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New South Wales
Public Sector Employment and
Management Amendment (Ethics and
Public Service Commissioner) Bill
2011
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Public Sector Employment and
Management Act 2002 No 43 3
Schedule 2 Amendment of other legislation 29
b2011-006-35.d23
New South Wales
Public Sector Employment and
Management Amendment (Ethics and
Public Service Commissioner) Bill
2011
No , 2011
A Bill for
An Act to amend the Public Sector Employment and Management Act 2002 to
establish an ethical framework for the public sector, to create the office of Public
Service Commissioner and to establish the Public Service Commission Advisory
Board; and for other purposes.
Public Sector Employment and Management Amendment (Ethics and
Clause 1 Public Service Commissioner) Bill 2011
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Public Sector Employment and Management 3
Amendment (Ethics and Public Service Commissioner) Act 2011. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
Page 2
Public Sector Employment and Management Amendment (Ethics and
Public Service Commissioner) Bill 2011
Amendment of Public Sector Employment and Management Act 2002 No 43 Schedule 1
Schedule 1 Amendment of Public Sector 1
Employment and Management Act 2002 2
No 43 3
1.1 Amendments relating to public sector ethics 4
Part 1.2 5
Insert after section 3: 6
Part 1.2 Ethical framework for the public sector 7
3A Objective of Part 8
This Part: 9
(a) recognises the role of the public sector in preserving the 10
public interest, defending public value and adding 11
professional quality and value to the commitments of the 12
Government of the day, and 13
(b) establishes an ethical framework for a merit-based, 14
apolitical and professional public sector that implements 15
the decisions of the Government of the day. 16
3B Public sector core values 17
The core values for the public sector and the principles that guide 18
their implementation are as follows: 19
Integrity 20
(a) Consider people equally without prejudice or favour. 21
(b) Act professionally with honesty, consistency and 22
impartiality. 23
(c) Take responsibility for situations, showing leadership and 24
courage. 25
(d) Place the public interest over personal interest. 26
Trust 27
(a) Appreciate difference and welcome learning from others. 28
(b) Build relationships based on mutual respect. 29
(c) Uphold the law, institutions of government and democratic 30
principles. 31
(d) Communicate intentions clearly and invite teamwork and 32
collaboration. 33
(e) Provide apolitical and non-partisan advice. 34
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Schedule 1 Amendment of Public Sector Employment and Management Act 2002 No 43
Service 1
(a) Provide services fairly with a focus on customer needs. 2
(b) Be flexible, innovative and reliable in service delivery. 3
(c) Engage with the not-for-profit and business sectors to 4
develop and implement service solutions. 5
(d) Focus on quality while maximising service delivery. 6
Accountability 7
(a) Recruit and promote staff on merit. 8
(b) Take responsibility for decisions and actions. 9
(c) Provide transparency to enable public scrutiny. 10
(d) Observe standards for safety. 11
(e) Be fiscally responsible and focus on efficient, effective 12
and prudent use of resources. 13
3C General provisions 14
(1) The Public Service Commissioner has the function of promoting 15
and maintaining the public sector core values. 16
(2) There is no hierarchy among the core values and each is of equal 17
importance. 18
(3) Nothing in this Part gives rise to, or can be taken into account in, 19
any civil cause of action. 20
(4) For the purposes of this Part, the public sector comprises all the 21
public sector services (other than special temporary employees 22
under Part 2.5). 23
1.2 Amendments relating to the Public Service Commissioner 24
and Public Service Commission Advisory Board 25
[1] Section 3 Definitions 26
Insert in alphabetical order in section 3 (1): 27
Advisory Board means the Public Service Commission Advisory 28
Board established under Part 1.4. 29
Commissioner (or Public Service Commissioner) means the 30
Public Service Commissioner appointed under Part 1.3. 31
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Public Sector Employment and Management Amendment (Ethics and
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Amendment of Public Sector Employment and Management Act 2002 No 43 Schedule 1
[2] Parts 1.3 and 1.4 1
Insert after section 3C (as inserted by this Act): 2
Part 1.3 Public Service Commissioner 3
3D Appointment of Commissioner 4
(1) The Governor may appoint a Public Service Commissioner. 5
(2) A person may only be appointed as Commissioner if the 6
Advisory Board has recommended to the Premier that the person 7
be appointed as the Commissioner. 8
(3) The Governor may remove the Commissioner from office for 9
incapacity, incompetence or misbehaviour. 10
(4) The Commissioner may only be removed from office: 11
(a) following an independent review of the performance or 12
conduct of the Commissioner, and 13
(b) if the Advisory Board has recommended to the Premier 14
that the Commissioner be removed from office. 15
(5) Any such independent review may be initiated: 16
(a) by the Advisory Board at the request of the Premier, or 17
(b) by the Premier. 18
(6) An independent review of the performance or conduct of the 19
Commissioner is not required under this section before the 20
Commissioner can be removed from office if the performance or 21
conduct giving rise to the Advisory Board's recommendation for 22
removal has been the subject of: 23
(a) an inquiry and report by the Independent Commission 24
Against Corruption, a Special Commission of Inquiry or 25
other body constituted by a judicial officer, or 26
(b) a finding by a court. 27
(7) The Premier is, if the Commissioner is removed from office, to 28
cause the reasons for the removal to be tabled in both Houses of 29
Parliament. 30
(8) The Commissioner must not be present during any deliberation of 31
the Advisory Board on any matter that relates to the making of a 32
recommendation under this section. 33
(9) Schedule 2A contains ancillary provisions relating to the 34
Commissioner, including term of office. 35
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Schedule 1 Amendment of Public Sector Employment and Management Act 2002 No 43
3E Principal objectives of Commissioner 1
(1) The principal objectives of the Commissioner are as follows: 2
(a) to promote and maintain the highest levels of integrity, 3
impartiality, accountability and leadership across the 4
public sector, 5
(b) to improve the capability of the public sector to provide 6
strategic and innovative policy advice, implement the 7
