The circumstances leading to establishment of the Public Service Commission in September 1987 were outlined in Chapter 6 of this history.
In the Senate Second Reading Speech on the then Administrative Arrangements Bill 1987, Minister Button indicated that the initial enabling legislation for the Commission (and for implementing related government decisions) would be followed up with further legislation, to give full effect to the government’s intentions for distribution of the former Public Service Board’s powers (PD Senate 15 September 1987, p. 85).
Realising those intentions was to prove considerably more difficult than the protagonists had envisaged. While enactment of the Administrative Arrangements Bill served to remove from the existing legislation references to the composition and key powers of the Board, the broader legislative framework within which the Board operated was to remain in place for a further 12 years, until repeal of the 1922 Public Service Act and the passage of its 1999 successor.
At the time of abolition of the Board, the new Commission believed that three pieces of legislation were likely to be needed to give effect to the government’s intentions:
- initial legislation to abolish the Board, establish the Commission and effect some other immediate changes—action realised through passage of the Administrative Arrangements Act
- an Act formally devolving to the Secretaries of the then Departments of Finance and Industrial Relations, and to the Secretaries of other departments, the powers which had been delegated to them in July 1987 by the Board; and making some machinery of government changes
- a new Act for personnel administration in the APS, to replace the existing Public Service Act.
Proposed Distribution of Powers Bill
By the time of the Commission’s formal establishment in September 1987, action was already in train for development of the proposed devolution legislation. Drafting instructions were provided by the Commission in December 1987, and the first draft of a proposed Distribution of Powers Bill had been completed before year’s end. Prior to this, in November 1987, the proposed Bill had already been given ‘essential for passage’ priority for the 1988 autumn sittings of Parliament. The draft Bill was subsequently to provide the basis for discussion with the ACTU and key unions with APS coverage.
From the Commission’s standpoint, the Bill provided a potential means of reinforcing its legitimacy, and its claims to be recognised as a continuing, significant central management agency for the APS. While accepting the realities of its situation as a small, policy-oriented remnant of the former Public Service Board, and the terms of the government’s decision for devolution of the Board’s powers, the Commission was intent on establishing some accepted parameters for its own future operation.
Bureaucratic, territorial manoeuvrings were to constitute, however, a relatively minor barrier to progressing the devolution legislation. The devolution proposals generated significant concerns for the unions. Previously antagonistic to the manner and extent to which the Board was perceived to have exercised its wide-ranging powers to thwart their actions and aspirations, the unions now had new concerns. The proposed successor arrangements, flowing from the government’s adoption of the recommendations of the Block Efficiency Scrutiny Unit, were seen to run contrary to agreements reached previously with the Board, in areas such as temporary employment, and redeployment and retirement. In the course of preliminary discussion of the devolution proposals in March 1988, the unions expressed concern also at the diminished role of the Commissioner, as the successor to the Board, and maintained that the Commissioner should be provided with sufficient resources to honour previous undertakings.
The then draft Bill was made available to the unions, and provided a basis for more detailed discussions with the ACTU and some of its principal APS affiliates on 6 April 1988. Aside from a further canvassing of the matters referred to above, particular concerns were expressed by the unions on proposals for the former Board’s central ‘employer’ roles, in APS terms and conditions of employment and arbitral matters, to be placed with the Minister for Industrial Relations, rather than the Secretary of his department. Objection was raised also to a proposed new Public Service Act provision to deal with the staffing implications of any transfer of APS functions to state governments or to the private sector, thus removing the then requirement for specific legislation in any given instance.
The unions were able to extract only limited concessions from the April discussions, or from later representation of their claims to the Minister for Industrial Relations in May and August 1988 and, subsequently, to the then Minister Assisting the Prime Minister for Public Service Matters in September 1988, and in February and May 1989. Further discussion was to have occurred in November 1989, but there is no Commission record of this having taken place. By this time, however, it had become clear that passage of the proposed distribution of powers legislation was then problematic.
Significant reservations had already been expressed. Ministerial briefing in May 1989 indicated that a stalemate had been reached in negotiations on a significant number of issues, perceived to reflect union unwillingness to accept a number of the necessary implications of the 1987 abolition of the Board, particularly in relation to redeployment and retirement processes. In the event, action on the proposed Bill had been discontinued by the end of 1989. The Office of Parliamentary Counsel was advised formally to discontinue action on the Bill on 28 May 1990. While some non-controversial provisions of the Bill were then to be taken up in pending Prime Minister and Cabinet portfolio legislation, other previously proposed amendments were seen as too contentious to be pursued by such means.
Without explicitly acknowledging disappointment or defeat in relation to the legislation, the Commissioner sought to place emphasis on achieving an alternative, positive outcome:
Although a substantial amount of work was done in the Commission to draft a Distribution of Powers Bill, feedback from departments indicated that the original [1987 Commissioner] delegations were working well, and it was felt that it would be a positive initiative to commence work on a Bill for a new Act for personnel administration in the APS (PSCr AR 1990, p.18).
Proposed new Act
Prior to reporting in the above terms, the Commission had gained the agreement of the then Minister Assisting the Prime Minister for Public Service Matters (Peter Morris) for the new Act initiative to be put forward as a new policy for the fourth term agenda of the Hawke Government. As then submitted to the Prime Minister, the proposal was advanced as an intended ‘comprehensive revision’ of the 1922 Act, incorporating both the public service reforms of the 1980s and changed management arrangements, practices and principles.
Acceptance of the proposal gave reinforcement to a decision of the Commission to commission a consultancy assignment, to undertake the preliminary work associated with development of a Bill for a new Act.
The consultancy project, supervised by then Deputy Commissioner Allan Kerr, commenced in February 1990, with the optimistic expectation of task completion in about two years. If the Commissioner of the time had been aware of his predecessor McLachlan’s 1910 observation that public service legislation was subject to ‘a gradual process of evolution’, he no doubt did not expect that it would be quite as gradual as it proved to be in the 1990s!
In broad concept, the initial approach was to look to the development of a new, streamlined, principles-based piece of legislation of some 15 to 20 pages, starting from a ‘clean sheet’. It would have regard particularly to recently developed and newly emerging legislative models in South Australia, the Northern Territory, New South Wales and New Zealand. If mutually acceptable arrangements could be agreed, the project would proceed in cooperation with ACT authorities, insofar as the Territory decided to proceed with development of legislation to cover the operation of its own then recently established public service.
The Deputy Commissioner and the consultant visited all Australian states and territories and New Zealand in the first half of 1990 for discussions with Public Service Commissioners and other officials, to seek the benefit of their experience in the development and administration of their equivalent legislation, particularly when such legislation had been introduced to reflect arrangements following the abolition of former Public Service Boards. Preliminary discussions were held also with other selected Commonwealth and non-Commonwealth agencies, and with unions.
The project having been initiated, the Commission budgeted for a ‘modest increase in resources’ for the 1990–91 financial year. A small unit (the consultant and, for a period, two Commission officers) was established to liaise with other agencies and unions, and to develop the proposed content of the Bill for the new Act. The then expectation was that the legislation would be introduced in the 1992 autumn sitting of Parliament.
The change of direction had received Government endorsement, as an element of its professed public administration reform process. Authority was given for work to begin on the development of a Bill to modernise the 1922 Act, and to provide a more appropriate legislative base for personnel management.
Initial aspirations for the new Act, however, had soon been modified. Early discussions with both departments and unions revealed a distinct reluctance to depart from either the general scope, or much of the detailed content, of the 1922 Act. Differing motivations were involved. At the risk of oversimplifying these, it appeared that departments, having long railed against the complexities and constraints of the 1922 Act, now began to be apprehensive of losing ‘the devil you know’, against the uncertainty of what might emerge in a new enactment, without the accustomed range of prescriptive instructions. It is probably fair to suggest also that, having witnessed the disappearance of a powerful, central personnel agency, they were wary also of the proposed new order assigning disproportionate powers and authority to the remaining central agencies, at the expense of the line departments.
For the unions, the 1922 Act represented continuity, notwithstanding its then outdated structure and terminology. While it remained in that form, it at least gave the semblance of preserving an APS framework, within which the unions had become accustomed to working and exercising influence. Its retention could be seen to preserve, in an identifiable form, the possibility of a later reversion to pre-July 1987 arrangements, however illusory that possibility might be.
For the time being, and in the absence of evidence of the project continuing to be a Government priority, the objections to significant change were to prevail. Notions of a short, streamlined, principles-based Act gave way to an objective of producing a modernised and consolidated Act, structured in a more user-friendly way. In the process, outdated provisions would be modified or removed. A first move was to be made, however, in the direction of inserting in the Act some new, general principles of APS administration. As then envisaged, the latter would specify, variously, principles of public administration, human resource management and ethical conduct.
The modified approach acknowledged also administrative and industrial realities. In March 1991, the then Public Service Commissioner, Denis Ives, advised the Minister Assisting the Prime Minister for the Public Service, Peter Morris, that large sections of the 1922 Act (for example, those relating to promotion, discipline and temporary employment) reflected the outcome of lengthy development processes and detailed negotiations with unions. New streamlining proposals, therefore, were likely to lead to further difficult and protracted negotiations, with little prospect of achieving introduction of legislative amendments within the envisaged timetable.
For similar reasons, it was decided not to pursue a suggestion that the 1922 Act might be replaced by separate enactments covering, for example, the general range of personnel management matters, administered by the Commission, and the public service pay and conditions provisions, then administered by the Department of Industrial Relations.
Against this background, the immediate task of the newly established Public Service Act Review Unit (PSARU) became the development of a ‘mock-up’ for the new Act, as a basis for later preparation of legislative drafting instructions.
The mock-up comprised an annotated ‘cut and paste’ version of the then text of the 1922 Act. It omitted redundant provisions, effected some limited amendments to modernise wording and to reflect changes which had occurred at the time of, and subsequent to, abolition of the Board. It included also draft statements of principles, in the areas mentioned above. An attempt was made to reorder more logically the various subject areas of the Act, under simple headings. A copy of the mock-up, as developed by May 1991, is held by the Commission’s Policy and Employment Group.
In this same period, significant work had continued in relation to development of the Human Resource Management (HRM) Framework, as detailed in Chapter 7. Ultimate, consequential modernisation of the formal legislative framework remained as an objective of that process, with added impetus being provided by the Joint Committee of Public Accounts inquiry and subsequent report on HRM in the APS. Notwithstanding the earlier departmental and union reservations, clear expectations were being manifested of more significant changes than those seen to be in prospect through the mock-up exercise.
An allied assignment was undertaken by the consultant during this same period. It involved preparation of a series of papers on issues which had remained unresolved when action ceased on the Distribution of Powers Bill. The principal issues addressed were:
- the role of ‘employer’ under the Public Service Act and related industrial legislation
- the exercise of determination-making powers under the Public Service Act
- determination of conditions for exempt officers and employees—subsection 8A(3)
- payments to officers—subsection 90(3)
- authority to issue guidelines, instructions and directions
- power to conduct inquiries, investigations and reviews.
With the Commissioner’s agreement, the same exercise was undertaken by the consultant for the Department of Industrial Relations, with the objective of facilitating consideration and decision making within the department and, later, joint PSC–DIR consideration.
Against this background, the Commissioner observed that review of the 1922 Act was proceeding with the aim (endorsed in principle by the Government) of enacting new legislation to:
- reflect the 1980s reforms and the continuing devolution of personnel management authority
- maintain the fundamental concept of the APS as an independent, professional, nonpolitical, merit-based career public service
- incorporate general principles to provide a framework for people management in the APS
- simplify the current legislative framework, where possible, without seeking to vary substantive provisions unnecessarily
- rearrange the Act to make it more coherent
- remove any redundant provisions and explore the scope for any other amendments which were uncontroversial (PSCr AR 1992, p. 13–14).
