House of Representatives

Public Employment (Consequential and Transitional) Amendment Bill 1999

Second Reading Speech

Senator ELLISON (Special Minister of State)

I table revised explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows-


When the Government came to power in 1996, we acted quickly to implement our agenda to achieve significant microeconomic reform. That agenda has involved removing unnecessary red-tape from business, providing greater workplace flexibility, encouraging a direct relationship between employers and employees and providing the incentives necessary to encourage improved industry performance.

As a key part of that agenda, the Government identified the need for major reform of public administration. Commitment to that agenda has seen the passage of new financial management legislation devolving responsibility to the agency; the introduction of more transparent presentation of the costs of government through the move to accrual budgeting; promotion of a service culture in the APS through the introduction of Government Client Service Charters; and the promotion of more flexible employment arrangements at the agency level under the Workplace Relations Act 1996 (WR Act).

The modernisation of the principal legislation regulating the Australian Public Service, the Public Service Act 1922, is a vital element of this public service reform agenda. In some ways it is the key. The current Act is over 75 years old and has been amended on a piecemeal basis more than a hundred times. It looks back to a bygone age rather than forward to the next century. The current Act is complex, prescriptive and out of date. It has acted like a straightjacket on the Australian Public Service (APS), stifling the creativity and innovation of those who work within the Service.

The Public Service Bill, on the other hand, aims to modernise the APS's legislative framework and transform the APS management culture. The changes necessary to achieve this transformation are effected through this Bill. The changes provide a careful balance between devolved responsibility and improved accountability. They provide the means of freeing APS agencies from central controls and enable APS agencies to adopt employment arrangements that meet their particular needs. Importantly, this Bill complements earlier reforms that saw the simplification of APS awards and the broader adoption of agreement-making processes.

In essence, the Bill recognises the distinctive character of public administration in a way that is absent from the current legislation and aims to put in place a framework for a high performance public service. The Bill does not prescribe process but, instead, ensures that Agency Heads are held accountable for their actions. It removes prescription and central control, and will enable the public service to meet market competition; to respond to pressures for change more effectively; and, to promote a stronger performance culture. It will bring public service employment arrangements into line with community standards and, at the same time, it will promote accountability by making managers responsible for the way they manage employment matters within their own agencies.

The Government has already implemented a number of its reforms to public administration through administrative means. Under these reforms:

Agency Heads have greater authority and flexibility to effectively manage their staff;
new Public Service Values and a Code of Conduct for APS staff have been established through regulation;
public accountability has been increased and strengthened, an important element of this was the enhancement of the reporting powers of the Public Service Commissioner to present an annual State of the Service Report to the Parliament; and
protection for whistleblowers raising allegations of breaches of the Code of Conduct has been introduced.

A number of these reforms were brought about by amendments to Public Service Regulations made under the current Act. While these changes represent a significant step in the Government's reform agenda, a new Bill is still essential because there are a number of key areas in the current legislation that are not amenable to simplification by administrative action. For example:

giving employment powers direct to Agency Heads;
placing in primary legislation a secure Parliament-endorsed legislative framework for an extended range of APS values, the new Code of Conduct and protection for whistleblowers;
simplifying the current complex appeals arrangements;
making changes to the current inflexible employment categories; and
removing compulsory age 65 retirement.

Implementing broad-ranging and integrated reforms to the APS management structure requires significant legislative reform. Recognising this, the Government has continued to press for new legislation to replace the current Act. In developing the Bill we have, over time, sought the views of many of those who have a stake in public administration, including in particular, public servants themselves. Early in developing this legislation, and more recently, the Government also consulted with the public sector unions who agreed to many changes to the original proposals.

The Government, having accepted in full or in part the recommendations contained in a report by the then Joint Committee of Public Accounts (JCPA), has incorporated changes in the Bill that give effect to those recommendations. The JCPA favoured the simplification, modernisation and the more accessible format of the Bill.