decisions of the Government and meet public 8
expectations, 9
(c) to attract and retain a high calibre professional public 10
sector workforce, 11
(d) to ensure that public sector recruitment and selection 12
processes comply with the merit principle and adhere to 13
professional standards, 14
(e) to foster a public service culture in which customer 15
service, initiative, individual responsibility and the 16
achievement of results are strongly valued, 17
(f) to build public confidence in the public sector, 18
(g) to support the Government in achieving positive budget 19
outcomes through strengthening the capability of the 20
public sector workforce. 21
(2) For the purposes of this Part, the public sector comprises all the 22
public sector services (including the service of a State owned 23
corporation). 24
3F General functions of Commissioner 25
(1) The Commissioner has the following functions: 26
(a) to identify reform opportunities for the public sector 27
workforce and to advise the Government on policy 28
innovations and strategy in those areas of reform, 29
(b) to lead the strategic development and management of the 30
public sector workforce in relation to the following: 31
(i) workforce planning, including identifying risks and 32
strategies to minimise risks, 33
(ii) recruitment, particularly compliance with the 34
requirements relating to appointment and promotion 35
on merit, 36
(iii) performance management and recognition, 37
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Amendment of Public Sector Employment and Management Act 2002 No 43 Schedule 1
(iv) equity and diversity, including strategies to ensure 1
the public sector reflects the diversity of the wider 2
community, 3
(v) general conduct and compliance with ethical 4
practices, 5
(vi) learning and development, 6
(vii) succession planning, 7
(viii) redeployment, including excess employees, 8
(ix) staff mobility, 9
(x) executive staffing arrangements, 10
(c) to advise the Government on leadership structure for the 11
public sector, 12
(d) to advise the Government on appropriate strategies, 13
policies and practices in relation to the structure of the 14
public sector workforce, 15
(e) to advise the Government on appropriate strategies, 16
policies and practices in relation to such other public sector 17
matters as the Minister may direct from time to time, and 18
to monitor, co-ordinate and assist the implementation of 19
Government strategies, policies and practices in such other 20
areas as the Minister may direct from time to time, 21
(f) to develop and advise the Government on service delivery 22
strategies and models for the public sector through 23
collaboration with the private business sector, the 24
not-for-profit sector and the wider community, 25
(g) to set standards, subject to any legislative requirements, for 26
the selection of persons for appointment as members of 27
boards or committees of public authorities (including 28
Government business enterprises). 29
(2) The Commissioner has and may exercise such other functions as 30
are conferred or imposed on the Commissioner by or under this 31
or any other Act. 32
Note. The other functions of the Commissioner include promoting and 33
maintaining the public sector core values (see section 3C) and functions 34
relating to EEO under Part 9A of the Anti-Discrimination Act 1977. The 35
Commissioner may also issue guidelines under sections 9 (3) (b), 28 (2), 36
33 (3A), 38 (1), 44, 86 (9), 86A (11), 88, 88A, 89, 98 (6) and 100 (4) (c). 37
(3) The Commissioner is to exercise his or her functions in 38
accordance with the general policies and strategic directions 39
determined by the Advisory Board. 40
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Schedule 1 Amendment of Public Sector Employment and Management Act 2002 No 43
3G Commissioner to report to Premier 1
(1) The Commissioner is to report to the Premier in connection with 2
the exercise of the Commissioner's functions but is not subject to 3
the control and direction of the Premier in the exercise of those 4
functions. 5
(2) This section does not limit any other provisions of this Act 6
relating to the exercise of the functions of the Premier or the 7
Commissioner. 8
3H Annual reports of the Commissioner 9
(1) The Commissioner is, as soon as practicable after 30 June in each 10
year, to prepare and forward to the Premier: 11
(a) a report on the Commissioner's work and activities for the 12
12 months ending on that 30 June, and 13
(b) a report on the state of the public sector in relation to the 14
period of 12 months ending on that 30 June. 15
(2) The report on the state of the public sector is to include the 16
following: 17
(a) an assessment of the performance of the whole of the 18
public sector, including notable achievements, challenges 19
and priorities, 20
(b) an analysis of public sector workforce data. 21
(3) The Premier is to table any report under this section, or cause it 22
to be tabled, in both Houses of Parliament as soon as practicable 23
after it is received by the Premier. 24
3I Provision of reports and information by agencies 25
(1) The Commissioner may require the head of a public sector 26
agency to provide the Commissioner with a report on such 27
matters relating to the staff of the agency, or to the personnel 28
policies and practices of the agency, as the Commissioner 29
requires. 30
(2) In particular, the Commissioner may require inclusion in the 31
report of information of a kind specified by the Commissioner as 32
to: 33
(a) the personnel policies and practices concerning the 34
recruitment, selection, appointment, transfer, promotion or 35
discipline of the staff of the public sector agency and the 36
means by which the job satisfaction and opportunities for 37
personal development of the staff are promoted, and 38
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(b) the application of any such policies and practices to 1
different groups of members of the staff. 2
(3) The Commissioner may also require the head of a public sector 3
agency to provide the Commissioner with information collected 4
or held by the agency in dealing with matters relating to public 5
sector staff. 6
(4) The head of the public sector agency concerned must comply 7
with a requirement under this section within such time and in 8
such manner as the Commissioner directs. 9
(5) Any law relating to the protection of personal information (within 10
the meaning of the Privacy and Personal Information Protection 11
Act 1998) does not operate to prevent the furnishing of 12
information, or affect a duty to furnish information, under this 13
section. 14
(6) In this section, public sector agency includes any person or body, 15
constituted by or under an Act, that is prescribed by the 16
