Commonwealth Numbered Acts

PUBLIC SERVICE REFORM ACT 1984 No. 63, 1984 - SECT 27

27. Sections 35 to 46 (inclusive) of the Principal Act are repealed and the
following Subdivision, Subdivision heading and sections are substituted:

''Subdivision B-Appointment of Secretaries of Departments Interpretation

''35. In this Subdivision, unless the contrary intention appears-

'appointment' includes re-appointment;

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

'office of Secretary' means an office referred to in paragraph (a) of the
definition of 'office of Secretary' in sub-section 7 (1), but does not include
an office to or in relation to which section 9 applies. Appointment of
Secretaries of Departments

''36. (1) The Governor-General may, by instrument signed by him, appoint a
person to an office of Secretary.

''(2) The power of the Governor-General to appoint a person to an office under
sub-section (1) shall be exercised only in accordance with advice that is
consistent with a recommendation by the Prime Minister.

''(3) The Prime Minister shall not recommend, for the purpose of sub-section
(2), that a person be appointed under sub-section (1) to an office of
Secretary unless he has received a report in writing from the Chairman in
relation to the filling of the vacancy or expected vacancy in the office.

''(4) The Chairman shall, before preparing a report for the purposes of
sub-section (3) in relation to the filling of a vacancy or expected vacancy in
an office of Secretary of a Department, consult with the Minister
administering that Department in relation to that matter.

''(5) The appointment of a person to an office of Secretary is not
invalidated, and shall not be called in question, by reason of a defect or
irregularity in or in connection with his appointment. Fixed-term appointments

''37. (1) Where a person who is not an officer is appointed to an office of
Secretary, the instrument of appointment may provide that the person is
appointed to the Service to hold office as Secretary for such period (not
exceeding 5 years and not extending beyond the day on which the person will
attain the age of 65 years) as is specified in the instrument of appointment
and, where the instrument of appointment so provides, the appointment is a
fixed-term appointment for the purposes of this section.

''(2) Where a person who holds an office of Secretary under a fixed-term
appointment (in this sub-section referred to as the 'first appointment') is
appointed (otherwise than under sub-section (8)) to another office of
Secretary, the instrument of appointment to that other office may provide that
the person is appointed to hold office as Secretary for such period (not
exceeding 5 years, not extending beyond the day on which the person will
attain the age of 65 years and not expiring before the expiration of the
period for which the first appointment was made) as is specified in the
instrument of appointment to that other office and, where the instrument of
appointment so provides-

   (a)  the appointment to that other office is a fixed-term appointment for
        the purposes of this section;

   (b)  the first appointment terminates upon the making of the appointment to
        that other office;

   (c)  sub-section (6) ceases to apply to the person in relation to the first
        appointment; and

   (d)  the person ceases to be entitled to benefits under any determination
        made under sub-section (4) in relation to the first appointment.

''(3) Where a person who-

   (a)  held an office of Secretary under a fixed-term appointment (in this
        sub-section referred to as the 'first appointment'); and

   (b)  has become an unattached Secretary under sub-section (5), is appointed
        to an office (in this sub-section referred to as the 'second office')
        of Secretary, the instrument of appointment to the second office may
        provide that the person is appointed to hold office as Secretary for
        such period (not exceeding 5 years, not extending beyond the day on
        which the person will attain the age of 65 years and not expiring
        before the expiration of the period for which the first appointment
        was made) as is specified in the instrument of appointment to the
        second office and, where the instrument of appointment so provides-

   (c)  the appointment to the second office is a fixed-term appointment for
        the purposes of this section;

   (d)  sub-section (6) ceases to apply to the person in relation to the first
        appointment; and

   (e)  the person ceases to be entitled to benefits under any determination
        made under sub-section (4) in relation to the first appointment.

''(4) The Governor-General, in accordance with advice that is consistent with
a recommendation by the Board, may, at the time when a person is given a
fixed-term appointment to an office of Secretary, determine in writing that,
subject to the conditions (if any) specified in the determination, if the
person is retired from the Service under sub-section (6) before the expiration
of the period for which the appointment is made, the person shall be entitled
to such compensation as is specified in, or ascertained in accordance with,
the determination.

''(5) Where a person holds an office of Secretary under a fixed-term
appointment, the appointment of the person to that office terminates and the
person becomes an unattached Secretary if-

   (a)  the office is abolished; or

   (b)  the Governor-General directs, in writing, that the appointment of the
        person to that office is terminated, and, immediately after the event
        referred to in paragraph (a) or (b) occurs, the person does not hold
        another office of Secretary.

''(6) Subject to paragraphs (2) (c) and (3) (d), where a person is a Secretary
by virtue of a fixed-term appointment, the appointment of the person to the
Service terminates and the person is deemed to be retired from the Service if-

   (a)  the period for which the appointment was made expires; or

   (b)  the Governor-General, before the expiration of the period for which
        the appointment was made, directs, in writing, that the appointment of
        the person to the Service is terminated on a day specified in the
        instrument of direction, being a day not earlier than the day on which
        the direction is given.

