and become APS employees in a specified APS Agency (Bill para 72(1)(c) - based on 1922 PSA s-secs.81B(2) and (3)).

MoG changes: movement into APS Agency

10.4.4.        The Public Service Commissioner will be able, on behalf of the Commonwealth, to engage any person as an APS employee in a specified (APS) Agency (Bill para 72(1)(d) - based on 1922 PSA s-secs.81B(1) and (3)).

 

10.4.5.        This engagement power will enable the movement of people from outside the Commonwealth into an APS Agency.

Effect of determination

10.4.6.        Any determination by the Commissioner to give effect to these MoG changes will have effect according to its terms (Bill s-cl.72(2)).

 

10.4.7.        Remuneration and other conditions issues will be resolved according to the ordinary workplace relations framework.

WRA termination etc. rules

10.4.8.        The provisions of the WRA in relation to the termination of employment (Division 3 of Part VIA) will not apply to determinations by the Public Service Commissioner to give effect to MoG changes (Bill s-cl.72(3)).

Interpretation

10.4.9.        The Bill contains some special definitions for the purposes of these machinery of government changes (Bill s-cl.72(4))

•                 ‘administrative re-arrangement’ means any increase, reduction or re-organisation in Commonwealth functions, including one that results from an order by the Governor-General;

•                 ‘Commonwealth authority’ will include a company in which the Commonwealth has a ‘controlling interest’ (see comments below);

•                 ‘non-APS employee’ will mean a person who is employed by the Commonwealth or by an authority of the Commonwealth but will not include an APS employee.

Controlling interest

10.4.10.      In the absence of a special statutory definition, a person is regarded as having a ‘controlling interest’ in a company if that person is able to carry an ordinary resolution at a general meeting of the company (Mendes v. Commissioner of Probate Duties (Victoria) (1967) 122 CLR 152 per Kitto J pp.162-5; per Windeyer J p.169).  The Commonwealth will also be regarded as having a controlling interest in a company in which a controlling interest is held by

•                 a Commonwealth authority, where the Commonwealth’s powers in relation to the statutory authority enable it to control the company; or

•                 a second company in which the Commonwealth has a controlling interest.

 

10.4.11.      The term ‘controlling interest’ is used without definition in various other Commonwealth legislation defining a ‘Commonwealth authority’

•                 1922 PSA s-sec.7(1): para (c);

•                 WRA: s.4: s-para (b)(ii);

•                 Safety, Rehabilitation and Compensation Act 1988 : para (c)(ii); and

•                 Commonwealth Authorities and Companies Act 1997 : s.34 (where used in definition of ‘Commonwealth company’).

Transfer to State or Territory

10.4.12.      This Bill does not deal with the transfer of APS employees to a State or Territory.  This would require complementary State or Territory legislation.  (Note: 1922 PSA s.87J is not a compulsory transfer provision).

 

 



Part 11 - Miscellaneous

Clause 73 - Payments of money in special circumstances

Present law

11.1.1.        The Public Service Commissioner is currently able to authorise payments of money to APS staff, other than for salary or allowances (1922 PSA s-sec.90(3)).  The Commissioner’s power has also been delegated to the Secretary of DEWRSB.

 

11.1.2.        This obviates the need to use the general ‘act of grace’ payments arrangements in cases that relate to ordinary employment matters.

 

11.1.3.        The power has been used rarely but is useful to enable the payment of such things as

•                 the reimbursement of legal costs incurred by APS employees in the course of, or in connection with, their employment;

•                 payments in lieu of entitlements lost as a result of incorrect advice;

•                 the settlement of unfair termination claims; or

•                 the payment of compensation following an MPRA recommendation.

Proposed future arrangements

11.1.4.        It is considered useful to continue similar arrangements for the future but to ensure that they are consistent with the new arrangements for ‘act of grace’ payments set out in the FMA Act (see FMA Act Division 4 of Part 4).

Payments in special circumstances

11.1.5.        The Minister who is responsible for administering this Bill (described as the ‘Public Service Minister’) will be able to authorise the making of payments in special circumstances that arise out of, or relate to, APS employment (Bill s-cl.73(1) - cf FMA Act s.33).

 

11.1.6.        The Minister will be able to authorise payments of specific amounts or periodical payments (Bill s-cl.73(2) - same range of payments as allowed in FMA Act s-sec.33(1)).

 

11.1.7.        The payments that will be able to be authorised are those that would not otherwise be authorised by law or required to meet a legal liability (Bill s-cl.73(3) - same as in FMA Act s-sec.33(1)).

Large amounts

11.1.8.        An authorisation will not be able to be made under this Bill if it would involve, or be likely to involve, a total amount of more than $100,000 (Bill s-cl.73(4)). 

 

11.1.9.        This will ensure that where an amount might exceed $100,000 it will have to be referred for decision by the Minister for Finance and Administration under the general arrangements for act of grace payments by the Commonwealth (see Guide to FMA Bill pp.18-20).  Arrangements for such amounts include—before the Minister for Finance and Administration can make a decision—the furnishing of a report by a committee of senior officials: described in the FMA Act as an ‘Advisory Committee’ (FMA Act s.59 - reflecting existing law in s.34A of Audit Act 1901 ).

Conditions

11.1.10.      Conditions will be able to be attached to any payment authorised by the Public Service Minister.  If the condition is breached the payment will be able to be recovered by the Commonwealth in a court of competent jurisdiction (Bill s-cl.73(5) - same as FMA Act s-sec.33(3)).

Appropriations

11.1.11.      Payments made under these provisions will be required to be made out of money appropriated by the Parliament for the purposes of these provisions (Bill s-cl.73(6) - same as FMA Act s-sec.33(4)).

Clause 74 - Locally engaged  employees

Present position

11.2.1.        Currently, overseas employees are employed under the 1922 PSA, although they are not officers within the meaning of the Act.  While described in 1922 PSA as overseas employees (the term used in s.82AF), they are generally referred to as ‘locally engaged staff’ or ‘LES’ to reflect the fact that they are normally engaged outside Australia at an Australian diplomatic or consular mission.

 

11.2.2.        The employment of staff by overseas missions involves legal issues of diplomatic (and consular) immunity and foreign state (sovereign) immunity, as well as policy issues, including the impact of employment issues on Australia’s overseas image.  Apart from the personal staff of diplomatic agents (whose situation is governed by the Vienna Convention on Diplomatic Immunity 1961 , and particularly Article 33) the employment of LES chiefly involves consideration of issues of state immunity.

