ALERT DIGEST 14 of 1994
Part 3
PUBLIC SECTOR MANAGEMENT (AMENDMENT) BILL
10.1
This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Jeff Kennett MP with The Honourable Pat McNamara MP.
10.2
This Bill amends the Public Sector Management Act 1992.
10.3
Clause 5 amends section 11 of the Act so as to allow appointments to all Department Heads positions other than the Official Secretary to be made by the Minister rather than the Governor in Council. Appointments to the position of Official Secretary are to remain with the Governor in Council. The Committee notes the comments in the Second Reading Speech:-
"In relation to Department Heads, the Bill will remove the ambivalence regarding their employment status. Currently, they are appointed by the Governor in Council, but their employer for the purposes of their contract is me, as Minister responsible for the Public Sector Management Act.
This confusion is removed by the Bill as the Governor in Council will no longer be part of the normal process of appointing or terminating most department heads. The power to appoint department heads, aside from the official secretary to the Governor, will now be a ministerial function while the power to terminate derives from the termination powers in the contract of employment and in the Act."
Clause 6 adds the Regulator-General to the list of prescribed officers who have all the functions of a Department Head. Clause 7 amends section 55 which relates to the employment of executive officers to be governed by contract of employment. It provides that the contract of a Department Head may be terminated by the Governor in Council. Contracts may still be terminated by 4 weeks notice.
Clause 8 amends section 63 which relates to the vacation of executive positions to provide that contracts which are terminated in accordance with the Act are deemed to be vacant. Clause 9 amends section 81 to provide that those sections which relate to the compulsory transfer and transfer of Department Heads do not apply to the Official Secretary to the Governor unless an Order in Council is made declaring that those sections apply and is published in the Government Gazette.
Clause 10 amends sections 89 and 90. Section 89 allows Orders in Council to be made applying specific provisions of the Act to declared authorities. The amendment ensure that such Orders may not be made in respect of holders of independent offices, such as judges, magistrates. the Solicitor-General, the Ombudsman, the Auditor-General and the Regulator-General. The exception to this is the Assistant Commissioner of Police. Such an officer may be removed by a resolution of both Houses of Parliament.
Clause 11 limits the jurisdiction of the Supreme Court. This is discussed later at 10.4. Clause 13 amends Schedule 1 to include the Office of the Victorian Government Solicitor. The amendment operates retrospectively from the date of the Order in Council which was made on 7 July 1993.
Clause 14 amends Schedule 2 which lists declared authorities. Clause 14 adds a number of declared authorities. The amendments are required as Orders in Council made to amend the Schedule were ineffective due to a failure to advertise those Orders. As the affected officers acted on those Orders, the Bill will also validate those actions and the changes to the Schedule made by the Bill will operate from the dates of the various orders. It also amends the Schedule to provide declared authority status to Assistant Commissioners of Police and apply the provisions of the Act dealing with senior executive positions to those offices. The Committee notes the comments in the Second Reading Speech:-
"This addition is designed to increase the accountability of senior police for their predominant function - management. It is not intended and will not infringe the independence which police officers require in the detailed administration of the law. The power to arrest, to search and to prosecute will remain the independent function of individual police officers and will not be affected by the Bill in any way.
The Act protects that independence of the force in three ways:
Firstly, Assistant Commissioners are to be made accountable, not to the Minister for Police, but to the Chief Commissioner of Police. The Chief Commissioner will have the power to appoint and terminate and to assess the performance of assistant commissioners. Ministers are to have no additional power to that which currently exists in relation to the officers concerned.
Secondly, the Bill specifically provides that performance criteria in contracts of employment of assistant commissioners must relate solely to management issues.
Finally, declared authority status cannot be provided in relation to the officers who have the ultimate control of the force, the Chief and Deputy Commissioners. The power to appoint and terminate these officers remains with the Governor in Council."
