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Parliamentary Service Act 1999

  • - C2010C00839
  • In force - Superseded Version
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Act No. 145 of 1999 as amended, taking into account amendments up to Act No. 148 of 2010
An Act to provide for the establishment and management of the Australian Parliamentary Service, and for other purposes
Administered by: Prime Minister and Cabinet
Registered 22 Dec 2010
Start Date 18 Dec 2010
End Date 14 Feb 2012

Parliamentary Service Act 1999

Act No. 145 of 1999 as amended

This compilation was prepared on 21 December 2010
taking into account amendments up to Act No. 148 of 2010

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

3............ Objects of this Act............................................................................. 1

4............ This Act binds the Crown.................................................................. 1

5............ This Act extends to things outside Australia..................................... 2

6............ Engagement of employees in a Department....................................... 2

Part 2—Interpretation                                                                                                          3

7............ Interpretation...................................................................................... 3

8............ Relationship with Fair Work Acts..................................................... 6

Part 3—The Australian Parliamentary Service                                                     8

9............ Constitution of the Australian Parliamentary Service........................ 8

10.......... Parliamentary Service Values.............................................................. 8

11.......... Commissioner must give advice to Presiding Officers about Parliamentary Service Values    9

12.......... Secretaries must promote Parliamentary Service Values.................. 10

13.......... The Parliamentary Service Code of Conduct.................................... 10

14.......... Secretaries bound by Code of Conduct............................................ 11

15.......... Breaches of the Code of Conduct..................................................... 11

16.......... Protection for whistleblowers.......................................................... 12

17.......... Prohibition on patronage and favouritism........................................ 13

17A....... Application of sections 16 and 17 to the Parliamentary Librarian... 13

18.......... Promotion of employment equity.................................................... 13

19.......... Restrictions on directions to Clerks................................................. 13

Part 4—Parliamentary Service employees and the Parliamentary Librarian           14

Division 1—Parliamentary Service employees generally                        14

20.......... General directions to Secretaries....................................................... 14

21.......... Employer powers etc. of Secretary.................................................. 15

22.......... Engagement of Parliamentary Service employees............................. 15

23.......... Classification Rules.......................................................................... 16

24.......... Remuneration and other conditions.................................................. 17

25.......... Assignment of duties........................................................................ 18

26.......... Mobility between Parliamentary Service and Public Service........... 18

26A....... Rights of ongoing employees when engaged as non‑ongoing employees of the other service 19

27.......... Compulsory moves between Parliamentary Departments and between the Parliamentary Service and the Australian Public Service.................................................................................... 20

28.......... Suspension........................................................................................ 20

29.......... Termination of employment............................................................. 21

30.......... Retirement........................................................................................ 21

31.......... Forfeiture of additional remuneration............................................... 22

32.......... Right of return for election candidates.............................................. 22

33.......... Review of actions............................................................................. 23

Division 2—The Senior Executive Service                                                    25

34.......... SES employees................................................................................. 25

35.......... Constitution and role of SES............................................................ 25

36.......... Commissioner’s guidelines on SES matters...................................... 25

37.......... Incentive to retire.............................................................................. 25

38.......... Commissioner’s certificate required for termination of SES employment               26

Division 3—Parliamentary Librarian                                                                  27

38A....... Parliamentary Librarian.................................................................... 27

38B....... Functions of Parliamentary Librarian............................................... 27

38C....... Appointment of Parliamentary Librarian......................................... 27

38D....... Termination of appointment of Parliamentary Librarian................. 28

38E........ Remuneration and other conditions of appointment........................ 28

38F........ Acting Parliamentary Librarian......................................................... 29

38G....... Resources for the Parliamentary Librarian....................................... 29

38H....... Reporting to Library Committee...................................................... 30

38I......... Copyright......................................................................................... 30

Part 5—The Parliamentary Service Commissioner                                           31

Division 1—Commissioner’s functions etc.                                                   31

39.......... Parliamentary Service Commissioner............................................... 31

40.......... Commissioner’s functions................................................................ 31

41.......... Commissioner’s inquiry powers...................................................... 31

42.......... Annual report................................................................................... 31

Division 2—Commissioner’s appointment, conditions etc.                   33

43.......... Appointment of Commissioner........................................................ 33

44.......... Remuneration and other conditions of appointment........................ 33

45.......... Removal from office......................................................................... 33

46.......... Acting Commissioner....................................................................... 34

Part 6—The Parliamentary Service Merit Protection Commissioner    35

Division 1—Merit Protection Commissioner’s functions etc.             35

47.......... Parliamentary Service Merit Protection Commissioner................... 35

48.......... Merit Protection Commissioner’s functions.................................... 35

49.......... Annual report................................................................................... 36

Division 2—Merit Protection Commissioner’s appointment, conditions etc.   37

50.......... Appointment of Merit Protection Commissioner............................ 37

51.......... Remuneration and other conditions of appointment........................ 37

52.......... Removal from office......................................................................... 37

53.......... Acting Merit Protection Commissioner........................................... 38

Part 7—Departments and Secretaries                                                                      39

54.......... Departments..................................................................................... 39

54A....... Change of name of Department........................................................ 39

54B....... Abolition of Department.................................................................. 40

55.......... Offices of Clerk of the Senate and Clerk of the House of Representatives             40

56.......... Office of Secretary of a Department................................................ 40

57.......... Responsibility for managing Department......................................... 41

58.......... Appointment of Clerk of the Senate and Clerk of the House of Representatives   41

59.......... Appointment of Secretary of a Department.................................... 42

60.......... Termination of appointment of Clerk of the Senate or Clerk of the House of Representatives             42

61.......... Termination of appointment of Secretary of a Department............. 42

62.......... Suspension of Clerk of the Senate or Clerk of the House of Representatives         43

63.......... Remuneration and other conditions of appointment........................ 44

64.......... Acting Secretary............................................................................... 44

65.......... Annual report................................................................................... 45

Part 8—Miscellaneous                                                                                                       46

65A....... Security Management Board............................................................ 46

66.......... Payments in special circumstances................................................... 46

67.......... Attachment of salaries to satisfy judgment debts............................ 47

68.......... Release of personal information....................................................... 48

69.......... Positions........................................................................................... 48

70.......... Delegations....................................................................................... 48

71.......... Determinations................................................................................. 49

Part 9—Transitional provisions                                                                                    51

72.......... Interpretation.................................................................................... 51

73.......... Operation of Part.............................................................................. 53

74.......... Continuation of existing Departments.............................................. 53

75.......... Current heads of Parliamentary Departments to continue in office. 54

76.......... Conversion of officers and employees............................................. 55

77.......... Rights under Part IV of the old Act—first‑tier persons................... 56

78.......... Rights under Part IV of the old Act—second‑tier persons.............. 57

79.......... Determinations under the old Act.................................................... 57

80.......... Misconduct....................................................................................... 57

81.......... References to Agency, Agency Head, former Parliamentary Departments and Secretaries    58

82.......... References in statutory instruments to “officer” etc........................ 58

83.......... Determinations................................................................................. 59

84.......... Certain Acts continue to apply to Departments established and people appointed or engaged under this Act     60

Part 10—Schedules                                                                                                              61

85.......... Schedule(s)........................................................................................ 61

Schedule 1—Amendment of the Parliamentary Service (Consequential Amendments) Act 1997                62

Notes                                                                                                                                            63


An Act to provide for the establishment and management of the Australian Parliamentary Service, and for other purposes

Part 1Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Parliamentary Service Act 1999.

2  Commencement [see Note 1]

                   This Act commences, or is taken to have commenced, on the same day as the Public Service Act 1999, immediately after the commencement of that Act.

3  Objects of this Act

                   The main objects of this Act are:

                     (a)  to establish a non‑partisan Parliamentary Service that is efficient and effective in serving the Parliament; and

                     (b)  to provide a legal framework for the effective and fair employment, management and leadership of Parliamentary Service employees; and

                     (c)  to define the powers and responsibilities of Secretaries, the Parliamentary Librarian, the Parliamentary Service Commissioner and the Parliamentary Service Merit Protection Commissioner; and

                     (d)  to establish rights and obligations of Parliamentary Service employees.

4  This Act binds the Crown

                   This Act binds the Crown in right of the Commonwealth, but does not make the Crown liable to be prosecuted for an offence.

5  This Act extends to things outside Australia

             (1)  This Act extends to acts, omissions, matters and things outside Australia (unless the contrary intention appears).

             (2)  This Act extends to all the Territories.

6  Engagement of employees in a Department

             (1)  All people engaged on behalf of the Commonwealth as employees to perform functions in a Department must be engaged under this Act, or under the authority of another Act.

             (2)  Subsection (1) does not apply to people engaged on an honorary basis.

             (3)  This section does not, by implication, affect any power that a Secretary might otherwise have to engage persons as independent contractors.


 

Part 2Interpretation

  

7  Interpretation

                   In this Act, unless the contrary intention appears:

acting SES employee means a non‑SES employee who is acting in a position usually occupied by an SES employee.

APS employee has the same meaning as in the Public Service Act 1999.

Australian Fair Pay and Conditions Standard has the same meaning as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

Note:          See Schedules 4 and 9 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 in relation to the application of the Australian Fair Pay and Conditions Standard.

category of Parliamentary Service employee means one of the following categories:

                     (a)  ongoing Parliamentary Service employees;

                     (b)  Parliamentary Service employees engaged for a specified term or for the duration of a specified task;

                     (c)  Parliamentary Service employees engaged for duties that are irregular or intermittent.

Classification Rules means rules made under section 23.

Code of Conduct means:

                     (a)  the rules in section 13; and

                     (b)  any rules and orders made by the Senate or the House of Representatives under section 50 of the Constitution that apply to Parliamentary Service employees.

Commissioner means the Parliamentary Service Commissioner appointed under this Act.

Department means a Department of the Parliament that is established under this Act.

determinations means determinations under this Act other than Part 9.

enterprise agreement has the same meaning as in the Fair Work Act 2009.

