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
consulted to determine the subsequent official status of the
Parliamentary Service Bill 1997
Date Introduced: 23 October 1997
House: House of Representatives
Portfolio: Prime Minister
Commencement: On the same day as, and immediately
after, the Public Service Act 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.(1)
The Public Service Act 1922 (the present 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.(2)
The total running costs of the five Parliamentary Departments
for 1997 98 are approximately $133 million.
The proposed Parliamentary Service, based on present Average
Staffing Levels across all Departments, is likely to total about
1250 employees.(3) This compares with the projected numbers for the
Australian Public Service(4) of about 115 000 by June 1998.(5)
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 tothe new
financial accounting and reporting measures for the Commonwealth
public sector that were agreed by the Parliament on 29 September
The Parliamentary Departments are also subject to the
Workplace Relations Act 1996. All Parliamentary
Departments are presently negotiating new workplace 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.(7)
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 inquiry into the Public Service Bill 1997. That
submission also deals in detail with the central issue of mobility
between the two services. It states:
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 resignfrom 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.(8)
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.(9)
The JCPA's Report supports the establishment of the
Parliamentary Service as a separate service.(10) Reflecting the
importance of mobility between the two services, the JCPA
The Parliamentary Service Bill should provide for reciprocal
mobility arrangements between the Parliamentary Service and the
Australian Public Service which enable staff of either service to
compete on merit for jobs in the other service and to carry over
If the Parliamentary Service Bill is not enacted at the same
time as the Public Service Bill 1997, relevant provisions should be
included in the Public Service Bill 1997 to ensure this
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'.(12)
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.(13)
Wider Legislative Framework
As noted above, the proposed legislative framework for the
Parliamentary Departments is similar to the Public Service Bill
1997. That Bill is presently before the Parliament.
Differences between the two Bills generally reflect the unique
character of the parliamentary service and the obligation of
parliamentary staff to serve the Parliament, not the government of
In the Second Reading Speech, the Speaker, informed the House
The Government is presently considering the recommendations made
by the Joint Committee of Public Accounts in its advisory report on
the Public Service Bill 1997 and it is expected that any amendments
accepted by the House will be applied in the relevant instances to
the Parliamentary Service Bill in order to preserve the parallel
nature of employment conditions and to ensure the unfettered
operation of mobility between the two services.(15)
This Digest deals primarily with those provisions which are
unique to the present Bill and not those which replicate provisions
in the Public Service Bill 1997. Those provisions have already been
extensively examined and reported on by the JCPA and by the Senate
Finance and Public Administration Legislation Committee.
A Background Paper prepared for the Parliamentary Library's
Information and Research Services, 'New Public Service Legislation:
the Public Service Bill 1997' was published on 22 September 1997.
That paper comments on the Public Service Bill 1997 as
The Explanatory Memoranda for Public Service Bill 1997 and
Public Employment (Consequential and Transitional) Amendment Bill
1997 contain a wealth of historical and background material on the
history of the Public Service Act of relevance to this Bill and the
The forthcoming Digest of the two Public Service Bills
concentrates on the Government's response to the recommendations
made and matters raised in JCPA Report No. 353.
Parliamentary Service and Parliamentary Departments
The Parliamentary Service
Clause 9 creates the Australian Parliamentary
The Parliamentary Service is to consist of all persons employed
by the Parliamentary Departments, including Departmental
Secretaries, SES and non SES staff.
As noted above, the two Presiding Officers - both singly and
collectively - constitute the employing authorities for the
Parliament. This remains the position under the Bill
Clause 8 of the Bill provides that with certain
specific exceptions - principally relating to unfair and unlawful
dismissal of Senior Executive Service officers (SES) - employment
relations in the Parliamentary Departments are regulated by the
Workplace Relations Act 1996.
Clause 20 provides that the Presiding Officers
may issue general directions to Departmental Secretaries (including
the Clerk of each House) in relation to the management and
leadership of Parliamentary Service Employees.
The power of the Presiding Officers to issue such directions is
limited in three important respects. First, in relation to the
non-Chamber Departments, the Speaker and the President must issue
joint directions. Secondly, subclause 20(3)
requires that the Presiding Officers consult the Parliamentary
Service Commissioner (a proposed position akin to that of the
Public Service Commissioner) before issuing a direction under this
section. Thirdly, a direction cannot be issued to a Secretary
(including the Clerk of each House) in relation to a particular
Clause 21 places day to day responsibility for
employment matters with Departmental Secretaries. The employment
powers of each Secretary may be prescribed by determination.
