The Parliament of the Commonwealth of Australia
Senate
Public Service Bill 1999
Explanatory Memorandum
(Circulated by Authority of the Minister for Education, Training and Youth Affairs and the Minister Assisting the Prime Minister for the Public Service, the Honourable David Kemp, MP)
made by the House of Representatives
ISBN 0642410488
Public Service Bill 1999 - OUTLINE
1. The Public Service Bill 1999 (hereafter `Bill') is intended to replace the current legislative framework for the establishment and management of the Australian Public Service (`APS').
2. The Bill is an element in the Government's public service reform agenda, which has three parts:
* modernising the APS legislative framework- this is being done in this Bill which is a careful balance between devolved responsibility and improved accountability;
* simplifying APS awards and agreement-making processes - this will be done by the Department of Employment, Workplace Relations and Small Business (`DEWRSB') in accordance with the Workplace Relations Act 1996 (`WRA'); and
* transforming the APS management culture - this will be the responsibility of Agency Heads.
3. This public service reform agenda is being implemented within the new workplace relations framework that has been set out in the WRA. The Government considers that the APS should operate, to the maximum extent consistent with its public responsibilities, under the same industrial relations and employment arrangements as apply to the rest of the Australian workforce.
4. Within community standards the Bill sets out:
* the important values and culture the Parliament wants in the APS (see Bill Part 3);
* the role and powers of Agency Heads, and their relationship to Ministers, in a clear and public way;
* a clear statement to those within the APS, and to the Australian people, of the conduct that is expected of public servants (see Bill cl.13);
* significant new inquiry, evaluation and reporting powers for the Public Service Commissioner (see Bill Part 5 Division 1);
* an independent mechanism for review of employment actions affecting the employment of an APS employee (see Bill cl.33 and Bill Part 6); and
* a mechanism by which Government decisions on administrative arrangements and reorganisations can be implemented (see Bill Part 10).
Financial Impact Statement
5. The Bill seeks to provide a legal framework for APS employment which achieves an optimal balance between improved accountability and devolved responsibility so as to maximise the efficiency and effectiveness of the APS. The framework should also encourage managers to transform the present APS management culture by seeking maximum value for money rather than minimum risk-taking.
6. This Bill is intended to improve the quality of people management in the APS. This, in turn, is expected to translate, among other things, into:
* more efficient, effective and ethical use of the Commonwealth's resources (cf. Financial Management and Accountability Act 1997 (`FMA Act') s.44);
* responsiveness to Government in providing timely advice and implementing the Government's policies and programs; and
* fair, effective, impartial and courteous services for all Australians.
Background - The Current Legislative Framework
7. The current legislative framework for the APS is principally contained in the Public Service Act 1922 (`1922 PSA' - see Attachment A for a summary of its legislative history).
8. The 1922 PSA has been amended more than 100 times. However, the amendment process has been of a piecemeal nature, resulting in the present patchwork of provisions enacted over more than 75 years. This patchwork means that the Act is still being used as a mechanism of control and is riddled with unnecessary restrictions and arcane details. This had led to critical comment about the 1922 PSA, and in particular to arguments that:
(a) it has become excessively complex and fragmented;
(b) it does not set out the current allocation of people management policy responsibilities among the central agencies;
(c) its language and organisational layout continue to reflect the climate of a previous age with central regulation of people management policy and operations; and
(d) it is not user-friendly to personnel units and line managers operating in an increasingly devolved management environment.
9. The current Bill is directed toward remedying these deficiencies and enacting modern legislation to provide a more effective legal framework for people management in the APS into the year 2000 and beyond.
Background - Development of the Bill
10. In November 1996 the Minister for Industrial Relations issued a discussion paper entitled Towards a Best Practice Australian Public Service (`TBPAPS Paper'). This paper emphasised that:
* the workplace arrangements for the public service should be based upon those in the private sector;
* there needs to be far greater flexibility in the manner in which staff are managed;
* agency heads should be accountable for the running of their organisations and have the maximum autonomy over financial and people management;
* the high level of process that derives from legislative and industrial restrictions, and which imposes high overhead costs on public administration, should be removed;
* the concept of the APS as a single labour market, defined in terms of common employment standards, conditions and job classifications is no longer appropriate; but that
* the common ethos and values that distinguish public administration need to be maintained.
11. In May 1997 the Public Service and Merit Protection Commission (`PSMPC') and DEWRSB issued a further document Accountability in a Devolved Management Framework (`ADMF Paper'). Following the consultation process on the earlier paper, this paper argued (p.4) that
The Public Service Act 1922 needs to be substantially rewritten...
To achieve maximum flexibility while maintaining a high level of accountability, the new Public Service Act will establish an interlocking system of powers and responsibilities, integrated within a genuinely devolved managerial environment. While employment decisions will be the responsibility of individual agencies, public accountability will be monitored for the Service as a whole...
For the first time the Act will provide a model of accountability in which the public interest is clearly articulated. It will recognise that public servants and the programs they deliver are paid for by the public. As a consequence, the public service needs to maximise its efficiency within a simplified and transparent accountability matrix.
It is proposed that the new Act will recognise the distinctive ethos of Australia's public administration and Parliament's expectations of the public service. The public interest in maintaining public service integrity and professionalism will be met by the obligations relating to: a core of statutory Values, encompassing qualities such as political impartiality, high ethical standards, workplace equity and employment decisions based on merit; a code of conduct; directions set by the Public Service Commissioner; and the internal and external review of grievances.
12. The paper went on to point out (p.6) that the current legislative framework has a number of serious deficiencies and omissions which would be rectified by the then proposed Public Service Bill 1997:
* the character or purpose of public service is not clearly identified;
* the ethos of public service is not defined;
* there is no acknowledgment of the need for a non-partisan and apolitical public service;
* there is no prohibition of Ministerial direction of public service staffing decisions;
* although there are scattered and contradictory references to merit there is no clear statement of the merit principle and how it is to be applied;
* there is no code of conduct;
* the respective roles, responsibilities and powers of Ministers, Secretaries and the Public Service Commissioner are not set out; and
* there is no explicit provision for the Public Service Commissioner to report through the Minister to the Parliament.
13. From consultations on and discussions of this paper it was clear that there was strong general support for a Bill which promoted and enhanced the ethos of public service. Accordingly the Bill recognised that:
* the primary employment relationship is between Agency Head on behalf of the Commonwealth as employer and APS employee at the agency level (cf.WRA para.3(b)); and
* employment matters should generally be left to the same workplace processes that apply in the rest of the community.
14. Following the introduction of the Public Service Bill 1997 into the House of Representatives it was referred to the Joint Committee of Public Accounts (`JCPA') together with the accompanying Public Employment (Consequential and Transitional) Amendment Bill 1997. The Committee's Report 353, `An Advisory Report on the Public Service Bill 1997 and the Public Employment (Consequential and Transitional) Amendment Bill 1997' (`JCPA Report') was handed down on 29 September 1997.
15. The Government accepted the thrust of the recommendations of the Committee, either fully or in large measure.
16. The Bill subsequently incorporated amendments introduced by the Government in the House of Representatives. Those amendments primarily reflected JCPA recommendations which had been accepted by the Government. They included also amendments made to clarify the meaning of clauses of the Bill and amendments of a technical nature. The principal purpose of the Bill was not affected by the amendments that were made.
17. The JCPA supported the need for a new Public Service Act and favoured simplification, modernisation and the more accessible format of the Bill. The Government accepted JCPA recommendations that identified opportunities for improvement in the following areas:
* strengthening APS Values;
* strengthening the references in the Bill to merit as a fundamental principle of APS employment by including a definition of merit in relation to the engagement and promotion of APS employees;
* enhancing the level of scrutiny and reporting of agency workplace diversity programs; and
* securing mobility rights for the staff of the Parliamentary Departments and staff of Members of Parliament.
18. The recommendation on the extension of whistleblower protection for APS employees (recommendation 13) has been referred to the Attorney General's Department and will be a matter for future Government consideration.
19. The Government also accepted an element of the Committee's recommendation dealing with review of APS employment actions (recommendation 14). The Government noted the Committee's comments on the desirability of separating the Public Service Commissioner's standard-setting functions from the proposed review role. The Government agreed that such a separation seemed a sensible solution to a complex issue.
20. As a result, the 1997 Bill incorporated an amendment to allow for the establishment of a statutory office of Merit Protection Commissioner. Appointment and conditions arrangements would be consistent with the provisions relating to the Public Service Commissioner. The staff necessary to assist the Merit Protection Commissioner would be provided by the Public Service Commissioner.
21. The Public Service Bill 1997 was introduced into the Senate on 11 November 1997. The Senate effected significant amendments to that Bill and it was returned to the House of Representatives with those amendments at the end of November 1997.
22. On 5 December 1997, the Minister Assisting the Prime Minister for the Public Service informed the House of Representatives that the Government had rejected outright the amendments made to the Public Service Bill 1997 by the Senate, and that the legislation would be returned to the Senate unchanged after three months. That Bill was formally laid aside in the House of Representatives on 5 December 1997.
23. The Bill was subsequently reintroduced unchanged into the House of Representatives on 5 March 1998. After passage through the House, the legislation was returned to the Senate which made the same amendments to the Bill as it had in November 1997. On 6 April 1998 the Government again rejected outright the amendments made by the Senate, and the Bill was laid aside.
24. The Public Service Bill 1999 was introduced into the House of Representatives on 30 March 1999. The Bill was identical to the Public Service Bill 1997 introduced into the House on 26 June 1997 and subsequently amended in November 1997.
25. The terms of the Public Service Bill 1999 have been considered further, since its introduction in March 1999, following consultation with the Opposition. As a result, the Bill now incorporates various amendments agreed to by the House of Representatives. Those amendments do not affect the principal purpose and objectives of the Bill.
26. The principal amendments agreed to by the House of Representatives were in the following areas:
* strengthening and expanding APS Values;
* clarifying the sanctions applicable to breaches of the Code of Conduct and the applicability of the Code to statutory office holders;
* expanding the responsibilities of the Merit Protection Commissioner;
* enhancing accountability and reporting requirements in a number of areas;
* increasing the protections afforded to employees against diminishing of the entitlements under an award, certified agreement or Australian Workplace Agreement;
* extending the processes for the review of actions affecting employees; and
* elaborating on the responsibilities of Heads of Executive Agencies.
Amendments were also made that clarified the meaning of clauses of the Bill or which were of a technical nature.
27. A list of the abbreviations in this Explanatory Memorandum (Ex Memo) is at Attachment E.
Public Employment (Consequential and Transitional)
Amendment Bill 1999
28. With the establishment of the new legal framework for APS employees set out in this Bill, certain other provisions will be necessary:
* to validate actions and decisions taken under the former legislation;
* to cover some aspects of the transition from the old to the new employment framework; and
* to make consequential amendments to other legislation which incorporate references to the 1922 PSA framework.
29. These proposed provisions are set out in the Public Employment (Consequential and Transitional) Amendment Bill 1999 (hereafter CTA Bill). Details are provided in a separate explanatory memorandum on that Bill, which incorporates amendments made by the Government in the House of Representatives.
Public Service Bill 1999
30. Notes on the clauses of the current Bill are set out below.
31. References in these notes to the Auditor-General Act 1997 and the Financial Management and Accountability Act 1997 should be read in the context that those enactments commenced on 1 January 1998.
Clause 1- Short title
1.1. The Bill, when passed, will be known as the Public Service Act 1999 (Bill cl.1).
Clause 2 - Commencement
1.2. The Bill will commence on a day to be fixed by Proclamation (Bill s-cl.2(1)).
1.3. If the Bill does not commence within six months of assent by the Governor-General, it will come into operation at the end of that six months (Bill s-cl.2(2)).
Clause 3 - Objects of this Act
1.4. The main objects of the Bill will be:
(a) to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public (Bill para.3(a));
(b) to provide a legal framework for the effective and fair employment, management and leadership of APS employees (Bill para.3(b)) - this will reflect the proposed APS Value that the APS will have leadership of the highest quality (see Bill para.10(1)(h));
(c) to define the powers, functions and responsibilities of Agency Heads, the Public Service Commissioner and the Merit Protection Commissioner (Bill para.3(c)); and
(d) to establish rights and obligations of APS employees (Bill para.3(d)).
