Parliamentary Service Determination 2000/2
We, MARGARET REID, President of the Senate, and NEIL ANDREW, Speaker of the House of Representatives, make the following Determination under subsection 71(1) of the Parliamentary Service Act 1999.
Dated 2000
MARGARET REID NEIL ANDREW
Parliamentary Service Determination 2000/2
Determination
made under the
Parliamentary Service Act 1999
Part 1 Preliminary
1.1 Name of Determination
This Determination is the Parliamentary Service Determination 2000/2.
1.2 Commencement
This Determination commences on the day it is notified in the Gazette.
1.3 Definitions — the dictionary
(1) The dictionary in Schedule 1 defines certain words and expressions, and includes references to certain words and expressions that are defined elsewhere in this Determination (signpost definitions).
Note The dictionary only includes a signpost definition for a word or expression if the word or expression is used in more than one clause.
(2) The dictionary includes certain words and expressions relevant to this Determination that are defined in the Parliamentary Service Act 1999.
Note These definitions are indicated by an asterisk (*) and have been included for information only to assist readers.
(3) A definition in this Determination applies to each use of the word or expression in this Determination, unless the contrary intention appears.
Part 2 The Parliamentary Service
Division 2.1 The Code of Conduct
2.1 Duty not to disclose information (Act s 13)
For the purposes of subsection 13 (13) of the Act, a Parliamentary Service employee must not, except in the course of his or her duties as a Parliamentary Service employee or with the Secretary's express authority, give or disclose, directly or indirectly, to any person any information with respect to the affairs of any other person or body acquired by the employee as a Parliamentary Service employee.
Note Under section 70 of the Crimes Act 1914, it is an offence for a Parliamentary Service employee to publish or communicate information which it is his or her duty not to disclose.
2.2 Statutory office holders bound by the Code of Conduct (Act s 14)
(1) For the purposes of the definition of statutory office holder in subsection 14 (3) of the Act, an office is prescribed if it is in a class of offices that are:
(a) not offices of Secretary; and
(b) held by non-Parliamentary Service employees who are:
(i) acting in relation to the exercise of their direct or indirect supervisory duties in relation to Parliamentary Service employees; and
(ii) engaged or employed under an Act.
(2) For the purposes of the definition of statutory office holder in subsection 14 (3) of the Act, an appointment is prescribed if it is in a class of appointments that:
(a) are not appointments to an office of Secretary; and
(b) relate to non-Parliamentary Service employees who are:
(i) acting in relation to the exercise of their direct or indirect supervisory duties in relation to Parliamentary Service employees; and
(ii) appointed under an Act.
(3) In this clause:
non-Parliamentary Service employee means a person employed or appointed under an Act who is not a Parliamentary Service employee.
2.3 Limitation on sanctions for breaches of Code of Conduct (Act s 15)
(1) This clause applies if:
(a) a Parliamentary Service employee in a Department is found to have breached the Code of Conduct; and
(b) under paragraph 15 (1) (e) of the Act, the Secretary imposes on the employee the sanction of deduction from salary, by way of fine.
(2) For the purposes of subsection 15 (2) of the Act, the deduction must not be more than 2% of the Parliamentary Service employee’s annual salary.
Division 2.2 Whistleblowers’ reports
2.4 Application of Division 2.2
This Division applies to a report made by a Parliamentary Service employee as mentioned in section 16 of the Act.
2.5 To whom whistleblowers' reports may be made
(1) A report may be made as follows:
(a) if the report concerns an alleged breach of the Code of Conduct by a non-SES Parliamentary Service employee in a Department - to the Secretary of the Department;
(b) if the report concerns an alleged breach of the Code of Conduct by an SES Parliamentary Service employee or the Commissioner - to the Merit Protection Commissioner;
(c) if the report concerns an alleged breach of the Code of Conduct by a Secretary or the Merit Protection Commissioner - to the Commissioner.
Note: Where a Secretary, the Merit Protection Commissioner or the Commissioner has authorised another person to receive whistleblowers' reports on his or her behalf, a report may be made to that other person. That person may then deal with it on behalf of the Office Holder in accordance with the authorisation.
(2) A report made other than in accordance with subclause (1) may be referred by the person to whom it was made to the Office Holder mentioned in relation to the report in subclause (1).
(3) An Office Holder to whom a report has been made under subclause (1) or referred under subclause (2), who considers that the report would be more appropriately dealt with by another Office Holder, may refer the report to the other Office Holder.
(4) Office Holders may consult with each other about a report for the purposes of this clause.
(5) A report referred under this Clause is taken to have been made to the person to whom it is last referred.
2.6 How whistleblowers' reports must be handled
(1) Subject to subclause (2), an Office Holder to whom a report is made must, unless he or she considers the report to be frivolous or vexatious:
(a) investigate it; or
(b) authorise another person to investigate it and report to the Office Holder on the investigation.
