PUBLIC SECTOR REFORM BILL 2009

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PUBLIC SECTOR REFORM BILL 2009

Western Australia Public Sector Reform Bill 2009 CONTENTS Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- Public Sector administration amendments Division 1 -- Public Sector Management Act 1994 amended 3. Act amended 3 4. Section 3 amended 3 5. Section 4 amended 4 6. Section 5 amended 4 7. Part 2 heading replaced 5 Part 2 -- Public Sector principles 8. Part 2 Division 1 heading deleted 5 9. Section 8 amended 5 10. Section 9 amended 5 11. Part 2 Division 2 deleted 5 12. Part 2 Division 3 heading replaced 6 Part 3A -- Public Sector Commissioner Division 1 -- Public Sector Commissioner 13. Section 16 replaced 6 16. Public Sector Commissioner 6 14. Section 17 amended 6 15. Section 19 amended 6 16. Section 20 amended 7 17. Part 3A Division 2 heading inserted 7 103--2B page i Public Sector Reform Bill 2009 Contents Division 2 -- Functions of Commissioner 18. Section 21A inserted 8 21A. General functions of Commissioner 8 19. Section 21 amended 8 20. Sections 22A to 22G inserted 10 22A. Commissioner's instructions 10 22B. Disposition of employees and offices 11 22C. Reports to Ministers 12 22D. Annual report 12 22E. Other reports 13 22F. Reports under section 22D or 22E must be laid before Parliament 13 22G. Powers 14 21. Section 22 amended 14 22. Section 23 replaced 14 23. Delegation by Commissioner 14 23. Part 3A Division 3 inserted 15 Division 3 -- Reviews, special inquiries and investigations Subdivision 1 -- Reviews 24A. Terms used 15 24B. Reviews 15 24C. Commissioner may authorise people to perform functions 16 24D. Powers of Commissioner and authorised person 16 24E. Consultation before exercise of powers 17 24F. Privileges and other protection 17 24G. Report on review 18 Subdivision 2 -- Special inquiries 24H. Special inquiries 18 24I. Powers of person conducting special inquiry 19 24J. Procedure and evidence at special inquiries 19 24K. Reports on special inquiries 20 Subdivision 3 -- Investigations 24. Section 24 amended 21 25. Sections 25, 26 and 27 deleted 21 26. Part 3A Division 4 heading inserted 21 Division 4 -- Acting appointments 27. Section 28 amended 21 28. Sections 29A inserted 23 29A. Acting Commissioner appointed by Commissioner 23 page ii Public Sector Reform Bill 2009 Contents 29B. Matters relevant to all acting appointments 23 29. Part 2 Division 4 heading replaced 24 Part 3B -- Chief executive officers and chief employees 30. Section 29 amended 24 31. Section 30 amended 25 32. Section 31 amended 25 33. Section 32 amended 25 34. Section 33 replaced 26 33. Delegation by chief executive officer or chief employee 26 35. Section 35 amended 27 36. Section 36 amended 28 37. Section 38 amended 28 38. Section 40 amended 28 39. Section 42 amended 28 40. Section 43 amended 29 41. Section 45 amended 29 42. Section 46 amended 30 43. Section 47 amended 31 44. Section 48 deleted 31 45. Section 49 amended 32 46. Section 50 amended 32 47. Section 51 amended 32 48. Section 53 amended 33 49. Section 56 amended 33 50. Section 63 amended 33 51. Section 64 amended 34 52. Section 67 amended 34 53. Section 70 amended 34 54. Section 75 amended 35 55. Section 79 amended 36 56. Section 93 amended 36 57. Section 99 deleted 37 58. Section 100 amended 37 59. Section 105 amended 37 60. Section 108A inserted 37 108A. Delegation by Ministers 37 61. Section 108 amended 38 62. Part 9 Division 1 heading inserted 38 page iii Public Sector Reform Bill 2009 Contents Division 1 -- Public Service Act 1978 repeal and transitional provisions 63. Part 9 Division 2 inserted 39 Division 2 -- Public Sector Reform Act 2009 Part 2 amendments: transitional provisions 113. Transitional provisions 39 64. Schedule 4 replaced 39 Schedule 4 -- Form of declaration 65. Schedule 5 amended 39 66. Schedule 7 inserted 40 Schedule 7 -- Public Sector Reform Act 2009 Part 2 amendments: transitional provisions 1. Terms used 40 2. Incumbent CEO remains in office as Public Sector Commissioner 41 3. Commissioner for Public Sector Standards 41 4. Approved procedures and other instruments 41 5. Reviews, special inquiries and investigations 42 6. Special offices 43 7. Provisions affecting employment of chief executive officers 43 8. Continuing effect of things done under section 97 45 9. Section 107 directions 45 10A. General savings -- Commissioner 45 10. Power to amend subsidiary legislation 46 11. Transitional regulations 46 12. Interpretation Act 1984 not affected 47 67. Various references to "Minister" amended 47 68. Various references to "of the Crown" deleted 48 69. Various cross-references amended 49 70. Other provisions amended 49 Division 2 -- Other Acts amended 71. Agricultural Practices (Disputes) Act 1995 amended 56 72. Auditor General Act 2006 amended 56 73. Constitution Acts Amendment Act 1899 amended 57 74. Corruption and Crime Commission Act 2003 amended 57 75. Electricity Corporations Act 2005 amended 58 76. Financial Management Act 2006 amended 58 page iv Public Sector Reform Bill 2009 Contents 77. Gas Pipelines Access (Western Australia) Act 1998 amended 58 78. Interpretation Act 1984 amended 59 79. Midland Redevelopment Act 1999 amended 59 80. Parliamentary Commissioner Act 1971 amended 59 81. Port Authorities Act 1999 amended 60 82. Public Interest Disclosure Act 2003 amended 60 Part 4 -- Role of Public Sector Commissioner 83. Salaries and Allowances Act 1975 amended 61 84. State Administrative Tribunal Act 2004 amended 61 85. State Records Act 2000 amended 61 86. Subiaco Redevelopment Act 1994 amended 62 87. Water Corporation Act 1995 amended 62 88. Western Australian Land Authority Act 1992 amended 63 89. Various references to "Minister for Public Sector Management" amended 64 90. Various references to "Public Service Board" amended 72 Part 3 -- Public Sector discipline amendments Division 1 -- Public Sector Management Act 1994 amended 91. Act amended 74 92. Section 3 amended 74 93. Section 22A amended 74 94. Section 76 amended 75 95. Section 78 amended 76 96. Section 80A inserted 79 80A. Terms used 79 97. Section 81 replaced 81 81. Employing authority to decide how to deal with suspected breach of discipline 81 82A. Dealing with disciplinary matter 82 98. Section 82 replaced 83 82. Suspension pending decision in relation to breach of discipline or criminal charge 83 99. Sections 83, 84, 85 and 86 deleted 84 100. Section 87 amended 84 page v Public Sector Reform Bill 2009 Contents 101. Section 88 replaced 86 88. Action on receipt of report of special disciplinary inquiry 86 102. Section 89 replaced 87 89. Dismissal of chief executive officer on disciplinary grounds 87 103. Section 90 amended 87 104. Section 91 amended 88 105. Section 92 replaced 89 92. Action if employee convicted of serious offence 89 93A. Implementation of decisions under this Division 89 106. Section 94 amended 90 107. Part 9 Division 3 inserted 90 Division 3 -- Public Sector Reform Act 2009 Part 3 amendments: transitional provisions 114. Transitional provisions 90 108. Schedule 8 inserted 90 Schedule 8 -- Public Sector Reform Act 2009 Part 3 amendments: transitional provisions 1. Term used: commencement day 90 2. Disciplinary proceedings 90 3. Suspensions 91 4. Appeals 91 5. Power to amend subsidiary legislation 91 6. Transitional regulations 92 7. Interpretation Act 1984 not affected 93 Division 2 -- Other Acts amended 109. Industrial Relations Act 1979 amended 93 110. School Education Act 1999 amended 93 page vi Western Australia LEGISLATIVE ASSEMBLY (As amended in Committee) Public Sector Reform Bill 2009 A Bill for An Act to amend the Public Sector Management Act 1994 and for related purposes. The Parliament of Western Australia enacts as follows: page 1 Public Sector Reform Bill 2009 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Public Sector Reform Act 2009. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) sections 1 and 2 -- on the day on which this Act 7 receives the Royal Assent; 8 (b) the rest of the Act -- on a day fixed by proclamation, 9 and different days may be fixed for different provisions. page 2 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 3 1 Part 2 -- Public Sector administration amendments 2 Division 1 -- Public Sector Management Act 1994 amended 3 3. Act amended 4 This Division amends the Public Sector Management Act 1994. 5 4. Section 3 amended 6 (1) In section 3(1) delete the definitions of: 7 approved 8 code of ethics 9 Commissioner 10 public sector standard 11 public service notices 12 special inquirer 13 special inquiry 14 (2) In section 3(1) insert in alphabetical order: 15 16 code of ethics means a code of ethics referred to in 17 section 21(1) and established under the 18 Commissioner's instructions; 19 Commissioner means the person holding the office of 20 Public Sector Commissioner established by 21 section 16(1); 22 Commissioner's instructions means instructions issued 23 under section 22A; 24 improvement action means any one or more of the 25 following actions by an employing authority in respect 26 of an employee for the purpose of improving the 27 performance or conduct of the employee -- 28 (a) counselling; 29 (b) training and development; page 3 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 5 1 (c) issuing a warning to the employee that certain 2 conduct is unacceptable or that the employee's 3 performance is not satisfactory; 4 (d) any other action of a similar nature; 5 public sector notice means a notice issued by or under 6 the authority of the Commissioner for the purposes of 7 this Act that is published as a public sector notice in 8 accordance with the Commissioner's instructions; 9 public sector standard means a public sector standard 10 referred to in section 21(1) and established under the 11 Commissioner's instructions; 12 special inquirer means a person or persons appointed 13 under section 24H to carry out a special inquiry; 14 special inquiry means a special inquiry held under 15 section 24H; 16 17 (3) Delete section 3(2). 18 5. Section 4 amended 19 Delete section 4(1) and insert: 20 21 (1) The Commissioner is deemed to be the chief executive 22 officer of the department principally assisting in the 23 administration of this Act. 24 25 6. Section 5 amended 26 In section 5(1) in the definition of employing authority 27 paragraph (a) delete "Minister;" and insert: 28 29 Commissioner; or 30 page 4 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 7 1 7. Part 2 heading replaced 2 Delete the heading to Part 2 and insert: 3 4 Part 2 -- Public Sector principles 5 6 8. Part 2 Division 1 heading deleted 7 Delete the heading to Part 2 Division 1. 8 9. Section 8 amended 9 After section 8(2) insert: 10 11 (3) For the purposes of this Act a proper assessment of 12 merit in a selection process must be carried out in 13 accordance with the relevant Commissioner's 14 instructions and does not always require a competitive 15 assessment of merit. 16 17 10. Section 9 amended 18 Delete section 9(a)(ii) and "and" after it and insert: 19 20 (ii) the Commissioner's instructions, public 21 sector standards and codes of ethics; and 22 23 11. Part 2 Division 2 deleted 24 Delete Part 2 Division 2. page 5 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 12 1 12. Part 2 Division 3 heading replaced 2 Delete the heading to Part 2 Division 3 and insert: 3 4 Part 3A -- Public Sector Commissioner 5 Division 1 -- Public Sector Commissioner 6 7 13. Section 16 replaced 8 Delete section 16 and insert: 9 10 16. Public Sector Commissioner 11 (1) An office of Public Sector Commissioner is 12 established. 13 (2) The office of Public Sector Commissioner is not an 14 office in the Public Service. 15 16 14. Section 17 amended 17 After section 17(3) insert: 18 19 (4) Before performing the functions of Commissioner for 20 the first time, the Commissioner must make a 21 declaration before the Governor in the form in 22 Schedule 4. 23 24 15. Section 19 amended 25 After section 19(3) insert: 26 27 (4) Subject to any determination under subsection (3), the 28 Commissioner is entitled to leave of absence and other page 6 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 16 1 conditions of service as applicable to public service 2 officers. 3 4 16. Section 20 amended 5 Delete section 20(4) and (5) and insert: 6 7 (4) If -- 8 (a) a person immediately before appointment as 9 Commissioner occupied an office, post or 10 position in a department or organisation; and 11 (b) the person's term of office as Commissioner 12 expires by effluxion of time and the person is 13 not reappointed to the office; and 14 (c) but for the appointment as Commissioner, the 15 person would still be entitled to hold the office, 16 post or position referred to in paragraph (a), 17 the person is entitled to be appointed to an office, post 18 or position in a department or organisation of at least 19 the equivalent level of classification as the office, post 20 or position that the person occupied immediately 21 before appointment as Commissioner. 22 23 17. Part 3A Division 2 heading inserted 24 After section 20 insert: 25 26 Division 2 -- Functions of Commissioner 27 page 7 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 18 1 18. Section 21A inserted 2 Before section 21 insert: 3 4 21A. General functions of Commissioner 5 The functions of the Commissioner include the 6 following -- 7 (a) to promote the overall efficiency and 8 effectiveness of the Public Sector, having 9 regard to the principles set out in section 7; 10 (b) to advise Ministers, chief executive officers and 11 chief employees of changes, improvements and 12 management practices which, in the opinion of 13 the Commissioner, should be implemented in 14 order to improve the efficiency and 15 effectiveness of the whole or any part of the 16 Public Sector; 17 (c) to plan for the future management and 18 operation of the Public Sector; 19 (d) to perform other functions that are conferred on 20 the Commissioner under this Act or any other 21 Act. 22 23 19. Section 21 amended 24 (1) In section 21(1): 25 (a) in paragraphs (a) and (b) delete "establish" and insert: 26 27 issue Commissioner's instructions establishing 28 29 (b) in paragraph (f) delete "section 97(1)(a);" and insert: 30 31 section 97(1)(a). 