A Public Service Act rewrite
In the above context, initial discussions had been held with other central agencies, and the Office of Parliamentary Counsel (OPC) had begun preparing a preliminary exposure draft of a Bill for a rewrite of the Act. This Bill was to be used to focus discussions with agencies and unions.
The new momentum was maintained in the following year. Considerable progress was made with the review and rewrite of the Act. The OPC continued with the preparation of a preliminary exposure draft of a Bill. As at June 1993, initial drafting covered a little over half of the provisions of the then existing Act.
Drafting of the proposed Bill had got away to a promising start. Following an initial discussion with the First Parliamentary Counsel in January 1992, drafting instructions had been provided the following month, essentially in the form of the Commission’s mock-up. Assignment of the drafting task to a Second Parliamentary Counsel was cause for satisfaction on the part of the Commission, and an outline draft Table of Provisions for the Bill was provided in May 1992.
Given that work was proceeding on the assumption that the Bill would provide for a rewrite of the Act, and not a revision of substance, the draftsman’s intended approach nonetheless built on, and enhanced, the developmental work undertaken previously by the Commission:
It seems to me that a Bill to regulate the APS ought to be approached as analogous to a series of personnel manuals, each dealing in a self-contained way with a particular subject. Each chapter of the Bill I would see as representing a separate manual. This is the approach that I intend to adopt in the drafting of the Bill.
I would also be seeking to reduce resort to definitions. The existing Act grew up during a period when the use of formal definitions was rather more emphasised than it is today. One of the features of the plain English approach is a reduced reliance on definitions.
A feature of the present Act that seems to me to represent a past age is the reference to APS members as "officers". While the Service will presumably retain an office-based structure, I propose to find some means of avoiding the need to refer to officers. You will notice that the enclosed drafts refer to "APS members" (Second Parliamentary Counsel. Letter to Public Service Commissioner, 18 May 1992).
With the then improved prospects of obtaining a legislative outcome, preliminary drafting commenced within the Commission of a related Explanatory Memorandum for Parliament, based on the OPC Bill. Associated with this work, the consultant produced a series of background documents on various provisions of the 1922 Public Service Act. Copies of those documents are now held in the Commission by the Policy and Employment Group.
As indicated above, the rewrite saw progressive drafting of the Bill to the point of covering more than half of the provisions of the 1922 Act by June 1993, with the last detailed Commission comments on the draft being provided in April 1994. Shortly thereafter, the legislative reform agenda was to again change significantly.
Public Service Act Review Group
At the end of June 1994, the then Minister Assisting the Prime Minister for Public Service Matters, Gary Johns, announced the formation of a high-level Review Group to examine the 1922 Act and to make recommendations to him, in accordance with the wide-ranging terms of reference at Appendix 5.
In a media release announcing the review, Minister Gary Johns said that it was important, as the APS moved through the remainder of the 1990s, to have a legislative framework which was modern, flexible and maintained the reforms of the preceding decade:
… the current Act is outdated and needs a comprehensive overhaul and rewrite. However, any new Act will continue to reflect the core values of the Australian Public Service (Johns 1994).
The Public Service Review Group was chaired by Ron McLeod, then a Deputy Secretary in the Department of Defence. Other members of the Review Group were:
- Russell Higgins
Executive Director, Department of Primary Industries and Energy, and Chairperson of the Management Improvement Advisory Committee
- Peter Kennedy
Deputy Commissioner, Public Service Commission
- Cathy Argall
General Manager, Australian Property Group, Department of Administrative Services (withdrew before report presented)
- Barry Leahy
Principal Adviser, Department of Industrial Relations
- Doug Lilly
Assistant National Secretary, Community and Public Sector Union.
While the endeavours of the Review Group were to be ultimately frustrated by the 1996 change of government, its work was to contribute significantly to further definition of some of the key parameters which were then to shape the development of the 1999 Public Service Act.
The Minister’s announcement of the review had referred to the government’s expectation that the APS would be responsive, effective and accountable, and that it was important for it to have more flexible employment arrangements and a more effective approach to performance management. Any new Act, however, should continue to reflect the core values of the APS.
The Commission prepared a major submission to the Review Group. It covered a wide range of issues, including the concept of office, selection, employment, people management, discipline and appeals. It noted that a new Act could focus more on values, principles and standards with Service-wide application, with the details being covered in regulations, awards, workplace agreements or central agency instructions and guidelines.
The Review Group’s report (the McLeod Report) was tabled in January 1995 and, in May 1995, the Minister announced that the Government had accepted the majority of the Group’s recommendations. The Minister then stated that the new Act would be simpler and more principles-based, and would reflect expectations of the APS on the part of both the Government and the Parliament. These would include provision of advice and support to the government of the day, and the delivery of government services to the community. Foreshadowed also was the statement of general principles of public administration (including a politically independent and merit-based public service), along with a broadly based code of conduct.
Following the Minister’s announcement, action was set in train for the development of draft legislation, for introduction into the Parliament early in 1996. A first round of consultations on the McLeod Report’s recommendations, and initial drafting of the related Bill had been completed by the time of the election of the new Coalition Government in March 1996.
A new reform agenda
Further reform of the APS legislation was soon to be signalled. In a media release on 21 June 1996 the Minister Assisting the Prime Minister for the Public Service (Peter Reith) announced the new government’s reform intentions in the following terms:
The Government will embark upon a consultative process to develop a reform package for the Australian Public Service
… to ensure the public service provides a professional and rewarding environment in which to work and is able to deliver a quality service to Government and the Australian people
… To make certain that workplace structures, systems and culture in the APS emphasise innovation and recognise creativity and commitment.
The thrust for further APS reform (including provision of a more flexible legislative framework) had been given additional impetus for other reasons:
- the government’s desire to achieve a balanced budget
- its earlier commissioning of an audit of government finances, infrastructure and service delivery arrangements, which led to the National Commission of Audit making a number of recommendations in its June 1996 report relating to the operation of the public service and the 1922 Public Service Act.
Towards a best practice Australian Public Service
The government’s reform intentions were translated into the discussion paper Towards a best practice Australian Public Service, issued by Minister Reith on 25 November 1996.
The paper provided a vehicle both for an expression of the philosophy (and some of the rhetoric) of the government of the day, and a wide-ranging assessment of perceived deficiencies in APS legislation and practices, and of possible options for remedial action.
From the government’s standpoint:
- Its election mandate for far-reaching economic and social reform included revitalising and building the national institution of the APS into a world-class public service, as part of its strategy to improve Australia’s governance.
- Acknowledgment could be made of previous APS reforms, but the efforts of the previous government had fallen well short of what was required, and much more needed to be done to enable the Service to operate efficiently and competitively in order to achieve the improved level of performance being stressed as essential for all other sectors of the economy.
- Various APS shortcomings were apparent, deriving from ‘outdated, rigid and cumbersome regulations, systemic inflexibilities and a culture which does not sufficiently promote or recognise innovation’, resulting in Service management having fallen behind best practice overseas, interstate, in the private sector and in government business undertakings.
- The APS needed to prove that it could deliver government services as well as the private or nonprofit sectors requiring, in turn, a new emphasis on contestability of services and the outsourcing of functions which could be undertaken better by such external agencies.
- A modernised APS employment framework needed to be achieved at least cost to the taxpayer, facilitated by effective application of the government’s workplace relations legislation to the Service, in the same way as it applied to private sector employment. (Extracted observations from Minister Reith’s Preface to the paper, pp ix–xi)
As to the more detailed diagnosis of ills and possible remedies:
- The APS remained bound in red tape, subject to undesirable or inadequate practices, and continued to operate under terms and conditions of employment and an industrial relations framework no longer appropriate or realistic in a community-wide labour market.
- The enabling 1922 Public Service Act had become increasingly complex, by reason of amendment on more than 100 occasions, compounded by a mass of subordinate legislation, instructions and guidelines.
- Public servants had insufficient autonomy in relation to their work practices and employment flexibility.
- The public accountability of APS staff needed to be enhanced, along with increased emphasis being placed on achieving maximum value for money expended, rather than operating in a culture focused unduly on minimum risk taking.
The paper canvassed options for reform in the above areas and addressed other issues, such as the need to maintain and better articulate important public service traditions, to enhance the quality of APS leadership, and to achieve effective devolution, to the heads of individual agencies, of much of the control over employment matters. It discussed also some of the key elements which might need to be included in any new streamlined, principles-based Public Service Act, to facilitate achievement of a more flexible employment framework. Finally, the paper posed 17 questions relating to the various issues which had been explored, with the objective of opening debate on how proposed reforms might be best achieved.
Some 6000 copies of the paper were distributed to departments, other agencies and various interested parties, seeking comments on the issues raised. The electronic version attracted some 4500 readers on the Commission’s Internet site, with many agencies also downloading the paper onto their own networks.
More than 240 submissions (mostly from individual public servants) were lodged in response to the paper, and over 100 focus groups were conducted (in all capital cities and in four major regional centres) during December 1996 and in January–February 1997. Total attendance was in excess of 1500 people comprising APS staff and interested individuals and groups within the wider community. State and territory government representatives, management consultants and academics were also involved in the extensive consultation program. The Minister participated in five of the groups, and met also with the ACTU and public sector unions in December 1996. A Senate Finance and Public Administration Reference Committee conducted a ‘round table’ discussion on the paper in February 1997, and representatives of the Australian Democrats participated at various times during the program of discussions.
Accountability in a devolved management framework
Consideration of the discussion paper was still taking place when the general outcome of the consultations to that time became the subject of a further joint Commission/Department of Industrial Relations (DIR) document, Accountability in a devolved management framework (ADMF paper). Its purpose was both to record general, wide-ranging support for the need for change to the formal framework to achieve a better workplace environment for the APS, and to set out in broad terms the proposed framework of a new Public Service Act.
The paper noted that the proposals for change which had been most frequently canvassed were:
- to remove the continuing preoccupation with processes and rules and reduce delays in decision making about personnel issues
- to allow public servants to have far greater flexibility in the way they organise and manage their work
- to preserve the traditional ethos and values of an apolitical APS
- for much better management and appraisal arrangements to be put in place to recognise good performance
- for managers to deal more effectively with underperforming employees
- for agencies to make full use of the flexibilities provided in the new employment framework and not fall back on old regulations and rules
- for Government to provide support to APS executives in managing risk strategically in the context of Parliamentary debate and public accountability arrangements
- to ensure that agency-negotiated remuneration arrangements still enabled interagency mobility
- to accommodate private sector work practices and conditions within the distinctive nature of the public sector
- to ensure that public policy and administration becomes a more attractive career choice for young Australians (PSMPC & DIR 1997, p. 4–5).
More specific deficiencies and omissions in the 1922 Act were also noted:
- The character or purpose of public service was not clearly identified.
- The ethos of public service was not defined.
- There was no acknowledgment of the need for a non-partisan and apolitical public service.
- There was no prohibition on Ministerial direction of public service staffing decisions.
- Although there were scattered and contradictory references to merit, there was no clear statement of the principle and how it was to be applied.
- There was no Code of Conduct.
- The respective roles, responsibilities and powers of Ministers, Secretaries and the Public Service Commissioner were not set out.
- There was no explicit provision for the Public Service Commissioner to report through the Minister to the Parliament (PSMPC & DIR 1997, p. 6).
To overcome the identified deficiencies and concerns, the proposed new Act would not only recognise the devolved management practices that had emerged in the preceding decade, but would provide a blueprint and guide for Commonwealth public administration into the 21st century, incorporating into contemporary legislation a new conceptual framework for the APS.
