Bills Digest No. 18 1999-2000 Parliamentary Service Bill 1999

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
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Parliamentary Service Bill 1999

Date Introduced: 28 June 1999

House: House of Representatives

Portfolio: The Parliament

Commencement: Immediately after the commencement of the Public Service Act 1999

Purpose

The Parliamentary Service Bill 1999 ('the present Bill'):

• revives a proposal to establish a separate legal framework covering staff employed by the five Parliamentary Departments.
• substantially replicates the terms of the Public Service Bill 1999 that proposes significant changes to employment arrangements in the broader Australian Public Service (APS).
• provides for minor amendments to the Parliamentary Service (Consequential Amendments) Act 1997.

Background

In 1997, the Government introduced a package of four Bills to recast the legislation underpinning employment in the APS including those parliamentary staff engaged under sections 9-9AB of the Public Service Act 1922 (the Principal Act or the 1922 Act).

The 1997 package provided for the creation of a separate Parliamentary Service distinct from the APS and for the maintenance of mobility rights between the two Services.

The House of Representatives and the Senate twice failed to agree on three of the four Bills and on 6 April 1998, the House formerly laid aside the Public Service Bill 1997, the Parliamentary Service Bill 1997 and the Public Employment (Consequential and Transitional) Bill 1997. The ongoing disagreement between the Houses constituted a deadlock for the purposes of section 57 of the Constitution, thus giving the Prime Minister the option of seeking the simultaneous dissolution of the Senate and the House of Representatives.

A fourth Bill - the Parliamentary Service (Consequential Amendments) Bill 1997 - passed both Houses and subsequently received Royal Assent on 7 December 1997. This Act cannot, however, come into effect until the passage of the Parliamentary Service Bill.

On 30 March 1999, the Government introduced the Public Service Bill 1999 and the Public Employment (Consequential and Transitional) Amendment Bill 1999. These are the same as the Bills of the same name introduced by the Government in the last Parliament.

Bills Digests for the two 1999 Public Service Bills were prepared and distributed in May 1999.(1) These Bills are yet to be debated.

The Parliamentary Service Bill 1999 is also drafted in terms substantially similar to the previous Bills of the same name.

As noted by the Speaker in his Second Reading Speech, the present Bill is, apart from four changes, the same as the Parliamentary Service Bill passed by the House in October 1997.

Other provisions in the Bill are discussed in the Main Provisions section to this Digest.

Parliamentary Administration

Since the early years of federation, the Parliamentary Departments have been staffed under the common service-wide arrangements provided by the Public Service Act.(3)

The Public Service Act 1922 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. 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.(4)

Basic appropriations for the five Parliamentary Departments for 1999-2000 are in the order of $159 million.(5)

The proposed Parliamentary Service, based on present average staffing levels (ASL) across all Departments, will comprise about 1220 employees.(6) This compares with the projected numbers for all agencies in the general government sector of about 187 000.(7)

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. However, under existing arrangements, the Executive Government retains control over the content of the Bill as intorduced.

The Parliamentary Departments are subject to standard APS financial accounting and reporting measures including audit legislation effective from on 1 January 1998 and to the Government's full accrual accounting and reporting regimen. (8)

The Parliamentary Departments are also subject to the Workplace Relations Act 1996. All Parliamentary Departments have negotiated certified agreements under this legislation.

Separate legislation - a rationale

As with the development of a separate Appropriation Bill for Parliament, the present proposal represents a significant symbolic break with the past.

To again quote Mr Speaker:

Towards a Bill

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) agreed with the then Presiding Officers that the Parliamentary Departments be covered in a new Public Service Act, rather than by separate legislation.(10)

The genesis of the present Bill is discussed in a submission made by the Secretary of DPRS and Acting Parliamentary Librarian (John Templeton) and the Secretary of the Joint House Department (Michael Bolton) to the Joint Committee of Public Accounts (JCPA) inquiry into the Public Service Bill 1997 and the Public Employment (Consequential and Transitional) Amendment Bill 1997.(11)

To reproduce that submission in part:

The JCPA's Report supports the establishment of the Parliamentary Service as a separate service.(13) Reflecting, however, the importance of mobility between the two services, the JCPA recommended that:

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:

Clause 26 of the present Bill makes provision for reciprocal mobility between the two services.

