Public Service Act 1999
Act No. 147 of 1999 as amended
This compilation was prepared on 1 July 2006
taking into account amendments up to Act No. 56 of 2006
The text of any of those
amendments not in force
on that date is appended in the Notes section
The operation of amendments that
have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of
Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
Part 1—Preliminary 1
1............ Short title [see Note 1]....................................................................... 1
2............ Commencement [see Note 1].............................................................. 1
3............ Objects of this Act............................................................................. 1
4............ This Act binds the Crown.................................................................. 2
5............ This Act extends to things outside Australia..................................... 2
6............ Engagement of employees in Department or Executive Agency........ 2
Part 2—Interpretation 3
7............ Interpretation...................................................................................... 3
8............ Workplace Relations Act.................................................................... 6
Part 3—The Australian Public Service 7
9............ Constitution of the APS..................................................................... 7
10.......... APS Values......................................................................................... 7
11.......... Commissioner’s Directions about APS Values.................................. 8
12.......... Agency Heads must promote APS Values......................................... 8
13.......... The APS Code of Conduct................................................................. 8
14.......... Agency Heads bound by Code of Conduct...................................... 10
15.......... Breaches of the Code of Conduct..................................................... 10
16.......... Protection for whistleblowers.......................................................... 11
17.......... Prohibition on patronage and favouritism........................................ 11
18.......... Promotion of employment equity.................................................... 11
19.......... Limitation on Ministerial directions to Agency Head...................... 12
Part 4—APS employees 13
Division 1—APS employees generally 13
20.......... Employer powers etc. of Agency Head........................................... 13
21.......... Prime Minister’s directions to Agency Heads................................. 13
22.......... Engagement of APS employees........................................................ 13
23.......... Classification Rules.......................................................................... 14
24.......... Remuneration and other conditions.................................................. 15
25.......... Assignment of duties........................................................................ 15
26.......... Voluntary moves between Agencies................................................. 16
27.......... Compulsory moves between Agencies............................................. 16
28.......... Suspension........................................................................................ 16
29.......... Termination of employment............................................................. 16
30.......... Retirement........................................................................................ 17
31.......... Forfeiture of additional remuneration............................................... 17
32.......... Right of return for election candidates.............................................. 18
33.......... Review of actions............................................................................. 18
Division 2—The Senior Executive Service 20
34.......... SES employees................................................................................. 20
35.......... Constitution and role of SES............................................................ 20
36.......... Commissioner’s Directions on SES matters..................................... 20
37.......... Incentive to retire.............................................................................. 20
38.......... Commissioner’s certificate required for termination of SES employment 21
Division 3—Heads of Mission 22
39.......... Heads of Mission............................................................................. 22
Part 5—The Public Service Commissioner 23
Division 1—Commissioner’s functions etc. 23
40.......... Public Service Commissioner............................................................ 23
41.......... Commissioner’s functions................................................................ 23
42.......... Commissioner’s Directions.............................................................. 24
43.......... Commissioner’s inquiry powers...................................................... 25
44.......... Annual report................................................................................... 25
Division 2—Commissioner’s appointment, conditions etc. 26
45.......... Appointment of Commissioner........................................................ 26
46.......... Remuneration etc.............................................................................. 26
47.......... Removal from office......................................................................... 26
48.......... Acting Commissioner....................................................................... 27
Part 6—The Merit Protection Commissioner 28
Division 1—Merit Protection Commissioner’s functions etc. 28
49.......... Merit Protection Commissioner....................................................... 28
50.......... Merit Protection Commissioner’s functions.................................... 28
51.......... Annual report................................................................................... 29
Division 2—Merit Protection Commissioner’s appointment, conditions etc. 30
52.......... Appointment of Merit Protection Commissioner............................ 30
53.......... Remuneration etc.............................................................................. 30
54.......... Removal from office......................................................................... 30
