Parliamentary Service Act 1999

Part 1—Preliminary

1 Short title

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

2 Commencement

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

3 Objects of this Act

The main objects of this Act are: (a) to establish a non‑partisan Parliamentary Service that is efficient and effective in serving the Parliament; and (b) to provide a legal framework for the effective and fair employment, management and leadership of Parliamentary Service employees; and (c) to define the powers and responsibilities of Secretaries, the Parliamentary Librarian, the Parliamentary Service Commissioner and the Parliamentary Service Merit Protection Commissioner; and (d) to establish rights and obligations of Parliamentary Service employees.

4 This Act binds the Crown

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

5 This Act extends to things outside Australia

(1) This Act extends to acts, omissions, matters and things outside Australia (unless the contrary intention appears). (2) This Act extends to all the Territories.

6 Engagement of employees in a Department

(1) All people engaged on behalf of the Commonwealth as employees to perform functions in a Department must be engaged under this Act, or under the authority of another Act. (2) Subsection (1) does not apply to people engaged on an honorary basis. (3) This section does not, by implication, affect any power that a Secretary might otherwise have to engage persons as independent contractors.

Part 2—Interpretation

7 Interpretation

In this Act, unless the contrary intention appears:

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

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

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

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

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

authorised member of a Parliamentary party means:

(a) the Leader of the Parliamentary party; or
(b) a member of the Parliamentary party authorised, in writing, by the Leader of the Parliamentary party to act under the provision in which the expression occurs.

budget means an annual Commonwealth budget.

caretaker period for a general election has the same meaning as in Schedule 1 to the Charter of Budget Honesty Act 1998.

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

(a) ongoing Parliamentary Service employees;
(b) Parliamentary Service employees engaged for a specified term or for the duration of a specified task;
(c) Parliamentary Service employees engaged for duties that are irregular or intermittent.

Classification Rules means rules made under section 23.

Code of Conduct means:

(a) the rules in section 13; and
(b) any rules and orders made by the Senate or the House of Representatives under section 50 of the Constitution that apply to Parliamentary Service employees.

Commissioner means the Parliamentary Service Commissioner appointed under this Act.

Commonwealth body means:

(a) a Commonwealth entity, or a Commonwealth company, within the meaning of the Public Governance, Performance and Accountability Act 2013; or
(b) the High Court of Australia.

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

designated Parliamentary party, during the caretaker period for a general election, means a political party at least 5 members of which were members of the Parliament of the Commonwealth immediately before the caretaker period.

Note: The Parliamentary Budget Officer may treat 2 or more political parties as a single designated Parliamentary party for the purpose of preparing a post‑election report (see subsection 64MA(2)).

determinations means determinations under this Act other than Part 9.

election commitment, in relation to a general election, means a policy that a Parliamentary party has publicly announced it intends to seek to have implemented after the election.

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

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

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

former Parliamentary Service employee means a person who was, but is no longer, a Parliamentary Service employee.

general election means a general election of the members of the House of Representatives.

independent member, during the caretaker period for a general election, means a person:

(a) who is not a member of a Parliamentary party; and
(b) who intends to be a candidate in the general election, or in a Senate election held on the same day as the general election, without the endorsement of a political party; and
(c) who, immediately before the caretaker period, was a Senator or a Member of the House of Representatives because the person:
(i) had been elected to the Senate or the House of Representatives without the endorsement of a political party; or
(ii) had been chosen or appointed to fill a casual vacancy to the Senate without the endorsement of a political party.

insolvent under administration means a person who:

(a) has become bankrupt; or
(b) has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(c) has compounded with his or her creditors; or
(d) has assigned his or her remuneration for the benefit of his or her creditors.

Joint Committee of Public Accounts and Audit means the Joint Committee of Public Accounts and Audit provided for in the Public Accounts and Audit Committee Act 1951.

joint Department means:

(a) the Department of Parliamentary Services; or
(b) if another Department is designated as the joint Department by the Presiding Officers—that other Department.

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

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

minimum retiring age means:

(a) unless paragraph (b) applies, 55 years; or
(b) if a higher or lower age is prescribed by the determinations—that age.

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

modifications includes additions, omissions and substitutions.

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

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

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

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

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

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

overseas means outside Australia and the Territories.

Parliamentary Budget Office means the Department of the Parliamentary Budget Office established by subsection 64A(1).

Parliamentary Budget Officer means the holder of the office of Parliamentary Budget Officer established by section 64C.