Executive Agency has the same meaning as in the Public Service Act 1999.

fair work instrument has the same meaning as in the Fair Work Act 2009.

insolvent under administration means a person who:

                     (a)  has become bankrupt; or

                     (b)  has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                     (c)  has compounded with his or her creditors; or

                     (d)  has assigned his or her remuneration for the benefit of his or her creditors.

joint Department means:

                     (a)  the Department of Parliamentary Services; or

                     (b)  if another Department is designated as the joint Department by the Presiding Officers—that other Department.

Library Committee means the committee or committees of the Houses of Parliament that advise the Presiding Officers in respect of the functions of the Parliamentary Librarian.

Merit Protection Commissioner means the Parliamentary Service Merit Protection Commissioner appointed under this Act.

minimum retiring age means:

                     (a)  unless paragraph (b) applies, 55 years; or

                     (b)  if a higher or lower age is prescribed by the determinations—that age.

modern award has the same meaning as in the Fair Work Act 2009.

modifications includes additions, omissions and substitutions.

National Employment Standards has the same meaning as in the Fair Work Act 2009.

non‑ongoing APS employee has the same meaning as in the Public Service Act 1999.

non‑ongoing Parliamentary Service employee means a Parliamentary Service employee who is not an ongoing Parliamentary Service employee.

non‑SES employee means a Parliamentary Service employee other than an SES employee.

ongoing APS employee has the same meaning as in the Public Service Act 1999.

ongoing Parliamentary Service employee means a person engaged as an ongoing Parliamentary Service employee, as mentioned in paragraph 22(2)(a).

overseas means outside Australia and the Territories.

Parliamentary Librarian means the holder of the office of Parliamentary Librarian established under section 38A.

Parliamentary Service means the Australian Parliamentary Service established by section 9.

Parliamentary Service employee means a person engaged as an employee under section 22.

Parliamentary Service employment means employment as a Parliamentary Service employee.

Parliamentary Service Values means the values in section 10.

Presiding Officer or Presiding Officers means:

                     (a)  where the expression is used in connection with a reference to the Department of the Senate or the Clerk of the Senate—the President of the Senate; or

                     (b)  where the expression is used in connection with a reference to the Department of the House of Representatives or the Clerk of that House—the Speaker of the House of Representatives; or

                     (c)  otherwise—the President of the Senate and the Speaker of the House of Representatives acting jointly.

Public Service Commissioner means the Public Service Commissioner appointed under the Public Service Act 1999.

relevant Department, in relation to a Secretary, means the Department of which he or she is the Secretary.

Remuneration Tribunal means the Remuneration Tribunal established by the Remuneration Tribunal Act 1973.

Secretary means the Secretary of a Department and includes the Clerk of the Senate and the Clerk of the House of Representatives.

Secretary of a Department means:

                     (a)  if the Department is the Department of the Senate—the Clerk of the Senate; or

                     (b)  if the Department is the Department of the House of Representatives—the Clerk of that House; or

                     (c)  if the Department is another Department—the Secretary of that Department.

SES means the Senior Executive Service established by section 35.

SES employee has the meaning given by section 34.

WR Act collective transitional instrument means an award, a collective agreement or a pre‑reform certified agreement (within the meaning of those terms in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009).

WR Act transitional instrument means an award, a workplace agreement, a pre‑reform certified agreement, an AWA or a pre‑reform AWA (within the meaning of those terms in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009).

8  Relationship with Fair Work Acts

             (1)  This Act has effect subject to the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

             (2)  Subsection (1) is not intended to imply anything about the relationship between this Act and any Act other than the Fair Work Act 2009 or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.


 

Part 3The Australian Parliamentary Service

  

9  Constitution of the Australian Parliamentary Service

                   The Australian Parliamentary Service consists of Secretaries, the Parliamentary Librarian and Parliamentary Service employees.

10  Parliamentary Service Values

             (1)  The Parliamentary Service Values are as follows:

                     (a)  the Parliamentary Service provides professional advice and support for the Parliament independently of the Executive Government of the Commonwealth;

                     (b)  the Parliamentary Service provides non‑partisan and impartial advice and services to each House of the Parliament, to committees of each House, to joint committees of both Houses and to Senators and Members of the House of Representatives;

                     (c)  the Parliamentary Service has the highest ethical standards;

                     (d)  the Parliamentary Service performs its functions with probity and is openly accountable for its actions to the Parliament;

                     (e)  the Parliamentary Service has leadership of the highest quality;

                      (f)  employment decisions in the Parliamentary Service are based on merit;

                     (g)  the Parliamentary Service provides a workplace that is free from discrimination and recognises and utilises the diversity of the Australian community;

                     (h)  the Parliamentary Service establishes workplace relations that value communication, consultation, co‑operation and input from employees on matters that affect their workplace;

                      (i)  the Parliamentary Service provides a fair, flexible, safe and rewarding workplace;

                      (j)  the Parliamentary Service focuses on achieving results and managing performance;

                     (k)  the Parliamentary Service uses Commonwealth resources properly and cost‑effectively;

                      (l)  the Parliamentary Service promotes equity in employment;

                    (m)  the Parliamentary Service provides a reasonable opportunity to all eligible members of the community to apply for Parliamentary Service employment;

                     (n)  the Parliamentary Service is a career‑based service to enhance the effectiveness and cohesion of Australia’s democratic system of government;

                     (o)  the Parliamentary Service provides a fair system of review of decisions taken in respect of Parliamentary Service employees.

             (2)  For the purposes of paragraph (1)(f), a decision relating to engagement or promotion is based on merit if:

                     (a)  an assessment is made of the relative suitability of the candidates for the duties, using a competitive selection process; and

                     (b)  the assessment is based on the relationship between the candidates’ work‑related qualities and the work‑related qualities genuinely required for the duties; and

                     (c)  the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties; and

                     (d)  the assessment is the primary consideration in making the decision.

11  Commissioner must give advice to Presiding Officers about Parliamentary Service Values

             (1)  The Commissioner must give advice to the Presiding Officers:

                     (a)  to help them to ensure that the Parliamentary Service incorporates and upholds the Parliamentary Service Values; and

                     (b)  to help them to determine where necessary the scope or application of each Parliamentary Service Value.

             (2)  The Presiding Officers must issue written determinations under section 71 in relation to each of the Parliamentary Service Values, having regard to the advice received from the Commissioner under subsection (1).

             (3)  The Presiding Officers must cause to be laid before each House of the Parliament a copy of the advice received from the Commissioner under subsection (1).

12  Secretaries must promote Parliamentary Service Values

                   A Secretary must uphold and promote the Parliamentary Service Values.

13  The Parliamentary Service Code of Conduct

             (1)  A Parliamentary Service employee must behave honestly and with integrity in the course of Parliamentary Service employment.

             (2)  A Parliamentary Service employee must act with care and diligence in the course of Parliamentary Service employment.

             (3)  A Parliamentary Service employee, when acting in the course of Parliamentary Service employment, must treat everyone with respect and courtesy, and without harassment.

             (4)  A Parliamentary Service employee, when acting in the course of Parliamentary Service employment, must comply with all applicable Australian laws. For this purpose, Australian law means:

                     (a)  any Act (including this Act), or any instrument having effect under an Act; or

                     (b)  any law of a State or Territory, including any instrument having effect under such a law.

             (5)  A Parliamentary Service employee must comply with any lawful and reasonable direction given by someone in the Department in which he or she is employed who has authority to give the direction.

             (6)  A Parliamentary Service employee must maintain appropriate confidentiality about dealings that the employee has with either House of the Parliament, with any committee of either House, with any joint committee of both Houses, with any Senator or Member of the House of Representatives or with the staff of any Senator or Member.

             (7)  A Parliamentary Service employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with Parliamentary Service employment.

             (8)  A Parliamentary Service employee must use the resources of the Commonwealth in a proper manner.

             (9)  A Parliamentary Service employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s Parliamentary Service employment.

           (10)  A Parliamentary Service employee must not make improper use of:

                     (a)  inside information; or

                     (b)  the employee’s duties, status, power or authority;

in order to gain, or seek to gain, a benefit or advantage for the employee or for anyone else.

           (11)  A Parliamentary Service employee must at all times behave in a way that upholds the Parliamentary Service Values and the integrity and good reputation of the Parliamentary Service.

           (12)  A Parliamentary Service employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.

           (13)  A Parliamentary Service employee must comply with any other conduct requirement that is made by either House of the Parliament or by determinations.

14  Secretaries bound by Code of Conduct

             (1)  Secretaries are bound by the Code of Conduct in the same way as Parliamentary Service employees.

             (2)  Statutory office holders are bound by the Code of Conduct in the same way as Parliamentary Service employees.

             (3)  In this section:

statutory office holder means a person who holds any office or appointment under this Act, being an office or appointment that is prescribed by the determinations for the purposes of this definition.

15  Breaches of the Code of Conduct

             (1)  A Secretary may impose the following sanctions on a Parliamentary Service employee in the relevant Department who is found (under procedures established under subsection (3)) to have breached the Code of Conduct:

                     (a)  termination of employment;

                     (b)  reduction in classification;

                     (c)  re‑assignment of duties;

                     (d)  reduction in salary;

                     (e)  deductions from salary, by way of fine;

                      (f)  a reprimand.

             (2)  The determinations may prescribe limitations on the power of a Secretary to impose sanctions under subsection (1).

             (3)  A Secretary must establish procedures for determining whether a Parliamentary Service employee in the relevant Department has breached the Code of Conduct. The procedures:

                     (a)  must comply with basic procedural requirements set out in Commissioner’s Directions; and

                     (b)  must have due regard to procedural fairness; and

                     (c)  may be different for different categories of Parliamentary Service employees.

             (4)  The Commissioner must issue directions in writing for the purposes of subsection (3).

             (5)  A Secretary must take reasonable steps to ensure that every Parliamentary Service employee in the relevant Department has ready access to the documents that set out the procedures referred to in subsection (3).

16  Protection for whistleblowers

                   A person performing functions in or for a Department must not victimise, or discriminate against, a Parliamentary Service employee because the employee has reported breaches (or alleged breaches) of the Code of Conduct to:

                     (a)  the Commissioner or a person authorised for the purposes of this section by the Commissioner; or

                     (b)  the Merit Protection Commissioner or a person authorised for the purposes of this section by the Merit Protection Commissioner; or

                     (c)  a Secretary or a person authorised for the purposes of this section by a Secretary.

