Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022 - 2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PUBLIC SERVICE AMENDMENT BILL
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for the Public Service, Senator the Hon Katy Gallagher)
CONTENTS
GENERAL OUTLINE............................................................................................................................ 3
FINANCIAL IMPACT STATEMENT .................................................................................................. 4
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS ........................................................ 5
LIST OF ABBREVIATIONS USED ..................................................................................................... 8
NOTES ON CLAUSES .......................................................................................................................... 8
2
PUBLIC SERVICE AMENDMENT BILL
GENERAL OUTLINE
The Public Service Amendment Bill (the Bill) would amend the Public Service Act 1999
(Cth) (the PS Act) to deliver enduring transformational change, and ensure the Australian
Public Service (APS) is well placed to serve the Australian Government (the Government),
the Parliament and the Australian public into the future.
The Independent Review of the Australian Public Service (the Thodey Review), delivered in
2019, outlined detailed recommendations for change and called for a public service that is
trusted, future-fit, responsive and agile to meet the changing needs of government and the
community with professionalism and integrity.
The Bill is a key element of the Government's APS Reform agenda, which builds on the
findings of the Thodey Review and gives effect to a number of its recommendations.
The APS Reform agenda has four priority areas, to create an APS that:
1. embodies integrity in everything it does
2. puts people and business at the centre of policy and services
3. is a model employer
4. has the capability to do its job well.
To achieve this, the Bill proposes amendments to the PS Act that will: strengthen the APS'
core purpose and values; build the capability and expertise of the APS; and support good
governance, accountability and transparency.
Strengthening the core purpose and values of the APS
The APS is a complex organisation, made up of tens of thousands of people working across
dozens of departments and agencies. To ensure the APS works as an integrated organisation -
as one APS - the Thodey Review recommended strengthening the APS' purpose and values,
and promoting a shared understanding of the APS and its role alongside the Executive and
Parliament.
Amendments in the Bill deliver on this intent and support the Government's APS Reform
priority to create an APS that acts with integrity in everything it does. Initiatives in this area
will build public trust and strengthen standards of integrity in our federal government.
Specifically, the Bill proposes to:
• include a new APS Value of Stewardship, highlighting the important and enduring
role that all public servants play in stewarding the APS, and serving Government, the
Parliament, and the Australian public, now and into the future (see Item 2).
• add a requirement for Secretaries Board to cause a clear and inspiring APS purpose
statement to be prepared, to create a unified vision of what the APS aspires to be and
do (see Item 3).
• add a requirement for Agency Heads to uphold and promote the APS Purpose
Statement (see Items 4 and 5).
• clarify the operation of section 19 of the PS Act to make explicit that Ministers must
not direct Agency Heads on individual employment matters and thereby reinforce the
apolitical role of the APS (see Item 6).
3
Building the capability and expertise of the APS
Talented, committed people are the foundation of the APS but the Thodey Review noted
concerns that capability has eroded over time. To be future-fit, the APS needs to build the
capability of its staff to create a skilled and confident workforce, and remain a robust and
trusted institution that delivers modern policy and service solutions for decades to come.
In addition to investing in its own capability and expertise, the APS needs to work in genuine
partnership with the public to solve problems and co-design the best solutions to improve the
lives of the Australian community.
Amendments in the Bill embed an expectation that the APS continuously assesses its
strengths and weaknesses, and takes action to uplift its capability over time, including by
engaging with the Australian public. These changes deliver on the APS Reform priorities for
an APS that has the capability to do its job well, and that puts people and business at the
centre of policy and services. Specifically, the Bill proposes to:
• require regular, independent and transparent capability reviews (see Item 8).
• require the Secretaries Board to cause regular, evidence-based and public engagement
driven long-term insights reports, developed through a process of public consultation
(see Item 10).
Supporting good governance, accountability and transparency
The Thodey Review noted the importance for the APS of external scrutiny to measure
performance, strengthen accountability and drive continuous improvement. Transparency can
shine a light on the culture and make-up of the APS, and prompt changes to ensure it remains
a great place to work, offering staff a quality employee experience in a dynamic workplace
that sets the standard for diversity and inclusion. Best-practice governance arrangements
should also ensure APS employees are empowered and supported in their roles.
