Part 1 Preliminary
1.1 Name of
Regulations [see
Note 1]
These Regulations are the
Public Service Regulations 1999.
1.2 Commencement
[see Note 1]
These Regulations
commence on the commencement of the Public Service Act 1999.
1.3 Definitions —
the dictionary
(1) The dictionary at the end
of these Regulations defines certain words and expressions, and includes references
to certain words and expressions that are defined elsewhere in these
Regulations (signpost definitions).
Note The dictionary only includes a signpost
definition for a word or expression if the word or expression is used in more
than one regulation.
(2) The dictionary includes
certain words and expressions relevant to these Regulations that are defined in
the Public Service
Act 1999.
Note These definitions are indicated by an asterisk (*) and have
been included for information only to assist readers of the regulations. Minor
changes from the Act definitions are indicated by square brackets ([ ]).
(3) A definition in these
Regulations applies to each use of the word or expression in these Regulations,
unless the contrary intention appears.
Part 2 The Australian Public Service
Division 2.1 The Code
of Conduct
2.1 Duty not to disclose information (Act
s 13)
(1) This regulation is made for subsection 13 (13) of
the Act.
(2) This regulation does not affect other restrictions
on the disclosure of information.
(3) An APS employee must not disclose information which
the APS employee obtains or generates in connection with the APS employee’s
employment if it is reasonably foreseeable that the disclosure could be
prejudicial to the effective working of government, including the formulation
or implementation of policies or programs.
(4) An APS employee must
not disclose information which the APS employee obtains or generates in
connection with the APS employee’s employment if the information:
(a) was, or is to be, communicated in confidence
within the government; or
(b) was received in confidence by the government
from a person or persons outside the government;
whether or not the disclosure would found an action for breach of
confidence.
(5) Subregulations (3)
and (4) do not prevent a disclosure of information by an APS employee if:
(a) the information is disclosed in the course
of the APS employee’s duties; or
(b) the information is disclosed in accordance
with an authorisation given by an Agency Head; or
(c) the disclosure is otherwise authorised by
law; or
(d) the
information that is disclosed:
(i) is already in the public domain as
the result of a disclosure of information that is lawful under these
Regulations or another law; and
(ii) can be disclosed without
disclosing, expressly
or by implication, other information to which subregulation (3) or (4) applies.
(6) Subregulations (3) and (4) do not limit the
authority of an Agency Head to give lawful and reasonable directions in
relation to the disclosure of information.
Note Under section 70 of the Crimes
Act 1914, it is an offence for an APS employee to publish or communicate
any fact or document which comes to the employee’s knowledge, or into the
employee’s possession, by virtue of being a Commonwealth officer, and which it
is the employee’s duty not to disclose.
2.2 Statutory office holders bound by the
Code of Conduct (Act s 14)
(1) For the purposes of the definition of statutory
office holder in subsection 14 (3) of the Act, an office is prescribed
if it is in a class of offices that:
(a) are not an office of Agency Head; and
(b) are not judicial offices; and
(c) are held by non‑APS employees who:
(i) are acting in relation to the
exercise of their direct
or indirect supervisory duties in relation to APS employees; and
(ii) are engaged or employed under an
Act.
(2) For the purposes of the definition of statutory
office holder in subsection 14 (3) of the Act, an appointment is
prescribed if it is in a class of appointments that:
(a) are not appointments to an office of Agency
Head; and
(b) are not judicial appointments; and
(c) relate to non‑APS employees who:
(i) are acting in relation to the
exercise of their direct
or indirect supervisory duties in relation to APS employees; and
(ii) are appointed under an Act.
(3) In this regulation:
non‑APS employee means a person
employed or appointed under an Act who is not an APS employee.
2.3 Limitation on sanctions for breaches of
Code of Conduct (Act s 15)
(1) This regulation applies if:
(a) an APS employee in an Agency is found to
have breached the Code of Conduct; and
(b) under paragraph 15 (1) (e) of the Act, the
Agency Head imposes on the employee the sanction of deduction from salary, by
way of fine.
(2) For the purposes of subsection 15 (2) of the Act,
the deduction must not be more than 2% of the APS employee’s annual salary.
Division 2.2 Whistleblowers
reports
2.4 Procedures for dealing with
whistleblowers reports (Act s 16)
(1) An Agency Head must establish procedures for dealing
with a report made by an APS employee under section 16 of the Act.
Note Section 16 deals with reports of breaches (or
alleged breaches) of the Code of Conduct.
(2) The procedures must:
(a) have due regard to procedural fairness and
comply with the Privacy Act 1988; and
(b) provide
that an APS employee in the Agency may report breaches (or alleged breaches) of
the Code of Conduct to the Agency Head, or a person authorised by the Agency
Head; and
(c) provide
that if the Commissioner or the Merit Protection Commissioner agrees that a
report relates to an issue that would be inappropriate to report to the Agency
Head, the APS employee may make the report to:
(i) the
Commissioner, or a person authorised by the Commissioner; or
(ii) the
Merit Protection Commissioner, or a person authorised by the Merit Protection
Commissioner; and
(d) ensure
that if a report is made to the Agency Head, the Agency Head will, unless he or
she considers the report to be frivolous or vexatious:
(i) investigate
it; or
(ii) authorise
another person to investigate it; and
(e) ensure
that if a report is made to a person authorised by the Agency Head, the person
will investigate the report, unless the person considers it to be frivolous or
vexatious; and
(f) provide
information about the protection available under section 16 of the Act
to persons making reports; and
(g) enable an APS employee who has made a
report, and who is not satisfied with the outcome of the investigation of the
report, to refer the report to:
(i) the
Commissioner, or a person authorised by the Commissioner; or
(ii) the
Merit Protection Commissioner, or a person authorised by the Merit Protection
Commissioner; and
(h) ensure that the findings of an investigation
are dealt with as soon as practicable.
2.5 Commissioner’s functions relating to
whistleblowers reports (Act s 41)
(1) For the purposes of paragraphs 41 (1) (c) and (l) of
the Act, if:
(a) an Agency Head establishes procedures for
dealing with a report made by an APS employee under section 16 of the Act; and
(b) a report is made, in accordance with the
procedures, to the Commissioner;
the Commissioner’s functions include
the functions set out in subregulation (2).
Note Section 16 of the Act deals with reports of
breaches (or alleged breaches) of the Code of Conduct.
(2) The
Commissioner must, unless he or she considers the report to be frivolous or
vexatious:
(a) investigate
it; or
(b) authorise
another person to investigate it.
2.6 Merit Protection Commissioner’s functions
relating to whistleblowers reports (Act s 50)
(1) For the purposes of paragraphs 50 (1) (a) and (e) of
the Act, if:
(a) an Agency Head establishes procedures for
dealing with a report made by an APS employee under section 16 of the Act; and
(b) a report is made, in accordance with the
procedures, to the Merit Protection Commissioner;
the Merit Protection Commissioner’s functions include the functions
set out in subregulation (2).
Note Section 16 of the Act deals with reports of
breaches (or alleged breaches) of the Code of Conduct.
(2) The
Merit Protection Commissioner must, unless he or she considers the report to be
frivolous or vexatious:
(a) investigate
it; or
(b) authorise
another person to investigate it.
2.7 Other functions relating to whistleblowers
reports
(1) Subregulation
(2) applies if:
(a) an Agency Head establishes procedures for
dealing with a report made by an APS employee under section 16 of the Act; and
(b) a report is made, in accordance with the
procedures, to
a person authorised by the Commissioner or
the Merit Protection Commissioner.
Note See para 2.4 (2) (c).
(2) The person must
investigate the report, unless the person considers it to be frivolous or
vexatious.
(3) Subregulation
(4) applies if:
(a) an Agency Head establishes procedures for
dealing with a report made by an APS employee under section 16 of the Act; and
(b) a report is made, in accordance with the
procedures, to the Commissioner or the
Merit Protection Commissioner; and
(c) the
Commissioner or the Merit Protection Commissioner authorises a person to
investigate the report.
Note See para 2.5 (2) (b) and 2.6 (2) (b).
(4) The person must
investigate the report.
Part 3 APS employees
Division 3.1 Employer powers etc of Agency Heads
3.1 Condition of engagement — health
clearance (Act s 20)
(1) This regulation applies to an APS employee whose
engagement in an Agency is subject, under paragraph 22 (6) (e) of the Act, to a
condition dealing with health clearances.
(2) While the engagement is subject to the condition,
the Agency Head may, by written notice, direct the employee to:
(a) undergo a medical examination by a nominated
medical practitioner for an assessment of the employee’s fitness for duty; and
(b) give the Agency Head a medical report of the
examination.
(3) In this regulation:
nominated medical practitioner means a
registered medical practitioner nominated by an Agency Head to assess the
fitness for duty of an APS employee in the Agency.
Note 1 The Privacy Act 1988 has
rules about keeping records of personal information.
Note 2 Arrangements will be made in
Agencies to ensure that employees know the period in which an engagement is
subject to a condition dealing with health clearances.
3.2 Direction to attend medical examination
(Act s 20)
(1) This regulation applies if an Agency Head believes
that the state of health of an APS employee in the Agency:
(a) may be affecting the employee’s work
performance; or
(b) has caused, or may cause, the employee to
have an extended absence from work; or
(c) may be a danger to the employee; or
(d) has caused, or may cause, the employee to be
a danger to other employees or members of the public; or
(e) may be affecting the employee’s standard of
conduct.
Note Examples of absences that could be
treated as extended absences are:
(a) an absence from work of at least 4 continuous weeks;
and
(b) a combined total of absences from work, within a 13
week period, whether based on a single or separate illness or injury, of at
least
4 weeks.
The examples are consistent with the
former Public Service Regulations 1935.
(2) The Agency Head may, by written notice, direct the
APS employee to:
(a) undergo a medical examination by a nominated
medical practitioner for an assessment of the employee’s fitness for duty; and
(b) give the Agency Head a medical report of the
examination.
(3) In this regulation:
nominated medical practitioner has the
meaning given by subregulation 3.1 (3).
Note The Privacy Act 1988 has
rules about keeping records of personal information.
3.3 Approval of
schemes for non‑ongoing APS employees to gain skills and experience (Act
s 20)
(1) For the purposes of subsection 20 (2) of the Act, an
Agency Head may approve a scheme for persons engaged for a specified term, or
for the duration of a specified task, in the Agency to gain skills and
experience for the purpose of assisting them to participate in the workforce.
(2) The approval of a scheme must be notified in the
electronic APS Employment Gazette within 14 days after the day when the
scheme is approved if:
(a) the scheme is approved on or after 8 August 2007;
or
(b) the scheme was approved on or after 25 July 2007
and before 8 August 2007, and notice of the approval was not
published in the Gazette before 8 August 2007.
3.4 Engagement of SES employees (Act s 22)
(1) For the purposes of
subsection 22 (4) of the Act, this regulation sets out the circumstances in
which a person may be engaged as an SES employee for a specified term.
(2) The person may be engaged
for a specified term if the term does not exceed 5 years.
(3) For the purposes of
subsection 22 (5) of the Act, if the person has been engaged for a specified
term of less than 5 years:
(a) the engagement may
be extended once or more than once; but
(b) the engagement may
be extended only to the extent that the total term does not exceed 5 years.
Note Subsection 22 (3) of the Act provides that the usual basis
for engagement of an APS employee is as an ongoing APS employee.
3.5 Engagement of
non‑SES employees (Act s 22)
(1) For the purposes of
subsection 22 (4) of the Act, this regulation sets out the circumstances in
which a person may be engaged as a non‑SES employee for a specified term
or for the duration of a specified task.
Note Subsection 22 (3) of the Act provides that the usual basis
for engagement of an APS employee is as an ongoing APS employee.
