Public Service Act 2008

An Act about the administration of the public service and the management and employment of public service employees, and to provide for matters concerning particular agencies, and for other persons involved, in the public sector

Long title amd 2010 No. 37 s 106; 2014 No. 2 s 4

1Short title

This Act may be cited as the Public Service Act 2008.

2Commencement

This Act commences on a day to be fixed by proclamation.

3Main purposes of Act and their achievement

(1)The main purposes of this Act are to—

(a)establish a high performing apolitical public service that is—

(i)responsive to Government priorities; and

(ii)focused on the delivery of services in a professional and non-partisan way; and

(b)promote the effectiveness and efficiency of government entities; and

(c)provide for the administration of the public service and the employment and management of public service employees; and

(d)provide for the rights and obligations of public service employees; and

(e)promote equality of employment opportunity in the public service and in other particular agencies in the public sector.

(2)To help achieve the main purposes, this Act—

(a)fixes principles to guide public service management, public service employment and the work performance and personal conduct of public service employees; and

(b)establishes a Public Service Commission to—

(i)enhance the public service’s human resource management and capability; and

(ii)review and improve the overall effectiveness and efficiency of government entities; and

(c)establishes a chief executive service and a senior executive service to provide the public service with high performing leaders who will actively promote the purposes and the principles.

4Dictionary

The dictionary in schedule 4 defines particular words used in this Act.

5The public service

The Queensland Public Service consists of the persons who are employed under this Act, called public service employees.

6Employment of public service employees

Public service employees are employed in departments or public service offices.

7What are departments

A department is an entity declared under division 2 to be a department of government.

Note—

For public services offices, see section 21.

8Who is a public service officer

A person is a public service officer if the person is employed under this Act as—

(a)a chief executive; or

(b)a senior executive; or

(c)an officer of another type.

Note—

For the appointment of public service officers, see sections 92, 110 and 119.

9Public service employees

(1)A person is a public service employee if the person is employed under this Act as—

(a)a public service officer; or

(b)a general employee; or

(c)a temporary employee.

(2)Public service employees are employees for the Industrial Relations Act 2016.

(3)Subsection (2) is subject to section 217.

Note—

Section 217 excludes particular matters from the concept of industrial matter.

s 9 amd 2010 No. 37 s 107; 2012 No. 7 s 26; 2016 No. 63 ss 1118, 1157 sch 6

10Who is a chief executive

(1)A chief executive, in relation to a department, is the person who holds appointment under this Act as the chief executive of that department.

Notes—

1For public service offices, see sections 22 and 23.

2Under section 104, the chief executive of a chief executive is the Minister.

(2)The chief executive, of a person who is a public service employee, is the chief executive of the department in which the person holds appointment as a public service employee.

(3)Otherwise, a reference to a chief executive is a reference to the chief executive of a department.

11Relationship between chief executives and their public service employees

(1)The chief executive of a department is, for the State, responsible for the employment of public service employees of that department.

(2)The public service employees of a department are responsible to that department’s chief executive in relation to their employment in that department.

Note—

For particular provisions about a chief executive’s functions, see chapter 4, part 1, division 3.

12Application of Act to various types of employees etc.

(1)This Act mainly applies to public service officers.

(2)However, some provisions of this Act expressly apply to all public service employees.

(3)Also, a provision of this Act may expressly apply to, or may, by directive, be applied to a general or temporary employee.

Notes—

1However, for employees of a public service office declared by regulation under section 21, see section 23.

2For the directive-making power, see section 55.

(4)Also, chapters 6 and 7 have provisions relating to the discipline of former public service employees.

s 12 amd 2009 No. 25 s 6; 2010 No. 37 s 108

13Act does not apply to particular offices and employment

(1)This Act does not apply to an office if—

(a)appointments to the office are made by the Governor alone; or

(b)the salary for the office is provided for under the Judicial Remuneration Act 2007, the District Court of Queensland Act 1967 or the Magistrates Act 1991; or

(c)the office is a particular office established by an Act that expressly provides for the appointment of the holder of an office mentioned in paragraph (b); or

(d)the office is honorary.

(2)In addition, this Act does not apply to the employment of a person as associate to a Supreme Court judge, District Court judge or commissioner under the Industrial Relations Act 2016.

(3)Subsection (1) does not prevent the holder of an office mentioned in it from having or exercising powers under this Act.

(4)This section does not limit the application of chapter 1, part 3, division 3.

s 13 amd 2013 No. 29 s 60A; 2014 No. 2 s 5; 2016 No. 63 s 1157 sch 6

14Declaration of departments

(1)The departments of government are the entities declared to be departments of government by the Governor in Council by gazette notice.

(2)A department of government includes the entities declared to be part of the department by the Governor in Council by gazette notice.

15Establishment of departments etc.

The Governor in Council may, by gazette notice—

(a)establish a department or another government entity; or

(b)amalgamate government entities; or

(c)add a government entity to a department or another government entity; or

(d)divide a department or another government entity; or

(e)name or rename a department or another government entity; or

(f)abolish a department or another government entity.

16Declaration of functions of departments etc.

The Governor in Council may, by gazette notice, declare the functions that—

(a)are to be the functions of a department or another government entity; or

(b)are included or not included in the functions of a department or another government entity.

17Giving functions to departments etc.

The Governor in Council may, by gazette notice—

(a)give a function to a department or another government entity; or

(b)change or discontinue a function given to a department or another government entity; or

(c)transfer a function given to a department or another government entity to a different government entity.

18Other powers

(1)The Governor in Council may, by gazette notice or regulation, prescribe anything necessary or convenient to be prescribed—

(a)to enable the making of a division 2 gazette notice; or

(b)for carrying out or giving effect to a division 2 gazette notice; or

(c)because of the making of a division 2 gazette notice.

(2)The Governor in Council may do anything else the Governor in Council considers necessary or convenient to be done—

(a)to enable the making of a division 2 gazette notice; or

(b)to carry out or give effect to a division 2 gazette notice; or

(c)because of the making of a division 2 gazette notice.

Example of action to carry out or give effect to a division 2 gazette notice—

transferring public service employees from a department to another department

(3)In this section—

division 2 gazette notice means a gazette notice made or to be made under this division.

19Provision for public service employees and amalgamations

(1)This section applies if a department (the first department) or a part of the first department is amalgamated with another department or a part of another department.

(2)All public service employees of the first department, or the part of the first department, become public service employees of the other department or the part of the other department, unless the Governor in Council decides otherwise.

(3)This section does not limit or otherwise affect section 18.

20Existence of separate government entities not affected

(1)This section applies if another Act establishes a particular government entity as a separate entity or regulates the existence of an entity as a government entity.

(2)To remove any doubt, it is declared that a gazette notice under this division does not have any effect on the government entity’s separate existence.

21Public service offices and their heads

(1)A public service office is—

(a)an entity that schedule 1 states is a public service office; or

(b)subject to section 23, another designated entity, or part of a designated entity, declared under a regulation to be a public service office.

(2)The head of each public service office is—

(a)for a public service office stated in schedule 1—the person stated opposite its name; or

(b)otherwise—the person declared under a regulation to be the head of the office.

(3)In this section—

designated entity means an entity, or part of an entity, mentioned in section 24(1)(c), (d), (e) or (f) that is not an entity mentioned in section 24(2).

22General provision for application of Acts to public service offices

(1)This section applies subject to section 23 and any regulation made under it.

(2)This Act and other Acts apply to a public service office mentioned in section 21(1)(a) and its public service employees as if—

(a)the office were a department; and

(b)the head of the office were the department’s chief executive.

(3)Without limiting subsection (2), the head of the public service office has, for the office’s public service employees, all of a chief executive’s functions and powers.

(4)This section does not affect—

(a)the provisions about accountable officers under the Financial Accountability Act 2009, section 65; or

(b)the meaning of department under section 8 of that Act.

s 22 amd 2009 No. 9 s 136 sch 1

23Application of Act to public service offices declared under a regulation

(1)This section applies only to a public service office declared under section 21(1)(b).

(2)A provision of a regulation (an application provision) may provide—

(a)that particular provisions of this Act (the applied provisions) are to apply to—

(i)the public service office; or

(ii)persons, other than public service employees, who are employed in the office; and

(b)for the way in which the applied provisions are to apply, including, for example, that they apply with or without change.

(4)If an application provision is made for the public service office—

(a)this Act applies, and only applies, to the following to the extent provided for under the provision—

(i)the public service office;

(ii)persons, other than public service employees, who are employed in the office; and

(b)this Act applies as mentioned in paragraph (a) with necessary changes; and

(c)the public service office is a public service office only for this Act as provided under this section and not for the purposes of any other Act.

(5)A regulation may prescribe anything necessary or convenient to be prescribed for an application provision—

(a)to enable the provision to be made; or

(b)to carry out or give effect to the provision; or

(c)because of the making of the provision, including the portability of employment rights and entitlements.

s 23 amd 2012 No. 22 s 3A

24What is a government entity

(1)An entity is a government entity if it is—

(a)a department or part of a department; or

(b)a public service office or part of a public service office; or

(c)an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State purpose; or

(d)a part of an entity mentioned in paragraph (c); or

(e)another entity, or part of another entity, declared under a regulation to be a government entity; or

(f)a registry or other administrative office of a court of the State of any jurisdiction.

(2)However, each of the following entities is not a government entity—

(a)a local government;

(b)a corporation owned by a local government, or a subsidiary of a corporation owned by a local government;

(c)the parliamentary service;

(d)the Governor’s official residence (known as ‘Government House’) and its associated administrative unit;

(e)the Executive Council;

(f)the Legislative Assembly;

(g)a court of the State of any jurisdiction;

(h)the police service to the extent that it does not include staff members mentioned in the Police Service Administration Act 1990, section 2.5(1)(a);

(i)a school council established under the Education (General Provisions) Act 2006 or a university established under an Act;

(j)a cooperative under the Cooperatives Act 1997 for primary producers that is not in receipt of moneys of, or financial assistance from, the State;

(k)a government owned corporation, unless a regulation declares it to be a government entity;

(l)another entity, or part of another entity, declared under a regulation not to be a government entity.

s 24 amd 2009 No. 17 s 331 sch 1; 2012 No. 33 s 188; 2014 No. 25 s 223 sch 1pt 2

div hdg ins 2014 No. 2 s 6

25The management and employment principles

(1)Public service management is to be directed towards—

(a)providing responsive, effective and efficient services to the community and the Government; and

(b)maintaining impartiality and integrity in informing, advising and assisting the Government; and

(c)promoting collaboration between Government and non-government sectors in providing services to the community; and

(d)continuously improving public service administration, performance management and service delivery; and

(e)managing public resources efficiently, responsibly and in a fully accountable way; and

(f)promoting the Government as an employer of choice; and

(g)promoting equality of employment opportunity.

(2)Public service employment is to be directed towards promoting—

(a)best practice human resource management; and

(b)equitable and flexible working environments in which all public service employees are—

(i)treated fairly and reasonably; and

(ii)remunerated at rates appropriate to their responsibilities; and

(c)a diverse and highly skilled workforce drawing from Government and non-government sectors.

(3)Subsections (1) and (2) are the management and employment principles.

div hdg ins 2014 No. 2 s 7

26Work performance and personal conduct principles

(1)In recognition that public service employment involves a public trust, a public service employee’s work performance and personal conduct must be directed towards—

(a)achieving excellence in service delivery; and

(b)ensuring the effective, efficient and appropriate use of public resources; and

(c)giving effect to Government policies and priorities; and

(d)collaborating with other departments with a focus on public service-wide priorities as well as department-specific priorities; and

(e)providing sound and impartial advice to the Government; and

(f)improving all aspects of the employee’s work performance; and

(g)carrying out duties impartially and with integrity; and

(h)acting honestly, fairly and in the public interest; and

(i)interacting with staff members under the Ministerial and Other Office Holder Staff Act 2010 respectfully, collaboratively and with integrity; and

(j)observing all laws relevant to the employment; and

(k)ensuring the employee’s personal conduct does not reflect adversely on the reputation of the public service; and

(l)observing the ethics principles under the Public Sector Ethics Act 1994, section 4; and

(m)complying with an approved code of conduct and any approved standard of practice as required under the Public Sector Ethics Act 1994, section 12H or 18.

(2)Also, a public service manager must take all reasonable steps to ensure each public service employee under the manager’s management is aware of the following—

(a)the work performance and personal conduct expected of the employee;

(b)the values of the public service and of the department or public service office in which the employee is employed;

(c)what constitutes corrupt conduct under the Crime and Corruption Act 2001.

(3)Further, a public service manager must—

(a)pro-actively manage the work performance and personal conduct of public service employees under the manager’s management; and

(b)if a case of unacceptable work performance or personal conduct arises, take prompt and appropriate action to address the matter.

(4)In this section—

public service manager means a public service employee whose duties involve or include managing other public service employees in the carrying out of their duties.

s 26 amd 2010 No. 36 s 54; 2010 No. 37 s 109; 2014 No. 21 s 84

div 3 (ss 26A–26C) ins 2014 No. 2 s 8

26AMain purpose of div 3

The main purpose of this division is to support—

(a)the management and employment principles; and

(b)the principles mentioned in section 26.

div 3 (ss 26A–26C) ins 2014 No. 2 s 8

26BApplication of div 3

(1)This division applies to each of the following—

(a)a public service employee;

(b)a ministerial staff member within the meaning of the Ministerial and Other Office Holder Staff Act 2010;

(c)a person mentioned in section 13(2);

(d)a person appointed under an Act (other than this Act) if the appointment involves the person acting for or representing the State;

(e)a person who is not a public service employee but who is a member or employee of a government entity that represents the State;

(f)a person (other than a public service employee) to whom a function or power of a person mentioned in paragraph (a), (d) or (e) is delegated under an Act;

(g)another person prescribed by regulation as a State employee.

(2)Also, this division applies to a person who was a person of the type mentioned in subsection (1) at the time the person engaged in conduct in an official capacity.

(3)Despite subsections (1) and (2), this division does not apply to the following—

(a)a person who is the holder of an office mentioned in section 13(1);

(b)a person to whom the Police Service Administration Act 1990, section 10.5 applies;

(c)a person employed in or appointed by—

(i)a GOC; or

(ii)a subsidiary of a GOC under the Corporations Act; or

(iii)a government entity within the meaning of the Government Owned Corporations Act 1993 declared by regulation under that Act to be a subsidiary of a GOC; or

(iv)a government company within the meaning of the Government Owned Corporations Act 1993, section 2;

(d)another person prescribed by regulation as a person who is not a State employee, including a person to whom this division would otherwise apply because of subsection (1)(d), (e) or (f).

(4)A person to whom this division applies is a State employee.

div 3 (ss 26A–26C) ins 2014 No. 2 s 8

26CCivil liability of State employee for engaging in conduct in official capacity

(1)A State employee does not incur civil liability for engaging, or for the result of engaging, in conduct in an official capacity.

(2)If subsection (1) prevents liability attaching to a State employee, the liability attaches instead as follows—

(a)if paragraph (b) does not apply—to the State;

(b)if, at the time the State employee engaged in the conduct, the person did so as a member of a body corporate or the governing body of a body corporate, or as a person who was employed by, appointed by or a delegate of, a body corporate—the body corporate.

(3)If liability attaches to the State under subsection (2)(a), the State may recover contribution from the State employee but only if the conduct was engaged in—

(a)other than in good faith; and

(b)with gross negligence.

(4)If liability attaches to a body corporate under subsection (2)(b), the body corporate may recover contribution from the State employee but only if the conduct was engaged in—

(a)other than in good faith; and

(b)with gross negligence.

(5)In a proceeding under subsection (3) or (4) to recover contribution, the amount of contribution recoverable is the amount found by the court to be just and equitable in the circumstances.

(6)In this section—

civil liability, of a State employee for engaging, or for the result of engaging, in conduct in an official capacity, means liability of any type for the payment of an amount by the State employee because of—

(a)a claim based in tort, contract or another form of action in relation to the conduct or result, including, for example, breach of statutory duty or defamation and, for a fatal injury, includes a claim for the deceased’s dependants or estate; or

(b)a complaint made under a law that provides a person may complain about the conduct or result to an entity established under the law, other than a complaint to start criminal proceedings, including, for example, a complaint under the Justices Act 1886; or

(c)an order of a court to pay costs relating to a proceeding for an offence against a law in relation to the conduct or result, unless the proceeding was for an offence by the State employee.

Examples of types of liability—

•a liability because of an agreement or an order under the Anti-Discrimination Act 1991 or the Australian Human Rights Commission Act 1986 (Cwlth) requiring payment of an amount to a complainant (however described) under the Act

•a liability because of an obligation under an agreement to settle a proceeding, or an order of a court or tribunal, to do something that involves paying an amount, including an obligation to rectify damage to a building or to publish an apology in a newspaper

conduct means an act or an omission to perform an act.

engage in conduct in an official capacity means engage in conduct as part of, or otherwise in connection with, a person’s role as a State employee, including, for example, engaging in conduct under or purportedly under an Act.

Example of a State employee engaging in conduct in an official capacity—

A State employee makes a decision in relation to an application for a licence.

State employee see section 26B(4).

div 3 (ss 26A–26C) ins 2014 No. 2 s 8

27The merit principle

(1)The selection, under this Act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone (the merit principle).

(2)The merit principle applies subject to chapter 5, part 2, division 2.

Editor’s note—

chapter 5, part 2, division 2 (Reappointment of particular election candidates)

(3)In this section—

appointment does not include a transfer.

28Merit criteria

In applying the merit principle to a person, the following must be taken into account—

(a)the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;

(b)if relevant—

(i)the way in which the person carried out any previous employment or occupational duties; and

(ii)the extent to which the person has potential for development.

29Directives about applying the merit principle

(1)A directive of the commission chief executive may provide for how selection, under the merit principle, for a stated type of appointment or secondment must be carried out.

(2)A selection for an appointment or secondment must comply with any relevant directive under subsection (1).

30General EEO obligation

(1)Each of the following entities (a relevant EEO agency) must act to promote EEO for employment matters that concern it—

(a)a government entity;

(b)the police service;

(c)an entity that another Act provides is a relevant EEO agency;

(d)an entity prescribed under a regulation.

(2)Without limiting subsection (1), each relevant EEO agency must act to—

(a)enable members of the EEO target groups to do the following as effectively as people who are not members of those groups—

(i)compete for recruitment, selection, promotion and transfer;

(ii)pursue careers; and

(b)eliminate unlawful discrimination about employment matters by the agency or its employees against members of the EEO target groups.

(3)To remove any doubt, it is declared that this section, does not require the taking of action incompatible with the merit principle.

(4)In this section—

EEO target groups means all of the following groups—

(a)people of the Aboriginal race of Australia or people who are descendants of the indigenous inhabitants of the Torres Strait Islands;

(b)people who have migrated to Australia and whose first language is a language other than English, and the children of those people;

(c)people with a physical, sensory, intellectual or psychiatric disability, whether the disability presently exists or previously existed but no longer exists;

(d)women, irrespective of age;

(e)a group of people prescribed under a regulation.

employees means individuals appointed or engaged—

(a)under a contract of service, whether on a full-time, part-time, permanent, casual or temporary basis; or

(b)under a statutory appointment.

employment matters means—

(a)recruitment procedure, and selection criteria, for appointment or engagement of people as employees; or

(b)promotion, transfer or redeployment of employees; or

(c)training and staff development for employees; or

(d)terms and conditions of service and separation of employees; or

(e)any other matter relating to the employment of employees.

unlawful discrimination means discrimination that is unlawful under the Anti-Discrimination Act 1991.

31Annual EEO reporting requirement

(1)Each relevant EEO agency must, for each financial year, give the commission chief executive a report about the outcome of its actions required with section 30 during the financial year.

(2)The report must be given within 3 months after the end the financial year.

(3)The report may be included in other documents the relevant EEO agency gives the commission chief executive.

32Exemption from reporting requirement

(1)If a relevant EEO agency asks, the commission chief executive may grant the agency an exemption from the operation of section 31.

