This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
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Parliamentary Service Bill 1997 [No.2]
Date Introduced:10 March 1998
House:House of Representatives
Commencement:As soon as the Public Service
Act 1997 has commenced.
Note: For further detailed commentary on the Bill and the
associated measures, readers are referred to Bills Digests Numbers
68, 69, 74, 164 and 166 of 1997-98.
This is one of a number of bills that may provide further
triggers for a double dissolution election.(1)
Section 57 of the Australian Constitution provides, in part,
- If the House of Representatives passes any proposed law, and
the Senate rejects or fails to pass it, or passes it with
amendments to which the House of Representatives will not agree,
and if after an interval of three months the House of
Representatives in the same or the next session, again passes the
proposed law with or without any amendments which have been made,
suggested, or agreed to by the Senate, and the Senate rejects or
fails to pass it, or passes it with amendments to which the House
of Representatives will not agree, the Governor-General may
dissolve the Senate and the House of Representatives
simultaneously. But such dissolution shall not take place within
six months before the date of the expiry of the House of
Representatives by effluxion of time.
The Bill was first introduced on 23 October 1997 and, together
with the Parliamentary Service (Consequential Amendments) Bill
1997, was passed a week later. The Consequential Amendments Bill
was passed without amendment by the Senate and received Royal
Assent on 7 December 1997 but has yet to come into effect.
The Senate passed the original Bill with 43 amendments on 19
November 1997. The Senate amendments all proved unacceptable to the
House which laid the Bill aside on 5 December 1997.
The present Bill is identical to the Bill passed by the House on
30 October 1997.
The Bill provides for the creation of a new and independent
framework for the employment of staff in the Parliamentary
Since the early years of federation, the Parliamentary
Departments have been staffed under the common service-wide
arrangements provided by the Public Service Act.(2)
The Public Service Act 1922 (the 1992 Act) provides
that the administration of the Parliament is conducted through five
Parliamentary Departments: the Department of the House of
Representatives, the Department of the Senate, the Department of
the Parliamentary Library, the Department of the Parliamentary
Reporting Staff and the Joint House Department.
The Department of the House of Representatives and the
Department of the Senate are responsible for the provision of
procedural, information and administrative services to Members and
Senators respectively. The Department of the Parliamentary Library
is responsible for the provision of library, reference and research
services to Members and Senators. The Department of the
Parliamentary Reporting Staff (DPRS) provides reporting,
information technology, telecommunications and broadcasting
services to the Parliament through Hansard, the Parliamentary
Information Systems Office (PISO) and the Sound and Vision Office
(SAVO). The Joint House Department performs building management,
maintenance and catering functions associated with Parliament
The Presiding Officers (the Speaker of the House of
Representatives and the President of the Senate) singly and jointly
constitute the 'employing authorities' for the Parliament. In
effect, the Speaker is the 'minister' for the House of
Representatives and the President is the 'minister' for the Senate.
The Speaker and the President have joint responsibility for the
Joint House Department, the Department of the Parliamentary Library
and for DPRS. Some powers presently exercised by the Public Service
Commissioner are also exercised by the Presiding Officers.(3)
The total running costs of the five Parliamentary Departments
for 1997-98 are in the order of $133 million.
The proposed Parliamentary Service, based on present Average
Staffing Levels across all Departments, is likely to total about
1250 employees.(4) This compares with the projected numbers for the
Australian Public Service(5) of about 115 000 by June 1998.(6)
Since 1982, the appropriations for the Parliamentary Departments
have been by a separate Bill. This followed the Fraser Government's
consideration of the report of the Senate Select Committee on
Parliament's Appropriations and Staffing tabled on 18 August
1981. The Government agreed to a separate Appropriation Bill for
Parliamentary Departments and further agreed that an Appropriation
Bill of this kind would not be treated as a Bill for the ordinary
annual services of the Government. Each Parliamentary Appropriation
Bill is intended to cover both recurrent and capital expenditure
and recognises that detailed control by the Parliament over
individual items in this area is not necessary.
The Parliamentary Departments will also be subject to the new
financial accounting and reporting measures for the Commonwealth
public sector that were agreed by the Parliament on 29 September
1997 and came into effect on 1 January 1998.(7)
The Parliamentary Departments are also subject to the
Workplace Relations Act 1996. All Parliamentary
Departments are presently negotiating, or have negotiated, new
certified agreements under this legislation.
The proposal to create a separate Parliamentary Service under
separate legislation has a relatively short history.