(2) The person may be engaged for
a reason, and for a specified term, set out in
the following table:
|
Item
|
Reason
|
Specified term
|
|
1
|
To enable the Agency to meet a temporary increase in the
workload of the Agency, or of a component of the Agency, that the Agency Head
does not expect to continue
|
Term not exceeding 18 months
|
|
2
|
The Agency has a temporary
demand for employees with particular skills
|
Term not exceeding
18 months
|
|
Note
|
In relation to this item,
ongoing APS employees in the Agency with those skills are, or have been:
(a) given the opportunity to express interest in
performing the relevant duties; and
(b) considered for performance of those duties.
|
|
|
3
|
To replace an ongoing APS employee who is on leave
authorised by the Agency
|
Term not exceeding 18 months
|
|
4
|
To replace an ongoing APS employee to whom other duties
are temporarily assigned
|
Term not exceeding 18 months
|
|
5
|
To replace an ongoing APS employee who moves temporarily
to another Agency
|
Term not exceeding 18 months
|
|
6
|
To replace an ongoing APS employee pending engagement of
another ongoing APS employee
|
The lesser of:
(a) 6
months from the date of the engagement; and
(b) the
period ending when an ongoing APS employee is engaged
|
|
7
|
To undertake duties for the Agency pending engagement of
an ongoing APS employee to undertake the duties
|
The lesser of:
(a) 6
months from the date of the engagement; and
(b) the
period ending when an ongoing APS employee is engaged
|
|
8
|
The person:
(a) has
been offered, in writing, engagement as an ongoing APS employee; but
(b) prefers
to be engaged for a specified term
|
Term not exceeding 3 years
|
|
9
|
To enable the Agency to engage an ongoing Parliamentary
Service employee as a non‑ongoing APS employee
|
Term not exceeding 3 years
|
Note When considering the replacement of an ongoing employee
whose absence is likely to be prolonged or indefinite, an Agency Head is bound
by subs 22 (3) of the Act, which provides that the usual basis for engagement
of an APS employee is as an ongoing APS employee, and para 10 (1) (n) of the
Act, which provides that the APS is a career‑based service.
(3) The person may be engaged
for the duration of a specified task if:
(a) the Agency Head can reasonably estimate the
duration of the task at the time of engagement; and
(b) at that time, the Agency Head reasonably
considers that the services of the person are unlikely to be required after
completion of the task; and
(c) ongoing APS employees in the Agency with the
skills required to undertake duties in relation to the task are:
(i) given the opportunity to express
interest in performing those duties; and
(ii) considered for performance of the
duties.
(4) The person may be engaged
for a specified term, or for the duration of a specified task, if the
engagement is for the purpose of the person gaining
skills and experience under a scheme that is:
(a) approved under regulation 3.3; or
(b) the subject of a general direction in force
under subsection 21 (1) of the Act.
(5) The person may be engaged
for a specified term, or for the duration of a specified task, if the
engagement is for the purpose of meeting a practical requirement for:
(a) the award of a
qualification to the person by an educational institution; or
(b) accreditation of
the person by a professional body.
(6) The person may be engaged
for a specified term, or for the duration of a specified task, if the
engagement is for the purpose of providing the person with occupational
experience that is required under a law of the Commonwealth, or of a State or
Territory, for licensing or registration to engage in the occupation.
Note The Commissioner’s Directions (in particular Ch 3,
Diversity in employment, and Ch 4, Merit in employment) contain
requirements that apply to the engagement of employees.
3.6 Extension of specified terms of
engagement of certain non‑SES employees (Act s 22)
(1) For the purposes of subsection 22 (5) of the Act,
the engagement of a person for a reason mentioned in item 1 in the table in
subregulation 3.5 (2) may be extended if:
(a) the reason continues to exist; and
(b) the total term does not exceed 3 years; and
(c) the Agency
cannot fully meet its objectives by using the services of an ongoing APS
employee in the Agency; and
(d) the temporary increase in workload of the
Agency, or the component of the Agency, is a result of implementing a policy
that does not involve an ongoing increase in the usual workload of the Agency
or component.
(2) For the purposes of subsection 22 (5) of the Act,
the engagement of a person for a reason mentioned in item 2, 3, 4 or 5 in the
table in subregulation 3.5 (2) may be extended if:
(a) the reason continues to exist; and
(b) the total term does
not exceed 3 years; and
(c) the Agency
cannot fully meet its objectives by using the services of an ongoing APS
employee in the Agency; and
(d) the Agency Head certifies that extension of
the engagement is in the public interest.
Note The Commissioner’s Directions (in particular Ch 3,
Diversity in employment, and Ch 4, Merit in employment) contain requirements
that apply to the engagement of employees.
(3) For subsection 22 (5) of the Act, the engagement of
a person for a reason mentioned in item 9 in the table in subregulation 3.5 (2)
may be extended if:
(a) the reason continues to exist; and
(b) the total term does not exceed 3 years; and
(c) the Agency cannot fully meet its objectives
by using the services of an ongoing APS employee in the Agency.
3.8 Promotion
of ongoing APS employees — date of effect
(1) A promotion of an ongoing APS employee takes effect
in accordance with this regulation.
(2) If the promotion decision is not subject to review
by a PRC, the promotion of the employee takes effect:
(a) either:
(i) if the promotion is notified on or
after 8 August 2007 — 4 weeks after the promotion is notified in
the electronic APS Employment Gazette in accordance with regulation
3.12; or
(ii) if the promotion was notified
before 8 August 2007 — 4 weeks after the promotion was notified
in the Gazette in accordance with regulation 3.12 of these
Regulations as in force immediately before 8 August 2007; or
(b) if another date of effect is agreed between
the employee, the Agency Head and, if the employee is moving from another
Agency, the current Agency Head — on the agreed date of effect.
(2A) For paragraph 3.8 (2) (b), the date of effect of a
promotion decision must not be earlier than the date that the promotion is
notified in accordance with regulation 3.12.
(3) If the promotion decision is subject to review by a
PRC, the promotion of the employee takes effect in accordance with
subregulation (4), (5), (5A), (5B), (5C) or (6).
(4) If no application for review by a PRC is made before
the end of the application period, the promotion of the employee takes effect:
(a) 2 weeks after the end of the application
period; or
(b) if another date of effect (except a date
before the end of the application period) is agreed between the employee, the
Agency Head and, if the employee is moving from another Agency, the current
Agency Head — on the agreed date of effect.
(5) If an application for review by a PRC is made before
the end of the application period, and the application is withdrawn before the
PRC makes a decision on the application, the promotion of the employee takes
effect:
(a) 2 weeks after the Agency Head is notified of
the withdrawal of the application; or
(b) if another date of effect (except a date
before the end of the application period) is agreed between the employee, the
Agency Head and, if the employee is moving from another Agency, the current
Agency Head — on the agreed date of effect.
(5A) Subregulation (5B) applies if:
(a) an application for review by a PRC is made
before the end of the application period; and
(b) the Merit Protection Commissioner appoints a
PRC to deal with the application; and
(c) the application lapses before the PRC makes
a decision on the application.
(5B) The promotion of the employee takes effect:
(a) 2 weeks after the Agency Head is notified by
the Merit Protection Commissioner that the application has lapsed; or
(b) if another
date of effect is agreed between:
(i) the
employee; and
(ii) the Agency Head; and
(iii) if the employee is moving from
another Agency, the current Agency Head —
on the agreed date of effect.
(5C) If an application for review by a PRC is made before
the end of the application period, and the Merit Protection Commissioner
decides under subregulation 5.10 (1) that it is not necessary to appoint a
PRC to deal with the application, the promotion of the employee takes effect:
(a) either:
(i) if the promotion is notified on or
after 8 August 2007 — 4 weeks after the promotion is notified in
the electronic APS Employment Gazette in accordance with regulation 3.12;
or
(ii) if the promotion was notified
before 8 August 2007 — 4 weeks after the promotion was notified
in the Gazette in accordance with regulation 3.12 of these
Regulations as in force immediately before 8 August 2007; or
(b) if another date of effect is agreed between:
(i) the employee; and
(ii) the Agency Head; and
(iii) if the employee is moving from
another Agency, the current Agency Head —
on the agreed date of effect.
(6) If an application for review by a PRC is made before
the end of the application period and not withdrawn, the promotion of the
employee takes effect in accordance with the review decision:
(a) 4 weeks after the Agency Head is notified of
the review decision; or
(b) if another date of effect is agreed between
the employee, the Agency Head and, if the employee is moving from another
Agency, the current Agency Head — on the agreed date of effect.
(7) In this regulation:
application period means the period in which
an application for review of a promotion decision may be made (including any
extension of that period).
Note Division
5.2 provides for review of certain APS promotion decisions by a PRC.
3.8A Engagement of ongoing Parliamentary Service
employee at higher classification — date of effect
(1) If the engagement of
an ongoing Parliamentary Service employee as an ongoing APS employee is not
subject to review by a PRC, the engagement takes effect:
(a) either:
(i) if the engagement decision is
notified on or after 8 August 2007 — 4 weeks after the decision
is notified in the electronic APS Employment Gazette in accordance with
regulation 3.12; or
(ii) if the engagement decision was
notified before 8 August 2007 — 4 weeks after the decision was
notified in the Gazette in accordance with regulation 3.12 of these
Regulations as in force immediately before 8 August 2007; or
(b) if a later date of effect is agreed between
the ongoing Parliamentary Service employee and the Agency Head — on the
agreed date of effect.
(2) If the engagement of an ongoing Parliamentary
Service employee as an ongoing APS employee is subject to review by a PRC, the
engagement takes effect in accordance with the following table.
|
Item
|
Is an application for
review made before the end of the application period?
|
Engagement takes effect
|
|
1
|
No
|
Either:
(a) 2 weeks
after the end of the application period; or
|
|
|
|
(b) if a
later date of effect is agreed between the ongoing Parliamentary Service
employee and the Agency Head — on the agreed date of effect.
|
|
2
|
Yes
Application is withdrawn before the PRC makes a decision
on the application
|
Either:
(a) 2 weeks
after the Agency Head is notified of the withdrawal; or
(b) if a
later date of effect is agreed between the ongoing Parliamentary Service
employee and the Agency Head — on the agreed date of effect.
|
|
3
|
Yes
Merit Protection Commissioner
appoints a PRC to deal with the application
Application lapses before
the PRC makes a decision on the application
|
Either:
(a) 2 weeks
after the Agency Head is notified by the Merit Protection Commissioner that
the application has lapsed; or
(b) if a
later date of effect is agreed between the ongoing Parliamentary Service
employee and the Agency Head — on the agreed date of effect.
|
|
4
|
Yes
Merit Protection Commissioner decides under subregulation
5.10 (1) that it is not necessary to appoint a PRC to deal with the
application
|
Either:
(a) if the
engagement decision is notified on or after 8 August 2007 — 4
weeks after the decision is notified in the electronic APS Employment Gazette
in accordance with regulation 3.12; or
(b) if the
engagement decision was notified before 8 August 2007 —
4 weeks after the decision was notified in the Gazette in
accordance with regulation 3.12 of these Regulations as in force
immediately before 8 August 2007; or
(c) if a
later date of effect is agreed between the ongoing Parliamentary Service
employee and the Agency Head — on the agreed date of effect.
|
|
5
|
Yes
Under regulation 5.18, PRC does not uphold the application
in relation to the engagement of the ongoing Parliamentary Service employee
|
Either:
(a) 2 weeks
after the ongoing Parliamentary Service employee is notified of the decision;
or
(b) if a
later date of effect is agreed between the ongoing Parliamentary Service
employee and the Agency Head — on the agreed date of effect.
|
|
6
|
Yes
Under regulation 5.18, PRC upholds the application in
relation to the engagement of the ongoing Parliamentary Service employee
|
The engagement of the Parliamentary Service employee whose
application is upheld commences in accordance with the terms of the offer of
employment made under section 22 of the Act
Note See subregulation 5.20 (4).
|
(3) In this regulation:
application period means the period in which an application for review of an
engagement decision may be made (including any extension of that period).
Note 1 Paragraph 3.12 (1) (l) provides further information about
the notification of the engagement decision if the engagement is at a higher
classification than the person’s classification as an ongoing Parliamentary
Service employee.
Note 2 Division 5.2 provides for review, by a PRC, of an
engagement decision where the engagement is at a higher classification than the
person’s classification as an ongoing Parliamentary Service employee.
Note 3 See the definition of higher, for a
classification, in the Dictionary.
