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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 2 June 2009. Page 2464.)

Clauses 21 to 23 passed.

Clause 24.

The Hon. R.I. LUCAS: Clause 24(2) states, 'The following persons are excluded from the Public Service', and paragraphs (d) and (e) make it clear that the Auditor-General and the Ombudsman are excluded from the Public Service. I asked a question earlier as to whether or not the Auditor-General and the Ombudsman were public sector agencies, and the answer was that they were public sector agencies. Can the minister explain, if they are public sector agencies, how it is that they are excluded from the Public Service?

The Hon. G.E. GAGO: I have been advised that, under the definition of 'public sector agency', paragraph (e) refers to 'any other agency or instrumentality of the Crown'. We are saying that the Ombudsman and the Auditor-General are instrumentalities of the Crown.

The Hon. R.I. LUCAS: I understand how the government answered the earlier question; that is, that under the various definitions in that subclause it indicated that the Ombudsman and the Auditor-General were public sector agencies. So, I accept that in that definition. But how is it that, if they are public sector agencies, under this clause in the bill they are excluded from the Public Service?

What the minister is saying to the committee is that they are public sector agencies, remembering, of course, that the chief executive of an administrative unit is also a public sector agency. So, the Auditor-General, himself or herself, and the Ombudsman, himself or herself, are public sector agencies, yet we are saying that they are excluded from the Public Service. Is that how we are to interpret this and is that what is intended?

The Hon. G.E. GAGO: I have been advised that, yes, that is what is intended. A number of public sector employees would be excluded from the Public Service, and some of them are listed in clause 24(g), namely, the Electoral Commissioner, the Deputy Electoral Commissioner, the Commissioner for Public Employment, the Police Complaints Authority and others. There is a list there.

The Hon. R.I. LUCAS: I understand that a list is there and the minister has referred to other elements of the list, but what I am seeking clarification on is how you can have a person who is a public sector agency yet is excluded from the Public Service. As we go through the various other provisions of the legislation there are things in relation to appointments, terms and a whole variety of things which apply to people governed by this act.

Let us take the employees under the Education Act. We were asking questions the other evening about contract executive appointments, the SAES, all those sorts of things. The minister's reply was, 'Well, that doesn't apply to those. They are employed under the Education Act and not under the Public Sector Management Act.' This clause under the existing act and this bill, as I understand it, in essence say, 'Okay, the Public Sector Management Act', or now the Public Sector Bill, whatever it is going to be called, 'applies to these persons but it doesn't apply to people in education, it doesn't apply to the judiciary, and it doesn't apply to TAFE employees and all these others.' It is also saying that it does not apply to the Auditor-General and the Ombudsman and, I presume therefore, his or her officers.

Yet in response to an earlier question when I asked, 'Is it a public sector agency?', the minister's advice was, 'Well, it is a public sector agency.' When I have been going through all the other questions about public sector agencies and asking questions, the answer has been, 'Well, it does apply to the Auditor-General's office and it does apply to the Ombudsman's office.' If it is a public sector agency, dozens of other clauses refer to public sector agencies, which means that all these provisions in the bill apply to the Auditor-General and his or her staff and the same with the Ombudsman, yet this provision actually excludes them from the Public Service.

On the surface of it in drafting terms it appears to me to be inconsistent, and nothing the minister has yet indicated clarifies this question.

The Hon. G.E. GAGO: The advice I have received is that people, such as the Ombudsman, the Auditor-General, etc., are appointed under other acts, and it is that legislation or those acts that determine their conditions of employment and such like. Their staff, however, are public servants and governed by the Public Service Act. The Ombudsman needs to be referred to as an agency because he is the head of that entity and needs particular powers to manage and run that entity. It does not mean, however, that they have become public servants themselves. Clause 24 to which I referred excludes them from the Public Service.

The Hon. R.I. LUCAS: I will not pursue any further that issue. I think that there is an inherent conflict when one looks at other provisions in the legislation. I will go through some of those later on. It is best to draw attention to those when we come to them.

The Hon. J.A. DARLEY: Can the minister tell me where the Valuer-General fits into this arrangement? Is he a public servant?

The Hon. G.E. GAGO: The advice is that he is not included, and that is dealt with also in clause 24(q), dealing with a person whose terms and conditions of appointment or employment are under another act to be determined by the Governor, and that includes the Agent-General.

The Hon. R.I. LUCAS: Is the minister saying on her advice that all the staff within the Auditor-General's office, other than the Auditor-General himself or herself—and the same with the Ombudsman—are all public servants governed by the provisions of the Public Service Act? I presume that it is the same with the Valuer-General. The second issue is that last night through various clauses we asked the minister to make available through her officers copies of a number of documents like the public sector code and a list of the public sector agencies that have been exempted. If her officers have that information available, might interested members be provided with copies this evening?

The Hon. G.E. GAGO: The answer is yes, the staff members remain public servants. With regard to the information we took on notice, it is unlikely to be available this evening, but it is on notice and we will provide it.

Clause passed.

Clause 25 passed.

Clause 26.

The Hon. R.I. LUCAS: One of the new innovations in the legislation is the notion of an attached office. Will the minister give one or two examples to the committee of an attached office, units or whatever that exist that are likely to come under this provision of an attached office?