Clause 22 gives Secretaries the power to engage
staff. Clause 23 provides, however, that the
Presiding Officers retain the power to establish classification
standards applying to staff engaged by the Departments.
Classification rules define classes of work according to work
requirements, skills and responsibilities and are linked to a
specific salary or range of salaries. Subclause
23(3) provides that Secretaries must comply with the
Pay and conditions for the majority of departmental staff will
continue to be set through a variety of means including: awards,
certified agreements, Australian Workplace Agreements, specific
legislation and determinations. Special arrangements apply for
Secretaries and the Parliamentary Service Commissioner.
Clause 24 creates a two tier structure of
determinations relating to the pay and conditions of Parliamentary
employees. Subclause 24(1) provides that
Secretaries may determine in writing the pay and related conditions
of staff in their Department. Subclause 24(3)
provides, however, that such determinations may also be made by the
Presiding Officers. In the case of conflict, a Presiding Officer
determination prevails over that issued by a Departmental Secretary
[subclause 24(4)]. As is noted in the Explanatory
Memorandum, it is anticipated that most remuneration and
entitlements of staff will be established under agreements made
under the Workplace Relations Act 1996.
The Explanatory Memorandum also notes that the power of the
Presiding Officers to make determinations under clause
23(4) is not limited to special circumstances as is the
case in the equivalent provision in the Public Service Bill
The Bill does not specify that determinations made under
proposed section 24 are disallowable instruments.
In it unclear as to whether they will be subject to disallowance
under the as yet to be enacted Legislative Instruments Bill
Clause 46 provides for the creation of the
The Department of the Senate and the Department of the House of
Representatives are guaranteed existence under subclause
46(1) of the proposed enactment. Subclause
46(2) provides that other Departments may be created by
resolutions passed by each House of the Parliament.
Clause 66 provides for the continuation of all
five existing Departments. In particular, subclause
66(2) provides for the continued existence of the
Department of the Parliamentary Library, DPRS and the Joint House
Department as if they had been created under subclause
Subclause 46(4) provides that a non-Chamber
Department may be abolished by resolution of both Houses. As each
of the five current Departments is established by enactment, it is
presently only possible to abolish a Parliamentary Department by an
Act of Parliament.
Clause 47 continues the offices of the Clerk of
the Senate and Clerk of House of Representatives (the Clerks).
Clause 50 deals with the appointment of the
Clerk of the Senate and the Clerk of the House of Representatives.
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 50(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 67
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
The Explanatory Memorandum states that:
The provision of independent advice, which is vital to the
well-being of an institution, can be guaranteed only where the
adviser is not beholden to the advised for his or her continuation
in office. This clause provides that the Clerks are appointed for a
10 year, non renewable, fixed term. A ten year term of office is
balanced by the availability of clear mechanisms for the
termination or suspension of the office-holder.(17)
This does not explain why tenure to age 65 is to be abolished,
why a period of appointment of 10 years was chosen, or each the
appointment is non-renewable. A possible answer to the first two
questions is that the 10 year term is a compromise between the
current tenured arrangement and the provisions of the Public
Service Bill 1997 which provides for the appointment of Secretaries
for a period of up to 5 years and the Public Service Act
1922 which does not limit tenure in this way.
A likely model for the compromise are the provisions in the
recently passed Auditor-General Bill 1996 which provides that the
Auditor-General is appointed by the Governor-General for a
non-renewable period of 10 years.(18) The limit on the
Auditor-General's tenure is discussed in the Joint Committee of
Public Accounts Report No. 346 at pages 14 17.(19)
Neither the Explanatory Memorandum, nor JCPA Report No. 346
fully explain why such appointments should be non-renewable. It may
be argued that the proposed statutory bar to re-appointment places
an unnecessary legislative obstacle in the path of a future
parliament retaining persons whose re-appointment would otherwise
be justified on merit. There is no comparable bar on the
re-appointment of persons engaged as Secretaries under either this
Bill or the Public Service Bill 1997.
It will also have been noted that the proposal to limit the
tenure of the Clerk of the Senate has attracted adverse comment.
The Canberra Times editorial of 22 October 1997 observed
in relation to what it described as rumours that the Parliamentary
Service Bill might provide for the President of the Senate to
appoint the Clerk:
the make-up of the Senate rarely reflects the lower House, in
practice the Clerk is more often called upon to advise minor or
Opposition parties than ruling parties.