Clause 4 - This Act binds the Crown
1.5. The Crown in right of the Commonwealth will be bound by the Bill, but will not be liable for prosecution because of this (Bill cl.4 - same as FMA Act s.3 and same as WRA s.6 in relation to the Commonwealth).
1.6. Offence provisions are created in relation to the Public Service Commissioner's inquiry powers (see Bill cl.43).
Clause 5 - This Act extends to things outside Australia
1.7. Unless a contrary intention appears, the provisions of the Bill will apply outside Australia (Bill s-cl.5(1) - same as FMA Act s.4). This displaces the principle of construction that an Act normally operates only in Australia (see Acts Interpretation Act 1901 (`AIA') para.21(b)).
Australian Territories
1.8. The Bill will also apply to all Australian Territories (Bill s-cl.5(2) - to same effect as 1922 PSA s.7B).
1.9. By virtue of the AIA (para.17(p)), the Australian Territories are the:
* Australian Capital Territory;
* Northern Territory;
* Jervis Bay Territory;
* Territory of Norfolk Island;
* Territory of the Cocos (Keeling) Islands;
* Territory of Christmas Island;
* Territory of Ashmore and Cartier Islands;
* Territory of Heard and McDonald Islands;
* Territory of the Coral Sea Islands; and
* Australian Antarctic Territory.
Clause 6 - Engagement of employees in Department or Executive Agency
1.10. All persons who are to be employed in a Department of State or an Executive Agency will be required to be engaged under this Bill, or under the authority of another Commonwealth Act (Bill s-cl.6(1) - no equivalent in 1922 PSA). This engagement will result in the person being an `employee' in the common law sense.
1.11. There will be exceptions from this requirement for:
* persons engaged on an honorary basis (Bill para.6(2)(a) - similar exception in 1922 PSA para.8(a)); and
* persons engaged by the Australian Secret Intelligence Service (Bill para.6(2)(b) - cf. 1922 PSA s.33A notification dated 19 December 1996 which refers to `officers of the Australian Secret Intelligence Service' - Commonwealth Gazette No.PS1, 9 January 1997, p.7).
1.12. The Bill will not provide authority for the engagement of persons to perform services on a non-employee basis.
1.13. In addition, Agency Heads will still retain whatever powers they might otherwise have to engage independent contractors (Bill s-cl.6(3) - no change from current law but no explicit equivalent in 1922 PSA). A person who is called a `consultant' is not necessarily an independent contractor - that status will depend on the terms of the engagement.
Clause 7 - Interpretation
2.1. There are various interpretative provisions for the purposes of the Bill (Bill cl.7).
Acting SES employee
2.1.1. When used in the Bill, the term `acting SES employee' will mean a non-SES employee who is acting in a position usually occupied by an SES employee.
2.1.2. This term is used in the provisions relating to delegations (see Bill cl.78) to take account of acting arrangements given that the Bill is not drafted with reference to the concept of office for APS employees.
Agency
2.1.3. When used in the Bill, the term `agency' will mean:
(a) a Department of State (excluding any part of the `constitutional' Department of State established pursuant to s.64 of the Constitution that is an Executive Agency or a Statutory Agency) - the current Departments of State are listed at Attachment B, Part B;
(b) an Executive Agency established by the Governor-General under this Bill (see
Bill cl.65); or
(c) any body or group of persons declared by an Act to be a Statutory Agency for the purposes of this Bill (see, e.g. Bill cl.40 in relation to the Public Service Commissioner) - the current APS statutory agencies with separate staffing arrangements are listed at Attachment B, Parts C and D.
2.1.4. The Bill has been prepared on the following premises in relation to an employee's agency:
* at any time while a person is an APS employee, the person will be `in' a particular Agency;
* an APS employee cannot be in more than one Agency at the same time;
* an APS employee's Agency at a particular time will be:
- the Agency in which the person was engaged; or
- if the person has moved to another Agency, the Agency to which the person last moved.
Agency Head
2.1.5. When used in the Bill, the term `Agency Head' will mean:
(a) the Secretary of a Department of State (excluding any part of the `constitutional' department that is an Executive Agency or a Statutory Agency);
(b) the Head of an Executive Agency established by the Governor-General (see
Bill cl.65); or
(c) the Head of a Statutory Agency declared by an Act to be a Statutory Agency for the purposes of this Bill.
2.1.6. Normally, an Agency Head will be an individual. The constituting legislation for some Statutory Agencies makes the Agency Head a body corporate (e.g. Australian Securities and Investments Commission, empowered by s.120 of the Australian Securities and Investments Commission Act 1989, until amended by the CTA Bill, Schedule 1, item 230).
2.1.7. The major powers and functions that will be explicitly conferred by this Bill on all Agency Heads are summarised at Attachment D.
2.1.8. Public sector employers are required to act through a prescribed employing authority for the purposes of the WRA and the Rules of the Australian Industrial Relations Commission (AIRC) (WRA s.352). It is intended to amend the Workplace Relations Regulation (WR Regs) to specify the Minister for Employment, Workplace Relations and Small Business and the Agency Head as the `employing authority' in relation to the employees in each Agency for the purposes of the WRA (cf.WR Regs Schedule 2 items 1 to 3).
2.1.9. An Agency Head will be able to act on behalf of the Commonwealth in relation to Australian Workplace Agreements (AWAs) with persons in the Agency who are engaged under the Bill (CTA Bill Schedule 1, item 983 amending WRA s.170WK).
Agency Minister
2.1.10. When used in the Bill, the term `Agency Minister' will mean:
(a) if the agency is a Department of State - the Minister who administers the Department;
(b) if the agency is an Executive Agency - the Minister who administers the Executive Agency; and
(c) if the agency is a Statutory Agency - the Minister who administers the provision of the Act that provides for the appointment of the Head of that Agency.
APS
2.1.11. When used in the Bill, the term `APS' will mean the Australian Public Service constituted by this Bill (see Bill cl.9).
2.1.12. The main purpose in defining the APS is to deal with references to the APS in other legislation (e.g. `SES employee in the APS').
APS employee
2.1.13. When used in the Bill, the term `APS employee' will mean:
(a) a person who is engaged by an Agency Head under this Bill as an employee for the purposes of an Agency (see Bill cl.22); or
(b) a person who, as a result of changes in machinery of government arrangements, is engaged as an APS employee by the Public Service Commissioner (see Bill cl.72).
2.1.14. The term `APS employee' will include SES employees (see Bill cl.34), but will not include:
* Agency Heads;
* Heads of Mission (HoMs) who are employed under the Australian Trade Commission Act 1985 (see Bill s-cl.39(1) - other HoMs will be APS employees); or
* locally engaged employees of Australian missions overseas (see Bill cl.74).
2.1.15. Existing officers and employees under the 1922 PSA, other than locally engaged staff (see 1922 PSA s.82AF), will, when this Bill commences, become APS employees within the meaning of this Bill (see CTA Bill cl.5).
2.1.16. The use of the term `employee' rather than `officer' is considered to be in keeping with more modern approaches to APS employment. As G J McCarry has commented (Aspects of Public Sector Employment Law, the Law Book Company, 1984, p.22),
...Relatively few public officials require the status of an officer. Those who do can be identified readily enough, and treated as such, as is done, for example, in New South Wales for the purpose of fixing remuneration for holders of `statutory' offices. The rest, the great bulk of public sector permanent staff, ought be recognised for what they are, namely employees, and described and regulated as such. The fact that some of them may at times exercise independent functions conferred by statute or the like does not, without more, require that they be officers...
APS Employment
2.1.17. When used in the Bill, the term `APS employment' will mean employment as an APS employee under this Bill.
APS Values
2.1.18. When used in the Bill, the term `APS Values' will mean the APS Values established by the Bill (see Bill cl.10 - no equivalent in 1922 PSA).
AWA
2.1.19. When used in the Bill, the term `AWA' (Australian Workplace Agreement) will have the same meaning as in the Workplace Relations Act 1996.
Award
2.1.20. When used in the Bill, the term `award' will have the same meaning as in the Workplace Relations Act 1996.
Category of APS employee
2.1.21. When used in the Bill, the term `category of APS employee' will mean one of the following categories:
(a) ongoing APS employees (see Bill para.22(2)(a));
(b) APS employees engaged for a specified term or for the duration of a specified task (see Bill para.22(2)(b)); or
(c) APS employees engaged for duties that are irregular or intermittent (see
Bill para.22(2)(c)).
The term is mentioned in cl.15 of the Bill which deals with breaches of the Code of Conduct.
Certified agreement
2.1.22. When used in the Bill, the term `certified agreement' will have the same meaning as in the Workplace Relations Act 1996.
Classification Rules
2.1.23. When used in the Bill, the term `Classification Rules' will mean the rules about the classification of work and employees that are made by the Minister who will administer the Bill (see Bill cl.23).
Code of Conduct
2.1.24. When used in the Bill, the term `Code of Conduct' will mean the conduct rules for APS employees set out in the Bill (see Bill cl.13).
Commissioner
2.1.25. When used in the Bill, the term `Commissioner' will mean the Public Service Commissioner appointed under this Bill (see Bill cl.40).
2.1.26. When this Bill commences, the person who is the Public Service Commissioner under the 1922 PSA will become Public Service Commissioner under this Bill for the unexpired part of his or her term (see CTA Bill s-cl.5(2)).
Commissioner's Directions
2.1.27. When used in the Bill, the term `Commissioner's Directions' will mean the directions issued by the Public Service Commissioner:
* in relation to APS Values (see Bill cl.11);
* in relation to breaches of the Code of Conduct (see Bill cl.15); or
* about employment matters relating to SES employees (see Bill cl.36).
Department
2.1.28. When used in the Bill, the term `Department' will mean a Department of State established by the Governor-General under s.64 of the Constitution excluding any part of the `constitutional' department that is itself:
* an Executive Agency (see Bill cl.65); or
* a Statutory Agency declared by an Act to be a Statutory Agency for the purpose of this Bill (see, e.g. Bill cl.40 relating to the Public Service Commissioner).
2.1.29. A list of current Departments of State is at Attachment B, Part B. The term `Department' when used in this Bill will not include the Parliamentary Departments (listed at Attachment B, Part A) - it is proposed to establish those Departments under the Parliamentary Service Bill 1999.
Executive Agency
2.1.30. When used in the Bill, the term `Executive Agency' will mean an Executive Agency established by the Governor-General under this Bill (see Bill cl.65).
2.1.31. There are no equivalent bodies under the 1922 PSA.
Head
2.1.32. The 1922 PSA provides (s.18B and s-sec.25(4)) that the Public Service Commissioner, the Auditor-General and the Commissioner of Taxation have Secretary powers in relation to the APS organisations under their respective control. In similar fashion, various statutory office-holders have been accorded Secretary powers under their own enabling legislation as, for example, the Australian Statistician under s.16 of the Australian Bureau of Statistics Act 1975. These statutory office holders are often described colloquially as the `Heads' of their agencies.
2.1.33. When used in the Bill, the term `Head' will mean:
(a) in relation to an Executive Agency - the person appointed as Head of that Agency by the Agency Minister (see Bill cl.67 - no equivalent in 1922 PSA); and
(b) in relation to a Statutory Agency - the person declared by an Act to be the Head of the Statutory Agency (see, e.g., Bill cl.40 in relation to the Public Service Commissioner).
2.1.34. The CTA Bill will amend the staffing provisions in the Acts constituting the current APS statutory agencies to ensure that they contain an appropriate declaration (the current titles of the Heads of Statutory Agencies are at Attachment B, Parts C and D).
Head of Mission
2.1.35. When used in the Bill, the term `Head of Mission' will mean the head in an overseas country of:
(a) an Australian diplomatic mission; or
(b) an Australian consular mission.
2.1.36. The term will cover the heads of both:
* Australian missions accredited to overseas countries and
* Australian permanent missions to international organisations (e.g. the United Nations in New York and Geneva).
2.1.37. This term `Head of Mission' is used in the provisions requiring a Head of Mission to be an APS employee or an Austrade employee (see Bill cl.39).
Locally engaged employee
2.1.38. When used in the Bill, the term `locally engaged employee' will mean a person engaged overseas to perform duties overseas as an employee (see Bill cl.74).
2.1.39. The equivalent term in 1922 PSA is `overseas employee' (s.82AF). Such persons are also often referred to as `locally engaged staff' (LES).
