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Parliamentary Service Amendment Bill 2005
31-03-2014 12:22 PM
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Parliamentary Service Amendment Bill 2005
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PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
Parliamentary Service Amendment Bill 2005
(Circulated by authority of the President)
The Parliamentary Service Amendment Bill 2004 (the Bill) amends the Parliamentary Service Act 1999 (the PS Act) by providing for the creation of a statutory office of Parliamentary Librarian.
On 24 March 2004 the Presiding Officers of the Parliament announced their intention to introduce such a Bill.
This followed resolutions of the Senate and the House of Representatives in August 2003 to abolish the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff and the Joint House Department and replace them with a new Department of Parliamentary Services.
Among other things, those resolutions indicated that the Senate and House of Representatives supported the Presiding Officers in bringing forward amendments to the PS Act to provide for a statutory office of Parliamentary Librarian within the new joint service department and conferring on the Parliamentary Librarian direct reporting responsibilities to the Presiding Officers and to the Library Committee of both Houses of Parliament.
The Bill provides for the creation of a statutory office of Parliamentary Librarian, the qualifications required of its occupant, methods of appointment and termination, and the process for establishing remuneration for the office. The Bill also provides for a qualified person to act in the office of Parliamentary Librarian.
The Bill specifies the reporting requirements of the Parliamentary Librarian and requires the provision of resources to the Parliamentary Librarian for the performance of the Parliamentary Librarian’s functions.
The only financial impact of this Bill will be the remuneration and other costs arising from the appointment of a Parliamentary Librarian. These costs are estimated to be in the range of $0.2m—$0.3m, depending on advice received from the Remuneration Tribunal, and will be met out of the operating budget of the Department of Parliamentary Services.
Notes on Clauses
Clause 1, Short title
1 The Bill, when passed, will be known as the Parliamentary Service Amendment Act 2005.
Clause 2, Commencement
2 This Act commences on the day on which it receives Royal Assent.
Clause 3, Schedule(s)
3 This is the activating clause for the amendments shown in Schedules 1 and 2.
Schedule 1—Amendment of the Parliamentary Service Act 1999
Item 1 (Amendment of paragraph 3(c))
4 Section 3 of the Parliamentary Service Act 1999 (the PS Act) sets out the objects of that Act. This amendment includes defining the powers and responsibilities of the Parliamentary Librarian as one of those objects.
Item 2 (Amendment of section 7)
5 This amendment inserts a definition of joint Department. The joint Department is the department in which the Parliamentary Librarian will be located. Currently the Department of Parliamentary Services is the only joint Department in the Parliamentary Service, but this amendment ensures that the location of the Parliamentary Librarian after any reorganisation of the Parliamentary departments would be addressed without further amendment to the PS Act.
Item 3 (Amendment of section 7)
6 This item provides a definition of Library Committee. The new definition will cover both the current arrangements (involving two Library Committees that meet jointly) and any joint Library Committee created in the future.
Item 4 (Amendment of section 7)
7 This item provides a definition of Parliamentary Librarian.
Item 5 (Amendment of section 9)
8 Section 9 specifies the people who constitute the Australian Parliamentary Service. This amendment provides that the Parliamentary Librarian is part of the Australian Parliamentary Service.
9 This amendment is necessary because the Parliamentary Librarian is neither a Secretary nor a Parliamentary Service employee. The Parliamentary Librarian office is not created as a Parliamentary Service employee position because of the special appointment, termination, remuneration and other provisions that apply to the Parliamentary Librarian.
10 Section 14 of the PS Act will apply so that the Parliamentary Librarian is bound by the Code of Conduct. However section 14 will apply to the Parliamentary Librarian by virtue of an existing determination made under subsection 14(3), so no direct amendment of section 14 is necessary.
Item 6 (Insertion of a new section 17A)
11 This amendment provides that sections 16 (Protection for whistleblowers) and 17 (Prohibition on patronage and favouritism) protect the Parliamentary Librarian as if he or she were a Parliamentary Service employee.