3.9 Ongoing moves between Agencies (Act
s 26)
(1) For subsection 26 (2)
of the Act, this regulation applies if:
(a) a written agreement is entered into between
an Agency Head and an ongoing APS employee for the APS employee to move to the
Agency Head’s Agency from another Agency; and
(b) the agreement does not specify the period of
the move.
(2) If the move is
associated with a promotion:
(a) the agreement has effect according to its
terms; and
(b) the move takes effect as provided by
regulation 3.8.
(3) If the move is not
associated with a promotion:
(a) the agreement has effect according to its
terms; and
(b) the move takes
effect:
(i) 4 weeks after the pre‑move
Agency Head is told by the APS employee of the agreement; or
(ii) if a different date of effect is
agreed between the post‑move Agency Head, the pre‑move Agency Head
and the APS employee — on the agreed date of effect.
(4) Paragraph (3) (b) has effect in relation to the move
of an SES employee subject to the Commissioner’s Directions.
3.9A Other moves between Agencies (Act
s 26)
(1) For subsection 26 (2)
of the Act, this regulation applies if, after the commencement of this
regulation:
(a) a written agreement is entered into between
an
Agency Head and an ongoing APS employee for the
APS employee to move to the Agency Head’s Agency from another Agency; and
(b) the agreement specifies the period of the
move.
(2) If the pre‑move
Agency Head approved the period, in writing, before the agreement was entered
into, the agreement has effect, according to its terms, as an agreement to move
to the Agency for the specified period.
(3) If
the pre‑move Agency Head did not approve the period, in writing, before
the agreement was entered into, the agreement has effect:
(a) as an agreement to make an ongoing move to
the Agency; and
(b) as if the period were not specified.
(4) The move takes effect:
(a) 4 weeks after the pre‑move Agency Head
is told by the APS employee of the agreement; or
(b) if a different date of effect is agreed
between the post‑move Agency Head, the pre‑move Agency Head and the
APS employee — on the agreed date of effect.
(5) Subregulation (4) has effect in relation to the move
of an SES employee subject to the Commissioner’s Directions.
3.9B Variation of period of agreement
(1) This regulation
applies if, after the commencement of this regulation, a post‑move Agency
Head and an ongoing APS employee vary the length of the period specified in an
agreement that:
(a) is described in subregulation 3.9A (1); and
(b) has effect in accordance with subregulation
3.9A (2).
(2) If the pre‑move Agency Head approved the
variation of the period, in writing, before the agreement was varied, the
variation of the period of the move has effect according to its terms.
(3) If the pre‑move Agency Head did not approve
the variation of the period, in writing, before the agreement was varied, the
variation of the period of the move has no effect.
3.10 Suspension from duties (Act s 28)
(1) An Agency Head may suspend an APS employee employed
in the Agency from duties if the Agency Head believes on reasonable grounds
that:
(a) the employee has, or may have, breached the
Code of Conduct; and
(b) the employee’s suspension is in the public,
or the Agency’s, interest.
(2) The suspension may be with remuneration.
(3) If the suspension is
to be without remuneration, the period without remuneration is to be:
(a) not more than 30 days; or
(b) if exceptional circumstances apply — a
longer period.
(4) The Agency Head must review the suspension at
reasonable intervals.
(5) The Agency Head must immediately end the suspension
if the Agency Head no longer believes on reasonable grounds:
(a) that the APS employee has, or may have,
breached the Code of Conduct; or
(b) that the employee’s suspension is in the
public, or the Agency’s, interest.
(6) The Agency Head must immediately end the suspension
if a sanction has been imposed on the APS employee for the relevant breach of
the Code of Conduct.
(7) In exercising powers under this regulation, the
Agency Head must have due regard to procedural fairness unless the Agency Head
is satisfied on reasonable grounds that, in the particular circumstances, it
would not be appropriate.
3.11 Termination of
employment of non‑ongoing APS employees (Act s 29)
(1) For the purposes of subsection 29 (4) of the Act,
this regulation sets out procedures applicable to the termination of the
engagement of a non‑ongoing APS employee.
(2) If an employment arrangement sets out procedures
that apply to the termination of the non‑ongoing APS employee, the
procedures apply to the termination of the engagement of the employee unless
the procedures:
(a) are prohibited content (within the meaning
given by the Workplace Relations Act 1996); or
(b) would be prohibited content of that kind if
the employment arrangement were a workplace agreement.
(3) The engagement of a
non‑ongoing APS employee may be terminated on the grounds of a breach of
the Code of Conduct only in accordance with procedures established by an Agency
Head under subsection 15 (3) of the Act.
Note The Workplace Relations Act 1996 has rules and
entitlements that apply to termination of employment.
3.12 Notification
in electronic APS Employment Gazette of certain employment decisions
(1A) A decision listed in subregulation (1) must be
notified in the electronic APS Employment Gazette if:
(a) the decision is made on or after 8 August 2007;
or
(b) the decision was made before 8 August 2007
and was not notified in the Gazette before 8 August 2007.
(1) For subregulation (1A), the following decisions are
listed:
(a) engagement of a person as an ongoing APS
employee;
(b) engagement of a person as an APS employee for
a specified term of more than 12 months or for the duration of a specified task
that is reasonably estimated to take more than 12 months;
(c) engagement of a person as an APS employee
under paragraph 72 (1) (c) or (d) of the Act:
(i) as an ongoing APS employee; or
(ii) for a specified term of more than
12 months; or
(iii) for the duration of a specified
task that is reasonably estimated to take more than 12 months;
(d) in relation to a person who is engaged as an
APS employee for a specified term of less than 12 months — extension of
the engagement that results in the term of engagement being more than 12
months;
(e) movement (other than a promotion or
temporary movement) by an ongoing APS employee to perform duties in another
Agency if the opportunity to apply for the relevant employment was notified in
the Gazette or in the electronic APS Employment Gazette;
(f) assignment of
duties (other than a temporary assignment of duties or an assignment of duties
because of a promotion) to an ongoing APS employee in an Agency if the
opportunity to apply for the relevant employment was notified in the Gazette
or in the electronic APS Employment Gazette;
(g) assignment to an SES employee of duties at a
lower classification without the employee’s agreement;
(h) promotion of an ongoing APS employee;
(i) termination, and the grounds for
termination, of the employment of an ongoing APS employee under section 29 of
the Act;
(j) retirement of an SES employee within the
period specified in a notice given to the employee under section 37 of the Act;
(k) promotion of an ongoing APS employee,
following the decision of a PRC under subparagraph 5.18 (1) (b) (ii), which has
not been notified under paragraph (h);
(l) engagement
of an ongoing Parliamentary Service employee as an ongoing APS employee if the
engagement:
(i) follows a decision of a PRC
mentioned in subparagraph 5.18 (1) (b) (iii); and
(ii) has not been notified under
paragraph (a).
(2) If a decision
mentioned in paragraph (1) (a) was made in accordance with the measures
mentioned in clause 4.2 of the Commissioner’s Directions, the notification of
the decision must include a statement to the effect that:
‘This engagement is made in accordance with the
provisions
of subclause 4.2 (2) of the Public Service Commissioner’s Directions 1999 —
similar employment opportunity previously notified.’.
(2A) If the person whose
engagement is mentioned in paragraph
(1) (a):
(a) was an ongoing Parliamentary Service
employee immediately before the engagement; and
(b) was engaged at a
higher classification than the Parliamentary Service employee’s
classification as a Parliamentary Service employee;
the notification of the decision
must include a statement to the effect that:
‘This decision to engage an ongoing Parliamentary
Service employee at a higher classification may be subject to review by a
Promotion Review Committee in accordance with Part 5 of the Regulations.’.
Note See the definition of higher,
for a classification, in the Dictionary.
(3) If a decision
mentioned in paragraph (1) (a) was made in accordance with the measures
mentioned in clause 4.2A of the Commissioner’s Directions, the notification of
the decision must include a statement to the effect that:
‘This engagement was authorised by the Public
Service Commissioner on (date) under clause 4.2A of the Public
Service Commissioner’s Directions 1999 — exceptional circumstances.’.
(4) If a decision
mentioned in paragraph (1) (h) was made in accordance with the measures
mentioned in clause 4.6A of the Commissioner’s Directions, the notification of
the decision must include a statement to the effect that:
‘This promotion is made in accordance with the
provisions
of subclause 4.6A (2) of the Public Service Commissioner’s Directions 1999 —
similar employment opportunity previously notified.’.
3.12A Notification
in electronic APS Employment Gazette of cancellation of certain employment
decisions
(1) This regulation applies if a decision (a cancellation
decision) has been made:
(a) to cancel a decision (other than in the
circumstance described in paragraph (b)) that is mentioned in paragraph 3.12 (1) (a),
(b), (c), (d), (e), (f), (g), (h), (i) or (j) ; or
(b) following a decision of a PRC under
subparagraph 5.18 (1) (b) (ii) — to cancel a decision that
is mentioned in paragraph 3.12 (1) (h).
(2) A cancellation decision, and the date of effect of
the cancellation decision, must be notified in the electronic APS Employment Gazette
if:
(a) the cancellation decision is made on or
after 8 August 2007; or
(b) the cancellation decision was made before 8 August 2007
and was not notified in the Gazette before 8 August 2007.
Division 3.2 Right of
return for election candidates
3.13 Prescribed elections (Act s 32)
For the purposes of paragraph 32 (1) (a) of the
Act, the following elections are prescribed:
(a) an election for a member of a House of the
Parliament of the Commonwealth or of a State;
(b) an election for a member of the Legislative
Assembly of the Australian Capital Territory or the Northern Territory;
(c) a zone election under Division 7 of Part 3
of the Aboriginal and Torres Strait Islander Commission Act 1989;
(d) an election for a member of the Torres Strait
Regional Authority, established under section 142 of the Aboriginal and
Torres Strait Islander Commission Act 1989.
3.14 Entitlement to return to APS employment
(Act s 32)
(1) A person to whom section 32 of the Act applies is
entitled to be again engaged as an APS employee if, within the required time,
the person applies to the relevant authority.
(2) However, the person is not entitled to be again
engaged as an APS employee if:
(a) before the person resigned to contest the
election, the person was engaged for a specified term or for the duration of a
specified task; and
(b) when the person applies to be again engaged
as an APS employee, the term (including any extension of the term) has expired
or the task has been completed.
(3) In subregulation (1):
relevant authority
means:
(a) if the Agency in which the person was
employed when the person resigned still exists — the Agency Head of that
Agency; or
(b) if the
functions to which the person’s duties related, or mainly related, have been
transferred to another Agency — the Agency Head of that Agency; or
(c) in any other case — the Commissioner.
required time means:
(a) for a person who contested an election the
result of which is not disputed — 2 months after the declaration of the
result of the election; and
(b) for a person who contested an election the
result of which is disputed:
(i) if the election was an election
mentioned in paragraph 3.13 (c) or (d) — 2 months after the Federal Court
of Australia makes a final decision on the petition disputing the result, or
the petition is withdrawn; and
(ii) in any other case — 2 months
after a court of disputed returns decides the petition disputing the result, or
the petition is withdrawn or lapses.
3.15 Entitlements on return to APS employment
(Act s 32)
(1) This regulation applies to a person to whom section
32 of the Act applies who is entitled to be again engaged as an APS employee.
(2) The person must be engaged on the same basis on
which the person was engaged before resigning to contest the election.
(3) The person must be engaged at the same
classification as
the person had before resigning to contest the election (the previous
classification).
(4) The person must be assigned duties that are the same
as, or similar to, the duties the person had before resigning to contest the
election or, if such duties are unavailable, other duties at the previous
classification.
(5) The person must be engaged on:
(a) the same terms and conditions of employment
that applied to the person when the person resigned; or
(b) if the remuneration, or another term or
condition, applying to the person’s previous classification has changed since
the person resigned — the changed terms and conditions.
(6) For the purposes mentioned in subregulation (7), the
continuity of the person’s service is taken not to have been broken by the
period between the person’s resignation and the person’s again being engaged as
an APS employee but that period does not count as service.