32 page 8 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 19 1 (c) delete paragraphs (g) to (j). 2 (2) Delete section 21(4). 3 (3) After section 21(8) insert: 4 5 (9A) The Commissioner may by order published in the 6 Gazette exempt the whole or any part of any public 7 sector body from compliance with the whole or any 8 part of a public sector standard or code of ethics. 9 (9B) The Commissioner may by order published in the 10 Gazette repeal or amend an order made under 11 subsection (9A). 12 13 (4) Delete section 21(11) and insert: 14 15 (11) To the extent that -- 16 (a) a public sector standard is inconsistent with a 17 code of ethics, a code of conduct or another 18 Commissioner's instruction, the public sector 19 standard prevails; or 20 (b) a code of ethics is inconsistent with a code of 21 conduct or another Commissioner's instruction 22 (other than a Commissioner's instruction 23 establishing a public sector standard), the code 24 of ethics prevails. 25 26 Note: The heading to amended section 21 is to read: 27 Public sector standards, codes of ethics and codes of conduct page 9 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 20 1 20. Sections 22A to 22G inserted 2 After section 21 insert: 3 4 22A. Commissioner's instructions 5 (1) The Commissioner may issue written instructions 6 concerning the following -- 7 (a) the management and administration of public 8 sector bodies; 9 (b) the management and administration of the 10 Senior Executive Service; 11 (c) human resource management, including the 12 disposition of employees and offices under 13 section 22B; 14 (d) official conduct; 15 (e) the taking of improvement action; 16 (f) dealing with suspected breaches of discipline, 17 disciplinary matters and the taking of 18 disciplinary action, under Part 5 Division 3; 19 (g) any other matter in respect of which 20 Commissioner's instructions are required or 21 permitted under this Act; 22 (h) any other matter in connection with the 23 functions of the Commissioner in respect of 24 which the Commissioner considers it is 25 necessary or desirable to issue instructions. 26 (2) The Commissioner's instructions must not be 27 inconsistent with this Act and must have regard to the 28 principles set out in sections 7, 8 and 9. 29 (3) The Commissioner's instructions may apply -- 30 (a) generally; or page 10 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 20 1 (b) to a public sector body or class of public sector 2 body specified in the instructions; or 3 (c) to an office or class of office specified in the 4 instructions; or 5 (d) to an employee or class of employees specified 6 in the instructions. 7 (4) Except as provided in section 21, the Commissioner's 8 instructions need not be published in the Gazette but 9 must be made publicly available in such manner as the 10 Commissioner thinks appropriate. 11 (5) The Commissioner may amend or revoke the 12 Commissioner's instructions. 13 (6A) The Commissioner must, before issuing, amending or 14 revoking a Commissioner's instruction, consult such 15 persons as the Commissioner considers it desirable and 16 practicable to consult. 17 (6) The Commissioner's instructions are not subsidiary 18 legislation for the purposes of the Interpretation 19 Act 1984. 20 22B. Disposition of employees and offices 21 When departments or organisations are established in 22 place of existing departments or organisations or by the 23 amalgamation or division of existing departments or 24 organisations, the Commissioner may effect the 25 disposition of offices, posts and positions and 26 employees and such other consequential changes as 27 appear necessary to give effect to the change in 28 departments or organisations. page 11 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 20 1 22C. Reports to Ministers 2 The Commissioner may report from time to time to the 3 Minister responsible for a public sector body on the 4 compliance or non-compliance by the public sector 5 body and employees in the public sector body with -- 6 (a) the principles set out in sections 8(1)(a), (b) and 7 (c) and 9; and 8 (b) public sector standards, codes of ethics and 9 codes of conduct. 10 22D. Annual report 11 (1) The Commissioner must in each year prepare a report 12 on the following -- 13 (a) the state of administration and management of 14 the Public Sector; 15 (b) the compliance or non-compliance by public 16 sector bodies and employees, either generally 17 or in particular, with the principles set out in 18 sections 8(1)(a), (b) and (c) and 9 and with 19 public sector standards, codes of ethics and 20 codes of conduct; 21 (c) any other matters arising out of the 22 performance of the Commissioner's functions 23 that are, in the opinion of the Commissioner, of 24 such significance as to require reporting in that 25 manner. 26 (2) A report required under subsection (1) may be prepared 27 and dealt with in conjunction with any report required 28 under the Financial Management Act 2006 by the 29 Commissioner in his or her capacity as the accountable 30 authority of the department principally assisting in the 31 administration of this Act. page 12 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 20 1 22E. Other reports 2 The Commissioner may, in addition to the annual 3 report required under section 22D(1), at any time 4 prepare a report on a matter referred to in 5 section 22D(1). 6 22F. Reports under section 22D or 22E must be laid 7 before Parliament 8 (1) Within 14 days after signing a report prepared under 9 section 22D or 22E, the Commissioner is to transmit a 10 copy of the report to each House of Parliament. 11 (2) If -- 12 (a) when the Commissioner is ready to transmit a 13 report under subsection (1), a House of 14 Parliament is not sitting; and 15 (b) the Commissioner is of the opinion that that 16 House will not sit during the remainder of the 17 period referred to in subsection (1), 18 the Commissioner must transmit a copy of the report to 19 the Clerk of that House. 20 (3) Subsections (1) and (2) do not apply in relation to a 21 report prepared under section 22D if the report is 22 prepared and dealt with as provided for in 23 section 22D(2). 24 (4) A copy of a report transmitted to the Clerk of a House 25 of Parliament under subsection (2) is taken to have 26 been laid before the House. 27 (5) The laying of a copy of a report before a House that is 28 taken to have occurred under subsection (4) is to be 29 reported to the House by the Clerk, and recorded in the 30 Votes and Proceedings or Minutes of Proceedings, on 31 the first sitting day of the House after the receipt of the 32 copy. page 13 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 21 1 22G. Powers 2 The Commissioner has all the powers that are needed 3 for the performance of the Commissioner's functions. 4 5 21. Section 22 amended 6 (1) In section 22 delete "The" and insert: 7 8 (1) The 9 10 (2) At the end of section 22 insert: 11 12 (2) In particular, except as provided in this Act, the 13 Commissioner is not subject to direction by the 14 Minister or any other person in the performance of the 15 Commissioner's functions. 16 (3) Section 32 does not apply to or in relation to the Public 17 Sector Commissioner. 18 19 22. Section 23 replaced 20 Delete section 23 and insert: 21 22 23. Delegation by Commissioner 23 (1) The Commissioner may delegate to a person any power 24 or duty of the Commissioner under another provision 25 of this Act or any other Act. 26 (2) A delegation under this section must be in writing and 27 signed by the Commissioner. 28 (3) A person to whom a power or duty is delegated under 29 this section cannot delegate that power or duty. page 14 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 23 1 (4) A person exercising or performing a power or duty that 2 has been delegated to the person under this section is 3 taken to do so in accordance with the terms of the 4 delegation unless the contrary is shown. 5 (5) Nothing in this section limits the ability of the 6 Commissioner to perform a function through an officer 7 or agent. 8 9 23. Part 3A Division 3 inserted 10 After section 23 insert: 11 12 Division 3 -- Reviews, special inquiries 13 and investigations 14 Subdivision 1 -- Reviews 15 24A. Terms used 16 In this Division -- 17 authorised person has the meaning given in 18 section 24C; 19 review means a review conducted under section 24B. 20 24B. Reviews 21 (1) The Commissioner may on his or her own initiative 22 conduct a review in respect of part or all of the 23 functions, management or operations of one or more 24 public sector bodies. 25 (2) The Minister may by written notice direct the 26 Commissioner to conduct a review in respect of part or 27 all of the functions, management or operations of one 28 or more public sector bodies. page 15 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 23 1 (3) The text of a direction given under subsection (2) is to 2 be included in the annual report prepared by the 3 Commissioner under section 22D. 4 (4) The Commissioner must comply with a direction given 5 under subsection (2) unless, in the Commissioner's 6 opinion, there are exceptional circumstances for not 7 complying. 8 (5) If the Commissioner refuses to comply with a direction 9 given under subsection (2) the Commissioner must 10 prepare written reasons for the failure to comply and 11 cause the text of those reasons to be included in the 12 annual report prepared by the Commissioner under 13 section 22D. 14 24C. Commissioner may authorise people to perform 15 functions 16 The Commissioner may, by written notice, authorise a 17 person (an authorised person) to perform functions 18 under this Subdivision. 19 24D. Powers of Commissioner and authorised person 20 (1) The Commissioner or an authorised person may for the 21 purposes of a review -- 22 (a) enter the premises of a public sector body; 23 (b) by written notice direct an employee to produce 24 to him or her any document that is in the 25 possession or under the control of the 26 employee; 27 (c) inspect any document produced to him or her 28 and retain it for such reasonable period as he or 29 she thinks fit, and make copies of it or any of 30 its contents; 31 (d) direct an employee to answer questions. page 16 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 23 1 (2) An employee who, without reasonable excuse, fails to 2 comply with a direction under subsection (1)(b) within 3 14 days of receiving it commits an offence. 4 Penalty: a fine of $1 000. 5 (3) An employee who, without reasonable excuse, fails to 6 comply with a direction under subsection (1)(d) 7 commits an offence. 8 Penalty: a fine of $1 000. 9 24E. Consultation before exercise of powers 10 The powers conferred by section 24D are exercisable 11 in relation to a public sector body only after 12 consultation with -- 13 (a) the employing authority of the public sector 14 body; and 15 (b) the Minister -- 16 (i) who is responsible for the public sector 17 body; or 18 (ii) to whom the administration of the Act 19 under which the public sector body is 20 established or continued is committed. 21 24F. Privileges and other protection 22 (1) Despite section 24D, an employee has the same 23 privileges in relation to a requirement imposed under 24 that section as a witness would have in proceedings in 25 the Supreme Court. 26 (2) Section 24D does not derogate from -- 27 (a) an enactment that imposes a prohibition or 28 restriction on -- 29 (i) the availability of any information; or 30 (ii) the production or examination of any 31 document; 32 or page 17 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 23 1 (b) a privilege or immunity existing by custom or 2 convention and relating to the production of 3 documents or other information of previous 4 Governments of the State. 5 24G. Report on review 6 If a review was conducted on the direction of the 7 Minister under section 24B(2), the Commissioner must 8 provide the Minister with a written report on the 9 conduct and findings of the review. 10 Subdivision 2 -- Special inquiries 11 24H. Special inquiries 12 (1) The Commissioner may on his or her own initiative -- 13 (a) arrange for the holding of a special inquiry into 14 a matter related to the Public Sector; and 15 (b) appoint a person or persons to carry out the 16 special inquiry. 17 (2) The Minister may direct the Commissioner to arrange 18 for the holding of a special inquiry into a matter related 19 to the Public Sector. 20 (3) A direction given under subsection (2) must specify the 21 matter to be the subject of the special inquiry. 22 (4) The text of a direction given under subsection (2) is to 23 be included in the annual report prepared by the 24 Commissioner under section 22D. 25 (5) The Commissioner must -- 26 (a) comply with a direction given under 27 subsection (2); and 28 (b) appoint a person or persons to carry out the 29 special inquiry, page 18 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 23 1 unless, in the Commissioner's opinion, there are 2 exceptional circumstances for not complying. 3 (6) If the Commissioner refuses to comply with a direction 4 given under subsection (2) the Commissioner must 5 prepare written reasons for the failure to comply and 6 cause the text of those reasons to be included in the 7 annual report prepared by the Commissioner under 8 section 22D. 9 24I. Powers of person conducting special inquiry 10 (1) A special inquirer or a person authorised in writing by 11 a special inquirer may for the purposes of a special 12 inquiry -- 13 (a) enter the premises of a public sector body; and 14 (b) by written notice require a person to produce to 15 him or her any document that is in the 16 possession or under the control of the person; 17 and 18 (c) inspect any document produced to him or her 19 and retain it for such reasonable period as he or 20 she thinks fit, and make copies of it or any of 21 its contents. 