Output 1: APS policy and employment services

Output 1.1: Ministerial and Parliamentary services

This component of Output 1 aims to provide high quality, timely advice and support to the Government on APS policy.

The Commission provided advice and support to the Minister and his office on a range of APS policy and legislation issues during the year. The Commission forwarded 52 formal submissions to the Minister and actioned 28 items of ministerial correspondence or representations. While the number of briefs to the Minister fell slightly on last year’s figure, the demand for responses to other ministerial correspondence for this output continued to rise steadily.

The Commission has in place documented performance standards for the provision of advice to the Minister. Briefs to the Minister are assessed by the Minister against these standards and rated in accordance with a 1 to 5 scale (a rating of 5 is excellent). Ratings are given in relation to timeliness, presentation and quality of policy advice.

In 2003—04, the Minister provided ratings for 42 of the 52 briefs forwarded for his consideration. Of these, all briefs met the required standard: 16 briefs received a rating of 3, 25 received a rating of 4 while 1 brief received a rating of 5. The ratings system together with written and oral feedback has continued to prove useful in providing employees who brief the Minister with feedback to improve the timeliness, presentation and quality of advice.

Major policy issues

A major focus of the Commission’s policy advice throughout the year continued to be the operation of the PS Act and supporting legislation and documentation. Some issues required amendments to the Public Service Regulations (PS Regulations) and the Public Service Commissioner’s Directions (Commissioner’s Directions).

With effect from 15 September 2003, amendments were made to the Commissioner’s Directions which allow an Agency Head to engage, as an ongoing APS employee, a person who has received a redundancy benefit from the Commonwealth within the preceding 12 months. While the amendments to the Commissioner’s Directions allow some additional discretion in this area, they also set out certain criteria that must be met before such an engagement can be approved; the expectation is that such engagements will be made only in exceptional circumstances.
In response to a request from the Senate Standing Committee on Regulations and Ordinances that Part 8A of the PS Regulations be amended to cover the contingency of a judgement debt being incurred by an Agency Head, a minor amendment was made to the PS Regulations, with effect from 11 December 2003.
As foreshadowed last year, the agreed mobility arrangements between the APS and the Parliamentary Service were finalised in 2003, with necessary changes to the PS Regulations and the Commissioner’s Directions effective from 23 December 2003.
With effect from 18 June 2004, amendments to the PS Regulations and the Commissioner’s Directions clarified the procedures to be applied in relation to the re-engagement of an APS employee who resigns to contest an election and, if unsuccessful, applies to be re-engaged as an APS employee. Changes were also made to the way in which the period between resignation and re-engagement is treated.

The Commissioner also provided guidance as described below in relation to the disclosure of information (the Bennett case) and an inquiry by the Australian Law Reform Commission into the management of classified and security-sensitive information.

Disclosure of information

On 10 December 2003, Finn J handed down his decision in the Federal Court in the case of Bennett v HREOC 2003 FCA 143. Finn J found that regulation 7(13) of the then Public Service Regulations (made under the Public Service Act 1922) was invalid in that it infringed Mr Bennett’s implied freedom of political communication. The decision casts doubt on the validity of regulation 2.1 of the Public Service Regulations 1999, which broadly prohibits the disclosure of official information by public servants. The decision was significant, as regulation 2.1 is regarded as part of the APS Code of Conduct.

On 19 December 2003, the Commissioner provided guidance to all Agency Heads about the implications of the decision, based on advice from the Australian Government Solicitor. In that advice the Commissioner drew attention to other sources of law that control the disclosure of information by public servants and emphasised that the decision of the Federal Court did not remove the obligation of APS employees to keep certain information confidential.

Work on a replacement regulation to 2.1 was taken forward as a matter of priority in the first half of 2004. Work also began on consequential amendments to APS Values and Code of Conduct in practice: a guide to official conduct for APS employees and Agency Heads. At the time of preparation of this Report, the proposed changes are close to finalisation following consultation with all departments and detailed advice from the AGS.

Australian Law Reform Commission Report: Keeping Secrets–The Protection of Classified and Security Sensitive Information

In April 2003 the Australian Law Reform Commission (ALRC) began an inquiry into protecting classified and security-sensitive information in the course of investigations and legal proceedings and in other contexts. The Commissioner made a submission to the inquiry in March 2004, following the publication of a discussion paper by the ALRC. The ALRC’s final report Keeping Secrets was released on 27 June 2004. The report makes a number of recommendations relating to the responsibilities of the Public Service Commissioner, including that the Government should review regulation 2.1 of the Public Service Regulations.

Parliamentary inquiries

During 2003—04, the Commission was involved in two Parliamentary Inquiries initiated by the Senate.

Senate Inquiry into Recruitment and Training in the APS

The Senate Standing Committee on Finance and Public Administration’s References Committee report on Recruitment and Training in the Australian Public Service was tabled in the Senate on 19 September 2003.

The Inquiry considered recruitment, learning and development issues, in particular whether the current devolved arrangements for recruitment, learning and development within the APS are working effectively across different agencies. It also considered the Public Service Commissioner’s role in co-ordinating and supporting recruitment and career development opportunities in the APS. The Committee’s report included 28 recommendations.

The Commission co-ordinated the draft Government response to the report in consultation with Portfolio Secretaries and Agency Heads of the other major agencies.

Senate Inquiry into Members of Parliament (Staff) Act 1984

On 19 March 2003, the Senate asked the Senate Standing Committee on Finance and Public Administration’s References Committee to inquire into and report on the Members of Parliament (Staff) Act 1984 (MoP(S) Act). The Committee reported on 16 October 2003, following public hearings in Canberra on 2 and 3 September 2003. The Commissioner gave evidence in relation to his statutory responsibilities, and has subsequently passed advice to the Department of the Prime Minister and Cabinet on the possible Government response to the Report.

TABLE 3: Performance information–Output Component 1.1.1

Target	Result
Quantity Number of items to Ministers: • Responses to ministerial correspondence –estimate 36 • Question time briefs–estimate 5 • Ministerial requests for briefings –estimate 24	Exceeded estimates with 80 submissions or responses to ministerial correspondence and 6 new Question Time briefs.
Quality Percentage of items rated satisfactory or higher in terms of relevance, quality and timeliness. Target is 100%.	Achieved for all rated briefs with 62% rated at a higher than satisfactory standard.

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