The Government has also made a number of changes to the Bill in the context of seeking reasonable compromise and bipartisan support. The principal changes focus on supplementing the accountability and reporting requirements already enshrined in the Bill. Further, the changes include measures that:

expand the APS Values;
clarify the sanctions applicable to breaches of the Code of Conduct and the applicability of the Code to statutory office holders;
expand the responsibilities of the Merit Protection Commissioner;
increase the protections afforded to employees against reduction in their entitlements under an award, certified agreement or Australian Workplace Agreement;
extend the processes for the review of actions affecting employees; and
elaborate on the responsibilities of the Heads of Executive Agencies.

The Government acknowledges that there has been some constructive consideration and negotiation on the issues and we have appreciated the positive approach taken by the Opposition.

While the changes made to the Bill retain some elements of process and prescription, the Bill remains a significant advance on the present legislative framework in terms of content and language. It is in the interests of good government and effective public administration to achieve an employment framework that capitalises on the real potential of our public sector.

Crucially, the Bill will give Agency Heads similar rights, duties and powers as their counterparts in the private sector. Agency Heads will have a greater capacity, and authority, to respond to the distinctive needs of their own organisations. This will promote the development of fair and flexible employment arrangements that will meet the particular needs of each individual workplace. Agency Heads will be better placed to provide more rewarding jobs for their staff; and to develop employment arrangements tailored to meet the expectations of clients. At the same time, the Bill ensures that the powers vested in Agency Heads are exercised appropriately by providing for enhanced parliamentary scrutiny and greater public accountability.

The Bill protects the public interest of citizens and provides a fair balance between accountability and devolved management responsibility. It ensures that merit selection will remain a fundamental principle in selection decisions. Indeed, the Bill specifically prohibits patronage or favouritism in staffing, and prevents Ministers from involving themselves in staffing decisions relating to particular individuals. As recommended by the JCPA, the Bill also includes a definition of merit that takes account of suggestions made by the Women's Electoral Lobby and supported by the JCPA.

The Government's clear aim is to assist Public Service agencies to move towards the goal of becoming high performing organisations. We cannot afford to lose the opportunity to develop a modern Public Service Act that will guide the APS into the next century and give it the tools to meet future challenges. Adherence to detailed prescription, rigid regulation and control will mean that we lose that opportunity.

The Bill, by providing a comprehensive, and comprehensible, modern employment framework will encourage employment practices that complement and promote the operations of agencies. It will ensure that the new flexibilities for individual and enterprise agreements provided under the WR Act will be a hallmark of APS management. In this sense the Public Service Bill is a very significant piece of legislation. The Administrative reforms, which have already been implemented with the assistance of the Opposition and minor parties in the Senate, have gone a long way towards providing the environment necessary for the APS Agencies to enter the next century as high performing, innovative, and responsive organisations. It is my hope that we can now advance this legislation to allow the APS to achieve its full potential.

I commend the Bill to the Senate.


The Public Employment (Consequential and Transitional) Amendment Bill 1999 deals with the consequential and transitional matters arising from the proposed repeal of the Public Service Act 1922 and its replacement by the legislation set out in the Public Service Bill 1999. With the establishment of the new legal framework for APS employees set out in the Public Service Bill, certain provisions will be necessary:

to enable the transition from the old to the new employment framework;
to validate actions and decisions taken under the former legislation; and
to make consequential amendments to the extensive range of legislation which incorporates references to the Public Service Act 1922.

The transitional provisions fall into three broad areas.

First, it is necessary to set in place conversion arrangements for those who work in the APS. With the removal of the concept of office for APS staff, and the creation of new employment categories, officers and employees covered by the existing Act are converted to employees in their corresponding agencies with their corresponding classifications. Fixed-term Secretaries of Departments under the current Act will become Secretaries of their corresponding Departments under the new Act. Similarly the person holding office as the Public Service Commissioner, and the person holding the office of Merit Protection Commissioner, will become the Public Service Commissioner and the Merit Protection Commissioner respectively under the new Act as if they had been appointed under the new Act.

Second, as the Public Service Bill 1999 is legislation that is primarily principles-based, there are some conditions covered by the current Act that require transitional arrangements because they will no longer be regulated in the same way.