The Senate Standing Committee on Appropriations and Staffing considered the Bill its previous iteration and commended it to the Senate.(16)

Main Provisions

The substance of the Bill has been debated twice previously, both in the House of Representatives and the Senate.

As already noted, the majority of the Bill's substantive provisions are the same, or else reflect the same philosophy, as the Public Service Bills re-introduced on 30 March 1999.

Accordingly, this Digest deals principally with those provisions unique to the Parliamentary Service Bill. Reference is made to previous debate to assist readers in identifying possible points of interest or contention.(17)

Appointment of Clerk of the Senate and Clerk of the House of Representatives

Clause 54 continues the offices of the Clerk of the Senate and Clerk of House of Representatives (the Clerks).

Clause 57 deals with the appointment of the Clerks. 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 57(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 74 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.

Senate amendments to clause 57 would have altered the method of appointment, providing that each Presiding Officer must formally consult the relevant Chamber before making a new appointment. The Senate also proposed a new subsection 57(2A) that would require each House to determine the form of consultation.(18)

Mobility between the Parliamentary Service and the Public Service

Clause 9 creates a separate Australian Parliamentary Service.

The Parliamentary Service is to consist of all persons employed by the (presently five) Parliamentary Departments, including Departmental Secretaries, SES and non SES staff.

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 referred to 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 76 and 77 deal with specific 'rights of return' for employees who are working in non-APS Commonwealth agencies. The provisions are the equivalent of those in the Public Employment (Consequential and Transitional) Amendment Bill 1999.

In evidence to the 1997 JCPA Inquiry, the Clerk of the Senate, Mr Evans observed in regard to mobility that:

When previously debated in November 1997, the Senate amended Clause 26 to add a provision dealing with compulsory moves between Parliamentary Departments and between the proposed Parliamentary Service and the APS. The amendment would have added subclause 26A empowering the Parliamentary Service Commissioner (with the agreement of the relevant Presiding Officer or Officers) to transfer excess Parliamentary Service employees to another Parliamentary Department or to the APS. This proposed amendment would have only applied to staff engaged in the Parliamentary Departments under the Public Service Act 1922 at the time that the new Act came into effect.

The proposed amendment was designed to protect the existing rights of current parliamentary staff. Rights, in relation to redundancy and redeployment, are secured by the Public Service Act 1922 and any relevant industrial agreements. The Government opposed this amendment as first moved and did not expand on its reasons for continuing its opposition to proposed clause 26A in the form finally proposed.(20)

The amendment was also moved during debate on the re-presented Bill on 1 April 1998.(21)

Parliamentary Service Commissioner and Parliamentary Service Values

The 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 detailed in clause 39 and are somewhat more limited than those given to the Public Service Commissioner under the Public Service Bill 1999. 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 1999 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.

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 Act 1997. It is stated in the Explanatory Memorandum that this clause is 'the equivalent' of clause 43 in the Public Service Bill 1999. That is not to say that the provisions are the same. Clause 43 of the Public Service Bill 1999 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' may 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.

Maintenance of Parliamentary Service Values

Clause 11 provides that the PARSC may advise the Presiding Officers in relation to implementation and scope for application of the Parliamentary Service Values.

During debate on the 1997 Bill, the Senate carried three amendments to this clause. Those amendments:

• made it mandatory for the PARSC to give advice to the Presiding Officers on Parliamentary Service Values;
• required that the Presiding Officers issue written determinations in relation to each of the Parliamentary Service Values;
• provided that where an issued determination relating to Parliamentary Service Values is contrary to advice given by the PARSC, the Presiding Officers must inform each House of their reasons for not accepting that advice.(22)

In substance, clause 11 is similar to the equivalent provision in the Public Service Bill 1999. The relationship between the PARSC and the Presiding Officers is, however, unique. Whereas the Public Service Commissioner can issue directions, the PARSC can only give advice. Senate amendments to clause 11 when previously debated were inspired by this key difference.

Independent advice

Like the Public Service Bill, the proposed legislation to create the parliamentary service contains measures which may shore up the position of those whose job it is to provide policy advice to 'government' in its wider sense, ie not simply the Executive.

Early discussion within the parliamentary precincts on the Bill as initially drafted centred on the question of staff mobility with the APS (discussed above) and proposed changes to the tenure of the Clerk of the Senate and the Clerk of the House of Representatives. The present Bill reflects a compromise between reducing the tenure of the Clerks to five years and the 'life tenure' presently allowed.

