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Parliamentary Service Bill 1999

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199 8-99 6-97-98

 

 

 

The Parliament of the Commonwealth of Australia

 

House of Representatives

 

 

 

 

 

 

 

 

 

 

 

Parliamentary Service Bill 199 9 7 [No. 2]

 

 

 

 

 

 

 

 

 

 

Explanatory Memorandum

 

(Circulated by authority of Mr Speaker)

 

 

 

 

 

 

 

 

 

 

 



PARLIAMENTARY SERVICE BILL 1999-OUTLINE

The Parliamentary Service Bill 199 7 [No. 2] 9 (‘the Bill’) establishes a separate and independent framework for the employment of staff in the Parliamentary Departments. The framework follows that established by the Public Service Bill 199 7 [No. 2] 9 except where differences are necessary to reflect the unique character of the parliamentary service and the obligation of parliamentary staff to serve the Parliament.

In May 1997, the Government announced that the Parliamentary Departments, which had been covered under the Public Service Act 1922 , would not be covered by the new Public Service Bill 1997 but would be covered under separate legislation:

The present arrangement fails to recognise sufficiently the independence of the Parliament and those who work for it. This can best be done by establishing a separate statutory regime for those who work in the Parliamentary Departments.

Staff in the Parliamentary Departments owe their allegiance to Parliament rather than to the Government. There is a need to protect the independence of the Presiding Officers, singly and jointly, as employing authorities.

For these reasons it is proposed that the Parliamentary Departments should operate under a separate Act. Appropriate transitional arrangements will be set in place for those employees who wish to return to the APS. Of course, mobility between the Parliamentary Departments and the APS for employees will still be available. APS employees who wish to work in the Parliamentary Departments can either resign from the APS or seek leave from their Secretaries.

( The Public Service Act 1997: Accountability in a devolved management framework , Public Service and Merit Protection Commission and Department of Industrial Relations, May 1997, p. 19).

The Bill:

·       establishes the Australian Parliamentary Service;

·       defines Parliamentary Service Values;

·       provides for a Parliamentary Service Code of Conduct;

·       provides for the independence of the Clerks in exercising their advisory functions;

·       provides for the independence of Secretaries of Parliamentary Departments in making employment decisions about individuals;

·       defines the powers of Secretaries as employers;

·       provides for mobility between the Parliamentary Service and the Public Service;

·       provides for a Parliamentary Senior Executive Service;

·       establishes an independent Parliamentary Service Commissioner to advise the Presiding Officers on matters relating to the parliamentary service;

·       establishes the Department of the Senate and the Department of the House of Representatives and provides for other Parliamentary Departments to be established by resolution of both Houses of Parliament;

·       creates the offices of Clerk of the Senate and Clerk of the House of Representatives and Secretary of a Department and confers responsibility for managing Departments on those officers, under the Presiding Officers;

·       provides for the appointment and termination of Clerks and Secretaries and the suspension of Clerks;

·       provides for an annual report by each Clerk and Secretary;

·       establishes transitional arrangements.

HISTORY OF THE LEGISLATION

The Parliamentary Service Bill 1997 passed the House with amendments on 30 October 1997, and was introduced into the Senate on 11 November 1997. The Senate effected significant further amendments to that Bill and it was returned to the House of Representatives with those amendments at the end of November 1997.

On 5 December 1997 the Minister Assisting the Prime Minister for the Public Service informed the House of Representatives that the Government rejected the amendments made to the Parliamentary Service Bill 1997 by the Senate. That Bill was formally laid aside by the House of Representatives on 5 December 1997. The Parliamentary Service Bill 1997 [No. 2] was is identical to the Bill laid aside on 5 December 1997 and was introduced into the House on 10 March 1998. Passed by the House on 11 March 1998, the bill was introduced into the Senate on 12 March 1998, again significantly amended, and again laid aside by the House of Representatives on 6 April 1998 following the rejection by the House of the Senate ’s amendments. This bill is essentially the same as the bill as passed by the House of Representatives in October 1997 and as reintroduced in March 1998 .

ABOUT THIS MEMORANDUM

This explanatory memorandum should be read in conjunction with the explanatory memorandum to the Public Service Bill 199 7 [No. 2] 9 . Where clauses in this Bill are the same as, or equivalent to, provisions in the Public Service Bill 199 7 [No. 2] 9 , the reader is referred to the explanatory memorandum to the Public Service Bill 199 7 [No. 2] 9 for background information and details on these clauses. For Part 9, the reader is referred to the explanatory memorandum to the Public Employment (Consequential and Transitional) Amendment Bill 199 7 [No. 2] 9 .



NOTES ON CLAUSES

Part 1-Preliminary

Clause 1-Short title

1.1        The Bill, when passed, will be known as the Parliamentary Service Act 199 9 7 .

Clause 2-Commencement

1.2                   The Bill will commence on the same day as the Public Service Act 199 9 7 , immediately after the commencement of that Act.

Clause 3-Objects of this Act

1.3                   The main objects of the Bill will be:

(a)        to establish a non-partisan Parliamentary Service that is efficient and effective in serving the Parliament;

(b)        to provide a legal framework for the effective and fair employment, management and leadership of Parliamentary Service employees; and

(c)        to establish the rights and obligations of Parliamentary Service employees.

Clause 4-This Act binds the Crown

1.4                   The Crown in right of the Commonwealth will be bound by the Bill, but will not be liable for prosecution because of this. This clause is the same as clause 4 of the Public Service Bill.

Clause 5-This Act extends to things outside Australia

1.5                   Unless a contrary intention appears, the provisions of the Bill will apply outside Australia (same as Public Service Bill - subclause 5(1)). This displaces the principle of construction that an Act normally operates only in Australia (see Acts Interpretation Act 1901 (‘AIA’) paragraph 21(b)).

1.6                   The Bill will also apply to all Australian Territories (same as Public Service Bill - subclause 5(2)).

Clause 6-Engagement of employees in a Department

1.7                   All persons who are to be employed in a Parliamentary Department will be required to be engaged under this Bill or under the authority of another Commonwealth Act. This engagement will result in the person being an ‘employee’ in the common law sense. The only exception to this requirement is where persons are engaged on an honorary basis.

1.8                   In addition, secretaries will retain whatever powers they might otherwise have to engage independent contractors. This clause is the equivalent clause to clause 6 of the Public Service Bill 199 7 [No. 2] 9 .



Part 2-Interpretation

Clause 7-Interpretation

2.1                   This clause contains various definitions and interpretative provisions for the purposes of the Bill.

Acting SES employee

2.1.1                This definition is the same as in the Public Service Bill 199 7 [No. 2] 9 and is defines a term used in clause 69 of the Bill which relates to delegations. The definition takes account of acting arrangements given that the Bill is not drafted with reference to the concept of office for Parliamentary Service employees.

