Bills Digest No. 177  1998-99 Public 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
Endnotes
Contact Officer and Copyright Details

Passage History

Public Service Bill 1999

Date Introduced: 30 March 1999

House: House of Representatives

Portfolio: Prime Minister

Commencement: Subclause 2(1) provides for commencement on a date to be fixed by Proclamation. Subclause 2(2) provides that if the Act has not commenced within 6 months of the day on which it receives the Royal Assent, it commences on the first day after the end of that period.

 

Purpose

The Public Service Bill 1999 proposes to replace the existing employment framework governing staff of the Australian Public Service (APS), currently contained in the Public Service Act 1922 (PS Act 1922).

The Public Employment (Consequential and Transitional) Amendment Bill 1999 (which is the subject of a separate Bills Digest) repeals the PS Act 1922, contains transitional provisions in relation to mobility rights of officers of the Australian Public Service under the PS Act 1922, and proposes amendments to other Commonwealth legislation to reflect its repeal.

These Bills are the same as the Bills of the same name introduced by the Government in the previous Parliament.(1)

The changes proposed by the Public Service Bill do not apply to the staff of the Parliamentary Departments, or to staff employed under the Members of Parliament (Staff) Act 1984. Arrangements pertaining to those groups of staff will be the subject of a separate Parliamentary Service Bill.

 

Background

The Bill proposes significant changes to the legislative framework governing employment in the Australian Public Service (APS).

As at 30 June 1998, the number of staff employed under the Public Service Act 1922 (the PS Act) totalled 121,262.(2) This figure includes paid permanent staff, non-paid permanent staff (eg staff on leave without pay) and temporary staff. During the 1997-98 financial year, the number of staff employed under the PS Act 1922 decreased by 13,065, representing a 9.7% decline from the previous year.(3)

In 1997-98, there were approximately 143,438 employees engaged in non-PS Act Commonwealth employment, including members of the Australian Defence Force, and employees of Government Business Enterprises.(4)

Existing employment framework of the Australian Public Service

The PS Act 1922 prescribes, in considerable detail, conditions of employment of officers of the APS. These include provisions relating to the appointment, promotion, and transfer of employees, provisions for the investigation of allegations of misconduct and associated disciplinary provisions, wide ranging provisions relating to retirement, as well as provisions relating to mobility of officers between the APS and other Commonwealth employers. The PS Act 1922 vests many of these powers in the Public Service and Merit Protection Commissioner, but these have been delegated, in accordance with that Act, to Departmental Secretaries and Agency Heads.

Conditions of employment for APS staff engaged in Australia and overseas are also set by instruments made under the PS Act 1922, most notably by Determinations made under section 82D.(5)

As well as the PS Act 1922 and the instruments made pursuant to it, the terms and conditions of employment of APS staff are determined by a combination of service-wide federal awards (eg the Australian Public Service Award 1998), and certified agreements specific to each Department and Agency. In addition, the terms and conditions of employment of some staff are determined by individual Australian Workplace Agreements (AWAs). Most members of the Senior Executive Service are employed under AWAs, and Departmental Secretaries and Agency Heads have begun to offer AWAs to staff at levels below the SES.

With the advent of agency-level and individual bargaining in the APS, there is now considerable variation in levels of pay and other terms and conditions of employment across Departments and agencies. The extent of variation is expected to increase, with further rounds of bargaining.

Use of agreements made under the Workplace Relations Act 1996 to override elements of the Public Service Act 1922

Another thing that should be noted is that Departments and Agencies have considerable scope to use certified agreements and AWAs to override parts of the PS Act 1922. The Workplace Relations Act 1996 and Workplace Relations Regulations 1996 allow APS employers to override prescribed provisions of the PS Act 1922 (relating principally to dismissal and retirement of people from the APS) in their certified agreements and Australian Workplace Agreements.(6) Similarly, certified agreements and AWAs can be used to exclude the operation of Determinations made under section 82AD.(7)

In another example, a new Direction issued by the Public Service Commissioner in February 1998 places responsibility on Departments and Agencies to develop procedures for managing poor performance by their employees, and inserting these into certified agreements and AWAs.

Finally, certain conditions of employment of APS staff are prescribed by legislation. Examples include the Maternity Leave (Commonwealth Employees) Act 1973 and the Long Service Leave (Commonwealth Employees) Act 1976.

History of the Bill(8)

The history of the present Bill is long and controversial. Although there appears to be a general consensus that the present legislative framework is complex, unwieldy and in need of reform, the method and scope of reform has been the subject of much dispute.

The present Bill had its beginnings under the former ALP Government. On 30 June 1994, the then Assistant Minister for Industrial Relations, the Hon Gary Johns MP, announced a review of the PS Act 1922, headed by Mr Ron McLeod ('the McLeod Review'). The Report of the Review was presented to Minister Johns on 22 December 1994.

In August 1995, the Keating Government announced its response to the McLeod Review, accepting the majority of the Report's 118 recommendations. A draft Bill was prepared to give effect to these recommendations, but it was not introduced into Parliament before the March 1996 Federal Election. (9)

In November 1996, the Minister for Industrial Relations (as he then was) the Hon Peter Reith MP, issued a Discussion Paper, Towards a Best Practice Australian Public Service. The Discussion Paper advocated the need for reform of the APS, with the principal mechanism for so doing being the repeal of the PS Act 1922 and its replacement with a new statue.

Between December 1996 and February 1997, there was an extensive consultation program within the APS involving major interested parties about the issues raised in the Discussion Paper. In addition, the Senate Finance and Public Administration References Committee conducted a Round Table to consider the Discussion Paper.(10)

In May 1997, at the conclusion of this consultation process, the Public Service and Merit Protection Commission (PSMPC) and the Department of Industrial Relations (as it then was) published The Public Service Act 1997: Accountability in a Devolved Management Framework ('the ADMF Report'). The ADMF Report set out the proposed framework for a new Public Service Act. Among other things, the Report proposed the removal of provisions prescribing conditions of employment of APS members, with these to be governed by agreements made under the Workplace Relations Act 1996. In addition, the ADMF Report proposed the repeal of the Merit Protection (Australian Government Employees) Act 1984, and the consequent abolition of the Merit Protection Review Agency.

On 26 June 1997, the Public Service Bill 1997 and the Public Employment (Consequential and Transitional) Amendment Bill 1997 were introduced into the House of Representatives. After their Second Reading, both Bills were referred to the Joint Committee of Public Accounts (JCPA) for Inquiry and Report. The JCPA tabled its Report on 29 September 1997. In response to recommendations of the JCPA, the Government made some amendments to the Bills. The JCPA recommendations are discussed in the context of the examination of the Main Provisions of the Bill, below.