The major features of the proposed legislation were described in the following terms:
To achieve maximum flexibility while maintaining a high level of accountability, the new Public Service Act will establish an interlocking system of powers and responsibilities, integrated within a genuinely devolved managerial environment. While employment decisions will be the responsibility of individual agencies, public accountability will be monitored for the Service as a whole.
… the Act will provide a model of accountability in which the public interest is clearly articulated. It will recognise that public servants and the programs they deliver are paid for by the public. As a consequence, the public service needs to maximise its efficiency within a simplified and transparent accountability matrix.
… the new Act will recognise the distinctive ethos of Australia’s public administration and parliament’s expectations of the public service. The public interest in maintaining public service integrity and professionalism will be met by the obligations relating to: a core of statutory Values, encompassing qualities such as political impartiality, high ethical standards, workplace equity and employment decisions based on merit; a Code of Conduct; directions set by the Public Service Commissioner; and the internal and external review of grievances.
Departmental Secretaries and Agency Heads will be placed at the centre of this accountability framework. However, they will also be given far greater freedom to manage their workplaces in the most efficient and effective manner. Under the new Act, it is proposed that Secretaries will have devolved to them powers and responsibilities similar to those of employers in the private sector.
… the framework within which the conditions of employment in the APS are set will be similar to that which prevails in the private sector, while accountability for the conduct of that employment will recognise the distinctive character of public administration. The new Public Service Act will provide:
- a statutory basis for the Parliament to express the APS values and culture it considers necessary to protect the public interest;
- mechanisms by which decisions of the Government of the day can be implemented more effectively;
- improved means for ensuring the public accountability of Secretaries for the management of their agencies;
- a framework setting out the enhanced role and powers of Secretaries in a clear and public way; and
- an unambiguous statement to the APS, and the Australian people, of the conduct and behaviour expected of public servants.
The principal object of the new Act will provide a succinct message about the expectations of a public service within a democratic system of governance. It will be couched in terms of constituting an apolitical and non-partisan public service, committed to achieving the objectives set for it by the Australian Government while upholding the high standards of ethical conduct and accountability necessary for public administration (PSMPC & DIR 1997, p. 4, 6, 8).
The paper made clear also that the terms and conditions of public servants’ employment would cease to be subject to detailed prescription in the Public Service Act or to central agency direction. Rather, such terms and conditions would be negotiated at agency level, through Certified Agreements or an Australian Workplace Agreement (AWA), in accordance with provisions of the 1996 Workplace Relations Act. Thus, the employment law applicable to the APS would be largely the same as that which applied to the wider community. Likewise, APS employees would have access to the same protections in dealing with their employer as applied to the rest of the workforce under the Workplace Relations Act.
As the new Public Service Act was to set out also the values and conduct expected of public servants, and was to provide for a process of internal and external review of administrative decision making, the need for the 1984 Merit Protection Act would no longer exist.
In the light of the proposed changes, the vast majority of the provisions of the 1922 Public Service Act would no longer be required. Essentially, all powers in relation to individual staffing matters would be exercised at agency level, without central agency involvement.
The new Act would be directed to achieve a balance between substantial devolution of powers to the heads of APS agencies and public accountability for their actions. A schematic representation of the balance appeared in the paper, and is reproduced at Appendix 6.
Further elaboration of the proposed structures and mechanisms for improved accountability and devolved responsibility constituted the balance of the text of the ADMF paper, which concluded with the stated intention of introducing the Public Service Bill into parliament before the end of its then current sittings in June 1997, with the new Act to come into operation on 1 January 1998.
Public Service Bill 1997
At least the first objective was achieved. The Public Service Bill 1997 was introduced into Parliament on 26 June 1997, along with a companion Public Employment (Consequential and Transitional) Amendment Bill 1997 (the PECTA Bill)—the latter being necessary to:
- validate actions and decisions taken under the former legislation, after passage of the Public Service Bill
- cover some aspects of the transition from the old to the new employment framework
- make consequential amendments to other legislation which contained references to the 1922 Act framework.
Minister Reith’s Second Reading Speech for the introduction of the Public Service Bill restated the philosophy and objectives for reform, enunciated previously in the Reith and ADMF papers, and underlined some key elements:
Reforming the Australian Public Service is a key element of our government’s micro-economic reform agenda. The Australian people are entitled to see that the taxes they pay are used in the most efficient and effective manner and that the services they receive are of a high standard. This bill will make the service more efficient in its delivery both of policy advice to government and of programs to the public. It will promote higher performance in the APS by devolving management responsibility to individual agencies and, at the same time, ensure that public interest objectives are maintained through enhanced accountability.
This bill considerably enhances accountability. It acknowledges and protects the public interest as never before. It considerably improves parliamentary scrutiny of the way the Australian Public Service undertakes its delegated responsibilities on behalf of government. It recognises and protects the distinctive ethos of public administration. It provides a foundation for a service in which actions and decisions are open and transparent. At the same time, it encourages the APS to take on the best practices of contemporary management, public or private, Australian or overseas. It provides the legislative underpinning for continuous improvement in the way the Public Service manages public funds.
The new Public Service Bill provides a succinct message about the expectations of a public service within a democratic system of governance in a form appropriate to the twenty-first century. It articulates the essential qualities that are necessary to maintain public confidence in the integrity of the public service; recognises the need for an employment framework which is likely to provide best value for public funds; and establishes the means to ensure that the conduct of public servants is open to scrutiny.
In short, for the first time we have a Public Service bill which explicitly focuses on public accountability for the public interest (PD House 26 June 1997, p. 6462, 6465, 6466).
For the Commission, introduction of the Bill represented culmination of the first phase of an intensive program of new work begun in 1996, as a consequence of the government’s decision to proceed with reform of public service legislation and practice.
In March 1996, the Commission had moved to adopt a flatter organisational structure, based on self-managing teams. Within that structure, its then Public Service Employment Framework (PSEF) Team had been assigned responsibility for providing a policy overview on the legislative framework for people management, which soon developed to encompass a range of operational tasks. With ongoing active involvement of the Deputy Commissioner, these related initially to the development, in association with other Commission teams, the minister’s office, the then DIR and other agencies, a range of Issues Papers in relation to the projected legislation.
The Issues papers contributed to the November 1996 discussion paper, with the PSEF Team then actively involved in the consultation process on that paper, and the subsequent development of the ADMF paper. By the time of publication of the latter, action was already advanced in relation to provision to the Office of Parliamentary Counsel instructions for drafting the Public Service Bill. This, in turn, generated action for government clearance of the proposed Bill, and for preparation of the necessary documentation associated with introduction into Parliament.
Key features of the 1997 Bill had been outlined previously in the ADMF paper, and the overall framework was to be retained essentially intact, through to ultimate passage of the legislation in October 1999. Thus:
- Legislative expression was given to a set of APS Values and an APS Code of Conduct.
- Specific provisions were included affirming the merit principle and proscribing patronage and favouritism, providing protection for public interest whistleblowers, and requiring promotion of employment equity and establishment of workplace diversity.
- The engagement and employment of APS employees was substantially devolved to agency heads, subject to the various accountability provisions of the legislation itself, and of the 1996 Workplace Relations Act.
- The Public Service Commissioner’s functions and powers were explicitly defined (including authority to issue binding Directions on APS employment matters), and the Commissioner’s annual report was to include ‘a report on the state of the APS during the year’.
- The general structure (but not detailed conditions) of APS employment was defined.
- The employment framework was established for, respectively, Secretaries of departments, the Senior Executive Service, and executive agencies.
- A framework was established for handling administrative rearrangements and reorganisations affecting the APS, covering machinery of government changes; reciprocal services between the APS and an Australian state or territory; and the transfer of functions and associated staff between the APS and other areas of Commonwealth employment.
Joint Committee of Public Accounts
Following introduction, both the Public Service Bill and the associated Public Employment (Consequential and Transitional) Amendment Bill (the PECTA Bill) were referred to the Joint Committee of Public Accounts (JCPA) for review. Subsequently, the Bills were referred also for examination by the Senate Finance and Public Administration Legislation Committee.
The JCPA review (AM Somlyay, Chairman) was widely publicised, with press advertisements on 4 and 5 July 1997 inviting submissions from interested parties. The Public Service Commission and the Department of Workplace Relations and Small Business (DWRSB—the former DIR) provided a joint submission to the Committee. Public hearings on the Bills were conducted in Canberra on 6 and 7 August 1997; two ‘round table’ discussions were conducted; and the Public Service Commissioner made a presentation to the Committee on 25 August 1997 in a public hearing forum, to which interested parties were invited, on the proposed Commissioner’s Directions and ‘review of decisions’ regulations. Six serving departmental secretaries and agency heads appeared before the Committee to express their perceptions of the proposed legislation, with the Secretary of the Department of the Prime Minister and Cabinet also appearing to give evidence as to his perceptions of the potential impact of the proposed legislation.
The Committee reported its views to the House on 29 September 1997 (Report No. 353). In broad terms, it supported the need for the 1922 Public Service Act to be replaced by simplified and modernised legislation, and endorsed the more accessible format of the 1997 Bill. It made 20 recommendations addressing, variously, proposed amendments to the Bill, changes to the proposed Regulations and Directions and additional information to be included in the Explanatory Memorandum for the Public Service Bill. The Government accepted 19 of the 20 recommendations, either in full or in part. The Committee’s recommendation for wider-ranging whistle-blower legislation was reserved for future consideration by the government (PD House 29 October 1997, p. 10241–96).
The Senate Finance and Public Administration Legislation Committee reported on 3 October 1997, and generally endorsed the JCPA report recommendations. The Australian Democrats’ dissenting report recommended that the Bill be withdrawn and rewritten. Overall, however, the Senate Committee’s report was not to result in Bill amendments.
The principal legislative amendments proposed by the JCPA related to:
- strengthening of the APS Values and Code of Conduct
- insertion of a definition of merit in relation to the engagement and promotion of APS employees
- enhancing the processes for the review of actions affecting APS employees in their employment, and in relation to termination of APS employment rights
- reintroduction of a reviewing agency with independent powers
- providing for increased accountability in relation to the appointment of executive agency heads.
Amendments to 1997 Bill
In the light of Committee recommendations and suggestions, the principal government amendments to the Bill were moved in the following areas.
The Values were to be amended and expanded. They were to include new values addressing:
- promotion of equity in APS employment
- access to APS employment
- affirmation of the APS as a career-based public service
- assertion that the APS would provide a fair system of review of employment decisions taken in respect of APS employees.
Code of Conduct
Clarification of the sanctions applicable to breaches of the code, and the applicability of the code to statutory office holders.
Accountability and reporting arrangements were enhanced in a number of areas.
Increased protections were afforded to employees against reduction in their entitlements under an award, Certified Agreement or Australian Workplace Agreement.
Review of actions
The processes for the review of actions affecting APS employees in their employment were extended, reflecting the functions to be assigned to the Merit Protection Commissioner.
An expanded statement was provided of the responsibilities and accountability of the heads of executive agencies, similar to those then to be specified in relation to the responsibility of a Secretary for managing a department.
Merit Protection Commissioner
In response to the Committee’s recommendation dealing with review of APS employment actions, the government agreed that the Public Service Commissioner’s standard-setting functions should be separated from the proposed review role. Accordingly, a new provision would be inserted to allow for the establishment of a statutory office of Merit Protection Commissioner, with appointment and conditions arrangements consistent with those to be specified for the Public Service Commissioner.
