Thursday, 1 March 2012
Public Service Amendment Bill 2012; Second Reading
That this bill be now read a second time.
This bill makes amendments to the Public Service Act 1999.
On 8 May 2010, the then Prime Minister announced that the government had accepted all of the recommendations made in the earlier report, Ahead of the game: blueprint for the reform of Australian government administration.
This report, the blueprint, outlined a comprehensive reform agenda to position the Australian Public Service to better serve the Australian government and the Australian community. It is an agenda that requires modernisation of the Public Service Act, bringing it into line with contemporary needs.
The amendments in the bill will strengthen the management and leadership of the Public Service and help to embed new practices and behaviours into its culture. The bill recognises that the delivery of high-quality services and policy advice requires effective and committed leadership, supported by a Public Service that is efficient, driven by its desire to serve the community, and contemporary in its outlook.
Strengthen the leadership of the APS
Part 1 of schedule 1 to this bill provides for a clearer articulation of the roles and responsibilities of secretaries, particularly in relation to their stewardship of the Australian Public Service. The revised descriptions clarify the service and performance expected of secretaries and strengthen secretaries' accountability to ministers in performing their roles and discharging their responsibilities.
The amendments restore the arrangements which operated prior to 1999. The amendments provide for appointment and termination decisions of secretaries to be made by the Governor-General, on the recommendation of the Prime Minister, following receipt of a report from the secretary of the Prime Minister's department in consultation with the Public Service Commissioner.
The minimum length of a secretary's appointment will be five years—unless the secretary requests otherwise. This provides for continuity of leadership and strengthens the integrity of the appointment process.
The amendments will make it easier to draw on the talents and experience of former secretaries by allowing the Prime Minister to engage former secretaries who have resigned or whose appointment has expired to perform specified duties under terms and conditions agreed by the Prime Minister. The intention is not to extend the tenure of secretaries, but rather give the Prime Minister the option not currently available to make use of the talents of former secretaries in ways that benefit good public administration.
Part 2 of schedule 1 to this bill creates the Secretaries Board, comprised of the secretary of each department and the commissioner. The Secretaries Board, which replaces the Management Advisory Committee, will identify strategic priorities for the APS and take responsibility for its stewardship.
Part 3 of schedule 1 to this bill amends the role of the Senior Executive Service to strengthen APS leadership by expanding the descriptors of Senior Executive Service leadership responsibilities, supporting collaboration and the development of whole-of-government responses to issues.
Modernise and clarify the functions of the Public Service Commissioner
Part 4 to schedule 1 of this bill modernises the functions of the Public Service Commissioner.
The bill specifically recognises the commissioner's role as the central authority for APS workforce development and reform, an authority that will take a leading role in ensuring that the service has the organisational and workforce capability to meet future needs.
The commissioner will have three broad functions:
A new function will allow the commissioner to undertake those tasks and responsibilities which are issue-specific or which may change over time.
Review and inquiry functions
The commissioner has extensive powers to undertake reviews or inquiries which were introduced with the 1999 act, including in certain circumstances the ability to exercise the same information-gathering powers as are available to the Auditor-General. The bill provides more detail on how reviews may be initiated and reported.
In particular, the commissioner will be able to undertake a 'systems review' or a 'special review' in specific circumstances.
'Systems reviews' will allow the commissioner to review and report on the management and organisational systems, structures and processes of an APS body, or the functional relationship between two or more bodies. These powers do not derogate from the inquiry functions of other statutory officers and it will be a matter for government as to who is the most appropriate entity to conduct a review.
By contrast, 'special reviews' will be able to be initiated only at the direction of the Prime Minister. While it is expected that special reviews will be uncommon, the bill makes clear such a review is available to government in those rare circumstances where the public interest demands it. The commissioner's information-gathering powers under section 43 of the act will be available for special reviews.
To augment the capacity of the commissioner to conduct reviews and call on specialised knowledge, the bill provides for the appointment of special commissioners by the Governor-General to assist in undertaking all or part of a systems or special review and report through the commissioner.
Agency head code of conduct
Under the Public Service Act, the commissioner has a specific power to inquire into alleged breaches of the code of conduct by agency heads and report to the appropriate authority on the results of such inquiries.
Unlike the discretion available to agency heads in respect of APS employees, there is little scope for the commissioner to conduct a preliminary assessment before launching a formal inquiry. To remedy this, the bill provides a regulation-making power to prescribe the circumstances in which the commissioner may exercise discretion to decline to conduct an inquiry into alleged breaches of the code by agency heads, or to discontinue an inquiry without invoking the reporting requirements. This element of discretion is desirable to deal with trivial or futile matters or matters that have previously been dealt with.
APS employee code of conduct
Currently, the responsibility for investigating and determining breaches of the code of conduct by APS employees rests with agency heads. On occasion agency heads have wanted the commissioner to conduct an independent investigation into suspected misconduct by one or more of their own employees. This is typically when public interest concerns raised by a particular allegation make it desirable that matters are investigated and determined by an authority that is both expert and independent.
