Public Sector Reform Bill 2009 - Committee
Date:Tuesday, September 14, 2010
Hon Ljiljanna Ravlich; Hon Norman Moore; Hon Alison Xamon; Hon Michael Mischin
Resumed from an earlier stage of the sitting. The Deputy Chairman of Committees (Hon Helen Morton) in the chair; Hon Norman Moore (Leader of the House) in charge of the bill.
Clause 22: Section 23 replaced —
Hon LJILJANNA RAVLICH: Clause 22 is related to the delegation of powers by the commissioner. I understand that, ordinarily, ministers delegate some of their powers to directors general and chief executive officers to perform certain functions; I do not really have much of a problem with that. But I do have some concerns about this provision in that proposed new section 23 sets out the capacity of the Public Sector Commissioner to delegate any powers or duties. I would like to get some sense of the extremes, if the minister likes, of what those powers and duties might be. Under a normal arrangement, the mining minister, for example, might delegate powers to approve mining proposals, but in this case it is not clear about the extent to which the Public Sector Commissioner can delegate his power and his duties. Can the minister explain to me how that would work and what the Public Sector Commissioner might want to delegate?
Hon ALISON XAMON: I wish to get clarification on this point. I understand that there may be good reason why the commissioner may want to delegate to someone outside the public sector. The initial point raised by Hon Ljiljanna Ravlich was that the Public Sector Reform Bill 2009 refers to “any power” being delegated out. Will the minister confirm that what I have understood him to say is correct in that, effectively, the power described will not be beyond the scope of what currently exists, and that it will be guided by existing custom and practice in relation to the delegation of powers?
Hon NORMAN MOORE: Yes.
Clause put and passed.
Hon LJILJANNA RAVLICH: I move —
Page 26, line 7 — To delete “delegate” and insert —
, in an extreme or emergency situation, delegate, for a defined time,
Under proposed new section 33, the capacity for chief executive officers and chief employees to delegate any power or duty under the existing section 33 of the act will be extended to a wide range of public officers and other approved persons. This may include a person who is outside the public sector. The purpose of my amendment is to ensure that this delegation will occur not on a regular basis, but only in an extreme or emergency situation, and for a defined time. We do not want a situation to develop in which delegation will become normal practice. This amendment will limit the situations in which a delegation may be invoked. If this amendment is passed, proposed section 33(1) will read in part —
Subject to any other written law, a chief executive officer or chief employee may, in an extreme or emergency situation, delegate, for a defined time, any power or duty of the chief executive officer or chief employee under another provision of this Act to —
Hon NORMAN MOORE: Section 33 provides that chief executive officers or chief employees in government agencies may delegate their powers or duties. Under the amendment proposed by the member, the only time this could be done would be in an extreme or emergency situation. That would be totally impracticable. There are many occasions when CEOs delegate some of their powers to other officers in the agency, and, indeed, ministers delegate their powers to CEOs, and sometimes to other officers. That is a normal part of the way in which the public sector works. For example, a CEO who may have a serious conflict of interest in a matter that is being dealt by the agency may delegate his or her powers to another person. The potential outcome of this amendment is that it would be highly constraining on the ability of a public sector CEO to do his or her job. I cannot imagine how the member would even define what is “an extreme or emergency situation”, because they are very subjective words. To constrain any delegation to those circumstances would in my view be totally impractical and totally unworkable.
Hon ALISON XAMON: Can the Leader of the House please confirm whether the current delegation powers as described are the existing custom and practice?
Hon NORMAN MOORE: Under the current section 33, an anomaly exists with regard to the police commissioner. That anomaly is that the police commissioner may delegate his powers and duties under the Public Sector Management Act only to a public service officer within the police service, and not to a member of the police force. That has been a problem in the past.............................................
Amendment put and negatived.
Hon LJILJANNA RAVLICH: I move —
Page 75, after line 30 — To insert —
(8) Disciplinary action against a former employee will only proceed where it is in the public interest. A decision to proceed will be made by the Commissioner in accordance with the relevant Commissioner’s instruction on public interest.