(2)The exemption may be for all financial years or a particular financial year.

(3)The commission chief executive may cancel all or part of the exemption.

(4)The exemption or cancellation must be written.

33Commission chief executive may take action if dissatisfied with report

(1)This section applies if the commission chief executive is dissatisfied with any matter relating to a report under section 31.

(2)The commission chief executive may recommend to the relevant EEO agency’s chief executive the taking of action to overcome that dissatisfaction.

34Compliance with recommendation

If a relevant EEO agency is given a recommendation under section 33, its chief executive must—

(a)ensure the action recommended to be taken; or

(b)give the Minister administering the Act relevant to the agency and the commission chief executive a notice stating the reasons why the action can not be taken.

35Meaning of public service office for pt 1

In this part, public service office—

(a)includes—

(i)a department or part of a department; and

(ii)the police service; but

(b)does not include—

(i)the integrity commissioner; or

(ii)the office of the information commissioner; or

(iii)the audit office.

s 35 amd 2009 No. 13 s 213 sch 5

36Minister’s role for the public service and public service offices

(1)The Minister has the following functions—

(a)to promote the overall effectiveness and efficiency of the public service;

(b)to assess the appropriateness, effectiveness and efficiency of public service management, and in particular, departments or parts of departments;

(c)to advise departmental Ministers about steps that should be taken to improve the public service’s effectiveness and efficiency;

(d)to authorise reviews of activities or functions of public service offices;

(e)to refer to the commission for review matters relating to the effectiveness or efficiency of public service offices;

(f)to monitor the performance of the commission’s functions.

(2)Subsection (1) does not limit or otherwise affect the Minister’s other functions or require the Minister to carry out any particular action.

37Report on effectiveness and efficiency

(1)The Minister may, by signed notice, refer to the commission any matter relating to the effectiveness or efficiency of a public service office for the commission to review and report to the Minister about (a commission review).

(2)The reference may be for a single commission review for 2 or more public service offices.

(3)Each chief executive or head of a public service office the subject of the reference must give the commission the help it reasonably requires to conduct the review.

(4)The Minister must table the report in the Legislative Assembly.

Note—

For particular provisions about commission reviews, see part 4.

38Matters that may be included in referral

To ensure a commission review is conducted appropriately, the Minister may, when referring a matter to the commission, do all or any of the following—

(a)ask it to consider and advise whether the review is warranted;

(b)give terms of reference for the review;

(c)state the entities with whom it must consult for the review;

(d)state a period within which it must give its report;

(e)ask it to give a draft report to the Minister, another Minister, a chief executive, public service office head or another stated entity for comment before finalising the review;

(f)ask it to make recommendations about a stated matter.

39Chief executive report on management and employment principles

(1)The Minister may require the chief executive of a department to give the Minister a report about particular aspects of the department’s application of the management and employment principles.

(2)The report must be given to the Minister within the time the Minister requires.

(3)To help the Minister to decide whether to require reports under subsection (1), the commission may, of its own initiative, give the Minister advice about the application of the management and employment principles.

40Obtaining report on functions or activities

(1)The Minister may, by signed notice, authorise a person (the authorised person) to conduct a review (a management review) of the functions or activities of a stated public service office.

Note—

For management reviews of the audit office, see the Auditor-General Act 2009.

(2)Before or after giving the authorisation, the Minister may—

(a)inform the departmental Minister and the chief executive or the head of the public service office about the management review; and

(b)give the chief executive or the head of the public service office an opportunity to nominate a stated number of employees of the public service office to take part in the management review.

(3)The authorisation may be for a single management review for 2 or more public service offices.

(4)The authorised person must give the Minister a report on the review, including any findings or recommendations.

(5)The Minister may give a copy of the report to the departmental Minister, the chief executive or head and anyone else the Minister considers appropriate.

s 40 amd 2009 No. 9 s 136 sch 1

41Conduct of management reviews

(1)A person authorised under section 40 to conduct a management review—

(a)must produce the person’s authority if asked by someone concerned in the review; and

(b)may, for conducting the review, do any or all of the following—

(i)enter official premises of the public service office the subject of the review at any reasonable time;

(ii)require the production of, examine, copy, or take an extract from, any official document in the possession of the public service office;

(iii)interview employees of the public service office;

(iv)interview anyone else who can provide information relevant to the review.

Example of another person who can provide information—

a client of services provided by the public service office

(2)The chief executive or the head of the public service office and each other person employed in the office must give the authorised person the help the authorised person reasonably requires to conduct the review.

(3)Without limiting subsection (2), the authorised person may require a person employed in the public service office to answer any question relevant to the review.

(4)However, the employee need not answer the question if—

(a)the employee objects to answering the question because answering it might tend to incriminate the employee of a criminal offence; and

(b)the employee would have a claim of privilege against self-incrimination in relation to a criminal offence if the employee were asked the question in a Supreme Court action.

(5)In this section—

official document, in the possession of the public service office, includes an official document—

(a)under its control or to which it is entitled to access, whether or not created in the public service office; and

(b)in the possession, or under the control, of a person employed in the public service office in his or her official capacity.

42Minister may direct action about surplus public service employees

(1)This section applies if the Minister is satisfied more public service employees are employed in a department than it needs for the effective, efficient and appropriate performance of its functions.

(2)The Minister may direct the department’s chief executive to take action in accordance with relevant rulings of the commission chief executive.

43Establishment

The Public Service Commission is established.

44Commission represents the State

(1)The commission represents the State.

(2)Without limiting subsection (1), the commission has the status, privileges and immunities of the State.

45Commissioners

The commission consists of the following persons (each a commissioner)—

(a)the commission chief executive;

(b)each chief executive of the department in which each of the following Acts is administered—

•Parliament of Queensland Act 2001

•Statutory Bodies Financial Arrangements Act 1982;

(c)a person appointed by the Governor in Council as the chairperson of the commission.

Note—

For particular provisions about the commission chief executive and other commissioners, see part 4, division 1.

s 45 amd 2012 No. 7 s 26A

46Main functions

(1)The commission’s main functions are to do the following—

(a)enhance the public service’s human resource management and capability;

(b)promote the management and employment principles;

(c)enhance and promote an ethical culture and ethical decision-making across the public service;

(d)enhance the public service’s leadership and management capabilities in relation to disciplinary matters;

(e)conduct commission reviews;

(ea)conduct reviews under part 6 about the handling by departments of work performance matters;

(f)develop and implement public service-wide workforce management strategies;

(g)together with the departments responsible for public sector industrial relations and public sector financial policy, consider improvements in the performance of departments through remuneration and conditions of employment;

(h)facilitate the purposes of the chief executive and senior executive services and the position of senior officer;

(i)report, at least annually, to the Minister on the application of the management and employment principles within the public service, including reporting on the following—

(i)the application of the principles, as a whole, within the public service as a whole;

(ii)the application of only 1 or more of the principles within the public service as a whole or a part of the public service;

(iii)the application of 1 or more of the principles for a specific purpose or to a specific group of persons;

(j)monitor, and report to the Minister about, the workforce profile of the public service;

(k)advise the Minister about the need for commission reviews about particular matters;

(l)promote a culture of continuous improvement and organisational performance management across all public service offices;

(m)provide a best practice advisory role on public service management, organisational performance management and workforce practices.

(2)In performing its functions, the commission must have regard to the management and employment principles.

(3)In this section—

workforce profile means the demographic categories and other characteristics of a workforce.

s 46 amd 2010 No. 37 s 110; 2014 No. 21 s 85

47Types of ruling

(1)Division 2 and particular other provisions of this Act authorise the making of instruments about persons who are, or who wish to become, or were, public service employees or other employees in public service offices.

Example of another provision—

chapter 5, part 6 (Assessing suitability of persons to be engaged in particular employment)

(2)A directive is an instrument of a type mentioned in subsection (1) that the instrument states is a directive.

(3)A directive binds the persons to whom it applies.

(4)A guideline is an instrument of a type mentioned in subsection (1) that the instrument states is a guideline.

(5)A guideline is for the guidance only of the persons to whom it applies.

(6)A ruling is a directive or a guideline.

s 47 amd 2009 No. 25 s 7

48Making of and access to rulings

(1)A directive may be made only by gazette notice.

(2)A guideline may be made in the way the person making it considers appropriate.

(3)After a person makes a ruling, the person must ensure it is published on the following website as soon as practicable—

(a)if the person is the commission chief executive—the commission’s website;

(b)if the person is the industrial relations Minister—the website of the department in which the Industrial Relations Act 2016 is administered.

(4)A failure to comply with subsection (3) does not invalidate or otherwise affect the ruling.

s 48 amd 2016 No. 63 s 1157 sch 6

49General references to a ruling

A reference to a ruling or a type of ruling, without specifying who made it, is a reference to any ruling, or any ruling of that type.

49AConsultation for directives

(1)This section applies if the commission chief executive or the industrial relations Minister proposes to make a directive that affects—

(a)a public service agency; or

(b)public service employees who are entitled to be represented by an employee organisation.

(2)The commission chief executive or the industrial relations Minister must consult with the public service agency and employee organisation about the making of the proposed directive.

(3)In this section—

employee organisation see the Industrial Relations Act 2016, schedule 5.

public service agency means—

(a)a department; or

(b)a public service office.

s 49A ins 2016 No. 63 s 1119

50Criteria for making a ruling

In making a ruling, the commission chief executive or the industrial relations Minister must consider any advice given to the other about improving the public service’s effectiveness and efficiency.

Note—

For rulings that are to specifically apply to the audit office, see also the Auditor-General Act 2009.

s 50 amd 2009 No. 9 s 136 sch 1

51Relationship with legislation

(1)If a ruling is inconsistent with an Act or subordinate legislation, the Act or subordinate legislation prevails to the extent of the inconsistency.

(2)For subsection (1), a ruling is not inconsistent with an Act or subordinate legislation to the extent that the ruling is at least as favourable as the Act or subordinate legislation.

s 51 amd 2016 No. 63 s 1120

52Relationship between directives and industrial instruments

(1)This section applies if a directive deals with a matter all or part of which is dealt with under an industrial instrument.

(2)The industrial instrument prevails over the directive to the extent of any inconsistency between the directive and the industrial instrument.

(3)For subsection (2), a directive is not inconsistent with an industrial instrument to the extent that the remuneration and conditions of employment provided for in the directive are at least as favourable as the remuneration and conditions of employment provided for in the industrial instrument.

(4)In this section—

directive includes—

(a)a directive as applied by a regulation made for section 23; and

(b)a decision made in the exercise of a discretion under a directive.

s 52 sub 2016 No. 63 s 1121

53Rulings by commission chief executive

(1)The commission chief executive may make a ruling about—

(a)a matter relating to any of the commission’s or the commission chief executive’s functions; or

Examples of what a ruling by the commission chief executive may be about—

•recruitment and selection, deployment, training and development of public service employees

•the transfer or redeployment of public service employees surplus to the needs of a department

•overall performance management standards for the public service

(b)the overall employment conditions for persons employed or to be employed as—

(i)chief executives, senior executives or senior officers; or

(ii)public service officers on contract whose remuneration is equal to, or higher than, the remuneration payable to a senior officer; or

(ba)a matter relating to the application of chapter 6 or 7 to a former public service employee; or

(c)other specific matters that, under this Act, the commission chief executive may make a ruling about.

(2)To remove any doubt, it is declared that the commission chief executive can not make a ruling about the remuneration or conditions of employment of a public service employee who is covered by an industrial instrument.

s 53 amd 2009 No. 25 s 8; 2010 No. 37 s 111; 2012 No. 22 s 3B; 2016 No. 63 s 1122

54Rulings by industrial relations Minister

(1)The industrial relations Minister may make rulings about—

(a)the remuneration and conditions of employment of non-executive employees; or

(b)other matters under this Act that the Minister may make a ruling about.

(2)However, a ruling under subsection (1)(b) may only be made for non-executive employees.

(3)To remove any doubt, it is declared that the industrial relations Minister can make a ruling about the remuneration or conditions of employment of a public service employee who is covered by an industrial instrument.

(4)In this section—

non-executive employees means public service employees other than—

(a)chief executives, senior executives or senior officers; or

(b)other public service officers on contract whose remuneration is equal to, or higher than, the remuneration payable to a senior officer.

s 54 amd 2016 No. 63 s 1123

54AJoint rulings

Nothing in this Act or the Industrial Relations Act 2016 prevents the commission chief executive and the industrial relations Minister from making a joint ruling.

s 54A ins 2016 No. 63 s 1124

55Directives to apply Act to general and temporary employees

(1)A directive may apply a provision of this Act to a general employee or temporary employee.

(2)The provision applies to the employee in the following ways (the directive’s application)—

(a)as if the employee were a public service officer;

(b)with necessary changes and any other changes prescribed under a directive of the commission chief executive.

(3)The directive may prescribe anything necessary or convenient—

(a)to make the directive or for its application; or

(b)to carry out or give effect to the directive or its application; or

(c)because of the making of the directive or its application.

56Appointment

(1)The Governor in Council must appoint a person as the chief executive of the commission (the commission chief executive).

(2)A disqualified person can not be appointed.

(3)The term of the appointment is decided by the Governor in Council.

(4)However, the term can not be more than 5 years.

(5)The appointment must be on a full-time basis.

57Basis of employment

(1)A person appointed as the commission chief executive must enter into a written contract of employment with the Minister.

(2)Without limiting subsection (1), the contract may provide—

(a)for the commission chief executive to meet performance standards set by the Minister; and

(b)for the remuneration to which the person is entitled; and

(c)that the appointment and contract of employment may be terminated by the Governor in Council by notice signed by the Minister given to the person at least 1 month before it is to take effect.

(3)The conditions of the contract are to be approved by the Minister.

(4)The appointee’s conditions of employment are governed by this Act and the contract.

s 57 amd 2010 No. 37 s 112

58Main functions

(1)The commission chief executive is responsible for the performance of the commission’s functions.

(2)The commission chief executive’s other main functions are to do the following—

(a)approve final reports for commission reviews;

(b)make rulings;

(c)appoint and second senior executives;

(d)facilitate the development of senior executives and senior officers;

(e)perform other duties as directed by the Minister.

s 58 amd 2010 No. 37 s 113

59Duty in performing functions

The commission chief executive must perform his or her functions independently, impartially, fairly, and in the public interest.

60Acting as commission chief executive

(1)The Minister may appoint a person to act as the commission chief executive during any period or all periods when—

(a)there is a vacancy in the office; or

(b)the commission chief executive is absent from duty or is, for another reason, unable to perform the functions of commissioner.

(2)It does not matter whether the appointee is or is not a public service officer.

61Preservation of commission chief executive’s accrued rights

(1)This section applies if a public service officer is appointed as the commission chief executive.

(2)The person keeps all rights accrued or accruing to the person as a public service officer as if service as the commission chief executive were a continuation of service as a public service officer.

62Delegation

(1)The commission chief executive may delegate his or her functions under this Act to an appropriately qualified staff member of the commission.

(2)The commission chief executive may also delegate his or her functions under section 88I to any other appropriately qualified entity.

(3)However, the commission chief executive can not delegate the functions of—

(a)approving final reports for commission reviews; or

(b)making rulings; or

(c)appointing or seconding senior executives.

s 62 amd 2010 No. 37 s 114; 2014 No. 21 s 86

63Resignation

(1)The commission chief executive may resign by signed notice given to the Minister.

(2)However, at least 1 month’s notice of resignation must be given.

sdiv hdg sub 2012 No. 7 s 58 sch

64Appointment

(1)This section applies for the appointment of a person as the chairperson of the commission.

(2)A disqualified person can not be appointed.

(3)The term of the appointment and the conditions of office not provided for under this division are decided by the Governor in Council.

(4)However, the term can not be more than 5 years.

s 64 amd 2012 No. 7 s 58 sch

65Disclosure of interests

(1)This section applies if—

(a)the chairperson has an interest in a matter being considered, or about to be considered, by the commission at a commission meeting; and

(b)the interest could conflict with the proper performance of the chairperson’s functions for the matter.

(2)The chairperson must, as soon as practicable, disclose the interest to the commission chief executive.

(3)Unless the commission otherwise decides, the chairperson must not participate in the commission’s consideration of the matter at the meeting.

(4)A reference to an interest or to a conflict of interest is a reference to those matters within their ordinary meaning under the general law, and, in relation to an interest, the definition in the Acts Interpretation Act 1954, schedule 1, does not apply.

s 65 amd 2009 No. 25 s 9; 2012 No. 7 s 58 sch; 2013 No. 39 s 110 (1) sch 3pt 1

66Resignation

The chairperson may resign by signed notice given to the Minister.

s 66 amd 2012 No. 7 s 58 sch

67Criminal history checks to confirm suitability for appointment

(1)To help decide whether a person is suitable for nomination for appointment as the commission chief executive or the chairperson, the Minister may ask the police commissioner for a report about the person’s criminal history.

(2)However, the Minister may make the request only if the person has given the Minister written consent for the request.

(3)The police commissioner must comply with the request.

(4)However, subsection (3) applies only to information in the police commissioner’s possession or to which the commissioner has access.

(5)If the criminal history of the person includes a conviction recorded against the person, the commissioner’s report must be written.

(6)The Minister must destroy the report as soon as practicable after the decision has been made.

s 67 amd 2012 No. 7 s 58 sch

69Conduct of business

Subject to this part, the commission may conduct its business, including its meetings, in the way it considers appropriate.

70Times and places of meetings

(1)Commission meetings are to be held at the times and places the chairperson decides.

(2)However, the chairperson must call a meeting if asked, in writing, to do so by at least 2 commissioners.

(3)Also, the chairperson must call a meeting at least once in each quarter.

s 70 amd 2012 No. 7 s 58 sch

71Quorum

A quorum for a commission meeting is any 2 commissioners.

s 71 amd 2012 No. 7 s 58 sch

72Meeting deputies for particular commissioners

(1)A commissioner who is a chief executive of a department may, by signed notice, appoint an appropriately qualified public service officer as his or her deputy.

(2)The deputy may, as the commissioner’s delegate, attend a commission meeting in the commissioner’s absence and exercise the commissioner’s powers under this Act at the meeting.

(3)A deputy attending a commission meeting is to be counted in deciding if there is a quorum for the meeting.

73Presiding at meetings

(1)The chairperson is to preside at all commission meetings at which the chairperson is personally present.

(2)If the chairperson is absent from a commission meeting, the commissioner chosen by the commissioners present is to preside.

s 73 amd 2012 No. 7 s 58 sch

74Conduct of meetings

(1)The commission may hold meetings, or allow commissioners to take part in its meetings, by using any technology allowing reasonably contemporaneous and continuous communication between persons taking part in the meeting.

(2)A person who takes part in a commission meeting under subsection (1) is taken to be present at the meeting.

75Decisions outside meetings

A decision of the commission, other than a decision at a commission meeting, is validly made if—

(a)the decision is made with the written agreement of at least 2 commissioners; and

(b)notice of the proposed decision is given under procedures approved by the commission.

s 75 amd 2012 No. 7 s 58 sch

76Minutes and record of decisions

The commission must keep—

(a)minutes of its meetings; and

(b)a record of any decisions under section 65(3) or 75.

77Staff members of the commission

(1)The commission chief executive may—

(a)employ the persons he or she considers necessary to perform the commission’s functions; and

(b)arrange with the chief executive of a department or the head of a public service office for the services of its public service employees to be made available to the commission.

(2)Persons employed or made available under subsection (1) are staff members of the commission.

s 77 amd 2010 No. 37 s 115; 2012 No. 7 s 27

78Staff generally subject to direction by commission chief executive

Staff members of the commission are subject to the direction of the commission chief executive relating to the performance of the commission’s functions.

s 78 amd 2010 No. 37 s 116; 2012 No. 7 s 28; 2012 No. 22 s 4

79Agents

(1)To meet temporary circumstances, the commission chief executive may engage suitably qualified persons to provide the commission with services, information or advice.

