Bills Digest No. 74   1997-98 Public 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

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.

This Digest

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 introduced.(1)

Purpose

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 Bill 1997
  • Parliamentary Service Bill 1997
  • Parliamentary Service (Consequential Amendments) Bill 1997.

The Public Employment (Consequential and Transitional) Amendment Bill 1997 also provides for the repeal of the Merit Protection (Australian Government) Employees Act 1984.

Background

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 pages.

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 Commissioner.

The new Act will also operate in tandem with the Workplace Relations Act 1996 and other employment related legislation.(3)

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 1997.(4)

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 1998.(5)

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 Enterprises.(7)

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.

Recent Developments

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 1997.
  • 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 recommendations.(11)
  • The Parliamentary Service Bill 1997 and an accompanying consequential measure were introduced on 23 October 1997 in the House of Representatives.

Main Provisions

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 Commissioner.

Overarching Issues

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 service;
  • 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 Senators.(14)

Recommendation 1

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 recommendation.

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 government.(15)

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.

Recommendation 2

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.

Recommendation 3

The JCPA recommended that clause 10(f) be amended to insert the words 'frank, honest, comprehensive, accurate'.

The Government is moving to adopt this recommendation.

Recommendation 4

The JCPA recommended that the Public Service Commissioner (PSC) should monitor the procedures developed by Agencies under clause 15(3) concerning enforcement of conduct standards.

The Government does not propose to amend the Bill to adopt this recommendation. However, no legislative initiative is necessary to apply this recommendation.

Recommendation 5

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.

Merit

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)

Recommendation 6

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.

Recommendation 7

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 job(s);
  • 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 job outcomes.'(20)

The Government's proposed amendment to clause 10 is in similar terms to that recommended by the JCPA.

Recommendation 8

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.

Workplace Diversity

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 new program.

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 programs;
  • the PSC monitor the evaluation of workplace diversity programs;
  • 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)

Whistleblowers

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 Direction.

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 16 that:

  • the Bill is not intended to be a whistleblower protection act; and
  • wider whistleblower protection was a matter which the Government was considering.(23)

Recommendation 13

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 recommendations.

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 employees.(25)

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 service.

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 APS staff.(28)

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 65.

Recommendations

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 these suggestions.(30)

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 ambiguity.

Recommendation 14

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.

Agency Heads

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; and
  • the changes to the way in which the remuneration of agency heads is determined.(33)

Governor-General

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 fixed terms.

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.

Recommendation 15

The JCPA recommends that the Explanatory Memorandum to the Bill provide a clearer explanation of the purpose of executive agencies.(36)

This recommendation does not appear to have been dealt with specifically in the Supplementary Explanatory Memorandum.

Recommendation 16

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 Department.(37)

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 JCPA).

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 advisory role.

The JCPA did not reach a consensus on whether to retain the existing arrangements or move to a model proposed in the Bill.

Recommendation 17

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.

Mobility Arrangements

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 Service Act.

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 offices.

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 mobility.

Recommendation 18

The JCPA recommends maintaining reciprocal mobility arrangements between the APS and the (as yet to be created) Parliamentary Service.

This recommendation is reflected in clause 26 of the Parliamentary Service Bill 1997.

Recommendation 19

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 current arrangements.

The Government appears to have adopted this recommendation which does not require an amendment to the Bill.

Recommendation 20

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.

Concluding Comments

Other Issues

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 above);(42)
  • 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 private sector.

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 subordinate legislation.

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 clarity.(47)

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 Gazette;
  • 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 affected.(49)

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.

Delegated or secondary legislation comes in a variety of forms.

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 has lessened.(52)

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 important business.(54)

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 are:

  • 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 situations; and
  • legislative action may be required in times of emergency.(55)

It is against these four practical criteria that the choice between primary and secondary legislation may be made and assessed.

Endnotes

  1. 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 Legislation Committee.
  2. Phillipa Weeks, Submission to Joint Committee of Public Accounts, Review of Public Service Bill 1997, Submissions, volume 4: 424.
  3. For example, Maternity Leave (Commonwealth Employees) Act 1973 and the Long Service Leave (Commonwealth Employees) Act 1976.
  4. 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 1998.
  5. PSMPC, APS Staffing Statistics Report 1996: 12 and Budget Paper No.1, 1997-98: 4 5.
  6. ibid.
  7. ibid: 25.
  8. An observation made in slightly different terms by the JCPA at paragraph 2.24 of Report No. 353.
  9. 22 December 1994.
  10. The Committee subsequently published a full transcript of these proceedings.
  11. 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.
  12. Supplementary Explanatory Memorandum: 1.
  13. JCPA, op cit: 17.
  14. ibid: 21.
  15. ibid: 30.
  16. ibid: 28.
  17. ibid: 35.
  18. ibid: 37.
  19. ibid: 44 45.
  20. ibid: 44.
  21. ibid: 51 52.
  22. ibid: 54.
  23. ibid: 62 63.
  24. ibid: 64.
  25. ibid: 67.
  26. ibid: 72-73.
  27. ibid: 73.
  28. ibid: 76.
  29. 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.
  30. ibid: 89.
  31. ibid: 108.
  32. ibid: 112.
  33. ibid: 116.
  34. ibid: 120.
  35. ibid: 124.
  36. ibid: 126.
  37. ibid: 126.
  38. ibid: 139.
  39. ibid: 72 73.
  40. 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.
  41. Australian National Audit Office, 'Management of Occupational Stress in Commonwealth Employment, Report No.8 of 1997-98.
  42. 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).
  43. John Martin, 'Contracting and Accountability' in The State Under Contract, edited by Jonathon Boston, 1995: 36 55.
  44. 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, August 1994.
  45. Explanatory Memorandum: 2.
  46. Refer JCPA Report No. 353: xvi; Senate Finance and Public Administration Legislation Committee, Report on the Public Service Bills: 1 and 9 10.
  47. JCPA, op cit: 113.
  48. ARC, op cit: 2.
  49. 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.
  50. ARC, op cit: 8.
  51. Refer endnote 1.
  52. '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.
  53. An earlier Bill was introduced on 30 June 1994 but was not passed prior to the March 1996 Election.
  54. 'An Essay on Delegation of Legislative Power', 47 Columbia Law Review, 1947:361. Cited in D Pearce, Delegated Legislation: 9.
  55. ibid: 9 10.

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