There is no doubt that some employees, having undertaken activities, can find themselves in breach of the Public Sector Management Act and, indeed, the Criminal Code. We do not want individuals who have served the public well in the course of their duty hounded and dealt with when there is no interest to be gained by doing so. We consider that the commissioner is in the best position to make such a decision and that he should be able to do that in accordance with his own instructions. We want serious disciplinary issues to be dealt with because of their serious nature, but we would not want to see decade-old minor issues being resurrected and people put under enormous undue public pressure because of a minor misdemeanour that might have occurred a long time ago. Having said that, I support the amendment in my name, naturally!
Hon ALISON XAMON: I am interested in looking at the discretion to pursue disciplinary action. I have some sympathy for the argument that the government does not want to give, if you like, a get-out-of-jail-free card to people by prescribing public interest too narrowly so that we may not be able to pursue people who perhaps should be subject to disciplinary proceedings. At the same time, there is always that balancing act, because I do not think anybody in this place wants to see very minor offences pursued unnecessarily—people whose reputations have already been tarnished and are out of a job and who just need to somehow crawl under a rock and get on with their lives. Could the Leader of the House please enlighten me as to the degree of discretion that currently exists in a decision whether or not to pursue those who would ordinarily be captured under the provisions of this act?
Hon NORMAN MOORE: I am sorry to take so long. Trying to become an expert on the Public Sector Management Act is virtually impossible.
Hon Kate Doust: I would have thought that after your extended time here, it would come naturally.
Hon NORMAN MOORE: I am happy to accept that in my parliamentary life I have made some mistakes, and one of them is the Public Sector Management Act; however, there were circumstances that surrounded the introduction of that act. As members opposite would remember, that was a response to WA Inc. It might have been an overreaction—I think we all agree with that. We are doing our best to resurrect some of the good things that used to be around back in the old public service board days, when things were different and public sector employees were simply people who worked for the public and not for the political party. However, let us put that to one side.
In response to the matter Hon Alison Xamon raised, at the moment chief executive officers and agencies initiate disciplinary action, but it can only be against existing staff and not ex-staff and there really are no rules or guidelines that inform or assist the CEO on disciplinary matters. It is a matter of judgement on the part of the CEO or the delegated person as to how they go about conducting disciplinary action. This bill provides for two things: one, it allows for ex-employees to be disciplined; and, two, it provides commissioner’s instructions on what sorts of things CEOs need to take into account when they are considering whether or not to initiate disciplinary action. I read them out a moment ago, so I will not do that again. They are essentially public interest issues, but they also relate to the fairness of the disciplinary action. These instructions will, for the first time, give some guidelines to CEOs on how they should go about initiating disciplinary action; and, as I said, it gives them authority to do so with ex-employees, where it is appropriate.
Hon ALISON XAMON: It seems that we are in agreement on the principles we are trying to encapsulate here, and there are often circumstances in which it is useful to be able to pursue former employees for breaches of the act. At the same time, we do not want to see people who just need to get on with their lives pursued unnecessarily. It seems that the issue is whether public interest—again I think we all agree on this because that is in the instructions—should be incorporated within the act or whether it is best placed in a more informal way within the instructions. It seems that is where we differ. The Leader of the House alluded to this when we were discussing another amendment. Could the Leader of the House comment on how much we can rely on that instruction, considering that we all agree to the principle as opposed to needing to put it into the primary act?
Hon NORMAN MOORE: We will have to agree to differ here. It is the view of Hon Alison Xamon and Hon Ljiljanna Ravlich that we include this in the act. It is the government’s view that public interest is better dealt with under commissioner’s instructions. The commissioner’s instructions will be a public document, although I gather these particular instructions will not be a disallowable instrument. However, by not including it in the act, there is the capacity to modify criteria that might relate to public interest and other issues that need to be taken into account when a CEO is making a decision about a disciplinary matter. It may be that some of these issues need to be dispensed with because they do not apply any longer and that new issues need to be taken into account, but the bottom line is, if employees or ex-employees of agencies need to be disciplined, then clearly there is some discretion for the CEOs about when they initiate that disciplinary action. The commissioner’s instructions will give them significant guidelines on how to do that and what things they should take into account before they initiate the disciplinary action. As I said, that is different from now, where there really are no guidelines at all.
