PUBLIC SERVICE AMENDMENT BILL 2012

i Public Service Amendment Bill 2012 No. , 2012

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Amendment of the Public Service Act 1999

Part 1--Secretaries

Public Service Act 1999

Part 2--Secretaries Board

Public Service Act 1999

Part 3--Senior Executive Service

Public Service Act 1999

Part 4--The Australian Public Service Commissioner

Public Service Act 1999

Part 5--Special Commissioners

Public Service Act 1999

Part 6--APS Values and APS Employment Principles

Public Service Act 1999

Part 7--Code of Conduct

Public Service Act 1999

Part 8--Whistleblower reports

Public Service Act 1999

Part 9--Review of actions

Public Service Act 1999

Part 10--Temporary APS employees

Public Service Act 1999

Part 11--Machinery of government changes

Public Service Act 1999

Part 12--Confidentiality of information

Public Service Act 1999

Public Service Amendment Bill 2012 No. , 2012 ii

Part 13--Immunity from suit

Public Service Act 1999

Part 14--Legislative instruments

Public Service Act 1999

Part 15--Miscellaneous amendments

Public Service Act 1999

Schedule 2--Repeal

Public Employment (Consequential and Transitional) Amendment Act

1999

Schedule 3--Amendment of other Acts

Australian Federal Police Act 1979

Australian Law Reform Commission Act 1996

Family Law Act 1975

Ombudsman Act 1976

Parliamentary Service Act 1999

Privacy Act 1988

Remuneration Tribunal Act 1973

Superannuation Act 1976

Superannuation Act 1990

Schedule 4--Application, saving and transitional provisions

Part 1--Preliminary

Part 2--Secretaries

Part 3--Senior Executive Service

Part 4--The Australian Public Service Commissioner

Part 5--APS Values and APS Employment Principles

Part 6--Code of Conduct

Part 7--Whistleblower reports

Part 8--Review of actions

Part 9--Temporary APS employees

Public Service Amendment Bill 2012 No. , 2012 1

A Bill for an Act to amend the Public Service Act

1999, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Public Service Amendment Act 2012.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Public Service Amendment Bill 2012 No. , 2012

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedules 1, 2,

3 and 4

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendment of the Public Service Act 1999 Schedule 1

Secretaries Part 1

Public Service Amendment Bill 2012 No. , 2012 3

Schedule 1--Amendment of the Public

Service Act 1999

Part 1--Secretaries

Public Service Act 1999

1 Sections 57, 58, 59 and 60

Repeal the sections, substitute:

57 Roles and responsibilities of Secretaries

Roles of Secretaries

(1) The roles of the Secretary of a Department include, but are not

limited to, the following:

(a) principal official policy adviser to the Agency Minister;

(b) manager, ensuring delivery of government programs and

collaboration to achieve outcomes within the Agency

Minister's portfolio and, with other Secretaries, across the

whole of Government;

partnership with the Secretaries Board, across the APS;

(d) any other role prescribed by the regulations.

Responsibilities of Secretaries

(2) The responsibilities of the Secretary of a Department are as

follows:

(a) to manage the affairs of the Department efficiently,

effectively, economically and ethically;

(b) to advise the Agency Minister about matters relating to the

Department;

Department complies with the law;

(d) to provide leadership, strategic direction and a focus on

results for the Department;

Schedule 1 Amendment of the Public Service Act 1999

Part 1 Secretaries

4 Public Service Amendment Bill 2012 No. , 2012

(e) to maintain clear lines of communication within the Agency

Minister's portfolio, as negotiated between the Secretary and

the other Agency Heads in the portfolio;

(f) to engage with stakeholders, particularly in relation to the

core activities of the Department;

(g) to manage the affairs of the Department in a way that is not

inconsistent with the policies of the Commonwealth and the

interests of the APS as a whole;

(h) to ensure that the Agency Minister's portfolio has a strong

strategic policy capability that can consider complex,

whole-of-government issues;

(i) to assist the Agency Minister to fulfil the Agency Minister's

accountability obligations to the Parliament to provide factual

information, as required by the Parliament, in relation to the

operation and administration of the Department;

(j) such other responsibilities as are prescribed by the

regulations.

(3) Subsection (2) does not affect a Secretary's responsibilities under

any other law.

Note:

See, for example, the Financial Management and Accountability Act

1997.

58 Appointment

(1) The Secretary of a Department is to be appointed by the

Governor-General, by written instrument, on the recommendation

of the Prime Minister.

Note:

The Secretary of a Department is eligible for reappointment as the

Secretary of that Department (see section 33AA of the Acts

Interpretation Act 1901).

(2) The Secretary of a Department holds office for the period specified

in the instrument of appointment.

(3) The period of a person's appointment as the Secretary of a

Department must be:

(a) 5 years; or

(b) if the person has requested a shorter period--that shorter

period.

Amendment of the Public Service Act 1999 Schedule 1

Secretaries Part 1

Public Service Amendment Bill 2012 No. , 2012 5

(4) Subsection (3) does not apply in relation to a person who is

reappointed as the Secretary of a Department. In this case, the

person's appointment may be for any period not exceeding 5 years.

(5) The Secretary of a Department holds office on a full-time basis.

(6) Before recommending to the Governor-General that a person be

appointed as the Secretary of the Prime Minister's Department, the

Prime Minister must have received a report about the appointment

prepared by the Commissioner.

(7) Before recommending to the Governor-General that a person be

appointed as the Secretary of a Department other than the Prime

Minister's Department, the Prime Minister must have received a

report about the appointment from the Secretary of the Prime

Minister's Department.

(8) The report from the Secretary of the Prime Minister's Department

about the appointment of the Secretary of another Department

must:

(a) be prepared after consultation with:

(i) the Commissioner; and

(ii) the person who is expected to be the Agency Minister of

the other Department at the time the appointment is

made; and

(b) if the Secretary of the Prime Minister's Department and the

Commissioner disagree in relation to the proposed

appointment--explain the substance of the disagreement.

59 Termination of appointment

(1) The Governor-General may, on the recommendation of the Prime

Minister and by notice in writing, terminate the appointment of a

Secretary.

Note: In

Barratt v Howard [1999] FCA 1132, the Federal Court of Australia

described the basis on which requirements of procedural fairness

applied to the termination of an appointment of Secretary under

section 37 of the Public Service Act 1922.

(2) Before recommending to the Governor-General that the

appointment of the Secretary of the Prime Minister's Department

be terminated, the Prime Minister must have received a report

about the proposed termination from the Commissioner.

Schedule 1 Amendment of the Public Service Act 1999

Part 1 Secretaries

6 Public Service Amendment Bill 2012 No. , 2012

(3) Before recommending to the Governor-General that the

appointment of the Secretary of a Department other than the Prime

Minister's Department be terminated, the Prime Minister must

have received a report about the proposed termination from the

Secretary of the Prime Minister's Department.

(4) The report from the Secretary of the Prime Minister's Department

about the proposed termination of the appointment of the Secretary

of another Department must:

(a) be prepared after consultation with the Commissioner; and

(b) if the Secretary of the Prime Minister's Department and the

Commissioner disagree in relation to the proposed

termination--explain the substance of the disagreement.

60 Engagement of former Secretaries

(1) The Prime Minister may, on behalf of the Commonwealth, engage

(otherwise than as an APS employee) a person who is a former

Secretary on terms and conditions determined by the Prime

Minister.

(2) A person is a former Secretary for the purposes of subsection (1)

if:

(a) the office of Secretary to which the person was appointed has

been abolished under subsection 56(2); or

(b) the person's appointment as Secretary has been terminated

under section 59; or

(d) the period of the person's appointment as Secretary has

ended.

2 After section 61

Insert:

61A Annual performance review

An annual review of the performance of a Secretary must be

carried out in accordance with a framework established by the

Secretary of the Prime Minister's Department and the

Commissioner.

Amendment of the Public Service Act 1999 Schedule 1

Secretaries Board Part 2

Public Service Amendment Bill 2012 No. , 2012 7

Part 2--Secretaries Board

Public Service Act 1999

3 Section 7

Insert:

Secretaries Board means the Secretaries Board established by

section 64.

4 Part 8

Repeal the Part, substitute:

Part 8--Secretaries Board

64 Secretaries Board

(1) The Secretaries Board is established by this section.

(2) The Secretaries Board consists of the following members:

(a) the Secretary of the Prime Minister's Department, as Chair;

(b) the Secretary of each other Department;

(c)

the

Commissioner;

(d) such other persons as are nominated in writing by the

Secretary of the Prime Minister's Department.

(3) The Secretaries Board has the following functions:

(a) to take responsibility for the stewardship of the APS and for

developing and implementing strategies to improve the APS;

(b) to identify strategic priorities for the APS and consider issues

that affect the APS;

develop strategies to address APS-wide issues and make

recommendations to the Secretaries Board;

(d) to draw together advice from senior leaders in government,

business and the community;

(e) to work collaboratively and model leadership behaviours.

Amendment of the Public Service Act 1999 Schedule 1

Senior Executive Service Part 3

Public Service Amendment Bill 2012 No. , 2012 9

Part 3--Senior Executive Service

Public Service Act 1999

5 Subsection 35(2)

Repeal the subsection, substitute:

(2) The function of the SES is to provide APS-wide strategic

leadership of the highest quality that contributes to an effective and

cohesive APS.

(3) For the purpose of carrying out the function of the SES, each SES

employee:

(a) provides one or more of the following at a high level:

(i) professional or specialist expertise;

(ii)

policy

advice;

(iii) program or service delivery;

(iv) regulatory administration; and

(b) promotes cooperation within and between Agencies,

including to deliver outcomes across Agency and portfolio

boundaries; and

the APS Values, the APS Employment Principles and

compliance with the Code of Conduct.

6 After subsection 37(1)

Insert:

(1A) A notice may be given to an SES employee under subsection (1)

whether or not the employee has reached the minimum retiring age

under section 30.

7 Paragraph 37(2)(b)

Omit "been compulsorily retired", substitute "retired involuntarily".

Schedule 1 Amendment of the Public Service Act 1999

Part 4 The Australian Public Service Commissioner

10 Public Service Amendment Bill 2012 No. , 2012

Part 4--The Australian Public Service Commissioner

Public Service Act 1999

8 Paragraph 3(c)

Before "Public", insert "Australian".

9 Section 7 (definition of Commissioner)

Before "Public", insert "Australian".

10 Section 7

Insert:

former APS employee means a person who was, but is no longer,

an APS employee.

11 Section 7

Insert:

special review means a review conducted by the Commissioner

under subsection 41D(1).

12 Section 7

Insert:

systems review means a review conducted by the Commissioner

under subsection 41C(1).

13 Part 5 (heading)

Repeal the heading, substitute:

Part 5--The Australian Public Service

Commissioner

14 Section 40 (heading)

Repeal the heading, substitute:

Amendment of the Public Service Act 1999 Schedule 1

The Australian Public Service Commissioner Part 4

Public Service Amendment Bill 2012 No. , 2012 11

40 Australian Public Service Commissioner

15 Subsection 40(1)

Omit "a Public", substitute "an Australian Public".

16 Section 41

Repeal the section, substitute:

41 Commissioner's functions

(1) The Commissioner has the following functions:

(a) to strengthen the professionalism of the APS and facilitate

continuous improvement in workforce management in the

APS;

(b) to uphold high standards of integrity and conduct in the APS;

between Agencies to promote high standards of

accountability, effectiveness and performance.