The most important of these are the arrangements governing the rights of return of staff who have left the APS to take up non-APS Commonwealth employment. The current, very complex, legislative provisions, under Part IV of the present Act, represent a considerable liability for the APS. They will be replaced, subject to appropriate transitional arrangements, with a simpler model under which Agency Heads will have the discretion to grant unpaid leave to employees to take up such employment where this is in the interest of the APS. In instances where a person seeks to leave an agency to take up an appointment to a Commonwealth statutory office, employment under the Members of Parliament (Staff) Act 1984 or employment under the Governor-General Act 1974, Agency Heads must grant unpaid leave to that person.

There will also be appropriate arrangements for the Parliamentary Departments pending the development of their own legislation.

Third, there is a need to provide for the continuation of processes already set in train. Action may have commenced under the current Act or the Merit Protection (Australian Government Employees) Act 1984 that will not be completed by the time the new Act is proclaimed.

I refer to matters such as appointments, promotions, suspensions, misconduct processes, transfers and advancements, as well as to appeals, grievances and other reviews of employment decisions. To enable action to be completed, regulations will be made to ensure the continuation of those processes after the new Act is proclaimed.

The validation of actions and decisions taken under the current Act will be, largely, dealt with in regulations.

With respect to the consequential amendments, the Acts specified in Schedule 1 to this Bill will be amended or repealed as set out in that Schedule. The amendments can be divided into the following categories:

changes in the current provisions relating to staffing to reflect the new employment framework;
removal of obsolete references to the Public Service Board;
consequential amendments to the superannuation legislation, but without any changes in the operation of the schemes;
changes to the role of the Remuneration Tribunal in relation to the remuneration and allowances for Secretaries;
removal of cross-references to reciprocal mobility which will now be dealt with by directions by the Public Service Commissioner;
removal of references to the old mobility arrangements set out in Part IV of the current Act;
standard translations for common terms in the current Act; and
other miscellaneous amendments to ensure appropriate links to the new APS employment framework.

The Bill also amends the current arrangement of linking Members of Parliament salaries to the salaries of Senior Executive Service officers in the APS in recognition of the devolved salary setting arrangements now applying in the APS.

Under the new arrangements the annual salary of Members of Parliament will now be linked to either the minimum annual rate of salary payable to an SES employee with a classification of SES Band 2, or some other reference salary within the determining jurisdiction of the Remuneration Tribunal.

Subject to any special requirements in relation to particular consequential amendments, this Bill will commence on the same day as the Public Service Act 1999. Where this Bill amends an Act which has not yet commenced, the amending provision in the Schedule to this Bill will commence immediately after the commencement of that other Act. Where this Bill amends a section in another Act and the section has not yet commenced, the amending provision in the Schedule to this Bill will commence immediately after the commencement of that amended section.

The proposed legislation has no financial impact.

Collectively the arrangements proposed in this Bill will provide the necessary certainty and continuity of administrative and management arrangements for the Australian Public Service. They will enable an orderly devolution of employment powers in the APS and a transition to a less regulated workplace.

I commend the Bill to the Senate.


The bill which I have just presented provides, for the first time, for the establishment of a separate Parliamentary Service, independent of the Australian Public Service but drawing on the same professional values.

The proposed Parliamentary Service will consist of the staff required to support the operations of the Houses of the Australian Parliament. The staff are currently employed under the generic Public Service Act 1922, the same act which provides support for the executive arm of government.

Establishing a separate Parliamentary Service with its own legislation will reinforce the principle that the legislative branch of government is separate from the executive branch and that its staff are responsible to the Houses of the Australian Parliament rather than to the government of the day.

The underlying philosophy and framework of these two services, however, will be consistent. This will foster mobility between them so that both can learn from each other.

The Parliamentary Service Bill 1999 follows as far as possible the philosophy, content and structure of the Public Service Bill 1999. That bill changes significantly the structure and management of Public Service employment. It is less prescriptive and centralised and places responsibility and accountability more squarely with the operating agencies. To enable this, it also provides greater flexibility to those agencies.