Merit Protection Commissioner
2.1.40. When used in the Bill, the term `Merit Protection Commissioner' will mean the Merit Protection Commissioner appointed under this Bill (see Bill cl.49).
Non-ongoing APS employee
2.1.41. When used in the Bill, the term `non-ongoing APS employee' will mean a person who is not an ongoing APS employee. The term is mentioned in cl.29 of the Bill which deals with the termination of employment of an APS employee.
Non-SES employee
2.1.42. When used in the Bill, the term `non-SES employee' will mean an APS employee who is not a member of the Senior Executive Service (SES).
2.1.43. APS employees will be either non-SES employees or SES employees.
Ongoing APS employee
2.1.44. When used in the Bill, the term `ongoing APS employee' will mean a person who is engaged as an ongoing APS employee, as mentioned in para.22(2)(a) of the Bill. The term is mentioned in cl.29 of the Bill which deals with the termination of employment of an APS employee.
Overseas
2.1.45. When used in this Bill the term `overseas' will mean outside Australia and the Territories.
2.1.46. The term `overseas' is used in:
* the Code of Conduct requirement that APS employees when on duty overseas must uphold the good reputation of Australia (see Bill s-cl.13(12)); and
* the power given to an Agency Head to engage persons overseas to perform duties overseas as employees (see Bill cl.74).
Presiding Officer
2.1.47. When used in the Bill, the term `Presiding Officer' will mean the President of the Senate or the Speaker of the House of Representatives.
Prime Minister's Department
2.1.48. When used in the Bill, the term `Prime Minister's Department' will mean the Department of the Prime Minister and Cabinet.
2.1.49. The term is used in the provisions relating to:
* the reports by the Secretary of the Department of the Prime Minister and Cabinet that are required before the appointment or termination of a Secretary of any Department of State other than the Department of the Prime Minister and Cabinet (see Bill cls.58 and 59); and
* the constitution of the Management Advisory Committee (see Bill cl.64).
Public Service Minister
2.1.50. When used in the Bill, the term `Public Service Minister' will mean the Minister who will administer this Bill.
2.1.51. Similarly, the term `Finance Minister' is defined in the FMA Act (s.5) to mean the Minister who administers that Act. The AIA (s-sec.19A(2)) deals with the situation where more than one Minister is involved.
2.1.52. The powers and functions of the Public Service Minister are listed in the Ex Memo when setting out the provisions in relation to delegations (see Bill s-cls.78(2) and (3)).
Secretary
2.1.53. When used in the Bill, the term `Secretary' will mean the Secretary of a Department of State (these Departments are listed in Attachment B, Part B).
2.1.54. Existing Secretaries to Departments under 1922 PSA will, when this Bill commences, become Secretaries of the corresponding Department under this Bill as if they had been appointed as a Secretary under this Bill for the unexpired part of their fixed term (see CTA Bill s-cl.5(1)).
SES
2.1.55. When used in the Bill, the term `SES' will mean the Senior Executive Service established by this Bill (see Bill cl.35).
SES employee
2.1.56. When used in the Bill, the term `SES employee' will mean an APS employee who is classified as an SES employee under the Classification Rules made by the Minister who will administer this Bill (see Bill cl.34).
2.1.57. Existing SES officers under 1922 PSA will, when this Bill commences, become SES employees (see CTA Bill s-cls.5(3) and (4)).
Statutory Agency
2.1.58. When used in the Bill, the term `Statutory Agency' will mean a body or group of persons declared by an Act to be a Statutory Agency for the purposes of this Bill.
2.1.59. The CTA Bill will amend the staffing provisions of the legislation establishing the current APS statutory agencies to ensure that they contain such a declaration.
2.1.60. A list of the agencies with separate staffing arrangements under the 1922 PSA is at Attachment B, Parts C-D. Those at Parts E and F do not have separate staffing provisions.
Other Notes on Interpretation
2.2. The notes, below, deal with some other matters of interpretation not specifically set out in this Bill:
* concept of office;
* instruments for the purpose of AIA s.33; and
Concept of office
2.2.1. The structure of the 1922 PSA, and of the APS personnel systems which are derived from it, are based on the concept that officers of the APS occupy and have tenure in formally-created offices.
2.2.2. As the McLeod Report commented (para.3.21) its `all-pervasive nature results in significant rigidities in APS management arrangements'. The concept also produces a degree of legislative complexity (e.g. `unattachment') which pervades the 1922 PSA.
2.2.3. Accordingly, the Bill is drafted without any use of the concept of office other than in relation to Agency Heads. It will be possible to create formal positions if they are required for delegation purposes (see Bill cl.77).
Instruments
2.2.4. References to `notice in the Gazette' or `in writing' have the effect that the document so described is an `instrument' which will be able, unless the contrary intention appears in the Bill, to be repealed, rescinded, revoked, amended or varied (see AIA s-sec.33(3)).
2.2.5. The Bill includes the following references to `in the Gazette':
* issuing by Prime Minister of general directions to Agency Heads (see
Bill s-cl.21(2));
* making by Public Service Minister of Classification Rules (see
Bill s-cl.23(1));
* determination by Public Service Minister of remuneration and other terms and conditions of employment (see Bill s-cl.24(3));
* certain inquiries initiated by the Public Service Commissioner (see Bill para.43(1)(a));
* referral of a matter by the Public Service Minister to the Public Service Commissioner to inquire and report (see Bill para.43(1)(c));
* determination by Agency Minister of remuneration and other conditions of appointment of Public Service Commissioner (see Bill s-cl.46(3)), Merit Protection Commissioner (see Bill s-cl.53(3)) and Head of an Executive Agency (see Bill s-cl.68(3));
* determination by Prime Minister of remuneration and other conditions of appointment of a Secretary (see Bill s-cl.61(3)); and
* orders by Governor-General in relation to Executive Agencies (see Bill
s-cl.65(1)).
2.2.6. The Bill includes the following references to `in writing':
* Public Service Commissioner's Directions about APS Values (see
Bill s-cl.11(1));
* Public Service Commissioner's Directions in relation to breaches of the Code of Conduct (see Bill s-cl.15(4);
* Prime Minister's directions relating to the management and leadership of APS employees (see Bill s-cl.21(1));
* determination by Agency Head of remuneration and other terms and conditions of employment (see Bill s-cl.24(1));
* agreement for voluntary move between agencies (see Bill s-cl.26(1));
* direction by Public Service Commissioner for compulsory move between Agencies (see Bill s-cl.27(1);
* termination of employment of an APS employee (see Bill s-cl.29(1));
* notice relating to forfeiture of additional remuneration (see Bill s-cl.31(1) and (3));
* Public Service Commissioner's Directions on SES matters (see Bill cl.36);
* notices to and from SES officer about retirement with a specified benefit (see Bill cl.37);
* direction by Agency Minister about a Head of Mission (see Bill s-cl.39(2));
* determination of remuneration and other conditions of appointment for Public Service Commissioner (see Bill s-cl.46(1)), Merit Protection Commissioner (see Bill s-cl.53(1)), for Secretaries (see Bill s-cl.61(1)) and for Heads of Executive Agencies (see Bill s-cl.68(1));
* nomination of member of Management Advisory Committee (see Bill para.64(2)(d));
* determination in relation to Machinery of Government changes (see Bill s-cl.72(1));
* creation of formal positions (see Bill s-cl.77(1)); and
* delegations of powers (see Bill cl.78).
Superannuation
2.2.7. The 1922 PSA contained several references to superannuation not translated into this Bill.
2.2.8. Some of the references to superannuation are not required because appropriate provisions are included in other legislation. For example, provisions prohibiting invalidity retirement under the 1922 PSA without the approval of the Commonwealth Superannuation Scheme (CSS) or Public Sector Superannuation Scheme (PSS) Board are not required because the Superannuation Act 1976 and the Superannuation Act 1990 make it clear that invalidity retirement without such an approval is not possible.
2.2.9. Other references to superannuation in the 1922 PSA related to matters that are not addressed in this Bill.
2.2.10. The CTA Bill also contains a number of consequential amendments to the existing superannuation legislation (CTA Bill Schedule 1).
Clause 8 - Workplace Relations Act
2.3. This Bill will have effect subject to the WRA (Bill s-cl.8(1)). This will ensure that the Bill operates within the general community workplace relations framework created by the WRA.
Part 3 - The Australian Public Service
Clause 9 - Constitution of the APS
3.1. The Australian Public Service as constituted by this Bill will consist of (Bill cl.9):
* Agency Heads; and
* APS employees.
3.2. This constitutes the APS in terms of people (same as 1922 PSA s.10). The APS will include statutory office holders who are Agency Heads or APS employees, but not other statutory office holders who are not APS employees (e.g. Second Commissioners of Taxation or Second Parliamentary Counsel).
3.3. This definition of the APS will be important for references in other legislation to matters relating to the APS (e.g. terms such as `SES employee in the APS').
Clause 10 - APS Values
3.4. For the first time in primary Commonwealth public service legislation the Bill will contain a clear declaration of APS Values (Bill cl.10), within which the employment powers of Agency Heads will be exercised and for which they will be accountable (see ADMF Paper p.11). These Values will provide the context within which powers specified in the Bill will be exercised. The Values are designed to:
* provide the philosophical underpinning for the APS;
* reflect public expectations of the relationship between public servants and the Government, the Parliament and the Australian community (cf. objects in Bill para.3(a));
* articulate the culture and operating ethos of the APS; and
* support and inform the Commissioner's Directions to be issued under the authority of the Bill.
3.5. Details of each value are set out below.
(a) Apolitical
3.5.1. The APS will be apolitical and will perform its functions in an impartial and professional manner (Bill para.10(1)(a)). This value will be reinforced by a specific limitation on Ministerial directions to an Agency Head, in particular staffing decisions relating to APS employees (see Bill cl.19).
(b) Merit
3.5.2. The APS will be a public service in which employment decisions are based on merit (Bill para.10(1)(b)).
3.5.3. Provisions reflecting merit principles have appeared in Commonwealth public service legislation since Federation. The 1902 PSA provided for open competitive entry to the Service and promotion on merit. These principles were carried over into the 1922 PSA.
(c) No discrimination
3.5.4. The APS will provide a workplace that is free from discrimination and that recognises and utilises the diversity of the Australian community it serves (Bill para.10(1)(c)). The concept of discrimination is that which is referred to in the principal object of the WRA where it is stated that:
3. The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by...
(j) respecting and valuing the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin....
3.5.5. Each Agency Head will also be required to have a Workplace Diversity Program for the Agency to assist in giving effect to this and all the other APS Values (see Bill cl.18).
(d) Highest ethical standards
3.5.6. The APS will have the highest ethical standards (Bill para.10(1)(d)).
3.5.7. The proposed Code of Conduct (see Bill cl.13) will ensure that APS employees are clear about the ethical standards they are expected to meet (see ADMF Paper p.14).
(e) Accountability
3.5.8. The APS will be openly accountable for its actions within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public (Bill para.10(1)(e)). This takes account of JCPA recommendation 2.
3.5.9. This Value, along with the objects clause of this Bill, makes clear the lines of accountability of the APS. While employment decisions will be the responsibility of individual agencies, public accountability will be monitored for the APS as a whole.
(f) Responsiveness
3.5.10. The APS will be responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government's policies and programs (Bill para.10(1)(f)). This takes account of JCPA recommendation 2.
3.5.11. This value of responsiveness recognises one of the philosophical underpinnings of the APS. It will be set within the context of the statutory framework created by the Parliament in relation to any particular agency.
3.5.12. The Guidelines on Official Conduct of Commonwealth Public Servants points out (pp.6-7) that:
The public service exists to provide advice to, and give effect to the policies of, the government of the day elected by the Australian people. Elected governments, whatever their political make-up, are entitled to expect loyalty and dedication from the public service. This professional commitment is owed to the government of the day, not to the political party or parties to which the members of the government belong. This distinction is generally well understood by politicians and public servants.
Governments increasingly have to make their decisions and implement their programs in an environment of rapid social, economic and political change, to which they need continually to respond and adapt in order to achieve their policy objectives.
To assist government in this, the public service itself needs to be able to act quickly and effectively, both in implementing policies and programs, and in providing advice to government in the process of policy development.