APS employee

2.1.2                This term has the same meaning as in the Public Service Bill 199 7 [No. 2] 9 .

Classification Rules

2.1.3                This term refers to the rules about the classification of work and employees made by the Presiding Officers under clause 23.

Code of Conduct

2.1.4                This term means the conduct rules for Parliamentary Service employees set out in the Bill.

Commissioner

2.1.5                This term means the Parliamentary Service Commissioner appointed under the Bill.

Department

2.1.6                This term means a Department of the Parliament that is established under the Bill.

Determinations

2.1.7                This term means determinations made by the Presiding Officers under this Bill, except for those made under Part 9 of the Bill which are transitional in character.

Executive Agency

2.1.8                The term has the same meaning as in the Public Service Bill 199 7 [No. 2] 9 .

Insolvent under administration

2.1.9                This term defines what is meant by ‘insolvent under administration’ which may be grounds for the removal from office of the Commissioner under clause 44 or the termination of the appointment of the Clerk of the Senate or the Clerk of the House of Representatives under clause 59 of the Bill. The term includes a person who:

(a)        has become bankrupt; or

(b)        has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors;

(c)        has compounded with his or her creditors; or

(d)       has assigned his or her remuneration for the benefit or his or her creditors.

Merit Protection Commissioner

2.1.10              The Bill establishes the office of Merit Protection Commissioner, an office which will be independent of the Parliamentary Service Commissioner, in line with a recommendation of the (then) Joint Committee of Public Accounts in respect of the Public Service Commissioner, that the standard setting functions of the Public Service Commissioner should be separated from the role of merits review.

Minimum retiring age

2.1.11              The minimum retiring age is 55 or such other age as is prescribed by the determinations. This term is used in clause 29 and in subclause 57(5) which provide that Parliamentary Service employees and Clerks, respectively, may retire at any time after they have reached the minimum retiring age.

Modifications

2.1.12              The Bill provides that the Presiding Officers may make determinations by applying, adopting or incorporating, with or without modification, provisions of regulations in force at a particular time, or as in force from time to time, under the Public Service Act 199 9 7 . ‘Modifications’ is defined to mean additions, omissions and substitutions.

Non-SES employee

2.1.13              This term means a Parliamentary Service employee who is not a member of the Senior Executive Service (SES).

Overseas

2.1.14              This term means outside Australia and the Territories and is used in the Bill in the Code of Conduct (clause 13) which requires Parliamentary Service employees to behave in a way that upholds the good reputation of Australia, when overseas.

Parliamentary Service

2.1.15              This term means the Australian Parliamentary Service which is established by clause 9 of the Bill.

Parliamentary Service employee

2.1.16              This term means a person who is engaged as an employee under clause 22 of the Bill.

Parliamentary Service employment

2.1.17              This term means employment as a Parliamentary Service employee.

Parliamentary Service Values

2.1.18              This term means the values which are defined in clause 10 of the Bill.

Presiding Officer or Presiding Officers

2.1.19              When used in connection with a reference to the Clerk of the Senate or the Department of the Senate, this term means the President of the Senate.

2.1.20              When used in connection with a reference to the Clerk of the House of Representatives or the Department of the House of Representatives, this term means the Speaker of the House of Representatives.

2.1.21              In all other cases, the term means the President of the Senate and the Speaker of the House of Representatives acting jointly.

Public Service Commissioner

2.1.22              This term has the same meaning as in the Public Service Bill 199 7 [No. 2] 9 .

Relevant Department

2.1.23              When used in relation to a Secretary, this term means the Department of which he or she is the Secretary.

Remuneration Tribunal

2.1.24              This term refers to the Remuneration Tribunal established under the Remuneration Tribunal Act 1973 .

Secretary

2.1.25              This term means the secretary of a Department and includes the Clerk of the Senate and the Clerk of the House of Representatives.

Secretary of a Department

2.1.26              In relation to the Department of the Senate, this term means the Clerk of the Senate. In relation to the Department of the House of Representatives, this term means the Clerk of the House of Representatives. In relation to another Department, this term means the Secretary of that Department.

SES

2.1.27              This term refers to the Senior Executive Service established by clause 34 of the Bill.

SES employee

2.1.28              This term means a Parliamentary Service employee who is classified as an SES employee under the Classification Rules.

Clause 8-Workplace Relations Act

2.2                   This Bill has effect subject to the Workplace Relations Act 1996 . The Bill is to operate within the framework of that Act except where specific exemptions are identified.

2.3                   The Bill provides that Division 3 of Part VIA of the Workplace Relations Act 1996 (‘unfair dismissal’) does not apply to the termination of the appointment of:

·                     an SES employee;

·                     the Clerk of the Senate or the Clerk of the House of Representatives; or

·                     a Secretary of a Department (other than the Clerk of the Senate or the Clerk of the House of Representatives).

2.4                   This clause is the equivalent of clause 8 of the Public Service Bill 199 7 [No. 2] 9 .



Part 3-The Australian Parliamentary Service

Clause 9-Constitution of the Australian Parliamentary Service

3.1                   The Australian Parliamentary Service as established by this Bill includes:

·                     Secretaries; and

·                     Parliamentary Service employees.

Clause 10-Parliamentary Service values

3.2                   This clause provides a clear declaration of Parliamentary Service values and therefore parallels clause 10 in the Public Service Bill 199 7 [No. 2] 9 . The values expressed in paragraphs (c), (e), (f), (g), (h), (i) and (j) are identical to the values expressed in paragraphs (d), (h), (b), (c), (i), (j) and (k), respectively, of clause 10 of the Public Service Bill 199 7 [No. 2] 9 .

3.3                   Other values are as follows:

·                      Paragraph (a)   - provision of professional advice and support for the Parliament independently of the Executive Government of the Commonwealth;

·                      Paragraph (b)   - provision of non-partisan and impartial advice and services to each House and its committees, to joint committees and to Senators and members of the House of Representatives;

·                      Paragraph (d)  - performance of functions with probity, and accountability to Parliament;

·                      Paragraph (k)   - use of Commonwealth resources properly and cost-effectively.

3.4                   As with the Public Service values, these values:

·                      provide the philosophical underpinning for the Parliamentary Service;

·                      articulate the culture and operating ethos of the Parliamentary Service; and

·                      reflect Parliament’s expectations of the quality and nature of the support provided by the Parliamentary Service.

3.5                   These values will be implemented through the Code of Conduct (clause 13) and the obligation of Secretaries and SES employees to uphold and promote the values (clause 12 and paragraph 34(2)(c) respectively).

3.6        Clause 10 also contains a definition of merit . The definition of merit provides interpretative assistance in respect of paragraph 10(1)(f) which states that employment decisions in the Parliamentary Service are based on merit.