(2) Without limiting subsection (1), the Commissioner's functions

include the following:

(a) to foster, and contribute to, leadership, high quality learning

and development and career management in the APS;

(b) to lead the thinking about, provide advice on and drive

reforms to workforce management policies so that the APS is

ready for future demands;

policies and practices and maintain appropriate databases;

(d) to foster an APS workforce that reflects the diversity of the

Australian population;

(e) to promote the APS Values, the APS Employment Principles

and the Code of Conduct;

(f) to evaluate the extent to which Agencies incorporate and

uphold the APS Values and the APS Employment Principles;

(g) to partner with Secretaries in the stewardship of the APS;

(h) to provide advice and assistance to Agencies on public

service matters;

(i) to work with other governments (including foreign

governments) on matters relating to public sector workforce

management, leadership and career management;

Schedule 1 Amendment of the Public Service Act 1999

Part 4 The Australian Public Service Commissioner

12 Public Service Amendment Bill 2012 No. , 2012

(j) to review any matter relating to the APS;

(k) to review any matter relating to the APS referred to the

Commissioner by the Public Service Minister, and report on

that matter to the Public Service Minister;

(l) to evaluate the adequacy of systems and procedures in

Agencies for ensuring compliance with the Code of Conduct;

(m) to inquire, in accordance with section 41A, into alleged

breaches of the Code of Conduct by Agency Heads;

(n) to inquire into and determine, in accordance with

section 41B, whether an APS employee, or a former APS

employee, has breached the Code of Conduct;

(o) to inquire, subject to regulations made for the purposes of

section 16, into whistleblower reports made to the

Commissioner (or a person authorised by the Commissioner)

as referred to in that section;

(p) such other functions as are conferred on the Commissioner

by this Act, the regulations or any other law;

(q) such other functions as the Prime Minister, by legislative

instrument, directs the Commissioner to perform;

(r) to do anything incidental to or conducive to the performance

of any of the Commissioner's functions.

Note:

Neither section 42 (disallowance) nor Part 6 (sunsetting) of the

Legislative Instruments Act 2003 applies to a direction given under

paragraph (2)(q) (see sections 44 and 54 of that Act).

Reports may include recommendations

(3) A report made by the Commissioner in the performance of his or

her functions may include recommendations.

Fees

(4) The regulations may authorise the Commissioner to charge fees

(on behalf of the Commonwealth) for the performance, on request,

of the Commissioner's functions.

Amendment of the Public Service Act 1999 Schedule 1

The Australian Public Service Commissioner Part 4

Public Service Amendment Bill 2012 No. , 2012 13

41A Inquiry into alleged breach of Code of Conduct by Agency

Head

(1) The Commissioner may, for the purposes of paragraph 41(2)(m),

inquire into an alleged breach of the Code of Conduct by an

Agency Head.

(2) The Commissioner must report on the results of an inquiry under

subsection (1) (including, if relevant, recommendations for

sanctions) to:

(a) if the Agency Head is a Secretary--the Prime Minister; or

(b) if the Agency Head is the Head of an Executive Agency--the

Agency Minister; or

prescribed by the regulations for the purposes of this

paragraph--the Presiding Officers; or

(d) if the Agency Head is the Head of a Statutory Agency that is

not prescribed by the regulations for the purposes of

paragraph (c)--the Agency Minister.

(3) The regulations may prescribe circumstances in which the

Commissioner:

(a) may decline to conduct an inquiry under subsection (1); or

(b) may discontinue such an inquiry without making a report

under subsection (2).

41B Inquiry into alleged breach of Code of Conduct by APS

employee or former APS employee

Request for inquiry

(1) The Commissioner may, for the purposes of paragraph 41(2)(n),

inquire into and determine whether an APS employee, or a former

APS employee, in an Agency has breached the Code of Conduct if:

(a) the Agency Head or the Prime Minister requests the

Commissioner to do so; and

(b) the Commissioner considers it would be appropriate to do so.

(2) The Prime Minister may make a request under paragraph (1)(a) in

relation to an alleged breach of the Code of Conduct of which the

Prime Minister has become aware as a result of, or in the course of,

a systems review or a special review.

Schedule 1 Amendment of the Public Service Act 1999

Part 4 The Australian Public Service Commissioner

14 Public Service Amendment Bill 2012 No. , 2012

Procedures for inquiry

(3) The Commissioner must establish written procedures for inquiring

into and determining whether an APS employee, or a former APS

employee, in an Agency has breached the Code of Conduct

(including by engaging in conduct referred to in subsection

15(2A)). The procedures:

(a) must comply with basic procedural requirements prescribed

by the regulations; and

(b) must have due regard to procedural fairness.

(4) In addition, and without affecting subsection (3), the procedures

may be different for:

(a) different categories of APS employees or former APS

employees; or

(b) APS employees, or former APS employees, who:

(i) have been convicted of an offence against a

Commonwealth, State or Territory law in respect of

conduct that is alleged to constitute a breach of the Code

of Conduct; or

(ii) have been found to have committed such an offence but

no conviction is recorded.

(5) The Commissioner must ensure that the procedures established

under subsection (3) are made publicly available.

(6) Procedures established under subsection (3) are not legislative

instruments.

Commissioner's powers

(7) For the purposes of inquiring into and determining whether an APS

employee, or a former APS employee, in an Agency has breached

the Code of Conduct, the Commissioner may exercise the same

powers as the Agency Head may exercise in determining whether

an APS employee, or a former APS employee, in the Agency has

breached the Code of Conduct.

Report on results of inquiry

(8) The Commissioner must report on the results of an inquiry and

determination under this section (including an inquiry that is

Amendment of the Public Service Act 1999 Schedule 1

The Australian Public Service Commissioner Part 4

Public Service Amendment Bill 2012 No. , 2012 15

discontinued) in relation to an APS employee, or a former APS

employee, in an Agency to:

(a) the Agency Head; and

(b) if the Prime Minister requested the inquiry--the Prime

Minister.

Recommendation of sanctions

(9)

If:

(a) the Commissioner finds that an APS employee in an Agency

has breached the Code of Conduct; and

(b) the Commissioner is requested to recommend sanctions in

respect of the breach by:

(i) the Agency Head; or

(ii) if the Prime Minister requested the inquiry--the Prime

Minister;

the Commissioner may recommend any of the sanctions referred to

in subsection 15(1).

Note:

A sanction referred to in subsection 15(1) would be imposed on the

APS employee by the Agency Head, not by the Commissioner.

Discontinuation of inquiry

(10) The regulations may prescribe circumstances in which the

Commissioner may discontinue an inquiry under this section.

41C Systems reviews

(1) The Prime Minister may direct the Commissioner to conduct a

review (a systems review) of any matter relating to an Agency,

including:

(a) the management and organisational systems, structures or

processes in an Agency; and

(b) the functional relationships between 2 or more Agencies.

(2) An Agency Minister may request the Prime Minister to make a

direction under subsection (1) that relates to an Agency.

(3) The Secretary of a Department may request the Prime Minister to

make a direction under subsection (1) that relates to the

Department or any other Agency in the same portfolio as the

Department.

Schedule 1 Amendment of the Public Service Act 1999

Part 4 The Australian Public Service Commissioner

16 Public Service Amendment Bill 2012 No. , 2012

(4) The Commissioner must give a report on the review to:

(a) the Prime Minister; and

(b) if the review was conducted because of a request by an

Agency Minister or a Secretary--the Agency Minister or the

Secretary.

(5) If a direction under subsection (1) is given in writing, the direction

is not a legislative instrument.

41D Special reviews

(1) The Prime Minister may direct the Commissioner to conduct a

review (a special review) of:

(a) any matter relating to an Agency; or

(b) the functional relationships between 2 or more Agencies.

(2) The Commissioner must give a report on the review to:

(a) the Prime Minister; and

(b) the Agency Minister of each Agency to which the review

relates.

(3) If a direction under subsection (1) is given in writing, the direction

is not a legislative instrument.

17 Paragraph 43(1)(a)

Omit "paragraph 41(1)(a), (b) or (g)", substitute "paragraph 41(2)(c), (f)

or (l)".

18 Paragraph 43(1)(b)

Omit "paragraph 41(1)(c) or (f)", substitute "paragraph 41(2)(m) or

(o)".

19 Paragraph 43(1)(c)

Omit "paragraph 41(1)(d)", substitute "paragraph 41(2)(k)".

20 At the end of subsection 43(1)

Add:

; (d) an inquiry that is conducted by the Commissioner for the

purposes of a special review.

21 Subsection 49(2)

Amendment of the Public Service Act 1999 Schedule 1

The Australian Public Service Commissioner Part 4

Public Service Amendment Bill 2012 No. , 2012 17

Before "Public", insert "Australian".

22 Subsection 51(3)

Before "Public", insert "Australian".

23 After subsection 78(5)

Insert:

(5A) The Commissioner may, in writing, delegate to a former senior

official any of the Commissioner's powers or functions under

section 38 or paragraph 41(2)(m), (n) or (o).

24 Subsection 78(12)

Insert:

former senior official means:

(a) a person who held, but no longer holds, an office or

appointment under an Act; or

(b) a person who was, but is no longer, an SES employee, and

who does not hold an office or appointment under an Act.

Schedule 1 Amendment of the Public Service Act 1999

Part 5 Special Commissioners

18 Public Service Amendment Bill 2012 No. , 2012

Part 5--Special Commissioners

Public Service Act 1999

25 Section 7

Insert:

Special Commissioner means a Special Commissioner appointed

under section 48A.

26 At the end of Part 5

Add:

Division 3--Special Commissioners

48A Appointment of Special Commissioners

(1) The Governor-General may, by written instrument, on the

recommendation of the Prime Minister, appoint one or more

Special Commissioners to assist the Commissioner in conducting a

specified systems review or special review, or a part of such a

review.

(2) The Prime Minister must not recommend that a person be

appointed as a Special Commissioner unless the Prime Minister

has consulted the Commissioner about the appointment.

(3) A Special Commissioner may be appointed on a full-time basis or

a part-time basis.

(4) A Special Commissioner holds office for the period specified in the

instrument of appointment.

48B Remuneration and other terms and conditions of appointment

Remuneration and allowances

(1) A Special Commissioner is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, a Special

Commissioner is to be paid the remuneration that is prescribed by

the regulations.

Amendment of the Public Service Act 1999 Schedule 1

Special Commissioners Part 5

Public Service Amendment Bill 2012 No. , 2012 19

(2) A Special Commissioner is to be paid the allowances that are

prescribed by the regulations.

(3) Subsections (1) and (2) have effect subject to the Remuneration

Tribunal Act 1973.

Leave of absence

(4) A full-time Special Commissioner has the recreation leave

entitlements that are determined by the Remuneration Tribunal.

(5) The Prime Minister may grant a full-time Special Commissioner

leave of absence, other than recreation leave, on the terms and

conditions as to remuneration or otherwise that the Prime Minister

determines.

(6) The Prime Minister may grant leave of absence to a part-time

Special Commissioner on the terms and conditions that the Prime

Minister determines.

Other terms and conditions

(7) A Special Commissioner holds office on the terms and conditions

(if any) in relation to matters not covered by this Act that are

determined by the Prime Minister.

48C Termination of appointment

(1) The Governor-General may, by notice in writing, on the

recommendation of the Prime Minister, terminate the appointment

of a Special Commissioner at any time.

(2) The Prime Minister must not recommend that the appointment of a

Special Commissioner be terminated unless the Prime Minister has

consulted the Commissioner about the termination.

Schedule 1 Amendment of the Public Service Act 1999

Part 6 APS Values and APS Employment Principles

20 Public Service Amendment Bill 2012 No. , 2012

Part 6--APS Values and APS Employment Principles

Public Service Act 1999

27 Section 7

Insert:

APS Employment Principles means the principles in section 10A.

28 Section 10

Repeal the section, substitute:

10 APS Values

Committed to service

(1) The APS is professional, objective, innovative and efficient, and

works collaboratively to achieve the best results for the Australian

community and the Government.

Ethical

(2) The APS demonstrates leadership, is trustworthy, and acts with

integrity, in all that it does.

Respectful

(3) The APS respects all people, including their rights and their

heritage.

Accountable

(4) The APS is open and accountable to the Australian community

under the law and within the framework of Ministerial

responsibility.

Impartial

(5) The APS is apolitical and provides the Government with advice

that is frank, honest, timely and based on the best available

evidence.

Amendment of the Public Service Act 1999 Schedule 1

APS Values and APS Employment Principles Part 6

Public Service Amendment Bill 2012 No. , 2012 21

10A APS Employment Principles

APS Employment Principles

(1) The APS is a career-based public service that:

(a) makes fair employment decisions with a fair system of

review; and

(b) recognises that the usual basis for engagement is as an

ongoing APS employee; and

are based on merit; and

(d) requires effective performance from each employee; and

(e) provides flexible, safe and rewarding workplaces where

communication, consultation, cooperation and input from

employees on matters that affect their workplaces are valued;

and

(f) provides workplaces that are free from discrimination,

patronage and favouritism; and

(g) recognises the diversity of the Australian community and

fosters diversity in the workplace.

