House of Representatives

Explanatory Memorandum

(Circulated by authority of the Special Minister of State, Senator the Hon Don Farrell)

GENERAL OUTLINE

1. The purpose of the Members of Parliament (Staff) Amendment Bill (the Bill) is to implement recommendations from the Review of the Members of Parliament (Staff) Act 1984 (MOPS Act) undertaken by the Department of the Prime Minister and Cabinet and published on 7 October 2022 (the Review). The MOPS Act sets out a framework for parliamentarians and office-holders to employ people, on behalf of the Commonwealth.

2. The proposed amendments to the MOPS Act are intended to modernise these employment arrangements, provide greater clarity on roles and responsibilities and improve transparency within the MOPS Act employment framework.

3. The MOPS Act has been in effect for 39 years with minimal amendment. The Australian Human Rights Commission's Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (Set the Standard Report), tabled on 30 November 2021, recommended a comprehensive review of the operation and effectiveness of the MOPS Act to ensure consistency with modern employment frameworks (recommendation 18). The Review found that the MOPS Act is broadly appropriate but recommended some amendments.

4. This Bill would substantially implement 11 of 15 recommendations made in the Review. The remaining 4 recommendations would be implemented by the proposed statutory Parliamentary Workplace Support Service (PWSS) to be established by the Parliamentary Workplace Support Service Bill 2023.

5. Main amendments to the MOPS Act provided for in Schedule 1 of the Bill would:

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insert an objects clause that declares that one of the objects is to establish a framework for employing people to assist parliamentarians and office-holders that supports a safe, respectful and accountable workplace,

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define categories of employees that better reflect the categories of employees in practice (being electorate employees, personal employees (ministerial) and personal employees (non-Ministerial),

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repeal redundant provisions for the engagements of consultants,

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repeal redundant provisions relating to superannuation,

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insert employment principles to guide expectations about the workplace and to support professionalisation,

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clarify the roles of parliamentarians, office-holders and the Prime Minister,

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clarify the responsibilities of parliamentarians, office-holders and employees,

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require parliamentarians to engage staff based on their capability to perform the role,

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require certain determinations of terms and conditions of employment applicable to all, or classes of, MOPS Act employees to be notifiable instruments which will be made publicly available,

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require directions that defer an automatic termination of employment to be made as legislative instruments, unless they apply to specified individuals,

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clarify the triggers for automatic termination of employment, including by providing the Prime Minister the power to make determinations that further clarify the circumstances where automatic terminations occur,

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provide that the employment of electorate employees of Ministers, and other holders of a 'relevant office', does not automatically terminate when their employing parliamentarian is appointed to another relevant office or office-holder position to improve job security,

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provide a power for parliamentarians to suspend employees,

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require the Act to be reviewed within 5 years of the amendments commencing,

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make other amendments to modernise and streamline the Act.

6. Schedule 2 of the Bill provides for amendments to the MOPS Act that relate to the proposed statutory PWSS. The PWSS will provide human resources support to parliamentarians and employees engaged under the MOPS Act and have other related functions. Proposed amendments to the MOPS Act in Schedule 2 would:

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require parliamentarians to consult the PWSS before making a decision to terminate the employment of a MOPS Act employee,

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require parliamentarians to inform the PWSS about a decision to suspend a MOPS Act employee before, or as soon as practicable after, making the decision,

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require parliamentarians to consult the PWSS about whether exceptional circumstances exist to justify suspending a MOPS Act employee without pay before suspending an employee without pay,

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allow, in limited circumstances, the CEO of the PWSS to suspend MOPS Act employees with the agreement of an employing parliamentarian,

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give the CEO of the PWSS limited employer powers where there is no longer an employing parliamentarian for an employee,

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make other amendments to reflect the role of the proposed PWSS within the MOPS Act employment framework.

7. Schedule 3 of the Bill makes provisions dealing with application and transitional matters.

8. Schedule 4 of the Bill makes consequential amendments primarily to omit terminology and references used in the MOPS Act that would be repealed by amendments in the Bill. An amendment in Schedule 4 to the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) would extend an exemption from section 13 of the ADJR Act to include the suspension of MOPS Act employees. Decisions relating to the employment or termination of MOPS Act employees are already exempt from the operation of section 13 of the ADJR Act. Section 13 of the ADJR Act provides for decision makers to provide written reasons for a decision when a person makes an application under section 5 of the ADJR Act. This amendment would mean decision makers who suspend MOPS Act employees will not be required under the ADJR Act to provide written reasons for the decision.

FINANCIAL IMPACT

The Bill has no financial impact.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Members of Parliament (Staff) Amendment Bill 2023

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. The Members of Parliament (Staff) Act 1984 (MOPS Act) forms part of the employment framework for the staff of parliamentarians, including both personal staff (who are employed by office-holders, often in adviser positions) and electorate staff (who are employed by all parliamentarians to manage their electorate offices). The other aspects of the framework include determinations on terms and conditions of employment by the Prime Minister, an enterprise agreement and employment contracts. In 2022, the MOPS Act was comprehensively reviewed for the first time since it came into force in 1984. The Bill would implement legislative amendments recommended by the Department of the Prime Minister and Cabinet in the Review of the Members of Parliament (Staff) Act 1984 (Cth) (MOPS Act Review) to modernise these employment arrangements, provide for greater clarity about roles and responsibilities and improve transparency within the MOPS Act employment framework.

Human rights implications

3. The Bill promotes rights to just and favourable conditions of work, the rights of equality and non-discrimination, and the right to privacy and reputation. Any potential limitation the right to a fair trial posed by Clause 1 of Part 1, Schedule 4 in the Bill (removing an avenue to seek reasons for a suspension decision under the Administrative Decisions (Judicial Review) Act 1977) would be reasonable, necessary and proportionate to achieve the aim of protecting the personal nature of the decision and the utility of suspension in the MOPS Act employment framework.

Right to just and favourable conditions of work

4. The Bill seeks to promote the right to the enjoyment of just and favourable conditions of work, primarily contained in article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right includes, but is not limited to, ensuring safe and healthy working conditions (article 7(b)) and equal opportunity for everyone to be promoted (article 7(c)). This is achieved by the following measures in the Bill:

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inserting employment principles, which set expectations for MOPS Act employment, including that the workplace is safe, free from bullying, harassment and discrimination, fosters diversity, and where employing parliamentarians and their employees foster a culture of professionalism and integrity (see Schedule 1, Item 13),

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requiring parliamentarians and office-holders to assess a person's capability to perform a particular role before employing a person (see Schedule 1, Item 13, new subsection 8(3)),

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requiring parliamentarians and office-holders to notify and consult with a proposed new statutory human resources body, the Parliamentary Workplace Support Service (PWSS), about decisions to terminate or suspend employment (see Schedule 2, Item 9 and Schedule 2, Item 14, new section 19),

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requiring certain determinations of terms and conditions to be notifiable instruments, and therefore enhancing transparency on terms and conditions of employment (see Schedule 1, Item 13, new subsection 13(2)),

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highlighting the requirement for parliamentarians, office-holders and MOPS Act employees to act consistently with obligations under Commonwealth employment laws (including anti-discrimination, and work health and safety legislation) and applicable enterprise agreements (see for example, Schedule 1, Item 13, new sections 8 and 9, and notes to new sections 16 and 18).

5. The Bill also seeks to support consistent and fair employment outcomes which further promote the enjoyment of rights in article 7. In particular, the Bill includes provisions which would:

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limit automatic termination of the employment of certain electorate employees to improve job security and prevent unnecessary terminations (see new subsection 14(1) item 3 of table),

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require parliamentarians and office-holders to notify and consult with a new statutory human resources body, the PWSS, about decisions to terminate or suspend employment to help ensure that these decisions are carefully considered, procedurally fair, and consistent with legal obligations,

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introduce a new express power enabling employing individuals to suspend MOPS employees from duties which is intended to assist parliamentarians and office-holders to address risks posed by an employee continuing their duties, facilitate proper processes when considering terminations of employment, and to promote fair decisions about terminations of employment.

Rights of equality and non-discrimination

6. The rights of equality and non-discrimination are described in articles 2(1) and 26 of the International Covenant on Civil and Political Rights (ICCPR) and article 2(2) of the ICESCR and are reflected in four of the other core human rights treaties to which Australia is a party. The rights have both positive and negative obligations. The Bill promotes both the positive obligation to protect and advance the enjoyment of the right to equality, and the negative obligation to refrain from discrimination based on protected factors. The Bill promotes these rights in the objects clause, in the employment principles and the provisions that highlight obligations under anti-discrimination laws, discussed above. More generally, the requirements in the Bill for parliamentarians and office-holders to notify and consult (as applicable) with an independent human resources body, the PWSS, are likely to support the enjoyment of the rights of equality and non-discrimination. The PWSS will be well placed to provide information and advice to parliamentarians and office-holders on issues related to equality and non-discrimination that may arise in this context.

Right to privacy and reputation

9. The right to privacy and reputation in article 17 of the ICCPR, provides that no-one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, or attacks on reputation. Privacy extends to information about a person.