3.7        The inclusion of a definition of merit is in response to a recommendation of the (then) Joint Committee of Public Accounts, which has been accepted by the Government in respect of the Public Service Bill 199 7 [No. 2] 9 . The definition applies to decisions relating to engagement or promotion. A decision is based on merit if:

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

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

·            the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties; and

·            the assessment is the primary consideration in making the decision.

Clause 11-Commissioner may give advice to Presiding Officers about Parliamentary Service values

3.8                   One of the advisory roles of the Commissioner will be to advise the Presiding Officers to help them to ensure that the Parliamentary Service incorporates the Parliamentary Service Values or to help them determine the scope or application of the values.

Clause 12-Secretaries must promote Parliamentary Service Values

3.9                   Secretaries will be required to uphold and promote the Parliamentary Service Values. A similar requirement will be imposed on SES employees (paragraph 34(2)(c)). This clause is equivalent to clause 12 and paragraph 35(2)(c) of the Public Service Bill 199 7 [No. 2] 9 .

Clause 13-Parliamentary Service Code of Conduct

3.10                 This clause creates a legally enforceable code of conduct equivalent to the code of conduct contained in clause 13 of the Public Service Bill 199 7 [No. 2] 9 , except that references have been changed to reflect a Parliamentary Service employee’s obligations to Parliament rather than to a Minister. The Bill provides that any further conduct requirements may be made by either House of the Parliament or by determinations. This provision gives the Parliament a direct role in determining the standard of conduct to be followed by Parliamentary Service employees.

3.11                 To amount to a breach of the Code, the conduct concerned must happen while the person is a Parliamentary Service employee. Misconduct proceedings will not apply after a person ceases to be a Parliamentary Service employee, even if the breach happened while the person was a Parliamentary Service employee.

3.12                 The elements of the Code include requirements to:

·                      act with honesty and integrity;

·                      act with care and diligence;

·                      treat everyone with respect and courtesy, and without harassment;

·                      comply with the law;

·                      comply with any lawful and reasonable direction;

·                      maintain appropriate confidentiality;

·                      disclose, and take reasonable steps to avoid, any conflict of interest;

·                      use resources in a proper manner;

·                      uphold Parliamentary Service Values and the integrity and good reputation of the Service;

·                      behave in a way that upholds the good reputation of Australia when on duty overseas;

and prohibitions against:

·                      providing false or misleading information in response to requests for official purposes; and

·                      making improper use of inside information or position to gain, or seek to gain, a benefit or advantage.

Clause 14-Secretaries bound by Code of Conduct

3.13                 The Code of C c onduct applies to Secretaries in the same way as to Parliamentary Service employees. This clause is equivalent to clause 14 of the Public Service Bill 199 7 [No. 2] 9 .

Clause 15-Breaches of the Code of Conduct

3.14                 This clause is equivalent to clause 15 of the Public Service Bill 199 7 [No. 2] 9 . Sanctions for breaches of the Code will be provided for by determinations. Subclause 15(2) provides that sanctions may include:

(a)        termination of employment;

(b)        reduction in classification;

(c)        reassignment of duties;

(d)       reduction in salary; or

(e)        deductions from salary by way of fine.

3.15                 Procedures for dealing with breaches of the Code must be established by Secretaries and must have due regard to procedural fairness. The concept of procedural fairness is explained in the explanatory memorandum to the Public Service Bill 199 7 [No. 2] 9 where the background to the disciplinary framework is also explained.

Clause 16-Protection for whistleblowers

3.16                 This clause is the same as clause 16 in the Public Service Bill 199 7 [No. 2] 9 and provides that any person performing functions in or for a Department will be prohibited from victimising or discriminating against people who report breaches or alleged breaches of the Code of Conduct. Breaches or alleged breaches may be reported to the Commissioner or a person authorised by the Commissioner for this purpose, or the Secretary or a person authorised by the Secretary for this purpose.

Clause 17-Prohibition of patronage and favouritism

3.17                 Any person exercising powers under this Bill in relation to Parliamentary Service employees and their engagement will be required to do so without patronage or favouritism. This clause is the same as clause 17 in the Public Service Bill 199 7 [No. 2] 9 except that there is no requirement for any exceptions to be specified.

Clause 18-Promotion of employment equity

3.18                 This clause is the equivalent of clause 18 in the Public Service Bill 199 7 [No. 2] 9 and requires Secretaries to establish a workplace diversity program to assist in giving effect to the Parliamentary Service Values, particularly the value contained in paragraph (g) of clause 10 in relation to a discrimination-free workplace and recognition of diverse backgrounds of employees.

Clause 19-Restrictions on directions to Clerks

3.19                 This clause provides for the independence of the Clerk of either House of the Parliament in giving advice with respect to that House or any of its committees or members. In carrying out this function, a Clerk is not subject to a direction by a Presiding Officer.

3.20                 This clause preserves the independence of the Clerks in giving advice. This clause applies only to advice, properly so called, not to the provision of information or documents, nor to communications with the media.

3.1      



Part 4-Parliamentary Service employees

Division 1-Parliamentary Service employees generally

Clause 20-General directions to Secretaries

4.1                   This clause provides that the Presiding Officers, after consultation with the Parliamentary Service Commissioner, may issue general directions in writing to Secretaries, relating to the management and leadership of Parliamentary Service employees. The clause is similar to clause 21 of the Public Service Bill 199 7 [No. 2] 9 .

4.2                   The clause also provides that directions to the Clerk of the Senate are to be made by the President; directions to the Clerk of the House of Representatives are to be made by the Speaker; and directions to other Secretaries are to be made jointly by the Presiding Officers.

4.3                   Finally, a direction under this section may not be made in relation to particular individuals.

Clause 21-Employer powers etc of Secretary

4.4                   This clause is the equivalent of clause 20 of the Public Service Bill 199 7 [No. 2] 9 in providing for the employer powers of Secretaries. The extent of these general powers is described in the explanatory memorandum to the Public Service Bill 199 7 [No. 2] 9 (clause 20). The clause also provides for any specific powers, rights and duties to be prescribed by the determinations.

Clause 22-Engagement of Parliamentary Service employees

4.5                   This clause is the equivalent of clause 22 in the Public Service Bill 199 7 [No. 2] 9 and empowers Secretaries, on behalf of the Commonwealth, to engage people as employees for the purpose of the relevant Parliamentary Department. The Bill does not spell out detailed staffing rules and does not create different categories of employment such as fixed term or casual. These matters will be provided for in the notice of engagement which will specify the basis on which the person is employed and what conditions the employment is subject to.

4.6                   The Bill provides that the engagement of a Parliamentary Service employee may be subject to conditions, including conditions dealing with:

(a)                    probation;

(b)                    citizenship;

(c)                    formal qualifications;

(d)                   security and character clearances; and

            (e)        health.