Hon ALISON XAMON: Getting back to the substance of the amendment that we are debating, if we were to incorporate the amendment as is proposed, that would not preclude us from having an extended commissioner’s instruction, as the Leader of the House has read it; it would simply give quite clear guidelines on when disciplinary action against former employees will proceed.
Hon NORMAN MOORE: Just quickly on the issue raised by Hon Ljiljanna Ravlich, officers can be reprimanded, they can be fined, they can have a reduction in classification, they can be transferred or they can be dismissed. If they are former employees, I suspect that they would get a fine or a reprimand, which would then form part of their CV; that is, if they applied for a job and they had been reprimanded for doing something in their former employment, they would have to reveal that they had been reprimanded. Clearly, they are not dismissed or transferred; the member is quite right. However, at the moment, if they are former employees, nothing happens to them, and that is what this bill is seeking to overcome.
On the matter raised by Hon Alison Xamon, the amendment says that “disciplinary action against a former employee will only proceed where it is in the public interest”. It is exclusive that there is a public interest issue, and it will proceed only when it is in the public interest. There may be occasions when it is not in the public interest, but the CEO believes that it is important for all sorts of other reasons that action be taken against that particular person.
Hon Ljiljanna Ravlich: Like what?
Hon Alison Xamon: Do you mind elucidating on that? Could you give an example why it would be in the interest to pursue a former employee if it was not in the public interest?
Hon NORMAN MOORE: Probably not off the top of my head.
Hon Ljiljanna Ravlich: Take your time.
Hon NORMAN MOORE: I do not have a lot of time. I am trying to answer all the members’ questions, which are —
Hon Ljiljanna Ravlich: Good.
Hon NORMAN MOORE: Yes, they are good questions. I cannot sit here and surmise every possible case that might arise in the future, but this amendment says that there will be action against a former employee only if it is in the public interest. I cannot think of any reasons other than the public interest for pursuing somebody, but there may well be a reason. Why should we constrain the CEO by saying that it has to be in the public interest? Sometimes determining what is in the public interest can be a relatively subjective activity. If members give me a moment, I might be able to think of an example.
Hon ALISON XAMON: The concern that I hold is that former employees could be pursued when it is not in the public interest to do so. I cannot see any reason why that would be a good use of taxpayers’ money or advantageous to any party. It is constantly about getting that balance. I support the provision that enables us to pursue former employees. But, again, that should be done on the basis that it is in the public interest to do so, not just because there is a power that enables that to occur. There comes a point at which disciplinary action against employees, having been publicly humiliated, having lost their jobs and having experienced all sorts of detriment, should just be left to lie. I am happy to be convinced, but if the Leader of the House could give me an example, that would be great.
Hon NORMAN MOORE: I am trying to get my mind around an example in which the public interest may not be an issue or there may be a wish to disregard the public interest. One of the considerations in the draft commissioner’s instructions are the likely impact upon public confidence in the public sector or the relevant public sector body if the suspected breach of discipline is not dealt with as a disciplinary matter. If a public servant has done something involving a disciplinary action in his or her revious life—I have lost my train of thought —
Hon Alison Xamon: I don’t think that’s in the public interest.
Hon NORMAN MOORE
..................................We could probably argue all night, but the government does not support the amendments for the reasons I have just outlined.
Hon ALISON XAMON: I think we can all agree that they are really good criteria within the commissioner’s instructions as to the sorts of things one would hope would be assessed before deciding to pursue any disciplinary action against a former employee. I note there is nothing to indicate that there still cannot be a range of criteria that are considered in addition to whether it is in the public interest. It seems to me that the issue of public interest is the overarching interest that we would hope would be the first hurdle that anyone would have to overcome in order to look at pursuing disciplinary proceedings against former employees. Once that is done, I would hope that in addition to that we would be looking at all the criteria as outlined within the commissioner’s instruction. I hear the government is not keen to proceed with this amendment. I think it would be a very valuable safeguard to help balance out this new-found power. I understand that is the government’s position on this.