(2)The engagement of the persons is on the terms and conditions decided by the commission chief executive, and not under this Act.

80Minister to be kept informed of conduct of review

The commission chief executive must keep the Minister informed of the general conduct of each commission review.

81Minister may obtain information from commission

(1)If the Minister asks the commission for particular information concerning a matter relating to a commission review, the commission must—

(a)comply with the request; and

(b)give the help the Minister needs to consider the information.

(2)Information provided to the Minister under subsection (1) is confidential.

82Disclosures to commission for review

A person may disclose a document or information to the commission or a commission official for the purpose of a commission review.

83Affected agencies to be given a draft report

(1)This section applies if a particular public service office is the subject of a commission review.

(2)The commission must—

(a)prepare a draft report for the review; and

(b)give a copy of the draft report to the public service office; and

(c)give the public service office a reasonable opportunity to respond to the draft report; and

(d)have regard to any response before preparing a final report for the review and giving it to the Minister.

(3)In its response, the public service office may ask the commission to include a particular statement in the commission’s final report.

84Content

A final report for a commission review must be approved by the commission chief executive and include—

(a)a consideration of relevant viewpoints and options to address the issues covered by the report; and

(b)the commission’s recommendations relating to the issues; and

(c)details of the consultation undertaken in the course of the review; and

(d)any statement the commission is asked to include under section 83(3).

85Procedure for reporting sensitive information

(1)This section applies if the commission considers that, apart from this section, information that would be included in a draft report or final report for a commission review is sensitive information.

(2)The commission need not include the information in the report.

(3)If the report is a final report, the commission may include the information in a separate document given to the Minister.

(4)In this section—

sensitive information means information—

(a)that would be contrary to the public interest to disclose; or

Examples of when disclosing information may be contrary to the public interest—

1The disclosure would have a serious adverse effect on someone’s commercial interests.

2The disclosure would reveal trade secrets.

3The disclosure would cause damage to the relations between the Government of the State and another Government.

(b)for which, in any judicial proceeding, the State would have a basis for claiming that disclosure should not be permitted.

86How commission’s functions may be performed

(1)The commission may make enquiries, gather information and otherwise engage in activities necessary to perform its functions.

(2)In performing its functions, the commission—

(a)need not act in a formal way; and

(b)may inform itself in the way it considers appropriate; and

(c)may consult with anyone it considers appropriate; and

(d)may receive written or oral submissions and other information.

(3)However, for a commission review, the functions must be performed consistently with the terms of the Minister’s referral for the review.

87Confidentiality relating to commission reviews

(1)This section applies to a person who—

(a)is or has been a commission official; and

(b)in that capacity acquired protected information or has or had access to, or custody of, a document containing protected information.

(2)The person must not—

(a)make a record of protected information; or

(b)whether directly or indirectly, divulge or communicate protected information; or

(c)use protected information to benefit any person.

Maximum penalty—200 penalty units or 1 year’s imprisonment.

(3)However, subsection (2) does not apply if the record is made, or the information is divulged, communicated or used—

(a)to the extent necessary to perform the person’s functions under or relating to this Act; or

(b)with the consent of the entity to which the information relates; or

(c)as required or permitted by law.

(4)In this section—

protected information means information not publicly available obtained for a commission review.

pt hdg amd 2012 No. 7 s 29

sub 2016 No. 63 s 1125

88AFunctions of IRC members include functions under this Act

(1)An IRC member has functions under this Act.

(2)The performance of functions by an IRC member under this Act does not limit the member’s functions under the Industrial Relations Act 2016 unless otherwise provided.

(3)The performance of functions by an IRC member under this Act is taken to be service as an IRC member under the Industrial Relations Act 2016.

s 88A ins 2010 No. 37 s 117

sub 2012 No. 7 s 31

amd 2013 No. 29 s 62

sub 2016 No. 63 s 1125

88BSenior IRC member

(1)The president of the IRC is the senior IRC member for this Act.

(2)The president may delegate the functions of the senior IRC member to another IRC member.

s 88B prev s 88B ins 2010 No. 37 s 117

om 2012 No. 7 s 32

pres s 88B ins 2013 No. 29 s 63

sub 2016 No. 63 s 1125

88CFunctions of IRC members

(1)An IRC member’s function under this Act is to hear and decide appeals under chapter 7, part 1.

(2)The senior IRC member also has the function under this Act of making decisions and directions about practice under sections 203A and 203B.

(3)The senior IRC member may delegate the member’s function under subsection (2) to another IRC member.

s 88C ins 2010 No. 37 s 117

sub 2012 No. 7 s 33

amd 2013 No. 29 s 64

sub 2016 No. 63 s 1125

pt 6 (ss 88H–88N) ins 2014 No. 21 s 87

88HDefinitions for pt 6

In this part—

information includes a document.

public service employee includes a person who was a public service employee.

work performance information directive means a directive issued by the commission chief executive under section 53(a) under which a department must give the commission information about work performance matters being, or that have been, handled by the department.

work performance matter means a matter involving a public service employee’s work performance or personal conduct, including, for example, an allegation against the employee that constitutes or would, if proved, constitute a disciplinary ground.

pt 6 (ss 88H–88N) ins 2014 No. 21 s 87

88ICommission may conduct review of department’s handling of work performance matters

(1)This section applies if, on the basis of information received under a work performance information directive, the commission chief executive reasonably considers it may be beneficial to conduct a review under this section to promote—

(a)the continuous improvement of a department’s practices regarding the handling of work performance matters; or

(b)the optimal resolution of a current work performance matter.

(2)The commission may—

(a)conduct a review of—

(i)1 or more work performance matters that have been handled by the department; or

(ii)a current work performance matter; and

(b)give the chief executive of the department a report about the review.

(3)The report mentioned in subsection (2)(b) must include any recommendations made by the commission about—

(a)for a review mentioned in subsection (2)(a)(i)—improvements to the department’s practices regarding the handling of work performance matters; or

(b)for a review mentioned in subsection (2)(a)(ii)—the optimal resolution of the current work performance matter the subject of the review.

(4)A review under this section must be conducted—

(a)by the commission chief executive; or

(b)for the commission chief executive by—

(i)a staff member of the commission to whom the function is delegated under section 62(1); or

(ii)any other appropriately qualified entity to whom the function is delegated under section 62(2).

(5)In this section—

current work performance matter means a work performance matter being handled by the department at the time the commission chief executive forms the view mentioned in subsection (1).

pt 6 (ss 88H–88N) ins 2014 No. 21 s 87

88JChief executive of department to provide help for review under s 88I

(1)This section applies if the commission chief executive or another person (the reviewer) is conducting a review under section 88I for a department.

(2)The chief executive of the department must give the reviewer the help the reviewer reasonably requires to conduct the review.

(3)The reviewer may ask the chief executive of the department for information relevant to the review.

(4)The chief executive of the department must comply with a request under subsection (3).

pt 6 (ss 88H–88N) ins 2014 No. 21 s 87

88KExchange of information with external agency

(1)The commission chief executive may enter into an information exchange agreement with the chief executive officer (however described) of an external agency.

(2)For the purposes of a review under section 88I, the commission chief executive may do either or both of the following under the information exchange agreement—

(a)obtain relevant information from the external agency;

(b)with the consent of the chief executive of the department to which the review relates, give relevant information to the external agency.

(3)Also, to help the commission chief executive perform his or her functions under this part, the commission chief executive may give information to an external agency under an information exchange agreement.

(4)In this section—

external agency means an entity established under an Act and prescribed under a regulation as an external agency for this section.

information exchange agreement means an agreement providing for the giving and receiving of information.

relevant information means information about or relevant to any of the following—

(a)a review of a work performance matter being conducted under section 88I;

(b)an investigation, inquiry or other activity being conducted by an external agency relating to the conduct, of a public service employee, that is the subject of a work performance matter being reviewed under section 88I.

pt 6 (ss 88H–88N) ins 2014 No. 21 s 87

88LProtection from liability for giving information

(1)This section applies to a person who, acting honestly and reasonably, gives information under this part.

(2)The person is not liable, civilly, criminally or under an administrative process, for giving the information.

(3)Without limiting subsection (2)—

(a)in a proceeding for defamation, the person has a defence of absolute privilege for publishing the information; and

(b)the person—

(i)does not, by giving the information, contravene an Act, oath, rule of law or practice requiring the person to maintain the confidentiality of the information; and

(ii)is not liable for disciplinary action for giving the information.

(4)Also, merely because the person gives the information, the person can not be held to have—

(a)breached any code of professional etiquette or ethics; or

(b)departed from accepted standards of professional conduct.

pt 6 (ss 88H–88N) ins 2014 No. 21 s 87

88MConfidentiality of information

(1)This section applies to a person who—

(a)is, or has been, any of the following—

(i)the commission chief executive;

(ii)a staff member of the commission, or any other person, to whom the function of conducting a review under section 88I is delegated by the commission chief executive; and

(b)in that capacity, acquired confidential information under this part.

(2)The person must not disclose the confidential information to anyone else.

Maximum penalty—100 penalty units.

(3)Subsection (2) does not apply to the disclosure of confidential information—

(a)for the purpose of administering this Act; or

(b)to the extent necessary to perform the person’s functions under an Act; or

(c)for a proceeding in a court or tribunal; or

(d)with the consent of the person to whom the confidential information relates; or

(e)if the disclosure is otherwise required or permitted under another Act or law.

(4)In this section—

confidential information—

(a)means personal information; but

(b)does not include information in the public domain unless further disclosure of the information is prohibited by law.

personal information means information or an opinion about an individual—

(a)if the individual’s identity is apparent, or can reasonably be ascertained, from the information or opinion; and

(b)whether or not the information or opinion—

(i)is true; or

(ii)forms part of a database; or

(iii)is recorded in a material form.

pt 6 (ss 88H–88N) ins 2014 No. 21 s 87

88NPublication of information about work performance matters

(1)By 30 September after each financial year, the commission must publish the following information for the financial year in a publicly accessible way—

(a)the number of work performance matters handled by each department in the year;

(b)the types of work performance matters handled by each department in the year;

(c)information about how work performance matters were handled by each department in the year, including, for example—

(i)the period within which the handling of the matters was finalised; and

(ii)the outcomes of the handling of the matters.

(2)Subsection (1) applies only in relation to information the commission receives under the work performance information directive or to which the commission otherwise has access.

pt 6 (ss 88H–88N) ins 2014 No. 21 s 87

89Establishment

(1)A chief executive service is established in the public service.

(2)The service consists of chief executives appointed under division 2.

90Purpose and its achievement

(1)The purpose of the chief executive service is to promote—

(a)the public service’s effectiveness and efficiency; and

(b)collaboration between departments with a focus on public service-wide priorities as well department-specific priorities; and

(c)performance management in the public service; and

(d)the delivery of services by the public service in accordance with Government priorities.

(2)The purpose is to be achieved by attracting, developing and retaining in the public service a core of mobile, highly skilled chief executives.

91Chief executive service standards

(1)The Minister may make standards about the way the Minister expects the chief executive service to operate.

(2)Without limiting subsection (1), the standards may provide for competencies expected of, and ethical standards for, chief executives.

(3)The Minister must publish the standards in the way the Minister considers appropriate.

(4)The standards do not limit or otherwise affect the obligations that a chief executive has under the Public Sector Ethics Act 1994.

92Appointment of chief executives generally

The Governor in Council may, by gazette notice, appoint chief executives.

93Appointment to particular departments

(1)Each department is to have a chief executive.

(2)The Minister may, by signed notice, appoint a chief executive to be the chief executive of any department.

(3)Public notice of the appointment must be published in the gazette or in another way the Minister considers appropriate.

94Acting as chief executive

(1)The departmental Minister for a department may appoint a person to act as its chief executive during any period or all periods when—

(a)no-one is employed as chief executive; or

(b)the chief executive is absent from duty or is, for another reason, unable to perform the responsibilities of chief executive.

(2)It does not matter whether the appointee is or is not already a public service officer.

95Statutory officer as chief executive

(1)The Governor in Council may, by gazette notice, declare that the holder of a stated office established under an Act is the chief executive of a stated department.

(2)This Act does not apply to an appointment to the stated office.

96Contractual basis of employment for chief executives

(1)Each person appointed as a chief executive under this Act must enter into a written contract of employment with the Minister.

(2)The appointee’s conditions of employment are governed by this Act, any relevant directives by the commission chief executive and the contract.

97Term of appointment

(1)The term of a chief executive’s appointment can not be more than 5 years.

(2)A chief executive may resign by signed notice of resignation given to the Minister at least 1 month before the notice is to take effect.

(3)An appointment and contract of employment as a chief executive may be terminated by the Governor in Council by notice signed by the Minister given to the appointee at least 1 month before it is to take effect.

98Responsibilities

(1)A chief executive is responsible for all of the following matters in relation to the chief executive’s department—

(a)establishing and implementing goals and objectives in accordance with Government policies and priorities;

(b)managing the department in a way that promotes the effective, efficient and appropriate management of public resources;

(c)the following for departmental employees—

(i)their numbers;

(ii)classification levels;

(iii)designation of roles;

(d)adopting management practices that are responsive to Government policies and priorities;

(e)promoting continual evaluation and improvement of the appropriateness, effectiveness and efficiency of departmental management;

(f)implementing policies and practices about access and equity to ensure maximum access by members of the community to Government programs and to appropriate avenues for review;

(g)ensuring compliance with the equality of employment opportunity obligations under chapter 2;

(h)ensuring maintenance of proper standards in the creation, keeping and management of public records.

Examples of chief executive responsibilities for departmental employees—

•recruitment and selection

•performance appraisal, training and development

•discipline and termination of employment

•working conditions and industrial issues

•ensuring fair treatment

(2)The chief executive’s responsibilities under this Act are in addition to the chief executive’s responsibilities under another Act.

Note—

The following are not subject to direction by a chief executive—

•the information commissioner and staff of the office of the information commission (See the Right to Information Act 2009, sections 126, 146 and 149, and the Information Privacy Act 2009, sections 140 and 143)

•the auditor-general, deputy auditor-general and staff of the audit office (See the Auditor-General Act 2009.)

(3)In this section—

departmental employees means public service employees employed in the chief executive’s department.

designation, of a role, includes the title of the role and its organisational location within a department.

s 98 amd 2009 No. 9 s 136 sch 1; 2009 No. 13 s 213 sch 5

99How responsibilities must be discharged

(1)In discharging responsibilities under an Act, a chief executive must—

(a)observe the management and employment principles; and

(b)comply with all relevant laws, industrial instruments and directives; and

(c)have regard to all relevant guidelines.

(2)The discharge of the responsibilities is subject to section 109(3).

100Extent of chief executive’s autonomy

(1)A chief executive is subject to the directions of the departmental Minister in managing the department.

(2)However, in making decisions about particular individuals, the chief executive—

(a)must act independently, impartially and fairly; and

(b)is not subject to direction by any Minister.

(3)Also, subsection (1) is subject to another Act—

(a)that provides that the chief executive is not subject to the directions of the departmental Minister about particular matters; or

(b)that otherwise limits the extent to which, or circumstances in which, the chief executive is subject to directions of the departmental Minister.

101Declaration of interests

(1)This section applies to any chief executive on appointment.

Note—

Appointment includes reappointment. See the Acts Interpretation Act 1954, schedule 1, definition appoint.

(2)The chief executive must, within 1 month, give the relevant people a statement about his or her interests.

(3)The statement must include the information required under a directive of the commission chief executive.

(4)Subsections (5) and (6) apply if—

(a)a change to the chief executive’s interests happens after the giving of the statement; and

(b)the change is of a type prescribed under a directive of the commission chief executive.

(5)The chief executive must give the relevant people a revised version of the statement.

(6)The revised version must—

(a)be given as soon as possible after the relevant facts about the change come to the chief executive’s knowledge; and

(b)comply with subsection (3).

(6A)When giving the integrity commissioner and commission chief executive a statement under subsection (2) or (5), the chief executive must also give the integrity commissioner and commission chief executive written advice that the chief executive has given the statement to the departmental Minister.

(7)For the interpretation of a reference to an interest, see section 65(4).

(8)In this section—

relevant people means—

(a)the departmental Minister; and

(b)the integrity commissioner; and

(c)the commission chief executive.

s 101 amd 2009 No. 25 s 10; 2009 No. 52 s 111; 2013 No. 39 s 110 (1) sch 3pt 1

102Conflicts of interest

(1)If a chief executive has an interest that conflicts or may conflict with the discharge of the chief executive’s responsibilities, the chief executive—

(a)must disclose the nature of the interest and conflict to the departmental Minister as soon as practicable after the relevant facts come to the chief executive’s knowledge; and

(b)must not take action or further action concerning a matter that is, or may be, affected by the conflict unless authorised by the departmental Minister.

(2)The departmental Minister for a department may direct its chief executive to resolve a conflict or possible conflict between an interest of the chief executive and the chief executive’s responsibilities.

(3)For the interpretation of a reference to an interest or a conflict of interest, see section 65(4).

s 102 amd 2009 No. 25 s 11

103Delegation

(1)A chief executive may delegate the chief executive’s functions under an Act to any appropriately qualified person.

(2)A delegation of a function may permit the subdelegation of the function.

(3)If the function is performed under another Act, the power to delegate or subdelegate is subject to the other Act.

104References in Act to chief executive of a chief executive are to the Minister

For a chief executive, a reference in this Act to his or her chief executive, or to the chief executive of his or her department, is a reference to the Minister.

105Senior executive service continued

A senior executive service is continued in the public service.

106Purposes of service and their achievement

(1)The senior executive service is continued to promote the public service’s effectiveness and efficiency.

(2)Employment in the senior executive service is to be directed towards ensuring senior executives—

(a)develop a public service-wide perspective; and

(b)continue their executive development; and

(c)develop their skills through deployment within and outside the public service.

(3)The purposes under subsections (1) and (2) are to be achieved by attracting, developing and retaining in the public service a core of mobile, highly skilled senior executives.

107Role of commission chief executive

To help achieve the purposes of the senior executive service, the commission chief executive must make and implement arrangements to facilitate the executive development of senior executives.

108Composition

The senior executive service consists of persons employed under this Act as senior executives.

109Senior executive numbers and classification levels

(1)The Governor in Council may, by gazette notice, fix—

(a)the maximum number of senior executives to be employed in a department; and

(b)the classification levels at which they are to be employed.

(2)The commission chief executive must be consulted before a recommendation is made to the Governor in Council for subsection (1).

(3)The department’s chief executive must comply with the notice.

110Appointment

(1)The commission chief executive may, by signed notice, appoint senior executives.

(2)Public notice of the appointment must be published in the gazette or in another way the commission chief executive considers appropriate.

111Secondments

(1)The commission chief executive may, by signed notice, second public service officers as senior executives and cancel the secondments at any time.

(2)However—

(a)before acting under subsection (1), the commission chief executive must take reasonable steps to consult with any relevant chief executive; and

(b)if the secondment is to a lower classification, it may be made only with the senior executive’s consent.

112Acting senior executives

(1)The chief executive of a department may appoint a person to act in the office of a senior executive in the department during any period or all periods when—

(a)no-one is employed in the office; or

(b)the person holding the office is absent from duty or is, for another reason, unable to perform the responsibilities of the office.

(2)It does not matter whether the appointee is or is not already a public service officer.

s 112 amd 2010 No. 37 s 118; 2012 No. 7 s 39

113Contractual basis of employment

(1)Each senior executive must enter into a written contract of employment with his or her chief executive.

(2)In entering into, or fixing the terms of, the contract, the chief executive must comply with any relevant directive.

(3)The contract may provide that, if the person’s employment as a senior executive continues to the end of the term of the person’s appointment as senior executive, a further contract of employment may be entered into under this section.

(4)The entry into a further contract of employment as mentioned in subsection (3) extends the person’s appointment by the further term stated in the contract.