 

11.2.3.        Australia, along with certain other countries applies a restricted doctrine of state immunity.  This means that Australia recognises that it is subject to local jurisdictions overseas in respect of certain types of actions, including those involving employment issues, arising out of its official acts. It is on this basis that, for example, Australia may recognise local labour laws as applying and even incorporate such recognition into determinations.

 

11.2.4.        At present, there is no authority under the 1922 PSA to provide LES with terms and conditions at variance with the Act.  The increased devolution to LES of functions formerly performed by Australia-based staff (‘localisation’) has created a need to recruit staff with skills appropriate to their enhanced roles and responsibilities within posts. Australia’s overseas missions and posts need the flexibility to be able to attract, and retain, staff who can respond to a rapidly changing agenda.  This flexibility will be best achieved by a legislative framework which enables the employment of LES to be excluded from the general application of the new Bill.

Engagement

11.2.5.        An Agency Head will be able, on behalf of the Commonwealth, to engage persons outside Australia and its Territories to perform duties overseas as employees (Bill s-cls.74(1)) - cf 1922 PSA s-sec.82AF(1)).

 

11.2.6.        Such persons will be known as ‘locally engaged employees’ (see Bill cl.7) and will not be APS employees.  This means they will not be subject to the provisions of the Bill that only apply in their terms to APS employees, such as the Code of Conduct, or MoG changes.  It is proposed that all these matters will be dealt with in the engagement arrangements.

Rights, duties and powers of employer

11.2.7.        The Agency Head will have, on behalf of the Commonwealth, all the ‘rights, duties and powers’ of an employer in respect of the locally engaged employees in the Agency (Bill s-cl.74(2) - same as Bill s-cl.20(1) in relation to APS employees - no equivalent in 1922 PSA).

 

11.2.8.        An Agency Head will not be subject to Ministerial directions in individual cases (Bill s-cl.74(3) - same as Bill cl.19 in relation to APS employees - no equivalent in 1922 PSA).

 

11.2.9.        The provisions in relation to locally engaged employees will not limit by implication any other powers an Agency Head has to engage persons to work outside Australia and its Territories (Bill s-cl.74(4) - similar provision in 1922 PSA s-sec.82AF(3)).

Clause 75 - Attachment of salaries to satisfy judgement debts

11.3.           Commonwealth, State and Territory laws provide procedures whereby judgement creditors can, subject to safeguards, obtain a garnishee order requiring the employer to withhold part of an employee’s wage and pay it to the judgement creditor in satisfaction of a debt due.  Because of the nature of Commonwealth employment it has been necessary to set up a statutory garnishee scheme under 1922 PSA (s.64).

 

11.4.           The New PS Regs will provide a framework under which a judgement creditor can (as is the case under 1922 PSA) seek deductions from the salaries of APS employees, Secretaries or Heads of Executive Agencies in order to satisfy a judgement debt (Bill para 75(1)(a)).

 

11.5.           The New PS Regs will be able to prescribe an administration fee in relation to the costs of making these deductions (Bill para 75(1)(b) - similar provision in 1922 PSA s-sec.64(4)).  It is proposed that a fee of $35 be prescribed as is the case under the current legislation.

 

11.6.           Deductions will also be able to be sought by a judgement creditor in relation to interest on a judgement debt (Bill s-cl.75(2)).

Clause 76 - Release of personal information

Information Privacy Principles

11.7.1.        The Information Privacy Principles (IPPs) contained in the Privacy Act 1988 provide, among other things, a legal framework for the collection, storage, access and correction, use or further disclosure of personal information relating to APS employees.  The Freedom of Information Act (‘FOI Act’) also provides a mechanism for access to, and correction of, personal information.  Personal information is defined widely in those Acts to mean

‘information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion;’.

 

11.7.2.        Recognising the relationship between the Commonwealth and the APS, it is important that personal information be permitted to be moved between APS Agencies and to other bodies performing people management functions for APS Agencies subject to the principles reflected in the FOI and Privacy Acts.

New PS Regs

11.7.3.        Accordingly, the New PS Regs will be able (Bill cl.76)

•                 to ensure that the Public Service Commissioner will have appropriate access to the personal information needed for the discharge of the Commissioner’s functions;

•                 to enable appropriate personal information to be moved to another Agency where an APS employee moves to that Agency;

•                 to ensure that the principles reflected in the FOI and Privacy Acts are observed in relation to that personal information; and

•                 to control the collection, storage, access and correction, use and disclosure of personal information by other bodies performing people management functions for APS agencies.

Clause 77 - Positions

Introduction

11.8.1.        The identification of a job of work or a set of duties by reference to a ‘position’ is considered to be among the ordinary ‘rights duties and powers of an employer’.  The WRA assumes in some places that employees have a ‘position’ (see e.g. WRA s-sec.170 CH(3))

 

11.8.2.        When certainty is needed for matters such as delegations, Agency Heads should be able to identify a statutory source for the creation of a formal position to which legal rights, duties and powers might be attached.  A delegation would then also be able to be made to anyone for the time being ‘holding, occupying or performing the duties of’ such a position (see AIA s.34AA).

Creation of formal positions

11.8.3.        Agency Heads will have the power to create formal positions if they wish to do so (Bill s-cl.77(1)).

 

11.8.4.        These positions will also be able to be abolished (see AIA s-sec.33(3)).

Nomination to positions

11.8.5.        An Agency Head will be able to nominate some of the APS employees in the Agency to occupy the positions that have been created (Bill s-cl.77(2)).

Interpretation

11.8.6.        However, a reference in any other Act to APS employees by reference to position will still apply both to (Bill s-cl.77(3))

•                 APS employees nominated to formal positions under this provision; and

•                 APS employees who are not at the time nominated to any formal position, whether they are in an informal administrative position or not.

 

11.8.7.        This interpretation provision will ensure an appropriate coverage of references in other legislation to APS employees who are in ‘offices’ or ‘positions’ where that legislation has been drafted on the basis of the concept of office.

Clause 78 - Delegation of powers or functions

11.9.           Powers or functions that are conferred on persons under this Bill will be able to be delegated within the framework provided by the Bill (Bill cl.78).

