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Parliamentary Service Amendment Bill 2013

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2010-2011-2012

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

THE SENATE

 

PARLIAMENTARY SERVICE AMENDMENT BILL 2012

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the President of the Senate, Senator the Hon John Hogg)



 

PARLIAMENTARY SERVICE AMENDMENT BILL 2012

OUTLINE

The Parliamentary Service Amendment Bill 2012 (the Bill) amends the Parliamentary Service Act 1999 (the Act) to reflect some proposed changes to the Public Service Act 1999 contained in the Public Service Amendment Bill 2012 (the PS Bill). The need for the PS Bill arises as a result of the reform agenda outlined in Ahead of the Game: Blueprint for the Reform of Australian Government Administration (the Blueprint), which made a number of recommendations for legislative change to further strengthen the framework for the Australian Public Service. The Bill reflects the PS Bill introduced into the Senate in August 2012, as far as it is relevant to the Parliamentary Service.

The Bill amends the Act to:

·          strengthen the Parliamentary Service Values and Parliamentary Service Code of Conduct (Code of Conduct) and establish Employment Principles for the Parliamentary Service;

·          add a statement about the role of the Parliamentary Service;

·          establish procedures for making, and dealing with, a whistleblower report in the Australian Parliamentary Service;

·          clarify when reviews of action may be undertaken by the Parliamentary Service Merit Protection Commissioner (the MPC);

·          amend the provisions relating to the Senior Executive Service to, among other things, revise the role of the Senior Executive Service in the Parliamentary Service;

·          expand the roles and responsibilities of a Secretary in the Parliamentary Service;

·          broaden the provisions for the use of " confidential information" by the Parliamentary Service Commissioner (the Commissioner) and the MPC, and provide protections for a Secretary or Parliamentary Service employee who provides information to the Commissioner or the MPC;

·          move the provisions relating to immunity from suit from delegated legislation to the Act;

·          amend relevant provisions to reflect the requirements of the Legislative Instruments Act 2003 ; and

·          make a number of miscellaneous amendments to update, clarify and strengthen existing provisions, and remove ambiguity.

The Bill also proposes amendments to provide for the following:

·          the Commissioner to undertake investigations into whistleblower reports after notifying the Presiding Officers;

·          the Commissioner to delegate his or her powers and functions in relation to inquiries into whistleblower reports in limited circumstances;

·          the MPC to delegate his or her powers to specified Parliamentary Service or Australian Public Service employees;

·          Presiding Officers' determinations to vary the scope or application of the Parliamentary Service Values and Parliamentary Service Employment Principles; and

·          the updating of references relating to acting appointments to statutory offices under the Act.

FINANCIAL IMPACT STATEMENT

The Bill has limited financial impact. The proposals contained within the Bill are either cost-neutral or are expected to be met from the existing resources of the parliamentary departments.

REGULATION IMPACT STATEMENT

No regulation impact statement is required for the measures contained in this Bill.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Parliamentary Service Amendment Bill 2012

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Objective of the Bill

The Parliamentary Service Amendment Bill 2012 (the Bill) amends the Parliamentary Service Act 1999 (the Act) to reflect some proposed changes to the Public Service Act 1999 contained in the Public Service Amendment Bill 2012 (the PS Bill). The need for the PS Bill arises as a result of the reform agenda outlined in Ahead of the Game: Blueprint for the Reform of Australian Government Administration (the Blueprint), which made a number of recommendations for legislative change to further strengthen the framework for the Australian Public Service. This Bill reflects the PS Bill introduced into the Senate in August 2012, as far as it is relevant to the Parliamentary Service.

The Bill therefore mirrors many of the proposed changes contained in the PS Bill and amends the Act to:

·          strengthen the Values and Code of Conduct and establish Employment Principles for the Parliamentary Service;

·          add a statement about the role of the Parliamentary Service;

·          establish procedures for making and dealing with a whistleblower report in the Australian Parliamentary Service;

·          clarify when reviews of action may be undertaken by the Parliamentary Service Merit Protection Commissioner (the MPC);

·          amend the provisions relating to the Senior Executive Service to, among other things, revise the role of the Senior Executive Service in the Parliamentary Service;

·          expand the roles and responsibilities of a Secretary in the Parliamentary Service;

·          broaden the provisions for the use of "confidential information" by the Parliamentary Service Commissioner (the Commissioner) and the MPC, and provide protections for a Secretary or Parliamentary Service employee who provides information to the Commissioner or the MPC;

·          move the provisions relating to immunity from suit from delegated legislation to the Act;

·          amend relevant provisions to reflect the requirements of the Legislative Instruments Act 2003 ; and

·          make a number of miscellaneous amendments to update, clarify and strengthen existing provisions, and remove ambiguity.

 

Human rights implications

The Bill engages the following human rights:

Prohibition on retrospective criminal laws

Article 15 of the International Covenant on Civil and Political Rights (ICCPR) provides that "no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence…at the time when it was committed".

Proposed subsection 15(2A) sets out the circumstances in which a person who is, or was, a Parliamentary Service employee is taken to have breached the Code of Conduct (under the procedures established by proposed subsection 15(3) or 48A(2)) if he or she knowingly provided false or misleading information, wilfully failed to disclose relevant information, or otherwise failed to behave honestly and with integrity, in connection with his or her engagement as a Parliamentary Service employee. When enacted, this provision will cover all current and former Parliamentary Service employees and will apply to conduct which is alleged to have occurred before or after the commencement time of the provision.

As a result of this, conduct that did not amount to a breach of the Code at the time of a person's engagement as a Parliamentary Service employee may, by operation of proposed subsection 15(2A), be taken to be a breach of the Code. Thus, under proposed subsection 15(3)(b), sanctions for a breach of the Code may be imposed on current Parliamentary Service employees (but not on former Parliamentary Service employees as proposed subsection 15(3)(b) does not apply to them).

The prohibition in Article 15 only applies to laws imposing criminal liability or punishments for criminal offences. It does not apply to non-criminal sanctions, such as financial penalties not resulting in a criminal conviction imposed by a court in a civil case. As proposed subsection 15(2A) does not impose criminal liability and the sanctions available are administrative (termination of employment, reduction in classification, re-assignment of duties, reduction in salary, deductions from salary (by way of fine) and reprimand), the provision does not strictly engage Article 15. However, noting that termination of employment and other available sanctions can be significant, further explanation of the rationale for the provision is warranted.

The retrospective element in proposed subsection 15(2A) is necessary in light of the serious nature of the proscribed conduct. It is imperative that Senators, Members and the public have confidence in the way Parliamentary Service employees carry out their duties, and the standards of conduct expected of a Parliamentary Service employee are high. Given this, it is appropriate that the provision operate retrospectively to apply to existing Parliamentary Service employees who may have acted dishonestly or without integrity. This provision is consistent with changes made to the framework for the Australian Public Service in the PS Bill.

It is also expected that Parliamentary Service employees would be aware of their responsibilities to behave with honesty and integrity in relation to their employment. For example, the long-standing and current Code of Conduct specifies that employees must behave honestly and with integrity in the course of their Parliamentary Service employment. It would be unfair to impose different obligations on different groups of Parliamentary Service employees.

Finally, the proposed provision is also consistent with existing elements of the Criminal Code Act 1995 which may apply to a person providing false or misleading statements to the Commonwealth (section 137.1). For these reasons it is considered that the application of proposed subsection 15(2A) to existing employees is reasonable, necessary and proportionate to achieving the legitimate objective of ensuring that Senators, Members and the public have confidence in the way Parliamentary Service employees carry out their duties.

Right to freedom of opinion and expression

Article 19 of the ICCPR provides for a right to freedom of expression, including the "freedom to seek, receive and impart information and ideas of all kinds". Part 6 of the Bill relates to "whistleblower reports"—that is, a report by a Parliamentary Service employee of a breach (or alleged breach) of the Code of Conduct. Proposed subsection 16(2) requires a Secretary to establish procedures for a Parliamentary Service employee to make a whistleblower report to the Secretary, or a person authorised by the Secretary to receive such reports, and for the Secretary to deal with any such reports. Proposed subsection 16(3) requires that the procedures established by the Secretary under proposed subsection 16(2) must comply with the basic procedural requirements (if any) prescribed by the Presiding Officers' determinations. Similar provisions in relation to whistleblower reports made to the Commissioner or MPC are provided in proposed subsection 16(5).

While these provisions provide a broad discretion to Secretaries (and to the Commissioner or MPC, if applicable) in relation to the procedures for making a whistleblower report, it is intended that any such procedures would comply with established procedures that would allow a Parliamentary Service employee to make a whistleblower report without fear. This is reinforced by existing section 16, "Protection for whistleblowers" (which will be retained as proposed subsection 16(1)), which provides that "a person performing functions in or for a Department must not victimise, or discriminate against, a Parliamentary Service employee because the employee has reported breaches (or alleged breaches) of the Code of Conduct".

The provisions relating to whistleblower reports in the Bill are intended to advance the right to freedom of opinion and expression by providing a formal mechanism and procedures for Parliamentary Service employees to report a breach (or an alleged breach) of the Code of Conduct.

Right to equality and non-discrimination

Article 2 of the ICCPR provides for the right to equality and non-discrimination. Article 2 requires signatories to respect and recognise an individual's rights regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The right to equality and non-discrimination is reflected in the new Parliamentary Service Value, "Respectful", which provides that the Parliamentary Service respects all people, including their rights and their heritage (proposed subsection 10(3)). The Parliamentary Service Employment Principles further provide that the Parliamentary Service is a career-based service that provides workplaces that are free from discrimination, patronage and favouritism (proposed paragraph 10A(1)(f)), recognises the diversity of the Australian community and fosters diversity in the workplace (proposed paragraph 10A(1)(g)).

All Parliamentary Service employees are required to uphold the Parliamentary Service Values and the Parliamentary Service Employment Principles; and department heads are required to uphold and promote these values and principles. These provisions promote and advance the right to equality and non-discrimination.

Privilege against self-incrimination

The privilege against self-incrimination is enshrined in Article 14(3)(g) of the ICCPR. Proposed subsections 65AC(3) and 65AD(3) specify that giving information or producing a document to the Commissioner or MPC is not admissible in evidence in proceedings against the person in certain circumstances, including where giving the information or producing the document might tend to incriminate the person or make the person liable to a penalty. The provisions are not intended to abrogate the privilege against self-incrimination (including in relation to the actual document given or produced).

Right to a fair trial and fair hearing rights

The right to a fair trial and fair hearing rights are protected in Article 14 of the ICCPR and are aimed at ensuring the proper administration of justice by upholding, among other things, the right to a fair hearing. This includes a reasonable opportunity for both parties to present their cases, including the presentation of evidence.