To this end, the Parliamentary Service Bill provides for a Parliamentary Service code of conduct and for Parliamentary Service values. These are similar in philosophy to the code of conduct and values in the Public Service Bill 1999, but differ in the recognition of the Parliamentary Service's accountability to the Houses of the Parliament rather than to the executive government. A key value common to both bills is that employment decisions must be based on merit.

The Parliamentary Service Bill provides for the creation of a new office of Parliamentary Service Commissioner with a role similar to that of the Public Service Commissioner. The Parliamentary Service Commissioner will advise the Presiding Officers on management practices and policies of the Parliamentary Service and, if requested by the relevant Presiding Officer, investigate and report on specific issues.

While the bill provides that the Parliamentary Service Commissioner is to be appointed separately and independently by the Presiding Officers, it is expected that, in the normal course of events, the same person will be both Parliamentary Service Commissioner and Public Service Commissioner. This is provided for in the bill and will assist in ensuring general compatibility and consistency between the two services. However, the bill specifically provides that the Parliamentary Service Commissioner cannot be subject to direction by the executive government in relation to the Parliamentary Service.

Under this bill the Presiding Officers will, in broad terms, have the same employment powers as those proposed for ministers under the Public Service Bill 1999. Those powers will be exercised after considering advice from the Parliamentary Service Commissioner.

The Presiding Officers will have the power to give secretaries of parliamentary departments, including the Clerks of the Houses, general directions relating to the leadership and management of the Parliamentary Service. However, secretaries may not be directed in the exercise of their powers in respect of specific individuals in the parliamentary departments.

Consistent with the need to preserve the independence of the Clerks as impartial advisers, the Clerks are not to be subject to direction from the Presiding Officers in relation to advice provided to either House, members and senators or parliamentary committees. Secretaries of the parliamentary departments are to have the same employment powers as those proposed for secretaries of executive departments under the Public Service Bill 1999.

The Parliamentary Service Bill provides for the appointment, tenure and termination of secretaries of parliamentary departments. There are transitional arrangements to ensure the continuation in office of the current secretaries. Tenure for the Clerks of the Houses will be of one, non-renewable, 10-year period. The bill stipulates the conditions for earlier termination of a Clerk's appointment by the relevant House.

Other secretaries will be appointed for five years. These appointments will be renewable. Termination arrangements for these positions will be similar to those proposed for secretaries of executive departments under the Public Service Bill 1999.

As indicated earlier, the bill provides for unfettered mobility, without loss of accrued entitlements, between the Parliamentary Service and the Public Service.

The bill incorporates amendments made in the House of Representatives to make it consistent with the Public Service Bill 1999 following amendments to that bill in the House. The amendments made 7 principal changes to the bill, as first introduced. They are to, firstly, introduce four new Parliamentary Service values to emphasise equity in employment, access to employment and the career-service nature of the Parliamentary Service and underpin a framework for review of employment related decisions; secondly, to revise the wording of some Parliamentary Service values to highlight the diversity of the Australian community, to stress that accountability must be open and to recognise the contributions of Parliamentary Service employees; thirdly, give a greater role to the Parliamentary Service Commissioner in relation to advice to the Presiding Officers flowing from values and in relation to directions establishing processes for investigation of breaches of the Parliamentary Service code of conduct; fourthly, require that departmental and commissioners' annual reports conform with guidelines issued by the Joint Committee of Public Accounts and Audit; fifthly, create an advisory role for the Remuneration Tribunal in relation to salaries for statutory office holders and departmental heads; sixthly, require that a range of Presiding Officers directions, principally remuneration related, be tabled and published in the Gazette; and, seventhly, create three categories of Parliamentary Service employment, namely, ongoing, fixed term and intermittent. There were also some minor and consequential amendments made.

In conclusion, I refer to the first object of this bill, that is, to establish a non-partisan Parliamentary Service which is efficient and effective in serving the Houses of the Parliament. The bill provides an employment framework consistent with that proposed for the Public Service generally. It emphasises professionalism and cost effectiveness in the provision of services.

This bill provides the Houses with a set of arrangements which will continue to attract and provide careers for those staff able to deliver the high standard of service which the Houses currently enjoy.

I commend the bill to the Senate.