Home | Databases | WorldLII | Search | Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

You are here: 

Public Service Amendment Bill 2023 [2023] AUSStaCSBSD 108 (21 June 2023)

Public Service Amendment Bill 2023^[4]

Tabling of documents in Parliament^[5]

1.8 Item 8 of Schedule 1 seeks to introduce section 44A into the Public Service Act 1999 (the Act). This provision provides that the Australian Public Service Commissioner (the Commissioner) can cause a capability review of an Agency to be undertaken, at least once every 5 years or if the Commissioner determines in writing, another number of years in relation to the Agency.^[6] A similar power is introduced for the Secretary of the Prime Minister's Department to cause a capability review of the Australian Public Service Commission to be undertaken. Proposed paragraph 44A(4)(d) requires that a capability review report is published on an Agency website.^[7] There appears to be no requirement for capability review reports of the Australian Public Service Commission to be published.

1.9 Proposed section 44B provides that where a capability review of an Agency is undertaken and a written report of the review given to the Agency Head,^[8] within 90 days after the report is given to the Agency Head, the Agency Head must prepare a written action plan that includes a response to the findings and publish the action plan on an Agency website.

1.10 Item 10 of Schedule 1 seeks to introduce section 64A which requires the Secretaries Board^[9] to cause long-term insights reports to be prepared in relation to one or more matters of public policy. Proposed subsection 64A(2) explains that the purpose of a long-term insight report is to make available information about:

• medium-term and long-term trends, risks, and opportunities that affect or may affect Australia or Australian society; and

• information and impartial analysis relating to those trends, risks and opportunities.

1.11 Proposed subsection 64A(4) provides that this be published on an Agency website and, if the Secretaries Board considers appropriate, elsewhere.

1.12 Item 12 of Schedule 1 seeks to insert section 78B, which requires the Agency Head of an Agency to prepare an action plan that sets out the Agency Head's response to the census results as they relate to the Agency. Proposed subsection 78B(3) provides that the census results and action plan must be published as soon as practicable after the first day on which a copy of the State of the Service report for the financial year is laid before a House of the Parliament, unless an exemption from the Commissioner has been given in writing.

1.13 The bill does not require any of the documents created under proposed sections 44A, 44B, 64A or 78B to be tabled in the Parliament. The committee's consistent scrutiny view is that tabling documents in the Parliament is important to parliamentary scrutiny, as it alerts parliamentarians to the existence of documents and provides opportunities for debate that are not made available through other means, for example, by being published online.

1.14 In this case, the documents proposed to be created include capability reviews of government agencies, action plans responding to capability reviews, long-term insight reports, and action plans responding to Agency census results. All of these appear to be directed at improving transparency and external scrutiny of performance of government agencies, which would be further aided by requiring them to be tabled in the Parliament.

1.15 The explanatory memorandum does not include any justification as to why these documents are not intended to be tabled in the Parliament and why it is considered appropriate to only publish them online.

1.16 The committee requests the minister's advice as to:

• whether the bill can be amended to provide that the documents created under proposed sections 44A, 44B, 64A or 78B of the bill must be tabled in the Parliament; or

• if the minister considers these documents are not appropriate for tabling in the Parliament, whether a justification can be provided as to why it is appropriate that the documents are not tabled.

Privacy^[10]

1.17 As noted above, item 8 of Schedule 1 of the bill seeks to introduce section 44A to provide that the Commissioner can cause capability reviews of Agencies to be undertaken. Proposed subsection 44A(11) provides an exception to the requirement to publish the report. A person who causes a capability review into an Agency to be undertaken and receives a written report of the review may remove material from the copy that is published or decide not to publish the report if publishing the material or the report would, or could, reasonably be expected to, damage the security, defence or the international relations of the Commonwealth.

1.18 The committee considers that as undertaking a capability review may involve the collection of information about individuals, the provision engages the right to privacy. Where a bill provides for the collection, use or disclosure of personal information, the committee expects that the explanatory materials to the bill should address why it is appropriate to do so, what safeguards are in place to protect the personal information, and whether these are set out in law or policy.

1.19 The statement of compatibility explains:

Undertaking a capability review of an Agency may necessitate gathering of information about the capabilities and opinions of individuals during the initial analysis stage. The capturing of this information would be subject to any requirements under the Privacy Act 1988 (Cth). Further, it is expected that the published report would focus on the strengths and development areas of the Agency in the context of its future operating environment and not on individual capabilities and would not identify or enable the identification of individuals. For these reasons, the protection of an individual’s right to privacy has been considered and it is deemed there are sufficient protections in place without further requirement under the Bill.^[11]

1.20 While acknowledging the operation of the Privacy Act 1988 and that the intention of a capability review is to report on broader work practices of an Agency rather than individual capabilities, the committee nevertheless considers it may be appropriate to include specific safeguards in the bill to reflect this intention. For example, the bill could be amended to specifically provide that a capability report cannot include information pertaining, or which may identify, individuals who are non‑Senior Executive Service employees.