Proposed subsections 65AA(7), 65AB(7) and 65AB(8) provide that a person who is, or was, an "entrusted person" cannot be compelled in a court proceeding, or other type of hearing authorised by Commonwealth or State or Territory law, to disclose protected information that was obtained in connection with the performance of certain functions or duties under the Act or the Presiding Officers' determinations. These provisions therefore may, in very limited circumstances, constrain a litigant's ability to adduce relevant evidence in a matter before a court. However, it is considered that such instances would be very rare and that it is important to have a framework in place to protect the disclosure of this sensitive information.

Proposed section 70A sets out the circumstances in which the Commissioner or the MPC and those assisting them (or acting as their delegate or under their direction or authority) are immune from civil proceedings. This immunity applies to such persons in relation to anything done, or not done, in good faith by the person in the performance of functions or duties, or the exercise of powers, conferred by the provisions of the Act or a determination relating to the inquiry and review functions of the Commissioner or the MPC. This provision merely clarifies the law and does not in itself alter the jurisdiction of courts or tribunals.

Right to privacy

The prohibition on interference with privacy and attacks on reputation is contained in Article 17 of the ICCPR.

The Bill contains a strong framework for the protection of information obtained in connection with the performance of functions or the exercise of powers by the Commissioner or MPC. Specifically, proposed sections 65AA and 65AB protect information obtained by the Commissioner or the MPC in the course of one of their review or inquiry functions. There is a general prohibition on the disclosure or other use of this protected information.

Proposed subsections 65AA(4) and 65AB(4) authorise the disclosure of protected information by the Commissioner or MPC in a report prepared for purposes connected with the performance of their functions, or the exercise of their powers, if the relevant Commissioner is satisfied that the disclosure is necessary for the purpose of setting out the grounds for the conclusions and recommendations contained in the report. It is expected that these tests would be rigorously applied by the Commissioner and MPC and that these senior officers would only authorise the disclosure of protected where there was an appropriate need to do so.

Protected information that would enable an individual to be identified must not be disclosed unless the relevant Commissioner is satisfied that the disclosure is fair and reasonable in all the circumstances (proposed subsections 65AA(6) and 65AB(6)). These provisions are consistent with the right to privacy as protected information would only be disclosed where the Commissioner or MPC determines that the disclosure is fair and reasonable in all the circumstances. This is a high threshold to overcome for the disclosure of protected information. Proposed subsections 65AA(5) and 65AB(5) specify that the Commissioner or MPC must be satisfied that any disclosure of protected information is for a legitimate objective—that is, it is in the interests of a department or a person or is in the public interest. Noting the above, any disclosure of protected information under these provisions would occur only for compelling reasons and would be reasonable, necessary and proportionate to a legitimate objective.

Right to work and rights in work

The right to work is protected in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to just and favourable conditions of work is protected in Article 7 of the ICESCR.

The right to just and favourable work conditions is promoted through the proposed Parliamentary Service Employment Principles. One of the Parliamentary Service Employment Principles is that the Parliamentary Service is a career-based service that provides flexible, safe and rewarding workplaces where communication, consultation, cooperation and input from employees on matters that affect their workplace are valued (proposed paragraph 10A(1)(e)).

Conclusion

This Bill is compatible with human rights because the Bill promotes a number of human rights and, to the extent that the Bill limits human rights, it does so in a reasonable, necessary and proportionate way.

 

Senator the Hon John Hogg, President of the Senate



 

NOTES ON INDIVIDUAL CLAUSES

Clause 1: Short title

This clause provides that the Bill, when passed, may be cited as the Parliamentary Service Amendment Act 2012.

Clause 2: Commencement

This clause provides that the Bill will commence as follows:

(a)     sections 1 to 3, Part 12 and item 68 of Schedule 1, Part 13 of Schedule 2, and anything else not covered by the table in Clause 2, will commence on the day the Act receives the Royal Assent;

(b)    Parts 1 to 11 and items 69 to 92 of Schedule 1, and Parts 1 to 12 of Schedule 2 commence on the later of the start of the 28 th day after the Act receives Royal Assent and immediately after the commencement of Schedule 1 to the Public Service Amendment Act 2012 . However, these provisions will not commence at all if Schedule 1 to the Public Service Amendment Act 2012 does not commence.

Clause 3: Schedules

This clause provides that any Act specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in the Schedule. In addition, any other item in a Schedule to the Bill has effect according to its terms.



 

SCHEDULE 1—Amendment of the Parliamentary Service Act 1999

Part 1—Secretaries

Item 1—Section 57

This item repeals existing section 57 of the Act and replaces it with proposed section 57.

Proposed section 57 sets out the roles and responsibilities of Secretaries, so that these are better defined and clarify the service and performance expected of Secretaries. This proposal corresponds to a similar proposal in the PS Bill, which is based on Recommendation 4.2.1 of the Blueprint.

Proposed paragraphs 57(1)(a) and 57(1)(b) set out the roles of a Secretary of a Parliamentary Department, and provide that these include carrying out the position of principal adviser to the relevant Presiding Officer on matters relating to a Parliamentary Department, and providing leadership and stewardship within the relevant Parliamentary Department in partnership with other Secretaries across the Parliamentary Service.

Proposed paragraph 57(1)(c) provides that the Secretary of a Parliamentary Department also has any other role provided for by Presiding Officers' determinations. Proposed paragraph 57(1)(c) confirms that the roles of a Secretary of a Parliamentary Department are not exclusive, and may be added to, but not diminished by, Presiding Officers' determinations.

Proposed subsection 57(2) sets out the responsibilities of a Secretary of a Parliamentary Department. This expands the responsibilities of Secretaries in existing section 57 of the Act, and includes additional responsibilities that are aligned with similar proposals in the PS Bill. These additional responsibilities involve core management functions.

Proposed paragraphs 57(2)(a) to (g) set out the responsibilities of a Secretary, with proposed paragraph 57(2)(h) providing that other responsibilities may be prescribed by Presiding Officers' determinations.

Proposed subsection 57(3) confirms that nothing in proposed subsection 57(2) affects a Secretary's responsibilities under any other law. That is, there may be other laws that place a responsibility on a Secretary (for example, the Financial Management and Accountability Act 1997 ) and proposed subsection 57(2) does not affect those responsibilities.



 

Part 2—Senior Executive Service

Item 2—Subsection 35(2)

This item repeals subsection 35(2) of the Act, and replaces it with proposed subsections 35(2) and 35(3). Proposed subsections 35(2) and 35(3) expand the current definition of Senior Executive Service (SES) leadership responsibilities. Similar changes are proposed in the PS Bill in support of the objective of Recommendation 4.4 of the Blueprint.

Proposed subsection 35(2) provides that a function of a member of the SES in a Parliamentary Department is to provide strategic leadership of the highest quality that contributes to an effective and cohesive Parliamentary Service.

Proposed subsection 35(3) sets out the ways in which a member of the SES in a Parliamentary Department is to carry out the function set out in proposed subsection 35(2). In addition to possessing one or more of the capabilities in proposed paragraph 35(3)(a), an SES employee must also promote cooperation within and between Parliamentary Departments (which includes delivering outcomes across Departmental boundaries), and promote, by personal example and other means, the Parliamentary Service Values, the Parliamentary Service Employment Principles and compliance with the Code of Conduct.

Item 3—After subsection 37(1)

Section 30 of the Act provides that a Parliamentary Service employee may retire at any time, provided that he or she has reached the minimum retiring age. Section 37 of the Act provides a framework for an incentive to retire to be given to an SES employee of the Parliamentary Service. This item inserts proposed subsection 37(1A), which provides that a notice under subsection 37(1) may be given to an SES employee regardless of whether the employee has reached the minimum retirement age specified in the Act or Presiding Officers' determinations.

Item 4—Paragraph 37(2)(b)

This item replaces "compulsorily retired" in paragraph 37(2)(b) in the Act with "retired involuntarily". This amendment is to ensure consistency with terminology used in Commonwealth public sector superannuation legislation (for example, the Superannuation Act 1976 and the Superannuation Act 1990 ).



 

Part 3—The Parliamentary Service Commissioner and Merit Protection Commissioner

Item 5—At the end of subsection 40(1)

This item provides for additional functions for the Commissioner. Section 40 of the Act sets out what those functions are. Proposed paragraph 40(1)(c) provides a new function for the Commissioner to inquire into whistleblower reports. This function will be subject to determinations made for the purposes of section 16 of the Act, which sets out the protections for whistleblowers. Proposed paragraph 40(1)(d) provides that the functions of the Commissioner also include any other functions conferred on the Commissioner by the Act, Presiding Officers' determinations or any other law. Proposed paragraph 40(1)(e) confirms that the Commissioner's functions include doing anything incidental or conducive to the performance of any of his or her other functions.

Item 6—Subsection 40(2)

This item repeals subsection 40(2) of the Act and replaces it with proposed subsections 40(1A) and 40(2).

Proposed subsection 40(1A) requires the Commissioner to notify the Presiding Officers in writing before commencing an inquiry under paragraph 40(1)(c) (an inquiry carried out under paragraph 40(1)(c) relates to whistleblower reports).

Proposed subsection 40(2) provides that a report made by the Commissioner in the performance of his or her duties may include recommendations.

Item 7—Section 41

This item inserts into section 41 a reference to proposed paragraph 40(1)(c) and is consequential on item 5. It ensures that the Commissioner's inquiry powers apply for the purposes of conducting an inquiry into a whistleblower report.

Item 8—Before subsection 70(1)

This item inserts proposed subsections 70(1AA) and (1AB) into section 70.

Proposed subsection 70(1AA) provides that the Commissioner may delegate to a former senior official any of the Commissioner's powers or functions under paragraph 40(1)(c). Any delegation by the Commissioner under subsection 70(1AA) must be in writing.

Proposed subsection 70(1AB) provides that the MPC may delegate, in writing, to an APS employee made available by an Agency Head, or a Parliamentary Service employee made available by the Secretary of the employee's Department, any of the MPC's powers or functions under the Act. In practice, it is envisaged that such a delegation would be made to an experienced senior officer, who would be subject to the relevant Code of Conduct.



 

Item 9—At the end of section 70

This item adds new subsections 70(6), (7) and (8) to section 70 of the Act.

Proposed subsection 70(6) provides that a person, to whom the MPC has delegated powers or functions to under proposed section 70(1AB), is not subject to direction by any other person except the MPC in respect of the exercise of those delegated powers.

Proposed subsection 70(7) provides that a power or function exercised by an Australian Public Service employee under a delegation under proposed section 70(1AB) is taken to have been exercised in connection with Australian Public Service employment.