Decisions based on merit

(2) For the purposes of paragraph (1)(c), a decision relating to

engagement or promotion is based on merit if:

(a) all eligible members of the community were given a

reasonable opportunity to apply to perform the relevant

duties; and

(b) an assessment is made of the relative suitability of the

candidates to perform the relevant duties, using a competitive

selection process; and

candidates' work-related qualities and the work-related

qualities genuinely required to perform the relevant duties;

and

(d) the assessment focuses on the relative capacity of the

candidates to achieve outcomes related to the relevant duties;

and

(e) the assessment is the primary consideration in making the

decision.

Schedule 1 Amendment of the Public Service Act 1999

Part 6 APS Values and APS Employment Principles

22 Public Service Amendment Bill 2012 No. , 2012

Note:

Commissioner's Directions may determine the scope or application of

the APS Employment Principles (see subsections 11A(2) and (3)).

29 Subsection 11(1)

Omit "must issue directions in writing in relation to each", substitute

"may issue directions in writing in relation to any".

30 At the end of subsection 11(1)

Add:

Note:

See section 42 for general provisions relating to Commissioner's

Directions.

31 Section 12

Repeal the section, substitute:

12 Agency Heads must promote APS Values and APS Employment

Principles

An Agency Head must uphold and promote the APS Values and

APS Employment Principles.

32 Section 17

Repeal the section.

33 Section 18

Omit "APS Values", substitute "APS Employment Principles".

34 At the end of subsection 22(2)

Add:

Note:

The usual basis for engagement is as an ongoing APS employee (see

paragraph 10A(1)(b)).

35 Subsection 22(3)

Repeal the subsection.

36 At the end of section 39

Add:

(3) The APS Employment Principles do not apply to giving, or

carrying out, a direction referred to in subsection (2).

Amendment of the Public Service Act 1999 Schedule 1

Code of Conduct Part 7

Public Service Amendment Bill 2012 No. , 2012 23

Part 7--Code of Conduct

Public Service Act 1999

37 Subsections 13(1) to (4)

Omit "the course of", substitute "connection with".

38 Subsection 13(11)

Repeal the subsection, substitute:

(11) An APS employee must at all times behave in a way that upholds:

(a) the APS Values and APS Employment Principles; and

(b) the integrity and good reputation of the employee's Agency

and the APS.

39 Section 14 (heading)

Repeal the heading, substitute:

14 Agency Heads and statutory office holders bound by Code of

Conduct

40 Subsection 14(2)

Repeal the subsection, substitute:

(2) Statutory office holders are bound by the Code of Conduct, subject

to any regulations made under subsection (2A).

(2A) The regulations may make provision in relation to the extent to

which statutory office holders are bound by the Code of Conduct.

Note:

The regulations may make different provision with respect to different

statutory office holders or different classes of statutory office holders

(see subsection 33(3A) of the Acts Interpretation Act 1901).

41 Before subsection 15(1)

Insert:

Sanctions that may be imposed

42 Subsection 15(1)

Schedule 1 Amendment of the Public Service Act 1999

Part 7 Code of Conduct

24 Public Service Amendment Bill 2012 No. , 2012

After "subsection (3)", insert "of this section or subsection 41B(3) or

50A(2)".

43 At the end of subsection 15(1)

Add:

Note:

See sections 29 and 38 in relation to terminating an APS employee's

employment.

44 Subsections 15(3), (4) and (5)

Repeal the subsections, substitute:

Providing false or misleading information etc. in connection with

engagement as an APS employee

(2A) A person who is, or was, an APS employee is taken to have

breached the Code of Conduct if the person is found (under

procedures established under subsection (3) of this section or

subsection 41B(3) or 50A(2)) to have, before being engaged as an

APS employee:

(a) knowingly provided false or misleading information to

another APS employee, or to a person acting on behalf of the

Commonwealth; or

(b) wilfully failed to disclose to another APS employee, or to a

person acting on behalf of the Commonwealth, information

that the person knew, or ought reasonably to have known,

was relevant; or

in connection with the person's engagement as an APS employee.

Note:

If the person is an APS employee at the time a finding referred to in

paragraph (2A)(a), (b) or (c) is made in relation to the person, the

Agency Head of the employee's Agency may impose sanctions on the

person as permitted by subsection (1).

Procedures for determining whether APS employee, or former APS

employee, has breached the Code of Conduct etc.

(3) An Agency Head must establish written procedures in accordance

with this section for determining:

(a) whether an APS employee, or a former APS employee, in the

Agency has breached the Code of Conduct (including by

engaging in conduct referred to in subsection (2A)); and

Amendment of the Public Service Act 1999 Schedule 1

Code of Conduct Part 7

Public Service Amendment Bill 2012 No. , 2012 25

(b) the sanction (if any) that is to be imposed under

subsection (1) on an APS employee in the Agency who is

found to have breached the Code of Conduct (including by

engaging in conduct referred to in subsection (2A)).

(4)

The

procedures:

(a) must comply with basic procedural requirements set out in

Commissioner's Directions; and

(b) must have due regard to procedural fairness.

(5) In addition, and without affecting subsection (4), the procedures

may be different for:

(a) different categories of APS employees or former APS

employees; or

(b) APS employees, or former APS employees, who:

(i) have been convicted of an offence against a

Commonwealth, State or Territory law in respect of

conduct that is alleged to constitute a breach of the Code

of Conduct; or

(ii) have been found to have committed such an offence but

no conviction is recorded.

(6) The Commissioner must issue directions in writing for the

purposes of paragraph (4)(a).

Note:

See section 42 for general provisions relating to Commissioner's

Directions.

(7) An Agency Head must ensure that the procedures established

under subsection (3) are made publicly available.

(8) Procedures established under subsection (3) are not legislative

instruments.

45 Section 19

After "under", insert "section 15 or 16 or".

46 After paragraph 50(1)(c)

Insert:

(ca) to inquire into and determine, in accordance with

section 50A, whether an APS employee, or a former APS

employee, has breached the Code of Conduct;

Schedule 1 Amendment of the Public Service Act 1999

Part 7 Code of Conduct

26 Public Service Amendment Bill 2012 No. , 2012

47 After section 50

Insert:

50A Inquiry into alleged breach of Code of Conduct by APS

employee or former APS employee

Request for inquiry

(1) The Merit Protection Commissioner may, for the purposes of

paragraph 50(1)(ca), inquire into and determine whether an APS

employee, or a former APS employee, has breached the Code of

Conduct if:

(a) the Agency Head requests the Merit Protection

Commissioner to do so; and

(b) the Merit Protection Commissioner considers it would be

appropriate to do so; and

writing, to the Merit Protection Commissioner doing so.

Note:

A finding by the Merit Protection Commissioner under this section is

reviewable under the Administrative Decisions (Judicial Review) Act

1977.

Procedures for inquiry

(2) The Merit Protection Commissioner must establish written

procedures for inquiring into and determining whether an APS

employee, or a former APS employee, has breached the Code of

Conduct (including by engaging in conduct referred to in

subsection 15(2A)). The procedures:

(a) must comply with basic procedural requirements prescribed

by the regulations; and

(b) must have due regard to procedural fairness.

Note:

The procedures may make different provision for different classes of

APS employees or former APS employees (see subsection 33(3A) of

the Acts Interpretation Act 1901).

(3) In addition, and without affecting subsection (2), the procedures

may be different for:

(a) different categories of APS employees or former APS

employees; or

(b) APS employees, or former APS employees, who:

Amendment of the Public Service Act 1999 Schedule 1

Code of Conduct Part 7

Public Service Amendment Bill 2012 No. , 2012 27

(i) have been convicted of an offence against a

Commonwealth, State or Territory law in respect of

conduct that is alleged to constitute a breach of the Code

of Conduct; or

(ii) have been found to have committed such an offence but

no conviction is recorded.

(4) The Merit Protection Commissioner must ensure that the

procedures established under subsection (2) are made publicly

available.

(5) Procedures established under subsection (2) are not legislative

instruments.

Merit Protection Commissioner's powers

(6) For the purposes of inquiring into and determining whether an APS

employee, or a former APS employee, in an Agency has breached

the Code of Conduct, the Merit Protection Commissioner may

exercise the same powers as the Agency Head may exercise in

determining whether an APS employee, or a former APS

employee, in the Agency has breached the Code of Conduct.

Report on results of inquiry

(7) The Merit Protection Commissioner must report on the results of

an inquiry and determination under this section to the Agency

Head who requested the inquiry.

Note:

If the Merit Protection Commissioner finds that an APS employee in

an Agency has breached the Code of Conduct, the Agency Head may

impose a sanction on the APS employee under subsection 15(1).

Schedule 1 Amendment of the Public Service Act 1999

Part 8 Whistleblower reports

28 Public Service Amendment Bill 2012 No. , 2012

Part 8--Whistleblower reports

Public Service Act 1999

48 Section 16 (heading)

Repeal the heading, substitute:

16 Whistleblower reports

49 Section 16 (after the heading)

Insert:

Protection for whistleblowers

50 Section 16

Before "A person", insert "(1)".

51 Paragraph 16(b)

Omit "Commissioner.", substitute "Commissioner; or".

52 At the end of section 16

Add:

Whistleblower reports made to Agency Heads etc.

(2) An Agency Head must establish procedures for:

(a) an APS employee to make a report (a whistleblower report)

of a breach (or an alleged breach) of the Code of Conduct to

the Agency Head or to a person authorised for the purposes

of this section by the Agency Head; and

(b) an Agency Head to deal with a whistleblower report made to

the Agency Head or to a person authorised for the purposes

of this section by the Agency Head.

Note:

The procedures may be in a single document.

(3) Procedures established under subsection (2) must comply with

basic procedural requirements (if any) prescribed by the

regulations.

Amendment of the Public Service Act 1999 Schedule 1

Whistleblower reports Part 8

Public Service Amendment Bill 2012 No. , 2012 29

(4) Procedures established under subsection (2) are not legislative

instruments.

Whistleblower reports made to the Commissioner or Merit

Protection Commissioner etc.

(5) The regulations may prescribe either or both of the following:

(a) procedures for an APS employee to make a report (also a

whistleblower report) of a breach (or an alleged breach) of

the Code of Conduct to the Commissioner or the Merit

Protection Commissioner or to a person authorised for the

purposes of this section by the Commissioner or the Merit

Protection Commissioner;

(b) basic procedural requirements that the Commissioner and the

Merit Protection Commissioner must comply with in dealing

with a whistleblower report.

Circumstances for declining to inquire, or discontinuing an

inquiry, into a whistleblower report

(6) The regulations may prescribe circumstances in which the

Commissioner, the Merit Protection Commissioner or an Agency

Head may:

(a) decline to conduct an inquiry into a whistleblower report; or

(b) discontinue an inquiry into a whistleblower report.

53 Paragraph 50(1)(a)

Repeal the paragraph, substitute:

(a) to inquire, subject to regulations made for the purposes of

section 16, into whistleblower reports made to the Merit

Protection Commissioner (or a person authorised by the

Merit Protection Commissioner) as referred to in that section;

54 Subsection 50(2)

Omit "(1)(c)", substitute "(1)(a) or (c)".

Schedule 1 Amendment of the Public Service Act 1999

Part 9 Review of actions

30 Public Service Amendment Bill 2012 No. , 2012

Part 9--Review of actions

Public Service Act 1999

55 Paragraph 33(4)(d)

Repeal the paragraph, substitute:

(d) in the case of a review following an application or referral to

the Merit Protection Commissioner--must provide for the

review to be conducted by:

(i) the Merit Protection Commissioner; or

(ii) a person nominated by the Merit Protection

Commissioner; or

(iii) a 3 member committee constituted in accordance with

the regulations.

56 Subsection 33(7) (definition of APS action)

Repeal the definition, substitute:

APS action means:

(a) action by a person in the capacity of an Agency Head or APS

employee; or

(b) action by the Commissioner under section 41B (including a

finding that an APS employee has breached the Code of

Conduct).

