Bills Digest No. 68   1997-98 Parliamentary Service Bill 1997


Numerical Index | Alphabetical Index

WARNING:
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 Bill.

CONTENTS

Passage History

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.

Purpose

The Bill provides for the creation of a new and independent framework for the employment of staff in the Parliamentary Departments.

Background

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 House.

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 1997.(6)

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 recommended that:

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 relevant entitlements.

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 mobility.(11)

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)

Main Provisions

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 the day.(14)

In the Second Reading Speech, the Speaker, informed the House that:

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 introduced.(16)

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 accompanying measures.

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 Service.

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 7).

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 individual.

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 classification rules.

Generally

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 1997.

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 1996.

Departments

Clause 46 provides for the creation of the Parliamentary Departments.

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 46(2).

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.

Departmental Secretaries

The Clerks

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 office.

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 possible re-engagement.(25)

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 (clause 54).

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 and allowances.

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).

Other Secretaries

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 holder'.

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.

Acting Secretaries

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 period.

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 operations.

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 PARSC.

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 Parliamentary Service.

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 Bill 1997.

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 leave.

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 provided.

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) Act.(30)

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 framework.

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 framework.

Concluding Comments In the 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 possibly unwise.

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 founder.

Endnotes

  1. For more detail see Explanatory Memorandum, Public Employment (Consequential and Transitional) Amendment Bill 1997: 22 23.
  2. See principally sections 9 9C of the Public Service Act 1922.
  3. Budget Paper No.1, 1997-98, page 4 147.
  4. Persons engaged under the Public Service Act 1922.
  5. PSMPC, APS Staffing Statistics Report 1996:12 and Budget Paper No.1, 1997-98:4 5.
  6. Auditor-General Bill 1996; Audit (Transitional and Miscellaneous) Amendment Bill 1996; Financial Management and Accountability Bill 1996; and Commonwealth Authorities and Companies Bill 1996.
  7. Report at pages: 128 129.
  8. Submissions, volume 2: 186-187.
  9. Transcript of evidence, 7 August 1997: 126 127.
  10. ibid: 137.
  11. ibid: 137.
  12. Report: 5.
  13. Report No. 28, 22 October 1997. The Report does not record the Committee's reasoning.
  14. Refer: Outline to the Bill.
  15. Parliamentary Debates, House of Representatives, 23 October 1997: 9532.
  16. 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.
  17. Refer, page 21.
  18. Refer section 9 and section 1 of Schedule 1 of the Auditor-General Act.
  19. 'Guarding the Independence of the Auditor-General', October 1996.
  20. At page 10.
  21. Some would argue that the importance of symbolism should not be understated in the present context.
  22. Evidence by the Auditor-General to the JCPA Inquiry into the Auditor-General Bill 1996, op cit: 16.
  23. 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.
  24. However, as Clerks may not be re-appointed, it must be said that mandatory review argument carries little weight in the present context.
  25. Refer JCPA, Report No. 346: 16 17.
  26. Statutory Office-holders are not classified as members of the SES.
  27. PSMPC, APS Staffing Statistics Report 1996: 48.
  28. Senate Finance and Public Administration Legislation Committee, op cit: 5.
  29. Peter Hallahan, Chair, Corporate Links Sub-Committee, Parliamentary Service Bill 1997, 24 September 1997: 2.
  30. ibid.
  31. Hansard, op cit: 9532.

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27 October 1997
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Published by the Department of the Parliamentary Library, 1997.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 28 October 1997

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