The bill proposes that the commissioner will have a new function to determine alleged breaches of the code by APS employees. This function will be triggered when requested by the agency head or by the Prime Minister. The commissioner may decline to conduct such an investigation.
Revise the APS Values and introduce APS Employment Principles
Part 6 of schedule 1 to this bill revises the APS Values and introduces a set of APS Employment Principles.
The values and the employment principles are statements about the essential character and philosophy of the APS. They define what the APS is, and how it should operate.
The proposed values—that the APS is committed to service, is ethical, respectful, accountable and impartial—are more succinct and memorable, easy to understand, and will help the service to create an ethical, high-performance culture.
The values and employment principles together capture the essence of the existing 15 values, blending contemporary ethics with enduring principles of public administration that go to the heart of the Westminster model. No important concepts have been lost.
Agency heads and APS employees will, by law, be required to uphold the values and the employment principles. Agency heads and Senior Executive Service employees will also be required to promote them, reflecting the key responsibility that they have as leaders within their agencies to set the tone for the right culture.
Technical and operational amendments
The bill also contains a number of other, largely technical, amendments aimed at more effective management of the service. These amendments reflect the experience of working with the act over the last 12 years.
Part 7 of schedule 1 of this bill relates to the handling of misconduct in the Australian Public Service.
The bill provides for amendments to the Code of Conduct so that its first four elements will apply when there is a direct connection with the employee's employment.
Other amendments to the code or provisions for handling misconduct will allow agencies to deal more effectively and efficiently with other unacceptable behaviour.
The bill also provides for a misconduct investigation to be finalised after an employee has separated from the APS, providing more certainty for agencies in making it less attractive for employees who are under investigation to resign before a finding is made, as many employees in this situation currently do.
The act currently provides protection for whistleblowers in the APS. The regulations provide the framework under which whistleblower reports are handled.
The bill makes two small amendments to the scheme. It provides a specific regulation-making power and allows for matters to be excluded from inquiry, including those that relate to an employee's own employment. Such complaints are better directed to the existing review of action scheme.
Temporary APS employees
Part 10 of schedule 1 of this bill simplifies the operation of the temporary employment provisions by providing only for two categories of employees—that is, ongoing and temporary—and moving the subcategories of temporary employees currently in the act into the regulations.
The principle that ongoing employment is the usual basis for engagement will be retained.
Machinery-of-g overnment changes
Part 11 of schedule 1 of the bill improves the operation of the machinery-of-government provisions by providing the commissioner with discretion to determine whether employment related matters can continue following a machinery-of-government change.
The bill also makes clear that the power to move staff out of the APS in order to give effect to a machinery-of-government change covers those non-APS Commonwealth bodies that do not have separate legal identity, such as the Australian Federal Police.
Confidentiality of information, privacy and immunity from suit
Part 12 of schedule 1 to this bill provides protections for an agency head or APS employee who provides information voluntarily to the commissioner or merit protection commissioner in the course of the exercise of their review and inquiry functions.
Part 13 of schedule 1 to this bill moves the immunity from suit provisions from the regulations to the act and provides consistency in the functions which attract immunity.
The act will provide that regulations may be made to authorise, by law, the use as well as disclosure of personal information in certain circumstances. This reduces the uncertainly expressed by many APS agencies as to their capacity to use personal information relating to employees for a range of purposes in managing their staff.
Part 14 of schedule 1 of this bill rationalises the subordinate instruments under the act. The commissioner's direction-making power has been expanded to allow directions on employment matters relating to all APS employees, such as engagement, promotion, redeployment, mobility, training schemes and termination.
The matters set out in the Prime Minister's Public Service Directions will be moved to the Commissioner's Directions under the consolidated power. The Commissioner's Directions will be legislative instruments, registered in accordance with the Legislative Instruments Act 2003, correcting an oversight when the act was introduced.
The classification rules, which prescribe a service-wide framework for the classification of APS employees, will be made by the Public Service Commissioner, reflecting the movement of this function from the Department of Education, Employment and Workplace Relations to the commission in July 2010.
Parts 9 and 15 of schedule 1 to this bill improve the operation of the act by making a range of other minor technical amendments.
Schedule 2 of this bill repeals the Public Employment (Consequential and Transitional) Amendment Act 1999. This act was the accompanying legislation to the current act when it was introduced in 1999 and is now largely redundant, although some provisions will be retained through regulations.
Schedule 3 to this bill makes a number of consequential amendments to other acts.
Schedule 4 to this bill puts in place a number of application, saving and transitional provisions to ensure the continuity of certain matters, such as investigations, reviews or inquiries in progress.
In summary, this bill responds to the reform agenda of the blueprint by implementing significant reforms relating to the leadership of the Australian Public Service.
It is important that the Public Service legislation supports a service which is fit for purpose, meeting the legitimate needs of the government of the day both now and into the future.
This bill provides for a modern, contemporary employment framework that will allow greater agility and responsiveness by the APS to the community and to the government. It will result in greater efficiency and more effective use of Commonwealth resources. It will also facilitate and accelerate the cultural shift towards operating more effectively as 'one Australian Public Service'.
I commend the bill to the House.