Proposed subsection 70(8) provides a definition of "former senior official", which is used in proposed subsection 70(1AA).

Part 4—Parliamentary Service Values and Employment Principles

The purpose of the proposed amendments in Part 4 is to revise the Parliamentary Service Values and introduce a set of Parliamentary Service Employment Principles. These amendments further strengthen the Parliamentary Service Values, and build on existing provisions in the Act. The proposed Parliamentary Service Employment Principles are intended to guide employment and workplace relationships in the Parliamentary Service.

Item 10—Section 7 (definition of "Parliamentary Service")

This item amends the definition of "Parliamentary Service" in section 7 (which contains definitions of key terms used throughout the Act). The amendment omits the existing cross-reference to "section 9" and substitutes a new reference to "subsection 9(1)".

Item 11—Section 7

This item inserts a new definition of "Parliamentary Service Employment Principles" into section 7 of the Act.

Item 12—Section 9 (heading)

This item repeals the heading to existing section 9 in the Act and substitutes a new heading to reflect amendments that provide for the constitution and role of the Australian Parliamentary Service.

Item 13—Section 9

This item inserts "(1)" into existing section 9 of the Act so that existing section 9 is converted into subsection 9(1). This is consequential on the amendment in item 14 below.

Item 14—At the end of section 9

This item adds a proposed subsection (2) at the end of existing section 9 of the Act.

Proposed subsection 9(2) sets out that the role of the Parliamentary Service is to provide professional support, advice and facilities to each House of the Parliament, to parliamentary committees and to Senators and Members of the House of Representatives. Proposed subsection 9(2) confirms that this role is carried out independently of the Executive Government of the Commonwealth.

Item 15—Section 10

This item repeals section 10 in the Act and substitutes proposed sections 10 and 10A.

Proposed section 10 sets out the Parliamentary Service Values and provides that the Parliamentary Service is committed to service, and is ethical, respectful, accountable and impartial.

Proposed subsection 10A(1) sets out the Parliamentary Service Employment Principles that will govern employment within the Parliamentary Service. Proposed subsection 10A(2) sets out, for the purposes of paragraph 10A(1)(c), the criteria for ensuring that decisions relating to engagement or promotion are based on merit (including that an assessment is made of candidates using a competitive selection process). The note to proposed section 10A confirms that the Presiding Officers' determinations may determine the scope or application of the Parliamentary Service Employment Principles.

Item 16—Section 11

This item repeals existing section 11 and replaces it with proposed sections 11 and 11A.

Proposed section 11 provides that the Commissioner may give advice to the Presiding Officers about the Parliamentary Service Values. The Commissioner may give advice, in writing, for the purpose of ensuring that the Parliamentary Service incorporates and upholds the Parliamentary Service Values and, if required, determining the scope or application of the Parliamentary Service Values.

Proposed subsection 11A(1) provides that the Presiding Officers may make determinations under section 71 of the Act in relation to the Parliamentary Service Values to ensure that the Parliamentary Service incorporates and upholds those Values, and to determine, where required, the scope or application of the Parliamentary Service Values.

Proposed subsection 11A(2) provides that the Presiding Officers must not make determinations under subsection 11A(1) unless the Commissioner has given advice to the Presiding Officers in accordance with section 11, and the Presiding Officers have had regard to that advice.

Proposed subsection 11A(3) confirms that, for the purposes of the Act, other than in making determinations in accordance with proposed subsection 11A(1), the Parliamentary Service Values have effect subject to any Presiding Officers' determinations made under proposed subsection 11A(1).

Proposed subsection 11A(4) provides that if the Presiding Officers make any determinations in relation to the Parliamentary Service Values in accordance with the section, then they must table a copy of the Commissioner's advice (provided to them in accordance with proposed paragraph 11A(2)(a)) in each House of Parliament.

Item 17—Section 12

This item repeals existing section 12 and replaces it with proposed section 12.

Proposed section 12 adopts the existing requirement for a Secretary of a Parliamentary Department to uphold and promote the Parliamentary Service Values and adds the requirement to uphold and promote the new Parliamentary Service Employment Principles.

Item 18—Sections 17 and 17A

This item repeals existing sections 17 and 17A in the Act. These sections are repealed as they are redundant in light of other amendments made by the Bill.

Section 17 currently prohibits patronage or favouritism. As this is now dealt with in the Parliamentary Service Employment Principles, the provision is redundant.

Section 17A currently deals with the application of sections 16 (whistleblowers) and 17 to the Parliamentary Librarian. Section 17A is now redundant because of proposed subsection 16(7) in item 37 and the repeal of section 17.

Item 19—Section 18

This item omits the reference to "Parliamentary Service Values" and substitutes "Parliamentary Service Employment Principles" in section 18, which requires a Secretary to establish a workplace diversity program.

Item 20—At the end of subsection 22(2)

This item adds a note at the end of existing subsection 22(2), which sets out the requirements for the engagement of a Parliamentary Service employee. The note points to proposed paragraph 10A(1)(b) (one of the new Parliamentary Service Employment Principles inserted by item 15), which provides that the usual basis for engagement is as an ongoing Parliamentary Service employee.

Item 21—Subsection 22(3)

This item repeals existing subsection 22(3), which provides that the usual basis for engagement of a person is as an ongoing Parliamentary Service employee. This is now dealt with by the Parliamentary Service Employment Principles (paragraph 10A(1)(b) inserted by item (15), so subsection 22(3) is redundant.



 

Part 5—Code of Conduct

Item 22—Section 7

This item inserts a new definition of "former Parliamentary Service employee" into existing section 7 of the Act.

Item 23—Subsections 13(1) to (4)

This item omits the words "the course of" in existing subsections 13(1) to (4) (which are the first four elements of the Code of Conduct), and replaces them with "connection with", so that they apply to all relevant conduct by a Parliamentary Service employee where there is a connection between that conduct and the employee's employment.

Item 24—Subsection 13(11)

This item repeals existing subsection 13(11) and substitutes it with proposed subsection 13(11). Proposed subsection 13(11) adopts the existing requirement for a Parliamentary Service employee to behave in a way that upholds the integrity and good reputation of the Parliamentary Service and the Parliamentary Service Values, and adds the requirement to uphold the new Parliamentary Service Employment Principles and the integrity and good reputation of his or her Department.

Item 25—Section 14 (heading)

This item repeals the heading to existing section 14, and substitutes a new heading to better describe section 14, once amended as set out in item 26 below.

Item 26—Subsection 14(2)

This item repeals existing subsection 14(2) and substitutes proposed subsections 14(2) and (2A) (including a note to proposed subsection 14(2A)).

Proposed subsection 14(2) provides that statutory officer holders (for example, the Parliamentary Librarian) are bound by the Code of Conduct, subject to any Presiding Officers' determinations made under proposed subsection 14(2A). The proposed note to proposed subsection 14(2A) confirms that, in line with subsection 33(3A) of the Acts Interpretation Act 1901 , the Presiding Officers' determinations may make provision with respect to different statutory office holders or different classes of statutory office holders.

Item 27—Before subsection 15(1)

This item inserts a new subsection heading for existing subsection 15(1), "Sanctions that may be imposed". This is consistent with the proposed amendment to existing section 15 in item 30, which also introduces subsection headings.



 

Item 28—Subsection 15(1)

This item inserts into existing subsection 15(1) the words "of this section or subsection 48A(2)" after the words "subsection (3)".

Under proposed paragraph 48(1)(ca) (to be inserted by item 32), the MPC may inquire into breaches of the Code of Conduct in accordance with procedures determined under proposed subsection 48A(2) (to be inserted by item 33). The amendment proposed by this item will allow a Secretary to impose sanctions on an employee found, following an inquiry in accordance with proposed section 48A, to have breached the Code of Conduct.

Item 29—At the end of subsection 15(1)

This item adds a note at the end of existing subsection 15(1). Even though termination of employment may be imposed as a sanction under subsection 15(1), the note refers to other relevant rules about termination of employment in sections 29 and 38 of the Act.

Item 30—Subsections 15(3), (4) and (5)

This item repeals existing subsections 15(3), (4) and (5) and substitutes proposed subsections 15(2A), (3), (4), (5), (6), (7) and (8).

Proposed subsection 15(2A) sets out the circumstances in which a person who is, or was, a Parliamentary Service employee is taken to have breached the Code of Conduct (under the procedures established by proposed subsection 15(3) or 48A(2)) if he or she knowingly provided false or misleading information, wilfully failed to disclose relevant information or otherwise failed to behave honestly and with integrity in connection with his or her engagement as a Parliamentary Service employee.

When enacted, this provision will cover all current and former Parliamentary Service employees and will apply to conduct which is alleged to have occurred before or after the commencement time of the provision. This element of retrospectivity is necessary in light of the serious nature of the proscribed conduct. It is imperative that Senators, Members and the public have confidence in the way Parliamentary Service employees carry out their duties, and the standards of conduct expected of a Parliamentary Service employee are correspondingly high.

Given this, it is appropriate that this provision operate to apply to existing Parliamentary Service employees who may have acted dishonestly or without integrity during the employment process. Noting the current and long-standing standards required of a Parliamentary Service employee (see section 10 and section 13 of the Act), it would be anomalous to protect current employees of the Parliamentary Service who had attained their employment through dishonesty from action under the Code of Conduct. Further, this provision is consistent with section 137.1 of the Criminal Code Act 1995 , which provides that it is an offence for a person to provide false or misleading statements to the Commonwealth. It would seem incongruous for an employee to be able to be found guilty of a criminal offence for providing false or misleading information during his or her recruitment process, but for the head of a parliamentary department to be unable to take action for the same reason under the Code of Conduct. In practice, it is likely that the proposed provision will affect only a limited number of employees, and it is consistent with changes made to the framework for the Australian Public Service in the PS Bill.

The processes for determining whether an employee has breached the Code of Conduct are detailed below, and it is a legislative requirement that these processes have due regard to procedural fairness (see below).

Proposed subsections 15(3), (4), (5), (6), (7) and (8) prescribe the procedures that a Secretary of a Parliamentary Department must establish and follow when undertaking inquiries into whether a current or former Parliamentary Service employee has breached the Code of Conduct.

Proposed subsection 15(3) provides that a Secretary must establish written procedures to determine whether a current or former Parliamentary Service employee has breached the Code of Conduct, and to determine the sanction (if any) that is to be imposed on a Parliamentary Service employee if he or she is found to have breached the Code of Conduct. Proposed subsection 15(4) provides that these written procedures must comply with the procedural requirements prescribed by the Commissioner and must have due regard to procedural fairness.