4.7                   Employment will not, however, be limited to these conditions. 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’ or ‘unfair or unlawful’ for the purposes of paragraph 170CA(1)(c) or sections 170CG or 170CK of the Workplace Relations Act 1996 . Each of the specific conditions is dealt with in the explanatory memorandum to the Public Service Bill 199 7 [No. 2] 9 .

Clause 23-Classification Rules

4.8                   This clause is the equivalent of clause 23 in the Public Service Bill 199 7 [No. 2] 9 and provides for the Presiding Officers, after consulting the Commissioner, to make classification rules. The current position in relation to classification and the new arrangements are described in the explanatory memorandum to the Public Service Bill 199 7 [No. 2] 9 . The purpose of classification rules is to ensure that principles for categorising employees operate across the new public service in a consistent way, facilitating mobility across the service.

4.9                   The intention is that the classification rules for the Parliamentary Service will operate to preserve consistency between the Parliamentary Departments and the new Australian Public Service to facilitate mobility between the two services.

4.10                 The classification rules will recognise classifications established by awards and it will be mandatory for Secretaries to comply with the rules.

Clause 24-Remuneration and other conditions

4.11                 This clause is the equivalent of clause 24 of the Public Service Bill 199 7 [No. 2] 9 and provides for Secretaries to determine the remuneration and terms and conditions of employees, apart from some matters, such as maternity leave, superannuation, compensation and long-service leave, which will continue to be dealt with under other Commonwealth laws.

4.12                 It is expected that agreements under the Workplace Relations Act will establish most remuneration and conditions entitlements, but Secretaries may wish to continue to use this authority to determine specific matters, for example, conditions for SES staff.

4.13                 The power is delegable under clause 69 and is also subject to any inconsistent determinations by the Presiding Officers under subclause 24(3). The power of the Presiding Officers to determine remuneration and other terms and conditions of employment is a general power and, unlike the power of the Public Service Minister under subclause 24(3) of the Public Service Bill 199 7 [No. 2] 9 , is not limited to special circumstances.

Clause 25-Assignment of duties

4.14                 This clause is the equivalent of clause 25 of the Public Service Bill 199 7 [No. 2] 9 and provides that Secretaries may determine the duties of a Parliamentary Service employee and the place or places where those duties are to be performed. This power is one of the ordinary powers of an employer and is expressly included in the Bill to emphasise that all ordinary ‘rights, duties and powers’ of an employer have been given to Secretaries.

Clause 26-Mobility between Parliamentary Service and Public Service

4.15                 This clause has no equivalent in the Public Service Bill 199 7 [No. 2] 9 , as introduced, and provides that mobility between the Parliamentary Service and the Public Service is to be on the same basis as mobility within the APS. A Parliamentary Service employee is eligible for employment in a Department of State or Executive Agency on the same terms and conditions, but subject to the same restrictions, if any, as would apply to an APS employee seeking to be employed in that position or at that classification or level. Likewise an APS employee is eligible for employment in a Parliamentary Department on the same terms and conditions, but subject to the same restrictions, if any, as would apply to a Parliamentary Service employee seeking to be employed in that position or at that classification or level. Restrictions referred to include, for example, a requirement for particular qualifications.

4.16                 Subclause 26(3) provides for portability of entitlements between the services and is intended to cover such matters as accrued leave and superannuation benefits to the extent that these matters would be covered in the case of employees moving from employment in one Department of State to employment in another Department of State.

Clause 27-Suspension

4.17                 This clause is the equivalent of clause 28 in the Public Service Bill 199 7 [No. 2] 9 and provides that the determinations may make provision for the suspension from duty of Parliamentary Service employees, with or without remuneration.

Clause 28-Termination of employment

4.18                 This clause is the equivalent of clause 29 in the Public Service Bill 199 7 [No. 2] 9 and provides that a Secretary may terminate the employment of a Parliamentary Service employee. The termination is required to be by notice in writing. While the notice must include a statement of reasons for the termination, non-compliance with this requirement will not affect the termination.

4.19                 For non-SES employees, termination is subject to the termination of employment provisions in Division 3 of Part VIA of the Workplace Relations Act.

Clause 29-Retirement

4.20                 This clause is the equivalent of clause 30 in the Public Service Bill 199 7 [No. 2] 9 and provides that Parliamentary Service employees may retire at any time after reaching the minimum retiring age by giving notice in writing to the Secretary of the Department.

4.21                 Minimum retiring age is defined as 55 years but may be raised or lowered by determination.

4.22                 There is no maximum retiring age.

Clause 30-Forfeiture of additional remuneration

4.23                 This clause is the equivalent of clause 31 of the Public Service Bill 199 7 [No. 2] 9 and provides that a Secretary may notify an employee about any remuneration received from a person other than the Commonwealth for performing duties as a Parliamentary Service employee.

4.24                 Any amount that is notified will be taken to have been received by the Parliamentary Service employee on behalf of the Commonwealth and will be able to be recovered by the Commonwealth from the Parliamentary Service employee in a court of competent jurisdiction.

4.25                 The basis of this provision in the Public Service Act 1922 is explained in the explanatory memorandum to the Public Service Bill 199 7 [No. 2] 9 .

Clause 31-Right of return for election candidates

4.26                 This clause is the equivalent of clause 32 in the Public Service Bill 199 7 [No. 2] 9 and provides that a Parliamentary Service employee who resigns to contest an election will, in certain circumstances, have a right to be re-engaged as a Parliamentary Service employee. The type of election to which this provision applies will be prescribed in the determinations. The right exists if the person resigned not earlier than 6 months before the closing date for nominations and if the person was a candidate in the election but failed to be elected.

4.27                 The timeframe and manner in which the person may apply for re-engagement will be prescribed by the determinations.

Clause 32-Review of actions

4.28                 This clause is the equivalent of clause 33 of the Public Service Bill 199 7 [No. 2] 9 and provides a streamlined approach to the review of actions relating to Parliamentary Service employment.

4.29                 All matters relating to the review of actions will be prescribed by the determinations within the framework of merit protection established by the Parliamentary Service Values.

4.30                 Actions will also include refusal or failure to act.

Division 2-The Senior Executive Service

Clause 33-SES employees

4.31                 This clause is the equivalent of clause 34 of the Public Service Bill 199 7 [No.2] 9 and provides that SES employees will be those Parliamentary Service employees who are classified as SES employees under the classification rules determined by the Presiding Officers under clause 23.

Clause 34-Constitution and role of SES

4.32                 This clause is the equivalent of clause 35 of the Public Service Bill 199 7 [No.2] 9 and provides that the SES will consist of SES employees. The functions of the SES will be:

(a)                    to provide professional expertise, policy advice or management at a high level;

(b)                    to promote cooperation with other Departments; and

(c)                    to promote the Parliamentary Service Values and compliance with the Code of Conduct by personal example and other means.

