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Legislative Council - Fifty-First Parliament, Third Session (51-3)
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PUBLIC SECTOR BILL

Committee Stage

In committee.

(Continued from 14 May 2009. Page 2394.)

Clause 2.

The Hon. G.E. GAGO: A number of questions were asked by honourable members during debate on clause 1, and I have brought back answers to those questions.

Members interjecting:

The Hon. G.E. GAGO: If honourable members would shut up I will; let us get on with it. When this bill was last in committee the Hon. David Ridgway and the Hon. Robert Lucas asked some follow up questions that arose from answers that the government had provided to their earlier questions, and I can provide the following response. They asked for an explanation regarding the difference between figures relating to public sector workforce numbers provided by me derived from the budget papers and, so they asserted, as stated by the Commissioner for Public Employment. The figures provided by the government were provided by the Office of the Commissioner for Public Employment and showed an increase of 10,959 employees, or 9,945 full-time equivalents, between June 2002 and June 2007.

The Hon. David Ridgway stated that for the same period the budget papers showed an increase of 12,085 full-time equivalents. This assertion appears to be based on a comparison of total public sector FTEs printed in the 2002-03 and the 2007-08 budget papers. The honourable member made the same assertion in this council on 23 July last year in debate on the Appropriation Bill. The answer provided to him on 29 July last year was that the comparison is spurious as the FTE data on the two budget papers covers a different scope of entities, and that remains the answer to his assertion.

The Hon. David Ridgway also asserted that the Commissioner for Public Employment had said that 17,017 extra positions had been created between 2002 and 2007. Again, he made this assertion on 23 July last year; again, he had been given an answer on 29 July last year that the government had not been able to source the statement attributed to the commissioner, and we are still unable to do so. So, the explanation for the difference in the figures I provided is correct. One of those asserted by the opposition is based on a misreading of the budget papers and the other is perhaps a myth, but at any rate it cannot be sourced.

Finally, the Hon. David Ridgway asked me to explain how we could have a 450 to 500 per cent increase in the number of employees over and above what was budgeted for. This seems to be derived from the same misreading of the budget papers that I alluded to earlier.

The Hon. Robert Lucas asked me a number of questions about the data regarding executives in the public sector, the Public Service and the South Australian Executive Service. As members would be aware, the Public Service comprises those employees appointed under the Public Sector Management Act. The public sector comprises those employees plus those appointed by the government under specific legislation, such as the Education Act, the Police Act, etc., or those engaged in government controlled entities, such as SA Water, the Motor Accident Commission and suchlike.

In response to an earlier question, I had provided the number of executives in the public sector based on June 2007 figures. The 2007 data showed that 1,191 executives were employed in the public sector. The Hon. Mr Lucas asked why I had relied on those figures as opposed to more up-to-date ones. The Commissioner for Public Employment informs me that the establishment of a new mechanism for data collection in the financial year 2007-08 has resulted in delays; therefore, data for executives across the whole of the public sector as at 30 June 2008 is not yet available.

I was able to provide more up-to-date data regarding the number of executives in the Public Service, which showed that, as of March 2009, there were 552 executives in the Public Service; of those, 428 have accepted a South Australian Executive Service contract. The South Australian Executive Service will be made available to public sector executives outside the Public Service in due course.

The Hon. Mr Lucas also sought greater explanation regarding the September 2004 decision not to make fallback available to executives. In 1994, the previous government made the policy decision to appoint executives only on contracts. This policy position was subsequently reflected in the Public Sector Management Act 1995; however, executives could be offered fallback provisions whereby, if they were not reappointed, they had a right to fall back to another position. The effect of this government's September 2004 decision was that, from then on, fallback provisions were not to be offered for either new executive appointments or for reappointments of existing executives—that is, executives would only be offered appointments on contract.

The Hon. Mr Lucas also queried why no data had been collected regarding the number of executives who had declined to give up tenure or their fallback right. Of course, in these circumstances, a position of executive would be offered to an employee. That employee may decline the offer, but they could do so for a variety of reasons that may or may not be related to the government's policy on tenure. Reasons for accepting or not accepting an executive position are not recorded in the payroll system; therefore, there has been, and currently is, no mechanism for gaining this information.

The Hon. Mr Lucas also asserted that the number of employees he identified might have been appointed as executives but with tenure. This assertion is inaccurate. All the employees he identified—I emphasise that: all the employees he identified—had been appointed either in acting positions, which are necessarily temporary, or on time-limited contracts. The Hon. Mr Lucas also questioned whether any executives had been appointed with some form of tenure since September 2004. He asked how this could be the case, given the government's current policy position. I am advised that, because of administrative law, in exceptional cases chief executives might be authorised to provide some form of tenure to an executive. I am advised that this has occurred extremely rarely, generally associated only with a short-term contract.

Finally, on the topic of executives, the Hon. Mr Lucas asked for an explanation of the EX, EL and MLS classifications of executive. The EX classification executives were the new class of executives arising out of the PSM Act 1995; EL executives are the class of executives from the act preceding the current PSM Act 1995; MLS executives are managing legal service executives. The Hon. Mr Lucas also asked about the changes to the legislation in respect of merit selection processes and whether these changes would lead to an increase in non-merit-based appointments. A merit-based appointment is, of course, one of the cornerstones of Public Service employment principles. The PSM Act gives the Commissioner for Public Employment the authority to determine categories of appointment or circumstances where merit selection processes are not required. I provided earlier in the committee stage a table setting out those categories and the numbers appointed pursuant to the different categories.

The chief executives then determine, in a given case, whether the case falls within any of the categories determined by the commissioner and so determine whether merit selection processes should apply. The bill removes the capacity for the commissioner to determine these categories. Rather, only where the bill itself or the regulations made under it so authorise can selection be other than by merit selection process. Therefore, the government does not expect that the legislative changes will lead to an increase in the number of employees appointed other than by merit selection process.

In relation to the Commissioner for Public Employment continuing to produce figures regarding merit-based selection, I am advised that the commissioner is currently undertaking work to determine effective reporting requirements in line with the proposed Public Sector Bill. I am not aware of any decision not to produce these figures. I believe that this answers all the follow-up questions asked by the Hon. David Ridgway or the Hon. Robert Lucas.

The Hon. D.W. RIDGWAY: I would like clarification of the minister's statement relating to the figures I have quoted from the budget papers. I think she said that they were a different scope and related to different entities. Can she just clarify the statement she made in relation to those figures?

The Hon. G.E. GAGO: I have been advised that it refers to the fact that different types of entities may not necessarily have existed or may have changed during that period. For instance, the addition of NRM into DEH means a significant increase in the number of FTEs that applied or were attributed to DEH employment in a very short period that previously could not exist as part of that entity.

The Hon. D.W. RIDGWAY: Nonetheless, if they appear as public sector employees and they did not exist in 2002—and I accept that the NRM boards were not established and the NRM employees were not in the system in 2002—they are counted as public sector employees today. Are you saying the budget figures are not accurate?

The Hon. G.E. GAGO: No; what I stated was that the comparison that you made from data from the two different budget papers covered a different scope of entities.

The Hon. D.W. RIDGWAY: I do not understand. This budget paper from 2002-03, in table 3.1, refers to public sector employment numbers, estimated full-time equivalents as at 30 June 2002, 66,933. Then, in table 216 from the 2008-09 budget papers, estimated full-time equivalents at 30 June 2008 were 81,775. I do not understand the minister saying that they are different entities. It is still the same public sector and Public Service. It is still the South Australian taxpayer paying the bill, yet we have gone up nearly 14,000.

The Hon. G.E. GAGO: The advice that I have been given is that, for instance, in terms of the scope of entities that I referred to, both the NRM and ambulance employees were previously outside the scope of the public sector, so they did not previously exist and now they do. They are two examples that I have been given.

The Hon. D.W. RIDGWAY: We have a number of amendments to deal with, so I will not go on for much longer. I am just surprised that those figures may well be included in the 2008 estimated figures, but we have had an increase—and I know you will dispute the actual numbers, so I will not drill down to the exact numbers—of many thousands over and above what was budgeted in the budget papers over the last seven years.

What I find disappointing, as I said in my second reading speech, is that I am yet to get any explanation of how a government can table a set of budget papers and then, over seven years, end up with an increase that the minister would say is somewhere between 6,000 or 7,000 employees more than were budgeted for. I would argue that it is probably closer to 10,000 more than were budgeted for; nonetheless, a significant number were not budgeted for.

From the very early stages of the second reading contributions, I have said that I want an explanation from the minister as to how that can happen in a modern government that says that it is a sound financial manager. I expect the Treasurer will tell us all on Thursday that he is a hero again and has done a wonderful job with our state's finances. I want to know how on earth you can allow the public sector to grow out of control the way this government has.

The Hon. G.E. GAGO: In terms of some of the other factors operating to distort the figures that are being given, the Treasury figures that have been given are, in fact, an estimate for that financial year, whereas the commissioner's figures are taken from payroll and are a single snapshot, if you like, of a specific point in time. They are measuring slightly different things, and it is not surprising that there are some differences.

The Hon. D.W. RIDGWAY: I accept that there will be some differences, but how on earth can it grow beyond what it has?

The Hon. G.E. GAGO: I have given you all the information I have.

The Hon. D.W. RIDGWAY: Is the minister telling me that she has no explanation as to why the numbers have grown beyond budget? We have a bill before us which has a number of amendments. Clearly, the government wants this bill passed so that it has a mechanism to help reduce the size of the public sector, yet it has not once come up with any reason or valid explanation, or even an admission, that they have let it grow beyond a level that they are happy with and it needs to be reduced. We have never heard that. Is the minister saying that she cannot explain how the public sector has grown beyond what has been budgeted?

The Hon. G.E. GAGO: A question was asked concerning an explanation about figures that were given. I have provided an explanation for that, so I have provided the information that was requested of me in terms of the scope of the entity. As I pointed out, we have questioned the figures that the Hon. David Ridgway has given in relation to the scope of that and also the manner in which the figures are collected.

The Hon. R.I. LUCAS: I thank the minister for the further responses to questions asked both during the second reading debate and at clause 1 of the committee stage. In putting some further questions, I remind the minister and colleagues that the context of this important debate on the Public Service is occurring as the state public sector is looking at a further round of budget cuts of 1,600 full-time equivalent public servants. That comes on top of almost 1,000 announced in the 2008-09 budget and 1,571 announced in the 2006-07 budget. In three tranches since the 2006 election, this government has announced job reductions of approximately 4,300 or 4,400 full-time equivalents in three separate announcements and, of course, that does not forecast what might happen on Thursday, as well.

That is the context of much of this particular debate, and within that context and following on the seeking of further information by the Hon. Mr Ridgway, I note—and I will not pursue an argument with the minister because the minister has obviously given the best answer her advisers have been able to give her—that it just seems extraordinary that, in answer to a simple question as to how many executives there are in the Public Service in South Australia, the best this government, the Premier and his advisers can do is give me a number for two years ago—June 2007.