10.4 ¯ Variation of section 85 of the Constitution Act 1975 (section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)
Clause 11 inserts a new section 105(2) which declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from entertaining actions for compensation in respect of the Act. It provides that no compensation is payable. The Committee notes the comments in the Second Reading Speech:-
"Clause 11 of the Bill provides that it is the intention of that clause to alter or vary section 85 of the Constitution Act 1975. This provision precludes the Supreme Court from entertaining actions for compensation where the Public Sector Management Act as amended by the Bill provides that no compensation is payable.
The reason for limiting the jurisdiction of the Supreme Court is as follows. The main purpose of the Bill is to improve the administration of the Public Sector Management Act 1992. The Bill provides in part for the termination of employment in the public sector in certain circumstances. It would reduce the effectiveness of the Act if compensation were payable or action could be entertained in relation to these matters."
The Committee is of the view that the provision is appropriate and desirable in all the circumstances.
11.1
This Bill was introduced into the Legislative Assembly on 9 November, 1994 by The Honourable Jeff Kennett, MP with The Honourable Pat McNamara, MP.
11.2
This Bill replaces the Subordinate Legislation Act 1962 and is a result of the Report on the Committee's Inquiry into the Operation of the Subordinate Legislation Act 1962 tabled in November 1993. The new Bill does not raise any concerns under the Committee's Terms of Reference. However, it is practical legislation which updates the manner of review of subordinate legislation in Victoria in several significant ways.
The purpose of the Bill confirms that the power to make subordinate legislation is to be subject to Parliament's authority and control (Clause 1). It is to come into operation on 1 January 1995 (Clause 2).
11.3
Clause 3 contains numerous definitions, including the interpretation of the key term 'statutory rule'. This is defined to include regulations made by the Governor in Council (other than local government rules) as well as practice rules of courts.
In addition, the definition of rules which are subject to the scrutiny afforded by the Bill has a flexible component with the Governor in Council having power to prescribe instruments as being a 'statutory rule' as well as power to exempt instruments otherwise incorporated in the definition. These inclusions and exemptions are contained in Clause 4. Exemptions are based upon a rule being "not of a legislative character". (Clause 4(a)(1)(b))
11.4
Under Clause 5, automatic revocation (or 'sunsetting') of rules after 10 years is to continue. This is qualified by the responsible Minister having power to certify that 'special circumstances' prevent consultation or the regulatory impact statement process taking place. No assistance is given in the Bill for the interpretation of this expression. The Governor in Council on Ministerial certificate and recommendation is authorised to extend the operation of the particular statutory rule once only for a 12 month maximum period.
11.6 ¯ Part 2 - Preparation of Statutory Rules
This Part focuses on the consultation and regulatory impact statement processes. Consultation (Clause 6) is required "in accordance with the guidelines". A certificate of consultation must be given to the Scrutiny Committee as soon as practicable after a rule is made, verifying that consultation (where required by the guidelines) has taken place (Clause 6(c)).
There are many instances in the Bill where reference is made to the guidelines (Clauses 3, 10(1)(f), (3) (4), 26 and 27 - see the Committee's discussion of the guidelines under Clause 26).
Clause 7 declares that a regulatory impact statement must be prepared unless an exception or exemption certificate is issued.
11.7
Clause 8 specifies the exceptions permitted to Clause 7. Clause 9 specifies the exemptions permitted from Clause 7. Clause 8 empowers the responsible Minister to form an opinion that Clause 7 does not apply because, for example, the proposed statutory rule merely increases fees within the bounds of the annual rate set by the Treasurer. Other exceptions include the flexible provisions incorporated in the definition of statutory rule discussed above. The ministerial certificate excepting a 10 year old rule from automatic revocation is also covered by Clause 8.
Clause 9 exempts statutory rules from the regulatory impact statement process where in the responsible Minister's opinion the rule would not impose an appreciable economic or social burden on a sector of the public or if it is required under a national scheme. These exemptions are included in the Committee's draft Bill. Three additional exemption situations available to the responsible Minister, and one to the Premier are included in the Bill before the Parliament.
The additional Ministerial exemptions are that a rule is of a "fundamentally declaratory or machinery nature", or that it deals with interdepartmental, procedural arrangements or that notice of the rule would render it ineffective.