Pressure for changes of this nature had been significant. In the June Second Reading Speech on the Bill, Minister Reith had indicated that the Public Service Commissioner, pursuant to his or her role to promote and uphold the APS Values and Code of Conduct, and to set the standards expected of employers, would have power to investigate breaches of them and recommend remedial action where an APS employee had exercised the entitlement to seek review of actions relating to his or her employment. As a consequence, the Minister indicated that the new streamlined arrangements to be set in place would remove the need for a separate statutory office holder with review powers, as had been put in place by the 1984 Merit Protection (Australian Government Employees) Act, which would itself be repealed. While the latter was to eventuate, the separately empowered Merit Protection Commissioner office was reintroduced, albeit with support staffing to be made available by the Public Service Commissioner, within the single administrative structure of the Public Service and Merit Protection Commission, which had been established in December 1995.
Additional details of all the amendments can be found in the Supplementary Explanatory Memoranda submitted on the 1997 Public Service Bill. The Howard government amendments had been accepted without dissent. The opposition was not able to obtain agreement to 61 additional amendments which it had proposed.
The JCPA had made no specific recommendations for amendment of the Consequential and Transitional Amendment Bill. However, the Bill then transmitted to the Senate incorporated five amendments effected by the government in the House, involving various technical, drafting and consequential changes, and taking account of changes to other legislation, which had occurred since introduction of the Public Service Bill, and which would be affected consequentially by passage of the Bill (PD House 30 October 1997, p. 10249–99). The ultimate passage of the CTA Bill incorporated also 995 repeal and amendment items in the Schedule to that Bill, affecting 289 separate enactments. (Identification of these changes and preparation of the Schedule had itself required a major resource-intensive task for the Commission).
Parliamentary Service legislation
The 1922 Public Service Act, and its 1902 predecessor, included a small number of provisions relating to the operation of an administrative structure to service the Houses of the federal Parliament. While staff within that structure were employed under those Acts (with various prescribed differences in employment conditions), ultimate responsibility for their activities rested with the Presiding Officers of the Parliament and, later, the chief executives of the (ultimately) five parliamentary departments.
Over the years, the desirability of establishing a separate parliamentary service had been canvassed periodically. The formulation adopted in both the 1902 and 1922 Acts had been seen to achieve dual objectives of ensuring that staff servicing the Parliament should be under its control, but should retain career access, under the Public Service Act, to positions in the wider public service. Of equal (if not greater) significance, however, was the facility for staff in the executive departments to be able to move more readily to positions in the much smaller, parliamentary staffing structure, thereby providing an invaluable recruitment pool for the latter.
Separately administered staffing arrangements, however, inevitably represented a potential source of friction, and occasional disputation between the respective APS and parliamentary management authorities. Throughout the period of its operation, the Public Service Board would have subscribed generally to the views expressed by first Public Service Commissioner McLachlan (in his post-retirement Royal Commission report in 1919) that officers of the Parliament should be brought into the general system of public service administration, as relating to their basic employment conditions. Internal administration would be left to the heads of the respective parliamentary departments. McLachlan’s proposal was not fully accepted, however, and the 1922 Public Service Act was to retain essentially unchanged the approach adopted in 1902.
The Coombs Commission provided an opportunity for the Board to revisit the issue. In its PSB Memorandum No. 12 to the Commission in March 1975, the Board proposed that consideration be given to establishing a discrete Parliamentary Service, staffed under a separate Act. Such legislation would serve to underline the distinctive nature of parliamentary departments, and reflect appropriate separation of the legislative and executive arms of government.
The Coombs Commission was not so persuaded:
The Commission is of the opinion that the distinction between parliamentary departments and executive departments does not need to be emphasised by separate Acts related to terms and conditions of employment in the way suggested by the Board. Nor does it follow that the independence of Parliament in the staffing matters of its departments would be impaired by common legislation. The managers of the parliamentary departments could avail themselves of provisions applying elsewhere in Commonwealth employment while at the same time retaining a proper degree of independence to meet their particular needs (Coombs Report 1976, para. 9.4.31).
The Commission’s views in this regard were consonant with its proposals for the enactment of common legislation to cover Commonwealth employment generally (Coombs Report 1976, Section 9.4). In concept, such legislation would enable the respective public sector management authorities to draw on standard streams of legislated conditions of service (such as superannuation, long-service leave and compensation), while developing their own distinctive patterns of service.
Within this ‘unified service’ framework, the Commission had in mind that the Parliament might consider the appropriateness of taking advantage of the provisions proposed, so that the two Houses could apply the main features of Commonwealth employment to the parliamentary service, while reserving power for the designated authority within the Parliament to develop particular features appropriate to the parliamentary administration.
The Commission’s proposals for a unified service were never implemented in the comprehensive detail then suggested, and no further action was taken at that time to establish a separate parliamentary service.
Further significant examination of the supporting administrative structures for the Parliament was not to occur until the issues were addressed by the Public Service Act Review Group in 1994. The Review Group noted that the Presiding Officers had submitted that, in any revised Public Service Act, provision should continue to be made for their role as independent employing authorities, articulated within the Public Service Act rather than in separate legislation. The Review Group found no reason to disagree with that proposition, and recommended continuing Public Service Act coverage (McLeod Report 1994, paras 11.11–11.17).
The Review Group’s conclusion, however, was to be overtaken by the Howard Government’s public service reform program. Its proposals for a new streamlined Public Service Act did not provide for retention of coverage of the parliamentary departments. The need to preserve the independent employer role of the Presiding Officers was again reasserted, but with a different slant, summarised concisely in the ADMF paper:
The Parliamentary Departments are presently covered by the Public Service Act. It is proposed that this should not continue. The present arrangement fails to recognise sufficiently the independence of the Parliament and those who work for it. This can best be done by establishing a separate statutory regime for those who work in the Parliamentary Departments.
Staff in the Parliamentary Departments owe their allegiance to Parliament rather than to the Government. There is a need to protect the independence of the Presiding Officers, singly and jointly, as employing authorities.
For these reasons it is proposed that the Parliamentary Departments should operate under a separate Act. Appropriate transitional arrangements will be set in place for those employees who wish to return to the APS. Of course, mobility between the Parliamentary Departments and the APS for employees will still be available. APS employees who wish to work in the Parliamentary Departments can either resign from the APS or seek leave from their Secretaries (PSMPC & DIR 1997, p.19).
The theme was reiterated, and related legislative action was foreshadowed by the Minister in the Second Reading Speech on the 1997 Public Service Bill:
The importance of the role of parliament in scrutinising the administration of the APS is acknowledged in this bill. It requires the independence of parliament and those who work for it. The operations of the parliamentary departments are presently covered by the Public Service Act. This is not appropriate. Staff in the parliamentary departments owe their allegiance to parliament rather than to the government. There is a need to protect the independence of the presiding officers, singly and jointly, as employing authorities. This can best be done by establishing a separate statutory regime for those who work in the parliamentary departments (Reith PD House 26 June 1997, p. 64).
The government’s decision to proceed along these lines had regard also to other considerations. Minister Reith had agreed earlier that the proposed separation would facilitate the development of a shorter, less complex and more streamlined Public Service Act, would provide greater flexibility for the parliamentary departments themselves, and would facilitate also the passage of any legislative amendments that might become necessary. Additionally, it was known that, while the Australian States differed in their provisions for parliamentary bodies, coverage was provided other than under the legislation governing their respective public services (although public service legislation did apply in both the ACT and the Northern Territory).
The Government’s preferred approach had been communicated by the Prime Minister to the Presiding Officers in May 1997. In directing their attention to the nature of the legislation to be enacted, the Prime Minister intimated that there was a need to ensure that the development and introduction of separate legislation should proceed in parallel with, but not delay, the passage of the public service legislation.
The Presiding Officers signified their concurrence to the development of separate legislation and, on their instructions, the heads of the parliamentary departments developed the Parliamentary Service Bill 1997, and the associated Parliamentary Service (Consequential Amendments) Bill 1997. Drafting of the Bills was contracted to a private legal firm, utilising specifically the services of a former First Parliamentary Counsel.
The Parliamentary Service Bill 1997 (subsequently introduced by the Speaker, along with a related Consequential Amendments Bill) reflected the same general approach and framework as the Public Service Bill, but with various modifications considered necessary, both to underline and ensure the independence of the Parliament from the executive government and to reflect some different principles applicable to staff serving its two Houses (PD House 23 October 1997, p. 9686–8).
The Bill established the Parliamentary Service itself, providing for its executive management by the Clerks of the two Houses and other departmental Secretaries, under the overall direction of the Presiding Officers. The Bill also created the new office of Parliamentary Service Commissioner, with a role similar to that of the Public Service Commissioner, but with particular responsibility for advising the Presiding Officers with respect to the management practices and policies of the Parliamentary Service. While the Parliamentary Service Commissioner was to be appointed separately and independently by the Presiding Officers, the expectation was that both offices of Commissioner would be filled by the same person, with the Bill so providing, but also providing that the Commissioner could not be subject to direction by executive government in relation to the Parliamentary Service.
The APS Values in the Public Service Bill were mirrored by a set of Parliamentary Service Values—identical to the former in most areas, but varied in four instances to reflect provision of advice and support for the Parliament, its committees and Senators and members of the House, independently of the executive government. Likewise, a legally enforceable Parliamentary Service Code of Conduct was established, equivalent to the Public Service Bill Code of Conduct, but again reflecting the obligations of a Parliamentary Service employee to Parliament rather than to a Minister.
As indicated by the Speaker when introducing the Bill, the balance of its provisions served to establish a statutory framework and administrative arrangements broadly consistent with those for the APS. Presentation of the Parliamentary Service legislation at this point would enable it to proceed in parallel with the Public Service Bill.
In his Second Reading Speech, the Speaker had foreshadowed that the Government’s decisions on JCPA recommendations would be applied, in relevant instances, to the Parliamentary Service legislation, to preserve the parallel nature of employment conditions and to ensure preservation of mobility between the two services. Amendments to this end were duly moved, the bulk of these pertaining to insertion of new provisions in relation to establishment of a position of Parliamentary Service Merit Protection Commissioner, with a role comparable to that proposed to be performed by the Merit Protection Commissioner in the Public Service Bill. As was to be the case with the Public Service Commissioner/Parliamentary Service Commissioner positions, the expectation would be that the same person would hold both the offices of Parliamentary Service Merit Protection Commissioner and (APS) Merit Protection Commissioner.
The twisted path to enactment
As previously indicated, the four Public Service and Parliamentary Service Bills were considered and achieved passage in cognate debate in the House on 30 October 1997. Government amendments had been accepted without dissent, but the Opposition had been unable to obtain agreement for any of the 61 amendments which it proposed— noting, however, that its amendment proposals would be pursued further in the Senate, where the government did not have a majority.
The Bills were then introduced and debated in the Senate. Numerous amendments were proposed (75 by the Opposition and 23 by the Australian Democrats to the Public Service Bill; and a further three amendments proposed by the Opposition to the PECTA Bill). The Senate agreed to 52 amendments to the Public Service Bill (50 Opposition, two Australian Democrats) and to three Opposition amendments to the PECTA Bill (PD Senate 19 November 1997, p. 9093, 9158, 9187).
The government had an essentially global response to the diverse range of amendments—they ran counter to its intentions to bring public service employment into line with community standards, to establish a new conceptual framework for such employment and to establish a more efficient and effective public service. It maintained also that the proposed amendments would reintroduce or exacerbate the problems which the reform proposals were seeking to overcome, reintroducing the elements of rigidity and excessive prescription of controls, seen to be characteristic of the 1922 Public Service Act.
The opposing philosophies, and the types of amendment proposals which they generated are illustrated by the following examples:
- Amendments proposing that the Prime Minister and other Ministers would be accorded excessive authority for effecting appointment and determining remuneration and conditions of employment for Secretaries and other agency heads ignored existing realities in the processes for effecting chief executive appointments in the public service, the acknowledged role of the Remuneration Tribunal, and Workplace Relations Act principles concerning the need for there to be a direct relationship between employer and employee.
