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
Public Service Bill 1997
Date Introduced: 26 June 1997
House: House of Representatives
Portfolio: Prime Minister
Commencement: On proclamation, but no later than 6
months after Royal Assent.
Reflecting the wealth of material in circulation at the time of
writing and a significant raft of foreshadowed Government
amendments, this Digest departs from the usual format in that the
discussion of the Bill's main provisions:
- is organised around the chapter headings of the Report of the
Parliamentary Joint Committee of Public Accounts on the Public
Service Bills (Report No. 353); and
- incorporates commentary on the Government's proposed amendments
to be moved in response to Report No. 353.
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
Together with three other Bills, the Public Service Bill 1997
repeals and replaces the Public Service Act 1922. The
three related Bills are the:
- Public Employment (Consequential and Transitional) Amendment
- Parliamentary Service Bill 1997
- Parliamentary Service (Consequential Amendments) Bill
The Public Employment (Consequential and Transitional) Amendment
Bill 1997 also provides for the repeal of the Merit Protection
(Australian Government) Employees Act 1984.
The Bill proposes significant changes to the legislative
framework governing employment in the Australian Public Service
(APS) and will affect approximately one in three persons employed
by the Commonwealth.
The Bill replaces the 300 pages of dense, complex and poorly
organised drafting in the Public Service Act 1922 with an
'admirably direct and succinct statement of the essential
characteristics of public service'(2) totalling a mere 36
Much of the present detail will not be replicated in the new
legislative framework. Other matters are to be dealt with by way of
regulation or in binding directions issued by the Public Service
The new Act will also operate in tandem with the Workplace
Relations Act 1996 and other employment related
The APS 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
As at 31 December 1996, the number of staff in the APS totalled
134 617. This is projected to reduce to about 115 000 by June
Of these, 112 766 were paid permanent staff (down 7.4% since
December 1995). The number of temporary staff decreased by 1 600 or
10.3% in the twelve months to December 1996.(6)
Commonwealth employment not covered by the Public Service Act
includes about 58 000 defence force personnel, 33 000 employees of
non APS authorities and 123 000 employees of Government Business
The APS has been undergoing a process of continuous change since
the last major legislative reforms enacted by the Hawke Government
in 1984 and the adoption of the mega department model and abolition
of the Public Service Board structure in 1987.
In key respects the present proposals seek to adapt the
legislative framework to changed operations and priorities,
characterised by a greater focus on outcomes instead of process,
that have applied in the APS for many years.(8)
Many of the proposals also reflect what is now current practice
in the States and Territories. Legislation in the form introduced
by the current Government has been 'on the drawing board' since the
time of the Machinery of Government Changes in 1987. A Bill, (no
doubt) not entirely dissimilar to the present, was being prepared
by the previous Government in response to the Report of the Public
Service Act Review Group (the McLeod Report)(9) but was not
introduced before the March 1996 Federal Election.
Some aspects of the Bill have attracted a degree of criticism,
others - even those promoting largely symbolic change - have been
the subject of heated debate.
The legislation covers a broad and disparate canvass and the
following discussion necessarily focuses on those issues which have
attained prominence in the public discussion to date. Other issues
may still emerge.
The course of the present Bill may be charted as follows:
- A Review of the Public Service Act 1922 was announced
by the then Assistant Minister for Industrial Relations, Hon Gary
Johns, on 30 June 1994.
- The Report of the Review headed by Mr Ron McLeod was presented
to Minister Johns on 22 December 1994.
- In August 1995, the Keating Government announced its response
to the McLeod Review, accepting the overwhelming majority of the
Report's 118 recommendations.
- In November 1996, Minister for Industrial Relations, Peter
Reith, issued a Discussion Paper, entitled 'Towards a Best
Practice Australian Public Service'.
- Between December 1996 and February 1997 there was an extensive
consultation program within the APS and involving major interested
parties, on Minister Reith's Discussion Paper.