17  Prohibition on patronage and favouritism

                   A person exercising powers under this Act or the determinations:

                     (a)  in relation to the engagement of Parliamentary Service employees; or

                     (b)  otherwise in relation to Parliamentary Service employees;

must do so without patronage or favouritism.

17A  Application of sections 16 and 17 to the Parliamentary Librarian

                   Sections 16 and 17 apply to the Parliamentary Librarian as if he or she were a Parliamentary Service employee.

18  Promotion of employment equity

                   A Secretary must establish a workplace diversity program to help in giving effect to the Parliamentary Service Values.

19  Restrictions on directions to Clerks

                   The Clerk of either House of the Parliament is not subject to direction by a Presiding Officer in relation to any advice sought from, or given by, the Clerk with respect to that House or any of its committees or members.


 

Part 4Parliamentary Service employees and the Parliamentary Librarian

Division 1Parliamentary Service employees generally

20  General directions to Secretaries

             (1)  General directions may be given in writing under this section to Secretaries in relation to the management and leadership of Parliamentary Service employees.

             (2)  Any such directions are to be given:

                     (a)  in relation to the Clerk of the Senate—by the President of the Senate; or

                     (b)  in relation to the Clerk of the House of Representatives—by the Speaker of the House of Representatives; or

                     (c)  in relation to any other Secretary—by the President of the Senate and the Speaker of the House of Representatives acting jointly.

             (3)  A direction can only be given if the Parliamentary Service Commissioner has been consulted by the President of the Senate, the Speaker of the House of Representatives, or the President of the Senate and the Speaker of the House of Representatives, as the case may be, in relation to the proposed direction.

             (4)  A direction cannot be given to a Secretary in relation to the exercise of powers by the Secretary under this Part in relation to particular individuals.

             (5)  A direction issued under subsection (1) must be:

                     (a)  published in the Gazette within 14 days; and

                     (b)  laid before the appropriate House as soon as practicable;

after the direction is issued.

             (6)  In this section, appropriate House means:

                     (a)  in relation to a direction given to the Clerk of the Senate—the Senate; or

                     (b)  in relation to a direction given to the Clerk of the House of Representatives—the House of Representatives; or

                     (c)  in relation to a direction given to any other Secretary—the Senate and the House of Representatives.

21  Employer powers etc. of Secretary

             (1)  A Secretary, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of Parliamentary Service employees in the relevant Department.

             (2)  Without limiting subsection (1), a Secretary has, in respect of Parliamentary Service employees in the relevant Department, the rights, duties and powers that are prescribed by the determinations.

22  Engagement of Parliamentary Service employees

             (1)  A Secretary, on behalf of the Commonwealth, may engage people as employees for the purposes of the relevant Department.

             (2)  The engagement of a Parliamentary Service employee (including an engagement under section 26) must be:

                     (a)  as an ongoing Parliamentary Service employee; or

                     (b)  for a specified term or for the duration of a specified task; or

                     (c)  for duties that are irregular or intermittent.

             (3)  The usual basis for engagement is as an ongoing Parliamentary Service employee.

             (4)  The determinations may limit the circumstances in which persons may be engaged as mentioned in paragraph (2)(b) or (c).

             (5)  An engagement for a specified term may be extended, subject to any limitations prescribed by the determinations.

             (6)  The engagement of a Parliamentary Service employee may be made subject to conditions notified to the employee, including conditions dealing with any of the following matters:

                     (a)  probation;

                     (b)  citizenship;

                     (c)  formal qualifications;

                     (d)  security and character clearances;

                     (e)  health clearances.

             (7)  Subsection (6) does not, by implication, limit the conditions that may be applied to the engagement of a Parliamentary Service employee.

             (8)  A Secretary must not engage, as a Parliamentary Service employee, a person who is not an Australian citizen, unless the Secretary considers it appropriate to do so.

23  Classification Rules

             (1)  The Presiding Officers, after consulting the Commissioner, may, by notice in the Gazette, make rules about classifications of Parliamentary Service employees.

             (2)  The Classification Rules may apply, adopt or incorporate, with or without modification, any of the provisions of:

                     (a)  a modern award, as in force at a particular time or as in force from time to time; or

                     (b)  a transitional APCS, as in force at a particular time or as in force from time to time.

             (3)  Secretaries must comply with the Classification Rules.

             (4)  A Secretary cannot reduce the classification of a Parliamentary Service employee without the employee’s consent, except in the following cases:

                     (a)  as a sanction under section 15;

                     (b)  on the ground that the employee is excess to the requirements of the relevant Department at the higher classification;

                     (c)  on the ground that the employee lacks, or has lost, an essential qualification for performing duties at the higher classification;

                     (d)  on the ground of non‑performance, or unsatisfactory performance, of duties at the higher classification;

                     (e)  on the ground that the employee is unable to perform duties at the higher classification because of physical or mental incapacity;

                      (f)  in other circumstances prescribed by the determinations.

             (5)  If a relevant industrial instrument contains procedures to be followed when reducing the classification, then a reduction is of no effect unless those procedures are followed.

             (6)  In this section:

industrial instrument means:

                     (a)  a modern award; or

                     (b)  an enterprise agreement; or

                     (c)  a workplace determination; or

                     (d)  a WR Act transitional instrument; or

                     (e)  a transitional APCS.

transitional APCS has the meaning given by Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

workplace determination has the same meaning as in the Fair Work Act 2009.

24  Remuneration and other conditions

             (1)  A Secretary may from time to time determine in writing the remuneration and other terms and conditions of employment applying to a Parliamentary Service employee or Parliamentary Service employees in the relevant Department.

Note 1:       Certain terms and conditions of employment are applicable to a Parliamentary Service employee under the Australian Fair Pay and Conditions Standard or the National Employment Standards.

Note 2:       Other Commonwealth laws deal with matters such as superannuation, compensation, long service leave and maternity leave.

          (1A)  A determination under subsection (1) is of no effect to the extent that it would reduce the benefit to a Parliamentary Service employee of an individual term or condition applicable to the employee under:

                     (a)  a fair work instrument; or

                     (b)  a WR Act transitional instrument.

Note:          A determination under subsection (1) would also be of no effect to the extent that it would reduce the benefit to a Parliamentary Service employee of a term or condition applicable to the employee under the Australian Fair Pay and Conditions Standard or the National Employment Standards.

             (2)  A determination under subsection (1) may apply, adopt or incorporate, with or without modification, any of the provisions of:

                     (a)  a fair work instrument; or

                     (b)  a WR Act collective transitional instrument;

as in force from time to time.

Note:          A determination under subsection (1) may apply, adopt or incorporate, with or without modification, any of the provisions of the Australian Fair Pay and Conditions Standard or the National Employment Standards. However, any modification of the provisions of those Standards by a determination under subsection (1) would be of no effect to the extent that it would reduce the benefit to a Parliamentary Service employee of a term or condition applicable to the employee under those Standards.

             (3)  The Presiding Officers may, by notice in the Gazette, determine the remuneration and other terms and conditions of employment applying to Parliamentary Service employees, if the Presiding Officers are of the opinion that it is desirable to do so because of exceptional circumstances.

             (4)  The limitation in subsection (1A) does not apply in relation to a determination under subsection (3).

             (5)  A determination under subsection (3) overrides the following, to the extent of any inconsistency:

                     (a)  a determination under subsection (1);

                     (b)  the Australian Fair Pay and Conditions Standard;

                     (c)  the National Employment Standards.

25  Assignment of duties

                   A Secretary may from time to time determine the duties of a Parliamentary Service employee in the relevant Department, and the place or places at which the duties are to be performed.

26  Mobility between Parliamentary Service and Public Service

             (1)  An ongoing Parliamentary Service employee is eligible for engagement, at any classification, as an ongoing APS employee. The engagement is subject to review in accordance with regulations under the Public Service Act 1999.

             (2)  An ongoing APS employee is eligible for engagement, at any classification, as an ongoing Parliamentary Service employee. The engagement is subject to review in accordance with the determinations.

             (3)  A person who moves from:

                     (a)  employment as an ongoing Parliamentary Service employee to employment as an ongoing APS employee; or

                     (b)  employment as an ongoing APS employee to employment as an ongoing Parliamentary Service employee;

retains his or her existing or accrued entitlements relating to annual leave, and personal or carer’s leave, (however they may be described).

Note:          Service for long service leave purposes is dealt with under the Long Service Leave (Commonwealth Employees) Act 1976, and service for maternity leave purposes is dealt with under the Maternity Leave (Commonwealth Employees) Act 1973.

             (4)  If a person moves from one service to another as mentioned in this section, the person stops being an employee of the service from which the person moved when he or she is engaged as an ongoing APS employee or as an ongoing Parliamentary Service employee.

26A  Rights of ongoing employees when engaged as non‑ongoing employees of the other service

             (1)  If an ongoing Parliamentary Service employee is granted leave without pay to take up employment as a non‑ongoing APS employee, the employee:

                     (a)  retains his or her existing or accrued entitlements relating to annual leave, and personal or carer’s leave, (however they may be described) in respect of employment as a Parliamentary Service employee; and

                     (b)  when he or she returns to the Parliamentary Service—retains his or her existing or accrued entitlements of that kind in respect of employment as an APS employee.

             (2)  If an ongoing APS employee is granted leave without pay to take up employment as a non‑ongoing Parliamentary Service employee, the employee:

                     (a)  retains his or her existing or accrued entitlements relating to annual leave, and personal or carer’s leave, (however they may be described) in respect of employment as an APS employee; and

                     (b)  when he or she returns to the APS—retains his or her existing or accrued entitlements of that kind in respect of employment as a Parliamentary Service employee.

             (3)  Any period of leave without pay referred to in subsection (1) or (2) counts as service for all purposes except accrual of annual leave, or personal or carer’s leave, (however they may be described).

