Public Administration Amendment (Public Sector Improvement) Bill 2013

Amended Print

EXPLANATORY MEMORANDUM

General

The main purpose of the Bill is to establish the Victorian Public Sector Commission to replace the State Services Authority.

The Commission will have a new governance structure with a single Commissioner supported by an Advisory Board. This is in contrast to the State Services Authority which included a Chairperson, the Public Sector Standards Commissioner and other appointed members.

The Commission will have two objectives—

Objective 1 is to strengthen the efficiency, effectiveness and capability of the public sector; and

Objective 2 is to maintain and advocate for public sector professionalism and integrity.

In furtherance of the first objective, the Commission will continue to perform functions of the State Services Authority such as reviews and inquiries, project work, provision of advice and data collection. In addition, the Commission will conduct research and disseminate best practice in relation to public sector administration, governance, service delivery and workforce management and development.

In furtherance of the second objective, the Commission will perform those functions currently performed by the Public Sector Standards Commissioner such as issuing binding codes of conduct and employment standards and overseeing the public sector's compliance with these, and reviewing employment related actions. The Commission will have an additional advocacy function in respect of public sector professionalism and integrity and maintaining a register of lobbyists.

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Clause Notes

PART 1—PRELIMINARY

Clause 1 provides that the main purpose of the Bill is to amend the Public Administration Act 2004 to provide for the establishment of the Victorian Public Sector Commission (the Commission) and to make other amendments to improve public sector administration and governance.

Clause 2 provides that the commencement of the Act is on a day or days to be proclaimed with a default commencement date of 1 July 2014.

PART 2—AMENDMENTS RELATING TO THE VICTORIAN PUBLIC SECTOR COMMISSION

Division 1—Amendment of Public Administration Act

Clause 3 inserts a new section 1(b) in the Public Administration Act 2004 that provides that a purpose of the Public Administration Act 2004 is to establish the Commission.

Clause 4 amends section 4 of the Public Administration Act 2004 to repeal the definition of Authority to reflect the abolition of the State Services Authority, amend the definitions which will continue to operate in relation to the Commission and insert new definitions for the Commission, Commissioner (the Victorian Public Sector Commissioner) and Councillor.

Clause 5 amends the note at the foot of section 11 of the Public Administration Act 2004 to reflect the replacement of the State Services Authority with the Commission.

Clause 6 amends section 17 of the Public Administration Act 2004 so that the Commission, rather than the State Services Authority, must review and report on the performance of public service body Heads at the direction of the Premier.

Clause 7 inserts a new section 19(4) in the Public Administration Act 2004. Section 19 provides for acting arrangements for public service body Heads. New section 19(4) removes the application of those provisions to the Commission as there will be separate acting arrangements provided in relation to the Commission in

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new Part 4 of the Public Administration Act 2004, to be inserted by clause 10 of the Bill.

Clause 8 amends section 20(3)(d) of the Public Administration Act 2004 to reflect that public service body Heads exercising employment powers must conform with the public sector employment standards issued by the Commission, rather than the Public Sector Standards Commissioner.

Clause 9 amends section 29(1) of the Public Administration Act 2004 to reflect that before transferring a public service body Head to other duties the Premier must consult the Commissioner, rather than the State Services Authority.

Clause 10 substitutes a new Part 4 into the Public Administration Act 2004. The current Part 4 contains provisions that apply to the State Services Authority and the new Part 4 replaces these with provisions applying to the Commission.

New Division 1—The Commission

New section 37 establishes the Commission and provides that it is to be constituted by a single Commissioner.

New section 38 provides the Commission with two objectives. Paragraph (a) sets out the first which is to strengthen the efficiency, effectiveness and capability of the public sector in order to meet existing and emerging needs and deliver high quality services. The second, in paragraph (b), is to maintain, and advocate for, public sector professionalism and integrity.

New section 39 sets out the functions of the Commission that are related to its first objective. The Commission's functions are to assess, provide advice and support, conduct research and disseminate best practice on issues relevant to public sector administration, governance, service delivery and workforce management and development. This function will include activities similar to the State Services Authority's systems reviews. The Commission will also collect and report on whole-of-government data and conduct inquiries as directed by the Premier. The Commission must perform these functions when requested by the Premier, and may perform them (with the exception of inquiries) when requested by a Minister or a public sector body.

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New section 40 sets out the functions of the Commission related to its second objective. The Commission's functions are to advocate for an apolitical and professional public sector, issue and apply codes of conduct and standards, monitor and report to public sector body Heads on compliance with public sector values and review employment related actions. These functions will not be subject to Ministerial direction or control. The Commission will also maintain a register of lobbyists and a register of instruments.

New section 41 sets out the powers of the Commission. The Commission has the power to do all things necessary or convenient in pursuance of its functions and a specific power to require public sector bodies to provide documents and information in a particular form. Documents and information provided to the Commission may be used by the Commission in relation to all its objectives and functions.

