Bill Shorten (Maribyrnong, Australian Labor Party, Minister for the National Disability Insurance Scheme) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

Background

This bill makes amendments to the Public Service Act 1999(Cth) to clarify the Australian Public Service Commissioner's powers with respect to conducting inquiries into potential breaches of the code of conduct by former agency heads.

The Public Service Act establishes a code of conduct that applies to APS employees and to agency heads. It includes requirements for APS employees and agency heads to, amongst other things, behave with honesty and integrity, to act with care and diligence, and to treat everyone with respect and courtesy.

The APS Code of Conduct is a cornerstone of an efficient, effective and apolitical Australian Public Service that upholds APS values and acts with integrity, accountability, and in the national interest. The commissioner's powers under the Public Service Act are essential to safeguarding this standard and maintaining public confidence in the vital institution that is the Australian Public Service.

The Public Service Act expressly allows for the APS Commissioner to inquire into and determine whether a current or former APS employee has breached the code of conduct.

The act also expressly allows the APS Commissioner to inquire into whether a current agency head has breached the code of conduct.

The act further gives the APS Commissioner the function of reviewing, and reporting on, any matter referred to the commissioner by the Public Service minister.

This bill will amend the act to explicitly provide that the APS Commissioner has the power to inquire into and determine whether current and former agency heads have breached the code of conduct.

This will mean that the commissioner has clear powers to hold current and former agency heads to account for breaches of the code of conduct while they are an agency head.

Bill overview

Section 14(1) of the Public Service Act makes it clear that agency heads are bound by the code of conduct in the same way as other Australian public servants. It is proper that a process is available to inquire into and determine whether a current or former agency head has complied with the code of conduct. These amendments, which will ensure the accountability of our most senior officials, are in line with the public's expectations.

This bill makes it clear that the APS Commissioner's power to inquire into and determine whether an agency head has breached the code of conduct, for actions taken while they were an agency head, is not extinguished when an agency head leaves the Australian Public Service.

The code of conduct already applies to agency heads. This bill makes no changes to the code of conduct and it does not amend the standards of behaviour required of current agency heads. The effect of the bill is to ensure current and former agency heads are accountable for their conduct while they are an agency head, assessed at the standard that applies to them in that role. These amendments will extend the same accountability to current and former agency heads as that which already applies to APS employees.

The effect of these amendments is to enable the commissioner to inquire into and make determinations about the conduct of current and former agency heads. Noting former agency heads were bound by the code of conduct at the time they were in the agency head role, it is appropriate that these amendments empower the APS Commissioner to inquire into conduct that occurred at that time, including conduct that predates this bill.

The bill also clarifies that the APS Commissioner has the power to make a determination on the outcome of a code of conduct inquiry into a current or former agency head.

The catalyst for these amendments has been inquiries into potential breaches of the code of conduct by current and former public servants, including former agency heads, for their role in the design and delivery of the robodebt scheme. As the inquiries progressed, claims were made that alleged breaches of the code of conduct by former agency heads could not be investigated—and a determination of a breach could not be made—in the absence of express provisions in the Public Service Act.

To ensure full accountability, the government is taking this step to put beyond doubt the Australian Public Service Commissioner's authority to investigate and make determinations with respect to former agency heads under the Public Service Act.

The bill also ensures that the employment status of a current or former agency head when a code of conduct inquiry is underway has no impact on the powers of the commissioner to conduct and finalise an inquiry and make a determination. The amendments will ensure that an agency head who resigns or retires during an inquiry into their conduct, or whose term of appointment otherwise concludes before the inquiry has been completed, can be held accountable for their conduct while they were an agency head.

The bill provides that matters referred to the commissioner under section 41(2)(k) on or after 7 July 2023, regarding a potential breach of the code of conduct by a current or former agency head, are matters under section 41(2)(m) of the act. The bill also provides that information and documents collected by the commissioner prior to the amendments continue to be available to enable these matters to be finalised as expeditiously as possible.

Conclusion

We expect the highest standards of conduct from those in whom we place the highest levels of public trust. These amendments ensure the commissioner has clear power to investigate breaches of the APS Code of Conduct by an agency head including where and after an agency head resigns from the Public Service. This legislation will ensure that senior public servants are clearly accountable for their actions as Public Service leaders, even after leaving their roles.

The bill removes ambiguity about the commissioner's powers to investigate former agency heads and, with it, the prospect of individuals avoiding accountability through legal technicalities. These amendments underscore the Australian government's agenda to restore integrity, trust and faith in a stronger Public Service.

Debate adjourned.