Prime Minister

11.9.1.        The Prime Minister will be able to delegate any of the Prime Minister’s powers and functions under this Bill, except the power of delegation itself, to another Minister (Bill s-cl.78(1)).

 

11.9.2.        This provision is similar in effect to 1922 PSA (s.88A) which enables the Prime Minister’s powers under 1922 PSA to be exercised by another Minister authorised by the Prime Minister.

 

11.9.3.        The Prime Minister has the following powers and functions under this Bill

•                 the delegation power referred to above (not delegable);

•                 issuing general directions to Agency Heads (see Bill cl.21);

•                 allocating a name to an office of Secretary (see Bill s-cl.56(3));

•                 the appointment and termination of Secretaries (see Bill cls.58 and 59);

•                 the engagement of former Secretaries (see Bill cl.60);

•                 determining the remuneration and other conditions of appointment of a Secretary (see Bill cl.61);

•                 the appointment and termination of acting Secretaries (see Bill cl.62 and AIA s.33A);

•                 arranging with States and Territories for use of each other’s staff (see Bill cl.71).

Public Service Minister

11.9.4.        The Minister who will be responsible for the administration of this Bill (described as the ‘Public Service Minister’) will be able to delegate most of the Minister's powers and functions under this Bill (Bill s-cl.78(2)).  The power of delegation will not extend to

•                 this power of delegation; or

•                 the Minister’s power to determine the remuneration and other terms and conditions of employment applying to APS employees (see Bill s-cl.24(3)).

 

11.9.5.        The Public Service Minister has the following powers and functions under this Bill in addition to the two non-delegable powers referred to above

•                 to make Classification Rules (see Bill cl.23);

•                 to refer a matter to the Public Service Commissioner for a special inquiry (see Bill para 43(1)(c));

•                 to appoint a person to act as Merit Protection Commissioner (see Bill s-cl.55(1)); and

•                 to authorise payments in special circumstances (see Bill cl.73).

 

11.9.6.        The delegation will be able to be made to

(a)              another Minister; or

(b)              a Parliamentary Secretary appointed under the Parliamentary Secretaries Act 1980 .

 

11.9.7.        In addition, the Public Service Minister will also be able to delegate to any ‘senior official’ the Public Service Minister’s powers (Bill s-cl.78(3))

•                 to make Classification Rules (see Bill cl.23); or

•                 to authorise the making of payments in special circumstances (see Bill cl.73).

 

11.9.8.       The term ‘senior official’ is defined (Bill s-cl.78(10)) as:

•                 any person who holds any office or appointment under an Act; or

•                 an SES employee or acting SES employee.

Agency Minister

11.9.9.        An Agency Minister will be able to delegate any of the Agency Minister's powers or functions under this Bill, other than the power of delegation itself, (Bill s-cl.78(4)) to any ‘senior official’ who is defined (Bill s-cl.78(10)) as:

•                 any person who holds any office or appointment under an Act; or

•                 an SES employee or acting SES employee.

 

11.9.10.      An Agency Minister has the following general powers or functions under this Bill

•                 to issue directions to ensure that decisions on HoM appointments are implemented (see Bill cl.39);

•                 to appoint, and to terminate the appointment of, a person as the Head of or as the acting Head of an Executive Agency that the Minister administers and to determine their remuneration and other conditions of appointment (see Bill cls.67-69);

•                 if responsible for the administration of this Bill: determine the remuneration and other conditions of appointment for the Public Service Commissioner and exercise the same powers in relation to an acting Commissioner as the Minister has in relation to acting Heads of Executive Agencies (see Bill cls.46 and 48);

•                 to present to Parliament any Agency annual report received in respect of an agency the Minister administers (see, e.g., Bill cls.44, 63 and 70).

Public Service Commissioner

11.9.11.      The Public Service Commissioner will be able to delegate any of the Commissioner’s powers or functions under this Bill, other than the power of delegation itself, (Bill s-cl.78(5)) to any ‘senior official’ defined (Bill s-cl.78(10)) as

•                 any person who holds any office or appointment under an Act; or

•                 an SES employee or an acting SES employee.

 

11.9.12.      The potential recipients of the delegation are narrower than under 1922 PSA which enables the Commissioner’s powers or functions under 1922 PSA or another law to be given to any person other than a consultant under MOPS Act s.4 (PSA s-sec.18(1)).

 

11.9.13.      The Public Service Commissioner’s major powers and functions are listed elsewhere in this Ex Memo when dealing with the Commissioner’s statutory functions (see Bill cl.41).

 

11.9.14.      As a matter of practice a distinction will be drawn, as is done with delegations under 1922 PSA, between the two sets of powers and functions held by the Public Service Commissioner

•                 powers and functions held as Public Service Commissioner will be delegated under the provision relating to delegations by the Public Service  Commissioner (see Bill s-cl.78(5)); and

•                 powers and functions held as an Agency Head will be delegated under the provision relating to delegations by an Agency head (see Bill s-cl.78(6) - dealt with immediately below).

Agency Head

11.9.15.      An Agency Head will be able to delegate any of the Agency Head’s powers or functions (except the power of delegation itself) to another person (Bill s-cl.78(6)).

 

11.9.16.      This will ensure that appropriate delegations will continue to be able to be given to persons such as

•                 military officers supervising civilians in the Department of Defence;

•                 officials from overseas  public services working on exchange in the APS;

•                 State or Territory officials working in the APS on secondment.

 

11.9.17.      The main changes from 1922 PSA in relation to Agency Head delegations are as follows

•                 The power of delegation will only relate to powers or functions under the Bill and not (as was the case with 1922 PSA s.26) to powers or functions under

-        the Merit Protection (Australian Government Employees) Act 1984 (‘MP(AGE)A’);

-        1922 PS Regs or Regulations under the MP(AGE)A;

-        determinations of terms and conditions of employment under 1922 PSA (s-sec.9(7A) and s.82D);

-        an industrial award.

•                 The recipient of the delegation can now be anyone

-        the 1922 PSA prohibition on consultants employed under s.4 of the MOPS Act will be removed;

-        the 1922 PSA requirement for approval by the Public Service Commissioner for delegations that are not to APS employees or statutory office holders (see 1922 PSA s-sec.26(4)) will be removed.