- On 7 February 1997 the Senate Finance and Public Admnistration
References Committee conducted a Round Table to consider the
Minister's Discussion Paper.(10)
- In May 1997, the Public Service and Merit Protection Commission
(PSMPC) and the Department of Industrial Relations published an
action plan for the new Public Service Act. The paper was entitled,
'Accountability in a Devolved Management Framework'.
- On 26 June 1996 the Public Service Bill 1997 and the
accompanying Consequential Provisions Bill were introduced in the
House of Representatives.
- After the Second Reading, both Bills were referred to the JCPA
for Report by 4 September 1997 (later extended to 29 September
1997). The JCPA commenced hearings with a Round Table on 6 August
- The JCPA reported on 29 September 1997.
- Both Bills were also referred to the Senate Finance and Public
Administration Legislation Committee on 4 September 1997. The
Committee reported on 2 October 1997 but made no
- The Parliamentary Service Bill 1997 and an accompanying
consequential measure were introduced on 23 October 1997 in the
House of Representatives.
As noted above, what follows focuses principally on the
recommendations of JCPA Report No. 353 and the Government's
legislative response to them.
Readers seeking critical comment on the Bill are directed to
Appendix 4 of the JCPA's Report which provides detailed
clause by clause comment in tabular form.
The Supplementary Explanatory Memorandum for the Public Service
Bill circulated by Minister David Kemp on 27 October 1997 states
that 19 of the 20 recommendations of the JCPA were accepted fully
or in large measure, with the recommendation for whistleblowing
legislation being left for future Government consideration.(12)
Perhaps, the most significant of the changes agreed involves the
re-creation of the statutory office of Merit Protection
Chapter 2 of the JCPA Report outlines a number of general
concerns relating to the impact of the Bill on traditional public
service values, including that the Bill may:
- change the APS from a public service to a government
- destroy the APS as a career service;
- erode the quality of advice provided to Government;
- increase the risk that the APS would be politicised;
- destroy the cohesion of the APS;
- result in a loss of public service values;
- ignore the qualities of the people who choose public service as
a career; and
- significantly weaken the Parliament.(13)
Against this, it must be noted that the Bill also received many
general and specific expressions of support. This 'balance' is
reflected in the Report of the JCPA.
The overall position taken by the JCPA was as follows:
2.28 While the Committee supports the need for the 1922
Act to be replaced, and favours simplification, modernisation and
the more accessible format of the Bill, its review has identified a
number of areas where improvements can clearly be made
2.29 The review has also revealed a number of issues on
which the Committee members have not been able to agree. These are
highlighted in this report for the information of Members and
The JCPA recommended that clauses 56 and
63 be amended to require that annual reports from
secretaries of departments and heads of executive agencies be
prepared in accordance with guidelines approved by the JCPA on
behalf of the Parliament.
The Government does not propose to amend the Bill to adopt this
APS Values and Code of Conduct
General concerns were expressed over the enforceability of the
Values. Concern was expressed regarding the effects of diminished
employment security. The JCPA agreed that there is a need to ensure
that the Act gives clear expression to the principle that the
advice provided by the APS is vital for good, accountable
It was also thought that some degree of uniformity would need to
be maintained in relation to codes of conduct across the APS and
that there should be a common core of procedures in relation to
dealing with breaches of the Code.
The JCPA recommended that clause 10(e) be
amended so as to make it plain to whom the APS is accountable by
adding the words 'within the framework of Ministerial
responsibility to government, parliament and the public'.(16)
The Government is moving to adopt this recommendation.
The JCPA recommended that clause 10(f) be
amended to insert the words 'frank, honest, comprehensive,
The Government is moving to adopt this recommendation.
The JCPA recommended that the Public Service Commissioner (PSC)
should monitor the procedures developed by Agencies under
clause 15(3) concerning enforcement of conduct
The Government does not propose to amend the Bill to adopt this
recommendation. However, no legislative initiative is necessary to
apply this recommendation.