Item 7 (Amendment of heading to Part 4)
12 This amendment repeals the heading and replaces it with Parliamentary Service employees and the Parliamentary Librarian, so as to include the Parliamentary Librarian in the heading.
Item 8 (Insertion of new sections 38A to 38I)
13 This amendment inserts new sections 38A to 38I, which provide for the creation of, and other arrangements for, the office of Parliamentary Librarian as set out below.
38A Parliamentary Librarian
14 This new section establishes the office of Parliamentary Librarian.
38B Functions of Parliamentary Librarian
15 This new section sets out the functions of the Parliamentary Librarian, which are:
(a) to provide high quality information, analysis and advice to Senators and Members of the House of Representatives in support of their parliamentary and representational roles; and
(b) to undertake such other responsibilities within the joint Department, consistent with the function set out in paragraph (a), as are conferred in writing on the Parliamentary Librarian by the Secretary of the joint Department with the approval of the Presiding Officers.
16 The purpose of paragraph (b) is to ensure that the Parliamentary Librarian is able to play a direct role in other activities of the joint Department that, while not being directly covered in paragraph (a), are relevant to the performance of the paragraph (a) function. For instance, given the increasing significance of information technology to the library services provided to the Parliament, it may be desirable for the Parliamentary Librarian to be able to take on a specific role in relation to aspects of the Department’s information technology functions.
17 The requirement in paragraph (b) that these extra functions can be conferred on the Parliamentary Librarian only with the approval of the Presiding Officers is intended to ensure that the Parliamentary Librarian cannot be overburdened with extra responsibilities to the detriment of his or her role in the direct provision of library services.
18 New subsection 38B(2) further provides that that the Parliamentary Librarian must perform the function set out in paragraph (1)(a):
(a) in a timely, impartial and confidential manner; and
(b) maintaining the highest standards of scholarship and integrity; and
(c) on the basis of equality of access for all Senators, Members of the House of Representatives, parliamentary committees and staff acting on behalf of Senators, Members or parliamentary committees; and
(d) having regard to the independence of Parliament from the Executive Government of the Commonwealth.
19 Paragraph (2)(d) is intended to protect the Parliamentary Librarian from direction by members of the Executive Government. It is not intended to limit the access of Ministers to the services available to Senators and Members from the Parliamentary Librarian.
38C Appointment of Parliamentary Librarian
20 New section 38C provides that the Presiding Officers will appoint the Parliamentary Librarian after receiving a report from the Secretary of the joint Department. The appointment will be for a period of five years.
21 Under this provision, the Secretary of the joint Department will have a significant role in the process of appointing the Parliamentary Librarian. This reflects the fact that the Parliamentary Librarian will operate within the Secretary’s department. However, the final appointment decision rests with the Presiding Officers. In particular, there is no requirement that the appointment made by the Presiding Officers accords with the Secretary’s report.
22 New subsection 38C(3) further provides that the Parliamentary Librarian must have either or both of the following:
(a) professional qualifications in librarianship or information management (however described);
(b) professional membership of a recognised professional association in the discipline of librarianship or information management (however described).
23 This provision ensures that the person appointed Parliamentary Librarian will be professionally qualified to perform that role.
24 The inclusion of “information management” in the description of appropriate qualifications reflects the fact that this is another commonly-used term for tertiary courses in what is also called librarianship. For instance, of the 26 currently-available tertiary courses recognised by the Australian Library and Information Association, 13 course names include the word “library” or “librarianship”, and 13 use the expression “information management” (some names include both expressions). There are also a few references to “information science”, “knowledge management” and “information studies” in those course names.
25 New subsection 38C(4) replicates the provisions in the PS Act (section 59) for the appointment of Secretaries and will ensure that appointments are not affected by defects or irregularities.
38D Termination of appointment of Parliamentary Librarian
26 New section 38D provides that the Parliamentary Librarian’s appointment can be terminated in writing at any time by the Presiding Officers.
27 However, the Presiding Officers cannot terminate the appointment unless they have received a report on the proposed termination by the Parliamentary Service Commissioner. This provision mirrors the termination provision for Secretaries of Parliamentary Departments other than the Clerks of the two Houses (section 61 of the PS Act).