''(7) The Governor-General shall not direct under sub-section (6) that the
appointment of a person to the Service be terminated by reason only of the
fact that the person has done, or omitted to do, an act or thing in respect of
which a charge could be laid against the person under Division 6, or on the
ground that a court has convicted the person of a criminal offence within the
meaning of that Division or found, without recording a conviction, that he has
committed such an offence.

''(8) Where a person holds an office (in this sub-section referred to as the
'first office') of Secretary under a fixed-term appointment, the
Governor-General may, in writing, appoint the person to hold, in addition to
the first office, another office (in this sub-section referred to as the
'second office') of Secretary for such period (not expiring after the day on
which the period for which the appointment to the first office was made
expires) as is specified in the instrument of appointment to the second office
and, where an appointment is made under this sub-section, the appointment to
the second office-

   (a)  is a fixed-term appointment for the purposes of this section;

   (b)  terminates, subject to sub-section (5), upon the expiration of the
        period for which the appointment to the second office is made; and

   (c)  shall not terminate by reason only of the termination of the
        appointment to the first office.

''(9) If a person who holds an office of Secretary under a fixed-term
appointment is appointed under sub-section (8) to another office of Secretary,
the person shall be paid remuneration (whether by way of salary, annual
allowance or otherwise) in respect of his holding only one of those offices.

''(10) Where sub-section (9) applies in relation to a person in respect of 2
offices and the remuneration payable in respect of one of those offices is
higher than the remuneration payable in respect of the other office, the
person shall be paid remuneration in respect of his holding the office in
respect of which that higher remuneration is payable.

''(11) A power of the Governor-General under this section (other than
sub-section (4)) shall be exercised only in accordance with advice that is
consistent with a recommendation by the Prime Minister.

''(12) The Prime Minister shall not recommend, for the purposes of sub-section
(11), the taking of an action under this section unless he has received a
report in writing from the Chairman in relation to the taking of the action.

''(13) A person who is retired from the Service under sub-section (6) is
eligible for re-appointment to the Service (whether by way of fixed-term
appointment or otherwise).

''(14) Where a person who is a Secretary by virtue of a fixed-term appointment
is appointed, otherwise than by way of fixed term appointment, to an
office of Secretary-

   (a)  the fixed-term appointment terminates; and

   (b)  the person ceases to be entitled to benefits under any determination
        made under sub-section (4) in relation to the fixed-term appointment.

''(15) Division 8A does not apply to or in relation to a person who is a
Secretary by virtue of a fixed-term appointment. Superannuation benefits for
fixed-term Secretaries of Departments

''38. (1) In this section-

'pensioner' means-

   (a)  a person to whom an invalidity pension within the meaning of the
        Superannuation Act 1976 is payable; or

   (b)  a person to whom a pension under the Superannuation Act 1922 is
        payable, being a person who was retired on the ground of invalidity or
        of physical or mental incapacity to perform the person's duties;

'relevant person' means a person other than-

   (a)  an eligible employee within the meaning of the Superannuation  Act
        1976 ; or

   (b)  a pensioner.

''(2) For the purposes of the Superannuation Act 1976, a person who holds a
fixed-term appointment, within the meaning of section 37, to an office of
Secretary and was a relevant person immediately before being given the
appointment is not, by reason only of his holding that appointment, an
eligible employee within the meaning of that Act.

''(3) The Governor-General, in accordance with advice that is consistent with
a recommendation by the Minister for Finance, may, at the time when a relevant
person is given a fixed-term appointment, within the meaning of section 37, to
an office of Secretary, make a determination in writing in relation to the
provision to the person of superannuation benefits or benefits in the nature
of superannuation benefits.

''(4) Without limiting the generality of sub-section (3), a determination
under that sub-section in relation to a relevant person may provide that the
Superannuation Act 1976 applies in relation to the person as if the person
were a temporary employee, within the meaning of that Act, employed under a
contract for a term of not less than 1 year and, where a determination so
provides, the Superannuation Act 1976 applies in relation to the person in
accordance with the determination.

''(5) Notwithstanding anything in the Superannuation Act 1976 or any other
Act, the Superannuation Act 1976-

   (a)  does not apply in relation to a person who holds a fixed-term
        appointment, within the meaning of section 37, to an
        office of Secretary and was a relevant person immediately before being
        given the appointment unless the application of that Act is expressly
        provided for, in accordance with sub-section (4), in a determination
        under sub-section (3) in relation to the person; and

   (b)  does not apply in relation to the person except as provided by
        sub-section (4). Acting appointments of Secretaries of Departments

''39. (1) The Governor-General may, by instrument signed by him, appoint an
officer or employee to act in an office of Secretary-

   (a)  during a vacancy in the office, whether or not an appointment has
        previously been made to the office;

   (b)  during a period (if any) when the holder of the office is suspended
        from duty under section 57 or 59; or

   (c)  during a period, or during all periods, when the holder of the office
        is absent from duty or from Australia or is, for any other reason,
        unable to perform the functions of his office.