(7) The purposes are:
(a) calculation of leave entitlements under the
Australian Fair Pay and Conditions Standard or an employment arrangement that
applies to the employee; or
(b) calculation of the employee’s redundancy pay,
however described, under an employment arrangement that applies to the
employee.
Note For entitlements to long service
leave and paid maternity leave, see the Long Service Leave (Commonwealth
Employees) Act 1976 and the Maternity Leave (Commonwealth Employees) Act
1973.
Division 3.3 Miscellaneous
3.16 Knowledge of Act, Regulations and
Commissioner’s Directions
Each APS employee must inform himself or herself
about the Act, these Regulations and the Commissioner’s Directions.
Part 4 Independent Selection Advisory Committees
4.1 Function of
ISAC
(1) The function of an ISAC is
to make recommendations to an Agency Head about the suitability of candidates
for:
(a) engagement
connected with employment in the Agency; or
(b) promotion to
employment in the Agency; or
(c) assignment to duties
in connection with employment in the Agency.
(2) The employment must be at
a classification mentioned in any of Groups 1 to 6 set out in Schedule 1 to the
Classification Rules.
4.2 Establishment
of ISAC
(1) The Merit Protection Commissioner may establish an
ISAC at the request of an Agency Head.
(2) The Merit Protection
Commissioner may charge the Agency Head a fee for carrying out functions for
the Agency Head under this Part.
4.3 Constitution of
ISAC
(1) An ISAC must comprise:
(a) a Convenor nominated
by the Merit Protection Commissioner; and
(b) a person nominated
by the relevant Agency Head; and
(c) an APS employee
nominated by the Merit Protection Commissioner.
(2) The Merit Protection
Commissioner must be satisfied that the APS employee nominated under paragraph
(1) (c) has the skills and personal qualities necessary to undertake his
or her role independently and impartially.
(3) The APS employee nominated under paragraph (1) (c)
must be made available for the purposes of the ISAC, subject to the operational
efficiency of the Agency in which he or she is employed.
(4) If a member of an ISAC ceases to act as a member
before
the ISAC has made its recommendation to the relevant
Agency Head, the ISAC is to be reconstituted by the remaining members and
another member nominated in accordance with subregulation (1).
(5) The reconstituted ISAC
must have regard to matters put before, or decided by, the ISAC as previously
constituted.
(6) A person is not subject to direction in carrying out
his or her duties as a member of an ISAC, except:
(a) by a Court; or
(b) by instructions
issued under regulation 4.5.
4.4 ISAC
procedures — minimum requirements
(1) The procedures used by an
ISAC in performing its functions under this Part must meet the following
minimum requirements:
(a) the procedures
must have due regard to procedural fairness;
(b) the functions must
be carried out in private;
(c) the functions of
the ISAC must be finished as quickly, and with as little formality, as a proper
consideration of the matter allows.
(2) A person appearing before
an ISAC must do so without representation unless the Merit Protection
Commissioner decides that, in all the circumstances, it would be reasonable to
allow the person to be represented.
4.5 ISAC procedures — Merit Protection
Commissioner’s instructions
(1) The Merit Protection
Commissioner must, as soon as practicable after the commencement of this
regulation, issue instructions about the procedures to be followed by an ISAC
in performing its functions under this Part.
(2) The instructions must not
be inconsistent with the Act, these Regulations or the Commissioner’s
Directions.
(3) An ISAC must comply with
the instructions.
4.6 Assistance to
ISAC
The Merit Protection
Commissioner must take all reasonable steps to ensure that staff and other
resources are available to assist an ISAC to carry out its functions
efficiently and effectively.
4.7 Assessment and
recommendation by ISAC
(1) If an ISAC is established
in respect of an employment opportunity, the ISAC must:
(a) assess the
relative merits of the candidates for the relevant employment on the basis of:
(i) the
relative suitability of the candidates for the duties; and
(ii) the
relationship between the candidates’ work‑ related qualities and the work‑related
qualities genuinely required for the duties; and
(iii) the
relative capacity of the candidates to achieve outcomes related to the duties;
and
(b) report on the
assessment to the relevant Agency Head; and
(c) make a
recommendation to the Agency Head, primarily
on the basis of the assessment, as to which candidate
it considers to be the most suitable for the relevant employment.
(2) If the ISAC considers that
none of the candidates is suitable
for the relevant employment, the ISAC must make a recommendation to the Agency
Head to that effect.
4.8 Non‑agreement on recommendation by ISAC
(1) This regulation applies if all members of an ISAC do
not agree on a recommendation.
(2) If 2 members agree on a recommendation, that
recommendation is taken to be the recommendation of the ISAC.
(3) If there is no agreement between any of the members,
the Convenor’s recommendation is taken to be the recommendation of the ISAC.
4.9 ISAC
recommendation not binding
The recommendation of an
ISAC is not binding on an Agency Head.
4.10 Effect of acting
on ISAC recommendation
(1) An engagement, promotion
or assignment of duties made in accordance with an ISAC recommendation is not
subject to review under Part 5.
(2) For regulation 3.12, the engagement, promotion or
assignment of duties must be notified in the electronic APS Employment Gazette
as having been made in accordance with an ISAC recommendation.
(3) The engagement, promotion
or assignment of duties is not affected by:
(a) a defect in the
nomination of a member of the ISAC; or
(b) a failure to comply
with the instructions issued under regulation 4.5.
4.11 Effect of not
acting in accordance with ISAC recommendation
(1) If, instead of acting in
accordance with an ISAC recommendation in respect of an employment opportunity,
an Agency Head promotes another ongoing APS employee to the relevant
employment, the promotion is subject to review under Division 5.2.
(2) For regulation 3.12, the promotion must be notified
in the electronic APS Employment Gazette as a promotion decision that is
subject to review under Division 5.2.
4.12 Offence
(1) A person must not obstruct an ISAC in carrying out its functions
under this Part.
Penalty: 10 penalty units.
(2) Strict liability applies to the physical element of
an offence against subregulation (1) that the functions being carried out by
the ISAC were functions under this Part.
Note For strict liability,
see section 6.1 of the Criminal Code.
Part 5 Review of actions
Division 5.1 Statement
of intent and outline
5.1 General policy
about review
(1) It is the policy of the
Australian Government that APS Agencies should achieve and maintain workplaces
that encourage productive and harmonious working environments.
(2) It is intended that this Part should provide for a
fair system of review of APS actions.
(3) Employees’ concerns are
intended to be dealt with quickly, impartially, and fairly.
(4) The review processes are
intended to be consistent with the use of alternative dispute resolution
methods to reach satisfactory outcomes where appropriate.
(5) Nothing in this Part is
intended to prevent an application for review from being resolved by
conciliation or other means at any time before the review process is completed.
5.2 Outline of Part
5
This Part makes
provision in relation to the following matters:
(a) the entitlement of
APS employees to review of certain promotion decisions and other APS actions;
(b) the
entitlement of ongoing Parliamentary Service employees to review of certain
promotion decisions;
(c) the entitlement of APS employees and ongoing
Parliamentary Service employees to review of certain engagement decisions;
(d) the
responsibilities and powers of Agency Heads and the Merit Protection
Commissioner in relation to review of APS actions;
(e) the role and powers of Promotion Review Committees
constituted for the review of a decision mentioned in this regulation.
Note Certain reporting powers for the Merit Protection
Commissioner are set out in subsection 33 (6) of the Act.
5.3 Review of certain promotion and
engagement decisions
Division 5.2 provides for applications for review
of certain promotion decisions and engagement decisions to be made to the Merit
Protection Commissioner for review by a Promotion Review Committee.
Note A decision by a Promotion Review
Committee is binding on an Agency Head: see subregulation 5.20 (1).
5.4 Review of other
APS action
Division 5.3 provides
for:
(a) applications for
primary review of other APS actions to be made to the relevant Agency Head or,
in certain circumstances, to the Merit Protection Commissioner; and
(b) applications for
secondary review of actions that were the subject of primary review by an
Agency Head to be made to the Merit Protection Commissioner.
Note A recommendation made on an application to the Merit
Protection Commissioner for primary or secondary review is not binding on an
Agency Head: see r 5.32.
5.5 Agency Head’s
responsibility
An Agency Head is
responsible for ensuring that applications for review can be dealt with in
accordance with:
(a) this Part; and
(b) the Commissioner’s Directions; and
(c) the Agency Head’s
responsibility to uphold and promote the APS Values.
Division 5.2 Review of certain APS promotion decisions and engagement
decisions (including decisions involving Parliamentary Service employees)
5.6 Application of
Division 5.2
(1) This Division applies
if:
(a) a decision (a promotion
decision) is made by an Agency Head to promote an ongoing APS employee
to employment at a classification mentioned in any of Groups 1 to 6 set out in
Schedule 1 to the Classification Rules; and
(b) the promotion
decision is not made in accordance with the recommendation of an Independent
Selection Advisory Committee; and
(c) the promotion
decision is not made in accordance with a PRC decision.
(2) This Division also applies if:
(a) an engagement
decision is made by an Agency Head to engage an
ongoing Parliamentary Service employee as
an ongoing APS employee at a classification mentioned
in any of Groups 1 to 6 set out in Schedule 1 to the Classification Rules; and
(b) the engagement
decision is not made in accordance with the recommendation of an Independent
Selection Advisory Committee; and
(c) the engagement decision is not made in accordance with
a PRC decision.
(3) In
this Division, a decision to engage an ongoing Parliamentary Service employee
is an engagement decision if the engagement is at a higher
classification than the ongoing Parliamentary Service employee’s classification
as a Parliamentary Service employee, worked out in accordance with Schedule 2.
Note See the definition of higher,
for a classification, in the Dictionary.
5.7 Entitlement for review: promotion decision
(1) If:
(a) an ongoing APS employee applies for
promotion to relevant employment; and
(b) a promotion decision is made in relation to
the relevant employment;
the ongoing APS employee is entitled to apply to the Merit
Protection Commissioner to have the promotion decision reviewed by a Promotion
Review Committee.
Note A Promotion
Review Committee may be appointed to deal with:
(a) applications from APS employees and Parliamentary
Service employees in relation to the same promotion decision; and
(b) applications relating to promotion decisions and
engagement decisions.
(2) If:
(a) an ongoing Parliamentary Service employee
applies for engagement to relevant employment; and
(b) the engagement
would be at a higher classification than the Parliamentary Service
employee’s classification as a Parliamentary Service employee; and
(c) a promotion decision is made in relation to
the relevant employment;
the ongoing Parliamentary Service employee is entitled to apply to
the Merit Protection Commissioner to have the promotion decision reviewed by a
Promotion Review Committee.
Note A
Promotion Review Committee may be appointed to deal with:
(a) applications from APS employees and Parliamentary
Service employees in relation to the same promotion decision; and
(b) applications relating to promotion decisions and
engagement decisions.
5.7A Entitlement for
review: engagement decision
(1) If:
(a) an ongoing APS employee applies for
promotion to relevant employment; and
(b) an engagement
decision is made in relation to the relevant employment;
the ongoing APS employee is entitled to apply to the Merit
Protection Commissioner to have the engagement decision reviewed by a Promotion
Review Committee.
Note A Promotion Review Committee may be
appointed to deal with:
(a) applications from APS employees and Parliamentary
Service employees in relation to the same promotion decision; and
(b) applications relating to promotion decisions and
engagement decisions.
(2) If:
(a) an ongoing Parliamentary Service employee
applies for engagement to relevant employment; and
(b) the engagement
would be at a higher classification than the Parliamentary Service
employee’s classification as a Parliamentary Service employee; and
(c) an engagement decision is made in relation
to the relevant employment;
the ongoing Parliamentary Service employee is entitled
to apply to the Merit Protection Commissioner to have
the engagement decision reviewed by a Promotion Review Committee.
Note A Promotion Review Committee may be
appointed to deal with:
(a) applications from APS employees and Parliamentary
Service employees in relation to the same engagement decision; and
(b) applications relating to promotion decisions and
engagement decisions.
5.8 Grounds for review
A
promotion decision or engagement decision may
only be reviewed under this Division on the grounds of merit.
Note It is an APS value that employment
decisions are based on merit: see para 10 (1) (b) of the Act.