Proposed subsection 15(5) provides that, in addition to the requirements of proposed subsection 15(4), the procedures under proposed subsection 15(3) may be different for current or former Parliamentary Service employees.

Proposed subsection 15(6) requires the Commissioner to issue, by legislative instrument, directions for the purpose of proposed paragraph 15(4)(a).

Proposed subsection 15(7) requires the Secretary to make publicly available the written procedures established under proposed subsection 15(3). This requirement is inserted to ensure transparency and accountability when investigating alleged breaches of the Code of Conduct.

Proposed subsection 15(8) provides that the written procedures established under proposed subsection 15(3) are not legislative instruments for the purposes of the Legislative Instruments Act 2003 .

Item 31—Subsection 20(4)

This item inserts the words "section 15 or 16 or" after the word "under".

This amendment ensures that a Secretary of a Parliamentary Department is not subject to direction by the Presiding Officers in relation to investigations of alleged breaches of the Code of Conduct or investigations relating to whistleblowing.



 

Item 32—After paragraph 48(1)(c)

This item adds a proposed paragraph 48(1)(ca) to existing subsection 48(1) to provide an additional function for the MPC to inquire into and determine, in accordance with proposed section 48A to be inserted by item 33, whether a current or former Parliamentary Service employee has breached the Code of Conduct.

Item 33—After section 48

This item inserts proposed section 48A into the Act.

Proposed paragraph 48(1)(ca) (to be inserted by item 32) provides a new function for the MPC to inquire into and determine whether there has been a breach of the Code of Conduct by a current or former Parliamentary Service employee.

However, under proposed subsection 48A(1), the MPC may exercise this power only if the Secretary of a Parliamentary Department has requested the MPC to do so, the MPC considers that it would be appropriate to do so and the written consent of the relevant current or former Parliamentary Service employee is provided. The note to proposed subsection 48A(1) confirms that any finding by the MPC under section 48A is reviewable under the Administrative Decisions (Judicial Review) Act 1977.

Proposed subsections 48A(2), 48A(3) and 48A(4) set out the procedures to be established and followed by the MPC when undertaking an inquiry. They are consistent with proposed sections 15(3) to (8) (to be inserted by item 30), which will apply when undertaking inquiries under section 15 to determine whether there has been a breach of the Code of Conduct.

Proposed subsection 48A(2) provides that the MPC must establish written procedures for inquiring into and determining whether there has been a breach of the Code of Conduct. These procedures must comply with the basic procedural requirements prescribed by the Presiding Officers' determinations and must have due regard to procedural fairness.

Proposed subsection 48A(3) provides that, in addition to the requirements of proposed subsection 48A(2), the procedures to be followed may be different for current or former Parliamentary Service employees.

Proposed subsection 48A(4) provides that the MPC must ensure that the procedures established under proposed subsection 48A(2) are publicly available.

Proposed subsection 48A(5) provides that the procedures established under proposed subsection 48A(2) are not legislative instruments for the purposes of the Legislative Instruments Act 2003.

Proposed subsection 48A(6) provides that the MPC may, when conducting an inquiry into a suspected breach of the Code of Conduct, exercise the same powers that a Secretary may exercise in determining whether a current or former Parliamentary Service employee has breached the Code of Conduct.



 

Proposed subsection 48A(7) requires the MPC to report to the requesting Secretary on the results of an inquiry and determination conducted under the section. The note to this proposed subsection advises that if the MPC finds that a Parliamentary Service employee has breached the Code of Conduct, then the relevant Secretary may impose a sanction on the employee under subsection 15(1) of the Act.

Part 6—Whistleblower reports

Item 34—Section 16 (heading)

This item repeals the current heading of section 16 of the Act ("Protection for whistleblowers") and replaces it with "Whistleblower reports". This amendment is consequential on amendments made in items 35, 36 and 37.

Item 35—Section 16 (after the heading)

This item inserts a new subsection heading into existing section 16: "Protection for whistleblowers".

Item 36—Section 16

This item numbers the existing section 16 in the Act as subsection "(1)" as a consequence of the amendment in item 37 below, which adds new subsections (2) to (7) at the end of existing section 16.

Item 37—At the end of section 16

This item adds proposed subsections (2), (3), (4), (5), (6) and (7) at the end of existing section 16. These subsections provide for new procedures about whistleblower reports made by Parliamentary Service employees to a Secretary or, if the Presiding Officers' determinations so provide, to the Commissioner or the MPC.

Proposed subsection 16(2) requires a Secretary to establish procedures for a Parliamentary Service employee to make a report of a breach or an alleged breach of the Code of Conduct to the Secretary, or a person authorised by the Secretary to receive such reports, and for the Secretary to deal with any such reports.

Proposed subsection 16(3) requires the procedures established by the Secretary under proposed subsection 16(2) to comply with the basic procedural requirements (if any) prescribed by the Presiding Officers' determinations.

Proposed subsection 16(4) provides that the procedures established under proposed subsection 16(2) are not legislative instruments for the purposes of the Legislative Instruments Act 2003 .

Proposed paragraph 16(5)(a) provides that Presiding Officers' determinations may prescribe procedures for a Parliamentary Service employee to make a report (a whistleblower report) of a breach or an alleged breach of the Code of Conduct to the Commissioner or the MPC, or to a person authorised by either the Commissioner or MPC to receive such reports.

Proposed paragraph 16(5)(b) provides that Presiding Officers' determinations may prescribe basic procedural requirements that the Commissioner and the MPC must comply with when dealing with a whistleblower report.

Proposed subsection 16(6) provides that the Presiding Officers' determinations may also prescribe circumstances in which the Commissioner, the MPC or a Secretary may decline to conduct or may discontinue an inquiry into a whistleblower report.

Proposed subsection 16(7) confirms that section 16 applies to the Parliamentary Librarian as if he or she were a Parliamentary Service employee. This has the same effect as existing section 17A, which is repealed by item 18.

Item 38—Paragraph 48(1)(a)

This item repeals existing paragraph 48(1)(a) of the Act (which confers a function on the MPC about inquiring into whistleblower reports) and substitutes a new paragraph 48(1)(a) that is consistent with the amendments to section 16 proposed by item 37.

Proposed paragraph 48(1)(a) provides that it is a function of the MPC to inquire into whistleblower reports made to the MPC or to a person authorised by the MPC under section 16, but subject to any Presiding Officers' determinations made for the purpose of section 16 (for example, prescribing basic procedural requirements for dealing with a whistleblower report or declining to conduct an inquiry).

Item 39—Subsection 48(2)

This item inserts into subsection 48(2) a reference to paragraph 48(1)(a) and is consequential on item 38. It ensures that the MPC's inquiry powers apply for the purposes of conducting an inquiry into a whistleblower report under proposed paragraph 48(1)(a), as well as an inquiry conducted under paragraph 48(1)(c).



 

Part 7—Review of actions

Item 40—Paragraph 33(4)(d)

This item repeals existing paragraph 33(4)(d) and substitutes proposed paragraph 33(4)(d). The purpose of the amendment is to allow the MPC to conduct a review of a Parliamentary Service action following an application or a referral made to the MPC in accordance with the Presiding Officers' determinations. Currently only a person nominated by the MPC or a three member committee may conduct such a review.



 

Part 8—Non-ongoing Parliamentary Service employees

Item 41—Subsection 22(4)

This item enables the determinations to "prescribe" rather than "limit" the circumstances in which persons may be engaged under paragraphs 22(2)(b) or (c).

Item 42—Subsection 29(4)

This item amends subsection 29(4) to enable the determinations to prescribe grounds (rather than grounds or procedures) for the termination of the employment (rather than the termination of the engagement) of non-ongoing employees.

Item 43—Subsection 29(5)

This item updates the wording of subsection 29(5) to be consistent with wording used elsewhere in the Act.



 

Part 9—Confidentiality of information

Item 44—After Part 7

This item inserts a proposed Part 7A, which provides for the protection of information relating to the Commissioner's functions and the MPC's functions.

For the purposes of proposed section 65AA, proposed subsection 65AA(1) defines the terms "entrusted person" (the Commissioner or a person acting on behalf of or assisting the Commissioner) and "protected information" (information obtained by an entrusted person in connection with the performance of his or her functions or duties, or the exercise of his or her powers in particular circumstances).

Proposed subsection 65AA(2) sets out a general prohibition on the disclosure or use of protected information by an entrusted person, except in authorised circumstances. The note to this subsection refers to section 70 of the Crimes Act 1914 , which places particular prohibitions on current, and former, Commonwealth officers with respect to information gained in the course of Commonwealth employment.

Proposed subsection 65AA(3) provides that an entrusted person may make a record of, disclose or otherwise use protected information for the purposes of or in connection with the performance of his or her duties or functions, or in exercising his or her powers under the Act or Presiding Officers' determinations.

Proposed subsections 65AA(4), (5) and (6) set out the circumstances in which the Commissioner may disclose protected information.

Proposed subsection 65AA(4) provides that the Commissioner may disclose protected information in a report prepared for purposes connected with the performance of the Commissioner's functions, or the exercise of the Commissioner's powers under the Act or Presiding Officers' determinations, where the Commissioner is satisfied that the disclosure is necessary for setting out the grounds for the report's conclusions and recommendations. The proposed subsection is intended to authorise disclosure of protected information within the report itself, rather than permit the wider disclosure, in other fora, of protected information contained in a report.

Proposed subsection 65AA(5) provides that, subject to the provisions of proposed subsection 65AA(6), the Commissioner may disclose protected information where the Commissioner is satisfied that the disclosure is in the interests of a Parliamentary Department or person, or is in the public interest. The Commissioner must also be satisfied that the disclosure is not likely to interfere with a review or inquiry under the Act or the Presiding Officers' determinations.

Proposed subsection 65AA(6) provides that the Commissioner must not, when making a disclosure under proposed subsection 65AA(5), disclose information that would enable an individual to be identified unless the Commissioner is satisfied that the disclosure is fair and reasonable in all the circumstances.



 

Proposed subsection 65AA(7) provides that a person who is or was an entrusted person cannot be compelled in a court proceeding, or other type of hearing authorised by Commonwealth or State or Territory law, to disclose protected information that was obtained in connection with the performance of his or her functions or duties under the Act or the Presiding Officers' determinations.

Proposed subsection 65AB(1) defines, for the purposes of the section, the terms "entrusted person" (which, among others, includes the MPC, a member of staff assisting the MPC or a person acting under the direction or authority of the MPC), "prescribed entrusted person" (an entrusted person prescribed by Presiding Officers' determinations) and "protected information" (information obtained by an entrusted person in connection with the performance of his or her functions, or the exercise of his or her powers, under the Act or Presiding Officers' determinations).