Clause 35-Commissioner’s guidelines on SES matters

4.33                 The Parliamentary Service Commissioner is required to issue written guidelines about employment matters relating to SES employees. Such guidelines may include guidelines about the engagement, promotion and separation of SES employees.

Clause 36-Incentive to retire

4.34                 This clause is the equivalent of clause 37 in the Public Service Bill 199 7 [No. 2] 9 and provides that a Secretary may give a written notice to an SES employee stating that the SES employee will become entitled to payment of a specified redundancy benefit if the employee retires within a specified time.

4.35                 If the SES employee retires within the specified time, the employee will be entitled to the specified redundancy benefit and will be taken for all purposes, including superannuation, to have been compulsorily retired from the Parliamentary Service.

Clause 37-Termination

4.36                 This clause is the equivalent of clause 38 of the Public Service Bill 199 7 [No. 2] 9 and provides that Division 3 of Part VIA of the Workplace Relations Act does not apply to the termination of employment of an SES employee.



Part 5-The Parliamentary Service Commissioner

Division 1-The Commissioner’s functions etc.

Clause 38-Parliamentary Service Commissioner

5.1                   This clause is the equivalent of subclause 40(1) of the Public Service Bill 199 7 [No. 2] 9 and creates the office of Parliamentary Service Commissioner.

Clause 39-Commissioner’s functions

5.2                   This clause sets out the functions of the Commissioner and establishes the Commissioner’s independence from the Executive Government of the Commonwealth.

5.3                   The Commissioner’s functions are to:

·       give advice to the Presiding Officers on the management policies and practices of the Parliamentary Service; and

·       inquire into and report on matters relating to the Parliamentary Service if requested by the Presiding Officers to do so.

5.4                   The Commissioner’s inquiry powers are dependent on a request being made by the Presiding Officers but where a request has been made, the Commissioner may include recommendations in the requested report.

5.5                   Subclause 39(3) provides that the Commissioner is not subject to a direction by the Executive Government in the performance of his or her functions.

Clause 40-Commissioner’s inquiry powers

5.6                   This clause is the equivalent of clause 43 in the Public Service Bill 199 7 [No. 2] 9 and provides that the Commissioner will have appropriate information gathering powers similar to those in sections 32, 33, 34 and 35 of the Auditor-General Act 1997 .

Clause 41-Annual report

5.7                   This clause is the equivalent of clause 44 of the Public Service Bill 199 7 [No. 2] 9 and provides that the Commissioner must give a report to the Presiding Officers after the end of each financial year on his or her activities during the year. The report is to be presented to the Parliament.

Division 2-Commissioner’s appointment, conditions etc.

Clause 42-Appointment of Commissioner

5.8                   This clause provides for the Commissioner to be appointed by the Presiding Officers for a period of up to 5 years. The actual period of appointment is to be specified in the instrument of appointment.

5.9                   Subclause 42(2) provides that a person may hold both the office of Commissioner and the office of Public Service Commissioner.

5.10                 The Commissioner will be able to be reappointed.

Clause 43-Remuneration and other conditions of appointment

5.11                 The Commissioner’s remuneration and other conditions of appointment are to be determined by the Remuneration Tribunal except that if the same person holds both the office of Public Service Commissioner and Commissioner, that person is not to be paid any remuneration for performing the duties of Commissioner.

Clause 44-Removal from office

5.12                 This clause is the equivalent of clause 47 of the Public Service Bill 199 7 [No. 2] 9 and provides for the removal of the Commissioner from office. The Presiding Officers will be able to remove the Commissioner from office following a prayer for removal from both Houses of Parliament in the same session on the ground of misbehaviour or physical or mental incapacity (see paragraphs 7.19-7.20 below).

5.13                 The Presiding Officers will be required to remove the Commissioner from office if the Commissioner becomes an insolvent under administration.

Clause 45-Acting Commissioner

5.14                 This clause is the equivalent of clause 48 of the Public Service Bill 199 7 [No. 2] 9 and provides for the appointment of an acting Commissioner by the Presiding Officers. The same person may be appointed to act as Public Service Commissioner and Commissioner. Appointments are not affected by any irregularities.

5.15                 The framework rules provided by the Acts Interpretation Act 1901 , as described in the explanatory memorandum to the Public Service Bill 199 7 [No. 2] 9 (with appropriate modifications), apply to the appointment of acting Commissioner.



Part 6-The Parliamentary Service Merit Protection Commissioner

Division 1-Merit Protection Commissioner’s functions etc

Clause 46-Parliamentary Service Merit Protection Commissioner

6.1        This clause establishes the office of Parliamentary Service Merit Protection Commissioner.

Clause 47-Merit Protection Commissioner’s functions

6.2        The functions of the Merit Protection Commissioner will be prescribed by determinations made for the purpose of clause 32 of the Bill on review of actions.

Clause 48-Annual Report

6.3        At the end of each financial year the Merit Protection Commissioner is to give the Parliamentary Service Commissioner a report on the activities of the Merit Protection Commissioner during the year.

6.4        The Merit Protection Commissioner’s report is to be included in the Parliamentary Service Commissioner’s annual report to the Presiding Officers under clause 41.

Clause 49-Appointment of Merit Protection Commissioner

6.5        This clause provides that the Merit Protection Commissioner is to be appointed by the Presiding Officers for a period of up to 5 years.

6.6        Consistent with the arrangements in respect of the Parliamentary Service Commissioner in clause 42, the same person may hold both the office of Parliamentary Service Merit Protection Commissioner and the office of Public Service Merit Protection Commissioner.

Clause 50-Remuneration and other conditions of appointment

6.7        Remuneration is to be determined by the Remuneration Tribunal but if the same person holds both the office of Parliamentary Service Merit Protection Commissioner and Public Service Merit Protection Commissioner the person is not to be paid in respect of the former office.

Clause 51-Removal from office

6.8        The Merit Protection Commissioner will be subject to the same grounds for removal as the Commissioner under clause 44. The Presiding Officers may remove the Merit Protection Commissioner from office following a prayer for removal from both Houses of Parliament on the ground of misbehaviour or physical or mental incapacity.

6.9        The Presiding Officers will be required to remove the Merit Protection Commissioner from office if the Merit Protection Commissioner becomes an insolvent under administration (defined in clause 7).

Clause 52-Acting Merit Protection Commissioner

6.10      This clause is similar to clause 45 of the Bill in respect of the Parliamentary Service Commissioner and allows the Presiding Officers to appoint a person to act as Merit Protection Commissioner. Like the arrangements under clause 45, the arrangements under this clause follow the framework for acting appointments provided for in section 33A of the Acts Interpretation Act 1901 .