Amendments in the Bill address these objectives and deliver on the APS Reform priority to
create an APS that is a model employer. Specifically, the Bill proposes to:
• require Agency Heads to put in place measures to enable decision-making to occur at
the lowest appropriate classification (see Item 7).
• require Agencies to publish annual APS Employee Census results and respond to
relevant findings through an action plan (see Item 12).
The Bill also contains a technical amendment to the PS Act (see Item 11) which is
consequential to the making of the Public Service Regulations 2023 (Cth), following the sun-
setting of the Public Service Regulations 1999 (Cth).
Details of these amendments are set out below in the notes on Schedule 1 to the Bill.
FINANCIAL IMPACT STATEMENT
Nil financial implications at this time. Initial funding has been allocated to the Australian
Public Service Commission to pilot APS Capability Reviews in 2022-23, 2023-24 and
2024-25, and to the Department of the Prime Minister and Cabinet to develop and deliver
Long-term Insight Briefings over the same period. How the ongoing resourcing for capability
reviews and long-term insight briefings will be met remains subject to a future government
decision, informed by evaluations of the pilots of these activities.
4
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Public Service Amendment Bill 2023
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Public Service Amendment Bill 2023 amends the Public Service Act 1999 (PS Act) to
lock-in transformational change and prepare the Australian Public Service (APS) for the
future. Building on recommendations from the Independent Review of the APS (Thodey
Review), the Bill makes the following amendments as outlined in Schedule 1:
• including a new APS Value of Stewardship.
This amendment introduces a sixth APS Value of Stewardship, which is provided to mean:
The APS builds its capability and institutional knowledge, and supports the public interest
now and into the future, by understanding the long-term impacts of what it does.
The new Value will sit alongside the five existing APS Values: committed to service, ethical,
respectful, accountable, and impartial.
• adding a requirement for an APS purpose statement.
The Secretaries Board will be required to prepare a written statement that sets out the purpose
of the APS. The Purpose Statement will be published on an Agency website and will be
reviewed every five years.
• clarifying the operation of section 19 of the PS Act to provide that Ministers must not direct
Agency Heads on individual employment matters for the APS.
• requiring Agency Heads to implement measures to create a work environment that enables
decisions to be made by APS employees at the lowest appropriate classification.
• enshrining regular capability reviews.
The APS Commissioner will be provided with the power to require a capability review to be
undertaken of each Department, Services Australia and the Australian Taxation Office at least
once every five years. The Secretary of the Department of the Prime Minister and Cabinet
will be provided with an equivalent power to require a capability review of the Australian
Public Service Commission. The reviews will be future-focused and will be published
alongside agency responses, with limited exceptions, including for national security reasons.
5
• requiring the Secretaries Board to request and publish regular long-term insights reports.
The reports will be on medium-term and long-term cross-portfolio topics that affect or may
affect Australia or Australian society, and will be based on evidence and public engagement.
• requiring agencies to publish their annual APS Employee Census results, along with an
action plan that addresses relevant findings. The results will be published in aggregate on
each individual Agency, with limited exceptions, including for national security reasons.
The Bill also includes a technical amendment to the PS Act which is consequential to the making of the
Public Service Regulations 2023 (Cth), following the sun-setting of the Public Service Regulation 1999
(Cth). The provision seeks to eliminate unnecessary administration by removing the requirement to seek
the APS Commissioner's consent to delegate powers and functions to Australian Defence Force
members.
Human rights implications
This Bill engages the following right:
• the right to privacy - Article 17 of the International Covenant on Civil and Political
Rights (ICCPR).
Right to privacy
Article 17 of the ICCPR prohibits arbitrary or unlawful interference with a person's privacy,
family, home, and correspondence. It also prohibits unlawful attacks on a person's reputation.
The right to privacy is engaged when personal information is collected, used, stored,
disclosed or published, including for statistical purposes. In order for an interference with the
right to privacy to not be 'arbitrary', the interference must be for a reason consistent with the
provisions, aims and objectives of the ICCPR and be reasonable in the particular
circumstances.
