An Act to provide for the establishment and management of the
Australian Public Service, and for other purposes
Part 1—Preliminary
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.
3
Objects of this Act
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.
4 This
Act binds the Crown
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.
Part 2—Interpretation
7
Interpretation
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.
8
Workplace Relations Act
(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
9
Constitution of the APS
The Australian Public Service consists
of Agency Heads and APS employees.
10 APS
Values
(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.
13 The
APS Code of Conduct
(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.
Part 4—APS employees
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.
23
Classification Rules
(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.
25 Assignment of duties
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.
28
Suspension
The regulations may make provision in
relation to the suspension from duties of APS employees, with or without
remuneration.
29
Termination of employment
(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.
30
Retirement
(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.
33
Review of actions
(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
34 SES
employees
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.
37
Incentive to retire
(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.
41
Commissioner’s functions
(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).
42
Commissioner’s Directions
(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.
44
Annual report
(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.
46
Remuneration etc.
(1) The remuneration and other conditions of
appointment of the Commissioner are as determined in writing by the Agency
Minister.
(2) For each determination, the Agency
Minister must seek the advice of the Remuneration Tribunal and take that advice
into account.
(3) Each determination must be published in
the Gazette within 14 days after the determination is made.
47
Removal from office
(1) The Governor‑General may remove the
Commissioner from office if each House of the Parliament, in the same session
of the Parliament, presents an address to the Governor‑General praying
for the removal of the Commissioner on the ground of misbehaviour or physical
or mental incapacity.
(2) The Governor‑General must remove
the Commissioner from office if the Commissioner does any of the following:
(a) becomes bankrupt;
(b) applies to take the benefit of any
law for the relief of bankrupt or insolvent debtors;
(c) compounds with his or her
creditors;
(d) assigns his or her remuneration
for the benefit of his or her creditors.
48
Acting Commissioner
(1) The Agency
Minister may appoint a person to act as Commissioner:
(a) if there is a vacancy in the
office of Commissioner, whether or not an appointment has previously been made
to the office; or
(b) during any period, or during all
periods, when the Commissioner is absent from duty or from Australia or is, for
any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a
person purporting to act under this section is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
Part 6—The Merit Protection Commissioner
Division 1—Merit Protection Commissioner’s functions etc.
49
Merit Protection Commissioner
(1) There is to be a Merit Protection
Commissioner.
(2) The staff necessary to assist the Merit
Protection Commissioner must be persons engaged under this Act and made
available by the Public Service Commissioner.
50 Merit Protection Commissioner’s
functions
(1) The Merit Protection Commissioner’s
functions include the following functions:
(a) to inquire into reports made to
the Merit Protection Commissioner (or to a person authorised by the Merit
Protection Commissioner) as mentioned in section 16;
(b) to inquire into alleged breaches
of the Code of Conduct by the Commissioner and report to the Presiding Officers
on the results of such enquiries (including, where relevant, recommendations
for sanctions);
(c) to inquire into an APS action, at
the request of the Public Service Minister, and to report to the Public Service
Minister on the results of the inquiry;
(d) such functions as are prescribed
by regulations made for the purposes of section 33;
(e) such other functions as are
prescribed by the regulations.
(2) The following provisions apply in
relation to an inquiry under paragraph (1)(c) (with references to the
Auditor‑General being replaced by references to the Merit Protection
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.
(3) The regulations may authorise the Merit
Protection Commissioner to charge fees (on behalf of the Commonwealth) for the
performance of functions prescribed under paragraph (1)(e).
(4) In this section:
action includes a refusal or failure to act.
APS action means an action in relation to the
employment of an APS employee, being an action by another APS employee or by an
Agency Head.
51
Annual report
(1) After the end of each financial year, the
Merit Protection Commissioner must give a report to the Public Service
Minister, for presentation to the Parliament, on the activities of the Merit
Protection Commissioner during the year.
(2) The report must be prepared in accordance
with guidelines approved on behalf of the Parliament by the Joint Committee of
Public Accounts and Audit.
(3) The report must be included in the Public
Service Commissioner’s report under subsection 44(2).
Division 2—Merit Protection Commissioner’s appointment, conditions etc.