Amendment of the Public Service Act 1999 Schedule 1

Temporary APS employees Part 10

Public Service Amendment Bill 2012 No. , 2012 31

Part 10--Temporary APS employees

Public Service Act 1999

57 Section 7 (paragraphs (b) and (c) of the definition of

category of APS employee)

Repeal the paragraphs, substitute:

(b) temporary APS employees.

58 Section 7 (definition of non-ongoing APS employee)

Repeal the definition.

59 Section 7

Insert:

temporary APS employee means a person engaged as a temporary

APS employee, as mentioned in paragraph 22(2)(b).

60 Paragraphs 22(2)(b) and (c)

Repeal the paragraphs, substitute:

(b) as a temporary APS employee.

61 Subsections 22(4) and (5)

Repeal the subsections, substitute:

(4) The regulations may prescribe:

(a) the circumstances in which persons may be engaged as

temporary APS employees; and

(b) the maximum period for which persons may be engaged as

temporary APS employees; and

persons as temporary APS employees.

62 Subsection 29(4)

Repeal the subsection, substitute:

(4) The regulations may prescribe the grounds for the termination of

the employment of temporary APS employees.

63 Subsection 29(5)

Amendment of the Public Service Act 1999 Schedule 1

Machinery of government changes Part 11

Public Service Amendment Bill 2012 No. , 2012 33

Part 11--Machinery of government changes

Public Service Act 1999

64 Paragraph 72(1)(b)

Omit "employees of a specified Commonwealth authority", substitute

"non-APS employees of a specified Commonwealth body or

Commonwealth authority".

65 Subsection 72(3)

Omit "an employee of a Commonwealth authority", substitute "a

non-APS employee of a Commonwealth body or Commonwealth

authority".

66 At the end of subsection 72(3)

Add:

; or (d) a written contract of employment.

67 Subsection 72(4)

Repeal the subsection, substitute:

(4) Subsection (3) ceases to have effect on the next occasion when

there is a relevant change in the terms and conditions of

employment applicable to the transferred employee or a class of

employees that includes the transferred employee. For this purpose,

relevant change means a change that results from:

(a) the making, variation or termination of a modern award, an

enterprise agreement, a workplace determination or a written

contract of employment; or

(b) the variation, termination or replacement of a WR Act

transitional instrument.

68 Subsection 72(5)

Omit "remuneration and other", substitute "terms and".

69 After subsection 72(5)

Insert:

(5A)

If:

Schedule 1 Amendment of the Public Service Act 1999

Part 11 Machinery of government changes

34 Public Service Amendment Bill 2012 No. , 2012

(a) an APS employee is moved from an Agency (the former

Agency) to another Agency (the new Agency) under

paragraph (1)(a); and

(b) prescribed circumstances existed in relation to the

employee's employment in the former Agency before the

employee moved to the new Agency;

the Commissioner may determine the measures (if any) that are to

be taken in relation to those circumstances after the employee has

moved to the new Agency.

Amendment of the Public Service Act 1999 Schedule 1

Confidentiality of information Part 12

Public Service Amendment Bill 2012 No. , 2012 35

Part 12--Confidentiality of information

Public Service Act 1999

70 After Part 10

Insert:

Part 10A--Protection of information

72A Protection of information--Commissioner's functions etc.

Definitions

(1) In this section:

entrusted person means any of the following:

(a)

the

Commissioner;

(b) a delegate of the Commissioner;

Commissioner;

(d) a Special Commissioner;

(e) a member of staff assisting the Commissioner or a Special

Commissioner.

protected information means information that was obtained by an

entrusted person in connection with the performance of his or her

functions or duties, or the exercise of his or her powers, under:

(a) paragraph 41(2)(j), (k), (m), (n) or (o); or

(b) section 41A, 41B, 41C, 41D or 43; or

by the regulations for the purposes of this paragraph.

Prohibition on disclosure or other use of protected information

(2) Except as authorised by this section or the regulations, a person

who is, or was, an entrusted person must not, directly or indirectly,

make a record of, disclose or otherwise use protected information.

Note:

Section 70 of the Crimes Act 1914 creates offences in relation to the

disclosure of information by Commonwealth officers.

Schedule 1 Amendment of the Public Service Act 1999

Part 12 Confidentiality of information

36 Public Service Amendment Bill 2012 No. , 2012

Authorised disclosure or other use of protected information

(3) An entrusted person may make a record of, disclose or otherwise

use protected information for the purposes of, or in connection

with:

(a) the performance of the entrusted person's functions or duties,

or the exercise of the entrusted person's powers, under this

Act or the regulations; or

(b) the performance of the functions, or the exercise of the

powers, of the Commissioner under this Act or the

regulations.

Authorised disclosure of protected information by the

Commissioner

(4) The Commissioner may disclose protected information in a report

prepared for purposes connected with the performance of the

functions, or the exercise of the powers, of the Commissioner

under this Act or the regulations, if the Commissioner is satisfied

that the disclosure is necessary for the purpose of setting out the

grounds for the conclusions and recommendations contained in the

report.

(5) Subject to subsection (6), the Commissioner may disclose

protected information to a person, or to the public or a section of

the public, if the Commissioner is satisfied that:

(a)

the

disclosure:

(i) is in the interests of an Agency or a person; or

(ii) is in the public interest; and

(b) the disclosure is not likely to interfere with a review or

inquiry under this Act or the regulations.

(6) The Commissioner must not disclose the name of an individual, or

any other material that would enable an individual to be identified,

in protected information that is disclosed under subsection (5),

unless the Commissioner is satisfied that the disclosure is fair and

reasonable in all the circumstances.

Compellability of entrusted persons to give evidence

(7) A person who is, or was, an entrusted person is not compellable in

any proceeding:

Amendment of the Public Service Act 1999 Schedule 1

Confidentiality of information Part 12

Public Service Amendment Bill 2012 No. , 2012 37

(a) before a court (whether exercising federal jurisdiction or

not); or

(b) before a person authorised by a law of the Commonwealth or

a State or Territory, or by consent of the parties, to hear,

receive and examine evidence;

to disclose protected information that was obtained in connection

with the performance of his or her functions or duties, or the

exercise of his or her powers, under:

(d) section 41A, 41C, 41D or 43; or

(e) any other provision of this Act or the regulations prescribed

by the regulations for the purposes of this paragraph.

72B Protection of information--Merit Protection Commissioner's

functions etc.

Definitions

(1) In this section:

entrusted person means any of the following:

(a) the Merit Protection Commissioner;

(b) a delegate of the Merit Protection Commissioner;

Protection Commissioner;

(d) a member of staff assisting the Merit Protection

Commissioner;

(e) a member of a committee established or appointed by the

Merit Protection Commissioner under the regulations;

(f) any other person prescribed by the regulations for the

purposes of this paragraph.

prescribed entrusted person means an entrusted person of a kind

prescribed by regulations for the purposes of this definition.

protected information means information that was obtained by an

entrusted person in connection with the performance of his or her

functions or duties, or the exercise of his or her powers, under:

(a) subsection 50(1) or (2); or

(b) section 50A; or

Schedule 1 Amendment of the Public Service Act 1999

Part 12 Confidentiality of information

38 Public Service Amendment Bill 2012 No. , 2012

by the regulations for the purposes of this paragraph.

Prohibition on disclosure or other use of protected information

(2) Except as authorised by this section or the regulations, a person

who is, or was, an entrusted person must not, directly or indirectly,

make a record of, disclose or otherwise use protected information.

Note:

Section 70 of the Crimes Act 1914 creates offences in relation to the

disclosure of information by Commonwealth officers.

Authorised disclosure or other use of protected information

(3) An entrusted person may make a record of, disclose or otherwise

use protected information for the purposes of, or in connection

with:

(a) the performance of the entrusted person's functions or duties,

or the exercise of the entrusted person's powers, under this

Act or the regulations; or

(b) the performance of the functions, or the exercise of the

powers, of the Merit Protection Commissioner under this Act

or the regulations.

Authorised disclosure of protected information by the Merit

Protection Commissioner

(4) The Merit Protection Commissioner may disclose protected

information in a report prepared for purposes connected with the

performance of the functions, or the exercise of the powers, of the

Merit Protection Commissioner under this Act or the regulations, if

the Merit Protection Commissioner is satisfied that the disclosure

is necessary for the purpose of setting out the grounds for the

conclusions and recommendations contained in the report.

(5) Subject to subsection (6), the Merit Protection Commissioner may

disclose protected information to a person, or to the public or a

section of the public, if the Merit Protection Commissioner is

satisfied that:

(a)

the

disclosure:

(i) is in the interests of an Agency or a person; or

(ii) is in the public interest; and

Amendment of the Public Service Act 1999 Schedule 1

Confidentiality of information Part 12

Public Service Amendment Bill 2012 No. , 2012 39

(b) the disclosure is not likely to interfere with a review or

inquiry under this Act or the regulations.

(6) The Merit Protection Commissioner must not disclose the name of

an individual, or any other material that would enable an individual

to be identified, in protected information that is disclosed under

subsection (5), unless the Merit Protection Commissioner is

satisfied that the disclosure is fair and reasonable in all the

circumstances.

Compellability of entrusted persons to give evidence

(7) A person who is, or was, an entrusted person (other than a

prescribed entrusted person) is not compellable in any proceeding:

(a) before a court (whether exercising federal jurisdiction or

not); or

(b) before a person authorised by a law of the Commonwealth or

a State or Territory, or by consent of the parties, to hear,

receive and examine evidence;

to disclose protected information that was obtained in connection

with the performance of his or her functions or duties, or the

exercise of his or her powers, under:

(d) any other provision of this Act or the regulations prescribed

by the regulations for the purposes of this paragraph.

Note:

Prescribed entrusted person is defined in subsection (1) of this

section.

Competence of certain entrusted persons to give evidence

(8) A person who is, or was, a prescribed entrusted person is not

competent, and cannot be compelled, to disclose protected

information in any proceeding:

(a) before a court (whether exercising federal jurisdiction or

not); or

(b) before a person authorised by a law of the Commonwealth or

a State or Territory, or by consent of the parties, to hear,

receive and examine evidence.

Note:

Prescribed entrusted person is defined in subsection (1) of this

section.

Schedule 1 Amendment of the Public Service Act 1999

Part 12 Confidentiality of information

40 Public Service Amendment Bill 2012 No. , 2012

72C Giving information or producing documents to Commissioner

not admissible in evidence etc.

Application

(1) This section applies if:

(a)

either:

(i) the Commissioner requests a person to give information

(including an answer to a question) or produce a

document to the Commissioner for purposes connected

with the performance of functions or duties, or the

exercise of powers, under a provision referred to in

subsection (2); or

(ii) a person reasonably believes that information or a

document is relevant for purposes connected with the

performance of functions or duties, or the exercise of

powers, under a provision referred to in subsection (2);

and

(b) the person obtained the information or document lawfully;

and

the Commissioner.

(2) For the purposes of subparagraphs (1)(a)(i) and (ii), the provisions

are:

(a) paragraphs 41(2)(j), (k), (m), (n) and (o); and

(b) sections 41A, 41B, 41C, 41D and 43; and

by the regulations for the purposes of this paragraph.

Giving information or producing document not admissible in

evidence in certain proceedings

(3) If, by giving the information or producing the document to the

Commissioner, the person:

(a) contravenes any other law; or

(b) might tend to incriminate the person or make the person

liable to a penalty; or

(d) discloses a communication between a person performing

functions or duties, or exercising powers, in an Agency and

Amendment of the Public Service Act 1999 Schedule 1

Confidentiality of information Part 12

Public Service Amendment Bill 2012 No. , 2012 41

another person or body, being a communication protected

against disclosure by legal professional privilege; or

(e) otherwise acts contrary to the public interest;

the giving of the information or the production of the document is

not admissible in evidence against the person in proceedings (other

than proceedings for an offence against section 137.1, 137.2 or

149.1 of the Criminal Code that relates to this Act).

Person not liable to penalty

(4) The person is not liable to any penalty under the provisions of any

other law by reason of his or her giving the information or

producing the document to the Commissioner.

Disclosure of personal information is authorised for purposes of

Privacy Act

(5) To the extent that the giving of the information or the production of

the document to the Commissioner involves a disclosure of

personal information, the disclosure is taken to be authorised by

this Act for the purposes of the Privacy Act 1988.