10. Provisions in the Bill promote the right to privacy by excluding the requirement to publish determinations of terms and conditions of employment or directions to defer automatic termination of employment where the instruments would specify a person (see new subsections 13(3) and 15(2)). By only requiring determinations and directions with broader application to be published, the objective of increasing transparency about terms and conditions of employment is appropriately balanced with legitimate concerns about information about individuals being made public.

11. Other provisions in the Bill could be seen to limit privacy, by requiring a parliamentarian or office-holder to consult or notify the PWSS about decisions to suspend or terminate an individual employee's employment. The interference with a person's privacy by disclosing information about them, however, is not considered arbitrary or unlawful. The purpose of sharing of personal information with the PWSS is to ensure parliamentarians and office-holders can access human resource expertise to inform significant decisions about a person's employment and support them to take appropriate action to respond to issues in the workplace. The limitation on privacy is also moderated by the obligations the PWSS will have to manage personal information appropriately under law, including consistently with the Privacy Act 1988 and the legislation establishing the new PWSS.

Right to a fair trial

12. The right to a fair trial in article 14(1) of the ICCPR provides that '...in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law'.

13. The right to a fair trial may be engaged by the consequential amendment Clause 1 in Schedule 4 of the Bill which amends paragraph (y) of Schedule 2 to the ADJR Act. This amendment would extend an existing exemption to section 13 of the ADJR Act, which currently covers decisions relating to the engagement and termination of MOPS employees, so that the same exemption would apply to decisions to suspend MOPS employees from their duties. It means decision-makers who suspend MOPS employees, will not be required under the ADJR Act to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. In this way, it could be considered that the amendment restricts access to particular 'suit at law'.

14. Decisions to suspend a MOPS Act employee will be exempted from the operation of section 13 of the ADJR Act in recognition of the personal nature of MOPS employment, and the complexity likely to arise where meaningful reasons for suspension could require the disclosure of sensitive information and information provided in confidence. It would also guard against any perverse incentives to terminate employment at an early stage, or to not suspend an employee where this could best address a serious risk in the workplace, to avoid a potentially onerous process.

15. The exemption is necessary to achieve these objectives, and any limitation on the right to a fair trial is proportionate. The removal of a legal avenue to obtain reasons for a decision does not preclude MOPS Act employees from seeking remedies related to a decision to suspend their employment, including through the involvement of bodies such as Fair Work Commission and Australian Human Rights Commission. Parliamentarians and office-holders will also be required to inform the PWSS of decisions to suspend employment, and it is expected the PWSS will provide guidance on the information that can be appropriately provided to the suspended MOPS Act employee.

16. The exemption would also be consistent with a recommendation made by the Australian Administrative Review Council that decisions relating to engagement or termination of employment of MOPS Act employees should be exempt from the ADJR Act as a whole, given the personal nature of the employment and because the MOPS Act provides for termination of employment by a parliamentarian at any time (see the Administrative Review Council's Report 50,'Federal Judicial Review in Australia', 2012 Recommendation C19).

Conclusion

17. The Members of Parliament (Staff) Amendment Bill 2023 is compatible with human rights.

Notes on Clauses

Preliminary

Clause 1 - Short title

1. Clause 1 provides for the short title of the Bill, once enacted, to be the Members of Parliament (Staff) Amendment Act 2023 (the Act).

Clause 2 - Commencement

2. This clause provides for the commencement of each provision in the Bill, as set out in the table.

3. The main part of the Bill (Schedule 1), as well as application and transitional provisions (Schedule 3) and consequential amendments (Schedule 4), will commence 28 days after the Act receives the Royal Assent. Provisions relating to the proposed statutory PWSS (Schedule 2) are contingent on the passage and commencement of the Parliamentary Workplace Support Service Bill 2023.

4. Subclause 2(2) specifies that information in column 3 of the table at subclause 2(1) is not a part of the Act, and information may be inserted in this column, or information in it may be edited, in any published version of the Act.

Clause 3 - Schedules

5. This clause provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item has effect according to its terms.

SCHEDULE 1 - MAIN AMENDMENTS

6. This Schedule sets out the main amendments to the Members of Parliament (Staff) Act 1984 (the MOPS Act).

Item 1 - After section 2

7. Item 1 inserts new section 2A 'Objects' into the MOPS Act.

8. This provision implements part of MOPS Act Review (the Review) Recommendation 5 (modernising the Act). The Review considered the MOPS Act should include an objects clause to outline its intended purpose and noted this would be consistent with modern legislative drafting practice. New section 2A refers to three objects and closely reflects the objects clause proposed by the Review (see p.62).

9. Item 1 also inserts new section 2B 'Simplified outline of this Act' to assist the reader.

Item 2 - Section 3

10. Item 2 inserts definitions in section 3 of the MOPS Act for 'electorate employees' and 'employing individual'.

11. Personal and electorate employees are the primary categories for employment of MOPS Act employees but these terms do not appear in the Act currently. The definition of 'electorate employee' is included to implement Recommendation 1 of the Review (employee categories) and is intended to improve the clarity of provisions in the Act, including those about how parliamentarians may employ staff on behalf of the Commonwealth and how employment may be automatically terminated.

12. This categorisation of employees does not preclude other groupings of MOPS Act employees for other purposes, including in other instruments or policies. For example, the current Commonwealth Members of Parliament Staff Enterprise Agreement 2020-23 includes classification structures for personal employees for Government personal employees and non-Government personal employees. Similarly, the Ministerial staff Code of Conduct applies to both electorate and personal staff engaged by Ministers.

13. The definition of 'employing individual' points to the description at new section 3AA (see Item 11 below).

Item 3 - Section 3 (at the end of paragraph (a) of the definition of office-holder )

14. Item 3 is a technical amendment to include the word 'or' at the end of the first definition in a list.

Item 4 - Section 3 (paragraphs (aa) and (b) of the definition of office-holder )

15. Item 4 repeals and substitutes part of the definition of 'office-holder' to reflect minor updates in the Act. New paragraph 3(b) would refer to Prime Ministers who are no longer a 'parliamentarian', rather than former Prime Ministers who are 'no longer a Senator or Member'.

16. New paragraph 3(c) updates the reference to the provision under which the Prime Minister may determine a parliamentarian can employ personal employees (new section 4; rather than section 12 of the current Act).

Item 5 - Section 3

17. Item 5 inserts a new definition of 'parliamentarian'. The current Act does not define parliamentarian but refers to senators or members of the House of Representatives.

18. The new definition provides that parliamentarian 'means a senator or member of the House of Representatives' and is a minor update to the Act.

Item 6 - Section 3 (definition of pensioner )

19. This provision repeals the definition of 'pensioner'. This term is only used in provisions of the Act that will be repealed by this Bill.

Item 7 - Section 3

20. Item 7 inserts definitions in section 3 of Act for 'personal employee', 'personal employee (Ministerial)' and 'personal employee (non-Ministerial)'.

21. Personal and electorate employees are the primary categories for employment of MOPS Act employees, but these terms do not currently appear in the Act. The definition of 'personal employee' and the two sub-categories of personal employee is included to implement Recommendation 1 of the Review (employee categories) and is intended to clarify provisions in the Act, including how parliamentarians may employ staff on behalf of the Commonwealth and how employment may be automatically terminated.

22. The distinction between personal employee (Ministerial) and personal employee (non-Ministerial) reflects that personal staff are engaged by Ministers who form part of the executive arm of government. This categorisation of employees does not preclude other groupings of MOPS Act employees for other purposes, including in other instruments or policies. For example, the current Commonwealth Members of Parliament Staff Enterprise Agreement 2020-23 includes classification structures for personal employees for Government personal employees and non-Government personal employees. Similarly, the Ministerial staff Code of Conduct applies to both electorate and personal staff engaged by Ministers.

Item 8 - Section 3 (at the end of paragraphs (a), (b), (c) and (d) of the definition of relevant office )

23. Item 8 inserts the word 'or' in a definition and is a technical amendment.

Item 9 - Section 3 (definition of relevant Secretary )

24. This provision repeals the definition of 'relevant Secretary'. This term is only used in sections of the Act that will be repealed by other provisions of the Bill.

Item 10 - Section 3

25. This Item inserts a definition of 'workplace', which appears in provisions relating to employment principles and the objects clause. The definition is consistent with the definition of workplace in the Workplace Health and Safety Act 2011, and recognises that workplaces for MOPS Act employees can cover a range of environments.

Item 11 - After section 3

26. Item 11 inserts new section 3AA 'Definition of employing individual'. 'Employing individual' is defined to cover both parliamentarians and 'office-holders', which includes former Prime Ministers who are no longer in parliament.

Item 12 - At the end of Part I

27. Item 12 adds a new section 4 'Determination that parliamentarian may employ personal staff'.

28. This section allows the Prime Minister to determine that a parliamentarian may employ personal staff.

29. This section mirrors current section 12 of the Act with minor changes. New subsection 4(1) refers to 'parliamentarians' rather than 'Senator or Member of the House of Representatives'; includes an express reference to 'personal employees' rather than 'staff under this Part'; updates a reference to a related provision; and uses the word 'may' rather than 'ought'.

30. New subsection 4(2) is included to assist readers and clarifies that the determination is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 (Legislation Act).

