PARLIAMENTARY SERVICE AMENDMENT BILL 2013

i Parliamentary Service Amendment Bill 2012 No. , 2012

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Amendment of the Parliamentary Service Act

1999

Part 1--Secretaries

Part 2--Senior Executive Service

Part 3--The Parliamentary Service Commissioner and Merit

Protection Commissioner

Part 4--Parliamentary Service Values and Employment

Principles

Part 5--Code of Conduct

Part 6--Whistleblower reports

Part 7--Review of actions

Part 8--Non-ongoing Parliamentary Service employees

Part 9--Confidentiality of information

Part 10--Immunity from suit

Part 11--Legislative instruments

Part 12--Acting appointments

Part 13--Miscellaneous amendments

Schedule 2--Application, saving and transitional provisions

Part 1--Preliminary

Part 2--Secretaries

Part 3--Senior Executive Service

Part 4--Parliamentary Service Values and Employment

Principles

Part 5--Code of Conduct

Parliamentary Service Amendment Bill 2012 No. , 2012 1

A Bill for an Act to amend the Parliamentary

Service Act 1999, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Parliamentary Service Amendment

Act 2012.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Parliamentary Service Amendment Bill 2012 No. , 2012

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1,

Parts 1 to 11

The later of:

(a) the start of the 28th day after this Act

receives the Royal Assent; and

(b) immediately after the commencement of

Schedule 1 to the Public Service

Amendment Act 2012.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

3. Schedule 1,

Part 12

The day this Act receives the Royal Assent.

4. Schedule 1,

item 68

The day this Act receives the Royal Assent.

5. Schedule 1,

items 69 to 92

The later of:

(a) the start of the 28th day after this Act

receives the Royal Assent; and

(b) immediately after the commencement of

Schedule 1 to the Public Service

Amendment Act 2012.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

7. Schedule 2,

Parts 1 to 12

The later of:

(a) the start of the 28th day after this Act

receives the Royal Assent; and

(b) immediately after the commencement of

Schedule 1 to the Public Service

Amendment Act 2012.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

Parliamentary Service Amendment Bill 2012 No. , 2012 3

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

8. Schedule 2,

Part 13

The day this Act receives the Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 1 Secretaries

4 Parliamentary Service Amendment Bill 2012 No. , 2012

Schedule 1--Amendment of the Parliamentary

Service Act 1999

Part 1--Secretaries

1 Section 57

Repeal the section, substitute:

57 Roles and responsibilities of Secretaries

Roles of Secretaries

(1) The roles of the Secretary of a Department include, but are not

limited to, the following:

(a) principal adviser to the Presiding Officer on matters relating

to the Department;

(b) leader, providing stewardship within the Department and, in

partnership with other Secretaries, across the Parliamentary

Service;

Responsibilities of Secretaries

(2) The responsibilities of the Secretary of a Department are as

follows:

(a) to manage the affairs of the Department efficiently,

effectively, economically and ethically;

(b) to advise the Presiding Officer about matters relating to the

Department;

Department complies with the law;

(d) to provide leadership, strategic direction and a focus on

results for the Department;

(e) to engage with stakeholders, particularly in relation to the

core activities of the Department;

(f) to manage the affairs of the Department in a way that is not

inconsistent with the interests of the Parliamentary Service as

a whole;

Amendment of the Parliamentary Service Act 1999 Schedule 1

Secretaries Part 1

Parliamentary Service Amendment Bill 2012 No. , 2012 5

(g) to assist the Presiding Officer to fulfil the Presiding Officer's

accountability obligations to the Parliament to provide factual

information, as required by the Parliament, in relation to the

operation and administration of the Department;

(h) such other responsibilities as are prescribed by the

determinations.

(3) Subsection (2) does not affect a Secretary's responsibilities under

any other law.

Note:

See, for example, the Financial Management and Accountability Act

1997.

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 2 Senior Executive Service

6 Parliamentary Service Amendment Bill 2012 No. , 2012

Part 2--Senior Executive Service

2 Subsection 35(2)

Repeal the subsection, substitute:

(2) The function of the SES is to provide strategic leadership of the

highest quality that contributes to an effective and cohesive

Parliamentary Service.

(3) For the purpose of carrying out the function of the SES, each SES

employee:

(a) provides one or more of the following at a high level:

(i) professional or specialist expertise;

(ii)

policy

advice;

(iii) program or service delivery;

(iv) regulatory administration; and

(b) promotes cooperation within and between Departments,

including to deliver outcomes across Department boundaries;

and

the Parliamentary Service Values, the Parliamentary Service

Employment Principles and compliance with the Code of

Conduct.

3 After subsection 37(1)

Insert:

(1A) A notice may be given to an SES employee under subsection (1)

whether or not the employee has reached the minimum retiring

age.

4 Paragraph 37(2)(b)

Omit "been compulsorily retired", substitute "retired involuntarily".

Amendment of the Parliamentary Service Act 1999 Schedule 1

The Parliamentary Service Commissioner and Merit Protection Commissioner Part 3

Parliamentary Service Amendment Bill 2012 No. , 2012 7

Part 3--The Parliamentary Service Commissioner

and Merit Protection Commissioner

5 At the end of subsection 40(1)

Add:

; (c) to inquire, subject to determinations made for the purposes of

section 16, into whistleblower reports made to the

Commissioner (or a person authorised by the Commissioner)

as referred to in that section;

(d) such other functions as are conferred on the Commissioner

by this Act, the determinations or any other law;

(e) to do anything incidental to or conducive to the performance

of any of the Commissioner's functions.

6 Subsection 40(2)

Repeal the subsection, substitute:

(1A) Before commencing an inquiry under paragraph 40(1)(c), the

Commissioner must notify the Presiding Officers in writing of the

proposed inquiry.

(2) A report made by the Commissioner in the performance of his or

her functions may include recommendations.

7 Section 41

After "paragraph 40(1)(b)", insert "or (c)".

8 Before subsection 70(1)

Insert:

(1AA) The Commissioner may, in writing, delegate to a former senior

official any of the Commissioner's powers or functions under

paragraph 40(1)(c).

(1AB) The Merit Protection Commissioner may, in writing, delegate any

of the Merit Protection Commissioner's powers or functions under

this Act (other than this section) to:

(a) an APS employee made available to the Merit Protection

Commissioner by an Agency Head (within the meaning of

the Public Service Act 1999); or

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 3 The Parliamentary Service Commissioner and Merit Protection Commissioner

8 Parliamentary Service Amendment Bill 2012 No. , 2012

(b) a Parliamentary Service employee made available to the

Merit Protection Commissioner by the Secretary of the

Department in which the employee is employed.

9 At the end of section 70

Add:

(6) A person (the delegate) to whom the Merit Protection

Commissioner has delegated powers or functions under

subsection (1AB) is not subject to direction by any person other

than the Merit Protection Commissioner in relation to the

delegate's exercise of the delegated powers or functions.

(7) A power or function that is exercised by an APS employee under a

delegation under subsection (1AB) is taken, for the purposes of the

Code of Conduct (within the meaning of the Public Service Act

1999), to have been exercised by the APS employee in connection

with APS employment (within the meaning of that Act).

(8) In this section:

former senior official means:

(a) a person who held, but no longer holds, an office or

appointment under an Act; or

(b) a person who was, but is no longer, an SES employee, and

who does not hold an office or appointment under an Act; or

the meaning of the Public Service Act 1999, and who does

not hold an office or appointment under an Act.

Amendment of the Parliamentary Service Act 1999 Schedule 1

Parliamentary Service Values and Employment Principles Part 4

Parliamentary Service Amendment Bill 2012 No. , 2012 9

Part 4--Parliamentary Service Values and

Employment Principles

10 Section 7 (definition of Parliamentary Service)

Omit "section 9", substitute "subsection 9(1)".

11 Section 7

Insert:

Parliamentary Service Employment Principles means the

principles in section 10A.

12 Section 9 (heading)

Repeal the heading, substitute:

9 Constitution and role of the Australian Parliamentary Service

13 Section 9

Before "The Australian", insert "(1)".