28 This requirement contributes to protecting the Parliamentary Librarian’s independence within the joint Department, by ensuring that the Presiding Officers must have independent advice from the Parliamentary Service Commissioner before terminating the Parliamentary Librarian’s appointment.
38E Remuneration and other conditions of appointment
29 New section 38E provides that the remuneration and other conditions of employment of the Parliamentary Librarian will be determined by the Presiding Officers after they have taken advice from the Remuneration Tribunal into account.
30 This provision establishes a process for setting remuneration which is the same as that applying to the Secretaries of Parliamentary departments (section 63 of the PS Act).
31 New subsection 38E(3) further provides that the Presiding Officers’ determination must be:
(a) published in the Gazette within 14 days; and
(b) laid before the Senate and House of Representatives as soon as practicable;
after the determination is made.
38F Acting Parliamentary Librarian
32 New section 38F provides that the Presiding Officers may appoint a person to act in the office of Parliamentary Librarian:
(a) if there is a vacancy in the office, whether or not there has been an appointment previously made to the office; or
(b) during any period, or during all periods, when the Parliamentary Librarian is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.
33 This provision allows, but does not require, the Presiding Officers to appoint an Acting Parliamentary Librarian if there is no Parliamentary Librarian, or if the Parliamentary Librarian is unavailable. Unlike the provision relating to the appointment of the Parliamentary Librarian, this provision does not require the Presiding Officers to have received a report from the Secretary of the joint Department before they make an appointment.
34 New subsection 38F(2) further provides that a person appointed to act in the office of Parliamentary Librarian must have the same qualifications as those required for appointment as Parliamentary Librarian. This ensures that the requirement for the Parliamentary Librarian to have particular qualifications cannot be circumvented by appointing an Acting Parliamentary Librarian without the required qualifications.
35 Subsection 38F(3), which mirrors the provisions applicable to the appointment of an acting Secretary under the PS Act (section 64), provides that the appointment of an acting Parliamentary Librarian will not be affected merely because of certain things, including irregularities.
38G Resources for the Parliamentary Librarian
36 New section 38G provides that the Secretary of the joint Department must provide resources to the Parliamentary Librarian in accordance with an annual agreement which:
(a) must be made between the Secretary of the joint Department and the Parliamentary Librarian; and
(b) is approved by the Presiding Officers in writing after they have received advice on the contents of the agreement from the Library Committee.
37 This provision reflects the fact that the office of Parliamentary Librarian operates within the joint Department, and requires the Secretary of that department to provide necessary resources. It further provides that those resources are to be provided in accordance with an agreement between the Secretary of the joint Department and the Parliamentary Librarian.
38 New paragraph 38G(2)(b) requires that the agreement be approved by the Presiding Officers in writing after they have received a report on the agreement’s contents from the Library Committee. This provision gives the Library Committee a role in monitoring such an agreement and advising the Presiding Officers on that agreement.
39 The provision ensures that the Parliamentary Librarian, the Secretary of the joint Department, the Presiding Officers and the Library Committee all have a role in the development of the resource agreement. The provision is drafted to provide flexibility in the processes by which that involvement happens, recognising in particular the practical impact of the fact that Parliament sits in Canberra for less than half of each year, and that the Presiding Officers and the members of the Library Committee are not always readily available in Canberra.
40 For instance, the provision does not require any particular process in relation to consideration of draft agreements, and therefore need not deal with questions such as how closely the final agreement reflects the draft on which the Library Committee advised the Presiding Officers. However, the requirement that the Library Committee has advised on the contents of the agreement should ensure that the Library Committee will see a draft agreement that is similar to the final agreement.
41 The overall effect of new section 38G is that the agreement will operate only if the four main participants (the Parliamentary Librarian, the Secretary of the joint Department, and the two Presiding Officers) are all in agreement, regardless of the process by which they reach that agreement, or the order in which they indicate that agreement (see subsection 38G(3)).
38H Reporting to Library Committee
42 New section 38H provides that the Parliamentary Librarian must report to the Library Committee on the performance of his or her functions if requested by the Library Committee. However, such a report must be given to the Library Committee at least once each financial year even if the Library Committee does not ask for a report.