55.......... Acting Merit Protection Commissioner........................................... 31
Part 7—Secretaries of Departments 32
56.......... Creation of offices of Secretary........................................................ 32
57.......... Responsibilities of Secretaries.......................................................... 32
58.......... Appointment etc. of Secretary......................................................... 32
59.......... Termination of appointment............................................................ 33
60.......... Engagement of former Secretaries..................................................... 33
61.......... Remuneration and other conditions.................................................. 33
62.......... Acting Secretary............................................................................... 34
63.......... Annual report................................................................................... 34
Part 8—Management Advisory Committee 35
64.......... Management Advisory Committee.................................................. 35
Part 9—Executive Agencies 36
65.......... Establishment etc. of Executive Agencies......................................... 36
66.......... Responsibilities of Heads of Executive Agencies............................. 36
67.......... Appointment etc. of Head................................................................ 37
68.......... Remuneration and other conditions.................................................. 37
69.......... Acting Head...................................................................................... 37
70.......... Annual report................................................................................... 38
Part 10—Administrative arrangements and re‑organisations 39
71.......... Arrangements with States and Territories........................................ 39
72.......... Machinery of government changes................................................... 39
Part 11—Miscellaneous 41
73.......... Payments in special circumstances................................................... 41
74.......... Locally engaged employees.............................................................. 42
75.......... Attachment of salaries to satisfy judgment debts............................ 42
76.......... Release of personal information....................................................... 42
77.......... Positions........................................................................................... 43
78.......... Delegations....................................................................................... 43
79.......... Regulations....................................................................................... 44
Notes 47
An Act to provide for the establishment and management of the Australian Public Service, and for other purposes
1 Short title [see Note 1]
This Act may be cited as the Public Service Act 1999.
Note: See also the Public Employment (Consequential and Transitional) Amendment Act 1999.
2 Commencement [see Note 1]
(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period.
The main objects of this Act are:
(a) to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public; and
(b) to provide a legal framework for the effective and fair employment, management and leadership of APS employees; and
(c) to define the powers, functions and responsibilities of Agency Heads, the Public Service Commissioner and the Merit Protection Commissioner; and
(d) to establish rights and obligations of APS employees.
This Act binds the Crown in right of the Commonwealth, but does not make the Crown liable to be prosecuted for an offence.
5 This Act extends to things outside Australia
(1) This Act extends to acts, omissions, matters and things outside Australia (unless the contrary intention appears).
(2) This Act extends to all the Territories.
6 Engagement of employees in Department or Executive Agency
(1) All persons engaged on behalf of the Commonwealth as employees to perform functions in a Department or Executive Agency must be engaged under this Act, or under the authority of another Act.
(2) Subsection (1) does not apply to:
(a) persons engaged on an honorary basis; or
(b) persons engaged to perform services in the Australian Secret Intelligence Service.
(3) This section does not, by implication, affect any power that an Agency Head might otherwise have to engage persons as independent contractors.
In this Act, unless the contrary intention appears:
acting SES employee means a non‑SES employee who is acting in a position usually occupied by an SES employee.
Agency means:
(a) a Department; or
(b) an Executive Agency; or
(c) a Statutory Agency.
Agency Head means:
(a) the Secretary of a Department; or
(b) the Head of an Executive Agency; or
(c) the Head of a Statutory Agency.
Agency Minister means:
(a) in relation to a Department—the Minister who administers the Department; or
(b) in relation to an Executive Agency—the Minister who administers the Agency; or
(c) in relation to a Statutory Agency—the Minister who administers the provision of the Act that provides for the appointment of the Head of the Agency.
APCS has the meaning given by the Workplace Relations Act 1996.
APS means the Australian Public Service established by section 9.
APS employee means:
(a) a person engaged under section 22; or
(b) a person who is engaged as an APS employee under section 72.
APS employment means employment as an APS employee.
APS Values means the values in section 10.
award has the same meaning as in the Workplace Relations Act 1996.
Australian Fair Pay and Conditions Standard has the meaning given by the Workplace Relations Act 1996.
category of APS employee means one of the following categories:
(a) ongoing APS employees;
(b) APS employees engaged for a specified term or for the duration of a specified task;
(c) APS employees engaged for duties that are irregular or intermittent.
Classification Rules means rules made under section 23.
Code of Conduct means the rules in section 13.
collective agreement has the meaning given by the Workplace Relations Act 1996.
Commissioner means the Public Service Commissioner appointed under this Act.
Commissioner’s Directions means directions issued by the Commissioner under section 11, 15 or 36.
Department means a Department of State, excluding any part that is itself an Executive Agency or Statutory Agency.
Executive Agency means an Executive Agency established under section 65.