For the purposes of that paragraph, a decision relating to engagement or
promotion is based on merit if the matters set out in subs 10 (2) of
the Act are satisfied.
5.9 Application for review
(1) An
application for review of a promotion decision under this Division must:
(a) be in writing; and
(b) be received by
the Merit Protection Commissioner:
(i) within:
(A) the period specified in
the Gazette or in the electronic APS Employment Gazette as part
of notifying the promotion; or
(B) if the Merit Protection
Commissioner has given an extension of time to a class of employees before the
end of the period mentioned in subparagraph (A) — that extension of time;
and
(ii) at the place specified in the Gazette
or in the electronic APS Employment Gazette.
(1A) An application for
review of an engagement decision under this Division must:
(a) be in writing; and
(b) be received by the Merit Protection Commissioner:
(i) within:
(A) the period specified in
the Gazette or in the electronic APS Employment Gazette as part
of notifying the engagement; or
(B) if the Merit Protection
Commissioner has given an extension of time to a class of employees before the
end of the period mentioned in subparagraph (A) — that extension of time;
and
(ii) at the place specified in the Gazette
or in the electronic APS Employment Gazette.
(2) The making of an application for review of a
promotion decision or engagement decision under this Division operates to stay
the decision until it takes effect in accordance with Division 3.1.
5.10 Appointment of PRC
(1) If the Merit Protection Commissioner receives an
application for review of a promotion decision or an engagement decision under
this Division, the Merit Protection Commissioner must:
(a) consider the circumstances in which the
application was made; and
(b) if he or she believes that a review of the
promotion decision or engagement decision is necessary — appoint a PRC to
deal with the application.
(2) A particular PRC may
be appointed to deal with:
(a) applications by ongoing APS employees and
ongoing Parliamentary Service employees for review of a promotion decision; and
(b) applications by ongoing APS employees and
ongoing Parliamentary Service employees for review of an engagement decision;
and
(c) applications in relation to more than 1
promotion or engagement decision.
5.11 Constitution of
PRC
(1) A PRC must comprise:
(a) a Convenor
nominated by the Merit Protection Commissioner; and
(b) an APS employee
nominated by the relevant Agency Head; and
(c) an APS employee
nominated by the Merit Protection Commissioner.
(2) The Merit Protection
Commissioner must be satisfied that the APS employee nominated under paragraph
(1) (c) has the skills and personal qualities necessary to undertake his or her
role independently and impartially.
(3) The APS employee nominated under paragraph (1) (c)
must be made available for the purposes of the PRC, subject to the operational
efficiency of the Agency in which he or she is employed.
(4) If a member of a PRC ceases to act as a member
before
the PRC has made its recommendation to the relevant
Agency Head, the PRC is to be reconstituted by the remaining members and
another member nominated in accordance with subregulation (1).
(5) The reconstituted PRC must have regard to matters
put before, or decided by, the PRC as previously constituted.
(6) A person is not subject to direction in carrying out
his or her duties as a member of a PRC, except:
(a) by a Court; or
(b) by instructions
issued under regulation 5.15.
5.12 Statements by
parties
(1) An applicant for review of
a promotion decision, and the person promoted, must each give the Merit
Protection Commissioner a statement in writing setting out his or
her claim for promotion or engagement to the
relevant employment.
(1A) An applicant for review of an engagement decision, and
the person engaged, must each give the Merit Protection Commissioner a
statement in writing setting out his or
her claim for promotion or engagement to the relevant employment.
(2) The statement must be
given within 14 days after the closing date for lodging applications for review
of the decision.
(3) However if:
(a) within that
14 days, the applicant, or the person promoted or engaged, asks the Merit Protection Commissioner for a longer period
within which to give the statement; and
(b) the Merit
Protection Commissioner agrees to allow a longer period;
the statement must be given within the longer
period allowed.
(4) If the statement is not
given within the time required under subregulation (2) or (3), the PRC may
consider and decide the application without the statement.
5.13 Frivolous or vexatious applications
A PRC may refuse to
consider, or further consider, an application for review if each member of the
PRC is satisfied that the application is frivolous or vexatious.
5.14 PRC procedures — minimum requirements
(1) The procedures used by a
PRC in conducting a review under this Division must meet the following minimum
requirements:
(a) the procedures
must have due regard to procedural fairness;
(b) the review must be
conducted in private;
(c) the review must be
finished as quickly, and with as little formality, as a proper consideration of
the matter allows.
(2) A person appearing before
a PRC must do so without representation unless the Merit Protection
Commissioner decides that, in all the circumstances, it would be reasonable to
allow the person to be represented.
5.15 PRC procedures —
Merit Protection Commissioner’s instructions
(1) The Merit Protection
Commissioner must, as soon as practicable after the commencement of this
regulation, issue instructions about the procedures to be followed by a PRC in
performing its functions under this Division.
(2) The instructions must not
be inconsistent with the Act, these Regulations or the Commissioner’s
Directions.
(3) A PRC must comply with the
instructions.
5.16 Assistance to PRC
The Merit Protection
Commissioner must take all reasonable steps to ensure that staff are available
to assist a PRC to carry out its functions efficiently and effectively.
5.17 Requirement to provide information or documents
(1) A PRC may, by written
notice given to an Agency Head, require the Agency Head to give to the PRC
stated information or documents relevant to the review.
(2) The Agency Head must give the information or
documents in the way, and at or within the time, stated in the notice.
5.18 Conduct of review
by PRC
(1) In considering an
application for review of a promotion decision or an engagement decision, a PRC
must:
(a) assess
the relative merits of the person promoted or engaged, and each applicant for
review of the decision, on the basis of:
(i) the relative suitability of each
person for the duties; and
(ii) the relationship between each
person’s work‑related qualities and the work‑related qualities
genuinely required for the duties; and
(iii) the relative capacity of each
person to achieve outcomes related to the duties; and
(b) decide,
primarily on the basis of the assessment, that:
(i) the promotion
or engagement decision should be upheld; or
(ii) an applicant for review should be
promoted to the relevant employment; or
(iii) an applicant for review should be
engaged to the relevant employment.
(2) The PRC must tell the
relevant Agency Head, in writing, of its
decision.
5.19 Non‑agreement
on decision by PRC
(1) This regulation applies if all members of a PRC do
not agree on a decision in relation to an application for review of a promotion
decision or engagement decision.
(2) If 2 members agree on a decision, that decision is
taken to be the decision of the PRC.
(3) If there is no agreement between any of the members,
the Convenor’s decision is taken to be the decision of the PRC.
5.20 Effect of PRC
decision
(1) The decision of a PRC is
binding on the relevant Agency Head.
Note Regulation
3.8 provides for the date of effect of a PRC decision.
(2) The decision of a PRC is
not affected by:
(a) a defect in the
nomination of a member of the PRC; or
(b) a failure to comply
with instructions issued under regulation 5.15.
(3) If a PRC has
decided, after conducting a review under regulation 5.18, that an applicant for
review who is an ongoing APS employee should be promoted to the relevant
employment, the applicant is taken to have been promoted to the relevant
employment.
(4) If a PRC has decided, after conducting a
review under regulation 5.18, that an applicant for review who is an ongoing
Parliamentary Service employee should be engaged to the relevant employment,
the Agency Head must offer the ongoing Parliamentary Service employee the
relevant employment opportunity not later than 2 weeks after the Agency Head is
notified of the review decision.
Note 1 Regulation 3.8 provides for the
date of effect of a promotion decision if an application for review has been
made to a PRC.
Note 2 Regulation 3.8A provides for
the date of effect of an engagement decision if the engagement is at a higher
classification than the person’s classification as an ongoing Parliamentary
Service employee where an application for review has been made to a PRC.
5.21 Offence
(1) A person must not obstruct a PRC in carrying out its functions
under this Division.
Penalty: 10 penalty
units.
(2) Strict liability
applies to the physical element of an offence against subregulation (1)
that the functions being carried out by the PRC were functions under this
Division.
Note For strict liability,
see section 6.1 of the Criminal Code.
Division 5.3 Review of other APS actions
Subdivision 5.3.1 Reviewable action
5.22 Entitlement for
review
A non‑SES employee
(the affected employee) is entitled to review of APS action under
this Division if:
(a) the action is
action by an Agency Head or an APS employee; and
(b) the action is
reviewable action.
Note A locally engaged employee is not an APS employee and,
therefore, is not entitled to review of action under this Division.
5.23 What APS action
is reviewable action [see Note 2]
(1) An APS action is reviewable
action if the affected employee is entitled, under subsection 33 (1) of
the Act, to review of the action.
(2) However, the action is
not, or ceases to be, reviewable action if:
(a) it is action
mentioned in Schedule 1; or
(b) the affected person
has applied to have the action reviewed by a Court or Tribunal and the action
may be reviewed by that Court or Tribunal.
(3) Also,
the action is not, or ceases to be, reviewable action if the
person or committee that is, or would be, conducting the review considers that
the action should not be reviewable for any of the following reasons:
(a) the application
for review of the action is made more than 1 year after the action happened, or
did not happen, and there are no exceptional circumstances explaining why the
application was not made within the year;
(b) the application by
the affected employee for review of the action is frivolous or vexatious;
(c) the affected
employee has previously applied for review of the action under this Division;
(d) the affected employee
has applied to have the action reviewed under Division 5.2;
(e) the affected
employee has applied, or could apply, to have the action reviewed by an
external review body and review by the review body would be more appropriate
than review under this Division;
(f) the affected
employee does not have sufficient direct personal interest in review of the
action;
(g) review, or further
review, of the action is not otherwise justified in all the circumstances.
Examples of external review bodies for paragraph (e)
1 Commonwealth
Ombudsman.
2 Privacy
Commissioner.
3 Human
Rights and Equal Opportunity Commission.
Example for paragraph (g)
Review
may not be justified because the applicant does not respond to a request under
regulation 5.35 for further information about why the review is sought.
Subdivision
5.3.2 Primary review
5.24 Application for
primary review
(1) An affected employee may
apply in writing to the relevant Agency Head for primary review of a reviewable
action.
(2) However, the application must
be made to the Merit Protection Commissioner if the application is for review
of:
(a) a determination
that the affected employee has breached the Code of Conduct; or
(b) a sanction imposed
for breach of the Code of Conduct.
(3) Also, the employee may
apply in writing to the Merit Protection Commissioner for review of the action
if:
(a) the Agency Head
was directly involved in the action; or
(b) it is not
appropriate, because of the seriousness or sensitivity of the action, for the
Agency Head to deal with the application; or
(c) the action is
claimed to be victimisation or harassment of the employee for having made a
previous application for review of action.
(4) The application must state
briefly:
(a) why the review is
sought; and
(b) if a particular
outcome is sought — the outcome sought.
Examples of
outcomes
1 Reconsideration of the
action.
2 Re‑assignment of
duties.
5.25 Referral to Merit
Protection Commissioner
(1) If an application for
review of a reviewable action is made
to the relevant Agency Head, the Agency Head may, with
the Merit Protection Commissioner’s agreement, refer the application to the
Merit Protection Commissioner.
(2) The Agency Head may, for
example, refer the application to the Merit Protection Commissioner if:
(a) the Agency Head
was directly involved in the action; or
(b) the Agency Head
thinks that it is not appropriate, because of the seriousness or sensitivity of
the action, for the Agency Head to deal with the application.
(3) If the Agency Head refers
the application to the Merit Protection Commissioner, the Agency Head must tell
the employee in writing.
Note Regulation 5.28 deals with review of applications referred
to the Merit Protection Commissioner by an Agency Head.
5.26 Notice that
action not reviewable
If an application for review of an APS action is
made and the action is not reviewable action under subregulation 5.23 (3), the
person who would have conducted the review must tell the employee in writing:
(a) that the action is not reviewable; and
(b) the reasons why it is considered that the
action is not reviewable; and
(c) if the application was not made or referred
to the Merit Protection Commissioner — of the employee’s right to apply to
the Merit Protection Commissioner under regulation 5.29 for secondary review of
the action.
5.27 Conduct of review
by Agency Head
(1) If an Agency Head does not refer an application for
review to the Merit Protection Commissioner, the Agency Head must review the
action and attempt to resolve the employee’s concerns about the action.
