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Prime Minister and Cabinet (Miscellaneous Provisions) Bill 1993



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House: Senate

Portfolio: Prime Minister and Cabinet

Commencement: Royal Assent, except for Section 15 (1), which is taken to have commenced on 25 June 1984.

Purpose

To amend a number of different Acts administered within the portfolio of the Prime Minister and Cabinet. The bill will amend:

The Archives Act 1983 to allow public access to Cabinet notebooks after 50 years;

The Australian Science and Technology Act 1978 to transfer staff and other minor technical amendments;

The Freedom of Information Act 1982 to exclude Cabinet notebooks from that Act;

The Merit Protection (Australian Government Employees) Act 1984 to ensure the availability of rights of review to staff employed by Commonwealth authorities, and to allow complaints to be referred to the Ombudsman by the Merit Protection and Review Agency. The provision dealing with rights of review has retrospective operation;

The Ombudsman Act 1976 to streamline, extend and clarify the Ombudsman's power in certain areas;

The Public Service Act 1922 to modernise and rationalise aspects of employment within the public service;

The Royal Commissions Act 1902 to allow a Royal Commission to communicate information relating to criminal offences to the Australian Bureau of Criminal Intelligence;

The Superannuation Act 1976 to make administrative changes relating to the treatment of superannuation of public servants taking fixed term appointments.

The Bill also makes a number of minor technical amendments to other acts in Schedule 1.

Main Provisions

Amendments to the Archives Act 1983 and the Freedom of Information Act 1982.

The Bill will amend the Archives Act 1983 and the Freedom of Information Act 1982 to exclude Cabinet notebooks from the operation of the Freedom of Information Act 1982, and give access to such documents under the Archives Act 1983 only after 50 years have elapsed from the end of the year of their creation.

The Freedom of Information Act 1982 gives individuals a legally enforceable right of access to documents in the posession of Government or its agencies, subject to certain exemptions. One such exemption is cabinet documents. Cabinet notebooks comprise a number of different types of cabinet generated documents.

The Archives Act 1983 establishes a body to preserve Commonwealth archival resources such as Commonwealth records and research material. The Act establishes procedures for dealing with archival material and obtaining access to Commonwealth records.

The amendment seeks to address concerns that Cabinet notebooks are subject to disclosure either under FOI or where the public interest merits such disclosure. These concerns arose from a High Court decision handed down in April 1993. The case, the Commonwealth v Northern Lands Council 1 (NLC) concerned a contractual dispute regarding the Ranger Uranium mine in the Northern Territory. The NLC claimed that the Commonwealth had acted unconscionably regarding an agreement entered into by the parties, and that the agreement should be set aside. As an aid to its case, it sought access to Cabinet deliberations dealing with the contract in question. The High Court held by majority that although the documents in question would not be disclosed, there may exist circumstances in which the public interest in the administration of justice would outweigh the public interest in the confidentiality of Cabinet documents, and disclosure would be warranted.

Clause 4 amends section 3 of the Archives Act 1983 to exclude Cabinet notebooks form the definition of "Commonwealth Record" under that Act.

Clause 5 inserts a new section 22A into the Archives Act 1983 which gives access to Cabinet notebooks after 50 years from the end of the year in which they came into existence.

Clause 12 amends the Freedom of Information Act 1982 by including a definition of Cabinet notebook as any record containing notes of cabinet discussions or deliberations. The clause then exempts Cabinet notebooks from the definition of "document" in the Freedom of Information Act 1982, thereby restricting access to Cabinet notebooks.

Amendments to the Ombudsman Act 1976.

The Ombudsman is a statutory officer who has powers of investigation and can hear complaints from individuals concerning decisions made by administrators. The Ombudsman is often the last port of call and can refuse to investigate a complaint if other avenues of redress have not been successful. If the Ombudsman carries out an investigation, the Ombudsman can make reports to Ministers or Parliament or have discussions with a department involved in the complaint.

In December 1990, the Senate Standing Committee on Finance and Public Administration was given a brief to undertake an Inquiry into the scope and performance of the Ombudsman's office. The Committee was to investigate funding and jurisdictional aspects of the office and to recommend any necessary amendments to the Ombudsman Act 1976. The Committee held public hearings in May 1991, and received a number of written submissions from concerned parties. In December 1991, its report was finalised, and a number of recommendations were made. Its main recommendations included 2 :

* Allowing the Ombudsman to hear complaints about court registries and the Commonwealth Administrative Appeals Tribunal;

* Increasing the public profile of the Ombudsman;

* Establishing a specialist investigations unit within the office to handle major complaints;

* Increasing the funding of the Ombudsman's office; and

* The removal of certain Ombudsman functions to more appropriate bodies such as the Privacy Commissioner.

In response to the reports main recommendations, the Bill changes certain powers of the Ombudsman.