22 (2) Schedule 3 applies to and in relation to a special 23 inquirer. 24 24J. Procedure and evidence at special inquiries 25 (1) An individual, public sector body or other body may be 26 represented at a special inquiry by a legal practitioner 27 or other agent. 28 (2) A special inquirer must act independently in relation to 29 the performance of his or her functions. page 19 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 23 1 (3) A special inquirer -- 2 (a) is not bound by the rules of evidence and may 3 be informed as the special inquirer thinks fit; 4 and 5 (b) must act according to equity, good conscience 6 and the substantial merits of the case and 7 without regard to technicalities and legal forms. 8 (4) To the extent that the practice or procedure of a special 9 inquirer is not prescribed by or under this Act, it is to 10 be as the special inquirer determines. 11 (5) A special inquirer does not have power to make an 12 award of costs. 13 24K. Reports on special inquiries 14 (1) A special inquirer must -- 15 (a) within such period as the Commissioner 16 requires, prepare a report on the conduct and 17 findings, and any recommendations, of the 18 special inquiry; and 19 (b) immediately after preparing the report, provide 20 the Commissioner with a copy of the report. 21 (2) If a special inquiry was held on the direction of the 22 Minister under section 24H(2), the Commissioner must 23 provide the Minister with a copy of the report on the 24 special inquiry provided to the Commissioner under 25 subsection (1)(b). page 20 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 24 1 Subdivision 3 -- Investigations 2 3 24. Section 24 amended 4 Delete section 24(2) and insert: 5 6 (2) A person authorised under subsection (1) must -- 7 (a) within such period as the Commissioner 8 requires, prepare a report on the conduct and 9 findings of, and any recommendations resulting 10 from, an investigation by the person; and 11 (b) immediately after preparing the report, provide 12 the Commissioner with a copy of the report. 13 14 25. Sections 25, 26 and 27 deleted 15 Delete sections 25, 26 and 27. 16 26. Part 3A Division 4 heading inserted 17 Before section 28 insert: 18 19 Division 4 -- Acting appointments 20 21 27. Section 28 amended 22 (1) Delete section 28(1) and insert: 23 24 (1) The Governor may, on the recommendation of the 25 Minister, appoint a person to act in the office of 26 Commissioner during a period when -- 27 (a) the Commissioner is on leave of absence, or 28 otherwise unable to perform the functions of 29 Commissioner, or is absent from the State; or page 21 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 27 1 (b) the Commissioner is suspended from that office 2 under section 18(3) or (4); or 3 (c) that office is vacant. 4 5 (2) In section 28(3) delete "Commissioner for Public Sector 6 Standards." and insert: 7 8 Public Sector Commissioner. 9 10 (3) Delete section 28(6) and insert: 11 12 (6) If -- 13 (a) a person immediately before appointment as 14 Acting Commissioner under this section 15 occupied an office in a department or 16 organisation; and 17 (b) the person's period of office as Acting 18 Commissioner ends and the person is not 19 reappointed to the office; and 20 (c) but for the appointment as Acting 21 Commissioner, the person would still be 22 entitled to hold the office referred to in 23 paragraph (a), 24 the person is entitled to be appointed to an office in a 25 department or organisation of at least the equivalent 26 level of classification as the office that the person 27 occupied immediately before appointment as Acting 28 Commissioner. 29 (7) Sections 17(4), 18, 19 and 20(1), (3) and (6) apply to 30 an Acting Commissioner appointed under this section. 31 32 Note: The heading to amended section 28 is to read: 33 Acting Commissioner appointed by Governor page 22 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 28 1 28. Sections 29A inserted 2 After section 28 insert: 3 4 29A. Acting Commissioner appointed by Commissioner 5 (1) If the Governor has not appointed a person under 6 section 28, the Commissioner may appoint a person to 7 act in the office of Commissioner in the circumstances 8 referred to in section 28(1)(a). 9 (2) A person must not be appointed under subsection (1) 10 for more than 13 weeks in a 12 month period. 11 (3) An appointment under this section -- 12 (a) may be terminated at any time by the 13 Commissioner; and 14 (b) may be expressed to have effect only in the 15 circumstances specified in the instrument of 16 appointment. 17 (4) If the Commissioner appoints a person under 18 subsection (1) and the Governor later appoints a person 19 under section 28 whose term of appointment is to begin 20 before the term of the Commissioner's appointee has 21 ended, the appointment of the Commissioner's 22 appointee ceases to have effect on and from the day on 23 which the term of the Governor's appointee begins. 24 (5) Sections 18(1) and (2), 19 and 20(1), (3) and (6) apply 25 to an Acting Commissioner appointed under this 26 section. 27 29B. Matters relevant to all acting appointments 28 While an Acting Commissioner is acting in the office 29 of Commissioner under section 28 or 29A -- 30 (a) the Acting Commissioner is to perform all the 31 functions of the Commissioner and any act or page 23 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 29 1 thing done by the Acting Commissioner in that 2 performance has the like effect as if it were 3 done by the Commissioner; and 4 (b) any act or thing that is required under a written 5 law to be done to, by reference to or in relation 6 to the Commissioner is taken to be effectually 7 done if done to, by reference to or in relation to 8 the Acting Commissioner; and 9 (c) the Acting Commissioner has the same 10 immunities and independence as the 11 Commissioner. 12 13 29. Part 2 Division 4 heading replaced 14 Delete the heading to Part 2 Division 4 and insert: 15 16 Part 3B -- Chief executive officers and 17 chief employees 18 19 30. Section 29 amended 20 In section 29(1): 21 (a) delete paragraph (h)(ii) and insert: 22 23 (ii) the relevant Commissioner's 24 instructions, if any; 25 and 26 page 24 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 31 1 (b) after paragraph (i) insert: 2 3 (ja) where appropriate, to take improvement action 4 in respect of employees employed in that 5 department or organisation; and 6 7 31. Section 30 amended 8 In section 30(b) after "comply with" insert: 9 10 the Commissioner's instructions, 11 12 32. Section 31 amended 13 (1) In section 31(1) and (2) delete "guidelines, if any, issued by the 14 Commissioner," and insert: 15 16 the relevant Commissioner's instructions, if any, 17 18 (2) In section 31(4) delete "relevant annual report referred to in 19 section 21(1)(i)" and insert: 20 21 annual report prepared by the Commissioner under section 22D 22 23 33. Section 32 amended 24 In section 32(1)(b) after "any" insert: 25 26 Commissioner's instruction, 27 page 25 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 34 1 34. Section 33 replaced 2 Delete section 33 and insert: 3 4 33. Delegation by chief executive officer or chief 5 employee 6 (1) Subject to any other written law, a chief executive 7 officer or chief employee may delegate any power or 8 duty of the chief executive officer or chief employee 9 under another provision of this Act to -- 10 (a) a public service officer; or 11 (b) any other employee; or 12 (c) a person who is appointed, employed or holds 13 office in an entity that is -- 14 (i) listed in Schedule 1 column 2; and 15 (ii) prescribed for the purposes of this 16 section; 17 or 18 (d) with the approval of the Commissioner, any 19 other person. 20 (2A) The Commissioner must not approve a delegation 21 under subsection (1)(d) unless the Commissioner is 22 satisfied that the delegation is necessary or convenient 23 having regard to -- 24 (a) the functions of the department or organisation 25 in relation to which the chief executive officer 26 or chief employee has the power or duty; or 27 (b) the specialised knowledge, expertise or 28 resources of the person to whom the power or 29 duty is delegated. 30 (2) The delegation must be in writing and signed by the 31 chief executive officer or chief employee. page 26 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 35 1 (3) A person to whom a power or duty is delegated under 2 this section cannot delegate that power or duty. 3 (4) A person exercising or performing a power or duty that 4 has been delegated to the person under this section is to 5 be taken to do so in accordance with the terms of the 6 delegation unless the contrary is shown. 7 (5A) If a power or duty is delegated under subsection (1), 8 the power or duty is, when exercised or performed by 9 the delegate, to be taken to be exercised or performed 10 by the person who delegated it. 11 (5) Nothing in this section limits the ability of the chief 12 executive officer or chief employee to perform a 13 function through an officer or agent. 14 15 35. Section 35 amended 16 (1) In section 35(1) delete "Minister --" and insert: 17 18 Commissioner -- 19 20 (2) After section 35(3) insert: 21 22 (4) The Minister may direct the Commissioner to make a 23 recommendation to the Governor under subsection (1) 24 in respect of a department or departments specified in 25 the direction, and the Commissioner must comply with 26 the direction. 27 (5) The text of a direction given under subsection (4) is to 28 be included in the annual report prepared by the 29 Commissioner under section 22D. 30 page 27 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 36 1 36. Section 36 amended 2 (1) In section 36(1)(c) delete "approved procedures" and insert: 3 4 the Commissioner's instructions 5 6 (2) Delete section 36(4). 7 37. Section 38 amended 8 (1) In section 38: 9 (a) delete "For the" and insert: 10 11 (1) For the 12 13 (b) delete "Governor may, on the recommendation of the 14 Minister," and insert: 15 16 Commissioner may 17 18 (2) At the end of section 38 insert: 19 20 (2) The Commissioner may amend or revoke a 21 determination made under subsection (1). 22 23 38. Section 40 amended 24 In section 40(1) delete "in public service notices." and insert: 25 26 as a public sector notice in accordance with the 27 Commissioner's instructions. 28 29 39. Section 42 amended 30 Delete section 42(2). page 28 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 40 1 40. Section 43 amended 2 In section 43(3) and (4) delete "Minister may from time to time 3 by notice published in public service notices --" and insert: 4 5 Commissioner may from time to time by notice 6 published as a public sector notice in accordance with 7 the Commissioner's instructions -- 8 9 41. Section 45 amended 10 (1) Delete section 45(3) and (4) and insert: 11 12 (3) If -- 13 (a) there is a vacancy or an impending vacancy in 14 the office of a chief executive officer; and 15 (b) it is not intended to fill the vacancy by 16 transferring a chief executive officer to that 17 office under section 50, or temporarily by 18 directing an employee to act in the office under 19 section 51, 20 the Commissioner must act under this section to enable 21 the filling of that vacancy or impending vacancy. 22 (4) The Commissioner must, for the purposes of 23 subsection (3), invite -- 24 (a) the Minister; and 25 (b) if the Minister is not the responsible authority 26 of the agency concerned, that responsible 27 authority; and 28 (c) if the responsible authority of the agency 29 concerned is not the Minister responsible for 30 that agency, that Minister, 31 to inform the Commissioner of any matters that they 32 wish the Commissioner to take into account in page 29 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 42 1 recommending a person for appointment to the office 2 referred to in subsection (3). 3 4 (2) Delete section 45(8) to (12) and insert: 5 6 (8) When the Commissioner decides on a person suitable 7 for appointment to the relevant office, the 8 Commissioner must recommend to the Governor that 9 that person be appointed to the relevant office. 10 11 (3) In section 45(13): 12 (a) delete "nominated or"; 13 (b) delete "or the Minister, as the case requires,". 14 42. Section 46 amended 15 Delete section 46(1) and insert: 16 17 (1) If the contract of employment of a chief executive 18 officer is about to expire and the chief executive officer 19 has notified the Commissioner that he or she wishes to 20 be reappointed to his or her office of chief executive 21 officer, the Commissioner may -- 22 (a) recommend to the Governor that -- 23 (i) the chief executive officer be 24 reappointed to the relevant office; or 25 (ii) if the chief executive officer has been 26 transferred to the performance of other 27 functions under section 50, the chief 28 executive officer be reappointed to 29 perform those functions at the same 30 level of classification; or 31 (b) notify the chief executive officer that he or she 32 will not be reappointed. 33 page 30 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 43 1 43. Section 47 amended 2 (1) Delete section 47(1) and (2) and insert: 3 4 (1) A chief executive officer must, on appointment under 5 section 45, and at any time when required to do so 6 under the Commissioner's instructions, enter in 7 accordance with the Commissioner's instructions into 8 an agreement with -- 9 (a) the Commissioner; and 10 (b) the responsible authority of the agency of the 11 chief executive officer, 12 concerning the performance criteria to be met by the 13 chief executive officer during the period to which the 14 agreement relates. 15 (2) A performance agreement does not take effect until the 16 Minister responsible for the agency concerned (if that 17 Minister is not the responsible authority of the agency) 18 has approved the performance agreement and a note of 19 that approval has been endorsed on the performance 20 agreement. 