31. There is also a new note to indicate that an effect of the Prime Minister making such a determination is to make the parliamentarian an 'office-holder'.

Item 13 - Parts II, III and IV

32. Item 13 repeals 'Part II - Ministerial consultants', 'Part III - Staff of office-holders' and Part IV - Staff of Senators and Members'.

33. 'Part II - Ministerial consultants' currently sets out how ministerial consultants may be engaged under the Act, how the terms of their engagement are set and how their agreements may be terminated and reporting requirements.

34. Recommendation 5 of the Review included amending provisions relating to ministerial consultants to better reflect contemporary settings. Part II is repealed on the basis it is no longer required, as no ministerial consultants have been engaged under these provisions for more than 15 years. Departments may engage consultants if required.

35. Item 13 also repeals Parts III and IV of the Act and substitutes these with a new Part II (Principles, roles and responsibilities) and Part III (Employment arrangements). New Part II implements recommendations 2, 7, 9, 10 and 11 of the Review, which were for new provisions in the MOPS Act to clarify roles, responsibilities and obligations under the MOPS Act employment framework and include employment principles.

36. New Part III includes provisions covering employment arrangements for both personal and electorate employees. It implements part of Recommendation 1 of the Review (employee categories), which states the Act should be simplified by merging existing Parts III and Part IV.

37. New Part III does not replicate the provisions relating to superannuation included in existing sections 8, 15 and 22 of the Act. In practice, these superannuation provisions only apply to prospective MOPS Act employees with a deferred benefit under the Commonwealth Superannuation Scheme (CSS) or a preserved benefit under the Public Sector Superannuation Scheme (PSS) who wish to again become a contributory member of the CSS or PSS as a MOPS Act employee. MOPS Act employees are temporary employees of the Commonwealth for the purposes of the CSS and PSS legislation.

38. The existing provisions empower an employing parliamentarian to permit (under an employment agreement) a MOPS Act employee with a deferred CSS benefit or a preserved PSS benefit to elect, as a temporary employee, to again become a contributory member of the relevant scheme. Employment agreements currently do so. Repealing the provisions will allow the provisions of the CSS and PSS legislation to automatically apply to MOPS Act employees as temporary employees of the Commonwealth, obviating the need for employment agreements to expressly provide for this. This will normalise the superannuation arrangements with those applying to other Commonwealth temporary employees.

39. The repeal would be prospective and will not affect persons who are current CSS or PSS members, or persons who have no deferred CSS benefit or preserved PSS benefit.

New Part II-Principles, roles and responsibilities

Section 5 Simplified outline of this Part

40. New section 5 provides a 'Simplified outline of this Part' to assist the reader.

Section 6 Employment principles

41. New section 6 sets out employment principles intended to shape workplace culture and articulate what MOPS Act employees, parliamentarians and the public can expect in the MOPS workplace.

42. The principles draw from those posed in the Review, recommendations made in the Set the Standard Report, the employment principles set out in legislation for the Australian Public Service (Public Service Act 1999) and Parliamentary Service (Parliamentary Service Act 1999) but also recognise the unique working environment for MOPS Act employment.

43. The principles outline expectations for the workplace but do not include mechanisms to regulate the behaviour of individuals. The principles have been developed to sit alongside any codes of conduct that may be formalised for Commonwealth parliamentary workplaces (as recommended in the Final Report of the Joint Select Committee on Parliamentary Standards in November 2022).

44. The inclusion of employment principles implements Recommendation 9 of the Review.

Section 7 Roles of parliamentarians, office-holders and Prime Minister under this Act

45. New section 7 implements part of Recommendation 2 of the Review, '[T]he MOPS Act should provide greater clarity over employment roles and responsibilities by setting out the specific duties of parliamentarians, the OPSC and the Prime Minister...'. The OPSC in this recommendation refers to the Office of Parliamentary Services and Culture, the establishment of which was recommended in the Set the Standard Report. The proposed statutory PWSS will undertake functions recommended for the OPSC in both Set the Standard Report and the Review.

46. Subsections 7(2) and (3) describe the role of parliamentarians and office-holders. The provisions point to the specific powers of parliamentarians and office-holders to employ, terminate and suspend employment (paragraph (3)(a) and (b)) but also recognise their responsibility for day-to-day management of those they have employed. The role and powers referred to are substantively the same as those currently in place for parliamentarians and office-holders in the Act, with the addition of the new express power to suspend an employee from duties in new section 18.

47. Subsection 7(4) sets out the role of the Prime Minister. The Prime Minister has a role in creating and maintaining the structures within the MOPS Act employment framework, including determining the kind of employees a parliamentarian may employ (for example, personal employees in addition to electorate employees), approving arrangements and determining conditions that affect the engagement of staff (including allocation of the number and level of personal employees) and making determinations with respect to terms and conditions applicable to MOPS Act employment. The role and powers referred to in this subsection are substantively the same as those currently in place for the Prime Minister in the Act.

48. Item 2 in Schedule 2 will insert a note at the end of this section that identifies the role of the PWSS in MOPS Act employment.

Section 8 Responsibilities of parliamentarians and office-holders

49. New section 8 sets out certain responsibilities of parliamentarians and office-holders. It substantially implements Recommendations 7 (recruitment) and 10 (parliamentarian obligations) of the Review.

50. Subsection 8(2) states that parliamentarians and office-holders have obligations under other Australian laws, and identifies key laws that impose obligations in the context of employment, including anti-discrimination acts, the Fair Work Act 2009 and the Work Health and Safety Act 2011. The provision is intended to highlight the obligations on parliamentarians and office-holders to act consistently with these laws.

51. Subsection 8(3) introduces a new requirement on parliamentarians and office-holders to assess whether a person has the capability to perform a particular role before they are employed. This reflects Recommendation 7 of the Review, which states: 'the MoP(S) Act should require parliamentarians to recruit staff against specified position descriptions and undertake an assessment of a candidate's capacity to successfully perform the prescribed role'.

52. This requirement is intended to support a modern and professional approach to recruitment, where expectations for a role, and the skills required (or required to be developed) to perform this role, are clear to both the employing parliamentarian or office-holder and the MOPS Act employee. The PWSS will be well-placed to support the implementation of this requirement.

53. There are no legislated consequences for failure to comply with this requirement.

Section 9 Responsibilities of employees

54. New section 9 sets out certain responsibilities of MOPS Act employees. It substantially implements Recommendation 11 of the Review (employee obligations).

55. Subsection 9(2) states that MOPS employees have obligations under other Australian laws, and identifies key laws that impose obligations in the context of employment, including anti-discrimination legislation, the Fair Work Act 2009 and the Work Health and Safety Act 2011. The provision is intended to highlight the obligations on MOPS Act employees to act consistently with these laws.

56. Subsection 9(3) highlights the requirement that MOPS Act employees must comply with any directions from the authorising person when exercising a function or power under an authorisation.

Part III - Employment arrangements

Section 10 Simplified outline of this Part

57. New section 10 sets out a 'Simplified outline of this Part' to assist the reader.

Section 11 Employment of electorate employees and personal employees

58. New subsection 11(1) allows a parliamentarian to employ a person, as an electorate employee. Ministers may also employ a personal employee (Ministerial) (new subsection 11(2)) and office-holders a personal employee (other) (new subsection 11(3)). Under this provision, all employment is on behalf of the Commonwealth and is to be by way of a written agreement.

59. These provisions closely reflect subsections 13(1) and 20(1) of the existing Act. They include minor structural changes to improve clarity and to cover all MOPS Act employee categories in one section.

60. Notes clarify the powers to employ are subject to new section 12 of the Act, and that both electorate and personal staff may be employed by Ministers and office-holders.

61. This provision is consistent with Recommendation 1 of the Review (employee categories).

Section 12 Arrangements and conditions affecting power to employ under section 11

62. New section 12 sets out that the power of parliamentarians and office-holders to employ MOPS Act employees must be exercised in accordance with any arrangements approved or conditions determined by the Prime Minister. It also provides that the Prime Minister has the power to approve arrangements and determine conditions.

63. The provision closely reflects subsections 13(2) and 20(2) of the existing Act, with minor changes to the structure to improve clarity and cover all MOPS Act employee categories in one provision.

64. The provision is consistent with Recommendation 1 of the Review (employee categories).

65. Subsection (3) is included to assist readers, as neither any arrangements approved by the Prime Minister nor determinations made by the Prime Minister under new subsection 12(2) are legislative instruments within the meaning of subsection 8(1) of the Legislation Act.

Section 13 Terms and conditions of employment

66. New section 13 outlines sources of terms and conditions of employment for MOPS Act employees.

67. Subsection 13(1) closely reflects sections 14 and 21 of the existing Act, with minor changes to improve clarity, remove references to repealed sections, and includes references to the instruments made under the Fair Work Act 2009, such as an enterprise agreement, as a source of terms and conditions for MOPS Act employment.

68. A note following subsection 13(1) indicates the MOPS Act is subject to the Fair Work Act 2009, as per section 3A of the Act.