The Hon. G.E. GAGO: Currently under the Public Sector Management Act the Public Service is to consist of administrative units. The Public Sector Bill provides that administrative units may take the form of departments or attached offices. The department is essentially the same as a current administrative unit and an attached office is assigned a title and attached to a department or departments and will have its own chief executive. It is equivalent to the administrative offices under the Public Administration Act 2004 in Victoria. Some examples in Victoria include the Office of the Child Safety Commissioner and the newly created Bushfire Reconstruction and Recovery Authority.

The Hon. R.I. LUCAS: Is the minister indicating that at this stage the government is not aware of an existing unit or office that might be an attached office under this provision if the legislation is to be passed?

The Hon. G.E. GAGO: No decisions have been made, is the advice I have received.

Clause passed.

Clauses 27 to 33 passed.

Clause 34.

The Hon. R.I. LUCAS: In relation to the conditions of chief executives' employment, is there a current government policy that chief executives who have been appointed on a five-year term are only to be reappointed for a three-year extension?

The Hon. G.E. GAGO: The advice I have received is that we are not aware that it is a policy. However, it is common practice.

The Hon. R.I. LUCAS: I take it, therefore, that there is no legislative provision in relation to the issue of reappointment of chief executives, and the minister has indicated that her advisers are not aware that it is a policy. As I understand it, it was in an existing chief executive's position, that is, a person who might have been a chief executive of a department could be reappointed for a period of up to three years, but could be appointed to another department as a chief executive for a five-year period. I take it from what the minister is saying that she is not aware of such a policy but that it is common practice. Will the minister clarify that?

The Hon. G.E. GAGO: The advice I have received is that there is no legislative basis for the practice. I am advised that such conditions stipulating the extra three years are not contained in contracts; in fact, under section 34(2)(a) the standard provision in a contract is that the chief executive is employed for a term not exceeding five years as specified in the contract. However, I understand that it is common practice.

Clause passed.

Clause 35.

The Hon. R.I. LUCAS: My question on clause 35 relates also to clause 37. First, and in relation to clause 35, is this provision exactly the same as the provisions currently in the Public Sector Management Act? Secondly, I take it that the transfer of chief executives can occur on any grounds at all. If one looks at clause 37, for example, the Premier can, by notice in writing, terminate the employment of a chief executive without specifying any ground; so, if the Premier just does not like you, you can be terminated without any grounds at all under that clause. I think that is probably also under the existing Public Sector Management Act (I have not checked that myself). I understand that it is as broad as that; it is clear that it is without specifying any grounds.

I also seek clarification in relation to transfer. A new premier can walk through the door one day and say, 'I don't like you in Industry and Trade. You're off, and I'll reassign you somewhere else. I can give you another chief executive's job or I can sit you in the redeployment lounge, as long as I pay you the same remuneration.' The premier of the day has absolute flexibility in relation to any chief executive in the public sector.

The Hon. G.E. GAGO: In relation to the first part of the question regarding whether it is the same provisions as in the PSM act, the advice I have received is that it is not. However, I have been informed that it has generally been put into contracts. In relation to the second part of the question and the transfer of chief executives on any grounds at all, yes, it is. That is in section 35(1); however, such a decision has the potential to be subject to a review under the administrative law principles.

The Hon. R.I. LUCAS: I thank the minister for clarifying that we are looking at a new power in the law under clause 37. That is, the premier of the day can walk through the door and say, 'I don't like you as a chief executive' and terminate that chief executive's employment without specifying any grounds.

In relation to the transfer of a chief executive, when the minister says that she is advised that it could be subject to review under administrative law, the bill that we are being asked to support is quite clear. That is, that the premier has the power to transfer as long as the conditions are maintained in terms of the remuneration of the chief executive. For example, subclause (2) provides that a transfer under this provision does not constitute a breach of the person's contract of employment or termination, or affect the continuity of the person's employment for any purpose. Is it not drafted so as to prevent any review? If the minister's advice is that there is a review, can she advise on what grounds there would be such a review?

The Hon. G.E. GAGO: In relation to the first part of the question regarding the transfer of chief executives, it is exactly the same principle that applied when the former Liberal government was in power, the same principle that the former Liberal government did not consider it necessary to change. I would like to draw that to the committee's attention.

In relation to administrative law principles, an example could be that a person is denied natural justice. It is a provision that relates to general common law.

Clause passed.

Clauses 36 to 44 passed.

Clause 45.

The Hon. D.W. RIDGWAY: I assume that the government will withdraw its amendment if I move mine. I move:

Page 24, line 40 [clause 45(2)(b)]—Delete 'in accordance with the regulations'

This subclause reads, 'to the promotion of an employee by way of reclassification of the employee’s remuneration level in accordance with the regulations'. This amendment, by removing the words 'in accordance with the regulations', ensures that provisions within section 32 of the act are available in order to allow for the review tribunal to reconsider reclassification appeals.

The Hon. G.E. GAGO: Yes, we support the opposition's amendment; it is identical to our own and we will not proceed with the government amendment.

Amendment carried; clause as amended passed.

Clauses 46 and 47 passed.

Clause 48.