On 4 September 1997, both Bills were also referred to the Senate Finance and Public Administration Legislation Committee. The Committee tabled its Report on 2 October 1997, but made no recommendations.(11)

The Senate passed the Bills (with 52 non-Government amendments) on 19 November 1997. On 5 December 1997, the House of Representatives indicated that it would not agree to the Senate's amendments, and laid the Bills aside.(12)

The Government's implementation of elements of the Bill by administrative means

On 25 February 1998, the Minister Assisting the Prime Minister for the Public Service, the Hon David Kemp MP, announced that the Government would implement a number of the reforms proposed by the Bill by administrative and other means.(13) The Minister also indicated that the Government would use the provisions of the Workplace Relations Act 1996 (WR Act) to secure further changes to the employment framework of the Australian Public Service.

The relevant administrative changes are:

  • amendments to the Public Service Regulations made by the Public Service Regulations (Amendment -Interim Reforms) (SR 1998 No. 23). These regulations were made by the Governor-General on 18 February 1998 and commenced on 15 March 1998
  • amendments to the Public Service Regulations made by the Public Service Regulations Amendment (SR 1998 No. 48). These regulations were made by the Governor-General on 18 March 1998 and commenced on 25 March 1998
  • new Notifications, Determinations, Instructions and Directions issued by the Public Service Commissioner under various provisions [ss.33A, 53A, 76X(1) and (2), and 82AD(10)]of the Public Service Act 1922, and
  • the making of Determination 1998/5 by the Department of Workplace Relations and Small Business (as it then was). Determination 1998/5, which commenced on 9 March 1998, consolidated conditions of employment contained in a wide range of previous Determinations. Departments and Agencies can override the terms of the Determination by making certified agreements and Australian Workplace Agreements under the Workplace Relations Act.

Specific changes included:

  • Departmental Secretaries and Agency Heads were given more extensive powers in relation to the management of staff (particularly in the areas of recruitment of staff, and managing inefficiency and underperformance) in accordance with new Directions made by the Public Service and Merit Protection Commissioner
  • amendments to the Public Service Regulations to introduce Australian Public Service Values and a Code of Conduct applicable to APS staff, and
  • amendments to the Public Service Regulations to provide a level of protection for whistleblowers who allege breaches of the Code of Conduct, provided that the conduct occurred after 15 March 1999.

The Interim Reform Regulations and other administrative measures aroused the concern of the Senate Standing Committee on Regulations and Ordinances, principally on the basis that a number of the changes contained in the regulations (eg the APS Values and the APS Code of Conduct) were more appropriately included in an Act. The Chairman of the Committee, Senator O'Chee, gave notice of motion of his intention to seek disallowance of the regulations on 2 April 1998. The motion was withdrawn on 26 May 1998 after the Minister wrote to the Committee, in response to its concerns.(14) As no other Senator moved to take on the motion in his or her name, the regulations remain in force.

Public Service Bill 1997 [No.2], Public Employment (Consequential and Transitional) Amendment Bill 1997 [No.2]

On 5 March 1998, the Government reintroduced the Public Service Bill 1997 and the Public Employment (Consequential and Transitional) Amendment Bill 1997 into the House of Representatives. The Bills were passed by the House on 11 March 1997 and introduced into the Senate on 12 March 1998. Once again, the Bills were passed by the Senate, but with 95 amendments. On 1 April 1998, the Minister Assisting the Prime Minister for the Public Service (Dr Kemp) announced that the Government would reject the amendments in their entirety.(15) The Bills were laid aside on 6 April 1998.

The consequence of the Senate's failure to pass the Bills for the second occasion in a form acceptable to the Government was that the Bills became potential triggers for a double dissolution election.(16)

 

Main Provisions

The provisions of the Bill are the same as those contained in the Public Service Bill 1997 and Public Service Bill 1997 [No.2].

Clause 3 lists the objects of the Act, which are to:

  • establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public
  • to provide a legal framework for the effective and fair employment, management and leadership of APS employees, and
  • to establish rights and obligations of APS employees.

Clause 6 provides that all persons engaged in a Department or Executive Agency must be engaged under this Act, or the authority of another Act. This requirement does not apply to persons engaged on an honorary basis, or persons engaged to perform services in the Australian Secret Intelligence Service. The provision does not prevent an Agency Head from engaging an independent contractor outside the terms of the Act.

Clause7 sets out a range of definitions, including definitions for 'Agency', 'Agency Head', 'APS Employee', 'Commissioner's Directions', and 'Merit Protection Commissioner'.

Clause 8 provides that the Act has effect subject to the Workplace Relations Act 1996. Aside from a symbolic expression of the Government's intention that the employment conditions of APS employees are regulated within '...the general community workplace relations framework'(17), it should also operate to resolve any lingering doubts about the application of certain provisions of the Workplace Relations Act (eg those concerning termination of employment(18)) to APS employment.

It is important to note that the Bill proposes to exclude the operation of the termination of employment provisions of the Workplace Relations Act in the following circumstances:

  • the termination of the appointment of an Agency Head
  • the termination of employment of a Senior Executive Service Employee, and
  • Machinery of Government changes.

The implications of these exclusions are discussed in greater detail in the discussion of the relevant provisions.

The Australian Public Service

Clause 9 provides that the Australian Public Service consists of Agency Heads and APS Employees.

APS Values

Clause 10 sets out the APS Values. Agency Heads are obliged to uphold and promote the Values (clause 12).

Definition of merit

With one difference, the Values are the same as those contained in the Interim Reform Regulations. The difference relates to the content of 'a decision relating to engagement or promotion is based on merit' for the purposes of the second APS Value, which is that 'the APS is a public service in which employment decisions are based on merit'.

The Interim Reform Regulations rely on the existing merit principles set out in section 33 of the PS Act 1922. The insertion of different merit principles in the regulations would have been ineffective, due to their inconsistency with the provisions of the Principal Act.

Clause 11 compels the Public Service Commissioner to issue written directions in relation to the APS Values, both to ensure their implementation in the APS, and to determine their scope or application. The Explanatory Memorandum to the Bill states that the Public Service Commissioner will issue a Commissioner's Direction on Merit in Employment.(19)

Meaning and effect of the APS Values - JCPA consideration

A number of witnesses to the JCPA inquiry expressed concerns about the meaning, effect and enforceability of the APS Values. In particular, concerns were expressed about the 'high level of generality' of the Values, the failure to define key terms, and the capacity of the Commissioner to issue Commissioner's Directions to restrict the effect of the Values.(20) The JCPA agreed that '...the expectations that clause 10 imposes on APS employees must be clear', particularly given the potentially serious consequences of non-compliance with the Values.(21) The Committee also stated its expectation that the Public Service Commissioner's Direction on the APS Values would '...clarify the meaning and intent of the Values, to the extent that the Values are unclear'.(22)

APS Code of Conduct

Clause 13 sets out the APS Code of Conduct. The Code of Conduct lists twelve elements, and Subclause 13(13). This subclause states that '[a]n APS Employee must comply with any other conduct requirement that is prescribed by the regulations.' This differs from the version of the Code contained in the Interim Reform Regulations. Paragraph 13 of that version of the Code states:

An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head's express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.