Legal professional privilege not affected

(6) Subsection (3) does not otherwise affect a claim of legal

professional privilege that anyone may make in relation to the

information or document.

72D Giving information or producing documents to Merit

Protection Commissioner not admissible in evidence etc.

Application

(1) This section applies if:

(a)

either:

(i) the Merit Protection Commissioner requests a person to

give information (including an answer to a question) or

produce a document to the Merit Protection

Commissioner for purposes connected with the

performance of functions or duties, or the exercise of

powers, under a provision referred to in subsection (2);

Schedule 1 Amendment of the Public Service Act 1999

Part 12 Confidentiality of information

42 Public Service Amendment Bill 2012 No. , 2012

(ii) a person reasonably believes that information or a

document is relevant for purposes connected with the

performance of functions or duties, or the exercise of

powers, under a provision referred to in subsection (2);

and

(b) the person obtained the information or document lawfully;

and

the Merit Protection Commissioner.

(2) For the purposes of subparagraphs (1)(a)(i) and (ii), the provisions

are:

(a) sections 50 and 50A; and

(b) any other provision of this Act or the regulations prescribed

by the regulations for the purposes of this paragraph.

Giving information or producing document not admissible in

evidence in certain proceedings

(3) If, by giving the information or producing the document to the

Merit Protection Commissioner, the person:

(a) contravenes any other law; or

(b) might tend to incriminate the person or make the person

liable to a penalty; or

(d) discloses a communication between a person performing

functions or duties, or exercising powers, in an Agency and

another person or body, being a communication protected

against disclosure by legal professional privilege; or

(e) otherwise acts contrary to the public interest;

the giving of the information or the production of the document is

not admissible in evidence against the person in proceedings (other

than proceedings for an offence against section 137.1, 137.2 or

149.1 of the Criminal Code that relates to this Act).

Person not liable to penalty

(4) The person is not liable to any penalty under the provisions of any

other law by reason of his or her giving the information or

producing the document to the Merit Protection Commissioner.

Amendment of the Public Service Act 1999 Schedule 1

Confidentiality of information Part 12

Public Service Amendment Bill 2012 No. , 2012 43

Disclosure of personal information is authorised for purposes of

Privacy Act

(5) To the extent that the giving of the information or the production of

the document to the Merit Protection Commissioner involves a

disclosure of personal information, the disclosure is taken to be

authorised by this Act for the purposes of the Privacy Act 1988.

Legal professional privilege not affected

(6) Subsection (3) does not otherwise affect a claim of legal

professional privilege that anyone may make in relation to the

information or document.

72E Release of personal information

The

regulations:

(a) may authorise the use or disclosure, in specific

circumstances, of personal information (within the meaning

of the Privacy Act 1988); and

(b) may impose restrictions on the collection, storage, access,

further use or further disclosure of personal information used

or disclosed under regulations made for the purposes of

paragraph (a).

Note: The

Freedom of Information Act 1982 and the Privacy Act 1988 have

rules about the use and disclosure of personal information.

71 Section 76

Repeal the section.

Schedule 1 Amendment of the Public Service Act 1999

Part 13 Immunity from suit

44 Public Service Amendment Bill 2012 No. , 2012

Part 13--Immunity from suit

Public Service Act 1999

72 After section 78

Insert:

78A Immunity from civil proceedings

Commissioner's functions

(1) No civil action, suit or proceeding lies against the following

persons:

(a)

the

Commissioner;

(b) a delegate of the Commissioner;

Commissioner;

(d) a Special Commissioner;

(e) a member of staff assisting the Commissioner or a Special

Commissioner;

in relation to anything done, or omitted to be done, in good faith by

the person in the performance or purported performance of

functions or duties, or the exercise or purported exercise of powers,

conferred by:

(f) paragraph 41(2)(j), (k), (m), (n) or (o); or

(g) section 41A, 41B, 41C or 41D; or

(h) any other provision of this Act or the regulations prescribed

by the regulations for the purposes of this paragraph.

Merit Protection Commissioner's functions

(2) No civil action, suit or proceeding lies against the following

persons:

(a) the Merit Protection Commissioner;

(b) a delegate of the Merit Protection Commissioner;

Protection Commissioner;

(d) a member of staff assisting the Merit Protection

Commissioner;

Amendment of the Public Service Act 1999 Schedule 1

Immunity from suit Part 13

Public Service Amendment Bill 2012 No. , 2012 45

(e) a member of a committee established or appointed by the

Merit Protection Commissioner under the regulations;

(f) any other person prescribed by the regulations for the

purposes of this paragraph;

in relation to anything done, or omitted to be done, in good faith by

the person in the performance or purported performance of

functions or duties, or the exercise or purported exercise of powers,

conferred by this Act or the regulations.

Schedule 1 Amendment of the Public Service Act 1999

Part 14 Legislative instruments

46 Public Service Amendment Bill 2012 No. , 2012

Part 14--Legislative instruments

Public Service Act 1999

73 Section 7 (definition of Commissioner's Directions)

Omit "15 or 36", substitute "11A or 15".

74 After section 11

Insert:

11A Commissioner's Directions about employment matters

General

(1) The Commissioner may issue directions in writing about

employment matters relating to APS employees, including the

following:

(a)

engagement;

(b)

promotion;

(c)

redeployment;

(d)

mobility;

(e)

training

schemes;

(f)

termination.

Note:

See section 42 for general provisions relating to Commissioner's

Directions.

Directions about APS Employment Principles

(2) The Commissioner may issue directions in writing in relation to

any of the APS Employment Principles for the purpose of:

(a) ensuring that the APS incorporates and upholds the APS

Employment Principles; and

(b) determining where necessary the scope or application of the

APS Employment Principles.

Note:

See section 42 for general provisions relating to Commissioner's

Directions.

(3) For the purposes of this Act (other than subsection (2)), the APS

Employment Principles have effect subject to any restrictions in

directions issued under subsection (2).

Amendment of the Public Service Act 1999 Schedule 1

Legislative instruments Part 14

Public Service Amendment Bill 2012 No. , 2012 47

Directions of no effect to the extent of inconsistency with Prime

Minister's direction

(4) A direction issued under this section has no effect to the extent that

it is inconsistent with a direction issued by the Prime Minister

under section 21.

75 Subsection 21(2)

Repeal the subsection, substitute:

(2) A direction issued under subsection (1) is a legislative instrument.

Note:

Neither section 42 (disallowance) nor Part 6 (sunsetting) of the

Legislative Instruments Act 2003 applies to the direction (see

sections 44 and 54 of that Act).

76 Subsection 23(1)

Repeal the subsection, substitute:

(1) The Commissioner may, by legislative instrument, make rules

about classifications of APS employees.

Note:

Neither section 42 (disallowance) nor Part 6 (sunsetting) of the

Legislative Instruments Act 2003 applies to the Classification Rules

(see sections 44 and 54 of that Act).

77 Paragraph 23(4)(b)

Repeal the paragraph, substitute:

(b) in the case of an SES employee--in accordance with

Commissioner's Directions issued under subsection 11A(1);

78 Subsection 24(3)

Omit "notice in the Gazette", substitute "legislative instrument".

79 At the end of subsection 24(3)

Add:

Note:

Neither section 42 (disallowance) nor Part 6 (sunsetting) of the

Legislative Instruments Act 2003 applies to the determination (see

sections 44 and 54 of that Act).

80 Subsection 26(2)

Omit "the regulations", substitute "Commissioner's Directions issued

under subsection 11A(1)".

Schedule 1 Amendment of the Public Service Act 1999

Part 14 Legislative instruments

48 Public Service Amendment Bill 2012 No. , 2012

81 Paragraph 32(1)(a)

Omit "prescribed by the regulations", substitute "specified in

Commissioner's Directions issued under subsection 11A(1)".

82 Subsection 32(2)

Omit "the regulations" (first occurring), substitute "Commissioner's

Directions issued under subsection 11A(1)".

83 Subsection 32(2)

Omit "prescribed by the regulations", substitute "provided by those

Directions".

84 Section 36

Repeal the section.

85 Paragraph 38(a)

Omit "under section 36", substitute "made under subsection 11A(1)".

86 Subsections 42(3) and (4)

Repeal the subsections, substitute:

(3) Commissioner's Directions may apply, adopt or incorporate (with

or without modifications) any matter contained in the

Classification Rules or a direction issued by the Prime Minister

under section 21, either:

(a) as in force or existing at a particular time; or

(b) as in force or existing from time to time.

(4) Commissioner's Directions are legislative instruments.

Amendment of the Public Service Act 1999 Schedule 1

Miscellaneous amendments Part 15

Public Service Amendment Bill 2012 No. , 2012 49

Part 15--Miscellaneous amendments

Public Service Act 1999

87 Subsection 6(2)

Repeal the subsection, substitute:

(2) Subsection (1) does not apply to persons engaged on an honorary

basis.

88 Subsection 23(4)

Omit all the words before paragraph (a), substitute:

(4) An Agency Head may reduce the classification of an APS

employee, without the employee's consent, only in the following

circumstances:

89 Subsection 23(5)

After "industrial instrument", insert ", determination under this Act or

written contract of employment".

90 Section 24 (heading)

Repeal the heading, substitute:

24 Terms and conditions of employment

91 Subsection 24(1)

Omit "remuneration and other".

92 Subsection 24(3)

Omit "remuneration and other".

93 Subsection 29(1) (note)

Omit "Note:", substitute "Note 1:".

94 At the end of subsection 29(1)

Add:

Note 2:

Commissioner's Directions issued under subsection 11A(1) may set

out procedures to be followed in terminating the employment of an

APS employee.

Schedule 1 Amendment of the Public Service Act 1999

Part 15 Miscellaneous amendments

50 Public Service Amendment Bill 2012 No. , 2012

95 At the end of section 40

Add:

(4) The Commissioner may, on behalf of the Commonwealth, engage

consultants to assist in the performance of the Commissioner's

functions.

96 At the end of section 49

Add:

(3) The Merit Protection Commissioner may, on behalf of the

Commonwealth, engage consultants to assist in the performance of

the Merit Protection Commissioner's functions.

97 Subsection 51(3)

Omit "44(2)", substitute "44(1)".

98 Subsection 73(4)

Omit "of more than $100,000", substitute "exceeding the amount

prescribed by the regulations".

99 Subsection 79(2)

Repeal the subsection, substitute:

(2) The regulations may prescribe penalties of not more than 50

penalty units for offences against the regulations.

Schedule 3 Amendment of other Acts

52 Public Service Amendment Bill 2012 No. , 2012

Schedule 3--Amendment of other Acts

Australian Federal Police Act 1979

1 Subsection 40F(2)

Before "Public Service Commissioner", insert "Australian".

2 Subsection 68A(6) (definition of transfer time)

Before "Public Service Commissioner", insert "Australian".

Australian Law Reform Commission Act 1996

3 Subsection 26(2A) (note)

After "under", insert "section 15 or 16 or".

Family Law Act 1975

4 Subsection 37B(4)

Repeal the subsection, substitute:

(4) Subject to subsection (4A), action must not be taken in relation to

the Principal Registrar, a Registrar or a Deputy Registrar (or a

former Principal Registrar, Registrar or Deputy Registrar):

(a) by an Agency Head under section 15 of the Public Service

Act 1999; or

(b) by the Australian Public Service Commissioner under

section 41B of that Act; or

that Act;

unless the Chief Judge has requested the Agency Head, the

Australian Public Service Commissioner or the Merit Protection

Commissioner to take such action.

Note:

Sections 15, 41B and 50A of the Public Service Act 1999 make

provision for dealing with an alleged breach of the Code of Conduct

(within the meaning of that Act) by an APS employee or a former

APS employee.

(4A) Subsection (4) does not apply if the Prime Minister has requested

the Australian Public Service Commissioner to take action under

Amendment of other Acts Schedule 3

Public Service Amendment Bill 2012 No. , 2012 53

section 41B of the Public Service Act 1999 in relation to the

Principal Registrar, a Registrar or a Deputy Registrar (or a former

Principal Registrar, Registrar or Deputy Registrar).

Ombudsman Act 1976

5 Subsection 6(9)

Before "Public Service Commissioner" (wherever occurring), insert

"Australian".