- Objections to agency heads having power to hire and fire agency employees, and to determine their salary and conditions of employment ran counter to the government’s policy intention that the APS should operate, as far as practicable and consistent with its public responsibilities, under the same employment arrangements as the rest of the workforce. Perceptions of arbitrary hire and fire practices in the private sector were outdated, as employers had become subject to anti-discrimination legislation, unfair termination provisions and evolving common law principles, in the same manner as public sector employers.
- Assertions that devolution to agency heads of normal employment powers would increase fragmentation, competition and rivalry between agencies and be prejudicial to the longstanding view of the APS as a career public service were not supported by the substance and effect of related Bill provisions. Rather, terms and conditions of employment would be better able to respond to the differing functions and needs of the individual, with a legislative underpinning of shared APS values and ethical standards, reinforced by provisions of the Public Service Regulations, Commissioner’s Directions and Classification Rules.
- Perceptions that removal of a legislative framework of mobility rights would limit the movement of staff to non-APS bodies disregarded the reality that the mobility provisions had been overly prescriptive, whereas the provisions of the Bill would still enable employees to work for non-APS agencies on a leave without pay basis. Leave would be granted automatically in the case of an employee taking up a statutory appointment, employment under the Members of Parliament (Staff) Act or the Governor-General Act. The proposed Parliamentary Service Act would allow for the movement of employees between the two Services without disadvantage.
- Attempts to retain various long standing appeal provisions then in place under the Merit Protection (Australian Government Employees) Act were significantly at odds with the Government’s view that there were too many appeals, resulting in complicated and convoluted processes and excessive legalism, thereby constituting a significant impediment to effective management. Specific Bill provision for the review of certain employment decisions, and establishment under the Bill of an independent statutory position of Merit Protection Commissioner, with powers of investigation and recommendation making, similar to those of the Ombudsman, over a wide range of employment decisions would serve to retain an external review process at an appropriate level. These provisions would strike an appropriate balance between the rights of an employee and the employer, in keeping with community standards.
Fewer amendments had been proposed to the Parliamentary Service Bill, but had generally addressed comparable key provisions. The Parliamentary Service (Consequential Amendments) Bill was passed without amendment. The government’s response on the principal Bill was similar to its response on the corresponding Public Service Bill provisions, maintaining that the proposed amendments would reintroduce or exacerbate the problems which the legislation sought to overcome—that is, that the amendments were unduly prescriptive and would entail excessive regulatory controls.
The government was not prepared to negotiate on changes to the Bills. The Minister Assisting the Prime Minister for the Public Service (Dr David Kemp) announced that the government had rejected outright the amendments effected by the Senate to the two Public Service Bills and to the Parliamentary Service Bill, and would return the legislation to that Chamber, unchanged, after three months. Such action would serve as a possible trigger for the government to seek a double dissolution of Parliament, should the Senate then persist with its amendments (along with other legislation which had been subjected to Senate amendments unacceptable to the government) (PD House 4 December 1997, p. 12284–5, 12289).
The Minister announced also that the government would immediately press ahead with particular reforms in the Bill through administrative means. The government would use also its industrial relations legislation to increase workplace flexibility and to improve conditions for staff.
As discussed below, Public Service Regulations and other backing for the desired administrative changes were to be put in place in February 1998. In the first instance, however, the Minister stated that the Public Service Commissioner was to be instructed to issue directions to all departmental Secretaries to implement the eleven APS Values then included in the 1997 Bill. Secretaries would be directed also to apply the rules of conduct and behaviour for staff, and to implement a workplace diversity program, to further establish equal opportunity for staff, regardless of factors such as age, race and gender. Likewise, they would be instructed to implement provisions safeguarding whistleblowers against harassment or discrimination.
The Public Service Commissioner conveyed the Minister’s instructions to the heads of all agencies staffed under the 1922 Public Service Act on 8 December 1997. The Commissioner indicated that he would be issuing directions which would indicate the responsibilities of the heads of those agencies for upholding public service values, the Code of Conduct expected of public servants, protection for public interest whistleblowers, the development of workplace diversity programs and the information which would be required of agencies for preparation of the first State of the Service Report.
Implementation of administrative reforms
The full package of administrative reforms was launched by the Minister on 25 February 1998, at a meeting of the Committee for Economic Development of Australia (CEDA), with most of the reforms taking effect on 15 March 1998.
Presented as ‘a vital plank in the government’s micro-economic reform agenda’, and fully consistent with the thrust and content of the 1997 Public Service Bill, the package was extensive and wide-ranging, and constituted probably the most significant change to APS administrative processes since the 1986 streamlining reforms. In outline, the package encompassed:
- introduction of new and amended Public Service Regulations
- revocation of some Public Service Commissioner Instructions
- issue of amended Public Service Commissioner Notices
- new delegation of Public Service Commissioner powers
- issue of Public Service Commissioner Guidelines and advice.
Significant amendments were made to the Regulations, entailing:
- inserting a set of APS Values
- inserting a new Code of Conduct, a breach of which would be grounds for misconduct proceedings
- providing a scheme for protecting whistleblowers from victimisation and discrimination
- providing for the Public Service Commissioner to report annually to the Prime Minister on the state of the Service
- providing departments and agencies with greater scope to appoint Aboriginal and Torres Strait Islanders to their staff
- extending the period during which applications for both SES and non-SES vacancies could be considered to be ‘active’
- extending the period during which certain vacancies which re-occurred could be filled without the need for renotification of the vacancies concerned
- lengthening the period of non-appellable temporary performance of duties by an officer
- excluding the majority of future appointees to Commonwealth offices and bodies from rights previously conferred by the officers’ mobility provisions in Part IV of the 1922 Public Service Act
- removing regulations which had become obsolete for various reasons.
The intent, detailed content and effect of the regulations and other administrative changes were spelled out in four booklets, issued jointly on 25 February 1998 by the Public Service and Merit Protection Commission and the Department of Workplace Relations and Small Business:
- Ministerial statement: Reforming the Public Service to meet the global challenge (Minister’s presentation to CEDA)
- An overview: Reforms to the APS—what we are doing
- Advice to agencies (PSMPC Circular no. 1998/2): APS employment reform(2 booklets)
- Setting the framework
A related PSMPC booklet in the same series (Managing workplace diversity) contained Public Service Commissioner Guidelines (previously launched on 10 February 1998) for purposes of advising agencies of the requirement to develop workplace diversity programs and providing advice to assist agencies in setting up their workplace diversity programs. The guidelines also covered continuing requirements for equal employment opportunity programs, in accordance with the then continuing provisions of section 22B of the 1922 Public Service Act.
The Commissioner’s 1997–98 annual report contained a summary of the various reforms, which is reproduced at Appendix 7.
In her report, then Commissioner Helen Williams commented that, by the end of the reporting period, preliminary indications were that agencies were responding to the opportunities provided by the reforms. She noted also that one major reform impacting on employment opportunity had been the introduction of the new policy of open advertising to the public of all ongoing APS vacancies, unless an individual agency chose to restrict to internal APS advertising on grounds of cost or operational efficiency. A survey of Gazette notifications undertaken by time of reporting had indicated that 94 per cent of vacancies were then being advertised as open to the public, compared with 28 per cent prior to the introduction of the new policy (PSCr AR 1998, p.18).
The administrative reforms were to be confronted, however, with a potential barrier to their implementation. On 2 April 1998, notice was given on behalf of the Senate Regulations and Ordinances Committee of a motion to disallow the amendments to the Public Service Regulations which had come into effect on 15 March 1998. However, on 26 May 1998, the notice of motion to disallow was withdrawn, and no other Senator moved to take the motion on in his or her own name. The amended regulations accordingly remained in place.
Reintroduction of legislation
As had been foreshadowed, the Public Service and Public Employment (Consequential and Transitional) Amendment Bills were reintroduced into the House, unchanged, with Minister Kemp stating that it would not be possible ‘to build a fully coherent, reformed, management structure without legislative change’, notwithstanding the changes being implemented through the administrative reforms package (PD House 5 March 1998, p. 527).
The Senate-amended Parliamentary Service Bill was also reintroduced by the Speaker, who noted the continuing wish of the government for maintaining the complementary nature of the public service and parliamentary service legislation, and for their consideration by the Parliament to occur at the same time. The Parliamentary Service (Consequential Amendments) Bill, not having been amended by the Senate, did not need to be resubmitted (PD House 10 March 1998, p. 855).
The three resubmitted Bills were considered by the House in cognate debate. The Opposition recorded its continuing concerns with the Bills but indicated that, while it would be pursuing all previously agreed amendments, it would not again initiate them until the Bills returned to the Senate. The government’s House majority therefore ensured passage of the Bills in the House, with minimal debate, on the same day.
The three Bills were reintroduced into the Senate on 12 March 1998 and again debated cognately, with the Senate again agreeing to the same 52 Opposition and Australian Democrat amendments as before. The respective Opposition and Democrat reaffirmations of their previously stated positions were provided by Senators Faulkner and Allison, respectively (PD Senate 30 March 1998, p. 1552–72, and 1 April 1997:1656–86).
The Bills were returned to the House, where all of the proposed amendments were rejected by the Government and each of the three Bills then laid aside (PD House 6 April 1998, p. 2588, 2590, 2594).
Apart from restating the government’s position that the proposed amendments to the Bills ran contrary to its general APS reform objectives, it is of interest to note some of the reasons given by Minister Kemp in relation to particular issues, in the light of subsequent events:
- Amendments which sought to override provisions of the 1996 Workplace Relations Act were not acceptable in that they sought to place the APS on a different footing from the private sector.
- The attempt to reinstate access by SES employees to the unfair dismissal provisions of the Workplace Relations Act would inappropriately allow those employees to be treated differently from their equivalents in other public sectors.
- Proposals to retain the Merit Protection Commissioner as an independent statutory agency, and to retain tripartite appeals processes, were unacceptable in that they would impose binding decisions on agency heads, unduly constrain their employment powers and indirectly continue the costly focus on process within agencies.
- Amendments which sought variously to limit the powers of agency heads to engage, deploy and terminate staff would unnecessarily restrict flexibility for their efficient and economical employment (PD House 6 April 1998, p. 2583–5).
In the case of the Parliamentary Service Bill, the Minister stated that the proposed amendments were unacceptable, in that they ran contrary to the objective of establishing a separate and independent parliamentary service, and would bind that service by rigidity, prescription and restriction. (PD House 6 April 1998:2593–4)
The APS legislation revisited
Twelve months later, with the administrative package remaining in place, the government moved to reintroduce its proposed legislative reforms.
Peter Shergold had been succeeded by Helen Williams on 5 February 1998, the first woman to be appointed as Public Service Commissioner. Remaining in that office until January 2002, she became responsible for further intense Commission activity, directed towards achieving enactment of the 1999 Public Service Act and its subsequent implementation. As with her predecessor, she also placed particular emphasis on the need for accountability and effective application of the APS Values. She also actively pursued the Commission’s objective of better defining and evaluating APS leadership needs and development options.
The Public Service Bill 1999 and the Public Employment (Consequential and Transitional Amendment) (PECTA) Bill 1999 were introduced in the House. The Bills were the same as their 1997 predecessors, with Minister Kemp stating the government’s position in the following terms:
The government considers it important for the Senate again to consider the [Public Service] bill for the purpose of providing the means of freeing APS agencies from central controls and of enabling APS agencies to adopt employment arrangements which meet their particular needs. The government is determined to bring Public Service employment arrangements into line with community standards and to provide the conditions necessary for Public Service organisations to achieve high performance.
