Legislative Assembly (Members' Staff) Act 1989

Office-holder is defined in the Dictionary to mean a Minister, the Speaker of the Assembly, or a person in respect of whom a determination by the Chief Minister under section 4 or 16 is in force. This means that not all members are automatically office-holders; some may become so by virtue of a Chief Minister’s determination that, having regard to their parliamentary duties, they ought to be empowered to employ staff under Part 2 (section 4) or to engage consultants or contractors under Division 5.1 (section 16). The determination is a disallowable instrument. This concept is crucial because office-holders have broader powers under the Act than ordinary members - for example, they can employ staff under Part 2 and also engage consultants under Division 5.1, whereas ordinary members operate under Part 3 and Division 5.2 respectively.

Family member is defined exhaustively in the Dictionary and includes: a domestic partner of the person; a parent or step-parent of the person; a parent or step-parent of the person’s domestic partner; a child or step-child of the person; a child or step-child of the person’s domestic partner; a brother, sister, half-brother or half-sister of the person; a grandparent of the person; and an uncle, aunt or cousin of the person. The breadth of this definition means that many extended family relationships are caught. The prohibition applies not only to direct employment of an individual family member but also, in the case of a corporate consultant or contractor, to a corporation that has a director or other officer who is a family member of the office-holder or member.

Part 2 employee and part 3 employee are defined terms referring to persons employed under Part 2 (by an office-holder) and Part 3 (by a member) respectively. These classifications affect which termination provisions apply and how fallback terms are determined under the PSM Act.

Variable term of employment is defined in the Dictionary as a term of employment relating to any matter except superannuation (covered by sections 7 and 12) or termination of employment (covered by sections 8 and 13). The Chief Minister may determine that variable terms of employment are varied for part 2 or part 3 employees (sections 6(3), 11(3)), and such determinations are disallowable instruments.

PSM Act means the Public Sector Management Act 1994 and the management standards made under that Act. This Act is incorporated by reference in sections 6 and 11, which provide that if a matter relating to employment is not covered by the Act or the written employment agreement, the PSM Act applies as if the employee were employed under section 110 of the PSM Act (fixed term temporary employment). This creates a statutory default employment framework that fills gaps in the individual agreement.

Disallowable instrument is a term defined in the Legislation Act 2001. Throughout this Act, approvals, determinations, and directions by the Chief Minister are designated as disallowable instruments (sections 4(2), 5(4), 6(4), 8(7), 10(4), 11(4), 13(6), 16(2), 17(5), 18(8), 20(5), 21(7)). This means they are subject to parliamentary scrutiny and potential disallowance, providing a check on executive power.

Consultant or contractor is not separately defined but the Act distinguishes their engagement from employment. Agreements under Part 5 are deemed to be contracts for services (sections 17(3), 20(3)), and the services must be ‘necessarily incidental to the performance of his or her ministerial or parliamentary duties’ (sections 17(1), 20(1)). Engagements are subject to a three-year maximum term unless a shorter period is specified (sections 18(6), 21(5)).

The Act directly affects several categories of persons and entities within the ACT political and administrative environment.

Office-holders - defined as Ministers, the Speaker, and any member in respect of whom the Chief Minister has made a determination under section 4 or 16 - are the primary actors under Part 2 and Division 5.1. They are empowered to employ staff and engage consultants and contractors on behalf of the Territory, but only in accordance with arrangements approved by the Chief Minister and subject to conditions determined by the Chief Minister. Their ability to hire is constrained by the absolute prohibition on employing or engaging family members. When an office-holder dies or ceases to hold office, the employment or engagement of their staff and consultants automatically terminates, though the Chief Minister may issue a deeming direction to continue the arrangement.

Members of the Legislative Assembly who are not office-holders are affected by Part 3 and Division 5.2. They may employ staff and engage consultants and contractors on behalf of the Territory, again subject to Chief Minister arrangements and conditions, and with the same family member prohibition. Their staff’s employment terminates automatically if the member dies or ceases to be a member of the Assembly, with a deeming power available to the Chief Minister. A member is deemed not to have ceased to be a member while they continue to be entitled to a member’s allowance (sections 8(3), 13(2), 18(3), 21(2)), which provides a transitional period.

Staff employed under Part 2 or Part 3 - referred to as part 2 employees and part 3 employees - are individuals who enter into a written agreement with an office-holder or member on behalf of the Territory. Their terms of employment are governed by the agreement, the Act, and, where matters are not covered, the PSM Act as if they were fixed term temporary employees under section 110 of that Act. They are subject to automatic termination upon the death or cessation of office of their employing member or office-holder, though they may benefit from a Chief Minister deeming direction. They have the right to resign at any time by written notice (sections 8(5), 13(4)).

Consultants and contractors engaged under Part 5 are individuals or corporations who enter into a written agreement with an office-holder or member (on behalf of the Territory) for the provision of services necessarily incidental to parliamentary or ministerial duties. They are engaged under a contract for services, not a contract of employment. Their engagement is limited to a maximum of three years unless earlier terminated. The same family member prohibition applies, including a prohibition on engaging a corporation that has a family member as a director or officer. They also face automatic termination upon the death or cessation of office of the engaging member or office-holder, with a deeming power available to the Chief Minister.

