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Contact Officer and Copyright Details
(Consequential and Transitional) Amendment Bill 1997 [No.2]
5 March 1998
House: House of
Portfolio: Prime Minister
Commencement: The majority of provisions commence at the same time
as the Public Service Act 1997.
Like the Public Service Bill 1997, this is one of a number of
bills that may trigger a double dissolution election.
The Public Employment (Consequential and Transitional) Amendment
Bill 1997 (the CTA Bill) was introduced into the House of
Representatives on 26 June 1997 and passed by it on 30 October
The CTA Bill was introduced into the Senate on 10 November 1997
and was passed incorporating 3 Opposition amendments on 19 November
1997. A message was reported in the House on 20 November 1997
which, on 5 December 1997, formally disagreed to the Senate's
amendments and laid the Bill aside.
The present Bill was introduced in the House on 5 March 1998 and
passed by it on 11 March 1998 and is identical to the Bill passed
by the House on 30 October 1997. The Bill was introduced into the
Senate on 12 March 1998 with the Second Reading Speech being given
by Senator Newman.(1)
The Public Employment
(Consequential and Transitional) Amendment Bill 1997 (the CTA Bill)
- validate actions and decisions taken under the former
legislation (the Public Service Act 1922);
- provide for the transition from the present to the new
employment framework; and
- make consequential amendments to over 850 other Acts which
incorporate references to the framework created by the Public
Service Act 1922 (the 1922 Act).
The CTA Bill forms part of a package of four Bills, the others
- Public Service Bill 1997
- Parliamentary Service Bill 1997
- Parliamentary Service (Consequential Amendments) Bill
Of these four measures, only the Parliamentary Service
(Consequential Amendments) Act 1997 has been agreed by both
Houses and received Royal Assent.(2)
Detailed background to the legislation forms part of the Bills
Digests for the Public Service Bill 1997 and the Parliamentary
Service Bill 1997.(3)
The Senate amendments to the initial Bill were extensively
debated in that Chamber but have not received detailed attention in
The 3 Senate amendments to the Bill (as first introduced) are
discussed at the end of the Main Provisions.
The Bill deals with an extensive and disparate range of largely
technical matters. For those wanting a more detailed analysis of
the Bill than is possible here, the Explanatory Memorandum provides
a very readable and detailed account of the measures proposed and
the Minister's Second Reading Speech usefully discusses the major
proposals under two broad groupings.
There are three broad classes of transitional provisions and
eight broad types of consequential measures.
The transitional provisions deal with:
- the changes to the status of existing staff, including
converting them from officers to employees;
- mobility and 'return rights' of public servants;
- the continuation of matters and legal actions on foot.
The consequential amendments provide for:
- changes in the current provisions relating to staffing to
reflect the new employment framework;
- removal of obsolete references to the Public Service Board
(itself abolished in 1987);
- consequential (essentially machinery) amendments to the
- limiting the role of the Remuneration Tribunal in relation to
the setting of pay and conditions of Secretaries;
- removal of cross-references to reciprocal mobility, which is
now to be dealt with by the Public Service Commissioner's
- removal of references to the former mobility arrangements set
out in Part IV of the 1922 Act;
- standard translations for common terms in the 1922 Act;
- other miscellaneous amendments to maintain links to the new APS
This substantive issue is dealt with at page 14 of Bills
Digest No. 74 (Public Service Bill 1997) and pages 12-13 of
Bills Digest No. 68 (Parliamentary Service Bill 1997) and
below in relation to the Senate amendment.
The Parliamentary Departments are not dealt with by the proposed
Public Service Bill 1997, but by their own 'mirror' legislation.
Therefore it was thought necessary to include a provision in the
present Bill anticipating a possible situation where the Public
Service Bills were passed before the two Bills covering the
Parliamentary Departments.(5) Clause 12 of the
present Bill provides for that eventuality.
Clause 12 is to be repealed by section 10 of
the Parliamentary Service (Consequential Amendments) Act
1997 which, although it has received the Royal Assent, is yet
to come into effect.
The CTA Bill also deals with the consequences of changing
arrangements for setting Senior Executive Service (SES)
Clause 24 of the Public Service Bill provides for the devolution
of salary setting arrangements for SES and non SES employees to the
agency level. There will in time thus be different rates of pay
applying to the same classifications across the APS.
Schedule 3 of the Remuneration and Allowances Act 1990
links the remuneration of members of Parliament to the minimum
salaries payable to SES Band 2 officers. However, as there will be
no common base salary for SES employees across the APS, it is
necessary devise another mechanism for setting base for Members of
Parliament. (Enterprise bargaining would not appear to be a
practical or favoured option.)