43 This provision will ensure that the Library Committee can get information about matters to do with the functions of the Parliamentary Librarian, and thereby underpins the Library Committee’s role in monitoring the performance of those functions.
44 The Parliamentary Librarian must also give an annual report to the Presiding Officers under new subsection 65(3) (see item 12). Taken together, these provisions reflect the reporting arrangements sought by the resolutions of the Senate and House of Representatives in August 2003.
45 If the Library Committee does not request any report from the Parliamentary Librarian in a year, the report to the Presiding Officers under section 65 of the PS Act could also be given to the Library Committee in satisfaction of this reporting requirement.
46 New section 38I provides that, for the purposes of sections 48A and 104A of the Copyright Act 1968 :
(a) the part of the joint Department that is headed by the Parliamentary Librarian and that provides library services is taken to be a library within the terms of sections 48A and 104A of the Copyright Act 1968 ;
(b) the Parliamentary Librarian is taken to be the officer in charge of that library; and
(c) a Parliamentary Service employee authorised by the Parliamentary Librarian to act on his or her behalf is taken to be an authorised officer of that library.
47 Sections 48A and 104A of the Copyright Act 1968 make special provision in relation to libraries that provide library services to members of Parliaments. For instance, section 48A specifies that copyright in a work is not infringed by certain things done by authorized officers of such libraries.
48 The effect of new section 38I is to preserve, without extension, the operation of the special provisions made by the Copyright Act 1968 in relation to library services to the federal Parliament.
Item 9 (Amendment of subsection 48(4) (definition of Parliamentary Service action )
49 Section 48 of the PS Act defines the Parliamentary Service Merit Protection Commissioner’s functions to include inquiring into a Parliamentary Service action, at the request of the Presiding Officers, and to report to the Presiding Officers on the results of that inquiry. This amendment to subsection 48(4) includes an action taken by the Parliamentary Librarian as a Parliamentary Service action for the purposes of the section.
Item 10 (Repeal and replacement of subsection 54(3))
50 Subsection 54(3) of the PS Act sets out the constituents of Parliamentary departments (namely, the Secretary and the Parliamentary Service employees assisting the Secretary). This description will become inadequate for the joint Department, because that Department is to include the Parliamentary Librarian, who is neither a Secretary nor a Parliamentary Service employee.
51 Accordingly, this subsection is to be repealed and replaced with a new subsection providing that the joint Department consists of the Secretary, the Parliamentary Librarian and the Parliamentary Service employees assisting the Secretary. Other Parliamentary departments will still consist of the Secretary and the Parliamentary Service employees assisting the Secretary.
Item 11 (Amendment of subsection 65(2))
52 This amendment will distinguish reports made under subsection 65(1) from the Parliamentary Librarian's report to be made under new subsection 65(3). The effect is that the Parliamentary Librarian's report will not need to be prepared in accordance with the guidelines approved by the Joint Committee of Public Accounts and Audit that apply to Secretaries’ annual reports.
53 This is because the matters covered by those guidelines will need to be dealt with, in relation to the Parliamentary Librarian’s operations, in the report prepared by the Secretary of the joint Department under paragraph 65(1)(c). The Parliamentary Librarian’s report will deal specifically with the performance of the Parliamentary Librarian’s statutory functions.
54 There will be nothing to stop the Parliamentary Librarian’s report including material of the kind covered by the Joint Committee guidelines if this seems appropriate to the Parliamentary Librarian, but this provision ensures that the Parliamentary Librarian is not required to duplicate the report required from the Secretary of the joint Department.
Item 12 (Insertion of new subsection 65(3))
55 This new subsection provides that the Parliamentary Librarian must give the Presiding Officers, after the end of each financial year, a report on the performance of the Parliamentary Librarian’s functions during the year. That report must be included in the annual report of the Secretary of the joint Department to the Presiding Officers. This provision reflects the fact that the office of Parliamentary Librarian operates within the Secretary’s department.