(5)The senior executive’s conditions of employment are governed by this Act, any relevant directives by the commission chief executive and the contract.

s 113 amd 2010 No. 37 s 119

114Term of appointment

(1)The term of a senior executive’s appointment, or an extension of that term in the way provided for in section 113(3) and (4), can not be more than 5 years.

(2)A senior executive may resign by signed notice of resignation given to his or her chief executive at least 1 month before the notice is to take effect.

(3)A senior executive’s appointment and contract of employment may be terminated by his or her chief executive by signed notice given to the appointee at least 1 month before it is to take effect.

s 114 amd 2010 No. 37 s 120

115Transfer of senior executives

(1)The commission chief executive may, by signed notice, transfer or redeploy senior executives.

(2)However—

(a)before acting under subsection (1), the commission chief executive must take reasonable steps to consult with the senior executive and his or her chief executive; and

(b)a redeployment may be made only with the senior executive’s consent.

(3)The transfer or redeployment—

(a)may involve a change in the location where the senior executive performs duties; and

(b)has effect despite anything in the senior executive’s contract of employment.

116Purpose

(1)Senior officer positions are continued to—

(a)promote the public service’s effectiveness and efficiency; and

(b)ensure there is a group of highly skilled public service officers who are capable of development as senior executives.

(2)Employment as a senior officer is to be directed towards—

(a)developing a public service-wide perspective; and

(b)continuance of the officer’s professional development.

Note—

For other provisions about senior officers, see chapter 5.

117Role of commission chief executive

To help achieve the purposes of senior officer positions, the commission chief executive must make and implement arrangements to facilitate the development of senior officers as senior executives.

118Application of ch 5

(1)Subject to subsections (2) and (3), this chapter does not generally apply to chief executives in their capacity as a public service employee or to senior executives.

(2)The following provisions apply to chief executives—

(a)in their capacity as public service employees—

•part 2, division 2

•part 7

•sections 127, 137 and 180 to 184;

(b)in their capacity as persons proposed to be appointed as chief executives—part 6.

Note—

Under section 104, a reference in this Act to the chief executive of a chief executive, or to the chief executive of his or her department, is a reference to the Minister.

(3)The following provisions apply to senior executives—

•part 2, division 2

•parts 6 and 7

•sections 127, 137 and 180 to 186.

(4)Subject to subsections (1) to (3), this chapter applies to all public service employees.

Note—

A regulation under section 23 may also apply provisions of this Act to other persons employed in a public service office declared by a regulation under section 21.

119Appointment

(1)A chief executive may, by signed notice, appoint public service officers in the chief executive’s department.

(2)Public notice of the appointment must be published in the gazette or in another way the commission chief executive considers appropriate if—

(a)notice of intention to make an appointment for the relevant duties was publicly notified; or

(b)notice of the appointment is required under section 128 or another Act to be publicly notified.

(3)In this section—

appoint does not include transfer.

120Secondment

(1)The chief executive of a department (the first department) may—

(a)second a public service officer of the department within the first department; or

(b)with the approval of the chief executive of another department, second a public service officer of the other department to the first department.

(2)However, if the secondment is to a lower classification level it may be made only with the officer’s consent.

(3)Public notice of the secondment must be published in the gazette or in another way the chief executive of the first department considers appropriate if—

(a)notice of intention to make the secondment for the relevant duties was publicly notified; or

(b)notice of the secondment of a person to perform the relevant duties is required under an Act to be publicly notified.

(4)The chief executive of the first department may cancel the secondment at any time.

(5)A directive may provide for any of the following about the secondment of a public service officer under this section—

(a)the circumstances in which a public service officer may be seconded;

(b)the terms that may apply to a secondment;

(c)administrative arrangements that may apply to a secondment;

(d)any other matter the commission chief executive considers relevant to a secondment.

(6)In making a decision to second a public service officer under this section, the chief executive of the first department must comply with any relevant directive under subsection (5).

s 120 amd 2010 No. 37 s 121

121Basis of employment—tenure or contract

(1)A directive may provide for the circumstances in which a public service officer may be appointed on contract for a fixed term.

(2)Appointment as a public service officer is on tenure unless—

(a)the officer’s chief executive decides the appointment may be on contract for a fixed term; and

(b)the chief executive declares the officer’s position to be available on contract for a fixed term.

(3)In making the decision the chief executive must comply with any relevant directive.

122Basis of employment for contract employment

(1)This section applies if a public service officer’s appointment is to be on contract for a fixed term.

(2)The officer must enter into a written contract of employment with the officer’s chief executive.

Notes—

1Equivalent contracts under the repealed Public Service Act 1996, section 70 were commonly called ‘section 70 contracts’.

2For the application of this Act to the equivalent contracts, see section 230.

(3)However, if the officer holds the appointment on tenure immediately before it is to be on contract for a fixed term, the officer may, but is not required to, enter into a contract with the officer’s chief executive relating to the appointment.

(4)If subsection (3) applies and the officer elects to not enter a contract of employment relating to the appointment, the officer continues to hold the appointment on tenure without change in the conditions of the appointment.

(5)In entering into the contract or fixing the terms of the contract, the chief executive must comply with any relevant directive.

(6)Also, the officer’s overall employment conditions under the contract must not, on balance, be less than those that the officer would be entitled to if the officer were appointed on tenure.

(7)If there is a dispute between the parties to the contract about the application of subsection (6), the IRC may hear and decide the dispute.

(8)The conditions of the officer’s employment are governed by this Act, any relevant directive and the contract.

123Tenure on ending of particular employment contracts

(1)This section applies if—

(a)a public service officer is employed on contract; and

(b)the contract is terminated other than by disciplinary action, or the contract expires and is not renewed or replaced by another contract of employment under this Act; and

(c)when the officer was first employed under the contract or an earlier continuous contract of employment as a public service officer, the officer was employed as an officer on tenure.

(2)The officer becomes a public service officer employed on tenure.

(3)The officer is to be employed—

(a)at the classification level at which the officer would have been employed if the officer had continued in employment as a public service officer on tenure; and

(b)on the remuneration to which the officer would have been entitled if the officer had continued in employment as a public service officer on tenure.

124Contract terminated on acceptance of tenure

(1)If a public service officer who is employed on contract accepts employment as a public service officer on tenure, the contract is taken to be terminated by agreement of the parties.

(2)Without limiting subsection (1), the person is not entitled to payment under the contract because of the termination.

125Basis of employment on tenure—full-time or part-time

Appointment as a public service officer in a department on tenure may be on the basis of full-time or part-time employment, as decided by the officer’s chief executive.

126Appointments on probation

(1)This section applies if a person who is not already a public service officer is appointed as a public service officer on tenure.

(2)The officer’s chief executive may decide that the officer is appointed on probation for the following period from the appointment (the probationary period)—

(a)generally—3 months;

(b)if the officer and the chief executive agree in writing before employment under the appointment to a longer period—the longer period.

(3)The longer period must be a reasonable period having regard to the nature and circumstances of the employment.

(4)The chief executive may, by signed notice given to the officer, terminate the officer’s employment at any time during the probationary period.

(5)If, at the end of the probationary period, the officer’s employment has not been terminated under subsection (4), the chief executive must—

(a)confirm the appointment; or

(b)extend the probationary period for a further period (extended probationary period); or

(c)by signed notice given to the officer, terminate the employment.

(6)The extended probationary period must be a reasonable period having regard to the nature and circumstances of the employment.

s 126 amd 2010 No. 37 s 122

127Requirement about citizenship etc.

(1)A person is eligible to be a public service officer only if the person—

(a)is an Australian citizen; or

(b)resides in Australia and has permission, under a Commonwealth law, to—

(i)work in Australia; and

(ii)remain in Australia indefinitely.

(2)The chief executive may, by signed notice, terminate the employment of an officer who is ineligible under subsection (1) to be a public service officer.

s 127 amd 2010 No. 37 s 123

128Notification of proposed appointments

(1)If a chief executive intends to appoint or second someone to perform duties as a public service officer, the chief executive must advertise the intention as required under a directive.

(2)This section does not apply to—

(a)an appointment declared under a directive to be an appointment to which this section does not apply; or

(b)the transfer, redeployment or secondment of a person in accordance with a provision of an Act or a directive.

129Definitions for div 2

In this division—

service with the State means employment, in any capacity in—

(a)the public service; or

(b)the police service; or

(c)any other office, position or place under the State.

the State includes a board, commission, commissioner, corporation, instrumentality or other person representing the State.

130Request for reappointment

(1)This section applies if—

(a)a person held an office of service with the State and the office was permanent (the former office); and

(b)the person resigned from that office to become a candidate for election as any of the following—

(i)a senator or a member of the House of Representatives of the Commonwealth Parliament;

(ii)a member of the Legislative Assembly; and

(c)the person was a defeated candidate at the election.

(2)The person may ask to be reappointed to the former office.

(3)However, the request can not be more than 3 months after the return of the writ for the election.

(4)The request can only be made by notice to the person who has the power to appoint to the former office.

131Dealing with request

(1)A person who has made a request under section 130 may—

(a)be reappointed to the person’s former office mentioned in that section; or

(b)be appointed to any other service with the State, whether of the same classification level or a lower classification level as the former office.

(2)The reappointment may be made despite the person’s age.

(3)Despite the other provisions of this Act or another Act, the merit provisions do not apply for the reappointment.

(4)However, subsection (3) does not prevent matters mentioned in the merit provisions from being considered in making a decision on the request.

(5)In this section—

classification includes rank or grade.

merit provisions means—

(a)generally—chapter 1, part 4; or

(b)if the former office of the person was as a police officer—the Police Service Administration Act 1990, section 5.2.

132Continuity of service

(1)This section applies if a person is appointed or reappointed under section 131.

(2)The continuity of the person’s service with the State is taken not to have been broken by resignation from the person’s former office.

(3)However, the period during which the person’s service with the State was interrupted by the resignation can not be taken into account for working out the person’s total period of service with the State.

133Chief executive’s power to transfer or redeploy

(1)The chief executive of a department may transfer or redeploy a public service officer of the department within the department.

(2)The chief executive of a department may, with the approval of the chief executive of another department, transfer or redeploy a public service officer of the other department to the first department.

(3)Despite subsections (1) and (2), a redeployment may be made only with the officer’s consent.

(4)The transfer or redeployment of a public service officer under this section—

(a)may involve a change in the location where the officer performs duties; and

(b)if the officer is employed on contract—has effect despite anything in the contract.

134Consequence if transfer refused

(1)If a public service officer is transferred under section 133, the transfer has effect unless the officer establishes reasonable grounds for refusing the transfer to the satisfaction of the officer’s chief executive.

(2)If the officer refuses the transfer after failing to establish reasonable grounds for the refusal to the chief executive’s satisfaction, the chief executive may terminate the officer’s employment by signed notice given to the officer.

(3)If the officer establishes reasonable grounds to the chief executive’s satisfaction—

(a)the transfer is cancelled; and

(b)the refusal must not be used to prejudice the officer’s prospects for future promotion or advancement.

ch 5 pt 4 div 1 hdg om 2010 No. 37 s 124

ch 5 pt 4 div 2 hdg om 2010 No. 37 s 126

ch 5 pt 4 div 2 sdiv 1 hdg om 2010 No. 37 s 126

ch 5 pt 4 div 2 sdiv 2 hdg om 2010 No. 37 s 126

ch 5 pt 4 div 2 sdiv 3 hdg om 2010 No. 37 s 126

135Resignation

(1)A public service officer may resign by signed notice of resignation given to the officer’s chief executive—

(a)at least 2 weeks before the notice is to take effect; or

(b)within a shorter period approved by the chief executive.

(2)The notice takes effect in accordance with its terms and without needing the chief executive’s acceptance.

136Voluntary retirement

A public service officer or general employee may, by signed notice given to the officer’s or employee’s chief executive, elect to retire from the public service if—

(a)the person has turned 55 years; or

(b)the person is permitted to retire under a directive.

137Suspension other than as disciplinary action

(1)The chief executive of a department may, by notice, suspend a public service officer from duty if the chief executive reasonably believes the proper and efficient management of the department might be prejudiced if the officer is not suspended.

(2)The notice must state—

(a)when the suspension starts and ends; and

(b)the remuneration to which the officer is entitled for the period of the suspension under subsection (5); and

(c)the effect that alternative employment may, under subsections (6) and (7), have on the entitlement.

(3)However, before suspending the officer, the chief executive must consider all alternative duties that may be available for the officer to perform.

(4)The period of the suspension can not be more than the period that the chief executive reasonably believes is necessary to avoid the prejudice.

(5)During the period of the suspension the officer is entitled to normal remuneration, less any amount earned by the officer from alternative employment that the officer engages in during the period.

(6)For subsection (5), alternative employment does not include employment if—

(a)the employee was engaged in the employment at the time of the suspension; and

(b)the officer’s engaging in the employment was not in contravention of—

(i)this Act; or

(ii)a standard of conduct applying to the officer under an approved code of conduct under the Public Sector Ethics Act 1994; or

(c)a standard of conduct, if any, applying to the officer under an approved standard of practice under the Public Sector Ethics Act 1994.

(7)The deduction under subsection (5) must not be more than the amount of the officer’s normal remuneration during the period of the suspension.

(8)The continuity of the officer’s service as a public service officer is taken not to have been broken only because of the suspension.

(9)The chief executive may cancel the suspension at any time.

(10)This section does not limit or otherwise affect section 189.

s 137 amd 2010 No. 37 s 125

138Action because of surplus

(1)This section applies if the chief executive of a department believes a public service employee is surplus to the department’s needs because—

(a)more employees are employed in the department than it needs for the effective, efficient and appropriate performance of its functions; or

(b)the duties performed by the employee are no longer required.

(2)The chief executive must take the action required under a directive.

147Employment of general employees

(1)A chief executive may employ a person as a general employee to perform work of a type not ordinarily performed by a public service officer.

(2)The employment may be—

(a)on tenure, or on a temporary basis and full-time or part-time; or

(b)on a casual basis.

(3)A person employed under this section does not, only because of the employment, become a public service officer.

(4)Subsections (1) and (2) are subject to any relevant directive about general employees.

148Employment of temporary employees

(1)To meet temporary circumstances, a chief executive may employ a person as a temporary employee to perform work of a type ordinarily performed by a public service officer other than a chief executive or senior executive.

(2)The employment may be—

(a)on a temporary basis and full-time or part-time; or

(b)on a casual basis.

(3)A person employed under this section does not, only because of the employment, become a public service officer.

(4)Subsections (1) and (2) are subject to any relevant directive about temporary employees.

149Review of status of temporary employee

(1)This section applies—

(a)at the end of 2 years after a temporary employee has been continuously employed as a temporary employee in a department; and

(b)at the end of each 1-year period, after the period mentioned in paragraph (a), that a temporary employee has been continuously employed as a temporary employee in the department.

(2)The department’s chief executive must, within the required period, decide whether the person’s employment in the department is to—

(a)continue as a temporary employee according to the terms of the existing employment; or

(b)be as a general employee on tenure or a public service officer.

(3)In making the decision, the chief executive must—

(a)consider any criteria for the decision fixed under—

(i)a directive by the commission chief executive; and

(ii)an industrial instrument; and

(b)if an industrial instrument provides for the way the decision must be made—comply with the industrial instrument.

(4)If the chief executive does not make the decision within the period, the chief executive is taken to have decided that the person’s employment in the department is to continue as a temporary employee according to the terms of the existing employment.

(5)In this section—

continuously employed as a temporary employee has the meaning given under a commission chief executive directive or an industrial instrument.

required period, for making a decision under subsection (2), means—

(a)the period stated in an industrial instrument within which the decision must be made; or

(b)if paragraph (a) does not apply—the period starting on the last day of the period mentioned in subsection (1)(a) or (b) and ending 28 days later.

temporary employee—

(a)includes a general employee employed on a temporary basis; but

(b)does not include a person employed under section 147 or 148 on a casual basis.

s 149 amd 2010 No. 37 s 127; 2016 No. 63 s 1125A

149A Commission chief executive must make directive about casual employees

(1)The commission chief executive must make a directive about reviewing the status of casual employees for the purpose of deciding whether or not to convert their employment to permanent employment.

(2)The chief executive of the department in which a casual employee the subject of the directive is employed must, within the period provided for in the directive, decide whether the person’s employment in the department is to—

(a)continue as a casual employee according to the terms of the existing employment; or

(b)be as a general employee on tenure or a public service officer.

(3)In making the decision, the chief executive must consider any criteria for the decision fixed under the directive by the commission chief executive.

(4)If the chief executive does not make the decision within the period, the chief executive is taken to have decided that the person’s employment in the department is to continue as a casual employee according to the terms of the existing employment.

(5)A person’s employment can not be converted without the person’s consent.

(6)A person may apply to have the person’s employment converted if the person has been employed as a casual employee on a regular and systematic basis for at least—

(a) 2 years; or

(b)if a shorter time is decided by the commission chief executive—the shorter time.

s 149A ins 2016 No. 63 s 1126

amd 2017 No. 17 s 258 sch 1

150Definitions for pt 6

In this part—

CCYPCG Act ...

def CCYPCG Act ins 2010 No. 5 s 225 (2)

om 2014 No. 28 s 105 sch 1

CCYPCG commission ...

def CCYPCG commission reloc from s 157 2010 No. 33 s 131

om 2014 No. 28 s 105 sch 1

CCYPCG commissioner ...

def CCYPCG commissioner ins 2010 No. 5 s 225 (2)

om 2014 No. 28 s 105 sch 1

CCYPCG disqualification order ...

def CCYPCG disqualification order om 2010 No. 5 s 225 (1)

chief executive (employment screening) means the chief executive of the employment-screening department.

def chief executive (employment screening) ins 2014 No. 28 s 105 sch 1

child-related duties see section 156.

CPOPOA disqualification order ...

def CPOPOA disqualification order om 2010 No. 5 s 225 (1)

criminal history report means—

(a)for division 2—a report given under section 154; or

(b)for division 3A—a report given under section 165C; or

(c)otherwise—a report given under section 154 or 165C.

def criminal history report sub 2010 No. 33 s 128

disqualification order ...

def disqualification order om 2010 No. 5 s 225 (1)

employment-screening department means the department in which the Working with Children Act is administered.

def employment-screening department ins 2014 No. 28 s 105 sch 1

engage, a person, includes—

(a)appoint, employ, promote, redeploy or second the person within or to a department; and

(b)allow the person to participate in any of the following in the department—

(i)an interchange arrangement within the meaning of section 184;

(ii)a work performance arrangement, within the meaning of section 183, in a department; and

(c)start training the person in a department as an apprentice or trainee, within the meaning of the Further Education and Training Act 2014.

def engage amd 2014 No. 25 s 223 sch1 pt 2

investigative information ...

def investigative information om 2010 No. 5 s 225 (1)

offender prohibition order ...

def offender prohibition order om 2010 No. 5 s 225 (1)

part 6 directive means a ruling that is a directive made for this part.

police information ...

def police information om 2010 No. 5 s 225 (1)

police information report ...

def police information report om 2010 No. 5 s 225 (1)

positive exemption notice means a positive exemption notice under the Working with Children Act.

def positive exemption notice ins 2010 No. 5 s 225 (2)

sub 2014 No. 28 s 105 sch 1

positive prescribed notice means a positive notice under the Working with Children Act.

def positive prescribed notice ins 2010 No. 5 s 225 (2)

sub 2014 No. 28 s 105 sch 1

regulated employment see the Working with Children Act, section 156.

def regulated employment ins 2010 No. 5 s 225 (2)

sub 2014 No. 28 s 105 sch 1

relevant disqualified person ...

def relevant disqualified person om 2010 No. 5 s 225 (1)

relevant duties see section 151.

serious offence ...

def serious offence om 2010 No. 5 s 225 (1)

temporary offender prohibition order ...

def temporary offender prohibition order om 2010 No. 5 s 225 (1)

Working with Children Act means the Working with Children (Risk Management and Screening) Act 2000.

def Working with Children Act ins 2014 No. 28 s 105 sch 1

sdiv hdg ins 2010 No. 5 s 226

151Application of div 2

(1)This division applies to duties to be performed in a department if, under a part 6 directive, the department’s chief executive decides—

(a)that, because of the nature of the particular duties, it may be necessary to have regard to the criminal history of anyone engaged to perform the duties to ensure the person so engaged is suitable to perform them; and

(b)the particular duties are not likely to involve—

(i)regulated employment; or

(ii)child-related duties.