When you ask any business a simple question as to how many executives it has, if the chief executive said, 'I'm sorry, I can give you a number from two years ago as to how many executives we had in our business in BHP Billiton two years ago', you would be laughed out of business.

The Hon. D.W. Ridgway: It took them 12 months extra to get the detail of all those.

The Hon. R.I. LUCAS: We are told that in June 2007—we knew at that stage, two years ago—we had 1,191 executives in the public sector. Not many members in this chamber may have operated businesses—certainly the Hon. Mr Ridgway did—but, as I said, it seems extraordinary that we could have a situation such as this when you ask a simple question. This is a critical bill. It is important information to know how many executives there are in the public sector.

The minister rightly drew the distinction between the number of 1,191 executives and the other number she was able to provide of 552 executives, because in the South Australian executive service, under the Public Sector Management Act, it does not include all the executives in the health and education sector. So, all those executives sitting in the education department, health department and some of the other departments and agencies are not included in that particular number.

When one looks at the fact that education and health probably account for 55 to 60 per cent of the total of Public Service spending, as I said, to have a situation where they say, 'We've just got no idea of the total number of executives in the education portfolio or in the health portfolio, but we are able to tell you the number of executives in these other areas, and that is about 500. However, we can tell you that two years ago there were 1,191 executives in the Public Service in South Australia', that is just a failure of corporate governance. It is a failure by a government, by a Premier, by a Premier and cabinet, by the Commissioner for Public Employment's office, wherever the buck stops in relation to these issues.

As I said, I thank the minister for some of the further answers that she provided. However (and maybe I have not understood completely; I confess that I am not an expert on all issues in relation to the Public Sector Management Act), when I asked the minister whether or not people were being offered executive contracts with tenure she previously had indicated, 'They don't collect that information, so we don't know how many there are.' Tonight she indicated, 'Well, in very rare circumstances.'

I am not sure how we know that if we are not collecting information. It seems to be inconsistent logic if, in the first case, you say that you are not collecting information but tonight you are saying, 'It is only in very rare circumstances; there are only very few of them.' The minister said something to the effect that, in very rare circumstances, the Chief Executive could offer positions with tenure, but they tended only to be short-term contracts.

My understanding of tenure, as opposed to being offered a contract position, is that if I am offered tenure I have permanency in the Public Service; that is, I cannot be removed. I have a job for life—provided that I do not commit criminal acts and all those sorts of things. So, how do you get offered a position with tenure, which to me is permanency, and yet the minister's reply (and I accept that it was drafted for her) was that they tended to be only for short-term contract positions? I seek from the minister a response to that aspect of her answer.

The Hon. G.E. GAGO: I have been advised that there is no tenure for executive positions. If they fall back to a non-executive position there may be some tenure for that non-executive position. If they fall back to an executive contract—which they can hold at the same time, usually at a lower level—they can then be guaranteed a further contract.

The Hon. R.I. LUCAS: Is the minister acknowledging that her previous advice to the committee was incorrect? Her previous advice to the committee was that chief executives could offer persons tenure, but they tended to be short-term contracts. She is now saying that is not the case. Can I clarify that she is now retracting her earlier advice in relation to whether or not chief executives can offer persons executive positions with tenure?

The Hon. G.E. GAGO: When I made reference in my answer to the fact that chief executives might be authorised to provide some form of tenure, my use of the word 'tenure' was in relation to the fact that they might have some right to further employment which might be ongoing if at a non-executive level. I believe that the Hon. Robert Lucas is using the word 'tenure' to mean a permanent form of employment in all cases.

The Hon. R.I. LUCAS: I think that is correct, and I thank the minister for her clarification. Rather than arguing whether or not her earlier advice was correct, and let us leave that argument to the side, I understand that the current advice—and I am not being critical of the minister because she is relying on advice of her advisers in relation to this—she is now giving to the committee is that the government or the chief executive can offer a person tenure. However, they might have a short-term contract as an executive, but if they are not reappointed as an executive after five years they still might have tenure at an ASO8 level, or whatever that position is now called—a senior admin position—but they still have tenure. They are permanent public servants, but they might not be executives.

The Hon. G.E. GAGO: The advice I have received is that what the honourable member says is true. However, normally, we give that further employment right only for shorter-term contracts.

The Hon. R.I. LUCAS: Yes, I understand for short-term contracts but, if the minister is saying that someone has been offered a job as an executive on a two-year contract (a short-term contract), but nevertheless would be offered a permanent Public Service job and security at a non-executive level, whatever the senior administrative level is called now, they nevertheless have permanent Public Service status or tenure and that security after their two-year contract, for example.

The Hon. G.E. GAGO: I have been advised that what the Hon. Robert Lucas says is so in some cases, but they are fairly uncommon. I have been advised that they tend to exist only where that person has had previous employment on an ongoing, long-term basis.

The Hon. R.I. LUCAS: The minister earlier in her replies indicated in answer to the questions that I had raised about a number of appointments (I raised a question about Mr Lance Worrall's appointment and also three director level positions within the planning and local government department)—and I do not have the exact words before me but she does—that all the positions I had referred to (she did not indicate by name) had not been appointed on tenure. Is that what the minister said?

The Hon. G.E. GAGO: I am quoting from my answers to questions. I stated that the honourable member's assertion that a number of employees that he identified might have been appointed as executives but with tenure was inaccurate and that all employees he identified had been appointed in either acting positions (which are necessarily temporary) or on time-limited contracts.

The Hon. R.I. LUCAS: So, given the recent clarification we have had about the advice about tenure, am I to understand from what the minister is saying that these persons are not going to have tenure back at the administrative level, the non-executive level? That is, when the minister is saying they do not have tenure, she means they do not have tenure in relation to an executive position or permanency in the Public Service?

The Hon. G.E. GAGO: I have been advised that those acting may have tenure in their previous positions but the others do not have tenure.

The Hon. R.I. LUCAS: I have only raised questions about four, I think, so the three I understand in the Department of Planning and Local Government were acting and are now going through some sort of a process in terms of a further appointment. I understand the minister's answer to mean they may, but when she says 'the others', the only other one I have referred to is Lance Worrall. So the minister is saying that Lance Worrall has not been offered tenure at a non-executive position in the Public Service?

The Hon. G.E. GAGO: I have been advised that the staff member that the honourable member refers to does not have any ongoing employment rights and is on a fixed term contract.

The Hon. R.I. LUCAS: I am pleased to hear that. Can I clarify this? I am a couple of years out of date. The senior administrative level position beneath the executive service used to be ASO8. What is that position now?

The Hon. G.E. GAGO: I have been advised ASO8.

The Hon. R.I. LUCAS: The minister gave an indication relating to officers going into the South Australian executive service, and I think the minister indicated it was intended that similar offers are going to be made to the broader public sector at some stage in the future. In regard to the officers in the South Australian executive Public Service at the moment, when the government made its change of policy in September 2004 it offered these contracts, with some attractions in terms of signing the contracts and, I assume from the minister's answers, that they had to give up tenure to accept the South Australian executive service contracts. I assume a number of people did not take up the offer of an executive contract and reverted with the fallback position into the administrative sections (the non-executive sections) of the Public Service. I understand the minister has said that no information was collected on those numbers, but I want to clarify that there were, indeed, a number of executives—whilst it is indeterminate as to exactly how many there were—who looked at that option and decided they did not want to take up that option and reverted to their fallback position within the administrative sections of the Public Service.

The Hon. G.E. GAGO: I have been advised that there were a number but that we do not have the data on the exact figures.

The Hon. R.I. LUCAS: I would have thought that that would be something that would be useful to collect, but I am not critical of the minister: it is obviously not her responsibility to have collected that information. Is the minister in a position to indicate the government's policy relating to when it might extend the South Australian executive service-type provisions to education, health and other elements of the public sector?

The Hon. G.E. GAGO: I have been advised that no decision has been made as yet.

The Hon. R.I. LUCAS: In relation to the further information that the minister provided in her answer, which was the number of non-merit-based appointments, the minister answered the question and I think indicated—I am not quoting her exactly—that she did not believe that there would be any increase in the number of non-merit-based appointments as a result of this bill.

In the information that the minister has provided as to how it currently operates, I think that the minister has said that, as at 30 June 2008, 580 employees have been appointed pursuant to section 22(1)(d) of the Public Sector Management Act. In relation to the first category that the minister refers to there, we are told, 'The person to be appointed was clearly the best person for the position based on an assessment of merit and, therefore, the selection process would be an unnecessary procedure.'

If the selection process is an unnecessary procedure—and in relation to a merit-based appointment they go through a selection process—it says here, 'The person to be appointed was clearly the best person for the position based on an assessment of merit.' Can the minister say who makes that assessment of merit in relation to these 88 executives who were appointed?

The Hon. G.E. GAGO: I have been advised the chief executives and their advisers.

The Hon. R.I. LUCAS: What the minister is clarifying there is that the chief executive decides that among the number of people in his or her department one particular person is the best person for the position based on the chief executive's assessment of merit and, therefore, that person does not have to go through a selection panel process.

One of the issues, I guess, as we go through the committee stage—with the increased powers for chief executives and the significantly reduced role for the Commissioner for Public Employment—will be to see whether or not there is, in fact, going to be an increase in what I would call non-merit-based appointments.

Certainly, a lot of people mouth, in relation to public sector governance, that merit ought to be the basis of selection, with selection panels and other processes. There has, indeed, been significant criticism—and, to be fair, I think under governments of all persuasions—relating to favourites or people being tapped on the shoulder by chief executives within various government departments and agencies.

So, that particular group of almost 100 appointments as at 30 June are being assessed by chief executives just saying, 'I think you're the best person for the job and you can have it,' which is the way that, in many respects, the private sector operates. So, we will see whether or not that particular number grows under the changes that the government has introduced here.

A number of other categories are listed, but the one on which I wanted to seek further clarification was the category of 65 appointments where the appointment was required 'to ensure that whole of government workforce policies can be effectively implemented, such as management of excess and work-injured employees'. I am wondering whether the minister can explain what processes are used there. I assume in relation to excess employees that the chief executive just nominates the person for a particular job, but in relation to work injured employees what is the process the chief executive has been using in relation to these particular non-merit based appointments?

The Hon. G.E. GAGO: These particular employees have priority in accessing suitable further employment.

Clause passed.

Clause 3.

The Hon. D.W. RIDGWAY: I move:

Page 7, lines 25 to 27 [clause 3(1), definition of public sector representative organisation]—Delete:

'means an association registered under the Fair Work Act 1994 or the Workplace Relations Act 1996 of the Commonwealth that represents the interests of public sector employees' and substitute:

—see subsections (5) and (6).

Page 8, after line 29—After subclause (4) insert:

(5) If the Commissioner is of the opinion that an association registered under the Fair Work Act 1994 or the Workplace Relations Act 1996 of the Commonwealth represents the interests of a significant number of public sector employees, the Commissioner must, by notice in the Gazette, declare the association to be a public sector representative organisation for the purposes of the Act.

(6) If the Commissioner is of the opinion that a public sector representative organisation has ceased to represent the interests of a significant number of public sector employees, the Commissioner must, by notice in the Gazette, revoke the declaration of the organisation under subsection (5).