 

11.9.18.      The major powers and functions that will be explicitly conferred by this Bill on all Agency Heads are summarised at Attachment E.  Individual Agency Heads (such as Secretaries, Heads of Executive Agencies or the Public Service Commissioner) also receive additional powers and functions under this Bill, e.g. the preparation of Annual Reports (see Bill cls.44 , 63 and 70).

Delegations to a ‘second delegate’

11.9.19.      A recipient of a delegation from the Public Service Commissioner or from an Agency Head (called ‘the first delegate’) may delegate any of the powers or functions so delegated to another person (called the ‘second delegate’ - Bill s-cl.78(7)).  This provision will ensure that the AIA will apply to further delegations (this is not the case under 1922 PSA which uses instead the concept of ‘sub-delegation’ - see 1922 PSA s-sec.18(3)).

 

11.9.20.      This power to delegate to a ‘second delegate’ will not be able to be delegated further (see AIA para 34AB(b)).

 

11.9.21.      Where a first delegate is subject to directions in relation to the matters delegated, the first delegate will be required to give corresponding directions to the second delegate (Bill s-cl.78(7) - second sentence).

 

11.9.22       A power or function that is exercised or performed by a ‘second delegate’ is taken to have been exercised or performed by the person (‘the first delegate’) who originally delegated the corresponding power or function under Bill s-cl.78(5) or (6) (Bill s-cl 78(8)).

General rules about delegations

11.9.23.      A person exercising powers or functions under delegation under this Bill will be required to comply with any directions of the person who delegated the power (Bill s-cl.78(9)) - based on 1922 PSA s-para.18(8)(b)(i) and cf s-sec.26(3A)).

 

11.9.24.      The general AIA rules about delegations will apply to delegations under this Bill

•                 The power of delegation will not be limited to a specified person, but will be construed as applying to ‘any person from time to time holding, occupying or performing the duties of, a specified office or position’ (see AIA s.34AA).

•                 The delegation will be able to be either general or as otherwise provided (see AIA para 34AB(a) - to same effect as 1922 PSA paras 18(5)(a) or 26(3)(a) which allows a delegation to be ‘absolute’ or ‘conditional’).

•                 When exercised or performed by the delegate the power or function will be deemed to have been exercised or performed by the delegator (see AIA para 34AB(c) - to same effect as 1922 PSA s-sec.18(4) or s-sec.26(2)).

•                 The delegation will not prevent the exercise or performance of the power or function by the delegator (see AIA para 34AB(d) - to same effect as 1922 PSA paras 18(6)(b) or 26(3)(b)).

•                 The delegation will be able to be repealed, rescinded, revoked, amended or varied (see AIA s-sec.33(3) - to same effect as 1922 PSA paras 18(6)(d) or 26(3)(d)).

•                 Powers or functions dependent on the ‘opinion, belief or state of mind’ of the delegator will be able to be exercised upon the ‘opinion, belief or state of mind’ of the delegate (see AIA s.34A - to same effect as 1922 PSA s-sec.18(7)).

 

11.9.25.      In addition to these specific AIA rules

•                 A delegator would not be able to avoid restrictions on a power or function by delegating it to someone else.

•                 An APS employee or Agency Head would, as a delegate, be bound by the Code of Conduct.  For example, they would not be able to make decisions affecting themselves because of the requirement to take reasonable steps to avoid real or apparent conflicts of interest (see Bill s-cl.13(7)).

•                 A delegation will not cease to operate where there is a change in the person holding the office to which the power of delegation attaches (Kelly v. Watson (1985) 10 FCR 305).

Clause 79 - Regulations

11.10.         The Governor-General will have a general regulation-making power in relation to matters required or permitted to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Bill (Bill s-cl.79(1)).

 

11.11.         The New PS Regs will be able to prescribe penalties for offences against the New PS Regs by way of fines of up to 10 penalty units (Bill s-cl.79(2)).  A penalty unit equals $110 (s.4AA of Crimes Act 1914 ).

 

11.12.         In addition to the general regulation-making power, there will be specific powers to make regulations in relation to

•                 any additional requirements to be included in the Code of Conduct (see Bill s-cl.13(13));

•                 the sanctions to be imposed for a breach of the Code of Conduct (see Bill s-cl.15(2));

•                 the rights, duties and powers that an Agency Head has in respect of APS employees in the Agency (see Bill s-cl.20(2) - no regulation is proposed at this stage).

•                 the minimum period of notice that is to apply for voluntary moves between agencies (see Bill s-cl.26(2));

•                 the suspension of APS employees from duty with or without pay (see Bill cl.28);

•                 different minimum retiring ages (see Bill s-cl.30(2) - no regulation is proposed at this stage);

•                 the circumstances in which a failed election candidate can return to APS employment (see Bill cl.32);

•                 the framework for the review of actions (see Bill cl.33);

•                 the functions of the Commissioner (see Bill para 41(1)(l);

•                 deductions from salaries of APS employees, Secretaries or the Heads of Executive Agencies to satisfy judgement debts (see Bill s-cl.75(1));

•                 the circumstances in which personal information can be released (to the Public Service Commissioner and between Agencies) (see Bill cl.76).

 

10.13.         The New PS Regs will be subject to disallowance in the usual way (see AIA s.48).

 

10.14.         The New PS Regs will be able to be made before the commencement of the Bill (see AIA s.4).

 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachments

 





 

Improved Accountability

Secretaries will be more accountable for the exercise of their powers in that they will:

 

•     be appointed and terminated by the Prime Minister;

 

•     be accountable to their Ministers for the management of their Departments;

 

•     be required to report to Parliament on Departmental outcomes;

 

•     be obliged to uphold the APS Values and Code of Conduct;

 

•     be bound by the Public Service Commissioner’s Directions in such matters as merit, employment equity and grievances

 

-    as well as by the provisions of the Workplace Relations Act;

 

•     provide staff with rights of review of employment decisions;

 

•     have to establish mechanisms to handle disclosures in the public interest (whistleblowing); and

 

•     have their employment practices monitored for the Commissioner’s Annual Report on the State of the Service

 

-   with the Commissioner having powers of investigation.