regulations for the purposes of this section, and the head of any 17
such prescribed agency means the person prescribed by the 18
regulations in relation to that agency. 19
3J Directions by Commissioner to public sector agencies 20
(1) The Commissioner may, for the purposes of exercising his or her 21
functions, give a direction in writing to the head of a public sector 22
agency in relation to the staff of that agency. 23
(2) Before giving a direction the Commissioner is to consult the head 24
of the public sector agency to whom the direction is to be given 25
and such other persons affected by the direction as the 26
Commissioner considers appropriate. 27
(3) The head of the public sector agency to whom a direction under 28
this section is given must comply with the direction. 29
(4) A direction under this section: 30
(a) must not be inconsistent with this Act or the principal 31
objectives of the Commissioner referred to in section 3E, 32
and 33
(b) must be made publicly available by the Commissioner as 34
soon as practicable after it is given. 35
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3K Inquiries by Commissioner into public sector agencies 1
(1) The Commissioner or a person authorised by the Commissioner 2
may conduct an inquiry into any matter relating to the 3
administration or management of a public sector agency. 4
(2) This section does not affect the operation of section 159. 5
3L Powers of entry and inspection 6
(1) The Commissioner or a person authorised by the Commissioner 7
may, for the purposes of enabling the Commissioner to exercise 8
the Commissioner's functions or in connection with the conduct 9
of an inquiry under section 3K: 10
(a) enter and inspect the premises of a public sector agency, 11
and 12
(b) require the production of, and take copies of, any 13
documents in the custody of a member of staff of the 14
public sector agency, and 15
(c) for the purposes of further examination, take possession of, 16
and remove, any of those documents, and 17
(d) require a member of staff of the public sector agency to 18
answer questions, and 19
(e) require a member of staff of the public sector agency to 20
provide such assistance and facilities as is or are necessary 21
to enable the Commissioner or authorised person to 22
exercise his or her functions. 23
(2) A reference in this section to a member of staff of a public sector 24
agency includes a reference to any person who is engaged by the 25
agency (whether directly or indirectly) under a contract for 26
services. 27
3M Delegation 28
The Commissioner may delegate the exercise of any function of 29
the Commissioner (other than this power of delegation) to: 30
(a) the head of any public sector agency or a member of staff 31
of any public sector agency, or 32
(b) any person, or any class of persons, authorised for the 33
purposes of this section by the regulations. 34
3N Staff of Commissioner 35
The staff of the Commissioner are to be employed under 36
Chapter 1A. 37
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3O Approvals or directions given by Commissioner 1
An approval or direction given by the Commissioner under this 2
Act may be given so as to apply to a particular case, or to all cases 3
within a class of cases or generally. 4
3P Confidentiality of personal information 5
(1) The Commissioner is, to the extent that it is reasonable and 6
practicable to do so, remove any personal information from any 7
report or other document prepared by the Commissioner under 8
this Part that is, or is to be, publicly available. 9
(2) In this section: 10
personal information means information about an individual 11
whose identity is apparent, or can reasonably be ascertained, 12
from the information. 13
Part 1.4 Public Service Commission Advisory 14
Board 15
3Q Advisory Board 16
(1) There is to be a Public Service Commission Advisory Board. 17
(2) The Advisory Board is to consist of the following members: 18
(a) a person appointed by the Premier as the Chairperson of 19
the Advisory Board, 20
(b) 4 other persons appointed by the Premier, 21
(c) the Commissioner or a senior member of staff of the 22
Commissioner nominated by the Commissioner, 23
(d) the Director-General of the Department of Premier and 24
Cabinet or a member of staff of that Department 25
nominated by the Director-General. 26
(3) The members appointed by the Premier are to be persons who 27
together have expertise in human resources management, probity 28
and accountability, strategic planning, budget and performance 29
management and service delivery in the public, private, tertiary 30
and not-for-profit sectors. 31
(4) Schedule 2B contains ancillary provisions relating to the 32
members and procedure of the Advisory Board. 33
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3R Functions of Advisory Board 1
(1) The Advisory Board has the following functions: 2
(a) to determine general policies and strategic directions in 3
relation to the functions of the Commissioner, 4
(b) to provide the Premier, either at the request of the Premier 5
or on its own initiative, with advice on any matter relating 6
to the management and performance of the public sector. 7
(2) The Advisory Board has such other functions as are conferred or 8
imposed on it by or under this or any other Act. 9
[3] Schedule 1 Divisions of the Government Service 10
Insert in Division 2 of Part 1 of Schedule 1 before the matter relating to the 11
Office of the Director of Public Prosecutions in Columns 1 and 2, respectively: 12
Public Service Commission * Public Service Commissioner
[4] Schedules 2A and 2B 13
Insert after Schedule 2: 14
Schedule 2A Provisions relating to Public Service 15
Commissioner 16
(Section 3D) 17
1 Basis of office of Commissioner 18
(1) The office of Commissioner is a full-time office and the holder of 19
the office is required to hold it on that basis, except to the extent 20
permitted by the Governor. 21
(2) Chapter 1A does not apply to or in respect of the appointment of 22
the Commissioner. 23
2 Terms of office 24
(1) Subject to this Schedule, the Commissioner holds office for such 25
term not exceeding 7 years as may be specified in the instrument 26
of appointment, but is eligible (if otherwise qualified) for 27
re-appointment. 28
(2) A person may not hold the office of Commissioner for terms 29
totalling more than 7 years. 30
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3 Remuneration 1
The Commissioner is entitled to be paid: 2
(a) remuneration in accordance with the Statutory and Other 3
Offices Remuneration Act 1975, and 4
(b) such travelling and subsistence allowances as the Premier 5
may from time to time determine. 6
4 Vacancy in office 7
The office of Commissioner becomes vacant if the holder: 8
(a) dies, or 9