I indicate my disappointment in the government having introduced this bill and now we are dealing with amendments to it. The Hon. Ann Bressington has an amendment between my second and third amendments, but my first two amendments are consequential and the third is related. I am disappointed that neither this minister nor any other member of the government has had the courage to say they have got it wrong over the past seven years and that there is a need for these amendments and changes to the Public Sector Management Act. I have great pleasure in moving these amendments.

The government states that the intent of the provisions of the bill is to expand consultation. The opposition's amendments restore the current position of the Public Sector Management Act 1995. We support proper consultation, and we should look at what it does in this bill. When the government expands consultation what is it really doing, given its track record on consultation? We have seen across a range of projects decisions this government has made where it has intended to consult, but we know that consultation is usually just telling the community after it has done it.

Currently, consultation under the act was required with the organisation representing significant numbers of employees. Enterprise agreements provided for wider consultation. What is this bill really doing? By requiring consultation with all existing recognised organisations, the government is ensuring that the ALP-affiliated unions, with relatively small numbers in the public sector, are brought in to offset criticism by the large non-affiliated public sector unions. It is interesting to note that the Australian Services Union (ASU) and the HSUA (Health Services Union of Australia) are both affiliated with the ALP.

The opposition amendment maintains the status quo and is not about giving the Public Service Association a favoured position, as any organisation with significant numbers must be consulted under the current act and under these opposition amendments. Smaller bodies representing a limited number of employees may be consulted or, where they are parties to an enterprise agreement, they will be consulted. We should not mandate the involvement of all the ALP-affiliated organisations within the limited numbers of the public sector. I am happy to move these two amendments.

The Hon. G.E. GAGO: The government opposes all three of the opposition's amendments. The definition of public sector representative organisations in clause 3 of the bill is an association representing the interests of public sector employees registered under the Fair Work Act 1994 or the commonwealth Workplace Relations Act 1996. The requirement to consult with representative organisations on matters that affect public sector employment is now contained within the Public Sector Principles, part 3, clause 5, under 'Employer of choice', section 5.

The principles provide a broad, general obligation that requires public sector agencies to consult public sector representative organisations on matters that affect public sector employment. This provision replaces section 7(6)(b)—16 and 24—of the Public Sector Management Act by stating the requirement to consult with representative organisations up front in the principles rather than leaving them hidden in individual provisions. The requirement is given greater prominence.

Revision to the wording equivalent to the existing wording of the Public Sector Management Act is not supported. The suggested wording narrows the requirement to consult. It does so because it confines the definition of 'representative organisation' to an organisation that represents the interests of a significant number of employees. This excludes organisations representing a smaller number of employees. A good example of this is the Health Services Union of Australia, a perfectly legitimate union which, despite having possibly hundreds of members in the public sector, is an organisation with which the government is not, under the current provisions, obliged to consult.

Effectively, what the opposition is seeking to do is provide a preference for some unions over others. The government does not believe that this parliament should be enacting those sorts of preferences and is surprised that the opposition is doing so. Also, the proposed wording narrows the circumstances in which there is an obligation to consult. The bill's wording provides a broad obligation to consult on matters that affect public sector employment. The proposed wording confines this to circumstances where a significant number of employees will be affected. I am not sure what the argument is that would support such a narrow view.

The Hon. M. PARNELL: In my second reading contribution, I said I would be opposing these first two Liberal amendments, and nothing has happened in the meantime to make me change my mind. This is a very simple matter of whether or not we support the right of freedom of association. The idea that the Commissioner for Public Employment can decide who are valid worker representatives, I think, is most inappropriate. It is up to workers to decide who they want to represent them. They will join a union based on a range of factors, including the area of work, coverage, any benefits and advocacy services offered. I do not think it is appropriate to limit in the way proposed by these amendments the range of unions that can represent workers in the public sector.

The Health Services Union of Australia is one union that has already been mentioned. My information is that there are some 580 publicly employed health professionals covered by that union, but it might not be a majority of their total membership. Similarly, we have the Association of Professional Engineers, Scientists and Managers who would have difficulty being recognised under this regime.

I do not pretend to be an expert on which unions are affiliated with the Labor Party and which are not: that is not the issue. The issue is that workers should be entitled to choose their representatives, and I do not think it is appropriate for us to put barriers in the way of legitimate unions representing their workers in negotiations with their public sector employer. So, that covers the first two amendments.

I will consider the third of Mr Ridgway's amendments when we get to it, but it relates to a different issue, so we can look at that one separately. However, these two amendments relate to the definition of 'public sector representative organisation'. If the will of the committee is not to interfere with that definition, maybe the Hon. Mr Ridgway's third amendment can stand on its own, and we will deal with it then.

The Hon. DAVID WINDERLICH: I also will not be supporting these two amendments. I think that there is a fundamental point of freedom of association. I think it is strange that the Liberal Party is seeking to have some unions more equal than others. Imagine if we followed this logic about significant numbers in other areas of government policy. Would we only consult with significant communities? Would we stop consulting with small towns? Would we perhaps not ask the Eyre Peninsula, because it is not a significant number of the population? Either we are consulting or we are not; we should not put limits around it or infringe the rights of workers to form unions as they see fit and then exercise their rights and have a say in negotiations with governments as they see fit. I believe this is a very illiberal move by the Liberal Party.

The committee divided on the amendments:

AYES (8)
Brokenshire, R.L. Dawkins, J.S.L. Hood, D.G.E.
Lawson, R.D. Lucas, R.I. Ridgway, D.W. (teller)
Schaefer, C.V. Wade, S.G.
NOES (9)
Bressington, A. Darley, J.A. Finnigan, B.V.
Gago, G.E. (teller) Gazzola, J.M. Hunter, I.K.
Parnell, M. Winderlich, D.N. Wortley, R.P.
PAIRS (4)
Stephens, T.J. Zollo, C.
Lensink, J.M.A. Holloway, P.


Majority of 1 for the noes.

Amendments thus negatived.

The Hon. R.I. LUCAS: Can I have a clarification from the minister? Under the definitions in clause 3, there is a new definition of misconduct. Was that previously covered in some other piece of legislation? If it was not, what were the reasons for its introduction in the Public Sector Management Act?

The Hon. G.E. GAGO: I have been advised that the bill before us is very differently structured to that of the PSM Act and that we need to have a new definition of misconduct which then allows us to rely on the code of conduct.

The Hon. R.I. LUCAS: I take it from what the minister is saying that, under the current act, there is no definition of misconduct and it is being introduced for the first time in this legislation.

The Hon. G.E. GAGO: I have been advised that the PSM Act did not need a definition of misconduct because it was outlined in division 8, section 57 under General Rules of Misconduct. That outlined a number of conditions, if you like, in relation to failure in the provision of acts; things like neglect or indolent in the discharge of duties, absent from duty, guilty of disgraceful or improper conduct, etc. It was structured in a different way so that, although there was no specific definition of misconduct, it did not need it because conduct that was not acceptable was described under those rules.

The Hon. R.I. LUCAS: The only point I make in relation to that is that misconduct is a broader provision in the current Public Sector Management Act because, for example, if you were to dismiss a Commissioner for Public Employment one of the grounds is being guilty of misconduct. So, the notion of misconduct spreads not just at the levels of public service employees but right through to the Commissioner for Public Employment and the grounds on which a commissioner can be dismissed. That is why I was asking the question as to the definition that has now been included in the legislation for the first time. I note the minister's reply that it was not structured that way in the current act but, in saying that, the simple response is that there is no definition of misconduct under the definitions clause in the current act. This has now been included for the first time and, as I said, it is a broader provision because it does relate also to dismissal provisions for the Commissioner for Public Employment.

I do not seek to pursue an argument on that; I just wanted to clarify it. The term 'misconduct' does include, however, making a false statement in connection with an application for engagement as a public sector employee. Is it the minister's advice that that already exists, as well, or is that now a broader provision that has been included in the definition of misconduct?

The Hon. G.E. GAGO: I have been advised that there has always been an area of uncertainty around false statements in applications. There was a level of uncertainty around it and the new provision clarifies it.

The Hon. R.I. LUCAS: I thank the minister for that. I asked about the definition of 'public sector agency' in the second reading and the minister provided a reply that the Ombudsman was a public sector agency for the purposes of the Public Sector Management Act. I assume, therefore, it is intended to be an agency under this bill, as well. Can I just confirm also that the Auditor-General's Office is also a public sector agency?

The Hon. G.E. GAGO: Yes to both of those.

The Hon. R.I. LUCAS: The definition of public sector agency has what is, to me, a small but curious additional element. On my reading, paragraph (b) of the definition includes for the first time 'a chief executive of an administrative unit'. If one looks at the Public Sector Management Act at the moment, chief executives are not listed as public sector agencies.

I ask the minister to clarify whether that is indeed the case and, if my reading of the bill is correct, will the minister indicate why the government has included 'a chief executive of an administrative unit' under the definition of 'public sector agency' for the first time?

The Hon. G.E. GAGO: I have been advised that aspects such as the right to terminate or take disciplinary action are conferred on the public sector agency and therefore need to include the chief executive.

The Hon. R.I. LUCAS: This covers later provisions, I assume, because the right to terminate provisions is a matter of some contention and may be subject to proposed amendments later in the debate. There are current procedures in relation to a role for the Commissioner for Public Employment, for the Governor and for the Executive Council. This government, as I understand it, wants to move this back to agencies.

I understand the minister to be saying that the government is now seeking to define all chief executives of administrative units as public sector agencies because they are going to be given the power to terminate. Where the bill may well refer to the public sector agency having the power to terminate, that is to be interpreted, in those cases, to be the chief executive of that particular administrative unit. That is, as I understand it, what the minister has just outlined to the committee; we can explore that later when those particular clauses come before the committee.

I think it does raise a curious notion that, in essence, you are going to have the transport department as a public sector agency and the chief executive, Mr Hallion, will also be a public sector agency by himself. So, the chief executive is a public sector agency, his department is a public sector agency and possibly other sections are as well when we look at other provisions of the bill.

Under paragraph (f), 'public sector agency' means a body corporate that is subject to control or direction by a minister. A body corporate like Funds SA, for example, has reasonably general control and direction provisions from the minister but with significant restrictions; that is, the minister is not able to direct Funds SA in relation to issues such as funds investment, which is obviously an important part of Funds SA.

Will the minister clarify through advisers whether bodies such as Funds SA (and there are others), where there is a general control and direction provision with a significant restriction on that general control and direction, will be defined as public sector agencies?

The Hon. G.E. GAGO: I have been advised that there are no changes to that provision; they are identical.

The Hon. R.I. LUCAS: I understand that, but what I am asking is: are bodies like Funds SA, for example, with that restriction, public sector agencies for the purposes of this legislation?

The Hon. G.E. GAGO: You are right, yes, they are included, but that does not override their independence, which is prescribed under other legislation and which remains unchanged and unaffected by this.