 



 

Devolved Responsibility

Secretaries will have enhanced power to:

 

 

 

•     engage employees on behalf of the Commonwealth on either an ongoing or temporary basis;

 

•     negotiate pay and conditions at the agency level;

 

•     adapt job classification structures to the needs of the agency;

 

•     decide the conditions for engagement, advancement, promotion and transfer of employees;

 

•     set qualification requirements;

 

•     determine appropriate periods of probation;

 

•     establish training arrangements;

 

•     decide on what terms an employee may engage in other employment;

 

•     recognise and reward high performing employees;

 

•     terminate, assign to other duties or reduce the salary of unsatisfactory or underperforming employees;

 

•     adopt misconduct procedures;

 

•     establish internal grievance mechanisms;

 

•     retire an excess employee; and

 

•     select, engage, transfer or retire members of the SES.

 



 

 

*    From ADMF Paper, p.5.  In the ADMF Paper (p.6) references to Secretary’s employer powers include agency heads with the powers of a Secretary.



ATTACHMENT B

Public Service Act 1922 : Summary of Legislative History

The Commonwealth Public Service Act 1922 (‘1922 PSA’) was assented to on 18 October 1922.  It came into operation on 19 July 1923 as an Act to

‘consolidate and amend the law regulating the Public Service, and for other purposes.’

 

(The word ‘Commonwealth’ was deleted from the title of the Act by the Statute Law Revision Act 1950 ).

 

The 1922 PSA had its origins in the Commonwealth Public Service Act 1902 , which had been based largely on the public service legislation of the several colonies as existing prior to Federation.  The 1902 Act was amended on a number of occasions between 1903 and 1921, but became the subject of a fundamental review in 1918, with the establishment of the Royal Commission on Public Service Administration.  The Royal Commissioner (former Public Service Commissioner Mr D C McLachlan) was required to

‘inquire into and report upon the various Acts relating to the administration of the Public Service…’

 

In a related move, the Government also established the Royal Commission on Federal Economies which was required to

‘consider and report upon the public expenditure of the Commonwealth of Australia with a view to effecting economies.’

 

From the reports of the two Royal Commissions

'ample material was made available to the Government upon which to frame a policy for new legislation and future management of the Service’ [2] .

 

The 1902 Act had embodied the principles of competitive processes for entry to the APS and promotion on merit, and these were carried over into the new 1922 PSA.  Beyond this, the principal new features of the 1922 PSA were:

•                 establishment of a three-member Board of Commissioners (the Public Service Board), in lieu of the previous single Commissioner;

•                 imposition on the new Board of responsibility for devising means for effecting economies and promoting efficiency in departments;

•                 introduction of new position classification structure for the APS;

•                 transfer of powers for appointment to the APS from the Governor-General to the Board; and

•                 conferring of most disciplinary powers on department heads.

 

A range of other provisions was introduced, providing for an overall legislative structure and management framework.  Concurrently with the proclaimed commencement of the 1922 PSA on 19 July 1923, new Public Service Regulations came into force, dealing with the detailed administration of the Act’s provisions in areas such as payment of allowances, leave of absence and other conditions of service.  (These are now largely dealt with in awards).

 

The 1922 PSA has been the subject of amending legislation on more than 100 occasions since its original enactment in 1922.  At times, and particularly since the end of the Second World War, this has resulted in major amendments to key provisions of the Act, such as

•                 establishment (in 1945) of the Promotion Appeal Committee system and the management/union consultative mechanism of the Joint Council;

•                 changes (in 1960) to recruitment and appointment provisions;

•                 repeal (in 1966) of provisions requiring women to retire from permanent employment on marriage;

•                 insertion (in 1978) of a new disciplinary code;

•                 insertion (in 1978) of new officers’ mobility provisions;

•                 modification of the APS redeployment and retirement provisions by the Commonwealth Employees (Redeployment and Retirement) Act 1979 , including introduction of age 55 retirement;

•                 removal (in 1982) of seniority as a factor bearing on promotion and redefinition of efficiency to emphasise suitability for performance of duties;

•                 repeal (in 1982, with effect from 1 July 1984) of provisions which had retained a pre-1922 formal structuring of the APS into four Divisions (First, Second, Third and Fourth Divisions);

•                 establishment (in 1984) of the Senior Executive Service (SES);

•                 introduction (in 1984) of new provisions relating to equal employment opportunity, industrial democracy, permanent part-time employment and enhancement of the merit principle provisions;

•                 removal (in 1984) of the ‘British subject’ appointment prerequisite and introduction of an Australian citizenship requirement;

•                 changes (in 1984 and 1986) to redeployment and retirement provisions;

•                 introduction (in 1985) of new temporary employment provisions;

•                 limited streamlining (in 1986) of a wide range of the Act’s people management provisions including, in particular, changes to the appointment, promotion, discipline, and functions and staff transfer provisions; and

•                 abolition (in 1987) of the Public Service Board and establishment of the office of Public Service Commissioner under the Administrative Arrangements Act 1987 .

 

 



ATTACHMENT C

List of agencies currently staffed under the Public Service Act 1922

 

A.      Parliamentary Departments

         (Departments (including Parliamentary Departments) are covered by the definition in s.7 of, and by Schedule 2 to, 1922 PSA.  The offices of Secretary are covered by s. 25 of, and Schedule 3 to, 1922 PSA).

1.       Department of the Senate

          (Clerk of the Senate)

2.       Department of the House of Representatives

          (Clerk of the House of Representatives)

3.       Department of the Parliamentary Library

          (Parliamentary Librarian)

4.       Department of the Parliamentary Reporting Staff

          (Principal Parliamentary Reporter)

5.       Joint House Department

          (Secretary to the Joint House Department)

 

 

B.     Departments of State

         (This terminology is not used in 1922 PSA which refers to Department of the Service.  The term ‘Department of State’ derives from s.64 of the Constitution and has been followed for the PS Bill.  As with Parliamentary Departments  references are

•                 in s.7 of, and Schedule 2 to, 1922 PSA in relation to Departments of State; and

•                 in s.25 of, and Schedule 3 to, 1922 PSA in relation to the Secretaries of those Departments.

1.       Agriculture, Fisheries and Forestry - Australia

2.       Attorney-General

3.       Communications, Information Technology and the Arts

4.       Defence

5.       Education, Training and Youth Affairs

6.       Employment, Workplace Relations and Small Business

7.       Environment and Heritage

8.       Finance and Administration

9.       Family and Community Services

10.     Foreign Affairs and Trade

11.          Health and Aged Care

12.          Immigration and Multicultural Affairs

13.     Industry, Science and Resources

14.     Prime Minister and Cabinet

15.     Transport and Regional Services

16.          Treasury

17.          Veterans’ Affairs (in the Defence Portfolio)

 

 

Note:      As a general rule (except for the Defence Portfolio) there is one Department of State in each Portfolio.