(b) completes a term of office and is not re-appointed, or 10
(c) resigns the office by instrument in writing addressed to the 11
Governor, or 12
(d) becomes bankrupt, applies to take the benefit of any law 13
for the relief of bankrupt or insolvent debtors, compounds 14
with his or her creditors or makes an assignment of his or 15
her remuneration for their benefit, or 16
(e) becomes a mentally incapacitated person, or 17
(f) is convicted in New South Wales of an offence that is 18
punishable by imprisonment for 12 months or more or is 19
convicted elsewhere than in New South Wales of an 20
offence that, if committed in New South Wales, would be 21
an offence so punishable, or 22
(g) is removed from office by the Governor under section 3D. 23
5 Filling of vacancy 24
If the office of Commissioner becomes vacant, a person is, 25
subject to this Act, to be appointed to fill the vacancy. 26
6 Appointment of acting Commissioner 27
(1) The Premier may, from time to time, appoint a person to act in the 28
office of the Commissioner during the illness or absence of the 29
Commissioner or during a vacancy in the office of the 30
Commissioner. The person, while so acting, has all the functions 31
of the Commissioner and is taken to be the Commissioner 32
(including as a member of the Advisory Board). 33
(2) The Premier may, at any time, remove a person from office as 34
acting Commissioner. 35
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(3) An acting Commissioner is entitled to be paid such remuneration 1
(including travelling and subsistence allowances) as the Premier 2
may from time to time determine. 3
Schedule 2B Members and procedure of Public 4
Service Commission Advisory 5
Board 6
(Section 3Q) 7
Part 1 Preliminary 8
1 Definitions 9
In this Schedule: 10
appointed member means the Chairperson of the Advisory Board 11
or other member of the Advisory Board who is appointed by the 12
Premier. 13
member means an appointed or ex-officio member of the 14
Advisory Board. 15
Part 2 Members 16
2 Terms of office of appointed members 17
(1) Subject to this Schedule and the regulations, an appointed 18
member holds office for the period (not exceeding 3 years) 19
specified in the member's instrument of appointment, but is 20
eligible (if otherwise qualified) for re-appointment. 21
(2) A person may not be an appointed member for consecutive terms 22
totalling more than 6 years unless the Premier determines 23
otherwise. 24
3 Remuneration of appointed members 25
An appointed member is entitled to be paid such remuneration 26
(including travelling and subsistence allowances) as the Premier 27
may from time to time determine in respect of the member. 28
4 Vacancy in office of appointed member 29
(1) The office of an appointed member becomes vacant if the 30
member: 31
(a) dies, or 32
(b) completes a term of office and is not re-appointed, or 33
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(c) resigns the office by instrument in writing addressed to the 1
Premier, or 2
(d) is removed from office by the Premier under this clause, or 3
(e) is absent from 3 consecutive meetings of the Advisory 4
Board of which reasonable notice has been given to the 5
member personally or by post, except on leave granted by 6
the Premier or unless the member is excused by the 7
Premier for having been absent from those meetings, or 8
(f) becomes bankrupt, applies to take the benefit of any law 9
for the relief of bankrupt or insolvent debtors, compounds 10
with his or her creditors or makes an assignment of his or 11
her remuneration for their benefit, or 12
(g) becomes a mentally incapacitated person, or 13
(h) is convicted in New South Wales of an offence that is 14
punishable by imprisonment for 12 months or more or is 15
convicted elsewhere than in New South Wales of an 16
offence that, if committed in New South Wales, would be 17
an offence so punishable. 18
(2) The Premier may remove an appointed member from office at 19
any time. 20
5 Filling of vacancy in office of appointed member 21
If the office of any appointed member becomes vacant, a person 22
is, subject to this Act and the regulations, to be appointed to fill 23
the vacancy. 24
6 Appointed members not prevented from holding other offices 25
If by or under any Act provision is made: 26
(a) requiring a person who is the holder of a specified office to 27
devote the whole of his or her time to the duties of that 28
office, or 29
(b) prohibiting the person from engaging in employment 30
outside the duties of that office, 31
the provision does not operate to disqualify the person from 32
holding that office and also the office of an appointed member or 33
from accepting and retaining any remuneration payable to the 34
person under this Act as an appointed member. 35
7 Relationship with other provisions of this Act 36
Chapter 1A does not apply to or in respect of the appointment of 37
an appointed member. 38
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8 Disclosure of pecuniary or other interests 1
(1) If: 2
(a) a member has a direct or indirect pecuniary or other 3
interest in a matter being considered or about to be 4
considered at a meeting of the Advisory Board, and 5
(b) the interest appears to raise a conflict with the proper 6
performance of the member's duties in relation to the 7
consideration of the matter, 8
the member must, as soon as possible after the relevant facts have 9
come to the member's knowledge, disclose the nature of the 10
interest at a meeting of the Advisory Board. 11
(2) A disclosure by a member at a meeting of the Advisory Board 12
that the member: 13
(a) is a member, or is in the employment, of a specified 14
company or other body, or 15
(b) is a partner, or is in the employment, of a specified person, 16
or 17
(c) has some other specified interest relating to a specified 18
company or other body or to a specified person, 19
is a sufficient disclosure of the nature of the interest in any matter 20
relating to that company or other body or to that person which 21
may arise after the date of the disclosure and which is required to 22
be disclosed under subclause (1). 23
(3) Particulars of any disclosure made under this clause must be 24
recorded by the Advisory Board in a book kept for the purpose 25
and that book must be open at all reasonable hours to inspection 26
by any person. 27
(4) After a member has disclosed the nature of an interest in any 28
matter, the member must not, unless the Premier or the Advisory 29
Board otherwise determines: 30
(a) be present during any deliberation of the Advisory Board 31
with respect to the matter, or 32
(b) take part in any decision of the Advisory Board with 33
respect to the matter. 34
(5) For the purposes of the making of a determination by the 35