69. Subsection 13(2) provides that the Prime Minister will continue to be able to vary terms and conditions of employment for all or classes of MOPS Act employees, including by varying or making new terms and conditions (see also subsection 13(5)). Subsection 13(3) likewise provides that the Prime Minister will continue to be able to vary terms and conditions of MOPS Act employment of specified persons, including by varying or making new terms and conditions of employment.

70. Varying terms and conditions of employment extends to omitting a term or condition of employment.

71. Determinations setting out terms and conditions of MOPS employment are not required to be made public currently. In practice, the Department of Finance publishes determinations which do not identify individuals, and which have a broader application, on its website. Subsection 13(2) includes a minor change from the current Act to formalise this practice by specifying that determinations of terms of conditions that apply to groups of MOPS Act employees are notifiable instruments. Notifiable instruments are required to be published on the Federal Register of Legislation but are not disallowable by the parliament. There is no such requirement for the publication of determinations of varying terms and conditions of employment for specified MOPS Act employees in subsection 13(3).

72. A notifiable instrument is, by definition, not a legislative instrument (see paragraph 8(8)(a) of the Legislation Act). In any case, neither arrangements approved or determinations made under section 13 would be legislative instruments within the meaning of subsection 8(1) of the Legislation Act. This is because these approved arrangements and determinations fall within the exemption in table item 10 of subsection 6(1) of the Legislation (Exemptions and Other Matters) Regulation 2015. This exemption sets out that an instrument relating to terms and conditions of appointment, engagement, employment or service is not a legislative instrument.

73. This minor change in subsection 13(2) to make determinations notifiable instruments implements part of Recommendation 6A of the Review (increase transparency for terms and conditions) which states 'transparency of employment arrangements should be enhanced by including in the MOPS Act ... a requirement that determinations made under the MOPS Act about terms and conditions be published except in circumstances where individuals may reasonably be identified.'

74. New subsection 13(4) provides that determinations made under subsection (2) and (3) cannot vary a matter expressly provided for by specified provisions in the Act. This closely reflects existing subsections 14(2) and (3) and 21(1) and (2), which set out that the Prime Minister is not able determine terms and conditions of employment that are expressly provided by sections 16 and 23 (termination of employment). The provisions specified in new subsection13(4) are new sections 14 (automatic termination of employment), 16 (termination of employment) 17 (resignation) or 18 (suspension from duties). Schedule 2 includes an amendment to this provision to add a reference to new section 19 (Suspension from duties by CEO) (see Schedule 2, Item 5).

75. New subsection 13(5) sets out that a determination made by the Prime Minister may vary terms and conditions by varying specified terms and conditions or by including new terms and conditions. This subsection reflects subsections 14(3) and 21(3) in the existing Act.

76. New subsection 13(6) confirms that a determination that applies to a person prevails over the employment agreement under which they are employed, to the extent of any inconsistency. This subsection reflects the effect of provisions in the current Act (subsections 14(1) and 21(1)).

Section 14 Automatic termination of employment

77. New subsection 14(1) includes a table setting out the events that will give rise to an automatic termination of a person's employment under the MOPS Act, including death of an employing individual (table item 1), the employing individual ceasing to be a parliamentarian (table item 2), and the employing individual ceasing to hold 'relevant office' (table items 3 and 4) or be covered by a determination under new section 4 (table item 5). These same events are set out in sections 16(1) to (2B) and 23(1) and (1A) of the existing Act.

78. The effect of subsection 14(1), table item 3 is that it carves out automatic termination of the employment of electorate employees of those in 'relevant office' where the employing individual commences a new 'relevant office' or 'office-holder' position (where they can continue to employ personal employees) on the same day they cease holding a 'relevant office'. This is a change from the existing Act, under which the electorate employee's employment would be terminated, as well as any personal employee's employment. This provision implements Recommendation 14B of the Review and aims to improve job security and increase clarity for staff by preventing what would appear to be an unnecessary termination of employment for electorate employees.

79. Subsection 14(1), table item 4 provides that employment terminates for both electorate and personal employees of an employing individual who ceases to hold 'relevant office' and does not commence to hold another 'relevant office' or become an 'office holder' on the same day.

80. Subsection 14(1), table item 5 preserves the current operation of the Act set out in subsections 16(2)(b) and (c) to terminate only personal employees of office-holders where a determination allowing them to employ personal employees is revoked.

81. Following subsection 14(1), two notes are included to assist the reader. The first points to the definition of 'employing individual'; the second to the ability for the Prime Minister to defer terminations under subsection 14(1) by making a direction under new section 15.

82. Subsection 14(2) provides that, for the purposes of table item 2 in subsection 14(1), termination does not occur while the parliamentarian is receiving remuneration under the Parliamentary Business Resources Act 2017 (PBR Act). This provision mirrors subsections 16(2A) and 16(2B) and 23(1A) in the current Act but with an updated reference to the PBR Act rather than 'Parliamentary allowances' payable under the previous Parliamentary Allowances Act 1952.

83. Subsection 14(3) clarifies what ceasing to be a Minister means for the purposes of table items 3 and in subsection 14(1) and provides an example. 'An office of Minister' falls within the definition of 'relevant office' in section 3 of the current Act. Subsection 14(3) is included to assist the reader regarding when a Minister may cease 'relevant office', and automatic termination of their staff under subsection 14(1) is triggered. The subsection is intended to improve clarity about the operation of the current provisions, which was an issue identified in the Review.

84. New subsection 14(4) allows the Prime Minister to determine circumstances in which an event specified in table items (2), (3) or (4) is taken to occur or taken not to occur. This is consistent with Recommendation 14A of the Review. The objective of this provision is to provide a mechanism to help further clarify the operation of the automatic termination provisions, if necessary.

85. The subsection makes it clear that a determination under subsection 14(4) would be a legislative instrument, and subject to the requirements under the Legislation Act.

Section 15 Directions in relation to automatic termination

86. New section 15 (Directions in relation to automatic termination) allows the Prime Minister to defer the effect of termination of employment resulting from an event set out in new subsection 14(1). This permits MOPS Act employees to remain employed for an additional period, as specified in a direction. Continuation of employment in these circumstances can help ensure employees are able to finalise any required tasks prior to employment ceasing and allow for the possibility the person may be re-employed as a MOPS Act employee without there being a break in their service.

87. The provision replicates existing subsections 16(5) and 23(4), but separately provides for directions covering a class of person ((subsection 15(1)) or an individual (subsection 15(2)). Directions applicable to a class or classes of persons will be legislative instruments, and therefore subject to registration and publication on the Federal Register of Legislation, and are also subject to the disallowance and sunsetting processes under the Legislation Act.

88. This change is consistent with part of Recommendation 6A of the Review (increase transparency for terms and conditions).

89. Where the direction is only in relation to a specified individual, the direction will not be a legislative instrument. This is to protect the personal information of that individual.

90. Subsection 15(3) is included to assist readers, as the instrument is made in relation to an individual and is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act (which means that it does not have to be registered or published).

91. Subsection 15(4) clarifies the effect of a direction made under subsection (1) or (2).

Section 16 Termination by notice

92. New section 16 allows employing individuals to terminate employment of MOPS Act employees by providing notice in writing (subsection16(1)). The subsection 16(1) notice must specify the ground, or grounds, for termination of their employment (subsection 16(2)).

93. This section reflects provisions in the current Act (subsections 16(3)-(3A) and 23(2)-(2A)) with minor changes in drafting, as there is now a single provision covering both parliamentarians and office-holders.

94. The section includes four notes. The first note following subsection 16(1) highlights the definition of employing individual. The second, third and fourth notes follow subsection 16(2) and reflect notes following subsections 16(3A) and 23(2A) of the current MOPS Act, which highlight the additional laws, rules or procedures that may apply to a termination of employment. Note 2(c) includes an updated reference to the section under which determinations of terms and conditions are made to reflect structural changes made by the Bill.

Section 17 Resignation

95. This new section provides that a MOPS Act employee may resign by providing written notice to an employing individual. The section reflects subsections 16(4) and 23(3) of the current Act, with minor changes in drafting, as there is now a single provision covering both parliamentarians and office-holders. There is a note under the section highlighting the new definition of employing individual to be included in section 3 of the Act.

Section 18 Suspension from duties

96. New subsection 18(1) provides a new express power for employing individuals to suspend the employment of MOPS Act employees if they consider it is appropriate to do so.

97. There are no provisions relating to suspension in the current MOPS Act or applicable enterprise agreement. The power to suspend employment is legislated for comparable workplaces, including under the Parliamentary Service Act 1999 and in the Public Service Act 1999.

98. The provision implements Recommendation 13B (termination) of the Review, which states that, '[t]he MOPS Act should be amended to improve the certainty and fairness of termination processes including provisions that...the employing parliamentarian may suspend the employment of a MOPS Act employee'.

99. As the Review sets out, suspension of employment can help to facilitate proper processes while a parliamentarian or office-holder considers whether termination of employment or other actions are warranted (see p.132), particularly in instances where the employee continuing their work duties involves significant risks, such as to health and safety, ongoing investigations, or security of places or information.

100. Suspension of employment can facilitate procedural fairness in decision-making in two ways. First, it may help ensure an employee has a reasonable period to respond to matters before the parliamentarian or office-holder makes a decision. It can also provide an opportunity for a parliamentarian or office-holder to seek and implement guidance about appropriate processes.