Capability reviews
Item 8 of Schedule 1 amends the PS Act to give the APS Commissioner the power to require
a Capability Review to be undertaken. This item also ensures that the report and action plan
are published on an agency website while allowing that a section of, or the full report, will
not be published where it would, or could reasonably be expected to, damage the
Commonwealth's security, defence or international relations.
Currently, there is no legislated requirement for regular capability reviews of Agencies. The
Thodey Review recommended (at 2a) the reviews be undertaken to build organisational
capacity and accountability, where the reviews are future-focused and published alongside
agency responses.
Undertaking a capability review of an Agency may necessitate gathering of information about
the capabilities and opinions of individuals during the initial analysis stage. The capturing of
this information would be subject to any requirements under the Privacy Act 1988 (Cth).
Further, it is expected that the published report would focus on the strengths and development
areas of the Agency in the context of its future operating environment and not on individual
capabilities and would not identify or enable the identification of individuals. For these
reasons, the protection of an individual's right to privacy has been considered and it is
deemed there are sufficient protections in place without further requirement under the Bill.
6
APS Employee Census
Item 12 of Schedule 1 amends the PS Act to set out the requirements for the publication of
the APS Employee Census results and the preparation and publication of the responding
action plan. This was recommended by the Thodey Review to promote better performance
reporting, positioning the APS as a model employer that listens to and addresses issues
experienced by employees.
The APS Employee Census is an annual survey which is used to collect confidential
characteristic, attitude and opinion information from APS employees on issues in the
workplace. It is an opportunity for APS employees to share their experiences working in the
APS. Currently, there is no legislated requirement for publishing of the APS Employee
Census results or an action plan setting out an Agency's response.
APS Employee Census results are currently published on the Australian Public Service
Commission website. Corresponding Agency action plans are not currently published.
Legislating a requirement for publishing the results and the action plan will ensure that the
culture of continuous improvement is maintained over time. It will also increase transparency
and accountability; bringing these processes into the public view.
Item 12 of Schedule 1 positively engages with the right to privacy and provides appropriate
safeguards. Prior to publishing, the information collected through the APS Employee Census
will be aggregated and published at a whole-of-Agency level. The Bill provides that an
Agency Head must remove any material that is likely to enable the identification of an
individual from Census results and/or from action plans. The Bill also allows the APS
Commissioner to exempt an Agency Head from publishing the APS Employee Census results
and/or action plan, in whole or in part by removal of specified material. This provides greater
flexibility in instances where results could still identify an individual even when published at
an Agency level (for example, in small agencies). This provides an appropriate balance
between providing greater accountability and transparency and protecting an individual's
right to privacy. There are similar exceptions available where publication of an agency's
results would identify sensitive information that could be exploited against the national
interest if published.
Remaining parts do not raise any human rights issues
The remaining items in Schedule 1 do not raise any human rights issues.
Conclusion
The Bill is compatible with human rights because it promotes the protection of human rights.
Senator the Hon Katy Gallagher, Minister for the Australian Public Service
7
List of abbreviations used
This explanatory material uses the following abbreviations and acronyms.
APS Australian Public Service
PS Act Public Service Act 1999
The Thodey Review The Independent Review of the APS
The Prime Minister's Department The Department of the Prime Minister and Cabinet
The Commissioner The Australian Public Service Commissioner
SES Senior Executive Service
APSC Australian Public Service Commission
Commissioner's Directions The Australian Public Service Commissioner's Directions
NOTES ON CLAUSES
Clause 1 - Short title
1. Upon enactment, the Bill will be known as the Public Service Amendment Act 2023.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Bill, as set out in
the table.
3. The whole of the Bill will commence on a single day fixed by proclamation. If the
provisions do not commence within six months beginning on the day the Act receives Royal
Assent, the provisions will commence the day after the end of that 6 month period.
4. If the Bill is passed ahead of 1 January 2024, the intended commencement date is
1 January 2024.
Clause 3 - Schedules
5. This is a formal clause that enables an Act specified in a Schedule of the Bill to be
amended in accordance with that Schedule.