Note—

See—

(a)the Working with Children Act, chapter 8, and division 3A, in relation to persons to be engaged in duties that are regulated employment; and

(b)divisions 3 and 3A for assessing the suitability of persons to be engaged in child-related duties.

(2)However, this division does not apply to duties to be performed in the employment-screening department.

Note—

See the Working with Children Act, chapter 8A, in relation to duties to be performed in the employment-screening department.

(3)Duties to which this division applies are relevant duties.

(4)This division is subject to the Criminal Law (Rehabilitation of Offenders) Act 1986 but does not limit any other law, or other provision of this Act, under which a person’s criminal history may be obtained.

s 151 amd 2010 No. 5 s 227; 2010 No. 33 s 129; 2014 No. 28 s 105 sch 1

152Chief executive may decide to obtain criminal history

(1)If the chief executive proposes to engage a person to perform relevant duties, the chief executive may, under a part 6 directive, ask the person for written consent for the chief executive to obtain the person’s criminal history.

(2)Subsection (1) applies even if the person is a public service employee at the time the chief executive proposes to engage the person to perform the relevant duties.

153Failure to consent to obtaining criminal history

(1)This section applies if the person does not consent, or withdraws his or her consent, to the chief executive obtaining the person’s criminal history.

(2)If the person is a public service employee in the department who is engaged in performing relevant duties, the chief executive must ensure the person does not perform relevant duties.

(3)If the person is not a public service employee in the department who is engaged in performing relevant duties, the chief executive is not required to consider the person for engagement to perform the relevant duties.

154Obtaining criminal history with consent

(1)If the person gives written consent to the chief executive obtaining the person’s criminal history, the chief executive may ask the police commissioner for a written report about the person’s criminal history.

(2)The request may include the following—

(a)the person’s name and any other name the chief executive believes the person may use or may have used;

(b)the person’s date and place of birth, gender and address.

(3)The police commissioner must give the requested report to the chief executive.

Note—

See sections 166 and 167 for when the police commissioner need not give the requested report.

155Assessment of suitability using criminal history report

After the person’s criminal history report is given to the chief executive, the chief executive must, under a part 6 directive, consider the person’s criminal history in making an assessment about the person’s suitability for engagement to perform the relevant duties.

sdiv hdg ins 2010 No. 5 s 228

155ADefinitions for sdiv 2

In this subdivision—

approved form means a form approved by the commission chief executive for use under section 155B.

chief executive (communities) means the chief executive of the department of communities.

department of communities means the department in which the following Acts are administered—

(a)the Community Services Act 2007;

(b)the Disability Services Act 2006.

def department of communities amd 2014 No. 12 s 77 sch 1

s 155A ins 2010 No. 5 s 228

155BEngaged person to disclose change in criminal history

(1)This section applies if there is a change in the criminal history of a person engaged by the department of communities to perform relevant duties.

(2)The person must immediately disclose the details of the change to the chief executive (communities).

(3)The disclosure under subsection (2) must be in the approved form.

(4)Information disclosed in the approved form by the person about a conviction or charge for an offence in the person’s criminal history must include—

(a)the existence of the conviction or charge; and

(b)when the offence was committed or alleged to have been committed; and

(c)the details of the offence or alleged offence; and

(d)for a conviction—whether or not a conviction was recorded and the sentence imposed on the person.

(5)For a person who does not have a criminal history, there is taken to be a change in the person’s criminal history if the person acquires a criminal history.

s 155B ins 2010 No. 5 s 228

155CFailing to make disclosure or making false, misleading or incomplete disclosure

(1)A person must not—

(a)fail to give the chief executive (communities) a disclosure as required under section 155B, unless the person has a reasonable excuse; or

(b)give the chief executive (communities) an approved form under section 155B that is false, misleading or incomplete in a material particular.

Maximum penalty—100 penalty units or 2 years imprisonment.

(2)Subsection (1)(b) does not apply to a person in relation to particular information that the person is unable to provide if the person—

(a)indicates in the approved form the information that the person is unable to provide; and

(b)otherwise gives the information in the approved form to the best of the person’s ability.

(3)It is enough for a complaint for an offence against subsection (1)(b) to state that the disclosure was ‘false or misleading’ to the person’s knowledge, without specifying which.

s 155C ins 2010 No. 5 s 228

155DChief executive (communities) may obtain report from police commissioner

(1)This section applies to a person who is engaged by the department of communities.

(2)The chief executive (communities) may ask the police commissioner to give the chief executive a written report about the person’s criminal history.

(3)The police commissioner must comply with the request.

s 155D ins 2010 No. 5 s 228

155EUse of information obtained under this subdivision

(1)This section applies to the chief executive (communities) in considering information about a person received under this subdivision.

(2)The information must not be used for any purpose other than assessing the person’s suitability to continue to be engaged by the department of communities to perform relevant duties.

(3)When making the assessment, the chief executive (communities) must have regard to the following matters relating to information about the commission, or alleged or possible commission, of an offence by the person—

(a)when the offence was committed, is alleged to have been committed or may possibly have been committed;

(b)the nature of the offence and its relevance to the person’s proposed duties or duties under the engagement;

(c)anything else the chief executive considers relevant to the assessment of the person.

s 155E ins 2010 No. 5 s 228

155FPerson to be advised of information obtained from police commissioner

(1)This section applies to information obtained by the chief executive (communities) about a person under section 155D from the police commissioner.

(2)Before using the information to assess the person’s suitability to continue to be engaged by the department, the chief executive (communities) must—

(a)disclose the information to the person; and

(b)allow the person a reasonable opportunity to make representations to the chief executive about the information.

s 155F ins 2010 No. 5 s 228

155GGuidelines for dealing with information obtained under this subdivision

(1)The chief executive (communities) must make guidelines, consistent with this Act, for dealing with information obtained by the chief executive under this subdivision.

(2)The purpose of the guidelines is to ensure—

(a)natural justice is afforded to the persons about whom the information is obtained; and

(b)only relevant information is used in assessing the persons’ suitability to continue to be engaged by the department of communities; and

(c)decisions about the suitability of persons, based on the information, are made consistently.

(3)The chief executive (communities) must give a copy of the guidelines, on request, to a person engaged by the department of communities.

s 155G ins 2010 No. 5 s 228

156Application of div 3

(1)This division applies to duties to be performed in a department if, under a part 6 directive, the department’s chief executive decides—

(a)the duties—

(i)are to be performed at a place at which services are provided only or mainly to a child or children; or

(ii)are to be performed in a role involving providing services only or mainly to a child or children; or

(iii)involve contact with a child or children that is of a kind, or happens in a context, that may create an unacceptable level of risk for the child or children; and

(b)it is necessary to conduct child-related employment screening of a person engaged to perform the particular duties to ensure the person is suitable to perform them; and

(c)the particular duties are not likely to involve regulated employment.

Note—

See the Working with Children Act, chapter 8, and division 3A, in relation to persons to be engaged in duties that are regulated employment.

(2)However, this division does not apply to duties to be performed in the employment-screening department.

Note—

See the Working with Children Act, chapter 8A, in relation to duties to be performed in the employment-screening department.

(3)Duties to which this division applies are child-related duties.

s 156 amd 2010 No. 5 s 229; 2010 No. 33 s 130; 2014 No. 28 s 105 sch 1

157Definitions for div 3

In this division—

child-related employment screening means employment screening under the Working with Children Act, chapter 8.

current, for a positive prescribed notice or positive exemption notice, means current within the meaning of the Working with Children Act.

engage, a person, includes—

(a)engage the person under a contract for services; and

(b)engage the person on a voluntary basis; and

(c)if the person is a student, engage the person under an arrangement to provide the person with practical experience in the person’s field of study.

exemption notice means an exemption notice under the Working with Children Act.

negative exemption notice means a negative exemption notice under the Working with Children Act.

negative prescribed notice means a negative notice under the Working with Children Act.

prescribed notice means a prescribed notice under the Working with Children Act.

s 157 sub 2010 No. 5 s 230

amd 2010 No. 33 s 131; 2014 No. 28 s 105 sch 1

158Prescribed notice or exemption notice required for child-related duties

(1)The chief executive of a department must ensure a person does not perform child-related duties in the department unless—

(a)if the person is engaged by the department as a volunteer and is not a police officer or registered teacher—the person has a current positive prescribed notice; or

(b)otherwise—

(i)the person has a current positive prescribed notice or current positive exemption notice; or

(ii)the chief executive has applied for a prescribed notice or exemption notice about the person as provided under section 159.

(2)Subsection (1) applies even if the person is a public service employee at the time the chief executive proposes to engage the person to perform the child-related duties.

(3)In this section—

registered teacher see the Working with Children Act, schedule 7.

volunteer see the Working with Children Act, section 165.

s 158 sub 2010 No. 5 s 230

amd 2010 No. 33 s 132; 2014 No. 28 s 105 sch 1

159Chief executive to apply for prescribed notice or exemption notice

(1)This section applies if—

(a)the chief executive of a department proposes to engage a person in the department to perform child-related duties; and

(b)the person does not have a prescribed notice or exemption notice.

(2)The chief executive must apply to the chief executive (employment screening) for the prescribed notice or exemption notice.

(3)The application must be made, and dealt with, under the Working with Children Act as if the chief executive were proposing to start employing, or continue employing, the person in regulated employment.

Notes—

1Under the Working with Children Act, section 199(3), a person who asks someone else to sign an application for a prescribed notice about the other person must warn the other person that it is an offence for a disqualified person within the meaning of the Working with Children Act to sign the application.

2An application for a prescribed notice or exemption notice must include the person’s consent to child-related employment screening. See the Working with Children Act, section 200 (for applications for prescribed notices) or 261 (for applications for exemption notices).

3A person’s consent to child-related employment screening may be withdrawn by the person or may be taken to be withdrawn in particular circumstances. See the Working with Children Act, sections 204 to 210 (for applications for prescribed notices) or sections 264 to 271 (for applications for exemption notices).

s 159 sub 2010 No. 5 s 230

amd 2010 No. 33 s 133; 2014 No. 28 s 105 sch 1

161Engaging public service employee before prescribed notice or exemption notice issued

(1)This section applies if—

(a)the chief executive of a department engages a person to perform child-related duties on the basis the chief executive has applied for a prescribed notice or exemption notice about the person as mentioned in section 158(1)(b)(ii); and

(b)the person is a public service employee at the time the chief executive engages the person; and

(c)either of the following happens—

(i)the person’s consent to child-related employment screening is withdrawn, or taken to be withdrawn, under the Working with Children Act;

(ii)the person is issued a negative prescribed notice or negative exemption notice.

(2)The chief executive must ensure the person does not continue to perform child-related duties.

s 161 sub 2010 No. 5 s 230

amd 2010 No. 33 s 135; 2014 No. 28 s 105 sch 1

162Engaging other person before prescribed notice or exemption notice issued

(1)This section applies if—

(a)the chief executive of a department engages a person to perform child-related duties on the basis the chief executive has applied for a prescribed notice or exemption notice about the person as mentioned in section 158(1)(b)(ii); and

(b)the person is not a public service employee at the time the chief executive engages the person.

(2)The chief executive—

(a)may only appoint the person on probation under section 126 for a period not ending before the prescribed notice or exemption notice is issued to the person; and

(b)may confirm the person’s appointment under section 126 only if the person is issued a positive prescribed notice or positive exemption notice; and

(c)must not confirm the person’s appointment under section 126 if either of the following happens—

(i)the person’s consent to child-related employment screening is withdrawn, or taken to be withdrawn, under the Working with Children Act;

(ii)the person is issued a negative prescribed notice or negative exemption notice.

(3)Subsection (2) does not limit the power under section 126 to have a longer probationary period or to terminate the person’s employment.

s 162 sub 2010 No. 5 s 230

amd 2010 No. 33 s 136; 2014 No. 28 s 105 sch 1

163Effect of suspension or cancellation of positive prescribed notice or positive exemption notice

(1)If the chief executive of a department engages a person to perform child-related duties in the department and the person’s positive prescribed notice or positive exemption notice is suspended under the Working with Children Act, the chief executive must ensure the person does not perform child-related duties while the notice is suspended.

(2)If the chief executive of a department engages a person to perform child-related duties in the department and the person’s positive prescribed notice or positive exemption notice is cancelled under the Working with Children Act, the chief executive must ensure the person does not perform child-related duties.

s 163 sub 2010 No. 5 s 230; 2014 No. 28 s 105 sch 1

amd 2014 No. 28 s 105 sch 1

div hdg ins 2010 No. 5 s 230

164This division does not apply to particular engagements

This division does not apply in relation to the following—

(a)engaging a person under a contract for services;

(b)engaging a person on a voluntary basis;

(c)engaging a student under an arrangement to provide the student with practical experience in the student’s field of study.

s 164 sub 2010 No. 5 s 230

165Application of Criminal Law (Rehabilitation of Offenders) Act 1986

This division is subject to the Criminal Law (Rehabilitation of Offenders) Act 1986 but does not limit any other law, or other provision of this Act, under which a person’s criminal history may be obtained.

s 165 sub 2010 No. 5 s 230

165AChief executive may decide to obtain criminal history

(1)This section applies if the chief executive (employment screening)—

(a)issues a positive prescribed notice or positive exemption notice to a person to be engaged by a department to perform either or both of the following (prescribed duties)—

(i)child-related duties;

(ii)regulated employment; and

(b)under the Working with Children Act, section 235 or 293 (including as applied for section 159), gives the chief executive of the department a notice stating that the chief executive may need to undertake a further assessment of the person under this division to decide whether or not the department should engage the person.

(2)If the chief executive proposes to engage the person to perform the prescribed duties, the chief executive may, under a part 6 directive, ask the person for written consent for the chief executive to obtain the person’s criminal history under this division.

(3)Subsection (2) applies even if the person is an employee of the department at the time the chief executive proposes to engage the person to perform the prescribed duties.

s 165A ins 2010 No. 5 s 230

amd 2014 No. 28 s 105 sch 1; 2014 No. 28 s 105 sch 1

165BFailure to consent to obtaining criminal history

(1)This section applies if the person does not consent, or withdraws his or her consent, to the chief executive obtaining the person’s criminal history.

(2)If the person is an employee of the department who is engaged in performing prescribed duties, the chief executive must ensure the person does not perform prescribed duties.

(3)If the person is not an employee of the department who is engaged in performing prescribed duties, the chief executive is not required to consider the person for engagement to perform the prescribed duties.

s 165B ins 2010 No. 5 s 230

165CObtaining criminal history with consent

(1)If the person gives written consent to the chief executive obtaining the person’s criminal history, the chief executive may ask the police commissioner for a written report about the person’s criminal history.

(2)The request may include the following—

(a)the person’s name and any other name the chief executive believes the person may use or may have used;

(b)the person’s date and place of birth, gender and address.

(3)The police commissioner must give the requested report to the chief executive.

Note—

See sections 166 and 167 for when the police commissioner need not or must not give the requested report.

s 165C ins 2010 No. 5 s 230

165DAssessment of suitability using criminal history report

After the person’s criminal history report is given to the chief executive, the chief executive must, under a part 6 directive, consider the person’s criminal history in making an assessment about the person’s suitability for engagement to perform the prescribed duties.

s 165D ins 2010 No. 5 s 230

div hdg amd 2010 No. 5 s 231

166Duty of police commissioner relating to requests for criminal history

The duty imposed on the police commissioner under this part to comply with a request to give the chief executive a written report about a person’s criminal history, or otherwise to give information under section 169, applies only to information in the police commissioner’s possession or to which the police commissioner has access.

s 166 amd 2010 No. 5 s 232

167Criminal history no longer required to be obtained

(1)This section applies if—

(a)the chief executive has, under section 154 or 165C, requested the police commissioner to give the chief executive a written report about a person’s criminal history; and

(b)the chief executive decides the criminal history is no longer required.

(2)The chief executive must, by written notice, tell the police commissioner that the requested report is no longer required.

(3)If the police commissioner is notified as mentioned subsection (2) before the police commissioner has given a report to the chief executive, the police commissioner must not give it to the chief executive.

s 167 amd 2010 No. 5 s 233

168Police commissioner not to use information given as part of request except for particular circumstances

(1)Information given to the police commissioner by a chief executive under section 154(2) or 165C(2) about a person must not be accessed, disclosed or used for any purpose except for a purpose under this part or any other purpose relevant to law enforcement.

(2)However, subsection (1) does not apply to information the police commissioner obtained before the chief executive gave the information to the police commissioner.

s 168 amd 2010 No. 5 s 234

169Destruction of reports and notices

(1)This section applies to any of the following if, under a part 6 directive, it is no longer required to be kept—

(a)a criminal history report about a person after the chief executive who requested the report makes an assessment about the person under division 2 or 3A;

(b)a notice given to a chief executive under section 170.

(2)The chief executive must destroy the report, the notice and any other document required by the directive to be destroyed.

s 169 amd 2010 No. 5 s 235

170Prosecuting authority to notify chief executive about committal, conviction etc.

(1)This section applies if the police commissioner or the director of public prosecutions (a prosecuting authority) is aware that a person is a public service employee in a department and, after the commencement of this section, the person is charged with a relevant offence.

(2)If the person is committed by a court for trial for a relevant offence, the prosecuting authority must, within 7 days after the committal, give notice to the department’s chief executive of the following—

(a)the person’s name;

(b)the court;

(c)particulars of the offence;

(d)the date of the committal;

(e)the court to which the person was committed.

(3)If the person is convicted before a court of a relevant offence, the prosecuting authority must, within 7 days after the conviction, give notice to the department’s chief executive of the following—

(a)the person’s name;

(b)the court;

(c)particulars of the offence;

(d)the date of the conviction;

(e)the sentence imposed by the court.

(4)If the person is convicted as mentioned in subsection (3), and the person has appealed against the conviction, and the appeal is finally decided or has otherwise ended, the prosecuting authority must, within 7 days after the decision or the day the appeal otherwise ends, give notice to the department’s chief executive of the following—

(a)the person’s name;

(b)particulars of the offence;

(c)the date of the decision or other ending of the appeal;

(d)if the appeal was decided—

(i)the court in which it was decided; and

(ii)particulars of the decision.

(5)If the prosecution for the relevant offence ends without the person being convicted of the offence, the prosecuting authority must, within 7 days after the prosecution process ends, give notice to the department’s chief executive about the following—

(a)the person’s name;

(b)if relevant, the court in which the prosecution process ended;

(c)particulars of the offence;

(d)the date the prosecution process ended.

(6)For subsection (4), the prosecution process ends if—

(a)an indictment was presented against the person but a nolle prosequi is entered on the indictment or the person is acquitted; or

(b)the prosecution process has otherwise ended.

(7)In this section—

disqualifying offence see the Working with Children Act, schedule 7.

relevant offence means—

(a)an indictable offence; or

(b)a disqualifying offence that is not an indictable offence.

s 170 amd 2010 No. 5 s 236; 2014 No. 28 s 105 sch 1

171False or misleading statements in consent

(1)A person must not give a chief executive a consent as mentioned in section 152 or 165A, or another document for this part, that the person knows contains information that is false or misleading in a material particular.

Maximum penalty—100 penalty units.

(2)It is enough for a complaint for an offence against subsection (1) to state the information was ‘false or misleading’ to the person’s knowledge, without specifying which.

s 171 amd 2010 No. 5 s 237

172Confidentiality

(1)This section applies to a person who—

(a)is, or has been, a public service employee in a department or a selection panel member; and

(b)in that capacity acquired information, or gained access to a document, under this part about someone else’s criminal history or police information, including, for example, a criminal history report or police information report.

