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Parliamentary Service Bill 1997 [No. 2]

Part 9 Transitional provisions

   

71   Interpretation

                   In this Part, unless the contrary intention appears:

Agency has the same meaning as in the Public Service Act 1997 .

Agency Head has the same meaning as in the Public Service Act 1997 .

classification includes a level.

commencing time means the time when this Act commences.

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

continuing SES officer means a person who was an SES officer in a former Parliamentary Department immediately before the commencing time.

corresponding new Department , means:

                     (a)  in relation to a former Parliamentary Department—the Department that corresponds to the former Parliamentary Department; or

                     (b)  in relation to a person who was an old Act officer or old Act employee—the Department that corresponds to the former Parliamentary Department in which the person was an old Act officer or old Act employee immediately before the commencing time.

determinations means determinations under this Part.

eligible public employment means eligible public employment within the meaning of Part IV of the old Act.

first-tier person means a person:

                     (a)  to whom:

                              (i)  Division 2 of Part IV of the old Act applied immediately before the commencing time; or

                             (ii)  the Officers’ Rights Declaration Act 1928 applied immediately before the commencing time because of section 87TA of the old Act; and

                     (b)  who was an officer in a former Parliamentary Department immediately before the Division referred to in subparagraph (a)(i) or the Act referred to in subparagraph (a)(ii) began to apply to him or her.

former Parliamentary Department means a Parliamentary Department within the meaning of section 9B of the old Act.

Merit Protection Act means the Merit Protection (Australian Government Employees) Act 1984 .

non-SES officer means a person who was an officer under the old Act, other than an SES officer.

old Act means the Public Service Act 1922 .

old Act employee means an employee within the meaning of the old Act.

old Act officer means an officer within the meaning of the old Act.

pre-commencement misconduct means conduct of an old Act officer or old Act employee before the commencing time that was misconduct for the purposes of Subdivision C, D or E of Division 6 of Part III of the old Act.

second-tier person means a person:

                     (a)  to whom Division 3 of Part IV of the old Act applied immediately before the commencing time; and

                     (b)  who was an officer in a former Parliamentary Department immediately before that Division began to apply to him or her.

statutory instrument means:

                     (a)  a law of the Commonwealth (other than this Act); or

                     (b)  a law of a Territory; or

                     (c)  an instrument having effect under a law referred to in paragraph (a) or (b).

term employee means a person who, immediately before the commencing time was:

                     (a)  a short-term or fixed-term employee in a former Parliamentary Department for the purposes of Division 10 of Part III of the old Act; or

                     (b)  a person employed in a former Parliamentary Department under section 82AG of the old Act.

transitional determination means a determination under subsection 9(7A) or section 82D of the old Act that was in force immediately before the commencing time, subject to any amendments that are prescribed by the determinations under this Part.

transitional period , in relation to a first-tier person, means the period starting at the commencing time and ending at the earliest of the following times:

                     (a)  the end of the period prescribed by the determinations for the purposes of this paragraph;

                     (b)  the time when the person ceases to be engaged in eligible public employment;

                     (c)  the time when the person resigns or retires as a Parliamentary Service employee;

                     (d)  the end of the relevant period (as defined in subsection 87D(5) of the old Act).

72   Operation of Part

             (1)  This Part has effect despite anything in Parts 3 to 8.

             (2)  Except where this Part expressly provides otherwise, this Act applies to a person who is taken, under this Part, to have been appointed or engaged under this Act in the same way as it applies to people actually engaged or appointed under this Act.

73   Continuation of existing Departments

             (1)  The Department of the Senate and the Department of the House of Representatives that were in existence immediately before the commencing time continue in existence as the Departments referred to in paragraphs 53(1)(a) and (b), respectively.

             (2)  The Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff and the Joint House Department that were in existence immediately before the commencing time continue in existence as Departments of the Parliament and are taken to have been established under subsection 53(2).

74   Current heads of Parliamentary Departments to continue in office

             (1)  The person who held the office of Clerk of the Senate or the office of Clerk of the House of Representatives immediately before the commencing time is taken to have been appointed under subsection 57(1) or (2), as the case may be, to the office of the same name established by section 54, and to have been so appointed for a period of 10 years beginning at the commencing time.