101. Suspension of employment is a significant decision and the provision is intended to be used sparingly. Suspension is intended to complement rather than displace the existing range of actions available to parliamentarians to respond to issues and risks in the workplace. Suspension is not a sanction or punitive measure. Suspension is not required before a termination decision is made.

102. There are four notes following subsection 18(1). The first highlights the new definition of employing individual to be included in section 3 of the Act. The second, third and fourth highlight the additional laws, rules or procedures that may apply to suspension of duties. Note 3(c) includes an updated reference to the section under which determinations of terms and conditions are made to reflect structural changes made by the Bill.

103. The manner in which an employing individual notifies a MOPS Act employee of a decision to suspend their duties is not specified in the section. It is anticipated the Department of Finance, or the proposed PWSS, would provide additional guidance to parliamentarians on this provision.

104. Subsection 18(2) provides that the length of a suspension is determined by the employing individual but may not exceed 30 days; however, subsection (3) clarifies that this does not prevent the employing individual determining further periods of suspension from duties are appropriate under subsection 18(1). This means the employing individual will be required to consider the merits of continuing a suspension at least every 30 days and make a fresh suspension decision if the suspension is to continue. This is comparable to the mechanism in regulation 14(5) of the Public Service Regulations 2023, which requires Agency Heads to review suspensions at reasonable intervals.

105. Subsection 18(4) provides that suspension of employment is with pay unless the employing individual is satisfied that exceptional circumstances exist to justify suspension without pay. Exceptional circumstances are expected to arise rarely in employment and it is expected that the parliamentarian would seek appropriate guidance from the PWSS.

106. Item 12 in Schedule 2 will insert new subsections 18(4A) and 18(4B) and broadly provide for requirements to notify and consult the PWSS about suspensions. Subsection 18(5) specifies that the employing individual may end the suspension at any time prior to the end of a period determined under subsection 18(2).

107. The Prime Minister will continue to have powers to determine terms and conditions of MOPS employment where these are consistent with the matters expressly provided for in new section 18 and other Commonwealth laws (see new section 13 in Schedule 1, Item 13).

Item 14 Sections 31 and 32

108. Item 14 repeals sections 31 and 32 of the MOPS Act and substitutes new sections 28 and 30 to 32.

Section 28 Simplified outline of this Part

109. New section 28 inserts a 'Simplified outline of this Part' to assist the reader.

Section 30 Delegation by Prime Minister

110. New section 30 provides that the Prime Minister may, in writing, delegate any or all of the Prime Minister's functions or powers under the Act to a Minister or a Senior Executive Service (SES) (or acting SES employee) of the Department administered by the Prime Minister or the Department administered by the Minister. The current Act does not include an express power of authorisation or delegation in relation to the Prime Minister's powers.

111. The inclusion of a delegation power for the Prime Minister reflects modern legislative drafting and supports clear and transparent processes. It also implements part of Recommendation 2 of the Review (employer duties).

112. Former Prime Ministers and the current Prime Minister have authorised other Ministers, such as a Special Minister of State, to exercise functions or powers under the MOPS Act. Paragraph 30(1)(a) allows for the Prime Minister to continue this practice via delegation.

113. The inclusion of SES employees of the Department administered by the Prime Minister in the delegation provision at subparagraph 30(1)(b)(i) likewise reflects existing arrangements. Former Prime Ministers and the current Prime Minister have authorised SES employees in specified roles within the Department of the Prime Minister to manage the Prime Minister's staff employed to work at the Prime Minister's official residences: Kirribilli House and The Lodge. Subparagraph (30)(1)(b)(i) allows for the Prime Minister to continue this arrangement via delegation.

114. Section 30(1) also allows the Prime Minister to delegate functions or powers to SES employees of 'the Department administered by the Minister' (see subparagraph 30(1)(b)(ii)). The 'Minister' referred to in the subparagraph is the Minister responsible for the MOPS Act (see table item 2 in subsection 19(1) of the Acts Interpretation Act 1901). The Department of Finance is currently the 'Department administered by the Minister'.

115. The inclusion of SES employees of the Department of Finance in the delegation provision will allow existing arrangements to continue, such as allowing SES employees to approve MOPS Act employees to perform their duties in alternative places of work or from home.

116. The power for the Prime Minister to delegate to either or both the SES employees of the Department administered by the Prime Minister and the Department administered by the Minister also allows for some flexibility should the responsibilities of departments change.

117. New subsection 30(2) provides that a delegate must comply with a written direction of the Prime Minister when exercising a delegated power.

118. New subsection 30(3) states that, to avoid doubt, delegations under subsection 30(1) do not apply to functions or powers of the Prime Minister merely in the Prime Minister's capacity as a parliamentarian or office-holder. New section 31 in Schedule 1, Item 13 broadly allows parliamentarians and office-holders to, in writing, authorise a person to exercise functions or powers on their behalf.

119. Item 16 in Schedule 2 will insert new paragraph 30(1)(c) and will broadly provide that the Prime Minister may in writing also delegate to SES employees or acting SES employees of the PWSS.

120. There is no requirement for the Prime Minister to make any delegations.

Section 31 Powers may be exercised by authorised person

121. New section 31 reflects section 32 in the current Act, with minor changes to modernise and clarify the provision. Subsection 31(1) similarly allows a parliamentarian or office-holder to, in writing, authorise another person to exercise their powers or functions under the Act on their behalf.

122. There is an additional requirement that the parliamentarian or office-holder be satisfied it is appropriate for the person to have such functions or exercise such powers.

123. Subsection 31(2) also introduces an express requirement that the authorised person comply with any directions of the authoriser.

Section 32 Review of operation of this Act

124. New section 32 inserts a requirement for the Act to be reviewed within 5 years, but not before 3 years after this section commences. The provision implements Recommendation 15 (five year review) of the Review, which was that '[t]he MOPS Act should be reviewed for effectiveness, in the context of broader changes to the parliamentary workplace, within five years of the amendments to the Act'.

125. Subsection 32(2) provides that the persons undertaking the review must give the Minister a written report of the review. Subsection 32(3) requires the Minster to cause the report to be tabled in each House of the Parliament within 15 sitting days after receiving the report.

126. The changes referred to in the recommendation include the establishment of a statutory PWSS, an Independent Parliamentary Standards Commission and codes of conduct for Commonwealth parliamentary workplaces. Each of these changes, as well as others recommended in the Set the Standard Report, may impact the operation and effectiveness of the Act. In addition, a review, which must commence a minimum after 3 years of operation will allow for consideration of how the new provisions have worked in practice and whether further amendments are desirable.

SCHEDULE 2 - AMENDMENTS RELATING TO THE PARLIAMENTARY WORKPLACE SUPPORT SERVICE ACT 2023

Members of Parliament (Staff) Act 1984

127. Schedule 2 sets out further amendments to the MOPS Act, including in relation to provisions as added or amended by Schedule 1, to account for the new Parliamentary Workplace Support Service proposed to be established by the Parliamentary Workplace Support Service Bill 2023. As set out in the commencement information table at clause 2(1), table item 3, Schedule 2 will not commence until after the commencement of the Parliamentary Workplace Support Service Act 2023.

Item 1 Section 3

128. This Item adds definitions to section 3 of the Act. The new definitions of 'CEO' and 'PWSS' relate to the proposed Parliamentary Workplace Support Service and these terms appear in other items in Schedule 2.

Item 2 At the end of section 7

129. This Item adds a note after the new section 7 (see Item 12 of Schedule 1) that sets out the roles of the Prime Minister, parliamentarians and officeholders in the MOPS Act employment framework. It adds clarity to the provision by including a description of the role of the PWSS and implements part of Recommendation 2 (employer duties).

Item 3 Section 10 (paragraph beginning "Parliamentarians and office-holders can suspend")

130. Item 3 would amend new section 10 in Schedule 1, Item 12, the 'Simplified outline of Part III' to reflect requirements in Part III as amended by Schedule 2. Items 9, 12 and 13 in Schedule 2 set out requirements for parliamentarians and office-holders to inform and consult the PWSS in relation to decisions to suspend and terminate.

Item 4 Section 10 (after the paragraph beginning "Parliamentarians and office-holders can suspend")

131. Item 3 would amend new section 10 in Schedule 1, Item 13, the 'Simplified outline of Part III' to reflect the ability for the CEO of PWSS to suspend employees in certain circumstances and exercise some employer powers where there is no employing individual, which are powers of the PWSS added to Part III by Items 6 and 14 in Schedule 2.

Item 5 Subsection 13(4)

132. Item 5 adds a reference to new section 19 (added by Schedule 2, Item 14) as one of the provisions in the Act for which determinations made under new subsections 13(2) and (3) cannot vary a matter expressly provided for in the provision.

Item 6 At the end of section 15

133. Item 6 inserts a new subsection headed 'CEO to act as employer' at the end of new section 15 which is set out in Schedule 1, Item 13. This subsection will allow the CEO of the PWSS to step in with employer powers in limited situations: when an employing parliamentarian or office-holder has either died, or is no longer a parliamentarian, and a deferral period has been directed under new subsections 15(1) or (2).