(2) Subject to subregulation
5.33 (1), the Agency Head may conduct the review in any manner the Agency Head
thinks fit.
(3) The Agency Head may:
(a) confirm the
action; or
(b) vary the action; or
(c) set the action
aside and substitute a new action.
(4) Subregulation (3) does not
limit the employer powers of the Agency Head in relation to the action or the
affected employee.
Example
The Agency Head may take other
appropriate action to rectify effects of the action or restore the affected
employee to the position in which the employee would have been if the action
had not been taken.
(5) The Agency Head must tell
the employee in writing of:
(a) any decision made
on the application; and
(b) the reasons for the
decision; and
(c) any action to be
taken as a result of the review; and
(d) the applicant’s
right to apply to the Merit Protection Commissioner under regulation 5.29 for
secondary review of the action.
5.28 Conduct of review by Merit Protection Commissioner
etc
(1) This regulation
applies if an application for review of an APS action is:
(a) made to the Merit
Protection Commissioner under subregulation 5.24 (2) or (3); or
(b) referred to the
Merit Protection Commissioner under subregulation 5.25 (1).
(2) The Merit Protection
Commissioner must nominate a person (who may be the Merit Protection
Commissioner), or constitute a 3 person committee, to conduct the review.
(3) If the Merit Protection
Commissioner is to conduct the review, he or she must:
(a) review the action;
and
(b) make a
recommendation to the Agency Head in writing about the action; and
(c) tell the Agency
Head in writing of the reasons for the recommendation; and
(d) tell the employee
in writing of the recommendation and reasons given to the Agency Head.
(4) If another person or a
committee is to conduct the review, the person or committee must:
(a) review the action;
and
(b) make a
recommendation to the Merit Protection Commissioner in writing about the
action; and
(c) tell the Merit
Protection Commissioner in writing of the reasons for the recommendation.
(5) After receiving the
recommendation and reasons mentioned in paragraphs (4) (b) and (c), the Merit
Protection Commissioner:
(a) must report to the
Agency Head in writing about the recommendation and reasons; and
(b) may make a
recommendation to the Agency Head
in writing about the action (which may be different to
the recommendation made by the person or committee conducting the review); and
(c) must give the
employee a copy of the report and
any recommendation made by the Merit Protection Commissioner about the action.
Subdivision 5.3.3 Secondary review
5.29 Application for
secondary review
(1) An affected employee may
apply in writing to the Merit Protection Commissioner for secondary review of a
reviewable action if:
(a) the Agency Head
has told the employee under regulation 5.26 that the action is not a reviewable
action; or
(b) the employee is
dissatisfied with the outcome of the Agency Head’s review of the action under
regulation 5.27.
(2) The application must be
made through the Agency Head.
(3) The application must state
briefly why the review is sought.
5.30 Agency Head to
give documents to Merit Protection Commissioner
(1) Within 14 days after
receiving the application, the Agency Head must give to the Merit Protection
Commissioner:
(a) the application;
and
(b) any relevant
documents relating to the primary review of the action.
(2) The Agency Head must give to the affected employee a
copy of any documents given to the Merit Protection Commissioner under
paragraph (1) (b).
5.31 Conduct of review
(1) The Merit Protection Commissioner must nominate a
person (who may be the Merit Protection Commissioner), or constitute a 3 person
committee, to conduct the review.
(2) If the Merit Protection
Commissioner is to conduct the review, he or she must:
(a) review the action;
and
(b) make a
recommendation to the Agency Head in writing about the action; and
(c) tell the Agency
Head in writing of the reasons for the recommendation; and
(d) tell the employee
in writing of the recommendation and reasons given to the Agency Head.
(3) If another person or a
committee is to conduct the review, the person or committee must:
(a) review the action;
and
(b) make a
recommendation to the Merit Protection Commissioner in writing about the
action; and
(c) tell the Merit
Protection Commissioner in writing of the reasons for the recommendation.
(4) After receiving the
recommendation and reasons mentioned in paragraphs (3) (b) and (c), the Merit
Protection Commissioner:
(a) must report to the
Agency Head in writing about the recommendation and reasons; and
(b) may make a
recommendation to the Agency Head
in writing about the action (which may be different to
the recommendation made by the person or committee conducting the review); and
(c) must give the
employee a copy of the report and
any recommendation made by the Merit Protection Commissioner about the action.
Subdivision 5.3.4 Action following
recommendation to Agency Head
5.32 Action by Agency Head
(1) If an Agency Head receives
a recommendation under regulation 5.28 or 5.31, the Agency Head must, as soon
as possible:
(a) consider the
recommendation; and
(b) make a decision
about the recommendation.
(2) The Agency Head may:
(a) confirm the
relevant action; or
(b) vary the action; or
(c) set the action
aside and substitute a new action.
(3) Subregulation (2) does not
limit the employer powers of the Agency Head in relation to the action or the
affected employee.
Example
The Agency Head may take other
appropriate action to rectify effects of the action or restore the affected
employee to the position in which the employee would have been if the action
had not been taken.
(4) The Agency Head must tell
the employee and the Merit Protection Commissioner in writing of:
(a) the decision; and
(b) the reasons for the
decision.
Note Subsection 33 (6) of the Act allows for matters to be
reported to
an Agency Minister, the Prime Minister and the Parliament if the
Merit Protection Commissioner is not satisfied with the response to
recommendations contained in a report to an Agency Head.
Subdivision
5.3.5 Other provisions about review
5.33 Review
procedures — minimum requirements
(1) The procedures used for a
review conducted under this Division must meet the following minimum
requirements:
(a) the procedures
must have due regard to procedural fairness;
(b) the review must be
conducted in private;
(c) the review must be
finished as quickly, and with as little formality, as a proper consideration of
the matter allows.
(2) A person appearing before
a person or committee conducting a review under regulation 5.28 or 5.31 must do
so without representation unless the Merit Protection Commissioner decides
that, in all the circumstances, it would be reasonable to allow the person to
be represented.
5.34 Review
procedures — Merit Protection Commissioner’s instructions
(1) The Merit Protection
Commissioner must, as soon as practicable after the commencement of this
regulation, issue instructions about the procedures to be followed by a person
or committee conducting a review under regulation 5.28 or 5.31.
(2) The instructions must not
be inconsistent with the Act, these Regulations or the Commissioner’s
Directions.
(3) A person or committee conducting
a review under regulation 5.28 or 5.31 must comply with the instructions.
5.35 Requirement to
provide information or documents
(1) A person or committee
carrying out a review under this Division may, by written notice given to an
Agency Head or APS employee, require the Agency Head or APS employee to give
the person or committee stated information or documents relevant to the review.
(2) The Agency Head or APS employee must give the
information or documents in the way, and at or within the time, stated in the
notice.
5.36 Making of
application does not operate as stay
The making of an application for review of an APS
action under this Division does not operate to stay the action.
5.37 Offence
(1) A person must not obstruct a person or committee conducting a
review in carrying out its functions under this Division.
Penalty: 10 penalty units.
(2) Strict liability applies to the physical element of
an offence against subregulation (1) that the functions being carried out by
the person or committee were functions under this Division.
Note For strict liability,
see section 6.1 of the Criminal Code.
Part 6 The Public Service Commissioner
Note Functions of the Commissioner in
relation to whistleblowers reports are set out in r 2.5.
6.1 Commissioner’s functions — inquiries
into Merit Protection Commissioner’s behaviour (Act s 41 (1))
For the purposes of paragraph 41 (1) (l) of the
Act, the Commissioner must:
(a) inquire into alleged breaches of the Code of
Conduct by the Merit Protection Commissioner; and
(b) report to the Presiding Officers on the
results of such inquiries (including, if relevant, recommendations for
sanctions).
6.2 Commissioner’s functions — inquiries
into alleged breaches of Code of Conduct by Agency Heads
(Act s 41 (3))
For the purposes of paragraph 41 (3) (c) of the
Act, the following Statutory Agencies are prescribed:
(a) the Auditor‑General and the APS
employees assisting the Auditor‑General, declared by paragraph 40 (1A)
(a) of the Auditor‑General Act 1997 to be a Statutory Agency for
the purposes of the Act;
(b) the Australian Statistician and the APS
employees assisting the Statistician, declared by paragraph 16 (4) (a) of the Australian
Bureau of Statistics Act 1975 to be a Statutory Agency for the purposes of the
Act;
(c) the Chief Executive Officer of Customs (CEO)
and the APS employees assisting the CEO, declared by paragraph 15 (2) (a) of
the Customs Administration Act 1985 to be a Statutory Agency for the
purposes of the Act;
(d) the Commissioner of Taxation and the APS
employees assisting the Commissioner of Taxation, declared by paragraph 4A (2)
(a) of the Taxation Administration Act 1953 to be a Statutory Agency for
the purposes of the Act;
(e) the Ombudsman and the APS employees
assisting the Ombudsman, declared by paragraph 31 (2) (a) of the Ombudsman
Act 1976 to be a Statutory Agency for the purposes of the Act.
6.3 Non‑disclosure
of information by Commissioner, etc
(1) This regulation applies to
the following persons:
(a) the Commissioner;
(b) a member of the
staff assisting the Commissioner;
(c) a person acting
under the direction or authority of the Commissioner.
(2) The person must not,
directly or indirectly, make a record of, or divulge or communicate to any
other person, any information that was:
(a) acquired by the
person while he or she was performing duties as a person described in
subregulation (1); and
(b) disclosed or
obtained under paragraph 41 (1) (c) of the Act.
Penalty: 10 penalty
units.
(2A) Strict liability applies to the following physical
elements of an offence against subregulation (2):
(a) that the duties performed by the person were
duties as a person described in subregulation (1);
(b) that the information was disclosed or
obtained under paragraph 41 (1) (c) of the Act.
Note For strict liability,
see section 6.1 of the Criminal Code.
(3) Subregulation
(2) applies to the person:
(a) while he or she is
performing duties as a person described in subregulation (1); and
(b) after he or she
ceases to perform the duties.
(4) Subregulation
(2) does not prevent the person:
(a) from making a
record of, or divulging or communicating to any other person, information
acquired by the person:
(i) in the
performance of duties as a person described in subregulation (1); and
(ii) for
purposes connected with the exercise of the powers, and with the performance of
the functions, of the Commissioner under the Act; or
(b) from divulging or
communicating to any other person information given by an APS employee, in the
performance of the APS employee’s duties, with the consent of the APS
employee’s Agency Head or the responsible Minister; or
(c) from divulging or
communicating to any other person information given by a person, otherwise than
as described in paragraph (b), with the consent of the person who gave the
information.
(5) Subregulation (2) does not
prevent the Commissioner from disclosing, in a report made under the Act,
matters that, in his or her opinion, ought to be disclosed in the course of
setting out the grounds for the conclusions and recommendations contained in
the report.
(6) A person who is, or has
been, a person described in subregulation (1) is not competent and may not be
required, in any proceedings before a court (whether exercising federal
jurisdiction or not) or before a person authorised by a law of the Commonwealth
or of a State or Territory, or by consent of parties, to hear, receive or
examine evidence, to disclose any information acquired by the person by reason
of his or her being or having been a person described in subregulation (1),
being information that was disclosed or obtained under the provisions of
section 16 or 41 of the Act.
(7) This regulation does not
prevent the Commissioner from disclosing information, or making a statement, to
any person or to the public or a section of the public with respect to the
performance of a function of the Commissioner under the Act if, in the opinion
of the Commissioner:
(a) it is in the
interests of any Agency or person to disclose the information or to make the
statement; or
(b) it is otherwise in
the public interest to disclose the information or to make the statement.
(8) The Commissioner must not
disclose information or make a statement under subregulation (7) with respect
to a particular inquiry if the disclosure of the information, or the making of
the statement, is likely to interfere with the carrying out of the inquiry, or
of any other inquiry.
(9) If the Commissioner
discloses information or makes a statement under subregulation (7) with respect
to a particular inquiry, the Commissioner must not disclose the name of an
applicant, or any other matter that would allow an applicant to be identified,
unless it is fair and reasonable in all the circumstances to do so.