Advisory Board under subclause (4), a member who has a direct 36
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or indirect pecuniary or other interest in a matter to which the 1
disclosure relates must not: 2
(a) be present during any deliberation of the Advisory Board 3
for the purpose of making the determination, or 4
(b) take part in the making by the Advisory Board of the 5
determination. 6
(6) A contravention of this clause does not invalidate any decision of 7
the Advisory Board. 8
Part 3 Procedure 9
9 General procedure 10
The procedure for the calling of meetings of the Advisory Board 11
and for the conduct of business at those meetings is, subject to 12
this Act and the regulations, to be as determined by the Advisory 13
Board. 14
10 Quorum 15
The quorum for a meeting of the Advisory Board is a majority of 16
the members for the time being. 17
11 Presiding member 18
(1) The Chairperson of the Advisory Board (or, in the absence of the 19
Chairperson, a person elected by the members of the Advisory 20
Board who are present at a meeting of the Advisory Board) is to 21
preside at a meeting of the Advisory Board. 22
(2) The presiding member has a deliberative vote and, in the event of 23
an equality of votes, has a second or casting vote. 24
12 Voting 25
A decision supported by a majority of the votes cast at a meeting 26
of the Advisory Board at which a quorum is present is the 27
decision of the Advisory Board. 28
13 Transaction of business outside meetings or by telephone 29
(1) The Advisory Board may, if it thinks fit, transact any of its 30
business by the circulation of papers among all the members of 31
the Advisory Board for the time being, and a resolution in writing 32
approved in writing by a majority of those members is taken to be 33
a decision of the Advisory Board. 34
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(2) The Advisory Board may, if it thinks fit, transact any of its 1
business at a meeting at which members (or some members) 2
participate by telephone, closed-circuit television or other means, 3
but only if any member who speaks on a matter before the 4
meeting can be heard by the other members. 5
(3) For the purposes of: 6
(a) the approval of a resolution under subclause (1), or 7
(b) a meeting held in accordance with subclause (2), 8
the Chairperson and each member have the same voting rights as 9
they have at an ordinary meeting of the Advisory Board. 10
(4) A resolution approved under subclause (1) is, subject to the 11
regulations, to be recorded in the minutes of the meetings of the 12
Advisory Board. 13
(5) Papers may be circulated among the members for the purposes of 14
subclause (1) by facsimile or other transmission of the 15
information in the papers concerned. 16
14 Frequency of meetings 17
The Advisory Board is to meet at least on a quarterly basis each 18
year (but no more than 6 times each year). 19
15 First meeting 20
The Premier may call the first meeting of the Advisory Board in 21
such manner as the Premier thinks fit. 22
1.3 Miscellaneous and consequential amendments 23
[1] Part 1.1, heading 24
Insert before section 1: 25
Part 1.1 Introductory 26
[2] Section 3 Definitions 27
Omit the definition of Director of Public Employment. 28
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[3] Section 3 (1), definition of "public sector agency" 1
Insert in alphabetical order: 2
public sector agency means the whole or a part of a public sector 3
service or an employer constituting, or within, a public sector 4
service and head of a public sector agency means: 5
(a) (subject to paragraph (b)) the person who is the chief 6
executive officer, or who exercises the functions of chief 7
executive officer, of the agency, or 8
(b) the person prescribed by the regulations. 9
Note. A public sector agency would include a Division of the 10
Government Service. 11
[4] Section 3 (1), definition of "public sector service" 12
Insert "(including the service of any NSW Government agency)" after "any 13
other service of the Crown" in paragraph (f) of the definition. 14
[5] Section 4 Act does not apply to judicial or parliamentary officers 15
Renumber the section as section 158A and transfer it to Chapter 8. 16
[6] Section 4B Employment of staff in the Government Service 17
Omit the note to section 4B (2). Insert instead: 18
Note. For example, Chapter 2 regulates the employment of staff in 19
Divisions comprising the Public Service. 20
[7] Section 4D Division Heads 21
Insert at the end of section 4D (2): 22
Note. Section 129 provides that the Director-General of the Department 23
of Premier and Cabinet is taken to be the employer of the staff of the 24
Public Service in any industrial proceedings. 25
[8] Section 4H 26
Omit the section. 27
[9] Section 9 Staff positions in a Department for officers 28
Omit "by some other Act" from section 9 (1) (a). 29
Insert instead "otherwise than under section 10". 30
[10] Sections 9 (3) (b), 14 (2), 18 (2), 23 (3), 28 (2), 29 (3), 31 (2), 38 (1), 44, 54 (3), 31
56 (2), 57 (2), 63 (4), 87 (1) (a), 89 (1), 90 (2), 91 (3) and (4) (b) and 98 (6) 32
Omit "Director of Public Employment" wherever occurring. 33
Insert instead "Commissioner". 34
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Schedule 1 Amendment of Public Sector Employment and Management Act 2002 No 43
[11] Section 10 Creation of Department Head positions 1
Omit section 10 (1). Insert instead: 2
(1) Each position specified in Column 2 of Part 1 of Schedule 1 is 3
taken to be created by virtue of this section unless it is created by 4
another provision of this Act or by any other Act. 5
[12] Section 10 (2) 6
Omit "created by virtue of this Act". 7
Insert instead "created by virtue of this section". 8
[13] Sections 29 (3) and 54 (3) 9
Omit "the Director" wherever occurring. Insert instead "the Commissioner". 10
[14] Section 33 Employment of special temporary employees 11
Insert after section 33 (3): 12
(3A) Without limiting subsection (3), the employment of special 13
temporary employees is to be in accordance with such guidelines 14
as are issued by the Commissioner from time to time. 15
[15] Section 65 Composition of Senior Executive Service 16
Omit "the website of the Department of Premier and Cabinet" from 17
section 65 (2). 18
Insert instead "a Government website". 19
[16] Sections 68 (2), 86 (9), 86A (11), 88 (1) (b) and 100 (4) (c) and clause 2 (1) 20
of Schedule 3A 21
Omit "Director-General of the Department of Premier and Cabinet" wherever 22
occurring. 23
Insert instead "Commissioner". 24
[17] Section 77 Removal of executive officers from office 25
Omit "Director of Public Employment" from section 77 (9). 26
Insert instead "Director-General of the Department of Premier and Cabinet". 27
[18] Section 85 Definitions 28
Omit the section. 29