134. The provision substantially implements Recommendation 6B of the Review, which recommends including in the MOPS Act, 'a provision for the continuity of employment and employer powers when a seat becomes vacant, including between the date of dissolution of parliament and the date a poll is declared'. In the context of elections, if the parliamentarian is a member of the House of Representatives or a territory Senator and does not contest the election, the provision will allow the CEO to act as employer for the parliamentarian's staff during the deferral period before their termination of employment takes effect. In other circumstances, it may not be known if staff of parliamentarians contesting elections will have their employment automatically terminated until the declaration of the polls. In this case, if a member of the House of Representatives or a territory senator is not re-elected, the CEO may exercise employer powers for the period of the deferral.

135. The distinction in the context of an election between members of the House of Representatives and territory Senators on one hand, and state Senators on the other, relates to the different times a state Senator commences and ceases their term which is connected to the commencement and cessation of their remuneration. For example, for a half-Senate election, state Senators filling a place that is vacant by rotation commence their term on the first 1 July after the day of their election.

136. During the period the CEO acts as employer, it is envisaged the CEO would perform day-to-day employer functions with respect to the employee, such as approve leave, approve travel expenses if required to assist with packing up a parliamentarian's office, approve a change in work hours, or respond to work health and safety issues. The CEO would also have the power to suspend an employee from duties.

137. Subsection 15(6) specifies that the CEO of the PWSS does not have the power to terminate employment in these circumstances.

Item 7 Subsection 16(1) (note)

138. Item 7 numbers a note in new subsection 16(1) (see Schedule 1, Item 13) because there are additional notes to be added at the end of subsection 16(1) by Item 8 of this schedule.

Item 8 At the end of subsection 16(1)

139. Item 8 adds a new note under new subsection 16(1) (see Schedule 1, Item 13) to highlight the obligation to be included in new subsection 16(3) by Schedule 2, Item 9 for employing individuals to consult the PWSS prior to making a decision to terminate employment.

Item 9 At the end of section 16

140. Item 9 inserts two subsections at the end of new section 16 (see Schedule 1, Item 13). New section 16 provides for termination of MOPS employment by employing individuals.

141. New subsection 16(3) would introduce new requirements for employing individuals to consult with the PWSS prior to terminating employment and have regard to any advice provided by the PWSS. The intention is that, by engaging with human resources advice before a termination decision is made, employing individuals may be alerted to and consider alternative actions or responses to resolve workplace issues, and ensure any termination or other process undertaken is appropriate, including having due regard to procedural fairness considerations, any policies and procedures in place and other legal obligations.

142. The requirement links back to the Parliamentary Workplace Support Service Bill 2023, which provides that the CEO of the PWSS may determine that the PWSS will include details of certain non-compliance by parliamentarians with certain matters in a public report. The note at the end of the subsection highlights that a failure to consult with the PWSS before effecting a termination is one of these matters.

143. Item 9 implements Recommendation 13A (termination) of the Review. It also reflects key features of Recommendation 16(a) of the Set the Standard Report which proposed a decision-making process for termination of employment, including prior consultation with a human resources body, the provision of advice to parliamentarians by that body, and the consideration of the advice by parliamentarians.

144. Subsection,16(4) clarifies that failure to comply with this consultation requirement does not prevent the termination having effect. Subsection 16(4) is not intended to prevent the former employee from challenging the termination on any other grounds (including other procedural defects). This clause provides certainty to employing individuals and the employees on the question of whether a person has been terminated if PWSS' advice is not sought or considered.

145. The Prime Minister will continue to have powers to determine terms and conditions of MOPS employment where these are consistent with the matters expressly provided for in new section 16 and other Commonwealth laws (see new section 13 in Schedule 1, Item 13).

Item 10 Section 17

146. Item 10 repeals section 17, relating to resignation, as inserted into the MOPS Act by Item 13 of Schedule 1 and substitutes a provision to make a minor amendment so that a MOPS Act employee may resign in writing to either their employing individual or, if in a deferral period where CEO has step in powers, the CEO of the PWSS.

147. Item 10 also includes a note to highlight the definition of employing individual in section 3.

Item 11 Subsection 18(3)

148. Item 11 repeals new subsection 18(3), as inserted into the MOPS Act by Item 13 of Schedule 1, which provides that an employing individual can suspend a person more than once. It replaces this subsection with a new subsection 18(3) that refers to both the employing individual and the CEO of the PWSS. The CEO of the PWSS has limited powers to suspend employees under new section 19 in Item 14 of this schedule.

Item 12 After subsection 18(4)

149. Item 12 inserts new subsection 18(4A), which requires employing individuals to consult the PWSS about whether exceptional circumstances exist before deciding to suspend an employee's employment without pay, and new subsection 18(4B), which requires employing individuals to notify the PWSS of a suspension decision in all cases.

150. These provisions reflect the expectation that, where such services are available, human resources services would be involved in any significant decision affecting the status of a person's employment in a modern and professional workplace.

151. The involvement of the PWSS is an important feature of the new suspension power for parliamentarians and office-holders. The PWSS will be best placed to provide guidance on appropriate processes, and facilitate support services where these may be required. The PWSS will also be able to assess how suspension powers are being used across MOPS Act employment.

Item 13 At the end of subsection 18(5)

152. Item 13 inserts a requirement for an employing individual to inform the PWSS when they end a suspension of employment. This will help facilitate access to human resources services, ensure employment records are accurate and any administrative processes necessary due to the end of the suspension are undertaken.

Item 14 At the end of Part III

153. This Item adds a new section 19 'Suspension from duties by CEO'. This provision allows the CEO to suspend a MOPS employee in limited circumstances after seeking information from and views of the employing individual and receiving their agreement.

154. New section 19 substantially implements Recommendation 13C of the Review (termination) with the modification that suspension decisions by the CEO will also require the agreement of the employing individual as per paragraph 19(1)(d).

155. Section 19 empowers the CEO of the PWSS to suspend a MOPS Act employee to mitigate a risk to work health and safety, property, security or an investigation (subparagraphs 19(1)(a)(i)-(iv)) after undertaking a process with an employing individual. The CEO must first seek and consider the views of the employing parliamentarian about a CEO's concern that it might be appropriate to suspend an employee to mitigate one of these risks (paragraphs 19(1)(b) and (c)), as well as consider any other action the employing individual has taken in relation to the concern (paragraph 19(1)(c)). If the CEO then considers the employee should be suspended to mitigate the risk, the CEO may only suspend the employee with the agreement of the employing individual (paragraph 19(1)(d)).

156. The provision is structured this way to emphasise the desirability of employing individuals taking responsibility for employment-related decisions about their staff. It is intended that parliamentarians will use their power to suspend under section 18 in almost all cases where a suspension decision is made.

157. The CEO power, however, will provide a strong lever for a discussion between the CEO and an employing individual where there is a serious concern about an employee continuing to work, and an avenue for the CEO to ultimately suspend an employee where the parliamentarian agrees. This ability of the CEO to proactively inform a parliamentarian of concerns would also assist in cases where there is interpersonal conflict between the employee and the employing individual.

158. There are four notes following subsection 19(1). The first highlights the new definition of employing individual to be included in section 3 of the Act. The second, third and fourth highlight the additional laws, rules or procedures that may apply to suspension of duties. Note 3(c) includes an updated reference to the section under which determinations of terms and conditions are made to reflect structural changes made by other items in the Bill.

159. Subsection 19(2) provides that the length of a suspension is determined by the CEO but may not exceed 30 days; however, subsection (3) clarifies that this does not prevent the CEO determining further periods of suspensions from duties are appropriate under subsection 19(1) or the employing individual from suspending the person under section 18. This means the CEO will be required to consider the merits of continuing a suspension at least every 30 days and make a fresh suspension decision with the agreement of the employing individual if the suspension is to continue. This is comparable to the mechanism in regulation 14(5) of the Public Service Regulations 2023, which requires Agency Heads to review suspensions at reasonable intervals.

160. Subsection 19(4) provides that suspension of employment is with pay unless the CEO is satisfied that exceptional circumstances exist to justify suspension without pay. Exceptional circumstances are expected to arise rarely in employment.

161. Subsection 19(5) specifies that the CEO may end the suspension at any time prior to the end of a period determined under subsection 18(2).

Item 15 Before section 30

162. This Item inserts a new section 29 'Delegation by CEO', so that the CEO of the PWSS can delegate their powers under subsection 15(5) (see Schedule 2, Item 6) to act as an employer and under new section 19 to suspend employees (see Schedule 2, Item 14) to an SES or acting SES member of staff of the PWSS.

163. This will allow the CEO of the PWSS some flexibility in the exercise of either of these powers, while requiring any delegation to be made to senior employees only.

164. A note following new subsection 29(1) will highlight the sections of the Acts Interpretation Act 1901 relevant to delegations.

165. New subsection 29(2) sets out that a delegate must comply with any written directions of the CEO when performing a delegated function or exercising a delegated power.