Clause 19 affords the Clerks limited protection from political direction. Clause 10 contains a statement of Parliamentary Service Values and it and the Code of Conduct arguably provide some protection from unwarranted political interference to all staff. Subclause 20(4) also limits the powers of the Presiding Officers to direct Secretaries in relation particular individuals.

Departmental Arrangements

Proposals to further rationalise the parliamentary administration are not dealt with directly in the present Bill. The Bill makes such a rationalisation marginally less difficult [subclause 53(1)] as only the Departments of the Senate and the House of Representatives are created by force of law. Other Departments are established by resolutions passed by each House. Clause 73 provides for the continued existence of all five parliamentary departments but the three non Chamber Departments are deemed to have come into existence as if created by a resolution of each House under proposed subsection 53(2). A department established under proposed subsection 53(2) may, under proposed subsection 53(4), be abolished by a resolution of each House. Legislation passed by both Houses would no longer be required.

Presiding Officers' determinations on SES matters

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 June 1998, Parliament had 22 SES officers, the rest of the APS had 1485.(23)

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.

In debating the 1997 Bill, the Senate amended clause 35 obliging the Presiding Officers, on receiving advice from the PARSC, to issue determinations in writing about certain SES employment matters. A similar Senate amendment was carried in relation to clause 36 of the Public Service Bill 1997. The amendment to the Bill as first presented provided that the Presiding Officers must inform each House of their reasons for not accepting the PARSC's advice in relation to the making of a determination affecting SES terms of employment.(24)

Continued Operation of Determinations under the 1922 Act

Part 9 of the Bill makes provision for transition from the present arrangements under the Public Service Act 1922 to the new legal framework.

Clause 78 provides for the continued operation of determinations relating to pay and conditions made under the Public Service Act 1922.

Under proposed section 24, Secretaries of Parliamentary Departments may from time to time determine in writing the remuneration and other terms and conditions of employment of their employees.

Existing determinations continue to have effect but may be revoked by the Secretaries in the same manner as determinations made under proposed section 24 of the Public Service Bill 1999. However, subclause 78(3) further provides that all unrevoked determinations will cease to have effect on the first anniversary of the new legislation coming into effect.

When last debated, the Senate amended the Bill:

• preventing Secretaries amending or revoking a determination in a way that diminishes any provisions in an award or certified agreement, and
• extending the sunset provision in subclause 78(3) from 12 months to 3 years.(25)

A similar amendment was moved in relation to the two Bills dealing with the APS. The amendment in that case was, however, not to the main Bill but to clause 9 of the Public Employment (Consequential and Transitional) Amendment Bill 1997.

Remuneration of Secretaries of Parliamentary Departments (including the Clerks)

Under clause 62 of the present Bill the remuneration of the Secretaries of all five parliamentary departments are to be determined by relevant Presiding Officer(s) after receiving a report from the PARSC.

The 1997 Bill provided for the remuneration of the Clerk of the Senate and the Clerk of the House of Representatives to be determined by the Remuneration Tribunal and that of the other departmental heads to be set by the Presiding Officers on receiving a PARSC report.

Neither the Explanatory Memorandum nor Mr Speaker's Second Reading Speech provides a rationale for the change of approach since 1997.

Parliamentary Service (Consequential Amendments) Act 1997

Schedule 1 provides for technical amendments to the Parliamentary Service (Consequential Amendments) Act 1997 replace references to the Parliamentary Service Act 1997 with references to the proposed 1999 Act.

Concluding Comments

As already noted, the Bill in large measure replicates the present Government's public service reform agenda as expounded in the Public Service Bill 1999 and the Public Employment (Consequential and Transitional) Amendment Bill 1999.

As Speaker Halverson observed in his Second Reading Speech to the 1997 Bill:

Similar observations are to be found in Speaker Andrew's Second Reading Speech of 28 June 1999, where he states:

Maintaining a close connection between the two pieces of legislation has advantages, for example, reducing administrative costs and safeguarding staff mobility.

Debate on Parliamentary Service Bill 1997 did not explore at length the desirability or likely impact of creating a separate and independent parliamentary service or the need to have it underpinned by separate legislation. The Parliamentary Service concept itself (understandably) received less detailed attention than specific provisions and matters of policy common to both the Public Service and the Parliamentary Service Bills.