14 At the end of section 9

Add:

(2) The Parliamentary Service serves the Parliament by providing

professional support, advice and facilities to each House of the

Parliament, to parliamentary committees and to Senators and

Members of the House of Representatives, independently of the

Executive Government of the Commonwealth.

15 Section 10

Repeal the section, substitute:

10 Parliamentary Service Values

Committed to service

(1) The Parliamentary Service is professional, objective, innovative

and efficient, and works collaboratively to achieve the best results

for the Parliament.

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 4 Parliamentary Service Values and Employment Principles

10 Parliamentary Service Amendment Bill 2012 No. , 2012

Ethical

(2) The Parliamentary Service demonstrates leadership, is trustworthy,

and acts with integrity, in all that it does.

Respectful

(3) The Parliamentary Service respects the Parliament and all people,

including their rights and their heritage.

Accountable

(4) The Parliamentary Service performs its functions with probity and

is openly accountable for its actions to the Parliament and the

Australian community.

Impartial

(5) The Parliamentary Service is non-partisan and provides advice that

is frank, honest, timely and based on the best available evidence.

10A Parliamentary Service Employment Principles

Parliamentary Service Employment Principles

(1) The Parliamentary Service is a career-based service that:

(a) makes fair employment decisions with a fair system of

review; and

(b) recognises that the usual basis for engagement is as an

ongoing Parliamentary Service employee; and

are based on merit; and

(d) requires effective performance from each employee; and

(e) provides flexible, safe and rewarding workplaces where

communication, consultation, cooperation and input from

employees on matters that affect their workplaces are valued;

and

(f) provides workplaces that are free from discrimination,

patronage and favouritism; and

(g) recognises the diversity of the Australian community and

fosters diversity in the workplace.

Amendment of the Parliamentary Service Act 1999 Schedule 1

Parliamentary Service Values and Employment Principles Part 4

Parliamentary Service Amendment Bill 2012 No. , 2012 11

Decisions based on merit

(2) For the purposes of paragraph (1)(c), a decision relating to

engagement or promotion is based on merit if:

(a) all eligible members of the community were given a

reasonable opportunity to apply to perform the relevant

duties; and

(b) an assessment is made of the relative suitability of the

candidates to perform the relevant duties, using a competitive

selection process; and

candidates' work-related qualities and the work-related

qualities genuinely required to perform the relevant duties;

and

(d) the assessment focuses on the relative capacity of the

candidates to achieve outcomes related to the relevant duties;

and

(e) the assessment is the primary consideration in making the

decision.

Note:

Determinations made by the Presiding Officers may determine the

scope or application of the Parliamentary Service Employment

Principles (see subsections 11C(2) to (4)).

16 Section 11

Repeal the section, substitute:

11 Commissioner may give advice to Presiding Officers about

Parliamentary Service Values

The Commissioner may give advice in writing to the Presiding

Officers for the purpose of:

(a) ensuring that the Parliamentary Service incorporates and

upholds the Parliamentary Service Values; and

(b) determining where necessary the scope or application of the

Parliamentary Service Values.

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 4 Parliamentary Service Values and Employment Principles

12 Parliamentary Service Amendment Bill 2012 No. , 2012

11A Determinations by Presiding Officers about Parliamentary

Service Values

(1) The Presiding Officers may make determinations under section 71

in relation to any of the Parliamentary Service Values for the

purpose of:

(a) ensuring that the Parliamentary Service incorporates and

upholds the Parliamentary Service Values; and

(b) determining where necessary the scope or application of the

Parliamentary Service Values.

(2) However, the Presiding Officers must not make determinations for

the purposes of subsection (1) in relation to a Parliamentary

Service Value unless:

(a) the Commissioner has given advice to the Presiding Officers

under section 11 in relation to the Parliamentary Service

Value; and

(b) the Presiding Officers have had regard to that advice in

making the determinations.

(3) For the purposes of this Act (other than subsection (1)), the

Parliamentary Service Values have effect subject to any restrictions

in determinations made for the purposes of subsection (1).

Tabling of Commissioner's advice

(4) If the Presiding Officers make determinations in relation to any of

the Parliamentary Service Values in accordance with this section,

the Presiding Officers must cause to be laid before each House of

the Parliament a copy of the advice given by the Commissioner

referred to in paragraph (2)(a).

17 Section 12

Repeal the section, substitute:

12 Secretaries must promote Parliamentary Service Values and

Parliamentary Service Employment Principles

A Secretary must uphold and promote the Parliamentary Service

Values and Parliamentary Service Employment Principles.

18 Sections 17 and 17A

Amendment of the Parliamentary Service Act 1999 Schedule 1

Parliamentary Service Values and Employment Principles Part 4

Parliamentary Service Amendment Bill 2012 No. , 2012 13

Repeal the sections.

19 Section 18

Omit "Parliamentary Service Values", substitute "Parliamentary Service

Employment Principles".

20 At the end of subsection 22(2)

Add:

Note:

The usual basis for engagement is as an ongoing Parliamentary

Service employee (see paragraph 10A(1)(b)).

21 Subsection 22(3)

Repeal the subsection.

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 5 Code of Conduct

14 Parliamentary Service Amendment Bill 2012 No. , 2012

Part 5--Code of Conduct

22 Section 7

Insert:

former Parliamentary Service employee means a person who was,

but is no longer, a Parliamentary Service employee.

23 Subsections 13(1) to (4)

Omit "the course of", substitute "connection with".

24 Subsection 13(11)

Repeal the subsection, substitute:

(11) A Parliamentary Service employee must at all times behave in a

way that upholds:

(a) the Parliamentary Service Values and Parliamentary Service

Employment Principles; and

(b) the integrity and good reputation of the Department in which

he or she is employed and the Parliamentary Service.

25 Section 14 (heading)

Repeal the heading, substitute:

14 Secretaries and statutory office holders bound by Code of

Conduct

26 Subsection 14(2)

Repeal the subsection, substitute:

(2) Statutory office holders are bound by the Code of Conduct, subject

to any determinations made under subsection (2A).

(2A) The determinations may make provision in relation to the extent to

which statutory office holders are bound by the Code of Conduct.

Note:

The determinations may make provision with respect to different

statutory office holders or different classes of statutory office holders

(see subsection 33(3A) of the Acts Interpretation Act 1901).

27 Before subsection 15(1)

Insert:

Amendment of the Parliamentary Service Act 1999 Schedule 1

Code of Conduct Part 5

Parliamentary Service Amendment Bill 2012 No. , 2012 15

Sanctions that may be imposed

28 Subsection 15(1)

After "subsection (3)", insert "of this section or subsection 48A(2)".

29 At the end of subsection 15(1)

Add:

Note:

See sections 29 and 38 in relation to terminating a Parliamentary

Service employee's employment.

30 Subsections 15(3), (4) and (5)

Repeal the subsections, substitute:

Providing false or misleading information etc. in connection with

engagement as a Parliamentary Service employee

(2A) A person who is, or was, a Parliamentary Service employee is

taken to have breached the Code of Conduct if the person is found

(under procedures established under subsection (3) of this section

or subsection 48A(2)) to have, before being engaged as a

Parliamentary Service employee:

(a) knowingly provided false or misleading information to

another Parliamentary Service employee, or to a person

acting on behalf of the Commonwealth; or

(b) wilfully failed to disclose to another Parliamentary Service

employee, or to a person acting on behalf of the

Commonwealth, information that the person knew, or ought

reasonably to have known, was relevant; or

in connection with the person's engagement as a Parliamentary

Service employee.

Note:

If the person is a Parliamentary Service employee at the time a finding

referred to in paragraph (2A)(a), (b) or (c) is made in relation to the

person, the Secretary of the Department in which the person is

employed may impose sanctions on the person as permitted by

subsection (1).

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 5 Code of Conduct

16 Parliamentary Service Amendment Bill 2012 No. , 2012

Procedures for determining whether Parliamentary Service

employee, or former Parliamentary Service employee, has

breached the Code of Conduct etc.

(3) A Secretary must establish written procedures in accordance with

this section for determining:

(a) whether a Parliamentary Service employee, or a former

Parliamentary Service employee, in the relevant Department

has breached the Code of Conduct (including by engaging in

conduct referred to in subsection (2A)); and

(b) the sanction (if any) that is to be imposed under

subsection (1) on a Parliamentary Service employee in the

relevant Department who is found to have breached the Code

of Conduct (including by engaging in conduct referred to in

subsection (2A)).