The main responsibilities of a public servant to the government are
* to carry out decisions and implement programs promptly, conscientiously and effectively; and
* to provide advice which: represents the facts accurately; is impartial and maintains a high standard of professional integrity; is sensitive to the intent and direction of government policy; and is as comprehensive as practicable in setting out the advantages and disadvantages of the main options available and their consequences.
In both policy development and program implementation, public servants need to exercise judgement as to which facts are most relevant, which policy options are most applicable and which considerations in delegated decision-making are most important. In exercising judgement, merit should be the basis of considering choices to be made or put forward for consideration. Public servants should ensure that ministers are aware of the values which underlie the policy advice they have given, for example, by underlining the possible differential impact of policy options on different groups...
(g) Service delivery
3.5.13. The APS will deliver services fairly, effectively, impartially and courteously to the Australian public and will be sensitive to the diversity of the Australian public (Bill para.10(1)(g)).
(h) High quality leadership
3.5.14. The APS will have leadership of the highest quality (Bill para.10(1)(h)).
3.5.15. The Government is determined that the leadership potential of the SES (see Bill Part 4 Division 2) will be further developed (see TBPAPS Paper pp.11-12). This responsibility will rest with Agency Heads (see Bill cl.12) as well as with the Public Service Commissioner (see Bill para.41(1)(j)).
(i) Cooperative workplace relations
3.5.16. The APS will establish workplace relations that values communication, consultation, cooperation and input from employees on matters that affect their workplace (Bill para.10(1)(i)).
(j) A good workplace
3.5.17. The APS will provide a fair, flexible, safe and rewarding workplace (Bill para.10(1)(j)). Each Agency Head will be required to implement a Workplace Diversity Program (see Bill cl.18) to uphold and promote equity and procedural fairness in decision making, encourage arrangement to assist employees to balance work and individual need and to maintain a safe workplace.
3.5.18. While workplace arrangements will be primarily the responsibility of individual agencies, the Government also sees this value as encompassing the application of certain consistent principles operating in the APS workplace and applying to APS employment. While these principles will not be legally binding in the same way as the APS Values, the Government will expect APS agencies to promote and embody them.
3.5.19. The principles will be as follows:
Principles of APS employment
The APS provides its employees with:
1. fair and flexible remuneration and conditions of employment;
2. fair and consistent treatment, free of arbitrary or capricious administrative Acts or decisions;
3. an environment where, consistent with the Workplace Relations Act 1996, employees have the freedom to join industrial associations of their choice, or not to join industrial associations; and
4. opportunities for appropriate training and development.
(k) Results focus
3.5.20. The APS will focus on achieving results and managing performance
(Bill para.10(1)(k)).
3.5.21. This focus on results will be assisted by giving Agency Heads all of the `rights, duties and powers' of an employer (see Bill cl.20). A strategic and integrated approach to managing performance is more likely to be achieved in this way than by detailed and centralised prescription of APS-wide approaches (ADMF Paper p.27).
(l) Equity in employment
3.5.22. The APS will promote equity in employment (Bill para.10(1)(l). Each Agency Head will be required to implement a Workplace Diversity Program (see Bill cl.18) to promote fairness in employment (see ADMF Paper, p.15).
(m) Access to APS employment
3.5.23. The APS will provide a reasonable opportunity to all eligible members of the community to apply for APS employment (Bill para.10(1)(m)). This complements the value in Bill para.10(1)(b), which provides that the APS will be a public service in which employment decisions are based on merit - para.3.5.2 above refers.
(n) A career-based service
3.5.24. The APS will be a career-based service to enhance the effectiveness and cohesion of Australia's democratic system of government (Bill para.10(l)(n)). This value serves to affirm that the APS will remain an effective repository of knowledge about government administration and service delivery.
(o) Review of employment decisions
3.5.25. The APS will provide a fair system of review of decisions taken in respect of APS employees (Bill para.10(1)). This value will complement the values in paras.(10)(1)(b) and (1), which will provide for employment decisions being based both on merit and equity - paras 3.5.2 and 3.5.23 above refer.
Definition of Merit
3.5.26. The JCPA Report recommended (recommendation 6) that the Public Service Bill contain a definition of merit. In response to that recommendation, the Bill includes the following definition (s-cl.10(2)):
(2) For the purpose of paragraph (1)(b), a decision relating to engagement or promotion is based on merit if:
(a) an assessment is made of the relative suitability of the candidates for the duties, using a competitive selection process;
(b) the assessment is based on the relationship between the candidates' work-related qualities and the work-related qualities genuinely required for the duties;
(c) the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties; and
(d) the assessment is the primary consideration in making the decision.
Implementation of APS Values
3.5.27. The APS Values will be implemented through:
* the Commissioner's Directions (see Bill cl.11);
* the Code of Conduct (see Bill s-cl.13(11)); and
* the obligation on Agency Heads and the SES to promote and uphold the Values (see Bill cl.12 and para.35(2)(c)).
Extension of APS Values
3.5.28. Any extension of the APS Values outside the APS to Commonwealth bodies not staffed under this Bill will be carried out later as a separate project (see also McLeod Report para.2.46).
Clause 11 - Commissioner's Directions about APS Values
3.6. The Public Service Commissioner will be required to issue Commissioner's Directions in relation to the APS Values (Bill s-cl.11(1) - no equivalent in 1922 PSA). The APS Values will have effect subject to any restrictions contained in the Commissioner's Directions (Bill s-cl.11(2)).
3.7. Commissioner's Directions will be issued for the purpose of ensuring that the APS both incorporates and upholds the APS values. If necessary, the Directions will be able to:
* deal with the circumstances of a particular agency (see AIA s-sec.33(3A); and
* determine the scope or application of a particular value (Bill s-cl.11(1)(b)).
3.8. In this way the Commissioner will, where necessary, be able to:
* resolve any conflicts that arise in practice between the APS Values;
* support programs for particular groups (e.g. youth, Aboriginal and Torres Strait Islander peoples, as per PS Regs reg.71B);
* ensure fairness (e.g. that the claims of those most needing training are properly considered);
* ensure appropriate selection procedures for different types of work (e.g. for different categories of employment); and
* address specific requirements for particular jobs (e.g. restrictions on `persons actively engaged in electoral or political affairs' for certain jobs in the Australian Electoral Commission as per PS Regs reg.71AA).
3.9. There will also be Commissioner's Directions relating to breaches of the Code of Conduct (see Bill cl.15) and on SES employment matters (see Bill cl.36).
Clause 12 - Agency Heads must promote APS Values
3.10. An Agency Head will be required to uphold and promote the APS Values
(Bill cl.12).
3.11. A similar requirement will be imposed on SES employees (see Bill para.35(2)(c)).
Clause 13 - The APS Code of Conduct
3.12. The Bill will include a statutory Code of Conduct (Bill cl.13, cf. McLeod Bill para.D.3). This will ensure that the Code is legally enforceable and will strengthen its role as a public statement of the standards of behaviour and conduct that are expected of those who work in core public employment (see ADMF Paper pp.14--15).
3.13. To amount to a breach of the Code, the conduct concerned must happen while the person is an APS employee. Furthermore, misconduct proceedings will not apply after a person ceases to be an APS employee, even if the breach happened while the person was an APS employee.
3.14. Details of each element of the Code are set out below. In response to JCPA recommendation 5, the various propositions for possible amendments to cl.13, outlined in Appendix IV of the JCPA report, were considered in detail. Amendments were adopted by the Government to s-cl.13(3) and s-cl.13(9).
(1) Honesty
3.14.1. An APS employee will be required to behave honestly and with integrity in the course of employment (Bill s-cl.13(1)).
(2) Care and diligence
3.14.2. An APS employee will be required to act with care and diligence in the course of employment (Bill s-cl.13(2)).
(3) Respect and courtesy
3.14.3. An APS employee will be required, when acting in the course of employment, to treat everyone with respect and courtesy, and without harassment (Bill s-cl.13(3)).
(4) Compliance with the law
3.14.4. An APS employee will be required, when acting in the course of employment, to comply with all applicable Commonwealth, State or Territory laws (including subordinate legislation) (Bill s-cl.13(4), based on 1922 PS Regs former para.8A(b), which was omitted when an APS Code of Conduct was inserted in 1922 PS Regs with effect from 15 March 1998).
3.14.5. The requirement to comply with applicable laws will include requirements in this Bill (e.g. prohibition on patronage in Bill cl.17).
(5) Compliance with directions
3.14.6. An APS employee will be required to comply with any `lawful and reasonable' direction given by someone in the same Agency having authority to give the direction (Bill s-cl.13(5) - based on 1922 PS Regs former para.8A(c), which was omitted when an APS Code of Conduct was inserted in 1922 PS Regs with effect from 15 March 1998).
(6) Confidentiality
3.14.7. An APS employee will be required to maintain `appropriate confidentiality' about dealings that the employee has with any Minister or member of a Minister's staff (Bill s-cl.13(6)).
3.14.8. This requirement will complement the:
* confidentiality requirements in the Information Privacy Principles (IPPs) in relation to personal information; and
* restrictions in the Crimes Act 1914 on the unauthorised disclosure of information by Commonwealth officers (s.70).
3.14.9. Section 70 of the Crimes Act 1914 provides that
70. (1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he is authorised to publish or communicate it, any fact or document which comes to his knowledge, or into his possession, by virtue of being a Commonwealth officer, and which it is his duty not to disclose, shall be guilty of an offence.
(2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him), any fact or document which came to his knowledge, or into his possession, by virtue of having been a Commonwealth officer, and which, at the time when he ceased to be a Commonwealth officer, it was his duty not to disclose, shall be guilty of an offence.
Penalty: Imprisonment for two years.
(7) Avoidance of conflict of interest
3.14.10. An APS employee will be required to disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with employment as an APS employee (Bill s-cl.13(7) based on 1922 PS Regs former r.8B, which was omitted when an APS Code of Conduct was inserted in 1922 PS Regs with effect from 15 March 1998).
(8) Use of Commonwealth resources
3.14.11. An APS employee will be required to use Commonwealth resources in a proper manner (Bill s-cl.13(8); this requirement is wider than 1922 PS Regs former para.8A(g), which was omitted when an APS Code of Conduct was inserted in 1922 PS Regs with effect from 15 March 1998.
(9) No false or misleading information
3.14.12. An APS employee will be prohibited from providing false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment (Bill s-cl.13(9) - no equivalent in 1922 PSA or in 1922 PS Regs).
(10) No improper advantage
3.14.13. An APS employee will be prohibited from making improper use of inside information, or the employee's duties, status, power or authority, in order to gain or seek to gain a benefit or advantage for him/her self or any other person (Bill s-cl.13(10) - based on 1922 PS Regs former para.8A(h) in relation to official information or documents, which was omitted when an APS Code of Conduct was inserted in 1922 PS Regs with effect from 15 March 1998).
(11) Upholding the integrity of the APS
3.14.14. An APS employee will be required to behave at all times in a way that upholds the APS Values and the integrity and good reputation of the APS (Bill s-cl.13(11)).
This provision is wider than 1922 PS Regs former para.8A(i), which was omitted when an APS Code of Conduct was inserted in 1922 PS Regs with effect from 15 March 1998.
(12) Upholding Australia's reputation
3.14.15. An APS employee will be required when overseas on duty to uphold the good reputation of Australia (Bill s-cl.13(12) - no equivalent requirement in 1922 PSA or in 1922 PS Regs). This requirement is intended to apply to situations where an APS employee is involved in conduct overseas which by virtue of the person's status as an APS employee, the nature of the conduct and the degree to which the APS employee is, or may be seen as, representing Australia overseas, the good reputation of Australia may be damaged or threatened.
3.14.16. This requirement is consistent with the statement by the Minister for Foreign Affairs (15 May 1997) that:
Maintaining and strengthening Australia's reputation abroad is the duty and privilege of all who can be regarded as Australian representatives, not just those assigned to serve in our diplomatic missions.
(13) Any other conduct requirement
3.14.17. An APS employee will be required to comply with any other conduct requirement that may be prescribed (Bill s-cl.13(13) - the approach of 1922 PSA from 1987 was to insert almost all conduct requirements in the 1922 PS Regs).
Agency Codes
3.14.18. Agency Heads will be able to supplement the Code of Conduct with any further or more detailed requirements that may be needed because of the particular operational circumstances of that Agency.