(2)The person must not disclose the acquired information, or give access to the document, to anyone else.

Maximum penalty—100 penalty units.

(3)Subsection (2) does not apply to the disclosure of acquired information, or giving of access to a document, about a person—

(a)to a public service employee in the department or a selection panel member, for the purpose of assessing the person’s suitability to be engaged to perform relevant duties or child-related duties in relation to which the information or document were acquired; or

(b)with the person’s consent; or

(c)if the disclosure or giving of access is otherwise required under an Act.

(4)In this section—

child-related duties includes duties that are regulated employment.

police information means police information as defined under section 150 of this Act as in force from time to time before the commencement of this definition.

police information report means a report and other information given under previous section 160.

previous section 160 means section 160 of this Act as in force from time to time before the commencement of this definition.

selection panel member means a member of a panel formed to make a recommendation to the chief executive of a department about engaging a person in the department.

s 172 amd 2010 No. 5 s 238

173Commission chief executive may make rulings for this part

(1)The commission chief executive may make rulings for this part.

(2)Without limiting subsection (1), a directive made for this part must make provision for—

(a)the circumstances in which a chief executive may decide that it is necessary to obtain the criminal history of a person; and

(b)the following—

(i)the kinds of places a chief executive may decide are places at which services are provided only or mainly to a child or children;

(ii)the kinds of roles a chief executive may decide involve providing services only or mainly to a child or children;

(iii)the duties that involve contact with a child or children that is of a kind, or happens in a context, that may create an unacceptable level of risk for the child or children; and

(c)a reasonable opportunity to be given to a person to make written representations about a criminal history report before an adverse decision relating to the person is made.

(3)In this section—

adverse decision, relating to a person, means a decision about the person’s suitability for engagement or continued engagement to perform—

(a)relevant duties in relation to which a criminal history report was obtained, other than a decision that the person is suitable for engagement to perform the relevant duties; or

(b)child-related duties, other than a decision that the person is suitable for engagement to perform the child-related duties; or

(c)duties that are regulated employment, other than a decision that the person is suitable to perform the duties.

s 173 amd 2010 No. 5 s 239

174Application of pt 7

This part applies to a public service employee if—

(a)the employee is absent from duty or the employee’s chief executive is reasonably satisfied the employee is not performing his or her duties satisfactorily; and

(b)the chief executive reasonably suspects that the employee’s absence or unsatisfactory performance is caused by mental or physical illness or disability.

175Chief executive may require medical examination

The chief executive may—

(a)appoint a doctor to examine the employee and give the chief executive a written report on the examination; and

(b)require the employee to submit to the medical examination.

176Employee not to be given sick leave if requirement not complied with

The employee must not be given sick leave for any period during which the employee fails to comply with the requirement.

177Medical examination report

(1)The report on the medical examination must include the examining doctor’s opinion as to whether the employee has a mental or physical illness or disability that may adversely affect the employee’s performance.

(2)If the doctor considers the employee has an illness or disability mentioned in subsection (1), the report must also include the doctor’s opinion as to the following—

(a)the likely direct or indirect effect of the illness or disability on the employee’s performance;

(b)an estimate of how long the illness or disability or its effects are likely to last;

(c)whether or not disclosing the information in the report to the employee might be prejudicial to the employee’s mental or physical health or wellbeing.

(3)If the doctor’s opinion is that the disclosure will not be prejudicial to the employee’s mental or physical health or wellbeing, the chief executive must give the employee a copy of the report as soon as practicable after receiving it.

(4)If the doctor’s opinion is that the disclosure might be prejudicial to the employee’s mental or physical health or wellbeing, the chief executive must not disclose the contents of the report to the employee.

(5)However, if asked by the employee in writing, the chief executive must make the disclosure to another doctor nominated by the employee in the request.

178Action following report

(1)If, after considering the report of the medical examination, the chief executive is reasonably satisfied the employee’s absence or unsatisfactory performance is caused by mental or physical illness or disability, the chief executive may—

(a)transfer or redeploy the employee; or

(b)if it is not reasonably practicable to transfer or redeploy the employee—retire the employee from the public service.

(2)Subsection (1) does not limit the action that may be taken relating to the employee.

179Record of requirement and report

(1)The chief executive must keep a record of—

(a)the requirement; and

(b)the report on the medical examination.

(2)If the chief executive considers it necessary to protect the employee’s interests, the chief executive may keep the record separate from other records about the employee.

179AA Directives about applying this part

(1)A directive of the commission chief executive may provide for matters relevant to how this part is to be applied in relation to a public service employee.

(2)In acting under this part, a chief executive must comply with any relevant directive under subsection (1).

s 179AA ins 2010 No. 37 s 128

179ARequirement to disclose previous history of serious disciplinary action

(1)If a chief executive of a department proposes to appoint or second a person to, or employ a person in, the department, the chief executive, under a directive, may require the person to disclose to the chief executive particulars of any serious disciplinary action taken against the person.

(2)The person must comply with the requirement before the appointment, secondment or employment takes effect and within the time and in the way stated by the chief executive.

(3)The chief executive is not required to further consider the person for appointment, secondment or employment if the person—

(a)fails to comply with the requirement; or

(b)gives false or misleading information in response to the requirement.

(4)In this section—

serious disciplinary action means—

(a)disciplinary action under a public sector disciplinary law involving—

(i)termination of employment; or

(ii)reduction of classification level or rank; or

(iii)transfer or redeployment to other employment; or

(iv)reduction of remuneration level; or

(b)a disciplinary declaration under a public sector disciplinary law that states a disciplinary action mentioned in paragraph (a)(i) or (ii) as the disciplinary action that would have been taken against the person if the person’s employment had not ended.

s 179A ins 2009 No. 25 s 12

amd 2010 No. 37 s 129

180Requirement to give evidence of age

A public service employee must, within 1 month after starting employment in the public service, give the employee’s chief executive—

(a)a certified copy or certified extract of the employee’s birth certificate; or

(b)if it is not practicable to obtain the copy or extract, another document the chief executive considers satisfactorily establishes the employee’s age.

181Requirement to give notice of charge or conviction for indictable offence

(1)This section applies if a public service employee is—

(a)charged with an indictable offence; or

(b)convicted by a court of an indictable offence.

(2)The employee must give the employee’s chief executive a notice stating—

(a)if the employee has been charged with an indictable offence—

(i)that the employee has been charged; and

(ii)the details of the alleged offence; or

(b)if the employee has been convicted of an indictable offence—

(i)that the employee has been convicted; and

(ii)the details of the offence; and

(iii)the penalty imposed on the employee.

(3)The notice must be given—

(a)if the employee has been charged with an indictable offence—immediately after the employee is charged; or

(b)if the employee has been convicted of an indictable offence—immediately after the employee is convicted.

(4)In this section—

convicted includes a finding of guilt, whether or not a conviction is recorded.

indictable offence means an offence for which a charge may be laid by indictment or an equivalent process, whether that is the only, or an optional, way to lay a charge of the offence.

182Confidentiality of private information contained in notice

(1)This section applies to a person if—

(a)the person is or has been a public service employee; and

(b)in that capacity, the person has or had access to, or custody of, a notice given under section 181; and

(c)information contained in the notice is not publicly available.

(2)The person must not—

(a)make a record of the information; or

(b)whether directly or indirectly, divulge or communicate the information; or

(c)use the information to benefit any person.

Maximum penalty—100 penalty units.

(3)However, subsection (2) does not apply if the record is made, or the information is divulged, communicated or used—

(a)to the extent necessary to perform the person’s functions under or relating to this Act; or

(b)with the consent of the person who gave the notice; or

(c)as required or permitted by law.

183Work performance arrangements

(1)A chief executive may enter into, and give effect to, an arrangement (a work performance arrangement) under which—

(a)a public service employee employed in a department performs work for another entity; or

(b)a person employed by or within another entity performs work for a department.

Examples of another entity—

•another government entity

•an entity of the Commonwealth or another State, including, for example, any of the following—

(a)a department of government, or part of a department of government, of the Commonwealth or other State;

(b)an entity, or part of an entity, corresponding to a public service office;

(c)an agency, authority, commission, corporation, instrumentality, office, or other entity, established under a law of the jurisdiction or under an authorisation of the Commonwealth or other State for its public or other purposes;

(d)a part of an entity mentioned in paragraph (c)

•a private or public company

(2)A work performance arrangement must be made with the chief executive of the other department or the appropriate authority of the other entity.

(3)A work performance arrangement may make provision for all matters necessary or convenient to be provided under the arrangement.

(4)A work performance arrangement may, for example, provide—

(a)for the appointment of, and holding by, a public service employee or someone else to any office for the arrangement; and

(b)for the authorising of a public service employee or someone else to exercise any powers for the arrangement; and

(c)for whether payment is to be made for work done under the arrangement and, if so, what payment is to be made and who is to make the payment.

184Interchange arrangements

(1)A chief executive may enter into, and give effect to, an arrangement (an interchange arrangement) under which—

(a)a public service employee employed in a department performs duties in another entity; or

(b)a person employed by or within another entity performs duties in a department.

Note—

For examples of other entities, see section 183(1), examples.

(2)An interchange arrangement must be made with the chief executive of the other department or the appropriate authority of the other entity.

(3)An interchange arrangement may make provision for all matters necessary or convenient to be provided under the arrangement.

185Declaration of interests

(1)The chief executive of a department may direct a person employed in the department to prepare and give the chief executive a statement about the employee’s interests.

(2)The statement must include the information required under a directive of the commission chief executive.

(3)Subsections (4) and (5) apply if—

(a)a change to the employee’s interests happens after the giving of the statement; and

(b)the change is of a type prescribed under a directive of the commission chief executive.

(4)The chief executive may direct the employee to give the chief executive a revised version of the statement.

(5)The revised version must—

(a)be given as soon as possible after the relevant facts about the change come to the employee’s knowledge; and

(b)comply with subsection (2).

(6)A direction under this section may—

(a)be given whenever the chief executive considers it necessary, because of the employee’s duties and responsibilities; and

(b)require the statement, or revised version, to be given—

(i)to the chief executive or someone nominated by the chief executive; or

(ii)within a stated period or at stated intervals.

(7)For the interpretation of a reference to an interest, see section 65(4).

s 185 amd 2009 No. 25 s 13

186Conflicts of interest

(1)If a public service employee, other than a chief executive, has an interest that conflicts or may conflict with the discharge of the employee’s duties, the employee—

(a)must disclose the nature of the interest and conflict to the employee’s chief executive as soon as practicable after the relevant facts come to the employee’s knowledge; and

(b)must not take action or further action relating to a matter that is, or may be, affected by the conflict unless authorised by the chief executive.

(2)The chief executive of a department may direct a public service employee employed in the department to resolve a conflict or possible conflict between an interest of the employee and the employee’s duties.

(3)For the interpretation of a reference to an interest or a conflict of interest, see section 65(4).

s 186 amd 2009 No. 25 s 14

ch hdg amd 2009 No. 25 s 15; 2010 No. 37 s 130

pt hdg ins 2009 No. 25 s 16

186ADefinitions for ch 6

In this chapter—

changes employment includes changes employment by promotion, transfer, redeployment or secondment.

employing chief executive, of a public service employee, means the chief executive of a department in which the employee holds an appointment or is employed after the employee changes from one department to another department.

def employing chief executive sub 2010 No. 37 s 131

former public service employee means a public service employee whose employment ends for any reason after a disciplinary ground arises.

def former public service employee ins 2010 No. 37 s 131 (2)

former public service officer ...

def former public service officer om 2010 No. 37 s 131 (1)

previous chief executive, for a public service employee, means the chief executive of the department in which the employee holds an appointment or is employed before—

(a)the employee changes employment from the department to another department; or

(b)the employment of the employee as a public service employee ends for any reason.

def previous chief executive sub 2010 No. 37 s 131

s 186A ins 2009 No. 25 s 16

pt hdg ins 2009 No. 25 s 16

187Grounds for discipline

(1)A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

(a)performed the employee’s duties carelessly, incompetently or inefficiently; or

(b)been guilty of misconduct; or

(c)been absent from duty without approved leave and without reasonable excuse; or

(d)contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or

(e)used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or

(ea)contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—

(i)failing to disclose a serious disciplinary action; or

(ii)giving false or misleading information; or

(f)contravened, without reasonable excuse—

(i)a provision of this Act; or

(ii)a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or

(iii)a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.

(2)A disciplinary ground arises when the act or omission constituting the ground is done or made.

(3)Also, a chief executive may discipline, on the same grounds mentioned in subsection (1)—

(a)a public service employee under section 187A; or

(b)a former public service employee under section 188A.

(4)In this section—

misconduct means—

(a)inappropriate or improper conduct in an official capacity; or

(b)inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

Example of misconduct—

victimising another public service employee in the course of the other employee’s employment in the public service

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.

s 187 amd 2009 No. 25 s 17; 2010 No. 37 s 132

187AHow disciplinary action may be taken against a public service employee after the employee changes employment

(1)This section applies if—

(a)a public service employee holds an appointment with, or is employed by, a department and a disciplinary ground arises in relation to the employee; and

(b)after the disciplinary ground arises the employee changes employment from the department to another department.

(2)The previous chief executive may make a disciplinary finding about the disciplinary ground even though the employee holds an appointment with, or is employed by, the other department.

(3)The previous chief executive may not take disciplinary action about the disciplinary ground other than to the extent provided under subsection (4).

(4)If—

(a)the previous chief executive makes a disciplinary finding about the disciplinary ground; and

(b)the previous chief executive and the employing chief executive agree that disciplinary action against the employee is reasonable in the circumstances;

the employing chief executive may take disciplinary action against the employee under section 188.

(5)Despite subsection (2) and without limiting or being limited by any other power of delegation under any Act, the previous chief executive may delegate to the employing chief executive the authority under subsection (2) to make a disciplinary finding about the employee.

(6)If—

(a)the previous chief executive delegates to the employing chief executive the authority under subsection (2) to make a disciplinary finding about the employee; and

(b)the employing chief executive makes a disciplinary finding about the employee;

the employing chief executive may take disciplinary action against the employee under section 188 without the agreement of the previous chief executive.

(7)The previous chief executive may give to the employing chief executive any information about a public service employee or a disciplinary ground relating to the employee to help the employing chief executive to perform a function under subsection (4) or (5) in relation to the employee.

s 187A ins 2009 No. 25 s 18

amd 2010 No. 37 s 133

188Disciplinary action that may be taken against a public service employee

(1)In disciplining a public service employee, the employee’s chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

Examples of disciplinary action—

•termination of employment

•reduction of classification level and a consequential change of duties

•transfer or redeployment to other public service employment

•forfeiture or deferment of a remuneration increment or increase

•reduction of remuneration level

•imposition of a monetary penalty

•if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments

•a reprimand

(2)If the disciplinary action is taken following an agreement under section 187A(4) between the previous chief executive and the employing chief executive mentioned in the section, the chief executives must agree on the disciplinary action.

(3)However, a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.

(4)Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee—

(a)must not be more than half of the amount payable to or for the employee in relation to the payment; and

(b)must not reduce the amount of salary payable to the employee in relation to the period to less than—

(i)if the employee has a dependant—the guaranteed minimum wage for each week of the period; or

(ii)otherwise—two-thirds of the guaranteed minimum wage for each week of the period.

(5)In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.

(6)An order under subsection (1) is binding on anyone affected by it.

s 188 amd 2009 No. 25 s 19; 2010 No. 37 s 134

188ADisciplinary action that may be taken against a former public service employee

(1)This section applies if—

(a)a disciplinary ground arises in relation to a public service employee; and

(b)after the disciplinary ground arises the employee’s employment as a public service employee ends for any reason.

(2)However, this section does not apply if—

(a)the former public service employee is an ambulance service officer and the ambulance service chief executive has taken, is taking, or intends to take disciplinary action against the employee in relation to the disciplinary ground under the Ambulance Service Act 1991, part 2, division 4, subdivision 2; or

(b)the former public service employee is a fire service officer and the fire service chief executive has taken, is taking, or intends to take disciplinary action against the employee in relation to the disciplinary ground under the Fire and Emergency Services Act 1990, chapter 3.

(3)The previous chief executive may make a disciplinary finding or take or continue to take disciplinary action against the former public service employee in relation to the disciplinary ground.

(4)The disciplinary finding or disciplinary action must be made or taken within a period of 2 years after the end of the employee’s employment.

(5)However, subsection (4) does not stop disciplinary action being taken following an appeal or review.

(6)Subsection (4) does not affect—

(a)an investigation of a suspected criminal offence; or

(b)an investigation of a matter for the purpose of notifying the Crime and Corruption Commission of suspected corrupt conduct under the Crime and Corruption Act 2001.

(7)In disciplining the former public service employee, the previous chief executive may make a disciplinary declaration and may not take any other disciplinary action.

(8)The previous chief executive may only make a disciplinary declaration if the disciplinary action that would have been taken against the employee if the employee’s employment had not ended would have been—

(a)termination of employment; or

(b)reduction of classification level.

(9)The making of the disciplinary declaration does not affect the way in which the employee’s employment ended, or any benefits, rights or liabilities arising because the employment ended.

(10)In this section—

disciplinary declaration means a declaration of—

(a)the disciplinary finding against the former public service employee; and

(b)the disciplinary action that would have been taken against the employee if the employee’s employment had not ended.

s 188A ins 2009 No. 25 s 20

amd 2010 No. 37 s 135; 2014 No. 17 s 181; 2014 No. 21 s 94 (2) sch 2

188AB Disciplinary action that may be taken against a former ambulance service officer or former fire service officer

(1)This section applies if—

(a)a disciplinary ground arises in relation to an ambulance service officer or fire service officer (the former service officer); and

(b)after the disciplinary ground arises, the officer’s employment as an ambulance service officer or fire service officer ends for any reason; and

(c)the officer is a public service employee in a department.

(2)However, this section does not apply in relation to a former service officer if—

(a)the officer was an ambulance service officer and the previous or employing chief executive has taken, is taking, or intends to take action against the officer under the Ambulance Service Act 1991, part 2, division 4, subdivision 3; or

(b)the officer was a fire service officer and the previous or employing chief executive has taken, is taking, or intends to take action against the officer under the Fire and Emergency Services Act 1990, chapter 3.

(3)The previous chief executive may make a disciplinary finding about the disciplinary ground even though the former service officer is no longer employed in the service for which the previous chief executive is the chief executive.

(4)Despite subsection (3) and without limiting or being limited by any other power of delegation under any Act, the previous chief executive may delegate to the employing chief executive the authority under subsection (3) to make a disciplinary finding about the former service officer.

(5)If—

(a)the previous chief executive makes a disciplinary finding about the disciplinary ground; and

(b)the previous chief executive and the person’s employing chief executive agree that disciplinary action against the former service officer is reasonable in the circumstances;

the employing chief executive may take disciplinary action against the officer under section 188 as if a disciplinary ground exists.

(6)If—

(a)the previous chief executive delegates to the employing chief executive the authority under subsection (4) to make a disciplinary finding about the former service officer; and

(b)the employing chief executive makes a disciplinary finding about the former service officer;

the employing chief executive may take disciplinary action against the officer under section 188 without the agreement of the previous chief executive.

(7)The previous chief executive may give to the employing chief executive any information about the person or a disciplinary ground relating to the person to help the employing chief executive to perform a function under subsection (5) or (6) in relation to the person.

(8)If, in relation to a person who was an ambulance service officer or fire service officer, a chief executive is both the previous chief executive and employing chief executive, this section applies with necessary changes to allow the chief executive to take disciplinary action against the person as provided under this section.