SCHEDULE 1 - AMENDMENTS
Item 1
6. Existing section 7 'Interpretation' outlines the meaning of terms used in the PS Act,
unless a contrary intention appears.
7. Item 1 would inset a new term that is relied on in other provisions throughout the Bill.
This is necessary to support the transparent publication of materials as prescribed in new
sections 10B, 44A, 44B, 64A and 78A.
8. Item 1 would provide that 'APS Purpose Statement' has the same meaning as
described in new section 10B (inserted by Item 3) and 'State of the Service report' the same
meaning as referred to in new section 78B (inserted by Item 12).
8
Item 2
9. This item inserts new subsection 10(6) at the end of section 10.
Section 10 - APS Values
10. Proposed subsection 10(6) would introduce a new APS Value of Stewardship
alongside the existing APS Values, which APS employees must uphold at all times
(subsection 11(a)), and Agency Heads must uphold and promote (subsection 12). The
proposal responds to the objectives of recommendation 5 of the Thodey review which called
for the core principles and APS Values to be strengthened, by reaffirming the important and
enduring role that all APS employees play in serving successive Governments, the Parliament
and the Australian public.
11. Currently section 10 sets out five existing APS Values: Committed to service; Ethical;
Respectful; Accountable; and Impartial. Each headline Value is clarified in the section by a
supporting statement. The APS Values are designed to:
• provide the philosophical underpinning for the APS;
• reflect public expectations of the relationship between public servants and the
Government, the Parliament and the Australian community; and
• articulate the culture and operating ethos of the APS.
12. Each headline Value is clarified in the section by a supporting statement. The scope
and application of the APS Values may also be determined where necessary in Directions
issued by the Commissioner under section 11 of the PS Act. The Australian Public Service
Commissioner's Directions 2022 set out these details for the existing APS Values.
13. Proposed new subsection 10(6) provides that the Stewardship Value means 'the APS
builds capability and institutional knowledge, and supports the public interest now and into
the future by understanding the long-term impacts of what it does.'
14. Proposed subsection 10(6) complements the stewardship duties of Secretaries
(subsection 57(c)), Secretaries Board (subsection 64(3)(a)); and the Commissioner
(subsection 41(2)(g)), by supporting APS employees to understand their role and individual
contributions in stewarding the public service.
Item 3
15. This item introduces a new section 10B, after section 10A.
Section 10B - APS Purpose Statement
16. Proposed section 10B describes the APS Purpose Statement. The proposal would
implement Recommendation 6 of the Thodey Review to develop and embed an inspiring
purpose and vision to unite the APS in serving the nation. The Thodey Review reflected that
Agency-specific purpose statements are used to good effect, but may also potentially
contribute to an APS that delivers Agency-specific, rather than whole-of-service outcomes.
9
17. This proposal will require the Secretaries Board to oversee the development of a
unifying purpose statement for the APS which will resonate with all public servants and
makes it clear what the APS aspires to. A shared and unifying purpose will provide a
foundation for coherent leadership, service alignment and shared execution across the APS.
18. Proposed subsection 10B(3) provides that the APS Purpose Statement must be
consistent with the APS Values (section 10) and the APS Employment Principles (section
10A), which set out statements about the essential character and philosophy of the APS,
defining what the APS is, and how it should operate.
19. Proposed subsection 10B(7) will ensure the APS Purpose Statement is contemporary
and responsive to the changing views and expectations of government and the community,
with the APS Purpose Statement reviewed at least once every 5 years.
20. Proposed subsections 10B(4) and 10B(8) provide that the Secretaries Board must be
satisfied that appropriate consultation has occurred with the APS and the public before
creating (10B(4)), or reviewing (10B(8)) the APS Purpose Statement. The provision for
consultation accounts for the need for the diverse views and expectations of the public and
the APS to inform the design of a meaningful and unifying APS Purpose Statement. This will
help ensure the Purpose Statement develops a genuinely unified and collaborative culture
across the different functions, responsibilities and teams that comprise the APS.
21. The consultation requirement at 10B(4) does not apply to a variation of the Purpose
Statement if the variation is of a minor nature (10B(5)), for example, to remedy an error or a
defect, or for technical corrections such as typographical errors.