The Government is proposing amendments to the Remuneration
Tribunal Act 1973 to determine a classification structure for
what will be called principal executive offices (Schedule
1 to the 'amended' CTA Bill, items
757-762). The Explanatory Memorandum states that a linkage
will in future be made between parliamentary salaries and a
principal executive classification prescribed by regulation.(6)
These principal executive classifications are to be subject to
regular review in accordance with the Remuneration Tribunal Act
The Explanatory Memorandum also states that the new linkage will
apply to certain statutory offices without increasing the level of
Clause 5 of the Bill provides for certain
office-holders under the 1922 Act to retain their present status
under the new Act.
For example, when the new Act commences, a person who is
Secretary of a Department engaged under section 37 of the
Public Service Act 1922 will continue to hold that office
for the remainder of their original term of appointment
The Senate amended clause 5 to provide that
this provision also applies to the person holding the office of
Merit Protection Commissioner under the Merit Protection
(Australian Government Employees) Act 1984 on the date that
the new Act comes into effect.
The Government does not appear to have stated any specific
reason for opposing this amendment.
Clauses 6 and 7 deal with the
return rights of APS staff who have transferred to non-APS
A detailed exposition of the mobility provisions is given in the
Explanatory Memorandum and is not repeated here. The essential
features of the so-called first and second tier arrangements are as
- Division 2 of Part IV of the 1922 Act deals with first tier
employees. These are APS employees who have taken up
employment with a statutory authority but retain the right to
return to the APS at any time they please. Such officers are
generally deemed to be on leave from the APS but time spent with
the non-APS authority by such employees counts as service in the
- Division 3 of Part IV the 1922 Act deals with second tier
employees. This Division applies to APS officers who, at the
end of an initial three year period with an authority, choose to
remain in the employment of that authority, or another body covered
by Part IV of the 1922 Act under the second tier provisions.
Officers covered by the second tier arrangements can apply for
promotion or transfer to APS vacancies, and exercise promotion
appeal rights, as if they were still APS officers. They also have
certain rights of re-entry to the APS in cases where they have been
or are about to be displaced from employment by their current
government (non-APS) employer.
In relation to clause 6, the Government
proposal is that mobility rights for first tier employees will be
retained but only for a transitional period of 3 years.
The Senate amendment proposes that the present clauses be
deleted and replaced by a provision which would 'grandfather'
significant mobility rights acquired by current staff employed
under the Public Service Act 1922 who are presently
engaged in Commonwealth authorities not staffed under that Act.
Both the McLeod Report(8) prepared for the Keating Government,
and the 'Accountability in a Devolved Management Framework'
document issued by the Public Service and Merit Protection
Commission and the then Department of Industrial Relations in May
1997, are critical of the substance and complexity of the present
mobility provisions. Those provisions comprise 40 substantive
provisions and run to 61 pages in the present reprint of the
Public Service Act 1922.
Determinations and remuneration
Section 82D of the 1922 Act enables the making of determinations
setting terms and conditions of employment of APS staff.(9)
Since the demise of the Public Service Board in 1987, most of
these determinations have been made by the Public Service
Commissioner or (what was) the Department of Industrial Relations.
Section 82D determinations are administrative measures and are
subject to disallowance by the Parliament.
Clause 9 reflects proposed section 24 of the
Public Service Bill 1997 which provides that Agency Heads may from
time to time determine in writing the remuneration and other terms
and conditions of employment of APS employees. A similar power is
also to be conferred by proposed subsection 24(3) of the Public
Service Bill on the Public Service Minister.
Under clause 9, existing section 82D
determinations continue to have effect but may be revoked by the
Agency Head in the same manner as determinations made under
proposed section 24 of the Public Service Bill. However,
subclause 9(3) further provides that all unrevoked
section 82D determinations will cease to have effect on the first
anniversary of the new legislation coming into effect.
The Senate amendment is aimed at:
- preventing Agency Heads amending or revoking a determination in
a way that diminishes any provisions in an award or certified
- extending the sunset provision in subclause
9(3) from 12 months to 3 years.(10)
The Government opposes the changes, arguing that they will tie
what are purely management instruments to awards and certified
agreements thus making matters more inflexible and more
- Senate, Parliamentary Debates, 12 March 1998,
- The Explanatory Memorandum for the present Bill is incorrect in
stating that both Parliamentary Service Bills were laid aside on 5
December 1997. Royal Assent was given to the Parliamentary
Service (Consequential Amendments) Act 1997 on 7 December
- See Bills Digests Numbers 68, 74 and 164 of 1997-98.
- House of Representatives, Parliamentary Debates, 26
June 1997, 6468.
- This was a reasonable precaution given the relative stages of
development of the two packages of legislation.
- page 7.
- Report of the Public Service Act Review Group, AGPS,
December 1994, 52-53.
- Awards and industrial agreements, however, are the main source
of APS employment conditions.
- Senate, Parliamentary Debates, 19 November 1997,
- Ibid., 9158.
25 March 1998
Bills Digest Service
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Commonwealth of Australia 1998
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