             (2)  The person who held the office of Parliamentary Librarian immediately before the commencing time is taken to have been appointed under section 58 to the office of Secretary of the Department of the Parliamentary Library established by section 55, and to have been so appointed for a period of 5 years beginning at the commencing time.

             (3)  The person who held the office of Principal Parliamentary Reporter immediately before the commencing time is taken to have been appointed under section 58 to the office of Secretary of the Department of the Parliamentary Reporting Staff established by section 55, and to have been so appointed for a period of 5 years beginning at the commencing time.

             (4)  The person who held the office of Secretary to the Joint House Department immediately before the commencing time is taken to have been appointed under section 58 to the office of Secretary of the Joint House Department established by section 55, and to have been so appointed for a period of 5 years beginning at the commencing time.

75   Conversion of officers and employees

Continuing SES officers

             (1)  At the commencing time, a continuing SES officer becomes an SES employee:

                     (a)  in the corresponding new Department; and

                     (b)  with a corresponding classification;

as if he or she had been engaged as a Parliamentary Service employee under section 22.

Non-SES officers

             (2)  At the commencing time, a non-SES officer becomes a non-SES employee:

                     (a)  in the corresponding new Department; and

                     (b)  with a corresponding classification;

as if he or she had been engaged as a Parliamentary Service employee under section 22.

Term employees

             (3)  At the commencing time, a term employee becomes a non-SES employee:

                     (a)  in the corresponding new Department; and

                     (b)  with a corresponding classification;

as if he or she had been engaged as a Parliamentary Service employee under section 22 for a period equal to the unexpired part of the period of the person’s engagement under the old Act.

Continuing employees

             (4)  At the commencing time, a continuing employee becomes a non-SES employee:

                     (a)  in the corresponding new Department; and

                     (b)  with a corresponding classification;

as if he or she had been engaged as a Parliamentary Service employee under section 22.

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

             (1)  During the transitional period, a first-tier person is taken to be absent from duty as a Parliamentary Service employee, on leave without pay.

             (2)  Service by a first-tier person in eligible public employment during the transitional period is counted, for the purposes of accrual of recreation leave credits and sick leave credits, as if it were service as a Parliamentary Service employee.

             (3)  A first-tier person is taken to have resigned as a Parliamentary Service employee at the end of the transitional period unless, before the end of the transitional period:

                     (a)  the person has given notice in writing to the relevant Secretary stating that the person intends to resume duties as a Parliamentary Service employee on the first working day after the end of the transitional period; or

                     (b)  the person has been granted leave for a period that consists of, or includes, the first working day after the end of the transitional period.

             (4)  If a person:

                     (a)  gives a notice under paragraph (3)(a); and

                     (b)  is absent from duty without leave on the first working day after the end of the transitional period;

the person is taken to have resigned as a Parliamentary Service employee at the end of that first working day.

             (5)  If a person would have ceased to be an officer under the old Act at a particular time because of section 87JA or 87JB of the old Act (if the old Act had not been repealed), then the person is taken to have resigned as a Parliamentary Service employee at that time.

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

             (1)  A second-tier person is entitled to be engaged as a Parliamentary Service employee, in accordance with the determinations, within the time limits prescribed by the determinations.

             (2)  Determinations made for the purposes of subsection (1) may prescribe exceptions to the entitlement.

78   Determinations under the old Act

             (1)  At the commencing time, each Secretary is taken to have made a determination (a continued determination ) under section 24 containing the terms of each transitional determination.

             (2)  A continued determination may be amended or revoked by the Secretary in the same way as if it had actually been made under section 24.

             (3)  Unless sooner revoked, a continued determination (including any amendments made by a Secretary under section 24) ceases to be in force on the first anniversary of the commencing time.

79   Misconduct

             (1)  A Secretary may, under section 15, impose the same sanctions on a Parliamentary Service employee in the relevant Department for pre-commencement misconduct as the Secretary could have imposed on the employee for that conduct under that section if the conduct had happened after the commencing time.

             (2)  Subsection (1) does not apply to conduct for which a person was charged under the old Act before the commencing time.

             (3)  For the purposes of this section, the procedures referred to in section 15 apply in determining whether:

                     (a)  conduct was misconduct for the purposes of Subdivision C, D or E of Division 6 of Part III of the old Act; and

                     (b)  conduct would have been a breach of the Code of Conduct if the conduct had happened after the commencing time.