The JCPA recommended that the PSC should review all suggested
amendments to clauses 13 and 15
as detailed in Appendix 4 to its Report and advise the Government
on whether they should result in changes to the Bill.
The Government does not propose to amend the Bill to adopt this
recommendation. However, no legislative initiative is necessary to
apply this recommendation.
The JCPA strongly supported the principle that merit continue to
be the primary basis for employment decisions in the APS.(17) There
was general support for the proposition that the merit principle
should be defined in the legislation.(18)
The JCPA examined a number of specific proposals in relation to
the definition of 'merit'. It concluded that a definition based on
the CCH Australian and New Zealand Equal Opportunity Law and
Practice definition be adopted.
The JCPA noted undertakings by the PSC in the draft Direction on
Merit that where it is proposed either to promote a person to a
particular vacancy or engage a person for a period of, or period
totalling 12 months or more, that the position be open to all
Australians. Others supported an optional rather than mandatory
approach to advertising positions, noting the cost of advertising
and time involved in processing very large numbers of applications
for low skill positions.(19)
The JCPA recommended that the Public Service Bill should include
a definition of merit.
The Government proposes to amend clause 10 of
the Bill to include a definition of merit.
The JCPA suggested a definition of merit as follows:
'An employment decision about a person is based on merit if:
- an assessment is made to establish the best applicant for the
- the assessment is based on the relationship between the
applicant's work related qualities and the work related qualities
genuinely required for performance in the job(s); and
- the assessment focuses on the capacity of applicants to achieve
The Government's proposed amendment to clause
10 is in similar terms to that recommended by the
The JCPA recommended that the PSC's Direction on Merit in
Employment should be amended to allow agency heads the discretion
to decide whether individual vacancies are to be advertised as open
to all Australians.
The Government appears to have accepted this recommendation
which does not require an amendment to the Bill.
The Bill seeks to replace 4 pages of 'compliance-oriented' Equal
Employment Opportunity requirements with a simple requirement under
clause 18 that obliges each Agency Head to
establish a workplace diversity program to assist in giving effect
to the APS values detailed at clause 10.
Clause 18 is to be supported by a binding
Commissioner's Direction setting out the actual requirements of the
Criticism that the concept of 'workplace diversity' is vague and
does not guarantee the existence of particular programs or
standards is reflected in the Committee's recommendations
Recommendations 9 12
The JCPA made a series of recommendations including that:
- the PSC's Direction on Diversity in Employment be amended to
expressly require Agency heads to evaluate the 'outcomes' of their
workplace diversity programs;
- the PSC's Directions specify performance indicators for these
- the PSC monitor the evaluation of workplace diversity
- the PSC should make recommendations to Agency heads concerning
the operation of the programs and, where the Agency head fails to
implement the PSC's recommendations, the matter be reported to the
Minister and/or the Parliament.(21)
It was also recommended that data on the diversity programs be
collected, analysed and published on a service wide basis.(22)
Clause 16 prohibits victimisation of or
discrimination against an APS employee who has reported a breach of
the Code of Conduct. Minimum procedures for handling breaches of
the Code are to be dealt with by a Public Service Commissioner's
A series of potential problems were identified by JCPA
witnesses, although most comments favoured the creation of some
form of whistleblowers protection.
One suggested improvement was that a Commonwealth Employment
Ombudsman be created and that this body be responsible for the
protection of whistleblowers.