(4)

The

procedures:

(a) must comply with basic procedural requirements set out in

directions issued by the Commissioner under subsection (6);

and

(b) must have due regard to procedural fairness.

(5) In addition, and without affecting subsection (4), the procedures

may be different for:

(a) different categories of Parliamentary Service employees or

former Parliamentary Service employees; or

(b) Parliamentary Service employees, or former Parliamentary

Service employees, who:

(i) have been convicted of an offence against a

Commonwealth, State or Territory law in respect of

conduct that is alleged to constitute a breach of the Code

of Conduct; or

(ii) have been found to have committed such an offence but

no conviction is recorded.

(6) The Commissioner must, by legislative instrument, issue directions

for the purposes of paragraph (4)(a).

(7) A Secretary must ensure that the procedures established under

subsection (3) are made publicly available.

Amendment of the Parliamentary Service Act 1999 Schedule 1

Code of Conduct Part 5

Parliamentary Service Amendment Bill 2012 No. , 2012 17

(8) Procedures established under subsection (3) are not legislative

instruments.

31 Subsection 20(4)

After "under", insert "section 15 or 16 or".

32 After paragraph 48(1)(c)

Insert:

(ca) to inquire into and determine, in accordance with

section 48A, whether a Parliamentary Service employee, or a

former Parliamentary Service employee, has breached the

Code of Conduct;

33 After section 48

Insert:

48A Inquiry into alleged breach of Code of Conduct by

Parliamentary Service employee or former Parliamentary

Service employee

Request for inquiry

(1) The Merit Protection Commissioner may, for the purposes of

paragraph 48(1)(ca), inquire into and determine whether a

Parliamentary Service employee, or a former Parliamentary

Service employee, has breached the Code of Conduct if:

(a) the Secretary of the Department in which the Parliamentary

Service employee, or former Parliamentary Service

employee, was employed at the time of the alleged breach

requests the Merit Protection Commissioner to do so; and

(b) the Merit Protection Commissioner considers it would be

appropriate to do so; and

Service employee, agrees, in writing, to the Merit Protection

Commissioner doing so.

Note:

A finding by the Merit Protection Commissioner under this section is

reviewable under the Administrative Decisions (Judicial Review) Act

1977.

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 5 Code of Conduct

18 Parliamentary Service Amendment Bill 2012 No. , 2012

Procedures for inquiry

(2) The Merit Protection Commissioner must establish written

procedures for inquiring into and determining whether a

Parliamentary Service employee, or a former Parliamentary

Service employee, has breached the Code of Conduct (including by

engaging in conduct referred to in subsection 15(2A)). The

procedures:

(a) must comply with basic procedural requirements prescribed

by the determinations; and

(b) must have due regard to procedural fairness.

Note:

The procedures may make different provision for different classes of

Parliamentary Service employees or former Parliamentary Service

employees (see subsection 33(3A) of the Acts Interpretation Act

1901).

(3) In addition, and without affecting subsection (2), the procedures

may be different for:

(a) different categories of Parliamentary Service employees or

former Parliamentary Service employees; or

(b) Parliamentary Service employees, or former Parliamentary

Service employees, who:

(i) have been convicted of an offence against a

Commonwealth, State or Territory law in respect of

conduct that is alleged to constitute a breach of the Code

of Conduct; or

(ii) have been found to have committed such an offence but

no conviction is recorded.

(4) The Merit Protection Commissioner must ensure that the

procedures established under subsection (2) are made publicly

available.

(5) Procedures established under subsection (2) are not legislative

instruments.

Merit Protection Commissioner's powers

(6) For the purposes of inquiring into and determining whether a

Parliamentary Service employee, or a former Parliamentary

Service employee, in a Department has breached the Code of

Conduct, the Merit Protection Commissioner may exercise the

same powers as the Secretary of the relevant Department may

Amendment of the Parliamentary Service Act 1999 Schedule 1

Code of Conduct Part 5

Parliamentary Service Amendment Bill 2012 No. , 2012 19

exercise in determining whether a Parliamentary Service employee,

or a former Parliamentary Service employee, in the Department has

breached the Code of Conduct.

Report on results of inquiry

(7) The Merit Protection Commissioner must report on the results of

an inquiry and determination under this section to the Secretary

who requested the inquiry.

Note:

If the Merit Protection Commissioner finds that a Parliamentary

Service employee in a Department has breached the Code of Conduct,

the Secretary of the Department may impose a sanction on the

Parliamentary Service employee under subsection 15(1).

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 6 Whistleblower reports

20 Parliamentary Service Amendment Bill 2012 No. , 2012

Part 6--Whistleblower reports

34 Section 16 (heading)

Repeal the heading, substitute:

16 Whistleblower reports

35 Section 16 (after the heading)

Insert:

Protection for whistleblowers

36 Section 16

Before "A person", insert "(1)".

37 At the end of section 16

Add:

Whistleblower reports made to Secretaries etc.

(2) A Secretary must establish procedures for:

(a) a Parliamentary Service employee to make a report (a

whistleblower report) of a breach (or an alleged breach) of

the Code of Conduct to the Secretary or to a person

authorised for the purposes of this section by the Secretary;

and

(b) a Secretary to deal with a whistleblower report made to the

Secretary or to a person authorised for the purposes of this

section by the Secretary.

Note:

The procedures may be in a single document.

(3) Procedures established under subsection (2) must comply with

basic procedural requirements (if any) prescribed by the

determinations.

(4) Procedures established under subsection (2) are not legislative

instruments.

Amendment of the Parliamentary Service Act 1999 Schedule 1

Whistleblower reports Part 6

Parliamentary Service Amendment Bill 2012 No. , 2012 21

Whistleblower reports made to the Commissioner or Merit

Protection Commissioner etc.

(5) The determinations may prescribe either or both of the following:

(a) procedures for a Parliamentary Service employee to make a

report (also a whistleblower report) of a breach (or an alleged

breach) of the Code of Conduct to the Commissioner or the

Merit Protection Commissioner or to a person authorised for

the purposes of this section by the Commissioner or the Merit

Protection Commissioner;

(b) basic procedural requirements that the Commissioner and the

Merit Protection Commissioner must comply with in dealing

with a whistleblower report.

Circumstances for declining to inquire, or discontinuing an

inquiry, into a whistleblower report

(6) The determinations may prescribe circumstances in which the

Commissioner, the Merit Protection Commissioner or a Secretary

may:

(a) decline to conduct an inquiry into a whistleblower report; or

(b) discontinue an inquiry into a whistleblower report.

Application of section to the Parliamentary Librarian

(7) This section applies to the Parliamentary Librarian as if he or she

were a Parliamentary Service employee.

38 Paragraph 48(1)(a)

Repeal the paragraph, substitute:

(a) to inquire, subject to determinations made for the purposes of

section 16, into whistleblower reports made to the Merit

Protection Commissioner (or a person authorised by the

Merit Protection Commissioner) as referred to in that section;

39 Subsection 48(2)

Omit "(1)(c)", substitute "(1)(a) or (1)(c)".

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 7 Review of actions

22 Parliamentary Service Amendment Bill 2012 No. , 2012

Part 7--Review of actions

40 Paragraph 33(4)(d)

Repeal the paragraph, substitute:

(d) in the case of a review following an application or referral to

the Merit Protection Commissioner--must provide for the

review to be conducted by:

(i) the Merit Protection Commissioner; or

(ii) a person nominated by the Merit Protection

Commissioner; or

(iii) a 3 member committee constituted in accordance with

the determinations.

Amendment of the Parliamentary Service Act 1999 Schedule 1

Non-ongoing Parliamentary Service employees Part 8

Parliamentary Service Amendment Bill 2012 No. , 2012 23

Part 8--Non-ongoing Parliamentary Service

employees

41 Subsection 22(4)

Omit "limit", substitute "prescribe".

42 Subsection 29(4)

Omit "grounds or procedures applicable to the termination of the

engagement", substitute "the grounds for the termination of the

employment".