Clause 14 - Agency Heads bound by Code of Conduct
3.15. Agency Heads will be bound by the Code of Conduct (Bill s-cl.14(1)). There is no equivalent obligation in 1922 PSA apart from the disciplinary provisions in relation to Agency Heads who are Secretaries (see 1922 PSA s-sec.56A-60).
3.16. Statutory office holders will also be bound by the Code of Conduct
(Bill s-cl.14(2)). For the purposes of cl.14 of the Bill, `statutory office holder' will mean a person who holds any office or appointment under an Act, being an office or appointment that is prescribed by the regulations for the purpose of the definition (Bill s-cl.14(3)).
3.17. The effect of s-cl.14(2) will be that an Agency Head who is a statutory office holder, and whose office or appointment is prescribed by the regulations, will be bound by the Code of Conduct in the same way as other Agency Heads.
3.18. It is envisaged that the regulations would prescribe that all Agency Heads of the agencies listed in Parts C and D of Attachment B of this Ex Memo would be bound by the Code of Conduct.
3.19. One of the functions of the Public Service Commissioner will be to inquire into, and report to the appropriate authority on, alleged breaches of the Code of Conduct by Agency Heads (see Bill para.41(1)(f) and s-cl.41(3)).
Clause 15 - Breaches of the Code of Conduct
Current disciplinary provisions
3.20.1. The present framework of disciplinary provisions was put in place by the Public Service Amendment Act 1978. It replaced procedures established by the 1922 PSA which had undergone few significant modifications since the time of its original enactment, and which were derived in turn from the 1902 PSA and comparable provisions in the preceding public service legislation of the Australian colonies.
3.20.2. The 1978 amendments to the disciplinary provisions were based on a report in 1973 by a Joint Council Sub-Committee, subsequently endorsed by Joint Council, which concluded that the following points should be regarded as fundamental in framing a revised set of provisions:
* the primary aim of disciplinary provisions should be to facilitate efficient administration and public confidence in the integrity of the administration;
* there should be no unnecessary concern with the private lives of staff members;
* the disciplinary provisions should be seen as a complement to other management processes of supervision, leadership and staff counselling - disciplinary action should generally be seen as a last resort; and
* the disciplinary process should continue to be essentially administrative rather than judicial, but the principles of natural justice and fairness should be observed.
Inadequacy of 1922 PSA
3.20.3. The McLeod Report was very critical of the current procedures
5.13 The Act sets out detailed provisions (s.55-s.63T) on the manner in which misconduct is dealt with in the APS. These provisions are highly prescriptive and extensive, running to almost 40 pages. The Discipline Handbook, which is based on the Act and intended to give further guidance on the discipline process, runs to over 200 pages. There was widespread criticism of the complexity and legalistic nature of the current provisions and their heavy emphasis on process and concepts analogous to the criminal law. The philosophy and language of the process is outdated and out of touch with modern management philosophies.
5.14 The manner in which appeals are conducted by the MPRA's Disciplinary Appeal Committees (DACs) was also the subject of criticism where, it was alleged by a number of those consulted, process appears more important than outcome....
3.20.4. Accordingly, as indicated in the ADMF Paper (p.28), the Bill will provide a means for developing new approaches for dealing with misconduct which:
* dispense with red tape;
* enable Agency Heads to adopt procedures appropriate to their agencies; and
Sanctions for breach
3.20.5. An Agency Head will be able (Bill s-cl.15(1)) to impose the following sanctions on an APS employee in the Agency who is found (under procedures established under
Bill s-cl.15(3)) to have breached the Code of Conduct:
(a) termination of employment;
(b) reduction in classification;
(c) reassignment of duties;
(d) reduction in salary;
(e) deductions from salary, by way of a fine;
(f) a reprimand.
Comparable sanctions are specified in 1922 PSA s.62 dealing with inquiries into misconduct following a charge by an authorised officer under PSA s.61.
3.20.6. The sanction involving a reassignment of duties (including to a different location) is intended to be used in situations where the integrity and effectiveness of the APS may be compromised if an employee is not removed from a particular location, for example, a small office, even though the conduct in question does not warrant termination of employment. It would be used only after careful consideration of all the circumstances, taking into account the impact on the employee, such as the financial costs and the effect of dislocation on the employee and his or her family.
Limitations on powers of Agency Head
3.20.7. The new PS Regs will be able to prescribe limitations on the power of an Agency Head to impose sanctions under s-cl.15(1) of the Bill (Bill s-cl.15(2)).
Agency procedures
3.20.8. An Agency Head will be required to establish procedures for determining whether an APS employee in the Agency has breached the Code of Conduct (Bill s-cl.13(3)). The procedures:
(a) must comply with basic procedural requirements set out in Commissioner's Directions;
(b) must have due regard to procedural fairness; and
(c) may be different for different categories of APS employees.
3.20.9. The Public Service Commissioner will be required to issue directions in writing for the purposes of s-cl.15(3) of the Bill (Bill s-cl.15(4)).
3.20.10. An Agency Head will be required to take reasonable steps to ensure that every APS employee in the Agency has ready access to the documents that set out the procedures referred to in s-cl.15(3) of the Bill (Bill s-cl.15(5)).
3.20.11. These provisions reflect the McLeod Report view that Agency Heads should be enabled (para.5.17) `to deal with allegations of misconduct to finality as expeditiously as possible'.
Procedural fairness
3.20.12. The procedures established by an Agency Head must comply with basic procedural requirements set out in the Public Service Commissioner's Directions and must have due regard to procedural fairness (Bill para.15(3)(a) and (b)).
3.20.13. The rules of procedural fairness have been described by Margaret Allars (Introduction to Australian Administrative Law, Butterworths, Sydney, 1990, p.236):
The three principles of procedural fairness are the hearing rule, the bias rule and the no evidence rule. The hearing rule, based on the maxim audi alteram partem, requires a decision-maker to give an opportunity to be heard to a person whose interests will be adversely affected by the decision. The bias rule, based on the maxim nemo debet esse judex in propria sua causa, requires a decision-maker to be disinterested or unbiased in the matter to be decided...
The no evidence rule, which has developed comparatively recently, requires that a decision be based upon logically probative evidence...
3.20.14. The concept of `procedural fairness' has also been used in other recent Commonwealth legislation:
* Corporations Legislation Amendment Act 1994, which applies (Schedule 4) the rules of procedural fairness to an inquiry conducted by a Panel under s.195 of the Australian Securities and Investments Commission Act 1989; and
* Health Insurance (Quality Assurance Confidentiality) Amendment Act 1992, which (s.3) excluded proceedings for breach of procedural fairness from the immunity from suit which is given (s.106Q) to members of certain assessment or evaluation committees (based on a similar exclusion in s.124ZB of the Health Insurance Act 1973).
Transitional
3.20.15. The transitional arrangements in relation to pre-commencement misconduct will be as follows (see CTA Bill cl.10):
* where an APS employee was charged before this Bill commences and the charge was dealt with to finality: no action will be possible under this Bill;
* where an APS employee was charged before the commencement of this Bill and the charge was not dealt with to finality: regulations will be made to enable the matter to be completed under 1922 PSA;
* where an APS employee was not charged before the commencement of this Bill: the Agency Head will be able to deal with the matter under this Bill and to impose the same sanctions as are allowed under the Bill provided that the conduct was both misconduct under the 1922 PSA and a breach of the new Code of Conduct.
3.20.16. This approach is the same as that taken when the current misconduct provisions were inserted by the Public Service Amendment Act 1978 (see s.49 of that Act).
Clause 16 - Protection for public interest whistleblowers
3.21. Anyone performing functions in or for an Agency will be prohibited from victimising or discriminating against people who report (i.e. `blow the whistle on') breaches or alleged breaches of the Code of Conduct (Bill cl.16 - no equivalent in 1922 PSA).
3.22. These reports will be able to be made to (Bill cl.16):
(a) the Public Service Commissioner or a person authorised by the Commissioner (Bill para.16(a)) - the Commissioner will be able to investigate these reports under his or her special inquiry powers (see Bill para.41(1)(c) and para.43(1)(b));
(b) the Merit Protection Commissioner or a person authorised by the Merit Protection Commissioner (Bill para.16(b)) - the Merit Protection Commissioner will be able to investigate these reports under his or her inquiry powers (see Bill para.50(1)(a)); or
(c) an Agency Head or a person authorised by the Agency Head (Bill para.16(c)).
Crimes Act
3.22.1. The provision of such reports to the persons specified in this Bill would be regarded as authorised disclosure and hence would not be an offence under s.70 of the Crimes Act 1914.
Agency procedures
3.22.2. It is proposed that the Public Service Commissioner will issue a Commissioner's Direction outlining the minimum procedures to be followed by Agencies when the Agency Head or an authorised person receives a report alleging a breach of the Code of Conduct.
3.22.3. Some Agencies already have whistleblowing schemes in place. The Department of Defence, for example, encourages disclosures through line management or chain of command, and its procedures may provide a useful model for other agencies when developing their own schemes.
Review of actions
3.22.4. The New PS Regs will set out the arrangements which will apply in relation to review by the Merit Protection Commissioner where the breach that is reported is related to a request by an APS employee for a review of an action that relates to her or his APS employment (see Bill cl.33).
Non-APS matters
3.22.5. Persons who wish to report concerns about matters not covered by the Code of Conduct will continue to be able to report them to the Commonwealth and Defence Force Ombudsman.
Clause 17 - Prohibition on patronage and favouritism
3.23. A person exercising powers under this Bill or the New PS Regs in relation to APS employees and their engagement will be required to do so without patronage or favouritism (Bill s-cl.17(1)). A breach of s-cl.17(1) of the Bill will be treated as a breach of the Code of Conduct.
3.24. This rule will be wide enough to apply to any Minister. However, it will not apply to:
* any direction about Heads of Mission (Bill s-cl.17(2)); or
* the appointment, etc. of Secretaries or Heads of Executive Agencies (who are not included in the definition of APS employees).
Clause 18 - Promotion of employment equity
3.25. An Agency Head will be required to establish a workplace diversity program to assist in giving effect to the APS Values (Bill cl.18 - cf. 1922 PSA s.22B requiring EEO programs and WRA para.3(j) about `respecting and valuing the diversity of the workforce').
3.26. The Commissioner's Directions will:
* set out the substantive requirements for a workplace diversity program; and
* require all Agency Heads to report annually to the Public Service Commissioner on their workplace diversity programs.
3.27. The Commissioner's Directions will ensure that the Commissioner has the power and the information necessary to compare agencies' diversity performance. The Public Service Commissioner will provide, through guidelines and Best Practice Advice, assistance to agencies to develop and apply performance indicators and criteria which they can use to report annually on their program. This takes account of JCPA recommendations 9, 10, 11 and 12.
Clause 19 - Limitation to Ministerial directions to Agency Head
3.28. An Agency Head will not be subject to direction by any Minister in relation to individual APS staffing decisions (Bill cl.19 - no equivalent provision in 1922 PSA). This limitation to a Minister's powers of direction will reinforce the APS Value of an apolitical public service (see Bill para.10(1)(a)).
3.29. The limitation will not apply to the appointment of Heads of Mission (see Bill cl.39). As Executive Council appointments, they are outside the limitation which relates to the ordinary powers of an Agency Head under Divisions 1 and 2 of Part 4).
Division 1 - APS employees generally
Clause 20 - Employer powers, etc. of Agency Heads
4.1. An Agency Head will, on behalf of the Commonwealth, have all the rights, duties and powers of an employer (Bill s-cl.20(1) - cf.NZ State Sector Act 1988 s-sec.59(2)). Because, constitutionally, the ultimate employer of any APS employee is the Crown in right of the Commonwealth, the Agency Head will be given `the rights, duties and powers' of, but will not be described as, `the employer'.
4.2. This will change the basis of the current system where many of the current staffing powers are exercised by Agency Heads, but only by delegation from the Public Service Commissioner. This change will ensure that at law an Agency Head will have all the powers of an ordinary employer recognising that the employment laws for the APS are to be aligned as far as possible with the those of private sector.