6.4 Immunity from
suit
(1) This regulation applies in
relation to the following persons:
(a) the Commissioner;
(b) a member of the
staff assisting the Commissioner;
(c) a person acting
under the direction or authority of the Commissioner.
(2) The person is not liable
to an action, suit or proceeding for or in relation to an act done or omitted
to be done in good faith in exercise, or purported exercise, of the
Commissioner’s function under paragraph 41 (1) (c) of the Act.
Note Paragraph 41 (1) (c) deals with inquiring into reports
about breaches (or alleged breaches) of the Code of Conduct (see also s 16
of the Act and r 2.5).
Part 7 The Merit Protection Commissioner
7.1 Prescribed
functions (Act s 50)
(1) The Merit Protection
Commissioner’s functions set out in Part 5 are prescribed for the purposes
of paragraph 50 (1) (d) of the Act.
(2) The Merit Protection
Commissioner’s functions set out in this Part are prescribed for the purposes
of paragraph 50 (1) (e) of the Act.
Note Functions of the Merit Protection
Commissioner in relation to whistleblowers reports are set out in r 2.6.
7.2 Investigation
of complaints by former employees
(1) The Merit Protection
Commissioner may investigate a complaint by a former APS employee that relates
to the employee’s entitlements on separation from the APS.
(2) The Merit Protection
Commissioner may make recommendations to the employee’s former Agency Head in
relation to the complaint.
7.3 Review of
actions of statutory office holders who are not Agency Heads
(1) A non‑SES employee
may apply to the Merit Protection Commissioner for review of an action of a
statutory office holder that:
(a) relates to the
employee’s APS employment; and
(b) is not termination
of the employee’s employment; and
(c) if the statutory
office holder were an Agency Head, would be reviewable action for Division 5.3.
(2) The Merit Protection Commissioner may, by written
notice given to the statutory office holder, require the statutory office
holder to give the Merit Protection Commissioner:
(a) a report about the action; and
(b) other stated information or documents
relevant to the review.
(3) The statutory office holder must give the report and
other information or documents in the way, and at or within the time, stated in
the notice.
(4) The Merit Protection
Commissioner must:
(a) review the action;
and
(b) make a
recommendation to the statutory office holder in writing about the action; and
(c) tell the statutory
office holder in writing of the reasons for the recommendation; and
(d) tell the employee
in writing of the recommendation and reasons given to the statutory office
holder.
(5) If the Merit Protection
Commissioner is not satisfied with
the statutory office holder’s response to the Merit Protection Commissioner’s
recommendation, the Merit Protection Commissioner may give a report on the
matter to the relevant Agency Minister.
7.4 Other functions
of Merit Protection Commissioner
(1) This regulation applies
if:
(a) a person or body
asks the Merit Protection Commissioner to perform any of the functions
mentioned in subregulation (2); and
(b) the Merit
Protection Commissioner is not required by a law of the Commonwealth to perform
the function.
Examples of persons and bodies
1 Commonwealth
authorities to which the Act does not apply.
2 State
and Territory departments and authorities.
3 Local
government bodies.
4 Private
corporations and bodies.
(2) The functions are:
(a) reviewing action
that relates to the employment of a person by the person or body; and
(b) investigating
action that relates to the employment of a person by the person or body; and
(c) providing advice
that relates to the employment of a person by the person or body; and
(d) providing services
in connection with selection committees used by the person or body for the selection
or employment of a person; and
(e) providing other
services that relate to the employment of a person.
(3) The Merit Protection
Commissioner:
(a) may perform the
function (but is not required to do so); and
(b) may charge the
person or body a fee for carrying out the function (but is not required to do
so).
7.5 Independence of
Merit Protection Commissioner
The Merit Protection
Commissioner is not subject to direction in carrying out his or her duties
under Part 4 or 5 of these Regulations, except by a Court.
7.6 Non‑disclosure
of information by Merit Protection Commissioner, etc
(1) This regulation applies to the following persons:
(a) the Merit
Protection Commissioner;
(b) a member of the
staff assisting the Merit Protection Commissioner;
(c) a person acting
under the direction or authority of the Merit Protection Commissioner;
(d) a person (other
than an employee of the Agency) to whom the Merit Protection Commissioner has
delegated any of his or her powers under section 78 of the Act;
(e) a member of a
Review Committee established under paragraph 33 (4) (d) of the Act;
(f) a member of an
Independent Selection Advisory Committee;
(g) a person (other
than the Merit Protection Commissioner) who is required to assist the
Commissioner to investigate a complaint under regulation 7.2;
(h) a person (other
than the Merit Protection Commissioner) who is required to assist the
Commissioner to review action under regulation 7.3.
(2) The person must not,
directly or indirectly, make a record of, or divulge or communicate to any
other person, any information that was:
(a) acquired by the
person while he or she was performing duties as a person described in
subregulation (1); and
(b) disclosed or
obtained:
(i) under section 33 or paragraph 50
(1) (a) of the Act; or
(ii) during the investigation of a
complaint under regulation 7.2; or
(iii) during the review of action under
regulation 7.3; or
(iv) while acting as a member of an
Independent Selection Advisory Committee.
Penalty: 10 penalty
units.
(2A) Strict liability applies to the following physical
elements of an offence against subregulation (2):
(a) that the duties performed by the person were
duties as a person described in subregulation (1);
(b) that the information was disclosed or obtained
under section 33 or paragraph 50 (1) (a) of the Act;
(c) that the investigation was under regulation
7.2;
(d) that the review was under regulation 7.3.
Note For strict liability,
see section 6.1 of the Criminal Code.
(3) Subregulation
(2) applies to the person:
(a) while he or she is
performing duties as a person described in subregulation (1); and
(b) after he or she
ceases to perform the duties.
(4) Subregulation
(2) does not prevent the person:
(a) from making a
record of, or divulging or communicating to any other person, information
acquired by the person:
(i) while he
or she is performing duties as a person described in subregulation (1); and
(ii) for
purposes connected with the exercise of the powers, and with the performance of
the functions, of the Merit Protection Commissioner under the Act; or
(b) from divulging or
communicating to any other person information given by an APS employee, in the
performance of the APS employee’s duties, with the consent of the APS
employee’s Agency Head or the responsible Minister; or
(c) from divulging or
communicating to any person information given by a person, otherwise than as
described in paragraph (b), with the consent of the person who gave the
information.
(5) Subregulation (2) does not
prevent the Merit Protection Commissioner from disclosing, in a report made
under the Act, matters that, in his or her opinion, ought to be disclosed in
the course of setting out the grounds for the conclusions and recommendations
contained in the report.
(6) A person who is, or has
been, a person described in subregulation (1) is not competent and may not be
required, in any proceedings before a court (whether exercising federal
jurisdiction or not) or before a person authorised by a law of the Commonwealth
or of a State or Territory, or by consent of parties, to hear, receive or
examine evidence, to disclose any information acquired by the person by reason
of his or her being or having been a person described in subregulation (1),
being information that was disclosed or obtained under the provisions of
section 33 or paragraph 50 (1) (a) of the Act.
(7) This regulation does not
prevent the Merit Protection Commissioner from disclosing information, or
making a statement, to any person or to the public or a section of the public
with respect to the performance of a function of the Merit Protection
Commissioner under the Act if, in the opinion of the Merit Protection
Commissioner:
(a) it is in the
interests of any Agency or person to disclose the information or to make the
statement; or
(b) it is otherwise in
the public interest to disclose the information or to make the statement.
(8) The Merit Protection
Commissioner must not disclose information or make a statement under
subregulation (7) with respect to a particular inquiry or review if the
disclosure of the information, or the making of the statement, is likely to
interfere with the carrying out of the inquiry or review, or of any other
inquiry or review.
(9) If the Merit Protection
Commissioner discloses information
or makes a statement under subregulation (7) with respect
to a particular inquiry or review, the Merit Protection Commissioner must not
disclose the name of an applicant, or any other matter that would allow an
applicant to be identified, unless it is fair and reasonable in all the
circumstances to do so.
7.7 Immunity from
suit
(1) This regulation applies in
relation to the following persons:
(a) the Merit
Protection Commissioner;
(b) a member of the
staff assisting the Merit Protection Commissioner;
(c) a person acting
under the direction or authority of the Merit Protection Commissioner;
(d) a member of a PRC;
(e) a member of an
ISAC.
(2) The person is not liable
to an action, suit or proceeding for or in relation to an act done or omitted
to be done in good faith in exercise, or purported exercise, of any power or
authority conferred by the Act.
Part 8 Administrative arrangements and re‑organisations
8.1 Employment conditions after machinery of
government changes — movement of APS employees (Act s 72)
(1) For the purposes of
paragraph 72 (5) (a) of the Act, this regulation prescribes arrangements for
determining variations of the remuneration and other conditions of employment
applicable to an APS employee who is moved to another Agency in accordance with
a determination under paragraph
72 (1) (a) of the Act.
(2) The annual salary that
applies to the APS employee on the day when the move occurs is the greater of:
(a) the annual salary
that applied to the APS employee immediately before the move; and
(b) the annual salary
that would, apart from this regulation, apply to the APS employee after the
move.
(3) Before or after the move,
the other conditions of employment of the APS employee may be varied:
(a) after consultation by the Agency Head with:
(i) the APS employee; or
(ii) that APS employee and any other
APS employees who are to be or who have moved to the Agency; or
(iii) a class of the APS employees who
are to be or who have moved to the Agency that includes the APS employee; and
(b) in accordance with a determination under
subsection 24 (1) of the Act to the effect that some or all of the conditions
of employment are to be the same as those that applied to the APS employee
immediately before the move; and
(c) to have
effect no sooner than the day when the move occurs.
Note A determination by an Agency Head under subsection 24 (1)
of the Act is of no effect to the extent that it would reduce the benefit to an
APS employee of a condition of employment applicable to the employee under the Australian Fair Pay and Conditions
Standard or an award, workplace agreement, pre‑reform certified agreement, AWA or pre‑reform AWA.
(4) However, if:
(a) a determination
mentioned in paragraph (3) (b) applies to the APS employee; and
(b) an employment
arrangement:
(i) commences
on or after the day when the APS employee moves; and
(ii) applies
on its face to the APS employee or a class of APS employees that includes the
APS employee;
the determination mentioned in paragraph (3)
(b) ceases to apply to the APS employee, and the conditions of employment under
the employment arrangement apply to the APS
employee.
8.2 Employment
conditions after machinery of government changes — engagement of non‑APS
employees (Act s 72)
(1) For the purposes of
paragraph 72 (5) (b) of the Act, this regulation prescribes arrangements for
determining variations of the remuneration and other conditions of employment
applicable to a person who ceases to be employed as a non‑APS employee
and becomes engaged as an APS employee in accordance with a determination under
paragraph 72 (1) (c) of the Act.
(2) Before or after the
engagement, the remuneration and other conditions of employment of the person
may be varied:
(a) after consultation by the Agency Head with:
(i) the person; or
(ii) that person and any other persons who are to be or who have become engaged as APS employees;
or
(iii) a class of the persons who are to
be or who have become engaged as APS employees that includes the person; and
(b) in accordance with a determination under
subsection 24 (1) of the Act to the effect that some or all of the remuneration
and other conditions of employment are to be the same as those that applied to
the person immediately before the person ceased to be employed as a non‑APS
employee; and
(c) to have effect no sooner than the day when
the person becomes engaged as an APS employee.
Note A determination by an Agency Head under subsection 24 (1)
of the Act is of no effect to the extent that it would reduce the benefit to an
APS employee of a condition of employment applicable to the employee under the Australian Fair Pay and Conditions
Standard or an award, workplace agreement, pre‑reform certified agreement, AWA or pre‑reform AWA.
(3) However, if:
(a) a determination
mentioned in paragraph (2) (b) applies to the APS employee; and
(b) an employment
arrangement:
(i) commences
on or after the day when the person becomes engaged as an APS employee; and
(ii) applies
on its face to the person as an APS employee or a class of APS employees that
includes the person;
the determination mentioned in paragraph (2) (b) ceases to apply to
the APS employee, and the conditions of employment under the employment
arrangement apply to the APS employee.