52
Appointment of Merit Protection Commissioner
The Merit Protection 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.
53
Remuneration etc.
(1) The remuneration and other conditions of
appointment of the Merit Protection Commissioner are as determined in writing
by the Agency Minister.
(2) For each determination, the Agency
Minister must seek the advice of the Remuneration Tribunal and take that advice
into account.
(3) Each determination must be published in
the Gazette within 14 days after the determination is made.
54
Removal from office
(1) The Governor‑General may remove the
Merit Protection Commissioner from office if each House of the Parliament, in
the same session of the Parliament, presents an address to the Governor‑General
praying for the removal of the Merit Protection Commissioner on the ground of
misbehaviour or physical or mental incapacity.
(2) The Governor‑General must remove
the Merit Protection Commissioner from office if the Merit Protection
Commissioner does any of the following:
(a) becomes bankrupt;
(b) applies to take the benefit of any
law for the relief of bankrupt or insolvent debtors;
(c) compounds with his or her
creditors;
(d) assigns his or her remuneration
for the benefit of his or her creditors.
55
Acting Merit Protection Commissioner
(1) The Public Service Minister may appoint a
person to act as Merit Protection Commissioner:
(a) if there is a vacancy in the
office of Merit Protection Commissioner, whether or not an appointment has
previously been made to the office; or
(b) during any period, or during all
periods, when the Merit Protection Commissioner is absent from duty or from Australia
or is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a
person purporting to act under this section is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
Part 7—Secretaries of Departments
56
Creation of offices of Secretary
(1) On the establishment of a Department, an
office of Secretary of that Department is established by force of this
subsection.
(2) On the abolition of a Department, the
office of Secretary of that Department is abolished by force of this
subsection.
(3) The Prime Minister may allocate a name to
any office of Secretary, and may change the name from time to time.
(4) Subject to subsection (3), the name
of the office of Secretary of a Department is “Secretary of the [name of
Department]”.
57
Responsibilities of Secretaries
(1) The Secretary of a Department, under the
Agency Minister, is responsible for managing the Department and must advise the
Agency Minister in matters relating to the Department.
(2) The Secretary of a Department must assist
the Agency Minister to fulfil the Agency Minister’s accountability obligations
to the Parliament to provide factual information, as required by the
Parliament, in relation to the operation and administration of the Department.
58
Appointment etc. of Secretary
(1) The Prime Minister may appoint a person
to be the Secretary of a Department for a period of up to 5 years specified in
the instrument of appointment.
(2) Before making an appointment of the
Secretary of the Prime Minister’s Department, the Prime Minister must have
received a report about the vacancy from the Commissioner.
(3) Before making an appointment of any other
Secretary, the Prime Minister must have received a report about the vacancy
from the Secretary of the Prime Minister’s Department.
(4) The person preparing the report must consult
the person who is expected to be the Agency Minister at the time when the
appointment is made.
(5) The same person may hold more than one
office of Secretary but is to be paid remuneration in respect of only one such
office.
(6) An appointment under this section is not
affected by any defect or irregularity in or in connection with the
appointment.
59
Termination of appointment
(1) The Prime Minister may, by notice in
writing, terminate an appointment of Secretary at any time.
Note: In Barratt v Howard [1999] FCA 1132,
the Federal Court of Australia described the basis on which requirements of
procedural fairness applied to the termination of an appointment of Secretary
under section 37 of the Public Service Act 1922.
(2) Before terminating the appointment of the
Secretary of the Prime Minister’s Department, the Prime Minister must have
received a report about the proposed termination from the Commissioner.
(3) Before terminating any other appointment,
the Prime Minister must have received a report about the proposed termination
from the Secretary of the Prime Minister’s Department.
60
Engagement of former Secretaries
At any time after the appointment of a
Secretary is terminated under section 56 or 59, the Prime Minister, on
behalf of the Commonwealth, may engage the former Secretary to perform
specified duties (otherwise than as an APS employee), on terms and conditions
determined by the Prime Minister.
61
Remuneration and other conditions
(1) The remuneration and other conditions of
appointment of a Secretary are as determined in writing by the Prime Minister.