(2) Where a report is made to the Commissioner, the Commissioner must, unless he or she considers the report to be frivolous or vexatious:
(a) where the report is covered by a standing request issued to the Commissioner by the Presiding Officers - handle the Report in accordance with the request; and
(b) in any other case - refer the matter to the Presiding Officers and act in accordance with any request made by the Presiding Officers.
Note: Under paragraph 40(1)(b) of the Act, it is a function of the Commissioner, if requested by the Presiding Officers, to inquire into and report on matters specified in the request.
(3) Where an Office Holder to whom a report is made considers that the report is frivolous and vexatious in part, the remainder of the report is to be dealt with in accordance with this Division.
2.7 Compliance with procedures
(1) A Secretary may issue procedures for the handling of Whistleblowers' reports in the Secretary's Department.
(2) Procedures issued under subclause (1) must not be inconsistent with directions issued by the Commissioner under subsection 15(4) of the Act or with this Determination.
(3) A person investigating a report alleging a breach of the Code of Conduct by a Parliamentary Service employee in a Department must:
(a) where the Secretary has established procedures under subclause (1) - comply with those procedures; or
(b) in any other case - not act in a manner inconsistent with procedures established by the Secretary of the Department under subsection 15(3) of the Act.
(4) A person investigating a report other than a report of a kind mentioned in subclause (3) must follow procedures not inconsistent with directions issued by the Commissioner under subsection 15(4) of the Act.
2.8 General provisions about whistleblowers' reports
(1) In this Division, Office Holder means a Secretary, the Commissioner or the Merit Protection Commissioner.
(2) An Office Holder may authorise a person to exercise or perform, on behalf of the Office Holder, either generally or in a particular case, all or any of the powers or functions of the Office Holder under this Division, except the power to authorise a person to investigate a report.
(3) A power exercised or function performed by a person authorised by an Office Holder under subclause (2) in accordance with the authorisation is taken to have been exercised or performed by the Office Holder.
Part 3 Parliamentary Service employees
Division 3.1 Employer powers etc of Secretaries
3.1 Promotion of ongoing Parliamentary Service employees — date of effect
(1) A promotion of an ongoing Parliamentary Service employee takes effect in accordance with this clause.
(2) If the promotion decision is not subject to review by a PRC, the promotion of the employee takes effect:
(a) 4 weeks after the promotion is notified in the Gazette; or
(b) if another date of effect is agreed between the employee, the Secretary and, if the employee is moving from another Department, the current Secretary — on the agreed date of effect.
(3) If the promotion decision is subject to review by a PRC, the promotion of the employee takes effect in accordance with subclause (4), (5) or (6).
(4) If no application for review by a PRC is made before the end of the application period, the promotion of the employee takes effect:
(a) 4 weeks after the promotion is notified in the Gazette; or
(b) if another date of effect (except a date before the end of the application period) is agreed between the employee, the Secretary and, if the employee is moving from another Department, the current Secretary — on the agreed date of effect.
(5) If an application for review by a PRC is made before the end of the application period, and the application is withdrawn before the PRC makes a decision on the application, the promotion of the employee takes effect:
(a) the later of 2 weeks after the Secretary is notified of the withdrawal of the application and the date of effect of the promotion if no application for review had been made; or
(b) if another date of effect is agreed between the employee, the Secretary and, if the employee is moving from another Department, the current Secretary — on the agreed date of effect.
(6) If an application for review by a PRC is made before the end of the application period and not withdrawn, the promotion takes effect in accordance with the review decision:
(a) 4 weeks after the Secretary is notified of the review decision; or
(b) if another date of effect is agreed between the employee, the Secretary and, if the employee is moving from another Department, the current Secretary — on the agreed date of effect.
(7) In this clause:
application period means the period in which an application for review of a promotion decision may be made (including any extension of that period).
Note Determination 1999/2 provides for review of certain Parliamentary Service promotion decisions by a PRC.
3.2 Voluntary moves between Departments
(1) This clause applies if a Secretary (the new Secretary) enters into a written agreement with an ongoing Parliamentary Service employee for the employee to move to the Secretary’s Department from another Department (the current Department).
(2) Subject to this clause, the agreement has effect according to its terms.
(3) If the move is not a promotion, the Parliamentary Service employee must tell the Secretary of the current Department (the current Secretary) about the agreement before the end of the next working day after the agreement is made.
(4) If the move is not a promotion, it takes effect:
(a) 4 weeks after the day when the current Secretary is told of the agreement; or
(b) if another date of effect is agreed between the new Secretary, current Secretary and employee — on the agreed date of effect.
(5) Subclause (3) has effect in relation to the move of an SES employee subject to any guidelines issued by the Commissioner under section 36 of the Act.
(6) If the move is a promotion, it takes effect as provided by clause 3.1.