43 Subsection 29(5)

Omit "termination for", substitute "termination of the employment of".

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 9 Confidentiality of information

24 Parliamentary Service Amendment Bill 2012 No. , 2012

Part 9--Confidentiality of information

44 After Part 7

Insert:

Part 7A--Protection of information

65AA Protection of information--Commissioner's functions etc.

Definitions

(1) In this section:

entrusted person means any of the following:

(a)

the

Commissioner;

(b) a delegate of the Commissioner;

Commissioner;

(d) a member of staff assisting the Commissioner.

protected information means information that was obtained by an

entrusted person in connection with the performance of functions

or duties, or the exercise of powers, under:

(a) paragraph 40(1)(b) or (c); or

(b) section 41; or

prescribed by the determinations for the purposes of this

paragraph.

Prohibition on disclosure or other use of protected information

(2) Except as authorised by this section or the determinations, a person

who is, or was, an entrusted person must not, directly or indirectly,

make a record of, disclose or otherwise use protected information.

Note:

Section 70 of the Crimes Act 1914 creates offences in relation to the

disclosure of information by Commonwealth officers.

Amendment of the Parliamentary Service Act 1999 Schedule 1

Confidentiality of information Part 9

Parliamentary Service Amendment Bill 2012 No. , 2012 25

Authorised disclosure or other use of protected information

(3) An entrusted person may make a record of, disclose or otherwise

use protected information for the purposes of, or in connection

with, the performance of functions or duties, or the exercise of

powers, under this Act or the determinations.

Authorised disclosure of protected information by the

Commissioner

(4) The Commissioner may disclose protected information in a report

prepared for purposes connected with the performance of the

functions, or the exercise of the powers, of the Commissioner

under this Act or the determinations, if the Commissioner is

satisfied that the disclosure is necessary for the purpose of setting

out the grounds for the conclusions and recommendations

contained in the report.

(5) Subject to subsection (6), the Commissioner may disclose

protected information to a person, or to the public or a section of

the public, if the Commissioner is satisfied that:

(a)

the

disclosure:

(i) is in the interests of a Department or a person; or

(ii) is in the public interest; and

(b) the disclosure is not likely to interfere with a review or

inquiry under this Act or the determinations.

(6) The Commissioner must not disclose the name of an individual, or

any other material that would enable an individual to be identified,

in protected information that is disclosed under subsection (5),

unless the Commissioner is satisfied that the disclosure is fair and

reasonable in all the circumstances.

Compellability of entrusted persons to give evidence

(7) A person who is, or was, an entrusted person is not compellable to

disclose protected information in any proceeding:

(a) before a court (whether exercising federal jurisdiction or

not); or

(b) before a person authorised by a law of the Commonwealth or

a State or Territory, or by consent of the parties, to hear,

receive and examine evidence.

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 9 Confidentiality of information

26 Parliamentary Service Amendment Bill 2012 No. , 2012

65AB Protection of information--Merit Protection Commissioner's

functions etc.

Definitions

(1) In this section:

entrusted person means any of the following:

(a) the Merit Protection Commissioner;

(b) a person acting under the direction or authority of the Merit

Protection Commissioner;

Commissioner;

(d) a member of a committee established or appointed by the

Merit Protection Commissioner under the determinations;

(e) any other person prescribed by the determinations for the

purposes of this paragraph.

prescribed entrusted person means an entrusted person of a kind

prescribed by determinations for the purposes of this definition.

protected information means information that was obtained by an

entrusted person in connection with the performance of functions

or duties, or the exercise of powers, under:

(a) subsection 48(1) or (2); or

(b) section 48A; or

prescribed by the determinations for the purposes of this

paragraph.

Prohibition on disclosure or other use of protected information

(2) Except as authorised by this section or the determinations, a person

who is, or was, an entrusted person must not, directly or indirectly,

make a record of, disclose or otherwise use protected information.

Note:

Section 70 of the Crimes Act 1914 creates offences in relation to the

disclosure of information by Commonwealth officers.

Authorised disclosure or other use of protected information

(3) An entrusted person may make a record of, disclose or otherwise

use protected information for the purposes of, or in connection

Amendment of the Parliamentary Service Act 1999 Schedule 1

Confidentiality of information Part 9

Parliamentary Service Amendment Bill 2012 No. , 2012 27

with, the performance of functions or duties, or the exercise of

powers, under this Act or the determinations.

Authorised disclosure of protected information by the Merit

Protection Commissioner

(4) The Merit Protection Commissioner may disclose protected

information in a report prepared for purposes connected with the

performance of the functions, or the exercise of the powers, of the

Merit Protection Commissioner under this Act or the

determinations, if the Merit Protection Commissioner is satisfied

that the disclosure is necessary for the purpose of setting out the

grounds for the conclusions and recommendations contained in the

report.

(5) Subject to subsection (6), the Merit Protection Commissioner may

disclose protected information to a person, or to the public or a

section of the public, if the Merit Protection Commissioner is

satisfied that:

(a)

the

disclosure:

(i) is in the interests of a Department or a person; or

(ii) is in the public interest; and

(b) the disclosure is not likely to interfere with a review or

inquiry under this Act or the determinations.

(6) The Merit Protection Commissioner must not disclose the name of

an individual, or any other material that would enable an individual

to be identified, in protected information that is disclosed under

subsection (5), unless the Merit Protection Commissioner is

satisfied that the disclosure is fair and reasonable in all the

circumstances.

Compellability of entrusted persons to give evidence

(7) A person who is, or was, an entrusted person (other than a

prescribed entrusted person) is not compellable in any proceeding:

(a) before a court (whether exercising federal jurisdiction or

not); or

(b) before a person authorised by a law of the Commonwealth or

a State or Territory, or by consent of the parties, to hear,

receive and examine evidence;

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 9 Confidentiality of information

28 Parliamentary Service Amendment Bill 2012 No. , 2012

to disclose protected information that was obtained in connection

with the performance of functions or duties, or the exercise of

powers, under:

(d) any other provision of this Act or the determinations

prescribed by the determinations for the purposes of this

paragraph.

Note:

Prescribed entrusted person is defined in subsection (1) of this

section.

Competence of certain entrusted persons to give evidence

(8) A person who is, or was, a prescribed entrusted person is not

competent, and cannot be compelled, to disclose protected

information in any proceeding:

(a) before a court (whether exercising federal jurisdiction or

not); or

(b) before a person authorised by a law of the Commonwealth or

a State or Territory, or by consent of the parties, to hear,

receive and examine evidence.

Note:

Prescribed entrusted person is defined in subsection (1) of this

section.

65AC Giving information or producing documents to Commissioner

not admissible in evidence etc.

Application

(1) This section applies if:

(a)

either:

(i) the Commissioner requests a person to give information

(including an answer to a question) or produce a

document to the Commissioner for purposes connected

with the performance of functions or duties, or the

exercise of powers, under a provision referred to in

subsection (2); or

(ii) a person reasonably believes that information or a

document is relevant for purposes connected with the

performance of functions or duties, or the exercise of

powers, under a provision referred to in subsection (2);

and

Amendment of the Parliamentary Service Act 1999 Schedule 1

Confidentiality of information Part 9

Parliamentary Service Amendment Bill 2012 No. , 2012 29

(b) the person obtained the information or document lawfully;

and

the Commissioner.

(2) For the purposes of subparagraphs (1)(a)(i) and (ii), the provisions

are:

(a) paragraph 40(1)(b) or (c); and

(b) section 41; and

prescribed by the determinations for the purposes of this

paragraph.

Giving information or producing document not admissible in

evidence in certain proceedings

(3) If, by giving the information or producing the document to the

Commissioner, the person:

(a) contravenes any other law; or

(b) might tend to incriminate the person or make the person

liable to a penalty; or

Department; or

(d) discloses a communication between a person performing

functions or duties, or exercising powers, in a Department

and another person or body, being a communication

protected against disclosure by legal professional privilege;

(e) otherwise acts contrary to the public interest;

the giving of the information or the production of the document is

not admissible in evidence against the person in proceedings (other

than proceedings for an offence against section 137.1, 137.2 or

149.1 of the Criminal Code that relates to this Act).