Head:
(a) in relation to an Executive Agency—means the person appointed as the Head of the Agency under section 67; and
(b) in relation to a Statutory Agency—means the person declared by an Act to be the Head of the Agency.
Head of Mission means the head of:
(a) an Australian diplomatic mission; or
(b) an Australian consular mission.
locally engaged employee means a person engaged under section 74.
Merit Protection Commissioner means the Merit Protection Commissioner appointed under this Act.
non‑ongoing APS employee means an APS employee who is not an ongoing APS employee.
non‑SES employee means an APS employee other than an SES employee.
ongoing APS employee means a person engaged as an ongoing APS employee, as mentioned in paragraph 22(2)(a).
overseas means outside Australia and the Territories.
pre‑reform AWA has the meaning given by the Workplace Relations Act 1996.
pre‑reform certified agreement has the meaning given by the Workplace Relations Act 1996.
Presiding Officer means the President of the Senate or the Speaker of the House of Representatives.
Prime Minister’s Department means the Department of the Prime Minister and Cabinet.
Public Service Minister means the Minister who administers this Act.
Secretary means the Secretary of a Department.
SES means the Senior Executive Service established by section 35.
SES employee has the meaning given by section 34.
Statutory Agency means a body or group of persons declared by an Act to be a Statutory Agency for the purposes of this Act.
workplace agreement has the meaning given by the Workplace Relations Act 1996.
(1) This Act has effect subject to the Workplace Relations Act 1996.
(2) Subsection (1) is not intended to imply anything about the relationship between this Act and any Act other than the Workplace Relations Act 1996.
Part 3—The Australian Public Service
The Australian Public Service consists of Agency Heads and APS employees.
(1) The APS Values are as follows:
(a) the APS is apolitical, performing its functions in an impartial and professional manner;
(b) the APS is a public service in which employment decisions are based on merit;
(c) the APS provides a workplace that is free from discrimination and recognises and utilises the diversity of the Australian community it serves;
(d) the APS has the highest ethical standards;
(e) the APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public;
(f) the APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government’s policies and programs;
(g) the APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public;
(h) the APS has leadership of the highest quality;
(i) the APS establishes workplace relations that value communication, consultation, co‑operation and input from employees on matters that affect their workplace;
(j) the APS provides a fair, flexible, safe and rewarding workplace;
(k) the APS focuses on achieving results and managing performance;
(l) the APS promotes equity in employment;
(m) the APS provides a reasonable opportunity to all eligible members of the community to apply for APS employment;
(n) the APS is a career‑based service to enhance the effectiveness and cohesion of Australia’s democratic system of government;
(o) the APS provides a fair system of review of decisions taken in respect of APS employees.
(2) For the purposes of paragraph (1)(b), a decision relating to engagement or promotion is based on merit if:
(a) an assessment is made of the relative suitability of the candidates for the duties, using a competitive selection process; and
(b) the assessment is based on the relationship between the candidates’ work‑related qualities and the work‑related qualities genuinely required for the duties; and
(c) the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties; and
(d) the assessment is the primary consideration in making the decision.
11 Commissioner’s Directions about APS Values
(1) The Commissioner must issue directions in writing in relation to each of the APS Values for the purpose of:
(a) ensuring that the APS incorporates and upholds the APS Values; and
(b) determining where necessary the scope or application of the APS Values.
(2) For the purposes of this Act other than this section, the APS Values have effect subject to the restrictions (if any) in directions made under subsection (1).
12 Agency Heads must promote APS Values
An Agency Head must uphold and promote the APS Values.
(1) An APS employee must behave honestly and with integrity in the course of APS employment.
(2) An APS employee must act with care and diligence in the course of APS employment.
(3) An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.
(4) An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means:
(a) any Act (including this Act), or any instrument made under an Act; or
(b) any law of a State or Territory, including any instrument made under such a law.
(5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction.
(6) An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff.
(7) An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.
(8) An APS employee must use Commonwealth resources in a proper manner.
(9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment.
(10) An APS employee must not make improper use of:
(a) inside information; or
(b) the employee’s duties, status, power or authority;
in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.
(11) An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.
(12) An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.
(13) An APS employee must comply with any other conduct requirement that is prescribed by the regulations.
14 Agency Heads bound by Code of Conduct
(1) Agency Heads are bound by the Code of Conduct in the same way as APS employees.
