Bills Digest 68 1996-97 Public Service Amendment Bill 1996


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WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest was available from 16 December 1996.

CONTENTS

Passage History

Public Service Amendment Bill 1996

Date Introduced: 4 December 1996
House: Representatives
Portfolio: Prime Minister
Commencement: Royal Assent

Purpose

The Bill amends the Public Service Act 1922 to remove an unintended anomaly which may limit the application of the disciplinary provisions to an officer who is an 'unattached officer' but who subsequently resumes duties with his or her 'home' department.

Background

In 1978, substantial amendments were made to Division 6 of the Public Service Act 1922 (the Act) by the then Coalition Government to introduce major new disciplinary provisions. (1) Division 6 of the Act was completely rewritten. The replacement Division comprised sections 55 to 63T. The revision in 1978 was made to what is known as the 'discipline code' and it implemented recommendations made by the Joint Council (an employer-employee body established under the Act).

The 1978 amendments expressly included a new section 63L which dealt with misconduct while an unattached officer. An officer may be unattached for several reasons including when he or she is absent on leave for an extended period of time for personal reasons, or when he or she is appointed to be an Australian Head of Mission in the diplomatic service. Technically, the officer is released by the home Department so that they may be employed elsewhere. This release often involves the officer becoming unattached from his or her substantive position in the home Department. In time, the officer may resume duty with the home Department but not necessarily to the position they vacated. An officer ceases to be unattached on resuming duty in his or her home department.

Doubts have arisen concerning whether the discipline code can be applied to certain unattached officers once they resume with the home Department (for alleged disciplinary offences which may have occurred while the officer was employed elsewhere). One argument which has been raised in litigation but which appears to be unresolved is whether a Head of Australian Diplomatic Mission has 'immunity' from procedures under the Public Service Act 1922 while serving in the diplomatic service (Dan v Director of the Merit Protection & Review Agency & Others). (2) Heads of Mission are appointed by the Governor-General and it has been argued that such matters should be dealt with by the exercise of the prerogative powers vested in the Governor-General.

In the ordinary course of duties, counselling a public servant or criticising his or her performance does not amount to disciplinary action. (3) The distinction between disciplinary and non-disciplinary action is vital. Disciplinary action is a last resort and it must comply with strict procedures. Disciplinary action is an administrative procedure for public servants and it may be initiated and considered concurrently with any criminal charges (if relevant). There is no 'double jeopardy' involved.

In determining whether an officer may have failed to fulfil his or her duties, regard is given to performance of an officer's immediate duties as well as compliance with general obligations to observe any other relevant law or direction. A series of formal steps under the Public Service Act 1922 is involved in determining whether an officer has a case to answer. The steps include:

  • an authorised officer is appointed to examine and to decide whether an officer may have failed to fulfil his or her duties as an officer
  • the authorised officer must decide whether to charge the officer or, alternatively, recommend that the officer be counselled (the authorised officer does not determine whether an officer has actually committed misconduct)
  • an inquiry officer is then appointed to carry out an inquiry into a disciplinary charge and to determine whether the officer concerned has committed misconduct; the inquiry officer also decides what action should be taken (if misconduct has occurred)

an appeal against a finding of misconduct may be made to the Disciplinary Appeal Committee, unless the penalty imposed is an admonition, a fine of $50 or less or transfer at the same level and locality; where the penalty involves dismissal, a challenge to that finding is heard in the Industrial Relations Court of Australia. (4)Under existing section 63J of the Public Service Act 1922, misconduct in relation to an unattached officer means a failure by the officer to fulfil his duty as an unattached officer. It addition, section 63J provides that the misconduct must be that which brings the Service into disrepute. As noted above, the example of appointments of officers as Head of Australian Diplomatic Mission has given rise to an argument that it is inappropriate to include such persons in the classification of unattached officers for disciplinary purposes under the Public Service Act 1922.

Main Provisions

Reader's Note: The proposed amendments are included in Schedule 1 to the Bill. The terminology to be used therefore is 'Item' in the Schedule in lieu of 'Clause' in the Bill. </ ul>

Item 3 in Schedule 1 adds new subsections (9), (10) and (11) to existing section 63L of the Public Service Act 1922. Proposed subsection (9) is the key provision and it makes clear that a person who ceases to be an unattached officer but who still remains a serving officer may be charged with misconduct committed while the person was an unattached officer, as if they had remained an unattached officer.

Proposed subsections (10) and (11) have a retrospective effect, in that the primary amendment will apply to a person or to misconduct which was committed prior to the commencement of proposed subsection (9) specified in this Bill. The Government will probably argue that the amendment, while technically retrospective in effect, simply rectifies an anomaly in the Public Service Act 1922 and that misconduct by unattached officers was always meant to be addressed under Division 6 of the Act, since the major amendments were last made in 1978.

Endnotes

  1. Public Service Amendment Act 1978 (Act No. 170 of 1978).
  2. CLS 1993 FED 668
  3. 'The Disciplining of Public Servants - Some Aspects', Legal Practice Briefing, Attorney- General's Legal Practice, No. 21, 24 October 1995.
  4. Jurisdiction for these matters (challenge to a dismissal) is, however, being transferred to the Federal Court of Australia.

Contact Officer and Copyright Details

Brendan Bailey (06 2772434)
13 December 1996
Bills Digest Service
Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

PRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9031
© Commonwealth of Australia 1996

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

Published by the Department of the Parliamentary Library, 1996.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 12 December 1996

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