The Premier's exemption is where in his or her opinion "in the special circumstances of the case the public interest requires" non-compliance with the regulatory impact statement process. No reasons are required to be given, but the rules to which the exemption apply must be of no more than 12 months' duration. Presumably, the Premier may certify each twelve months that the public interest requires a rule to be made without an impact statement.
11.8
Clause 10 lists the essential items to be included in a regulatory impact statement. Provision is also made for the obtaining of independent advice as to the adequacy of the regulatory impact statement. The Committee's Bill nominated persons in specific departments who were required to certify compliance with the regulatory impact statement process. This Bill empowers the 'responsible Minister' to make these judgments. A question arises of how independent such a person can be in his or her assessment of the adequacy of compliance. Similarly, no definition is provided of who or what may qualify as "independent advice".
The Committee notes that it is to have a copy of the regulatory impact statement and of any comments and submissions made in response to the statement to assist it in its assessment of the rule. (Clause 11) In its role of monitoring subordinate legislation, the Committee will continue to scrutinize the operation of this process.
Clause 12 provides for the publication after completion of the regulatory impact statement process of a decision to make or not to make a proposed statutory rule.
11.9
Clause 13 continues the practice of rules being accompanied by a certificate of the Chief Parliamentary Counsel.
Clause 14 specifies the documents which must accompany a statutory rule which is submitted for making by the Governor in Council. Clause 15 provides that rules must be laid before each House of Parliament on or before the sixth sitting day after making. It highlights Members' power to request that copies of individual statutory rules be sent to them as soon as possible after being laid in the Parliament. This alters the current legislative provision which provides for automatic delivery of every rule to every Member of Victorian Parliament.
11.10
Clause 16 relates to commencement of statutory rules. Clauses 17-20 relate to the formal matters of numbering, citation, incorporation of amendments and availability of rules. Clause 21 empowers the Scrutiny Committee to report on any statutory rule which raises concerns under any one of 11 heads. There is no change to the current law here.
11.11
Current suspension and disallowance provisions are continued (Clauses 23, 24 and 25). Automatic disallowance favoured by the Committee in its draft Bill is not included.
11.12
Under Clause 26 the Minister administering this Act may make guidelines for or with respect to all aspects of preparation and publication, consultation and uniformity of statutory rules. The guidelines must deal with the 9 matters specified in Schedule 1. These include the interpretation of the expression "of a legislative character", and what "imposes an appreciable cost of burden on a sector of the public".
As the guidelines play a major role under the Bill it is imperative that the contents of Schedule 1 reflect as fully as possible the areas in the Bill to which they are related. Note that the Scrutiny Committee has a role in advising the Minister on the making of guidelines. (Clause 27(b))
These guidelines will not be subject to parliamentary scrutiny after their making, although they will be laid before each House of Parliament (Clause 26(3)(c)) once made.
Clause 27 formalises the role of the Scrutiny Committee with respect to its giving advice to the Minister as to the administration and operation of the Act.
Clause 28 sets out the regulation-making powers under the Bill.
11.13 ¯ Part 7 - Amendments to Interpretation of Legislation Act 1984
Part 7 of the Bill amends the Interpretation of Legislation Act 1984, including providing for the incorporation of amendments in reprints of Acts. (Clause 29)
Clause 30, makes a significant amendment to section 32 of the Interpretation of Legislation Act 1984, to more appropriately reflect manageable practice by departments and Clerks of the Parliament when it comes to the tabling of incorporated material.
Clause 31 takes up the full content of what has been section 9A of the Subordinate Legislation Act 1962 relating to the fixing of salaries by reference to other prescribed salaries.
Clause 32 introduces a new provision relating to the admissibility in evidence of a copy of a document purporting to be a copy of an Act printed by the government printer of any Australasian state. Part 8 contains consequential and transitional provisions, including the repeal of the Subordinate Legislation Act 1962.
The Committee commends the Government for its prompt response to the Committee's Report. It is pleased to see the Subordinate Legislation Act 1962 being redrafted and modernised with such consistency.
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