(2) Statutory office holders are bound by the Code of Conduct in the same way as APS employees.
(3) In this section:
statutory office holder means a person who holds any office or appointment under an Act, being an office or appointment that is prescribed by the regulations for the purposes of this definition.
15 Breaches of the Code of Conduct
(1) An Agency Head may impose the following sanctions on an APS employee in the Agency who is found (under procedures established under subsection (3)) to have breached the Code of Conduct:
(a) termination of employment;
(b) reduction in classification;
(c) re‑assignment of duties;
(d) reduction in salary;
(e) deductions from salary, by way of fine;
(f) a reprimand.
(2) The regulations may prescribe limitations on the power of an Agency Head to impose sanctions under subsection (1).
(3) An Agency Head must establish procedures for determining whether an APS employee in the Agency has breached the Code of Conduct. The procedures:
(a) must comply with basic procedural requirements set out in Commissioner’s Directions; and
(b) must have due regard to procedural fairness; and
(c) may be different for different categories of APS employees.
(4) The Commissioner must issue directions in writing for the purposes of subsection (3).
(5) An Agency Head must take reasonable steps to ensure that every APS employee in the Agency has ready access to the documents that set out the procedures referred to in subsection (3).
16 Protection for whistleblowers
A person performing functions in or for an Agency must not victimise, or discriminate against, an APS employee because the APS employee has reported breaches (or alleged breaches) of the Code of Conduct to:
(a) the Commissioner or a person authorised for the purposes of this section by the Commissioner; or
(b) the Merit Protection Commissioner or a person authorised for the purposes of this section by the Merit Protection Commissioner.
(c) an Agency Head or a person authorised for the purposes of this section by an Agency Head.
17 Prohibition on patronage and favouritism
(1) A person exercising powers under this Act or the regulations:
(a) in relation to the engagement of APS employees; or
(b) otherwise in relation to APS employees;
must do so without patronage or favouritism.
(2) This section does not apply to giving, or carrying out, a direction under subsection 39(2) about a Head of Mission.
18 Promotion of employment equity
An Agency Head must establish a workplace diversity program to assist in giving effect to the APS Values.
19 Limitation on Ministerial directions to Agency Head
An Agency Head is not subject to direction by any Minister in relation to the exercise of powers by the Agency Head under Division 1 or 2 of Part 4 in relation to particular individuals.
Division 1—APS employees generally
20 Employer powers etc. of Agency Head
(1) An Agency Head, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of APS employees in the Agency.
(2) Without limiting subsection (1), an Agency Head has, in respect of APS employees in the Agency, the rights, duties and powers that are prescribed by the regulations.
21 Prime Minister’s directions to Agency Heads
(1) The Prime Minister may issue general directions in writing to Agency Heads relating to the management and leadership of APS employees.
(2) A direction under subsection (1) must be published in the Gazette within 14 days after the direction is issued.
22 Engagement of APS employees
(1) An Agency Head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the Agency.
(2) The engagement of an APS employee (including an engagement under section 72) must be:
(a) as an ongoing APS employee; or
(b) for a specified term or for the duration of a specified task; or
(c) for duties that are irregular or intermittent.
(3) The usual basis for engagement is as an ongoing APS employee.
(4) The regulations may limit the circumstances in which persons may be engaged as mentioned in paragraph (2)(b) or (c).
(5) An engagement for a specified term may be extended, subject to any limitations prescribed by the regulations.
(6) The engagement of an APS employee (including an engagement under section 72) may be made subject to conditions notified to the employee, including conditions dealing with any of the following matters:
(a) probation;
(b) citizenship;
(c) formal qualifications;
(d) security and character clearances;
(e) health clearances.
(7) Subsection (6) does not, by implication, limit the conditions that may be applied to the engagement of an APS employee.
(8) An Agency Head must not engage, as an APS employee, a person who is not an Australian citizen, unless the Agency Head considers it appropriate to do so.
(1) The Public Service Minister may, by notice in the Gazette, make rules about classifications of APS employees.
(2) The Classification Rules may apply, adopt or incorporate, with or without modification, any of the provisions of an APCS, as in force at a particular time or as in force from time to time.
(3) Agency Heads must comply with the Classification Rules.
