The Public Sector Act 2022 (Qld) (Public Sector Act), which came into effect on 1 March 2023, provides a range of consistent employment arrangements for Queensland’s public sector by repealing and replacing the current Public Service Act 2008 (Qld) (old Act).
The Public Sector Act implements the second stage of reforms arising from the recommendations of an independent review of public sector employment laws conducted by Peter Bridgman (known as the Bridgman Review). Some of the new provisions also implement recommendations of the independent review of public sector culture and accountability by Professor Peter Coaldrake (Coaldrake Report).
In this edition, we provide a brief overview of some of the Act's most significant changes to employment arrangements for the Queensland public sector.
The Public Sector Act continues to provide the legislative framework for the employment of public service employees within the public service, whilst also introducing greater consistency in employment arrangements for entities and their employees across the broader public sector in Queensland.
The most significant changes arising from the legislation are for entities (and their public sector employees) that fall within the new term ‘public sector entity’, which operated largely outside the coverage of the old Act.
The term ‘public sector entity’ is broad. It captures all forms of entities established under an Act for a public or State purpose, unless an exclusion applies.
A new framework is established through the Public Sector Act, to give effect to the State’s commitment to reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples.
Particular entities (known as ‘reframing entities’) are now required to take active steps to:
Some entities (known as ‘prescribed entities’) are also required to develop a plan that identifies the measures for developing the cultural capability of the entity when providing advice to the State government and delivering services to the community. Prescribed entities must conduct annual audits of their performance against the plan.
Chief executives of all public sector entities, the police service and other prescribed entities are now obligated to promote and support equity and diversity in employment matters for the ‘diversity target groups’, namely Aboriginal peoples and Torres Strait Islander peoples, people from culturally and linguistically diverse backgrounds, people with disability, women and any other groups prescribed by regulation. The diversity target groups reflect the same ‘EEO target groups’ designated under the old Act.
The reporting requirements imposed under the old Act will continue, with additional requirements to make an equity and diversity plan, and undertake audits annually to collect data, analyse performance against the equity and diversity plan and identify opportunities to promote, support and progress equity and diversity. The requirements to plan, audit and report will be ongoing and interconnected.
A new obligation is introduced for chief executives of prescribed entities to promote and support a “culture of respect and inclusion” in their entity’s workplace, encompassing a culture where employees feel safe in the workplace, diverse experiences and perspectives are invited and respected, and employees are supported to work together to improve the performance and wellbeing of all employees. This obligation includes ensuring the entity’s training programs, policies and practices specifically promote and support a culture of respect and inclusion.
Under the Public Sector Act, processes for the recruitment and selection of public sector employees must:
In deciding which applicant is best suited to a position, each applicant’s ability to perform the requirements of the position must be considered.
However, in a notable change from the ‘merit principle’ of the old Act, which required selection for a public service position to be based on ‘merit alone’, the Public Sector Act now expressly permits consideration of the extent to which the proposed selection decision would contribute to the fulfilment of the entity’s obligations relating to equity, diversity, respect and inclusion. Matters such as the objectives, strategies and targets stated in the entity’s equity and diversity plan can be considered.
The principle of permanent employment as the default basis for employment (as opposed to, for example, temporary or casual employment) is extended to all public sector employees.
Employees employed on a non-permanent basis are also given an additional right to request a review of their employment status without having to wait for a further year after an earlier review. The additional right applies if an earlier review was refused on the basis that the employee was not suitable to perform the role, or the earlier review was deemed to be refused. Similarly, a public sector entity can conduct an additional review if circumstances change after an earlier review was refused, without waiting another year.
One of the review criteria for offering to convert an employee’s employment to permanent has also changed – consideration of whether the person is eligible for appointment having regard to the ‘merit principle’ will be replaced by consideration of whether the person is “suitable to perform the role”. The term “suitable”, in relation to performing a role, will have the meaning given under a directive.
In a notable departure from the status quo for public service employers under the old Act, the Public Sector Act expressly preserves a chief executive’s common law right to terminate an employee’s employment, including summarily. The examples included under section 144 include summary dismissal for serious misconduct.