[19] Section 86 Temporary staff transfers (secondments between agencies) 30
Omit the definition of public sector agency from section 86 (10). 31
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Amendment of Public Sector Employment and Management Act 2002 No 43 Schedule 1
[20] Section 86A Temporary staff transfers (internal secondments) 1
Omit section 86A (12). 2
[21] Section 87 Employer-sponsored permanent transfers 3
Insert after section 87 (3): 4
(4) In this section, public sector agency includes a State owned 5
corporation. 6
[22] Section 88 Temporary assignment of public sector staff to other public 7
sector agencies 8
Insert "or a State owned corporation" after "local authority" in section 88 (5). 9
[23] Section 88A 10
Insert after section 88: 11
88A Other temporary assignments 12
(1) The head of a public sector agency and the person responsible for 13
the employment of persons in or by a relevant body may enter 14
into an arrangement under which a person: 15
(a) who is employed in or by the public sector agency is 16
temporarily assigned to carry out work in or for the 17
relevant body, or 18
(b) who is employed in or by the relevant body is temporarily 19
assigned to carry out work in or for the public sector 20
agency, 21
in accordance with the arrangement and with such guidelines as 22
are issued from time to time by the Commissioner. 23
(2) Without limiting subsection (1): 24
(a) any such assignment may be made for the purposes of 25
utilising the person's services in connection with a special 26
project or event, and 27
(b) the arrangement under which a person is assigned may 28
provide for the person to carry out work in or for the public 29
sector agency or relevant body concerned on a full-time or 30
part-time basis. 31
(3) A person who is employed in or by a relevant body may not be 32
temporarily assigned under this section to carry out work in or for 33
a public sector agency unless the head of the public sector agency 34
is satisfied that the temporary assignment is justified because of 35
the special skills of the person or the special circumstances of the 36
case. 37
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Schedule 1 Amendment of Public Sector Employment and Management Act 2002 No 43
(4) The maximum period for which a person may be temporarily 1
assigned under this section to carry out work in or for a public 2
sector agency at any one time is 12 months. 3
(5) A person's employment in or by a public sector agency 4
(including the continuity of that employment) is not affected by 5
the temporary assignment under this section of the person to 6
carry out work in or for a relevant body. 7
(6) In this section: 8
private sector entity means any person or body (whether 9
incorporated or unincorporated) who or which is not a public 10
sector agency or public authority, and includes any such person 11
or body in the not-for-profit sector. 12
relevant body means any of the following: 13
(a) a private sector entity, 14
(b) a public authority or government agency of the 15
Commonwealth or of another State or Territory, 16
(c) a university. 17
[24] Section 105 Other orders in relation to Divisions 18
Omit "section 4H" from section 105 (c). Insert instead "section 124". 19
[25] Section 116 Removal of term appointee from office 20
Insert at the end of section 116 (4) (c): 21
, or 22
(d) the Public Service Commissioner. 23
[26] Chapter 6, heading 24
Omit "Director of Public Employment". 25
Insert instead "Industrial relations functions". 26
[27] Parts 6.1 and 6.2 27
Omit the Parts. Insert instead: 28
Part 6.1 Preliminary 29
121 Definition 30
In this Chapter: 31
Director-General means the Director-General of the Department 32
of Premier and Cabinet. 33
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Amendment of Public Sector Employment and Management Act 2002 No 43 Schedule 1
122 Director-General not subject to Ministerial control 1
The Director-General is not subject to the control and direction of 2
the Minister in: 3
(a) determining salaries, wages or other remuneration, and 4
other conditions of employment, or 5
(b) dealing with a dispute relating to an industrial matter. 6
123 Delegation 7
(1) The Director-General may delegate any of the 8
Director-General's functions under this Chapter (other than this 9
power of delegation) to the head of a public sector agency or any 10
other member of staff of a public sector agency. 11
(2) Any delegation of a function with respect to the making of a 12
determination fixing salaries, wages or other remuneration of 13
staff is subject to the condition that any such determination must 14
be at a level that is lower than the lowest amount of the 15
remuneration packages for executive officers determined for the 16
time being under the Statutory and Other Offices Remuneration 17
Act 1975. 18
(3) In this section, a reference to a member of staff of a public sector 19
agency includes: 20
(a) a reference to a person holding an appointment to or in the 21
agency, and 22
(b) a reference to a person holding an appointment to or in a 23
body or organisation having functions that are exercised by 24
the staff of that agency. 25
(4) The power of delegation conferred by this section is in addition 26
to and does not limit the power conferred by section 4F. 27
Part 6.2 General public sector industrial relations 28
functions 29
124 Compliance with directions of Director-General on industrial 30
matters 31
(1) This section applies to a Division of the Government Service that 32
is specified in Part 2 of Schedule 1 as a Division to which this 33
section applies. 34
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Schedule 1 Amendment of Public Sector Employment and Management Act 2002 No 43
(2) The Director-General may, with the approval of the Minister and 1
by notice in writing to the Division Head of a Division to which 2
this section applies, require the Division Head: 3
(a) to notify the Director-General of such industrial matters 4
affecting the Division as may be specified in the notice, 5
and 6
(b) to exercise the Division Head's functions in respect of any 7
such industrial matter in such manner as may be specified 8
in the notice. 9
(3) A notice may specify the manner and the time within which 10
industrial matters must be notified. 11
(4) A Division Head must comply with a requirement under this 12
section. 13
125 Advisory and monitoring functions 14
(1) The Director-General has the following functions: 15
(a) advising the Government on appropriate strategies and 16
policies regarding employment conditions (including 17
wages) and industrial relations in the public sector, 18
(b) monitoring the implementation of Government strategies 19
and policies on employment conditions (including wages) 20
and industrial relations in the public sector and assisting 21