Clause 15 provides for sanctions for breach of the Code of Conduct to be prescribed in the regulations. The sanctions may include: reduction in salary and/or classification, reassignment of duties, deduction from salary, and termination of employment. Agencies must establish procedures for determining whether an employee has breached the Code of Conduct [subclause 15(3)]. The only requirement of such procedures is that they have due regard to procedural fairness. Subclause 15(4) obliges an Agency Head to make these procedures known to staff of the Agency.

Views of the JCPA in relation to the Code of Conduct

Recommendation 4 of the JCPA's Report states:

The Public Service Commissioner should monitor the procedures developed by agencies under clause 15(3) to ensure that they are reasonable and fair.

The JCPA recommendation was made in response to concerns raised in a number of submissions about the proposed requirement that agencies formulate procedures to determine breaches of the Code of Conduct. For example, concerns were expressed about the inappropriateness of establishing common Values and a Code throughout the APS, '...but different procedures and degrees of sanction when dealing with employees who fail to uphold these standards.'(23)

The Explanatory Memorandum to the Bill states that, in response to Recommendation 4, '...the Public Service Commissioner will monitor the procedures developed by agencies to ensure consistency and fairness and this will be reported in the annual State of the Service Report.'

Paragraph 41(1)(b) of the Bill provides that one of the functions of the Public Service Commissioner will be '...to evaluate the adequacy of systems and procedures in Agencies for ensuring compliance with the Code of Conduct. Clause 41(2) states that any report by the Commissioner under subsection 41(1) may include recommendations. However, the Bill does not propose a means by which the Commissioner can compel an agency to change its procedures where those procedures are found to be deficient.

Other comments in relation to the Code of Conduct

According to the Bill, the only apparent obligation on Agencies in establishing procedures to determine whether a breach of the Code of Conduct has occurred is that such procedures must have 'due regard to procedural fairness'. The content of 'procedural fairness' is somewhat elastic, and depends on the circumstances of the particular case.

In the absence of central monitoring of the content of procedures developed by Agencies (particularly in the context of moves by some agencies to outsource their human resource functions), there is the possibility that an Agency who imposes a sanction on an employee in accordance with its procedures may find itself losing an application for judicial review of the decision to impose the sanction, on the ground that the applicant was denied procedural fairness.(24)

Where the sanction imposed on the APS employee is termination of employment, and the procedures for determining the existence of a breach are deficient, the possibility exists that the Agency will end up on the losing end of an unfair dismissal application under the Workplace Relations Act. This is despite the fact that the determination of the breach, and the dismissal, was carried out in accordance with the procedures of the Agency.

In deciding whether a dismissal is unfair (ie harsh, unjust or unreasonable), subsection 170CG(3) of the Workplace Relations Act requires the Australian Industrial Relations Commission (AIRC) to have regard to a range of factors, including whether there was a valid reason for the termination, and whether the employee was notified of that reason. In a case where the reason for the termination is the capacity and conduct of the employee, the AIRC must have regard to whether the employee was given the opportunity to respond to the allegation, and, where the termination related to unsatisfactory performance by the employee, whether the employee had been warned about that unsatisfactory performance before termination. The Commission must also have regard to any other matters that it considers relevant.

The kinds of matters that will constitute denials of procedural fairness include: inadequate investigation of allegations of misconduct by an employer; an employer's failure to notify the employee of the specific nature of the allegations, and failure by an employer to afford the employee an appropriate opportunity to respond.(25)

Moreover, an examination of AIRC decisions concerning the termination of APS employees indicates that it expects more in the way of procedural fairness from APS employers (as it does with large employers generally) than it would from a smaller employer without a separate human resource management function, or established procedures for dealing with misconduct.

Whistleblowers

Clause16 prohibits 'a person performing functions in or for an Agency' from victimising, or discriminating against, an APS employee because the latter has reported an alleged breach of the Code of Conduct to the Public Service Commissioner, the Agency Head, or other authorised persons.

A similarly worded prohibition was inserted into the existing Public Service Regulations by the Interim Reform Regulations (regulation 9). In addition, the amendments to the regulations imposed:

  • an obligation on an Agency Head to establish procedures for dealing with reports of breaches of the prohibition (regulation 10), and
  • minimum requirements for such procedures. Among other things, the procedures must: have due regard to procedural fairness, comply with the Privacy Act 1988, provide that an employee may make reports to the Agency Head or to an authorised person, or, if appropriate, to the Public Service Commissioner, ensure that all reports are investigated, and a process of review of an investigation.

JCPA consideration of the whistleblower provisions

Although most submissions to the inquiry favoured the creation of some form of protection for whistleblowers, they also identified a series of potential problems. These included:

  • the lack of a positive obligation on APS employees to report breaches of the Code of Conduct
  • the fact that clause 16 does not enable an APS employee to legitimately make a report to other entities such as the Australian Federal Police, the Ombudsman, the Auditor-General or the Attorney-General
  • the fact that a potential whistleblower has to make an initial determination about whether a breach of the APS Code of Conduct has occurred. The difficulty of applying the (necessarily general) wording of the APS Code of Conduct to real-life situations may act as a disincentive to the reporting of wrongdoing
  • the proposed prohibition on discrimination or victimisation does not include threatened discrimination or victimisation
  • as the Code of Conduct is not binding on Ministers, their staff, independent contractors, or agencies, there is no mechanism by which an APS employee can report activities that would otherwise constitute a breach of the Code, and
  • the lack of a specific sanction for breach of the prohibition in clause 16, particularly by persons or entities other than APS employees. Although the breach of the prohibition would itself constitute a breach of the Code of Conduct and subject to sanction, the Code of Conduct is binding only on APS employees. However, the prohibition in section 16 is expressed to apply to a wider class of people - those '...performing functions in or for an agency'.

The JCPA acknowledged that the proposed scheme had its limitations, but decided not to recommend any changes. Rather, it recommended that:

The Government consider introducing whistleblowers protection legislation along similar lines 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 though the Parliament.(26)

Proposed amendments to the whistleblower provisions

During debate into the Public Service Bill 1997, Senator Murray proposed a series of amendments, to establish a Public Interest Disclosure Agency.(27) The amendments did not receive the support of the Government or the ALP, both parties being of the view that such provisions were more appropriately contained in a separate Bill. At the time, Senator Ellison informed the Senate that the issue of legislative protection for whistleblowers was being considered by the Attorney-General.(28) At the time, Senator Ellison was unable to indicate when the Attorney-General would report to the Parliament, and an examination of the Parliamentary record shows no record of the Attorney, or any other member of the Government, having done so.

