Commonwealth Numbered Acts

PUBLIC SERVICE AMENDMENT (FIRST DIVISION OFFICERS) ACT 1976 No. 6, 1977 - SECT 3

3. Section 54 of the Public Service Act 1922*2* is repealed and the following
sections are substituted:- Appointments to First Division.
''54. (1) In this section and section 54A-

'appointment' includes re-appointment, and cognate expressions have
corresponding meanings;

'Chairman' means Chairman of the Board and includes a person acting as the
Chairman of the Board;

'established candidate', in relation to a vacancy in an office of Permanent
Head, means a person who-

   (a)  has been nominated by the Chairman, or by a Committee, in accordance
        with the procedures prescribed by section 54A, as being suitable for
        appointment to fill that vacancy;

   (b)  not being a person mentioned in paragraph (a), holds another office of
        Permanent Head other than an office to which he was appointed in
        accordance with sub-section (8); or

   (c)  not being a person mentioned in paragraph (a) or (b), has at any
        previous time or times held an office of Permanent Head, other than an
        office to which he was appointed in accordance with sub-section (8),
        and has continued to be an officer of the Service since he ceased, or
        last ceased, so to hold an office of Permanent Head;

'office of Permanent Head' does not include an office to or in relation to
which section 9 applies.

''(2) For the purposes of this section, a person shall be taken to have been a
permanent officer of the Service at any relevant time if-

   (a)  the person-

        (i)    held an office in the Service at that time other than an office
               to which he had been appointed in accordance with sub-section
               (8); or

        (ii)   was an unattached officer at that time; or

   (b)  the person-

        (i)    had held an office in the Service during any period that ended
               before that time other than an office to which he had been
               appointed in accordance with sub-section (8); or

        (ii)   had been an unattached officer during such a period,

and the person continued to be an officer of the Service from the expiration
of that period, or, if there was more than one such period, the expiration of
the last such period, until the relevant time.

''(3) Every appointment to an office in the First Division shall be made by
the Governor-General but shall be so made-

   (a)  in the case of an appointment to an office of Permanent Head-in
        accordance with the recommendation of the Prime Minister; or

   (b)  in any other case-subject to section 9, on the recommendation of the
        Prime Minister and in accordance with the advice of the Board.

''(4) Before an appointment is made to fill a vacancy that has occurred, or is
about to occur, in an office of Permanent Head-

   (a)  the procedures prescribed by section 54A shall be followed; and

   (b)  any recommendation made to the Governor-General by the Prime Minister
        for the appointment of a person to fill that vacancy shall state
        whether or not the person is an established candidate in relation to
        that vacancy.

''(5) Where a person is appointed to an office of Permanent Head-

   (a)  the instrument of appointment shall state that the Prime Minister has
        informed the Governor-General that the person was, or was not, as the
        case may be, an established candidate; and

   (b)  as soon as practicable after the appointment is made-

        (i)    a copy of the instrument of appointment shall be published in
               the Gazette; and

        (ii)   a copy of the instrument of appointment shall be furnished to
               the person appointed.

''(6) In any proceeding, a statement in the instrument of appointment of a
person to fill a vacancy in an office of Permanent Head that the Prime
Minister has informed the Governor-General that the person was, or was not, an
established candidate is prima facie evidence that the person was, or was not,
as the case may be, an established candidate in relation to that vacancy.

''(7) The following provisions of this section apply only where a person to be
appointed to fill a vacancy in an office of Permanent Head after the
commencement of this section is not an established candidate in relation to
that vacancy.

''(8) The person shall be appointed to hold office for such period, not
exceeding 5 years and not extending beyond the date on which he will attain
the age of 65 years, as is specified in the instrument of his appointment but,
subject to this section, he is eligible for re-appointment.

''(9) The Governor-General may, before the expiration of the period for which
the person is appointed to hold office, terminate the appointment of the
person on the recommendation of the Prime Minister if the Prime Minister who
makes the recommendation is not a member of-

   (a)  the political party of which the Prime Minister on whose
        recommendation the person was appointed was a member at the time when
        the person was appointed; or

   (b)  a political party of which any other person who held office as a
        Minister at that time was then a member.