the implementation of those strategies and policies 22
(including the issuing of implementation guidelines). 23
(2) The Director-General must consult with the Commissioner 24
before exercising any such function. 25
[28] Sections 129, 130 (1) and (3), 131 (1) and (4) and 132 26
Omit "Director of Public Employment" wherever occurring. 27
Insert instead "Director-General". 28
[29] Section 131 Director-General may enter into agreements 29
Omit "of the Director" from section 131 (4). 30
Insert instead "of the Director-General". 31
[30] Section 132 Authorised officer may enter Department's premises etc 32
Omit "the Director's functions" from section 132 (1). 33
Insert instead "the Director-General's functions under this Part". 34
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Public Sector Employment and Management Amendment (Ethics and
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Amendment of Public Sector Employment and Management Act 2002 No 43 Schedule 1
[31] Section 158A (as renumbered by item [4] of this subschedule) 1
Omit the note to the section. Insert instead: 2
Note. Parliamentary officers do, however, comprise a public sector 3
service (see paragraph (e) of that definition in section 3). Accordingly, 4
provisions of this Act relating to public sector ethics (Part 1.2), the 5
functions of the Public Service Commissioner (Part 1.3), staff mobility 6
(Part 3.2) and certain other provisions that generally deal with 7
employees in a public sector service (such as sections 100, 102 and 8
103) apply to parliamentary officers. 9
[32] Section 159A Inquiries by Director-General into public sector agencies 10
Omit the definitions of public sector agency and public sector service from 11
section 159A (1). 12
[33] Section 159A (2A) 13
Insert after section 159A (2): 14
(2A) An inquiry cannot be conducted under this section into any 15
matter that is the subject of an inquiry by the Commissioner 16
under section 3K except with the concurrence of the 17
Commissioner. 18
[34] Section 159A (5) 19
Omit "section 132". Insert instead "section 3K, 132". 20
[35] Section 159A (6) 21
Insert after section 159A (5): 22
(6) This section does not apply to or in respect of: 23
(a) the NSW Police Force, or 24
(b) the public sector agency comprising the service of either 25
House of Parliament, or the President or Speaker, or the 26
President and the Speaker jointly. 27
[36] Section 162A 28
Insert after section 162: 29
162A Personal liability of Commissioner and certain other persons 30
(1) A matter or thing done (or omitted to be done) by: 31
(a) the Commissioner, or 32
(b) the Advisory Board, or 33
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Schedule 1 Amendment of Public Sector Employment and Management Act 2002 No 43
(c) a person acting under the direction of the Commissioner or 1
the Advisory Board, 2
does not, if the matter or thing was done (or omitted to be done) 3
in good faith for the purposes of executing this or any other Act, 4
subject the Commissioner, a member of the Advisory Board or a 5
person so acting personally to any action, liability, claim or 6
demand. 7
(2) A reference in subsection (1) to the execution of this Act includes 8
a reference to the execution of the provisions of any other Act that 9
confer functions on the Commissioner or the Advisory Board. 10
[37] Section 164 Regulations 11
Insert after section 164 (1): 12
(1A) In particular, the regulations may: 13
(a) make provision for or with respect to the principles, 14
practices and procedures to be observed in connection with 15
the exercise of the functions of the Commissioner, and 16
(b) prescribe the circumstances in which an approval by the 17
Commissioner under this or any other Act may be regarded 18
as having been given, or 19
(c) prescribe the procedure for obtaining any such approval. 20
[38] Schedule 1 Divisions of the Government Service 21
Omit the note at the end of Part 1. Insert instead: 22
Note. The positions in Column 2 that are marked with an asterisk are 23
positions that are statutory offices. All other positions referred to in this 24
Part are created under section 10 and are Public Service positions. 25
[39] Schedule 1, Part 2, note 26
Omit "section 4H". Insert instead "section 124". 27
[40] Schedule 1, Part 3 28
Omit "Director of Public Employment" wherever occurring. 29
Insert instead "Public Service Commissioner". 30
[41] Schedule 2 Executive positions (other than non-statutory SES positions) 31
Insert "Public Service Commissioner," after "Ombudsman," in Part 1. 32
[42] Schedule 2, Part 3 33
Omit "Director of Equal Opportunity in Public Employment". 34
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Public Sector Employment and Management Amendment (Ethics and
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Amendment of Public Sector Employment and Management Act 2002 No 43 Schedule 1
[43] Schedule 3A Recognition of prior government service for public sector 1
employees extended leave entitlements 2
Omit "offices of the Department of Premier and Cabinet" from clause 2 (3). 3
Insert instead "Public Service Commission". 4
[44] Schedule 4 Savings, transitional and other provisions 5
Insert at the end of clause 1 (1): 6
Public Sector Employment and Management Amendment (Ethics 7
and Public Service Commissioner) Act 2011 8
[45] Schedule 4, Part 9 9
Insert after Part 8: 10
Part 9 Provisions consequent on enactment of 11
Public Sector Employment and 12
Management Amendment (Ethics and 13
Public Service Commissioner) Act 2011 14
31 Definition 15
In this Part: 16
amending Act means the Public Sector Employment and 17
Management Amendment (Ethics and Public Service 18
Commissioner) Act 2011. 19
32 Recommendation of appointment of first Commissioner 20
The person appointed as the first Commissioner is to be a person 21
whose appointment is recommended by a committee chaired by 22
a person appointed by the Premier (whether before or after the 23
commencement of this clause) as the Chairperson of the Public 24
Service Commission Advisory Board. 25
33 Construction of references to Director of Public Employment 26
A reference, in any other Act, or in any instrument made under 27
any other Act or in any other instrument of any kind, to the 28
Director of Public Employment is to be read: 29
(a) as a reference to the Public Service Commissioner, or 30
(b) as a reference to the Director-General of the Department of 31
Premier and Cabinet if the reference relates to the 32
functions exercised by the Director of Public Employment 33
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Schedule 1 Amendment of Public Sector Employment and Management Act 2002 No 43
under Part 6.3 (as in force immediately before the 1
amendments to that Part by the amending Act). 2