56 In conjunction with new section 38H, this provision reflects the reporting arrangements sought by the resolutions of the Senate and House of Representatives in August 2003.
Item 13 (Amendment of paragraph 67(1)(a))
57 Section 67 of the PS Act provides that the determinations made under the Act may provide for deductions from the salary of a Secretary or a Parliamentary Service employee to be made in order to satisfy a judgment debt. The amendment extends this provision to the Parliamentary Librarian.
Item 14 (Insertion of new subsection 70(1A))
58 Section 70 provides for delegations by Secretaries, and sub-delegations by Parliamentary Service employees to whom a Secretary has delegated powers or functions. It also provides for delegations to people who are not Parliamentary Service employees, but only with the written consent of the Parliamentary Service Commissioner.
59 New subsection (1A) provides that a Secretary may delegate powers or functions under the PS Act to the Parliamentary Librarian. Without this amendment, a Secretary could delegate to the Parliamentary Librarian only with the consent of the Parliamentary Service Commissioner.
Item 15 (Insertion of new subsection 70(3A))
60 Subsection 70(3) allows certain senior delegates of the Secretary who are Parliamentary Service employees to sub-delegate to other Parliamentary Service employees. Any sub-delegations must be subject to any directions given in relation to the original delegation.
61 New subsection 70(3A) enables the Parliamentary Librarian to sub-delegate to Parliamentary Service employees; such sub-delegations must also be subject to any directions given in relation to the original delegations.
Items 16 and 17 (Amendments of subsection 70(4))
62 Under subsection 70(4) of the PS Act, if powers or functions are sub-delegated by a Parliamentary Service employee to whom those powers or functions had been first delegated by the Secretary, those powers and functions are taken to have been exercised or performed by the Secretary. These amendments apply the same arrangements to powers or functions sub-delegated by the Parliamentary Librarian.
Items 18 and 19 (Amendments of subsection 81(1))
63 These amendments repeal paragraphs 81(1)(h), (i) and (j), which cover references in other Acts to the obsolete terms Department of the Parliamentary Library, Principal Parliamentary Reporter, Department of the Parliamentary Reporting Staff and the Joint House Department. Paragraph 81(1)(g) is amended to correct its punctuation as a result of the repeal of the other paragraphs.
64 These terms do not appear in any Acts currently in force. As well, paragraph (h), which refers to the Parliamentary Librarian, would become inappropriate after the creation of a new office of Parliamentary Librarian that is not the office of Secretary of the Department of the Parliamentary Library.
Item 20 (Amendments of paragraphs 82(a) and (b))
65 These amendments extend references to officers in other statutory instruments to cover the Parliamentary Librarian, along with Secretaries and Parliamentary Service employees.
Schedule 2—Amendment of other Acts
Long Service Leave (Commonwealth Employees) Act 1976
Item 1 (Repeal and replacement of subsection 9B(4))
66 Section 9B of the Long Service Leave (Commonwealth Employees) Act 1976 permits the Presiding Officers to delegate their powers under this Act to an “officer or employee of the Parliament”. Subsection 9B(4) defines this expression to mean the Clerks, the Secretaries of any other Parliamentary Departments, and Parliamentary Service employees. This amendment has the effect of adding the Parliamentary Librarian to the list of officials to whom the Presiding Officers can delegate their powers under that Act.
Remuneration Tribunal Act 1973
Item 2 (Amendment of subsection 5(2D))
67 Subsection 5(2D) of the Remuneration Tribunal Act 1973 provides that it is a function of the Remuneration Tribunal to provide advice about terms and conditions (including remuneration and allowances) of certain offices created under the PS Act. Those offices are the Parliamentary Service Commissioner, the Parliamentary Service Merit Protection Commissioner, and the Secretaries.
68 This item amends subsection 5(2D) to include the office of Parliamentary Librarian in the offices for which it is a function of the Tribunal to provide advice on terms and conditions of employment. New section 38E of the PS Act (see item 8 of Schedule 1 of the Bill) will require the Presiding Officers to seek the Tribunal’s advice before determining remuneration and other conditions for the Parliamentary Librarian.