6 Paragraphs 6(10)(a), (b) and (c)

Before "Public Service Commissioner", insert "Australian".

Parliamentary Service Act 1999

7 Section 7

Insert:

Australian Public Service Commissioner means the Australian

Public Service Commissioner appointed under the Public Service

Act 1999.

8 Section 7 (definition of non-ongoing APS employee)

Repeal the definition.

9 Section 7 (definition of Public Service Commissioner)

Repeal the definition.

10 Section 7

Insert:

temporary APS employee has the same meaning as in the Public

Service Act 1999.

11 Subsection 26A(1)

Omit "non-ongoing APS employee", substitute "temporary APS

employee".

12 Paragraph 27(1)(b)

Schedule 3 Amendment of other Acts

54 Public Service Amendment Bill 2012 No. , 2012

Before "Public Service Commissioner", insert "Australian".

13 Subsections 43(2), 44(4) and 46(2)

Before "Public Service Commissioner", insert "Australian".

Privacy Act 1988

14 Subsection 50(2)

Before "Public Service Commissioner" (wherever occurring), insert

"Australian".

15 Paragraph 50(3)(b)

Before "Public Service Commissioner", insert "Australian".

Remuneration Tribunal Act 1973

16 Subsection 3(1)

Insert:

Australian Public Service Commissioner means the Australian

Public Service Commissioner appointed under the Public Service

Act 1999.

17 Subsection 3(1) (definition of Public Service

Commissioner)

Repeal the definition.

18 Subsection 14(3)

Before "Public Service Commissioner", insert "Australian".

Superannuation Act 1976

19 Paragraph 58(3)(f)

Repeal the paragraph.

Superannuation Act 1990

20 Subparagraph 6(1)(h)(i)

Schedule 4 Application, saving and transitional provisions

Part 1 Preliminary

56 Public Service Amendment Bill 2012 No. , 2012

Schedule 4--Application, saving and

transitional provisions

Part 1--Preliminary

1 Definitions

In this Schedule:

commencement time means the time when Schedule 1 to this Act

commences.

new Public Service Act means the Public Service Act 1999 as in force

after the commencement time.

old Code of Conduct means the Code of Conduct in the old Public

Service Act (including any regulations in force for the purposes of

subsection 13(13) of the old Public Service Act).

old Public Service Act means the Public Service Act 1999 as in force

immediately before the commencement time.

2 Alleged breaches of the Code of Conduct that occur before

and after commencement time

For the purposes of Parts 4, 6 and 7 of this Schedule, if a breach of the

Code of Conduct is alleged to have occurred between 2 dates, one

before and one after the commencement time, the breach is alleged to

have occurred before the commencement time.

Application, saving and transitional provisions Schedule 4

Secretaries Part 2

Public Service Amendment Bill 2012 No. , 2012 57

Part 2--Secretaries

3 Saving--existing appointments of Secretaries

(1)

This item applies to a person who, immediately before the

commencement time, held office as the Secretary of a Department

because of an appointment under subsection 58(1) of the old Public

Service Act.

(2)

The person continues to hold office as the Secretary of the Department

as if the person had, at the commencement time, been appointed as the

Secretary of the Department by the Governor-General, on the

recommendation of the Prime Minister, under subsection 58(1) of the

new Public Service Act.

(3)

The person continues to hold office as the Secretary of the Department:

(a) for the balance of the period of the person's appointment that

remained immediately before the commencement time; and

(b) on the same terms and conditions as applied to the person

immediately before the commencement time.

(4)

Subsections 58(3) and (6) to (8) of the new Public Service Act do not

apply to the person.

(5)

To avoid doubt, section 57 of the new Public Service Act applies to the

person.

4 Appointments of Secretaries proposed before

commencement time

(1) If:

(a) before the commencement time, the Prime Minister had

received a report about a vacancy in the office of the

Secretary of the Prime Minister's Department under

subsection 58(2) of the old Public Service Act; and

(b) immediately before the commencement time, no appointment

to fill that vacancy had been made under subsection 58(1) of

the old Public Service Act;

then, after the commencement time, the report is taken to have been

received by the Prime Minister under subsection 58(6) of the new

Public Service Act.

(2) If:

Schedule 4 Application, saving and transitional provisions

Part 2 Secretaries

58 Public Service Amendment Bill 2012 No. , 2012

(a) before the commencement time, the Prime Minister had

received a report about a vacancy in the office of the

Secretary of a Department other than the Prime Minister's

Department under subsection 58(3) of the old Public Service

Act; and

(b) immediately before the commencement time, no appointment

to fill that vacancy had been made under subsection 58(1) of

the old Public Service Act;

then, after the commencement time:

Minister under subsection 58(7) of the new Public Service

Act; and

(d) subsection 58(8) of the new Public Service Act is taken to

have been complied with in relation to the report.

5 Terminations of appointments of Secretaries proposed

before commencement time

(1) If:

(a) before the commencement time, the Prime Minister had

given notice in writing terminating the appointment of a

Secretary under subsection 59(1) of the old Public Service

Act; and

(b) the termination was to take effect after the commencement

time;

then the termination takes effect in accordance with the notice as if

subsection 59(1) of the old Public Service Act had not been repealed.

(2) If:

(a) before the commencement time, the Prime Minister had

received a report about the proposed termination of the

appointment of the Secretary of the Prime Minister's

Department under subsection 59(2) of the old Public Service

Act; and

(b) the appointment had not been terminated before that time;

then, after that time, the report is taken to have been received by the

Prime Minister under subsection 59(2) of the new Public Service Act.

(3) If:

Application, saving and transitional provisions Schedule 4

Secretaries Part 2

Public Service Amendment Bill 2012 No. , 2012 59

(a) before the commencement time, the Prime Minister had

received a report about the proposed termination of the

appointment of a Secretary of a Department other than the

Prime Minister's Department under subsection 59(3) of the

old Public Service Act; and

(b) the appointment had not been terminated before that time;

then, after that time:

Minister under subsection 59(3) of the new Public Service

Act; and

(d) subsection 59(4) of the new Public Service Act is taken to

have been complied with in relation to the report.

6 Saving--engagements of former Secretaries

A person who, immediately before the commencement time, was

engaged under section 60 of the old Public Service Act is taken, at the

commencement time, to have been engaged under subsection 60(1) of

the new Public Service Act:

(a) for the balance of the person's term of engagement that

remained immediately before the commencement time; and

(b) on the same terms and conditions as applied to the person

immediately before the commencement time.

Application, saving and transitional provisions Schedule 4

The Australian Public Service Commissioner Part 4

Public Service Amendment Bill 2012 No. , 2012 61

Part 4--The Australian Public Service Commissioner

8 Public Service Commissioner becomes Australian Public

Service Commissioner at commencement time

(1)

The person who held office as the Public Service Commissioner under

the old Public Service Act immediately before the commencement time

is taken, at the commencement time, to have been appointed as the

Australian Public Service Commissioner under section 45 of the new

Public Service Act.

(2)

The person holds office as the Australian Public Service Commissioner:

(a) for the balance of the person's term of appointment that

remained immediately before the commencement time; and

(b) on the same terms and conditions as applied to the person

immediately before the commencement time.

(3)

Any act or thing done by, or in relation to, the Public Service

Commissioner before the commencement time is to be treated, at and

after that time, as if it were an act or thing done by, or in relation to, the

Australian Public Service Commissioner.

(4)

A reference to the Public Service Commissioner in an instrument in

force immediately before the commencement time is taken, at and after

that time, to be a reference to the Australian Public Service

Commissioner.

9 Inquiries in progress for the purposes of Commissioner's

evaluation functions

(1)

This item applies if, before the commencement time, the Commissioner

had begun, but had not completed, an inquiry for the purpose of

paragraph 41(1)(a), (b) or (g) of the old Public Service Act.

(2)

If the inquiry had not been notified by the Commissioner in the Gazette

under paragraph 43(1)(a) of the old Public Service Act, the

Commissioner may continue the inquiry after the commencement time

as if:

(a) it were an inquiry for the purpose of the corresponding

provision of the new Public Service Act; and

(b) it had not been notified by the Commissioner in the Gazette

under paragraph 43(1)(a) of the new Public Service Act.

Schedule 4 Application, saving and transitional provisions

Part 4 The Australian Public Service Commissioner

62 Public Service Amendment Bill 2012 No. , 2012

(3)

If the inquiry had been notified by the Commissioner in the Gazette

under paragraph 43(1)(a) of the old Public Service Act, the

Commissioner may continue the inquiry after the commencement time

as if:

(a) it were an inquiry for the purpose of the corresponding

provision of the new Public Service Act; and

(b) it had been notified by the Commissioner in the Gazette

under paragraph 43(1)(a) of the new Public Service Act.

Note:

The inquiry is a special inquiry for the purpose of section 43 of the new Public Service

Act.

(4)

For the purpose of continuing the inquiry after the commencement time,

the Commissioner may use any information obtained for the purpose of

the inquiry before that time.

(5)

For the purposes of this item and item 10 of this Schedule, the provision

of the new Public Service Act specified in an item of the following table

is the corresponding provision in relation to the provision of the old

Public Service Act specified in that item.

Corresponding provisions

Item

Provision of old Public

Service Act

Corresponding provision of new

Public Service Act

paragraph 41(1)(a)

paragraph 41(2)(f)

paragraph 41(1)(b)

paragraph 41(2)(l)

paragraph 41(1)(g)

paragraph 41(2)(c)

10 Inquiries notified in Gazette but not begun for the

purposes of Commissioner's evaluation functions

(1)

This item applies if, before the commencement time, the Commissioner

had notified in the Gazette, under paragraph 43(1)(a) of the old Public

Service Act, an inquiry for the purpose of paragraph 41(1)(a), (b) or (g)

of the old Public Service Act, but the Commissioner had not begun to

conduct the inquiry.

(2)

The notification continues to have effect after the commencement time

as if it were a notification in the Gazette, under paragraph 43(1)(a) of

the new Public Service Act, of an inquiry for the purpose of the

Application, saving and transitional provisions Schedule 4

The Australian Public Service Commissioner Part 4

Public Service Amendment Bill 2012 No. , 2012 63

corresponding provision (within the meaning of subitem 9(5) of this

Schedule) of the new Public Service Act.

11 Matters under consideration by Commissioner at

commencement time (other than matters referred by

Public Service Minister)

(1)

This item applies if, before the commencement time, the Commissioner

had begun to consider a matter relating to the APS under paragraph

41(1)(d) of the old Public Service Act (other than a matter referred to

the Commissioner by the Public Service Minister under that paragraph),

but the Commissioner had not reported on the matter to the Public

Service Minister.

(2)

The Commissioner may continue to consider the matter after the

commencement time and, if the Commissioner does so, the

Commissioner is taken to be conducting a review of the matter under

paragraph 41(2)(j) of the new Public Service Act.

(3)

To avoid doubt, the Commissioner may, for the purpose of conducting a

review of the matter after the commencement time, use any information

obtained in considering the matter under paragraph 41(1)(d) of the old

Public Service Act before that time.

12 Matters under consideration by Commissioner at

commencement time--matters referred by Public

Service Minister

(1)

This item applies if, before the commencement time, the Commissioner

had begun to consider a matter relating to the APS referred to the

Commissioner by the Public Service Minister under paragraph 41(1)(d)

of the old Public Service Act, but had not reported to the Public Service

Minister on the matter.

(2)

If the matter had been referred to the Commissioner under paragraph

41(1)(d) of the old Public Service Act, other than by notice in the

Gazette, the Commissioner must consider the matter and report to the

Public Service Minister as if the matter had been referred to the

Commissioner under paragraph 41(2)(k) of the new Public Service Act,

other than by notice in the Gazette.

(3)

If the matter had been referred to the Commissioner under paragraph

41(1)(d) of the old Public Service Act by notice in the Gazette, the

Schedule 4 Application, saving and transitional provisions

Part 4 The Australian Public Service Commissioner

64 Public Service Amendment Bill 2012 No. , 2012

Commissioner must consider the matter and report to the Public Service

Minister as if the matter had been referred to the Commissioner under

paragraph 41(2)(k) of the new Public Service Act by notice in the

Gazette.

Note:

An inquiry on the matter is a special inquiry for the purpose of section 43 of the new

Public Service Act.