(9)In this section—

employing chief executive, for a person, means the chief executive of the department in which the person is employed.

previous chief executive means—

(a)for a person who was an ambulance service officer—the ambulance service chief executive; or

(b)for a person who was a fire service officer—the fire service chief executive.

s 188AB ins 2010 No. 37 s 136

amd 2014 No. 17 s 182

188BInformation about disciplinary action to be given by chief executive

(1)This section applies if—

(a)the chief executive of a department asks the chief executive of another department (the other chief executive) for disciplinary information that the other chief executive has about a person who is or was a public service employee; and

(b)the information is reasonably necessary for the chief executive to make a decision about—

(i)an appointment or employment, or continued appointment or employment, of the person to the chief executive’s department; or

(ii)a disciplinary finding, disciplinary action or disciplinary declaration the chief executive is considering in relation to the person.

(2)The other chief executive must give the disciplinary information to the chief executive unless the other chief executive is reasonably satisfied that giving the information may prejudice the investigation of a suspected contravention of the law in a particular case.

(3)In this section—

disciplinary information, in relation to a request made of a chief executive about a person, means information about the following made or taken against the person under a public sector disciplinary law by the chief executive or another entity—

(a)a current investigation into whether the person should be disciplined;

(b)a finding that the person should be disciplined;

(c)possible disciplinary action under consideration;

(d)disciplinary action, including a disciplinary declaration.

s 188B ins 2009 No. 25 s 20

amd 2010 No. 37 s 137

189Suspension of public service employee liable to discipline

(1)The chief executive may suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.

(2)However, before suspending the employee, the chief executive must consider all alternative duties that may be available for the employee to perform.

(3)The chief executive may cancel the suspension at any time.

s 189 amd 2010 No. 37 s 138

190Procedure for disciplinary action

(1)In disciplining a public service employee or former public service employee or suspending a public service employee, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice.

(2)However, natural justice is not required if the suspension is on normal remuneration.

s 190 amd 2009 No. 25 s 21; 2010 No. 37 s 139

191Effect of suspension from duty

(1)This section applies to a public service employee suspended from duty under this chapter unless the employee’s chief executive decides otherwise.

(2)During the period of the suspension the employee is entitled to normal remuneration, less any amount earned by the employee from alternative employment that the employee engages in during the period.

(3)For subsection (2), alternative employment does not include employment if—

(a)the employee was engaged in the employment at the time of the suspension; and

(b)the employee’s engaging in the employment was not in contravention of—

(i)this Act; or

(ii)a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or

(c)a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.

(4)The deduction under subsection (2) must not be more than the amount of the employee’s normal remuneration during the period of the suspension.

(5)The continuity of a public service employee’s service as a public service officer is taken not to have been broken only because of a suspension under this chapter.

(6)The continuity of a general or temporary employee’s employment as a general or temporary employee is taken not to have been broken only because of a suspension under this chapter.

s 191 amd 2010 No. 37 s 140

192Additional procedures for suspension or termination

(1)If a chief executive decides to suspend or terminate the employment of a public service employee, the chief executive must give the employee notice of the suspension or termination.

(2)The notice must state—

(a)for a suspension—

(i)when the suspension starts and ends; and

(ii)the remuneration to which the employee is entitled for the period of the suspension, under a decision mentioned in section 191(1) or, if no decision has been made under section 191(1), under section 191(2); and

(iii)the effect that alternative employment may, under section 191, have on the entitlement; or

(b)for a termination—the day when it takes effect.

s 192 amd 2010 No. 37 s 141

pt hdg sub 2010 No. 37 s 142

amd 2012 No. 7 s 58 sch

193Appeals

A person may appeal against a decision if—

(a)an appeal may be made against the decision, under section 194; and

(b)the person is entitled to appeal against the decision under section 196.

Note—

The Industrial Relations Act 2016 does not apply in relation to a matter that has been, or is, the subject of an appeal under this part except to the extent the matter relates to bullying in the workplace—see sections 425 and 449 of that Act.

s 193 amd 2010 No. 37 s 143; 2012 No. 7 ss 40, 58 sch; 2016 No. 63 s 1127

194Decisions against which appeals may be made

(1)An appeal may be made against the following decisions—

(a)a decision to take, or not take, action under a directive;

(b)a decision under a disciplinary law to discipline—

(i)a person (other than by termination of employment), including the action taken in disciplining the person; or

(ii)a former public service employee by way of a disciplinary declaration made under section 188A, including if the disciplinary action that would have been taken was termination of employment;

(c)a decision to promote a public service officer (a promotion decision);

(d)a decision to transfer a public service officer (a transfer decision);

(e)a decision under section 149 that a temporary employee’s employment in a department is to continue as a temporary employee (a temporary employment decision);

Note—

A failure by the chief executive to make a decision under section 149 is taken to be a decision that the person’s employment in the department is to continue as a temporary employee according to the terms of the existing employment. See section 149(4).

(ea)a decision under section 149A that the employment of a casual employee in a department is to continue as a casual employee (a casual employment decision);

(eb)a decision a public service employee believes is unfair and unreasonable (a fair treatment decision);

(f)a decision about anything else against which another Act allows a person to appeal.

(2)However—

(a)if an appeal may be made under this section against a decision, other than under subsection (1)(eb), the appeal can not be made under subsection (1)(eb); and

(b)an appeal can not be made against a decision if section 195 applies to the decision.

(3)In this section—

temporary employee—

(a)includes a general employee employed on a temporary basis; but

(b)does not include a person employed under section 147 or 148 on a casual basis.

s 194 amd 2009 No. 25 s 22; 2010 No. 37 s 144; 2012 No. 7 s 58 sch; 2016 No. 63 s 1127A

195Decisions against which appeals can not be made

(1)A person can not appeal against any of the following decisions—

(a)a decision of the Governor in Council;

(b)a decision of a Minister;

(c)a decision about superannuation benefits or workers’ compensation;

(d)a decision about probation;

(e)a decision to terminate the employment of a public service officer employed on probation;

(f)a decision about the classification level of employment, unless the decision is declared under a directive of the commission chief executive to be a decision against which an appeal may be made;

(g)a decision to promote, transfer, redeploy or second a person as a chief executive, senior executive or senior officer;

(h)a non-appealable appointment.

(2)A person can not appeal against, or in an appeal call in question in any way, a decision that decides the policy, strategy, nature, scope, resourcing or direction of the public service or a department.

(3)A person can not appeal against a promotion decision if—

(a)the relevant public service officer had been redeployed within 1 year before the promotion; and

(b)the promotion is to a classification level that is not higher than the officer’s classification level immediately before the redeployment.

(3A)A person can not appeal against a fair treatment decision—

(a)made under chapter 5, part 7; or

(b)made under chapter 6, part 2, other than—

(i)a finding under section 187 that a disciplinary ground exists for the person; or

(ii)a decision under section 189 to suspend a person from duty without pay; or

(c)relating to the recruitment or selection of a public service employee; or

(d)relating to a person’s work performance, other than a decision about the person’s work performance that is recorded in a formal way as part of a periodic performance review; or

Example for paragraph (d)—

a decision about performance recorded in a person’s performance development agreement as part of the person’s 6-monthly or annual performance review

(e) relating to the resolution of a grievance under an industrial instrument, other than a decision about the outcome of the grievance; or

(f)relating to the development or performance management of a chief executive or senior executive.

(4)In addition, a person can not appeal against a decision if—

(a)the parties to the appeal would include the commission, a commissioner or a staff member of the commission; or

(b)it is a matter that has been heard by the IRC.

Note—

Under section 215, the IRC has jurisdiction to hear and decide a matter mentioned in this subsection.

(4A)Subsection (4) does not apply in relation to a matter mentioned in subsection (4)(b) to the extent the matter relates to bullying in the workplace.

(5)In this section—

non-appealable appointment means an appointment—

(a)for which the commission chief executive is satisfied merit in selection processes is sufficiently protected by ways other than an appeal under this part; and

(b)that the commission chief executive has declared by gazette notice, or a directive for this part, to be an appointment against which an appeal may not be made.

s 195 amd 2010 No. 37 s 145; 2012 No. 7 s 58 sch; 2016 No. 63 s 1128

196Who may appeal

The following persons may appeal against the following decisions—

(a)for a decision mentioned in section 194(1)(a)—a public service employee aggrieved by the decision if the employee is entitled to appeal under a directive of the commission chief executive;

(b)for a decision mentioned in section 194(1)(b)—a public service employee or former public service employee aggrieved by the decision to discipline the employee if the employee is entitled to appeal under a directive of the commission chief executive;

(c)for a promotion decision—a public service officer aggrieved by the decision who is entitled to appeal under a directive of the commission chief executive;

(d)for a transfer decision—the public service officer the subject of the transfer;

(e)for a temporary employment decision—the temporary employee the subject of the decision;

(ea)for a casual employment decision—the casual employee the subject of the decision;

(eb)for a fair treatment decision—a public service employee who is aggrieved by the decision;

(f)for a decision mentioned in section 194(1)(f)—the person the other Act allows to appeal.

s 196 amd 2009 No. 25 s 23; 2010 No. 37 s 146; 2012 No. 7 s 58 sch; 2016 No. 63 s 1128A

div hdg ins 2012 No. 7 s 41

sub 2016 No. 63 s 1129

196AAppeal heard and decided by IRC member

(1)An appeal under this part is heard and decided by an IRC member.

(2)To remove any doubt, it is declared that an IRC member’s functions and powers for this Act are performed and exercised under this Act and not under the Industrial Relations Act 2016.

s 196A ins 2012 No. 7 s 41

amd 2016 No. 63 s 1130

196B Duty of person performing appeal function

An IRC member hearing and deciding an appeal and any staff member performing functions to help the IRC member to hear and decide an appeal—

(a)must perform the functions independently, impartially, fairly, and in the public interest; and

(b)in performing the functions, are not subject to direction by the commission, the commission chief executive or any Minister.

s 196B ins 2016 No. 63 s 1131

197Starting an appeal

(1)An appeal may be started only by giving the industrial registrar a notice (an appeal notice) stating—

(a)details identifying the decision appealed against; and

(b)reasons for the appeal.

(2)An appeal notice must be given and actually received by the industrial registrar before 5:00p.m. on the day that is 21 days after—

(a)for a promotion decision—the day the decision is publicly notified; or

(b)otherwise—the day the appellant received notice of the decision appealed against.

(3)However, the IRC member may at any time extend the time for giving an appeal notice if the appellant satisfies the member that there is a reasonable ground for extending the time.

s 197 amd 2010 No. 37 s 147; 2012 No. 7 s 42; 2012 No. 22 s 6; 2016 No. 63 s 1132

198Notice by industrial registrar of appeal

(1)As soon as possible after receiving an appeal notice under section 197, the industrial registrar must—

(a)give notice of receipt of the appeal notice to the appellant; and

(b)give the appeal notice to an IRC member.

(2)The industrial registrar must give a copy of an appeal notice to—

(a)each other party to the appeal; and

(b)for a relocation decision—the chief executive of the department or the head of the public service office in which the promoted or transferred officer was employed immediately before the promotion or transfer took effect.

(3)In this section—

relocation decision means a promotion decision or transfer decision involving a public service officer’s promotion or transfer to employment in a different department or public service office to the one in which the officer was employed immediately before the promotion or transfer.

s 198 amd 2010 No. 37 s 148; 2012 No. 7 s 43; 2012 No. 22 s 7; 2016 No. 63 s 1133

199Stay of operation of decisions etc.

(1)An IRC member may stay a decision appealed against to secure the effectiveness of the appeal.

(2)A stay—

(a)may be given on conditions; and

(b)operates for the period fixed by the IRC member; and

(c)may be revoked or amended by the IRC member.

(3)The period of a stay must not extend past the time when the IRC member decides the appeal.

(4)The starting of an appeal against a decision affects the decision, or the carrying out of the decision, only if the decision is stayed.

s 199 amd 2010 No. 37 s 149; 2012 No. 7 s 58 sch; 2016 No. 63 s 1134

200IRC member may decline to hear particular appeals

(1)An IRC member may decline to hear an appeal against a decision mentioned in section 194(1)(a), (d) or (eb) unless the IRC member is satisfied the appellant has used procedures required to be used under the employee complaints directive.

(1A)However, the IRC member may hear an appeal against a fair treatment decision under section 194(1)(eb) if the IRC member is satisfied it would be unreasonable to require the employee to comply with the procedures in the circumstances.

(2)An IRC member may decline to hear an appeal against a promotion decision unless he or she is satisfied, by oral or written submissions, that the appellant has an arguable case for the appeal.

(3)An IRC member may decline to hear an appeal against any decision if—

(a)the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or

(b)he or she reasonably believes the appeal—

(i)is frivolous or vexatious; or

(ii)is misconceived or lacks substance; or

(iii)should not be heard for another compelling reason.

(4)However, before declining to hear an appeal under subsection (3)(b), the IRC member must ask the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal.

s 200 amd 2010 No. 37 s 150; 2012 No. 7 s 58 sch; 2016 No. 63 s 1135

201Appeal is by way of review

(1)An IRC member must decide an appeal by reviewing the decision appealed against.

(2)The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

(3)For an appeal against a decision about a promotion or disciplinary action, an IRC member must decide the appeal on the basis of the evidence available to the decision maker when the decision was made.

(4)However, subsection (3) does not prevent an IRC member from allowing other evidence to be taken into account.

s 201 amd 2010 No. 37 s 151; 2012 No. 7 ss 44, 58 sch; 2016 No. 63 s 1136

202IRC member’s functions on appeal

In hearing and deciding an appeal, an IRC member must—

(a)observe the principles of natural justice; and

(b)act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues.

Note—

See also section 88G.

s 202 amd 2010 No. 37 s 152; 2012 No. 7 s 58 sch; 2016 No. 63 s 1137

203IRC member may decide procedures

(1)An IRC member—

(a)is not bound by the rules of evidence; and

(b)may inform himself or herself in the way, and to the extent, he or she considers appropriate; and

(c)may decide the persons, other than the appellant, who are the parties to the appeal; and

(d)may decide the appeal without a hearing; and

(e)may hear and decide any issue relevant to the appeal; and

(f)may decide the procedures to be followed in the appeal, including, for example, whether—

(i)the appeal should be heard with other appeals; and

(ii)the parties should be heard together or separately; and

(iii)the parties should be heard, or evidence or submissions taken, by way of video link or another form of communication.

(2)However, an IRC member must comply with—

(a)this part; and

(b)any relevant procedural rules prescribed under a regulation; and

(c)a decision of the senior IRC member made for the appeal under section 203A; and

(d)any practice directions made under section 203B.

s 203 amd 2010 No. 37 s 153; 2012 No. 7 s 58 sch; 2013 No. 29 s 65; 2016 No. 63 s 1138

203ASenior IRC member may decide procedures

(1)The senior IRC member may decide the procedures to be followed in a particular appeal.

(2)The senior IRC member may make a decision under subsection (1) on the officer’s own initiative or on the application of a party to the appeal.

(3)However, a decision of the senior IRC member under subsection (1) must be consistent with this part or any relevant procedural rules prescribed under a regulation.

s 203A ins 2013 No. 29 s 66; 2016 No. 63 s 1139

203BPractice directions

(1)The senior IRC member may make practice directions about the practices and procedures to be followed in appeals.

(2)A practice direction must not be inconsistent with this part or any relevant procedural rules prescribed under a regulation.

(3)To remove any doubt, it is declared that a practice direction is not subordinate legislation.

s 203B ins 2013 No. 29 s 66

amd 2016 No. 63 s 1140

204Representation of parties

(1)A party to an appeal may appear personally or by an agent.

(2)However, a party may not be represented by a person if—

(a)the party has instructed the person to act as the party’s lawyer; and

(b)in so acting, the person would be subject to the Legal Profession Act 2007.

(3)Also, a party to an appeal about a promotion decision may be represented by an agent only with the leave of the IRC member who is hearing the appeal.

s 204 amd 2010 No. 37 s 154; 2012 No. 7 s 45; 2016 No. 63 s 1141

205IRC member’s powers on appeal

(1)In hearing an appeal, an IRC member may—

(a)act in the absence of a person who has been given reasonable notice; and

(b)receive evidence on oath or affirmation or by statutory declaration; and

(c)require a public service employee to attend as a witness to give evidence or produce documents or things; and

(d)require a public service employee attending as a witness to make an oath or affirmation.

(2)The IRC member may administer an oath or affirmation to a person appearing as a witness.

s 205 amd 2010 No. 37 s 155; 2012 No. 7 s 58 sch; 2016 No. 63 s 1142

206Withdrawing an appeal

(1)An appellant may withdraw the appeal by notice to the industrial registrar.

(2)However, the notice may only be given before the IRC member gives the appellant notice of the decision on the appeal.

(3)The industrial registrar must give notice of the withdrawal to the IRC member who is hearing the appeal, the other parties to the appeal and to anyone else he or she considers has an interest in the appeal.

s 206 amd 2010 No. 37 s 156; 2012 No. 7 s 46; 2012 No. 22 s 8; 2016 No. 63 s 1143

207Lapse of appeal

An appeal lapses if the appellant stops being—

(a)a public service employee; or

(b)a person who may appeal against the decision the subject of the appeal.

Note—

This section has no relevance to an appeal against a disciplinary declaration.

s 207 amd 2009 No. 25 s 24

208Decision on appeal

(1)In deciding an appeal, an IRC member may—

(a)confirm the decision appealed against; or

(b)for an appeal against a promotion decision—set the decision aside, and return the issue to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive that he or she considers appropriate; or

(c)for another appeal—set the decision aside, and substitute another decision or return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

(2)In deciding an appeal against a promotion decision, an IRC member may set the decision aside only if he or she finds that the recruitment or selection process was deficient.

(3)A decision on an appeal must be written and state the reasons for the decision.

(4)As soon as possible after a decision on an appeal is available, the IRC member who made the decision must give a copy of it to—

(a)the parties to the appeal; and

(b)the industrial registrar; and

(c)the commission chief executive.

s 208 amd 2010 No. 37 s 157; 2012 No. 7 ss 47, 58 sch; 2012 No. 22 s 9; 2016 No. 63 s 1144

209Criteria for deciding process deficiency

For section 208(2), the IRC member must have regard to whether or not the selection or recruitment process complied with—

(a)generally—this Act, a regulation or a directive of the commission chief executive; and

(b)for persons employed other than under this Act—the relevant Act or a regulation under that Act.

s 209 amd 2010 No. 37 s 158; 2016 No. 63 s 1145

210Decision on appeal is binding on parties

(1)An IRC member’s decision on an appeal is binding on all parties to the appeal.

(2)Without limiting subsection (1), a chief executive of a department must take all steps necessary to give effect to a decision of the IRC member applying to the department.

s 210 sub 2010 No. 37 s 159

amd 2012 No. 7 s 48; 2016 No. 63 s 1146

211Attendance at an appeal is part of an employee’s duties

Attendance at an appeal proceeding is part of a public service employee’s duties if the employee—

(a)is a party to the appeal; or

(b)is requested or required by an IRC member to attend the proceeding.

Note—

This section has no relevance to an appeal against a disciplinary declaration.

s 211 amd 2009 No. 25 s 25; 2010 No. 37 s 160; 2012 No. 7 s 58 sch; 2016 No. 63 s 1147

212Public service employee’s entitlements for attending appeal as part of duties

(1)A public service employee is entitled to be paid travelling expenses and allowances reasonably incurred in attending an appeal proceeding as part of the employee’s duties.

(2)The amount of the expenses and allowances is to be decided by the commission chief executive.

(3)However, this section does not apply to an employee who is the appellant and is suspended from duty without pay, unless the employee’s appeal is allowed.

Note—

This section has no relevance to an appeal against a disciplinary declaration.

s 212 amd 2009 No. 25 s 26; 2010 No. 37 s 161; 2012 No. 7 s 49

213Entitlement of non-public service employees

(1)This section applies if an IRC member asks a person, other than a public service employee, to attend an appeal proceeding.

(2)The person is entitled to be reimbursed for any expenses reasonably incurred by the person in attending the proceeding.

(3)The amount of the expenses is to be decided by the commission chief executive.

