Parliamentary Service Act 1999

The Act directly affects Parliamentary Service employees across all parliamentary departments, including:

• the Clerks of the Senate and House of Representatives and their departmental staff;
• staff of the Department of Parliamentary Services (the joint Department);
• staff of the Parliamentary Budget Office;
• staff of the Parliamentary Library (who sit within the joint Department under the Parliamentary Librarian);
• Senators and Members of the House of Representatives who request policy costings from the Parliamentary Budget Office or whose staff work within parliamentary departments.

The Parliamentary Service Commissioner and the Parliamentary Service Merit Protection Commissioner are also established and regulated by this Act and are bound by its obligations. Former Parliamentary Service employees remain subject to Code of Conduct investigations and can be found to have breached the Code in relation to pre-engagement conduct under section 15(2A).

Employees. Every Parliamentary Service employee is bound by all 13 limbs of the Code of Conduct in section 13. Obligations run while the person is employed and, in relation to pre-engagement conduct, may be investigated after engagement has ended (section 15(2A)).

Secretaries. Under section 12, Secretaries must uphold and promote the Parliamentary Service Values and Employment Principles. Section 57(2) lists detailed management responsibilities: managing the department's affairs efficiently, effectively, economically and ethically; advising the Presiding Officer; implementing compliance measures; providing leadership; and assisting the Presiding Officer to fulfil accountability obligations to the Parliament.

Conduct procedures. Section 15(3) requires each Secretary to establish written procedures for determining whether an employee or former employee has breached the Code and for determining any sanction. Those procedures must comply with Commissioner's directions on basic procedural requirements (section 15(4)(a) and (6)) and must have due regard to procedural fairness (section 15(4)(b)). The procedures must be made publicly available (section 15(7)).

Parliamentary Budget Officer. The Parliamentary Budget Officer must prepare policy costings in response to requests from Senators and Members outside the caretaker period (section 64H), from authorised party members and independents during the caretaker period (section 64J), and must prepare a post-election report within the deadlines set by section 64MA(1A). The Parliamentary Budget Officer must use the economic forecasts and parameters from Charter of Budget Honesty Act 1998 reports when performing costing functions (section 64E(3)).

Confidentiality. Section 64V prohibits entrusted persons from disclosing information relating to confidential policy costing requests. Sections 65AA and 65AB create parallel prohibitions for information obtained by Commissioner and Merit Protection Commissioner respectively in connection with their inquiry functions. Section 65AC provides that giving information to the Commissioner is not admissible in proceedings against the person giving it.

Secretaries. Section 21 gives each Secretary, on behalf of the Commonwealth, all the rights, duties and powers of an employer. Section 22 allows engagement as ongoing, for a specified term, or for irregular/intermittent duties. Section 24 allows Secretaries to determine terms and conditions in writing, subject to fair work instruments and the National Employment Standards. Section 29 allows Secretaries to terminate employment at any time, with eight prescribed grounds for ongoing employees.

For SES employees (the Senior Executive Service established by section 35), section 38 imposes an additional constraint: a Secretary cannot terminate an SES employee's employment without a certificate from the Commissioner confirming procedural compliance and that termination is in the public interest.

Commissioner. Section 40 gives the Commissioner a range of functions. The Commissioner may give advice to Presiding Officers on Values and Employment Principles (sections 11 and 11B), may inquire into matters referred by the Presiding Officers, may inquire into public interest disclosures under the Public Interest Disclosure Act 2013 to the extent they relate to Code of Conduct breaches (section 40(1)(c)), and must certify SES terminations (section 38). Section 41 applies relevant provisions of the Auditor-General Act 1997 to Commissioner inquiries, giving the Commissioner compulsory examination powers. The Commissioner is expressly not subject to direction from the Executive Government in performing functions (section 40(3)).

Merit Protection Commissioner. Section 48 sets out functions including inquiring into Code of Conduct breaches by the Commissioner, inquiring into Parliamentary Service actions at the Presiding Officers' request, and determining on request from a Secretary whether an employee or former employee breached the Code (section 48(1)(ca) and section 48A). Under section 48A, the Merit Protection Commissioner may conduct an independent investigation where the employee or former employee consents, with the same powers as the Secretary of the relevant department (section 48A(6)).

Presiding Officers. The Presiding Officers may issue legislative instruments setting terms and conditions for exceptional circumstances (section 24(3)), issue directions on employment matters (section 20), and appoint Commissioners and Secretaries. Under sections 11A and 11C, the Presiding Officers may determine the scope or application of the Parliamentary Service Values and Employment Principles, but only after receiving Commissioner's advice (sections 11A(2) and 11C(3)).

Parliamentary Budget Officer. Section 64F allows arrangements with Commonwealth bodies to obtain information. Section 64G allows the Parliamentary Budget Officer to issue costing principles. Section 64KA provides costing information-gathering powers during the caretaker period, requiring Commonwealth body heads to comply unless it is impractical, unlawful, or would disclose confidential commercial information or prejudice national security (section 64KA(3)).

