Claire Clutterham (Sturt, Australian Labor Party) Share this | Hansard source

I rise today to speak in support of the Commonwealth Entities Legislation Amendment Bill of 2026, but I do start by thanking the member for Riverina for his very kind words. I also talked politics with my dad non-stop, and both of us shared a great love for our wonderful democracy and our parliamentary system, and a respect for those who put their hand up for public work. I also will do my best to address some of the concerns the member for Riverina raised during his remarks, particularly with respect to the watering down of ministerial powers which, with respect, I don't accept is happening with respect to this bill.

The purpose of the bill is to amend appointment, suspension and termination arrangements for statutory office holder positions that lead four Commonwealth entities: Australian Centre for International Agricultural Research, Australian Trade and Investment Commission, Australian Safeguards and Non-Proliferation Office, and my favourite, the Office of Parliamentary Counsel. This objective is being achieved to update and clarify integrity and accountability settings for certain statutory office holders, just as in the Foreign Affairs and Trade and Attorney-General's portfolios. It does so by reforming the statutory framework for appointment, suspension and termination.

The intent is to reflect modern community and workplace expectations for Commonwealth officials. These are primarily governed by the Public Service Act 1999 for Australian Public Service employees, and also the Public Governance, Performance and Accountability Act for all officials. These quite rightly set very high standards of integrity, professionalism and accountability. Officials are expected to behave honestly, act with care and diligence, disclose conflicts of interest and use Commonwealth resources properly. The Australian public demands this, and the Australian public deserves this.

In terms of the operation of the bill, there are two schedules. Schedule 1 amends a number of acts—the Australian Centre for International Agricultural Research Act, the Australian Trade and Investment Commission Act and the Nuclear Non-Proliferation (Safeguards) Act—to reflect community expectations of Commonwealth statutory office holders and reflect modern workplace standards. In addition, it expands and clarifies the grounds on which the appointments of the statutory heads of those agencies may be terminated. There are new discretionary grounds for termination. These include serious misconduct and unsatisfactory performance, which I think most reasonable Australians would consider to be fair enough, given serious misconduct would include serious breaches of the Australian Public Service Code of Conduct; unlawful discrimination; serious or repeated bullying or harassment; and corrupt conduct, which may result from breaches of public trust, abuse of office as a statutory office holder, misuse of information gained in the capacity of their role, or if the person does something that adversely affects a public official's honest or impartial exercise of powers or performance. Corrupt conduct is defined in section 8 of the National Anti-Corruption Commission Act 2022.

The Australian Public Service Code of Conduct, to which agency heads and statutory office holders are bound—what is actually in it? It can be found in section 13 of the Public Service Act 1999. It requires employees to behave honestly and with integrity in connection with APS employment, and to operate with truthfulness, sincerity and frankness. The code prevents employees from improperly using inside information or the employee's duties, status, power or authority to gain, or seek to gain, a benefit or an advantage for the employee or any other person. It also requires employees to act with care and diligence in connection with their APS employment, and for the employee to treat everyone with respect and courtesy, without harassment and in compliance with all applicable Australian laws.

Compliance and breaches are determined by reference to an objective standard following a lengthy and transparent process which is underpinned by procedural fairness. This is one of the concerns the member for Riverina raised in his remarks, but there is a clear and transparent process underpinned by due process and characterised by procedural fairness, with significant opportunities for response and engagement.

There are some reasonable exceptions to the objective standard, such as if an employee has a level of experience or any specialised skills or training that they might have received which may mean they ought to have had a higher degree of awareness about their conduct. So, in addition to termination of a statutory office holder's role on this basis, the bill would also enable the minister to suspend the appointments of the statutory heads of the agencies in question for a maximum period of 12 months. This is not a watering down of the minister's powers; it is putting power in the hands of the minister.

The initial period of suspension would be capped at three months, but it can be extended for more than three months and up to a total duration of 12 months in certain circumstances. The minister has the power for the first three months of suspension and then may consult with the Prime Minister or cabinet for any suspension with a total duration of longer than three months. This approach aligns with the expectation as set out in the Department of the Prime Minister and Cabinet's Cabinet Handbook when seeking approval for acting arrangements for significant office holders. This is a necessary power. It's not unchecked, but it's a necessary power in the hands of the minister that is appropriately filtered by time requirements and by consultation requirements.

The final element of schedule 1 to the bill is that the new maximum term of appointment for the CEO of the Australian Centre for International Agricultural Research and other agencies would be five years, which is contemporary. It is very similar to the length of time CEO's stay in listed entities in the private sector. It is contemporary and is reduced by the current arrangements by only two years.