(2) For each determination, the Prime
Minister must seek the advice of the Remuneration Tribunal and take that advice
into account.
(3) Each determination must be published in
the Gazette within 14 days after the determination is made.
62
Acting Secretary
(1) The Prime Minister may appoint a person
to act as the Secretary of a Department:
(a) if there is a vacancy in the
office of Secretary, whether or not an appointment has previously been made to
the office; or
(b) during any period, or during all
periods, when the Secretary is absent from duty or from Australia or is, for
any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a
person purporting to act under this section is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
63
Annual report
(1) After the end of each financial year, the
Secretary of a Department must give a report to the Agency Minister, for
presentation to the Parliament, on the Department’s activities during the year.
(2) The report must be prepared in accordance
with guidelines approved on behalf of the Parliament by the Joint Committee of
Public Accounts and Audit.
Part 8—Management Advisory Committee
64
Management Advisory Committee
(1) There is to be an APS Management Advisory
Committee, with the function of advising the Government on matters relating to
the management of the APS.
(2) The Committee consists of the following
persons:
(a) the Secretary of the Prime
Minister’s Department, as Chair;
(b) all the other Secretaries;
(c) the Commissioner, as executive
officer;
(d) such other persons as are
nominated in writing by the Secretary of the Prime Minister’s Department.
Part 9—Executive Agencies
65
Establishment etc. of Executive Agencies
(1) The Governor‑General may do any of
the following, by order in the Gazette:
(a) establish or abolish an Executive
Agency;
(b) allocate a name to an Executive
Agency or the Head of an Executive Agency;
(c) identify the Minister who is
responsible for an Executive Agency;
(d) specify the functions of an
Executive Agency.
(2) For the purposes of this Act, an
Executive Agency consists of the Head of the Agency, together with the APS
employees assisting the Head.
(3) When an Executive Agency is established,
an office of Head of the Agency is established by force of this subsection. The
name of the office is “Head of the [name of Agency]”, unless the office
of Head has a different name because of an order under subsection (1).
(4) When an Executive Agency is abolished,
the office of Head of the Agency is abolished by force of this subsection.
66
Responsibilities of Heads of Executive Agencies
(1) The Head of an Executive Agency, under
the Agency Minister, is responsible for managing the Agency.
(2) The Head of an Executive Agency must
assist the Agency Minister to fulfil the Agency Minister’s accountability
obligations to the Parliament to provide factual information, as required by
the Parliament, in relation to the operation and administration of the Agency.
(3) The Head of an Executive Agency is
accountable to the government, the Parliament and the public in the same way as
the Secretary of a Department.
67
Appointment etc. of Head
(1) The Agency Minister of an Executive
Agency may appoint a person to be the Head of the Agency for a period of up to
5 years specified in the instrument of appointment.
(2) Before making the appointment, the Agency
Minister must have received a report about the vacancy from a relevant
Secretary.
(3) The Agency Minister may, by notice in
writing, terminate the appointment at any time.
(4) Before terminating the appointment, the
Agency Minister must have received a report about the proposed termination from
a relevant Secretary.
(5) In this section:
relevant Secretary means the Secretary of any
Department that is administered by the same Minister who is the Agency Minister
of the Executive Agency.
68
Remuneration and other conditions
(1) The remuneration and other conditions of
appointment of the Head of an Executive Agency are as
determined in writing by the Agency Minister.
(2) For each determination, the Agency
Minister must seek the advice of the Remuneration Tribunal and take that advice
into account.
(3) Each determination must be published in
the Gazette within 14 days after the determination is made.
69
Acting Head
(1) The Agency Minister of an Executive
Agency may appoint a person to act as Head of the Agency:
(a) if there is a vacancy in the
office of Head, whether or not an appointment has previously been made to the
office; or
(b) during any period, or during all
periods, when the Head is absent from duty or from Australia or is, for any
reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a
person purporting to act under this section is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
70
Annual report
(1) After the end of each financial year, the
Head of an Executive Agency must give a report to the Agency Minister, for
presentation to the Parliament, on the Agency’s activities during the year.
(2) The report must be prepared in accordance
with guidelines approved on behalf of the Parliament by the Joint Committee of
Public Accounts and Audit.