In December 1994, the Report of the Public Service Act Review
Group (the McLeod Report) accepted the view of the then Presiding
Officers that the Parliamentary Departments be covered in a new
Public Service Act, rather than by separate legislation.(8)
The immediate history of the present Bill is outlined in a
submission made by the Secretary of DPRS and the Acting
Parliamentary Librarian (John Templeton) and the Secretary of the
Joint House Department (Michael Bolton) to the Joint Committee of
Public Accounts (JCPA) inquiry into the Public Service Bill 1997
and the Public Employment (Consequential and Transitional)
Amendment Bill 1997.(9) That submission also deals in detail with
the central issue of mobility between the two services. It
- 3. On 13 May 1997 the Prime Minister wrote to the Speaker and
the President advising that the government, when considering the
content of the legislation to replace the 1922 Act, had decided
that 'it would be more appropriate for the parliamentary
departments to be covered by their own legislation in future.' The
Prime Minister said this decision recognised 'the unique position
of the staff of the departments providing services to the
Parliament and the independence of the Presiding Officers.'
4. On 18 May 1997 the then Minister Assisting the Prime Minister
for the Public Service, Mr Reith, released a discussion paper 'the
Public Service Act 1997: Accountability in a Devolved Management
Framework'. The discussion paper reiterated the government's
decision to remove the parliamentary departments from the proposed
Public Service Act 1997 and in respect of future mobility between
the APS and the Parliament said: 'APS employees who wish to work in
the parliamentary departments can either resign from the APS or
seek leave from their Secretaries.'
5. The Public Service Bill 1997, introduced into the House of
Representatives on 26 June 1997, reflects that position. There are
no provisions which allow an APS employee to move to employment in
the Parliament without penalty. Equally there are no provisions
which will give an employee of the Parliament the right to apply
for employment in the APS and, if successful on merit, to move to
the APS without penalty.(10)
In his evidence to the JCPA, the Clerk of the Senate put similar
views regarding mobility, Mr Evans observing that:
- There must be ready mobility between the Public Service and the
parliamentary service in the sense that public servants should be
able to come readily to the parliamentary service and to bring with
them the entitlements that they have as public servants...I stress
that we do not envisage parliamentary staff taking with them all
the entitlements that they have as parliamentary staff, because
some are peculiar and do not exist in the Public Service...
Without ready mobility, the parliamentary service will wither on
the vine, because it relies for recruitment on the Public Service
very heavily. We rely on getting good people coming from the Public
Service and going back again. If they do not feel that they can
readily move to the parliamentary service and go back again, we
will not get the quality of staff that we have been getting in the
past. So that mobility is absolutely crucial. The absence of it
would so cripple the parliamentary departments that it would
cripple the parliament.(11)
The JCPA's Report supports the establishment of the
Parliamentary Service as a separate service.(12) Reflecting the
importance of mobility between the two services, the JCPA
The Senate Finance and Public Administration Legislation
Committee reported on 2 October 1997 on the two Public Service
Bills and observed in relation to the proposed Parliamentary
Service Bill that:
- It is desirable that the two services have broadly similar
structures to facilitate mobility between the two. Thus concerns
raised with regard to the parliamentary service are broadly similar
to those raised with regard to the new 'APS'.(14)
Clause 26 of the present Bill makes provision
for reciprocal mobility between the two services.
The Senate Standing Committee on Appropriations and Staffing has
considered the Bill and commended it to the Senate.(15)
The main clauses of the Bill as first introduced are discussed
in Bills Digest No.68 of 1997-98.
The present Bill largely mirrors the provisions of the Public
Service Bill 1997. Accordingly, the overwhelming majority of Senate
amendments to the Bill as first debated in the Senate were also
moved in relation to the Public Service Bill 1997. Those amendments
are discussed in Bills Digest No.164.
It is to be anticipated that the Senate will focus on the
amendments proposed when this Bill and the Public Service Bill 1997
were last considered by it in November 1997.
This Digest concentrates on the more significant of the Senate's
amendments to the present Bill which do not replicate amendments
moved in relation to the Public Service Bill 1997.
Appointment of Clerk of the Senate and Clerk of the House of
Clause 54 continues the offices of the Clerk of
the Senate and Clerk of House of Representatives (the Clerks).
Clause 57 deals with the appointment of the
Clerks. Each Clerk is to be appointed after the relevant Presiding
Officer has consulted members of the relevant Chamber. The Bill
does not stipulate the method or nature of such consultation.