The Hon. R.I. LUCAS: Thank you for that clarification, minister. Under the existing act there is a provision which says 'under the definition of public sector agency', but does not include a person or body declared under subsection (2) not to be an agency. Given that I suspect we are unlikely to finish the committee stage this evening, I am wondering whether the minister and her officers could provide to the committee a list of any bodies that have been so declared not to be public sector agencies under this provision. I am happy for the minister to take that on notice, if she is prepared. I ask the minister in her reply to also address the issue that, under the new definition, there is a new paragraph (i). Paragraph (j) mirrors the existing legislation, but for some purpose the government has included a new paragraph (i) which says:

but does not include—

(i) A person or body declared under an act not to be part of the Crown or not to be an agency or instrumentality of the Crown.

When paragraph (j) already exists in the legislation and is proposed in the bill, what purpose does paragraph (i) serve, and is a particular problem being addressed by this new paragraph in the definition?

The Hon. G.E. GAGO: I have been advised that that change picks up bodies like the Legal Services Commission and the Aboriginal Lands Trust, which would otherwise be potentially covered and it makes it clear that they will not be covered.

The Hon. R.I. LUCAS: Just for clarification, surely under the current act they would be excluded under the paragraph in the current drafting, would they not—a person or body declared not to be a public sector agency?

The Hon. G.E. GAGO: They would need to make a declaration.

The Hon. R.I. LUCAS: In relation to the definitions for remuneration and remuneration level, can the minister clarify that remuneration still allows government decisions in relation to performance bonuses and retention allowances?

The Hon. G.E. GAGO: I have been advised that it does not stop or prevent those allowances.

The Hon. R.I. LUCAS: The substantive remuneration level definition reads as follows:

substantive remuneration level of an employee of a public sector agency means a remuneration level determined by the public sector agency in accordance with the regulations.

It comes back to what I was asking earlier, that is, the curious definition that the chief executive is a public sector agency. Are we to read into this that the chief executive substantive remuneration level means a remuneration level determined by the chief executive, so that the chief executive will have the power to determine the substantive remuneration level because the government has for the first time included chief executives as a public sector agency?

The Hon. G.E. GAGO: No is the short answer.

The Hon. R.I. LUCAS: Can the minister indicate on what basis that is incorrect, because the minister clarified earlier that they have included for the first time that a chief executive of a department is a public sector agency. So, Mr Hallion in transport is a public sector agency. The 'substantive remuneration level' definition makes it clear that a substantive remuneration level means 'the remuneration level determined by the public sector agency'. The Chief Executive, Mr Hallion, is the public sector agency under the definitions in the act. So, the substantive remuneration level, under what this government is proposing, can mean that the chief executive determines the substantive remuneration level for individual employees.

The Hon. G.E. GAGO: Section 34, 'Conditions of executive's employment', makes it clear, under subsection (1), that the employment of a chief executive of an administrative unit is to be subject to a contract made between the chief executive and the Premier in consultation with the unit's minister.

The Hon. R.I. LUCAS: I think the minister is missing the point. Section 34 talks about the conditions of, for example, Mr Hallion's employment. I am not interested in Mr Hallion's employment. What 'substantive remuneration level of an employee of a public sector agency' is talking about is that Mr Hallion has, say, 500 employees. We are not talking about what Mr Hallion's employment contracts are under section 34 because, as the minister has outlined, that is a contract between the minister and Mr Hallion (and I am not singling out Mr Hallion, but he was a witness at the Budget and Finance Committee meeting yesterday). The 'substantive remuneration level' definition here provides that the substantive remuneration level of an employee of, say, the transport department (the 500 people) means the remuneration level determined by the public sector agency. That can be Mr Hallion, the Chief Executive, in accordance with the regulations, and so on. If the minister is saying that my interpretation is wrong, how is it wrong, given her answers to the earlier questions in relation to the chief executive?

The Hon. G.E. GAGO: Yes, that is so.

The Hon. R.I. Lucas: What is so?

The Hon. G.E. GAGO: If the member gives me a chance, I will explain. The chief executive does set the remuneration for employees, but also in accordance with appropriate regulation and industrial awards and agreements.

The Hon. R.I. LUCAS: It pays to be consistent in this committee, because the first answer was no, full stop, and now it is yes. In the space of two minutes we go from no to yes. I can only advise other committee members, if they are interested, to perhaps persist with their questions. They may well get the answer eventually.

The Hon. G.E. Gago interjecting:

The Hon. R.I. LUCAS: The question was very clear. I read the definition to the minister. Anyway, the minister is now standing by her latest—and, I think, more accurate—response. This issue of the public sector agency and the definition does have flow-on implications in other provisions of the legislation, and that is why I am raising it in the definition clause, because I indicated that, in my view, it was a curious provision that the government had introduced into the legislation. It has wider ramifications when one looks at other provisions in clauses within the bill, and this is but one of them.

There is a new definition. As best as I can see, there does not appear to be a current definition for what is deemed to be a term employee. A term employee means an employee engaged for a specified term or for the duration of a specified project. Can I clarify whether that is what most of the rest of the world and we would refer to as a contract employee, or is a term employee different from someone who has taken a contract position?

The Hon. G.E. GAGO: It is analogous to a fixed term contract.

The Hon. R.I. LUCAS: Under the current act there is a definition of what is called a temporary position, which does not appear to be reflected in the bill. The act provides:

temporary position means a position—

(a) with duties that—

(i) are of a temporary nature; or

(ii) are required to be performed urgently without the delay involved in conducting selection processes; and

(b) with a term of employment not exceeding 12 months;

That definition has been removed from the bill. Will the minister indicate the government's thinking in relation to the removal of the capacity for temporary positions?

The Hon. G.E. GAGO: I have been advised that it has been replaced by 'term employees'.

The Hon. R.I. LUCAS: I will not persist in relation to that. It seems a curious change. 'Temporary position' has a term of employment not exceeding 12 months. If term employees are reflecting, as the minister has confirmed, the contract positions, well, contract positions can be for less than 12 months or 12 months but up to five years. I do not know whether they are longer than that, but my understanding is up to five years. I do not intend to pursue that difference at this stage.

Clause passed.

Clause 4.

The Hon. R.L. BROKENSHIRE: The bill provides:

The objects of this act are as follows:

(a) to promote a high performing public sector that—

focuses on the delivery of services to the public;…

(b) …

a code of conduct to enforce ethical behaviour and professional integrity in the public sector;…

(c) to ensure the public sector is viewed as an employer of choice;

(d) to encourage public sector agencies and employees to apply a public sector-wide perspective in the performance of their functions;

(e) to make performance management and development a priority in the public sector;

(f) to ensure accountability in the public sector;…

Given the opportunities for nepotism, bullying and harassment, and the fact that with the overall framework of this bill there will be a diminishing proactive response from the public sector, how does the minister believe the objects of this legislation will be achieved?

The Hon. G.E. GAGO: The chief underlying assistance or guidance for this will be within the code of conduct. Generally, though, it is a statement of principles that are adhered to, as well as general guidelines that are generally enshrined within the code of conduct.

Clause passed.

Clause 5.

The Hon. DAVID WINDERLICH: I move:

Page 10, after line 12 [clause 5(5)]—After dot point 5 insert:

ensure public sector employees are provided with an adequate level of resources for the tasks they are required to undertake;

ensure public sector employees are not unreasonably disadvantaged as a result of relocation.

The amendment is very simple, obviously so. My first amendment simply makes the point that a public sector can implement a government's resources in a timely manner only if there is some relationship between the resources it has and the response required. Without those resources there will be a lack of responsiveness or an overworked Public Service that breaches the much-touted work/life balance apparently valued by the government. Therefore employees are entitled to have the necessary resources to deliver policies of the government of the day.

These are not matters about which we can be precise in legislation, but we can give some direction and that is what these principles seek to do. The second of the principles, again, recognises that there is a necessity to relocate public sector employees from time to time, to enable the government to respond to changes in priorities and to more efficiently manage resources, but that the public sector employees should not be unreasonably disadvantaged or suffer harm as a result of such relocation. The interests of the public servants in this is obvious but there is a broader community interest.

The implementation of shared services is a very good example of where the relocation of public servants would have caused significant disadvantage not just for the employees but also for the communities in regional South Australia where they live. The government policy outlined in the 2006 budget would have caused enormous disruption to the employees and would have adversely affected the communities and the economies of which they were a part. This shows that these issues are not just about the Public Service itself, although that is important, but also it contributes to the employment and the economic base of communities.

The Hon. G.E. GAGO: The government does not support this amendment. I am not sure whether this is an intended consequence of the suggested amendment, but its effect is to give a positive right to an employee group or public sector union to challenge a budget decision on the grounds that it provides inadequate resources for his or her task. The already difficult tasks of prioritising between a range of initiatives will become contingent on an employee's acceptance of the adequacy of resources provided to them. If a budget decision is overturned and additional resources are compelled to be provided to the particular employee, from where are those resources to come?

The notion of adequate resourcing is inherently ambiguous. Given an identified task we would probably all come up with a different notion as to what constitutes adequate resourcing, and that is if we were faced with only one identified task. We would come up with radically different views if faced with 100 tasks and a set amount of resources. So, how would we expect a court or tribunal to determine whether or not resourcing was adequate? Just as importantly, why would we want to? Resourcing is classically a policy decision which should be left to government and is not a matter for the courts.

The amendment presumably is not intended to have some of these consequences but rather is intended to protect employees from action being taken against them for non-performance where the explanation for the lack of performance is that they simply cannot do the task assigned to them with the resources at hand. If that is the case it is unnecessary. Any decision regarding an employee can be appealed. If appealed it will be overturned if harsh, unjust or unreasonable.

If the adequacy of resources is relevant to the circumstances leading to the decision, it can be considered in deciding whether the decision is harsh, unjust or unreasonable. If the inadequacy of resources with or without other factors renders the decision harsh, unjust or unreasonable, the decision will be overturned.

It is theoretically possible that a decision might be made regarding the performance of an employee in circumstances where the employee had been given adequate resources but that in all the circumstances the tribunal finds that the decision was not harsh, unjust or unreasonable and so declines to overturn it. But that is as it should be. All the circumstances should be taken into account, not just one of them.

In terms of the second part of the amendment, the government does not support it, either. The principles are intended to be of general application. The employer-of-choice principles are to be applied in respect of employees regardless of the nature of the decision being made. The point of the principles is to obviate the need for specific rules, so to identify one type of decision (relocation) and elevate a rule specific to it in the principles runs completely contrary to the purpose of the principles.

The suggested amendment is also unnecessary. Amongst other things, the principles require that an agency treat employees fairly, justly and reasonably. This will apply to any decision regarding relocation, and any decision regarding relocation can be reviewed and, if reviewed, will be overturned if it is found to be harsh, unjust or unreasonable. So, adequate protections already exist in the bill. They are the right protections.

If a decision regarding relocation is harsh, unjust or unreasonable, it should be overturned, but if a decision regarding relocation is not so, it is difficult to see why it should not stand. Yet the amendment is apparently intended to allow for a decision that is neither harsh, unjust nor unreasonable to be overturned. Put another way, the amendment is apparently intended to allow a decision that treats an employee fairly, reasonably and justly to be set aside, and this does not make much sense.