Note:          Service for long service leave purposes is dealt with under the Long Service Leave (Commonwealth Employees) Act 1976, and service for maternity leave purposes is dealt with under the Maternity Leave (Commonwealth Employees) Act 1973.

27  Compulsory moves between Parliamentary Departments and between the Parliamentary Service and the Australian Public Service

             (1)  The Commissioner may:

                     (a)  with the agreement of the Presiding Officers, move an excess Parliamentary Service employee to another Parliamentary Department; or

                     (b)  with the agreement of the Public Service Commissioner, move a transitional excess Parliamentary Service employee to an APS Agency.

             (2)  For the purposes of this section:

                     (a)  a Parliamentary Service employee is an excess Parliamentary Service employee if, and only if, the Secretary has notified the Commissioner in writing that the employee is excess to the requirements of the Parliamentary Department; and

                     (b)  a Parliamentary Service employee is a transitional excess Parliamentary Service employee if, and only if, the employee was covered by the Public Service Act 1922 at the time immediately before this Act commenced and the Secretary has notified the Commissioner in writing that the employee is excess to the requirements of the Parliamentary Service.

28  Suspension

                   The determinations may make provision in relation to the suspension from duties of Parliamentary Service employees, with or without remuneration.

29  Termination of employment

             (1)  A Secretary may at any time, by notice in writing, terminate the employment of a Parliamentary Service employee in the relevant Department.

Note:          The Fair Work Act 2009 has rules and entitlements that apply to termination of employment.

             (2)  For an ongoing Parliamentary Service employee, the notice must specify the ground or grounds that are relied on for the termination.

             (3)  For an ongoing Parliamentary Service employee, the following are the only grounds for termination:

                     (a)  the employee is excess to the requirements of the relevant Department;

                     (b)  the employee lacks, or has lost, an essential qualification for performing his or her duties;

                     (c)  non‑performance, or unsatisfactory performance, of duties;

                     (d)  inability to perform duties because of physical or mental incapacity;

                     (e)  failure to satisfactorily complete an entry‑level training course;

                      (f)  failure to meet a condition imposed under subsection 22(6);

                     (g)  breach of the Code of Conduct;

                     (h)  any other ground prescribed by the determinations.

             (4)  The determinations may prescribe grounds or procedures applicable to the termination of the engagement of non‑ongoing Parliamentary Service employees.

             (5)  Subsection (4) does not, by implication, limit the grounds for termination for a non‑ongoing Parliamentary Service employee.

30  Retirement

                   A Parliamentary Service employee who has reached the minimum retiring age is entitled to retire at any time by notice in writing to the Secretary of the Department in which the employee is employed.

31  Forfeiture of additional remuneration

             (1)  If a Parliamentary Service employee receives any non‑Commonwealth remuneration for performing duties as a Parliamentary Service employee, the Secretary of the Department in which the employee is employed may give a notice in writing to the employee in relation to the whole, or a specified part, of the remuneration.

             (2)  The amount notified by the Secretary:

                     (a)  is taken to have been received by the employee on behalf of the Commonwealth; and

                     (b)  may be recovered by the Commonwealth from the employee as a debt in a court of competent jurisdiction.

             (3)  If a Secretary receives any non‑Commonwealth remuneration for performing duties as a Secretary, then the Presiding Officer may give a notice in writing to the Secretary in relation to the whole, or a specified part, of the remuneration.

             (4)  The amount notified by the Presiding Officer:

                     (a)  is taken to have been received by the Secretary on behalf of the Commonwealth; and

                     (b)  may be recovered by the Commonwealth from the Secretary as a debt in a court of competent jurisdiction.

             (5)  In this section:

non‑Commonwealth remuneration means any remuneration from a person other than the Commonwealth.

32  Right of return for election candidates

             (1)  This section applies to a person if:

                     (a)  the person resigned as a Parliamentary Service employee in order to contest an election prescribed by the determinations; and

                     (b)  the resignation took effect not earlier than 6 months before the closing date for nominations; and

                     (c)  the person was a candidate in the election but failed to be elected.

             (2)  The person is entitled to be again engaged as a Parliamentary Service employee, in accordance with the determinations and within the time limits prescribed by the determinations.

33  Review of actions

             (1)  A Parliamentary Service employee is entitled to review, in accordance with the determinations, of any Parliamentary Service action that relates to his or her Parliamentary Service employment. However, a Parliamentary Service employee is not entitled to review under this section of Parliamentary Service action that consists of the termination of the employee’s employment.

             (2)  The determinations may prescribe exceptions to the entitlement.

Note:          For example, the determinations might provide that there is no entitlement to review if the application for review is frivolous or vexatious.

             (3)  Without limiting subsection (1), determinations made for the purposes of that subsection may provide for the powers available to the Merit Protection Commissioner, or any other person or body, when conducting a review under the determinations.

             (4)  Determinations for the purposes of subsection (1):

                     (a)  may provide for an initial review to be conducted within the relevant Department; and

                     (b)  may provide that applications for review of particular kinds of Parliamentary Service action are to be made directly to the Merit Protection Commissioner; and

                     (c)  must provide for an application for review to be referred to the Merit Protection Commissioner if the applicant is not satisfied with the outcome of an initial review within the relevant Department; and

                     (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 a person nominated by the Merit Protection Commissioner or by a 3 member committee constituted in accordance with the determinations.

             (5)  A person or body that has conducted a review under this section may make recommendations in a report on the review but does not have power to make any binding decision as a result of the review, except as provided by the determinations.

             (6)  If the Merit Protection Commissioner is not satisfied with the response to recommendations contained in a report on a review under this section, the Merit Protection Commissioner may give a report on the matter to the Secretary of the relevant Department and to the Presiding Officers, for presentation to the Parliament.

             (7)  In this section:

action includes a refusal or failure to act.

Parliamentary Service action means action by a person in the capacity of a Secretary or Parliamentary Service employee.

relevant Department, in relation to Parliamentary Service action, means the Department in which the person who did the action was at the time of the action.


 

Division 2The Senior Executive Service

34  SES employees

                   SES employees are those Parliamentary Service employees who are classified as SES employees under the Classification Rules.

35  Constitution and role of SES

             (1)  The Senior Executive Service consists of the SES employees.

             (2)  The function of the SES is to provide a group of Parliamentary Service employees each of whom, within his or her Department:

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

                              (i)  professional expertise;

                             (ii)  policy advice;

                            (iii)  management; and

                     (b)  promotes co‑operation with other Departments; and

                     (c)  by personal example and other appropriate means, promotes the Parliamentary Service Values and compliance with the Code of Conduct.

36  Commissioner’s guidelines on SES matters

                   The Commissioner must issue guidelines in writing about employment matters relating to SES employees, including engagement, promotion, redeployment, mobility and termination.

37  Incentive to retire

             (1)  A Secretary may give a notice in writing to an SES employee in the relevant Department stating that the employee will become entitled to a payment of a specified amount if the employee retires within a period specified in the notice.

             (2)  If the employee retires within the specified period, by notice in writing to the Secretary:

                     (a)  the employee is entitled to be paid the specified amount; and

                     (b)  the employee is taken, for all purposes, to have been compulsorily retired from the Parliamentary Service.

38  Commissioner’s certificate required for termination of SES employment

                   A Secretary cannot terminate the employment of an SES employee unless the Commissioner has issued a certificate stating that:

                     (a)  all relevant requirements of Commissioner’s guidelines under section 36 have been satisfied in respect of the proposed termination; and

                     (b)  the Commissioner is of the opinion that the termination is in the public interest.

Division 3Parliamentary Librarian

38A  Parliamentary Librarian

             (1)  An office of Parliamentary Librarian is established by this section.

             (2)  The Parliamentary Librarian and the employees of the joint Department assisting the Parliamentary Librarian may be known as the Parliamentary Library.

Note:          The Parliamentary Librarian is within the joint Department (see section 54).

38B  Functions of Parliamentary Librarian

             (1)  The functions of the Parliamentary Librarian are:

                     (a)  to provide high quality information, analysis and advice to Senators and Members of the House of Representatives in support of their parliamentary and representational roles; and

                     (b)  to undertake such other responsibilities within the joint Department, consistent with the function set out in paragraph (a), as are conferred in writing on the Parliamentary Librarian by the Secretary of the joint Department with the approval of the Presiding Officers.

             (2)  The Parliamentary Librarian must perform the function mentioned in paragraph (1)(a):

                     (a)  in a timely, impartial and confidential manner; and

                     (b)  maintaining the highest standards of scholarship and integrity; and

                     (c)  on the basis of equality of access for all Senators, Members of the House of Representatives, parliamentary committees and staff acting on behalf of Senators, Members or parliamentary committees; and

                     (d)  having regard to the independence of Parliament from the Executive Government of the Commonwealth.

38C  Appointment of Parliamentary Librarian

             (1)  The Parliamentary Librarian is to be appointed by the Presiding Officers for a period of 5 years.

             (2)  The Presiding Officers cannot make an appointment unless they have received a report about the vacancy from the Secretary of the joint Department.

             (3)  The Presiding Officers cannot appoint a person as the Parliamentary Librarian unless:

                     (a)  the person has either or both of the following:

                              (i)  professional qualifications in librarianship or information management (however described);

                             (ii)  professional membership of a recognised professional association in the discipline of librarianship or information management (however described); or

                     (b)  the Presiding Officers are satisfied that, by reason of the person’s qualifications in another relevant discipline, or the person’s professional experience, the person has suitable skills to perform the functions of Parliamentary Librarian.

             (4)  An appointment is not affected by any defect or irregularity in or in connection with the appointment.

38D  Termination of appointment of Parliamentary Librarian

             (1)  The Presiding Officers may, by notice in writing, terminate the appointment of the Parliamentary Librarian at any time.

             (2)  The Presiding Officers cannot terminate an appointment unless they have received a report about the proposed termination from the Commissioner.

38E  Remuneration and other conditions of appointment

             (1)  The remuneration and other conditions of employment of the Parliamentary Librarian are as determined by the Presiding Officers.

             (2)  For each determination, the Presiding Officers must seek the advice of the Remuneration Tribunal and take that advice into account.