At present, the Clerk is a statutory office and the incumbent
cannot be removed at the whim of the Government. To put the
duration of employment at the whim of government would be to meddle
with democracy itself.(20)
A contrary view might be that the Clerk is already appointed (by
the Governor-General in Council) on the recommendation of the
President of the Senate. Hence the proposed change to appointment
by the Presiding Officer is largely symbolic.xxi Secondly, the
change to a fixed term largely reflects the position of
Departmental Secretaries under Public Service Bill and existing
practice in the public sector with respect to most heads of
statutory authorities.(22) Thirdly, it is arguable that the Bill
specifically shores-up the independence of the Clerks.
Clause 19 provides that the Clerks are not subject
to direction by their respective Presiding Officer in relation to
any advice sought or given with respect to the relevant House or
any of its committees or members.(23)
A further factor is the abolition of compulsory age retirement
at age 65. Short of conferring life tenure on the Clerks, there
needs to be some mechanism for limiting their likely term of
appointment or reviewing their tenure after a defined period.(24) A
fixed term appointment is one such mechanism. Compulsory retirement
at a particular age (say age 70) would be another.
Limiting the Clerks to a single fixed term may encourage a
perception of greater independence. In other contexts, it has been
argued that a fixed term appointee who cannot be easily removed
from office and who has no expectation of re-appointment, may
behave more independently than someone who has an eye to their
Some may perceive possible threats to the independence of the
Clerks in relation to those provisions dealing with termination of
appointment (clause 52) and suspension from office
Subclause 52(1) provides that the Senate may
pass a resolution terminating the appointment of the Clerk. To be
effective, six sitting days notice must be given of such a
resolution. A similar provision applies to the Clerk of the House.
Subclause 52(3) provides that such a motion must
state the ground(s) for dismissal and limits the motion to three
possible grounds. The possible grounds for termination are
'misbehaviour', incapacity and insolvency. The Bill does not state
what sort of conduct will constitute 'misbehaviour' for the
purposes of clause 52. This matter is presumably
to be left to the courts to determine, arguably leaving some doubt
at the margins when a precise statutory definition could have
provided greater certainty.
Clause 54 provides that where a Presiding
Officer believes that a possible ground for termination of their
Clerk exists, they may, by notice in writing, suspend the Clerk
from office. Subclause 54(2) provides that the
Presiding Officer must in these circumstances give the affected
House a written statement setting out the ground for suspension no
later than the first sitting day of the House after the day on
which the suspension occurs. Suspension ends with either the
Clerk's dismissal; the House passing a motion ending the
suspension, or when five (or a greater prescribed number of)
sitting days have elapsed [subclause 54(4)].
Suspension does not affect a Clerk's entitlement to remuneration
The possible termination or suspension from office of a senior
officer of the Parliament is not a step which should be
contemplated lightly or left to the vagaries of the Parliamentary
sitting pattern. Under clause 54 as proposed, it
would be possible for a Clerk to be placed on suspension for a
considerable period without having the opportunity to have their
case properly canvassed by the Parliament. One instance where this
could arise is where a Clerk is suspended on the last day of a
Sitting or (conceivably) on the last day of a Parliament. In such
circumstances, the suspension may operate for some months without
the mandatory review requirements being activated. Such an extended
suspension without prescribed review rights would be unfair to the
individual suspended and arguably debilitating for the
Parliamentary Department(s) affected.
The remuneration of the Clerks is to be determined by the
Remuneration Tribunal (clause 55).
Clause 48 provides that each of the non-Chamber
Departments shall be administered by a Secretary who, under both
Presiding Officers, shall be responsible for the management of a
Department (clause 49).
The Secretaries of any (presently there are three) non-Chamber
Departments are appointed by the Presiding Officers for a period of
5 years following a report by the Parliamentary Service
Commissioner (clause 51).
Clause 53 provides that the Presiding Officers,
having received advice from the Parliamentary Service Commissioner,
may terminate the appointment of a Secretary of a non- Chamber
Department by notice in writing at any time.
Clause 67 makes special provision for the
continuation in office of the present Secretaries of the
non-Chamber Departments. It provides that these Secretaries are to
continue in office and for a fixed term from the commencement of
the Bill. This provision will not apply to the present occupant of
the position of Parliamentary Librarian. That office is presently
filled on an acting basis, that is, there is presently no 'office
Subclause 48(3) provides that where a
non-Chamber Department is abolished, the office of Secretary of
that Department is also abolished.
Subclause 55(2) provides that the remuneration
and other conditions of employment of the Secretaries of the
non-Chamber Departments are set by their Presiding Officers after
receiving a report from the Parliamentary Service Commissioner.