4.3. These general powers will enable an Agency Head to do the following without separate statutory authority:
* establish appropriate employment and management arrangements that best support the functions of the Agency, while having due regard to the needs of employees;
* create administrative positions if these are needed (creation of positions where these are needed to achieve certainty of delegation is dealt with in Bill cl.77);
* determine any arrangements in relation to the resignation of APS employees;
* require APS employees not to engage in employment outside the Agency without permission;
* deal with underperformance - including to reduce remuneration for poor performance where this is expressly provided for in AWAs, certified agreements, or other arrangements with an employee (reduction in classification following misconduct proceedings is covered in Bill cl.15 - see also Bill cl.24 dealing with determination-making power); at common law it is not possible to reduce remuneration unless this is an express term of the contract of employment; and
* re-engage a person who has ceased to be an APS employee (cf.1922 PSA s.47B) - the Commissioner's Direction on Merit in Employment will allow re-engagement in certain circumstances without a full merit selection process.
4.4. Any specific powers that are required to achieve consistency with the rights, duties and powers of an ordinary employer will be prescribed by regulation (Bill s-cl.20(2)).
4.5. No attempt has been made to duplicate obligations that an Agency Head might have under other legislation (e.g. under Part 7 of the FMA Act dealing with the special financial responsibilities of `Chief Executives').
Clause 21 - Prime Minister's directions to Agency Heads
4.6. The Prime Minister will be able to issue general written directions to Agency Heads relating to the management and leadership of APS employees (Bill s-cl.21(1)). An example of a direction which is proposed to be issue is one which will require Agency Heads to grant leave without pay to APS employees to enable them to take up appointments as statutory office holders or as employees under the Members of Parliamentary (Staff) Act 1984.
4.7. A direction issued in accordance with s-cl.21(1) must be published in the Commonwealth Gazette within 14 days after the direction is issued (Bill s-cl.21(2)).
4.8. As is the case now, Agency Heads will be expected to observe Government policy directions in the administration of their agencies (see ADMF Paper p.9). Ministerial directions in relation to ordinary individual staffing decisions will be limited (see Bill cl.19 and s-cl.74(3)).
Clause 22 - Engagement of APS employees
4.9. An Agency Head will be able, on behalf of the Commonwealth, to engage persons as employees for the purposes of the Agency (Bill s-cl.22(1) - cf.1922 PSA s.42 which provides for appointment to the Service). This power of engagement will be exclusive to the Agency Head or a delegate of an Agency Head (see Bill s-cl.78(6)), except for:
* certain machinery of government changes (see Bill cl.72); or
* cases authorised by some other Act.
4.10. One effect will be that an Agency Head will not be able to be compelled to engage a particular person unless this is expressly provided for in this Bill or in some other Act. For example, an Agency Head could still be compelled to re-engage a person under WRA `reinstatement' rules (e.g. WRA para.170CR(1)(b)).
Categories of employment
4.10.1. Unlike the 1922 PSA, the Bill does not spell out detailed staffing rules for different categories of employment. The spelling out of different categories of staff with different rules and rights attached to each was one of the sources of complexity in the 1922 PSA.
4.10.2. The Bill will establish, however, a broad framework for the engagement of an APS employee (see Bill s-cls.22(2), (3), (4) and (5)) as outlined below.
4.9.3. The engagement of an APS employee (including an engagement as a consequence of a machinery of government change under cl.72 of the Bill), must be:
(a) as an ongoing APS employee (Bill para.22(2)(a));
(b) for a specified term or for the duration of a specified task (Bill para.22(2)(b)); or
(c) for duties that are irregular or intermittent (Bill para.22(2)(c)).
4.9.4. The usual basis for engagement will be as an ongoing APS employee
(Bill s-cl.22(3)). This provision is intended to apply to APS employment as a whole.
It is likely, from time to time, there will be individual agencies where, for good reasons, the usual basis of engagement is not as an ongoing employee. For example, an agency may be established for a purpose that has limited duration, such as to prepare for a special event, or inquiry. In addition, some agencies with an ongoing role may regularly engage significant numbers of non-ongoing staff for a particular purpose - for example, engagement of Antarctic expeditioners by the Australian Antarctic Division of Environment Australia.
4.9.5. It will be important for Agency Heads to spell out when engaging staff the basis on which staff are engaged. In particular, they will need to spell out in the notice of engagement whether the staff member is engaged:
* as an ongoing APS employee;
* for a specified term or for the duration of a specified task; or
* for duties that are irregular or intermittent.
It will be necessary to spell out also whether the engagement is subject to a probationary period, as this will be a major factor in determining the entitlements of the staff member under other legislation, such as superannuation, long service leave and access to remedies in relation to termination of employment provisions under the WRA, as well as under industrial awards and agreements (e.g. eligibility for redundancy benefits).
4.9.6. The regulations will be able to limit (Bill s-cl.22(4), the circumstances in which persons may be engaged for a specified term or specified task (Bill para.22(2(b)), or for duties that are irregular or intermittent (Bill para.22(2)(c).
4.9.7. An engagement for a specified term under para.22(2)(b) of the Bill will be able to be extended subject to any limitations that may be prescribed in the new PS Regs
Conditions
4.9.8. Any engagement of an APS employee (see Bill s-cl.22(1) and cl.72) will be able to be subject to conditions (Bill s-cl.22(6)).
4.9.9. Without limiting the generality of the power to impose conditions, the Bill specifically recognises that conditions may be imposed in relation to five specified matters (Bill s-cl.22(6)):
* probation;
* citizenship;
* formal qualifications;
* character and security clearances; and
* health clearances.
4.9.10. The specific recognition of these conditions will make it clear that a termination of employment for breach of one of these conditions will not, for that reason alone, be:
* `harsh, unjust or unreasonable' for WRA purposes (see WRA para.170CA(1)(c)); or
* `unfair or unlawful' for WRA purposes (see WRA s-sec.170CG and 170CK).
4.9.11. Each of the specific conditions is dealt with below.
Probation
4.9.12. The Bill specifically recognises that a condition may be imposed in relation to probation (Bill para.22(6)(a)). This continues the current approach that, subject to a discretion vested in the Public Service Commissioner, an appointment of an officer (other than a Secretary) should `in the first instance, be an appointment on probation' (see 1922 PSA s.47).
4.9.13. An employee serving a period of probation or a qualifying period of employment is excluded from the termination of employment requirements in the WRA if the duration of the period or the maximum duration of the period, as the case may be, is known in advance and is three months or less or, if more than three months, is reasonable having regard to the nature and circumstances of the employment (see WRA para.170CC(1)(b) and WR Regs para.30B(1)(c)).
Citizenship
4.9.14. The Bill specifically recognises that a condition may be imposed in relation to citizenship (Bill para.22(6)(b)). (See also Bill s-cl.22(8)).
Formal qualifications
4.9.15. The Bill specifically recognises that a condition will be able to be imposed in relation to formal qualifications (Bill para.22(6)(c) - cf.1922 PSA s.33A).
Security and character clearances
4.9.16. The Bill specifically recognises that a condition will be able to be imposed in relation to security and character clearances (Bill para.22(6)(d)). This resolves an area of uncertainty in the current employment framework and gives effect to a recommendation in the McLeod Report (para.4.46 R37) that:
...the new Act should contain a provision that...applicants...for whom the secretary judges it necessary, will need to satisfy the secretary as to their suitability to be employed in the APS, as appropriate, based on a character check and an assessment of their security status. Employees' security status may also be assessed before they are transferred or promoted to duties which require it.
Health clearances
4.9.17. The Bill specifically recognises that a condition will be able to be imposed in relation to health clearances (Bill para.22(6)e)). This will give Agency Heads more flexibility than under the current employment framework, which requires new staff to undergo a test of physical fitness before their recruitment can be confirmed (1922 PSA paras.47(2)(b) and 47(11)(a)).
Other conditions
4.9.18. Specifying these conditions will not limit by implication the conditions that may otherwise be applied to the engagement of an APS employee (Bill s-cl.22(7).
Citizenship requirement
4.9.19. The Public Service Reform Act 1984 removed the requirement that appointees to the APS be British subjects. An Australian citizenship requirement was inserted in its place, but with provision for that requirement to be waived in specific cases with the approval of the Prime Minister. Subsequently, the Public Service Legislation (Streamlining) Act 1986 allowed the appointment on probation of persons who were not Australian citizens, but on the basis that their appointments would be confirmed only if citizenship was granted. In exceptional cases, and only in accordance with arrangements approved by the Prime Minister, a person who was not an Australian citizen could be appointed without probation or have his or her appointment confirmed without citizenship having been granted.
4.9.20. The Bill continues this general approach but recognises the new devolved framework. An Agency Head will not be able to engage a non-Australian citizen unless the Agency Head considers it appropriate to do so (Bill s-cl.22(8).
4.9.21. It should be noted that, while it is technically possible, as a result of WRA s.121, for the AIRC to make an award which is inconsistent with Commonwealth legislation, the Government regards the types of employment that apply within the APS as a fundamental issue, where the provisions included in the Bill, and any associated regulations, should prevail. Accordingly, the Government will not initiate any application to vary the award in a way that is inconsistent with the provisions on types of employment included in the Bill and regulations. It will also oppose any such application made by others.
4.9.22. Similarly, while WRA ss.170LZ and 170VR enable the making of regulations that would allow certified agreements and AWAs to override prescribed conditions of employment set out in prescribed Commonwealth laws, it is not the Government's intention to enable the provisions of the Bill and the regulations relating to types of employment to be overriden by agreements under the WRA.
4.9.23. It is intended to seek variations to the APS Award to come into effect at the same time as the Bill, to reflect the new types of employment provided for in the Bill. That award, and agreements under the WRA, identify those terms and conditions of employment that may vary depending on the basis of engagement.
Clause 23 - Classification Rules
4.10. In the APS context, classification structures define classes of work according to work requirements, skills and responsibilities and are linked to a specific salary or range of salaries.
Current position
4.10.1. Currently, classifications are approved classifications for the purpose of 1922 PSA only if they are included in a s.28 declaration, in a s.82D determination, or in an award. APS classification levels currently exist in awards (only variable by agreement with the unions or via arbitration), and in agreements under the WRA (which may vary the award provisions, provided the changes involve classifications already authorised under s.28).
4.10.2. It is considered that there should be a systematic mechanism for categorising employees, for the immediate future. It is therefore considered that the application of the merit principle and the mobility arrangements should operate for the foreseeable future via the classification system. To ensure that these principles operate APS-wide as intended, centralised prescription of the classification system is needed.
New arrangements
4.10.3. The Minister who will be administering this Bill will be able, by notice in the Commonwealth Gazette, to make rules about the classification of APS employees (Bill s-cl.23(1)). These rules will be described in this Bill as `Classification Rules' (see Bill cl.7). The rules may be varied (see AIA s-sec.33(3)).
4.10.4. The purpose of the Classification Rules is to provide a systematic mechanism for categorising employees for the purposes of facilitating the application of the merit principle and the APS mobility arrangements. Common Service-wide prescription of the classification system is needed in order to distinguish clearly between promotions (which are subject to merit) and assignments of duties at the same classification level or reductions in classification, where different rules and rights of review may apply. The Classification Rules will create a framework of approved classification for these purposes. It is not intended that they would be used to make rules that directly change the classification of individual employees or their remuneration and conditions.
4.10.5 The Classification Rules will recognise existing classifications in awards. They will also be drafted so that, whenever there is a variation in the classification set out in an award that applies to the APS, the new classification will automatically become an approved classification for the purposes of the Classification Rules (Bill s-cl.23(2)).
4.10.6. An Agency Head will be required to comply with the Classification Rules
(Bill s-cl.23(3) - cf.1922 PSA ss.27 and 28 dealing with classification of offices and officers). It is intended that Agency Heads should apply the Classification Rules, not only when exercising powers under this Bill, but also when exercising powers under other laws in relation to APS employees (e.g. WRA power to enter into AWAs and CAs, which will need to be consistent with the Rules).
4.10.7. An Agency Head will not be able to reduce the classification of an APS employee under provisions of this Bill without the employee's consent, except in the following cases (Bill s-cl.23(4)):
(a) as a sanction under clause 15 of the Bill;
(b) in accordance with Public Service Commissioner's Directions in relation to SES employment matters under clause 36 of the Bill;
(c) on the ground that the employee is excess to the requirements of the Agency at the higher classification;
(d) on the ground that the employee lacks, or has lost, an essential qualification for performing duties at the higher classification;
(e) on the ground of non-performance, or unsatisfactory performance, of duties at the higher classification;
(f) on the ground that the employee is unable to perform duties at the higher classification because of physical or mental incapacity; and/or
(g) in other circumstances prescribed by the regulations.