3.3 Notification in Gazette of certain employment decisions
The following decisions must be notified in the Gazette:
(a) engagement of a person as an ongoing Parliamentary Service employee;
(b) engagement of a person as a Parliamentary Service employee for a specified term of more than 12 months or for the duration of a specified task that is reasonably estimated to take more than 12 months;
(c) in relation to a person who is engaged as a Parliamentary Service employee for a specified term of less than 12 months — extension of the engagement that results in the term of engagement being more than 12 months;
(d) movement (other than a promotion or temporary movement) by an ongoing Parliamentary Service employee to perform duties in another Department if the opportunity to apply for the relevant employment was notified in the Gazette;
(e) assignment of duties (other than a temporary assignment of duties or an assignment of duties because of a promotion) to an ongoing Parliamentary Service employee in an Department if the opportunity to apply for the relevant employment was notified in the Gazette;
(f) assignment to an SES employee of duties at a lower classification without the employee’s agreement;
(g) promotion of an ongoing Parliamentary Service employee;
(h) termination of the employment of an ongoing Parliamentary Service employee under section 29 of the Act;
(i) retirement of an SES employee within the period specified in a notice given to the employee under section 37 of the Act;
(j) decision of a PRC on review of a promotion decision changing the promotion decision.
Division 3.2 Right of return for election candidates
3.4 Prescribed elections (Act s 32)
For the purposes of paragraph 32 (1) (a) of the Act, the following elections are prescribed:
(a) an election for a member of a House of the Parliament of the Commonwealth or of a State;
(b) an election for a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory;
(c) a zone election under Division 7 of Part 3 of the Aboriginal and Torres Strait Islander Commission Act 1989;
(d) an election for a member of the Torres Strait Regional Authority, established under section 142 of the Aboriginal and Torres Strait Islander Commission Act 1989.
3.5 Entitlement to return to Parliamentary Service employment (Act s 32)
(1) A person to whom section 32 of the Act applies is entitled to be again engaged as a Parliamentary Service employee if, within the required time, the person applies to the Secretary of the Department in which the person was employed when the person resigned.
(2) However, the person is not entitled to be again engaged as a Parliamentary Service employee if:
(a) before the person resigned to contest the election, the person was engaged for a specified term or for the duration of a specified task; and
(b) when the person applies to be again engaged as a Parliamentary Service employee, the term (including any extension of the term) has expired or the task has been completed.
(3) In subclause (1):
required time means:
(a) for a person who contested an election the result of which is not disputed — 2 months after the declaration of the result of the election; and
(b) for a person who contested an election the result of which is disputed:
(i) if the election was an election mentioned in paragraph 3.4 (c) or (d) — 2 months after the Federal Court of Australia makes a final decision on the petition disputing the result, or the petition is withdrawn; and
(ii) in any other case — 2 months after a court of disputed returns decides the petition disputing the result, or the petition is withdrawn or lapses.
3.6 Entitlements on return to Parliamentary Service employment (Act s 32)
(1) This clause applies to a person to whom section 32 of the Act applies who is entitled to be again engaged as a Parliamentary Service employee.
(2) The person must be engaged on the basis on which the person was engaged before resigning to contest the election.
(3) The person must be engaged at the classification the person had before resigning to contest the election (the previous classification).
(4) The person must be assigned duties that are the same as, or similar to, the duties the person had before resigning to contest the election or, if such duties are unavailable, other duties at the previous classification.
(5) The person must be engaged on:
(a) the terms and conditions of employment that applied to the person when the person resigned; or
(b) if the remuneration, or another term or condition, applying to the person’s previous classification has changed since the person resigned — the changed terms and conditions.
(6) The period between the person’s resignation and the time the person is again engaged as a Parliamentary Service employee counts as service for the purposes of the accrual of leave entitlements.
Dictionary
(clause 1.3)
Note Words and expressions defined in the Parliamentary Service Act 1999 are indicated by an asterisk (*) (see subclause 1.3(3). References in these to sections are to sections of the Act.
Act means the Parliamentary Service Act 1999.
*Commissioner means the Parliamentary Service Commissioner appointed under the Act.
employment means Parliamentary Service employment.
*Merit Protection Commissioner means the Parliamentary Service Merit Protection Commissioner appointed under the Act.
*Presiding Officers means:
(a) where the expression is used in connection with a reference to the Department of the Senate or the Clerk of the Senate - the President of the Senate; or
(b) where the expression is used in connection with a reference to the Department of the House of Representatives or the Clerk of that House - the Speaker of the House of Representatives; or
(c) otherwise - the President of the Senate and the Speaker of the House of Representatives acting jointly.
Promotion Review Committee, or PRC, means a Promotion Review Committee established under Parliamentary Service Determination 1999/2.
*SES means the Senior Executive Service established by section 35 of the Act.
*SES employee has the meaning given by section 34 of the Act.
*Statutory office holder has the meaning given by section 14 of the Act..
Note
1. Made by the Presiding Officers on 29 November 2000, and notified in the © Commonwealth of Australia Gazette on 13 December 2000.