The reforms which, with the assistance of the opposition and minor parties in the Senate, have already been implemented have gone a long way towards providing the environment necessary for the APS to enter the next century as a high performing, innovative and responsive organisation. It is my hope that we can now progress this legislation to allow the APS to achieve its full potential (PD House 30 March 1999, p. 4683–6).
The Minister’s Second Reading Speech on the reintroduced PECTA Bill was couched in similar terms, but with amendments foreshadowed to Schedule 1 to that Bill, detailing the extensive list of amendments to other existing enactments, consequential on passage of the Public Service Bill, along with incorporation of references to additional, relevant legislation (PD House 30 March 1999, p. 4685).
The Minister’s speech included specific reference also to an intended amendment of particular interest to parliamentary colleagues:
The bill also deals with the consequences of devolving the arrangements for setting the salaries of the Senior Executive Service. The link of the remuneration of members of parliament with the SES band 2 minimum salary will be replaced by a link to the classification structure created by the Remuneration Tribunal for certain statutory offices. It is not intended to increase the level of remuneration (PD House 30 March 1999, p. 4686).
The legislative linkage was to be achieved through complementary amendments of the Remuneration Tribunal Act and the Remuneration and Allowances Act, to allow the reference point for parliamentary salaries to be in accordance with the classification determined by the Remuneration Tribunal for a principal executive office, under a newly inserted s. 12c of the Tribunal’s Act.
Debate on both Bills was adjourned, allowing the Government to initiate discussion on their content, and the previously proposed amendments, with the Leader of the Opposition in the Senate.
Reintroduction of Parliamentary Service legislation
The Parliamentary Service Bill 1999 was reintroduced into the House by the Speaker some three months later. As had been the case with its Public Service Bill counterpart, the Bill was essentially the same as the predecessor Parliamentary Service Bill 1997, subject to three relatively minor amendments of a technical or updating nature. A fourth change pertained to the setting of remuneration for the Clerks in each House, with proposed remuneration arrangements similar to those proposed in the Public Service Bill for the Secretaries of APS departments, but with the associated determination-making power to be exercised by the Presiding Officers (PD House 28 June 1999, p. 7584–6).
As with the APS Bills, debate on the Parliamentary Service Bill was adjourned to permit further consideration of amendments made by the Senate to the 1997 Parliamentary Service Bill.
Reintroduction of the Public Service and PECTA Bills, although substantially in the same form as the 1997 Bills, had required prior, significant PSMPC resource input.
The Bills were reviewed and briefing provided to the Office of Parliamentary Counsel on any changes necessary to bring them up to date. The PECTA Bill required substantial revision, to take account of legislative changes which had occurred since the Bill was drafted in 1997. The process was lengthy and time consuming, and necessarily involved review, in liaison with the various responsible agencies, of all Commonwealth legislation which had been enacted during the period.
The Commission reviewed and amended also the relevant explanatory memoranda, Second Reading Speeches and ministerial briefing material required in relation to reintroduction of the Bills.
Alongside these activities, prospective amendments to the existing 1997 Bill provisions required that close consideration be given to a range of policy development issues and options, pertinent to such negotiations as might then occur on those provisions.
During the three months preceding reintroduction of the Bills, the Minister had been provided with possible options for progressing the government’s reform package and had agreed that negotiations would be pursued with the Opposition on those of its amendments previously agreed by the Senate. The process was initiated after discussion between the Minister and Senate Opposition Leader Faulkner, who had indicated that, while it would maintain in principle that all of its previously proposed amendments should proceed, it would not seek to pursue those which had not been agreed by the Senate.
The active amendment proposals were addressed in a range of Issues papers prepared within the Commission, and presented progressively for the Minister’s clearance as negotiating briefs. Preparation and coordination of the Issues papers constituted a major intensive task for the Commission’s Deputy Commissioner and the (now designated) Policy & Employment Group in consultation, as necessary, with other areas of the Commission and the then Department of Employment, Workplace Relations and Small Business (DEWRSB). As each individual brief was discussed with, and cleared by, the Minister, the agreed negotiating positions then became the subject of discussions between a member of the Minister’s staff and a representative of Senator Faulkner’s office.
The negotiating process itself generated a period of activity of even greater intensity for all involved, with much ‘burning of the midnight oil’ by Commission and DEWRSB staff, and progressive generation by the Office of Parliamentary Counsel of intended Bill amendments. The draft legislative amendments were, in turn, submitted for clearance by the Minister and the Opposition. Government–Opposition disagreement on proposed amendment action was essentially resolved, in the ultimate, against the criterion that there should be no detriment to the government’s reform agenda. Advice was sought from the Australian Government Solicitor in cases of uncertainty, as to the possible application and effect of particular proposals for Bill amendments.
While the negotiating process was to continue virtually until the time of passage of the legislation, agreement had been achieved on most amendment proposals by late September 1999, allowing debate to be resumed in the House on the Public Service Bill and the Parliamentary Service Bill, as well as the amended PECTA Bill.
With Opposition support, the government introduced 52 amendments to the Public Service Bill—coincidentally, the same number of amendments passed previously by the Senate, but without direct correspondence of detailed content. Ten amendments to the PECTA Bill were introduced on the same day, with amendments introduced also to the Parliamentary Service Bill. All three Bills were then passed by the House, on the voices, on the same day (PD House 27 September 1999, p. 10594, 10647, 10654).
Nature of Public Service Bill amendments
In introducing the Public Service Bill amendments, Minister Kemp reiterated the merits of achieving a shorter, simpler Public Service Act which would provide for increased management flexibility for the APS, removing overcentralisation and excessive prescription, and providing specific focus on accountability and the values, principles and standards of behaviour applicable to APS employment. As to the amendments:
The government would have much preferred the bill in its original form—for its brevity, its simplicity and its focus on principles. The amendments, while not significantly altering the substance of the original bill, contain in our view some unnecessary detail and prescription. The bottom line, however, is that at no point is the amended bill more restrictive than the present arrangements and it maintains or enhances the government’s current position as an employer and manager. Importantly, the amendments to the bill have been agreed to by both the government and the opposition in the interests of progressing tangible change.
The government has been prepared to accept amendments. We have not achieved everything we wanted. We would have preferred different practices in some areas. Nevertheless, we believe the bill in the form in which we expect it to be amended represents a significant step forward in the organisation of public administration in this country (PD House 27 September 1999, p. 10585–6).
Apart from taking issue with the government allegedly implying that the 52 amendments could be characterised as ‘minor adjustments’, after some five months of negotiation, the Opposition was supportive of the amendment proposals:
Bevis: The government amendments moved today satisfy our concerns with the government’s original proposals (PD House 27 September 1999, p. 10593).
The key changes related to:
- expanding the APS Values
- clarifying the sanctions applicable to breaches of the Code of Conduct and the applicability of the code to statutory office holders
- expanding the responsibilities of the Merit Protection Commissioner
- enhancing accountability and reporting requirements in a number of areas • increasing the protections afforded to employees against reduction in their entitlements under an award, Certified Agreement or Australian Workplace Agreement
- extending the processes for the review of actions affecting employees
- elaborating on the responsibilities of heads of executive agencies.
The supplementary Explanatory Memorandum submitted to the House accompanying the proposed amendments provided elaboration on the nature of the amendments in each area, and the detail is not repeated here. Leaving aside the various amendments enhancing, or clarifying provisions of the original Bill, however, some examples of significant new provisions are illustrative of the scope of the concessions negotiated.
A range of earlier concerns with the Bill about perceived damage to traditional, longstanding career public service principles, and the equal employment and industrial democracy reforms legislated in more recent years was accorded varying degrees of acknowledgement through addition of new APS Values 10(l), (m) (n) and (o) on, respectively:
- employment equity
- reasonable community access to APS employment
- specific affirmation of the APS as a career-based service
- assertion that a fair system of review of employment decisions would be provided within the APS.
Although not proceeding as a legislative amendment, the government accepted that existing Value 10(j), asserting that the APS would provide ‘a fair, flexible, safe and rewarding workplace’ should be seen as encompassing the application within the APS of certain consistent workplace principles. Those principles were spelled out in the Explanatory Memorandum:
Principles of APS employment
The APS provides its employees with:
- fair and flexible remuneration and conditions of employment;
- fair and consistent treatment, free of arbitrary or capricious administrative acts or decisions;
- an environment where, consistent with the Workplace Relations Act 1996, employees have the freedom to join industrial associations of their choice, or not to join industrial associations; and
- opportunities for appropriate training and development. (Supplementary EM House 1999, p. 3.3, 2)
These principles originated essentially from the McLeod Review Group, which had favoured inclusion in the Act of ‘consolidated codification of the principal elements of the working environment which staff are entitled to expect to be in place’ (McLeod Report 1994, p. 5.4 and 5.5). The McLeod formulation was modified in the statement finally agreed, to take account of other modifications to the Values, and to provide for consistency with existing Workplace Relations Act terminology.
Review of actions/Merit Protection Commissioner
The May 1997 ADMF paper, foreshadowing the content of the 1997 Public Service Bill, reflected government intention to reduce substantially the number of avenues of appeal then open to public servants for purposes of seeking review of employment decisions under the Merit Protection Act, or other review mechanisms. The new Act would require agencies to resolve appeals and grievances at the workplace level through investigation and conciliation processes. Where the employee remained dissatisfied with the outcome of these processes, there would be a possible option for the matter to be reviewed further by the Public Service Commissioner or the Commissioner’s delegate. The Merit Protection Act was to be repealed.
As a result of the 1997 JCPA examination of the Bill, the review function reverted to an independent office of Merit Protection Commissioner within the Public Service and Merit Protection Commission, with responsibility for a still streamlined external review process under Public Service Regulations provisions. The Opposition, however, continued to view the appeal mechanisms as inadequate, and amendments to the Bill, agreed by the Senate, were directed to enhancing in the Act both the review of actions and the specific Merit Protection Commissioner provisions. Ultimate acceptance by the government of negotiated changes, in both areas, resulted in the extended statutory basis for review of actions, and definition of Merit Protection Commissioner functions, in sections 33 and 50, respectively, of the 1999 Act.
Negotiations on Senate proposed amendments to statutory provisions pertaining to employment conditions resulted in concessions by the government that:
- the usual basis for engagement would be as an ongoing employee (section 22)
- reduction of the classification of an APS employee would not occur without the employee’s consent, other than in explicitly specified circumstances (section 23)
- an agency head’s power to determine the remuneration or other conditions of employment of any employee with the agency could not be exercised to diminish the benefit to an employee of any individual term or condition applicable to the employee under an award, certified agreement or AWA (section 24)
- the only grounds for termination of the employment of an APS employee would be those specified in the Act, or otherwise specified by the regulations (section 29).
Public Employment (Consequential and Transitional) Amendment Bill
Following passage of the Public Service Bill amendments, the proposed amendments to the PECTA Bill were introduced briefly by the Minister and passed without further debate (PD House 27 September 1999, p. 10594). An additional amendment moved by the Speaker, providing for the Remuneration Tribunal to provide advice in relation to the remuneration and other conditions for the offices of Parliamentary Service Commissioner, Parliamentary Service Merit Protection Commissioner and Secretaries of the Parliamentary departments, was agreed also without debate. (PD House 27 September 1999, p. 10647).
Parliamentary Service Bill amendments
Amendments were moved to the Parliamentary Service Bill, directed generally to making that Bill consistent in coverage or intent with the then amended Public Service Bill. Two further amendments were of a consequential or technical nature only. All amendments were agreed without debate. (PD House 27 September 1999:10647–54)
Senate passage of amendments
The three amended Bills were transmitted to the Senate, with Opposition Senate Leader Faulkner acknowledging the intensive negotiations which had occurred on the Bills in the preceding five months and the range of the amendments which had been agreed.