             (3)  Each determination must be:

                     (a)  published in the Gazette within 14 days; and

                     (b)  laid before the Senate and the House of Representatives as soon as practicable;

after the determination is made.

38F  Acting Parliamentary Librarian

             (1)  The Presiding Officers may appoint a person to act in the office of Parliamentary Librarian:

                     (a)  if there is a vacancy in the office, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Parliamentary Librarian is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.

             (2)  However, the Presiding Officers cannot appoint a person to act in the position unless the person meets the requirement in subsection 38C(3).

             (3)  Anything done by or in relation to a person purporting to act under this section is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

38G  Resources for the Parliamentary Librarian

             (1)  The Secretary of the joint Department must provide resources to the Parliamentary Librarian in accordance with an annual agreement that satisfies the requirements of subsection (2).

             (2)  The agreement must be:

                     (a)  made between the Secretary of the joint Department and the Parliamentary Librarian; and

                     (b)  approved by the Presiding Officers in writing after receiving advice about the contents of the agreement from the Library Committee.

             (3)  The Presiding Officers may approve the agreement for the purposes of subsection (2) either before or after the agreement is made by the Secretary and the Parliamentary Librarian.

38H  Reporting to Library Committee

             (1)  The Parliamentary Librarian must give a report on the performance of the functions of the Parliamentary Librarian to the Library Committee on the request of the Committee.

Note:          The Parliamentary Librarian must also give an annual report to the Presiding Officers under section 65.

             (2)  However, the Parliamentary Librarian must give such a report to the Committee at least once every financial year.

38I  Copyright

                   For the purposes of sections 48A and 104A of the Copyright Act 1968:

                     (a)  the part of the joint Department that is headed by the Parliamentary Librarian and that provides library services is taken to be a library the principal purpose of which is to provide library services for Members of the Parliament; and

                     (b)  the Parliamentary Librarian is taken to be the officer in charge of that library; and

                     (c)  a Parliamentary Service employee authorised by the Parliamentary Librarian to act on his or her behalf in relation to the provision of the library services is taken to be an authorised officer of that library.

Note:          Sections 48A and 104A of the Copyright Act 1968 apply only in relation to things done for the sole purpose of assisting a person who is a Member of a Parliament in the performance of the person’s duties as such a Member.


 

Part 5The Parliamentary Service Commissioner

Division 1Commissioner’s functions etc.

39  Parliamentary Service Commissioner

                   There is to be a Parliamentary Service Commissioner.

40  Commissioner’s functions

             (1)  The Commissioner’s functions include the following functions:

                     (a)  to give advice to the Presiding Officers on the management policies and practices of the Parliamentary Service;

                     (b)  if requested by the Presiding Officers, to inquire into and report on matters relating to the Parliamentary Service that are specified in the request.

             (2)  A report by the Commissioner under paragraph (1)(b) may include recommendations.

             (3)  The Commissioner is not subject to direction by or on behalf of the Executive Government of the Commonwealth in the performance of his or her functions.

41  Commissioner’s inquiry powers

                   The following provisions apply in relation to an inquiry that is conducted by the Commissioner under paragraph 40(1)(b) (with references to the Auditor‑General being replaced by references to the Commissioner):

                     (a)  sections 32, 33, 34 and 35 of the Auditor‑General Act 1997;

                     (b)  any other provisions of the Auditor‑General Act 1997, or of regulations under that Act, that are relevant to the operation of section 32, 33, 34 or 35 of that Act.

42  Annual report

             (1)  After the end of each financial year, the Commissioner must give a report to the Presiding Officers, for presentation to the Parliament, on the activities of the Commissioner during the year.

             (2)  The report must be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.


 

Division 2Commissioner’s appointment, conditions etc.

43  Appointment of Commissioner

             (1)  The Commissioner is to be appointed by the Presiding Officers for a period of up to 5 years specified in the instrument of appointment.

             (2)  A person may hold both the office of Commissioner and the office of Public Service Commissioner.

44  Remuneration and other conditions of appointment

             (1)  Subject to subsection (4), the remuneration and other conditions of appointment of the Commissioner are as determined in writing by the Presiding Officers.

             (2)  For each determination, the Presiding Officers must seek the advice of the Remuneration Tribunal and take that advice into account.

             (3)  Each determination must be:

                     (a)  published in the Gazette within 14 days; and

                     (b)  laid before each House of the Parliament as soon as practicable;

after the determination is made.

             (4)  If the same person holds both the office of Commissioner and the office of Public Service Commissioner, the person is not to be paid any remuneration in respect of the office of Commissioner.

45  Removal from office

             (1)  The Presiding Officers may remove the Commissioner from office if each House of the Parliament, in the same session of the Parliament, presents an address to the Presiding Officers praying for the removal of the Commissioner on the ground of misbehaviour or physical or mental incapacity.

             (2)  The Presiding Officers must remove the Commissioner from office if the Commissioner becomes an insolvent under administration.

46  Acting Commissioner

             (1)  The Presiding Officers may appoint a person to act as Commissioner:

                     (a)  if there is a vacancy in the office of Commissioner, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Commissioner is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.

             (2)  A person may act in both the office of Commissioner and the office of Public Service Commissioner.

             (3)  Anything done by or in relation to a person purporting to act under this section is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.


 

Part 6The Parliamentary Service Merit Protection Commissioner

Division 1Merit Protection Commissioner’s functions etc.

47  Parliamentary Service Merit Protection Commissioner

                   There is to be a Parliamentary Service Merit Protection Commissioner.

48  Merit Protection Commissioner’s functions

             (1)  The Merit Protection Commissioner’s functions include the following functions:

                     (a)  to inquire into reports made to the Merit Protection Commissioner (or to a person authorised by the Merit Protection Commissioner) as mentioned in section 16;

                     (b)  to inquire into alleged breaches of the Code of Conduct by the Commissioner and report to the Presiding Officers on the results of such inquiries (including, where relevant, recommendations for sanctions);

                     (c)  to inquire into a Parliamentary Service action, at the request of the Presiding Officers, and to report to the Presiding Officers on the results of the inquiry;

                     (d)  such functions as are prescribed by determinations made for the purposes of section 33;

                     (e)  such other functions as are prescribed by the determinations.

             (2)  The following provisions apply in relation to an inquiry under paragraph (1)(c) (with references to the Auditor‑General being replaced by references to the Merit Protection Commissioner):

                     (a)  sections 32, 33, 34 and 35 of the Auditor‑General Act 1997;

                     (b)  any other provisions of the Auditor‑General Act 1997, or of regulations under that Act, that are relevant to the operation of section 32, 33, 34 or 35 of that Act.

             (3)  The determinations may authorise the Merit Protection Commissioner to charge fees (on behalf of the Commonwealth) for the performance of functions prescribed under paragraph (1)(e).

             (4)  In this section:

action includes a refusal or failure to act.

Parliamentary Service action means an action in relation to the employment of a Parliamentary Service employee, being an action by another Parliamentary Service employee, by a Secretary or by the Parliamentary Librarian.

49  Annual report

             (1)  After the end of each financial year, the Merit Protection Commissioner must give a report to the Parliamentary Service Commissioner on the activities of the Merit Protection Commissioner during the year.

             (2)  The report must be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.

             (3)  The Merit Protection Commissioner’s report is to be included in the Parliamentary Service Commissioner’s report under section 42.


 

Division 2Merit Protection Commissioner’s appointment, conditions etc.

50  Appointment of Merit Protection Commissioner

             (1)  The Merit Protection Commissioner is to be appointed by the Presiding Officers for a period of up to 5 years specified in the instrument of appointment.

             (2)  A person may hold both the office of Merit Protection Commissioner and the office of Public Service Merit Protection Commissioner.

51  Remuneration and other conditions of appointment

             (1)  Subject to subsection (4), the remuneration and other conditions of appointment of the Merit Protection Commissioner are as determined in writing by the Presiding Officers.

             (2)  For each determination, the Presiding Officers must seek the advice of the Remuneration Tribunal and take that advice into account.

             (3)  Each determination must be:

                     (a)  published in the Gazette within 14 days; and

                     (b)  laid before each House of the Parliament as soon as practicable;

after the determination is made.

             (4)  If the same person holds both the office of Merit Protection Commissioner and the office of Public Service Merit Protection Commissioner, the person is not to be paid any remuneration in respect of the office of Merit Protection Commissioner.

52  Removal from office

             (1)  The Presiding Officers may remove the Merit Protection Commissioner from office if each House of the Parliament, in the same session of the Parliament, presents an address to the Presiding Officers praying for the removal of the Commissioner on the ground of misbehaviour or physical or mental incapacity.

             (2)  The Presiding Officers must remove the Merit Protection Commissioner from office if the Merit Protection Commissioner becomes an insolvent under administration.

53  Acting Merit Protection Commissioner

             (1)  The Presiding Officers may appoint a person to act as Merit Protection Commissioner:

                     (a)  if there is a vacancy in the office of Merit Protection Commissioner, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Merit Protection Commissioner is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.

             (2)  A person may act in both the office of Merit Protection Commissioner and the office of Public Service Merit Protection Commissioner.

             (3)  Anything done by or in relation to a person purporting to act under this section is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.


 

Part 7Departments and Secretaries

  

54  Departments

             (1)  The following Departments of the Parliament are established by this subsection:

                     (a)  the Department of the Senate;

                     (b)  the Department of the House of Representatives.

             (2)  Such other Departments of the Parliament as are required may be established by resolutions passed by each House of the Parliament.

             (3)  For the purposes of this Act:

                     (a)  for the joint Department—the Department consists of the Secretary of the Department, together with the Parliamentary Librarian and Parliamentary Service employees assisting the Secretary; and

                     (b)  for any other Department—the Department consists of the Secretary of the Department, together with Parliamentary Service employees assisting the Secretary.

             (4)  A Department of the Parliament established under subsection (2) may be abolished by resolutions passed by each House of the Parliament.

54A  Change of name of Department

             (1)  The name of a Department referred to in subsection 54(2) may be changed to a new name by resolutions passed by each House of the Parliament. The change takes effect when the resolutions are passed.