22. Proposed subsection 10B(6) provides that the APS Purpose Statement must be
published on an Agency website, for example the Prime Minister's Department website, or
the APSC website. This will ensure transparency and drive accountability for the APS to
deliver on that purpose, building public trust in government.
23. Proposed subsections 10B(10) and (11) identify that the APS Purpose Statement and
its variations are not legislative instruments, they are administrative instruments that are
declaratory in nature. This reflects that the APS Purpose Statement is an aspirational
statement and while it is enduring, requires flexibility to remain contemporary and adapt to
change over time.
24. Proposed subsection 10B(12) clarifies that this section does not limit the application
of subsection 33(3) of the Acts Interpretation Act 1901 (Cth) namely to make, repeal, rescind,
revoke, amend or vary an instrument provided for in other sections of the PS Act.
25. Agency Heads will also be required to uphold and promote an APS Purpose
Statement (items 3 to 4 refer), as a critical step in driving a unified sense of service.
10
Items 4 and 5
Section 12 Agency Heads must promote the APS Values, the APS Employment Principles and
the APS Purpose Statement
26. Items 4 and 5 would remove the words 'APS Values and APS Employment
Principles' and replace them with 'the APS Values, the APS Employment Principles and the
APS Purpose Statement' in both the title and heading of section 12 of the PS Act.
27. This ensures an Agency Head is required to uphold and promote the APS Purpose
Statement to drive a unified sense of service, in addition to the APS Values and Employment
Principles, and reflects the APS Purpose Statement as defined in proposed section 10B.
Item 6
Section 19 Limitation on Ministerial directions to Agency Head
28. This item removes the words 'An Agency Head is not subject to direction by any
Minister' and replaces them with 'A Minister must not direct an Agency Head'.
29. Currently section 19 provides that an Agency Head is not subject to directions by
Ministers in relation to individual APS staffing decisions, such as engagement of individual
APS employees (subsection 22) and termination of employment of individual APS
employees (subsection 29).
30. The purpose of this amendment is to reaffirm the apolitical role of the APS by making
it explicit that Ministers cannot direct Agency Heads on employment matters. Creating clear
limits on Ministerial involvement in APS employment matters is critical to ensuring integrity
in the exercise of Agency Head powers. This amendment is intended to ensure that if, for
example, an Agency Head selects a candidate for engagement following a merit based
process, a Minister must not direct that Agency Head to engage another individual in place of
the preferred candidate.
31. For clarity, section 19 includes both APS employees as defined in section 7, and SES
employees as defined in section 34 of the PS Act.
Item 7
32. This item inserts new subsection 19A at the end of Part 3.
Section 19A Agency Heads to create a work environment that enables decisions to be made
by APS employees with the lowest appropriate classification
33. Proposed new section 19A introduces a requirement on Agency Heads to implement
measures that create a work environment that enables decision-making to be undertaken at
the lowest appropriate classification. The proposal responds to recommendation 32 of the
Thodey Review which called for the APS to adopt best-practice ways of working and
improving decision-making, by ensuring Agency Heads empower APS employees to make
decisions appropriate to their classification. The Thodey Review noted a growing tendency
for decisions involving risk to be escalated to the top of the hierarchy. This proposal seeks to
ensure that decision-making is not raised to a higher level than necessary, improving
11
decision-making processes to reduce duplication of work, empower staff, and foster
professional development.
34. Proposed subsection 19A(1) outlines that an Agency Head must implement measures
that enable decisions to be made by APS employees with classifications that the Agency
Head considers are the lowest appropriate for those decisions. An Agency Head would have
the discretion to consider what constitutes the lowest appropriate classification, taking into
consideration the work level standards for classifications (proposed subsection 19A(2)(a))
and any other matter the Agency Head considers relevant (proposed subsection 19A(2)(b)),
such as the Agency's unique operating context, or the capability of the APS employee.
Consideration of the work level standards (as established by the Public Service Classification
Rules 2020) in determining what is appropriate, ensures decision-making is within the scope
of the person's role and is not inappropriately conferred in a way that is inconsistent with the
duties and capabilities expected of that classification. Consideration of the work level
standards for classifications also allows consideration of the remuneration typically
associated with the complexity and authority of decisions at each classification.
