Parliamentary Service Amendment Determination 2008/1
Explanatory statement
Circulated by authority of the Presiding Officers
Subsection 71(1) of the Parliamentary Service Act 1999 (the Act) empowers the Presiding Officers, after consulting the Parliamentary Service Commissioner (the Commissioner), to make determinations. Those determinations may prescribe matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act. This Determination was made by the Presiding Officers after they had consulted the Commissioner.
Subsection 11(1) of the Act requires the Commissioner to give advice to the Presiding Officers about the Parliamentary Service Values. Subsection 11(2) requires the Presiding Officers to issue written determinations in relation to the Values, having regard to the advice from the Commissioner. Subsection 11(3) requires the Presiding Officers to have the Commissioner’s advice about the Values tabled in each House of the Parliament.
Purpose and Scope of Determination
The purpose of this Determination is to amend Parliamentary Service Determination 2003/2 to:
(a) replace the provisions relating to disclosure of information by Parliamentary Service employees;
(b) change the arrangements applying to the re-engagement of a person who has resigned from the Parliamentary Service to contest an election, is unsuccessful, and seeks re-engagement;
(c) resolve a problem with the application of the merit principle to employment decisions other than decisions relating to engagement and promotion;
(d) following the passage of the Parliamentary Service Amendment Act 2005, include references to the Parliamentary Librarian, where required;
(e) make changes to terminology affected by the Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations 2006 and the Workplace Relations Amendment (Transition to Forward to Fairness) Act 2008, including additional Dictionary definitions;
(f) add a definition of Gazette to the Dictionary to include the electronic APS Employment Gazette;
(g) repeal two transitional and consequential determinations made at, or soon after, the commencement of the Act; and
(h) make technical amendments and rectify typographical errors.
Regarding item (c) in the paragraph above, the Commissioner, in advising the Presiding Officers about this determination, noted the proposed amendment to the application of the merit principle and indicated that she had no objection. A copy of the Commissioner’s letter to the President of the Senate is attached to this statement.
Background
Parliamentary Service Determination 2003/2 is the principal determination of terms and conditions of employment of Parliamentary Service employees.
Disclosure of information
Section 13 of the Act sets out the Parliamentary Service Code of Conduct. The Code applies to all Parliamentary Service employees, Secretaries and certain statutory office holders. A Secretary may impose sanctions on an employee under subsection 15(1) where it is found that a breach of the Code has occurred.
Subsection 13(13) of the Act says that a Parliamentary Service employee must comply with any other conduct requirements made by either House of the Parliament or by determinations. Clause 2.3.1 of Determination 2003/2 is the only determination made for the purposes of subsection 13(13) of the Act. It provides that:
Parliamentary Service employees must not, directly or indirectly, give or disclose to any person any information about the affairs of any other person or body which they acquire in the course of their employment unless:
(i) they are required to do so in the course of their duties; or
(ii) they have the Secretary's express authority to do so.
Clause 2.3.1 of Determination 2003/2 is the same in effect as Public Service Regulation 2.1, as made when the Act and the Public Service Act 1999 (the PS Act) commenced in December 1999. The case of Bennett v the President, Human Rights and Equal Opportunity Commission, [2003] FCA 143 cast doubt on the validity of Public Service Regulation 2.1 and the regulation was replaced by a new regulation in December 2004. However, that regulation was disallowed by the Senate and a further, revised, regulation was made in July 2006.
The proposed new clause 2.3.1 of Determination 2003/2 is based on the new Public Service Regulation 2.1 and is adapted to have a similar effect in respect of parliamentary service to the effect that Regulation has in respect of government service. However, it departs from Regulation 2.1 in not incorporating an equivalent of subregulation 2.1(3) which states that “An APS employee must not disclose information which the APS employee obtains or generates in connection with the APS employee’s employment if it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs”. This APS provision has not been adopted because it is considered that the circumstances of Parliamentary Service employment do not warrant such a provision.
Re-engagement after contesting elections
Part 4 of Determination 2003/2 deals with arrangements applying to the re-engagement of a person who has resigned from the Parliamentary Service to contest an election, is unsuccessful, and seeks re-engagement.
Clause 4.2 of Determination 2003/2 relates to arrangements for re-engagement following resignation to contest an election. The proposed amendment, in line with amendments to equivalent Public Service Regulations, clarifies to whom a person may apply for re-engagement if the functions the person performed before resigning have been transferred to another department.
The proposed amendments to clause 4.3 seek to reduce the scope for challenge, under section 44 of the Constitution, to the election to the Parliament of a Parliamentary Service employee who resigns and successfully contests an election.