''(10) Except in the case of a person who is a permanent officer of the
Service immediately before his appointment takes effect, the Governor-General
may, at the time when the appointment is made, on the recommendation of the
Prime Minister, by instrument under his hand determine that, if the
appointment-

   (a)  is terminated under sub-section (9) before the expiration of the
        period for which the person is appointed; or

   (b)  terminates by reason of the abolition of the office held by the
        person, the person shall be entitled to such compensation (if any) as
        is specified in, or ascertained in accordance with, that instrument.

''(11) As soon as practicable after a determination is made under sub-section
(10), a copy of the instrument of determination shall be published in the
Gazette.

''(12) Where the appointment of a person to an office of Permanent Head is
terminated under sub-section (9) before the expiration of the period for which
he was appointed or terminates by reason of the expiration of that period or
an office of Permanent Head held by a person is abolished, then-

   (a)  if he was, immediately before his appointment took effect, a permanent
        officer of the Service-

        (i)    he shall be deemed to be an unattached officer in such Division
               (other than the First Division), and of such status and salary,
               as are determined by the Board having regard to the office
               (other than an office of Permanent Head) last held by him and
               the period of his service, or the aggregate of the periods of
               his service, as a Permanent Head; and

        (ii)   he is entitled to be appointed to an appropriate office in that
               Division, and of that status and salary, but, if he gives
               notice in writing to the Board stating that he wishes to retire
               from the Service, he shall be deemed to be retired from the
               Service forthwith upon the giving of the notice; and

   (b)  if he was not, immediately before his appointment took effect, a
        permanent officer of the Service, he shall be deemed to be retired
        from the Service forthwith upon the termination of his appointment or
        the abolition of his office, as the case may be.

''(13) Where-

   (a)  a person is deemed to be retired from the Service by reason of
        sub-section (12); and

   (b)  the person had not attained the age of 60 years before the time when
        he is deemed to be so retired, he shall, for the purposes of the
        Superannuation Act 1976, be deemed to have retired involuntarily.

''(14) Section 18 does not apply in relation to the doing of any act by the
Governor-General under this section in relation to an office of Permanent
Head.

''(15) Nothing in this section affects the operation of Divisions 6 and 7.
Procedures for nominating persons as suitable for appointment as Permanent
Head.

''54A. (1) The procedures set out in the following provisions of this section
are prescribed for the purposes of section 54.

''(2) Where a vacancy has occurred, or is about to occur, in an office of
Permanent Head (in this section referred to as the 'relevant office'), the
Chairman-

   (a)  shall prepare a written report nominating persons (whether officers of
        the Service or not) whom he considers suitable for appointment to fill
        that vacancy; and

   (b)  shall, after consulting the Prime Minister as to the persons who are
        to be members of the Committee, by instrument under his hand, appoint
        a Committee, to be constituted as provided by sub-section (3), to
        prepare a written report nominating persons (whether officers of the
        Service or not) whom the Committee considers suitable for appointment
        to fill that vacancy.

''(3) Subject to sub-section (4), the Committee shall consist of-

   (a)  the Chairman; and

   (b)  such number (not being less than 2) of other persons, being persons
        each of whom holds an office of Permanent Head, as the Chairman thinks
        it desirable to appoint.

''(4) The Chairman may, after consulting the Prime Minister, at any time
appoint an additional person or persons (being a person who, or persons each
of whom, holds an office of Permanent Head) to be a member or members of the
Committee but any such appointment does not affect the validity of anything
done by the Committee as constituted before the additional member is, or the
additional members are, appointed.

''(5) A member of the Committee other than the Chairman may, at any time, by
notice in writing to the Chairman, resign from the Committee.

''(6) The Chairman-

   (a)  shall convene such meetings of the Committee as he considers necessary
        for the proper performance of its functions; and

   (b)  shall preside at all meetings of the Committee.

''(7) A quorum at a meeting of the Committee is constituted by the Chairman
and such number of other members as, together with the Chairman, constitute at
least two-thirds of the total number of members.

''(8) At a meeting of the Committee-

   (a)  the procedure to be followed shall, subject to this section, be as
        determined by the Committee;

   (b)  questions arising shall be determined by a majority of the votes of
        the members present and voting; and

   (c)  the Chairman has a deliberative vote and, in the event of an equality
        of votes, also has a casting vote.