Prohibition on patronage and favouritism

Clause 17 proposes a prohibition on patronage or favouritism by a person exercising powers under the Act or regulations in relation to the engagement of APS employees, or otherwise in relation to APS employees. The prohibition does not apply in relation to: giving, or carrying out a direction about a Head of Mission, or the appointment of Agency Heads (these are not included in the definition of 'APS employee').

It is likely that conduct in breach of clause 17 would constitute a breach of the Code of Conduct. However, given the fact that breaches of the Code of Conduct may only be enforced against APS employees, the effectiveness of the proposed prohibition is somewhat undermined.

Workplace Diversity

Clause 18 imposes an obligation on an Agency Head to establish a workplace diversity program to assist in giving effect to the APS Values. The Explanatory Memorandum to the Bill states that Commissioner's Directions will be issued, and these will:

  • set out the substantive requirements for a workplace diversity program, and
  • require all Agency Heads to report annually to the Public Service Commissioner on their workplace diversity programs.(29)

In addition, the Explanatory Memorandum states that '[T]he Public Service Commissioner will provide, through guidelines and Best Practice Advice, assistance to agencies to develop and apply performance indicators and criteria which they can use to report annually on their program.'(30)

This was in partial response to a series of recommendations made by the JCPA (Recommendations 9and 12), including that:

  • the Commissioner's Direction on Diversity in Employment be amended to expressly require Agency Heads to evaluate the outcomes of their workplace diversity programs, and specify performance indicators and criteria which should be used by agencies in carrying out these evaluations (Recommendation 9)
  • the Commissioner monitor the evaluation of workplace diversity programs (Recommendation 10)
  • the Commissioner should make recommendations to an Agency Head whose workplace diversity plan is found to be deficient. If the Agency Head fails to implement the recommendations, the Commissioner should report the matter to the relevant Minister and the Parliament (Recommendation 11), and
  • that the Commissioner collects and analyses data from the diversity programs, and publishes these in the Commissioner's annual State of the Service Report.

Ministerial Directions

Clause 19 provides that an Agency Head will not be subject to direction by a Minister relation to individual staffing decisions (eg the engagement, remuneration) relating to APS employees, including Senior Executive Service employees.

Part 4 of the Bill - APS Employees

The most significant difference between the provisions proposed by Part 4 of the Bill and the equivalent provisions of the PS Act 1922 is that the latter prescribe, and regulate, categories of employment. The PS Act 1922 distinguishes between 'officers' (ie people permanently appointed to the APS) and 'employees' (eg fixed term employees), and specifies separate engagement and termination provisions for these groups. It also contains separate provisions governing the appointment and termination of employment of officers to the Senior Executive Service, and the appointment of Departmental Secretaries.

The Bill proposes the abolition of the different categories of employment. All people who are now engaged on a contract of service (ie an employment relationship) will be known as employees, irrespective of whether they are employed on a permanent, casual or fixed term basis.

Clause 20 confers on Agency Heads '...all the rights, duties and powers of an employer' in respect of APS employees in an agency. As a consequence, Agency Heads will have greater control in respect of APS employees than they do at present.

Currently, specific powers in relation to APS employment (eg. appointment to the Service, probation, transfer and promotion) are set out in the PS Act 1922. These powers are vested in the Public Service and Merit Protection Commissioner, and are exercised by Departmental Secretaries and Agency Heads under delegation from the Commissioner.

Clause 21 provides that the Prime Minister may issue general directions in writing to Agency Heads relating to the management and leadership of APS employees.

Engagement of APS employees

Clause 22 provides that an Agency Head may engage persons as employees for the purposes of the Agency. Subclause 22(2) provides that an Agency Head may engage a person as an APS employee subject to conditions, including satisfactory completion of probation, Australian citizenship, health, and character and security checks. Subclause 22(3) provides that the list of conditions in subclause 22(2) is not exhaustive.

Paragraph 4.9.5 of the Explanatory Memorandum to the Bill asserts '...that the specific mention of these conditions [in subclause 22(2)] make it clear that a termination of employment for breach of one of these conditions will not, for that reason alone' be an unfair (harsh, unjust or unreasonable) or unlawful (termination on prohibited grounds) termination of employment for the purposes of the Workplace Relations Act 1996.

It must be noted that the question of whether a termination of employment is unfair or unlawful is a question of fact for the tribunal (the Australian Industrial Relations Commission or the Federal Court of Australia). The fact that another law prescribes that employment may be subject to particular limitations will be a factor that the tribunal will take into account.

However, if a requirement prescribed by another law is applied in a discriminatory manner, or to a position in respect of which it would be inappropriate to have such a requirement, and the reason for termination is the failure to meet the requirement, the termination is likely be found to be unfair or unlawful.

To illustrate by way of example: an Agency advertises a job. The duties of the job involve sitting at a desk, typing at a computer. There is no heavy lifting involved. The applicant is employed, subject to being able to demonstrate that s/he is able to lift a particular minimum weight. The applicant is unable to lift the weight, and his/her employment is terminated. Leaving aside the issue of whether the imposition of such a requirement might be a breach of federal anti-discrimination laws, the now former employee lodges an application in respect of the unfair termination of his/her employment. The application alleges that the dismissal was unfair because the requirement that the applicant failed to satisfy (lifting of a minimum weight) was not relevant to the duties of the applicant's employment, and was therefore not a valid reason for termination.

Classification Rules

Clause 23 provides for the Public Service Minister to make rules about classification of APS employees. These are to be published in the Gazette. Subclause 23(2) provides that the Rules may adopt, with or without modification, any provisions of a federal award. Subclause 23(3) states that Agency Heads must comply with the Classification Rules.

At present, APS-wide and Agency-specific classification structures are primarily determined through APS-wide federal awards and Department and Agency-specific agreements. The classification structures in awards and agreements have salary points and increments attached to them.

There is the potential that a Minister may make Classification Rules that are inconsistent with the classification provisions of an award or agreement binding upon an agency. Depending on the nature of the inconsistency, this may place Agency Heads in an invidious position. If the Agency Head elects to treat employees as if they were engaged under the Classification Rules, he or she may be in breach of the award, or agreement, and may be liable for a penalty or recovery of underpayments under sections 178 and 179 of the Workplace Relations Act. On the other hand, if the Agency Head complies with the award, then he or she is in breach of subclause 23(3).