(4) An Agency Head cannot reduce the classification of an APS employee without the employee’s consent, except in the following cases:
(a) as a sanction under section 15;
(b) in accordance with Commissioner’s Directions made under section 36;
(c) on the ground that the employee is excess to the requirements of the Agency at the higher classification;
(d) on the ground that the employee lacks, or has lost, an essential qualification for performing duties at the higher classification;
(e) on the ground of non‑performance, or unsatisfactory performance, of duties at the higher classification;
(f) on the ground that the employee is unable to perform duties at the higher classification because of physical or mental incapacity;
(g) in other circumstances prescribed by the regulations.
(5) If a relevant APCS, workplace agreement, pre‑reform certified agreement or pre‑reform AWA contains procedures to be followed when reducing the classification, then a reduction is of no effect unless those procedures are followed.
24 Remuneration and other conditions
(1) An Agency Head may from time to time determine in writing the remuneration and other terms and conditions of employment applying to an APS employee or employees in the Agency. A determination is of no effect to the extent that it would reduce the benefit to an employee of any individual term or condition applicable to the employee under the Australian Fair Pay and Conditions Standard or an award, workplace agreement, pre‑reform certified agreement or pre‑reform AWA.
Note: Other Commonwealth laws deal with matters such as superannuation, compensation, long‑service leave and maternity leave.
(2) A determination under subsection (1) may apply, adopt or incorporate, with or without modification, any of the provisions of the Australian Fair Pay and Conditions Standard or an award, collective agreement or pre‑reform certified agreement, as in force at a particular time or as in force from time to time.
(3) The Public Service Minister may, by notice in the Gazette, determine the remuneration and other terms and conditions of employment applying to APS employees, if the Public Service Minister is of the opinion that it is desirable to do so because of exceptional circumstances.
(4) A determination under subsection (3) overrides any determination under subsection (1), to the extent of any inconsistency.
An Agency Head may from time to time determine the duties of an APS employee in the Agency, and the place or places at which the duties are to be performed.
26 Voluntary moves between Agencies
(1) An Agency Head may enter into an agreement in writing with an APS employee for the employee to move to the Agency Head’s Agency from another Agency.
(2) Subject to the regulations, the agreement has effect according to its terms, by force of this section.
27 Compulsory moves between Agencies
(1) The Commissioner may, by direction in writing, move an excess APS employee to another Agency, without anyone’s consent.
(2) For the purposes of this section, an APS employee is an excess APS employee if, and only if, the Agency Head has notified the Commissioner in writing that the employee is excess to the requirements of the Agency.
The regulations may make provision in relation to the suspension from duties of APS employees, with or without remuneration.
(1) An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency.
Note: The Workplace Relations Act 1996 has rules and entitlements that apply to termination of employment.
(2) For an ongoing APS employee, the notice must specify the ground or grounds that are relied on for the termination.
(3) For an ongoing APS employee, the following are the only grounds for termination:
(a) the employee is excess to the requirements of the Agency;
(b) the employee lacks, or has lost, an essential qualification for performing his or her duties;
(c) non‑performance, or unsatisfactory performance, of duties;
(d) inability to perform duties because of physical or mental incapacity;
(e) failure to satisfactorily complete an entry‑level training course;
(f) failure to meet a condition imposed under subsection 22(6);
(g) breach of the Code of Conduct;
(h) any other ground prescribed by the regulations.
(4) The regulations may prescribe grounds or procedures applicable to the termination of the engagement of non‑ongoing APS employees.
(5) Subsection (4) does not, by implication, limit the grounds for termination for a non‑ongoing APS employee.
(1) An APS employee who has reached the minimum retiring age is entitled to retire at any time by notice in writing to the Agency Head.
(2) The minimum retiring age is 55 years, or such higher or lower age as is prescribed by the regulations.
31 Forfeiture of additional remuneration
(1) If an APS employee receives any non‑Commonwealth remuneration for performing duties as an APS employee, then the Agency Head may give a notice in writing to the employee in relation to the whole, or a specified part, of the remuneration.
(2) The amount notified by the Agency Head:
(a) is taken to have been received by the employee on behalf of the Commonwealth; and
(b) may be recovered by the Commonwealth from the employee as a debt in a court of competent jurisdiction.