New section 42 sets out the obligations of public sector bodies to cooperate with the Commission and provide documents and information when requested.

New Division 2—Victorian Public Sector Commissioner

New section 43 provides for the appointment of an eligible person as the Commissioner by the Governor in Council on the recommendation of the Premier.

New section 44 provides that the terms and conditions of the Commissioner's appointment are as specified in the instrument of appointment. The Commissioner holds office for a minimum of three and a maximum of five years and must not engage in other employment, carry on any business, profession or trade or hold any other office or position, paid or unpaid, without the approval of the Premier.

New section 45 provides the circumstances in which the Commissioner ceases to hold office.

New section 46 provides the grounds on which the Governor in Council, on the recommendation of the Premier, may remove the Commissioner from office.

New section 47 provides for acting arrangements in the case of a vacancy in the office of Commissioner or the absence or inability

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of the Commissioner to perform his or her duties. The Governor in Council, on the recommendation of the Premier, may appoint an eligible person to act for a period of up to 12 months. For shorter absences, the Premier may appoint an eligible person for up to three months but must not make consecutive short term appointments. This is to ensure short term acting arrangements are not used to circumvent the tenure and independence of the position.

The eligibility requirements for acting arrangements are the same as the eligibility requirements for appointment as Commissioner and the terms and conditions are set out in the instrument of appointment. An acting Commissioner has the same powers and functions of the Commissioner and is subject to the same obligations.

New section 48 provides that the Commissioner has all the powers and functions of the Commission.

New section 49 provides that the Commissioner may delegate certain powers and functions to persons employed or engaged by the Commission with specific exceptions to ensure that those activities carry the imprimatur of the Commission as a body.

New section 50 sets out a process for the Commissioner to deal with conflicts of interest which emerge in the performance of certain activities by the Commission. If the Commissioner considers that he or she has a conflict of interest, the Secretary to the Department of Premier and Cabinet must be notified and must authorise a person to conduct the activities. This provision serves to protect the integrity and reputation of the Commission.

New section 51 provides the Commission with employment powers and the ability to engage contractors, agents or other persons.

New Division 3—Advisory Board

New section 52 establishes an Advisory Board consisting of the Secretary to the Department of Premier and Cabinet and other members.

New section 53 provides for the appointment by the Premier of the other members. Up to seven other members with a mix of knowledge, skills and experience may be appointed for a period not exceeding three years.

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New section 54 provides that the role of the Advisory Board is to provide the Commission with strategic advice and advice in relation to its annual and strategic plans. The Commission must have regard to this advice in the performance of its functions and in the development of its annual and strategic plans.

New section 55 provides that the Secretary to the Department of Premier and Cabinet is the chairperson of the Advisory Board.

New Division 4—Inquiries

This Division substantially re-enacts and amalgamates the State Services Authority's special reviews and special inquiries powers and procedures in current sections 52 to 60.

New section 56 provides that the Premier can direct the Commission to conduct an inquiry into any matter relating to a public sector body, other than the IBAC, the office of the Ombudsman, the Victorian Auditor-General's Office, the Victorian Electoral Commission or the Victorian Inspectorate.

New section 57 provides for the Commission's powers in the conduct of an inquiry. The Commission has the power to enter premises and the same powers as a Board of Inquiry under specified sections of the Evidence (Miscellaneous Provisions) Act 1958, being the power to summons a person to give evidence or produce a document and examine a person under oath. Penalties for failure to attend or refusing to give evidence are also provided for.

New section 58 sets out certain procedural matters relevant to the conduct of an inquiry including access to legal representation, rules of evidence and the Commission's ability to determine the procedure of an inquiry.

New section 59 provides that on the completion of an inquiry, the Commission must prepare a report with any recommendations and findings within the period required by the Premier. The Commission must provide a copy of the report to the Premier and the Minister responsible for the relevant body. The Minister must provide to the Premier information as to any action taken or proposed to be taken in relation to any recommendations in the report. If the Commission undertakes an inquiry in relation to a special body, the Minister must table a copy of the report, and any related proposed actions or actions

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taken, in Parliament within 30 sitting days from the day he or she received the report.

New section 60 provides that the Commission is not able to conduct inquiries into the exercise by a body of a judicial or quasi-judicial function.

New Division 5—Maintaining public sector professionalism and integrity

Activities under this Division relate to the second objective of the Commission and its functions under new section 40.

New Subdivision 1—Codes of conduct and standards

This Subdivision substantially re-enacts current sections 63 and 66 which provide similar functions and powers in relation to the State Services Authority. New section 61 provides that the Commission must issue codes of conduct based on the public sector values and determine to whom they apply.