Part 10—Administrative arrangements and re‑organisations
71
Arrangements with States and Territories
(1) The Prime Minister may arrange with an
appropriate authority of a State:
(a) for an APS employee to perform
services for the State as an APS employee; or
(b) for a State employee to perform
services in an Agency as a State employee.
(2) In this section:
State means a State or Territory or an
authority of a State or Territory.
72
Machinery of government changes
(1) The Commissioner may do any of the
following, if the Commissioner is satisfied that it is necessary or desirable
in order to give effect to an administrative re‑arrangement:
(a) move APS employees to another
Agency (without anyone’s consent), by a determination in writing;
(b) determine in writing that APS
employees cease to be APS employees and become employees of a specified Commonwealth
authority;
(c) determine in writing that non‑APS
employees cease to be employed as non‑APS employees and become engaged as
APS employees in a specified Agency;
(d) on behalf of the Commonwealth,
engage any person as an APS employee in a specified Agency.
(2) A determination by the Commissioner has
effect according to its terms, by force of this section.
(3) If an APS employee (the transferred
employee) becomes an employee of a Commonwealth authority under paragraph (1)(b),
the employee is entitled to remuneration and other conditions of employment
that are not less favourable than the terms and conditions to which the
employee was entitled as an APS employee, immediately before ceasing to be an
APS employee, under:
(a) the Australian Fair Pay and
Conditions Standard or an award, workplace agreement, pre‑reform
certified agreement or pre‑reform AWA; or
(b) a determination under this Act.
(4) Subsection (3) ceases to have effect
on the next occasion when there is a relevant change in remuneration and
conditions in the Commonwealth authority. For this purpose, relevant change
means a change that:
(a) results from:
(i) the making or
variation of an award or workplace agreement; or
(ii) an adjustment or
variation of the Australian Fair Pay and Conditions Standard; or
(iii) the termination or
replacement of a pre‑reform certified agreement or pre‑reform AWA;
and
(b) applies to the transferred
employee, or to a class of employees that includes the transferred employee.
(5) The regulations may prescribe
arrangements for determining any variation of the remuneration and other
conditions of employment applicable to:
(a) APS employees who are moved to
another Agency under paragraph (1)(a); and
(b) persons who become APS employees
under paragraph (1)(c).
(6) In this section:
administrative re‑arrangement means any
increase, reduction or re‑organisation in Commonwealth functions,
including one that results from an order by the Governor‑General.
Commonwealth authority includes a company in
which the Commonwealth has a controlling interest.
non‑APS employee means a person who is
employed by the Commonwealth or by a Commonwealth authority, but does not
include an APS employee.
Part 11—Miscellaneous
73
Payments in special circumstances
(1) The Public Service Minister may authorise
the making of payments to a person under subsection (2) if the Public
Service Minister considers it appropriate to do so because of special
circumstances that relate to, or arise out of:
(a) the payee’s employment by the
Commonwealth; or
(b) another person’s employment by the
Commonwealth.
(2) The Public Service Minister may authorise
the making of any of the following payments:
(a) one or more payments of an amount
or amounts specified in the authorisation (or worked out in accordance with the
authorisation);
(b) periodical payments of an amount
specified in the authorisation (or worked out in accordance with the
authorisation), during a period specified in the authorisation (or worked out
in accordance with the authorisation).
(3) Payments may be authorised under this
section even though the payments would not otherwise be authorised by law or
required to meet a legal liability.
(4) An authorisation cannot be made under
this section if it would involve, or be likely to involve, a total amount of
more than $100,000.
(5) Conditions may be attached to payments
under this section. If a condition is breached, the payment may be recovered by
the Commonwealth as a debt in a court of competent jurisdiction.
Note: Payments under this section must be made from
money appropriated by the Parliament. Generally, a payment can be debited
against an Agency’s annual appropriation, providing that it relates to some
matter that has arisen in the course of its administration or otherwise relates
to the Agency’s outcomes.
74
Locally engaged employees
(1) An Agency Head, on behalf of the
Commonwealth, may engage persons overseas to perform duties overseas as
employees.