The Public Service Commissioner, Dr Shergold, on behalf of the
Government, responded to the extensive criticisms of clause
- the Bill is not intended to be a whistleblower protection act;
- wider whistleblower protection was a matter which the
Government was considering.(23)
The JCPA acknowledged considerable limitations in the proposed
scheme but decided not to press for major changes to clause
16. Recognising the need to approach the matter in a
comprehensive fashion, the JCPA recommended that:
The Government consider introducing whistleblowers protection
legislation along lines similar to that which already exists for
the public sector in other Australian jurisdictions. Any such
legislation should be the subject of scrutiny by a parliamentary
committee prior to its passage through the Parliament.(24)
According to the Supplementary Explanatory Memorandum issued on
27 October 1997, the Government has decided not to address the
issue of whistleblowing at this time. The matter has, however,
apparently been referred to the Attorney-General.
No substantive Government amendment to clause
16 has been proposed.
Employment Arrangements, Categories of Employment and Tenure
Chapter 7 of JCPA Report No. 353 identifies a number of
significant employment issues but makes no formal
Three key areas of interest identified were:
- the employment powers of agency heads;
- the revised arrangements in relation to remuneration and terms
and conditions of employment; and
- employment categories and tenure arrangements for APS
The core issue here revolves around the determination of the
Government to depart further from the model of a single unified
career service and move towards a more devolved framework for
determining pay and conditions using the provisions of the
Workplace Relations Act 1996.
Government witnesses took the view that this was a matter of
government policy outside the scope of the present Bill.(26)
The JCPA noted that 'the changes proposed by the Bill in
relation to remuneration arrangements and terms and conditions of
employment for APS employees are consistent with the [Government's]
broader reform agenda in relation to workplace relations and
agreement making which place responsibility for these matters at
the agency level.'(27)
In relation to the question of tenure, critics of the Bill
argued that the Bill effectively ends the notion of a career
The Committee did not accept this line of argument, noting that
the inclusion of relevant provisions in the Public Employment
(Consequential and Transitional) Amendment Bill 1997 (clause 5)
preserves the employment status and [limited] tenure of existing
The JCPA also supported the initiative inherent in the new
arrangements which gives agency heads greater flexibility in
developing a suitable 'staffing mix' of continuing and fixed term
employees for their agencies.
Termination of Employment
The Bill provides that Senior Executive Service (SES) employees
(the top 1500 managers and specialists in the APS) will not have
access to the unfair and unlawful termination of employment
provisions of the Workplace Relations Act 1996
(clause 38). Non-SES staff, but not fixed-term
employees,(29) will have access to those provisions.
Clause 36 requires that the PSC must issue
Directions regulating the termination of SES employees.
The Bill effectively abolishes compulsory age retirement at age
Again, the JCPA makes no recommendation for specific amendments
to the Bill. The Committee did, however, identify a number of
possible amendments to the Bill which were raised during the
Review. These are:
- include in the Bill specific grounds for termination which
would apply to all APS employees, including SES staff;
- include a requirement in the Bill that reasons for termination
be given to affected employees;
- include a requirement in the Bill that an agency head must
obtain a report from the employee's supervisor or another
appropriate employee before an employee is dismissed;
- in relation to SES staff, require in the Bill that PSC certify
that termination is in the best interests of the APS before action
is taken; and
- also in relation to the SES staff, require that the
Commissioner certify that the termination meets the minimum
requirements set out in the PSC Directions.
The JCPA was not able, however, to reach consensus on any of
The Government now proposes to amend clause 29
of the Bill to require that a notice of dismissal must include a
statement of reasons.
Review of Actions
The JCPA noted that amongst other matters, considerable support
exists for the establishment of a 'Commonwealth Employment
Ombudsman'.(31) In doing so, the JCPA recognised the perception
that there is a possible conflict of functions in the Public
Service Commissioner being both the rulemaker and the source of
independent review for individual staffing decisions.(32) The
Committee, without making a specific recommendation, further noted
that a separation of functions of the sort suggested by a number of
witnesses would be a sensible solution to a complex problem.
That view has been accepted by the Government which proposes
amending the Bill to establish the separate office of Merit
Protection Commissioner (new Part 5A). (A similar
amendment will need to be considered for the Parliamentary Service
Bill 1997 if the Merit Commissioner is to have a substantive role
under that proposed Act.)