(3) If an Agency Head receives any non‑Commonwealth remuneration for performing duties as an Agency Head, then the Agency Minister may give a notice in writing to the Agency Head in relation to the whole, or a specified part, of the remuneration.
(4) The amount notified by the Agency Minister:
(a) is taken to have been received by the Agency Head on behalf of the Commonwealth; and
(b) may be recovered by the Commonwealth from the Agency Head as a debt in a court of competent jurisdiction.
(5) In this section:
non‑Commonwealth remuneration means any remuneration from a person other than the Commonwealth.
32 Right of return for election candidates
(1) This section applies to a person if:
(a) the person resigned as an APS employee in order to contest an election prescribed by the regulations; and
(b) the resignation took effect not earlier than 6 months before the closing date for nominations; and
(c) the person was a candidate in the election but failed to be elected.
(2) The person is entitled to be again engaged as an APS employee, in accordance with the regulations and within the time limits prescribed by the regulations.
(1) An APS employee is entitled to review, in accordance with the regulations, of any APS action that relates to his or her APS employment. However, an APS employee is not entitled to review under this section of APS action that consists of the termination of the employee’s employment.
(2) The regulations may prescribe exceptions to the entitlement.
Note: For example, the regulations might provide that there is not entitlement to review if the application for review is frivolous or vexatious.
(3) Without limiting subsection (1), regulations made for the purposes of that subsection may provide for the powers available to the Merit Protection Commissioner, or any other person or body, when conducting a review under the regulations.
(4) Regulations for the purposes of subsection (1):
(a) may provide for an initial review to be conducted within the responsible Agency; and
(b) may provide that applications for review of particular kinds of APS action are to be made directly to the Merit Protection Commissioner; and
(c) must provide for an application for review to be referred to the Merit Protection Commissioner if the applicant is not satisfied with the outcome of an initial review within the responsible Agency; and
(d) in the case of a review following an application or referral to the Merit Protection Commissioner, must provide for the review to be conducted by a person nominated by the Merit Protection Commissioner or by a 3 member committee constituted in accordance with the regulations.
(5) A person or body that has conducted a review under this section may make recommendations in a report on the review but does not have power to make any binding decision as a result of the review, except as provided by the regulations.
(6) If the Merit Protection Commissioner is not satisfied with the response to recommendations contained in a report on a review under this section, the Merit Protection Commissioner may, after consulting the Public Service Minister, give a report on the matter to the Agency Minister of the responsible Agency and to either or both of the following:
(a) the Prime Minister;
(b) the Presiding Officers, for presentation to the Parliament.
(7) In this section:
action includes a refusal or failure to act.
APS action means action by a person in the capacity of an Agency Head or APS employee.
responsible Agency, in relation to APS action, means the Agency in which the person who did the action was at the time of the action.
Division 2—The Senior Executive Service
SES employees are those APS employees who are classified as SES employees under the Classification Rules.
35 Constitution and role of SES
(1) The Senior Executive Service consists of the SES employees.
(2) The function of the SES is to provide a group of APS employees each of whom, within his or her Agency:
(a) provides one or more of the following at a high level:
(i) professional expertise;
(ii) policy advice;
(iii) management; and
(b) promotes co‑operation with other Agencies; and
(c) by personal example and other appropriate means, promotes the APS Values and compliance with the Code of Conduct.
36 Commissioner’s Directions on SES matters
The Commissioner must issue directions in writing about employment matters relating to SES employees, including engagement, promotion, redeployment, mobility and termination.
(1) An Agency Head may give a notice in writing to an SES employee in the Agency, stating that the employee will become entitled to a payment of a specified amount if the employee retires within a period specified in the notice.
(2) If the employee retires within the specified period, by notice in writing to the Agency Head:
(a) the employee is entitled to be paid the specified amount; and
(b) the employee is taken, for all purposes, to have been compulsorily retired from the APS.
38 Commissioner’s certificate required for termination of SES employment
An Agency Head cannot terminate the employment of an SES employee unless the Commissioner has issued a certificate stating that:
(a) all relevant requirements of Commissioner’s Directions under section 36 have been satisfied in respect of the proposed termination; and
(b) the Commissioner is of the opinion that the termination is in the public interest.
Division 3—Heads of Mission
39 Heads of Mission
(1) The appointment of a Head of Mission by the Governor‑General cannot take effect unless the person is an APS employee.