(4)This section does not apply to a person who is appealing against a disciplinary declaration.

s 213 amd 2009 No. 25 s 27; 2010 No. 37 s 162; 2012 No. 7 ss 50, 58 sch; 2016 No. 63 s 1148

214Relevant department’s or public service office’s financial obligation for appeal

(1)The department or public service office whose decision is appealed against must pay—

(a)the costs of the appeal, including the IRC member’s costs incurred for, or attributable to, the appeal; and

(b)the travelling expenses and allowances payable under section 212; and

(c)the amount of any expenses required to be reimbursed under section 213.

(2)An amount payable for costs under subsection (1)(a) is the amount the commission chief executive considers is reasonable that is no more than the actual costs.

(3)The chief executive of the department or head of the public service office must ensure subsection (1) is complied with as soon as practicable.

s 214 amd 2010 No. 37 s 163; 2012 No. 7 s 51; 2016 No. 63 s 1149

214BCommission chief executive must make directive for this part

(1)The commission chief executive must make a directive for this part.

(2)The directive—

(a)must make provision for—

(i)the decisions, if any, against which an appeal may be made; and

(ii)the persons who are entitled to appeal against a decision mentioned in section 194(1); and

(iii)the directions, if any, an IRC member may give under section 208(1)(b); and

(b)may, for section 195(5), definition non-appealable appointment, declare an appointment to be an appointment against which an appeal may not be made.

(3)However, the directive must not direct, or purport to direct, an IRC member or another person to do or not do something, or to do or not do something in a particular way, in relation to an appeal under this part.

s 214B ins 2010 No. 37 s 164

amd 2012 No. 7 s 58 sch; 2016 No. 63 s 1150

215Jurisdiction of IRC for industrial matters

(1)This section is to be read in conjunction with the Industrial Relations Act 2016.

(2)The IRC may hear and decide, as an industrial matter, an application by a person aggrieved by a matter mentioned in section 195(4).

Note—

Section 195(4) is about decisions that can not be appealed against because the appeal would involve the commission, a commissioner or a staff member of the commission.

s 215 amd 2010 No. 37 s 165; 2012 No. 7 s 52; 2016 No. 63 s 1151; 2016 No. 63 ss 1151, 1157 sch 6

216Application of pt 3

(1)This part applies to the following matters (each an excluded matter)—

(a)a decision to appoint, or not to appoint, a person under this Act or as a statutory office holder;

(b)the contract of employment of, or the application of this Act or a provision of this Act to, any of the following—

(i)a commissioner;

(ii)a chief executive;

(iii)a senior executive;

(iv)a senior officer;

(v)another public service officer whose employment is on contract for a fixed term.

(2)In this section—

decision includes a purported decision affected by jurisdictional error.

s 216 amd 2010 No. 37 s 166

217Exclusion for Industrial Relations Act 2016

(1)An excluded matter, or a matter affecting or relating to an excluded matter, is not an industrial matter for the Industrial Relations Act 2016.

(2)However, subsection (1)—

(a)is subject to section 122(7); and

(b)does not apply for a dismissal of a public service officer who is employed on tenure; and

(c)has no effect on the Industrial Relations Act 2016, section 471.

(3)Without limiting subsection (1), industrial instruments do not apply to a person who holds an office mentioned in section 216(1)(b).

s 217 amd 2016 No. 63 s 1157 sch 6

218Exclusion for Judicial Review Act 1991

(1)A decision about an excluded matter can not be challenged, appealed against, reviewed, quashed, set aside, or called in question in another way, under the Judicial Review Act 1991.

(2)However, subsection (1) does not apply to a decision about a senior officer.

pt hdg ins 2010 No. 37 s 167

218ACommission chief executive must make directive about dealing with complaints by officers and employees

(1)The commission chief executive must make a directive (the employee complaints directive) about how departments must deal with complaints made by officers or employees of the department about—

(a)decisions made by officers or employees of the department; or

(b)the conduct of officers or employees of the department.

(2)Without limiting subsection (1), a directive made under this section—

(a)must provide for—

(i)the procedures for dealing with complaints mentioned in subsection (1); and

(ii)the period within which the complaints must be finally dealt with; and

(iii)the notification of decisions made in dealing with the complaints; and

(b)must provide that, if a person required to deal with a complaint about a decision mentioned in subsection (1)(a) fails to finally deal with the complaint within the period mentioned in paragraph (a)(ii), the person is taken to have confirmed the decision at the end of that period; and

(c)may apply to a decision mentioned in section 194; and

(d)may provide for a system for dealing with complaints that involves—

(i)a person dealing with a complaint in the first instance; and

(ii)another person dealing with (including, for example, by way of review) decisions made by the person who dealt with the complaint in the first instance.

s 218A ins 2010 No. 37 s 167

amd 2016 No. 63 s 1151A

218BCommission chief executive’s functions—appeals

The commission chief executive may communicate, in the way the officer considers appropriate, matters arising out of an appeal under part 1 that may affect decision-making for particular decisions in the public service, or in a particular government entity, to—

(a)persons who are likely to make decisions of that kind; or

(b)persons who are likely to be affected by decisions of that kind; or

(c)any other person if the officer considers the matters may be relevant to the person’s functions under an Act or other law.

s 218B ins 2012 No. 7 s 53

218CReport on appeals

(1)As soon as practicable after a financial year ends, the commission chief executive must give the Minister a written report about appeals started, lapsed, withdrawn or decided under part 1 during the financial year.

(2)If the Minister asks the commission chief executive for particular information concerning a matter mentioned in the report, the commission chief executive must—

(a)comply with the request; and

(b)give the help the Minister needs to consider the information.

(3)Information provided to the Minister under subsection (2) is confidential.

s 218C (prev s 88D) ins 2010 No. 37 s 117

amd 2012 No. 7 s 34

reloc and renum 2012 No. 7 s 34 (4)

amd 2012 No. 22 s 10

219Effect of Act on the State

(1)Subject to subsection (3), this Act binds the State.

(2)A person who employs another person under this Act employs the person as the authorised agent of the State.

(3)The right or power of the State recognised at common law to dispense with the services of a person employed in the public service is not abrogated or restricted by any provision of this Act.

219ADepartments to have complaints management system for customer complaints

(1)A department must establish and implement a system for dealing with customer complaints.

(2)The system must—

(a)provide for the department to take responsibility for managing the receipt, processing and outcome of a customer complaint; and

(b)comply with any Australian Standard about the handling of customer complaints that is in effect from time to time; and

(c)provide for giving notice of the outcome of a customer complaint to the complainant (unless the complaint was made anonymously).

(3)By 30 September after each financial year, the chief executive of the department must publish the following information for the financial year on the department’s website—

(a)the number of customer complaints received by the department in the year;

(b)the number of those complaints resulting in further action;

(c)the number of those complaints resulting in no further action.

(4)In this section—

customer complaint—

(a)means a complaint about the service or action of a department, or its staff, by a person who is apparently directly affected by the service or action; and

(b)includes, for example, a complaint about any of the following—

(i)a decision made, or a failure to make a decision, by a public service employee of the department;

(ii)an act, or failure to act, of the department;

(iii)the formulation of a proposal or intention by the department;

(iv)the making of a recommendation by the department;

(v)the customer service provided by a public service employee of the department.

s 219A ins 2014 No. 21 s 88

220Provision for acting appointments not by original appointor

(1)This section applies if—

(a)a provision of this Act authorises a person (the appointor) to appoint someone else to act in an office (the appointee); and

(b)the appointor is not the person who, under this Act, may appoint persons to that office.

(2)The Acts Interpretation Act 1954, section 24B(8) and (9) apply to the appointor and the appointee as if the appointee had been appointed under that section.

(3)This section does not limit or otherwise affect the Acts Interpretation Act 1954, section 24B.

221Offences against Act are summary

An offence against this Act is a summary offence.

222Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)A regulation may be made about—

(a)the operation of the public service, a department or public service office; or

(b)the entitlements, responsibilities, functions, powers and liabilities of public service employees; or

(c)any matter that is permitted under this Act to be provided for by a ruling.

(3)To the extent that it permits the making of a regulation for remuneration and conditions of employment, this section is to be administered by the industrial relations Minister.

(4)A regulation may provide for administration of it by a Minister other than the Minister.

223Acts repealed

The following Acts are repealed—

•Crown Employees Act 1958, No. 36

•Equal Opportunity in Public Employment Act 1992, No. 10

•Public Service Act 1996, No. 37

•Service Delivery and Performance Commission Act 2005, No. 52.

pt hdg amd 2009 No. 25 s 28; 2010 No. 37 s 168

224Definitions for pt 2

In this part—

changeover day means the day this section commences.

former public service commissioner means the person holding office as the Public Service Commissioner under the repealed Public Service Act immediately before the changeover day.

former public service office means the Office of the Public Service Commissioner established under the repealed Public Service Act.

former service delivery commission means the Service Delivery and Performance Commission established under the repealed Commission Act.

repealed Commission Act means the repealed Service Delivery and Performance Commission Act 2005.

repealed Public Service Act means the repealed Public Service Act 1996.

225Existing public service officers generally

(1)A person who was a public service officer under the repealed Public Service Act immediately before the changeover day (an existing officer) is taken to be a public service officer under this Act.

(2)The person’s employment and conditions of employment are not affected by any discontinuance of public service positions because of the enactment of this Act.

(3)If there is doubt about whether a person is an existing officer, a chief executive may, if the person asks, declare the person to be an existing officer.

(4)On the making of the declaration, subsections (1) and (2) are taken to have always applied to the person.

226Existing chief executives

(1)If, immediately before the changeover day, a person held appointment under the repealed Public Service Act as a chief executive, the person is taken to have been appointed under this Act as a chief executive for the remainder of the person’s term of appointment.

(2)If, immediately before the changeover day, a person was seconded as chief executive of a department, the secondment continues as if it had been made under this Act.

(3)The title of a chief executive immediately before the changeover day continues to be the title of the chief executive, subject to the Minister’s power of appointment to particular departments, under section 93.

(4)For section 95, the police commissioner is taken to be the chief executive of the Department of Police.

(5)The contract of employment of a chief executive in force immediately before the changeover day is taken to have been made under this Act.

(6)An appointment in existence immediately before the changeover day for a person to act as a chief executive continues in force as if the appointment had been made under this Act.

(7)To remove any doubt, it is declared that subsection (6) applies whether or not the person was acting under the appointment.

227General provision for existing senior executives other than chief executives

(1)This section applies to a person who, immediately before the changeover day, held appointment under the repealed Public Service Act as a senior executive other than a chief executive.

(2)The person is taken to have been appointed under this Act as a senior executive.

(3)If the person was seconded as a senior executive, other than a chief executive, the secondment continues as if it had been made under this Act.

228Existing tenured senior executives

(1)This section applies to a person if—

(a)immediately before the changeover day, the person held appointment under the repealed Public Service Act as a senior executive other than a chief executive; and

(b)the person’s employment as a senior executive was on tenure.

(2)The person may, but is not required to, enter into a contract of employment with the person’s chief executive relating to the appointment.

(3)If the person is transferred or redeployed, the person may, but is not required to, enter into a contract of employment with the person’s chief executive for the transferred or redeployed employment.

(4)Chapter 1, part 4 does not apply to the appointment on contract of the person if—

(a)the appointment on contract is to perform duties in the same department at a higher classification level; and

(b)the duties to be performed at the higher classification level are, in the opinion of the person’s chief executive, the same or substantially the same as those performed by the person immediately before the appointment; and

(c)the chief executive and the person agree to the appointment.

(5)Despite section 118(1), sections 135, 136 and 138 apply to the person.

(6)Despite section 218, the Judicial Review Act 1991 continues to apply to a decision about an excluded matter relating to the person.

(7)This section does not limit or otherwise affect section 227.

229Exclusion from tenure on termination of contract for particular public service officers

Section 123 does not apply to a person employed in a department as a public service officer on a contract for a fixed term that was first entered into before 1 December 1996.

230Existing contracts of employment

(1)This section applies if a person, other than a chief executive, was employed under the repealed Public Service Act under a contract of employment immediately before the changeover day.

(2)The contract is taken to have been made under this Act between the person and the person’s chief executive.

(3)If the person was a public service officer immediately before the changeover day, the employment of the person under this Act is taken to be on contract for a fixed term.

231Existing general employees

(1)A person who was employed under the repealed Public Service Act as a general employee immediately before the changeover day (an existing general employee) is taken to be a general employee employed under this Act.

(2)The person’s employment and conditions of employment are not affected by the repeal of the repealed Public Service Act.

(3)If there is doubt about whether a person is an existing general employee, a chief executive may, if the person asks, declare the person to be an existing general employee.

(4)On the making of the declaration, subsections (1) and (2) are taken to have always applied to the person.

232Existing temporary employees

(1)A person who was employed under the repealed Public Service Act as a temporary employee immediately before the changeover day (an existing temporary employee) is taken to be a temporary employee employed under this Act.

(2)The person’s employment and conditions of employment are not affected by the repeal of the repealed Public Service Act.

(3)If there is doubt about whether a person is an existing temporary employee, a chief executive may, if the person asks, declare the person to be an existing temporary employee.

(4)On the making of the declaration, subsections (1) and (2) are taken to have always applied to the person.

233Period for first status review of a temporary employee

(1)This section applies if a 3 year period in relation to a temporary employee as mentioned in section 149(1) ends before the first anniversary of the changeover day.

(2)The period for making the decision under section 149(2) for the employee is the period that ends on the first anniversary.

(3)However, if a directive is made under section 149(2) before the first anniversary and the directive provides for a longer period, the period is the longer period.

234Existing rulings

(1)A ruling in force under the repealed Public Service Act immediately before the changeover day (the continued ruling) remains in force as a ruling of the same type under this Act.

(2)The continued ruling—

(a)is to be read with the changes necessary to make it consistent with, and adapt its operation to, this Act; and

(b)may be amended or repealed by a ruling under this Act made by the person who can make that type of ruling under this Act about the matters provided for under the continued ruling.

(3)If the continued ruling was made by the former public service commissioner, it is taken to have been made by the commission chief executive.

235References to existing rulings

In an Act or document, a reference to a ruling under the repealed Public Service Act may, if the context permits, be taken as a reference to a ruling of the same type under this Act.

236Existing disciplinary action

If disciplinary action had been started, but not finished, under the repealed Public Service Act before the changeover day, the action may be finished under this Act.

237Application of disciplinary action provisions to prior acts and omissions

For the purpose of taking disciplinary action, chapter 6 applies to acts and omissions that happened before the changeover day as well as to acts and omissions that happen after the changeover day.

238Existing suspensions

If, immediately before the changeover day, a person was suspended from duty under the repealed Public Service Act, the suspension continues to have effect as a suspension under this Act.

239Application of div 5

This division applies if, immediately before the changeover day, an appeal under the repealed Public Service Act had not been decided.

240Conversion to appeal under this Act

The appeal is taken to be an appeal about the same matter made to the commission chief executive, under chapter 7, part 1.

241Provision for former protective appeals

If the appeal was made under section 106 of the repealed Public Service Act, it may be continued under chapter 7, part 1 despite there being no equivalent of that section under this Act.

242Appeal documents or information

As soon as practicable after the changeover day, the person who was the former public service commissioner must give the commission chief executive any documents or information given to that person for the appeal.

243Dissolutions

(1)On the changeover day—

(a)the following cease to exist—

(i)the office of the former public service commissioner;

(ii)the former public service office;

(iii)the former service delivery commission; and

(b)each SDPC commissioner goes out of office as an SDPC commissioner; and

(c)each SDPC commissioner contract ends.

(2)No amount, whether by way of compensation, reimbursement or otherwise is payable by the State for or in connection with the enactment or operation of subsection (1)(c), other than as expressly provided for under a SDPC commissioner contract.

(3)To remove any doubt, it is declared that subsections (1)(c) and (2) do not limit or otherwise affect an SDPC commissioner’s right to a benefit or entitlement that, under an SDPC commissioner contract, had accrued or was accruing immediately before the changeover day.

(4)On the changeover day, a benefit or entitlement mentioned in subsection (3) ceases to accrue and becomes payable as if—

(a)the SDPC commissioner contract had, according to its terms, been terminated on that day; and

(b)the termination is other than by the SDPC commissioner.

(5)In this section—

SDPC commissioner means a commissioner under the repealed Commission Act.

SDPC commissioner contract means a contract of employment under section 51 of the repealed Commission Act.

244References to former commissioner or commission

In a document other than an Act, a reference to the former public service commissioner or the former service delivery commission may, if the context permits, be taken as a reference to the commission under this Act.

245Former staff become commission staff

If, immediately before the changeover day, a person was—

(a)employed in the former public service office or was a staff member of the former service delivery commission under the repealed Commission Act; and

(b)a public service officer under the repealed Act;

the person becomes a staff member of the commission under this Act, subject to this Act.

246Specific provisions relating to criminal history of a person under the repealed Public Service Act

(1)The purpose of this provision is to make specific provision for matters that were dealt with under repealed part 9A.

(2)If, under repealed part 9A, the chief executive of a department had decided that it may be necessary to have regard to the criminal history of anyone engaged to perform particular duties to ensure the person so engaged is suitable to perform them, that decision continues to have effect as if it had been made under section 151.

(3)If, before the changeover day, the chief executive asked for a person’s written consent to obtain the person’s criminal history under repealed section 114C and the person had refused or not given the written consent, the chief executive’s request for the consent is taken to be a request made under section 152.

(4)If, before the changeover day, the chief executive asked the police commissioner to give a report about a person’s criminal history under repealed section 114D and the police commissioner had not given it to the chief executive, the chief executive’s request is taken to be a request under section 154 and, subject to sections 166 and 167, the police commissioner must give the report to the chief executive.

(5)Section 169 applies to a criminal history report even if it was obtained before the changeover day.

(6)If a person gained access to someone’s criminal history under under repealed part 9A—

(a)the person is taken to have gained access to the criminal history under chapter 5, part 6; and

(b)if the person does not comply with section 172(2) in relation to the criminal history or a document relevant to the criminal history, the person may be prosecuted for an offence against that subsection.

(7)A directive, that was issued under repealed section 114H and in force immediately before the changeover day, is taken to be a part 6 directive.

(8)This section does not limit another provision of this part.

(9)In this section—

repealed, in relation to a provision, means that provision as in force under the repealed Public Service Act before its repeal.

247Existing term appointees

Chapter 5, part 4, division 2 applies to a term appointee holding office before the changeover day as well as to a term appointee appointed to office after the changeover day.

248Existing delegations by chief executives

(1)A delegation by a chief executive in force under the repealed Public Service Act immediately before the changeover day continues in force despite the repeal of that Act.

(2)If the delegation was for a matter under the repealed Public Service Act, it continues in force as if the delegation had been made under this Act for that matter.

249References to repealed Acts

(1)A reference in another Act or a document to an Act repealed under part 1 may, if the context permits, be taken as a reference to this Act.

(2)A reference in another Act or a document to a particular provision of the repealed Public Service Act (the repealed provision) may, if the context permits, be taken as a reference to any provision of this Act all or part of which corresponds, or substantially corresponds, to the repealed provision.

Example—

A reference in another Act to section 21 of the repealed public service Act is taken to be a reference to section 24 (What is a government entity) of this Act.

(3)This section does not apply for the Freedom of Information Act 1992, section 39.

(4)This section is subject to the other provisions of this part.

250Corresponding approvals, decisions and notices under the repealed Public Service Act

(1)This section applies if—

(a)a provision of the repealed Public Service Act (the old provision) provides for an approval, decision, declaration or a gazette notice or other notice to be made or given for a matter; and

(b)an approval, decision, declaration or notice of that type is in force under the repealed Public Service Act immediately before the changeover day; and

(c)a provision of this Act corresponds or substantially corresponds to the old provision.

(2)On the changeover day, the approval, decision, declaration or notice is taken to be an approval, decision, declaration or notice made or given for the matter under this Act.

Example—

A declaration under section 12 of the repealed Public Service Act in force immediately before the changeover day is taken to be a declaration under section 14 (Declaration of departments) of this Act.