The Explanatory Notes to the Public Sector Bill 2022 state that it is intended that most matters relating to the end of employment will continue to be dealt with by chief executives under the Act’s disciplinary framework, which is intended to operate alongside the common law principles that apply to the ending of employment.
The Public Sector Act establishes a new type of review (a ‘public sector review’), which can be requested by the Minister or the new oversight body (the Public Sector Governance Council (Council)). A public sector review can be undertaken by the Public Sector Commissioner, a special commissioner or another appropriately qualified person.
A ‘public sector review’ is a review of any matter or aspect of public administration or public sector management relating to the main purpose of the Public Sector Act. A public sector review includes a review about a public sector entity’s effectiveness, efficiency, functions or activities.
The newly established Council’s main function is to oversee whole-of-sector governance and provide system leadership and stewardship of the public sector.
The Minister is also given new powers to:
A duty of confidentiality will apply to public sector employees and other persons, including a selection panel member, who obtain confidential information when carrying out functions under the Public Sector Act. Confidential information is personal information about an individual. Disclosure of confidential information is authorised in certain circumstances, including where it is permitted or required to perform a person’s functions under the Act.
Public sector entities should:
While the Public Sector Act includes transitional provisions to continue existing delegations made under the old Act, the expanded coverage of the Public Sector Act across the broader public sector will require some entities to create new delegations for the delegation of powers under the Public Sector Act which previously did not apply to them under the old Act.
If you have any questions about the coverage or provisions of the Public Sector Act, please get in touch with partner Jackie Hamilton or special counsel Lara Hues.
Queensland drivers may be required to take test when they renew licence
The government is considering the introduction of a “refresher course” on changes to road rules for people who are renewing their drivers licence. This is part of a raft of proposed road safety measures, prompted by Queensland recording the worst year of road fatalities in 13 years in 2022 (10 April 2023). Read more here.
New deal for tenants with fewer rent rises
The Department of Communities, Housing and the Digital Economy has announced that new rules have been introduced to limit rent increases to once per year. The reforms are designed to balance the rights and interests of Queenslanders who rent with those of property owners, with the aim of sustaining a healthy rental supply (4 April 2023). Read more here.
Government commits to modernising and strengthening anti-discrimination laws
New strengthened anti-discrimination legislation and reform will be introduced as part of the Governments’ final response to the Queensland Human Rights Commission’s (QHRC) Building Belonging Report. In particular, strengthened protections will be in place to combat sexual harassment and discrimination in communities and in the workplace (3 April 2023). Read more here.
New Queensland Law Reform Commission Chair appointed
Experienced judicial officer and current President of the Land Court of Queensland, President Fleur Kingham, has been appointed Chair of the Queensland Law Reform Commission. As an independent statutory body, the Commission plays a critical role undertaking law reform reviews and making recommendations that are informed by extensive research and community consultation (31 March 2023). Read more here.
Judge Catherine Muir appointed to the bench of the Supreme Court
District Court Judge Catherine Muir will join the Trial Division as a Supreme Court Justice. In the words of Shannon Fentiman, Attorney-General and Minister for Justice, “Her Honour is highly respected amongst her peers and Her Honour’s progression to the Supreme Court reflects the depth of talent and ability of Queensland’s judiciary” (31 March 2023). Read more here.
Pilot program extending legal support for Queensland veterans
Queensland veterans and their families now have greater access to claims advocacy and legal assistance services through a $600,000 legal assistance pilot program being delivered by the Palaszczuk Government. The service is being delivered by Townsville Community Law and seeks to assist veterans with legal issues including accessing veterans’ statutory entitlements and transitioning to civilian life (24 March 2023). Read more here.
Partners in Government Agreement signed
The three-year agreement, struck between the state government and the Local Government Association of Queensland, details the key principles underlying the relationship between the state and local governments. The agreement acknowledges that local government is the closest level of government to the community, and establishes the foundation for effective negotiation and engagement between local and State government (22 February 2023). Read more here.
Queensland Audit Office releases latest State Entities report
The Queensland Audit Office has tabled the State entities 2022-23 report which summarises the audit results of 253 Queensland state government entities, including the 20 core government departments. The report evaluates the timeliness of their financial reporting and effectiveness of their internal controls. The report also analyses the consolidated financial performance of the Queensland Government, previously reported in the annual state finances report. Read the report here.
