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Public Sector Reform in Queensland: the Public Service Act 1996
Max Spry
Politics and Public Administration Group
The standard and delivery of public services and the accountability
of public servants seem increasingly subject to scrutiny and criticism.
On 25 November 1996, the Minister for Industrial Relations and Minister
Assisting the Prime Minister for the Public Service, the Hon Peter Reith,
released a Discussion Paper exploring the way ahead for the Australian
Public Service (APS). The paper suggests, amongst other things, that in
addition to the APS the Commonwealth should look to other sources of advice,
including academia and State governments.
Given that background, this note considers recent legislative changes
affecting the public service in Queensland, particularly the Public Service
Act 1996 (Qld) [the Act], which was assented to in October 1996. Rather
than comprehensively discussing each of the matters raised by the Act,
this note highlights a number of issues for consideration.
Public Service Act 1996: Objects and Principles
The objects of the Act are set out in Part 1, and include the establishment
of the public service as 'an apolitical entity responsive to Government
needs'. Services are to be provided to Government in 'a professional and
non-partisan way'. Further, the Act provides for the 'administration of
the public service and the management and employment of public service
employees'.
Part 3 of the Act sets out the principles of public service management
and employment. Management is to be directed to the provision of 'effective
and efficient services to the community and Government', implementing
Government policies, maintaining impartiality in advising Government,
managing resources in a fully accountable manner, and ensuring the ongoing
development of public service employees.
Part 3 also provides that public service employment should be based
on merit, provide equal employment opportunity and access to appropriate
training, avoid nepotism, and provide avenues of appeal.
Role of the Premier
The Act places considerable importance on the role of the Premier in
the management of the Queensland Public Service. Section 27 provides that
the Premier is to 'promote the overall effectiveness, efficiency and economy
of the public service', assess the quality of public service management,
and advise individual Ministers on how to improve the management of their
departments. Section 29 further empowers the Premier to initiate and carry
out management reviews of departments, parts of departments and other
government agencies.
The Premier may also fix the maximum number of employees in a department
(section 30) and may direct departmental heads to act in accordance with
any such ruling (section 31).
Office of the Public Service
The Act establishes an Office of the Public Service, to be headed by
a Public Service Commissioner. Amongst other things, the Office is to
undertake management reviews as directed by the Premier, advise the public
service on 'best practice' management and employment, and decide public
service pay and conditions as well as appeals under the Act.
The Commissioner is to be appointed by the Governor in Council and is
to enter into an employment contract with the Premier. As well as remuneration,
the contract must provide for a term of no more than 5 years and for performance
standards set by the Premier. The contract must also state that it may
be terminated on one month's notice (section 39).
Public Service Staffing
The Act reforms the structure of the Queensland Public Service. Departments
are to be headed by Chief Executives who will enter into employment contracts
with the Premier. The contracts will be for up to 5 years (with the possibility
of re-appointment) and can be terminated on one month's notice.
The Chief Executive may appoint Senior Executives. Except where the
Senior Executive is employed on tenure, he or she must enter into a contract
with the Chief Executive, and it must contain terms similar to those included
in the contract between the Chief Executive and the Premier.
The Senior Executive Service Level 1 band is to be phased out and replaced
by a Senior Officer band (not a part of the Senior Executive Service).
The Chief Executive may also appoint 'Officers' to his or her department
(section 67). Subsection 67(2) provides that appointments must only be
gazetted if the vacant position had been advertised in the Gazette
or if gazettal is required by the Act. Officers may be appointed on tenure
or on contract. If the officer is appointed on contract, he or she enters
into the contract with the relevant Chief Executive.
Merit Appointments
Appointment as a public service employee must be on the basis of merit
alone (section 78). In deciding the merits of an applicant, regard must
be had, amongst other things, to the applicant's abilities, aptitudes,
skills, qualifications, experience and relevant personal qualities [subsection
78(2)]. Subsection 78(3) provides that the section does not apply in cases
of transfer or redeployment, and allows the Commissioner to state the
section does not apply in other cases.
Disciplinary Action
Part 6 of the Act sets out the grounds for which disciplinary action
may be taken and the forms that action may take. Officers may be disciplined
for, amongst other things, inefficiency, incompetence, being absent from
duty without leave, failing to obey a reasonable command of an authorised
officer and misconduct. Misconduct may be disgraceful conduct in an official
capacity or in a private capacity that reflects seriously and adversely
on the public sector. The Act states that 'victimising another public
service employee in the course of the other employee's employment in the
public service' is an example of misconduct (p 52).
Appeals
Part 7 of the Act allows for appeals to the Public Service Commissioner
in certain circumstances, including decisions to discipline an officer.
Section 107 provides that although a party to an appeal may be represented
by an agent, he or she may not be represented by a lawyer. Appeals from
a decision made, for example, by the Commissioner, may be made to the
Industrial Relations Commission as an industrial matter.
Comment
The Public Service Act 1996 (Qld) is not without precedent. For
example, under the previous Queensland administration, Chief Executives
signed contracts of employment with the Premier.
The Act does, however, appear to centre greater responsibility and power
on the Premier. Only experience will show whether this will lead to the
better provision of advice to the Government and a more efficient delivery
of services to the community. However, it is somewhat surprising that
this considerable transfer of power has occurred with little debate in
relation to the doctrine of ministerial responsibility. As is well known,
this doctrine states that elected ministers are responsible for actions
taken by their departments to Parliament, and through Parliament, to the
people. There can be no doubt that the relevance of this doctrine has
been strained in recent years. The role of ministers in the Queensland
Parliament, must surely be queried given the reforms enacted by the Public
Service Act 1996 (Qld).
There are also other issues to be considered. Are Chief Executives eligible
for compensation if dismissed prior to the end of a contract? If not,
and given that Chief Executives may be dismissed at will, there is a possibility
that it may be difficult to attract leading managers to the Public Service.
The contracts entered into between Chief Executives and senior executives
are also problematic. Such contracts may blur who senior executives actually
work for: the Chief Executive, the individual Minister or the Crown more
generally. At the very least, considerable power is vested in the Chief
Executive to dismiss senior executives at will.
Unfortunately, the term 'lawyer' is not defined in Part 7 of the Act.
Does it include persons who hold law degrees, persons admitted to practice
or persons holding practising certificates? The Act does, however, attempt
to come to terms with what constitutes 'merit' in appointment-although
the reference to 'experience' may be seen by some as a reference to 'seniority'-as
well as what amounts to 'misconduct'.
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