21 22 (2) In section 47(4) delete "approved procedures," and insert: 23 24 the Commissioner's instructions, 25 26 44. Section 48 deleted 27 Delete section 48. page 31 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 45 1 45. Section 49 amended 2 In section 49 delete "Minister made under section 48," and 3 insert: 4 5 Commissioner, 6 7 46. Section 50 amended 8 Delete section 50(2) and insert: 9 10 (2) Before making a recommendation referred to in 11 subsection (1) the Commissioner must consult -- 12 (a) the responsible authority of the agency in which 13 the office of the chief executive officer to 14 whom the proposed recommendation relates is 15 located; and 16 (b) the responsible authority of the agency of 17 destination; and 18 (c) if neither of the responsible authorities referred 19 to in paragraphs (a) or (b) is the Minister 20 responsible for the relevant agency, that 21 Minister; and 22 (d) the chief executive officer to whom the 23 proposed recommendation relates. 24 25 47. Section 51 amended 26 Delete section 51(3) and insert: 27 28 (3) The Commissioner must, before giving a direction 29 under subsection (1), consult -- 30 (a) the responsible authority of the agency 31 concerned; and page 32 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 48 1 (b) if that responsible authority is not the Minister 2 responsible for that agency, that Minister. 3 4 48. Section 53 amended 5 (1) In section 53(1) delete "approved procedures" and insert: 6 7 the Commissioner's instructions 8 9 (2) In section 53(3)(a) delete "approved procedures; and" and 10 insert: 11 12 the Commissioner's instructions; and 13 14 (3) In section 53(5) delete "approved procedures" and insert: 15 16 the Commissioner's instructions 17 18 49. Section 56 amended 19 In section 56(3) delete "Subject to sections 48 and 49, a 20 contract" and insert: 21 22 A contract 23 24 50. Section 63 amended 25 In section 63(1)(h) delete "office." and insert: 26 27 office (unless it is an appointment and the 28 Commissioner authorises the offices being held 29 concurrently by the executive officer). 30 page 33 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 51 1 51. Section 64 amended 2 (1) In section 64(1) delete "approved procedures" and insert: 3 4 the Commissioner's instructions 5 6 (2) In section 64(2)(a) and 64(3)(a) delete "approved procedures; 7 and" and insert: 8 9 the Commissioner's instructions; and 10 11 (3) In section 64(4) delete "in public service notices" and insert: 12 13 as a public sector notice in accordance with the 14 Commissioner's instructions 15 16 52. Section 67 amended 17 In section 67(f) delete "position." and insert: 18 19 position (unless it is an appointment and the 20 Commissioner authorises the offices, posts or 21 positions being held concurrently by that public 22 service officer). 23 24 53. Section 70 amended 25 In section 70(1) delete "administration of this Act." and insert: 26 27 administration of this Part. 28 page 34 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 54 1 54. Section 75 amended 2 (1) In section 75(1) delete "assisting the Minister in the 3 administration of this Act" and insert: 4 5 assisting in the administration of this Part 6 7 (2) In section 75(2): 8 (a) in paragraph (b) delete "office." and insert: 9 10 office; or 11 12 (b) after paragraph (b) insert: 13 14 (c) an employee in the department principally 15 assisting in the administration of this Part as if 16 the employee were seconded to occupy that 17 office. 18 19 (3) In section 75(3): 20 (a) delete "subsection (2)(b) --" and insert: 21 22 subsection (2)(b) or (c) -- 23 24 (b) delete "by such person or persons as are appointed by 25 the Minister." and insert: 26 27 in accordance with the Commissioner's instructions by 28 a person or persons appointed by the chief executive 29 officer of the department principally assisting in the 30 administration of this Part. 31 page 35 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 55 1 55. Section 79 amended 2 (1) In section 79(4) delete "an employee --" and insert: 3 4 an employee other than a chief executive officer -- 5 6 (2) After section 79(4) insert: 7 8 (5A) The Governor may, on the recommendation of the 9 Commissioner, terminate the employment in the Public 10 Sector of a chief executive officer whose performance 11 is, in the opinion of the Commissioner, substandard for 12 the purposes of this section. 13 (5B) The Commissioner must consult the responsible 14 authority of the agency of the chief executive officer 15 before making a recommendation under 16 subsection (5A). 17 18 (3) Delete section 79(6). 19 20 56. Section 93 amended 21 (1) After section 93(1) insert: 22 23 (2A) The Commissioner must consult with the Minister to 24 whom the administration of the Industrial Relations 25 Act 1979 is committed, before giving an approval 26 under subsection (1). 27 28 (2) Delete section 93(2). 29 (3) Delete section 93(4), (5) and (6). page 36 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 57 1 57. Section 99 deleted 2 Delete section 99. 3 58. Section 100 amended 4 In section 100(1) and (2) delete "approved procedures" and 5 insert: 6 7 the Commissioner's instructions 8 9 59. Section 105 amended 10 In section 105(2): 11 (a) in paragraph (a)(ii) delete "the Minister in the 12 administration of this Act" and insert: 13 14 in the administration of Part 4 15 16 (b) delete paragraph (b)(i) and "or" after it and insert: 17 18 (i) the Minister and other Ministers; or 19 20 60. Section 108A inserted 21 After section 107 insert: 22 23 108A. Delegation by Ministers 24 (1) The Minister may delegate to any person any power or 25 duty of the Minister under another provision of this 26 Act. 27 (2) A delegation under this section must be in writing 28 signed by the Minister. page 37 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 61 1 (3) A person to whom a power or duty is delegated in 2 accordance with this section cannot delegate that power 3 or duty. 4 (4) A person exercising or performing a power or duty that 5 has been delegated to the person in accordance with 6 this section is taken to do so in accordance with the 7 terms of the delegation unless the contrary is shown. 8 (5) Nothing in this section limits the ability of the Minister 9 to perform a function through an officer or agent. 10 11 61. Section 108 amended 12 (1) After section 108(1) insert: 13 14 (2A) The regulations may make provision for or with respect 15 to any matter for which the Commissioner's 16 instructions can provide. 17 (2B) A reference in this Act to a Commissioner's instruction 18 is taken to include a reference to a regulation referred 19 to in subsection (2A). 20 21 (2) In section 108(2) after "inconsistent with a" insert: 22 23 Commissioner's instruction, 24 25 62. Part 9 Division 1 heading inserted 26 After the heading to Part 9 insert: 27 28 Division 1 -- Public Service Act 1978 repeal and 29 transitional provisions 30 page 38 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 63 1 63. Part 9 Division 2 inserted 2 After section 112 insert: 3 4 Division 2 -- Public Sector Reform Act 2009 Part 2 5 amendments: transitional provisions 6 113. Transitional provisions 7 Schedule 7 sets out transitional provisions. 8 9 64. Schedule 4 replaced 10 Delete Schedule 4 and insert: 11 12 Schedule 4 -- Form of declaration 13 [s. 17(4)] 14 I, .................................................................................., 15 sincerely promise and declare that, according to the best of 16 my skill and ability, I will faithfully, impartially and truly 17 execute the office and perform the functions of Public 18 Sector Commissioner according to law. 19 20 ......................................... ......................... 21 (Signature of declarant) (Date) 22 23 65. Schedule 5 amended 24 (1) In Schedule 5 clause 2(1) delete "Any" and insert: 25 26 Subject to Schedule 7 clause 4(6), any 27 page 39 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 66 1 (2) Delete Schedule 5 clause 5(1)(a) and (b) and "or" after 2 paragraph (b) and insert: 3 4 (a) a Commissioner's instruction; or 5 6 (3) In Schedule 5 clause 5(2) delete "Minister in public service 7 notices." and insert: 8 9 Commissioner in a notice published as a public sector notice 10 in accordance with the Commissioner's instructions. 11 12 66. Schedule 7 inserted 13 After Schedule 6 insert: 14 15 Schedule 7 -- Public Sector Reform Act 2009 Part 2 16 amendments: transitional provisions 17 [s. 113] 18 1. Terms used 19 In this Schedule -- 20 amended Act means this Act as amended by the Public 21 Sector Reform Act 2009; 22 commencement day means the day on which the Public 23 Sector Reform Act 2009 section 13 comes into operation; 24 former Commissioner means the person holding the office 25 of Commissioner for Public Sector Standards under this Act 26 immediately before the commencement day. page 40 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 66 1 2. Incumbent CEO remains in office as Public Sector 2 Commissioner 3 (1) In this clause -- 4 former office means the office of chief executive officer of 5 the department principally assisting in the administration of 6 Part 3 immediately before the commencement day. 7 (2) Despite section 17, if a person held the former office 8 immediately before the commencement day (other than in 9 an acting capacity), that person is to hold office as 10 Commissioner subject to Part 3A Division 1 for a term of 11 5 years beginning on the commencement day as if appointed 12 under section 17, and is eligible to be reappointed to that 13 office. 14 3. Commissioner for Public Sector Standards 15 (1) The former Commissioner is entitled to be employed in the 16 Public Service at the same level of classification as the 17 former Commissioner held immediately before the 18 commencement day until the end of the period for which the 19 former Commissioner was last appointed under this Act to 20 hold office. 21 (2) The former Commissioner retains existing and accruing 22 entitlements in respect of leave of absence as if service in 23 the Public Service were a continuation of service in the 24 office of the Commissioner of Public Sector Standards. 25 (3) If a person is acting in the office of the Commissioner of 26 Public Sector Standards under section 28 immediately 27 before the commencement day, section 20 as in force before 28 the commencement day continues to apply to that person. 29 4. Approved procedures and other instruments 30 (1) Any procedure or classification system approved under 31 section 3(2) as in force before the commencement day and 32 of effect immediately before that day is to be taken to be, 33 with any necessary modifications, a Commissioner's 34 instruction. page 41 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 66 1 (2) Any public sector standard or code of ethics established by 2 the former Commissioner under this Act and of effect 3 immediately before the commencement day is to be taken to 4 be, with any necessary modifications, a public sector 5 standard or code of ethics for the purposes of the amended 6 Act. 7 (3) Any order published under section 25(1)(a) as in force 8 before the commencement day and of effect immediately 9 before that day is to be taken to be, with any necessary 10 modifications, an order published under section 21(9A) of 11 the amended Act. 12 (4) Any guidelines issued by the former Commissioner for the 13 purposes of section 31 as in force before the commencement 14 day and of effect immediately before that day are to be taken 15 to be, with any necessary modifications, Commissioner's 16 instructions. 17 (5) Any direction given under section 42(2) as in force before 18 the commencement day and of effect immediately before 19 that day is to be taken to be, with any necessary 20 modifications, a Commissioner's instruction. 21 (6) Any public service notice of effect immediately before the 22 commencement day is to be taken to be a public sector 23 notice. 24 (7) Any approval given by the Minister under section 93(1) as 25 in force before the commencement day and of effect 26 immediately before that day continues to be of effect as if it 27 were an approval given by the Commissioner. 28 5. Reviews, special inquiries and investigations 29 (1) If immediately before the commencement day -- 30 (a) a review was being carried out under an 31 arrangement by the Minister under section 10 as in 32 force immediately before the commencement day; 33 and 34 (b) any employee had been authorised by the Minister 35 to perform functions for the purpose of the review, page 42 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 66 1 the review is to be continued as if it were a review the 2 Minister had directed the Commissioner to conduct under 3 section 24B of the amended Act and the employee had been 4 authorised for the purpose of that review by the 5 Commissioner. 6 (2) If immediately before the commencement day, a special 7 inquirer was carrying out a special inquiry under this Act, 8 the special inquirer is to continue to carry out the inquiry as 9 if the special inquirer were appointed under section 24H of 10 the amended Act to carry out the special inquiry. 11 (3) If immediately before the commencement day -- 12 (a) an investigation was being carried out under 13 section 24 as in force immediately before the 14 commencement day; 15 (b) any person had been authorised to perform 16 functions for the purpose of the investigation, 17 the investigation is to be continued as if it were an 18 investigation the Commissioner had commenced under 19 section 24 of the amended Act and the person had been 20 authorised for the purpose of that investigation by the 21 Commissioner. 