Remuneration and other conditions

Clause 24 provides that an Agency Head may make determinations about the remuneration and other terms and conditions of employment of an employee employed in his or her agency. Subclause 24(2) provides that such determinations '...may apply, adopt or incorporate, with or without modification, any of the provisions of an award or agreement in force under the Workplace Relations Act. The Minister for the Public Service may make similar determinations [subclause 24(3)]. In the event of an inconsistency, a determination by the Minister prevails over the determination of an Agency Head [subclause 24(4)].

The intention and effect of this provision is unclear. Clause 24 purports to confer power on Agency Heads and the Minister to make determinations about remuneration and conditions that differ from the terms prescribed by an award or agreement binding on that particular agency. Such determinations may be useful in cases where an award or agreement does not provide for a particular condition, or where an Agency Head or the Minister wishes to provide for more generous conditions than those established by an award or agreement.

It is important to note (as neither the Bill nor the Explanatory Memorandum do) that the power in the Bill to make determinations about remuneration and conditions is subject to the terms contained in an award or agreement (either a certified agreement or an Australian workplace agreement) made under the Workplace Relations Act.(31) In other words, a determination that purported to state that employees in a particular agency would be paid less salary than that set out in the certified agreement binding on that Agency would have no practical effect. An Agency that sought to implement a determination prescribing lesser entitlements than the relevant award or agreement would be liable under the Workplace Relations Act for breach of the award or agreement.

Assignment of duties

Clause 25 provides that an Agency Head can determine the duties of an APS employee in that Agency, and the place where those duties are to be performed.

Moves between agencies

Clause 26 of the Bill deals with voluntary moves by an APS employee from another Agency to that of the Agency Head.

Clause 27 provides that, where an Agency Head has notified the Public Service Commissioner that an employee is excess to the requirements of the Agency, the Commissioner can move that excess employee to another agency. The consent of the employee is not required. At present, the consent of the excess employee is required before he or she can be transferred to another agency.

There appears to be no requirement that the employee must be transferred on the same, or similar, terms and conditions as those applying to the employee in the first Agency. In practical terms, however, it would be expected that any move would be on the same terms and conditions, unless the employee agreed otherwise. This is because forcibly moving an excess employee to another agency on lesser pay and conditions may amount to a constructive dismissal by the employer, thus giving rise to an action in respect of unfair dismissal on the part of the employee, either under the Workplace Relations Act, or a common law action for damages against the employer, for the latter's repudiation of the contract of employment.

Suspension of APS employees, Termination of employment

Clause 28 states that the regulations may make provision in relation to the suspension of APS employees, with or without pay.

Clause 29 states that an Agency Head may, by notice in writing, terminate the employment of an APS employee in that Agency. The legislative note draws the reader's attention to the termination of employment provisions of the Workplace Relations Act 1996. The notice provided to the employee must contain a statement of reasons for the termination [subclause 29(2)]. However, failure to provide a notice does not affect the validity of the termination [subclause 29(3)].

Retirement

Clause 30 prescribes a minimum retiring age of 55 years, or such higher or lower age as prescribed by the regulations [subclause 30(2)]. An APS employee who had reached the minimum retiring age can retire at any time by notice in writing to the Agency Head [subclause 30(1)].

Compulsory age retirement (the PS Act 1922 prescribes age 65) from the APS is to be removed.

Senior Executive Service

Employees of the Senior Executive Service (SES) are APS employees (clause 34) who are classified as such under the Classification Rules. The function and role of the SES is set out in clause 35.

Clause 36 obliges the Commissioner to issue written directions about employment matters relating to SES employees.

Clause 37 gives an Agency Head power to issue a written notice to an SES employee offering financial incentives to retire, provided that the SES employee retires within the period specified in the notice. Should the employee elect to retire, he or she is deemed (for the purpose of calculating superannuation and other entitlements) to have been compulsorily retired from the APS [subclause 37(2)].

  • Provided that the SES employee voluntarily elects to take the extra money to retire, this could not be regarded as being a termination at the initiative of the employer. The PS Act 1922 contains an equivalent provision - section 76R.

Clause 38 provides that the termination of employment provisions of the Workplace Relations Act 1996 do not apply in respect of the termination of employment of an SES employee.

At present, an SES employee whose employment is terminated can seek a remedy under the Workplace Relations Act in respect of that termination. Although SES employees earn more than the specified rate of remuneration (at the time of writing, non-award employees earning more than $68,000 per annum were excluded from applying for a remedy in respect of termination of employment), their conditions of employment are generally regulated by Australian Workplace Agreements. Accordingly, they fall within the category of 'federal award employee' working in Commonwealth public sector employment, and are thus entitled to apply for a remedy. (32)

Heads of mission

The appointment of a Head of Mission does not have effect unless the person is an APS employee, or is employed under the Australian Trade Commission Act 1985 [subclause 39(1)]. Despite the operation of subclause 22(4) (ie the prohibition on an Agency Head engaging as an APS employee a person who is not an Australian citizen), subclause 39(2) compels an Agency Head to comply with any written direction from the relevant Minister on the following lines:

  • directing the Agency Head to engage a particular person as an APS employee so that the person can become a Head of Mission, or
  • directing the Agency Head to assign particular duties to an APS employee who has been appointed as a Head of Mission.

Other clauses

Clause 31 gives power to the Commonwealth to recover non-Commonwealth remuneration given to an APS employee for performing duties as an APS employee. This may be recovered from the employee as a debt in a court of competent jurisdiction [subclause 31(3)].

Clause 32 provides for a right of return for APS employees who resigned to stand as a candidate in an election (as prescribed by the regulations), provided that: the person's resignation took effect not less than 6 months before the closing date for nominations, and the person stood as a candidate but was not elected. Time limits for exercising the right of return are to be prescribed by the regulations [subclause 32(2)].

The Public Service Commissioner

Clause 40 establishes the office of the Public Service Commissioner. The Commissioner, and the APS employees assisting him or her, will constitute a statutory agency [subclause 40(3)].

Functions of the Commissioner are set out in clause 41. These include:

  • to promote the APS Values and Code of Conduct
  • evaluate the extent to which the APS Values are incorporated by Agencies
  • to evaluate the adequacy of procedures for ensuring compliance with the APS Code of Conduct
  • to inquire into reports made by public interest whistleblowers under section 16
  • to consider and report to the Minister responsible for the Public Service on any matter affecting the APS
  • to inquire into, and report to the Prime Minister on, alleged breaches of the Code of Conduct by Agency Heads
  • to develop, promote, review and evaluate APS employment policies and practices, and
  • other functions prescribed by the regulations.