Person not liable to penalty

(4) The person is not liable to any penalty under the provisions of any

other law by reason of his or her giving the information or

producing the document to the Commissioner.

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 9 Confidentiality of information

30 Parliamentary Service Amendment Bill 2012 No. , 2012

Disclosure of personal information is authorised for purposes of

Privacy Act

(5) To the extent that the giving of the information or the production of

the document to the Commissioner involves a disclosure of

personal information, the disclosure is taken to be authorised by

this Act for the purposes of the Privacy Act 1988.

Legal professional privilege not affected

(6) Subsection (3) does not otherwise affect a claim of legal

professional privilege that anyone may make in relation to the

information or document.

65AD Giving information or producing documents to Merit

Protection Commissioner not admissible in evidence etc.

Application

(1) This section applies if:

(a)

either:

(i) the Merit Protection Commissioner requests a person to

give information (including an answer to a question) or

produce a document to the Merit Protection

Commissioner for purposes connected with the

performance of functions or duties, or the exercise of

powers, under a provision referred to in subsection (2);

(ii) a person reasonably believes that information or a

document is relevant for purposes connected with the

performance of functions or duties, or the exercise of

powers, under a provision referred to in subsection (2);

and

(b) the person obtained the information or document lawfully;

and

the Merit Protection Commissioner.

(2) For the purposes of subparagraphs (1)(a)(i) and (ii), the provisions

are:

(a) sections 48 and 48A; and

Amendment of the Parliamentary Service Act 1999 Schedule 1

Confidentiality of information Part 9

Parliamentary Service Amendment Bill 2012 No. , 2012 31

(b) any other provision of this Act or the determinations

prescribed by the determinations for the purposes of this

paragraph.

Giving information or producing document not admissible in

evidence in certain proceedings

(3) If, by giving the information or producing the document to the

Merit Protection Commissioner, the person:

(a) contravenes any other law; or

(b) might tend to incriminate the person or make the person

liable to a penalty; or

Department; or

(d) discloses a communication between a person performing

functions or duties, or exercising powers, in a Department

and another person or body, being a communication

protected against disclosure by legal professional privilege;

(e) otherwise acts contrary to the public interest;

the giving of the information or the production of the document is

not admissible in evidence against the person in proceedings (other

than proceedings for an offence against section 137.1, 137.2 or

149.1 of the Criminal Code that relates to this Act).

Person not liable to penalty

(4) The person is not liable to any penalty under the provisions of any

other law by reason of his or her giving the information or

producing the document to the Merit Protection Commissioner.

Disclosure of personal information is authorised for purposes of

Privacy Act

(5) To the extent that the giving of the information or the production of

the document to the Merit Protection Commissioner involves a

disclosure of personal information, the disclosure is taken to be

authorised by this Act for the purposes of the Privacy Act 1988.

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 9 Confidentiality of information

32 Parliamentary Service Amendment Bill 2012 No. , 2012

Legal professional privilege not affected

(6) Subsection (3) does not otherwise affect a claim of legal

professional privilege that anyone may make in relation to the

information or document.

65AE Release of personal information

The

determinations:

(a) may authorise the use or disclosure, in specific

circumstances, of personal information (within the meaning

of the Privacy Act 1988); and

(b) may impose restrictions on the collection, storage, access,

further use or further disclosure of personal information used

or disclosed under determinations made for the purposes of

paragraph (a).

45 Section 68

Repeal the section.

Amendment of the Parliamentary Service Act 1999 Schedule 1

Immunity from suit Part 10

Parliamentary Service Amendment Bill 2012 No. , 2012 33

Part 10--Immunity from suit

46 After section 70

Insert:

70A Immunity from civil proceedings

Commissioner's functions

(1) No civil action, suit or proceeding lies against the following

persons:

(a)

the

Commissioner;

(b) a delegate of the Commissioner;

Commissioner;

(d) a member of staff assisting the Commissioner;

in relation to anything done, or omitted to be done, in good faith by

the person in connection with the performance or purported

performance of functions or duties, or the exercise or purported

exercise of powers, conferred by:

(e) paragraph 40(1)(b) or (c); or

(f) any other provision of this Act or the determinations

prescribed by the determinations for the purposes of this

paragraph.

Merit Protection Commissioner's functions

(2) No civil action, suit or proceeding lies against the following

persons:

(a) the Merit Protection Commissioner;

(b) a person acting under the direction or authority of the Merit

Protection Commissioner;

Commissioner;

(d) a member of a committee established or appointed by the

Merit Protection Commissioner under the determinations;

(e) any other person prescribed by the determinations for the

purposes of this paragraph;

in relation to anything done, or omitted to be done, in good faith by

the person in connection with the performance or purported

Amendment of the Parliamentary Service Act 1999 Schedule 1

Legislative instruments Part 11

Parliamentary Service Amendment Bill 2012 No. , 2012 35

Part 11--Legislative instruments

47 Before section 12

Insert:

11B Commissioner may give advice to Presiding Officers about

employment matters

General

(1) The Commissioner may give advice in writing to the Presiding

Officers about employment matters relating to Parliamentary

Service employees, including the following:

(a)

engagement;

(b)

promotion;

(c)

redeployment;

(d)

mobility;

(e)

training

schemes;

(f)

termination.

Parliamentary Service Employment Principles

(2) The Commissioner may give advice in writing to the Presiding

Officers for the purpose of:

(a) ensuring that the Parliamentary Service incorporates and

upholds the Parliamentary Service Employment Principles;

and

(b) determining where necessary the scope or application of the

Parliamentary Service Employment Principles.

11C Determinations by Presiding Officers about employment

matters

Determinations about general employment matters

(1) The Presiding Officers may make determinations under section 71

about employment matters relating to Parliamentary Service

employees, including the matters referred to in subsection 11B(1).

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 11 Legislative instruments

36 Parliamentary Service Amendment Bill 2012 No. , 2012

Determinations about Parliamentary Service Employment

Principles

(2) The Presiding Officers may make determinations under section 71

in relation to any of the Parliamentary Service Employment

Principles for the purpose of:

(a) ensuring that the Parliamentary Service incorporates and

upholds the Parliamentary Service Employment Principles;

and

(b) determining where necessary the scope or application of the

Parliamentary Service Employment Principles.

(3) However, the Presiding Officers must not make determinations for

the purposes of subsection (2) in relation to a Parliamentary

Service Employment Principle unless:

(a) the Commissioner has given advice to the Presiding Officers

under subsection 11B(2) in relation to the Parliamentary

Service Employment Principle; and

(b) the Presiding Officers have had regard to that advice in

making the determinations.

(4) For the purposes of this Act (other than subsection (2) of this

section), the Parliamentary Service Employment Principles have

effect subject to any restrictions in determinations made for the

purposes of that subsection.

Tabling of Commissioner's advice about Parliamentary Service

Employment Principles

(5) If the Presiding Officers make determinations in relation to any of

the Parliamentary Service Employment Principles in accordance

with this section, the Presiding Officers must cause to be laid

before each House of the Parliament a copy of the advice given by

the Commissioner referred to in paragraph (3)(a).

48 Subsection 20(3)

Omit "Parliamentary Service".

49 Subsections 20(5) and (6)

Repeal the subsections, substitute:

(5) A direction issued under this section is a legislative instrument.

Amendment of the Parliamentary Service Act 1999 Schedule 1

Legislative instruments Part 11

Parliamentary Service Amendment Bill 2012 No. , 2012 37

Note:

Neither section 42 (disallowance) nor Part 6 (sunsetting) of the

Legislative Instruments Act 2003 applies to the direction (see

sections 44 and 54 of that Act).

50 Subsection 23(1)

Omit "by notice in the Gazette", substitute "by legislative instrument".

51 At the end of subsection 23(1)

Add:

Note:

Neither section 42 (disallowance) nor Part 6 (sunsetting) of the

Legislative Instruments Act 2003 applies to the Classification Rules

(see sections 44 and 54 of that Act).

52 Subsection 24(3)

Omit "notice in the Gazette", substitute "legislative instrument".