The present formula of treating the legislative arrangements for employing parliamentary staff as a distinct component in umbrella legislation automatically ensures a degree of comity between the two Services which separate enactments (over time) may not. There need be no harm in this but it would be surprising if the combined costs of administering and maintaining two sets of enactments were less than the cost of administering and maintaining a single Act.

Creating a separate Parliamentary Service Act also may affect the way in which future proposals affecting the Parliamentary Service develop.

As it appears with the Bill, legislative initiatives of this sort are presently the product of whole of government approach with the Cabinet acting as something akin to a legislative clearing house. Before a government Bill can come before the Parliament, any divisions and differences between the various sponsoring and affected agencies are 'arbitrated away' by Cabinet.

Should the present Bill be enacted, future amendments to it, if claims of increased parliamentary independence are accurate, will be less subject to the unifying effects of government policy-making processes and are more likely to come from within the institution of parliament. Cabinet's role will be diminished and the Presiding Officers, neither of whom need necessarily come from the government party are left to sponsor any amending Bill and 'arbitrate away' any differences amongst the five Parliamentary Departments. Again, there need be no necessary harm in such a change, but it is a change arguably worth noting.

Again purely by way of observation, making two Acts where there formerly was one will also present the courts with a slightly different task in construing the legislation. Whereas the parliamentary component of the Public Service Act 1922 would presently be construed by reference to the rest of that Act, the task of interpreting difficult or ambiguous provisions in the Parliamentary Service Act would not necessarily be aided by referring to the statute governing employment in the APS.

Endnotes

2. Elen Perdikogiannis and Bob Bennett, Information and Research Services, Bills Digests Nos 177 and 182 of 1998-99, 12 May 1999.

3. Hon Neil Andrew MP, Parliamentary Debates (House of Representatives), 28 June 1999, pp 5907-5908.

4. For more detail see Explanatory Memorandum, Public Employment (Consequential and Transitional) Amendment Bill 1997, pp 22-23.

5. See principally sections 9-9C of the Public Service Act 1922.

6. Budget paper No.4, 1999-2000, p 19.

7. Budget Paper No.1, 1999-2000, pp 5-69 to 5-73.

8. PSMPC, APS Staffing Statistics Report 1996, p 12 and Budget Paper No.1, 1997-98, pp 4-5.

9. Auditor-General Act 1997; Audit (Transitional and Miscellaneous) Amendment Act 1997; Financial Management and Accountability Act 1997; and Commonwealth Authorities and Companies Act 1997.

10. Hon Neil Andrew MP, House of Representatives, Parliamentary Debates, op cit, pp 5907-5908.

11. Report at pages, pp 128-129.

12. Report No.353, September 1997.

13. Submissions, volume 2, pp 186-187.

14. ibid., p 137.

15. ibid., p 137.

16. Report, p 5.

17. Report No. 28, 22 October 1997. The Report does not record the Committee's reasoning.

18. Senate, Parliamentary Debates, 19 November 1997, principally pp 9158-9187 and 1 April 1998, pp 1687-1692. It may be noted that the 1997 debate is more detailed and therefore provides more useful insights than the re-run of the Bill in April 1998.

19. Senate, Parliamentary Debates, 19 November 1997, pp 9173-9178.

20. Transcript of evidence, 7 August 1997, pp 126-127.

21. Senate, Parliamentary Debates, 19 November 1997, pp 9171-9173 and pp 9183-9185.

22. Senate, Parliamentary Debates, 1 April 1998, pp 1689-90.

23. Senate, Parliamentary Debates, 19 November 1997, pp 9160-9161 and 1 April 1998, p 1688.

24. PSMPC, APS Statistical Bulletin 1997-98, November 1998, p 34.

25. Senate, Parliamentary Debates, 19 November 1997, pp 9160-9161 and 1 April 1998, pp 1690-91.

26. Senate, Parliamentary Debates, 19 November 1997, p 9161 and 1 April 1998, p 1691.

27. Hon R.G.Halverson MP, Parliamentary Debates (House of Representatives), 23 October 1997, pp 9686-9688.

28. Hon Neil Andrew MP, House of Representatives, Parliamentary Debates, op cit, p 5908.

Contact Officer and Copyright Details

Bob Bennett
1 August 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

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ISSN 1328-8091
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Published by the Department of the Parliamentary Library, 1999.

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