Subclause 41(2) provides that any report by the Commissioner under subsection (1) can contain recommendations. However (as discussed above, in the context of procedures for ascertaining breaches of the Code of Conduct), there exists no means by which an Agency can be compelled to implement the Commissioner's recommendation.

Subclause 42 sets out the parameters of the Commissioner's power to issue Directions, and their effect. Commissioner's Directions are disallowable instruments [subclause 42(4)]. The Directions cannot create offences [subclause 42(1)], and Agency Heads and APS employees must comply with them [subclause 42(2)]. The Directions can apply, adopt or incorporate any matter in the Classification Rules as in force from time to time, or at a particular time [subclause 42(3)].

Subclause 43 sets out the powers of the Commissioner to gather information in the context of conducting a special inquiry (ie an inquiry for the purposes of clause 41). The powers of the Commissioner are the powers that the Auditor-General has under sections 32, 33, 34 and 35, and related provisions, of the Auditor-General Act 1997. In summary, the powers include:

  • the power to direct witnesses to attend and give evidence to the Commissioner or an authorised official
  • the power to direct a person to provide information or documents to the Commissioner, and
  • the power to enter any premises occupied by the Commonwealth, and the power to inspect and make copies of documents.

Failure to comply with directions, or obstructing an authorised official in their inspection of premises are criminal offences.

Section 34 of the Auditor-General Act makes it a criminal offence to give false or misleading information. Section 35 states that a person cannot rely on the privilege against self-incrimination as a ground for refusing to answer questions. However, neither the answer to a question, nor any information obtained as a direct or indirect result of that answer, is admissible as evidence against the person in criminal proceedings against them.

Clause 44 imposes an obligation on the Commissioner to prepare an annual report. Subclause 44(2) states that the report must also include a report on the state of the APS (the 'State of the Service' report). Agencies are to provide information to the Commissioner for the purpose of preparing the report [subclause 44(3)].

Clauses 45 and 46 deal with the appointment and remuneration of the Public Service Commissioner. Clause 47 deals with the removal of the Commissioner from office. Remuneration and other conditions of appointment are to be determined by the responsible Minister. At present, the remuneration and conditions of the Public Service and Merit Protection Commissioner are determined by the Remuneration Tribunal (PS Act 1922, section 12).

Clause 48 provides for the appointment of person to act in the office of Commissioner, where the position is vacant, or where the incumbent is absent from duty.

The Merit Protection Commissioner

The Bill proposes the establishment of the position of the Merit Protection Commissioner [subclause 49(1)]. The staff assisting the Merit Protection Commissioner must be engaged under the Act, and made available by the Public Service Commissioner [subclause 49(2)].

The Merit Protection (Australian Government Employees) Act 1984 is to be repealed by the Public Employment (Consequential and Transitional) Amendment Bill 1999. This repeal will result in the abolition of the existing Merit Protection Review Agency (MPRA).

Review by the Merit Protection Commissioner of actions by an Agency Head or an APS employee

Clause 33 provides an APS employee with an entitlement to the review of any 'APS action' that relates to his or her employment. An APS action is an action by a person in the capacity of an Agency Head or APS employee, and includes a refusal or failure to act [subclause 33(4)].

The review is to be conducted by the new Merit Protection Commissioner. Clause 50 of the Bill provides that the Merit Protection Commissioner has such functions as are prescribed by regulations made pursuant to section 33.

The regulations may exclude classes of APS action from the entitlement to review [subclause 33(2)]. The list of proposed exclusions is contained in the Explanatory Memorandum to the Bill, and includes:

  • applications that are judged to be frivolous or vexatious
  • actions more appropriately dealt with by another external review body
  • actions pursuant to specified Commonwealth legislation (eg a determination as to incapacity under the Safety, Rehabilitation and Compensation Act 1988)
  • where the action relates to the engagement of an APS employee
  • where the action relates to the promotion of an APS employee or SES employee, and
  • where an Agency Head determines the duties of an APS employee under clause 25, where that determination does not involve one or more of the following: a reduction in classification, a promotion, a relocation to another place, or the reassignment to duties that the employee could not be reasonably expected to perform.(33)

The proposed regulations will provide for the Merit Protection Commissioner to make recommendations to an Agency Head. Such recommendations will not be binding on the Agency Head.

If the Merit Protection Commissioner is not satisfied with action taken by the Agency Head, he or she must notify the Agency Head (in writing), and make a report to the Public Service Commissioner. If the Public Service Commissioner is also not satisfied with the action taken by the Agency Head, he or she must include the information in the annual State of the Service report. In addition, the regulations will allow the Public Service Commissioner to make a separate report on the matter to the Minister in whose portfolio responsibilities the Agency falls.

Clause 51 provides that the Merit Protection Commissioner must give an annual report to the Public Service Commissioner. The report is to be included in the Public Service Commissioner's annual report.

The maximum period of appointment of the Merit Protection Commissioner is 5 years (clause 52). The remuneration and other conditions of appointment of the Merit Protection Commissioner are to be determined by the Public Service Commissioner (clause 53).

Clause 54 governs the removal of the Merit Protection Commissioner from office.

Clause 55 provides for the appointment of a person to act in the position of the Merit Protection Commissioner.

Secretaries of Departments

Clause 56 provides for the automatic creation of the office of Secretary on the establishment of a Department [subclause 56(1)], and, correspondingly, the automatic abolition of the office on the abolition of the Department [subclause 56(2)]. The Secretary of a Department (under the relevant Minister) is responsible for managing the Department.

A Secretary of a Department is to be appointed by the Prime Minister, for a period of up to 5 years [subclause 58(1)]. It is possible for a person to be appointed Secretary of more than one Department [subclause 58(5)]. The remuneration and other conditions of a Departmental Secretary are to be determined by the Prime Minister [clause 61].

At present, Departmental Secretaries are appointed by the Governor-General [PS Act 1922, subsection 36(1)] and their remuneration and conditions of appointment determined by the Remuneration Tribunal.

Before appointing a person to a vacant Secretary's position, the Prime Minister must have received a report about the vacancy [subclause 58(3)]. The person preparing the report (the Commissioner, or the Secretary of the Prime Minister's Department, as the case may be) must also consult with the relevant Minister [subclause 58(4)].

The Prime Minister can terminate the appointment of a Secretary at any time by notice in writing [subclause 59(1)], on receipt of a report from either the Secretary of the Prime Minister's Department, or from the Commissioner [subclauses 59(2) and (3)]. At present, the power to terminate the appointment of a Departmental Secretary resides with the Governor-General [PS Act 1922, paragraph 37(5)(b)(iii)]. A Departmental Secretary whose appointment is terminated is prevented from seeking a remedy under the Workplace Relations Act in respect of that termination [subclause 59(4)]. Of course, there is nothing to prevent a Departmental Secretary from seeking a remedy at common law, particularly in the case where the appointment was terminated before the end of the period prescribed in the instrument of appointment.