             (2)  After the former name is changed, a reference to the former name in a law of the Commonwealth, in a contract to which the Commonwealth is a party or in some other instrument of the Commonwealth has effect as if it were a reference to the new name.

             (3)  The Secretary of the Department whose name was changed remains the Secretary of the newly named Department.

             (4)  Each Parliamentary Service employee of the Department whose name was changed remains an employee of the newly named Department.

             (5)  The terms and conditions of service of the Secretary and of those employees are not altered by the change of name.

             (6)  The functions of the newly named Department are not altered by the change of name unless the resolutions passed by each House of the Parliament declare otherwise.

54B  Abolition of Department

                   If a Department (the former Department) referred to in subsection 54(2) is abolished and its functions conferred on another Department established under that subsection, a reference to the former Department in a law of the Commonwealth, in a contract to which the Commonwealth is a party or in some other instrument of the Commonwealth has effect as if it were a reference to that other Department.

55  Offices of Clerk of the Senate and Clerk of the House of Representatives

                   On the commencement of this Act, offices of Clerk of the Senate and Clerk of the House of Representatives are established by this section.

56  Office of Secretary of a Department

             (1)  This section applies to a Department other than the Department of the Senate and the Department of the House of Representatives.

             (2)  On the establishment of a Department, an office of Secretary of that Department is established by this subsection.

             (3)  On the abolition of a Department, the office of Secretary of that Department is abolished by this subsection.

             (4)  The name of the office of Secretary of a Department is “Secretary of the [name of Department]”.

57  Responsibility for managing Department

             (1)  The Secretary of a Department, under the Presiding Officers, is responsible for managing the Department and must advise the Presiding Officers in matters relating to the Department.

             (2)  The Secretary of a Department must assist the Presiding Officers to fulfil the Presiding Officers’ accountability obligations to the Parliament and provide factual information, as required by the Parliament, in relation to the operation and administration of the Department.

58  Appointment of Clerk of the Senate and Clerk of the House of Representatives

             (1)  The Clerk of the Senate is to be appointed by the President of the Senate after the President has consulted members of the Senate about the proposed appointment.

             (2)  The Clerk of the House of Representatives is to be appointed by the Speaker of the House of Representatives after the Speaker has consulted members of that House about the proposed appointment.

             (3)  An appointment of a person as the Clerk of the Senate or the Clerk of the House of Representatives is to be for a period of 10 years. The person is not eligible for reappointment.

             (4)  A person is not to be appointed as the Clerk of the Senate or the Clerk of the House of Representatives unless the Presiding Officer making the appointment is satisfied that the person has extensive knowledge of, and experience in, relevant Parliamentary law, procedure and practice.

             (5)  If the Clerk of the Senate or the Clerk of the House of Representatives has reached the minimum retiring age, he or she is entitled to retire at any time by notice in writing to the Presiding Officer.

             (6)  An appointment is not affected by any defect or irregularity in or in connection with the appointment.

59  Appointment of Secretary of a Department

             (1)  The Secretary of a Department established under subsection 54(2) is to be appointed by the Presiding Officers for a period of 5 years.

             (2)  The Presiding Officers cannot make an appointment unless they have received a report about the vacancy from the Commissioner.

             (3)  An appointment is not affected by any defect or irregularity in or in connection with the appointment.

60  Termination of appointment of Clerk of the Senate or Clerk of the House of Representatives

             (1)  The Senate may, by resolution passed pursuant to a motion of which notice was given at least 6 sitting days before the day on which the resolution is passed, terminate the appointment of the Clerk of the Senate.

             (2)  The House of Representatives may, by resolution passed pursuant to a motion of which notice was given at least 6 sitting days before the day on which the resolution is passed, terminate the appointment of the Clerk of that House.

             (3)  A resolution terminating the appointment of the Clerk of the Senate or the Clerk of the House of Representatives must state the ground on which the appointment is terminated, which must be one of the following:

                     (a)  the Clerk has been guilty of misbehaviour;

                     (b)  the Clerk is incapable, because of physical or mental incapacity, of performing his or her duties;

                     (c)  the Clerk has become an insolvent under administration.

61  Termination of appointment of Secretary of a Department

             (1)  The Presiding Officers may, by notice in writing, terminate an appointment of a Secretary of a Department (other than an appointment of the Clerk of the Senate or the Clerk of the House of Representatives) at any time.

Note:          In Barratt v Howard [1999] FCA 1132, the Federal Court of Australia described the basis on which requirements of procedural fairness applied to the termination of an appointment of Secretary under section 37 of the Public Service Act 1922.

             (2)  The Presiding Officers cannot terminate an appointment unless they have received a report about the proposed termination from the Commissioner.

62  Suspension of Clerk of the Senate or Clerk of the House of Representatives

             (1)  If it appears to the Presiding Officer of a House of the Parliament that a ground exists on which the House could terminate the appointment of the Clerk of the House, the Presiding Officer may, by notice in writing, suspend the Clerk from office.

             (2)  If the Presiding Officer of a House of the Parliament suspends the Clerk of the House from office, the Presiding Officer must cause a statement of the suspension setting out the ground of the suspension to be laid before the House not later than the first sitting day of the House after the day on which the suspension occurs.

             (3)  The suspension of the Clerk ends on the first occurrence of any one of the following:

                     (a)  the appointment of the Clerk is terminated under section 60;

                     (b)  the House passes a resolution removing the suspension;

                     (c)  the prescribed period has elapsed after the day on which a statement of the suspension is laid before the House under subsection (2).

             (4)  For the purposes of paragraph (3)(c), the prescribed period in relation to a particular suspension is:

                     (a)  5 sitting days of the House concerned; or

                     (b)  if the House concerned has, before those 5 sitting days have elapsed, passed a resolution specifying a greater number of sitting days (not exceeding 10 sitting days) in relation to the suspension—that greater number of sitting days.

             (5)  The suspension of a person from office as Clerk of the Senate or Clerk of the House of Representatives does not affect any entitlement of the person to be paid remuneration or allowances.

63  Remuneration and other conditions of appointment

             (1)  The remuneration and other conditions of employment of the Secretary of a Department are as determined by the Presiding Officers.

             (2)  For each determination, the Presiding Officers must seek the advice of the Remuneration Tribunal and take that advice into account.

             (3)  Each determination must be:

                     (a)  published in the Gazette within 14 days; and

                     (b)  laid before the appropriate House of the Parliament as soon as practicable;

after the determination is made.

             (4)  In this section, appropriate House means:

                     (a)  in relation to a determination relating to the Clerk of the Senate—the Senate; or

                     (b)  in relation to a determination relating to the Clerk of the House of Representatives—the House of Representatives; or

                     (c)  in relation to a determination relating to any other Secretary—the Senate and the House of Representatives.

64  Acting Secretary

             (1)  The Presiding Officers may appoint a person to act in the office of Secretary of a Department:

                     (a)  if there is a vacancy in the office, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Secretary is suspended from office, is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.

             (2)  Anything done by or in relation to a person purporting to act under this section is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

65  Annual report

             (1)  After the end of each financial year:

                     (a)  the Clerk of the Senate must give a report to the President of the Senate, for presentation to the Senate, on the activities of the Department of the Senate during the year; and

                     (b)  the Clerk of the House of Representatives must give a report to the Speaker of that House, for presentation to that House, on the activities of the Department of the House of Representatives during the year; and

                     (c)  the Secretary of each other Department must give a report to the President of the Senate and the Speaker of the House of Representatives, for presentation to each House of the Parliament, on the activities of that Department during the year.

             (2)  A report made under subsection (1) is to be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.

             (3)  After the end of each financial year, the Parliamentary Librarian must give a report to the Presiding Officers on the performance of the Parliamentary Librarian’s functions during the year. The Parliamentary Librarian’s report must be included in the report on the activities of the joint Department made under paragraph (1)(c).


 

Part 8Miscellaneous

  

65A  Security Management Board

             (1)  A Security Management Board is established by this section.

             (2)  The Board consists of:

                     (a)  the Secretary of the joint Department, or an SES employee of that department nominated by the Presiding Officers in writing; and

                     (b)  an SES employee of the Department of the Senate nominated by the President of the Senate in writing; and

                     (c)  an SES employee of the Department of the House of Representatives nominated by the Speaker of the House of Representatives in writing.

             (3)  The Board may, with the approval in writing of the Presiding Officers:

                     (a)  invite other members of the Parliamentary Service to attend its meetings; and

                     (b)  invite the heads of other organisations to attend or be represented at its meetings.

             (4)  The Presiding Officers will appoint a Board member to chair meetings of the Board.

             (5)  The function of the Board is to provide advice as required to the Presiding Officers on security policy, and the management of security measures, for Parliament House.

66  Payments in special circumstances

             (1)  The Presiding Officers may authorise the making of payments to a person under subsection (2) if the Presiding Officers consider it appropriate to do so because of special circumstances that relate to, or arise out of:

                     (a)  the payee’s employment by the Commonwealth; or

                     (b)  another person’s employment by the Commonwealth.

             (2)  The Presiding Officers may authorise the making of any of the following payments:

                     (a)  one or more payments of an amount or amounts specified in the authorisation (or worked out in accordance with the authorisation);

                     (b)  periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation), during a period specified in the authorisation (or worked out in accordance with the authorisation).

             (3)  Payments may be authorised under this section even though the payments would not otherwise be authorised by law or required to meet a legal liability.

             (4)  An authorisation cannot be made under this section if it would involve, or be likely to involve, a total amount of more than $100,000.

             (5)  Conditions may be attached to payments under this section. If a condition is breached, the payment may be recovered by the Commonwealth as a debt in a court of competent jurisdiction.

Note:          Payments under this section are to be made out of money appropriated by the Parliament.

67  Attachment of salaries to satisfy judgment debts

             (1)  The determinations:

                     (a)  may provide for deductions to be made from the salary of a Secretary, the Parliamentary Librarian or a Parliamentary Service employee in order to satisfy a judgment debt; and

                     (b)  may prescribe fees payable in connection with such deductions.

             (2)  In this section:

judgment debt includes interest on a judgment debt.