Clause 56 deals with the appointment of persons
to act in the office of Departmental Secretary. The provision
applies to all Secretaries including the Clerks. There is no
limitation on the period for which a person may act. There is no
requirement that an office must be filled within a certain
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 set out 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. (Indeed, clause 11 of
the present Bill provides only that the PARSC may give advice to
the Presiding Officers on these matters.) The Explanatory
Memorandum does not provide a rationale for the divergence between
the two 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 Bill 1996.
It is stated in the Explanatory Memorandum that this clause is the
equivalent of clause 43 in the Public Service Bill 1997. 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 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
Clause 44 deals with the method by which the
PARSC may be removed from office. Grounds for removal are confined
to misbehaviour, incapacity and insolvency. Removal requires the
agreement of both Houses except where the ground for removal is
insolvency. In the case of insolvency, removal from office by the
Presiding Officers is mandatory.
Clause 45 provides that in the event of a
vacancy, an acting PARSC may be appointed. There is no obligation
to fill the office or a mandatory time-frame for so doing. There is
no legislated mechanism for resolving a disagreement between the
two Presiding Officers as to the appointment of an acting
Senior Executive Service
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 were SES officers.(26) This compares
with 1578 SES officers and approximately 120 000 permanent staff in
the rest of the APS.(27)
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.
Clause 68 provides that all current SES
officers are to be translated to the new structure as SES employees
of equivalent status and with no loss of entitlements.
Termination of Employment
Departmental Secretaries (clauses 52 and
53) and SES employees (clause 37)
but not the PARSC, are excluded from the protections available to
employees under the unfair and unlawful dismissal provisions of the
Workplace Relations Act 1996.
Other employees will have access to the unfair and unlawful
dismissal provisions of the Workplace Relations Act.
Mobility and Redeployment
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 69 and 70 deal with
specific 'rights of return' for employees who are working in
non-APS Commonwealth agencies. The provisions replicate those in
the Public Employment (Consequential and Transitional) Amendment
Two other issues regarding mobility remain outstanding.
Both these were highlighted in the document produced by the
Senate Corporate Links Sub-Committee which is referred to in the
Report on the Public Service Bills prepared by the Senate Finance
and Public Administration Legislation Committee.(28)
The Corporate Links Sub-Committee document raises concerns as to
the return rights of Parliamentary Department staff who are engaged
by Members and Senators under the Members of Parliament (Staff)
Act 1984 (the MOPS Act). The stated concerns being that:
Under the new legislation, MOPS appointees must apply to
Departmental heads for leave without pay to take up a MOPS
appointment. Agency Heads have the discretion to deny this
Under transitional arrangements, existing MOPS appointments will
have 12 months to return to their 'home' agencies. If they do not
return, they will be deemed to have resigned. This may lead to a
considerable reluctance on the part of public and parliamentary
service officers to extend current appointments in Ministerial and
other offices or with Senators or Members.(29)
On the other hand, it must be noted that comings and goings
under the MOPS Act causes operational problems for some
Parliamentary Departments. The potential for relatively significant
numbers of staff to exercise their return rights at short notice
can have a serious impact on staff budgets and staffing profiles,
especially in smaller work units. Political staff returning to
areas where balanced and confidential advice must be provided to
all sides of politics may be perceived as 'tainted' by clients,
resulting in a loss of confidence in the services being
To date there has been no amendment proposed to the relevant
Bill, the Speaker's Second Reading Speech states however that:
Arrangements will also be put in place to ensure mobility for
staff currently engaged under the Members of Parliament (Staff)
The other concern raised by the Corporate Links Sub-Committee
relates to the scope of re-deployment rights of employees found to
be excess to requirements. Presently, an excess officer in a
Parliamentary Department has re-deployment options within the
entire APS. Under the new framework that right is reduced to a
right to redeployment outside their existing work area but no
further than their present Parliamentary Department. Providing a
parliamentary service-wide right of redeployment could be addressed
by industrial agreement binding the Presiding Officers or some form
of statutory instrument.
Values and Code of Conduct
The Bill contains a statement of service values (clause
10) and a Code of Conduct (clause 13) for
persons engaged in the Parliamentary Service. The provisions are
modelled on similar provisions contained in the Public Service Bill
1997 but adapted to the parliamentary environment.
Clause 12 provides that all Secretaries must
uphold and promote Parliamentary Service Values.
Clause 14 binds Secretaries in relation to the
Code of Conduct. Breaches of the Code may lead to the imposition of
penalties ranging from salary deductions to termination of
employment. A sanctions regime is to be prescribed by
determination. Subclause 15(3) provides that
Secretaries must establish fair procedures for determining whether
the Code of Conduct has been breached.