''(9) For the purpose of assisting the Committee in the performance of its
functions, the Chairman may consult, or authorize a person on his behalf to
consult, such other persons as he considers appropriate for the purpose of
ascertaining the names of persons whom the persons consulted consider suitable
for appointment to the relevant office, and shall inform the Committee as to
the persons consulted and as to the persons who are considered by the persons
consulted to be suitable for appointment to the relevant office.

''(10) A report under this section-

   (a)  shall contain a list of the names of persons whom the Chairman or the
        Committee, as the case may be, considers suitable for appointment to
        the relevant office; and

   (b)  may contain such comments as the Chairman or the Committee, as the
        case may be, considers relevant.

''(11) The Chairman shall furnish to the Prime Minister and to the Minister
(in this section referred to as the 'Minister concerned') of the Department of
which the holder of the relevant office is the Permanent Head the report
prepared by him in accordance with paragraph (2) (a) and the report prepared
by the Committee in accordance with paragraph (2) (b).

''(12) The Prime Minister may, after the reports have been furnished in
accordance with sub-section (11), require the Chairman to arrange for the
publication in the Gazette, and in such newspapers or other publications
(which may include newspapers or other publications published outside
Australia) as the Chairman thinks appropriate, advertisements inviting
applications for appointment to the relevant office and the Chairman shall
comply with any such requirement.

''(13) If the Prime Minister has required the publication of advertisements in
relation to the relevant office as mentioned in sub-section (12), the Chairman
and the Committee shall consider whether any persons who make applications in
pursuance of the advertisements are suitable for appointment to the relevant
office and prepare revised reports accordingly.

''(14) If, after reports have been furnished in accordance with this section,
the Prime Minister or the Minister concerned requests the Chairman and the
Committee to reconsider their respective reports so as to consider-

   (a)  whether a particular person whose name is not, or particular persons
        whose names are not, specified in the list contained in the report
        concerned is or are suitable for appointment to the relevant office;
        or

   (b)  whether there are other persons not specified in the list who are
        suitable for appointment to the relevant office, the Chairman and the
        Committee shall comply with the request and, if they think it
        appropriate to do so, prepare revised reports accordingly.

''(15) If a list of names contained in a report prepared by the Chairman or by
the Committee under this section in relation to an office of Permanent Head
includes the name of a person who holds another office of Permanent Head, the
Chairman or the Committee, as the case may be, may also prepare a report under
sub-section (2) in relation to that other office as if that other office were
expected to become vacant and, in the case of the Committee, as if the
Committee had been appointed in accordance with that sub-section to prepare a
report in relation to that other office. Acting appointments to First
Division.
''54B. (1) Where-

   (a)  an officer who occupies an office in the First Division is, or is
        about to be, absent from duty or from Australia or unavailable to
        perform the functions and duties of his office; or

   (b)  there is a vacancy in such an office, the Governor-General may appoint
        an officer to act in the place of the first-mentioned officer during
        the period of the absence or unavailability or until the filling of
        the vacancy.

''(2) An appointment under this section by reason of a vacancy in an office
shall not be made or continue to have effect after the expiration of a period
of 6 months from the date of the occurrence of the vacancy.

''(3) The Governor-General may at any time terminate an appointment made under
this section.

''(4) Where an officer is acting in the place of another officer in pursuance
of an appointment under this section otherwise than during a vacancy in the
office and the office becomes vacant while the first- mentioned officer is so
acting, that officer may continue to act until the Governor-General otherwise
directs, the vacancy is filled or a period of 6 months from the date of the
occurrence of the vacancy expires, whichever first happens.

''(5) While an officer is acting in the place of another officer in pursuance
of an appointment under this section, he has, and may exercise, all the
powers, and shall perform all the functions and duties, of the holder of the
office under this Act or any other law.

''(6) Section 18 does not apply to the making of an appointment under this
section in respect of an office of Permanent Head or to the termination of
such an appointment.

''(7) The validity of anything done by an officer appointed under this section
shall not be called in question on the ground that the occasion for his
appointment had not arisen or that the appointment (not being an appointment
in respect of a vacant office) had ceased to have effect.''.
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