6.11      The same person may act in both the office of Parliamentary Service Merit Protection Commissioner and Public Service Merit Protection Commissioner.

6.12      Appointments will not be affected by any irregularities.



Part 7-Departments and Secretaries

Clause 53-Departments

7.1                   This clause provides for the establishment of the Department of the Senate and the Department of the House of Representatives and creates the mechanism by which other Parliamentary Departments may be established or abolished.

7.2                   Such other Departments as are required may be established by resolutions passed by each House of the Parliament. Departments so created may also be abolished by resolutions passed by each House of the Parliament.

7.3                   A Department consists of the Secretary of the Department together with the Parliamentary Service employees assisting the Secretary.

Clause 54-Offices of the Clerk of the Senate and Clerk of the House of Representatives

7.4                   This clause establishes the office of Clerk of the Senate and the office of Clerk of the House of Representatives.

Clause 55-Office of Secretary of a Department

7.5                   This clause is the equivalent of clause 56 of the Public Service Bill 199 7 [No. 2] 9 and provides for the establishment of office of Secretary of Departments other than the Department of the Senate and the Department of the House of Representatives.

7.6                   Where a Department is established, the office of Secretary of that Department is also established. The concept of office has been retained only for the office of Secretary (which includes the office of Clerk).

7.7                   Where a Department is abolished, the office of Secretary of that Department is also abolished.

7.8                   The naming of the office of Secretary of a Department as Secretary of the [ name of Department ] follows the practice established in the Public Service Bill 199 7 [No. 2] 9 .

Clause 56-Responsibility for managing Department

7.9                   This clause is the equivalent of clause 57 in the Public Service Bill 199 7 [No. 2] 9 and provides that the Secretary of a Department, under the Presiding Officers, is responsible for managing the Department.

Clause 57-Appointment of Clerk of the Senate and Clerk of the House of Representatives

7.10                 The provision of independent advice, which is vital to the well-being of an institution, can be guaranteed only where the adviser is not beholden to the advised for his or her continuation in office. This clause provides that the Clerks are appointed for a 10 year, non-renewable, fixed term. A ten year term of office is balanced by the availability of clear mechanisms for the termination or suspension of the office-holder.

7.11                 Subclause 57(1) provides for the appointment of Clerk of the Senate by the President of the Senate following consultation with members of the Senate. The President must be satisfied that the person appointed has extensive knowledge of Parliamentary law, procedure and practice.

7.12                 Subclause 57(2) provides for the appointment of the Clerk of the House of Representatives by the Speaker of the House of Representatives after consultation with members of the House. The Speaker must be satisfied that the person appointed has extensive knowledge of Parliamentary law, procedure and practice.

7.13                 The President or the Speaker, as the case may be, is to determine the scope and method of consultation with members of the relevant House.

7.14                 Although the Clerks are to be appointed for a non-renewable term of 10 years, a Clerk may choose to retire after reaching the minimum retiring age.

7.15                 Appointments are not affected by irregularities.

Clause 58-Appointment of Secretary of a Department

7.16                 This clause is the equivalent of clause 58 of the Public Service Bill 199 7 [No. 2] 9 and provides for the appointment of Secretaries. The Presiding Officers will be able to appoint a person as Secretary for a period of 5 years, after receiving a report about the vacancy from the Commissioner. Appointments are not affected by irregularities.

Clause 59-Termination of appointment of Clerk of the Senate or Clerk of the House of Representatives

7.17                 Subclause 59(1) provides that the appointment of the Clerk of the Senate may be terminated by a resolution of the Senate of which a minimum of 6 sitting days’ notice must be given.

7.18                 Subclause 59(2) provides that the appointment of the Clerk of the House of Representatives may be terminated by a resolution of that House of which a minimum of 6 sitting days’ notice must be given.

7.19                 Grounds for termination are:

·       that the Clerk has been guilty of misbehaviour;

·       that the Clerk is incapable of performing his or her duties because of physical or mental incapacity; or

·       that the Clerk has become an insolvent under administration.

7.20                 These grounds are essentially the same as for other holders of independent offices. The term “misbehaviour” covers any conduct indicating unfitness for office (see the Report of the Parliamentary Commissioners of Inquiry, presented to Parliament on 21 August 1986).

7.21                 Division 3 of Part VIA of the Workplace Relations Act does not apply to the termination of the appointment of a Clerk.

Clause 60-Termination of the appointment of Secretary of a Department

7.22                 This clause is the equivalent of clause 59 of the Public Service Bill 199 7 [No. 2] 9 and provides that the appointment of a Secretary (other than the Clerk of the Senate or Clerk of the House of Representatives) may be terminated at any time in writing by the Presiding Officers. There are no specified grounds for termination but the Presiding Officers are not authorised to terminate an appointment without first having received a report from the Commissioner about the proposed termination.

7.23                 Division 3 of Part VIA of the Workplace Relations Act does not apply to the termination of the appointment of a Secretary.

Clause 61-Suspension of Clerk of the Senate or Clerk of the House of Representatives

7.24                 This clause provides a mechanism for a Presiding Officer to take action potentially leading to the termination of the appointment of a Clerk when the Senate or House of Representatives is not sitting. If it appears to the Presiding Officer that a ground for termination exists, the Presiding Officer may suspend the Clerk by notice in writing. The Presiding Officer must then table a statement setting out the ground of suspension on the first sitting day of the relevant House after the suspension occurs. The suspension ends when any of the following first occurs:

·       the Clerk’s appointment is terminated under clause 59;

·       the House passes a resolution removing the suspension; or

·       the prescribed period after the statement of suspension is tabled elapses.

7.25                 The prescribed period is 5 sitting days or, if the House concerned passes a resolution to extend the period by no more than 10 sitting days, that longer period.

7.26                 Suspension does not affect the entitlement of the person occupying the office of Clerk to be paid remuneration or allowances.

Clause 62-Remuneration and other conditions of appointment

7.27                 This clause provides that, in relation to the Clerks, remuneration and other conditions of employment are to be determined by the Remuneration Tribunal and, in relation to Secretaries (other than Clerks), remuneration and other conditions of employment of Secretaries (including Clerks) are to be determined by the Presiding Officers after receiving a report from the Commissioner.

Clause 63-Acting Secretary

7.28                 This clause is the equivalent of clause 62 in the Public Service Bill 199 7 [No. 2] 9 and provides that the Presiding Officers may appoint a person to act in the office of Secretary (including the office of Clerk) when there is a vacancy in the office or when the Secretary is suspended or is absent from duty or from Australia or is unable to perform the duties of the office. An acting appointment is not affected by any irregularities and is covered by section 33A of the Acts Interpretation Act 1901 (see the explanatory memorandum to the Public Service Bill 199 7 [No. 2] 9 .