68  Release of personal information

                   The determinations:

                     (a)  may authorise the 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, use or further disclosure of information disclosed under determinations made for the purposes of paragraph (a).

69  Positions

             (1)  A Secretary may, in writing, create positions in the relevant Department.

             (2)  A Secretary may from time to time nominate any Parliamentary Service employee in the relevant Department to occupy a position in that Department, but does not have to do so for all Parliamentary Service employees in that Department.

             (3)  A provision of any Act that applies to Parliamentary Service employees who are nominated under this section to occupy a position applies in the same way to Parliamentary Service employees who are not nominated under this section to occupy a position.

70  Delegations

             (1)  A Secretary may, in writing, delegate to a Parliamentary Service employee any of the Secretary’s powers or functions under this Act (other than this section).

          (1A)  A Secretary may, in writing, delegate to the Parliamentary Librarian any of the Secretary’s powers or functions under this Act (other than this section).

             (2)  A Secretary may, in writing and with the prior written consent of the Commissioner, delegate to a person who is not a Parliamentary Service employee any of the Secretary’s powers or functions under this Act (other than this section).

             (3)  If a Parliamentary Service employee (the first delegate) to whom powers or functions are delegated under subsection (1) is an SES employee or acting SES employee, the first delegate may, in writing, delegate any of those powers or functions to another Parliamentary Service employee (the second delegate). However, if the first delegate is subject to directions in relation to the exercise of a power or function delegated under this subsection, the first delegate must give corresponding directions to the second delegate.

          (3A)  If powers or functions are delegated under subsection (1A), the Parliamentary Librarian may, in writing, delegate any of those powers or functions to a Parliamentary Service employee. However, if the Parliamentary Librarian is subject to directions in relation to the exercise of a power or function delegated under this subsection, the Parliamentary Librarian must give corresponding directions to the Parliamentary Service employee concerned.

             (4)  A power or function that is exercised or performed by a person under a delegation under subsection (3) or (3A) is taken, for the purposes of this Act, to have been exercised or performed by the person who originally delegated the corresponding power or function under subsection (1) or (1A).

             (5)  A person exercising powers or functions under a delegation under this section must comply with any directions of the person who delegated the power or function.

71  Determinations

             (1)  The Presiding Officers, after consulting the Commissioner, may make determinations prescribing matters:

                     (a)  required or permitted by this Act (other than Part 9) to be prescribed by determinations; or

                     (b)  necessary or convenient to be prescribed by determinations for carrying out or giving effect to this Act (other than Part 9).

             (2)  Without limiting subsection (1), determinations may be made for, or in relation to, any of the following:

                     (a)  confidentiality of information obtained by persons performing, or assisting in the performance of, functions under section 33 or paragraph 48(1)(a) or (c);

                     (b)  immunity from civil action in respect of acts or omissions of persons performing, or assisting in the performance of, functions under section 33 or paragraph 48(1)(a) or (c);

                     (c)  prescribing penalties for offences against the determinations by way of fines of up to 10 penalty units.

             (3)  The determinations may make provision, in relation to a matter that may be prescribed by the determinations, by applying, adopting or incorporating, with or without modification, provisions of regulations in force at a particular time, or as in force from time to time, under the Public Service Act 1999.

             (4)  Determinations made for the purposes of sections 22 and 33 must apply, adopt or incorporate to the maximum extent possible regulations made for the purposes of sections 22 and 33, respectively, of the Public Service Act 1999.

             (5)  Subsection (4) does not, by implication, limit subsection (3).

             (6)  A determination made under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.


 

Part 9Transitional provisions

  

72  Interpretation

                   In this Part, unless the contrary intention appears:

Agency has the same meaning as in the Public Service Act 1999.

Agency Head has the same meaning as in the Public Service Act 1999.

classification includes a level.

commencing time means the time when this Act commences.

continuing employee means a person who was a continuing employee in a former Parliamentary Department for the purposes of Division 10 of Part III of the old Act immediately before the commencing time.

continuing SES officer means a person who was an SES officer in a former Parliamentary Department immediately before the commencing time.

corresponding new Department, means:

                     (a)  in relation to a former Parliamentary Department—the Department that corresponds to the former Parliamentary Department; or

                     (b)  in relation to a person who was an old Act officer or old Act employee—the Department that corresponds to the former Parliamentary Department in which the person was an old Act officer or old Act employee immediately before the commencing time.

determinations means determinations under this Part.

eligible public employment means eligible public employment within the meaning of Part IV of the old Act.

first‑tier person means a person:

                     (a)  to whom:

                              (i)  Division 2 of Part IV of the old Act applied immediately before the commencing time; or

                             (ii)  the Officers’ Rights Declaration Act 1928 applied immediately before the commencing time because of section 87TA of the old Act; and

                     (b)  who was an officer in a former Parliamentary Department immediately before the Division referred to in subparagraph (a)(i) or the Act referred to in subparagraph (a)(ii) began to apply to him or her.

former Parliamentary Department means a Parliamentary Department within the meaning of section 9B of the old Act.

Merit Protection Act means the Merit Protection (Australian Government Employees) Act 1984.

non‑SES officer means a person who was an officer under the old Act, other than an SES officer.

old Act means the Public Service Act 1922.

old Act employee means an employee within the meaning of the old Act.

old Act officer means an officer within the meaning of the old Act.

pre‑commencement misconduct means conduct of an old Act officer or old Act employee before the commencing time that was misconduct for the purposes of Subdivision C, D or E of Division 6 of Part III of the old Act.

second‑tier person means:

                     (a)  a person to whom Division 3 of Part IV of the old Act applied immediately before the commencing time; or

                     (b)  a person who becomes a second‑tier person under subsection 77(6) of this Act.

statutory instrument means:

                     (a)  a law of the Commonwealth (other than this Act); or

                     (b)  a law of a Territory; or

                     (c)  an instrument having effect under a law referred to in paragraph (a) or (b).

term employee means a person who, immediately before the commencing time was:

                     (a)  a short‑term or fixed‑term employee in a former Parliamentary Department for the purposes of Division 10 of Part III of the old Act; or

                     (b)  a person employed in a former Parliamentary Department under section 82AG of the old Act.

transitional determination means a determination under subsection 9(7A) or section 82D of the old Act that was in force immediately before the commencing time, subject to any amendments that are prescribed by the determinations under this Part.

transitional period, in relation to a first‑tier person, means the period starting at the commencing time and ending at the earliest of the following times:

                     (a)  the end of the period prescribed by the determinations for the purposes of this paragraph;

                     (b)  the time when the person ceases to be engaged in eligible public employment;

                     (c)  the time when the person resigns or retires as a Parliamentary Service employee;

                     (d)  the end of the relevant period (as defined in subsection 87D(5) of the old Act).

73  Operation of Part

             (1)  This Part has effect despite anything in Parts 3 to 8.

             (2)  Except where this Part expressly provides otherwise, this Act applies to a person who is taken, under this Part, to have been appointed or engaged under this Act in the same way as it applies to people actually engaged or appointed under this Act.

74  Continuation of existing Departments

             (1)  The Department of the Senate and the Department of the House of Representatives that were in existence immediately before the commencing time continue in existence as the Departments referred to in paragraphs 54(1)(a) and (b), respectively.

             (2)  The Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff and the Joint House Department that were in existence immediately before the commencing time continue in existence as Departments of the Parliament and are taken to have been established under subsection 54(2).

75  Current heads of Parliamentary Departments to continue in office

             (1)  The person who held the office of Clerk of the Senate or the office of Clerk of the House of Representatives immediately before the commencing time is taken to have been appointed under subsection 58(1) or (2), as the case may be, to the office of the same name established by section 55, and to have been so appointed for a period of 10 years beginning at the commencing time.

             (2)  The person who held the office of Parliamentary Librarian immediately before the commencing time is taken to have been appointed under section 59 to the office of Secretary of the Department of the Parliamentary Library established by section 56, and to have been so appointed for a period of 5 years beginning at the commencing time.

             (3)  The person who held the office of Principal Parliamentary Reporter immediately before the commencing time is taken to have been appointed under section 59 to the office of Secretary of the Department of the Parliamentary Reporting Staff established by section 56, and to have been so appointed for a period of 5 years beginning at the commencing time.

             (4)  The person who held the office of Secretary to the Joint House Department immediately before the commencing time is taken to have been appointed under section 59 to the office of Secretary of the Joint House Department established by section 56, and to have been so appointed for a period of 5 years beginning at the commencing time.

76  Conversion of officers and employees

Continuing SES officers

             (1)  At the commencing time, a continuing SES officer becomes an SES employee:

                     (a)  in the corresponding new Department; and

                     (b)  with a corresponding classification;

as if he or she had been engaged as an ongoing Parliamentary Service employee under section 22.

Non‑SES officers

             (2)  At the commencing time, a non‑SES officer becomes a non‑SES employee:

                     (a)  in the corresponding new Department; and

                     (b)  with a corresponding classification;

as if he or she had been engaged as an ongoing Parliamentary Service employee under section 22.

Term employees

             (3)  At the commencing time, a term employee becomes a non‑SES employee:

                     (a)  in the corresponding new Department; and

                     (b)  with a corresponding classification;

as if he or she had been engaged as a Parliamentary Service employee under section 22 for a period equal to the unexpired part of the period of the person’s engagement under the old Act.

Continuing employees

             (4)  At the commencing time, a continuing employee becomes a non‑SES employee:

                     (a)  in the corresponding new Department; and

                     (b)  with a corresponding classification;

as if he or she had been engaged as an ongoing Parliamentary Service employee under section 22.

77  Rights under Part IV of the old Act—first‑tier persons

             (1)  During the transitional period, a first‑tier person is taken to be absent from duty as a Parliamentary Service employee, on leave without pay.

             (2)  Service by a first‑tier person in eligible public employment during the transitional period is counted, for the purposes of accrual of recreation leave credits and sick leave credits, as if it were service as a Parliamentary Service employee.

             (3)  A first‑tier person is taken to have resigned as a Parliamentary Service employee at the end of the transitional period unless, before the end of the transitional period:

                     (a)  the person has given notice in writing to the relevant Secretary stating that the person intends to resume duties as a Parliamentary Service employee on the first working day after the end of the transitional period; or

                     (b)  the person has been granted leave for a period that consists of, or includes, the first working day after the end of the transitional period.