Australian Work Health and Safety Strategy 2023-2033
Safe Work Australia has released the Australian Work Health and Safety Strategy 2023-2033 which sets an ambitious vision for work health and safety outcomes in Australia for the next ten years. The Strategy sets a clear, unifying national goal to reduce worker fatalities, injuries and illness. It sets out forward-looking actions to work towards, with tangible and achievable targets to focus efforts, as stakeholders develop and implement their own solutions to the challenges ahead. Read the Strategy here.
Queensland Audit Office releases latest Health report
The Queensland Audit Office has tabled the Health 2022-23 report which discusses the audit results of Queensland’s health entities, including the Department of Health and 16 hospital and health services. The report summarises the audit results for 13 hospital foundations, 4 other statutory bodies, and 4 controlled entities. Read the report here.
Super savings: Practical policies for fairer superannuation and a stronger budget
Grattan Institute has published a report discussing recommended reforms to Australia’s current superannuation system to increase its fairness and sustainability. According to the report, tax breaks on superannuation are excessively generous and should be wound back to help fix the budget. Read more here.
Advocacy Action Plan 2023 released
The Local Government Association of Queensland has released the Advocacy Action Plan 2023. The plan maps out the current challenges and key opportunities for local government, working in partnership with the other tiers of government, to achieve a shared goal of creating liveable Queensland communities. The Plan outlines all 130 resolutions which were proposed, voted and endorsed by Queensland’s 77 local councils, to be requested to the State and Federal governments. Read more here.
AAT Bulletin Issue No. 7/2023 11 April 2023
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. Read more here.
New Practice Direction governs civil Caseflow Management
The new Supreme Court Practice Direction 9 of 2023 aims to facilitate the procedurally fair, efficient, timely, and cost effective resolution of civil proceedings. The practice direction applies to all civil proceedings commenced by claim, or ordered to proceed as if commenced by claim, in Brisbane, and to any other civil proceeding, if ordered by the court. Read the Practice Direction and more information here.
New Practice Direction creates Class Actions List
The new Supreme Court Practice Direction 8 of 2023 is designed to facilitate the management of representative proceedings and assist in their prompt and efficient resolution. The practice direction applies to representative proceedings under part 13A of the Civil Proceedings Act 2011 (Qld) commenced in the Supreme Court of Queensland, and representative proceedings which have already been commenced, by order of the Chief Justice. Read the Practice Direction and more information here.
Amended Practice Directions on use of electronic devices
The Amended Practice Direction 8 of 2014 covers the use of phones and other electronic devices in and around courtrooms, including texting, recording, taking photos and other functions. The Amended Practice Direction repeals Practice Direction 1 of 2009 for the Supreme Court and District Court, and three practice directions for the Magistrates Court. Read the Practice Direction and more information here.