The ACTING CHAIRMAN (Hon. I.K. Hunter): We have two amendments to clause 48, one standing in the name of the Hon. Mr Ridgway and another standing in the name of the minister; they appear to me to be identical.

The Hon. D.W. RIDGWAY: In the spirit of bipartisanship, I will withdraw mine and we can support the government's amendment when the minister moves it.

The ACTING CHAIRMAN: The wisdom of Solomon.

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

Page 25, after line 29—after subclause (2) insert:

(3) The remuneration level of an employee of a public sector agency may be reclassified by the agency on the initiative of the agency or on application to the agency by the employee.

(4) The regulations may not exclude the right of an employee to apply under Part 7 Division 4 to the Public Sector Grievance Review Commission for review of a decision on an application by the employee under subsection (3).

It is the government's intention to allow appeals in relation to decisions regarding reclassifications to be considered by the Public Sector Grievance Review Commission. These review rights will not be excluded by regulation. In reviewing this provision and in response to concerns raised by the other place, the government agrees, for reasons of certainty and clarity, that the bill be amended in this way.

Amendment carried; clause as amended passed.

Clauses 49 to 52 passed.

Clause 53.

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

Page 27, line 5 [clause 53(1)]—Delete 'A public sector agency may' and substitute:

The Commissioner may, at the request of a public sector agency,

This amendment maintains the power of the Commissioner for Public Employment to terminate rather than giving it to the agency, and I think it is self-explanatory. This amendment maintains the power for the Commissioner for Public Employment to terminate rather than, as I said, giving it to the agency. We understand that the government will be opposing this but we think it is an important amendment and I urge members to support it.

The Hon. G.E. GAGO: The government opposes the proposal that the responsibility for terminating the employment of employees be withheld from the chief executives and given to the Commissioner for Public Sector Employment. The government believes that the chief executives should be accountable for the work of their agencies but, if we do not make the chief executives responsible for decisions regarding termination of staff for things like misconduct or serial non-performance, they can justifiably say that they should not be held accountable for the performance of that staff.

As I outlined in my second reading speech on this issue, the government believes that failure to provide to chief executives the power to terminate has been a disincentive for agencies to take responsibility for properly managing their employees. I outlined some of the consequences for morale of staff around that. In all other mainland Australian jurisdictions, the power to terminate public servants' employment has been given to chief executives. After all, we are content to allow that to happen for most of our broader public sector employees, those outside the Public Service—teachers and health workers, etc. Of course, there are some agencies, such as health, where there are both public servants and public sector workers. The chief executive will have the authority to terminate one group but not another.

What point of principle is it that justifies that sort of result? The role of the Commissioner for Public Sector Employment is to lead good practice by setting the appropriate standards across government and to encourage the achievement of those standards and monitor performance against them. By relieving the commissioner of the function of individual transactions or matters, he or she will be better able to perform that role. It is by the commissioner performing this role that a consistent application of standards across government can best be achieved.

The Hon. R.I. LUCAS: I will offer some commentary in support of the amendment moved by the Hon. Mr Ridgway. I raised this issue in the second reading contribution; that is, by and large, this is essentially an academic debate. The minister proclaims lofty principles in relation to the need for chief executives, and so on, to have the power to terminate. However, the reality is that this government and former governments have in essence overridden the particular provisions of the current Public Sector Management Act and will continue to do so should this amendment pass.

The amendment provides that a public sector agency can terminate an employee if the employee is excess to the requirements of the agency. The logic that minister Weatherill and various business leaders have been proclaiming publicly is that this is an essential provision, which has essentially existed albeit in a more cumbersome form, that, if you are excess to the requirements of the agency, you can be terminated, as I said, with some cumbersome requirements, but you can still be terminated.

Agencies have for many years declared people to be surplus. At every meeting the Budget and Finance Committee gets some indication from chief executives of the number of surplus or excess employees that they have, but they are not terminated. The only way that they can be exited from the Public Service under the current industrial arrangements is if they are offered a targeted separation package and encouraged to retire, or if they choose to go of their own volition. Under the enterprise bargaining arrangements, which this government and previous governments have entered into with the Public Service Association and other representatives of the workforce, they have said that, in essence, they will not use these particular provisions and they will not terminate even if people are excess to requirements.

The Hon. M. PARNELL: I have decided to not move my amendment No. 4. There are three amendments on file that relate to clause 53. I will be supporting the Hon. David Ridgway's amendment to clause 53.

The committee divided on the amendment:

AYES (12)
Bressington, A. Brokenshire, R.L. Hood, D.G.E.
Lawson, R.D. Lensink, J.M.A. Lucas, R.I.
Parnell, M. Ridgway, D.W. (teller) Schaefer, C.V.
Stephens, T.J. Wade, S.G. Winderlich, D.N.
NOES (7)
Darley, J.A. Finnigan, B.V. Gago, G.E. (teller)
Gazzola, J.M. Holloway, P. Hunter, I.K.
Zollo, C.
PAIRS (2)
Dawkins, J.S.L. Wortley, R.P.

Majority of 5 for the ayes.

Amendment thus carried.