Senator Faulkner noted that one issue remained unresolved for the Opposition in relation to the Public Service Bill, and moved a related amendment to the now section 22, designed to provide that engagement of a person as an APS employee for a specified term, or for the duration of a specified task should be able to occur only in circumstances prescribed in the Public Service Regulations (and, hence, subject to disallowance). That amendment and a minor Australian Democrat terminology amendment, were agreed by the Senate (PD Senate 14 October 1999, p. 9684–97).
In relation to the PECTA Bill, the Senate agreed to four Australian Democrat amendments on terminology, providing for replacement of the word ‘chairman’ with the word ‘chair’ in a number of the Bill’s Schedule items (PD Senate 14 October 1999, p. 9697–9700).
Three Opposition amendments to the Parliamentary Service Bill, relating variously to the Parliamentary Service values, redeployment options for parliamentary staff and a desired correspondence between Parliamentary Service determinations and Public Service Regulations in relation to review of actions, were agreed by the Senate. A further Opposition amendment, mirroring the earlier Public Service Bill amendment in relation to term employment, was agreed also, over formally recorded government objection (PD Senate 14 October 1999, p. 9700–2).
The three amended Bills were returned to the House, with the government then signifying acceptance of all the changes, other than the two amendments relating to term employment. In relation to the latter, however, the Minister advised that further negotiation had produced an acceptable compromise, which would allow the Bills to pass both Houses without recourse to formal legislative amendment. The compromise involved commitment by the government to clarify, in regulations, the grounds on which the engagement of persons for specified terms might be extended by an agency head. All amendments were accordingly agreed (PD House 19 October 1999, p.11886–9).
The Bills returned to the Senate and passed without further amendment, with a dissenting vote by Australian Democrat senators (PD Senate 20 October 1999, p. 9993–9).
Governor-General assent to the three Bills was given on 11 November 1999.
Implementation of APS reforms
The Public Service Act 1999, the Public Employment (Consequential and Transitional) Amendment Act 1999 (PECTA Act) and the Parliamentary Service Act 1999 all came into operation on 5 December 1999. The Parliamentary Service (Consequential Amendments) Act 1997 remained in place, as amended by the Parliamentary Service Act 1999.
By 5 December 1999, the supporting framework for the Public Service Act had been put in place, comprising the following:
- Public Service Regulations 1999
- Public Employment (Consequential and Transitional) Regulations 1999
- Public Service Commissioner’s Directions 1999
- Prime Minister’s Public Service Directions 1999
- Public Service Classification Rules 1999.
The Commission generated also a range of guidance material for agencies to assist with implementation of the significant procedural changes required by the new legislation.
Development of this framework and guidance material is discussed further below.
Public Service Regulations 1999
Developmental work on new Public Service Regulations had been set in train in conjunction with introduction of the 1997 Public Service Bill, and the JCPA had shown interest particularly in the then contemplated ‘review of decisions’ regulations. Regulation requirements were to be affected significantly, however, as a result initially of Government acceptance of recommendations of the committee itself but, later, as a consequence of the range of amendments negotiated on the 1999 Bill. In the case of the latter, instructions were provided progressively to the Office of Legislative Drafting, as the legislative amendments were agreed, and the wording of key, draft regulations was cleared with the Opposition prior to finalisation, as had been the case with the draft Bill amendments.
The detailed content of the Public Service Regulations 1999 is not addressed in this history. In summary, apart from various formal provisions, the Regulations address:
- the Code of Conduct, including whistleblower provisions (Part 2)
- the employer powers and obligations of agency heads in relation to the engagement and employment of APS employees, along with certain employee obligations (Part 3)
- the operation of Independent Selection Advisory Committees (Part 4)
- the framework for the review of any APS action relating to the employment of an APS employee, including the role of the Merit Protection Commissioner (Part 5)
- certain powers and functions of the Public Service Commissioner, including immunity from suit provisions relating to Code of Conduct breach inquiries (Part 6)
- certain powers and functions of the Merit Protection Commissioner, including independence, non-disclosure of information and immunity from suit provisions (Part 7)
- determination of variations of the remuneration and other conditions of employment of APS employees as a consequence of administrative arrangements and reorganisations (Part 8)
- miscellaneous provisions dealing variously with attachment of salaries to satisfy judgement debts, conditions applying to release by agency heads of personal information relating to APS employees, and the delegation powers of the Public Service Commissioner, Merit Protection Commissioner and agency heads (Part 9).
During their first full year of operation, 16 amendments were made to the Regulations, affecting variously regulations relating to employment, promotions and performance of functions by persons acting on behalf of the Merit Protection Commission.
Public Employment (Consequential and Transitional) Regulations 1999
With the passage of the 1999 legislation, certain provisions were necessary from date of commencement (5 December 1999) to:
- validate actions and decisions taken under the 1922 Act and the Merit Protection Act
- cover some aspects of the transition from the old to the new employment framework
- make consequential amendments to other legislation which incorporated references to the old Act framework.
In broad terms, the regulations served to ensure that the operation and intent of a wide range of APS engagement, employment, appeal, review, delegation and authorisation actions were preserved, where appropriate, as a result of repeal of the 1922 Public Service Act and the 1984 Merit Protection Act.
Public Service Commissioner’S Directions 1999
The 1999 Act variously empowers the Public Service Commissioner to issue Commissioner’s Directions, prescribing procedures in relation to:
- the APS Values (section 11)
- procedures required to be established by agency heads for determining whether an APS employee of the agency had breached the Code of Conduct (section 15(4))
- SES employment matters (section 36).
Sections 42(1) and (2) of the Act specify that, while the Directions cannot in themselves create offences or impose penalties (matters dealt with by the Code of Conduct), they are binding on agency heads. Additionally, section 12 of the Act requires agency heads to ‘uphold and promote’ the APS Values.
Section 42(3) of the Act enables the Commissioner to apply, adopt or incorporate in Directions any matter set out in Classification Rules made by the Public Service Minister under section 23 of the Act—relevant to the definition of what constitutes a ‘promotion’, as the Commissioner’s Direction in this area is framed in terms of movement to a higher group of classifications, as set out in those rules.
As with the Regulations, the Directions may be disallowed by either House of Parliament (section 42(4)).
The nature and content of the Directions was detailed in the Explanatory Statement prepared for the information of the Parliament, when the Directions were made by the Commissioner on 5 December 1999. By way of general introduction, the Statement indicated that, while the Directions were binding on agency heads, they differed from preceding 1922 Public Service Act provisions in that they did not prescribe detailed process requirements, unless the Commissioner considered it unavoidable. The Directions were intended rather to specify minimum compliance standards for agency heads and APS employees. While agency heads were required to establish measures, structures and appropriate systems to ensure compliance with the minimum standards, they were free to put in place measures over and above the minimum requirements.
Formulation of the Directions in each area drew on already-existing requirements and instructions as indicated below:
The March 1998 administrative reforms had introduced, into the then Public Service Regulations, a set of 11 APS Values, which agency heads were required to uphold and promote. Subsequently, in July 1999, the Commission published the paper, Values in the Australian Public Service, describing the components of each of the prescribed Values, and providing a checklist which agencies could use in applying them. It provided also a series of indicators which could assist both the Commissioner and the agencies in evaluating application of the values. Evaluation of the extent to which agencies incorporated the APS Values was a required matter for inclusion in the Commissioner’s State of the Service Report, prescribed also as part of the March 1998 reforms.
Passage of the 1999 Act, however, produced a number of new and amended APS Values in the new section 10 of the Act. Government acceptance of proposed amendments to the earlier Bill had resulted in four new Values being added, and four existing Values being amended. Additionally, the Act now required the Commissioner to issue written directions in relation to each of the Values, for purposes both of ensuring that the APS incorporated and upheld the Values, and for determining, where necessary, the scope and application of the Values.
Three chapters of the Commissioner’s Directions are devoted to the APS Values. Chapter 2 is directed to ensuring understanding by agency heads and APS employees of their responsibilities in relation to the Values, and minimum requirements for their observance (and their promotion also, in the case of agency heads). Chapters 3 and 4 contain additional Directions on the Values which deal with diversity in employment and merit in employment, respectively.
The introductory note to Chapter 2 indicates that the Values and Directions describe standards and outcomes which can be supported in the same ways by all agency heads and APS employees, allowing for the likelihood that some Values would have to be upheld in different ways in different agencies, according to differing levels of involvement of people in particular tasks.
The publication Values in the Australian Public Service was revised to take account of the new and amended Values and was reissued early in 2001. Most recently the Values have been reissued in the Commission’s August 2003 good practice guide for agency heads and managers, titled Embedding the APS Values. The legislated Values, while not grouped or presented in any order of priority in the 1999 Act, have been presented in the guidance material in items reflecting relationships and behaviours in four categories:
- Relationships with the Government and Parliament
- Relationships with the public
- Workplace relationships
- Personal behaviour.
Individual key Values may be linked to one or more of these areas as illustrated in figures 8.1 and 8.2
Breaches of the Code of Conduct
A new prescribed Code of Conduct for APS officers and employees formed part of the March 1998 administrative reforms, derived from the code which had been included in the aborted 1997 Bill. Through inclusion in the Public Service Regulations, it was legally enforceable, with a consequent strengthened role as a public statement of the standards of behaviour and conduct expected of those working in core public employment.
A breach of the code provided possible grounds for initiating disciplinary action under the existing 1922 Public Service Act provisions.
Figure 8.2: The APS Values and Relationships
Key Values: The APS and its relationship with Government and Parliament
- The APS is apolitical, performing its functions in an impartial and professional manner. (s10(1)(a) of the PS Act)
- The APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public. (s10(1)(e) of the PS Act)
- The APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government’s policies and programs. (s10(1)(f) of the PS Act)
Key Values: The APS and its relationship with the public
- The APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public. (s10(1)(g) of the PS Act)
- The APS provides a reasonable opportunity to all eligible members of the community to apply for APS employment. (s10(1)(m) of the PS Act)
Key Values: The APS and workplace relationships
- The APS is a public service in which employment decisions are based on merit. (s10 (1)(b) of the PS Act)
- The APS provides a workplace that is free from discrimination and recognises and utilises the diversity of the Australian community it serves. (s10(1)(c) of the PS Act)
- The APS establishes workplace relations that value communication, consultation, co-operation and input from employees on matters that affect their workplace. (s10(1)(i) of the PS Act)
- The APS provides a fair, flexible, safe and rewarding workplace. (s10(1)(j) of the PS Act)
- The APS focuses on achieving results and managing performance. (s10(1)(k) of the PS Act)
- The APS promotes equity in employment. (s10(1)(l) of the PS Act)
- The APS provides a fair system of review of decisions taken in respect of APS employees. (s10(1)(o) of the PS Act)
Key Values: Personal behaviour in the APS
- The APS has the highest ethical standards. (s10(1)(d) of the PS Act)
- The APS has leadership of the highest quality. (s10(1)(h) of the PS Act)
- The APS is a career-based service to enhance the effectiveness and cohesion of Australia’s democratic system of government. (s10(1)(n) of the PS Act)
The 1998 prescribed code framework was reintroduced into the 1999 Public Service Bill and duly enacted, with section 15 of the Act now requiring agency heads to establish procedures for determining whether an APS employee of the agency had breached the code. Such procedures must comply with requirements set out in Commissioner’s Directions. Those requirements are spelled out in Chapter 5 of the Directions.