(2) Subject to this Act, an Agency Head, on
behalf of the Commonwealth, has all the rights, duties and powers of an
employer in respect of locally engaged employees in the Agency.
(3) An Agency Head is not subject to
direction by any Minister in relation to the exercise of powers by the Agency
Head under this section in relation to particular individuals.
(4) This section does not, by implication,
limit any other power of an Agency Head to engage persons to work overseas.
75
Attachment of salaries to satisfy judgment debts
(1) The regulations:
(a) may provide for deductions to be
made from the salary of a Secretary, the Head of an Executive Agency or an APS
employee in order to satisfy a judgment debt; and
(b) may prescribe fees payable in
connection with such deductions.
(2) In this section:
judgment debt includes interest on a judgment
debt.
76
Release of personal information
The regulations:
(a) may authorise the disclosure, in
specific circumstances, of personal information (within the meaning of the Privacy
Act 1988); and
(b) may impose restrictions on the collection,
storage, access, use or further disclosure of information disclosed under
regulations made for the purposes of paragraph (a).
Note: The Freedom of Information Act 1982 and
the Privacy Act 1988 have rules about the disclosure of personal
information.
77
Positions
(1) An Agency Head may, in writing, create
positions in the Agency.
(2) An Agency Head may from time to time
nominate any APS employee in the Agency to occupy a position in the Agency, but
does not have to do so for all APS employees in the Agency.
(3) A provision of any Act that applies to
APS employees who are nominated under this section to occupy a position applies
in the same way to APS employees who are not nominated under this section to
occupy a position.
78
Delegations
(1) The Prime Minister may, in writing,
delegate to another Minister any of the Prime Minister’s powers or functions
under this Act (other than this section).
(2) The Public Service Minister may, in
writing, delegate to another Minister any of the Public Service Minister’s
powers or functions under this Act (other than this section or section 24).
(3) The Public Service Minister may, in
writing, delegate to a senior official any of the Public Service Minister’s
powers or functions under section 23 or 73.
(4) An Agency Minister may, in writing,
delegate to a senior official any of the Agency Minister’s powers or functions
under this Act (other than this section).
(5) The Commissioner may, in writing,
delegate to a senior official any of the Commissioner’s powers or functions
under this Act (other than this section).
(6) The Merit Protection Commissioner may, in
writing, delegate to an APS employee any of the Merit Protection Commissioner’s
powers or functions under this Act (other than this section).
(7) An Agency Head may, in writing, delegate
to another person any of the Agency Head’s powers or functions under this Act
(other than this section).
(8) An Agency Head cannot, under subsection (7),
delegate powers or functions to an outsider without the prior written consent
of the Commissioner. For this purpose, outsider means a person
other than:
(a) an APS employee; or
(b) a person appointed to an office by
the Governor‑General, or by a Minister, under a law of the Commonwealth.
(9) A person (the first delegate)
to whom powers or functions are delegated under subsection (5), (6) or (7)
may, in writing, delegate any of those powers or functions to another person
(the second delegate). However, if the first delegate is subject
to directions in relation to the exercise of a power or function delegated
under this subsection, the first delegate must give corresponding directions to
the second delegate.
(10) A power or function that is exercised or
performed by a person under a delegation under subsection (9) is taken,
for the purposes of this Act, to have been exercised or performed by the person
who originally delegated the corresponding power or function under subsection (5),
(6) or (7).
(11) A person exercising powers or functions
under a delegation under this section must comply with any directions of the
person who delegated the power or function.
(12) In this section:
senior official means:
(a) a person who holds any office or
appointment under an Act; or
(b) an SES employee or acting SES
employee.
79 Regulations
(1) The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) Without limiting subsection (1),
regulations may be made for, or in relation to, any of the following:
(a) confidentiality of information
obtained by persons performing, or assisting in the performance of, functions
under section 33, paragraph 41(1)(c) or paragraph 50(1)(a) or (c);
(b) immunity from civil action in
respect of acts or omissions of persons performing, or assisting in the
performance of, functions under section 33, paragraph 41(1)(c) or
paragraph 50(1)(a) or (c);
(c) prescribing penalties for offences
against the regulations by way of fines of up to 10 penalty units.