New section 62 provides that the Commission must establish and issue standards in relation to public sector employment principles and determine to whom they apply. A public sector body Head must ensure persons employed in the body are informed of the employment principles and standards.

New section 63 provides that the Commission may make recommendations to a public sector body Head to improve processes to promote or comply with applicable public sector values, codes of conduct, employment principles and standards. If recommendations are made and a public sector body Head does not adopt them, reasons must be provided to the Commission and the Commission may publish the reasons in its annual report.

New Subdivision 2—Reviews of employment related actions

This Subdivision substantially re-enacts the review of actions, functions and powers in current sections 64 and 65.

New section 64 provides that an employee is entitled to have reviewed an action taken within a public service body that relates to his or her employment. An employee is only entitled to have a review of a proposed appointment or promotion on the ground of

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a significant deficiency in the selection process or the process of an initial review. Regulations made under this provision provide details as to access to a review and procedures and powers on review.

New section 65 provides that a person or body that has conducted a review under section 64 may make recommendations and that the relevant public service body Head must provide reasons for not adopting any of those recommendations to the Commission. The Commission may include those reasons in its annual report.

New Subdivision 3—Registers

New section 66 requires that the Commission maintain a publicly accessible register of lobbyists in accordance with the Victorian Government Professional Lobbyist Code of Conduct as issued by the Premier.

New section 67 provides that the Commission must maintain a publicly accessible register of instruments issued under the Public Administration Act 2004, including codes of conduct and standards issued by the Commission, any orders by the Governor in Council under Part 5 and any other instrument under the Public Administration Act 2004 that the Premier directs be entered on the register.

New Division 6—Annual plan, strategic plan and annual report

New section 68 provides that the Commission, in consultation with the Advisory Board, must prepare an annual plan before each financial year for the approval of the Premier. The annual plan must set out how it relates to and supports the strategic plan, specific priority areas for the forthcoming financial year and key outputs and specific activities. The Commission must act consistently with the annual plan in the performance of its functions.

New section 69 provides that the Commission, in consultation with the Advisory Board, must prepare a three year strategic plan in its first year of operation and every third year after that for the approval of the Premier. The strategic plan must identify the matters that present challenges and opportunities for the public sector and set out how the priorities of the Commission will strategically align with those matters.

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New section 70 provides that when preparing the report required under Part 7 of the Financial Management Act 1994, the Commission must include explanations of how the operations of the Commission relate to its objectives and how the Commission has achieved its priorities identified in its annual and strategic plans.

New Division 7—Application of other Acts

New section 71 provides that the Freedom of Information Act 1982 will apply to the Commission as though it were a department.

New section 72 provides that Part 7A of the Financial Management Act 1994 relating to procurement policy, will apply to the Commission.

New Division 8—The Commission and the IBAC

New sections 73, 74, 74A and 74B require the Commission to notify the IBAC of any matter that appears to involve corrupt conduct and provide for processes relating to notification. These new sections re-enact current sections 74A to 74D but apply those sections to the Commission.

Clause 11 repeals section 111 of the Public Administration Act 2004 which provides the Public Sector Standards Commissioner with specific powers as the Commission's powers are provided for in new section 41.

Clause 12 inserts a new section 118 in the Public Administration Act 2004 which provides that the savings and transitional provisions in new Schedule 3 have effect.

Clause 13 inserts a new Schedule 3 in the Public Administration Act 2004 which provides for the transition of the State Services Authority's staff and work to the Commission.

New clause 1 of Schedule 3 includes definitions relevant to the Schedule.

New clause 2 of Schedule 3 provides general transitional provisions, including to clarify that the Schedule does not affect the operation of the Interpretation of Legislation Act 1984.

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New clause 3 of Schedule 3 provides that the State Services Authority is abolished upon the commencement of the Bill and that persons holding the offices of the chairperson of the State Services Authority, the Public Sector Standards Commissioner and any other member of the State Services Authority cease to hold those offices.

New clause 4 of Schedule 3 provides that all references to the State Services Authority in any Act, regulation or various other documents should be read as the Commission and similarly all references to the chairperson of the States Services Authority, the Public Sector Standards Commissioner, any other member of the State Services Authority or the Chief Executive Officer acting on behalf of the State Services Authority, should be read as references to the Commissioner upon commencement.

New clause 5 of Schedule 3 provides that a person employed by the State Services Authority under Part 3 is taken to be employed by the Commission on the same terms and conditions upon commencement of the Bill.

New clause 6 of Schedule 3 provides for the transfer to the Commission of any information, documents, reports and records held by the State Services Authority and provides that they may be used by the Commission in any review, inquiry or other work continued or commenced by the Commission.

New clause 7 of Schedule 3 provides that codes of conduct and standards issued by the Public Sector Standards Commissioner continue to apply to the persons to whom they applied immediately before commencement of the Bill, and are taken to have been issued by the Commission under new sections 61 and 62 of this Act.