4.10.8. If a relevant award, certified agreement or AWA contains procedures to be followed when reducing the classification of an APS employee, then a reduction will be of no effect unless those procedures are followed (Bill s-cl.23(5)).
4.10.9. Because of the move away from APS-wide pay-setting, it is proposed that the Commissioner's Directions will define promotion in terms of movement to a higher classification level. It is proposed that the new Classification Rules will enable groupings of classifications at comparable levels; movement within any such grouping would not be a promotion.
4.10.10. SES employees will be those APS employees who are classified as SES employees under the new Classification Rules (see Bill cl.34).
Clause 24 - Remuneration and other conditions
Introduction
4.11.1 Currently remuneration and other conditions for APS employees are dealt with as follows:
* salary (including performance pay) and allowances are usually covered by WRA (awards, certified agreements and AWAs), but sometimes under determinations (see 1922 PSA s.82D);
* fringe benefits (e.g. cars, accommodation) are sometimes covered by WRA, sometimes by non-statutory means (either as a privilege or an entitlement), and sometimes under determinations (see 1922 PSA ss.82D and 89);
* superannuation is sometimes covered by specific Acts, sometimes under WRA and sometimes by non-statutory means (e.g. AGEST). Cross-references to the superannuation legislation in 1922 PSA are not necessary and have been omitted from this Bill - the CTA Bill will contain some consequential amendments to the superannuation legislation;
* leave entitlements are sometimes covered by specific legislation (e.g. long service leave (LSL) and maternity leave) and sometimes under WRA (annual leave, sick leave, jury leave, leave without pay)(see 1922 PSA s.82D);
* hours of work are usually dealt with under WRA, but 1922 PSA has some rules (ss.29C and 29D) about part-time work (see also 1922 PSA s.82D).
4.11.2 A full list of the legislation other than the 1922 PSA which at that time related to APS terms and conditions is contained in Appendix 5 to the McLeod Report.
Agency Head
4.11.3 An Agency Head will be able from time to time to determine the remuneration and other conditions of employment for APS employees in that Agency. A determination by an Agency Head, concerning the remuneration or other conditions of employment of an employee or employees in the Agency, will be of no effect to the extent that it would reduce the benefit to an employee of any individual condition of employment applicable to the employee under an award, certified agreement or AWA (Bill s-cl.24(1)).
4.11.4 The power of an Agency Head under Bill s-cl.24(1) is one of the ordinary powers of an employer but is explicitly stated to emphasise the change from the current employment framework where these matters are determined centrally. The terms of s-cl24.(1) of the Bill will also clarify the relationship between the determination-making power under cl.24 of the Bill and awards and agreements under the WRA.
4.11.5 While agreements under the WRA are expected to establish most remuneration and conditions entitlements, Agency Heads may wish to continue to use their authority under s-cl.24(1) of the Bill to determine specific matters, for example, conditions for SES, or for Australian-based employees working overseas or in remote localities.
4.11.6 This power:
* will be delegable (see Bill s-cl.78(7));
* will be subject to any inconsistent determinations by the Minister administering this Bill (see Bill s-cl.24(4));
* will allow for different determinations for different classes (AIA s-sec 33(3A));
* will be exercised within the framework provided by other Commonwealth laws dealing with matters such as superannuation, compensation, LSL and maternity leave (Bill s-cl.24(1) Note).
4.11.7 In addition such a determination will be able to apply, adopt or incorporate, with or without modification, any of the provisions of the following as in force at a particular time or as in force from time to time (Bill s-cl.24(2)):
* an award:
an award or order that has been reduced to writing under subsection 143(1), but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA (WRA s.4); or
* a certified agreement:
an agreement certified under Division 4 of Part VIB (WRA s.4).
4.11.8 It is proposed that, as is currently the case in relation to 1922 PSA s.82D determinations, regulations will be made under the WRA to allow AWAs and CAs to be inconsistent with determinations made under cl.24 of the Bill. It is intended that such regulations will enable the making of later agreements under the WRA that are inconsistent with a determination by an Agency Head under Bill s-cl.24(1), but not the making of agreements that are inconsistent with a determination by the Public Service Minister under
s-cl.24(3) of the Bill. Thus, during such time as a determination by the Public Service Minister under s-cl.24(3) of the Bill remains in force, it would not be possible for this to be overridden by a later agreement under the WRA.
4.11.9 As a matter of practice, Agency Heads will be expected to take reasonable steps to ensure that every APS employee in the Agency has ready access to the documents that set out his or her remuneration and other terms and conditions of employment (cf.Bill s-cl.15(5)).
Public Service Minister
4.11.10 The Public Service Minister will also be able, by notice in the Commonwealth Gazette, to determine the remuneration and other conditions of APS employees
(Bill s-cl.24(3) - cf.1922 PSA s.82D).
4.11.11 This power:
* will be exercisable only where the Minister is of the opinion that it is desirable to do so because of exceptional circumstances (Bill s-cl.24(3));
* will not be delegable (Bill s-cl.78(2));
* will allow for different determinations in respect of different classes
(AIA s-sec.33(3A);
* will override any inconsistent determination by an Agency Head (Bill
s-cl.24(4)); and
* will operate within the context of the other Commonwealth laws referred to earlier.
4.11.12 The reserve power provided by Bill s-cl.24(3) will be exercisable only where the Public Service Minister is of the opinion that it is desirable because of exceptional circumstances. For example, in a public emergency - economic or in relation to national security or a national disaster - the Government may need to use such a power to create additional entitlements for a short period or to freeze existing entitlements or override conditions included in awards, agreements or determinations under s-cl.24(1) of the Bill, such as leave arrangements.
4.11.13. The power of the Public Service Minister under s-cl.24(3) of the Bill will be able to be used only in relation to classes of APS employees or APS employees as a whole - that is, the power will not be able to be exercised in relation only to an individual APS employee.
Clause 25 - Assignment of duties
4.12. An Agency Head will be able, from time to time, to determine (Bill cl.25):
* the duties of an APS employee in the Agency; and
* the places at which those duties are to be performed - which could include duties in the Territories or outside Australia (see Bill cl.5).
4.13. This power is, again, one of the ordinary powers of an employer and is expressly included in the Bill to emphasise that all the ordinary `rights, duties and powers' of an employer have been given to Agency Heads.
4.14. There will be no erosion in the terms of procedural fairness, which apply currently to an APS employee in relation to the assignment of duties to that employee.
Clause 26 - Voluntary moves between Agencies
4.15. An Agency Head will be able to arrange with an existing APS employee for that employee to move to the Agency Head's Agency from another Agency (Bill s-cl.26(1)). Any movement that is a promotion will be subject to the Commissioner's Direction on Merit in Employment (see Bill para.10(1)(b) and cl.11 and also ADMF Paper pp.12-14).
4.16. The agreement with the employee will have effect according to its terms but will be subject to any regulations (Bill s-cl.26(2)). Guidelines to be issued by the Commissioner will suggest sensible approaches in normal circumstances for dates of release, etc.
4.17. Movements between Agencies by agreement between an Agency Head and an APS employee are separate from any movements effected by the Public Service Commissioner between agencies
* where an APS employee is excess (see Bill s-cl.27(1)); or
* to give effect to machinery of government changes (see Bill cl.72).
Clause 27 - Compulsory moves between Agencies
4.18. The Public Service Commissioner will be able to move an excess APS employee from one Agency to another (Bill s-cl.27(1)). This retains the power of redeployment by transfer in the current employment framework (see 1922 PSA ss.76L, 76W and 51) and will facilitate the effective redeployment of excess employees (ADMF Paper p.29).
4.19. As a matter of practice, this power will normally be exercised by the Public Service Commissioner only after consultation with each of the Agency Heads.
4.20. An APS employee will be regarded as an excess APS employee for the purposes of this power of redeployment (but not for any other purpose) only if the Agency Head has notified the Public Service Commissioner that the employee is excess to the requirements of the Agency (Bill s-cl.27(2)).
Clause 28 - Suspension
4.21. The New PS Regs will prescribe the circumstances in which an APS employee can be suspended from duty with or without remuneration (Bill cl.28).
4.22. The reasons for a suspension power are:
* without an explicit suspension power, it would not be clear that an Agency Head would be able to suspend an APS employee. This power is not an implied term in the common law contract of employment; and
* such a power is needed in cases where it is believed that a person may have committed misconduct or has been charged with a criminal offence or been found guilty of one, pending investigation, the hearing of charges or a decision on what action needs to be taken as a result.
4.23. It is proposed that the provisions for suspension to be set out in the New PS Regs will deal with the matters that are covered in the suspension provisions in 1922 PSA
(see s-sec.63B, 63C and 63JA).
4.24. The arrangements to be put in place in relation to the suspension of an APS employee will make it clear that the outside limit of reasonableness for a period of suspension without pay would be 30 days, unless exceptional circumstances applied.
4.25. The rules of procedural fairness would apply to any suspension.
Clause 29 - Termination of employment
4.26. An Agency Head will be able to terminate the employment of any APS employee in the Agency (Bill s-cl.29.(1)).
4.27. Subject to the exclusions from coverage set out in the WR Regs, any termination of a non-SES employee will be subject to the WRA rules in relation to termination of employment (Bill cl.29 Note). As pointed out in the ADMF Paper (p.29)
...non-SES employees will have the protection against dismissal on discriminatory grounds available to them under the Workplace Relations Act (section 170CK). Dismissals which are harsh, unjust or unreasonable will be open to review by the Australian Industrial Relations Commission (s.170CE) with the possibility of reinstatement or compensation after a successful application.
4.28. In addition, it is not lawful for Agency Heads to terminate employment on any of the grounds set out in s.170CK of the WRA, except as allowed by that section in the case of an inherent requirement of the job.
4.29. For an ongoing APS employee (see Bill s-cl.22(2) and (3), the notice of termination must specify the ground or grounds that are relied on for the termination
(Bill s-cl.29(2)).
4.30. The only grounds for termination for an ongoing employee will be the following (Bill s-cl.29(3)):
(a) the employee is excess to the requirements of the Agency;
(b) the employee lacks, or has lost, an essential qualification for performing his or her duties;
(c) non-performance, or unsatisfactory performance, of duties;
(d) inability to perform duties because of physical or mental incapacity;
(e) failure to satisfactorily complete an entry-level training course;
(f) failure to meet a condition imposed under s-cl.22(2) of the Bill;
(g) breach of the Code of Conduct; or
(h) any other ground prescribed by the regulations.
4.31. The regulations will be able to prescribe grounds or procedures applicable to the termination of the engagement of non-ongoing APS employees (Bill s-cl.29(4)). A `non-ongoing APS employee' is defined in cl.7 of the Bill to mean a person who is not an ongoing APS employee.
4.32. Sub-clause 29(4) of the Bill will not, by implication, limit the grounds for termination of a non-ongoing APS employee (Bill s-cl.29(5)). This provision could be relevant if, for example, regulations were to be made under s-cl.29(4) of the Bill dealing with the grounds or procedures to be followed in relation to the termination of employment of non-ongoing employees, but those regulations did not seek to specify exhaustively the permissible grounds for termination.
4.33. A decision by an SES employee to retire as a consequence of a notice given by an Agency Head under s-cl.37(1) which broadly corresponds to 1922 PSA s.76R, does not constitute a termination by an Agency Head for the purposes of cl.29 of the Bill.
4.34. The termination of employment of an SES employee will be subject to the terms of relevant provisions of the Commissioner's Direction on SES employment (see Bill cl.36) and to the issue by the Commissioner of a certificate stating that those provisions have been satisfied in respect of the proposed termination and that the Commissioner is of the opinion that the termination is in the public interest (see Bill cl.38).
4.35. It will be possible to modify the exercise of the power to terminate under cl.29 of the Bill through Certified Agreements or AWAs under the WRA where this clause and the relevant conditions are prescribed for the purposes of s-secs 170LZ(4) and 170VR(4) of the WRA. For example, a Certified Agreement or an AWA might set out agreed processes for managing underperformance, redundancy, or provisions relating to compensation for early termination of a fixed term engagement. An Agency Head will not be able, however, to incorporate these terms in a common law contract of employment.
Clause 30 - Retirement
4.36. An APS employee who has reached minimum retiring age will be entitled to retire at any time by notice in writing to the Head of that employee's Agency (Bill s-cl.30(1)). This provision is the same in substance as 1922 PSA s-secs 76B(1) for Secretaries, 76I(1) for SES, and 76U(1) for other officers.