1.21 In light of the above, the committee requests the minister's detailed advice as to whether the bill can be amended to include safeguards to protect non-Senior Executive Service employees' personal information.

Broad delegation of administrative powers or functions^[12]

1.22 Under  subsection 78(7)  of the Act, an Agency Head may, in writing, delegate to another person any of the Agency Head's powers or functions under the Act (but cannot delegate the power to delegate).  Subsection 78(8)  further provides that an Agency Head cannot delegate powers or functions to an 'outsider' without the prior written consent of the Commissioner. An outsider means a person other than (a) an APS employee, or (b) a person appointed to an office by the Governor-General, or by a Minister, under a law of the Commonwealth.

1.23 Item 11 of Schedule 1 of the bill seeks to introduce paragraph 78(8)(c) to include a member of the Australian Defence Force (ADF). This has the effect that a member of the ADF is not considered an 'outsider' for the purposes of an Agency Head's delegation power under  subsection 78(7) , and therefore an Agency Head may delegate any of their powers or functions to a member of the ADF without the written consent of the Commissioner.

1.24 The powers and functions an Agency Head has under the Act, and therefore that can be delegated, include the ability to, amongst other things:

• determine procedures for determining whether an APS employee (current or former) has breached the Code of Conduct and to impose sanctions for its breach;^[13] and

• determine employment conditions relating to staff, including the power to reduce classification levels and terminate employment.^[14]

1.25 The committee has consistently drawn attention to legislation that allows the delegation of a broad range of administrative powers or functions to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service (SES).

1.26 Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum, and an explanation of who will be exercising the powers and functions, including whether they possess the appropriate training, qualifications, skills or experience.

1.27 The explanatory memorandum explains that the amendment seeks to eliminate unnecessary administration to delegate powers and functions to ADF members, and will bring the Act in line with updates made to the Public Service Regulations 2023.^[15]

1.28 While noting this explanation, the committee considers that a desire for administrative efficiency is not, of itself, sufficient justification for allowing a broad delegation of administrative powers. The committee notes that it is sometimes appropriate to delegate powers to a wide range of people in order to allow for administrative efficiency. However, the committee considers that it would be possible to achieve this without allowing delegation to anyone who is not an 'outsider'. It is not clear to the committee why it would not be possible to provide at least high-level restrictions on either the powers and functions that may be delegated or the persons who may receive delegations. For example, the bill could be amended to include a requirement that the Agency Head can only delegate their functions or powers to members of the SES and must be satisfied that the person has the appropriate training, qualifications or experience to appropriately exercise the delegated power or function.

1.29 Further, there appear to be few safeguards within the bill. The committee does not consider the limitation in subsection 78(11) of the Act, that a person exercising powers or functions under a delegation under section 78 must comply with any directions of the person who delegated the power or function, to be sufficient.

1.30 The committee notes that the Public Service Regulations 2023 introduce similar powers and was similarly the subject of comment regarding the broad delegation of administrative powers or functions by the Senate Standing Committee on the Scrutiny of Delegated Legislation in its Delegated Legislation Monitor 5 of 2023.^[16]

1.31 In light of the above, the committee requests the minister's advice as to:

• why it is necessary and appropriate to allow an Agency Head to make a delegation under subsection 78(7) of the Public Service Act 1999 to any person who is not an 'outsider'; and

• whether the bill can be amended to provide legislative guidance as to the scope of powers that might be delegated, or to further limit the categories of people to whom those powers might be delegated.

1.32 The committee draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

[4] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Public Service Amendment Bill 2023, Scrutiny Digest 7 of 2023; [2023] AUSStaCSBSD 108.

[5] Schedule 1, items 8, 10 and 12, proposed sections 44A, 44B 64A and 78B. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).

[6] Public Service Act 1999, section 7 defines an 'Agency' to mean a Department, an Executive Agency or a Statutory Agency.

[7] Item 1, proposed section 7 seeks to introduce a definition of 'Agency website' to mean a website maintained by the Agency.

[8] Public Service Act 1999, section 7 defines an 'Agency Head' to mean the Secretary of a Department, the Head of an Executive Agency or the Head of a Statutory Agency.

[9] Public Service Act 1999, section 64 provides that the 'Secretaries Board' consists of the Secretary of the Prime Minister's Department, the Secretary of each other Department, the Commissioner, and such other persons as are nominated in writing by the Secretary of the Prime Minister's Department.

[10] Schedule 1, item 8, proposed section 44A. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[11] Statement of compatibility, p. 6.

[12] Schedule 1, item 8, proposed section 44A. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[13] Public Service Act 1999, subsections 15(1) and (3).

[14] See, for example, Public Service Act 1999, sections 22, 23, 24 and 29.

[15] Explanatory memorandum, p. 15.

[16] Senate Standing Committee for the Scrutiny of Delegated Legislation, Delegated Legislation Monitor 5 of 2023 (10 May 2023) pp. 4–5.