Item 16 After paragraph 30(1)(b)

166. Item 16 will insert a new paragraph 30(1)(c) after paragraph 30(1)(b) (as inserted by Item 13), which allows the Prime Minister to delegate powers or functions under the Act to Ministers or SES or acting SES of PM&C and the Department administering the Act. Item 16 will also allow the Prime Minister to delegate powers and functions to SES or acting SES of the PWSS.

167. There is no requirement for the Prime Minister to make any delegations.

SCHEDULE 3 - APPLICATION AND TRANSITIONAL PROVISIONS

Clause 1 Definitions

168. Clause 1 sets out definitions of the following terms used in Schedule 3: 'amended MOPS Act', 'commencement day' and 'MOPS Act'.

Clause 2 Continuation of staff employed under section 13

169. Clause 2, subclauses (1)-(3) provide for the continuation of the employment of employees employed under the MOPS Act as electorate or personal employees under section 13 prior to the amendments made by Schedule 1. This includes continued application of any employment agreement as set out in clause (4).

170. Subclause (5) provides that sections 13 to 18 of the amended MOPS Act (see Schedule 1, Item 13) will apply to a person's employment from commencement. These sections cover terms and conditions of employment, automatic termination of employment, directions in relation to automatic termination, termination by notice, resignation and suspension from duties.

171. Subclause (6) sets out that section 19 (see Schedule 2, Item 14), which relates to suspension from duties by the CEO of the PWSS, will apply from the date the section commences.

Clause 3 Continuation of staff employed under section 20

172. Clause 3 provides for the continuation of the employment under section 20 of the MOPS Act prior to the amendments made by Schedule 1. This includes continued application of any employment agreement as set out in subclause (3).

173. Subclause (4) provides that sections 13 to 18 of the amended MOPS Bill (see Schedule 1, Item 12) will apply to a person's employment from commencement. These sections cover terms and conditions of employment, automatic termination of employment, directions in relation to automatic termination, termination by notice, resignation and suspension from duties.

174. Subclause (5) sets out that section 19 (see Schedule 2, Item 14), which relates to suspension from duties by the CEO of the PWSS, will apply from the date the section commences.

Clause 4 Determinations under section 12

175. Subclauses 4(1) and (2) preserve determinations made under section 12 of the MOPS Act and treats these determinations as if they have been made under new section 4 (see Item 12 of Schedule 1). These determinations allow a Senator or Member of the House of Representatives to employ personal employees under Part III of the Act.

Clause 5 Approvals under subsections 13(2) and 20(2)

176. This clause ensures approvals of arrangements relating to the employment of staff in effect under subsections 13(2) and 20(2) of the MOPS Act continue in effect. Approved arrangements would include, for example, the allocation of numbers and categories of personal employees to office-holders.

Clause 6 Determinations under subsections 13(2) and 20(2)

177. Subclauses 6(1) and (2) preserve determinations made under subsections 13(2) or 20(2) of the MOPS Act. These determinations relate to conditions on the exercise of a parliamentarian or office-holder's power to employ staff.

Clause 7 Determinations under subsections 14(3) and 21(3)

178. Subclauses 7(1) and (2) preserve determinations made under subsections 14(3) and 21(3) of the MOPS Act. These determinations relate to the terms and conditions of employment of persons employed under the Act.

179. Paragraph 7(2)(b) clarifies that the new designation of instruments as 'notifiable' will not have retrospective effect. Existing determinations (that do not apply to specified persons) made prior to these amendments to the Act will not be required to be registered as notifiable instruments. These existing determinations are already publicly available on the Department of Finance website. Subclause 7(3) will formalise the requirement for these determinations to be publicly available on this website.

180. Determinations specifying individuals are not required to be published.

Clause 8 Directions under subsections 16(5) and 23(4)

181. Subclauses 8(1) and (2) preserve directions made under subsections 16(5) and 23(4) of the MOPS Act. These directions defer the effect of an automatic termination of employment under the Act.

182. The provision will allow directions to defer termination of employment made under the MOPS Act to continue, regardless of whether they relate to a specified person.

183. In accordance with Recommendation 6A of the Review, it is intended all determinations made under the MOPS Act relating to terms and conditions of employment will be publicly available, except where individuals are specified. To align with this recommendation, subclause 8(3) will require a subset of directions in (8)(2)(b) already made under the MOPS Act to be published on the Department of Finance website. Directions specifying individuals are not required to be published.

Clause 9 Authorisations of persons under section 32

184. This clause preserves existing authorisations made by parliamentarians or office-holders in writing to persons to exercise their powers or functions under the MOPS Act, on the basis that it is not necessary to re-make all existing authorisations made under section 32 of the MOPS Act under the new provisions.

185. The only substantial change in the drafting of new section 31 'Powers may be exercised by authorised person', which will replace section 32 of the MOPS Act, is the requirement that the parliamentarian or office-holder is satisfied it is appropriate for the person to perform such functions or exercise such powers. The expectation is that parliamentarians and office-holders have and will continue to undertake this consideration.

Clause 10 Enterprise agreement

186. Clause 10 clarifies the continuing operation of the Commonwealth Members of Parliament Staff Enterprise Agreement 2020-2023, after the commencement of this Bill. It includes a table to confirm which references in the Agreement to the MOPS Act are taken to be references to the amended MOPS Act.

187. It is noted that s 68.1 of the Commonwealth Members of Parliament Staff Enterprise Agreement 2020-2023 anticipates changes in legislation, stating that '[u]nless otherwise specified, a reference to legislation is to that legislation as amended, re-enacted or replaced from time to time and includes subordinate legislation'.

Clause 11 Employment agreements entered into before commencement

188. Clause 11 confirms the continuation of employment agreements entered into under the MOPS Act after the commencement of this Bill. The table at subclause (3) confirms which references in an employment agreement to the MOPS Act are taken to be references to the amended MOPS Act.

SCHEDULE 4 - CONSEQUENTIAL AMENDMENTS

Part 1 - Amendments commencing day after Royal Assent

Administrative Decisions (Judicial Review) Act 1977

Item 1 Paragraph (y) of Schedule 2

189. This amendment aligns the provision with amendments made to the MOPS Act as a result of the MOPS Act Review, including the removal of provisions in the MOPS Act relating to consultants and the addition of new powers to suspend the employment of MOPS Act employees (see Schedule 1, Item 13, section 18 and Schedule 2, Items 6 and 14) that will operate alongside the existing power to terminate employment, for which an exemption from section 13 of the ADJR Act is currently in effect.

190. Specifically, the amendment would:

•

Omit decisions relating to the engagement and termination of consultants under the MOPS Act as a class of decisions that is exempt from section 13 of the ADJR, on the basis that the amended MOPS Act will no longer provide for the engagement or termination of consultants

•

Substitute the reference to 'staff' in paragraph (y) for 'persons' for consistency with the terminology used in the amended MOPS Act

•

Extend the existing exemption for decisions relating to employing and terminating the employment of MOPS Act employees to cover decisions relating to suspension from duties, to reflect that an express power to suspend MOPS staff will be provided for under the amended MOPS Act.

191. The extension of the exemption recognises the personal nature of MOPS employment, and the complexity likely to arise where meaningful reasons for suspension could require the disclosure of sensitive information and/or information provided in confidence. It would also guard against any perverse incentives to terminate employment at an early stage, or to not suspend an employee where this could best address a serious risk in the workplace, and avoid a potentially onerous process. It also aligns with the Administrative Review Council's recommendation to exempt employment decisions made under the MOPS Act from the ADJR Act given the personal nature of the employment and the Act's provision for termination-at-will (see the Administrative Review Council's Report 50, 'Federal Judicial Review in Australia', 2012 Recommendation C19).

Age Discrimination Act 2004

Item 2 Section 5 (paragraph (i) of the definition of administrative office )

192. This amendment reflects the repeal of provisions relating to consultants in the Bill. Persons would no longer be 'engaged' as consultants under the amended MOPS Act (rather, it is only staff who will be 'employed' under the Act), so the reference to engagement under the MOPS Act would be redundant.

Item 3 Section 5 (paragraph (g) of the definition of Commonwealth employee)

193. As above - this amendment reflects the repeal of provisions relating to consultants in the Bill. Persons would no longer be 'engaged' as consultants under the amended MOPS Act (rather, it is only staff who will be 'employed' under the Act), so the reference to engagement under the MOPS Act would be redundant.

Auditor-General Act 1997

Item 4 Paragraph 17(6)(a)

194. This amendment reflects the repeal of provisions relating to consultants in the Bill. Persons would no longer be 'engaged' as consultants under the amended MOPS Act (rather, it is only staff who will be 'employed' under the Act), so the reference to engagement under the MOPS Act would be redundant.

Clean Energy Regulator Act 2011

Item 5 Subsection 45(3)

195. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under section 13 or section 20 of the Act would now be employed under the same provision (section 11 of the amended Act).

196. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

197. Accordingly, the amendment of the Clean Energy Regulator Act 2011 to omit cross-references to sections of the MOPS Act that would be repealed by this Bill would not change the application of this provision.

Disability Discrimination Act 1992

Item 6 Subsection 4(1) (paragraph (i) of the definition of administrative office )

198. This amendment reflects the repeal of provisions relating to consultants in the Bill. Persons would no longer be 'engaged' as consultants under the amended MOPS Act (rather, it is only staff who will be 'employed' under the Act), so the reference to engagement under the MOPS Act would be redundant.