On an unrelated matter, Chapter 9 of the JCPA Report also
records the Committee's concerns that the draft regulations made
under the Bill lack clarity and are not entirely free from
The JCPA recommended that the Public Service Regulations dealing
with review of APS employment actions be redrafted with the object
of making them simple, clear and concise.
The Regulations were still being developed at the time that they
were presented to the JCPA.
Chapter 10 of JCPA Report No. 353 focuses on:
- proposed changes which remove the role of the Governor-General
in appointing and terminating agency heads
- the lack of tenured appointments for secretaries and any
consequent impact on 'frank and fearless' advice;
- the role and status of 'executive agencies' and their heads;
- the changes to the way in which the remuneration of agency
heads is determined.(33)
Under the 1922 Act Agency heads are appointed by the
Governor-General in Council, ie acting on the advice of the
Government. Under the Bill, the power to make and terminate
appointments is transferred to the Prime Minister.
Some witnesses were critical of the symbolism inherent in this
change. The JCPA, however, accepts that the changed approach
reflects the reality that such matters rest with the Prime Minister
and supports the proposed change.(34)
Tenure and Quality of Advice
From 1993, Departmental Secretaries have been able to be
appointed on a continuous or fixed term basis. It has been the
practice since that time that all new appointments have been for
The JCPA supported the continuation of the present arrangements
that secretaries be offered fixed term appointments up to a maximum
period of five years.(35)
Role and Status of Executive Agencies
Clauses 6 and 58 63 provide
for the establishment of 'executive agencies'.
The JCPA accepted comments from the Australian National Audit
Office that the rationale for the establishment of 'executive
agencies' is unclear.
The JCPA recommends that the Explanatory Memorandum to the Bill
provide a clearer explanation of the purpose of executive
This recommendation does not appear to have been dealt with
specifically in the Supplementary Explanatory Memorandum.
The JCPA further recommends 'executive agency' heads may only
appointed or dismissed by the Agency Minister after he or she has
received a report from the Secretary of the Prime Minister's
This recommendation has been partly accepted. The Agency
Minister may now only make or terminate an executive agency head's
appointment, having received a report from their Departmental
Secretary (not the Secretary of PM&C as recommended by the
Remuneration of Agency Heads
Differing views were put to the JCPA concerning the appropriate
role for the Remuneration Tribunal in setting the pay and
conditions of agency heads and the Public Service Commissioner.
Under the arrangements proposed in the Bill, the Prime Minister
will set the remuneration and other terms and conditions of
appointment of Departmental Secretaries (clause
54). The relevant Agency Minister is to have equivalent
powers in relation to the PSC (clause 46) and the
Public Service Minister is to have the power in respect of the
Merit Protection Commissioner (clause 48E).
Presently the Remuneration Tribunal sets the salaries of
Departmental Secretaries and the PSC. The issue is whether the
Remuneration Tribunal should play a determinative or a merely
The JCPA did not reach a consensus on whether to retain the
existing arrangements or move to a model proposed in the Bill.
The JCPA (perhaps somewhat lamely) merely recommends that
aggregate remuneration of agency heads and the PSC continue to be
open to public scrutiny and published in the annual financial
statements of Commonwealth agencies.
The Government appears to have accepted this recommendation
which does not require further amendment of the Bill.
As noted by the JCPA, the 1922 Act sets out quite detailed and
complex mobility arrangements for APS staff who gain employment
with Commonwealth bodies which are not staffed under the Public
These rights apply to officers who voluntarily move jobs and to
those who are compulsorily transferred following a government
decision to transfer an APS function to a statutory body.
Mobility issues also arise in connection with public service
staff employed under the Members of Parliament (Staff) Act
1984 [MOP(S) Act] and for officers appointed to statutory
The proposed creation of the Parliamentary Service has also
given rise to a number of possible mobility issues.
