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These Regulations are the Public Service Regulations 1999.

These Regulations commence on the commencement of the Public Service Act 1999.

(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)

For the purposes of subsection 13 (13) of the Act, an APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head's express authority, give or disclose, directly or indirectly, to any person any information about public business or anything of which the employee has official knowledge.

Note Under s 70 of the Crimes Act 1914, it is an offence for an APS employee to publish or communicate the information.

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

(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

(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

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

(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) Notice of the approval of a scheme must be published in the Gazette within 14 days after the day when the scheme is approved.

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

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

(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

(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

(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.

3.7 Limitations on extension of specified terms of engagement of certain non-SES employees (Act s 22)

(1) This regulation applies to a term employee who becomes a non-SES employee in accordance with subsection 5 (7) of the Public Employment (Consequential and Transitional) Amendment Act 1999.

(2) The total term of the employee’s engagement includes the period of the employee’s continuous engagement under section 82AD, 82AE or 82AG of the Public Service Act 1922 (the original engagement) that ended immediately before the commencing time (within the meaning of the Public Employment (Consequential and Transitional) Amendment Act 1999).

(3) For the purposes of subsection 22 (5) of the Act, the extension of the original engagement for a specified term is subject to the limitations set out in subregulations (4) and (5).

(4) The employee’s engagement must not be extended if the total term of the original engagement is greater than the term specified in the item in the table in subregulation 3.5 (2) in which the specified reason corresponds to the reason for the original engagement.

(5) The employee’s engagement must not be extended unless:

(a) the reason for the original engagement continues to exist; and

(b) if the term of the original engagement is less than 12 months and, as a result of the extension, the total term of the engagement would be more than 12 months — the opportunity to apply for the original engagement, or for the engagement for the period of the proposed extension, was notified in the Gazette as open to all eligible members of the community, whether or not they were APS employees; and

(d) the Agency cannot fully meet its objectives by using the services of an ongoing APS employee in the Agency; and

(e) the Agency Head certifies that extension of the engagement is in the public interest.

(6) In this regulation:

term employee has the meaning given by section 4 of the Public Employment (Consequential and Transitional) Amendment Act 1999.

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) 4 weeks after the promotion is notified in the Gazette; 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.

(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) 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

(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 1 Division 5.2 provides for review of certain APS promotion decisions by a PRC.

Note 2 Regulation 3.12 provides for promotions of ongoing APS employees to be notified in the Gazette.

3.9 Voluntary moves between Agencies (Act s 26)

(1) This regulation applies if an Agency Head (the new Agency Head) enters into a written agreement with an ongoing APS employee for the employee to move to the Agency Head’s Agency from another Agency (the current Agency).

(2) If the move is not a promotion, the APS employee must tell the Agency Head of the current Agency (the current Agency Head) about the agreement before the end of the next working day after the agreement is made.

(3) If the move is not a promotion, it takes effect:

(a) 4 weeks after the day when the current Agency Head is told of the agreement; or

(b) if another date of effect is agreed between the new Agency Head, current Agency Head and employee — on the agreed date of effect.

(4) Subregulation (3) has effect in relation to the move of an SES employee subject to any directions issued by the Commissioner under section 36 of the Act.

(5) If the move is a promotion, it takes effect as provided by regulation 3.8.

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 award, certified agreement or AWA sets out procedures that apply to the termination of the employment of the non‑ongoing APS employee, the procedures apply to the termination of the engagement of the employee.

(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 Gazette of certain employment decisions

The following decisions must be notified in the Gazette:

(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;

(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;

(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;

(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 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) decision of a PRC on review of a promotion decision under Division 5.2 of these Regulations.

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;

(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 Agency Head of the Agency in which the person was employed when the person resigned.

(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):

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) The period between the person’s resignation and again being engaged as an APS employee is to be recognised as service for the purposes of the accrual of leave entitlements.

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

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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

(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

(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) The engagement, promotion or assignment of duties must be notified in the 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) The promotion must be notified in the Gazette as a promotion decision that is subject to review under that Division.

4.12 Offence

A person must not obstruct an ISAC in carrying out its functions under this Part.

Penalty: 10 penalty units.