Item 7 Subsection (4)(1) (paragraph (h) of the definition of Commonwealth employee )

199. This amendment reflects the repeal of provisions relating to consultants in the Bill. Persons would no longer be 'engaged' as consultants under the amended MOPS Act (rather, it is only staff who will be 'employed' under the Act), so the reference to engagement under the MOPS Act would be redundant.

Foreign Acquisitions and Takeovers Act 1975

Item 8 Paragraph 122(2)(b)

200. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under section 13 and section 20 of the Act would now be employed under the same provision (section 11 of the amended Act).

201. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

202. Accordingly, this amendment of the Foreign Acquisitions and Takeovers Act 1975 to repeal a paragraph cross-referencing sections of the MOPS Act that would be repealed by this Bill and replace it with a paragraph referring generally to an individual employed by a Minister under the MOPS Act would not change the application of the provision.

Foreign Influence Transparency Scheme Act 2018

Item 9 Section 10 (paragraph (c) of the definition of designated position holder )

203. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under section 13 and section 20 would now be employed under the same provision (section 11 of the amended Act).

204. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

205. The amendment of the Foreign Influence Transparency Scheme Act to omit cross-references to sections of the MOPS Act that would be repealed by this Bill in the definition of 'designated position holder' will result in this provision having the same practical application it would have had prior to the amendment, given that the provision is already limited to employees 'whose position is at or above the level of Senior Advisor' (i.e., personal employees). Therefore, there is no change to the policy underlying this provision.

Item 10 Section 10 (paragraph (b) of the definition of parliamentary lobbying )

206. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under section 13 of the Act and section 20 of the Act would now be employed under the same provision (section 11 of the amended Act).

207. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

208. The amendment of the Foreign Influence Transparency Scheme Act to omit cross-references to sections of the MOPS Act that would be repealed by this Bill in the definition of 'parliamentary lobbying' would result in this provision having the same application it would have had prior to the amendment. There is no change to the policy underlying this provision.

Higher Education Support Act 2003

Item 11 Paragraph 181-20(b)

209. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under section 13 and section 20 of the Act would now be employed under the same provision (section 11 of the amended Act).

210. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

211. Therefore, this amendment of the Higher Education Support Act 2003 to omit cross-references to sections of the MOPS Act that would be repealed by this Bill and refer generally persons employed under the MOPS Act will result in this provision having the same application it would have had prior to the amendment. There is no change to the policy underlying this provision.

Independent Parliamentary Expenses Authority Act 2017

Item 12 Section 3 (paragraph (c) of the paragraph beginning "The Authority has functions")

212. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under Part III of the Act and staff employed under Part IV of the Act would now be employed under the same Part (new Part III).

213. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

214. The amendment of the Independent Parliamentary Expenses Authority Act 2017 to omit cross-references to Parts of the MOPS Act that would be repealed by this Bill in this paragraph would result in this provision having the same application it would have had prior to the amendment. There is no change to the policy underlying this provision.

Item 13 Subsection 4(1) (definition of MOPS staff member )

215. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under Part III of the Act and staff employed under Part IV of the Act would now be employed under the same Part (new Part III).

216. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

217. The amendment of the Independent Parliamentary Expenses Authority Act 2017 to omit cross-references to Parts of the MOPS Act that would be repealed by this Bill in the definition of 'MOPS staff member' would result in this provision having the same application it would have had prior to the amendment. There is no change to the policy underlying this provision.

Item 14 Section 10 (paragraph (c) of the paragraph beginning "The Authority has functions")

218. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under Part III of the Act and staff employed under Part IV of the Act would now be employed under the same Part (new Part III).

219. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

220. The amendment of the Independent Parliamentary Expenses Authority Act 2017 to omit cross-references to Parts of the MOPS Act that would be repealed by this Bill in this paragraph would result in this provision having the same application it would have had prior to the amendment. There is no change to the policy underlying this provision.

Industrial Chemicals Act 2019

Item 15 Paragraph 115(2)(f)

221. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under section 13 of the Act and staff employed under section 20 of the Act would now be employed under the same provision (section 11 of the amended Act).

222. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

223. Therefore, the amendment of the Industrial Chemicals Act 2019 to omit cross-references to sections of the MOPS Act that would be repealed by this Bill would result in this provision having the same application it would have had prior to the amendment, and there is no change to the policy underlying this provision.

Industrial Chemicals Environmental Management (Register) Act 2021

Item 16 Section 7 (paragraph (i) of the definition of entrusted person)

224. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under section 13 and section 20 of the Act would now be employed under the same provision (section 11 of the amended Act).

225. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

226. Therefore, the amendment of the Industrial Chemicals Environmental Management (Register) Act 2021 to omit cross-references to sections of the MOPS Act that would be repealed by this Bill would result in this provision having the same application it would have had prior to the amendment, and there is no change to the policy underlying this provision.

Industry Research and Development Act 1986

Item 17 Paragraph 47(2)(aa)

227. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under section 13 and section 20 of the Act would now be employed under the same provision (section 11 of the amended Act).

228. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

229. Therefore, the amendment of the Industry Research and Development Act 1986 to omit cross-references to sections of the MOPS Act that would be repealed by this Bill would result in this provision having the same application it would have had prior to the amendment, and there is no change to the policy underlying this provision.

National Anti-Corruption Commission Act 2022

Item 18 Paragraph 12(1)(a)

230. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff, and the repeal of Part II (relating to the engagement of consultants).

231. Staff employed under Part III of the Act and staff employed under Part IV of the Act would now be employed under the same Part (new Part III). The amended Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under Parts II and III of the current Act.

232. The amendment of the National Anti-Corruption Commission Act 2022 to repeal a paragraph cross-referencing Parts of the MOPS Act that would be repealed by this Bill would result in this provision having the same application it would have had prior to the amendment. There is no change to the policy underlying this provision.

Petroleum and Other Fuels Reporting Act 2017

Item 19 Paragraph 23(2)(a)

233. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under section 13 and section 20 of the Act would now be employed under the same provision (section 11 of the amended Act).

234. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

235. Therefore, the amendment of the Petroleum and Other Fuels Reporting Act 2017 to omit cross-references to sections of the MOPS Act that would be repealed by this Bill would result in this provision having the same application it would have had prior to the amendment, and there is no change to the policy underlying this provision.

Public Interest Disclosure Act 2013

Item 20 Paragraph 69(4)(d)

236. This amendment reflects the repeal of provisions relating to consultants in the Bill. Persons would no longer be 'engaged' under the amended MOPS Act (rather, staff will be 'employed' under the Act), so the reference to engagement under the MOPS Act would be redundant.

Item 21 Paragraph 70(3A)(d)

237. This amendment reflects the repeal of provisions relating to consultants in the Bill. Persons would no longer be 'engaged' under the amended MOPS Act (rather, staff will be 'employed' under the Act), so the reference to engagement under the MOPS Act would be redundant.

Sex Discrimination Act 1984

Item 22 Subsection 4(1) (paragraph (i) of the definition of Commonwealth administrative office )

238. This amendment reflects the repeal of provisions relating to consultants in the Bill. Persons would no longer be 'engaged' under the amended MOPS Act (rather, staff will be 'employed' under the Act), so the reference to engagement under the MOPS Act would be redundant.

Item 23 Subsection 4(1) (paragraph (h) of the definition of Commonwealth employee )

239. This amendment reflects the repeal of provisions relating to consultants in the Bill. Persons would no longer be 'engaged' under the amended MOPS Act (rather, staff will be 'employed' under the Act), so the reference to engagement under the MOPS Act would be redundant.

Tertiary Education Quality and Standards Agency Act 2011

Item 24 Paragraph 192(1)(b)

240. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under section 13 and section 20 of the Act would now be employed under the same provision (section 11 of the amended Act).

241. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

242. Therefore, the amendment of the Tertiary Education Quality and Standards Agency Act 2011 to omit cross-references to sections of the MOPS Act that would be repealed by this Bill would result in this provision having the same application it would have had prior to the amendment, and there is no change to the policy underlying this provision.

Part 2 - Other amendments

National Reconstruction Fund Corporation Act 2023

Item 25 Subparagraph 85(4)(d)(i)

243. This amendment reflects a structural change to the MOPS Act to merge Parts III and IV, which is intended to streamline employment arrangements for personal and electorate staff. Staff employed under section 13 and section 20 of the Act would now be employed under the same provision (section 11 of the amended Act).

244. All provisions of the MOPS Act relating to the engagement of consultants would be repealed by this Bill, which means that the Act would no longer provide for the engagement or employment of any persons other than electorate and personal employees. As a result, a general reference to persons employed under the amended MOPS Act has the equivalent effect to a reference to persons employed under sections 13 and 20 of the current Act.

245. Therefore, the amendment of the National Reconstruction Fund Corporation Act 2023 to omit cross-references to sections of the MOPS Act that would be repealed by this Bill would result in this provision having the same application it would have had prior to the amendment, and there is no change to the policy underlying this provision.