53 At the end of subsection 24(3)

Add:

Note:

Neither section 42 (disallowance) nor Part 6 (sunsetting) of the

Legislative Instruments Act 2003 applies to the determination (see

sections 44 and 54 of that Act).

54 Section 36

Repeal the section.

55 Paragraph 38(a)

Omit "Commissioner's guidelines under section 36", substitute

"determinations made for the purposes of subsection 11C(1)".

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 12 Acting appointments

38 Parliamentary Service Amendment Bill 2012 No. , 2012

Part 12--Acting appointments

56 At the end of subsection 38F(1)

Add:

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the Acts Interpretation Act 1901.

57 Subsection 38F(3)

Repeal the subsection.

58 At the end of subsection 46(1)

Add:

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the Acts Interpretation Act 1901.

59 Subsection 46(3)

Repeal the subsection.

60 At the end of subsection 53(1)

Add:

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the Acts Interpretation Act 1901.

61 Subsection 53(3)

Repeal the subsection.

62 Subsection 64(1)

Omit "(1)".

63 At the end of subsection 64(1)

Add:

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the Acts Interpretation Act 1901.

64 Subsection 64(2)

Repeal the subsection.

65 Subsection 64XF(1)

Omit "(1)".

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 13 Miscellaneous amendments

40 Parliamentary Service Amendment Bill 2012 No. , 2012

Part 13--Miscellaneous amendments

68 Section 7 (definition of Parliamentary Service employee)

Repeal the definition, substitute:

Parliamentary Service employee means:

(a) a person engaged as an employee under section 22; or

(b) a person determined under paragraph 72(1)(b) of the Public

Service Act 1999 to have become engaged as a Parliamentary

Service employee in a Department.

69 Subsection 23(4)

Omit all the words before paragraph (a), substitute:

(4) A Secretary may reduce the classification of a Parliamentary

Service employee, without the employee's consent, only in the

following circumstances:

70 Subsection 23(5)

After "industrial instrument", insert ", determination under this Act or

written contract of employment".

71 Section 24 (heading)

Repeal the heading, substitute:

24 Terms and conditions of employment

72 Subsection 24(1)

Omit "remuneration and other".

73 Subsection 24(3)

Omit "remuneration and other".

74 Subsection 29(1) (note)

Omit "Note:", substitute "Note 1:".

75 At the end of subsection 29(1)

Add:

Amendment of the Parliamentary Service Act 1999 Schedule 1

Miscellaneous amendments Part 13

Parliamentary Service Amendment Bill 2012 No. , 2012 41

Note 2:

Determinations made by the Presiding Officers under subsection

11C(1) may set out procedures to be followed in terminating the

employment of a Parliamentary Service employee.

76 After subsection 31(2)

Insert:

(2A) If the Parliamentary Librarian receives any non-Commonwealth

remuneration for performing duties as the Parliamentary Librarian,

the Secretary of the joint Department may give a notice in writing

to the Parliamentary Librarian in relation to the whole, or a

specified part, of the remuneration.

(2B) The amount notified by the Secretary:

(a) is taken to have been received by the Parliamentary Librarian

on behalf of the Commonwealth; and

(b) may be recovered by the Commonwealth from the

Parliamentary Librarian as a debt in a court of competent

jurisdiction.

77 Section 38E (heading)

Repeal the heading, substitute:

38E Terms and conditions of appointment

78 Subsection 38E(1)

Omit "remuneration and other conditions of employment", substitute

"terms and conditions of appointment".

79 At the end of section 40

Add:

(4) The Commissioner may, on behalf of the Commonwealth, engage

consultants to assist in the performance of the Commissioner's

functions.

80 Paragraphs 41(a) and (b)

Omit ", 34".

81 Section 44 (heading)

Repeal the heading, substitute:

Schedule 1 Amendment of the Parliamentary Service Act 1999

Part 13 Miscellaneous amendments

42 Parliamentary Service Amendment Bill 2012 No. , 2012

44 Terms and conditions of appointment

82 Subsection 44(1)

Omit "remuneration and other conditions", substitute "terms and

conditions".

83 Paragraphs 48(2)(a) and (b)

Omit ", 34".

84 After subsection 48(3)

Insert:

(3A) The Merit Protection Commissioner may, on behalf of the

Commonwealth, engage consultants to assist in the performance of

the Merit Protection Commissioner's functions.

85 Section 51 (heading)

Repeal the heading, substitute:

51 Terms and conditions of appointment

86 Subsection 51(1)

Omit "remuneration and other conditions", substitute "terms and

conditions".

87 Section 63 (heading)

Repeal the heading, substitute:

63 Terms and conditions of appointment

88 Subsection 63(1)

Omit "remuneration and other conditions of employment", substitute

"terms and conditions of appointment".

89 Subsection 66(4)

Omit "of more than $100,000", substitute "exceeding the amount

prescribed by regulations made for the purposes of subsection 73(4) of

the Public Service Act 1999".

Amendment of the Parliamentary Service Act 1999 Schedule 1

Miscellaneous amendments Part 13

Parliamentary Service Amendment Bill 2012 No. , 2012 43

90 Subsection 71(1)

After "may", insert ", by legislative instrument,".

91 Subsection 71(2)

Repeal the subsection, substitute:

(2) The determinations may prescribe penalties of not more than 50

penalty units for offences against the determinations.

92 Subsection 71(6)

Repeal the subsection.

Schedule 2 Application, saving and transitional provisions

Part 1 Preliminary

44 Parliamentary Service Amendment Bill 2012 No. , 2012

Schedule 2--Application, saving and

transitional provisions

Part 1--Preliminary

1 Definitions

In this Schedule:

commencement time means the time when Part 1 of Schedule 1 to this

Act commences.

new Parliamentary Service Act means the Parliamentary Service Act

1999 as in force after the commencement time.

old Code of Conduct means the Code of Conduct in the old

Parliamentary Service Act (including any conduct requirement made by

either House of the Parliament, and any determinations in force, for the

purposes of subsection 13(13) of the old Parliamentary Service Act).

old Parliamentary Service Act means the Parliamentary Service Act

1999 as in force immediately before the commencement time.

2 Alleged breaches of the Code of Conduct that occur before

and after commencement time

For the purposes of Parts 5 and 6 of this Schedule, if a breach of the

Code of Conduct is alleged to have occurred between 2 dates, one

before and one after the commencement time, the breach is alleged to

have occurred before the commencement time.

Application, saving and transitional provisions Schedule 2

Parliamentary Service Values and Employment Principles Part 4

Parliamentary Service Amendment Bill 2012 No. , 2012 47

Part 4--Parliamentary Service Values and

Employment Principles

5 Saving--workplace diversity programs

(1)

This item applies to a workplace diversity program that was in effect

under section 18 of the old Parliamentary Service Act.

(2)

Despite the amendment of that section made by item 19 of Schedule 1

to this Act, the workplace diversity program continues to have effect, at

and after the commencement time, as if it had been established under

section 18 of the new Parliamentary Service Act, to the extent that the

program assists in giving effect to the Parliamentary Service

Employment Principles.

Schedule 2 Application, saving and transitional provisions

Part 5 Code of Conduct

48 Parliamentary Service Amendment Bill 2012 No. , 2012

Part 5--Code of Conduct

6 Application--amendment of Code of Conduct

The amendments of section 13 of the Parliamentary Service Act 1999

made by items 23 and 24 of Schedule 1 to this Act apply in relation to

conduct that occurs after the commencement time.

7 Application--procedures etc. for dealing with alleged

breaches of Code of Conduct

Subject to item 9, the amendments of section 15 of the Parliamentary

Service Act 1999 made by items 27 to 30 of Schedule 1 to this Act

apply in relation to an alleged breach of the Code of Conduct by a

person who:

(a) is a Parliamentary Service employee at the commencement

time; or

(b) becomes a Parliamentary Service employee, or a former

Parliamentary Service employee, after that time;

whether the breach is alleged to have occurred before or after that time.

8 Saving--procedures and directions for determining

whether Code of Conduct has been breached

(1)

Procedures in effect for the purposes of subsection 15(3) of the old

Parliamentary Service Act continue in effect at and after the

commencement time as if they were procedures in effect for the

purposes of subsection 15(3) of the new Parliamentary Service Act.