The suggested amendment will also cause confusion. What is reasonable disadvantage? More importantly, what will it be construed to mean so that it adds to the requirement of fair, just and reasonable treatment or so that it adds to the requirement that the decision not be harsh, unjust or unreasonable? I would ask the Hon. Mr Winderlich to explain what it does mean that is different from those requirements.

I would also like him to explain why he has selected relocation of all the decisions that might be made in respect of any employee. Why not termination or demotion, etc.? All these could conceivably give rise to unreasonable disadvantage, whatever that is construed to mean. Is he really saying that it is okay to suffer unreasonable disadvantage as a result of any of these decisions, not just relocation? I am sure he is not saying that, but that is an inevitable construction of the suggested amendment. These are just some of the problems with the amendment and show why it ought not to be supported.

The Hon. D.W. RIDGWAY: I rise on behalf of the opposition to indicate that, while we have tremendous sympathy for the second component of the Hon. Mr Winderlich's amendment in relation to the government's policy of shared services and a range of positions being taken out of country areas or the position being transferred away and people having to move to the city to retain their employment or lose their position, we concur with the government about the first dot point of the Hon. Mr Winderlich's amendment where it could present an opportunity for someone to appeal against a decision that was actually a budget decision. While it has some small merit, we are unable to support the amendment on the basis that we are unable to support the first component of the amendment, notwithstanding the tremendous sympathy and support we have for the second part.

The Hon. M. PARNELL: The Greens support the amendment. I do not hold the same fears for its potential application that the minister does. It seems to me that the honourable member's amendments add a couple of extra dot points to a list in subclause (5) under the heading 'Employer of choice', which presumably is a list of things that the public sector agency should seek to do to help encourage people to join the public sector.

I do not accept that this list of things in any way interferes with the government's ability to set a budget, and I doubt very much whether these dot points would be justiciable or, in any event, not any more justiciable than anything else that is in these dot points. For example, what is already in the bill under the heading of 'Excellence' is, 'The public sector is to move resources rapidly in response to changing needs.'

Presumably someone who does not think that that is occurring could go to court and try to sue the government for not moving resources rapidly in response to changing needs, in the same way that the government is fearful that someone could try to bring legal action under the Hon. David Winderlich's amendment to say that they have not been provided with an adequate level of resources for the tasks they are required to undertake.

I do not believe that either of those situations is really going to give rise to a spate of legal proceedings. I think that what we are really doing in this legislation is setting broadbrush objectives about what we require of our public sector. I do not think that we need fear the inclusion of these items. Regarding the choice of the honourable member to pick out relocation amongst a range of things that might disadvantage an employee, again, relocation is at the more radical end of possible outcomes for a worker, involving things that might result in their having to give up their job if they have to move.

So, I have no problem with the honourable member including that under this list headed 'Employer of choice'. I think that these two additions both add to the flavour of the bill without giving rise to the potential for costly additional legal action. I will be supporting the amendment.

Amendment negatived; clause passed.

Clause 6.

The Hon. R.I. LUCAS: I have not read it but I assume there is a current public sector code of conduct which can be made available to members of the committee.

The Hon. G.E. GAGO: Yes.

The Hon. R.I. LUCAS: I thank the minister for that. Future changes in the public sector code of conduct, I assume, are entirely the prerogative of the government of the day, or is there some process that the public sector code of conduct has to go through before it can be changed?

The Hon. G.E. GAGO: The maintenance and review of the code of conduct is the responsibility of the commissioner under clauses 13 and 14, and the changes to that come under his or her responsibility.

The Hon. R.I. LUCAS: So, if the minister has that current copy of the Public Service code of conduct, do I take it that that has been issued by the current or previous commissioner? Has current commissioner McCann issued the code of conduct the minister will provide to us, or was it issued by the previous commissioner?

The Hon. G.E. GAGO: I have been advised that it was the previous commissioner.

The Hon. R.I. LUCAS: In relation to the public sector code of conduct, given the provisions and changes in the role of the Commissioner for Public Employment and the powers the Premier has given in a number of provisions—I have not had a chance to link them all together, but I will try to do it overnight—does either the minister or the Premier under this proposed bill have the capacity to direct the commissioner in relation to the code of conduct?

The Hon. G.E. GAGO: I have been advised that, yes, the commissioner is subject to the direction of the Premier and minister as per clause 16(3)(a), under which it must be communicated to the commissioner in writing and must be included in the annual report of the commissioner.

The Hon. R.I. LUCAS: Under clause 16, the minister rightly points out that the minister can direct the commissioner. The minister has to communicate it in writing and the commissioner can then include it in the annual report. What is clear from this then is that this particular provision provides that public sector employees must observe the public sector code of conduct. So, the minister and any future government—or, indeed, this current government—can direct the commissioner in relation to the public sector code of conduct. Having then directed the commissioner to change provisions, redraft it, put something else in there that he or she objects to—whatever—every public sector employee must observe the public sector code of conduct.

I have not discussed this with my colleagues, so I can only speak personally. I think that is a worrying set of circumstances. In essence, there is no obvious role for the parliament in relation to this. The legislation provides that public sector employees must observe the public sector code of conduct. There is no notion of it having the equivalence, say, of a regulation where it is disallowable if some future government or minister, for example, were to introduce unreasonable or onerous provisions into the public sector code of conduct through this mechanism and direct the commissioner to make these particular changes. The code of conduct then has to be changed by the commissioner and that is it—there is no role for the parliament.

I am not sure whether members of the cross benches and others are interested in the point that I am making. The fact that we are obviously not going to conclude the debate on this tonight I think may well be a cause for some reflection in relation to a combination of clause 6, the commissioner's roles and functions and also the extent to which there is a ministerial direction.

The other issue that I raised in relation to that ministerial direction, which we will get to eventually, is that there is no requirement to have that ministerial direction tabled within six sitting days, which I think was an issue that was discussed earlier.

I thank the minister for indicating that she will provide a copy of the current public sector code of conduct. I do not speak on behalf of the party in relation to this particular concern, but I will just flag on a personal basis that it is clear as to how this could be amended. I think it is an issue that ought to be at least considered by members of the committee.

The Hon. G.E. GAGO: I have been advised that this provision—this capacity for the minister to be able to direct the commissioner—is substantially the same provision that currently exists and would have existed under the Public Sector Management Act when the former government was in power. It obviously did not find that there were any problems with such a provision. It is quite astounding that the previous government found this arrangement quite acceptable and did not find any reason to make changes, yet suddenly it is finding reason for change.

The Hon. R.I. LUCAS: Can the minister indicate whether there is in the current act an equivalent provision to clause 6, which provides that public sector employees must observe the public sector code of conduct?

The Hon. G.E. GAGO: The short answer is yes, under section 6E(a).

The Hon. R.L. BROKENSHIRE: I flag that I will move that we reconsider this clause at the end of the committee stage, because I do not believe it is relevant whether or not the provision was set up like this in the existing act or the new act; the fact is that all bets are off when you bring in a bill. There is an opportunity to consider improvement to the legislation and given that, in my opinion, this legislation is more draconian than the current situation, I think there probably does need to be some check and balance for the parliament in the future when it comes to public sector codes of conduct.

The Hon. G.E. GAGO: I cannot help but comment that it is the very same allegedly draconian legislation that was in place when the honourable member was part of the former Liberal government.

Clause passed.

New clause 6A.

The Hon. A. BRESSINGTON: I move:

Page 11, after line 2—After clause 6 insert:

6A—Whistleblowing

Each public sector agency must—

(a) ensure that a public sector employee (with qualifications determined by the Commissioner) is designated as a responsible officer for the agency for the purposes of the Whistleblowers Protection Act 1993; and

(b) ensure that the Commissioner is informed of any disclosure of public interest information made to such a responsible officer under that Act if the person making the disclosure consents to the Commissioner being so informed; and

(c) ensure that an investigation of a disclosure of public interest information to such a responsible officer under that act is completed within 28 days of the disclosure.

This amendment seeks to ensure that public servants are made aware of the existence of the Whistleblowers Protection Act 1993 and to make it directly relevant to their employment in the public sector by linking the two acts.

In discussions on this amendment the minister argued that this was not necessary because we have the Whistleblowers Protection Act that stands on its own; however, I have heard many comments in the hallways here that the Whistleblowers Protection Act is not worth the paper on which it is written. So I believe this particular amendment is necessary in response to the many complaints and the many contacts that my office has had with employees in the public sector who have wanted to expose inappropriate conduct by their supervisors or fellow workers, only to have been bullied or intimidated in the process and some moved out of their positions as a result of their efforts. It also places the onus on the commissioner to enforce the requirement under the Whistleblowers Protection Act that agencies appoint a responsible officer to receive public interest disclosures.

According to some public servants, what is happening at present is that if they want to make a disclosure about a manager or supervisor the only person they have to make that disclosure to is the person about whom they have concerns, and this puts them in an untenable situation. This amendment seeks to ensure that embattled public servants know that they are entitled to appropriate remedy should they be wrongly or unlawfully sacked or disciplined or should they experience reprisals in the workplace.

The Hon. G.E. GAGO: The government opposes this amendment. The Whistleblowers Protection Act 1993 provides a complete code for disclosure of public interest information by a public sector worker, including the means by which disclosures may be made, the obligations of those to whom the report is made, and appropriate protections for those making disclosures. The government believes that no good purpose would be served by having two statutory regimes setting out the rights and obligations of people involved in whistleblower matters. This is all the more the case where, in some respects, the foreshadowed amendments are inconsistent with the Whistleblowers Protection Act itself.

Turning to these particular amendments, paragraph (a) is opposed because section 5(4) of the Whistleblowers Protection Act already provides for responsible officers. If there is any issue regarding their appointment or their qualifications, that is classically a matter for the Whistleblowers Protection Act.

Paragraph (b) is opposed. It requires that in all cases the responsible officer inform the Commissioner for Public Employment of the nature of the disclosure, but there will be many occasions where it will not be appropriate for the commissioner to be informed. His role relates to public sector employment. Disclosures relating to police matters, for instance, would rarely be appropriate to be disclosed to the commissioner.

Paragraph (c) is opposed because a 28 day time limit on completion of an investigation takes no account of the complexity and sensitivity of some of the matters raised in whistleblowers' complaints. An arbitrary time limit like this will lead to hasty and botched investigations which can be in no-one's interest. The nature of disclosure and subsequent investigations being often sensitive and complex suggests that such disclosures are not routine.

This highlights the need for an appropriate level of expertise and careful consideration for the way in which responsibilities for investigations are configured. This has been contemplated by the Whistleblowers Protection Act 1993, which lists circumstances and the appropriate corresponding authority. The provision of clarity of disclosure paths is important, and there is no anecdotal or recorded evidence to suggest that the current path provided under the Whistleblowers Protection Act is inadequate.

The Hon. A. BRESSINGTON: Given that all is well and good in the world of the whistleblowers, can the minister provide to this chamber the people who have been nominated as responsible persons in each government department to receive public interest disclosure statements made by whistleblowers, how long they have been in those positions and how many public interest disclosure statements they have received over the past 18 months to two years?