Then we have schedule 2. This schedule will amend to the Parliamentary Counsel Act 1970 to insert new ministerial directions power—again, this is not a watering down of ministerial power; this is a new ministerial power—and to ensure appointment provisions for the Office of Parliamentary Counsel reflect modern community standards and expectations of Commonwealth statutory office holders.

The Office of Parliamentary Counsel is responsible for drafting and publishing the laws of the Commonwealth of Australia. This is significant. It also publishes legislation, maintains the Federal Register of Legislation and provides training in relation to drafting and Commonwealth legislative processes. It's led by statutory office holders who are appointed by the Governor-General to draft and publish Commonwealth laws, and these office holders are the First Parliamentary Counsel and the Second Parliamentary Counsel. These are roles that are established under the Parliamentary Counsel Act 1970.

Schedule 2 contains another new power for the minister—not a watered down power, a new power. This is in relation to giving written directions of a general nature to the Office of Parliamentary Counsel about the performance of its functions. Then, like schedule 1, the new maximum term of appointment for the First Parliamentary Counsel and Second Parliamentary Counsel is five years. Again, it is a contemporary approach which is very much reflective of the private sector and other offices of similar function in the public sector.

With respect to termination, the bill expands and clarifies the grounds on which the appointment of Office of Parliamentary Counsel statutory office holders may be terminated. These grounds would remain mandatory in respect of bankruptcy related issues, but the new list of discretionary grounds for termination comprise conviction of an indictable offence, physical or mental incapacity, serious misconduct, unsatisfactory performance, absence from duty in certain circumstances, engaging in paid work outside official duties without the consent of the minister—another power of the minister—and failing to disclose interests under the Public Governance, Performance and Accountability Act.

Like schedule 1 serious misconduct pursuant to schedule 2 includes serious breaches of the APS Code of Conduct, unlawful discrimination, serious or repeated bullying or harassment, and corrupt conduct. These expanded provisions are entirely appropriate and reflect community standards and expectations for statutory office holders who are carrying out the type of critical work that is performed by the Office of Parliamentary Counsel.

From a human rights perspective, bills of this nature necessarily engage with human rights. In this case, the bill engages with the right to work and rights in work under article 6 of the International Covenant on Economic, Social and Cultural Rights and the right to a fair hearing pursuant to article 14 of the International Covenant on Civil and Political Rights.

With regard to the right to work, the new expanded grounds for termination—serious breaches of the code of conduct; bankruptcy; corrupt conduct; conviction of a serious indictable offence; mental or physical incapacity; serious misconduct; unsatisfactory performance; absence from duty in certain circumstances; engaging in paid work outside official duties without the consent of the minister; and failing to disclose interests in accordance with the PGPA Act—are proportionate, necessary and reasonable. They are proportionate to the need to protect and promote integrity and public confidence in the work that statutory office holders are doing. They are also consistent with the termination provisions under other Commonwealth statutes governing statutory office holders. Reasonable Australians would expect that statutory office holders with management responsibilities would be removed from the workplace by terminating their employment where their behaviour created an unsafe working environment—for example, through bullying or harassment, or where trust and confidence is irretrievably gone because of a failure to disclose a disclosable interest.

Further, the minister's powers of suspension for the statutory heads of the agencies in question also engages the right to work and rights in work. These are also proportionate, reasonable and necessary in order to promote the right to safe working conditions by staff, and they will operate to protect the health, safety and welfare of employees in those offices. The new powers are also consistent with suspension clauses in other Commonwealth statutes for statutory office holders.

In relation to the engagement of fair hearing rights under article 14 of the International Covenant on Civil and Political Rights, the bill does not alter any of the existing procedural fairness requirements that would already apply in relation to any termination decision under any of the acts that would be amended by this bill, and the new and expanded grounds for termination will also be subject to procedural fairness requirements. I can confidently say that the member for Riverina's concerns about procedural fairness can be put to rest because there is a serious degree of procedural fairness and due process already afforded. This legislation brings the system into line, as already set out in other acts.

This bill does not seek to impose onerous or unfair requirements or processes on statutory office holders just because of their position, which is another nod to fairness. Instead, it recognises the significance of being a statutory office holder appointed by the Governor-General and demands the highest standards of personal integrity be practised in recognition of that. Australians quite rightly expect this of each other, and they certainly expect it of their office holders. This bill brings expectations for the relevant statutory office holders in line with other existing frameworks and with community expectations. I commend the bill to the House.

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