35. Proposed subsection 19A(3) notes that a failure to comply with this section does not
affect the validity of a decision. This clause ensures that there is no uncertainty created on the
validly of a decision once made, irrespective of whether it is considered that an Agency Head
has successfully created a work environment for decisions to be made at the lowest
appropriate level. The measures implemented by Agency Heads to help create this work
environment will be directed to support APS employees as decision-makers in their roles,
rather than directing the nature of their decision-making.
36. For clarity this section is not intended to override decision making powers expressly
conferred, or delegated by other Commonwealth Acts as appropriate delegations. For
example, where a Commonwealth Act expressly provides that a Secretary may only delegate
a specified decision making power to a very senior decision maker, this section will not
impact the level at which that decision making can occur. Similarly, this section is not
intended to override Accountable Authority Instructions issued under section 20A of the
Public Governance, Performance and Accountability Act 2013 (Cth) (the PGPA Act).
However, Accountable Authorities (as defined in section 12(2) of the PGPA Act) may
consider the lowest appropriate classification for decisions when making Accountable
Authority Instructions.
Item 8
37. This item introduces new section 44A at the end of Division 1 of Part 5.
Section 44A Capability reviews and 44B Action Plans
38. Proposed section 44A introduces a requirement for regular, independent and
transparent capability reviews. The proposal responds to recommendation 2a of the Thodey
Review which called for regular, future-focused capability reviews to build organisational
capacity and accountability, by establishing the power for the Commissioner to cause a
capability review (proposed subsection 44A(1)). Capability reviews will be independent,
forward-looking and assess an agency's ability to meet future objectives and challenges,
establishing a requirement for Agencies to prepare and publish action plans responding to
findings.
12
39. Proposed subsection 44A(2) enables the Commissioner to cause a capability review of
each Department, Services Australia and the Australian Taxation Office at least every 5
years. Exceptional circumstances may impact on the ability for a review to be commenced, or
findings finalised. Subsections 44A(2)(b) and 44A(3)(b) enable the person who causes a
review the option to determine another appropriate timeframe, which may be shorter or
longer than the 5 year period established by subsections 44A(2)(a) and 44A(3)(a). Proposed
subsection 44A(9) ensures this only occurs in exceptional circumstances, for example, if a
national emergency such as a global pandemic, or a natural disaster significantly impacts an
Agency's ability to participate in a capability review.
40. Proposed subsection 44A(3) enables the Secretary of the Prime Minister's Department
to cause a review of the APSC. This ensures transparency, independence and accountability
of capability reviews where the APSC is the subject of the review.
41. Capability Reviews are intended to be conducted in partnership with Agencies and
draw on evidence from a range of sources, including engagement with agency staff and
management and external stakeholders. Proposed subsection 44A(4) provides that the
Commissioner, or the Secretary of the Prime Minister's Department must notify the Agency
Head in writing of the intention to undertake a capability review. This will support an Agency
Head to make appropriate plans to enable a capability review and meet requirements to
cooperate with a capability review (proposed subsection 44A(5)).
42. Proposed subsection 44A(6) will ensure that a capability review report includes one
or more findings, which for example, highlights organisational strengths and development
areas in the context of the Agency's anticipated future operating environment. This will help
build a self-sustaining culture of improvement in the APS.
43. Independence and transparency are core principles of capability reviews and
corresponding action plans. This drives accountability, and builds confidence in the integrity
of capability review findings. A number of subsections seek to embed the independence and
transparency of capability review findings, reports, and action plans including:
• Proposed subsection 44A(4)(c) which ensures the reviewer(s) provides a copy
of the written report to the Agency Head and the person who caused the review.
• Proposed subsections 44A(4)(d) and 44B(1)(d) which ensure that the report
and action plan are published on an Agency website.
• Proposed subsection 44B(1)(c) which ensures that an Agency Head prepares
an action plan responding to the findings of a capability review report to raise
organisational capability.