The Hon. M. PARNELL: If the minister wants to consider her answer, I will ask a very similar question. The minister's objection to paragraph (a) was that this is a duplication because the honourable member's amendment basically requires that each public sector agency has to ensure that a public sector employee is designated as a responsible officer. If I understood the minister's first response, she said that such people already exist. The honourable member has asked who they are and whether there a list somewhere. That is my question as well: do they exist? If they do not exist in practice, then I think relegislating to create those positions is not a bad thing.

The Hon. G.E. GAGO: I am happy to take that question on notice and bring back a response. I do not have those details with me.

The Hon. D.W. RIDGWAY: I indicate that the opposition has always been a strong advocate of open and accountable government. Certainly, we think that this is an important principle to support. I indicate that we will be supporting the amendment.

The Hon. R.D. LAWSON: In addition to the comments just made by my leader, I welcome this amendment from the Hon. Ann Bressington. It highlights a grave deficiency in the Whistleblowers Protection Act. I see the Hon. David Winderlich has a bill to amend the Whistleblowers Protection Act by providing for disclosure to the media in certain circumstances, rather than to the hierarchy presently required, and I think there is a good deal to commend that.

It is all very well for the government to say that this is already covered in the Whistleblowers Protection Act, but the minister is unable to indicate the responsible officers under that act. She may eventually be able to when she finds it. The Whistleblowers Protection Act, although it was introduced in 1993 amongst much heralding, has really been an abject failure. It provides certain protection to people who make disclosures—for example, it protects them from civil or criminal liability for so doing—but it has hardly encouraged whistleblowers to come forward. Whistleblowers, I suspect, simply do not believe that they will receive the protection which the act gives them. They accept that they will not be civilly or criminally liable, but they do not accept and they would be fools to accept the proposition that they will not be subject to reprisals from superiors when they make disclosures of this kind.

The reason that the legislation has not been a success is (a) that the structures I do not believe are there and (b) that the incentives are not there. We need an anti-corruption commission in this state but we also need a more effective whistleblowers act. This government is not going to open that act for debate. Here is an opportunity to improve the whistleblower system by introducing it into the public sector legislation, and I am glad we are supporting it.

The Hon. R.L. BROKENSHIRE: I rise to indicate that Family First will also be supporting this. I cannot understand the minister's answer on behalf of the government. It is similar to the answer we get in here when those of us, especially on the cross-benches, advocate an ICAC bill. The government says, 'We already have all these provisions in place and checks and balances. We don't need it.' However, with the changes in this bill—and these changes are vast, to say the least, when compared to what we have been dealing with—I do not think that public servants should be subjected to intimidation, threats and other factors when they are trying to be open, honest and accountable.

On the other hand, from a government point of view (this government and future governments) I would have thought it was in their best interests, especially when a government says that it wants to be open, honest, accountable and transparent, to advocate and support this amendment. We will certainly be supporting it.

The Hon. DAVID WINDERLICH: I will also be supporting the amendment. I think it is a very good amendment and it highlights a central problem which is that the whistleblowers have to blow the whistle to people above them in a cascading hierarchy of possibly guilt at some stage, in some cases right up the ladder, and that is a fundamental flaw in the bill.

I do have an amendment bill which I have introduced in the Legislative Council but that will almost inevitably be defeated when it goes to the lower house—if it gets that far. This set of amendments has some prospect of getting through. I think it is a very good set of amendments and very strategically placed. I commend them as one small step towards improving transparency in South Australia.

New clause inserted.


[Sitting suspended from 21:59 to 22:30]


Clause 7 passed.

Clause 8.

The Hon. R.I. LUCAS: Given that the government's new definition of a public sector agency includes a chief executive, I want to clarify the provisions regarding flexible arrangements to transfer within the public sector. Under subclause (3), a public sector agency may transfer an employee of the agency to other employment within the public sector on conditions that maintain the substantive remuneration level of the employee or are agreed to by the employee.

Subclause (4) provides that the public sector agency cannot transfer employees without the agreement of another public sector agency and, under subclause (6), the transfer of an employee under this section does not constitute a breach of the person's contract of employment or affect the continuity of the person's employment.

In essence, given that the public sector agency is now to be interpreted to include a chief executive, under this particular provision, the chief executive of the transport department, Mr Hallion, can transfer one of his employees to SA Water (because that is within the public sector) on the conditions that the substantive remuneration level, which he sets, is maintained. On that basis, there does not have to be an agreement by the employee as long as the substantive remuneration level is maintained and as long as the head of the other public sector agency—SA Water, or whichever one it happens to be—agrees to the transfer.

So, the government intends that the CEO of transport can transfer an employee; as long as the remuneration is maintained, the employee has no capacity to object to that and, as long as the new agency agrees, that transfer can occur. Is that an accurate reflection of what the government intends under clause 8?

The Hon. G.E. GAGO: I have been advised that this particular arrangement is substantially the same as that outlined in section 44 of the current act. Currently, the commissioner has the powers to transfer, but, in fact, in practice, he delegates that authority to the chief executive. Finally, an employee would be able to seek review of this decision under section 58 by the Public Sector Grievance Review Commissioner.

The Hon. R.I. LUCAS: Under the proposed bill the employee, if he or she objected to this transfer, could seek a review under what, clause 58?

The Hon. G.E. Gago: Clause 58.

The Hon. R.I. LUCAS: That is under the proposed bill?

The Hon. G.E. Gago: Yes.

The Hon. R.I. LUCAS: And those review provisions are substantially the same as the existing provisions in the current act.

The Hon. G.E. Gago: Yes.

Clause passed.

Clause 9 passed.

New clause 9A.

The Hon. D.W. RIDGWAY: I move:

Page 11, after line 38—After clause 9 insert:

9A—Consultation with employees and representative organisations

(1) Before making a decision, or taking action, that will affect a significant number of public sector employees, a public sector agency must, so far as is practicable—

(a) give notice of the proposed decision or action—

(i) to the employees; and

(ii) if a significant number of the members of a public sector representative organisation will be affected by the proposed decision or action—to the organisation; and

(b) hear any representations or argument that representatives of the employees or the organisation may wish to present in relation to the proposed decision or action.

(2) Nothing in this section limits or restricts the carrying out of a function or exercise of a power by the public sector agency under this Act.

Given the lateness of the hour, I will not speak at length. This amendment deals particularly with agencies notifying employees and their organisations of proposed decisions and to hear representations and arguments from them in relation to changes that may be made in respect of their employment. They must consult before decisions are made taking any actions against it, which will affect a significant number of public sector employees. This government has had a poor track record on consultation. We think this amendment enhances the bill and enshrines in legislation a more adequate level of consultation.

The Hon. M. PARNELL: Effectively, this proposed new clause 9A is the same as existing sections 4(3) and (4) of the current Public Sector Management Act. The first two amendments by the Leader of the Opposition I did not support because, in my view, they represented an effective restriction on the rights of workers to choose who their representatives should be. However, that does not mean that I cannot support this amendment, and, in fact, I will be supporting this amendment, because even though it still refers to the concept that was in the honourable member's first two amendments, it does it in such a way that I think that any public sector employee who is affected by a decision will be consulted and will have the right for any representative of their choosing to represent them in negotiations with the government.

The reason I say that is that the amendment basically requires that, having given notice to employees or to public sector representative organisations, the agency must hear any representations or arguments that representatives of the employees or the organisation may wish to present in relation to the proposed decision or action. Those words 'representatives of the employees', is separate from the other concept of representative organisations. Therefore, any union that may even have one publicly employed member would find that, if the member chooses to have their views represented by that union in negotiations, then that is what will happen. This does not restrict the ability of workers to choose who represents them, even though it does include the reference to the public sector representative organisation which, in any event, the committee in its wisdom has chosen not to amend in the way that the Leader of the Opposition sought to do with his first two amendments. On those grounds, I think it is a consistent approach for the Greens to take to support the current amendment.

The Hon. G.E. GAGO: The government opposes this amendment. The proposed wording narrows the circumstances in which there is an obligation to consult, and the bill's wording provides a broad obligation to consult on matters that affect public sector employment. The wording confines this to circumstances where a significant number of employees will be affected, and we do not support that narrower view.

The Hon. A. BRESSINGTON: I also indicate my support for this amendment. I go back to my previous life as a chief executive of a non-government organisation, where this type of consultation and representation would be required of us under the service excellence framework that the government set up for non-government organisations as a matter of team building, organisational function and accountability. I think that the government would have difficulty in opposing this amendment for the public sector when it is part of the service excellence framework that was developed for the non-government sector to function better.

The Hon. DAVID WINDERLICH: I will also be supporting the amendment.

New clause inserted.

Clause 10 passed.

Clause 11.

The Hon. A. BRESSINGTON: I move:

Page 12, after line 34—After subclause (7) insert:

(7a) The report must state the number of occasions on which public interest information has been disclosed to a responsible officer of the agency under the Whistleblowers Protection Act 1993 during the financial year to which the report relates.

This amendment will ensure that there is a mechanism by which the public interest disclosures can be tracked and monitored for evaluation purposes through the system, and that the parliament is kept informed in relation to the performance of the public sector in ensuring that misconduct, bullying and intimidation is being effectively monitored and reported. One of the problems with the application of the Whistleblowers Protection Act is that people can make public interest disclosure statements and send them up the line to their supervisor, and up further, and somehow they get lost in the system.

Public servants who have come to me have lodged public interest disclosure statements which have been floating around in the ether for anything up to 12 or 18 months and which have never been addressed. This amendment would ensure that a report would be handed in on a 12-monthly basis and it would list the number of public interest disclosure statements that have been made. The parliament would then have the opportunity to review that report and, if a lot of public interest disclosure statements have been lodged, that should raise concerns in this place about the treatment of public sector employees. Conversely, if there are none, I would think that we should also be a little suspicious.

This is just a reporting mechanism to make sure that the parliament is kept in the loop as regards the management of the public sector and the employees, who quite often are left hanging out to dry when they find themselves in difficult situations in the workplace.

The Hon. G.E. GAGO: The government opposes this amendment. I have spoken at length on and around the Whistleblowers Protection Act, so I do not think I need to say anything further.

The Hon. D.W. RIDGWAY: I indicate that we support the intent of the Hon. Ann Bressington's whistleblower amendments. We also support amendment No. 2.

The Hon. R.L. BROKENSHIRE: I indicate that Family First will be supporting this amendment. I have a question for the minister. We have a requirement for agencies to report annually. What processes will be in the act to ensure that they do report annually? The health complaints commissioner is responsible for Families SA. We are paying something like $600,000 a year to run that particular structure, yet it has not reported once to parliament. When I have highlighted the matter to the government, there has been no response. I think that is against base principles of law and also in contempt of parliament. I want the minister to explain what will happen if there is not an annual report from an agency.

The Hon. DAVID WINDERLICH: I indicate that I will be supporting the amendment. If the government has nothing to hide, it has nothing to fear from an amendment such as this.

The Hon. M. PARNELL: The Greens will be supporting the amendment.