Clause 64-Annual Report

7.29                 This clause is the equivalent of clause 63 of the Public Service Bill 199 7 [No. 2] 9 and provides for the following annual reports:

·       by the Clerk of the Senate to the President of the Senate, for presentation to the Senate, on the activities of the Department of the Senate during the year;

·       by the Clerk of the House of Representatives to the Speaker of that House, for presentation to that House, on the activities of the Department of the House of Representatives during the year; and

·       by the Secretary of each other Department to the Presiding Officers, for presentation to each House, on the activities of that Department during the year.



Part 8-Miscellaneous

Clause 65-Payments in special circumstances

8.1                   This clause is the equivalent of clause 73 in the Public Service Bill 199 7 [No. 2] 9 and provides for the Presiding Officers to authorise payments of money to Parliamentary Service staff, other than for salary or allowances, in special circumstances. This obviates the need to use the general ‘act of grace’ payments arrangements in cases that relate to ordinary employment matters (including, for example, reimbursement of legal costs incurred by Parliamentary Service employees in the course of, or in connection with, their employment; payments in lieu of entitlements lost as a result of incorrect advice; settlement of unfair termination claims; or payment of certain compensation).

8.2                   Details of permissible payments may be found in the explanatory memorandum to the Public Service Bill 199 7 [No. 2] 9 .

Clause 66-Attachment of salaries to satisfy judgment debts

8.3                   This clause is the equivalent of clause 75 of the Public Service Bill 199 7 [No. 2] 9 and provides for a garnishee scheme. The determinations will provide a framework under which a judgment creditor can seek deductions from the salaries of Parliamentary Service employees or Secretaries in order to satisfy a judgment debt. The determinations may prescribe fees in relation to the costs of making these deductions and deductions will also be able to be sought in relation to interest on a judgment debt.

Clause 67-Release of personal information

8.4                   This clause is the equivalent of clause 76 of the Public Service Bill 199 7 [No. 2] 9 and provides for the determinations to authorise the disclosure, in specific circumstances, of personal information within the meaning of the Privacy Act 1988 . The determinations may also impose restrictions on the collection, storage, access, use or further release of information disclosed under the determinations.

Clause 68-Positions

8.5                   This clause is the equivalent of clause 77 of the Public Service Bill 199 7 [No. 2] 9 and provides a statutory source for the creation of positions to which legal rights, duties and powers might be attached. This is considered to be among the ordinary ‘rights, duties and powers of an employer’ and will also provide certainty for matters such as delegations.

Clause 69-Delegations

8.6                   This clause is the equivalent of clause 78 of the Public Service Bill 199 7 [No. 2] 9 and provides for a Secretary to delegate to a Parliamentary Service employee any of the Secretary’s powers or functions under the Bill.

8.7                   Subclause 69(2) provides for delegation to a second delegate. A recipient of a delegation from a Secretary (called ‘the first delegate’) may delegate any of the powers and functions so delegated to another person (called ‘the second delegate’). This provision will ensure that the Acts Interpretation Act will apply to further delegations. The power to delegate to a ‘second delegate’ will not be able to be delegated further. 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.

8.8                   Subclause 69(3) provides that a power or function that is exercised or performed by a person under subclause (2) is taken, for the purposes of this Act, to have been exercised or performed by the person who originally delegated the corresponding power or functions under subclause (1).

8.9                   For an account of the general rules about delegation in the Acts Interpretation Act that will apply to delegations under this Bill, see the explanatory memorandum to the Public Service Bill 199 7 [No. 2] 9 .

Clause 70-Determinations

8.10                 This clause is the equivalent of clause 79 of the Public Service Bill 199 7 [No. 2] 9 and provides that the Presiding Officers may, after consultation with the Commissioner, make determinations in relation to matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Bill.

8.11                 The determinations will be able to prescribe penalties for offences against the determinations by way of fines of up to 10 penalty units. A penalty unit equals $100.

8.12                 The Bill provides that the Presiding Officers may make determinations by applying, adopting or incorporating, with or without modification, provisions of regulations in force at a particular time, or from time to time, under the Public Service Act 199 9 7 .

8.13                 In addition to the general determination-making power, there will be specific powers to make determinations in relation to:

(a)                    any additional requirements to be included in the Code of Conduct (subclause 13(13));

(b)       sanctions to be imposed for breaches of the Code of Conduct (subclause 15(1));

(c)        the rights, duties and powers that a Secretary has in relation to Parliamentary Service employees (subclause 21(2));

(d)       remuneration and terms and conditions of employment applying to Parliamentary Service employees (subclause 24(3));

(e)        suspension of Parliamentary Service employees from duty (clause 27);

(f)        the circumstances in which a failed election candidate may return to Parliamentary Service employment (clause 31);

(g)       the framework for the review of actions (clause 32);

(h)       the circumstances in which salaries can be attached to satisfy judgment debts (clause 66);

(i)        the circumstances in which personal information may be released (clause 67).

8.14                 Determinations are subject to disallowance by either House of the Parliament in the usual way.



Part 9-Transitional provisions

Clause 71-Interpretation

9.1                   This clause contains various definitions and interpretative provisions for the purposes of this Part.

Agency

9.2                   This term has the same meaning as in the Public Service Bill 199 7 [No.2 ] 9 .

Agency Head

9.3                   This term has the same meaning as in the Public Service Bill 199 7 [No. 2] 9 .

Classification

9.4                   The term ‘classification’ includes a level.

Commencing time

9.5                   This term means the time when the Bill commences. The Bill will commence on the same day as the Public Service Act 199 9 7 , immediately after the commencement of that Act.

Continuing employee

9.6                   This term refers to a person who was a continuing employee in a former Parliamentary Department for the purposes of Division 10 of Part III of the old Act immediately before the commencing time.

Continuing SES officer

9.7                   This term refers to a person who was an SES officer in a former Parliamentary Department immediately before the commencing time.

Corresponding new Department

9.8                   In relation to a former Parliamentary Department, this term means the Department that corresponds to the former Parliamentary Department. In relation to a person who was an old Act officer or an old Act employee, this term means the Department which corresponds to the former Parliamentary Department in which the person was an old Act Officer or employee immediately before commencing time.

Determinations

9.9                   This term refers to determinations under this Part.

Eligible public employment

9.10                 This term refers to eligible public employment within the meaning of Part IV of the old Act.

First-tier person

9.11                 This term is used to describe a person who immediately before the commencement of the Bill had rights and entitlements under Division 2 of Part IV of the old Act.