• Proposed subsection 44A(4)(b) which ensures one or more reviewers may be
appointed to lead the capability review. This may include, for example, an individual
reviewer, or a panel of reviewers. Flexibility in determining the number of reviewers
supports the person causing a review to take operational matters into consideration,
for example the size of the Agency that is the subject of the review.
• Proposed subsection 44A(7) which ensures that at least one reviewer is not
currently an APS employee, or Agency Head. Additional reviewer(s) are not
precluded from being engaged if they are APS employees, or an Agency Head. This
13
ensures transparency, independence and accountability. In addition to this provision,
governance arrangements will be put in place through implementation to ensure all
reviewers declare any conflicts of interest.
44. Proposed subsections 44A(9) and 44B(2) authorises the Commissioner or Secretary of
the Prime Minister's Department to determine that a section of, or the full report will not be
published if it would, or could reasonably be expected to, damage the Commonwealth's
security, defence or international relations.
45. Proposed section 44A(10) specifies that a determination made under paragraph (2)(b)
or (3)(b) is not a legislative instrument. As referenced at paragraph 39, subsections (2)(b) and
(3)(b) refer to written determinations to alter the number of years required between capability
reviews in exceptional circumstances that may impact on the ability for a review to be
commenced, or findings finalised within a regular 5-yearly timeframe.
46. Proposed subsection 44A(12) provides that this new section does not prevent an
Agency Head from conducting other capability reviews. For example, an Agency could still
undertake an internal capability review focused on a particular delivery area prior to the next
formal capability review.
Item 9
47. This item inserts new subsection (f) at the end of subsection 64(3).
Section 64 Secretaries Board
48. Proposed subsection 64(3)(f) inserts as a function of Secretaries Board 'such other
functions as are conferred on the Secretaries Board by this Act.' This amendment supports
additional functions as considered in this Bill to be established as functions of the Secretaries
Board. See for example item 2 as it relates to an APS Purpose Statement.
Item 10
49. This items inserts new section 64A at the end of Part 8.
Section 64A Long-term insights reports
50. The purpose of new section 64A is to establish a requirement for Secretaries Board to
cause regular, evidence-based and public engagement driven long-term insights reports,
developed through a process of public consultation. The Thodey Review calls for the APS to
strike a better balance between short-term responsiveness and investing in the deep expertise
required to grapple with long-term, strategic policy challenges. The reports will also build the
capability of the APS as a whole to consider cross-cutting issues in a linked up way.
51. Proposed subsection 64A(1) gives the Secretaries Board the power to cause long-term
insights reports to be prepared in relation to one or more matters of public policy. The
Thodey Review found that the APS needs to strike a better balance between short-term
responsiveness and investing in the deep expertise required to grapple with long-term,
strategic challenges, as well as genuinely consulting with the public on issues affecting
Australia and its society. The purpose of the reports (proposed subsection 64A(2)) is to make
available information about medium-term and long-term trends, risks, and opportunities that
14
affect or may affect Australia or Australian society; and information and impartial analysis
relating to those trends, risks and opportunities. It is intended that the analysis undertaken be
impartial, apolitical and be based in evidence.
52. Proposed subsection 64A(3) requires that provision for public consultation be made in
the preparation of a long-term insights report. This reflects that long term insights reports will
bring together experts from the public service and include consultation with the Australian
community, academia, industry and the not-for-profit sector on specific longer-term
challenges to collate evidence and insights on an issue and support impartial policy analysis.
53. Proposed subsection 64A(4) requires a long-term insights report to be published on an
Agency website in the manner and form the Secretaries Board considers appropriate. This
supports publication in different mediums, for example a formal written report,
complemented by a series of informative videos. Subsections 64A(4)(a)-(b) provide that this
can be on an Agency website or elsewhere if the Secretaries Board considers it appropriate.
Publication of a long-term insights report on an Agency website intends to ensure the
information contained within a report is made available to members of the public, driving
transparency and reflecting the community-based engagement which will drive the
preparation of a report.
54. Proposed subsection 64A(5) provides that an Agency may assist in the preparation of
a long-term insights report. This will support the development of internal research
capabilities within Agencies, and build trust in Agencies to provide rigorous analysis and
insights about future trends, opportunities and risks.