Part 8A Attachment of salaries to satisfy judgment debts
8A.1 Definitions
(1) In this Part:
debtor means a Secretary, a Head of an
Executive Agency, or an APS employee who owes a judgment debt.
net salary has the meaning given by
subregulation (2).
paying officer, in relation to a debtor,
means a person appointed under regulation 8A.4 who is responsible for dealing
with the debtor.
total gross salary has the meaning given by
subregulation (3).
(2) The net salary
of a debtor is the debtor’s total gross salary, less any amount to be deducted:
(a) to pay income tax; or
(b) to pay child support in accordance with the Child
Support (Assessment) Act 1989; or
(c) as a contribution that:
(i) the debtor is required to make to
a superannuation fund relating to the debtor’s engagement in the Agency; and
(ii) is the minimum amount required by
law or the rules of the fund.
(3) The total gross salary of a debtor is
the amount of:
(a) the debtor’s gross salary as a Secretary, a
Head of an Executive Agency or an APS employee (not including any payment of
compensation under the Safety, Rehabilitation and Compensation Act 1988);
and
(b) the allowances, in the nature of salary, that
are paid regularly to the debtor;
without any reduction for salary sacrifice arrangements or other
arrangements with a similar purpose.
8A.2 Application
of Part 8A
This Part does not apply in relation to a debtor:
(a) whose estate has been sequestrated, either
voluntarily or compulsorily, for the benefit of creditors; and
(b) who has not yet obtained a certificate of
discharge.
8A.3 Application of State and Territory law
A law of a State or a Territory that deals with
satisfying a judgment debt:
(a) applies to a debtor’s judgment debt to the
extent that the law deals with the calculation of interest on the debt; and
(b) does not apply to the judgment debt for any
other purpose.
8A.4 Paying officer
(1) If an Agency Head believes that the making of
deductions from a debtor’s salary is required, the Agency Head must appoint
1 or more persons as paying officers for the purpose of making those
deductions.
(1A) However, if the Agency
Head is the debtor:
(a) the Agency Head must not appoint a paying
officer under subregulation (1); and
(b) the Agency Head must act under this
subregulation without considering whether the making of deductions from the
Agency Head’s salary is required; and
(c) the Agency Head must, in writing, delegate
his or her power under subregulation (1) to appoint a paying officer to an SES
employee in the Agency; and
(d) the SES employee
must:
(i) decide whether the making of
deductions from the Agency Head’s salary is required; and
(ii) if the SES employee decides that
the making of the deductions is required — appoint a person as a paying
officer for the purpose of making those deductions; and
(e) the Agency
Head must not take any action, or make any arrangement, in relation to the
administration under this Part of the Agency Head’s debt, other than:
(i) making the delegation mentioned in
paragraph (c); and
(ii) if a paying officer is
appointed — assisting the paying officer in the repayment of the debt.
(2) If a person is appointed as a paying officer:
(a) the appointment authorises the person to act
as a paying officer only in relation to the debtor to whom the appointment relates;
and
(b) the person is responsible for making
deductions from the debtor’s salary to satisfy the judgment debt against the
debtor.
(3) A debtor is not authorised to be the paying officer
for himself or herself.
8A.5 Authority to make deductions
(1) Deductions from a debtor’s salary in order to
satisfy a judgment debt may be started only if:
(a) the paying officer has received a statutory
declaration, made by the judgment creditor, that the judgment debt exists and
has not been discharged; and
(b) the paying officer has received a copy of the
judgment to which the judgment debt relates, certified by the Registrar or
other appropriate officer of the relevant court; and
(c) the paying officer has received the fee (if
any) required under regulation 8A.6; and
(d) the paying officer has given the debtor a
notice in accordance with subregulation (2); and
(e) the debtor does not, within the time
specified in the notice given under subregulation (2), satisfy the paying
officer that the judgment debt has been satisfied.
Note Regulation 8A.7 deals with cases
where there are 2 or more judgment debts against a debtor.
(2) The paying officer
must:
(a) notify the debtor, as soon as practicable,
that it is proposed to make the deductions; and
(b) require the debtor to state, in writing, by a
time specified in the notice, whether the judgment has been satisfied, and:
(i) if the judgment debt has been
satisfied — to give the paying officer evidence in support of that fact;
and
(ii) if the judgment debt has not been
satisfied — to state the amount due under the judgment at the time the
statement is made.
(3) If the debtor does not give the paying officer
evidence that the judgment debt has been satisfied by the time specified in the
notice under subregulation (2), the paying officer must deduct from the
debtor’s salary on each pay day for the debtor an amount equal to:
(a) the deduction required under regulation
8A.9; or
(b) a lesser amount that, in the paying officer’s
opinion, is needed to satisfy the balance of the judgment debt.
(4) After making the first deduction, the paying officer
is authorised to continue to make deductions only if the paying officer has no
reason to believe that the judgment debt has been discharged.
(5) The paying officer must ensure that the amount of
each deduction is paid to the judgment creditor.
8A.6 Administration fee
(1) A judgment creditor (other than the Commonwealth)
who requests the payment of a judgment debt must pay a fee of $38 for the
making of the deductions.
(2) The fee is the price of the supply of a service for
the purposes of the A New Tax System (Goods and Services Tax) Act 1999.
(3) If a judgment creditor (other than the Commonwealth)
requests the payment of a judgment debt, but does not pay the fee when making
the request, the paying officer must notify the judgment creditor that:
(a) the fee is payable for making the
deductions; and
(b) no deductions will be made unless the fee is
paid.
8A.7 More than 1 judgment debt
(1) If more than 1 judgment debt exists against a
debtor, the paying officer:
(a) must deal with the judgment debts in the
order in which requests for deductions were received; and
(b) must not make a deduction for the purposes of
a particular judgment debt until all judgment debts for which earlier requests
were made have been satisfied.
(2) If the paying officer receives 2 or more requests at
the same time for the payment of judgment debts against a debtor, the paying
officer must deal with the judgment debts in the order of the dates and times
at which judgment was given for each debt, starting with the earliest judgment.
8A.8 Effect of deductions
If an amount is paid to a judgment creditor after a
deduction is made from the debtor’s salary on a pay day for the debtor:
(a) an amount equal to that amount is taken to
have been paid by the Commonwealth to the debtor on account of salary payable
to the debtor on that pay day; and
(b) an amount equal to that amount is taken to
have been paid by the debtor to the judgment creditor for the purposes of the
judgment debt.
8A.9 Rate of deductions
(1) For paragraph 8A.5 (3) (a), the rate at which a
deduction is to be made from the debtor’s net salary on a pay day for the
debtor is 20% unless subregulation (2), (3) or (4) applies.
(2) If the paying officer is satisfied that the debtor:
(a) is suffering serious financial hardship; or
(b) would suffer
serious financial hardship if the rate of deduction is not reduced;
the paying officer may reduce the rate at which deductions are to
be made.
(3) If the debtor asks the paying officer, in writing,
to make deductions at a rate greater than 20% of the debtor’s net salary, the
paying officer must comply with the request as soon as practicable.
(4) If:
(a) deductions are being made at a rate greater
than 20% of the debtor’s net salary; and
(b) the debtor asks a paying officer, in writing,
to reduce the rate of the deductions;
the paying officer must reduce the rate as soon as practicable, but
is not required to reduce the rate to less than 20%.
8A.10 Move to another Agency
(1) If a debtor moves from an Agency (Agency 1)
to another Agency (Agency 2), the debtor’s paying officer in
Agency 1 must notify the Agency Head of Agency 2 of:
(a) the existence of each judgment debt against
the debtor; and
(b) the arrangements in Agency 1 for making
deductions from the debtor’s salary; and
(c) any deductions made for the purposes of each
of those judgment debts.
(2) If more than 1 judgment
debt exists against the debtor:
(a) the debtor’s
paying officer in Agency 1 must advise the Agency Head of the order in which
the judgment debts were to have been dealt with in accordance with regulation
8A.7; and
(b) the paying officer
who is appointed in Agency 2 in relation to the debtor must deal with the judgment
debts in that order.
(3) The
paying officer in Agency 2 is taken:
(a) to have received the statutory declaration,
and copy of the judgment, mentioned in regulation 8A.5; and
(b) to have received the fee (if any) required
under regulation 8A.6; and
(c) to have given to the debtor any notice that
was given, in respect of the debtor, by a paying officer in another Agency.
(4) The paying officer in Agency 2 must notify the
judgment creditor of the move, and the deductions that the paying officer will make.
(5) The judgment creditor is not required to pay another
fee for the making of deductions.
8A.11 Administration of deductions
(1) A paying officer in relation to a debtor may:
(a) require the judgment creditor to confirm
that the judgment debt has not been discharged; and
(b) suspend the making of deductions until the
paying officer receives the confirmation.
(2) If a debtor’s employment ceases, or is terminated,
for any reason (including the debtor’s death) the paying officer must notify
the judgment creditor of the cessation or termination as soon as practicable.
8A.12 Recovery of overpayment
If a payment made to a judgment creditor for the
purposes of a judgment debt exceeds the amount due under the judgment, the
excess is repayable by the judgment creditor to the debtor.
Part 9 Miscellaneous
9.2 Release
of personal information (Act s 76)
(1) For the purposes of
paragraph 76 (a) of the Act, an Agency Head may disclose personal information
(within the meaning of the Privacy Act 1988) that is in the possession,
or under
the control, of the Agency Head in any of the following circumstances:
(a) the disclosure is necessary for the
performance or exercise of the employer powers of the Agency Head or another
Agency Head;
(b) the disclosure is necessary for the
performance of a function of the Public Service Commissioner or the Merit
Protection Commissioner;
(c) the disclosure is necessary for the
performance of a function of an ISAC;
(d) the disclosure is necessary for the review of
APS action, or action of a statutory office holder, by:
(i) a PRC; or
(ii) the Merit Protection Commissioner;
or
(iii) a person nominated, or a
committee constituted, by the Merit Protection Commissioner to conduct the
review;
(e) the disclosure is necessary for the
performance of an outsourced personnel function.
(2) For the purposes of paragraph 76 (b) of the Act, personal information that is
disclosed by an Agency Head for the performance of an outsourced personnel
function must not be further disclosed without the Agency Head’s written
authority.
(3) A disclosure under subregulation (1) must be
consistent with any guidelines issued by the Public Service Commissioner after
consultation with the Privacy Commissioner.
(4) A disclosure of
personal information in accordance with subregulation (1) or (2) is an
authorised disclosure for
the purposes of paragraph 1 (d) of Information Privacy Principle 11 set out in
section 14 of the Privacy Act 1988.
(5) In this regulation:
outsourced personnel function means a
personnel function that was performed in the APS, but is being performed
outside the APS under a contract at the time of the proposed disclosure.
Note The Freedom of Information Act
1982 and the Privacy Act 1988 have rules about the disclosure of
personal information.
9.3 Delegations
(1) The Commissioner may, in writing, delegate to a
person any
of the Commissioner’s powers or functions under these Regulations (other than
this regulation).
(2) The Merit Protection Commissioner may, in writing,
delegate to a person any of the Merit Protection Commissioner’s
powers or functions under these Regulations (other than
this regulation).
(3) An Agency Head may, in writing, delegate to a person
any
of the Agency Head’s powers or functions under these Regulations (other than
this regulation).
(4) However, an Agency Head cannot delegate powers or
functions to an outsider without the prior written consent of the Commissioner.
(5) A person (the first delegate) to whom
powers or functions are delegated under subregulation (3) may, in writing,
delegate any of the powers or functions to another person (the second
delegate).
(6) However, if the first delegate is subject to
directions about the exercise of a power or function delegated under
subregulation (5), the first delegate must give corresponding directions to the
second delegate.
(7) A power or function
that is exercised or performed by a person under a delegation under
subregulation (5) is taken, for these Regulations, to have been exercised or
performed by the person who originally delegated the corresponding power or
function under subregulation (3).
(8) A person exercising powers or functions under a
delegation under this regulation must comply with any directions of the person
who delegated the power or function.
(9) In this regulation:
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.