Mobility rights (of a right to return nature) pose a
considerable potential management problem for the APS. Evidence
given by the PSC suggested that there are presently 50 000 persons
who have return rights of one form or another to a public service
that presently has between 125 000 and 130 000 staff.(38)
The JCPA makes 3 recommendations in relation to staff
The JCPA recommends maintaining reciprocal mobility arrangements
between the APS and the (as yet to be created) Parliamentary
This recommendation is reflected in clause 26 of the
Parliamentary Service Bill 1997.
The JCPA recommends the Prime Minister exercise the power under
clause 21 of the Bill to issue a general Direction
stating that agency heads must grant leave without pay to APS
employees to take up statutory appointments, employment under the
MOP(S) Act, or employment under the Governor-General Act
1974. It further recommends that this Direction also cover
existing APS staff who may need to seek an extension to their
The Government appears to have adopted this recommendation which
does not require an amendment to the Bill.
The JCPA also recommends that the transitional period for people
with current mobility rights be extended from 1 to 3 years.
This recommendation is adopted and may be effected by
regulations made under the Public Service (Consequential and
Transitional) Amendment Bill 1997.
As was noted by Government witnesses appearing before the JCPA,
some matters to do with employment remain outside the scope of this
Bill.(39) These are important matters of policy which are pertinent
to the operation of the APS within the proposed framework
underpinned by the new Bill.
Four such issues which may warrant further attention are:
- the appropriateness of enterprise and productivity bargaining
in the APS;(40)
- continuing high levels of stress related illness,(41) and the
corrosive effect on staff morale of ongoing APS downsizing (see
- the limitations of 'contractualism' as a mechanism for linking
together the disparate parts of the public sector and achieving the
collective purposes of government;(43) and
- declining career prospects(44) and the ongoing disparities
between rates of pay for comparable levels of employment in the
Commonwealth and State public services and between the APS and the
Choice of Instrument
The Government has sought to enact legislation which provides a
clear and concise statement of to those in the APS, and to the
wider community, of the conduct that expected of public servants.
At the same time it has sought to ensure that the new law is not
'riddled with unnecessary restrictions and arcane details'.(45)
As, apart from the proposed Act,the Government has not relied
exclusively on contractual arrangements or industrial agreements to
underpin the new public service employment framework, many of the
matters regulated under the 1922 Act are to be relegated to
Many of these subordinate laws were being developed during the
period that the JCPA and the Senate Finance and Public
Administration Committee have been examining the Bill. The
unavailability of this subordinate legislation has, not
unsurprisingly, been a source of frustration to both
Committees.(46) Moreover, some aspects of the draft Regulations
were criticised by the JCPA for a lack of simplicity and
This has necessarily amplified some criticisms of the
Government's priorities in retaining some provisions in the primary
legislation but not others. More generally, there are perhaps
unstated concerns as to whether there exist objective criteria for
making such choices.
Subordinate legislation generally
Subject to the Constitution, the Parliament may enact laws
itself or it may authorise another body to make legislation on its
behalf. This authorisation is a feature of most Acts of Parliament
and allows for the making of what is termed delegated or
subordinate legislation by specified persons or bodies. The ARC has
provided a convenient summary of some important features of these
laws stating that:
The [Parliament's] authorisation may take a variety of forms. It
may allow the Governor-General to make regulations or it may confer
power on some other body, such as a Minister or public servant, to
make a rule in another form with another name. Whatever form it
takes delegated legislation has the force of law just as if it were
an Act of Parliament.