55. Proposed subsection 64A(6) provides that Secretaries Board must cause at least one
long-term insights report to be prepared each financial year, to ensure this is an enduring
function that supports the APS to look to the future as stewards of the service and public
interest.
Item 11
56. This item adds a new subsection 78(8)(c) at the end of subsection 78(8).
Section 78 Delegations
57. The PS Act provides that an Agency Head cannot delegate powers or functions to an
outsider without prior written consent from the Commissioner. This proposed amendment
will exclude Australian Defence Force members from the meaning of outsider and eliminate
unnecessary administration to delegate powers and functions to ADF members. This item
will also bring the Public Service Act in line with updates made to the Public Service
Regulations 2023 (Cth).
Item 12
58. This item introduces new section 78B after section 78A.
78B Australian Public Service Employee Census - results and action plans
59. The purpose of new section 78B is to establish a requirement for agencies to publish
aggregate APS Employee Census results, along with the preparation and publication of an
15
action plan responding to those results. This proposal responds to recommendation 2b of the
Thodey review, by fostering a culture of transparency and accountability for continuous
improvement within Agencies. It will also seek to improve the APS's position as a model
employer that listens to and addresses the thoughts, concerns, and ideas of its employees.
60. The APS Employee Census is an annual survey which is used to collect information
about the attitudes and opinions of APS employees. It is an opportunity for APS employees to
share their experiences working in the APS. Many Agencies already publish their results on
the APSC website.
61. Proposed subsection 78B(1) ensures that Agencies are only required to publish APS
Employee Census Results and action plans in the event that the APS Employee Census is
conducted during the financial year. This provides safeguards for Agencies should an APS
Employee Census not be conducted, or in the event it is delayed in exceptional
circumstances, such as a pandemic or national disaster.
62. Proposed subsection 78B(2) establishes a requirement for Agency Heads to prepare
an action plan as soon as practicable after receiving Agency APS Employee Census results.
An action plan must set out the Agency's response to those results so far as they relate to the
Agency. This means that results published should be aggregate Agency level results, as
compared to results at a more granular organisational level, thereby providing safeguards for
individual privacy. Ensuring an action plan is prepared as soon as practicable following
receipt of results provides for some flexibility in timing, taking into consideration the
particular Agency's circumstances. For example, an Agency may consult with staff in the
preparation of an action plan, the time required for which may vary depending on the size of
the Agency.
63. Proposed subsection 78B(3) requires an Agency Head to publish aggregate APS
Employee Census results, so far as those relate to the Agency, along with the action plan that
has been prepared. The State of the Service report is informed by the results of the APS
Employee Census, as well as other information sources. Given this, the public release of the
APS Employee Census results will follow publication of the State of the Service report
(proposed subsection 78B(3)(b)) so as to not pre-empt the tabling of the State of the Service
report in Parliament. The timing of this section draws on subsection 44(3) of the PS Act
which provides that the State of the Service report must be 'laid before each House of the
Parliament by 30 November after the financial year to which the report relates.'
64. Proposed subsection 78B(4) provides that the Commissioner may, by writing, exempt
an Agency Head from publishing the census results and/or the action plan. For example, the
Commissioner could exempt a small Agency from publishing the census results and/or action
plan where the results across the report or plan could reasonably identify an individual, or
their views. Another example may be a security agency where sensitive information about the
operations could be exploited against the national interests if published. Similarly, proposed
subsection 78B(5) provides that the Commissioner may authorise an Agency Head to remove
specified material from the APS Employee Census results and/or an action plan prior to
publishing. For example, where a security Agency chooses to publish its census results and
action plan, it can seek to remove specified material such as employee characteristics.
65. Proposed subsection 78B(6) provides that an Agency Head must remove any material
that is likely to enable the identification of an individual from census results and/or from
action plans. This section provides clear protection for a person's right to privacy.
16
66. Proposed subsection 78B(7) and (8) provide that an exemption to publish census
results and an action plan, or an authorisation to remove specified material under new section
78B(4) is not a legislative instrument. This clarifies the intended characterisation of the
sections as administrative instruments that are declaratory in nature.
17