22 6. Special offices 23 A special office created under section 36 as in force before 24 the commencement day for the purposes of section 75(1) as 25 in force before that day and in existence immediately before 26 that day continues in existence after that day as if it were 27 created by the chief executive officer of the department 28 assisting in the administration of Part 4. 29 7. Provisions affecting employment of chief executive 30 officers 31 (1) If -- 32 (a) before the commencement day the Minister 33 requested the former Commissioner to act under 34 section 45 as in force before the commencement page 43 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 66 1 day to fill a vacancy or impending vacancy in the 2 office of a chief executive officer; and 3 (b) the vacancy or impending vacancy is not filled 4 before the commencement day, 5 any actions taken by the former Commissioner under that 6 section are to be taken to have been taken by the 7 Commissioner, and the Commissioner may continue to act 8 under section 45 of the amended Act to fill the vacancy. 9 (2) If -- 10 (a) before the commencement day the Minister acted 11 on a matter under section 48 for the purposes of 12 section 46(1) or 49 (as those sections were in force 13 immediately before the commencement day); and 14 (b) on the commencement day further action remains to 15 be taken under section 46 or 49 in relation to that 16 matter, 17 the Commissioner may continue to act under section 46 or 18 49 of the amended Act as the case requires. 19 (3) Any performance agreement of effect immediately before 20 the commencement day continues to be of effect under 21 section 47 of the amended Act. 22 (4) If -- 23 (a) before the commencement day the Minister took 24 action under section 50(2) for the purpose of 25 making a recommendation under section 50(1) (as 26 those provisions were in force before the 27 commencement day); and 28 (b) the recommendation has not been made before the 29 commencement day, 30 the action referred to in paragraph (a) is to be taken to have 31 been taken by the Commissioner, and the Commissioner 32 may continue to act under section 50 of the amended Act in 33 relation to the recommendation. page 44 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 66 1 (5) If -- 2 (a) before the commencement day the Minister took 3 action under section 51(3) for the purpose of giving 4 a direction under section 51(1) (as those provisions 5 were in force before the commencement day); and 6 (b) the Minister has not given the direction before the 7 commencement day, 8 the Commissioner may give the direction under 9 section 51(1) of the amended Act as if the action referred to 10 in paragraph (a) had been taken by the Commissioner. 11 (6) A direction given under section 51(1) as in force before the 12 commencement day and of effect before the commencement 13 day is to be taken to have been given under section 51 of the 14 amended Act by the Commissioner. 15 (7) On the commencement day the Commissioner is substituted 16 for the Minister as a party to the contract of employment of 17 each chief executive officer. 18 8. Continuing effect of things done under section 97 19 A thing done or omitted to be done by the former 20 Commissioner under section 97 as in force before the 21 commencement day has the same effect after that day as if it 22 had been done or omitted under section 97 of the amended 23 Act. 24 9. Section 107 directions 25 A direction given under section 107(1) as in force before the 26 commencement day and of effect on that day is to be taken 27 to be a direction of the Commissioner. 28 10A. General savings -- Commissioner 29 (1) A thing done or omitted to be done by, to or in relation to 30 the former Commissioner before the commencement day, 31 whether under this Act or any other written law, has the 32 same effect after the commencement day, to the extent that 33 it has any force or significance after that day, as if it had page 45 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 66 1 been done or omitted by, to or in relation to the 2 Commissioner. 3 (2) Subclause (1) does not apply if a contrary intention appears 4 or the context otherwise requires. 5 10. Power to amend subsidiary legislation 6 (1) The Governor, on the recommendation of the Minister, may 7 make regulations amending subsidiary legislation made 8 under any Act. 9 (2) The Minister may make a recommendation under 10 subclause (1) only if the Minister considers that each 11 amendment proposed to be made by the regulations is 12 necessary or desirable as a consequence of the enactment of 13 the Public Sector Reform Act 2009 Part 2. 14 (3) Nothing in this clause prevents subsidiary legislation from 15 being amended in accordance with the Act under which it 16 was made. 17 11. Transitional regulations 18 (1) If there is no sufficient provision in this Schedule for 19 dealing with a transitional matter, regulations may prescribe 20 all matters that are required or necessary or convenient to be 21 prescribed for dealing with the matter. 22 (2) In subclause (1) -- 23 transitional matter means a matter that needs to be dealt 24 with for the purpose of effecting the transition from an Act 25 (including this Act) as enacted immediately before the 26 commencement day to the Act as amended by the Public 27 Sector Reform Act 2009 Part 2. 28 (3) Regulations made under subclause (1) may provide that 29 specified provisions of this Act as in force after the 30 commencement of the Public Sector Reform Act 2009, or of 31 subsidiary legislation made under this Act, or of an Act 32 amended by the Public Sector Reform Act 2009 -- 33 (a) do not apply; or page 46 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 67 1 (b) apply with specified modifications, 2 to or in relation to any matter. 3 (4) If regulations under subclause (1) provide that a specified 4 state of affairs is to be taken to have existed, or not to have 5 existed, on and from a day that is earlier than the day on 6 which the regulations are published in the Gazette but not 7 earlier than the commencement day, the regulations have 8 effect according to their terms. 9 (5) In subclauses (3) and (4) -- 10 specified means specified or described in the regulations. 11 (6) If regulations contain a provision referred to in 12 subclause (4), the provision does not operate so as to -- 13 (a) affect in a manner prejudicial to any person (other 14 than the State or an authority of the State), the rights 15 of that person existing before the day of publication 16 of those regulations; or 17 (b) impose liabilities on any person (other than the 18 State or an authority of the State) in respect of 19 anything done or omitted to be done before the day 20 of publication of those regulations. 21 12. Interpretation Act 1984 not affected 22 The provisions of this Schedule are additional to and do not 23 prejudice or affect the application of the Interpretation 24 Act 1984 Part V. 25 26 67. Various references to "Minister" amended 27 In the provisions listed in the Table delete "Minister" (each 28 occurrence) and insert: 29 30 Commissioner 31 page 47 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 68 1 Table s. 41(a)(i) s. 43(8) s. 44(3) s. 45(1) s. 46(2) s. 50(1) s. 51(1) and (2) s. 59(2) s. 63(1)(g) s. 77(a)(i) s. 89(1) and (2) s. 93(1) s. 94(3) s. 107(1)(a) 2 3 68. Various references to "of the Crown" deleted 4 In the provisions listed in the Table delete "of the Crown" (each 5 occurrence). 6 Table s. 3(1) def. of political office s. 3(4) holder par. (g), def. of responsible authority par. (b) s. 5(2)(a)(i) s. 8(2) s. 41(b) s. 58(7) def. of statutory office s. 74(1) s. 77(b) s. 79(4) and (6) s. 105(2)(b)(ii) page 48 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 69 1 69. Various cross-references amended 2 Amend the provisions listed in the Table as set out in the Table. 3 Table Provision Delete Insert s. 24(1) sections 12 and 13 sections 24I and 24J s. 31(3) section 25(1) section 21(9A) s. 87(1) sections 12 and 13 sections 24I and 24J Schedule 3 [s. 12(2), [s. 24I(2), 4 70. Other provisions amended 5 Amend the provisions listed in the Table as set out in the Table. 6 Table Provision Delete Insert s. 3(1) def. of department a department agency par. (a) s. 3(1) def. of SES a SES agency par. (b) s. 3(1) def. of breach means breach means a breach of discipline s. 3(1) def. of chief chief employee a chief employee employee par. (a) and (b) s. 3(1) def. of chief organisation; organisation; or employee par. (a) page 49 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 70 Provision Delete Insert s. 3(1) def. of chief person a person employee par. (c) s. 3(1) def. of chief person a person executive officer par. (a) and (b) s. 3(1) def. of means system means a system classification system s. 3(1) def. of code means code means a code of conduct s. 3(1) def. of or compensation after par. (a) s. 3(1) def. of means department means a department department s. 3(1) def. of includes tape, includes a tape, document s. 3(1) def. of means person means a person employee s. 3(1) def. of means chief means a chief executive officer s. 3(1) def. of means Minister of means the Minister Minister the Crown s. 3(1) def. of means person means a person ministerial officer page 50 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 70 Provision Delete Insert s. 3(1) def. of means entity means an entity non-SES organisation s. 3(1) def. of means non-SES means a non-SES organisation s. 3(1) def. of means agreement means an agreement performance agreement s. 3(1) def. of means person means a person permanent officer s. 3(1) def. of Minister of the a Minister political office Crown holder par. (a) s. 3(1) def. of Parliamentary the Parliamentary political office holder par. (b) s. 3(1) def. of Parliamentary a Parliamentary political office holder par. (c) s. 3(1) def. of Government the Government political office holder par. (d) s. 3(1) def. of Leader the Leader political office holder par. (e) and (f) page 51 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 70 Provision Delete Insert s. 3(1) def. of person a person political office holder par. (g) s. 3(1) def. of or political office holder after each of par. (a), (b), (c), (d) and (e) s. 3(1) def. of Public and Sector after par. (a) s. 3(1) def. of public agency, an agency, sector body s. 3(1) def. of Public means Public means the Public Service s. 3(1) def. of public means executive means an executive service officer s. 3(1) def. of means Public means the Public repealed Act s. 3(1) def. of means person means a person respondent s. 3(1) def. of board, a board, responsible authority par. (a) s. 3(1) def. of Minister the Minister responsible authority par. (b) page 52 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 70 Provision Delete Insert s. 3(1) def. of means responsible means a responsible responsible authority s. 3(1) def. of senior means member means a member executive officer s. 3(1) def. of Senior means Senior means the Senior Executive Service s. 3(1) def. of SES means entity means an entity organisation s. 3(1) def. of special means special means a special disciplinary inquiry s. 3(1) def. of term means person means a person officer s. 3(5) Crown State (each occurrence) s. 5(1) def. of or employing authority after each of par. (b) and (c)(i) s. 8(1) after each of and par. (a), (b) and (c) s. 9 after each of and par. (a)(i) and par. (a) s. 21(1) after each of and par. (a) to (e) page 53 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 1 Public Sector Management Act 1994 amended s. 70 Provision Delete Insert s. 29(1) after each of and par. (a) to (g) and (i) to (m) s. 30 after each of and par. (a) and (b) s. 32 after par. (a) and s. 35(1) after each of and par. (a) and (b) s. 36(1) after par. (a) and s. 45(1) Crown State s. 45(13) after each and of par. (a), (b) and (c) s. 46(2)(a) Crown State s. 51(2) is valid is as valid s. 53(1) Crown State s. 56(2) after par. (a) and s. 56(6) Crown State s. 57(1) after par.(a) and s. 57(2) def. of means Salaries means the Salaries Tribunal page 54 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Public Sector Management Act 1994 amended Division 1 s. 70 Provision Delete Insert s. 58(7) def. of right means entitlement means the of return entitlement s. 58(7) def. of means office, means an office, statutory office s. 59(5) Crown. State. s. 63(1) after each of or par. (a) to (f) s. 64(1) Crown State s. 67 after each of or par. (a) to (d) s. 70(7) Crown State s. 86(13) def. of means person means a person directed person s. 86(13) def. of means disciplinary means a disciplinary disciplinary inquiry s. 91 Crown. State. s. 93(3) def. of means department means a department affected department or organisation s. 94(2) after each of and par. (a) and (b) s. 94(3) provide for -- provide for the following -- page 55 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 2 Other Acts amended s. 71 Provision Delete Insert s. 94(3) after par. (f) and s. 94(6) means office, means an office, s. 94(6) after par. (a) and s. 99(1) after par. (a) and 1 Division 2 -- Other Acts amended 2 71. Agricultural Practices (Disputes) Act 1995 amended 3 (1) This section amends the Agricultural Practices (Disputes) 4 Act 1995. 5 (2) In section 19(1) delete "Minister to whom the administration of 6 the Public Sector Management Act 1994 is committed." and 7 insert: 8 9 Public Sector Commissioner. 10 11 (3) In section 19(2) delete "Minister to whom the administration of 12 that Act is committed," and insert: 13 14 Public Sector Commissioner, 15 16 72. Auditor General Act 2006 amended 17 (1) This section amends the Auditor General Act 2006. 18 (2) In section 9(2) delete "sections 21(1)(e) and (g) to (i)," and 19 insert: 20 21 sections 21(1)(e), 22C, 22D, 22E, 22 page 56 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Other Acts amended Division 2 s. 73 1 73. Constitution Acts Amendment Act 1899 amended 2 (1) This section amends the Constitution Acts Amendment Act 1899. 3 (2) In Schedule V Part I Division 2: 4 (a) delete the item relating to the Commissioner for Public 5 Sector Standards; 6 (b) insert in alphabetical order: 7 8 Public Sector Commissioner appointed under the Public 9 Sector Management Act 1994. 