             (4)  If a person:

                     (a)  gives a notice under paragraph (3)(a); and

                     (b)  is absent from duty without leave on the first working day after the end of the transitional period;

the person is taken to have resigned as a Parliamentary Service employee at the end of that first working day.

             (5)  If a person would have ceased to be an officer under the old Act at a particular time because of section 87JA or 87JB of the old Act (if the old Act had not been repealed), then the person is taken to have resigned as a Parliamentary Service employee at that time.

             (6)  If the transitional period for a first‑tier person ends at the end of the relevant period (as defined in subsection 87D(5) of the old Act), then the person becomes a second‑tier person at the end of that relevant period.

78  Rights under Part IV of the old Act—second‑tier persons

             (1)  A second‑tier person is entitled to be engaged as a Parliamentary Service employee, in accordance with the determinations, within the time limits prescribed by the determinations.

             (2)  Determinations made for the purposes of subsection (1) may prescribe exceptions to the entitlement.

79  Determinations under the old Act

             (1)  At the commencing time, each Secretary is taken to have made a determination (a continued determination) under section 24 containing the terms of each transitional determination.

             (2)  A continued determination may be amended or revoked by the Secretary in the same way as if it had actually been made under section 24.

             (3)  Unless sooner revoked, a continued determination (including any amendments made by a Secretary under section 24) ceases to be in force on the third anniversary of the commencing time.

80  Misconduct

             (1)  A Secretary may, under section 15, impose the same sanctions on a Parliamentary Service employee in the relevant Department for pre‑commencement misconduct as the Secretary could have imposed on the employee for that conduct under that section if the conduct had happened after the commencing time.

             (2)  Subsection (1) does not apply to conduct for which a person was charged under the old Act before the commencing time.

             (3)  For the purposes of this section, the procedures referred to in section 15 apply in determining whether:

                     (a)  conduct was misconduct for the purposes of Subdivision C, D or E of Division 6 of Part III of the old Act; and

                     (b)  conduct would have been a breach of the Code of Conduct if the conduct had happened after the commencing time.

81  References to Agency, Agency Head, former Parliamentary Departments and Secretaries

             (1)  In any Act other than the Privacy Act 1988:

                     (a)  a replacement reference to an Agency includes a reference to a Department; and

                     (b)  a replacement reference to an Agency Head (other than a reference to the Agency Head of a particular Agency) includes a reference to the Secretary of a Department; and

                     (c)  a reference to a former Parliamentary Department is a reference to a Department; and

                     (d)  a reference to a particular former Parliamentary Department is a reference to the Department that corresponds to that former Parliamentary Department; and

                     (e)  a reference to the Secretary of a Department includes a reference to the Clerk of the Senate and the Clerk of the House of Representatives; and

                      (f)  a reference to the Clerk of the Senate is a reference to the Clerk of the Senate holding office under this Act; and

                     (g)  a reference to the Clerk of the House of Representatives is a reference to the Clerk of the House of Representatives holding office under this Act.

             (2)  This section has effect subject to any modifications prescribed by the determinations.

             (3)  This section does not limit, by implication, section 83.

             (4)  In this section:

replacement reference means a reference that resulted from an amendment made by the Public Employment (Consequential and Transitional) Amendment Act 1999 or by regulations under that Act.

82  References in statutory instruments to “officer” etc.

                   In any statutory instrument, unless the contrary intention appears:

                     (a)  references in general terms to an officer include references to a Secretary, the Parliamentary Librarian or a Parliamentary Service employee; and

                     (b)  references to an officer of the Commonwealth include references to a Secretary, the Parliamentary Librarian or a Parliamentary Service employee; and

                     (c)  references to an officer or employee of a particular former Parliamentary Department include references to a Parliamentary Service employee in the corresponding new Department; and

                     (d)  references to a person occupying, holding or performing the duties of an office in a particular former Parliamentary Department include references to a Parliamentary Service employee in the corresponding new Department; and

                     (e)  references in general terms to an office include references to a position occupied by a Parliamentary Service employee; and

                      (f)  references to an office in a particular former Parliamentary Department include references to a position occupied by a Parliamentary Service employee in the corresponding new Department.

83  Determinations

             (1)  The Presiding Officers, after consulting the Commissioner, may make determinations prescribing matters:

                     (a)  required or permitted by this Part to be prescribed by determinations; or

                     (b)  necessary or convenient to be prescribed by determinations for carrying out or giving effect to this Part.

             (2)  Without limiting, by implication, subsection (1), determinations may be made under subsection (1), in relation to Parliamentary Service employees, with respect to any matters with respect to which regulations may be made under subsection 14(3) of the Public Employment (Consequential and Transitional) Amendment Act 1999.

             (3)  Determinations made for the purposes of subsection (2):

                     (a)  may provide for the old Act or the Merit Protection Act to continue in force for the purposes of the determinations, even though those Acts have been repealed; and

                     (b)  prevail over the old Act, this Act and the Merit Protection Act, to the extent of any inconsistency.

             (4)  The determinations may:

                     (a)  amend other Acts, by making amendments of a kind that are consequential on the repeal of the old Act and its replacement in relation to Parliamentary Service employees by this Act; and

                     (b)  make provision of a transitional or saving nature in relation to amendments made under paragraph (a).

             (5)  For the purposes of the Amendments Incorporation Act 1905, amendments made by determinations under paragraph (4)(a) are to be treated as if they had been made by an Act.

             (6)  Determinations made under this section within one year after the commencing time may commence on a day earlier than the day on which they are made, but not earlier than the commencing time.

             (7)  The determinations may make provision, in relation to a matter that may be prescribed by the determinations, by applying, adopting or incorporating, with or without modification, provisions of regulations in force at a particular time, or as in force from time to time, under the Public Employment (Consequential and Transitional) Amendment Act 1999.

             (8)  A determination made under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

84  Certain Acts continue to apply to Departments established and people appointed or engaged under this Act

                   If, immediately before the commencing time, an Act applied to former Parliamentary Departments or to people appointed or engaged under section 9 of the Public Service Act 1922, the first‑mentioned Act applies to corresponding new Departments or to people appointed or engaged under this Act, as the case may be.


 

Part 10Schedules

85  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 1Amendment of the Parliamentary Service (Consequential Amendments) Act 1997

  

  

Note:

The amendments made by this Schedule are incorporated in the compilation on ComLaw.

Parliamentary Service (Consequential Amendments) Act 1997

For access to the wording of the amendments made by this Schedule, see Act No. 145, 1999.


Notes to the Parliamentary Service Act 1999

Note 1

The Parliamentary Service Act 1999 as shown in this compilation comprises Act No. 145, 1999 amended as indicated in the Tables below.

The Parliamentary Service Act 1999 was amended by the Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations 2006 (No. 1) (SLI 2006 No. 50). The amendments are incorporated in this compilation.

For all relevant information pertaining to application, saving or transitional provisions see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Parliamentary Service Act 1999

145, 1999

11 Nov 1999

5 Dec 1999 (see s. 2 and Gazette 1999, No. S584)

 

Parliamentary Service Amendment Act 2001

125, 2001

27 Sept 2001

17 Oct 2001 (see Gazette 2001, No. GN41)

Parliamentary Service Amendment Act 2005

39, 2005

1 Apr 2005

1 Apr 2005

Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008

8, 2008

20 Mar 2008

Schedules 1–7: 28 Mar 2008 (see F2008L00959)
Remainder: Royal Assent

Fair Work (State Referral and Consequential and Other Amendments) Act 2009

54, 2009

25 June 2009

Schedule 15: (a)

Sch. 15 (item 22)

Financial Framework Legislation Amendment Act 2010

148, 2010

17 Dec 2010

Schedule 10: 18 Dec 2010


(a)     Subsection 2(1) (item 38) of the Fair Work (State Referral and Consequential and Other Amendments) Act 2009 provides as follows:

                 (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.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

38.  Schedule 15

Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009.

1 July 2009 (see F2009L02563)


Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Part 1

 

S. 3.......................................

am. No. 39, 2005

Part 2

 

S. 7.......................................

am. No. 125, 2001; No. 39, 2005; SLI 2006 No. 50; No. 8, 2008; No. 54, 2009

Heading to s. 8.....................

rs. No. 54, 2009

S. 8.......................................

am. No. 54, 2009

Part 3

 

S. 9.......................................

am. No. 39, 2005

S. 17A..................................

ad. No. 39, 2005

Part 4

 

Heading to Part 4..................

rs. No. 39, 2005

Division 1

 

Ss. 23, 24.............................

am. SLI 2006 No. 50; No. 8, 2008; No. 54, 2009

S. 26.....................................

rs. No. 125, 2001

S. 26A..................................

ad. No. 125, 2001

Note to s. 29(1)....................

am. No. 54, 2009

Division 3

 

Div. 3 to Part 4......................

ad. No. 39, 2005

Ss. 38A–38I.........................

ad. No. 39, 2005

Part 6

 

Division 1

 

S. 48.....................................

am. No. 39, 2005

Part 7

 

S. 54.....................................

am. No. 39, 2005

Ss. 54A, 54B........................

ad. No. 125, 2001

S. 65.....................................

am. No. 39, 2005

Part 8

 

S. 65A..................................

ad. No. 39, 2005

S. 66.....................................

am. No. 148, 2010

Note to s. 66.........................

ad. No. 148, 2010

S. 67.....................................

am. No. 39, 2005

S. 70.....................................

am. No. 39, 2005

Part 9

 

Ss. 81, 82.............................

am. No. 39, 2005


Table A

Application, saving or transitional provisions

Fair Work (State Referral and Consequential and Other Amendments) Act 2009 (No. 54, 2009)

Schedule 15

22  Saving provision—determinations under subsection 24(1)

If a determination made by a Secretary under subsection 24(1) of the Parliamentary Service Act 1999 was in force immediately before the commencement of this Schedule, the determination continues in force on and after that commencement as if it had been made under subsection 24(1) of that Act, as amended by this Schedule.