The Act does not create criminal penalties for ordinary employee misconduct. Enforcement of the Code of Conduct operates through the employment sanctions regime in section 15(1), which allows Secretaries to impose:

• termination of employment (paragraph (a));
• reduction in classification (paragraph (b));
• reassignment of duties (paragraph (c));
• reduction in salary (paragraph (d));
• deductions from salary by way of fine (paragraph (e));
• a reprimand (paragraph (f)).

Determinations may prescribe limitations on the Secretary's power to impose these sanctions (section 15(2)). Procedures under section 15(3) must ensure that any reduction in classification under a fair work instrument or determination follows prescribed procedures, otherwise it is of no effect (section 23(5)).

For financial misconduct, section 31 allows recovery of non-Commonwealth remuneration received in connection with parliamentary duties as a debt to the Commonwealth.

The confidentiality obligations in Part 7A (sections 65AA and 65AB) are backed by the general Commonwealth criminal law. Both sections note that section 122.4 of the Criminal Code creates an offence for disclosure of information by Commonwealth officers.

There is no formal penalty unit scale in the Act for administrative sanctions, which is consistent with the approach of treating employment discipline as a workplace matter rather than a criminal one.

Appointment of Clerks. Section 58(3) prescribes terms of 10 years for the Clerks of the Senate and House of Representatives, with no eligibility for reappointment.

Appointment of other Secretaries. Section 59(1) prescribes 5-year terms for other departmental Secretaries, with the Presiding Officers required to obtain a Commissioner's report before appointing (section 59(2)).

Termination of Clerks. Section 60(1) and (2) require the relevant House to pass a resolution with at least 6 sitting days' notice. Only three grounds support termination: misbehaviour, incapacity, or insolvency (section 60(3)). Section 62 allows the relevant Presiding Officer to suspend a Clerk pending possible termination, with the suspension expiring after a prescribed number of sitting days unless the House acts.

Commissioner's appointment. Section 43(1) provides for Commissioner appointment for up to 5 years. Section 45 mirrors the Clerk termination process: removal requires an address from both Houses in the same session, or is mandatory on insolvency.

Parliamentary Budget Officer's appointment. Section 64X(1) sets a 4-year term with eligibility for reappointment up to a total of 8 years. Section 64XA requires the Presiding Officers to refer the proposed appointment to the Joint Committee of Public Accounts and Audit, which must approve or reject within 14 days (or 44 days if it notifies the need for more time). The Committee is taken to have approved if it does not act within the required period (section 64XA(7)).

Post-election report. Section 64MA(1A) requires the post-election report to be prepared before the later of 30 days after the end of the caretaker period and 7 days before the first sitting day. Designated parties must give the Parliamentary Budget Officer a list of election commitments by 5 pm the day before polling day (section 64MA(3)). The Parliamentary Budget Officer must give each party a draft of their section of the report at least 48 hours before public release (section 64MC(2)).

Annual reports. Section 65 requires each departmental Secretary to give an annual report to the relevant Presiding Officer after the end of each financial year. Section 42 requires the Commissioner to give an annual report for presentation to the Parliament. The Merit Protection Commissioner's annual report is incorporated into the Commissioner's report (section 49(3)).

The Act expressly interacts with a number of other statutes.

Public Service Act 1999. The Parliamentary Service is modelled on, but separate from, the Australian Public Service. Section 8 makes this Act subject to the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Definitions in Part 2 cross-reference APS employee, ongoing APS employee, and non-ongoing APS employee from the Public Service Act 1999. Mobility between the two services is facilitated by sections 26, 26A and 27.

Fair Work Act 2009. The Act is explicitly subject to the Fair Work Act (section 8(1)). Enterprise agreements, modern awards, the National Employment Standards and the Australian Fair Pay and Conditions Standard all set floors beneath which Secretary determinations under section 24 cannot reduce entitlements (section 24(1A)).

Auditor-General Act 1997. Sections 32, 33 and 35 of that Act are applied by reference to Commissioner inquiries (section 41) and Merit Protection Commissioner inquiries under section 48(2), giving both commissioners power to compel production of documents and examination of witnesses.

Public Interest Disclosure Act 2013. Section 40(1)(c) and section 48(1)(a) both authorise the Commissioner and Merit Protection Commissioner to inquire into public interest disclosures to the extent they relate to alleged Code of Conduct breaches.

Charter of Budget Honesty Act 1998. The Parliamentary Budget Office provisions in Division 2 of Part 7 are directly linked to this Act. The Parliamentary Budget Officer must use the economic parameters from that Act's reporting regime (section 64E(3)), must coordinate with it during the caretaker period to avoid double-counting policy costings (sections 64J(3), (4) and 64K), and the responsible Secretaries must provide Charter reports to the Parliamentary Budget Officer after the election (section 64MB(6)).

Public Governance, Performance and Accountability Act 2013. Section 9(3) limits the application of that Act to parliamentary departments to preserve parliamentary independence. Section 57(3) notes that the Secretary's management responsibilities do not affect their obligations under the PGPA Act.