Proposed subsection 65AB(2) sets out a general prohibition on the disclosure or use of protected information by an entrusted person, except in authorised circumstances. The note to this section refers to section 70 of the Crimes Act 1914 , which places particular prohibitions on current and former Commonwealth officers with respect to information gained in the course of Commonwealth employment.

Proposed subsection 65AB(3) provides that an entrusted person may make a record of, disclose or otherwise use protected information if it is required for the purposes of or in connection with the performance of his or her duties or functions, or the exercise of his or her powers under the Act or Presiding Officers' determinations.

Proposed subsections 65AB(4), (5) and (6) set out the circumstances in which the MPC may disclose protected information.

Proposed subsection 65AB(4) provides that the MPC may disclose protected information in a report prepared for purposes connected with the performance of the MPC's functions, or the exercise of the MPC's powers under the Act or Presiding Officers' determinations, where the MPC is satisfied that the disclosure is necessary for setting out the grounds for the report's conclusions and recommendations. The proposed subsection is intended to authorise disclosure of protected information within the report itself, rather than permit the wider disclosure, in other fora, of protected information that is contained in a report.

Proposed subsection 65AB(5) provides that, subject to the provisions of proposed subsection 65AB(6), the MPC may disclose protected information if that disclosure is in the interests of a Parliamentary Department or a person, or is in the public interest. The MPC must also be satisfied that the disclosure is not likely to interfere with a review or inquiry under the Act or Presiding Officers' determinations.

Proposed subsection 65AB(6) provides that the MPC must not, when making a disclosure under proposed subsection 65AA(5), disclose information that would enable an individual to be identified unless the MPC is satisfied that the disclosure is fair and reasonable in all the circumstances.

Proposed subsection 65AB(7) provides that a person who is or was an entrusted person (other than a prescribed entrusted person) cannot, in a court proceeding or other type of hearing authorised by Commonwealth or State or Territory law, be compelled to disclose protected information obtained in the conduct of any of the MPC's review or inquiry functions, or in connection with the performance of any other functions or duties under the Act or Presiding Officers' determinations.

Proposed subsection 65AB(8) provides that a person who is or was a prescribed entrusted person cannot, in a court proceeding or other type of hearing authorised by Commonwealth or State or Territory law, be compelled to disclose protected information obtained in connection with the performance of his or her functions or duties under the Act or Presiding Officers' determinations.

Proposed section 65AC has a similar intent to section 8 of the Ombudsman Act 1976 and aims to protect Parliamentary Service employees who provide information to the Commissioner to assist in the performance of certain of the Commissioner's functions.

Proposed subsections 65AC(1) and (2) provide that the protections in this section may apply in two different circumstances. The first is when the Commissioner requests a person to give information or produce a document, the person has that information or document lawfully and provides it to the Commissioner. The second is where a person reasonably believes that the information or document is relevant to particular review or inquiry functions of the Commissioner, and the person obtained that information or document lawfully and provides that information or document to the Commissioner.

Proposed subsection 65AC(3) provides that giving information or producing a document to the Commissioner is not admissible in evidence in proceedings against the person in certain circumstances. If, by giving the information or producing the document, the person contravenes a law, incriminates himself or herself, discloses particular legal advice, breaches legal professional privilege or otherwise acts contrary to the public interest, then giving the information or producing the document is not admissible in evidence against the person, except in proceedings for an offence against sections 137.1, 137.2 or 149.1 of the Criminal Code Act 1995 (which relate to the provision of false or misleading documents or the obstruction of Commonwealth public officials). Essentially, this means that this provision is not intended to abrogate the privilege against self-incrimination.

Proposed subsection 65AC(4) provides that a person is not liable to a penalty under any other law for providing the information or producing the document to the Commissioner.

Proposed subsection 65AC(5) provides that the giving of information, or production of a document to the Commissioner which includes a disclosure of personal information, constitutes an "authorised disclosure" for the purposes of the Privacy Act 1988 .

Proposed subsection 65AC(6) provides that proposed subsection 65AC(3) does not otherwise prevent a claim of legal professional privilege being made by a person in relation to the information or document.

Proposed section 65AD has a similar intent to section 8 of the Ombudsman Act 1976 and aims to protect Parliamentary Service employees who provide information to the MPC to assist in the performance of the MPC's functions.

Proposed subsections 65AD(1) and (2) provide that the protections in this section may apply in two different circumstances. The first is when the MPC requests a person to give information or produce a document, the person has that information or document lawfully and provides it to the MPC. The second is where a person reasonably believes that the information or document is relevant to particular review or inquiry functions of the MPC, and the person obtained that information or document lawfully and provides that information or document to the MPC.

Proposed subsection 65AD(3) provides that giving information or producing a document to the MPC is not admissible in evidence in proceedings against the person in certain circumstances. If, by giving the information or producing the document, the person contravenes a law, incriminates himself or herself, discloses particular legal advice, breaches legal professional privilege or otherwise acts contrary to the public interest, then giving the information or producing the document is not admissible in evidence against the person, except in proceedings for an offence against sections 137.1, 137.2 or 149.1 of the Criminal Code Act 1995 (which relate to the provision of false or misleading documents or the obstruction of Commonwealth public officials). Essentially, this means that this provision is not intended to abrogate the privilege against self-incrimination.

Proposed subsection 65AD(4) provides that a person is not liable to a penalty under any other law for providing the information or producing the document to the MPC.

Proposed subsection 65AD(5) provides that the giving of information, or production of a document, to the MPC which includes a disclosure of personal information constitutes an "authorised disclosure" for the purposes of the Privacy Act 1988.

Proposed subsection 65AD(6) provides that proposed subsection 65AC(3) does not otherwise prevent a claim of legal professional privilege being made by a person in relation to the information or document.

Proposed subsection 65AE provides that the Presiding Officers' determinations may specify the circumstances in which personal information may be used or disclosed, including the imposition of restrictions on how personal information may be collected, used or stored. "Personal information" in this section has the same meaning as in the Privacy Act 1988 .

While recognising that the use and disclosure of personal information is a serious issue, it is considered appropriate for the framework that the handling of personal information be set out in delegated legislation. This is because it is difficult, given the complexity of workplace issues, to predict every situation in which it may be necessary or desirable to use the personal information of an employee. Setting out the framework in delegated legislation will ensure that it can be amended more quickly and flexibly in response to changing circumstances than if it were contained in the Act. Importantly, the determinations will remain subject to the usual Parliamentary oversight mechanism of the disallowance process set out in the Legislative Instruments Act 2003 (see section 71(6) of that Act). This approach is consistent with that taken in the PS Bill.

Item 45—Section 68

This item repeals section 68 of the Act (which relates to the disclosure of personal information) and is consequential on item 44. Section 68 is redundant as such matters are now covered by proposed section 65AE (to be inserted by item 44).



 

Part 10—Immunity from suit

Item 46—After section 70

This item inserts proposed section 70A, which sets out the circumstances in which the Commissioner and the MPC and those assisting them (or acting as the Commissioner's delegate or acting under the Commissioner's or the MPC's direction or authority) are immune from civil proceedings. This immunity applies to such persons in relation to anything done, or not done, in good faith.

The immunity covers things done (or not done) in connection with, or purportedly done in connection with, relevant provisions of the Act and Presiding Officers' determinations.

For the Commissioner (and those assisting as above), the relevant provisions are those under which the Commissioner conducts inquiries and exercises powers and duties, either under the Act or as prescribed by the Presiding Officers' determinations.

For the MPC (and those assisting as above), the relevant provisions are those under which the MPC exercises powers and duties, either under the Act or as prescribed by the Presiding Officers' determinations.



 

Part 11—Legislative instruments

Item 47—Before section 12

Proposed section 11B sets out the Commissioner's function to provide advice about employment matters to the Presiding Officers.

Proposed subsection 11B(1) provides that the Commissioner may give advice in writing to the Presiding Officers about employment matters relating to Parliamentary Service employees, including SES employees. This proposed subsection incorporates the current requirement under section 36 of the Act for the Commissioner to issue guidelines about employment matters in relation to SES employees (see item 54).

Proposed subsection 11B(2) provides that the Commissioner may give advice in writing to the Presiding Officers in relation to any of the Parliamentary Service Employment Principles for the purposes of ensuring that the Parliamentary Service incorporates and upholds the Parliamentary Service Employment Principles, and determining the scope and application of the Parliamentary Service Employment Principles (where necessary).

Proposed section 11C sets out the Presiding Officers' power to make determinations about employment matters.

Proposed subsection 11C(1) provides that the Presiding Officers may make determinations (under section 71 of the Act) about employment matters relating to Parliamentary Service employees, including the matters referred to in proposed subsection 11B(1).

Proposed subsection 11C(2) provides that the Presiding Officers may make determinations (under section 71 of the Act) in relation to any of the Parliamentary Service Employment Principles for the purposes of ensuring that the Parliamentary Service incorporates and upholds the Parliamentary Service Employment Principles, and determining the scope or application of the Parliamentary Service Employment Principles (where necessary).

Proposed subsection 11C(3) provides that the Presiding Officers must not make a determination for the purposes of proposed subsection 11C(2) in relation to a Parliamentary Service Employment Principle unless the Commissioner has given advice to the Presiding Officers in relation to the Parliamentary Service Employment Principles, and the Presiding Officers have had regard to that advice in making the determination.

Proposed subsection 11C(4) provides that the Parliamentary Service Employment Principles have effect subject to any restrictions in Presiding Officers' determinations made for the purposes of proposed subsection 11C(2).

Proposed subsection 11C(5) provides that the Commissioner's advice referred to in paragraph 11C(3)(a) must be tabled in each House of Parliament, where the Presiding Officers make a determination in relation to any of the Parliamentary Service Employment Principles in accordance with this section.



 

Item 48—Subsection 20(3)

This item deletes the unnecessary words "Parliamentary Service" before "Commissioner" in existing subsection 20(3). "Commissioner" is defined for the Act in section 7 to mean the Parliamentary Service Commissioner.

Item 49—Subsections 20(5) and (6)

This item repeals subsections 20(5) and (6) of the Act and replaces them with proposed subsection 20(5). Proposed subsection 20(5) provides that directions under section 20 are legislative instruments. The note to proposed subsection 20(5) indicates that, under the Legislative Instruments Act 2003 (the LIA), neither the disallowance provisions (see item 29 of the table in subsection 44(2) of the LIA) nor the sunsetting provisions (see item 29 of the table in subsection 54(2) of the LIA) apply to these directions. Existing subsections 20(5) and (6) pre-date the enactment of the LIA and are now redundant.