10 11 74. Corruption and Crime Commission Act 2003 amended 12 (1) This section amends the Corruption and Crime Commission 13 Act 2003. 14 (2) In section 3(1): 15 (a) in the definition of independent agency delete 16 paragraph (e) and insert: 17 18 (e) the Public Sector Commissioner; 19 20 (b) after each of paragraphs (a), (b) and (c) insert: 21 22 and 23 24 (3) Delete section 90(6) and insert: 25 26 (6) A report about a person proposed to be appointed as a 27 chief executive officer may be given to -- 28 (a) the Public Sector Commissioner; and page 57 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 2 Other Acts amended s. 75 1 (b) any Minister that the Public Sector 2 Commissioner considers has a relevant interest 3 in the report. 4 5 75. Electricity Corporations Act 2005 amended 6 (1) This section amends the Electricity Corporations Act 2005. 7 (2) In section 3(1) delete the definition of Commissioner for Public 8 Sector Standards. 9 (3) In the provisions listed in the Table delete "Commissioner for 10 Public Sector Standards" (each occurrence) and insert: 11 12 Public Sector Commissioner 13 14 Table s. 21(1), (5) and (6) s. 22(1) and (3) s. 31(2) and (4) s. 32(1) and (3) s. 33(2) 15 16 76. Financial Management Act 2006 amended 17 (1) This section amends the Financial Management Act 2006. 18 (2) In section 51(3) delete "sections 12 and 13" and insert: 19 20 sections 24I and 24J 21 22 77. Gas Pipelines Access (Western Australia) Act 1998 amended 23 (1) This section amends the Gas Pipelines Access (Western 24 Australia) Act 1998. page 58 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Other Acts amended Division 2 s. 78 1 (2) In section 63(11) delete the definition of Commissioner and 2 insert: 3 4 Commissioner means the Public Sector Commissioner 5 under the Public Sector Management Act 1994; 6 7 78. Interpretation Act 1984 amended 8 (1) This section amends the Interpretation Act 1984. 9 (2) In section 5 insert in alphabetical order: 10 11 Public Sector Commissioner means the person holding 12 the office established by the Public Sector 13 Management Act 1994 section 16; 14 public service officer has the meaning given in the 15 Public Sector Management Act 1994 section 3(1); 16 17 79. Midland Redevelopment Act 1999 amended 18 (1) This section amends the Midland Redevelopment Act 1999. 19 (2) In section 10 delete "Minister to whom the administration of the 20 PSM Act is for the time being committed by the Governor." and 21 insert: 22 23 Public Sector Commissioner. 24 25 80. Parliamentary Commissioner Act 1971 amended 26 (1) This section amends the Parliamentary Commissioner Act 1971. page 59 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 2 Other Acts amended s. 81 1 (2) In Schedule 1 delete the item relating to the Public Sector 2 Management Act 1994 and insert: 3 Public Sector Public Sector Commissioner to the extent Management Act 1994 of the Commissioner's functions other than that of chief executive officer of the department of the Public Service principally assisting in the administration of the Public Sector Management Act 1994 4 5 81. Port Authorities Act 1999 amended 6 (1) This section amends the Port Authorities Act 1999. 7 (2) In section 3(1) delete the definition of Commissioner for Public 8 Sector Standards. 9 (3) In the provisions listed in the Table delete "Commissioner for 10 Public Sector Standards" (each occurrence) and insert: 11 12 Public Sector Commissioner 13 14 Table s. 17(1), (4) and (5) s. 18(1) and (3) s. 21(1) and (3) s. 22(1) and (3) s. 23(2) 15 16 82. Public Interest Disclosure Act 2003 amended 17 (1) This section amends the Public Interest Disclosure Act 2003. page 60 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Other Acts amended Division 2 s. 83 1 (2) In section 3(1) delete the definition of Commissioner and insert: 2 3 Commissioner means the person holding the office of 4 Public Sector Commissioner established by the Public 5 Sector Management Act 1994 section 16; 6 7 (3) Delete the heading to Part 4 and insert: 8 9 Part 4 -- Role of Public Sector Commissioner 10 11 83. Salaries and Allowances Act 1975 amended 12 (1) This section amends the Salaries and Allowances Act 1975. 13 (2) In section 10(4)(b) delete "chief executive officer of the 14 department principally assisting the Minister in the 15 administration of the Public Sector Management Act 1994" and 16 insert: 17 18 Public Sector Commissioner 19 20 84. State Administrative Tribunal Act 2004 amended 21 (1) This section amends the State Administrative Tribunal Act 2004. 22 (2) In section 121(2) delete "Commissioner for Public Sector 23 Standards" and insert: 24 25 Public Sector Commissioner 26 27 85. State Records Act 2000 amended 28 (1) This section amends the State Records Act 2000. page 61 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 2 Other Acts amended s. 86 1 (2) In section 69(2) delete "sections 12 and 13" and insert: 2 3 sections 24I and 24J 4 5 86. Subiaco Redevelopment Act 1994 amended 6 (1) This section amends the Subiaco Redevelopment Act 1994. 7 (2) In section 3 delete the definition of Public Service Act. 8 (3) In section 10 delete "Minister to whom the administration of the 9 Public Service Act is for the time being committed by the 10 Governor." and insert: 11 12 Public Sector Commissioner. 13 14 (4) In section 14(1) delete "Public Service Act" and insert: 15 16 Public Sector Management Act 1994 17 18 (5) In section 15(1) delete "Minister to whom the administration of 19 the Public Service Act is for the time being committed by the 20 Governor," and insert: 21 22 Public Sector Commissioner 23 24 (6) In section 17 delete "Public Service Act" and insert: 25 26 Public Sector Management Act 1994 27 28 87. Water Corporation Act 1995 amended 29 (1) This section amends the Water Corporation Act 1995. page 62 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Other Acts amended Division 2 s. 88 1 (2) In section 3(1) delete the definition of Commissioner for Public 2 Sector Standards. 3 (3) In the provisions listed in the Table delete "Commissioner for 4 Public Sector Standards" (each occurrence) and insert: 5 6 Public Sector Commissioner 7 8 Table s. 16(1), (5) and (6) s. 17(1) and (3) s. 24(1) and (3) s. 25(1) and (3) s. 26(2) 9 10 88. Western Australian Land Authority Act 1992 amended 11 (1) This section amends the Western Australian Land Authority 12 Act 1992. 13 (2) In section 4(1) delete the definition of Commissioner for Public 14 Sector Standards. 15 (3) In the provisions listed in the Table delete "Commissioner for 16 Public Sector Standards" (each occurrence) and insert: 17 18 Public Sector Commissioner 19 20 Table s. 12(1), (4) and (5) s. 13(1) and (3) s. 14B(1) and (3) s. 14C(1) and (3) s. 14D(2) 21 page 63 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 2 Other Acts amended s. 89 1 89. Various references to "Minister for Public Sector 2 Management" amended 3 (1) This section amends the Acts listed in the Table. 4 (2) In the provisions listed in the Table delete "Minister for Public 5 Sector Management" and insert: 6 7 Public Sector Commissioner 8 9 Table Agricultural Produce Sch. cl. 2 Commission Act 1988 Agriculture Protection Board s. 8(1)(m) Act 1950 Animal Resources Authority s. 7, 12(2) and (4) Act 1981 Architects Act 2004 s. 9 Armadale Redevelopment s. 10 Act 2001 Biosecurity and Agriculture s. 48(4) Management Act 2007 Botanic Gardens and Parks s. 8 Authority Act 1998 Builders' Registration Act 1939 s. 6(4), 30(1) Building and Construction Sch. 1 cl. 2 Industry Training Fund and Levy Collection Act 1990 page 64 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Other Acts amended Division 2 s. 89 Caravan Parks and Camping Sch. 1 cl. 7(1) Grounds Act 1995 Carers Recognition Act 2004 s. 17 Cemeteries Act 1986 s. 9 Chemistry Centre (WA) Act 2007 s. 8(1) and (2) Chicken Meat Industry Act 1977 s. 9 Child Care Services Act 2007 s. 41(8) Children and Community s. 27(8), 92(7)(b) Services Act 2004 Chiropractors Act 2005 s. 9 Coal Industry Tribunal of s. 27 Western Australia Act 1992 Commissioner for Children and s. 56 Young People Act 2006 Conservation and Land s. 20(4)(b), 30 Management Act 1984 Construction Industry Portable s. 9(1) Paid Long Service Leave Act 1985 Contaminated Sites Act 2003 s. 33(5) Country Housing Act 1998 s. 6 Criminal Injuries Compensation Sch. 1 cl. 3(4) Act 2003 page 65 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 2 Other Acts amended s. 89 Curriculum Council Act 1997 s. 8 Dental Prosthetists Act 1985 s. 9 Disability Services Act 1993 Sch. 3 cl. 4, Sch. 5 cl. 4 East Perth Redevelopment s. 10, 14(1)(b), 15(2) Act 1991 Economic Regulation Authority s. 12(1) Act 2003 Edith Cowan University s. 31(2) Act 1984 Electricity Industry Act 2004 s. 81(3) Energy Coordination Act 1994 s. 11ZPO(3), 25(4) Environmental Protection s. 9, 22(2), 25(3), 29(4), 40(8), Act 1986 108(2), Sch. 7 cl. 2(1)(a) and 5 Equal Opportunity Act 1984 s. 75(5), 78(3)(a), 142(4) Fire and Emergency Services s. 10, 28 Authority of Western Australia Act 1998 Fish Resources Management s. 245(1) Act 1994 Fisheries Adjustment Schemes s. 13 Act 1987 Food Act 2008 s. 124(2)(c) Forest Products Act 2000 s. 8(1) and (2), 66(7) and (8) page 66 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Other Acts amended Division 2 s. 89 Gaming and Wagering s. 13(1), 109D(8) Commission Act 1987 Gender Reassignment Act 2000 s. 9(1) Grain Marketing Act 2002 s. 9 Guardianship and s. 91(3), 93(3)(a) Administration Act 1990 Health Legislation s. 6(3), 11(3) Administration Act 1984 Health Services (Conciliation Sch. 2 cl. 2(a), 6 and Review) Act 1995 Heritage of Western Australia s. 10(2), 27(2), 28(1) Act 1990 Higher Education Act 2004 s. 21(3) Hospitals and Health Services s. 7E(4) Act 1927 Housing Act 1980 s. 18(1) Human Reproductive Sch. cl. 4(1) Technology Act 1991 Industry and Technology s. 24 Development Act 1998 Insurance Commission of s. 5(5), 11(5) Western Australia Act 1986

and Administration Act 1997 s. 97(9) page 67 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 2 Other Acts amended s. 89 Land Information Authority s. 23 Act 2006 Law Reform Commission s. 9(2) Act 1972 Legal Aid Commission Act 1976 s. 20(1), 21(1) Legal Profession Act 2008 s. 317, 564 Liquor Control Act 1988 s. 9H(1) Litter Act 1979 s. 15(3) Local Government Act 1995 Sch. 2.5 cl. 8(1), Sch. 5.1 cl. 9(1) Local Government Grants s. 7(2) Act 1978 Lotteries Commission Act 1990 s. 9(2), Sch. 1 cl. 3 Main Roads Act 1930 First Sch. cl. 5 Marketing of Potatoes Act 1946 s. 18(2) Medical Practitioners Act 2008 s. 10 Medical Radiation Technologists s. 8 Act 2006 Mental Health Act 1996 s. 180(1), Sch. 1 cl. 2(2) Minerals and Energy Research s. 16, 25, 31(3) Act 1987 Mines Safety and Inspection s. 19(3), 20(3), 48(3), 82(5) Act 1994 page 68 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Other Acts amended Division 2 s. 89 Mining Act 1978 s. 13(4) Nurses and Midwives Act 2006 s. 9 Occupational Safety and Health s. 8(2), 9(3), 14A(6), 15(4) Act 1984 Occupational Therapists s. 9 Act 2005 Optometrists Act 2005 s. 9 Osteopaths Act 2005 s. 9 Owner-Drivers (Contracts and s. 24 Disputes) Act 2007 Painters' Registration Act 1961 s. 8 Parks and Reserves Act 1895 s. 15(2)(a) Pearling Act 1990 s. 41 Perth Market Act 1926 s. 8 Physiotherapists Act 2005 s. 9 Planning and Development s. 13 Act 2005 Podiatrists Act 2005 s. 9 Port Authorities Act 1999 s. 7(2) Port Kennedy Development s. 17 Agreement Act 1992 Prisons Act 1981 s. 6(5), 13(1) page 69 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 2 Other Acts amended s. 89 Professional Combat Sports s. 6(1) Act 1987 Professional Standards Act 1997 Sch. 1 cl. 4(1) and (2) Psychologists Act 2005 s. 8 Public Works Act 1902 s. 9D Racing Penalties (Appeals) Sch. cl. 1(3), 2 Act 1990 Radiation Safety Act 1975 s. 20 Real Estate and Business Agents s. 11, 23A(9), 131KA Act 1978 Regional Development s. 19(1) and (2)(a), 29(2) Commissions Act 1993 Retail Trading Hours Act 1987 s. 17(5) Rights in Water and Irrigation s. 26GR Act 1914 Road Safety Council Act 2002 s. 10 Rottnest Island Authority s. 8 Act 1987 Royalties for Regions Act 2009 s. 20 Rural Business Development s. 14 Corporation Act 2000 School Education Act 1999 s. 39(9)(b), 87(7)(b), 93(9)(b), 241(7)(b) page 70 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Other Acts amended Division 2 s. 89 Sentence Administration Sch. 1 cl. 6(1) Act 2003 Settlement Agents Act 1981 s. 11 Small Business Development s. 7(1) Corporation Act 1983 Soil and Land Conservation s. 41(3) Act 1945 State Administrative Tribunal s. 119(5) Act 2004 State Records Act 2000 Sch. 4 cl. 7 State Superannuation Act 2000 s. 68(2), Sch. 1 cl. 7 Swan and Canning Rivers s. 21(2), 78(2) Management Act 2006 Swan Valley Planning Act 1995 s. 19 Taxi Act 1994 s. 12 Tobacco Products Control s. 63 Act 2006 Transport Co-ordination s. 7B(9) Act 1966 Vocational Education and s. 63 Training Act 1996 Waste Avoidance and Resource s. 15 Recovery Act 2007 page 71 Public Sector Reform Bill 2009 Part 2 Public Sector administration amendments Division 2 Other Acts amended s. 90 Water Agencies (Powers) s. 21, 109(2) Act 1984 Water Boards Act 1904 s. 29(1) Western Australian College of s. 11(1) Teaching Act 2004 Western Australian Land s. 8(1) Authority Act 1992 Western Australian Sports s. 7, 11(2) Centre Trust Act 1986 Western Australian Tourism s. 7(1), 17(3a), (4) and (5) Commission Act 1983 Western Australian Treasury s. 5D Corporation Act 1986 Workers' Compensation and s. 99(2), 100A(4) Injury Management Act 1981 Zoological Parks Authority s. 8, 25(3), Sch. 3 cl. 6, 9 Act 2001 1 2 90. Various references to "Public Service Board" amended 3 (1) This section amends the Acts listed in the Table. 