Former Parliamentary Department

9.12                 This term refers to a Parliamentary Department within the meaning of section 9B of the old Act.

Merit Protection Act

9.13                 This term refers to the Merit Protection (Australian Government Employees) Act 1984 .

Non-SES officer

9.14                 This term refers to a person who was an officer under the old Act, other than an SES officer.

Old Act

9.15                 This term is used to describe the Public  Service Act 1922 .

Old Act employee

9.16                 This term is used to describe a person who was an employee under the old Act (as distinct from an ‘officer’).

Old Act officer

9.17                 This term is used to describe a person who was appointed or transferred to the APS as an officer under the old Act (as distinct from an ‘employee’).

Pre-commencement misconduct

9.18                 This term is used to describe conduct by an old Act officer or old Act employee before the Bill commences which was misconduct for the purposes of the disciplinary provisions of the Public Service Act 1922 .

Second-tier person

9.19                 This term is used to describe a person who immediately before the commencement of the Bill had rights and entitlements provided by Division 3 of Part IV of the old Act.

Statutory instrument

9.20                 This term is used to describe a law of the Commonwealth (other than the Parliamentary Service Act Bill 199 7 [No. 2] 9 ), a law of an Australian Territory or an instrument made under one of those laws.

Term employee

9.21                 This term is used to describe a person who, under the old Act, was employed in a former Parliamentary Department as a short-term employee (section 82AD), a fixed-term employee (section 82AE) or under a special employment program (section 82AG).

Transitional determination

9.22                 This term is used to describe a determination under section 9(7A) or section 82D of the old Act that was in force immediately before the commencing time.

Transitional period

9.23                 This term is used to describe the period during which the transitional arrangements will operate for persons on first-tier mobility.

Clause 72-Operation of Part

9.24                 This clause provides for Part 9 to have effect despite anything contained in Parts 3 to 8 and for the Act (except where otherwise expressly provided) to apply to persons who under the transitional provisions are taken to have been appointed or engaged under this Bill.

Clause 73-Continuation of existing Departments

9.25                 This Clause provides for the continuation of the current Parliamentary Departments as if they had been established under the provisions of the Bill.

Clause 74-Current Heads of Parliamentary Departments to continue in office

9.26                 This clause provides that the persons who hold the offices of Clerk of the Senate and Clerk of the House of Representatives, respectively, immediately before commencing time, continue to hold office as Clerks and are taken to have been appointed for a period of 10 years beginning at commencing time.

9.27                 This clause also provides that persons who hold the offices of Parliamentary Librarian, Principal Parliamentary Reporter  and Secretary of the Joint House Department immediately before commencing time continue to hold office as Secretaries of the relevant Departments and are taken to have been appointed for a period of 5 years beginning at commencing time.

Clause 75-Conversion of officers and employees

9.28                 This clause is the equivalent of clause 5 of the Public Employment (Consequential and Transitional) Amendment Bill 199 7 [No. 2] 9 and converts the status of existing APS staff employed in the Parliamentary Departments under the old Act into their corresponding status under the Parliamentary Service Bill 199 7 [No. 2] 9 . The categories of staff include:

(a)        continuing SES officers;

(b)        non-SES officers;

(c)        term employees; and

(d)       continuing employees.

Clause 76-Rights under Part IV of the old Act—first-tier persons

9.29                 This clause is the equivalent of clause 6 of the Public Employment (Consequential and Transitional) Amendment Bill 199 7 [No. 2] 9 . The background to and application of this clause are explained in the explanatory memorandum to that Bill.

Clause 77-Rights under Part IV of the old Act—second-tier persons

9.30                 This clause is the equivalent of clause 7 of the Public Employment (Consequential and Transitional) Amendment Bill 199 7 [No. 2] 9 . The determinations will provide for rights of re-engagement for this category of person. Further details are provided in the explanatory memorandum to the Public Employment (Consequential and Transitional) Amendment Bill 199 7 [No. 2] 9 .

Clause 78-Determinations under the old Act

9.31                 This clause is the equivalent of clause 9 of the Public Employment (Consequential and Transitional) Amendment Bill 199 7 [No. 2] 9 and provides for Secretaries to be taken to have made continued determinations under clause 23 of this Bill in relation to each transitional determination that was in force immediately before the commencement time (see paragraph 9.22 above) which will continue in force until the first anniversary of the commencing time unless sooner revoked. These determinations are about terms and conditions of employment.

Clause 79-Misconduct

9.32                 This clause is the equivalent of clause 10 of the Public Employment (Consequential and Transitional) Amendment Bill 199 9 7 [No.2] and provides transitional arrangements in relation to misconduct that occurred before commencing time. Details of the arrangements may be found in the explanatory memorandum to the Public Employment (Consequential and Transitional) Amendment Bill 199 9 7 [No.2] .

Clause 80-References to Agency, Agency Head, former Parliamentary Departments and Secretaries

9.33                 This clause is the equivalent of clause 11 of the Public Employment (Consequential and Transitional) Amendment Bill 199 7 [No.2] 9 and provides that references in legislation to formerly used terminology will be taken as references to the terminology established by this Bill with one exception. The exception is the Privacy Act 1988 and the purpose of the exception is to ensure that the Parliamentary Departments continue to be outside the jurisdiction of that Act .

Clause 81-References in statutory instruments to “officer” etc.

9.34                 This clause is the equivalent of clause 13 of the Public Employment (Consequential and Transitional) Amendment Bill 199 7 [No. 2] 9 and provides a generic interpretation provision. References in statutory instruments to certain generic terms will be taken to include references to the corresponding terms in this Bill.

Clause 82-Determinations

9.35                 This clause is the equivalent of clause 14 of the Public Employment (Consequential and Transitional) Amendment Bill 199 7 [No. 2] 9 and provides for the Presiding Officers, after consultation with the Commissioner, to make determinations in relation to matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to Part 9 of the Bill. The determinations may deal with a range of transitional matters.

Clause 83-Certain Acts continue to apply to Departments established and people appointed or engaged under this Act

9.36                 This clause provides that legislation that applied to the former Parliamentary Departments or staff employed in those departments will continue to apply to the corresponding new Departments and to people appointed or engaged under this Bill.



Part 10-Schedules

Clause 84-Schedule(s)

10.1     This clause is the “activating” clause for the amendments to be made by Schedule 1.

Schedule 1

Schedule 1 contains technical amendments of the Parliamentary Service (Consequential Amendments) Act 1997 which was passed by both Houses and assented to on 7 December 1997 but which has not yet commenced. The amendments in items 1 to 8 of Schedule 1, remove references to the Parliamentary Service Act 1997 and replace them with references to the Parliamentary Service Act 1999 . The amendment made by item 2 will enable the Parliamentary Service (Consequential Amendments) Act 1997 to commence at the time the Parliamentary Service Act 1999 commences.

Item 9 of Schedule 1 is also a technical amendment which updates a reference to an Act which has not yet been enacted (the Public Employment (Consequential and Transitional) Amendment Act 1999 ).