Subclause 57(3) provides that the maximum term
of appointment for each Clerk is 10 years. It also provides that a
person may only serve one term as Clerk. Reflecting the provisions
of the Public Service Act 1922, the Clerks of each House
presently enjoy tenure subject to age retirement at 65 or early
termination on grounds of incapacity. Clause 74
translates the Clerks to the structure created by the present Bill
and deems their term of office to have begun from the date on which
the new Bill commences. Hence the Bill will affect the tenure of
both the present Clerks but their previous service will not count
towards the maximum 10 year period for which they may remain in
Senate amendments to clause 57 would alter the
method of appointment, providing that each Presiding Officer must
formally consult the relevant Chamber before making a new
appointment. The Senate also proposed a new subsection
57(2A) that would require each House to determine the form
Mobility between the Parliamentary Service and the Public
Clause 9 creates a separate Australian
The Parliamentary Service is to consist of all persons employed
by the (presently five) Parliamentary Departments, including
Departmental Secretaries, SES and non SES staff.
Clause 26 allows for the movement of staff
between the Public Service and the Parliamentary Departments
without a break in continuity of employment or loss of accrued
benefits. This appears to meet the substantive requirements
stipulated by the JCPA in Report No. 353 as discussed
above. The clause does not specifically deal with movement of staff
between Parliamentary Departments. This matter is presumably to be
dealt with by another statutory instrument.
Clauses 76 and 77 deal with
specific 'rights of return' for employees who are working in
non-APS Commonwealth agencies. The provisions are the equivalent of
those in the Public Employment (Consequential and Transitional)
Amendment Bill 1997.
The Senate amended Clause 26 to add a provision
dealing with compulsory moves between Parliamentary Departments and
between the proposed Parliamentary Service and the APS. The
amendment would have added subclause 26A empowering the
Parliamentary Service Commissioner (with the agreement of the
relevant Presiding Officer or Officers) to transfer excess
Parliamentary Service employees to another Parliamentary Department
or to the APS. This proposed amendment (if carried) will only apply
to staff engaged in the Parliamentary Departments under the
Public Service Act 1922 at the time that this Act comes
The proposed amendment is designed to protect the current rights
of existing parliamentary staff. Those rights, in relation to
redundancy and redeployment, are secured by the Public Service
Act 1922 and relevant industrial awards. Presently, excess
staff have the opportunity of seeking redeployment anywhere in the
APS. The creation of a separate Parliamentary Service limits
redeployment options to the much smaller pool of positions
available in the Parliamentary Departments.
The Government opposed this amendment as first moved and did not
expand on its reasons for continuing its opposition to
proposed clause 26A in the form finally
Parliamentary Service Commissioner and Parliamentary Service
The Parliamentary Service Commissioner
Clause 38 creates the position of Parliamentary
Service Commissioner (PARSC).
Clause 42 provides that the PARSC may be
appointed for a period of up to 5 years. The appointment is
renewable and may (but need not) be held by the person occupying
the office of Public Service Commissioner.
The PARSC's functions are detailed in clause 39
and are somewhat more limited than those given to the Public
Service Commissioner under the Public Service Bill 1997.
Subclause 39(1) of the present Bill provides that
the PARSC may give advice to the Presiding Officers on management
policies and practices. Where requested, the PARSC may inquire into
and report on matters relating to the Parliamentary Service that
are referred for investigation by the Presiding Officers.
By contrast, clause 41 of the Public Service Bill 1997 empowers
the Public Service Commissioner to initiate inquiries into a wider
and more detailed series of matters than are to be given to the
PARSC. The matters on which the Public Service Commissioner (but
not the PARSC) may instigate an inquiry include the operation of
the legislated Code of Conduct and core Service Values provided for
under the respective Bills.
Clause 40 of the present Bill confers certain
investigative powers on the PARSC. These include powers identical
to those that may be exercised under the Auditor-General Act 1997.
It is stated in the Explanatory Memorandum that this clause is the
equivalent of clause 43 in the Public Service Bill 1997 [No.2].
This is largely correct. It may be noted, however, that clause 43
of the Public Service Bill 1997 is structured to provide separately
for the Public Service Commission to exercise additional powers in
relation to the conduct of 'special inquiries'. Such 'special
inquiries' may include investigations into the adequacy of Agency
procedures for ensuring compliance with the Public Service Code of
Conduct and the incorporation of Service Values into agency
Maintenance of Parliamentary Service Values
Clause 11 provides that the PARSC may advise
the Presiding Officers in relation to implementation and scope for
application of the Parliamentary Service Values.