4 (2) In the provisions listed in the Table delete "Public Service 5 Board" and insert: 6 7 Public Sector Commissioner 8 page 72 Public Sector Reform Bill 2009 Public Sector administration amendments Part 2 Other Acts amended Division 2 s. 90 1 Table Alcohol and Drug Authority s. 21(2) Act 1974 Companies (Administration) s. 4(6) Act 1982 Country High School Hostels s. 10(2) Authority Act 1960 Perth Theatre Trust Act 1979 s. 9(1), 17(3) 2 page 73 Public Sector Reform Bill 2009 Part 3 Public Sector discipline amendments Division 1 Public Sector Management Act 1994 amended s. 91 1 Part 3 -- Public Sector discipline amendments 2 Division 1 -- Public Sector Management Act 1994 amended 3 91. Act amended 4 This Division amends the Public Sector Management Act 1994. 5 92. Section 3 amended 6 (1) In section 3(1) delete the definitions of: 7 respondent 8 special disciplinary inquiry 9 (2) In section 3(1) insert in alphabetical order: 10 11 disciplinary action has the meaning given in 12 section 80A; 13 special disciplinary inquiry means a special 14 disciplinary inquiry held under section 87; 15 16 93. Section 22A amended 17 After section 22A(1) insert: 18 19 (2A) The Commissioner must issue instructions to ensure 20 that, if a decision is made under section 81(1)(a) in 21 respect of an employee, the employee is -- 22 (a) notified in writing of the possible breach of 23 discipline; and 24 (b) given a reasonable opportunity to respond. 25 page 74 Public Sector Reform Bill 2009 Public Sector discipline amendments Part 3 Public Sector Management Act 1994 amended Division 1 s. 94 1 94. Section 76 amended 2 (1) In section 76(1) delete "subsection (3)," and insert: 3 4 subsections (3) and (4), 5 6 (2) After section 76(3) insert: 7 8 (4) A former employee who -- 9 (a) may have committed a breach of discipline; and 10 (b) was an employee to whom this Part applied at 11 the time of the suspected breach, 12 is, in circumstances specified in the Commissioner's 13 instructions, to be taken to be an employee for the 14 purposes of this Part even though the person has ceased 15 to be employed in the Public Sector by or under an 16 employing authority. 17 (5) The Commissioner's instructions may specify the 18 disciplinary action that may be taken under this Act in 19 respect of a former employee who is found to have 20 committed a breach of discipline, and the provisions of 21 this Part apply to and in relation to the disciplinary 22 action as if the former employee were an employee. 23 (6) The taking of disciplinary action with respect to a 24 former employee does not affect the former employee's 25 retirement or resignation or the benefits, rights and 26 liabilities arising from the retirement or resignation. 27 (7) For the purposes of this Part, in circumstances 28 specified in the Commissioner's instructions, a former 29 employing authority of an employee is to be taken to 30 be the employing authority of the employee. page 75 Public Sector Reform Bill 2009 Part 3 Public Sector discipline amendments Division 1 Public Sector Management Act 1994 amended s. 95 1 (8) Nothing in this Part limits the power of an employing 2 authority under other provisions of this Act to take 3 improvement action in relation to an employee in 4 circumstances in which the employing authority 5 considers it appropriate to do so. 6 7 95. Section 78 amended 8 (1) In section 78(1): 9 (a) delete "section 52, an employee who --" and insert: 10 11 section 52, an employee or former employee who -- 12 13 (b) in paragraph (a) delete "is" and insert: 14 15 is, or was, 16 17 (c) delete paragraph (b) and insert: 18 19 (b) is aggrieved by -- 20 (ia) a decision made in respect of the 21 Government officer under 22 section 79(3)(b) or (c) or (4); or 23 (i) a finding made in respect of the 24 Government officer in the exercise of a 25 power under section 87(3)(a)(ii); or 26 (ii) a decision made under section 82 to 27 suspend the Government officer on 28 partial pay or without pay; or 29 (iii) a decision to take disciplinary action 30 made in respect of the Government 31 officer under section 82A(3)(b), 88(b) 32 or 92(1), 33 page 76 Public Sector Reform Bill 2009 Public Sector discipline amendments Part 3 Public Sector Management Act 1994 amended Division 1 s. 95 1 (d) delete "that decision" and insert: 2 3 that decision or finding 4 5 (2) In section 78(2): 6 (a) delete "subsection (3), an employee who --" and insert: 7 8 subsection (3), an employee or former employee who -- 9 10 (b) delete paragraph (b) and insert: 11 12 (b) is aggrieved by -- 13 (ia) a decision made in respect of the 14 employee under section 79(3)(b) or (c) 15 or (4); or 16 (i) a finding made in the exercise of a 17 power under section 87(3)(a)(ii); or 18 (ii) a decision made under section 82 to 19 suspend the employee on partial pay or 20 without pay; or 21 (iii) a decision to take disciplinary action 22 made under section 82A(3)(b), 88(b) or 23 92(1), 24 25 (c) delete "the decision" and insert: 26 27 the decision or finding 28 29 (d) delete "that decision" (each occurrence) and insert: 30 31 that decision or finding 32 page 77 Public Sector Reform Bill 2009 Part 3 Public Sector discipline amendments Division 1 Public Sector Management Act 1994 amended s. 95 1 (3) In section 78(3): 2 (a) delete "section 52, an employee --" and insert: 3 4 section 52, an employee or former employee -- 5 6 (b) delete paragraph (b) and insert: 7 8 (b) who is aggrieved by -- 9 (i) a decision made under section 82 to 10 suspend the employee on partial pay or 11 without pay; or 12 (ii) a finding made in respect of the person 13 referred to in section 82A(3)(a), 14 87(3)(a)(i) or 88(a), 15 16 (c) delete "the decision" and insert: 17 18 the decision or finding 19 20 (d) delete "that decision" (each occurrence) and insert: 21 22 that decision or finding 23 24 (4) In section 78(4) delete "decision" (each occurrence) and insert: 25 26 direction 27 28 (5) After section 78(4) insert: 29 30 (5) If it appears to the Industrial Commission or the Public 31 Service Appeal Board that the employing authority 32 failed to comply with a Commissioner's instruction or 33 the rules of procedural fairness in making the decision page 78 Public Sector Reform Bill 2009 Public Sector discipline amendments Part 3 Public Sector Management Act 1994 amended Division 1 s. 96 1 or finding the subject of a referral or appealed against, 2 the Industrial Commission or Public Service Appeal 3 Board -- 4 (a) is not required to determine the reference or 5 allow the appeal solely on that basis and may 6 proceed to decide the reference or appeal on its 7 merits; or 8 (b) may quash the decision or finding and remit the 9 matter back to the employing authority with 10 directions as to the stage at which the 11 disciplinary process in relation to the matter is 12 to be recommenced by the employing authority 13 if the employing authority continues the 14 disciplinary process. 15 16 96. Section 80A inserted 17 At the beginning of Part 5 Division 3 insert: 18 19 80A. Terms used 20 In this Division -- 21 disciplinary action, in relation to a breach of discipline 22 by an employee, means any one or more of the 23 following -- 24 (a) a reprimand; 25 (b) the imposition of a fine not exceeding an 26 amount equal to the amount of remuneration 27 received by the employee in respect of the last 28 5 days during which the employee was at work 29 as an employee before the day on which the 30 finding of the breach of discipline was made; 31 (c) transferring the employee to another public 32 sector body with the consent of the employing 33 authority of that public sector body; page 79 Public Sector Reform Bill 2009 Part 3 Public Sector discipline amendments Division 1 Public Sector Management Act 1994 amended s. 96 1 (d) if the employee is not a chief executive officer 2 or chief employee, transferring the employee to 3 another office, post or position in the public 4 sector body in which the employee is 5 employed; 6 (e) reduction in the monetary remuneration of the 7 employee; 8 (f) reduction in the level of classification of the 9 employee; 10 (g) dismissal; 11 section 94 breach of discipline means a breach of 12 discipline arising out of disobedience to, or disregard 13 of, a lawful order referred to in section 94(4); 14 serious offence means -- 15 (a) an indictable offence against a law of the State 16 (whether or not the offence is or may be dealt 17 with summarily), another State or a Territory of 18 the Commonwealth or the Commonwealth; or 19 (b) an offence against the law of another State or a 20 Territory of the Commonwealth that would be 21 an indictable offence against a law of this State 22 if committed in this State (whether or not the 23 offence could be dealt with summarily if 24 committed in this jurisdiction); or 25 (c) an offence against the law of a foreign country 26 that would be an indictable offence against a 27 law of the Commonwealth or this State if 28 committed in this State (whether or not the 29 offence could be dealt with summarily if 30 committed in this jurisdiction); or 31 (d) an offence, or an offence of a class, prescribed 32 under section 108. 33 page 80 Public Sector Reform Bill 2009 Public Sector discipline amendments Part 3 Public Sector Management Act 1994 amended Division 1 s. 97 1 97. Section 81 replaced 2 Delete section 81 and insert: 3 4 81. Employing authority to decide how to deal with 5 suspected breach of discipline 6 (1) If an employing authority of an employee is made 7 aware, or becomes aware, by any means that the 8 employee may have committed a breach of discipline, 9 the employing authority may -- 10 (a) decide to deal with the matter as a disciplinary 11 matter under this Division in accordance with 12 the Commissioner's instructions; or 13 (b) decide that it is appropriate -- 14 (i) to take improvement action with respect 15 to the employee; or 16 (ii) to take no action. 17 (2) If the Minister, in his or her capacity as employing 18 authority of a ministerial officer, decides to act under 19 subsection (1)(a), the Minister must direct another 20 person to submit to the Minister a report as to whether 21 there has been a breach of discipline and a 22 recommendation as to any decision to be made under 23 section 82A(3). 24 (3) A direction must not be given under subsection (2) to 25 the Commissioner. 26 (4) A person directed under subsection (2) -- 27 (a) must comply with the direction of the Minister; 28 and 29 (b) for that purpose, has the functions of an 30 employing authority under section 82A(1) and 31 under the Commissioner's instructions. page 81 Public Sector Reform Bill 2009 Part 3 Public Sector discipline amendments Division 1 Public Sector Management Act 1994 amended s. 97 1 82A. Dealing with disciplinary matter 2 (1) In dealing with a disciplinary matter under this 3 Division an employing authority -- 4 (a) must proceed with as little formality and 5 technicality as this Division, the 6 Commissioner's instructions and the 7 circumstances of the matter permit; and 8 (b) is not bound by the rules of evidence; and 9 (c) may, subject to this Division and the 10 Commissioner's instructions, determine the 11 procedure to be followed. 12 (2) Even though an employing authority decides to act 13 under section 81(1)(a), the employing authority may, at 14 any stage of the process, decide instead that it is 15 appropriate -- 16 (a) to take improvement action with respect to the 17 employee; or 18 (b) that no further action be taken. 19 (3) Subject to subsection (4) and section 89, after dealing 20 with a matter as a disciplinary matter under this 21 Division -- 22 (a) if the employing authority finds that the 23 employee has committed a section 94 breach of 24 discipline, the employing authority must take 25 disciplinary action by dismissing the employee; 26 and 27 (b) if the employing authority finds that the 28 employee has committed a breach of discipline 29 that is not a section 94 breach of discipline, the 30 employing authority must decide -- 31 (i) to take disciplinary action, or both 32 disciplinary action and improvement 33 action, with respect to the employee; or page 82 Public Sector Reform Bill 2009 Public Sector discipline amendments Part 3 Public Sector Management Act 1994 amended Division 1 s. 98 1 (ii) to take improvement action with respect 2 to the employee; or 3 (iii) that no further action is to be taken. 4 (4) The Minister -- 5 (a) is bound by any finding in a report submitted as 6 directed under section 81(2); and 7 (b) must, when making a decision under 8 subsection (3)(b), have regard to, but is not 9 bound by, a recommendation submitted as 10 directed under section 81(2). 11 12 98. Section 82 replaced 13 Delete section 82 and insert: 14 15 82. Suspension pending decision in relation to breach of 16 discipline or criminal charge 17 (1) If -- 18 (a) an employing authority has decided to act under 19 section 81(1)(a) in relation to an employee; or 20 (b) an employee is charged with having committed 21 a serious offence, 22 the employing authority may, in accordance with the 23 Commissioner's instructions, suspend the employee on 24 full pay, partial pay or without pay. 25 (2) Subject to subsection (3) -- 26 (a) a suspension arising from a decision referred to 27 in subsection (1)(a) has effect until a decision is 28 made under section 82A(2) or (3) or 88 in 29 respect of the suspected breach; or 30 (b) a suspension arising from a charge referred to 31 in subsection (1)(b) has effect until the criminal page 83 Public Sector Reform Bill 2009 Part 3 Public Sector discipline amendments Division 1 Public Sector Management Act 1994 amended s. 99 1 charge or any action that the employing 2 authority is considering taking under section 92 3 has been finalised. 4 (3) The employing authority may at any time remove, or 5 vary the terms of, the suspension. 6 (4) Unless the employing authority otherwise directs, any 7 pay withheld under subsection (1) is forfeited to the 8 State if -- 9 (a) it is decided to take disciplinary action with 10 respect to the employee for the breach of 11 discipline; or 12 (b) the employee is convicted or found guilty of the 13 offence concerned or another serious offence. 