Amendment put and a division taken, the Deputy Chairman (Hon Max Trenorden) casting his vote with the noes, with the following result — Ayes (12), Noes (17)
Amendment thus negatived.
Clause 97: Section 81 replaced —
Hon LJILJANNA RAVLICH: I move —
Page 82, after line 19 — To insert —
(d) must consider the evidence available.
I will quickly turn to the relevant provision in the Public Sector Reform Bill. Proposed section 82A provides for dealing with a disciplinary matter and clearly outlines the process. Proposed section 82A states —
(1) In dealing with a disciplinary matter under this Division an employing authority —
(a) must proceed with as little formality and technicality as this Division, the Commissioner’s instructions and the circumstances of the matter permit; and
(b) is not bound by the rules of evidence; and
(c) may, subject to this Division and the Commissioner’s instructions, determine the procedure to be followed.
We propose to insert the new paragraph —
(d) must consider the evidence available.
Hon NORMAN MOORE: The government does not support the amendment because it does not think that it is necessary. The rules of evidence do not apply in a disciplinary matter, which takes us back to clause 96; however, relevant evidence cannot be ignored and it will not be. That is a rule of natural justice that necessarily applies to all aspects of the disciplinary process. Similarly, it is also a rule that irrelevant considerations must not be taken into account. Therefore, the amendment may indeed have the undesirable and unintended effect of requiring that irrelevant material as evidence must be considered. It is the government’s view that the requirement is unnecessary for those reasons.
Hon ALISON XAMON: The concern that I have is that the way in which the provision is written at the moment—I am happy to have my concern assuaged—means that someone effectively might be subject to disciplinary proceedings simply based on someone’s opinion, hearsay or something like that. I understand that the rules of evidence do not apply, but that is very different from saying that we will not consider the evidence that is available. Perhaps the Leader of the House could reassure me.
Hon NORMAN MOORE: I repeat the point I made earlier that it is a rule of natural justice that must apply to all processes in any disciplinary action. Therefore, any action that is taken will take into account all the relevant information, including evidence, but not necessarily irrelevant evidence, as I explained earlier. It is possible in the event that somebody is found to have engaged in action that has resulted in a disciplinary action being taken, that person can in fact appeal against that to the Public Service Appeal Board if relevant consideration has not been taken into account. I do not think that there is much prospect of somebody simply vindictively inventing something to try to ensure that someone is disciplined when there is a right of appeal and the case can be argued that the relevant considerations were not taken into account.
Hon ALISON XAMON: I was not suggesting that it necessarily would be based on vindictiveness. It may be that a well-meaning supervisor is in the position whereby, perhaps, there is somebody who has interesting personality traits that other people might take objection to and may decide to lodge a complaint. That in itself should not be grounds for disciplinary proceedings, but in the absence of a requirement to consider evidence that would be made available, it is a concern that people’s prejudices or the like might take hold. In relation to the issue of natural justice, or procedural fairness, as I prefer to refer to it, I am aware that this specific provision to a degree looks at relaxing those provisions. Therefore, I thought the amendment would be a useful safeguard to include, noting that it provides for simply considering the evidence; it does not actually state what needs to be done with that evidence. However, it certainly means that evidence cannot be ignored.
Hon NORMAN MOORE: It is the government’s view that this amendment is unnecessary. I have already gone through the reasons I think that is the case. If we insert this provision, all evidence must be considered whether it is relevant. It is considered that that is inappropriate in the context of a disciplinary action. Again, the guidelines will have advice to CEOs about the sorts of things that they need to take into account when they decide whether disciplinary action should be taken against an officer.
Amendment put and negatived.
Title put and passed.
Bill reported, with amendments.