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

Parliamentary party:

(a) means a political party at least one member of which is a member of the Parliament of the Commonwealth; and
(b) during a caretaker period for a general election—includes a political party at least one member of which was a member of the Parliament of the Commonwealth immediately before the caretaker period.

Parliamentary Service means the Australian Parliamentary Service established by subsection 9(1).

Parliamentary Service employee means:

(a) a person engaged as an employee under section 22; or
(b) a person determined under paragraph 72(1)(b) of the Public Service Act 1999 to have become engaged as a Parliamentary Service employee in a Department.

Parliamentary Service employment means employment as a Parliamentary Service employee.

Parliamentary Service Employment Principles means the principles in section 10A.

Parliamentary Service Values means the values in section 10.

political party has the same meaning as in the Commonwealth Electoral Act 1918.

polling day, in relation to an election, means the day fixed for polling in the election.

Presiding Officer or Presiding Officers means:

(a) where the expression is used in connection with a reference to the Department of the Senate or the Clerk of the Senate—the President of the Senate; or
(b) where the expression is used in connection with a reference to the Department of the House of Representatives or the Clerk of that House—the Speaker of the House of Representatives; or
(c) otherwise—the President of the Senate and the Speaker of the House of Representatives acting jointly.

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

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

responsible Secretaries has the same meaning as in Schedule 1 to the Charter of Budget Honesty Act 1998.

Secretary means the Secretary of a Department and includes the Clerk of the Senate, the Clerk of the House of Representatives and the Parliamentary Budget Officer.

Secretary of a Department means:

(a) if the Department is the Department of the Senate—the Clerk of the Senate; or
(b) if the Department is the Department of the House of Representatives—the Clerk of that House; or
(ba) if the Department is the Parliamentary Budget Office—the Parliamentary Budget Officer; or
(c) if the Department is another Department—the Secretary of that Department.

Senate election means an election of Senators for a State, the Australian Capital Territory or the Northern Territory.

SES means the Senior Executive Service established by section 35.

SES employee has the meaning given by section 34.

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

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

8 Relationship with Fair Work Acts

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

Part 3—The Australian Parliamentary Service

9 Constitution and role of the Australian Parliamentary Service

(1) The Australian Parliamentary Service consists of Secretaries, the Parliamentary Librarian and Parliamentary Service employees. (2) The Parliamentary Service serves the Parliament by providing professional support, advice and facilities to each House of the Parliament, to parliamentary committees and to Senators and Members of the House of Representatives, independently of the Executive Government of the Commonwealth. (3) To the extent that section 21 of the Public Governance, Performance and Accountability Act 2013 (which deals with the application of government policy to non‑corporate Commonwealth entities) applies to a Department, that section is subject to subsection (2) of this section.

10 Parliamentary Service Values

Committed to service (1) The Parliamentary Service is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Parliament. Ethical (2) The Parliamentary Service demonstrates leadership, is trustworthy, and acts with integrity, in all that it does. Respectful (3) The Parliamentary Service respects the Parliament and all people, including their rights and their heritage. Accountable (4) The Parliamentary Service performs its functions with probity and is openly accountable for its actions to the Parliament and the Australian community. Impartial (5) The Parliamentary Service is non‑partisan and provides advice that is frank, honest, timely and based on the best available evidence.

10A Parliamentary Service Employment Principles

Parliamentary Service Employment Principles (1) The Parliamentary Service is a career‑based service that: (a) makes fair employment decisions with a fair system of review; and (b) recognises that the usual basis for engagement is as an ongoing Parliamentary Service employee; and (c) makes decisions relating to engagement and promotion that are based on merit; and (d) requires effective performance from each employee; and (e) provides flexible, safe and rewarding workplaces where communication, consultation, cooperation and input from employees on matters that affect their workplaces are valued; and (f) provides workplaces that are free from discrimination, patronage and favouritism; and (g) recognises the diversity of the Australian community and fosters diversity in the workplace. Decisions based on merit (2) For the purposes of paragraph (1)(c), a decision relating to engagement or promotion is based on merit if: (a) all eligible members of the community were given a reasonable opportunity to apply to perform the relevant duties; and (b) an assessment is made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process; and (c) the assessment is based on the relationship between the candidates’ work‑related qualities and the work‑related qualities genuinely required to perform the relevant duties; and (d) the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and (e) the assessment is the primary consideration in making the decision.

Note: Determinations made by the Presiding Officers may determine the scope or application of the Parliamentary Service Employment Principles (see subsections 11C(2) to (4)).