Item 50—Subsection 23(1)

This item amends subsection 23(1) to provide that Classification Rules made under that subsection are legislative instruments. Existing subsection 23(1) pre-dates the enactment of the LIA and the previous gazettal requirement is now taken to be satisfied once the instrument is registered under the LIA (see section 56 of the LIA).

Item 51—At the end of subsection 23(1)

This item adds a note at the end of subsection 23(1) to indicate that Classification Rules made under that subsection are not subject under the LIA to disallowance (see item 30 of the table in subsection 44(2) of the LIA) or sunsetting (see item 30 of the table in subsection 54(2) of the LIA). This note merely clarifies the existing law and provides a helpful cross-reference to the relevant provisions of the LIA so that it is clear to those reading this provision that the Classification Rules are not subject to disallowance or sunsetting.

Item 52—Subsection 24(3)

This item amends subsection 24(3) to provide that determinations made under that subsection by the Presiding Officers are legislative instruments. Existing subsection 24(3) pre-dates the enactment of the LIA and the previous gazettal requirement is now taken to be satisfied once the instrument is registered under the LIA (see section 56 of the LIA).

Item 53—At the end of subsection 24(3)

This item adds a note at the end of subsection 24(3) to indicate that instruments made under that subsection are not subject under the LIA to disallowance (see item 30 of the table in subsection 44(2) of the LIA) or sunsetting (see item 30 of the table in subsection 54(2) of the LIA). Again, this note merely clarifies the existing law and provides a helpful cross-reference to the relevant provisions of the LIA so that it is clear to those reading this provision that these instruments are not subject to disallowance or sunsetting.



 

Item 54—Section 36

This item repeals section 36. This section is redundant because the power for the Commissioner to issue guidelines about employment matters relating to SES employees will now be covered by the power for the Commissioner to give advice to the Presiding Officers about employment matters relating to Parliamentary Service employees (which include SES employees) and the power for the Presiding Officers to make determinations about employment matters relating to Parliamentary Service employees.

Item 55—Paragraph 38(a)

This item omits the reference in paragraph 38(a) to "Commissioner's guidelines under section 36" and substitutes a reference to "determinations made for the purposes of subsection 11C(1)". This amendment is consequential on the repeal of section 36 by item 54 and the insertion of proposed section 11C by item 47. It ensures that paragraph 38(a) will continue to refer to the correct instrument setting out requirements about employment matters.



 

Part 12—Acting appointments

Item 56—At the end of subsection 38F(1)

This item adds a note at the end of existing subsection 38F(1). Section 38F provides for the appointment of an Acting Parliamentary Librarian. The note provides a cross-reference for the reader to sections 33AB and 33A of the Acts Interpretation Act 1901 , which set out the rules that apply to acting appointments.

Item 57—Subsection 38F(3)

This item repeals subsection 38F(3). That subsection is redundant because the validity of things done under acting appointments is dealt with by section 33AB of the Acts Interpretation Act 1901 .

Item 58—At the end of subsection 46(1)

This item adds a note at the end of existing subsection 46(1), which provides for the appointment of an Acting Commissioner. The note provides a cross-reference for the reader to sections 33AB and 33A of the Acts Interpretation Act 1901 , which set out the rules that apply to acting appointments.

Item 59—Subsection 46(3)

This item repeals subsection 46(3). That subsection is now redundant because the validity of things done under acting appointments is dealt with by section 33AB of the Acts Interpretation Act 1901 .

Item 60—At the end of subsection 53(1)

This item adds a note at the end of existing subsection 53(1). Section 53 provides for the appointment of an Acting Parliamentary Service Merit Protection Commissioner. The note provides a cross-reference for the reader to sections 33AB and 33A of the Acts Interpretation Act 1901 , which set out the rules that apply to acting appointments.

Item 61—Subsection 53(3)

This item repeals subsection 53(3). That subsection is now redundant because the validity of things done under acting appointments is dealt with by section 33AB of the Acts Interpretation Act 1901 .

Item 62—Subsection 64(1)

This item omits the reference to "(1)" at the beginning of the subsection. It is consequential on item 64 because, with the repeal of subsection 64(2) by that item, section 64 no longer needs to be divided into subsections.



 

Item 63—At the end of subsection 64(1)

This item adds a note at the end of existing subsection 64(1), which provides for the appointment of an Acting Secretary. The note provides a cross-reference for the reader to sections 33AB and 33A of the Acts Interpretation Act 1901 , which set out the rules that apply to acting appointments.

Item 64—Subsection 64(2)

This item repeals subsection 64(2). That subsection is redundant because the validity of things done under acting appointments is dealt with by section 33AB of the Acts Interpretation Act 1901 .

Item 65—Subsection 64XF(1)

This item omits the reference to "(1)" at the beginning of the subsection. It is consequential on item 67, because with the repeal of subsection 64XF(2) by that item, section 64XF no longer needs to be divided into subsections.

Item 66—At the end of subsection 64XF(1)

This item adds a note at the end of existing subsection 64XF(1), which provides for a person to be appointed to act as the Parliamentary Budget Officer. The note provides a cross-reference for the reader to sections 33AB and 33A of the Acts Interpretation Act 1901 , which set out the rules that apply to acting appointments.

Item 67—Subsection 64XF(2)

This item repeals subsection 64XF(2). That subsection is now redundant because the validity of things done under acting appointments is dealt with by section 33AB of the Acts Interpretation Act 1901 .



 

Part 13—Miscellaneous amendments

Item 68—Section 7 (definition of Parliamentary Service employee)

This item amends the definition of "Parliamentary Service employee" to mean a person engaged under section 22 of the Act, or a person determined by the Commissioner under paragraph 72(1)(b) of the Public Service Act 1999 to have become engaged as a Parliamentary Service employee.

Item 69—Subsection 23(4)

This item omits the words before paragraph 23(4)(a) and substitutes new words to clarify that a Secretary may reduce the classification of a Parliamentary Service employee without his or her consent only in particular circumstances (which are set out in existing paragraphs 23(4)(a) to (f) of the Act).

Item 70—Subsection 23(5)

This item inserts the words "determination under this Act or written contract of employment" after the words "industrial instrument". The effect of this amendment is to provide that, where an industrial instrument, a determination under the Act or a written contract of employment contains procedures to be followed when reducing the classification of a Parliamentary Service employee, those procedures must be followed or the reduction in classification is of no effect.

Item 71—Section 24 (heading)

This item repeals the heading to existing section 24, "Remuneration and other conditions", and substitutes a new heading, "Terms and conditions of employment". This amendment is consequential on the proposed amendments of subsections 24(1) and (3) to be made by items 72 and 73.

Item 72—Subsection 24(1)

This item omits the reference to "remuneration and other" in existing section 24(1). This follows the PS Bill in standardising the wording relating to employee entitlements to "terms and conditions of employment", which is taken to include remuneration.

Item 73—Subsection 24(3)

This item omits the reference to "remuneration and other" in existing section 24(3). This follows the PS Bill in standardising the wording relating to employee entitlements to "terms and conditions of employment", which is taken to include remuneration.

Item 74—Subsection 29(1) (note)

This item converts the existing note at the end of subsection 29(1) into "Note 1" and is consequential on item 75 below, which adds Note 2 at the end of subsection 29(1).

 

Item 75—At the end of subsection 29(1)

This item adds a second note at the end of existing subsection 29(1). Subsection 29(1) confers on a Secretary a power to terminate the employment of a Parliamentary Service employee. The proposed note indicates that determinations made by the Presiding Officers under proposed subsection 11C(1) (to be inserted by item 47) may set out procedures to be followed in terminating the employment of such an employee.

Item 76—After subsection 31(2)

This item inserts proposed subsections 31(2A) and 31(2B). Existing section 31 sets out provisions relating to the forfeiture of additional (non-Commonwealth) remuneration received by a Parliamentary Service employee for performing the duties of a Parliamentary Service employee.

Proposed subsection 31(2A) extends the application of existing section 31 to the Parliamentary Librarian and proposed subsection 31(2B) provides that the Commonwealth may seek to recover this money, in the same way as it may for a Parliamentary Service employee or a Secretary.

Item 77—Section 38E (heading)

This item repeals the heading to existing section 38E, "Remuneration and other conditions of appointment", and substitutes a new heading, "Terms and conditions of appointment". This amendment is consequential on the proposed amendment of subsection 38E(1) to be made by item 78.

Item 78—Subsection 38E(1)

This item omits the reference to "remuneration and other conditions of employment" in existing subsection 38E(1) and substitutes "terms and conditions of appointment". This reflects that the Parliamentary Librarian is appointed rather than employed, and follows the PS Bill in standardising the wording relating to employee entitlements to "terms and conditions of appointment", which is taken to include remuneration.

Item 79—At the end of section 40

This item adds proposed subsection 40(4) at the end of existing section 40. Section 40 sets out the functions of the Commissioner. Proposed subsection 40(4) provides that the Commissioner may engage consultants to assist him or her in the performance of his or her functions.

Item 80—Paragraphs 41(a) and (b)

This item omits from existing section 41 of the Act redundant cross-references to section 34 of the Auditor-General Act 1997 (section 34 of that Act has been repealed).

 

 

Item 81—Section 44 (heading)

This item repeals the heading to existing section 44, "Remuneration and other conditions of appointment", and substitutes a new heading, "Terms and conditions of appointment". This amendment is consequential on the proposed amendment of subsection 44(1) to be made by item 82.

Item 82—Subsection 44(1)

This item omits the reference to "remuneration and other conditions" and substitutes "terms and conditions" in existing subsection 44(1). This follows the PS Bill in standardising the wording relating to entitlements, which is taken to include remuneration.

Item 83—Paragraphs 48(2)(a) and (b)

This item omits from existing section 48 of the Act redundant cross-references to section 34 of the Auditor-General Act 1997 (section 34 of that Act has been repealed).

Item 84—After subsection 48(3)

This item inserts proposed subsection 48(3A) into existing section 48, which sets out the functions of the MPC. Proposed subsection 48(3A) provides that the MPC may engage consultants to assist him or her in the performance of his or her functions.

Item 85—Section 51 (heading)

This item substitutes the heading to existing section 51, "Remuneration and other conditions of appointment", with a new heading, "Terms and conditions of appointment". This amendment is consequential on the proposed amendment of subsection 51(1) to be made by item 86.

Item 86—Subsection 51(1)

This item omits the reference to "remuneration and other conditions" in existing subsection 51(1) and substitutes "terms and conditions". This follows the PS Bill in standardising the wording relating to entitlements of appointees to "terms and conditions of appointment", which is taken to include remuneration.