The Hon. G.E. GAGO: As was pointed out, there is a requirement to report annually. If there is a failure to do so, the minister is then held accountable to the parliament.

Amendment carried; clause as amended passed.

Clause 12 passed.

Clause 13.

The Hon. D.W. RIDGWAY: I move:

Page 14, line 6 [clause 13(1)(e)]—After 'agencies' insert:

or on the Commissioner's own initiative.

This amendment provides for the commissioner to undertake an investigation on their own initiative. We think this provides an opportunity for more public confidence and the impartial umpire (the commissioner) to become involved, if they feel they need to. We think it further strengthens the provisions in the bill. I commend the amendment to the committee.

The Hon. G.E. GAGO: My comments pertain to the Hon. David Ridgway's amendments Nos 4, 5 and 6. The quality assurance role of the commissioner needs to be employed with a light touch. At the same time, however, this must be matched by an increased capacity for monitoring and reporting upon the performance of public sector agencies to make it clear that this increased flexibility comes with an increased obligation to perform.

The suggested amendments relate to the functions of the commissioner acting on his or her own initiative, including provision of advice on employment matters, provision of advice on and conducting reviews of public sector employment or industrial relations matters, and to investigate or assist in the investigation of matters in connection with public sector employee conduct or discipline.

These amendments seek to continue to involve the commissioner in individual employee matters. This is at odds with the fundamental objectives of the new legislation, which aim to streamline processes, make chief executives more accountable, elevate the role of the commissioner away from transactional matters and enable the commissioner to focus attention on establishing or maintaining standards and practices to be applied across the public sector. Therefore, we oppose all these amendments.

The Hon. M. PARNELL: The Greens will be supporting this amendment. That will come as no surprise, because I have identical amendments on file which I will not need to move if these amendments are passed.

The Hon. DAVID WINDERLICH: I seem to recall in the Equal Opportunity Act that we had some debate about the commissioner being able to initiate investigations. It seems to me that a similar logic applies, so I will be supporting the amendment.

The Hon. A. BRESSINGTON: I will also be supporting this amendment.

The Hon. R.I. LUCAS: I will be supporting the amendment, too, Mr Chairman. I am particularly referring to the third of the amendments to be moved by the Hon. Mr Ridgway. I want to make the point that I think it is indeed critical to that issue, as I highlighted in my second reading contribution, and I gave the example of the investigation by the previous commissioner into allegations against the CEO of the Department of the Premier and Cabinet and how that investigation came about.

Unless the commissioner has the capacity to initiate those sorts of investigations, you have the situation in paragraph (g) where, if there is an allegation or a complaint of nepotism, personal patronage or a variety of other conflict of interest provisions against a chief executive, unless it is required or agreed by the Premier there may well not be an investigation, as has occurred under the current Public Sector Management Act. I am delighted to hear that the majority of members in this chamber are supporting what appears to be all the amendments, and I will not therefore proceed with any further debate on it.

Amendment carried.

The Hon. R.I. LUCAS: I noted that the Hon. Mr Brokenshire indicated that, at the end of the committee stage, he was going to seek leave to reconsider one of the earlier provisions. I raised this issue of subclause (2) in my second reading contribution. Again, I hasten to say that I speak on a personal basis in relation to this. It was not something that I picked up prior to our party room discussion on it so I do not profess to speak on behalf of the party. This provision is creeping into a number of pieces of legislation. On one or two previous occasions we have opposed it. Subclause (2) provides:

The commissioner has any other functions assigned to the commissioner under this act or by the minister.

As I said, other provisions in the past have sought to do this, but in essence we are saying, 'Okay, here are all these wonderful functions for the commissioner, but in the future if the minister decides to add any other function he or she can do it.' That seems to be an extraordinary provision to give a minister without any capacity for the parliament. We are passing this legislation. We are agreeing to paragraphs (a) through to (g) in terms of the functions. We have amended them, yet as a committee we are potentially leaving this provision in there.

As I said, I speak on a personal basis, but I think that it ought to be an issue that should not be able to be handled by the minister. There should be parliamentary oversight in relation to any change in function that is contemplated by any future minister. I urge the Hon. Mr Brokenshire and any other Independent member to contemplate their views on this issue and, if we are going to reconsider one or two clauses at the end of the committee stage tomorrow, potentially that is something that might be further considered.

The Hon. D.W. RIDGWAY: I move:

Page 14—

Line 8 [clause 13(1)(f)]—After 'Minister' insert:

or on the Commissioner's own initiative

Line 11 [clause 13(1)(g)]—After 'agency' insert:

and investigate such matters on the Commissioner's own initiative

These are consequential on the first amendment.

The Hon. A. BRESSINGTON: I move:

Page 14, line 11 [clause 13(1)(g)]—After 'agency' insert:

and investigate such matters on the Commissioner's own initiative (including on receipt of public interest information under the Whistleblowers Protection Act 1993)

This amendment enables the Commissioner for Public Employment to investigate allegations of misconduct or wrongdoing under the Public Sector Bill as consistent with the powers afforded the commissioner under the Whistleblowers Protection Act.

Again, during discussions about this particular amendment, the minister's advisers spoke about extending the powers of the commissioner and giving the commissioner the right to initiate an investigation. As the Hon. David Winderlich said earlier, we did that in the equal opportunities bill and it would seem a little bit hypocritical, I think, that we can do it for one particular bill and not another, and for one particular sector and not another. I commend this amendment to the committee.

The Hon. D.W. Ridgway's amendments carried.

The CHAIRMAN: The Hon. Ms Bressington's amendment could be added if the committee so desires—that is, the words in brackets '(including on receipt of public interest information under the Whistleblowers Protection Act 1993)' could be added to the end of the words inserted by the Hon. Mr Ridgway.

The Hon. G.E. GAGO: The government opposes this amendment.

The Hon. D.W. RIDGWAY: The opposition supports the proposed amendment of the Hon. Ann Bressington.

The Hon. A. Bressington's amendment carried; clause as amended passed.

Clause 14.

The Hon. G.E. GAGO: I move:

Page 14, lines 20 to 22 [clause 14(2)]—Delete subclause (2) and substitute:

(2) The code will be taken to allow a public sector employee to engage in a private capacity in conduct intended to influence public opinion on an issue, or promote an outcome in relation to an issue of public interest, except if—

(a) it is reasonably foreseeable that the conduct may seriously prejudice the government or a public sector agency in the conduct of its policies given the relative seniority of the employee, the extent to which the issue is relevant to the role or a previous role of the employee and the nature and circumstances of the conduct; or

(b) the conduct involves—

(i) disclosure of information in breach of intellectual property rights; or

(ii) disclosure of information contrary to any law or to any lawful instruction or direction relating to a specific matter; or

(iii) disclosure of information with a view to securing a pecuniary or other advantage for the employee or any other person; or

(iv) disclosure of information of commercial value the disclosure of which would diminish its value or unfairly advantage a person in commercial dealings with the government or a public sector agency; or

(c) the conduct is disgraceful or improper conduct that reflects seriously and adversely on the public sector.

(2a) Subsection (2)(a) does not apply in respect of conduct engaged in by an employee in the employee's capacity as a matter of the governing body of a public sector representative organisation.

The government agrees with the desire to make clear that there is no intention to unduly restrict the conduct of employees outside their employment; however, the amendment to subclause (2) as proposed by the opposition and the Hon. Ann Bressington to not restrict participation by public sector employees in community activities that are unrelated to employment is ambiguous and will create confusion.

What are the community activities? The community activity might encompass just about anything that takes place outside work. More importantly, I doubt that the suggested provision in fact provides the protection those advancing it seek to provide, because it will not protect someone legitimately engaging in conduct outside of work that does somehow relate to their employment.

To enact the principles and practices of clause 5(6) underlying the bill, I think that we all would accept that there should be some limits on this freedom to engage in public activities critical to the government by virtue of the fact of being a public servant. There will be circumstances in which the participation by some public sector employees in certain community activities should be restricted; for example, the chief executive of DECS publicly lobbying the government for changes to carer/child ratios is probably something that we would not regard as legitimate entry into public debate.

What the government has put forward is a sound policy proposition, giving guidance to public sector employees to assist judgment in what is appropriate public conduct. The government proposes a new subclause that sets out boldly and clearly that the code of conduct will not prevent employees from engaging in conduct intended to influence public opinion or promote an outcome in relation to an issue of public interest.

The clause then sets out sensible limitations on the right to public participation in recognition of the particular position of public servants. This clause both extends the protection to the right circumstances and provides sensible limits on the freedom to engage in public affairs.

The Hon. D.W. RIDGWAY: I indicate that the opposition will be supporting the government amendment, but at the same time I indicate that we will be moving our amendment. Even though they are similar we think that the next amendment adds further strength to the provisions outlined in the amendment.

The Hon. M. PARNELL: This particular item was the main focus of my second reading contribution, which I will certainly not repeat now, but it does raise this fundamental issue of what we as a society do when we engage public servants. I believe that we engage their time and their expertise, but we do not buy their souls. They are entitled, in their private lives, to do what they will in the community sector.

That sometimes includes activities that may be counter to government policy. They may be embarrassing; they may be aimed at changing corporate behaviour or government behaviour, and I think we need to put in place every measure to give our public servants freedom.

I have had a number of discussions with the minister's office around how we might best deal with this, and we will have to consider shortly whether the government's amendment, which I will be supporting, can sit with the Hon. Ann Bressington's amendment and also the Hon. David Ridgway's amendment.

I wanted to say at the outset that what I particularly like about the minister's amendment is that the starting position is one which basically enshrines the right of free speech and then considers some exceptions to that rule. The proposed words start with:

The code will be taken to allow a public sector employee to engage in a private capacity in conduct intended to influence public opinion on an issue, or promote an outcome in relation to an issue of public interest...

And then there are the exceptions. That is an important starting point. The default position is that public servants are allowed to engage. We then need to work out what should be the exceptions to that position. We need to be clear that public servants are allowed to engage in areas of their portfolio, but the degree of their engagement will depend on a number of factors, including their level of seniority. We should have no problem with teachers on the steps of Parliament House advocating for a better education system, and the minister referred to child care workers. We have had nurses advocating for a better health system. The fact that their activity is related to their area of employment should not be any embargo to their engagement in public debate.

The minister's amendment recognises that. The exceptions the minister's amendment refers to is conduct that may seriously prejudice the government. We do not know entirely what that means, but we know it is serious rather than just a person being a member of a crowd on the steps urging a change in government policy: that would not be serious of its own right, so that is okay. The minister's exception also refers to the relative seniority of the employee, so we will not see chief executives with a megaphone condemning government policy from the steps of Parliament House, but I would like to think that people a bit lower down the rank might have that freedom. There is a certain ambiguity built into this, but that is not necessarily a bad thing.

In terms of the amendment before us, the Greens will support the government's amendment and I would be interested to hear the debate shortly about how the other two amendments on this topic would fit in within the government's framework.