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

             (1)  In any Act:

                     (a)  a replacement reference to an Agency includes a reference to a Department; and

                     (b)  a replacement reference to an Agency Head (other than a reference to the Agency Head of a particular Agency) includes a reference to the Secretary of a Department; and

                     (c)  a reference to a former Parliamentary Department is a reference to a Department; and

                     (d)  a reference to a particular former Parliamentary Department is a reference to the Department that corresponds to that former Parliamentary Department; and

                     (e)  a reference to the Secretary of a Department includes a reference to the Clerk of the Senate and the Clerk of the House of Representatives; and

                      (f)  a reference to the Clerk of the Senate is a reference to the Clerk of the Senate holding office under this Act; and

                     (g)  a reference to the Clerk of the House of Representatives is a reference to the Clerk of the House of Representatives holding office under this Act; and

                     (h)  a reference to the Parliamentary Librarian is a reference to the Secretary of the Department of the Parliamentary Library holding office under this Act; and

                      (i)  a reference to the Principal Parliamentary Reporter is a reference to the Secretary of the Department of the Parliamentary Reporting Staff holding office under this Act; and

                      (j)  a reference to the Secretary to the Joint House Department is a reference to the Secretary of the Joint House Department holding office under this Act.

             (2)  This section has effect subject to any modifications prescribed by the determinations.

             (3)  This section does not limit, by implication, section 82.

             (4)  In this section:

replacement reference means a reference that resulted from an amendment made by the Public Employment (Consequential and Transitional) Amendment Act 1997 or by regulations under that Act.

81   References in statutory instruments to “officer” etc.

                   In any statutory instrument, unless the contrary intention appears:

                     (a)  references in general terms to an officer include references to a Secretary or a Parliamentary Service employee; and

                     (b)  references to an officer of the Commonwealth include references to a Secretary or a Parliamentary Service employee; and

                     (c)  references to an officer or employee of a particular former Parliamentary Department include references to a Parliamentary Service employee in the corresponding new Department; and

                     (d)  references to a person occupying, holding or performing the duties of an office in a particular former Parliamentary Department include references to a Parliamentary Service employee in the corresponding new Department; and

                     (e)  references in general terms to an office include references to a position occupied by a Parliamentary Service employee; and

                      (f)  references to an office in a particular former Parliamentary Department include references to a position occupied by a Parliamentary Service employee in the corresponding new Department.

82   Determinations

             (1)  The Presiding Officers, after consulting the Commissioner, may make determinations prescribing matters:

                     (a)  required or permitted by this Part to be prescribed by determinations; or

                     (b)  necessary or convenient to be prescribed by determinations for carrying out or giving effect to this Part.

             (2)  Without limiting, by implication, subsection (1), determinations may be made under subsection (1), in relation to Parliamentary Service employees, with respect to any matters with respect to which regulations may be made under subsection 14(3) of the Public Employment (Consequential and Transitional) Amendment Act 1997 .

             (3)  Determinations made for the purposes of subsection (2):

                     (a)  may provide for the old Act or the Merit Protection Act to continue in force for the purposes of the determinations, even though those Acts have been repealed; and

                     (b)  prevail over the old Act, this Act and the Merit Protection Act, to the extent of any inconsistency.

             (4)  The determinations may:

                     (a)  amend other Acts, by making amendments of a kind that are consequential on the repeal of the old Act and its replacement in relation to Parliamentary Service employees by this Act; and

                     (b)  make provision of a transitional or saving nature in relation to amendments made under paragraph (a).

             (5)  For the purposes of the Amendments Incorporation Act 1905 , amendments made by determinations under paragraph (4)(a) are to be treated as if they had been made by an Act.

             (6)  Determinations made under this section within one year after the commencing time may commence on a day earlier than the day on which they are made, but not earlier than the commencing time.

             (7)  The determinations may make provision, in relation to a matter that may be prescribed by the determinations, by applying, adopting or incorporating, with or without modification, provisions of regulations in force at a particular time, or as in force from time to time, under the Public Employment (Consequential and Transitional) Amendment Act 1997 .

             (8)  A determination made under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

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

                   If, immediately before the commencing time, an Act applied to former Parliamentary Departments or to people appointed or engaged under section 9 of the Public Service Act 1922 , the first-mentioned Act applies to corresponding new Departments or to people appointed or engaged under this Act, as the case may be.

 

 

(1/98)