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

Page 27, lines 14 and 15 [clause 53(2)]—Delete 'A public sector agency may not terminate the employment of an employee under subsection (1)(a) or (b) unless the agency' and substitute:

The employment of an employee may not be terminated under subsection (1)(a) or (b) unless the public sector agency

This is just a basic rewording of clause 53(2) and will make it a little easier to interpret.

The Hon. G.E. GAGO: I have already put on record our view on this. The government opposes this amendment also.

Amendment carried.

The Hon. A. BRESSINGTON: I move:

Page 27, after line 18—After subclause (2) insert:

(3) A public sector agency may not terminate the employment of an employee of the agency unless the employee has been given written notice advising the employee that he or she has 14 days within which to raise with the Commissioner any allegations of maladministration or misconduct on the part of the agency or an employee of the agency and that period has expired.

This amendment seeks to give reasonable time and notice to any whistleblower and agency that matters of public interest may be raised in the process of termination which may have a bearing on the reasonableness and/or lawfulness of the termination. I would like to briefly explain my concern around the termination process where it may lie with the CEO and, of course, it would involve government agencies that I have had quite a bit to do with in my office, such as Families SA. It would not be an unreasonable assumption that, if an employee in that agency was not satisfied with the performance of their supervisor or the decisions of their supervisor, and raised those matters, and the CEO had the authority (as was proposed by the government) to terminate, the employment of that mindful employee who was trying to bring some sort of ethical practice into the agency could very well have been terminated without any opportunity to present any kind of case to the commissioner for unlawful or unreasonable termination.

So, this requires that 14 days' notice would be given and in that time, if an employee does not lodge any sort of statement to the commissioner, the termination will continue. If, in fact, within that 14 days they raise allegations of maladministration or misconduct with the commissioner, those claims or allegations must be investigated before the termination can be made official.

The Hon. G.E. GAGO: The government opposes this amendment most strongly. In fact, we believe it has serious potential consequences that are no doubt unintended by the mover. I am sympathetic for the intentions of the mover but potentially it has most serious consequences, and I would urge all honourable members to think very carefully about this amendment before supporting it.

Regardless of whether an employee is in the process of being terminated, a right exists, including post termination, for disclosure to be made under the Whistleblowers Protection Act 1993. If the premise of this amendment is to ensure that a whistleblower disclosure cannot be forestalled by the termination of the employee, then it proceeds from a mistaken premise. More importantly, it cannot be a good idea that an employee facing termination be given an invitation to make any allegation he or she wishes.

There will be every incentive and no disincentive to fabricate or exaggerate issues of concern. It is possible that perfectly innocent employees will be the subject of investigations based on false allegations. Where there is a question of termination being used as revenge for a disclosure under the Whistleblowers Protection Act, there is already a remedy under the act. Alternatively, if real reason for termination is the fact of making disclosure or threatened disclosure, it is likely any such termination would be overturned by the Industrial Relations Commission. I urge members not to support this amendment.

The Hon. DAVID WINDERLICH: I support the amendment. In response to the minister's comments, I do not think we have much evidence that there is a gross over-utilisation of FOI in the whistleblower provisions. The much stronger feeling is that these provisions are under-utilised, partly because they are not strong enough. In fact, I recently read some US research which stated that one-third of public sector employees believe they have witnessed illegal or unethical conduct in the workplace. Unless we are vastly different here—and I suspect we are not vastly different—we probably have a similar problem.

The greatest problem we face in relation to whistleblowing is its under-utilisation, not its over-utilisation. We do not have a zillion disgruntled public servants trying to make mischief with it. We have a lot of public servants keeping quiet because they know that they are not safe if they do blow the whistle.

I support the amendment but, consequential to the amendments we have just passed about the commissioner terminating employment, we probably need to replace 'the public sector agency' with 'the commissioner may not terminate employment'.

The Hon. D.W. RIDGWAY: The advice the opposition has received is that my amendment No. 10 covers the provisions that the Hon. Ann Bressington is trying to introduce with this amendment. Therefore, I indicate that we will not be supporting the Hon. Ann Bressington's amendment.

Amendment negatived; clause as amended passed.

Clause 54.

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

Page 27, lines 22 and 23 [clause 54(1(b)]—delete paragraph (b) and substitute:

(b) suspend an employee of the agency from duty for a specified period (which may be or include an antecedent period) with or without remuneration or accrual of leave rights.

While it is unusual for disciplinary action with a pay option to exist, it is necessary to retain the ability for some form of natural justice to occur. We think that this amendment provides an opportunity for some form of natural justice to occur. Having said that, we also believe that the government has an amendment which is similar to, if not the same as, this amendment. We hope that the government sees fit to support our amendment and withdraw its amendment.

The Hon. G.E. GAGO: The clause relating to disciplinary action provides that if a public sector agency is satisfied that an employee is guilty of misconduct the agency may, among other things, suspend the employee from duty without remuneration or accrual of leave rights for a specified period. The suggestion that suspension as a disciplinary action may be with pay seems anomalous. Persons found of guilty of misconduct will effectively be given a paid holiday. If the opposition can provide examples or grounds where an employee should be suspended with pay for a disciplinary action, we will consider supporting this amendment.