(4)

For the purpose of considering the matter and reporting to the Public

Service Minister after the commencement time, the Commissioner may

use any information obtained for the purpose of considering the matter

before that time.

13 Matters referred to Commissioner by Public Service

Minister before commencement time but not yet

considered

(1)

This item applies if, before the commencement time, the Public Service

Minister had referred a matter relating to the APS to the Commissioner

under paragraph 41(1)(d) of the old Public Service Act, but the

Commissioner had not begun to consider the matter.

(2)

If the matter had been referred to the Commissioner under paragraph

41(1)(d) of the old Public Service Act, other than by notice in the

Gazette, the Public Service Minister is taken to have referred the matter

to the Commissioner at the commencement time under paragraph

41(2)(k) of the new Public Service Act, other than by notice in the

Gazette.

(3)

If the matter had been referred to the Commissioner under paragraph

41(1)(d) of the old Public Service Act by notice in the Gazette, the

Public Service Minister is taken to have referred the matter to the

Commissioner at the commencement time under paragraph 41(2)(k) of

the new Public Service Act by notice in the Gazette.

Note:

An inquiry on the matter is a special inquiry for the purpose of section 43 of the new

Public Service Act.

14 Inquiry in progress into alleged breach of Code of

Conduct by Agency Head

(1)

This item applies if, before the commencement time:

(a) the Commissioner had begun an inquiry into an alleged

breach of the Code of Conduct by an Agency Head for the

Application, saving and transitional provisions Schedule 4

The Australian Public Service Commissioner Part 4

Public Service Amendment Bill 2012 No. , 2012 65

purpose of paragraph 41(1)(f) of the old Public Service Act,

but had not reported on the results of the inquiry; or

(b) the Commissioner had decided to conduct an inquiry into an

alleged breach of the Code of Conduct by an Agency Head

for the purpose of paragraph 41(1)(f) of the old Public

Service Act, but had not begun the inquiry.

(2)

The Commissioner may complete the inquiry or begin the inquiry (as

the case requires), and report on the results of the inquiry, in accordance

with paragraph 41(2)(m) and section 41A of the new Public Service

Act.

Note:

The Commissioner may discontinue the inquiry without making a report in the

circumstances prescribed by the regulations: see paragraph 41A(3)(b) of the new Public

Service Act.

(3)

For the purposes of subitem (2), a reference to the Code of Conduct in

paragraph 41(2)(m) and section 41A of the new Public Service Act (or

the regulations in force for the purposes of that section) is to be read as

a reference to the old Code of Conduct.

(4)

For the purpose of completing the inquiry and reporting after the

commencement time, the Commissioner may use any information

obtained for the purpose of the inquiry before that time.

15 Allegation of breach of Code of Conduct by Agency Head

before commencement time

(1)

This item applies if, before the commencement time, an allegation had

been made of a breach of the Code of Conduct by an Agency Head, but

the Commissioner had not decided whether to conduct an inquiry into

the alleged breach.

(2)

This item also applies if:

(a) after the commencement time, an allegation is made of a

breach of the Code of Conduct by an Agency Head; and

(b) the breach is alleged to have occurred before the

commencement time.

(3)

Paragraph 41(2)(m) and section 41A of the new Public Service Act (and

the regulations in force for the purposes of that section) apply in relation

to the alleged breach as if a reference to the Code of Conduct in those

provisions were a reference to the old Code of Conduct.

Schedule 4 Application, saving and transitional provisions

Part 4 The Australian Public Service Commissioner

66 Public Service Amendment Bill 2012 No. , 2012

16 Saving--regulations prescribing Statutory Agencies

Regulations in force for the purposes of paragraph 41(3)(c) of the old

Public Service Act continue in force at and after the commencement

time as if they were regulations in force for the purposes of paragraph

41A(2)(c) of the new Public Service Act.

17 Inquiries into alleged breaches of Code of Conduct by

APS employees or former APS employees

(1)

Paragraph 41(2)(n) and section 41B of the new Public Service Act (and

the regulations and procedures in force for the purposes of that section)

apply in relation to an alleged breach of the Code of Conduct by a

person who:

(a) is an APS employee at the commencement time; or

(b) becomes an APS employee, or a former APS employee, after

that time;

whether the breach is alleged to have occurred before or after that time.

(2)

If the breach of the Code of Conduct is alleged to have occurred before

the commencement time, paragraph 41(2)(n) and section 41B of the

new Public Service Act (and the regulations and procedures in force for

the purposes of that section) apply in relation to the alleged breach as if

a reference to the Code of Conduct in those provisions were a reference

to the old Code of Conduct.

Application, saving and transitional provisions Schedule 4

APS Values and APS Employment Principles Part 5

Public Service Amendment Bill 2012 No. , 2012 67

Part 5--APS Values and APS Employment Principles

18 Saving--workplace diversity programs

(1)

This item applies to a workplace diversity program that was in effect

under section 18 of the old Public Service Act.

(2)

Despite the amendment of that section made by item 33 of Schedule 1

to this Act, the workplace diversity program continues to have effect, at

and after the commencement time, as if it had been established under

section 18 of the new Public Service Act, to the extent that the program

assists in giving effect to the APS Employment Principles.

Schedule 4 Application, saving and transitional provisions

Part 6 Code of Conduct

68 Public Service Amendment Bill 2012 No. , 2012

Part 6--Code of Conduct

19 Application--amendment of Code of Conduct

The amendments of section 13 of the Public Service Act 1999 made by

items 37 and 38 of Schedule 1 to this Act apply in relation to conduct

that occurs after the commencement time.

20 Application--procedures etc. for dealing with alleged

breaches of Code of Conduct

Subject to item 22, the amendments of section 15 of the Public Service

Act 1999 made by items 41 to 44 of Schedule 1 to this Act apply in

relation to an alleged breach of the Code of Conduct by a person who:

(a) is an APS employee at the commencement time; or

(b) becomes an APS employee, or a former APS employee, after

that time;

whether the breach is alleged to have occurred before or after that time.

21 Saving--procedures and directions for determining

whether Code of Conduct has been breached

(1)

Procedures in effect for the purposes of subsection 15(3) of the old

Public Service Act continue in effect at and after the commencement

time as if they were procedures in effect for the purposes of subsection

15(3) of the new Public Service Act.

(2)

Commissioner's Directions in force for the purposes of subsection 15(3)

of the old Public Service Act continue in effect at and after the

commencement time as if they were Commissioner's Directions in

force for the purposes of paragraph 15(4)(a) of the new Public Service

Act.

22 Investigation in progress by Agency Head into alleged

breach of Code of Conduct

(1)

This item applies if, before the commencement time:

(a) an Agency Head had begun an investigation to determine

whether an APS employee in the Agency had breached the

Code of Conduct, but no finding had been made; or

(b) an Agency Head had decided to begin an investigation to

determine whether an APS employee in the Agency had

Application, saving and transitional provisions Schedule 4

Code of Conduct Part 6

Public Service Amendment Bill 2012 No. , 2012 69

breached the Code of Conduct, but had not begun the

investigation.

(2)

Subject to subitem (3), the old Public Service Act (and the regulations

and procedures in force for the purposes of that Act) continue to apply

at and after the commencement time in relation to the investigation and

determination.

(3)

If the APS employee is found to have breached the Code of Conduct,

the Agency Head must determine the sanction (if any) to be imposed on

the APS employee in accordance with the procedures established under

paragraph 15(3)(b) of the new Public Service Act. For that purpose, a

reference to the Code of Conduct in those procedures is to be read as a

reference to the old Code of Conduct.

23 Finding by Agency Head of breach of Code of Conduct but

no sanction imposed

(1)

This item applies if, before the commencement time, an Agency Head

had found that an APS employee in the Agency had breached the Code

of Conduct, but no sanction had been imposed.

(2)

The Agency Head must determine the sanction (if any) to be imposed

on the APS employee in accordance with the procedures established

under paragraph 15(3)(b) of the new Public Service Act. For that

purpose, a reference to the Code of Conduct in those procedures is to be

read as a reference to the old Code of Conduct.

24 Allegation of breach of Code of Conduct by APS employee

before commencement time

(1)

This item applies if, before the commencement time, an allegation had

been made that an APS employee in an Agency had breached the Code

of Conduct, but the Agency Head had not decided whether to begin an

investigation to determine whether the APS employee had breached the

Code of Conduct.

(2)

This item also applies if:

(a) after the commencement time, an allegation is made that:

(i) an APS employee has breached the Code of Conduct; or

(ii) a person who became a former APS employee after the

commencement time has breached the Code of Conduct;

and

Schedule 4 Application, saving and transitional provisions

Part 6 Code of Conduct

70 Public Service Amendment Bill 2012 No. , 2012

(b) the breach is alleged to have occurred before the

commencement time.

(3)

The new Public Service Act (and the regulations and procedures in

force for the purposes of that Act) apply in relation to the alleged breach

as if a reference to the Code of Conduct in those provisions were a

reference to the old Code of Conduct.

25 Inquiry in progress into alleged breach of Code of

Conduct by Commissioner

(1)

This item applies if, before the commencement time:

(a) the Merit Protection Commissioner had begun an inquiry into

an alleged breach of the Code of Conduct by the

Commissioner for the purpose of paragraph 50(1)(b) of the

old Public Service Act, but had not reported on the results of

the inquiry; or

(b) the Merit Protection Commissioner had decided to conduct

an inquiry into an alleged breach of the Code of Conduct by

the Commissioner for the purpose of paragraph 50(1)(b) of

the old Public Service Act, but had not begun the inquiry.

(2)

The old Public Service Act (and the regulations in force for the

purposes of that Act) continue to apply at and after the commencement

time in relation to the inquiry.

26 Allegation of breach of Code of Conduct by Commissioner

before commencement time

(1)

This item applies if, before the commencement time, an allegation had

been made of a breach of the Code of Conduct by the Commissioner,

but the Merit Protection Commissioner had not decided whether to

conduct an inquiry into the alleged breach.

(2)

This item also applies if:

(a) after the commencement time, an allegation is made of a

breach of the Code of Conduct by the Commissioner; and

(b) the breach is alleged to have occurred before the

commencement time.

(3)

The new Public Service Act (and the regulations in force for the

purposes of that Act) apply in relation to the alleged breach as if a

Application, saving and transitional provisions Schedule 4

Code of Conduct Part 6

Public Service Amendment Bill 2012 No. , 2012 71

reference to the Code of Conduct in those provisions were a reference to

the old Code of Conduct.

27 Inquiries by Merit Protection Commissioner into alleged

breaches of Code of Conduct by APS employees or

former APS employees

(1)

Paragraph 50(1)(ca) and section 50A of the new Public Service Act

(and the regulations and procedures in force for the purposes of those

provisions) apply in relation to an alleged breach of the Code of

Conduct by a person who:

(a) is an APS employee at the commencement time; or

(b) becomes an APS employee, or a former APS employee, after

that time;

whether the breach is alleged to have occurred before or after that time.

(2)

Paragraph 50(1)(ca) and section 50A of the new Public Service Act

(and the regulations and procedures in force for the purposes of those

provisions) apply in relation to a breach of the Code of Conduct by an

APS employee, or a former APS employee, that is alleged to have

occurred before the commencement time as if a reference to the Code of

Conduct in those provisions were a reference to the old Code of

Conduct.

Schedule 4 Application, saving and transitional provisions

Part 7 Whistleblower reports

72 Public Service Amendment Bill 2012 No. , 2012

Part 7--Whistleblower reports

28 Inquiries in progress into whistleblower reports

(1)

This item applies if, before the commencement time, the Commissioner,

the Merit Protection Commissioner or an Agency Head, or a person

authorised by the Commissioner, the Merit Protection Commissioner or

an Agency Head, had begun, but had not completed, an inquiry into a

report of a breach (or an alleged breach) of the Code of Conduct made

as referred to in section 16 of the old Public Service Act.

(2)

The old Public Service Act (and the regulations and procedures in force

for the purposes of that Act, to the extent that they are not inconsistent

with that Act) continue to apply at and after the commencement time in

relation to the inquiry.