Clause 60 allows the Prime Minister to re-engage former Secretaries (other than as APS employees) to perform specified duties, on terms and conditions determined by the Prime Minister.

Clause 62 allows the Prime Minister to appoint a person to act in the position of Secretary of a Department, either where the position is vacant, or where the incumbent is absent from duty.

Clause 63 sets out the obligation of Secretaries to prepare annual reports for presentation to the Parliament.

Management Advisory Committee

Subclause 64(1) establishes the Management Advisory Committee (MAC), whose function is to advise the Government on matters relating to the management of the APS. This will replace the current Management Advisory Board. The MAC will consist of: the Secretary of the Prime Minister's Department (who will be Chair), persons nominated by that Secretary, all other Departmental Secretaries, and the Public Service Commissioner (as Executive Officer).

Executive Agencies

These are a new creation in the APS. The Explanatory Memorandum to the Bill describes Executive Agencies as:

'...non-statutory bodies headed by a person, possibly but not necessarily a public servant, appointed by, and directly accountable to, the Minister responsible for the Agency.' (34)

The rationale for the creation of Executive Agencies is not entirely clear. The Executive Agency structure appears to be aimed at those parts of current Departments whose functions entail some sort of Commonwealth-wide coordination role, or whose functions otherwise impact on the Commonwealth generally. In this context, the Explanatory Memorandum cites the Office of Government Information Technology (now a part of the Department of Finance and Administration) as an example of a body that might have been created as an Executive Agency. However, there is the potential for any identifiably discrete part of a Department to be reconstituted as an Executive Agency.

Subclause 65(1) confers power on the Governor-General to establish or abolish an Executive Agency, give a name to it, identify the Minister who will be responsible for it, and specify its functions.

The position of Agency Head is created upon the creation of the Executive Agency [subclause 65(3)]. Conversely, the abolition of an Executive Agency automatically results in the abolition of its Agency Head position [subclause 65(4)].

An Agency Head is appointed by the relevant Minister (the Agency Minister), for a period of up to 5 years [subclause 67(1)]. The Agency Head's appointment can be terminated by the Agency Minister at any time, by notice in writing [subclause 67(3)]. However, before doing so, the Agency Minister must have received a report about the proposed termination from a relevant Secretary (the Secretary of any Department that is also administered by the Agency Minister) [subclauses 67(4) and 67(6)]. An Agency Head whose appointment is terminated cannot seek a remedy under the termination of employment provisions of the Workplace Relations Act.

The Agency Minister determines the remuneration and other conditions of their Agency Head or Heads (clause 68).

The Agency Minister can appoint a person to act in the position of Agency Head (clause 69).

Clause 70 imposes an obligation on Agency Heads to prepare annual reports for presentation to the Parliament.

Administrative arrangements and re-organisations

Clause 71 will allow the Prime Minister to make arrangements with State or Territory public sector employers for an APS employee to perform services for a State public sector employer, and State public sector employees to perform services in an Agency.

Machinery of Government changes

Clause 72 sets out the power of the Public Service Commissioner to move employees in and out of the APS to give effect to administrative rearrangements made by the Government. By a determination in writing, the Commissioner will have the power to:

  • move APS employees from one Agency to another
  • move APS employees from an Agency to a specified Commonwealth authority (these people will no longer be employed under the Act)
  • move non-APS employees into an Agency (these people will become APS employees), and
  • engage any person as an APS employee in a specified Agency. This includes persons not employed by the Commonwealth (eg State or Territory public sector employees).

A person who is moved pursuant to a determination by the Public Service Commissioner will not be eligible to seek a remedy under the termination of employment provisions of the Workplace Relations Act [subclause 72(3)]. The provision appears to have been inserted to prevent employees who end up with worse pay and conditions as a result of a MoG change bringing actions in respect of termination of employment. The reason why this possibility might arise is because the ultimate employer of APS employees is the Commonwealth.

With Department and Agency-level bargaining resulting in variations in pay and conditions of employment across the Commonwealth public sector, the possibility that APS and non-APS employees will end up worse off after a MoG change is a very real one.

However, there appears to be nothing in the Bill that would prevent such employees from taking action against their employer at common law for breach of their contract of employment. A unilateral reduction in pay and conditions by an employer will generally amount to a 'repudiatory' breach of the contract of employment, entitling the employee to terminate the contract and seek damages for the breach.

The PS Act 1922 does not contain a mechanism to resolve difficulties arising as a result of MoG changes, and nor does the Bill. The Explanatory Memorandum states only that '...remuneration and other conditions issues will be resolved according to the ordinary workplace relations framework.'(35)

Unfortunately, the ordinary workplace relations framework has been known to apply somewhat awkwardly in the context of Commonwealth employment, particularly those parts of the Workplace Relations Act 1996 governing the operation, and transmission, of certified agreements. This is because Departments and Agencies are all manifestations of the same employer (which is the Commonwealth).

For instance, the MoG changes made to give effect to administrative arrangements announced by the Prime Minister after the October 1998 Federal Election entailed the movement of staff and functions to Departments whose certified agreements provided for different levels of pay and conditions to those of the 'losing' Department. In general terms, the position of the Public Service and Merit Protection Commission was as follows:

'Agency agreements and agency specific award provisions which are binding on a losing agency will generally cease to apply to officers who are transferred to a different agency as a result of an administrative rearrangement. Rather, the gaining agency's arrangements in relation to terms and conditions of employment (rather than pay...) will apply to officers being transferred into that agency...

...It is recognised, however, that particular circumstances might create substantial disadvantages for officers who cease to be covered by a previous agreement (eg. where they had made commitments to certain child care arrangements, participated in a purchased leave scheme, etc). Gaining agencies will need to assess whether action is required, for example under their discretionary powers or facilitative provisions to allow officers to continue to have access to these arrangements. It is also appropriate to take into account that agency agreements usually comprise a package of measures and it may not be appropriate to apply only part of an agreement.'(36)

In other words, staff transferred to a new Department were required to negotiate to ensure that they were not worse off, in terms of their conditions.

Other provisions

Clause 73 empowers the Minister responsible for the Public Service to authorise payments of money, of up to $100,000, to APS staff, where the Minister considers that special circumstances warrant the making of such a payment. The special circumstances must relate to, or arise out of, the person's employment by the Commonwealth, or another person's employment by the Commonwealth.

The making of such payments is discretionary. The Minister may elect to pay the amount as a lump sum, or by way of periodical payments [subclause 73(2)]. Conditions can be attached to payments [subclause 73(5)], and breach of a condition entitles the Commonwealth to recover the money [subclause 73(5)]. Payments must be made out of money appropriated by the Parliament for the purposes of the section [subclause 73(6)].

