The earliest appointments to the APS, apart from those State public servants transferred to the national government under the Australian Constitution when the Commonwealth was formed on 1 January 1901, were made under s 67 of the Australian Constitution:
Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by the law of the Commonwealth to some other authority.
Section 67 is still occasionally used, but it was not very long before the inaugural government of the Commonwealth introduced a Public Service Bill which was adopted in 1902. It was overtaken by another Act in 1922. As already noted, Australia’s third and latest Public Service Act dates from 1999; like the 1902 Act, it had a long journey through Parliament. Like the 1922 Act, there was a long hiatus between the time when it became apparent that new legislation was highly desirable and its eventual realisation. First mooted during the early 1990s, a bill was finally introduced in June 1997. It was subject to detailed inquiry by the Joint Committee of Public Accounts, most of whose recommendations for amendment were incorporated. A revised bill was reintroduced following the 1998 elections and eventually passed the Senate after much debate, which included provisions relating to staff appeal rights and procedures.
The PSA 1999 is the statutory basis for Australia’s now highly departmentalised public service in which centralisation is minimised but hardly eliminated; in which ministerial control in most fields is reasserted except in individual personnel decisions[9] and in which public service workplace relations are largely re-integrated with the national system.[10] Articulation of APS Values[11] and the APS Code of Conduct[12] give effect to the current approach to public service identity based on values rather than, as has been claimed, a unified pay and grading system. According to s 3, the objects of the Act are:
to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public; and
to provide a legal framework for the effective and fair employment, management and leadership of APS employees; and
to define the powers, functions and responsibilities of Agency Heads, the Public Service Commissioner and the Merit Protection Commissioner; and
to establish rights and obligations of APS employees.
This statement is a reflection of legislative drafting practice in the past decade and a half. There is no comparable statement in either of the predecessor Acts as it was not then the fashion to include declarations of this character. The 1902 Act was designed for a Commissioner-managed public service. The first purpose was to bring some order (commonality) to the disparate assortment of organisations — the Post Office, Defence, Trade and Customs — inherited from the colonies on or shortly after establishment of the Commonwealth. It also entailed fostering some commonality of practice in the four, very small departments the Commonwealth created for itself: External Affairs; Attorney-General’s; Home Affairs; and the Treasury. General management power was comprehensively vested in the commissioner, appointed for a seven-year term, though ‘Chief Officers’ had authority for a range of day-to-day decision-making.
Although not explicitly stated, chief officers were conceptually the heads of State branches of departments; this level of management may also have been recognised as a form of delegation within departments themselves. In cases of departments inherited from the States, it was a means of assuaging injury to pride of former department heads now subordinate to the head of the department at the new Commonwealth level of government. There was a certain irony in the largely successful attempt to bring the whole public service, wherever people were actually employed, within a single system in that it remained in terms of career paths a basically departmentalised and, indeed, State-based, service. There was practically no inter-departmental mobility.
Following election of a Labor Government led by Andrew Fisher in 1910 — the first government in the history of the Commonwealth to have majorities in both Houses of the Parliament — the first circumscription of the Commissioner’s powers was effected. By separate legislation, public service unions won access to the Commonwealth Court of Conciliation and Arbitration for settlement of disputes about pay and employment conditions.[13]
The wide-ranging statutory powers of the Commissioner can be explained in a number of ways. The most obvious was simply emulation of recent State public service legislation designed to promote efficiency, economy and competence, and to eliminate corruption, in New South Wales and Victoria (72 of its 80 sections had counterparts in the legislation of those States).
The major weakness of the 1902 Act was its completely inadequate treatment of the departmental side of public administration. Illustrative of this deficiency was its failure to provide a clear procedure for appointment of department heads. Nor did it clearly set out their powers, or the procedures by which the system was to work.
The 1922 Act replaced a commissioner-centred public service with one supervised by the Public Service Board but with a high level of definition of the department head role in establishments and, after 1925 amendments, promotions and transfers. The move towards the departmentalised service embodied in the PSA 1999 was under way. One explanation for these particular characteristics of the new public service regime is that its major architect was a department head, Sir Robert Garran, Secretary to the Attorney-General’s Department, Solicitor-General and parliamentary draftsman. The Board’s exclusive role in recruitment and appointment remained. The wide-ranging central powers of determination of pay and employment conditions were now subject to a Public Service Arbitrator, created in 1920 also by separate legislation.[14]
The 1922 Act, amended substantially from time to time — notably in 1935 (graduate recruitment), 1946 (promotions appeals) and 1960 (general recruitment) — remained viable until the early 1970s. Thereafter, it became increasingly unwieldy and prone to additions of a most detailed kind, partly a consequence of union demands that changes be incorporated in legislation and partly in an effort to cope with the unstable departmental structure of the period from 1972 to 1987. Important statutory changes such as winding back the traditional tenure of public servants were sensibly addressed in separate legislation;[15] such legislation (like that removing the prohibition on permanent employment of married women in 1966[16]) had application to other areas of public sector employment, not simply the APS alone.