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

The Commissioner may give advice in writing to the Presiding Officers for the purpose of: (a) ensuring that the Parliamentary Service incorporates and upholds the Parliamentary Service Values; and (b) determining where necessary the scope or application of the Parliamentary Service Values.

11A Determinations by Presiding Officers about Parliamentary Service Values

(1) The Presiding Officers may make determinations under section 71 in relation to any of the Parliamentary Service Values for the purpose of: (a) ensuring that the Parliamentary Service incorporates and upholds the Parliamentary Service Values; and (b) determining where necessary the scope or application of the Parliamentary Service Values. (2) However, the Presiding Officers must not make determinations for the purposes of subsection (1) in relation to a Parliamentary Service Value unless: (a) the Commissioner has given advice to the Presiding Officers under section 11 in relation to the Parliamentary Service Value; and (b) the Presiding Officers have had regard to that advice in making the determinations. (3) For the purposes of this Act (other than subsection (1)), the Parliamentary Service Values have effect subject to any restrictions in determinations made for the purposes of subsection (1). Tabling of Commissioner’s advice (4) If the Presiding Officers make determinations in relation to any of the Parliamentary Service Values in accordance with this section, the Presiding Officers must cause to be laid before each House of the Parliament a copy of the advice given by the Commissioner referred to in paragraph (2)(a).

11B Commissioner may give advice to Presiding Officers about employment matters

General (1) The Commissioner may give advice in writing to the Presiding Officers about employment matters relating to Parliamentary Service employees, including the following: (a) engagement; (b) promotion; (c) redeployment; (d) mobility; (e) training schemes; (f) termination. Parliamentary Service Employment Principles (2) The Commissioner may give advice in writing to the Presiding Officers for the purpose of: (a) ensuring that the Parliamentary Service incorporates and upholds the Parliamentary Service Employment Principles; and (b) determining where necessary the scope or application of the Parliamentary Service Employment Principles.

11C Determinations by Presiding Officers about employment matters

Determinations about general employment matters (1) The Presiding Officers may make determinations under section 71 about employment matters relating to Parliamentary Service employees, including the matters referred to in subsection 11B(1). Determinations about Parliamentary Service Employment Principles (2) The Presiding Officers may make determinations under section 71 in relation to any of the Parliamentary Service Employment Principles for the purpose of: (a) ensuring that the Parliamentary Service incorporates and upholds the Parliamentary Service Employment Principles; and (b) determining where necessary the scope or application of the Parliamentary Service Employment Principles. (3) However, the Presiding Officers must not make determinations for the purposes of subsection (2) in relation to a Parliamentary Service Employment Principle unless: (a) the Commissioner has given advice to the Presiding Officers under subsection 11B(2) in relation to the Parliamentary Service Employment Principle; and (b) the Presiding Officers have had regard to that advice in making the determinations. (4) For the purposes of this Act (other than subsection (2) of this section), the Parliamentary Service Employment Principles have effect subject to any restrictions in determinations made for the purposes of that subsection. Tabling of Commissioner’s advice about Parliamentary Service Employment Principles (5) If the Presiding Officers make determinations in relation to any of the Parliamentary Service Employment Principles in accordance with this section, the Presiding Officers must cause to be laid before each House of the Parliament a copy of the advice given by the Commissioner referred to in paragraph (3)(a).

12 Secretaries must promote Parliamentary Service Values and Parliamentary Service Employment Principles

A Secretary must uphold and promote the Parliamentary Service Values and Parliamentary Service Employment Principles.

13 The Parliamentary Service Code of Conduct

(1) A Parliamentary Service employee must behave honestly and with integrity in connection with Parliamentary Service employment. (2) A Parliamentary Service employee must act with care and diligence in connection with Parliamentary Service employment. (3) A Parliamentary Service employee, when acting in connection with Parliamentary Service employment, must treat everyone with respect and courtesy, and without harassment. (4) A Parliamentary Service employee, when acting in connection with Parliamentary Service employment, must comply with all applicable Australian laws. For this purpose, Australian law means: (a) any Act (including this Act), or any instrument having effect under an Act; or (b) any law of a State or Territory, including any instrument having effect under such a law. (5) A Parliamentary Service employee must comply with any lawful and reasonable direction given by someone in the Department in which he or she is employed who has authority to give the direction. (6) A Parliamentary Service employee must maintain appropriate confidentiality about dealings that the employee has with either House of the Parliament, with any committee of either House, with any joint committee of both Houses, with any Senator or Member of the House of Representatives or with the staff of any Senator or Member. (7) A Parliamentary Service employee must: (a) take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee’s Parliamentary Service employment; and (b) disclose details of any material personal interest of the employee in connection with the employee’s Parliamentary Service employment. (8) A Parliamentary Service employee must use the resources of the Commonwealth in a proper manner and for a proper purpose. (9) A Parliamentary Service employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s Parliamentary Service employment. (10) A Parliamentary Service employee must not improperly use inside information or the employee’s duties, status, power or authority: (a) to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or (b) to cause, or seek to cause, detriment to the Department in which the employee is employed, the Commonwealth or any other person. (11) A Parliamentary Service employee must at all times behave in a way that upholds: (a) the Parliamentary Service Values and Parliamentary Service Employment Principles; and (b) the integrity and good reputation of the Department in which he or she is employed and the Parliamentary Service. (12) A Parliamentary Service employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia. (13) A Parliamentary Service employee must comply with any other conduct requirement that is made by either House of the Parliament or by determinations.