Under the PS Act 1922, the power to make such payments [in subsection 90(3)] is vested in the Public Service Commissioner. Payments under subsection 90(3) have been made in circumstances including:

  • settlement of termination of employment claims by APS staff
  • payments in lieu of employment entitlements lost because of incorrect advice by another APS staff member, and
  • payment of compensation after a recommendation by the Merit Protection Review Agency.

As part of the administrative changes, the Public Service Commissioner delegated her power (with effect from 15 March 1998) under subsection 90(3) to Agency Heads. Agency heads can now authorise payments of up to $20,000. Payments above this amount must be authorised by the Secretary of the Department of Employment, Workplace Relations and Small Business.

Clause 74 empowers an Agency Head to appoint staff overseas to perform duties (eg locally engaged staff employed in Australian diplomatic or consular missions), and to determine their conditions of employment [subclause 74(3)].

Clause 75 provides for the making of regulations to enable recovery of judgment debts through deductions from the salary of an Agency Head or APS employee.

Clause 76 provides for the making of regulations to authorise the disclosure, in certain circumstances, of personal information (eg to outside providers of human resources services).

Clause 77 empowers Agency Heads to create 'positions' in an Agency, and nominate any APS employee in the Agency to occupy the position. An example of a position that might be created in an Agency would be that of 'Collector of Public Monies', to enable the Agency to properly receive application fees or other payments payable to that person under other laws.

Clause 78 provides for the delegation, by written instrument, of powers exercisable under the Act (except for the power of delegation). For instance, the Prime Minister may delegate all of his functions and powers under the Act to another Minister [subclause 78(2)]. Similarly, an Agency Minister may delegate any of his or her functions of powers under the Act to Agency Head or SES employee [subclause 78(4)], and an Agency Head may delegate his or her powers or functions under the Act to another person [subclause 78(6)]. Subclause 78(7) allows the subdelegation of powers to a second delegate.

Clause 79 is the general regulation-making power.

 

Endnotes

  1. Public Service Bill 1997, Public Service Bill 1997 [No. 2]; Public Employment (Consequential and Transitional) Amendment Bill 1997, Public Employment (Consequential and Transitional) Amendment Bill 1997 [No. 2].

  2. Public Service and Merit Protection Commission, Australian Public Service Statistical Bulletin 1997-98, p. 3.

  3. ibid., p. 3.

  4. This statistic is approximate - it has been arrived at by subtracting the figure for APS employment contained in the APS Statistical bulletin from the total figure for Commonwealth employment contained in Wage and Salary Earners, Australia (ABS Cat No. 6248.0).

  5. The most important section 82D Determination dealing with conditions of employment of APS employees is Determination 1998/5.

  6. Workplace Relations Act 1996, ss.170LZ(4), 170VR(4). Workplace Relations Regulations 1996, rr. 30ZE, 30ZH, and Schedules 5 and 10.

  7. Although Determination 1998/5 details most conditions of employment applicable to APS employees, the majority of Departments and Agencies have used certified agreements and AWAs to override part, or all, of its terms.

  8. This section of the Digest essentially reproduces the discussion contained in the previous Bills Digests on the Public Service Bill 1997 and Public Service Bill 1997 [No. 2]. See Bills Digest No. 74 of 1997-98 and Bills Digest No. 164 of 1997-98.

  9. see: The Hon Gary Johns MP. A New Public Service Act - Progress Report to the House of Representatives, November 1995, for an outline of that proposed Bill.

  10. A transcript of these proceedings was published - Senate Finance and Public Administration References Committee, Proceedings of a Round Table Discussion held on 7 February 1997 to consider the paper: Towards a Best Practice Public Service, Canberra, February 1997.

  11. The Minority Report of Senator Allison recommended that the Bill be withdrawn and redrafted taking into account concerns raised in the JCPA Report. Senator Allison also recommended that the Bill not be debated until all the subordinate legislation was made available in final draft form.

  12. The Hon Dr David Kemp MP, 'Government presses ahead with Public Service reforms', Press release, 5 December 1997.

  13. The Hon Dr David Kemp MP, Reforming the public service to meet the global challenge, 25 February 1998.

  14. Senate Regulations and Ordinances Committee, Statement on Provisions in Legislative Instruments which may have been more appropriate for inclusion in an Act, tabled 30 June 1998.

  15. The Hon Dr David Kemp MP, 'Public Service amendments unacceptable', Press release, 1 April 1998.

  16. Constitution, s.57.

  17. Public Service Bill 1999, Explanatory Memorandum, para 2.3

  18. Maggs v Comptroller-General of Customs (1994) 128 ALR 586 dealt with (among other issues) the issue of whether the dismissal provisions of the Public Service Act 1922 were a 'code' in relation to the dismissal of officers engaged under that Act, thereby excluding the operation of the termination of employment provisions of the then Industrial Relations Act 1988(IR Act) . The Full Court of the Industrial Relations Court of Australia held that the provisions of the IR Act applied to officers engaged under the PS Act 1922.

  19. Explanatory Memorandum, para 3.5.4.

  20. Joint Committee of Public Accounts, Report 353, An Advisory Report on the Public Service Bill 1997 and the Public Employment (Consequential and Transitional) Amendment Bill 1997, September 1997, p.25.

  21. ibid., p. 26.

  22. ibid., p. 26.

  23. ibid., p. 30.

  24. A person would be able to seek judicial review of such a decision under section 5 of the Administrative Decisions (Judicial Review) Act 1977.

  25. In the context of APS employment, see: Department of Social Security v Uink, Print P7680, Ross VP, Drake DP and Palmer C, 24 December 1997; Previsic v Australian Quarantine and Inspection Service, Print Q3730, Holmes C, 6 October 1998.

  26. op cit., p. 64.

  27. Hansard, Senate, 17 November 1997, p. 8918ff.

  28. Hansard, Senate, 17 November 1997, p. 8900; p. 8934.

  29. Explanatory Memorandum, para 3.23.

  30. ibid, para 3.24.

  31. JCPA Report, p. 72. See evidence of Mr Robin Stewart-Crompton, Deputy Secretary of the (then) Department of Workplace Relations and Small Business.

  32. Workplace Relations Act 1996, ss. 170CB(1); 170CD; 170CE.

  33. op cit, para 4.47.6.

  34. Explanatory Memorandum, para 9.3.

  35. op cit, para 10.4.7.

  36. Public Service and Merit Protection Commission Circular 1998/18, Administrative Rearrangements, p. 3.

 

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Elen Perdikogiannis and Bob Bennett
11 May 1999
Bills Digest Service
Information and Research Services

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

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