4.37. The minimum retiring age will be 55 years, or such other age as is prescribed by regulations (s-cl.30(2)). This provision is the same in substance as 1922 PSA s-sec.76B(2) for Secretaries, 76I(2) for SES, and 76U(2) for other officers.
4.38. The New PS Regs will be able to prescribe a different age either generally or for specified classes of employees (see AIA s-sec.33(3A) - no change from 1922 PSA). At this stage, no prescription is proposed.
Clause 31 - Forfeiture of additional remuneration
4.39. An Agency Head will have the power to notify an APS employee about forfeiture of any remuneration the employee has received from a person other than the Commonwealth for performing duties as an APS employee (Bill s-cl.31(1) - based on 1922 PSA
s-sec.91A(1)).
4.40. If an Agency Head receives any non-Commonwealth remuneration for performing duties as an Agency Head, then the Agency Minister will have the power to notify the Agency Head about forfeiture of that remuneration (Bill s-cl.31(3).
4.41. Any amount that is notified in these ways (Bill s-cls.31(2) and (4)) will be:
* taken to have been received, respectively, by the APS employee or by the Agency Head on behalf of the Commonwealth; and
* able to be recovered by the Commonwealth from the APS employee or from the Agency Head in a court of competent jurisdiction.
4.42. For the purposes of cl.31 of the Bill, the term `non-Commonwealth remuneration' will mean (Bill s-cl.31(5)) any remuneration from a person other than the Commonwealth.
4.43. These provisions are based on 1922 PSA (s-sec.91A(1)) except that the Bill provides a recovery mechanism. The 1922 PSA requires the person to pay but without specifying the consequences if the person does not.
4.44. As in 1922 PSA, the Bill does not deal with `double' Commonwealth remuneration for the same duties. The entitlement of a full-time APS employee to receive other remuneration from the Commonwealth is dealt with in s-sec.7(11) of the Remuneration Tribunal Act 1973:
(11) Except as prescribed, or as authorised or approved by or under any other law of the Commonwealth or any law of a Territory, a person is not entitled to be paid any remuneration in respect of his holding, or performing the duties of, a public office on a part-time basis if the person holds any office or appointment, or is otherwise employed, on a full-time basis in the service or employment of the Commonwealth, the Administration of a Territory, a public statutory corporation, an incorporated company referred to in paragraph 3(4)(da) or an incorporated company all the stock or shares in the capital of which is or are beneficially owned by the Commonwealth or by a public statutory corporation.
Clause 32 - Right of return for election candidates
4.45. An APS employee who has resigned to contest an election will, in certain circumstances, have a right to be re-engaged as an APS employee (Bill s-cl.32(2)).
4.46. The circumstances will be as follows (Bill s-cl.32(1)):
* the type of election has been prescribed in the regulations (this will initially include those elections currently specified in 1922 PSA: Commonwealth; State; Territory; Aboriginal and Torres Strait Islander Commission; Torres Strait Regional Authority;
* the resignation took effect not earlier than six months before the closing date for nominations; and
* the APS employee was a candidate in the election but failed to be elected.
4.47. The APS employee will be required to apply for re-engagement in accordance with the regulations and within the time limits specified in the regulations (Bill s-cl.32(2)).
4.48. It is proposed that the provisions to be set out in the New PS Regs will enable all provisions relating to this matter to be set out systematically in the one place. The New PS Regs will be generally along the lines of the provisions in 1922 PSA (see s.47C for officers and s.82B for employees) and Public Service Determination 1995.
4.49. In brief, the New PS Regs will enable a person who meets the requirements of cl.32 of the Bill:
* to be engaged as an APS employee (in accordance with cl.22 of the Bill) within two months of the results of an election being declared;
* to have the period between the resignation and the new engagement recognised as a period of service for sick leave, recreation leave, long service leave as per the Long Service Leave (Commonwealth Employees) Act 1976 and for salary incremental purposes (if applicable); and
* to have the engagement at the same classification level.
4.50. If an APS employee meets the requirements of the regulations, a right to be engaged again in APS employment does not amount to the person holding an office of profit under the Crown during the period between the person's resignation and engagement again.
4.51. The CTA Bill will amend s.120 of the Superannuation Act 1976 to replace the references in that section to s.47C of the 1922 PSA with references to cl.32 of the Bill.
Present position
4.52.1. The paper People Management and Administrative Law (PSC State of the Service Paper No.3, 1994) drew attention to the concerns that managers had about the complexity and legalism surrounding current review processes.
4.52.2. The ADMF Paper states (p.20) that:
At present there are too many avenues of appeal, resulting in complicated and convoluted processes. The responsibility to afford public servants a right of review of employment decisions needs to be balanced against the need to reduce the costs associated with an appeals culture.
Furthermore, if fundamental changes are to be made to the culture of the workplaces across the APS, it is imperative that effective employment practices and relationships are cemented at local levels. Agencies must take direct responsibility for establishing good employee relations policies--an attribute which is integral to the new devolved agreement making approach. Far greater emphasis, therefore, must be placed on resolving grievances at the agency level with less legalistic processes.
New approach
4.52.3. The Bill will provide the statutory framework for this new, streamlined approach to review of actions, while ensuring that reviews assist in the protection of the merit principle.
4.52.4 In response to JCPA comments on the desirability of separating the Public Service Commissioner's standard-setting functions from the review function, a statutory office of Merit Protection Commissioner will be established under Part 6 of this Bill. The appointment of an independent statutory officer will ensure the separation of the functions of setting standards and of reviewing employment decisions which apply those standards to individual APS employees.
4.52.5. An APS employee will be entitled to seek a review, in accordance with the regulations, of any action affecting the employee's APS employment. However, the employee will not be entitled to review under cl.33 of the Bill of action that consists of the termination of the employee's APS employment (Bill s-cl.33(1)).
4.52.6. The regulations will be able to provide for exceptions to the entitlement for review of an action (Bill s-cl.33(2)). The footnote to s-cl.33(2) of the Bill indicates, by way of example, that the regulations might provide that there is not an entitlement to review if the application for review is frivolous or vexatious.
4.52.7. It is proposed that the New PS Regs will exclude also:
* actions that are more appropriately dealt with by another external review
body
(e.g. under the WRA to the AIRC);
* the action is about the policy, strategy, nature, scope, resources or direction of the APS or an Agency;
* the action is action taken, or not taken, in accordance with a direction or reference given by a Minister under the Bill or another Act;
* the action is the giving of a direction by the Public Service Commissioner under clauses 11, 15 or 36 of the Bill;
* the action is action taken, or not taken, for a special inquiry under cl.43 of the Bill;
* the action is action taken, or not taken, under cl.72 of the Bill in relation to the implementation by the Commissioner of machinery of government changes;
* the action arises under any of the following Acts:
- Australian Security Intelligence Organization Act 1979
- Safety, Rehabilitation and Compensation Act 1988,
- Superannuation Act 1976,
- Superannuation Act 1990;
* the action relates to the engagement of an APS employee;
* the action relates to the promotion of an APS employee as an SES employee (whether or not the employee is already an SES employee); or
* the action determines, under cl.25 of the Bill, duties of an APS employee, or the place or places where they are to be performed, if the action does not involve:
- reduction in classification; or
- relocation to another place; or
- a promotion for which the applicant for review was an applicant; or
- the reassignment of an employee to duties that the employee could not be reasonably be expected to perform.
4.52.8. Locally engaged employees overseas (who are not `APS employees') will also not have this entitlement to a review.
External review
4.52.9. Without limiting the effect of s-cl.33(1) of the Bill, regulations made for the purposes of that sub-clause will be able to provide for the powers which will be available to the Merit Protection Commissioner, or any other person or body, when conducting a review under the regulations (Bill s-cl.33(3)). The Bill elsewhere also confers specific inquiry powers on the Merit Protection Commissioner (Bill cl.50 refers).
4.52.10. In accordance with s-cl.33(4) of the Bill, regulations made for the purposes of
s-cl.33(1) of the Bill:
(a) will be able to provide for an initial review to be conducted within the responsible Agency;
(b) will be able to provide that applications for review of particular kinds of APS action are to be made directly to the Merit Protection Commissioner;
(c) must provide for an application for review to be referred to the Merit Protection Commissioner if the applicant is not satisfied with the outcome of an initial review within the responsible Agency; and
(d) in the case of a review following an application or referral to the Merit Protection Commissioner, must provide for the review to be conducted by a person nominated by the Merit Protection Commissioner or by a three-member committee constituted in accordance with the regulations.
Reports
4.52.11. A person or body that has conducted a review under cl.33 of the Bill will be able to make recommendations in a report on the review, but will not have power to make any binding decisions as a result of the review, except as provided by the regulations
(Bill s-cl.33(5)).
4.52.12. If the Merit Protection Commissioner is not satisfied with the response to recommendations contained in a report on a review under cl.33 of the Bill, the Merit Protection Commissioner will be able (Bill s-cl.33(6)), after consulting the Public Service Minister, to give a report on the matter to the Agency Minister of the responsible Agency and to either or both of the following:
(a) the Prime Minister; and
(b) the Presiding Officers, for presentation to the Parliament.
Definitions
4.52.13. For the purposes of cl.33 of the Bill, the following definitions will apply
(Bill s-cl.33(7)):
action will include a refusal or failure to act;
APS action will mean action by a person in the capacity of an Agency Head or APS employee; and
responsible Agency, in relation to APS action, will mean the Agency in which the person who did the action was at the time of the action.
Termination of employment action
4.52.14 An application for relief in respect of the termination of employment of an APS employee which the APS employee claims is unfair or unreasonable by an Agency Head under cl.29 of the Bill, may be made under the relevant WRA provisions rather than under cl.33 of the Bill.
Division 2 - The Senior Executive Service
4.53. The APS will continue to have a Senior Executive Service (SES) (Bill Part 4 Division 2). The ADMF Paper stated (p.23):
It is proposed the concept of the SES be retained and that the new Public Service Act should include, for the first time, a clear statement of the purpose of the SES.
4.54. The current SES was established by the Public Service Reform Act 1984. It replaced and reshaped the former Second Division of the APS established under the 1922 PSA. The Second Division's role had been to constitute a grouping of senior staff who, under the Secretaries of Departments, were required to exercise
executive or professional functions in the more important offices of the Service (PSA former s.24 - repealed by Public Service Acts Amendment Act 1982, s.15 with effect from 1 July 1984).
4.55. The changes effected by the Reform Act were directed toward the establishment of a more unified and cohesive group of senior executive staff to undertake higher-level policy advice and managerial and professional responsibilities in APS agencies. The amendments also emphasised the nature of the SES as an APS-wide management resource with provision for its members to be deployed in and between agencies and for a greater degree of central management, leadership and involvement in the selection, development and placement of senior staff. The essential characteristics of SES employment, as established by the Reform Act in 1984, have remained in place.
Clause 34 - SES employees
4.56. SES employees will be those APS employees who are classified as SES employees under the Classification Rules made by the Minister responsible for administering this Bill (Bill cl.34). SES classifications currently derive their authority from declarations under 1922 PSA and from cl.20.6 of the APS Award (1922 PSA s-sec.28(1A) declarations under 1922 PSA were made on 4 January 1990 and 10 August 1990).
4.57. The current distinction between SES and SES (Specialist) will not be retained - all will be simply SES employees.
Clause 35 - Constitution and role of SES
4.58. The Senior Executive Service (SES) will consist of the SES employees (Bill s-cl.35(1), based on 1922 PSA s-sec.26AA(1)).
4.59. The function of the SES will be to provide a group of APS employees each of whom will carry out the following functions within her or his agency (Bill s-cl.35(2):
(a) the provision, at a high level, of one or more of the following: professional expertise, policy advice, or management (based on 1922 PSA para.26AA(2)(a) which refers to `higher level policy advice, managerial and professional responsibilities');
(b) the promotion of cooperation between agencies (no equivalent in 1922 PSA); and
(c) the promotion, by personal example and other appropriate means, of the APS Values (see Bill cl.10) and the Code of Conduct (see Bill cl.13) - no equivalent in 1922 PSA.
4.60. The mobility expectations in relation to SES employees will remain as a matter of Government policy (cf.1922 PSA para.26AA(2)(b)), but it is not considered necessary to include these expectati