Item 87—Section 63 (heading)

This item repeals the heading to existing section 63, "Remuneration and other conditions of appointment", and substitutes a new heading, "Terms and conditions of appointment". This amendment is consequential on the proposed amendment of subsection 63(1) to be made by item 88.



 

Item 88—Section 63(1)

This item omits the reference to "remuneration and other conditions of employment", and substitutes "terms and conditions of appointment" in existing subsection 63(1). This reflects that Secretaries are appointed rather than employed, and follows the PS Bill in standardising the wording relating to entitlements of appointees, which is taken to include remuneration.

Item 89—Subsection 66(4)

This item omits the reference to "of more than $100,000" in existing subsection 66(4) of the Act and inserts a reference to the amount prescribed by regulations made for the purposes of subsection 73(4) of the Public Service Act 1999 . Existing section 66 allows the Presiding Officers to authorise payments in special circumstances relating to, or arising out of, a person's employment by the Commonwealth .

The proposed amendment provides that an authorisation cannot be made if it would involve, or is likely to involve, a total amount exceeding the amount prescribed by regulations made for the purposes of subsection 73(4) of the Public Service Act 1999 (section 73 of that Act is a similar provision that sets out a power for the Public Service Minister to authorise payments in special circumstances relating to, or arising out of, a person's employment by the Commonwealth). By linking the maximum amount that may be authorised under section 66 of the Act to the maximum amount that may be authorised under section 73 of the Public Service Act 1999 , the amendment will ensure that the maximum amount is consistent under both Acts.

Item 90—Subsection 71(1)

This item amends existing subsection 71(1) to confirm that determinations made by the Presiding Officers under section 71 are legislative instruments. Because of the inclusion of existing subsection 71(6) (which provided that such determinations were disallowable instruments for the purposes of repealed section 46A of the Acts Interpretation Act 1901 ) determinations under section 71 are already legislative instruments (under subparagraph 6(d)(i) of the Legislative Instruments Act 2003 ).

Item 91—Subsection 71(2)

This item repeals existing subsection 71(2) (which allows Presiding Officers' determinations to deal with confidentiality of certain information, immunity from civil action for certain purposes and penalties for offences against such determinations) and substitutes proposed subsection 71(2) (which provides that Presiding Officers' determinations may prescribe penalties of not more than 50 penalty units for offences against the determinations). Confidentiality of information obtained in relation to the functions of the Commissioner or the MPC is now dealt with by proposed Part 7A (to be inserted by item 44). Immunity from civil action in relation to the functions of the Commissioner or the MPC is now dealt with by proposed section 70A (to be inserted by item 46). Paragraphs 71(2)(a) and (b) are therefore now redundant. In replacing existing paragraph 71(2)(c), the opportunity has been taken to standardise the wording of the provision with that used in similar provisions that empower legislative instruments to prescribe penalties for offences of not more than 50 penalty units. This is consistent with the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Item 92—Subsection 71(6)

This item repeals existing subsection 71(6). That subsection provides that determinations under section 71 are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901 , which has now been repealed and replaced with the disallowance regime in the Legislative Instruments Act 2003 . The amendment to existing subsection 71(1), proposed by item 90, confirms that determinations under section 71 are legislative instruments and subsection 71(6) is therefore now redundant.



 

SCHEDULE 2—Application, saving and transitional provisions

Part 1—Preliminary

Item 1—Definitions

This item defines a number of terms that are used throughout Schedule 2.

The term " commencement time " is defined to mean the time when the amendments in Part 1 of Schedule 1 commence. These amendments will commence at the same time as the amendments in Schedule 1 to the Public Service Amendment Act 2012 , which will commence 6 months after that Act receives the Royal Assent if an earlier date is not fixed by Proclamation.

The term "new Parliamentary Service Act " is defined to mean the Parliamentary Service Act 1999 as in force after the commencement time (as defined in this item).

The term "old Code of Conduct " is defined to mean the Code of Conduct in the old Parliamentary Service Act (which is also defined in this item). The definition makes it clear that conduct requirements made by either House of the Parliament, and any determinations in force for the purposes of subsection 13(13) of the old Parliamentary Service Act, are included within the scope of the definition.

The term "old Parliamentary Service Act " is defined to mean the Parliamentary Service Act 1999 as in force before the commencement time (as defined in this item).

Item 2—Alleged breaches of the Code of Conduct that occur before and after commencement time

The effect of this item is to provide that, for the purposes of Parts 5 and 6 of Schedule 2 (respectively concerning the Code of Conduct and whistleblower reports), where a breach of the Code of Conduct is alleged to have occurred between two dates, one before and one after the commencement time, the breach is alleged to have occurred before the commencement time.



 

Part 2—Secretaries

Item 3—Roles and responsibilities of Secretaries

This item deals with the application of proposed section 57, which is to be inserted by item 1 of Schedule 1. The proposed section sets out revised roles and responsibilities of Secretaries. The item makes it clear that those revised roles and responsibilities apply to a Secretary who is a Secretary at the commencement time.



 

Part 3—Senior Executive Service

Item 4—Function of the SES

This item deals with the application of proposed subsection 35(3), which is to be inserted by item 2 of Schedule 1. The proposed subsection sets out the ways in which SES employees are to carry out the functions of the SES. This item makes it clear that the proposed subsection applies to an SES employee who is an SES employee at the commencement time.



 

Part 4—Parliamentary Service Values and Employment Principles

Item 5—Workplace diversity programs

This item deals with the application of item 19 of Schedule 1, which amends section 18 of the Act to require workplace diversity programs to be established to help in giving effect to the new Parliamentary Service Employment Principles (as well as the existing Parliamentary Service Values). The item continues the effect of a workplace diversity program in effect before the commencement time as if it had been made under section 18 after the commencement time, but only to the extent that the program assists in giving effect to the Parliamentary Service Employment Principles.



 

Part 5—Code of Conduct

Item 6—Amendment of Code of Conduct

This item deals with the application of amendments made by items 23 and 24 of Schedule 1 to the Code of Conduct in section 13 of the Act. This item provides that the changes to the Code of Conduct apply to conduct occurring after the commencement time.

Item 7—Procedures for dealing with alleged breaches of Code of Conduct

This item deals with the application of amendments made by items 27 to 30 of Schedule 1 to section 15 of the Act (concerning procedures for determining whether there has been a breach of the Code of Conduct). This item provides that those amendments will apply to the following persons regardless of whether the conduct is alleged to have occurred before or after the commencement time: persons who are Parliamentary Service employees at the commencement time, persons who become Parliamentary Service employees after the commencement time, and persons who become former Parliamentary Service employees after the commencement time.

One effect of this item is that a Secretary will be able to apply sanctions under subsection 15(1) (as amended by items 27-29 of Schedule 1) for a breach of the Code of Conduct by a Parliamentary Service employee determined in accordance with procedures established either under subsection 15(3) (as is currently the case) or proposed subsection 48A(2), which provides for the MPC to inquire into and determine certain breaches of the Code of Conduct.

Another effect of this item is that proposed subsection 15(2A) (to be inserted by item 30 of Schedule 1) will apply to all persons who fall within the scope of this item, including persons who are Parliamentary Service employees at the commencement time (subsection 15(2A) provides that a person is taken to have breached the Code of Conduct if the person, in connection with the person's engagement as a Parliamentary Service employee, knowingly provides false or misleading information, wilfully fails to provide relevant information or otherwise fails to behave honestly and with integrity). It is considered appropriate to apply the proposed subsection to existing employees as the relevant conduct involves a level of fault (knowledge or wilfulness) or is otherwise blameworthy (dishonesty or lack of integrity). In addition, the most serious sanction, termination of the person's employment, still requires compliance with relevant rules in the Fair Work Act 2009 .

This item applies subject to item 9 (which concerns investigations already in progress by the Secretary into alleged breaches of the Code of Conduct). Note also that the application of the amendments made by items 27 to 30 of Schedule 1 under this item is further detailed in other items in Part 5 of this Schedule.

Item 8—Procedures and directions for determining whether Code of Conduct has been breached

This item (together with items 9 to 11) deals with the application of proposed subsection 15(3) (to be inserted by item 30 of Schedule 1). This item continues in effect procedures established by a Secretary under existing subsection 15(3) for determining alleged breaches of the Code of Conduct, and in force before the commencement time, as if they were in effect for the purposes of subsection 15(3) of the new Parliamentary Service Act. It also continues in effect Commissioner's Directions relating to those procedures as if they were in effect for the purposes of paragraph 15(4)(a) of the new Parliamentary Service Act.

Item 9—Investigation in progress by Secretary into alleged breach of Code of Conduct

This item provides for the rules under the old Parliamentary Service Act governing investigations and determinations about alleged breaches of the Code of Conduct by Parliamentary Service employees to continue to apply to an investigation or determination if the relevant Secretary had decided to begin, or had begun, the investigation before the commencement time but no findings had been made (see subitem 9(2)).

However, the rules under the new Parliamentary Service Act will apply for the purposes of determining any sanction to be imposed following such an investigation or determination (see subitem 9(3)), with appropriate modifications to recognise that the breach was of the old Code of Conduct.

Item 10—Finding by Secretary of breach of Code of Conduct but no sanction imposed

This item provides for the rules under the new Parliamentary Service Act to apply for the purposes of determining any sanction to be imposed on a Parliamentary Service employee if, before the commencement time, a finding has been made that the employee has breached the Code of Conduct but no sanction has been imposed. Those rules will apply with appropriate modifications to recognise that the breach was of the old Code of Conduct.

Item 11—Allegation of breach of Code of Conduct by Parliamentary Service employee before commencement time

This item provides for the rules under the new Parliamentary Service Act to apply in relation to an alleged breach of the Code of Conduct by a Parliamentary Service employee if the allegation was made before the commencement time but no decision had yet been made whether to begin an investigation. Those rules will also apply if an allegation is made after the commencement time that a Parliamentary Service employee, or a person who becomes a former Parliamentary Service employee after the commencement time, breached the Code of Conduct before the commencement time. This means that the new Parliamentary Service Act will apply in relation to the alleged breach with appropriate modifications to recognise that the breach (or alleged breach) was of the old Code of Conduct.

Item 12—Inquiry in progress into alleged breach of Code of Conduct by Commissioner

This item provides for the rules under the old Parliamentary Service Act to continue to apply in relation to an inquiry for the purpose of paragraph 48(1)(b) of that Act by the MPC into an alleged breach of the Code of Conduct by the Commissioner if the MPC had decided to begin, or had begun, the inquiry before the commencement time but the MPC had not yet reported on the results of the inquiry.