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Public Sector Employment and Management Amendment (Ethics and
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Amendment of other legislation Schedule 2
Schedule 2 Amendment of other legislation 1
2.1 Anti-Discrimination Act 1977 No 48 2
[1] Section 4 Definitions 3
Omit the definition of Director from section 4 (1). 4
[2] Section 122A Definitions 5
Insert in alphabetical order: 6
Commissioner means the Public Service Commissioner. 7
[3] Sections 122A (definition of "reference"), 122I (1) (c) (ii) and (2)(4), 8
122J (6), 122M, 122O, 122P and 122R 9
Omit "Director" wherever occurring. Insert instead "Commissioner". 10
[4] Part 9A, Division 2, heading 11
Omit "The Director of Equal Opportunity in Public Employment". 12
Insert instead "EEO functions of Commissioner". 13
[5] Sections 122E, 122F, 122HE and 122HG 14
Omit the sections. 15
[6] Section 122I EEO functions of Commissioner 16
Omit "the Director" from section 122I (1) where firstly occurring. 17
Insert instead "the Commissioner under this Part". 18
[7] Section 121I (3) and (4) 19
Omit "Director's functions" wherever occurring. 20
Insert instead "Commissioner's functions under this Part". 21
[8] Section 124 Obstruction 22
Omit "the Director or an officer of the Director" from section 124 (b). 23
Insert instead "the Public Service Commissioner or a member of staff of the 24
Public Service Commission". 25
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Public Sector Employment and Management Amendment (Ethics and
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Schedule 2 Amendment of other legislation
2.2 Defamation Act 2005 No 77 1
Schedule 1 Additional publications to which absolute privilege applies 2
Omit clause 9 (1) (e). Insert instead: 3
(e) to or by the Public Service Commissioner or a member of 4
staff of the Public Service Commission. 5
2.3 Fire Brigades Act 1989 No 192 6
[1] Section 68 7
Omit the section. Insert instead: 8
68 Definition 9
In this Division: 10
Director-General means the Director-General of the Department 11
of Premier and Cabinet. 12
[2] Sections 70 (1), 71 (1), 72 (1) and 74 (2) 13
Omit "Authority" wherever occurring. Insert instead "Director-General". 14
2.4 Health Services Regulation 2008 15
Clause 18 Construction of references to HealthQuest 16
Insert "immediately before the repeal of that definition by the Public Sector 17
Employment and Management Amendment (Ethics and Public Service 18
Commissioner) Act 2011" after "2002" in the definition of Director of Public 19
Employment in clause 18 (7). 20
2.5 Local Government Act 1993 No 30 21
Sections 346 (2) and 347 (1) 22
Omit "Director of Equal Opportunity in Public Employment" wherever 23
occurring. 24
Insert instead "Public Service Commissioner". 25
2.6 Non-Indigenous Animals Act 1987 No 166 26
Section 9 Staff of the advisory committee 27
Omit "Public Employment Office" from section 9 (1) (b). 28
Insert instead "Public Service Commissioner". 29
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Public Sector Employment and Management Amendment (Ethics and
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Amendment of other legislation Schedule 2
2.7 Parliamentary Electorates and Elections Act 1912 No 41 1
Section 21AP Remuneration of appointed officials 2
Omit "Director of Public Employment". 3
Insert instead "Public Service Commissioner". 4
2.8 Police Act 1990 No 47 5
Section 60 Executive officer mobility 6
Omit "Public Employment Office" from the note to the section. 7
Insert instead "Public Service Commissioner". 8
2.9 Police Regulation 2008 9
[1] Clause 69 Application of Public Service conditions of service and 10
selection procedures 11
Omit "Public Employment Office" from clause 69 (2). 12
Insert instead "Public Service Commissioner". 13
[2] Clause 69 (2A) 14
Omit "clause 9 (2) (b) of the Public Sector Employment and Management 15
(General) Regulation 1996". 16
Insert instead "clause 5 (2) (b) of the Public Sector Employment and 17
Management Regulation 2009". 18
2.10 Public Finance and Audit Act 1983 No 152 19
Schedule 3 Departments 20
Insert after the matter relating to the Department of Premier and Cabinet in 21
Columns 1 and 2, respectively: 22
Public Service Commission Public Service Commissioner
2.11 Public Sector Employment and Management Regulation 23
2009 24
[1] Clauses 6, 9 (1) and 13 (8) (definition of "nominated medical assessor") 25
Omit "Director of Public Employment" wherever occurring. 26
Insert instead "Public Service Commissioner". 27
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Public Sector Employment and Management Amendment (Ethics and
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Schedule 2 Amendment of other legislation
[2] Clauses 15 (1), 17 (5), 22 (3) and 25 1
Omit "Director of Public Employment" wherever occurring. 2
Insert instead "Director-General of the Department of Premier and Cabinet". 3
[3] Clause 24 4
Omit the clause. Insert instead: 5
24 Determinations and approvals 6
(1) A determination or an approval of a relevant person under this 7
Regulation is to be published or notified in such manner as the 8
person considers necessary in order to bring the determination or 9
approval to the notice of the members of staff to whom it applies. 10
(2) A determination or an approval of a relevant person under this 11
Regulation may do either or both of the following: 12
(a) apply generally or be limited in its application by reference 13
to specified exceptions or factors, 14
(b) apply differently according to different factors of a 15
specified kind. 16
(3) In this clause: 17
relevant person means any of the following: 18
(a) the Public Service Commissioner, 19
(b) the Director-General of the Department of Premier and 20
Cabinet, 21
(c) a Department Head. 22
2.12 Statutory and Other Offices Remuneration Act 1975 (1976 23
No 4) 24
Schedule 1 Public offices 25
Insert at the end of the Schedule: 26
Public Service Commissioner 27
2.13 Teaching Service Act 1980 No 23 28
Section 92 Deduction from salary or wages for use of building or 29
provision of services 30
Omit "Public Employment Office" from section 92 (1). 31
Insert instead "Public Service Commissioner". 32
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Public Sector Employment and Management Amendment (Ethics and
Public Service Commissioner) Bill 2011
Amendment of other legislation Schedule 2
2.14 Transport Administration Act 1988 No 109 1
[1] Section 88V Temporary staff placement with ARTC (secondments) 2
Omit "Public Employment Office" from section 88V (8) and (9) wherever 3
occurring. 4
Insert instead "Public Service Commissioner". 5
[2] Section 88V (10), definition of "Public Employment Office" 6
Omit the definition. 7
Page 33
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