 

 

C.     APS Bodies with separate staffing provisions - all staff employed under Public Service Act 1922

         (Holder of ‘Secretary’ power and current empowering legislation shown in brackets)

1.       Aboriginal and Torres Strait Islander Commission

         (Chief Executive Officer - empowered by s.55 of the Aboriginal and Torres Strait Islander Commission Act 1989 )

2.       Aboriginal Hostels Limited

         (General Manager - empowered by s.200 of the Aboriginal and Torres Strait Islander Commission Act 1989 )

3.       Administrative Appeals Tribunal

         (the Registrar - empowered by s.24P of the Administrative Appeals Tribunal Act 1975 )

4.       Affirmative Action Agency

         (Director of Affirmative Action - empowered by s.29 of the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 )

5.       Australian Communications Authority

         (Chairperson - empowered by s.40 of the Australian Communications Authority Act 1997 )

6.       Australian Broadcasting Authority

         (Chairperson - empowered by s.165 of the Broadcasting Services Act 1992 )

7.       Australian Centre for International Agricultural Research

         (Director - empowered by s.30 of the Australian Centre for International Agricultural Research Act 1982)

8.       Australian Competition and Consumer Commission

         (Chairperson - empowered by s.27 of the Trade Practices Act 1974 )

9.       Australian Customs Service

         (Chief Executive Officer of Customs - empowered by s.15 of the Customs Administration Act 1985 )

10.     Australian Industrial Registry

         (Industrial Registrar - empowered by s.83 of the Workplace Relations Act 1996)

11.     Australian Institute of Aboriginal and Torres Strait Islander Studies

         (Principal - empowered by s.29 of the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 )

12.     Australian National Audit Office

         (the Auditor-General - empowered by s.25 of the Public Service Act 1922 )

13.     Australian National Maritime Museum

         (Director - empowered by s.40 of the Australian National Maritime Museum Act 1990 )

14.    Australian National Parks and Wildlife Services

         (Director - empowered by s.34 of the National Parks and Wildlife Conservation Act 1975 )

15.     Australian New Zealand Food Authority

         (Chairperson - empowered by s.53 of the Australia New Zealand Food Authority Act 1991 )

16.     Australian Taxation Office

         (the Commissioner of Taxation - empowered by s.25 of the Public Service Act 1922 )

17.     Australian Transaction Reports and Analysis Centre (AUSTRAC)

         (Director - empowered by s.40 of the Financial Transaction Reports Act 1988 )

18.     Australian War Memorial

         (Director - empowered by s.27 of the Australian War Memorial Act 1980 )

19.     Classification Board

         (Director of the Classification Board - empowered by s.54 of the Classification (Publications, Films and Computer Games) Act 1995 )

20.    Commonwealth Services Delivery Agency (Centrelink)

         (CEO - empowered by s.35 of Commonwealth Services Delivery Agency Act 1997 )

21.    Commonwealth Superannuation Administration (ComSuper - previously called Retirement Benefits Office)

         (Commissioner for Superannuation - empowered by s.26 of the Superannuation Act 1976 )

22.    Commonwealth and Defence Force Ombudsman

         (Ombudsman - empowered by s.31 of the Ombudsman Act 1976 )

23.    Defence Housing Authority

         (Managing Director - empowered by s.57 of the Defence Housing Authority Act 1987 )

24.    Employment Services Regulatory Agency (ESRA)

         (ESRA Chief Executive Officer - empowered by s.110 of the Employment Services Act 1994)

25.    Family Court of Australia

         (Chief Executive Officer - empowered by s.38Q of the Family Law Act 1975 )

26.    Family Law Council

         (Chairperson - empowered by s.114M of the Family Law Act 1975 )

27.    Federal Court of Australia

         (Registrar - empowered by s.18Q of the Federal Court of Australia Act 1976 )

28.    Great Barrier Reef Marine Park Authority

         (Chairperson - empowered by s.40 of the Great Barrier Reef Marine Park Act 1975 )

29.    Human Rights and Equal Opportunity Commission

         (Commission - empowered by s.43 of the Human Rights and Equal Opportunity Commission Act 1986 )

30.    Productivity Commission

(Chairperson - empowered by s.44 of the Productivity Commission Act 1998 )

31.    Insurance and Superannuation Commission

         (Commissioner for Insurance and Superannuation - empowered by s.13 of the Insurance and Superannuation Commissioner Act 1987 )

32.    National Capital Authority

         (Chief Executive - empowered by s.47 of the Australian Capital Territory (Planning and Land Management) Act 1988)

33.    National Competition Council

         (Council President - empowered by s.29M of the Trade Practices Act 1974 )

34.    National Crime Authority

         (Chairperson - empowered by s.47 of the National Crime Authority Act 1984 )

35.    National Library of Australia

         (Director-General - empowered by s.17 of the National Library Act 1960 )

36.    National Museum of Australia

         (Director - empowered by s.30 of the National Museum of Australia Act 1980 )

37.    National Native Title Tribunal

         (Registrar - empowered by s.131 of the Native Title Act 1993 )

38.    Office of Parliamentary Counsel (OPC)

         (First Parliamentary Counsel - empowered by s.16 of the Parliamentary Counsel Act 1970 )

39.    Office of the Inspector-General of Intelligence and Security

         (Inspector-General of Intelligence and Security - empowered by s.32 of the Inspector-General of Intelligence and Security Act 1986 )

40.    Office of National Assessments (ONA)

         (Director-General - empowered by s.17 of the Office of National Assessments Act 1977 )

41.    Office of Professional Services Review

         (Director of Professional Services Review - empowered by s.106ZM of the Health Insurance Act 1973 )

42.    Public Service and Merit Protection Commission (PSMPC)

         (the Public Service Commissioner - empowered by s.18B of the Public Service Act 1922 )

43.    Torres Strait Regional Authority (TSRA)

         (General Manager - empowered by s.144R of the Aboriginal and Torres Strait Islander Commission Act 1989 )

 

 

D.     APS Bodies with ‘dual staffing’ powers

         (Holder of power and current empowering legislation shown in brackets) - staff can be employed either under Public Service Act 1922 or under the body’s own empowering legislation.