14 (5) An employee is entitled to have any pay of the 15 employee that is withheld under subsection (1) and not 16 forfeited under subsection (4) restored to the employee. 17 18 99. Sections 83, 84, 85 and 86 deleted 19 Delete sections 83, 84, 85 and 86. 20 100. Section 87 amended 21 (1) Before section 87(1) insert: 22 23 (1A) The Commissioner may at any time before a decision is 24 made under section 81(1)(b) or 82A(2) or (3) in respect 25 of a suspected breach of discipline direct that -- 26 (a) a special disciplinary inquiry be held into the 27 suspected breach; or 28 (b) an investigation by the employing authority or a 29 person directed under section 81(2) into the 30 suspected breach be continued as a special 31 disciplinary inquiry. page 84 Public Sector Reform Bill 2009 Public Sector discipline amendments Part 3 Public Sector Management Act 1994 amended Division 1 s. 100 1 (1B) A direction under subsection (1A) may be made on the 2 request of the employing authority of the employee 3 suspected to have committed the breach of discipline or 4 on the initiative of the Commissioner. 5 6 (2) Delete section 87(3) and insert: 7 8 (3) A person who holds a special disciplinary inquiry must, 9 at the conclusion of the inquiry -- 10 (a) make a finding that the employee -- 11 (i) has committed a section 94 breach of 12 discipline; or 13 (ii) has committed a breach of discipline 14 other than a breach referred to in 15 subparagraph (i); or 16 (iii) has not committed a breach of 17 discipline; 18 and 19 (b) prepare a report on the conduct and finding, of 20 the special disciplinary inquiry; and 21 (c) if the finding is that the employee has 22 committed a breach of discipline other than a 23 section 94 breach of discipline, include in the 24 report a recommendation as to any disciplinary 25 action and improvement action that should be 26 taken by the employing authority; and 27 (d) provide the employing authority and the 28 Commissioner with a copy of the report. 29 page 85 Public Sector Reform Bill 2009 Part 3 Public Sector discipline amendments Division 1 Public Sector Management Act 1994 amended s. 101 1 101. Section 88 replaced 2 Delete section 88 and insert: 3 4 88. Action on receipt of report of special disciplinary 5 inquiry 6 On receiving a report under section 87(3), the 7 employing authority must, subject to section 89, accept 8 the finding in the report and -- 9 (a) in the case of a finding that the employee has 10 committed a section 94 breach of discipline, 11 take disciplinary action by dismissing the 12 employee; or 13 (b) in the case of a finding that the employee has 14 committed a breach of discipline other than a 15 breach referred to in paragraph (a) -- 16 (i) decide to take disciplinary action or 17 improvement action, or both 18 disciplinary action and improvement 19 action in relation to the employee in 20 accordance with the recommendation in 21 the report; or 22 (ii) decline to accept the recommendation in 23 the report and decide to take such other 24 disciplinary action or improvement 25 action, or both disciplinary action and 26 improvement action, in relation to the 27 employee as could have been 28 recommended in the report; 29 or 30 (c) in the case of a finding that no breach of 31 discipline was committed by the employee, 32 notify the employee of that finding and that no 33 further action will be taken in the matter. 34 page 86 Public Sector Reform Bill 2009 Public Sector discipline amendments Part 3 Public Sector Management Act 1994 amended Division 1 s. 102 1 102. Section 89 replaced 2 Delete section 89 and insert: 3 4 89. Dismissal of chief executive officer on disciplinary 5 grounds 6 (1) If a chief executive officer is the subject of a finding 7 under section 82A(3)(a) or a finding under 8 section 87(3)(a)(i) in respect of a section 94 breach of 9 discipline, the Commissioner must recommend to the 10 Governor that the chief executive officer be dismissed, 11 and the Governor must dismiss the chief executive 12 officer. 13 (2) If a chief executive officer -- 14 (a) is the subject of a finding under 15 section 82A(3)(b) or a finding under 16 section 87(3)(a)(ii) in respect of a breach of 17 discipline other than a section 94 breach of 18 discipline; and 19 (b) the Commissioner considers that the chief 20 executive officer ought to be dismissed, 21 the Commissioner must recommend to the Governor 22 that the chief executive officer be dismissed, and the 23 Governor must dismiss the chief executive officer. 24 25 103. Section 90 amended 26 In section 90: 27 (a) delete "a respondent" and insert: 28 29 an employee 30 page 87 Public Sector Reform Bill 2009 Part 3 Public Sector discipline amendments Division 1 Public Sector Management Act 1994 amended s. 104 1 (b) delete "notify the respondent --" and insert: 2 3 notify the employee -- 4 5 (c) in paragraph (a) delete "the respondent" and insert: 6 7 the employee 8 9 (d) in paragraph (b) delete "the respondent," (each 10 occurrence) and insert: 11 12 the employee, 13 14 (e) delete "within the prescribed period after the making of 15 that finding or the taking of that action, as the case 16 requires." and insert: 17 18 within the period prescribed in the Commissioner's 19 instructions. 20 21 Note: The heading to amended section 90 is to read: 22 Employing authority to notify employee of outcome of 23 disciplinary matter 24 104. Section 91 amended 25 In section 91: 26 (a) delete "a respondent" and insert: 27 28 an employee 29 30 (b) delete "Division, the respondent" and insert: 31 32 Division, the employee 33 page 88 Public Sector Reform Bill 2009 Public Sector discipline amendments Part 3 Public Sector Management Act 1994 amended Division 1 s. 105 1 (c) delete "the respondent does" and insert: 2 3 the employee does 4 5 105. Section 92 replaced 6 Delete section 92 and insert: 7 8 92. Action if employee convicted of serious offence 9 (1) Despite the Sentencing Act 1995 section 11, if an 10 employee is convicted or found guilty of a serious 11 offence, the employing authority may take disciplinary 12 action or improvement action, or both disciplinary 13 action and improvement action, with respect to the 14 employee. 15 (2) Before any disciplinary action or improvement action 16 is taken with respect to an employee under this section, 17 the employee must be given an opportunity to make a 18 submission in relation to the action that the employing 19 authority is considering taking. 20 (3) If an employee is dismissed under this section, for the 21 purposes of sections 58(4) and 59(1) the employee is 22 taken to have been dismissed for breach of discipline. 23 93A. Implementation of decisions under this Division 24 A decision of an employing authority to take 25 disciplinary action or improvement action with respect 26 to an employee may be carried into effect at any time. 27 page 89 Public Sector Reform Bill 2009 Part 3 Public Sector discipline amendments Division 1 Public Sector Management Act 1994 amended s. 106 1 106. Section 94 amended 2 In section 94(2)(d) delete "section 86(3)(a) or (9)(b)(i), 3 88(1)(b)(i) or 89(1)." and insert: 4 5 section 82A(3)(a), 88(a) or 89(1). 6 7 107. Part 9 Division 3 inserted 8 Before Schedule 1 insert: 9 10 Division 3 -- Public Sector Reform Act 2009 Part 3 11 amendments: transitional provisions 12 114. Transitional provisions 13 Schedule 8 sets out transitional provisions. 14 15 108. Schedule 8 inserted 16 At the end of the Act insert: 17 18 Schedule 8 -- Public Sector Reform Act 2009 Part 3 19 amendments: transitional provisions 20 [s. 114] 21 1. Term used: commencement day 22 In this Schedule -- 23 commencement day means the day on which the Public 24 Sector Reform Act 2009 section 97 comes into operation. 25 2. Disciplinary proceedings 26 (1) If a proceeding (including an investigation, disciplinary 27 inquiry or special disciplinary inquiry) commenced under page 90 Public Sector Reform Bill 2009 Public Sector discipline amendments Part 3 Public Sector Management Act 1994 amended Division 1 s. 108 1 Part 5 Division 3 before the commencement day has not 2 been finalised under that Division before that day, Part 5 3 Division 3 as in force immediately before that day continues 4 to apply to and in relation to that proceeding as if the Public 5 Sector Reform Act 2009 Part 3 had not been enacted until 6 the proceeding is finalised. 7 (2) Section 78 as in force immediately before the 8 commencement day continues to apply to a decision made 9 in a proceeding referred to in subclause (1). 10 (3) Except as provided in subclauses (1) and (2), Part 5 as 11 amended by the Public Sector Reform Act 2009 Part 3 12 applies in relation to any act, omission or conduct that 13 occurred before or after the commencement day. 14 3. Suspensions 15 (1) A suspension that is of effect under section 82 immediately 16 before the commencement day continues to be of effect for 17 the remainder of the period for which it would, but for the 18 Public Sector Reform Act 2009 Part 3, have been of effect. 19 (2) Section 82 as in force immediately before the 20 commencement day continues to apply to a suspension 21 referred to in subclause (1). 22 4. Appeals 23 An appeal pending under section 78 immediately before the 24 commencement day is to be dealt with under that section as 25 in force before the commencement day. 26 5. Power to amend subsidiary legislation 27 (1) The Governor, on the recommendation of the Minister, may 28 make regulations amending subsidiary legislation made 29 under any Act. 30 (2) The Minister may make a recommendation under 31 subclause (1) only if the Minister considers that each 32 amendment proposed to be made by the regulations is 33 necessary or desirable as a consequence of the enactment of 34 the Public Sector Reform Act 2009 Part 3. page 91 Public Sector Reform Bill 2009 Part 3 Public Sector discipline amendments Division 1 Public Sector Management Act 1994 amended s. 108 1 (3) Nothing in this clause prevents subsidiary legislation from 2 being amended in accordance with the Act under which it 3 was made. 4 6. Transitional regulations 5 (1) If there is no sufficient provision in this Schedule for 6 dealing with a transitional matter, the regulations may 7 prescribe all matters that are required or necessary or 8 convenient to be prescribed for dealing with the matter. 9 (2) In subclause (1) -- 10 transitional matter means a matter that needs to be dealt 11 with for the purpose of effecting the transition from an Act 12 (including this Act) as enacted immediately before the 13 commencement day to the Act as amended by the Public 14 Sector Reform Act 2009 Part 3. 15 (3) Regulations made under subclause (1) may provide that 16 specified provisions of this Act as in force on or after the 17 commencement of the Public Sector Reform Act 2009, or of 18 subsidiary legislation made under this Act, or of an Act 19 amended by the Public Sector Reform Act 2009 -- 20 (a) do not apply; or 21 (b) apply with specified modifications, 22 to or in relation to any matter. 23 (4) If regulations under subclause (1) provide that a specified 24 state of affairs is to be taken to have existed, or not to have 25 existed, on and from a day that is earlier than the day on 26 which the regulations are published in the Gazette but not 27 earlier than the commencement day, the regulations have 28 effect according to their terms. 29 (5) In subclauses (3) and (4) -- 30 specified means specified or described in the regulations. 31 (6) If regulations contain a provision referred to in 32 subclause (4), the provision does not operate so as to -- 33 (a) affect in a manner prejudicial to any person (other 34 than the State or an authority of the State), the rights page 92 Public Sector Reform Bill 2009 Public Sector discipline amendments Part 3 Other Acts amended Division 2 s. 109 1 of that person existing before the day of publication 2 of those regulations; or 3 (b) impose liabilities on any person (other than the 4 State or an authority of the State) in respect of 5 anything done or omitted to be done before the day 6 of publication of those regulations. 7 7. Interpretation Act 1984 not affected 8 Unless the contrary intention appears in this Schedule, the 9 provisions of this Schedule are additional to and do not 10 prejudice or affect the application of the Interpretation 11 Act 1984 Part V. 12 13 Division 2 -- Other Acts amended 14 109. Industrial Relations Act 1979 amended 15 (1) This section amends the Industrial Relations Act 1979. 16 (2) In section 80I(1): 17 (a) in paragraph (b) after "decision" insert: 18 19 or finding 20 21 (b) in paragraph (d) after "decision" insert: 22 23 or finding 24 25 110. School Education Act 1999 amended 26 (1) This section amends the School Education Act 1999. 27 (2) In section 239(1)(b) delete "that is not the Minister (within the 28 meaning in that Part)". page 93 Public Sector Reform Bill 2009 Part 3 Public Sector discipline amendments Division 2 Other Acts amended s. 110 1 (3) Delete section 239(2) and insert: 2 3 (2) In addition to -- 4 (a) the actions that may be taken under 5 section 79(3) of the PSMA; and 6 (b) any disciplinary action or improvement action 7 that may be taken under section 82A(3)(b) or 8 88(b) of the PSMA, 9 the chief executive officer may under those provisions 10 make a determination under section 238(1)(a) in 11 respect of a member of the teaching staff. 12 13 (4) In section 240(1): 14 (a) in paragraph (a) delete "is guilty of an act or omission 15 that comes within" and insert: 16 17 may have committed a breach of discipline as referred to 18 in 19 20 (b) delete paragraph (c)(ii) and "or" after it and insert: 21 22 (ii) in the case of a suspected breach of 23 discipline dealt with under Part 5 of the 24 PSMA -- a decision is made under 25 section 81(1)(b), 82A(2) or (3) or 88 of 26 the PSMA; or 27 28

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