(2) An Agency Head must comply with any direction in writing by the Agency Minister:
(a) directing the Agency Head to engage a particular person as an APS employee so that the person can become a Head of Mission; or
(b) directing the Agency Head to assign particular duties to an APS employee who has been appointed as a Head of Mission.
Part 5—The Public Service Commissioner
Division 1—Commissioner’s functions etc.
40 Public Service Commissioner
(1) There is to be a Public Service Commissioner.
(2) The staff necessary to assist the Commissioner must be persons engaged under this Act.
(3) For the purposes of this Act:
(a) the Commissioner and the APS employees assisting the Commissioner together constitute a Statutory Agency; and
(b) the Commissioner is the Head of that Statutory Agency.
(1) The Commissioner’s functions include the following functions:
(a) to evaluate the extent to which Agencies incorporate and uphold the APS Values;
(b) to evaluate the adequacy of systems and procedures in Agencies for ensuring compliance with the Code of Conduct;
(c) to inquire into reports made to the Commissioner (or to a person authorised by the Commissioner) as mentioned in section 16;
(d) to consider and report to the Public Service Minister on any matter relating to the APS (including such a matter referred to the Commissioner by the Public Service Minister);
(e) to promote the APS Values and the Code of Conduct;
(f) to inquire into alleged breaches of the Code of Conduct by Agency Heads and to report to the appropriate authority on the results of such enquiries (including, where relevant, recommendations for sanctions);
(g) to develop, promote, review and evaluate APS employment policies and practices;
(h) to facilitate continuous improvement in people management throughout the APS;
(i) to co‑ordinate and support APS‑wide training and career development opportunities in the APS;
(j) to contribute to, and foster, leadership in the APS;
(k) to provide advice and assistance on public service matters to Agencies on request;
(l) any function prescribed by the regulations.
(2) A report by the Commissioner under subsection (1) may include recommendations.
(3) For the purposes of paragraph (1)(f), the appropriate authority for a report about an Agency Head is:
(a) the Prime Minister, if the Agency Head is a Secretary; or
(b) the Agency Minister, if the Agency Head is the Head of an Executive Agency; or
(c) the Presiding Officers, if the Agency Head is the Head of a Statutory Agency that is prescribed by the regulations for the purposes of this paragraph; or
(d) the Agency Minister, if the Agency Head is the Head of a Statutory Agency that is not prescribed by the regulations for the purposes of paragraph (c).
(1) Commissioner’s Directions cannot create offences or impose penalties.
(2) Agency Heads and APS employees must comply with Commissioner’s Directions.
(3) Commissioner’s Directions may be made by applying, adopting or incorporating any matter in Classification Rules as in force from time to time, or at a particular time.
(4) Commissioner’s directions are disallowable non‑legislative instruments for the purposes of section 46B of the Acts Interpretation Act 1901.
43 Commissioner’s inquiry powers
(1) Each of the following is a special inquiry for the purpose of this section:
(a) an inquiry that is conducted by the Commissioner for the purpose of paragraph 41(1)(a), (b) or (g) and is notified by the Commissioner in the Gazette;
(b) an inquiry that is conducted by the Commissioner for the purpose of paragraph 41(1)(c) or (f);
(c) an inquiry on a matter referred to the Commissioner under paragraph 41(1)(d) by the Public Service Minister, by notice in the Gazette.
(2) The following provisions apply in relation to a special inquiry (with references to the Auditor‑General being replaced by references to the Commissioner):
(a) sections 32, 33 and 35 of the Auditor‑General Act 1997;
(b) any other provisions of the Auditor‑General Act 1997, or of regulations under that Act, that are relevant to the operation of section 32, 33 or 35 of that Act.
(1) After the end of each financial year, the Commissioner must give a report to the Agency Minister, for presentation to the Parliament, on the activities of the Commissioner’s Agency during the year.
(2) The report must include a report on the state of the APS during the year.
(3) An Agency Head must give the Commissioner whatever information the Commissioner requires for the purpose of preparing the report referred to in subsection (2).
(4) The report must be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.
Division 2—Commissioner’s appointment, conditions etc.
45 Appointment of Commissioner
The Commissioner is to be appointed by the Governor‑General on a full‑time basis for a period of up to 5 years specified in the instrument of appointment.
(1) The remuneration and other conditions of appointment