(2)

Commissioner's Directions in force for the purposes of subsection 15(3)

of the old Parliamentary Service Act continue in effect at and after the

commencement time as if they were directions issued by the

Commissioner under subsection 15(6) of the new Parliamentary Service

Act for the purposes of paragraph 15(4)(a) of that Act.

9 Investigation in progress by Secretary into alleged breach

of Code of Conduct

(1)

This item applies if, before the commencement time:

(a) a Secretary had begun an investigation to determine whether

a Parliamentary Service employee in the relevant Department

had breached the Code of Conduct, but no finding had been

made; or

Application, saving and transitional provisions Schedule 2

Code of Conduct Part 5

Parliamentary Service Amendment Bill 2012 No. , 2012 49

(b) a Secretary had decided to begin an investigation to

determine whether a Parliamentary Service employee in the

relevant Department had breached the Code of Conduct, but

had not begun the investigation.

(2)

Subject to subitem (3), the old Parliamentary Service Act (and the

determinations, procedures and other conduct requirements in force for

the purposes of that Act) continue to apply at and after the

commencement time in relation to the investigation and determination.

(3)

If the Parliamentary Service employee is found to have breached the

Code of Conduct, the Secretary must determine the sanction (if any) to

be imposed on the Parliamentary Service employee in accordance with

the procedures established under paragraph 15(3)(b) of the new

Parliamentary Service Act. For that purpose, a reference to the Code of

Conduct in those procedures is to be read as a reference to the old Code

of Conduct.

10 Finding by Secretary of breach of Code of Conduct but no

sanction imposed

(1)

This item applies if, before the commencement time, a Secretary had

found that a Parliamentary Service employee in the relevant Department

had breached the Code of Conduct, but no sanction had been imposed.

(2)

The Secretary must determine the sanction (if any) to be imposed on the

Parliamentary Service employee in accordance with the procedures

established under paragraph 15(3)(b) of the new Parliamentary Service

Act. For that purpose, a reference to the Code of Conduct in those

procedures is to be read as a reference to the old Code of Conduct.

11 Allegation of breach of Code of Conduct by Parliamentary

Service employee before commencement time

(1)

This item applies if, before the commencement time, an allegation had

been made that a Parliamentary Service employee in a Department had

breached the Code of Conduct, but the Secretary of that Department had

not decided whether to begin an investigation to determine whether the

Parliamentary Service employee had breached the Code of Conduct.

(2)

This item also applies if:

(a) after the commencement time, an allegation is made that:

Schedule 2 Application, saving and transitional provisions

Part 5 Code of Conduct

50 Parliamentary Service Amendment Bill 2012 No. , 2012

(i) a Parliamentary Service employee has breached the

Code of Conduct; or

(ii) a person who became a former Parliamentary Service

employee after the commencement time has breached

the Code of Conduct; and

(b) the breach is alleged to have occurred before the

commencement time.

(3)

The new Parliamentary Service Act (and the determinations and

procedures in force for the purposes of that Act) apply in relation to the

alleged breach as if a reference to the Code of Conduct in those

provisions were a reference to the old Code of Conduct.

12 Inquiry in progress into alleged breach of Code of

Conduct by Commissioner

(1)

This item applies if, before the commencement time:

(a) the Merit Protection Commissioner had begun an inquiry into

an alleged breach of the Code of Conduct by the

Commissioner for the purpose of paragraph 48(1)(b) of the

old Parliamentary Service Act, but had not reported on the

results of the inquiry; or

(b) the Merit Protection Commissioner had decided to conduct

an inquiry into an alleged breach of the Code of Conduct by

the Commissioner for the purpose of paragraph 48(1)(b) of

the old Parliamentary Service Act, but had not begun the

inquiry.

(2)

The old Parliamentary Service Act (and the determinations and other

conduct requirements in force for the purposes of that Act) continue to

apply at and after the commencement time in relation to the inquiry.

13 Allegation of breach of Code of Conduct by Commissioner

before commencement time

(1)

This item applies if, before the commencement time, an allegation had

been made of a breach of the Code of Conduct by the Commissioner,

but the Merit Protection Commissioner had not decided whether to

conduct an inquiry into the alleged breach.

(2)

This item also applies if:

Application, saving and transitional provisions Schedule 2

Code of Conduct Part 5

Parliamentary Service Amendment Bill 2012 No. , 2012 51

(a) after the commencement time, an allegation is made of a

breach of the Code of Conduct by the Commissioner; and

(b) the breach is alleged to have occurred before the

commencement time.

(3)

The new Parliamentary Service Act (and the determinations in force for

the purposes of that Act) apply in relation to the alleged breach as if a

reference to the Code of Conduct in those provisions were a reference to

the old Code of Conduct.

14 Inquiries by Merit Protection Commissioner into alleged

breaches of Code of Conduct by Parliamentary Service

employees or former Parliamentary Service employees

(1)

Paragraph 48(1)(ca) and section 48A of the new Parliamentary Service

Act (and the determinations and procedures in force for the purposes of

those provisions) apply in relation to an alleged breach of the Code of

Conduct by a person who:

(a) is a Parliamentary Service employee at the commencement

time; or

(b) becomes a Parliamentary Service employee, or a former

Parliamentary Service employee, after that time;

whether the breach is alleged to have occurred before or after that time.

(2)

Paragraph 48(1)(ca) and section 48A of the new Parliamentary Service

Act (and the determinations and procedures in force for the purposes of

those provisions) apply in relation to a breach of the Code of Conduct

by a Parliamentary Service employee, or a former Parliamentary

Service employee, that is alleged to have occurred before the

commencement time as if a reference to the Code of Conduct in those

provisions were a reference to the old Code of Conduct.

Schedule 2 Application, saving and transitional provisions

Part 6 Whistleblower reports

52 Parliamentary Service Amendment Bill 2012 No. , 2012

Part 6--Whistleblower reports

15 Inquiries in progress into whistleblower reports

(1)

This item applies if, before the commencement time, the Commissioner,

the Merit Protection Commissioner or a Secretary, or a person

authorised by the Commissioner, the Merit Protection Commissioner or

a Secretary, had begun, but had not completed, an inquiry into a report

of a breach (or an alleged breach) of the Code of Conduct made as

referred to in section 16 of the old Parliamentary Service Act.

(2)

The old Parliamentary Service Act (and the determinations, procedures

and other conduct requirements in force for the purposes of that Act, to

the extent that they are not inconsistent with that Act) continue to apply

at and after the commencement time in relation to the inquiry.

16 Whistleblower report made or referred before

commencement time but no inquiry begun before that

time

(1)

This item applies if, before the commencement time, a report of a

breach (or an alleged breach) of the Code of Conduct had been made or

referred to a person referred to in paragraph 16(a), (b) or (c) of the old

Parliamentary Service Act, but an inquiry into the report had not begun.

(2)

The new Parliamentary Service Act (and the determinations and

procedures in force for the purposes of that Act) apply in relation to the

report as if:

(a) the report had been made to the person in accordance with

section 16 of the new Parliamentary Service Act; and

(b) a reference to the Code of Conduct in the new Parliamentary

Service Act (or the determinations and procedures in force

for the purposes of that Act) were a reference to the old Code

of Conduct.

Note:

See section 16, paragraphs 40(1)(c) and 48(1)(a) and subsection 40(1A) of the new

Parliamentary Service Act in relation to whistleblower reports.

17 Whistleblower report made after commencement time in

relation to breach (or alleged breach) occurring before

that time

(1)

This item applies if:

Application, saving and transitional provisions Schedule 2

Whistleblower reports Part 6

Parliamentary Service Amendment Bill 2012 No. , 2012 53

(a) after the commencement time, a report of a breach (or an

alleged breach) of the Code of Conduct is made to a person

referred to in paragraph 16(1)(a), (b) or (c) of the new

Parliamentary Service Act; and

(b) the breach (or alleged breach) occurred before the

commencement time.

(2)

The new Parliamentary Service Act (and the determinations and

procedures in force for the purposes of that Act) apply in relation to the

report as if a reference to the Code of Conduct in that Act (or the

determinations and procedures in force for the purposes of that Act)

were a reference to the old Code of Conduct.