Rules made by delegated legislation have common features:
- they must be authorised by Parliament;
- they usually, but not always, deal with procedural details,
rather than the broad framework of the legislative scheme;
- their making often must be notified in the Commonwealth
- some rules can be disallowed by parliament if it does not
approve them; and
- most rules are required to be available to the public, but in a
variety of ways.(48)
Most forms of subordinate legislation come into effect on the
day that they are made. Where such an instrument is disallowed, the
disallowance does not operate retrospectively but from the date of
disallowance. Hence, anything done in accordance with an instrument
during the period between its making and its disallowance is not
There are few limitations on the Commonwealth Parliament's
capacity to delegate legislative power to subordinate bodies
including statutory authorities, administrative tribunals, and
other parts of the Executive. Existing limitations derive from the
requirement that Commonwealth legislative power must originate from
the Constitution, for example under sections 51, 52 or 122. These
legislative powers must not be exceeded nor must they be improperly
Delegated or secondary legislation comes in a variety of
In 1988, the Senate Standing Committee on Regulations and
Ordinances identified 115 different categories of disallowable
instruments.(50) The types of instrument include:
- regulations, which are made by Ministers and under the control
of the Attorney-General's Department;
- proclamations, which are made by the Governor-General on the
advice of Ministers;
- by-laws which are made by Government departments and other
statutory authorities; and
- other instruments including determinations, directives, orders,
declarations, notices, plans, formal or informal guidelines, and
standards. These instruments may be specific to issues, the body
exercising the power, or the function of the instrument.(51)
There has for sometime been considerable interest in reforming
the operation of the laws governing subordinate legislation. This
is unsurprising. The current laws are old and at odds with the
general approach to the review of government decision-making which
has operated in the Commonwealth for the past two decades. As the
present Attorney-General, Daryl Williams QC, suggested from
Opposition in 1995:
The extensions of individual rights in relation to executive
action affecting the individual have not been matched by any major
reforms in the legislative process
Even those modest changes [public inquiries by the Senate
Committees into Bills] have no counterpart in the making of
delegated legislation, where the interests of the citizen have
increasingly been sacrificed to governmental and bureaucratic
convenience. The volume of secondary legislation has grown, the
variety of forms of it has multiplied, the impact of it has become
more and more significant and the ability of citizens to assess it
The above statement captures the essence of the case for
reforming the current law and, by implication, some of the
drawbacks of relying on subordinate legislation instead of
enactments. One may add, or perhaps emphasise, that the need to
improve the standard of subordinate laws is not a mere matter of
accessibility but also one of intelligibility. Many pieces of
subordinate legislation are not drafted by experts. Many are
ambiguous, convoluted or even impenetrable. In some cases this
doesn't matter. In others, more weighty concerns, including
questions bearing on individual liberty, may be involved.
Such concerns are addressed in the Legislative Instruments Bill
1996 which has been before the Parliament in its current
incarnation since 26 June 1996.(53)
This only partly answers the question of what is the appropriate
divide between primary and secondary legislation, ie what
legislative powers is it safe or appropriate for the Parliament to
delegate. Professor Pearce's highly regarded text, Delegated
Legislation argues that there is no definitive answer. Pearce
also cites with approval Jaffe's proposition that:
[p]ower should be delegated where there is agreement that a task
must be performed and it can not be effectively be performed by the
legislature without the assistance of a delegate or without an
expenditure of time so great as to lead to the neglect of equally
This statement, says Pearce, may be expanded by reference to
four situations in which delegation can be considered both
legitimate and desirable, subject to certain safeguards. Those
- to save pressure on parliamentary time;
- where the legislation is too technical or too detailed to be
suitable for parliamentary consideration
- the legislation has to deal with rapidly changing or uncertain
- legislative action may be required in times of
It is against these four practical criteria that the choice
between primary and secondary legislation may be made and
- To avoid possible confusion, the Bills Digest seeks to reflect
Government amendments moved in response to the recommendations of
the JCPA and the Senate Finance and Public Administration
- Phillipa Weeks, Submission to Joint Committee of Public
Accounts, Review of Public Service Bill 1997, Submissions, volume
- For example, Maternity Leave (Commonwealth Employees) Act 1973
and the Long Service Leave (Commonwealth Employees) Act 1976.