Subsection 44(iv) of the Constitution provides, in part, that a person who holds an office of profit under the Crown is incapable of being chosen, or of sitting, as a Senator or Member of the House of Representatives.
Section 32 of the Act provides that, if a person resigned as a Parliamentary Service employee to contest an election prescribed by the determinations, then, subject to certain conditions, the person is entitled to again be engaged as a Parliamentary Service employee. Existing subclause 4.3(6) of Determination 2003/2 provides, in respect of a person engaged again under section 32, that the period between the person’s resignation and re-engagement counts as service for the accrual of leave entitlements.
Following advice from the Australian Government Solicitor that the recognition of the relevant period as service for leave accrual presented a potential avenue of constitutional challenge to the election of a former Australian Public Service employee, the relevant Public Service Regulations were amended in June 2004.
Section 32 of the Act and Part 4 of Determination 2003/2 are identical in effect to the relevant provisions of the PS Act and Regulations (prior to the amendment of the latter).
The proposed Determination amends the provisions in subclause 4.3(6) of Determination 2003/2 for re-engagement of former Parliamentary Service employees covered by section 32 so that the period between resignation and re-engagement will no longer count as service for leave accrual purposes.
Because there is no reference to entitlements other than leave in existing subclause 4.3(6), the period of absence to contest an election could break the continuity of a person’s service for the calculation of redundancy pay. To rectify this, the amendment will also provide that the period, while not counting as service for leave accrual, will not break the continuity of service for the purpose of calculating leave entitlements and redundancy pay.
The amendments to clause 4.3 will have the same effect as the 2006 amendments made to the Public Service Regulations.
Merit in employment decisions other than engagement and promotion
Parliamentary Service Value 10(1)(f) requires employment decisions in the Parliamentary Service to be based on merit. Subsection 10(2) of the Act sets out the requirements that must be met to satisfy this requirement in relation to decisions on the engagement and promotion of employees. In the case of engagements and promotions, the relative suitability of candidates must be assessed, using a competitive selection process. The Act is silent on any merit requirement for other moves such as transfers of employees at level and temporary transfers.
Determination 2003/2 sets out at clause 3.5.7 matters that must be considered before assigning duties to an employee for a temporary period at a higher classification. The matters do not include any comparison of the employee with other employees.
The only other provision dealing with merit in employment decisions is clause 2.2.3 of Determination 2003/2 which sets out the objectives of each of the Parliamentary Service Values. Under Value 6 (paragraph 10(1)(f) of the Act, re-numbered in the Determination), clause 2.2.3 provides that comparative assessment is required for employment decisions, without indicating any exceptions.
The Parliamentary Service Determinations generally follow the intent (if not the wording) of equivalent Public Service subordinate legislation except where differences are necessary to reflect the unique character of parliamentary service and the obligation of parliamentary staff to serve the Parliament. However, the drafting of the Parliamentary Service provision mentioned above is at odds with the equivalent Public Service provision (clause 2.3 of the Public Service Commissioner's Directions) which applies comparative assessment only to decisions on engagement and promotion. The reason for the departure from the Public Service provision is unknown.
While comparative selection usually applies when temporary vacancies occur for longer periods (eg, six or twelve months), it is frequently not a practicable option when vacancies are for short periods. In these circumstances, the parliamentary departments (as well as Public Service Agencies) need flexibility to manage day-to-day staffing requirements. They also need to be able to transfer staff at level without necessarily notifying a vacancy and conducting comparative assessments. In removing the requirement for comparative assessment in cases of temporary transfer and transfer at level, the proposed amendment will align the Parliamentary Service provision with the relevant Public Service provision.
References to the Parliamentary Librarian
Determination 2003/2 has a number of provisions relating to Secretaries and many to employees. The Parliamentary Librarian, whose office was established by amendment of the Act in 2005, is neither a Secretary nor an employee. This Determination inserts references to the Librarian where required.
Changes arising from the Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations 2006 (No. 1) and the Workplace Relations Amendment (Transition to Forward to Fairness) Act 2008
The regulations mentioned made changes to terminology in the Public Service Regulations. This Determination makes similar changes to Determination 2003/2.
The Act mentioned made changes to the Parliamentary Service Act. This Determination makes consequential changes to Determination 2003/2.
Definition of Gazette
Parliamentary Service employment actions (such as engagements, transfers and promotions) requiring gazettal under the Act are published in the same Gazette as equivalent Australian Public Service (APS) actions under the PS Act. The APS has moved to an electronic APS Employment Gazette and relevant Parliamentary Service actions are now being published in that publication. An addition is made to the Dictionary to indicate that “Gazette” includes the electronic APS Employment Gazette.