''(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 12 months from the date of the occurrence of the vacancy.

''(3) An appointment of an officer or employee under sub-section (1) may be
expressed to have effect only in such circumstances as are specified in the
instrument of appointment.

''(4) The Governor-General may, at any time, by instrument signed by him,
terminate an appointment under sub-section (1).

''(5) Where an officer or employee is acting in an office in accordance with
paragraph (1) (b) or (c) and that office becomes vacant while that officer or
employee is so acting, then, subject to sub-section (3), that officer or
employee may continue so to act until the Governor-General otherwise directs,
the vacancy is filled or a period of 6 months from the date on which the
vacancy occurred expires, whichever first happens.

''(6) While an officer or employee is acting in an office in accordance with
sub-section (1), he has and may exercise all the powers, and shall perform all
the functions, of the holder of that office under this Act or any other law.

''(7) The validity of anything done by or in relation to an officer or
employee purporting to act under sub-section (1) shall not be called in
question on the ground that-

   (a)  the occasion for his appointment had not arisen;

   (b)  there is a defect or irregularity in or in connection with his
        appointment;

   (c)  the appointment had ceased to have effect; or

   (d)  the occasion for him to act had not arisen or had ceased.

''(8) In this section, 'office of Secretary' includes an office referred to in
paragraph (a) of the definition of 'office of Secretary' in sub-section 7 (1)
that is an office to or in relation to which section 9 applies. Dual
appointment of Secretaries of Departments

''40. (1) Where a person who holds an office of Secretary is appointed to hold
another office of Secretary, the person shall, unless the instrument of
appointment to the second-mentioned office otherwise provides, cease to hold
the first-mentioned office upon being so appointed.

''(2) Sub-section (1) does not apply in relation to a person who holds an
appointment to an office of Secretary that is a fixed-term appointment within
the meaning of section 37.

''(3) A person who at any time holds an office of Secretary may be appointed
to act in another office of Secretary and shall not, by reason only of being
so appointed, cease to hold the first-mentioned office.

''(4) Where a person who holds an appointment to act in an office of Secretary
is appointed to act in another office of Secretary, the person shall, unless
the instrument of appointment to act in the second-mentioned office otherwise
provides, cease to hold the first-mentioned appointment upon being so
appointed.

''(5) If a person who holds, or holds an appointment to act in, an office of
Secretary is appointed under sub-section (1), (3) or (4) to hold, or to act
in, another office of Secretary and does not cease to hold, or to hold the
appointment to act in, the first-mentioned office, he shall be paid
remuneration, whether by way of salary, annual allowance or otherwise, in
respect of his holding, or holding the appointment to act in, only one of
those offices.

''(6) Where sub-section (5) applies in relation to a person in respect of 2 or
more offices and the remuneration payable in respect of one or more of those
offices is higher than the remuneration payable in respect of the other office
or other offices, the person shall be paid remuneration in respect of his
holding, or holding an appointment to act in, the office or one of the offices
in respect of which that higher remuneration is payable.

''(7) This section has effect notwithstanding anything contained in any other
section of this Act or in the Remuneration Tribunals Act 1973.

''(8) Nothing in this section shall be construed as excluding the application
of sub-section 19B (3) of the Acts Interpretation Act 1901 in relation to any
provision of this section. Certain provisions not to apply to appointments
under this Subdivision

''41. Sections 18, 33 and 34 do not apply in relation to an appointment
(including an appointment to act in an office) under this Subdivision.
''Subdivision C-Appointment of officers other than Secretaries of
Departments Appointment of officers other than Secretaries of Departments

''42. (1) Subject to this Part, the Board may appoint a person to a particular
office in the Service (not being an office of Secretary) or as an
unattached officer in the Service.

''(2) An unattached officer appointed under sub-section (1) shall have such
classification as the Board determines to be appropriate to his duties.

''(3) A person shall not be appointed as an unattached officer unless he is
qualified for appointment to an office having a classification corresponding
to his classification as an unattached officer. Special appointments

''43. (1) Subject to this section, if in a special case it appears to the
Board to be desirable in the public interest to do so, the Board may, under
this section, appoint to an office in the Service (other than an office of
Secretary) a person who is not ineligible for appointment by reason of
section  34 but does not have the academic or other qualifications required
for appointment to the office by virtue of a notification under sub-section
33A (1).

''(2) An appointment of a person under this section to an office shall not be
made unless the Board certifies, after obtaining a report from the Secretary
of the Department concerned, that it is satisfied that there is no officer
available in the Service who is as capable as that person of filling the
office.

''(3) Where the Board makes an appointment under this section, it shall cause
a statement containing particulars of the appointment, together with a copy of
the report and certificate referred to in sub-section (2), to be laid before
each House of the Parliament within 15 sitting days of that House after the
making of the appointment.''.