- Auditor-General Bill 1996; Audit (Transitional and
Miscellaneous) Amendment Bill 1996; Financial Management and
Accountability Bill 1996; and Commonwealth Authorities and
Companies Bill 1996. These Bills received the Royal Assent on 24
October 1997. They are expected to come into effect on 1 January
- PSMPC, APS Staffing Statistics Report 1996: 12 and Budget Paper
No.1, 1997-98: 4 5.
- ibid: 25.
- An observation made in slightly different terms by the JCPA at
paragraph 2.24 of Report No. 353.
- 22 December 1994.
- The Committee subsequently published a full transcript of these
- The Minority Report of Senator Allison recommended that the
Bill be withdrawn and redrafted taking into account concerns raised
in JCPA Report No. 353. Senator Allison also recommended that the
Bill not be debated until all the subordinate legislation is
available in final draft form.
- Supplementary Explanatory Memorandum: 1.
- JCPA, op cit: 17.
- ibid: 21.
- ibid: 30.
- ibid: 28.
- ibid: 35.
- ibid: 37.
- ibid: 44 45.
- ibid: 44.
- ibid: 51 52.
- ibid: 54.
- ibid: 62 63.
- ibid: 64.
- ibid: 67.
- ibid: 72-73.
- ibid: 73.
- ibid: 76.
- ibid: 85. Fixed term employees in the public and private
sectors are excluded from the Workplace Relations Act protections
from various forms of wrongful dismissal.
- ibid: 89.
- ibid: 108.
- ibid: 112.
- ibid: 116.
- ibid: 120.
- ibid: 124.
- ibid: 126.
- ibid: 126.
- ibid: 139.
- ibid: 72 73.
- This revolves around the efficiency loss in distributing
productivity gains through the wages system rather than as lower
prices and the risks of allowing some agencies to pay more for the
same work than others. It may be argued that the capacity to award
higher productivity benefits may reflect extraneous factors (such
as an agency's pre-existing budget 'fat'). Refer comments by former
Secretary of the Department of Prime Minister and Cabinet, Dr
Michael Keating, to the Senate Finance and Public Administration
Committee's Round Table, 7 February 1997: 103 104.
- Australian National Audit Office, 'Management of Occupational
Stress in Commonwealth Employment, Report No.8 of 1997-98.
- Refer also Craig Littler, 'Downsizing Distemper', Sydney
Morning Herald, 21 October 1997: 17. The loss of morale is
principally experienced by those who have remained with the APS,
not those who have taken voluntary redundancy (packages).
- John Martin, 'Contracting and Accountability' in The State
Under Contract, edited by Jonathon Boston, 1995: 36 55.
- In part a reflection of downsizing and outsourcing but also of
the age profile of the Senior Officer Group and the SES. See
Department of Finance, 'Senior Officer Congestion', Working Paper,
- Explanatory Memorandum: 2.
- Refer JCPA Report No. 353: xvi; Senate Finance and Public
Administration Legislation Committee, Report on the Public Service
Bills: 1 and 9 10.
- JCPA, op cit: 113.
- ARC, op cit: 2.
- The ARC had recommended that disallowance be replaced by an
approval procedure whereby legislative instruments would not have
come into effect until formally approved by Parliament.
- ARC, op cit: 8.
- Refer endnote 1.
- 'Legislative Instruments Bill: How Will It Work?' A Paper to
the 1995 Administrative Law Forum, Administrative Law & Public
Administration: Form vs Substance, edit Kathryn Cole, Canberra
1996: esp 95-109.
- An earlier Bill was introduced on 30 June 1994 but was not
passed prior to the March 1996 Election.
- 'An Essay on Delegation of Legislative Power', 47 Columbia Law
Review, 1947:361. Cited in D Pearce, Delegated Legislation: 9.
- ibid: 9 10.
29 October 1997
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