Repeal of determinations
The two determinations to be repealed by the proposed Determination were consequential and transitional instruments made at, or soon after, the commencement of the Act to facilitate aspects of the transition from the employment framework under the Public Service Act 1922 to the arrangements applying from the commencement of the current Act on 5 December 1999. They are now redundant.
Impact
The financial impact of the proposed amendments is negligible.
The proposed amendment to clause 4.3 of Determination 2003/2 will have the effect of reducing entitlements of affected Parliamentary Service employees, because leave would no longer accrue in respect of the break in employment. This amendment is necessary because of the potential for constitutional challenge mentioned above. In providing that relevant absences will not break the continuity of employment for the purposes of calculating redundancy pay, it is possible that the amendment could also be beneficial to affected Parliamentary Service employees who later become redundant. However, it is unusual for parliamentary staff to resign to contest elections and, to date, the provisions of section 32 have not been applied.
Authority: Subsection 71(1) of the Parliamentary Service Act 1999.
Notes on clauses
Clause 1
This Determination is called Parliamentary Service Amendment Determination 2008/1.
Clause 2
This Determination commences on the day after it is registered on the Federal Register of Legislative Instruments.
Clause 3
Clause 3 repeals Parliamentary Service Determinations 1999/3 and 2000/3. These determinations covered transitional and consequential matters and are now redundant.
Clause 4
Clause 4 provides that Schedule 1 amends Parliamentary Service Determination 2003/2.
Schedule 1 Amendments
Item 1 Clause 2.2.1
Subclause 2.2.1 establishes the duty of the Secretary of each parliamentary department and each parliamentary employee to uphold and promote the Parliamentary Service Values. The amendment establishes that the Parliamentary Librarian also has that duty.
Item 2 Clause 2.2.3
Clause 2.2.3, in setting out the objectives of each Value, gives Secretaries certain responsibilities. The amendment extends a responsibility under Value 4 to the Parliamentary Librarian.
Item 3 Clause 2.2.3
Objective (1) under Parliamentary Service Value 6 set out under clause 2.2.3, in addition to stating that employment decisions are based on merit, requires an assessment of a person’s work-related qualities and the work-related qualities required for the job to be made in all cases, and mentions the further assessments set out in subsection 10(2) of the Act and minimum requirements set out in Determination 2003/2 that apply to decisions on engagements and promotions.
Item 4 Clause 2.3.1
Subclause 2.3.1(1) makes clear that clause 2.3.1 is made for the purposes of subsection 13(13) of the Act. Section 13 deals with the Parliamentary Service Code of Conduct; subsection 13(13) requires Parliamentary Service employees to comply with any other conduct requirement made by either House of the Parliament or by determinations.
Subclause 2.3.1(2) makes clear that the clause does not affect other restrictions on the disclosure of information. Such restrictions may be created by legislation such as the Crimes Act 1914 or the common law, eg the implied common law duty of loyalty and fidelity.
Subclause 2.3.1(3) prohibits disclosure of information by a Parliamentary Service employee which the employee obtains or generates in connection with his or her employment if the information was, or is to be, confidential to the Presiding Officers of the Parliament, committees of the Houses or joint committees, Senators and Members or the parliamentary departments or was received in confidence from a person or persons outside the Parliament or the Parliamentary Service. The prohibition applies whether or not the disclosure would found an action for breach of confidence.
In the application of clause 2.3.1, information will be taken to be communicated in confidence where an employee is given the information on the understanding that it should not be disclosed except in the course of official duties or where the nature and context of the information makes it clear that the information should not be disclosed except in the course of official duties.
Information will be taken to be received in confidence from a person or persons outside the Parliament where the information is subject to an express confidentiality provision (whether in a contract or otherwise) and in other circumstances where it is clear that the information is provided on the basis that it is to be used only for the purpose for which it is provided.
The scope of subclause 2.3.1(3) is substantially limited by subclause 2.3.1(4).
Subclause 2.3.1(4) does not prevent a disclosure of information by a Parliamentary Service employee in certain circumstances. Information may be disclosed if the disclosure is in the course of the employee's duties, in accordance with an authorisation by a Secretary or the Parliamentary Librarian, or otherwise authorised by law (eg the Freedom of Information Act 1982 or the Archives Act 1983 or under the whistleblowing provisions of Determination 2003/2).