After noting that alternative means may be appropriate, in some circumstances, for dealing with a suspected breach of the code, the Directions set out general requirements needing to be addressed in agency procedures, for purposes of determining whether a breach has occurred. Emphasis is placed on fair treatment of the employee concerned, independent and unbiased handling of the determination process, and written recording of the outcome.
As previously mentioned, the Commission’s 1995 Guidelines on official conduct of Commonwealth Public Servants have been modified and have now been published in a new format, taking account both of the provisions of the 1999 Act and the Commissioner’s Directions and their relationship to the APS Values. The APS Values and Code of Conduct in Practice: A guide to official conduct for APS employees and agency heads (the Guide) was launched by the Commission in August 2003, at the same time as the good practice guide, Embedding the APS Values.
Chapter 6 of the Commissioner’s Directions requires agency heads to exercise their SES employer powers ‘in a way that seeks to maintain and develop the leadership role and capabilities of the SES’ (Direction 6.1). The Directions served to codify then existing expectations of agency heads for pursuit of ‘best practice’ in their handling of SES employment matters.
The Directions spell out minimum requirements for any of the following decisions made by an agency head:
- promoting or engaging a person as an SES employee
- managing the mobility of an SES employee
- redeploying an SES employee with the employee’s agreement
- assigning an SES employee to duties at a lower classification, without the employee’s agreement
- giving notice to an SES employee in relation to a retirement incentive payment
- terminating the employment of an SES employee.
During 2000–01, the Commissioner’s Directions were subject to 26 amendments on a range of matters (PSCr AR 2001, p. 20–1).
Prime Minister’s Public Service Directions 1999
Section 21 of the Act enables the Prime Minister to issue general, written directions to agency heads in relation to the management and leadership of APS employees. Such directions must be published in the Gazette, within 14 days of issue.
In terms of the evolution and development of the 1999 Act, the immediate origins of section 21 can be attributed to the statement of intent contained in the ADMF paper setting out the proposed framework for a new Act, prior to introduction of legislation into Parliament:
While the new Public Service Act will provide the framework for a far more devolved APS environment, it will still be necessary for a Government to set policy directions for the APS. As now, Secretaries will be required to observe these directions in the administration of their organisations.
In order to give effect to Government policy, it is proposed that the Prime Minister have the power under the Act to issue directions to Secretaries, with a discretion to delegate this power. Such directions will not be able to encompass individual staffing decisions. Indeed, for the first time, Ministerial direction of this sort will be specifically prohibited (PSMPC & DIR 1997, p. 9).
Apart from pressing for inclusion of the gazettal requirement during the 1999 negotiations, the Opposition raised no objection to the proposed provision.
Inclusion of a new provision of this nature is clearly compatible with the more explicit expression of various Ministerial responsibilities in the 1999 Act, compared with its 1902 and 1922 predecessors, at their respective times of original enactment:
- The 1902 Act contained no references to the Prime Minister and provided, generally, for exercise of staffing and other powers by either the Governor-General or the Public Service Commissioner. Aside from the ongoing provision for departmental heads to advise Ministers on all matters relating to their respective departments, the Ministers themselves were accorded only a small range of powers, in relation to relatively routine public service employment matters (leave, discipline, temporary employment, insolvency and provision of departmental services on public holidays) and the formal tabling of the Public Service Commissioner’s annual report.
- Under the 1922 Act the principal legislative powers continued to be vested in the Governor-General and the Public Service Board. At time of enactment, the only reference to the Prime Minister was in relation to receipt of the Board’s annual report, and involvement of Ministers continued to be specified only in relation to a small number of relatively routine reporting and APS staffing matters.
In later years, however, and particularly in the 1980s, the number of powers assigned to Ministers increased significantly—particularly in relation to the Prime Minister. The latter was accorded, progressively, specific powers in relation to machinery of government changes; the appointment and termination of services of Secretaries and the Public Service Commissioner; the operation of the equal employment opportunity programs and industrial democracy plans; and the transfer of Commonwealth functions within and outside the APS. By the 1980s also, the practice had become established of designating particular Ministers to assist the Prime Minister on public service matters, itself given explicit recognition by inclusion in the Act in 1986 of authority for other Ministers to be able to exercise powers on behalf of the Prime Minister.
Assignment of a wider range of more significant powers to the Prime Minister and other Ministers in the 1999 Act accorded both with the rhetoric of the government APS reform proposals, and with specific legislative provisions underlining various accountability requirements and expectations of the Service. APS Values in paras 10(e) and (f ) of the Act require the Service to be accountable for its actions and responsive to the government, and the Act elsewhere imposes a range of specific accountability-related obligations on the Public Service Commissioner and agency heads, as well as on individual APS staff members. Section 19 extends further the potential accountability mechanisms, by allowing for the Prime Minister to issue general directions in relation to the management and leadership of APS employees—as indicated in the ADMF paper extract quoted above, ‘to give effect to Government policy’.
Despite the relatively limited number of direct references in previous Public Service Acts to the powers of the Prime Minister and Ministers, the traditions and ethos of the federal public service throughout its history would suggest that responsiveness to government policy and directions would have been viewed as the norm. As indicated earlier in this paper, however, in the particular context of the review of APS classification structures by the Wheeler and subsequent Public Service Boards, there have been occasions when there appear to have been tensions in relation to implementation of government policies in relation to the public service. Section 19 of the 1999 Act now provides, for the first time, an explicit and unambiguous means by which governments can issue public, general directions to all agency heads on matters of policy.
While the Directions power could be seen to have the potential for criticism on grounds of politicisation of the Service, were a Direction to be given which was seen to have politically partisan overtones, the two Directions issued to date would have to be viewed as unexceptionable in that regard:
- Chapter 2 of the Directions requires the grant of leave without pay to APS employees to take up statutory appointments, employment under the Members of Parliament (Staff ) Act or employment under the Governor-General Act. It covers also right of return to the APS. Accepted arrangements and conditions, applying under the former 1922 Act officers’ mobility provisions, have thereby been preserved, for the mutual benefit of the various parties involved.
- Complementing Public Service Regulation 3.5(4), Chapter 3 of the Directions authorises the engagement by agency heads of persons for a specified term, or for the duration of a specified task, for the purpose of gaining skills and experience under any of seven specified APS-wide training schemes.
As of now, therefore, the Prime Minister’s Directions fulfil a significant role in the support structure for the 1999 Act.
Public Service Classification Rules 1999
Section 23 of the Act empowers the Public Service Minister to make rules about the classification of APS employees.
The intent and nature of the Classification Rules was described in the Explanatory Memorandum for the 1999 Public Service Bill:
4.10.4. The purpose of the Classification Rules is to provide a systematic mechanism for categorising employees for the purposes of facilitating the application of the merit principle and the APS mobility arrangements. Common Service-wide prescription of the classification system is needed in order to distinguish clearly between promotions (which are subject to merit) and assignments of duties at the same classification level or reductions in classification, where different rules and rights of review may apply. The Classification Rules will create a framework of approved classification for these purposes. It is not intended that they would be used to make rules that directly change the classification of individual employees or their remuneration and conditions.
4.10.5. The Classification Rules will recognise existing classifications in awards. They will also be drafted so that, whenever there is a variation in the classification set out in an award that applies to the APS, the new classification will automatically become an approved classification for the purposes of the Classification Rules (EM Senate 1999, p. 46–7).
Agency heads are required to comply with the Rules, and are expected to apply them, not only when exercising Public Service Act powers, but also when exercising powers under other laws relating to APS employees (e.g. Australian Workplace Agreements and Certified Agreements entered into under the Workplace Relations Act need to be consistent with the Rules).
Section 23 specifies limits on agency head powers to reduce the classification of an APS employee, which must be applied also in relation to any reduction of classification under the abovementioned Agreements or relevant awards. Application of the Classification Rules has been addressed in instructions issued by the Department of Employment and Workplace Relations.
As previously mentioned, the Commissioner’s Directions provide for the groupings under the Rules to bear directly on the definition of what constitutes a promotion within the APS. Additionally, the Rules serve to define the employees who are SES employees, in accordance with s. 34 of the 1999 Act.
Guidance material and briefings
Between passage of the legislation on 20 October 1999, and the implementation date of 5 December 1999, the Commission issued, progressively, an extensive range of guidance material, to assist agencies with the introduction of the new legislative framework:
- A series of 36 Public Service Act 1999 Advices provided guidance on the operation and implementation of the new Act, and the associated PECTA Act, including advice both on the operational provisions of the new legislation and on transitional arrangements, A HISTORY IN THREE ACTS where various staffing actions had been commenced, but not finalised, under the 1922 Act. A listing of the Advices issued is reproduced at Appendix 8.
- Additionally, the Commission issued a series of 12 Information Notices, providing details on the implementation of the Public Service and PECTA Acts by way of the proposed ongoing and transitional regulations, and the proposed Prime Minister’s and Public Service Commissioner’s Directions.
In addition to distribution to agencies in hard copy, the various documents were made available on the Commission’s Internet site, for purposes of allowing immediate circulation and broader access, particularly for regional areas.
While the Commission encouraged agencies to inform their staff of the changes, and to invite them to pursue further enquiries internally within the context of their own agency’s procedures, the six months from December 1999 saw some 1000 agency and individual calls to the Commission’s own Helpline, relating specifically to aspects of the new legislation.
With the object of increasing understanding of the new framework, the Public Service Commissioner conducted a briefing session for Secretaries, and the Commission conducted two major information sessions for senior corporate management staff of agencies. Advice and information sessions were provided also through the various people management networks, and to individual Canberra and regional agencies.
In the period since implementation, work has been proceeding in the Commission to consolidate guidance material in more substantial booklet format. Mention has already been made of the publication, Values in the Australian Public Service, and of a revision of the official conduct guidelines. Both were to be part of a new Values and conduct series of booklets being produced by the Commission. As indicated above, both the Values and the conduct guidelines were issued in a new format in August 2003.
As at June 2001, 15 booklets had been programmed in a separate Working with the Act series, designed to provide technical advice for managers and corporate areas to help them work within the legal requirements of the 1999 Act and its subordinate legislation. A third series of seven Working together booklets was planned, to provide advice on improving the culture of the workplace, designed primarily to assist people in the development of human resource strategies and practices in agencies, including already published titles dealing with workplace diversity guidelines, staff counselling and maintaining workplaces free of harassment.
A full list of the then-issued, and proposed, booklets has been published by the Commissioner, along with the titles of four Merit Protection Commissioner pamphlets, designed to assist agency heads to promote the Value that the APS provides a fair system for review of actions for its employees (PSCr AR 2001, p. 208–9).
As from May 2002, the above publications, other than those issued by the Merit Protection Commissioner, have been consolidated into a single series of publications.
Implementation of Parliamentary Service Act
In the case of the Parliamentary Service Act, determinations under section 71 of that Act were made progressively after 5 December 1999, following consultation with the Parliamentary Service Commissioner (also the holder of the office of Public Service Commissioner). Those determinations have dealt with matters similar to those covered by the Public Service Regulations. Additionally, the Act provides for other supporting instruments in the following areas:
- General directions may be made to Secretaries by Presiding Officers, after consultation with the Parliamentary Service Commissioner (section 21)—a direction was issued, comparable to the Prime Minister’s direction to APS Agency Heads under section 21 of the Public Service Act, mandating the release of staff to accept certain forms of statutory-based employment.
- Classification Rules may be made by the Presiding Officers after consulting the Parliamentary Service Commissioner (section 23). Rules, comparable to the APS Classification Rules were issued in the latter part of 2000.
- The Parliamentary Service Commissioner must issue guidelines in writing about SES employment matters (section 36). Guidelines, similar to the Directions made by the Public Service Commissioner under section 36 of the Public Service Act, were issued in June 2000.