Cohen v State of Queensland (Department of Education) [2023] QIRC 99
HUMAN RIGHTS – DISCRIMINATION – OTHER MATTERS – whether to dismiss proceeding – where complainant was directed to attend a conference and failed to do so – where complainant failed to comply with directions – consideration of r 45 of the Industrial Relations (Tribunals) Rules 2011 – proceeding dismissed
Naehu v Parole Board Queensland [2023] QSC 16
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – where the applicant applied for parole – where the respondent refused the application for parole – where the applicant sought a statutory order of review in respect of the refusal on the grounds that the applicant had a legitimate expectation of being granted a parole order – whether the applicant was accorded procedural fairness in the decision-making process
Pearce v Queensland Building and Construction [2023] QCAT 71
GENERAL ADMINISTRATIVE REVIEW – BUILDING – INTERNAL REVIEW OF DECISION NOT TO ISSUE A DIRECTION TO RECTIFY – whether “consequential damage” within the meaning of s 71H – whether a direction to remedy consequential damage should be issued
DR v Director General Department of Justice and Attorney General [2023] QCAT 79
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – where applicant has charge – where other relevant information – application of s 226 and s 228 considerations
Peet v The Commissioner of State Revenue [2023] QCAT 73
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether the applicant was entitled to the HomeBuilder Grant
Body Corporate for Metro Quays CTS 2846I v Three Islands Pty Ltd & Ors [2023] QCATA 20
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – error of law – obligations deriving from legislation and subordinate legislation – division of obligations between principal and subsidiary schemes in a layered arrangement of community titles schemes – responsibility for roofing membranes that are not common property but that provide protection for lots or common property – responsibility for maintaining roofing structures providing protection in a structurally sound condition – where roof of building formed part of the common property of the subsidiary scheme – whether principal scheme responsible for maintenance of roof
Bills introduced
Criminal Code (Serious Vilification and Hate Crimes) and Other Legislation Amendment Bill 2023
Tobacco and Other Smoking Products Amendment Bill 2023
Queensland Climate Transition Bill 2023
Bills passed without amendment
Police Powers and Responsibilities (Jack’s Law) Amendment Bill 2023
Police Service Administration and Other Legislation Amendment Bill 2023
Bills amended during passage
Environmental Protection and Other Legislation Amendment Bill 2023
Housing Legislation Amendment Bill 2023
Strengthening Community Safety Bill 2023
Bills failed
Working with Children (Indigenous Communities) Amendment Bill 2021
Acts assented to
Police Powers and Responsibilities (Jack’s Law) Amendment Act 2023 No. 4 – Assent 2 April 2023
Strengthening Community Safety Act 2023 No. 3 – Assent 22 March 2023
Proclamations commencing Acts made
Proclamation No. 7 – Building Industry Fairness (Security of Payment) Act 2017 (repealing previous proclamation)
Proclamation No. 8 – Building Industry Fairness (Security of Payment) Act 2017 (commencing remaining provisions)
Proclamation – Racing Integrity Amendment Act 2022 (commencing remaining provisions)
Subordinate legislation notified
Forestry (State Forests) and Other Legislation Amendment Regulation 2023
Motor Accident Insurance and Other Legislation (Administration Fee and Levies) Amendment Regulation 2023
Police Service Administration (Transfer of Executive Officer) Amendment Regulation 2023
Public Records (Commission of Inquiry into Forensic DNA Testing in Queensland) Amendment Regulation 2023
Public Trustee (Interest Rate) Amendment Regulation (No. 3) 2023
Transport and Other Legislation Amendment Regulation 2023
Heavy Vehicle (Vehicle Standards) National Amendment Regulation 2023
Proclamation No. 7 – Building Industry Fairness (Security of Payment) Act 2017 (repealing previous proclamation)
Proclamation No. 8 – Building Industry Fairness (Security of Payment) Act 2017 (commencing remaining provisions)
Proclamation – Racing Integrity Amendment Act 2022 (commencing remaining provisions)
Recording of Evidence Amendment Regulation 2023
Superannuation (State Public Sector) Amendment Notice 2023
Subordinate legislation tabled
Heavy Vehicle (Vehicle Standards) National Amendment Regulation 2023
Proclamation No. 7 – Building Industry Fairness (Security of Payment) Act 2017 (repealing previous proclamation)
Proclamation No. 8 – Building Industry Fairness (Security of Payment) Act 2017 (commencing remaining provisions)
Proclamation – Racing Integrity Amendment Act 2022 (commencing remaining provisions)
Recording of Evidence Amendment Regulation 2023
Superannuation (State Public Sector) Amendment Notice 2023|
Economic Development (Variation of Caloundra South UDA) Amendment Regulation 2023
Legal Aid Queensland Regulation 2023
Medicines and Poisons (Medicines) Amendment Regulation 2023
Planning (Caboolture West Interim Structure Plan) Amendment Regulation 2023
Proclamation—Integrity and Other Legislation Amendment Act 2022 (commencing certain provisions)
Proclamation – Police Service Administration and Other Legislation Amendment Act 2022 (commencing remaining provisions)
Public Sector Regulation 2023
Public Trustee (Interest Rate) Amendment Regulation (No. 2) 2023
Disclaimer
The information in this bulletin is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this bulletin is accurate at the date it is received or that it will continue to be accurate in the future.