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
Contact Officer and Copyright Details
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.
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
These Bills are the same as the Bills of the
same name introduced by the Government in the previous
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.
The Bill proposes significant changes to the
legislative framework governing employment in the Australian Public
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)
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
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
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.
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
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
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)
Government's implementation of elements of the Bill by
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
- 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
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.
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)
The provisions of the Bill are the same as those
contained in the Public Service Bill 1997 and Public Service Bill
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
- 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
Clause7 sets out a range of
definitions, including definitions for 'Agency', 'Agency Head',
'APS Employee', 'Commissioner's Directions', and 'Merit Protection
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
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
- the termination of the appointment of an Agency Head
- the termination of employment of a Senior Executive Service
- Machinery of Government changes.
The implications of these exclusions are
discussed in greater detail in the discussion of the relevant
Australian Public Service
Clause 9 provides that the
Australian Public Service consists of Agency Heads and APS
Clause 10 sets out the APS
Values. Agency Heads are obliged to uphold and promote the Values
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
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
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
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
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
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
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
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
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
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
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
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.
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
- require all Agency Heads to report annually to the Public
Service Commissioner on their workplace diversity
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),
- 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.
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
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
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
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
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.
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
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
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
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
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
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
- 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
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,
- directing the Agency Head to assign particular duties to an APS
employee who has been appointed as a Head of Mission.
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
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
- 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
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
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
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
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
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
- 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
- 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
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
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
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.
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
These are a new creation in the APS. The
Explanatory Memorandum to the Bill describes Executive Agencies
'...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.'
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
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
The Agency Minister determines the remuneration
and other conditions of their Agency Head or Heads (clause
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
Administrative arrangements and
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
- 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
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
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
'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.
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 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
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
- settlement of termination of employment claims by APS
- 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
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
Clause 79 is the general
- 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].
- Public Service and Merit Protection Commission, Australian
Public Service Statistical Bulletin 1997-98, p. 3.
- ibid., p. 3.
- 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).
- The most important section 82D Determination dealing with
conditions of employment of APS employees is Determination 1998/5.
- Workplace Relations Act 1996, ss.170LZ(4), 170VR(4).
Workplace Relations Regulations 1996, rr. 30ZE, 30ZH, and Schedules
5 and 10.
- 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.
- 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.
- 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.
- 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.
- 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.
- The Hon Dr David Kemp MP, 'Government presses ahead with Public
Service reforms', Press release, 5 December 1997.
- The Hon Dr David Kemp MP, Reforming the public service to
meet the global challenge, 25 February 1998.
- 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.
- The Hon Dr David Kemp MP, 'Public Service amendments
unacceptable', Press release, 1 April 1998.
- Constitution, s.57.
- Public Service Bill 1999, Explanatory Memorandum, para
- 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.
- Explanatory Memorandum, para 3.5.4.
- 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.
- ibid., p. 26.
- ibid., p. 26.
- ibid., p. 30.
- A person would be able to seek judicial review of such a
decision under section 5 of the Administrative Decisions
(Judicial Review) Act 1977.
- 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.
- op cit., p. 64.
- Hansard, Senate, 17 November 1997, p. 8918ff.
- Hansard, Senate, 17 November 1997, p. 8900; p. 8934.
- Explanatory Memorandum, para 3.23.
- ibid, para 3.24.
- JCPA Report, p. 72. See evidence of Mr Robin Stewart-Crompton,
Deputy Secretary of the (then) Department of Workplace Relations
and Small Business.
- Workplace Relations Act 1996, ss. 170CB(1); 170CD;
- op cit, para 4.47.6.
- Explanatory Memorandum, para 9.3.
- op cit, para 10.4.7.
- Public Service and Merit Protection Commission Circular
1998/18, Administrative Rearrangements, p. 3.
Elen Perdikogiannis and Bob Bennett
11 May 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.
IRS staff are available to discuss the paper's contents with
Senators and Members
and their staff but not with members of the public.
© Commonwealth of Australia 1999
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
Published by the Department of the Parliamentary Library,
Back to top