 

Item 13—Allegation of breach of Code of Conduct by Commissioner before commencement time

This item provides for the rules under the new Parliamentary Service Act to apply in relation to an alleged breach of the Code of Conduct by the Commissioner if the allegation was made before the commencement time but no decision had yet been made by the MPC whether to conduct an inquiry, or if an allegation is made after the commencement time that relates to a breach by the Commissioner that allegedly occurred before the commencement time. This means that any inquiry or report will be in accordance with the rules under the new Parliamentary Service Act. Those rules will apply with appropriate modifications to recognise that the breach (or alleged breach) was of the old Code of Conduct.

Item 14—Inquiries by Merit Protection Commissioner into alleged breaches of Code of Conduct by Parliamentary Service employees or former Parliamentary Service employees

This item deals with the application of proposed paragraph 48(1)(ca) (to be inserted by item 32 of Schedule 1) and proposed section 48A (to be inserted by item 33 of Schedule 1). These new provisions relate to inquiries by the MPC into alleged breaches of the Code of Conduct by current and former Parliamentary Service employees, on request by the Secretary of the relevant Department. This item provides that those new provisions will apply to the following persons regardless of whether the breach is alleged to have occurred before or after the commencement time: persons who are Parliamentary Service employees at the commencement time; persons who become Parliamentary Service employees after the commencement time; and persons who become former Parliamentary Service employees after the commencement time. If the breach is alleged to have occurred before the commencement time, those provisions will apply with appropriate modifications to recognise that the breach (or alleged breach) was of the old Code of Conduct.



 

Part 6—Whistleblower reports

Item 15—Inquiries in progress into whistleblower reports

This item provides for the rules under the old Parliamentary Service Act to continue to apply to a whistleblower report made under section 16 of that Act if an inquiry into the report had begun before the commencement time but had not been completed.

Item 16—Whistleblower report made or referred before commencement time but no inquiry begun before that time

This item provides for the rules under the new Parliamentary Service Act to apply to a whistleblower report made before the commencement time under section 16 of the old Parliamentary Service Act if no inquiry into the report had begun before that time. Those rules will apply with appropriate modifications to recognise that the breach (or alleged breach) was of the old Code of Conduct.

Item 17—Whistleblower report made after commencement time in relation to breach (or alleged breach) occurring before that time

This item provides for the rules under the new Parliamentary Service Act to apply to a whistleblower report made after the commencement time under section 16 of the new Parliamentary Service Act if the breach (or alleged breach) occurred before that time. Those rules will apply with appropriate modifications to recognise that the breach (or alleged breach) was of the old Code of Conduct.

Part 7—Review of actions

Item 18—Determinations providing for review of Parliamentary Service action

This item deals with the application of proposed paragraph 33(4)(d) (to be inserted by item 40 of Schedule 1). This item continues in force determinations about who is to conduct a review of Parliamentary Service action that are in force under paragraph 33(4)(d) of the old Parliamentary Service Act before the commencement time as if they were in force for the purposes of paragraph 33(4)(d) of the new Parliamentary Service Act.

Part 8—Non-ongoing Parliamentary Service employees

Item 19—Circumstances for engagement of non-ongoing Parliamentary Service employees

This item provides for the rules in relation to a person's engagement under the old Parliamentary Service Act to continue to apply if the person had been engaged as mentioned in paragraphs 22(2)(b) or (c) of the old Parliamentary Service Act before the commencement time and the engagement was in effect immediately before the commencement time or was to take effect after the commencement time.



 

Item 20—Termination of employment of non-ongoing Parliamentary Service employee in progress before the commencement time

This item provides that if, before the commencement time, a Secretary had terminated the employment of a Parliamentary Service employee and the termination was to take effect after the commencement time, the rules in relation to termination under the old Parliamentary Service Act continue to apply.

Item 21—Procedures for termination of non-ongoing Parliamentary Service employee after commencement time.

This item provides for determinations under the old Parliamentary Service Act to continue until the commencement of determinations made under the new Parliamentary Service Act.



 

Part 9—Confidentiality of information

Item 22—Protected information obtained at or after commencement time

This item deals with the application of proposed sections 65AA and 65AB to be inserted by item 44 of Schedule 1. Those proposed sections are about the protection of information obtained in connection with the functions, duties and powers of the Commissioner and the MPC.

Subitem 22(1) confirms that proposed section 65AA applies only in relation to protected information obtained in connection with the functions, duties and powers of the Commissioner if that information is obtained at or after the commencement time.

Subitem 22(2) confirms that proposed section 65AB applies only in relation to protected information obtained in connection with the functions, duties and powers of the MPC if that information is obtained at or after the commencement time.

Item 23—Determinations providing for protection of information obtained before commencement time

This item deals with the repeal of existing paragraph 71(2)(a) of the Act by item 91 of Schedule 1. That paragraph allows Presiding Officers' determinations to be made for or in relation to the confidentiality of information obtained by certain persons in relation to the performance of certain functions by the MPC. This item provides for such determinations to continue to apply, despite the repeal of that paragraph, to the extent that they provide for confidentiality of information obtained by those persons before the commencement time.

Item 24—Determinations providing for release of personal information

This item deals with the repeal of existing section 68 of the Act by item 45 of Schedule 1. That section authorises Presiding Officers' determinations to provide for the use or disclosure of personal information (within the meaning of the Privacy Act 1988 ). The use and disclosure of personal information will in future be dealt with by proposed section 65AE (to be inserted by item 44 of Schedule 1). This item continues in force any determinations in force for the purposes of section 68 before the commencement time as if they were in force for the purposes of proposed section 65AE of the new Parliamentary Service Act.



 

Part 10—Immunity from suit

Item 25—Immunity from civil proceedings for acts or omissions at or after commencement time

This item deals with the application of proposed section 70A of the Act (to be inserted by item 46 of Schedule 1). That proposed section provides an immunity from civil proceedings in respect of acts or omissions in relation to certain functions of the Commissioner and the MPC. This item confirms that proposed section 70A applies only in relation to a thing done, or omitted to be done, at or after the commencement time.

Item 26—Determinations providing for immunity from civil proceedings

This item deals with the repeal of existing paragraph 71(2)(b) of the Act by item 91 of Schedule 1. That paragraph allows Presiding Officers' determinations to be made for, or in relation to, immunity from civil action in respect of acts or omissions of certain persons in relation to the perf ormance of certain functions by the MPC. This item continues in force such determinations to the extent that they provide an immunity from civil action in respect of acts or omissions that occur before the commencement time.



 

Part 11—Legislative instruments

Item 27—Classification Rules

This item deals with the amendment of subsection 23(1) of the Act by item 50 of Schedule 1. That subsection allows the Presiding Officers to make rules about classifications of Parliamentary Service employees. This item continues in force Classification Rules in force before the commencement time for the purposes of the old Parliamentary Service Act as if they were in force for the purposes of subsection 23(1) of the new Parliamentary Service Act.



 

Part 12—Miscellaneous

Item 28—Reduction in classification of Parliamentary Service employee

This item deals with the amendment of subsection 23(5) of the Act by item 70 of Schedule 1. That subsection requires procedures in relevant industrial instruments to be followed when reducing the classification of a Parliamentary Service employee. The amendment will allow determinations under the Act and written contracts of employment to also set out procedures that must be followed. This item confirms that procedures in such determinations and contracts need to be followed only for a reduction in classification that occurs at or after the commencement time.

Item 29—Determinations of terms and conditions of employment

This item deals with the amendment of section 24 of the Act by items 72 and 73 of Schedule 1. That section allows a Secretary and the Presiding Officers to determine terms and conditions of employment for Parliamentary Service employees in certain circumstances.

Subitem 29(1) confirms that the continuity of any determination that was made by a Secretary under subsection 24(1) of the Act, and in force before the commencement time, is not affected by the amendment made by item 72 of Schedule 1.

Subitem 29(2) confirms that the continuity of any determination that was made by the Presiding Officers under subsection 24(3) of the Act, and in force before the commencement time, is not affected by the amendment made by item 73 of Schedule 1.

Item 30—Determination of terms and conditions of appointment

This item deals with amendments in Schedule 1 to existing provisions that allow the Presiding Officers to determine terms and conditions of appointment of the Parliamentary Librarian, the Commissioner, the MPC and a Secretary.

Subitem 27(1) confirms that the continuity of any determination that was made by the Presiding Officers under subsection 38E(1) of the Act and in force before the commencement time, is not affected by the amendment made by item 78 of Schedule 1.

Subitem 27(2) confirms that the continuity of any determination that was made by the Presiding Officers under subsection 44(1) of the Act, and in force before the commencement time, is not affected by the amendment made by item 82 of Schedule 1.

Subitem 27(3) confirms that the continuity of any determination that was made by the Presiding Officers under subsection 51(1) of the Act, and in force before the commencement time, is not affected by the amendment made by item 86 of Schedule 1.

Subitem 27(4) confirms that the continuity of any determination that was made by the Presiding Officers under subsection 63(1) of the Act, and in force before the commencement time, is not affected by the amendment made by item 88 of Schedule 1.



 

Item 31—Engagement of consultants

This item deals with amendments in Schedule 1 that confirm the power of the Commissioner and the MPC to engage consultants to assist in the performance of their functions.

Subitem 28(1) confirms that the amendment of section 40 of the Act by item 79 of Schedule 1 does not affect the engagement of a consultant by the Commissioner before the commencement time.

Subitem 28(2) confirms that the amendment of section 48 of the Act by item 84 of Schedule 1 does not affect the engagement of a consultant by the MPC before the commencement time.

Item 32—Determinations prescribing penalties for offences against the determinations

This item deals with the repeal of paragraph 71(2)(c) of the Act by item 91 of Schedule 1. That paragraph allows Presiding Officers' determinations to prescribe penalties for offences against the determinations punishable by a fine of up to 10 penalty units. This will now be dealt with under proposed subsection 71(2), which provides a higher maximum penalty of 50 penalty units. This item continues in force any determinations in force before the commencement time for the purposes of paragraph 71(2)(c) of the old Parliamentary Service Act as if they were in force for the purposes of proposed subsection 71(2) of the new Parliamentary Service Act.



 

Part 13—Determinations

Item 33—Determinations may deal with transitional etc. matters

This item provides for the Presiding Officers to make determinations dealing with matters of a transitional, saving or application nature relating to the amendments and repeals made by Schedule 1. This power is necessary to allow any unforseen issues to be dealt with and to provide a smooth transition from the old Parliamentary Service Act to the new Parliamentary Service Act. The determinations will be legislative instruments (and therefore subject to disallowance) and cannot be inconsistent with the express provisions in Schedule 2. This item will commence on Royal Assent so that determinations can be made under it from the earliest time that any of the amendments in Schedule 1 commence.