The Hon. D.W. RIDGWAY: This will be a little confusing, but I seek leave to withdraw my amendment. We will support the government's amendment to clause 56.

Leave granted; amendment withdrawn.

The Hon. R.I. LUCAS: I want to raise a general issue in relation to disciplinary action—and we return to this in clause 56. I want to make two general points in relation to disciplinary action. First, a number of examples have come to my attention and, to be fair, over a good period of time but, certainly, in recent times under this government, although I am sure they occurred under previous governments as well.

Sometimes the management practices within the Public Service in relation to disciplinary action leave a lot to be desired. I gave an example, I think, two or three years ago when I asked a series of questions (all of which the ministers have refused to answer) in relation to an employee within the department of arts, who had said something that her superior believed was rude and, ultimately, that person was suspended with pay (and I am working on memory now) for, I think, 12 or maybe 18 months.

The practices there were just so appalling that this issue was not resolved one way or another for that lengthy period—and that is a criticism of the personnel and human relations practices within some government departments and agencies. I do not intend to revisit that issue on this occasion, but I highlight it as a particular problem under the current act and I believe that it will continue, obviously, under the proposed legislation as well.

The second point that I would make generally in relation to disciplinary action is that, certainly, in recent years we have seen a quite arbitrary imposition of disciplinary action for virtually the same actions or breaches; that is, the examples in relation to breaches of Treasurer's Instructions when they related to what has become commonly referred to as the 'stashed cash affair'. There were various public servants at levels below the chief executive who attracted most of the focus at that time (and I think there is still potentially legal action taking place, so I will not refer to that case) and who, because they were deemed to have breached Treasurer's Instructions, were subject to disciplinary action.

The Budget and Finance Committee over the past 18 months has taken evidence in cases where a number of agencies and officers have similarly breached Treasurer's Instructions, and it has been acknowledged by their superiors in the evidence to the Budget and Finance Committee. However, those particular officers having breached Treasurer's Instructions, no action was taken against them.

The point that I make in relation to disciplinary action and personnel practices is that, if someone wants to get you, they can use the provisions of the existing legislation—or, indeed, this proposed legislation—to impose discipline in a particular way. Yet there have been cases, as I said, where officers have similarly breached Treasurer's Instructions and no similar action has been taken. I am not arguing in that case as to whether all of them or none of them should have been subject to disciplinary action but, at the very least, there should appear to be some consistency in terms of the use of these sorts of provisions against public servants for what are, in this case, breaches of Treasurer's Instructions.

Clause passed.

Clause 55 passed.

Clause 56.

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

Page 28, after line 21—After subclause (1) insert:

(1a) Subject to subsection (2), a suspension will be with remuneration.

The provision relating to suspension is designed to make clear arrangements for suspension during investigation. The intention of clause 56 is to make suspension with pay other than in the specific circumstances set out in clause 56(2), where there is a discretion to suspend without pay. The government seeks to insert a new clause 56(1a) to make it clearer that, outside those specific circumstances, suspension pending investigation is with pay.

The Hon. D.W. RIDGWAY: As I indicated earlier when I was seeking leave to withdraw my previous amendment, the opposition's view is that the government's amendment more adequately deals with the provisions we were trying to insert previously. So, we have much pleasure in supporting the government's amendment.

Amendment carried; clause as amended passed.

Clauses 57 to 60 passed.

Clause 61.

The Hon. R.L. BROKENSHIRE: I move:

Page 31, after line 7 [clause 61(8)]—After paragraph (c) insert:

(d) a decision to transfer an employee, or to assign an employee to a different place, that reasonably requires the employee to change his or her place of residence.

This is quite a simple amendment. It adds, as a ground for external review of a departmental decision by the Industrial Relations Commission, the right to appeal against a transfer that reasonably requires the employee to change their place of residence. 'Reasonably requires', as discussed with parliamentary counsel, is wording to rule out, for instance, where an employee is reassigned, say, from DTEI in Walkerville to DTEI head office in the city. That is not a decision that reasonably requires them to relocate, so it is not reviewable. However, by contrast, a transfer from Northfield to Murray Bridge, as is advocated with the new prison to be built at Mobilong reasonably requires the employee to change their place of residence.

The other benefit is that it strengthens decentralisation, because the department will know that, if it seeks to shut down a branch of, for example, Service SA (as members will be aware has been happening), it will face potential external review if it tries to shift those staff to Adelaide.

On the last page of the memo I have extracted the whole clause of the bill with the element added at the end to show members where it fits in, but describing relocation decisions as a prescribed decision also shifts these decisions away from the oversight of the quasi tribunal—arguably, the kangaroo court—of the Public Sector Grievance Review Commission and instead sends it straight to the Industrial Relations Commission.

The final point that I would like to make to colleagues, and particularly to the government, is where they might try to argue against negative connotations, one might say. The government might argue that this would allow any employee to challenge any reassignment and let people stay entrenched in one location. The provisions are robust enough, with the words requiring the complainant to show that the required move was 'harsh, unjust or unreasonable'. In addition, regulations can be drawn up prescribing how these matters are treated should that develop into a problem for the government. The other argument may be that the government might turn around and say, 'Well, we don't want to support this because it will put paid to the new Mobilong prison', which I expect the government might try to say. We say, no.