Copyright Act 1968. Section 38I deems the Parliamentary Library to be a library whose principal purpose is to provide library services for Members of Parliament, engaging sections 48A and 104A of that Act.

Freedom of Information Act 1982. Section 68A provides that parliamentary departments and certain office holders are not "prescribed authorities" for the purposes of the FOI Act.

Acts Interpretation Act 1901. Acting appointment provisions throughout the Act (sections 46, 53, 64, 64XF) refer to sections 33AB and 33A of the Acts Interpretation Act 1901 for the rules governing acting arrangements.

Legislation Act 2003. Several legislative instruments made under the Act are exempt from disallowance (section 42) and sunsetting (Part 4 of Chapter 3 of the Legislation Act 2003), including General Directions to Secretaries (section 20(5)) and Classification Rules (section 23(1)).

The Presiding Officers' role is not ministerial. Decisions that in the public service would be made by a Minister are here made by the Presiding Officers jointly. This includes appointments, terminations, terms and conditions for Secretaries, and most legislative instruments. Practitioners need to remember that the correct decision-maker is the President of the Senate and the Speaker acting jointly (or the individual Presiding Officer where the provision is chamber-specific).

SES terminations require a Commissioner's certificate. Section 38 is a hard constraint. A Secretary who terminates an SES employee without the Commissioner's certificate has not validly terminated the employment. The certificate must confirm both procedural compliance with the determinations and the Commissioner's opinion that termination is in the public interest.

Parliamentary departments are not subject to executive government policy direction in the same way as APS agencies. Section 9(2) is explicit. The Parliamentary Budget Officer is additionally protected from direction by a Presiding Officer in relation to the performance of costing functions (section 64P). This has practical consequences for any person seeking to apply whole-of-government policies to parliamentary staff.

Section 15 sanctions procedures must be in writing and publicly available. A sanction imposed without procedures that comply with the Commissioner's directions under section 15(6) may be vulnerable to challenge under the Administrative Decisions (Judicial Review) Act 1977, which applies to Merit Protection Commissioner decisions (noted in section 48A).

Non-citizenship is a presumption against engagement. Section 22(8) says a Secretary must not engage a non-Australian citizen as a Parliamentary Service employee unless the Secretary considers it appropriate. This is not an absolute bar, but the default position is citizenship required.

The Parliamentary Budget Office confidentiality regime has criminal law backstop. While the Act does not itself create a penalty unit offence for breaching section 64V, the note to sections 65AA and 65AB flags that section 122.4 of the Criminal Code applies. Entrusted persons of the Parliamentary Budget Office are subject to the same risk.

Forfeiture of additional remuneration is automatic once notice is given. Under section 31(1) and (2), once a Secretary gives written notice, the notified amount is taken to have been received on behalf of the Commonwealth and is recoverable as a debt. The employee has no right to retain it.

Example 1: Code of Conduct investigation and sanction. A Parliamentary Service employee in the Department of the Senate is alleged to have provided false information in a response to an official request (a potential breach of section 13(9)). The Clerk of the Senate, as Secretary, must investigate using the written procedures established under section 15(3). Those procedures must comply with the Commissioner's directions on basic procedural requirements and must afford the employee procedural fairness. If a breach is found, available sanctions include termination, reduction in classification, reassignment, reduction in salary, a fine by salary deduction, or a reprimand. The employee cannot be sanctioned outside these options unless the determinations prescribe otherwise.

Example 2: Mobility from APS to Parliamentary Service. An ongoing APS employee at a federal department wishes to move to the Department of Parliamentary Services. Section 26(2) confirms they are eligible for engagement as an ongoing Parliamentary Service employee. On moving, section 26(4) provides they stop being an APS employee when engaged as a Parliamentary Service employee. They retain accrued annual leave and personal or carer's leave entitlements under section 26(3). Long service leave and maternity leave entitlements follow separate Commonwealth legislation.

Example 3: Policy costing request during caretaker period. During a caretaker period for a general election, an authorised member of a parliamentary party requests the Parliamentary Budget Officer to cost a publicly announced policy under section 64J(2). The Parliamentary Budget Officer must check with the responsible Secretaries whether the same policy has been costed under the Charter of Budget Honesty Act 1998 (section 64K). If it has, the Parliamentary Budget Officer must not prepare a second costing. If it has not been costed, the Parliamentary Budget Officer must publicly release the request and the costing before polling day (section 64L(2)), failing which a statement must be released before polling day and the request is taken to be withdrawn (section 64L(3)).

Example 4: Termination of the Parliamentary Budget Officer. The Presiding Officers wish to remove the Parliamentary Budget Officer. Under section 64XE(1), this requires each House to present an address to the Presiding Officers in the same session on the ground of misbehaviour or mental or physical incapacity. Mandatory removal occurs only on insolvency under administration (section 64XE(2)). This protects the independence of the office from political removal for other reasons.