The Senate carried three amendments to this clause. Those
- made it mandatory for the PARSC to give advice to the Presiding
Offciers on Parliamentary Service Values;
- required that the Presiding Officers issue written
determinations in relation to each of the Parliamentary Service
- provided that where an issued determination relating to
Parliamentary Service Values is contrary to advice given by the
PARSC, the Presiding Officers must inform each House of their
reasons for not accepting that advice.
The substance of clause 11 is similar to the
equivalent provision in the Public Service Bill 1997 [No.2]. The
relationship between the PARCS and the Presiding Officers is,
however, unique. Whereas the Public Service Commissioner can issue
directions, the PARSC can only give advice. The above amendments to
clause 11 arise out of this key difference.
Presiding Officers' determinations on SES matters
SES employees are senior managers and specialists in each of the
Parliamentary Departments. Like their equivalents in the APS, they
are to be treated under the proposed Act as employees rather than
holders of a particular office. As at December 1996, 26 of the
Parliament's 1207 permanent staff were SES officers.(17) This
compares with 1578 SES officers and approximately 120 000 permanent
staff in the rest of the APS.(18)
Clause 34 outlines the role of the SES in the
Clause 35 requires the PARSC to issue written
guidelines relating to the employment of SES staff.
The Senate amended clause 35 obliging the
Presiding Officers, on receiving advice from the PARSC, to issue
determinations in writing about certain SES employment matters. A
similar Senate amendment was carried in relation to clause 36 of
the Public Service Bill 1997. The amendment to the Bill as first
presented provided that the Presiding Officers must inform each
House of their reasons for not accepting the PARSC's advice in
relation to the making of a determination affecting SES terms of
Continued Operation of
Determinations under the 1922 Act
Part 9 of the Bill makes provision for
transition from the present arrangements under the Public
Service Act 1922 to the new and free-standing legal
Clause 78 provides for the continued operation
of determinations relating to pay and conditions made under the
Public Service Act 1922.
Under proposed section 24, Secretaries of
Parliamentary Departments may from time to time determine in
writing the remuneration and other terms and conditions of
employment of their employees.
Existing determinations continue to have effect but may be
revoked by the Secretaries in the same manner as determinations
made under proposed section 24 of the Public Service Bill 1997.
However, subclause 78(3) further provides that all
unrevoked determinations will cease to have effect on the first
anniversary of the new legislation coming into effect.
The Senate amended the Bill:
- preventing Secretaries amending or revoking a determination in
a way that diminishes any provisions in an award or certified
- extending the sunset provision in subclause
78(3) from 12 months to 3 years.
A similar amendment was moved in relation to the two Bills
dealing with the APS. The amendment in that case was, however, not
to the main Bill but to clause 9 of the Public Employment
(Consequential and Transitional) Amendment Bill 1997.
- The Senate's rejection of the Workplace Relations Amendment
Bill [No.2] on 25 March 1998 means that the pre-conditions for the
Prime Minister requesting a double dissolution election have been
met. The Government, however, is under no obligation to exercise
this option either immediately or at all and may now proceed to
stockpile any further Bills that come within the terms of section
57 prior to approaching the Governor-General.
- For more detail see Explanatory Memorandum, Public
Employment (Consequential and Transitional) Amendment Bill 1997:
- See principally sections 9-9C of the Public Service Act
- Budget Paper No.1, 1997-98, 4-147.
- Persons engaged under the Public Service Act
- PSMPC, APS Staffing Statistics Report 1996:12 and
Budget Paper No.1, 1997-98, 4-5.
- Auditor-General Act 1997; Audit (Transitional and
Miscellaneous) Amendment Act 1997; Financial Management
and Accountability Act 1997; and Commonwealth Authorities
and Companies Act 1997.
- Report at pages, 128-129.
- Report No.353, September 1997.
- Submissions, volume 2, 186-187.
- Transcript of evidence, 7 August 1997, 126-127.
- Ibid., 137.
- Ibid., 137.
- Report, 5.
- Report No. 28, 22 October 1997. The Report does not record the
- Senate, Parliamentary Debates, 19 November 1997,
9171-9173 and 9183-9185.
- Statutory Office-holders are not classified as members of the
- PSMPC, APS Staffing Statistics Report 1996, 48.
30 March 1998
Bills Digest Service
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Commonwealth of Australia 1998
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