The Hon. R.L. BROKENSHIRE: Family First by and large supports the intent of this amendment. I have a question following from what the Hon. Mark Parnell outlined. We have seen a situation where certain members of the nursing or medical fraternity have come out on television and other media supporting the government's policy of relocation of the Royal Adelaide Hospital to a greenfields site. If a senior nurse, senior medical officer or a senior public servant from the health department happens to not agree with that policy, and comes out the other way opposing it, is that a serious breach with respect to the government's policy and, if so, what ramifications would there be for that person?

The Hon. G.E. GAGO: I have been advised that it would be assessed on a matter of fact and degree, so things like the seniority of the staff member, what they said, the context they said it in, and the effect on government policy would be taken into consideration, and it would be assessed primarily by the chief executive and could result in disciplinary action, depending on the severity of the action.

Amendment carried.

The Hon. D.W. RIDGWAY: I move:

Page 14, after line 22—After subclause (2) insert:

(2a) The code of conduct may not restrict participation by public sector employees in community activities unrelated to their employment except so as to ensure that public sector employees conduct themselves in public in a manner that will not reflect adversely on the public sector.

The opposition believes this adds a little more to the amendment moved by the minister, notwithstanding the extent of the minister's amendment and what it does. We think this amendment adds a little more weight to the code of conduct and, in particular, to the activities of public sector employees—especially in community activities unrelated to their employment—to ensure that members of the public sector always conduct themselves in public in a manner that does not reflect adversely on the public sector. I know it is a slight duplication, but I think it strengthens the provisions already included by the minister.

The Hon. G.E. GAGO: The government opposes the amendment.

The Hon. M. PARNELL: I had thought there might be a little more debate on how the two would fit together. The first thing to note is that we have just incorporated a new subclause (2a), so presumably this would be renumbered (2b) or something like that. My view is that there is some duplication, which does complicate it a little, but I think the starting point still is sound in that it provides that the code of conduct may not restrict participation; in other words, it reinforces the fact that the default position is less rather than more restrictive.

I have some nervousness around the incorporation of the phrase 'unrelated to their employment' in case it might be interpreted in the reverse in that, if it is related to their employment, then it is not on for a public servant to comment. That is not the intent of the government's amendment, which is a question of degree, including seniority. At the moment my position is to support the amendment. If legal advice is that the two amendments do not sit together comfortably, perhaps we can revisit it later; however, for now I support this amendment.

The Hon. G.E. GAGO: The government believes that its provision and the opposition's amendment are in conflict. One provides broader protection to participate in public affairs but provides sensible limits; the other provides a narrower protection for community activists unrelated to employment but provides no sensible limits in the way in which the employee engages in their activity. We believe the two are hopelessly in conflict.

The Hon. R.L. BROKENSHIRE: I have a question for the Leader of the Opposition. The leader has drafted the wording 'conduct themselves in public in a manner that will not reflect adversely on the public sector'; as a point of clarification, can the leader provide an example of what would be regarded as an adverse reflection upon the public sector?

The Hon. D.W. RIDGWAY: I suppose they are more matters of illegality—illegal behaviour, behaviour at a public demonstration that reflects adversely on the public sector, public behaviour of that nature—

The Hon. A. Bressington interjecting:

The CHAIRMAN: Order! The question was asked of the Leader of the Opposition.

The Hon. R.L. BROKENSHIRE: As a further point of clarification, if the person is at a local football match and happens to have a few too many beers and makes some statement about how they feel about the public sector, or if they happen to wear a T-shirt protesting about issues around some aspects of the public sector, are they going to have a problem?

The Hon. D.W. RIDGWAY: I guess it is always up to interpretation. Any behaviour that reflects badly on the public sector would be captured by this amendment.

The Hon. R.I. LUCAS: I am not sure how other members are going to vote, so there would appear to be some prospect of the amendment at least proceeding to the next stage, and I think that is a reasonable proposition. I think the position the Hon. Mr Parnell has foreshadowed is a reflection. We are going to recommit other clauses anyway so, if there is subsequent legal advice, that can be tidied up.

The only question I would raise, having now looked at the government's amendment and our own amendment, is that this amendment is talking about activities unrelated to their employment. With the government's amendment, the test there is ultimately 'disgraceful and improper conduct that reflects seriously and adversely on the public sector', whereas the test and the wording in our amendment is 'will not reflect adversely on the public sector'.

If this goes through, and if we refine the drafting to make it consistent, it may well be useful to have the same test (or a similar test) in relation to the reflection on the public sector. There seems to be a much higher test in the government's amendment, albeit that it refers to a different range of circumstances, whereas our amendment refers to any activities unrelated to their employment, and then it is just anything which reflects adversely on the public sector. I think that issue might need to be covered in any reconsideration of this matter should it pass to the next stage.

The Hon. A. BRESSINGTON: I am a little confused. I am wondering whether in the past, without this amendment, public servants were required to submit to some sort of disciplinary action or misconduct hearing perhaps because of their conduct at a football game. I am also worried that, if this amendment goes through, we are now putting in legislation a consideration that has previously not been an issue. Is that the minister's take on this?

If there is nothing in legislation about conduct outside of work and unrelated work matters, then it is not a point of law. But once we actually put it in as such, then we are creating a situation where, as the Hon. Robert Brokenshire said, a public servant could be reported for going to a footy game and having a couple of drinks too many and yelling a bit too loud or using an obscenity. I want to be clear on whether that is the concern of the government as well because, if it is, then perhaps we are putting the public sector under more of a microscope than we need to.

The CHAIRMAN: I remind honourable members that they should not be consulting people in the galleries.

The Hon. G.E. GAGO: The current provision in section 57 states that employees are liable to disciplinary action if they are guilty of disgraceful or improper conduct in an official capacity or guilty in a private capacity of disgraceful or improper conduct that reflects seriously and adversely on the Public Service. So, it is a fairly serious test as you can see.

The Hon. D.W. RIDGWAY: By way of clarification, I think my amendment adds to the minister's amendment. First, the code allows community participation and then my amendment additionally allows absolute clarity that, if an activity does not relate to their own agency, they can take action as long as it is not bad conduct.

The Hon. M. PARNELL: It might assist members that I have in front of me the current Code of Conduct for South Australian Public Sector Employees dated March 2005 which I obtained in the 10 minute break that we had earlier on the assumption that it is a similar sort of document that will be in place under this new arrangement. Under the heading Conduct in Public, the current code of conduct states:

As a public sector employee you must consider the impact of your actions in public whether on duty or not. For example, you should still behave to the same standard if you are at an office social function after work hours. If you have permission to work in another job you must ensure that the work you do and your conduct upholds the principles expressed in this code of conduct and does not adversely affect your work in the public sector.

It does not actually touch on very many of the issues that we have been discussing at all, which have been in relation to protests and demonstrations. The current code of conduct, on my quick reading of it, is fairly silent at present as to the standard expected, so there will, necessarily, be an element of speculation on our part. However, what I do like about the amendments that we are considering is that the default position is that public servants can engage, and there has to be a good reason to stop them engaging.

The committee divided on the amendment:

AYES (9)
Bressington, A. Dawkins, J.S.L. Lensink, J.M.A.
Lucas, R.I. Parnell, M. Ridgway, D.W. (teller)
Stephens, T.J. Wade, S.G. Winderlich, D.N.
NOES (8)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Gago, G.E. (teller) Gazzola, J.M. Hood, D.G.E.
Hunter, I.K. Wortley, R.P.
PAIRS (4)
Schaefer, C.V. Zollo, C.
Lawson, R.D. Holloway, P.

Majority of 1 for the ayes.

Amendment thus carried.

The Hon. A. BRESSINGTON: I move:

Page 14, before line 23—Before subclause (3) insert:

(2b) The code will be taken to require that an employee of a public sector agency may report actual or suspected maladministration or misconduct in the public sector to the Commissioner or an executive employee of the agency (or both), or participate in an official inquiry into such maladministration or misconduct, without suffering discrimination, disadvantage or adverse treatment in relation to his or her employment.

This amendment seeks to prohibit the behaviour of some senior departmental executives giving direction to, threatening or prohibiting public servants from giving evidence to an inquiry into any government department and affirms the right of public servants to make reports of public sector wrongdoing or misconduct to parliament as well as utilise the services of their elected members.

In the past, staff from some agencies have been dissuaded and cautioned against giving evidence to inquiries such as the Families SA committee. Staff in other agencies have been threatened with disciplinary proceedings and investigation for breach of the Public Sector Management Act.

This amendment will ensure that public servants are aware of their right to give evidence to public inquiries without fear or favour. It seeks to make clear that activities that may embarrass the government, especially where those activities are unrelated to their employment, cannot be deemed to be in conflict with the role of the Public Service or the duties of a particular public servant or their capacity to exercise their job in the most professional and lawful manner.

The Hon. G.E. GAGO: The government opposes this amendment. We have already expressed our view around whistleblower matters, and that is on the record.

The Hon. D.W. RIDGWAY: I indicate that the opposition will be supporting the Hon. Ann Bressington's amendment.

The Hon. M. PARNELL: The Greens support the amendment.

The Hon. DAVID WINDERLICH: Nothing to hide, nothing to fear—I support the amendment.

The Hon. R.L. BROKENSHIRE: No surprise on this one—we also support the amendment.

Amendment carried; clause as amended passed.

Clause 15 passed.

Clause 16.

The Hon. R.I. LUCAS: This is a matter I have raised before so I will not argue the case again, but I just ask for the minister's response. Does the government have a problem in principle with a provision being inserted in clause 16 which would require that any ministerial direction be tabled within, say, six sitting days?

The Hon. G.E. GAGO: No, we do not support that proposal. The Commissioner for Public Employment is subject to ministerial direction, except that no ministerial direction may be given to the commissioner requiring material to be included in or excluded from a report that is to be laid before parliament. The bill proposes a provision similar to section 23 of the Public Sector Management Act 1995, with adjustments resulting from the changing role of the commissioner.

No evidence exists to suggest that the lag reporting in the past has been inadequate to safeguard inappropriate direction, and I do not think the former Liberal government saw that as creating any problems when it was in government. If it did, it certainly did not bring it to anyone's attention or make any attempt to make changes. In addition, circumstances may exist where it is not in the interests of the role the commissioner is undertaking to be tabled immediately.

Clause passed.

Clauses 17 to 19 passed.

Clause 20.

The Hon. A. BRESSINGTON: I move:

Page 16, after line 34 [clause 20(2)]—After paragraph (b) insert:

(ba) state the number of occasions on which public interest information has been disclosed to the Commissioner under the Whistleblowers Protection Act 1993; and

Basically, this amendment is a repeat of an earlier amendment. This amendment seeks to monitor and track public interest disclosures in order to evaluate the effectiveness of protections offered under the Public Sector Bill and the Whistleblowers Protection Act.

The Hon. G.E. GAGO: The government opposes this amendment for the same reasons we have outlined previously.

The Hon. D.W. RIDGWAY: I indicate the opposition will be supporting the Hon. Ann Bressington's amendment.

Amendment carried; clause as amended passed.

Progress reported; committee to sit again.


At 23:33 the council adjourned until Wednesday 3 June 2009 at 14:15.



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