14 Secretaries and statutory office holders bound by Code of Conduct

(1) Secretaries are bound by the Code of Conduct in the same way as Parliamentary Service employees. (2) Statutory office holders are bound by the Code of Conduct, subject to any determinations made under subsection (2A). (2A) The determinations may make provision in relation to the extent to which statutory office holders are bound by the Code of Conduct.

Note: The determinations may make provision with respect to different statutory office holders or different classes of statutory office holders (see subsection 33(3A) of the Acts Interpretation Act 1901).

(3) In this section:

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

15 Breaches of the Code of Conduct

Sanctions that may be imposed (1) A Secretary may impose the following sanctions on a Parliamentary Service employee in the relevant Department who is found (under procedures established under subsection (3) of this section or subsection 48A(2)) to have breached the Code of Conduct: (a) termination of employment; (b) reduction in classification; (c) re‑assignment of duties; (d) reduction in salary; (e) deductions from salary, by way of fine; (f) a reprimand.

Note: See sections 29 and 38 in relation to terminating a Parliamentary Service employee’s employment.

(2) The determinations may prescribe limitations on the power of a Secretary to impose sanctions under subsection (1). Providing false or misleading information etc. in connection with engagement as a Parliamentary Service employee (2A) A person who is, or was, a Parliamentary Service employee is taken to have breached the Code of Conduct if the person is found (under procedures established under subsection (3) of this section or subsection 48A(2)) to have, before being engaged as a Parliamentary Service employee: (a) knowingly provided false or misleading information to another Parliamentary Service employee, or to a person acting on behalf of the Commonwealth; or (b) wilfully failed to disclose to another Parliamentary Service employee, or to a person acting on behalf of the Commonwealth, information that the person knew, or ought reasonably to have known, was relevant; or (c) otherwise failed to behave honestly and with integrity; in connection with the person’s engagement as a Parliamentary Service employee.

Note: If the person is a Parliamentary Service employee at the time a finding referred to in paragraph (2A)(a), (b) or (c) is made in relation to the person, the Secretary of the Department in which the person is employed may impose sanctions on the person as permitted by subsection (1).

Procedures for determining whether Parliamentary Service employee, or former Parliamentary Service employee, has breached the Code of Conduct etc. (3) A Secretary must establish written procedures in accordance with this section for determining: (a) whether a Parliamentary Service employee, or a former Parliamentary Service employee, in the relevant Department has breached the Code of Conduct (including by engaging in conduct referred to in subsection (2A)); and (b) the sanction (if any) that is to be imposed under subsection (1) on a Parliamentary Service employee in the relevant Department who is found to have breached the Code of Conduct (including by engaging in conduct referred to in subsection (2A)). (4) The procedures: (a) must comply with basic procedural requirements set out in directions issued by the Commissioner under subsection (6); and (b) must have due regard to procedural fairness. (5) In addition, and without affecting subsection (4), the procedures may be different for: (a) different categories of Parliamentary Service employees or former Parliamentary Service employees; or (b) Parliamentary Service employees, or former Parliamentary Service employees, who: (i) have been convicted of an offence against a Commonwealth, State or Territory law in respect of conduct that is alleged to constitute a breach of the Code of Conduct; or (ii) have been found to have committed such an offence but no conviction is recorded. (6) The Commissioner must, by legislative instrument, issue directions for the purposes of paragraph (4)(a). (7) A Secretary must ensure that the procedures established under subsection (3) are made publicly available. (8) Procedures established under subsection (3) are not legislative instruments.

18 Promotion of employment equity

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

19 Restrictions on directions to Clerks

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