Again, the IRC will consider whether the terms are harsh, unjust or unreasonable. The government will need to make an appropriate incentive package offer to existing staff regarding relocation, not just shift them all to Mobilong. This amendment ensures that the matter is handled properly. We think that this is about fairness, equity and being reasonable. We ask colleagues to support the amendment.

The Hon. G.E. GAGO: The government opposes the amendment. The amendment effectively seeks to add another category to a prescribed decision as the bill requires that any review of a prescribed decision is heard by the Industrial Relations Commission (IRC) of South Australia. Under the bill a review of a decision, such as transfer of place of residence, would be heard by the Public Sector Grievance Review Commission. The government does not see any benefit in substituting the review mechanism to the IRC as suggested by this amendment.

This arrangement would cloud review processes, making this type of appeal more legalistic and formal. For less serious matters it is the government's policy position intention to retain an internal process to government and a streamlined review mechanism for dealing with grievances of this nature.

The Hon. D.W. RIDGWAY: I indicate that the opposition will be supporting the Hon. Mr Brokenshire's amendment. As I mentioned last night, one of the dot points in the Hon. Mr Winderlich's amendment covered what the Hon. Mr Brokenshire is trying to deal with but, unfortunately, we could not support the Hon. Mr Winderlich's amendment.

This amendment in relation to location, where people live and the pressure put on families to relocate to maintain jobs or relocate to keep the job as the position shifts, is certainly something the opposition holds dear. We have seen a number of positions terminated in regional South Australia at the expense of regional communities. I do not think the government realises that, when you take a position out of a regional community, it is not just the person who loses their job but there are the flow-on effects of having that family and those children in that community.

There is a benefit not only to the local economy but also to all the community groups, including the footy club, the netball club, the church—

The Hon. Carmel Zollo interjecting:

The Hon. D.W. RIDGWAY: —the Apex and Rotary clubs, whatever it happens to be. I think that members will see that the Hon. Mrs Zollo indicates by her interjection that the government simply does not understand the value of these positions in country areas. With those few words, the opposition is happy to support the Hon. Mr Brokenshire's amendment.

Amendment carried; clause as amended passed.

Clauses 62 to 70 passed.

Clause 71.

The Hon. R.I. LUCAS: I raised this in the second reading. I did not speak at length, but I did not get a reply from the minister so I will pursue this again. I seek clarification as to the intention of this provision. Does it cover the set of circumstances which relate to the appointment of staff of, for example, Independent members of the Legislative Council and the Leader of the Opposition in the Legislative Council?

The Hon. G.E. GAGO: I am advised that if the appropriate regulation was made it could cover those staff members.

The Hon. R.I. LUCAS: I guess that, if I cut straight to the bottom line, the question is: what is the intention of this provision? The minister is saying that it could apply if appropriate regulations were made. It has been drafted for a particular purpose. I am seeking from the minister: what is the purpose? The Independent members can speak for themselves but, as I understand it, staff have contracts with the Treasurer and extraordinarily onerous processes must be gone through when you are reappointing staff, changing staff, or whatever it is. It has to go through the Treasurer and through cabinet, and inevitably there are delays in relation to appointments, payments and those sorts of things for staff.

This has been a bone of contention for some time, and in the past the explanation has been that the Public Sector Management Act was the problem because the members could not employ the staff themselves. They had to be appointed by the Treasurer. Is this clause intended for this purpose, and is the government intending to use it for this purpose?

The Hon. G.E. GAGO: The intention of this provision is to allow for the appointment of staff to bodies such as royal commissions—that is what I have been advised the government had in mind—for example, the Mullighan Inquiry into Child Sexual Abuse, the Royal Commission into Aboriginal Deaths in Custody and the Kapunda Road Royal Commission. Under the PSM Act employees undertaking work for the royal commissions have been employed as public servants and as such they are notionally responsible to a public sector agency chief executive. This provision ensures both perceived and actual independence of employees of royal commissions and/or persons employed in equivalent bodies.

The Hon. R.I. LUCAS: Is that (1)(b) you are talking about? I am asking about (1)(a). The minister referred to (1)(b), referring to a person in employment of a class prescribed by the regulations, royal commissions and so on; I understand that. The provision I am asking about is:

(1) The minister may engage—

(a) A person as a member of the staff of a Member of Parliament;

That is an unusual set of circumstances and it is sensitive for members of parliament who like to be independent. This is saying that the minister will appoint a member of a person's staff. I understand the position of the Independents, and it is for them to confirm that or otherwise as I am not in their position. However, I know in my former position as Leader of the Opposition that in the case of one of the staff members there—the research-based position, I think, which is similar to the positions Independents have—whenever you wanted to do anything, it is a contract with the Treasurer and not with you as the person responsible, everything has to be done through Treasury and the Treasurer and, if there is a change, you are always advised that it has to go through cabinet and it is four weeks to wait before you can get onto the cabinet agenda, and so on.

The advice given to me previously—and the Independents can speak for themselves—is that this has been a restriction from the Public Sector Management Act and various other legislative provisions. I am not fussed about (1)(b) relating to royal commissions, but is this provision in essence reinforcing the current arrangements or will it do something to assist the appointment processes for Independent members of the Legislative Council and the position in the Leader of the Opposition's office also?