1.      Australian Bureau of Statistics

         (Australian Statistician - empowered by  s.16 of the Australian Bureau of Statistics Act 1975 )

2.      Australian Electoral Commission

         (Electoral Commissioner - empowered by s.29 of the Commonwealth Electoral Act 1918 )

3.      Australian Institute of Family Studies

         (Director - empowered by s.114M of the Family Law Act 1975 )

4.      Australian Institute of Health and Welfare

         (Director - empowered by s.19 of the Australian Institute of Health and Welfare Act 1987 )

5.      Australian National Training Authority

         (Chief Executive Officer - empowered by s.45 of the Australian National Training Authority Act 1992 )

6.      Australian Securities and Investments Commission

         (Australian Securities and Investments Commission - empowered by s.120 of the Australian Securities and Investments Commission Act 1989 )

7.      Comcare Australia

         (Chief Executive Officer - empowered by s.88 of the Safety Rehabilitation and Compensation Act 1988 )

8.      Companies and Securities Advisory Committee

         (Convenor, Companies and Securities Advisory Committee - empowered by s.156 of the Australian Securities and Investments Commission Act 1989 )

9.      National Road Transport Commission

         (Chief Executive Officer - empowered by s.31 of the National Road Transport Commission Act 1991)

10.    National Environment Protection Council (NEPC) Service Corporation

         (NEPC Executive Officer - empowered by s.49 of the National Environment Protection Council Act 1994)

11.    Office of the Director of Public Prosecutions

         (Director of Public Prosecutions - empowered by s.27 of the Director of Public Prosecutions Act 1983 )

12.    Worksafe Australia

         (Chief Executive Officer - empowered by s.53 of the National Occupational Health and Safety Commission Act 1985 )

 

 

E.      Parts of portfolio departments which operate with some degree of independence within the department and statutory agencies with staff provided by the portfolio departments

         (Agency head to whom powers are delegated and any relevant legislation shown in brackets).

1.      AUSCRIPT

         (General Manager - no legislation)

2.      Australian Agency for International Development (AusAID)

         (Director-General - various Acts relating to the Asian Development Fund, International Development Assistance Association and International Fund for Agricultural Development - see also Australian Development Assistance Agency (Repeal) Act 1977 )

3.      Australian Archives

         (Director-General of the Australian Archives - s.9 of the Archives Act 1983 )

4.      Australian Heritage Commission

         (Executive Director - s.32 of the Australian Heritage Commission Act 1975 )

5.      Australian Industrial Property Organisation (AIPO)

         (Director-General - s.205 of the Patents Act 1990 , s.10 of the Designs Act 1906 and s.10 of the Trade Marks Act 1995 )

6.      Australian Protective Service

         (Director of the Protective Service - Australian Protective Service Act 1987 )

7.      Australian Safeguards Office (ASO)

         (Director of Safeguards - s.55 of the Nuclear Non-Proliferation Safeguards Act 1987 )

8.      Bureau of Meteorology

         (Director of Meteorology - s.5 of the Meteorology Act 1955 )

9.      Commonwealth Grants Commission

         (Chairman - Commonwealth Grants Commission Act 1973 )

10.    Immigration Review Tribunal

         (Principal Member - s.165 of the Migration Act 1958 )

11.    National Film and Sound Archive

         (Director - no legislation)

12.    National Science and Technology Centre

         (Director - no legislation)

13.    Refugee Review Tribunal

         (Principal Member - s.166KA of the Migration Act 1958)

14.    Remuneration Tribunal

         (President - s.4 of Remuneration Tribunal Act 1973 )

15.    Royal Australian Mint

         (Controller - Mint Employees Act 1964 )

 

 

F.      Statutory agencies which have staff provided by parent agency

         (Agency head and relevant legislation shown in brackets).

1.      Administrative Review Council

         (President - s.57 of the Administrative Appeals Tribunal Act 1975 )

2.      Australia-Japan Foundation

         (Chairman - s.20 of the Australia Japan Foundation Act 1976 )

3.      Australian Competition Tribunal

         (President - s.44 of the Trade Practices Act 1974 )

4.      Australian Science, Technology and Engineering Council

         (Chairperson - s.19 of the Australian Science and Technology Council Act 1978 )

5.      Defence Force Remuneration Tribunal

         (President - Defence Act 1903 )

6.      Merit Protection and Review Agency (MPRA)

         (Merit Protection Commissioner - Merit Protection ( Australian  Government  Employees) Act 1984)

7.      National Board of Employment, Education and Training

         (Chair - s.56 of the Employment, Education and Training Act 1988 )

8.      Office of Australian War Graves

         (Director - s.12 of the War Graves Act 1980)

 



ATTACHMENT D

Text of sections 32-35 of Auditor-General Act 1997

Power of Auditor-General to obtain information

32.     (1)     The Auditor-General may, by written notice, direct a person to do all or any of the following:

(a)   to provide the Auditor-General with any information that the Auditor-General requires;

(b)   to attend and give evidence before the Auditor-General or an authorised official;

(c)   to produce to the Auditor-General any documents in the custody or under the control of the person.

Note:  A proceeding under paragraph (1)(b) is a ‘judicial proceeding’ for the purposes of Part III of the Crimes Act 1914 .  The Crimes Act prohibits certain conduct in relation to judicial proceedings.

 

(2)     The Auditor-General may direct that

(a)  the information or answers to questions be given either orally or in writing (as the Auditor-General requires);

(b)  the information or answers to questions be verified or given an oath or affirmation. 

The oath or affirmation is an oath or affirmation that the information or evidence the person will give will be true, and may be administered by the Auditor-General or by an authorised official.

 

(3)     A person must comply with a direction under this section.

Maximum penalty: 30 penalty units.

Note 1:             Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:             Section 4AA of the Crimes Act 1914 sets the current value of a penalty unit.

 

(4)     The regulations may prescribe scales of expenses to be allowed to persons who are required to attend under this section.

 

(5)     In this section:

‘authorised official’ means an FMA official who is authorised by the Auditor-General, in writing, to exercise powers or perform functions under this section.

Access to premises etc.

33.    (1)     The Auditor-General or an authorised official:

(a)  may, at all reasonable times, enter and remain on any premises occupied by the Commonwealth, a Commonwealth authority or a Commonwealth company; and

(b)  is entitled to full and free access at all reasonable times to any documents or other property; and

(c)  may examine, make copies of or take extracts from any document.