Variations between the two Bills largely reflect the respective
roles of the Parliamentary Service and the APS.
Transitional and Savings
Part 8 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 75 enables the Presiding Officers to
make determinations in relation to the transition to the new
framework which override existing laws.
Clause 76 is a savings or catch-all provision
which provides for the continued application of Acts which applied,
immediately prior to this Bill coming into effect, to the former
Parliamentary Departments or to people appointed under the
Public Service Act 1922.
The Parliamentary Service (Consequential Amendments) Bill 1997
also deals with matters affected by the adoption of the new legal
Second Reading Speech, the Speaker observed that:
The Parliamentary Service Bill follows as much as possible the
philosophy, content and structure of the Public Service Bill 1997,
which changes significantly the structure of the public service
employment, with certain modifications necessary to ensure the
independence of Parliament from executive government.(31)
Accordingly, those who do not agree with the thinking behind the
Public Service Bill will also have difficulty in accepting elements
of the present Bill.
Maintaining a close parallel between the two pieces of
legislation clearly has advantages in terms of reducing
implementation costs and promoting staff mobility. However, not all
provisions have a direct bearing on mobility between the two
services. Uniformity is not an end in itself and in any event, the
direction of reform through workplace bargaining in the APS is
towards greater diversity.
Long standing arrangements covering the tenure of the
Secretaries of the Parliamentary Departments have not caused
insuperable problems. The present arrangements may have meant that
all sides of politics have from time to time been offered advice
that they have not particularly wanted to hear. However, receiving
advice and accepting it remain two entirely separate matters.
Proposals to limit the tenure of the Parliamentary Secretaries,
principally the Clerks, also suggest the pursuit of a 'one-size
fits all' approach when such approach may be unnecessary and
All officers and employees of the Parliament who give
professional advice to all sides of politics are not in analogous
position to other public servants. In this respect, it is perhaps
slightly disappointing that the limited protection from political
direction available to the Clerks under clause 19
was not extended to all parliamentary staff who are required to
provide confidential and balanced advice to all Members and
Senators. On the other hand, the statement of service Values and
the Code of Conduct arguably provide some protection from
unwarranted interference. Subclause 20(4) also
limits the powers of the Presiding Officers to direct Secretaries
in relation particular individuals.
Proposals to further rationalise the parliamentary
administration are not dealt with explicitly in the Bill. The Bill
makes such a rationalisation marginally less difficult
(clause 46). It also goes some way to addressing a
number of preconceptions regarding the maintenance of independent
advice to Members and Senators which may have caused earlier modest
proposals for the reform of Departmental arrangements to
- For more detail see Explanatory Memorandum, Public Employment
(Consequential and Transitional) Amendment Bill 1997: 22 23.
- See principally sections 9 9C of the Public Service Act
- Budget Paper No.1, 1997-98, page 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 Bill 1996; Audit (Transitional and
Miscellaneous) Amendment Bill 1996; Financial Management and
Accountability Bill 1996; and Commonwealth Authorities and
Companies Bill 1996.
- Report at pages: 128 129.
- 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
- Refer: Outline to the Bill.
- Parliamentary Debates, House of Representatives, 23
October 1997: 9532.
- To avoid possible confusion, a Bills Digest is being prepared
reflecting the raft of Government amendments to be made in response
to the recommendations of the JCPA and the Senate Finance and
Public Administration Legislation Committee.
- Refer, page 21.
- Refer section 9 and section 1 of Schedule 1 of the
- 'Guarding the Independence of the Auditor-General', October
- At page 10.
- Some would argue that the importance of symbolism should not be
understated in the present context.
- Evidence by the Auditor-General to the JCPA Inquiry into the
Auditor-General Bill 1996, op cit: 16.
- It is a moot point, however, whether this particular
prohibition on the issuing of directions would prevent a Presiding
Officer from issuing a general direction prohibiting departmental
staff (including the Clerk) from initiating or engaging in media
comment on matters related to their parliamentary duties.
- However, as Clerks may not be re-appointed, it must be said
that mandatory review argument carries little weight in the present
- Refer JCPA, Report No. 346: 16 17.
- Statutory Office-holders are not classified as members of the
- PSMPC, APS Staffing Statistics Report 1996: 48.
- Senate Finance and Public Administration Legislation Committee,
op cit: 5.
- Peter Hallahan, Chair, Corporate Links Sub-Committee,
Parliamentary Service Bill 1997, 24 September 1997: 2.
- Hansard, op cit: 9532.
27 October 1997
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