Under subparagraphs 2.3.1(4)(d)(i) and (ii), information may also be disclosed where it is already in the public domain as the result of a lawful disclosure. For instance, information in a report subject to embargo could be disclosed once the embargo had ceased. However, this exception would not apply if disclosure would have the effect of expressly or impliedly disclosing other information to which subclause 2.3.1(3) applied.
Clause 2.3.1 is not designed to regulate the disclosure of official information comprehensively. Rather, it is intended to operate alongside other provisions and obligations, such as any lawful and reasonable direction given by someone in the employee’s department who has authority to give the direction. Subclause 2.3.1(5) makes it clear that the clause does not limit the authority of a Secretary to give such lawful and reasonable directions limiting or permitting the disclosure of information held by the department.
Subclause 2.3.1(6) is intended to ensure that nothing in clause 2.3.1 affects the provision of advice to a House, a committee or a Senator or Member by a Parliamentary Service employee for the purposes of the performance of duties or the functions of a House, committee or a Senator or Member.
The Note to the clause states that, under section 70 of the Crimes Act 1914, it is an offence for an APS employee to publish or communicate any fact or document which comes to the employee’s knowledge, or into the employee’s possession, by virtue of being a Commonwealth officer, and which it is the employee’s duty not to disclose. Clause 2.3.1 creates such a duty.
Items 5 and 6 Clause 2.3.3
Clause 2.3.3 establishes a procedure for handling allegations about breaches of the Code of Conduct by Secretaries (who are not covered by the Parliamentary Service provisions for determining alleged breaches of the Code by employees). The amendments to the heading and text of the subclause extend that procedure to allegations about breaches of the Code by the Parliamentary Librarian.
Item 7 Clause 2.4.1
The note mentions protection from victimisation or discrimination for people making whistleblowers reports to specified office holders. The purpose of this item is to clarify that the protections also apply when reports are made to authorised persons, as well as office holders.
Items 8 and 9 Clauses 2.4.3 and 2.4.7
Clauses 2.4.3 and 2.4.7 are about the office holders and other authorised persons to whom whistleblower reports may be made. These items add to the respective headings a reference to section 16, which enables authorisations of persons to whom reports may be made.
Item 10 Subclause 3.3.5(3)
This amendment corrects a typographical error.
Item 11 Subclause 4.2(1)
Subclause 4.2(1) deals with applications for re-engagement after contesting elections. The purpose of this item is to clarify to whom a person may apply for re-engagement if the functions the person performed before resigning have been transferred to another department.
Item 12 Subclause 4.3(6)
This item amends existing subclause 4.3(6) and adds a new subclause 4.3(7).
Subclause 4.3(6) provides that the period between a person’s resignation to contest an election and re-engagement after contesting the election unsuccessfully counts as service for the purpose of leave accruals. The item amends subclause 4.3(6) so that the period does not count as service but is taken not to have broken the continuity of the person’s service for purposes mentioned in new subclause 4.3(7).
Proposed subclause 4.3(6) recognises the primacy of the long service and maternity leave legislation through the inclusion of a Note which explains that the Long Service Leave (Commonwealth Employees) Act 1976 and the Maternity Leave (Commonwealth Employees) Act 1973 establish entitlements in relation to these two forms of leave.
Item 13 Subclause 5.2(2)
Clause 5.2 provides that, if an employment arrangement sets out procedures for the termination of a non-ongoing employee, any termination must be in accordance with those procedures unless the procedures are prohibited content within the meaning of the Workplace Relations Act 1996 or would be prohibited content within the meaning of that Act if the employment arrangement were a workplace agreement.
Item 14 Paragraph 7.5.1(1)(a)
This item rectifies an incorrect reference in the existing subclause.
Items 15 and 16 Clause 10.1
Clause 10.1 defines certain words for the purposes of the attachment of salaries to satisfy judgment debts. These items include the Parliamentary Librarian in definitions of “creditor” and “debtor”.
Item 17 Subclause 11.1(3)
Subclause 11.1(3) enables SES employees (or acting SES employees), to whom a Secretary has delegated powers conferred by a determination, to further delegate those powers. The amendment extends this facility to the Parliamentary Librarian (or acting Librarian).
Item 18 – 20 Dictionary
These items add definitions of Australian Fair Pay and Conditions Standard, AWA, award and employment arrangement to reflect the current terminology of the Workplace Relations Act 1996.
Item 21 Dictionary
This item adds a definition of Gazette which includes the electronic APS Employment Gazette.
Item 22 Dictionary
This item adds a definition of Parliamentary Librarian.
Items 23 and 24 Dictionary
These items add definitions of pre-reform AWA, pre-reform certified agreement and workplace agreement to reflect the current terminology of the Workplace Relations Act 1996.