New clause 8 of Schedule 3 provides that a review of the performance of a public service body Head being performed by the State Services Authority that is not completed before commencement of the Bill must be continued by the Commission.

New clause 9 of Schedule 3 provides that a systems review being conducted by the State Services Authority that is not completed before the commencement of the Bill, may be continued by the Commission under the repealed Part 4 and must be continued if it was requested by the Premier.

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New clause 10 of Schedule 3 provides that a special review or special inquiry conducted by the State Services Authority that is not completed before the commencement of the Bill must be continued by the Commission under new section 56 of this Act.

New clause 11 of Schedule 3 provides that a review of an employment related action that is not completed before the commencement of the Bill must be continued by the Commission or in the case where a review was being conducted by another person or body, that person or body.

New clause 12 of Schedule 3 provides that any requirement to provide information to the Public Sector Standards Commissioner under section 66(5) or 66(6) has effect as if the Commission required the information to be provided under section 41.

New clause 13 of Schedule 3 provides that where a recommendation was made by the Public Sector Standards Commissioner to a public service body Head or public entity Head before the commencement of the Bill, this is now taken to have been made by the Commission.

New clause 14 of Schedule 3 provides that other work not completed by the State Services Authority before commencement of the Bill may be continued by the Commission.

New clause 15 of Schedule 3 carries over the register of instruments maintained by the State Services Authority to the Commission.

New clause 16 of Schedule 3 provides that the Commission must include in its first annual report a report on the operation of the State Services Authority during the relevant part of the financial year.

Division 2—Consequential amendment of other Acts

Clause 14 makes a consequential amendment to the note at the foot of section 4(1)(a) of the Charter of Human Rights and Responsibilities Act 2006 to reflect the replacement of the State Services Authority and its governance structure by the Commission constituted by a single Commissioner.

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Clause 15 makes a consequential amendment to section 2.4.37 of the Education and Training Reform Act 2006 to reflect the replacement of the State Services Authority by the Commission.

Clause 16 makes a consequential amendment to section 13(1)(h)(i) of the Environment Protection Act 1970 to reflect the replacement of the State Services Authority by the Commission.

Clause 17 amends sections 19 and 20 of the Parliamentary Administration Act 2005, which mirror old sections 64 and 65 of the Public Administration Act 2004, as a consequence of the remaking of and amendments to those sections by clause 10 of the Bill.

Clause 18 inserts new section 37 in the Parliamentary Administration Act 2005 to provide for transitional provisions so that a review by the Public Sector Standard Commissioner of an employment related action that is not completed before the commencement of the Bill must be continued by the Commission.

PART 3—OTHER AMENDMENTS TO THE PUBLIC ADMINISTRATION ACT 2004

Clause 19 amends section 5(1A) of the Public Administration Act 2004 to provide that, for the purposes of that Act, a public entity includes a subsidiary of a public entity. This is so that the definition captures entities which are controlled by the State and clarifies the obligations of such entities.

Clause 20 inserts a new section 13A in the Public Administration Act 2004 setting out the responsibility of Department Heads to support their Ministers in relation to public entities in their Ministers' portfolios.

New section 13A(2) provides that Department Heads are responsible for advising their Ministers on matters relating to relevant public entities, including the discharge of responsibilities, and for working with and providing guidance to public entities to assist entities on matters relating to public administration and governance.

New section 13A(3) provides that public entities must provide Department Heads with information to enable them to advise their Ministers.

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New section 13A(4) clarifies that nothing in this section is intended to interfere with the performance by a public entity of its functions under any Act.

Clause 21 repeals section 25A(b) of the Public Administration Act 2004 to remove the requirement that the Premier approve the remuneration of people holding offices which are declared authorities. Existing arrangements in legislation in relation to the setting of remuneration will prevail upon repeal of this provision.

Clause 22 inserts a new Part 3A in the Public Administration Act 2004 providing for the issuing of administrative guidelines by the Secretary to the Department of Premier and Cabinet.

New section 36A(1) and (2) provide that the Secretary to the Department of Premier and Cabinet may issue guidelines in relation to the administrative operations of a public service body or a public entity to ensure consistency across the sector.

New section 36A(3) provides that any public service body or public entity operating or intending to operate inconsistently with the administrative guidelines must provide written reasons for so doing to the Secretary to the Department of Premier and Cabinet.

New section 36A(4) clarifies that that the guidelines do not relate to the exercise of a public service body's or public entity's discretion in the performance of its functions.

Clause 23 amends section 81(1) of the Public Administration Act 2004 to provide an additional obligation on the board of a public entity to assess its own performance.

PART 4—REPEAL OF AMENDING ACT

Clause 24 provides that the Bill is repealed on 1 July 2015. The repeal of the Bill does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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