The law covering public service employment is thus found in many other Acts as well the Public Service Act for the time being.[17] Public Service legislation also includes rule-making authority for the major agents. The 1922 Act empowered the Board to make regulations and determinations;[18] for administrative convenience, it also issued General Orders, which had the effect of law. The Public Service Arbitrator made determinations; these became awards when the jurisdiction was merged with that of the Conciliation and Arbitration Commission in 1984.
The PSA 1999 is buttressed by Commissioner’s Directions issued under ss 11, 15 and 36 (see also s 42). In length these already rival the Act itself. The Act also authorises the Prime Minister to issue general directions to Agency Heads. Similarly, the Act authorises the ‘Public Service Minister … by notice in the Gazette, [to] make rules about classifications of APS employees’.[19]
In an abstract sense, management of a public service in Australia by means of legislation is a matter of choice: indeed, the 1994 Review of the Public Service Act was advised by the Attorney-General’s Department that the decision to have a new Act was ‘a policy decision not a legal requirement’.[20]
That great source of wisdom on public service management, the 1853 report on The Organisation of the Permanent Civil Service by Sir Stafford Northcote and Sir Charles Trevelyan, concluded with a strong recommendation in favour of legislation:
It remains for us to express our conviction that if any change of the importance of those which we have recommended is to be carried into effect, it can only be successfully done through the medium of an Act of Parliament. The existing system is supported by long usage and powerful interests; and were any Government to introduce material alterations into it, in consequence of their own convictions, without taking the precaution to give those alterations the force of law, it is almost certain that they would be imperceptibly, or perhaps avowedly, abandoned by their successors, if they were not even allowed to fall into disuse by the very Government which had originated them. A few clauses would accomplish all that is proposed in this paper, and it is our firm belief that a candid statement of the grounds of the measure would insure its success and popularity in the country, and would remove many misconceptions which are now prejudicial to the public service.[21]
Legislation was promised by the Queen in a Speech from the Throne in 1855 but, in the event, the mid-nineteenth century reformers had to make do with an Order-in-Council. The Home Civil Service, in the subsequent century and a half, has occasionally been touched by legislation but there has never been anything approaching antipodean public service legislation.[22]
The Canadian public service has had a different experience with legislation. In its first four decades, there were several ineffectual pieces of legislation designed to bring a measure of direction to the development of the infant public service, mainly elimination of patronage in recruitment. Early in the twentieth century (1908) there was a concerted effort to improve efficiency through central recruitment. This early effort was followed a decade later at the end of the Great War with a comprehensive Civil Service Act 1918 similar to the 1902 Australian Act rather than the later 1922 legislation. Being Commission-centred, it was deficient (like the 1902 Australian Act) in omitting to define the respective roles and powers of the central agency and department heads (deputy ministers). In 1967, a package of three laws was enacted, providing detailed regulation of the staffing (merit) system and the newly-introduced public service collective bargaining regime, but with only minimal coverage of the preponderant administrative power located in the Treasury Board, a statutory committee of the Cabinet, and its Secretariat.[23] Once again, the legislation failed (and did not overtly seek) to capture the dynamics of the relationship between the central agencies on one hand and the departments on the other.
The 1994 Review Group in Canberra concluded that there were ‘sound policy and practical reasons for having a Public Service Act’ and stated that ‘it is essential that there continue to be an Act’.[24] Its reasons for this recommendation included various distinctions between public sector and private sector employment practice, including requirements of loyal and impartial service to ministers and of ‘merit-based selection of staff for appointment and advancement which excludes nepotism, favouritism and unfair discrimination,’ and of ‘“best employer” practice in the application of equal employment opportunity and social justice policies and practices laid down by the [then Labor] Government’.[25] According to the Review Group:
The Public Service Act creates the structure of the APS as an entity, as distinct from an aggregation of separate employing bodies which would be the case if the common law was the only basis of employment. It provides a legal basis for the Parliament to express the important values and culture it wants in the Public Service.[26]
Another important advantage of legislation, the Review Group continued, was that it established ‘the roles and powers of secretaries and their relationship with ministers in a clear, unambiguous and public way (an aspect of public accountability)’. Furthermore, ‘[i]f there were no Act, there would be no Public Service Commissioner (or equivalent office) and the underlying APS policy framework would be an amalgam of decisions of Executive Government, of the industrial relations system and of the courts’.[27]