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 responsibilities and powers of Agency Heads and the Merit Protection Commissioner in relation to review of APS actions;

Note Certain reporting powers for the Merit Protection Commissioner are set out in subs 33 (6) of the Act.

5.3 Review of certain promotion decisions

Division 5.2 provides for applications for review of certain promotion 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 subr 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) directions given by the Public Service Commissioner under subsection 11 (1) of the Act; and

Division 5.2 Review of certain APS promotion decisions

5.6 Application of Division 5.2

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

5.7 Entitlement for review

An ongoing APS employee who applied for promotion to the relevant employment is entitled to apply to the Merit Protection Commissioner to have the promotion decision reviewed by a Promotion Review Committee.

5.8 Grounds for review

A promotion 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 the period specified in the Gazette as part of notifying the promotion or within any extension of time given by the Merit Protection Commissioner to a class of employees before the end of that period; and

(ii) at the place notified in the Gazette.

(2) The making of an application for review of a promotion decision under this Division operates to stay the decision until it takes effect in accordance with regulation 3.8.

5.10 Appointment of PRC

(1) If the Merit Protection Commissioner receives an application for review of a promotion decision under this Division, the Merit Protection Commissioner must appoint a PRC to deal with the application.

(2) If more than 1 application is received in relation to a particular promotion decision, the applications are to be dealt with by the same PRC.

(3) A particular PRC may deal with applications in relation to more than 1 promotion 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

(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 to the relevant employment.

(2) The statement must be given within 14 days after the application for review is made or notice of the application is received, as the case requires.

(3) However if:

(a) within that 14 days the applicant or the person promoted 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, a PRC must:

(a) assess the relative merits of the person promoted, and each applicant for review of the promotion 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 decision should be upheld; or

(ii) the applicant for review or, if there is more than 1 applicant, a particular applicant for review should be promoted to the relevant employment.

(2) The PRC must tell the relevant Agency Head 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.

(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 1 Regulation 3.8 provides for the date of effect of a PRC decision.

Note 2 Regulation 3.12 provides for a PRC’s decision to be notified in the Gazette.

(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.

5.21 Offence

A person must not obstruct a PRC in carrying out its functions under this Division.

Penalty: 10 penalty units.

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

(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;

(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

(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

(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

(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

(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

(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

(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

(3) Subregulation (2) does not limit the employer powers of the Agency Head in relation to the action or the affected employee.

Example

(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

A person must not obstruct a person or committee conducting a review in carrying out its functions under this Division.

Penalty: 10 penalty units.

Part 6 The Public Service Commissioner

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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;

(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.

(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;

(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

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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

(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

(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

(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 a Review Committee established under paragraph 33 (4) (d) of the Act;

(d) a person acting under the direction or authority of the Merit Protection Commissioner;

(e) 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.

(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 section 33 or paragraph 50 (1) (a) of the Act.

Penalty: 10 penalty units.

(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

(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.

(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;

(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

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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

Note A determination by an Agency Head under subs 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 an award, certified agreement or AWA.

(4) However, if:

(a) a determination mentioned in paragraph (3) (b) applies to the APS employee; and

(b) an award, certified agreement or AWA:

(i) commences on or after the day when the APS employee moves; and

(ii) applies on its face to the APS employee or to 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 award, certified agreement or AWA (as the case may be) 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

(3) However, if:

(a) a determination mentioned in paragraph (2) (b) applies to the person; and

(b) an award, certified agreement or AWA:

(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 to a class of APS employees that includes the person;

the determination mentioned in paragraph (2) (b) ceases to apply to the person, and the remuneration and other conditions of employment under the award, certified agreement or AWA (as the case may be) apply to the person.

Part 9 Miscellaneous

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9.1 Attachment of salaries to satisfy judgment debts (Act s 75)

(1) An Agency may make deductions from the salary of any of the following persons in order to satisfy a judgment debt:

(a) if the Agency is a Department — the Secretary;

(b) if the Agency is an Executive Agency — the Head of the Agency;

(2) A fee of $35 is payable in connection with the deductions made under subregulation (1) for a particular judgment debt.

(3) The fee is payable by the person to whom the judgment debt is owed.

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;

(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.