The Hon. G.E. GAGO: My advice is that this provision reflects the similar arrangement that currently exists, except that it aims to simplify the process, removing the need for cabinet intervention and that of the Governor. It is simplification of a process.

The Hon. R.I. LUCAS: If that is the case, I welcome that change. I assume under this that the minister is not the Treasurer but it will be minister Weatherill. The arrangements the government is moving to is to take away part of the cumbersome nature of having to go to cabinet and the Governor, but it is still cumbersome from members' viewpoints in that a minister, rather than they themselves, is employing the staff, but it is a step in the right direction. I clarify that the minister that Independent members will be working with will no longer be the Treasurer but minister Weatherill, whatever is his title.

The Hon. G.E. GAGO: That is the correct assumption, I am advised.

The Hon. M. PARNELL: I thank the Hon. Rob Lucas for commencing this line of inquiry. My question of the minister refers to where it says in the clause that 'the minister may engage a person as a member of the staff of a member of parliament' on conditions determined by the minister. What process will the minister go through to determine those conditions, and will current restrictions, such as the inability to replace a research officer on sick leave with a temporary officer, or such conditions be removed? As members would know, if personal assistants are ill and take time off, or if they are undertaking necessary training, we can get in a temporary replacement, but Treasury-employed staff have no capacity to be replaced. What is the process the minister will go through to determine these conditions and the consultation with members of parliament that will be undertaken, and are casual replacements part of the government's proposal?

The Hon. G.E. GAGO: The honourable member's questions are at a very operational level. They would be matters for the minister to determine. I am happy to take the questions on notice and, if there is further information, I am happy to bring it back. I am not sure whether that level of detail has been dealt with presently.

The Hon. M. PARNELL: I thank the minister for that response and it need not stand in the way of our progressing the bill, but I would like the minister to get back to us with information on the matters I have raised.

Clause passed.

Remaining clauses (72 to 80) and schedule 1 passed.

Schedule 2.

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

Clause 1, page 41, lines 26 and 27 [Schedule 2, clause 1(2)]—Delete subclause (2) and substitute:

(2) The Governor may appoint a presiding commissioner and assistant commissioners to the Commission.

(2a) Before the Governor makes an appointment under subclause (2), the Minister must invite representations from public sector representative organisations on the proposed appointment.

(2b) A person appointed as a commissioner must have, in the opinion of the Governor, appropriate knowledge and experience of principles and practices of personnel management in the public sector.

Note—

The heading to clause 1 will be altered to 'Establishment of Commission and appointment of commissioners'.

My amendment simply deletes subclause (2) and substitutes a number of subsequent subclauses. I think those subclauses are quite self-explanatory. They establish the commission and then detail the provisions by which the commissioners are appointed to the commission and the qualifications they need. I believe this amendment strengthens the bill, and I commend it to the committee.

The Hon. G.E. GAGO: The government opposes the amendment in favour of its own amendment, which has similarities with the amendment moved by the Hon. Mr Ridgway. The government has accepted the proposals regarding the appointment processes for commissioners and agrees that unions should be given the opportunity to make representations regarding appointment and that the bill should refer broadly to the skill set required by commissioners. The government therefore proposes to amend schedule 2, clause 1, relating to the appointment of public sector grievance review commissioners. I move:

Clause 1, page 41, after line 27—After subclause (2) insert:

(2a) Before the Governor makes an appointment under the subclause (2), the Minister must invite representations from the public sector representative organisations on the proposed appointment.

(2b) A person appointed as a commissioner must have, in the opinion of the Governor, appropriate knowledge and experience of principles and practices of public sector employment.

The Hon. D.W. RIDGWAY: The opposition is advised that the minister's amendment is not in conflict with our amendment, other than the numbering of the subclauses may need to be altered. We are advised that the government's amendment adds extra strength to our amendment, so I indicate that while the opposition will certainly insist on its amendment it will also support the government's amendment.

The Hon. M. PARNELL: I move:

Clause 1, page 41, after line 27—After subclause (2) insert:

(2a) A person appointed as a commissioner must have, in the opinion of the Governor, appropriate knowledge and experience of principles and practices of public sector employment.

My amendment is identical in wording to one of the subclauses in the Hon. Mr Ridgway's amendment as well as being identical to one of the subclauses in the minister's amendment. In the pecking order, the position of the Greens is that we will support the Hon. Mr Ridgway's amendment; if that is unsuccessful, we will support the minister's amendment; and, if that is unsuccessful, we will, of course, support our own amendment.

I want to say that a difficulty I have always found with positions such as these is the concept of unfettered ministerial discretion in the selection of people to important jobs. These amendments more or less attach some criteria that the minister must take into account when appointing someone, and the starting point has to be that they know a bit about the topic. Members may be surprised to know how many ministerial appointments are made to statutory authorities and statutory positions where that simplest of criteria is ignored; it is the idea of jobs for the boys, jobs for mates, in statutory positions. I believe we need to fetter the discretion and we need to ensure that appropriate people are appointed.