Clause 18 amends section 3 of the Ombudsman Act 1976 to include definitions of court and tribunal registrars and Commonwealth controlled companies, which then become included in the definition of "prescribed authority". These bodies therefore become subject to investigation by the Ombudsman.

Clause 22 amends section 6 of the Ombudsman Act 1976 to give the Ombudsman discretion to refer particular complaints to other bodies where appropriate. Referral can be made to other industry ombudsmen, the Merit Protection and Review Agency or the Privacy Commissioner.

Amendments to the Royal Commissions Act 1902.

The Australian Bureau of Criminal Intelligence (ABCI) is a body established by virtue of an intergovernmental agreement between the Commonwealth and all the States and the Northern Territory signed on 6 February 1981. The ABCI is principally comprised of a management committee of Commissioners of Police of the Commonwealth, States and the Northern Territory and other liaison officer from various agencies. The role of the ABCI is to collect and disseminate information relating to organised crime in order to better combat it. Its main functions are 3 :

* To research and distribute criminal intelligence; and

* To recommend proposals for legislative changes to combat organised crime.

Clause 55 of the Bill amends section 6P of the Royal Commissions Act 1902 to allow a Royal Commission to provide information to ABCI which it obtains in the course of its inquiries, if it believes such action to be appropriate.

Amendments to the Public Service Act 1922.

The Public Service Act 1922 regulates terms and conditions of Public Servants, creates offices and positions, and provides for discipline and promotion procedures within the Public Service. Subdivision B of Division 4 of Part III (Sections 35 - 41) of the Act deals with appointments of Secretaries of Departments.

Section 37 of the Public Service Act 1922 deals with fixed term appointments of persons outside the Public Service to positions as Secretaries of Departments. Fixed term appointments of this nature do not give tenure in the service to the appointee, although common practice is that the appointee receives tenure in the service, but does not receive tenure in that specific position. Appointment is made by the Governor-General on the advice of the Public Service Commission, and is limited to a maximum of 5 years.

Clause 31 of the Bill amends Section 37 of the Public Service Act 1922 to apply it to current officers in the service, including Secretaries of Departments. The amendment allows Secretaries of Departments to trade their tenure in favour of a loading on their salary, to be determined in accordance with Section 8 of the Remuneration Tribunal Act 1973. The Government has recommended to the Tribunal that the loading be of the order of 20% 4 .

Annual remuneration for Commonwealth Secretaries as at November 1993 is described in the following Table:

Base Middle Top Remuneration $ 117,647 $ 124,275 $ 134,440 Benefits $ 48,931 $ 50,455 $ 52,793 Total $ 166,578 $ 174,730 $ 187,233

A loading of 20% would be worth approximately an extra $ 23,500 p.a. at the base level, $ 25,000 p.a. at the middle level and $ 27,000 p.a. at the top level. This compares with annual remuneration for heads of Departments in Victoria and NSW, whose figures for 1993 were as described in the following Table:

Base Middle Top Victoria 5 $ 84,542- 88,992 $ 124,290- 133,653 $ 235,300- 297,500 NSW 6 $ 83,785- 124,855 $ 111,975- 163,890 $ 103,335- 228,110

As is evident from the table, the extent to which salaries in NSW and Victoria are higher depends on the size of the department involved and the ability of the person in question to negotiate larger than usual salary packages.

Comment

Broader issues of principle are involved when considering the "right" of statutory office holders or Department Secretaries to change their employment status in the manner proposed by clause 31. If there are public interest considerations inherent in protecting the tenure of certain positions and offices in the Public Service, to ensure the provision of impartial and frank advice, then it is arguable that it should not be for the holder of that office to bargain them away in exchange for a pay rise.

Endnotes

1 176 CLR 604

2 Review of the Office of the Commonwealth Ombudsman, Report from the Senate Standing Committee on Finance and Public Administration.

3 National Common Police Services Annual Report 1990-91, Australian police Ministers' Council.

4 Remuneration Tribunal 1993 Review, Submission 14, p xxxiii.

5 The salary levels quoted are those for Executive Departmental Officers level 1, 5 and 9, and figures are inclusive of non cash benefits, and Superannuation benefits, as varied by the Victorian Public Sector Management Act 1992. Salary levels will vary according to the size of the Department being administered. It is also possible under the new employment contracts regime, for secretaries to negotiate salaries well in excess of these levels.

6 Salary levels quoted are ranges for Chief Executive Service and Senior Executive Service Officers, inclusive of non cash benefits. Salary levels depend on an evaluation of the particular department, namely its size, responsibilities involved in administration, special skills required and so on.

Ranges of salary provided are set by the NSW Statutory and Other Offices Remuneration Tribunal and Directors of Departments can negotiate salaries within that range.

Marco Bini Ph. 06 2772476

Bills Digest Service 24 February 1994

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1994.