(2)     An authorised official is not entitled to enter or remain on premises if he or she fails to produce a written authority on being asked by the occupier to produce proof of his or her authority.  For this purpose, ‘written authority’ means an authority signed by the Auditor-General that states that the official is authorised to exercise powers under this Division.

(3)     If an authorised official enters, or proposes to enter, premises under this section, the occupier must provide the official with all reasonable facilities for the effective exercise of powers under this section.

Maximum penalty: 10 penalty units.

Note 1:     Chapter 2 of the Criminal Code set out the general principles of criminal responsibility.

Note 2:     Section 4AA of the Crimes Act 1914 sets the current value of a penalty point.

(4)     In this section:

‘authorised official’ means an FMA official who is authorised by the Auditor-General, in writing, to exercise powers or perform functions under this section;

‘premises’ includes any land or place.

False statements etc.

34.    (1)     A person must not make a statement to an audit official that the person knows is false or misleading in a material particular.

Maximum penalty: Imprisonment for 12 months.

Note:   Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2)     If a person gives an audit official a document that the person knows is false or misleading in a material particular, the person must identify the particular.

Maximum penalty: Imprisonment for 12 months.

Note:   Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(3)     In this section:

‘audit official’ means a person performing, or assisting in the performance of, an Auditor-General function.

Self-incrimination no excuse

35.     A person is not excused from producing a document or answering a question under section 32 on the ground that the answer, or the production of the document, might tend to incriminate the person or make the person liable to a penalty.  However, neither:

(a)     the answer to the question or the production of the document; nor

(b)     anything obtained as a direct or indirect result of the answer or the production of the document;

is admissible in evidence against the person in any criminal proceedings (other than proceedings for an offence against, or arising out of, section 32 or 34).

 

 

 

Note:          s.4AA of the Crimes Act 1914 provides that

‘4AA. (1)     In law of the Commonwealth or a Territory Ordinance, unless the contrary intention appears: ‘penalty unit’ means $110.’

 

 



ATTACHMENT E

Major powers and functions of all Agency Heads as provided in Public Service Bill 1999

 

Clause                                  Power or function

 

12                                           to uphold and promote APS Values

14                                           to be bound by the Code of Conduct

15                                           to establish procedures for determining whether an APS employee has breached the Code of Conduct and to ensure every APS employee has reasonable access to the documents setting out those procedures

16                                           to receive whistleblowing reports

18                                           to establish a workplace diversity program

20                                           to have, on behalf of the Commonwealth, all the rights, duties and powers of an employer

22                                           to engage persons as APS employees

24                                           to determine the remuneration and other terms and conditions of employment for APS employees

25                                           to assign duties to an APS employee

26                                           to agree to movements of APS employees into the Agency

27                                           to notify the Public Service Commissioner that an employee is excess for purpose of compulsory movement provision

29                                           to terminate the employment of an APS employee

31                                           to direct the forfeiture of additional remuneration

37                                           to offer an SES employee an incentive to retire

74                                           to engage persons overseas as locally engaged employees

77                                           to create a formal position

78                                           to delegate powers and functions (except for the power of delegation)



ATTACHMENT F

Abbreviations

 

1902 PSA                               Public Service Act 1902

1922 PSA                               Public Service Act 1922

1922 PS Regs                         Public Service Regulations in force under the 1922 PSA

1994 McLeod Report             Report of the Public Service Act Review Group (chaired by Mr RN McLeod - December 1994)

AAO                                      Administrative Arrangements Order

ADJRA                                   Administrative Decisions (Judicial Review) Act 1977

ADMF Paper                          Paper: ‘Accountability in a Devolved Management Framework’ issued by the PSMPC and the DIR (May 1997)

AGEST                                   Australian Government Employees Superannuation Trust

AG Act                                   Auditor-General Act 1997

AIA                                        Acts Interpretation Act 1901

APS                                        Australian Public Service

ATSIC                                    Aboriginal and Torres Strait Islander Commission

AWA                                      Australian Workplace Agreements provided for in the WRA

Bill                                          Public Service Bill 1999

CEO                                       Chief Executive Officer

CTA Bill                                 Public Employment (Consequential and Transitional) Amendment Bill 1999

DEWRSB                               Department of Employment, Workplace Relations and Small Business - formerly the Department of Industrial Relations

DoFA                                     Department of Finance and Administration

Ex Memo                                The Explanatory Memorandum circulated with the Public Service Bill 1999

FMA Act                                Financial Management and Accountability Act 1997

GECA                                    General Employment Conditions Award (1995)

Guide to AG Bill                      Guide released by DoF December 1996: ‘A Bill for an Auditor-General Act 1996 incorporating the explanatory memorandum’

Guide to FMA Bill                   Guide released by DoF December 1996: ‘A Bill for the Financial Management and Accountability Act 1996 , incorporating the explanatory memorandum’

HoM                                       Head of Mission

IPP                                         Information Privacy Principles under the Privacy Act 1988

JCPA                                      Joint Committee of Public Accounts

JCPA Report                          Report 353, An Advisory Report on the Public Service Bill 1997 and the Public Employment (Consequential and Transitional) Amendment Bill 1997

LSL                                        Long service leave

MAB                                      APS Management Advisory Board established by s.22 of 1922 PSA

MoG                                       Machinery of Government

MP(AGE)A                            Merit Protection (Australian Government Employees) Act 1984

MPRA                                    Merit Protection and Review Agency

MOPSA                                 Members of Parliament (Staff) Act 1984

New PS Regs                         Public Service Regulations to be made under the Public Service Bill 1999

PSB                                        Commonwealth Public Service Board (abolished in 1987)

PSMPC                                  Public Service and Merit Protection Commission

SES                                        Senior Executive Service

TBPAPS Paper                       Paper: 'Towards a Best Practice APS' issued by The Hon Peter Reith, MP (November 1996)

WRA                                      Workplace Relations Act 1996

WR Regs                                Workplace Relations Regulations in force under the WRA

 




[1]      This Table is also set out at Attachment A of this Explanatory Memorandum (‘Ex Memo’).

[2]      Quotations from First Report on the Commonwealth Public Service by the Board of Commissioners, October 1924, pp 3-5.