The subclause that relates to the person having appropriate knowledge and experience of the principles and practices of public sector employment is important. The other provision that is common to both the minister's and the Leader of the Opposition's amendments is to make sure that the unions are consulted. I believe they are two important improvements to the unfettered discretion that exists in the bill.

The Hon. G.E. GAGO: I have just been advised that it would be in everyone's interest if the government withdrew its amendment and supported the opposition's amendment. Therefore, I seek leave to withdraw my amendment.

Leave granted; amendment withdrawn.

The Hon. M. PARNELL: I also seek leave to withdraw my amendment.

Leave granted; amendment withdrawn.

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

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

Clause 2, page 42, lines 5 to 12—Delete clause 2 and substitute:

2—Panels of nominees

(1) For the purposes of proceedings before the Commission there is to be—

(a) a panel of public sector employees nominated by the Commissioner for Public Sector Employment; and

(b) a panel of public sector employees nominated by public sector representative organisations.

(2) The Minister may, from time to time, invite the public sector representative organisations to nominate employees to constitute a panel.

(3) If a public sector representative organisation fails to make a nomination in response to an invitation within the time allowed in the invitation, the Minister may choose public sector employees instead of nominees of the organisation and any employees so chosen are to be taken to have been nominated to the relevant panel.

(4) A person ceases to be a member of a panel if the person—

(a) ceases to be a public sector employee; or

(b) resigns by notice in writing to the Minister; or

(c) is removed from the panel by the Minister on the ground of misconduct, neglect of duty, incompetence or mental or physical incapacity to carry out duties of the member satisfactorily; or

(d) has completed a period of 2 years as a member of the panel since being nominated, or last renominated, as a member of the panel, and is not renominated to the panel.

2A—Proceedings—constitution of Commission and other matters

(1) The Commission will, for the purposes of hearing and determining proceedings, be constituted of—

(a) the presiding commissioner or, at the direction of the presiding commissioner, an assistant commissioner; and

(b) a member of the panel of nominees of the Commissioner for Public Sector Employment selected by the presiding commissioner for the purpose of the proceedings; and

(c) a member of the panel of nominees of public sector representative organisations selected for the purpose of the proceedings—

(i) by the applicant for review; or

(ii) if there are 2 or more applicants and they do not agree on the selection of a nominee—by the presiding commissioner.

(2) The Commission may sit contemporaneously to hear separate proceedings.

(3) If proceedings are part-heard when a person ceases to hold office as a commissioner, or ceases to hold office as a member of a panel on retirement or resignation from public sector employment, on resignation, or on completion of a period of 2 years as a member of the panel, the person may continue to act in the office for the purpose of completing the hearing and determination of the proceedings.

(4) The presiding commissioner or assistant commissioner is to preside at the hearing of any proceedings of the Commission.

(5) A decision in which any 2 or more members of the Commission concur is a decision of the Commission.

(6) A member of the Commission who is a public sector employee is not subject to direction as an employee in respect of the performance of duties as a member of the Commission.

(7) The Commission must endeavour to complete any review within 3 months and must, in any event, proceed as quickly as a proper consideration of the matter allows.

This is a quite lengthy amendment that deals with the commission being constituted of three people: a presiding commissioner and two panel members, one from a panel nominated by the Commissioner for Public Sector Employment, and one from a panel nominated by the public sector representative organisations. I think it is relatively self-explanatory and I commend it to the committee.

The Hon. G.E. GAGO: The government opposes this amendment. The bill provides for reviews by a single commissioner rather than a continuation of a panel of representatives. This change has been made on the basis that in reviewing the PSM act there was a desire to streamline processes and increase efficiencies. Current arrangements are considered unwieldy and complex. Participation on panels is time-consuming for panel members and places an administrative burden on the appeals bodies.

In addition, the value of employer and employee representatives has been questioned in terms of decision-making processes. It is perceived that in some instances decisions by panel members are made in a partisan manner. Also, in contemplating the notion of a whole of government employment framework, the government wanted to increase consistency in review provisions across the public sector. Other public sector agency legislation provides an appeal for termination and/or disciplinary action to the Industrial Relations Commission, with appeals heard by a single commissioner: the Education Act 1972, Children's Services Act 1984, TAFE Act 1975; Health Care Act 2008.

The opposition also proposes that the commission must endeavour to complete any review within three months and must, in any event, proceed as quickly as a proper consideration of the matter allows. The intent of this provision—that is, the expeditious handling of reviews by the commissioner—is supported. However, consistent with the treatment throughout the bill, it is proposed that matters of detail such as this be detailed in the Public Sector Regulations as provided by clause 61(6)(b).

The regulations may make provision relating to the conduct of the reviews under this section. The use of regulations, rather than the act, allows for greater detail to be provided in relation to the operation of the commission including commencement, conduct and timeliness of completion. The government gives an undertaking that regulations will be drafted to ensure that any review is completed within a clear time frame and that, in any event, it will proceed as quickly as a proper consideration of the matter allows.

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

The Hon. DAVID WINDERLICH: We will be supporting the amendment.

The Hon. A. BRESSINGTON: We will be supporting the amendment.

Amendment carried; schedule as amended passed.

Schedule 3 and title passed.

Bill reported with amendments.

Progress reported; committee to sit again.

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