Note:

See section 16, paragraphs 40(1)(c) and 48(1)(a) and subsection 40(1A) of the new

Parliamentary Service Act in relation to whistleblower reports.

Schedule 2 Application, saving and transitional provisions

Part 7 Review of actions

54 Parliamentary Service Amendment Bill 2012 No. , 2012

Part 7--Review of actions

18 Saving--determinations providing for review of

Parliamentary Service action

Determinations in force for the purposes of paragraph 33(4)(d) of the

old Parliamentary Service Act continue in force at and after the

commencement time as if they were determinations in force for the

purposes of paragraph 33(4)(d) of the new Parliamentary Service Act.

Application, saving and transitional provisions Schedule 2

Non-ongoing Parliamentary Service employees Part 8

Parliamentary Service Amendment Bill 2012 No. , 2012 55

Part 8--Non-ongoing Parliamentary Service

employees

19 Saving--circumstances for engagement of non-ongoing

Parliamentary Service employees

(1)

This item applies in relation to a person if:

(a) the person had been engaged before the commencement time

as mentioned in paragraph 22(2)(b) or (c) of the old

Parliamentary Service Act; and

(b)

the

engagement:

(i) was in effect immediately before the commencement

time and was to continue in effect after that time; or

(ii) was to take effect after the commencement time.

(2)

Despite the amendment made by item 41 of Schedule 1 to this Act,

subsection 22(4) of the old Parliamentary Service Act (and the

determinations in force for the purposes of that subsection) continue to

apply, at and after the commencement time, in relation to the person's

engagement.

20 Termination of employment of non-ongoing Parliamentary

Service employee in progress before commencement

time

(1)

This item applies if:

(a) before the commencement time, a Secretary had terminated

the employment of a non-ongoing Parliamentary Service

employee in the relevant Department under subsection 29(1)

of the old Parliamentary Service Act; and

(b) the termination was to take effect after the commencement

time.

(2)

Despite the amendment made by item 42 of Schedule 1 to this Act, the

old Parliamentary Service Act (and the determinations in force for the

purposes of that Act) continue to apply, at and after the commencement

time, in relation to the termination.

21 Procedures for termination of non-ongoing Parliamentary

Service employees after commencement time

Schedule 2 Application, saving and transitional provisions

Part 8 Non-ongoing Parliamentary Service employees

56 Parliamentary Service Amendment Bill 2012 No. , 2012

(1)

The procedures prescribed in determinations (the termination

determinations) in force for the purposes of subsection 29(4) of the old

Parliamentary Service Act apply to the termination of the employment

of a non-ongoing Parliamentary Service employee after the

commencement time.

(2)

This item ceases to have effect on the commencement of determinations

made for the purposes of subsection 11C(1) of the new Parliamentary

Service Act in relation to the matter referred to in paragraph 11B(1)(f)

of the new Parliamentary Service Act.

Application, saving and transitional provisions Schedule 2

Confidentiality of information Part 9

Parliamentary Service Amendment Bill 2012 No. , 2012 57

Part 9--Confidentiality of information

22 Protected information obtained at or after commencement

time

(1)

Section 65AA of the new Parliamentary Service Act applies to

protected information obtained at or after the commencement time.

(2)

Section 65AB of the new Parliamentary Service Act applies to protected

information obtained at or after the commencement time.

23 Saving--determinations providing for protection of

information obtained before commencement time

(1)

This item applies to determinations that were in force for the purposes

of paragraph 71(2)(a) of the old Parliamentary Service Act.

(2)

Despite the repeal of that paragraph made by item 91 of Schedule 1 to

this Act, the determinations continue to apply, at and after the

commencement time, to the extent that they provide for confidentiality

of information obtained, before the commencement time, by persons

performing, or assisting in the performance of, functions referred to in

that paragraph before its repeal.

24 Saving--determinations providing for release of personal

information

Determinations in force for the purposes of section 68 of the old

Parliamentary Service Act continue in force at and after the

commencement time as if they were determinations in force for the

purposes of section 65AE of the new Parliamentary Service Act.

Schedule 2 Application, saving and transitional provisions

Part 10 Immunity from suit

58 Parliamentary Service Amendment Bill 2012 No. , 2012

Part 10--Immunity from suit

25 Immunity from civil proceedings for acts or omissions at

or after commencement time

Section 70A of the new Parliamentary Service Act applies in relation to

anything done, or omitted to be done, at or after the commencement

time.

26 Saving--determinations providing for immunity from civil

proceedings

(1)

This item applies to determinations that were in force for the purposes

of paragraph 71(2)(b) of the old Parliamentary Service Act.

(2)

Despite the repeal of that paragraph made by item 91 of Schedule 1 to

this Act, the determinations continue to apply, at and after the

commencement time, to the extent that they provide for immunity from

civil action in respect of acts or omissions, before the commencement

time, of persons performing, or assisting in the performance of,

functions referred to in that paragraph before its repeal.

Application, saving and transitional provisions Schedule 2

Legislative instruments Part 11

Parliamentary Service Amendment Bill 2012 No. , 2012 59

Part 11--Legislative instruments

27 Saving--Classification Rules

The Classification Rules in force for the purposes of subsection 23(1) of

the old Parliamentary Service Act continue in force at and after the

commencement time as if they were Classification Rules in force for the

purposes of subsection 23(1) of the new Parliamentary Service Act.

Schedule 2 Application, saving and transitional provisions

Part 12 Miscellaneous

60 Parliamentary Service Amendment Bill 2012 No. , 2012

Part 12--Miscellaneous

28 Reduction in classification of Parliamentary Service

employee

The amendment of subsection 23(5) of the Parliamentary Service Act

1999 made by item 70 of Schedule 1 to this Act applies in relation to a

reduction in the classification of a Parliamentary Service employee that

occurs at or after the commencement time.

29 Determinations of terms and conditions of employment

(1)

The amendment of subsection 24(1) of the Parliamentary Service Act

1999 made by item 72 of Schedule 1 to this Act does not affect the

continuity of a determination that was in force under that subsection

immediately before the commencement time.

(2)

The amendment of subsection 24(3) of the Parliamentary Service Act

1999 made by item 73 of Schedule 1 to this Act does not affect the

continuity of a determination that was in force under that subsection

immediately before the commencement time.

30 Determination of terms and conditions of appointment

(1)

The amendment of subsection 38E(1) of the Parliamentary Service Act

1999 made by item 78 of Schedule 1 to this Act does not affect the

continuity of a determination that was in force under that subsection

immediately before the commencement time.

(2)

The amendment of subsection 44(1) of the Parliamentary Service Act

1999 made by item 82 of Schedule 1 to this Act does not affect the

continuity of a determination that was in force under that subsection

immediately before the commencement time.

(3)

The amendment of subsection 51(1) of the Parliamentary Service Act

1999 made by item 86 of Schedule 1 to this Act does not affect the

continuity of a determination that was in force under that subsection

immediately before the commencement time.

(4)

The amendment of subsection 63(1) of the Parliamentary Service Act

1999 made by item 88 of Schedule 1 to this Act does not affect the

continuity of a determination that was in force under that subsection

immediately before the commencement time.

Application, saving and transitional provisions Schedule 2

Miscellaneous Part 12

Parliamentary Service Amendment Bill 2012 No. , 2012 61

31 Engagement of consultants

(1)

The amendment of section 40 of the Parliamentary Service Act 1999

made by item 79 of Schedule 1 to this Act does not affect the

engagement of a consultant by the Commissioner before the

commencement time.

(2)

The amendment of section 48 of the Parliamentary Service Act 1999

made by item 84 of Schedule 1 to this Act does not affect the

engagement of a consultant by the Merit Protection Commissioner

before the commencement time.

32 Saving--determinations prescribing penalties for offences

against the determinations

Determinations in force for the purposes of paragraph 71(2)(c) of the

old Parliamentary Service Act continue in force at and after the

commencement time as if they were determinations in force for the

purposes of subsection 71(2) of the new Parliamentary Service Act.

Commonwealth of Australia Bills

PARLIAMENTARY SERVICE AMENDMENT BILL 2013