29 Whistleblower report made or referred before

commencement time but no inquiry begun before that

time

(1)

This item applies if, before the commencement time, a report of a

breach (or an alleged breach) of the Code of Conduct had been made or

referred to a person referred to in paragraph 16(a), (b) or (c) of the old

Public Service Act, but an inquiry into the report had not begun.

(2)

The new Public Service Act (and the regulations and procedures in

force for the purposes of that Act) apply in relation to the report as if:

(a) the report had been made to the person in accordance with

section 16 of the new Public Service Act; and

(b) a reference to the Code of Conduct in the new Public Service

Act (or the regulations and procedures in force for the

purposes of that Act) were a reference to the old Code of

Conduct.

Note:

See section 16 and paragraphs 41(2)(o) and 50(1)(a) of the new Public Service Act in

relation to whistleblower reports.

30 Whistleblower report made after commencement time in

relation to breach (or alleged breach) occurring before

that time

(1)

This item applies if:

Application, saving and transitional provisions Schedule 4

Whistleblower reports Part 7

Public Service Amendment Bill 2012 No. , 2012 73

(a) after the commencement time, a report of a breach (or an

alleged breach) of the Code of Conduct is made to a person

referred to in paragraph 16(1)(a), (b) or (c) of the new Public

Service Act; and

(b) the breach (or alleged breach) occurred before the

commencement time.

(2)

The new Public Service Act (and the regulations and procedures in

force for the purposes of that Act) apply in relation to the report as if a

reference to the Code of Conduct in that Act (or the regulations and

procedures in force for the purposes of that Act) were a reference to the

old Code of Conduct.

Note:

See section 16 and paragraphs 41(2)(o) and 50(1)(a) of the new Public Service Act in

relation to whistleblower reports.

Schedule 4 Application, saving and transitional provisions

Part 8 Review of actions

74 Public Service Amendment Bill 2012 No. , 2012

Part 8--Review of actions

31 Saving--regulations providing for review of APS action

Regulations in force for the purposes of paragraph 33(4)(d) of the old

Public Service Act continue in force at and after the commencement

time as if they were regulations in force for the purposes of paragraph

33(4)(d) of the new Public Service Act.

Application, saving and transitional provisions Schedule 4

Temporary APS employees Part 9

Public Service Amendment Bill 2012 No. , 2012 75

Part 9--Temporary APS employees

32 Non-ongoing APS employees become temporary APS

employees at commencement time

(1)

This item applies to a person if:

(a) the person had been engaged as a non-ongoing APS

employee under paragraph 22(2)(b) or (c) of the old Public

Service Act; and

(b) the engagement was in effect immediately before the

commencement time; and

commencement time.

(2)

The person becomes a temporary APS employee at the commencement

time as if the person had been engaged under paragraph 22(2)(b) of the

new Public Service Act on the same terms and conditions (including the

period (if any) of the person's engagement) as applied to the person

immediately before the commencement time.

33 Engagement processes in progress before

commencement time

(1) If:

(a) before the commencement time, an Agency Head had

engaged a person as a non-ongoing APS employee for the

purposes of the Agency under paragraph 22(2)(b) or (c) of

the old Public Service Act; and

(b) the engagement was to take effect after the commencement

time;

the engagement takes effect as if the Agency Head had engaged the

person as a temporary APS employee for the purposes of the Agency

under paragraph 22(2)(b) of the new Public Service Act on the same

terms and conditions as would have applied to the person if the person

had been engaged as a non-ongoing APS employee for the purposes of

the Agency under paragraph 22(2)(b) or (c) of the old Public Service

Act.

(2) If:

(a) before the commencement time, a process had begun to

engage a person as a non-ongoing APS employee for the

Schedule 4 Application, saving and transitional provisions

Part 9 Temporary APS employees

76 Public Service Amendment Bill 2012 No. , 2012

purposes of an Agency under paragraph 22(2)(b) or (c) of the

old Public Service Act; and

(b) the process was in progress immediately before that time;

the process continues after the commencement time as if it were a

process to engage a person as a temporary APS employee for the

purposes of the Agency under paragraph 22(2)(b) of the new Public

Service Act.

34 Saving--circumstances for engagement of non-ongoing

APS employees

(1)

This item applies in relation to a person who:

(a) becomes a temporary APS employee because of item 32 of

this Schedule; or

(b) is engaged as a temporary APS employee because of subitem

33(1) of this Schedule.

(2)

Despite the repeal of subsection 22(4) of the old Public Service Act by

item 61 of Schedule 1 to this Act, that subsection (and the regulations in

force for the purposes of that subsection) continue to apply, at and after

the commencement time, in relation to the person's engagement.

(3)

Paragraphs 22(4)(a) and (b) of the new Public Service Act (and the

regulations in force for the purposes of those paragraphs) do not apply

in relation to the person's engagement.

(4)

Paragraph 22(4)(c) of the new Public Service Act (and the regulations

in force for the purposes of that paragraph) apply in relation to the

person's engagement.

(5)

If the person is a person who becomes a temporary APS employee

because of item 32 of this Schedule, then, for the purpose of applying

regulations in force for the purposes of paragraph 22(4)(c) of the new

Public Service Act in relation to the person's engagement, the period of

the person's engagement as a temporary APS employee is taken to

include the period of the person's engagement as a non-ongoing APS

employee referred to in that item.

35 Termination of employment of non-ongoing APS

employee in progress before commencement time

(1)

This item applies if:

Application, saving and transitional provisions Schedule 4

Temporary APS employees Part 9

Public Service Amendment Bill 2012 No. , 2012 77

(a) before the commencement time, an Agency Head had

terminated the employment of a non-ongoing APS employee

in the Agency under subsection 29(1) of the old Public

Service Act; and

(b) the termination was to take effect after the commencement

time.

(2)

Despite the amendments made by items 62 and 63 of Schedule 1 to this

Act, the old Public Service Act (and the regulations in force for the

purposes of that Act) continue to apply, at and after the commencement

time, in relation to the termination.

36 Procedures for termination of temporary APS employees

after commencement time

(1)

The procedures prescribed in regulations (the termination regulations)

in force for the purposes of subsection 29(4) of the old Public Service

Act apply to the termination of the employment of a temporary APS

employee after the commencement time.

(2)

For the purposes of subitem (1), a reference in the termination

regulations to a non-ongoing APS employee is to be read as a reference

to a temporary APS employee.

(3)

This item ceases to have effect on the commencement of

Commissioner's Directions issued for the purposes of paragraph

11A(1)(f) of the new Public Service Act.

Schedule 4 Application, saving and transitional provisions

Part 10 Machinery of government changes

78 Public Service Amendment Bill 2012 No. , 2012

Part 10--Machinery of government changes

37 Determinations that APS employees become non-APS

employees of Commonwealth authority

(1)

This item applies if:

(a) before the commencement time, the Commissioner had

determined, under paragraph 72(1)(b) of the old Public

Service Act, that an APS employee ceases to be an APS

employee and becomes an employee of a specified

Commonwealth authority; and

(b) the determination was to take effect after the commencement

time.

(2)

The determination is taken, after the commencement time, to be a

determination under paragraph 72(1)(b) of the new Public Service Act

that the APS employee ceases to be an APS employee and becomes a

non-APS employee of the Commonwealth authority.

Application, saving and transitional provisions Schedule 4

Confidentiality of information Part 11

Public Service Amendment Bill 2012 No. , 2012 79

Part 11--Confidentiality of information

38 Protected information obtained at or after commencement

time

(1)

Section 72A of the new Public Service Act applies to protected

information obtained at or after the commencement time.

(2)

Section 72B of the new Public Service Act applies to protected

information obtained at or after the commencement time.

39 Saving--regulations providing for protection of

information obtained before commencement time

(1)

This item applies to regulations that were in force for the purposes of

paragraph 79(2)(a) of the old Public Service Act.

(2)

Despite the repeal of that paragraph made by item 99 of Schedule 1 to

this Act, the regulations continue to apply, at and after the

commencement time, to the extent that they provide for confidentiality

of information obtained, before the commencement time, by persons

performing, or assisting in the performance of, functions referred to in

that paragraph before its repeal.

40 Saving--regulations providing for release of personal

information

Regulations in force for the purposes of section 76 of the old Public

Service Act continue in force at and after the commencement time as if

they were regulations in force for the purposes of section 72E of the

new Public Service Act.

Schedule 4 Application, saving and transitional provisions

Part 12 Immunity from suit

80 Public Service Amendment Bill 2012 No. , 2012

Part 12--Immunity from suit

41 Immunity from civil proceedings for acts or omissions at

or after commencement time

Section 78A of the new Public Service Act applies in relation to

anything done, or omitted to be done, at or after the commencement

time.

42 Saving--regulations providing for immunity from civil

proceedings

(1)

This item applies to regulations that were in force for the purposes of

paragraph 79(2)(b) of the old Public Service Act.

(2)

Despite the repeal of that paragraph made by item 99 of Schedule 1 to

this Act, the regulations continue to apply, at and after the

commencement time, to the extent that they provide for immunity from

civil action in respect of acts or omissions, before the commencement

time, of persons performing, or assisting in the performance of,

functions referred to in that paragraph before its repeal.

Application, saving and transitional provisions Schedule 4

Legislative instruments Part 13

Public Service Amendment Bill 2012 No. , 2012 81

Part 13--Legislative instruments

43 Saving--Classification Rules

The Classification Rules in force for the purposes of subsection 23(1) of

the old Public Service Act continue in force at and after the

commencement time as if they were Classification Rules in force for the

purposes of subsection 23(1) of the new Public Service Act.

44 Saving--agreements for APS employees to move between

Agencies

The amendment of subsection 26(2) of the Public Service Act 1999

made by item 80 of Schedule 1 to this Act does not affect the continuity

of an agreement made under subsection 26(1) of that Act.

45 Saving--right of return for election candidates

(1)

This item applies to a person (and section 32 of the new Public Service

Act does not apply to the person) if:

(a) before the commencement time, the person resigned as an

APS employee in order to contest an election prescribed by

regulations in force for the purposes of paragraph 32(1)(a) of

the old Public Service Act; and

(b) the resignation took effect not earlier than 6 months before

the closing date for nominations; and

elected.

(2)

The person is entitled to be again engaged as an APS employee, in

accordance with regulations in force for the purposes of subsection

32(2) of the old Public Service Act and within the time limits prescribed

by those regulations.

46 Saving--Commissioner's Directions on SES matters

Despite the repeal of section 36 of the old Public Service Act by item 84

of Schedule 1 to this Act, Commissioner's Directions in force for the

purposes of that section continue in force at and after the

commencement time as if they were Commissioner's Directions about

employment matters relating to SES employees issued for the purposes

of paragraphs 11A(1)(a), (b), (c), (d) and (f) of the new Public Service

Act.

Schedule 4 Application, saving and transitional provisions

Part 14 Miscellaneous

82 Public Service Amendment Bill 2012 No. , 2012

Part 14--Miscellaneous

47 Reduction in classification of APS employee

The amendment of subsection 23(5) of the Public Service Act 1999

made by item 89 of Schedule 1 to this Act applies in relation to a

reduction in the classification of an APS employee that occurs at or

after the commencement time.

48 Determinations of terms and conditions of employment

(1)

The amendment of subsection 24(1) of the Public Service Act 1999

made by item 91 of Schedule 1 to this Act does not affect the continuity

of a determination that was in force under that subsection immediately

before the commencement time.

(2)

The amendment of subsection 24(3) of the Public Service Act 1999

made by item 92 of Schedule 1 to this Act does not affect the continuity

of a determination that was in force under that subsection immediately

before the commencement time.

49 Engagement of consultants

(1)

The amendment of section 40 of the Public Service Act 1999 made by

item 95 of Schedule 1 to this Act does not affect the engagement of a

consultant by the Commissioner before the commencement time.

(2)

The amendment of section 49 of the Public Service Act 1999 made by

item 96 of Schedule 1 to this Act does not affect the engagement of a

consultant by the Merit Protection Commissioner before the

commencement time.

50 Saving--regulations prescribing penalties for offences

against the regulations

Regulations in force for the purposes of paragraph 79(2)(c) of the old

Public Service Act continue in force at and after the commencement

time as if they were regulations in force for the purposes of subsection

79(2) of the new Public Service Act.

Commonwealth of Australia Bills

PUBLIC SERVICE AMENDMENT BILL 2012