The Chief Minister has significant powers under the Act: making determinations under sections 4 and 16 to empower members to employ staff or engage consultants; approving arrangements and determining conditions under sections 5, 10, 17, and 20; determining variations to variable terms of employment (sections 6(3), 11(3)); and issuing deeming directions to continue employment or engagement after automatic termination (sections 8(6), 13(5), 18(7), 21(6)). All of these instruments are disallowable, subject to Legislative Assembly scrutiny.

Family members of office-holders and members are indirectly affected because they are prohibited from being employed or engaged under the Act, including through corporate vehicles. The broad definition means that many relatives - from domestic partners to cousins and aunts - are excluded.

The Legislative Assembly itself is affected through the disallowable instrument mechanism, which gives the chamber oversight of the Chief Minister’s determinations, approvals, conditions, and directions.

Duty not to employ or engage family members. Each office-holder (section 5(2)) and each member (section 10(2)) must not employ a person who is a family member of the office-holder or member. For consultants and contractors, the prohibition is extended to a corporation that has a director or other officer who is a family member of the office-holder or member (sections 17(2), 20(2)). This is an absolute prohibition; no exception or waiver is provided in the Act.

Power to employ staff. An office-holder (section 5(1)) or a member (section 10(1)) may, on behalf of the Territory, employ a person under an agreement in writing. This power is not exercisable except in accordance with arrangements approved by the Chief Minister, and is subject to conditions determined by the Chief Minister (sections 5(3), 10(3)). The approvals and determinations are disallowable instruments.

Power to engage consultants and contractors. An office-holder (section 17(1)) or a member (section 20(1)) may, on behalf of the Territory, engage a consultant or contractor under an agreement in writing for services necessarily incidental to ministerial or parliamentary duties. The agreement is deemed to be a contract for services (sections 17(3), 20(3)). Again, the power is subject to Chief Minister arrangements and conditions, which are disallowable instruments.

Rights regarding termination of employment. An office-holder may terminate a part 2 employee’s employment at any time by written notice (section 8(4)). A part 2 employee may resign at any time by written notice (section 8(5)). The same rights apply to part 3 employees and members (section 13(3) and (4)). For consultants and contractors, the engaging office-holder or member may terminate at any time by written notice, and the consultant or contractor may resign by written notice (sections 18(4)-(5), 21(3)-(4)). The engagement also automatically terminates after three years (or a shorter period specified in the agreement) if not earlier terminated (sections 18(6), 21(5)).

Automatic termination upon death or cessation of office. Employment under Part 2 terminates if the office-holder dies (section 8(1)). It also terminates if the office-holder ceases to hold office, or if a member in respect of whom a section 4 determination is in force ceases to be a member or the determination is revoked (section 8(2)). For Part 3 employees, employment terminates if the member dies or ceases to be a member (section 13(1)). The same automatic termination rules apply to consultant and contractor engagements under Division 5.1 (section 18(1)-(2)) and Division 5.2 (section 21(1)). However, a member is deemed not to have ceased to be a member while they remain entitled to a member’s allowance (sections 8(3), 13(2), 18(3), 21(2)), providing a buffer period.

Chief Minister’s deeming power. Where employment or engagement is automatically terminated by death or cessation of office, the Chief Minister may direct that the employment or engagement is deemed not to have been terminated and to have continued, or to continue, until a specified date (sections 8(6), 13(5), 18(7), 21(6)). For consultant engagements, the specified date must not be later than the date on which the engagement would have expired automatically (sections 18(7)(b), 21(6)(b)). Such a direction is a disallowable instrument. If a deeming direction is given, the Chief Minister may later terminate the engagement by written notice, and the consultant or contractor may also terminate by written notice to the Chief Minister (sections 18(9), 21(8)).

Superannuation rights. For part 2 and part 3 employees who are not already eligible employees under the Commonwealth Superannuation Act 1976 and are not pensioners, the employment agreement may contain provisions determined by the office-holder or member in relation to superannuation benefits or benefits in the nature of superannuation (sections 7(2), 12(2)). Such provisions must be in accordance with arrangements approved by the Chief Minister (sections 7(3), 12(3)).

Gap-filling by the PSM Act. If a matter relating to the employment of a part 2 or part 3 employee is not covered by the Act or by the employment agreement, the PSM Act applies as if the employee were employed under section 110 of that Act (fixed term temporary employment) (sections 6(2), 11(2)). This ensures that residual matters - such as leave, grievance procedures, or work health and safety - are covered by the public sector framework.

Right to authorise another person. An office-holder or member may, in writing, authorise another person to exercise a power conferred on them by Part 2, 3, or 5 (section 22). This allows delegation of employment and engagement powers to staff such as a chief of staff or a parliamentary officer, though the authorisation must be in writing.

The Act itself does not create specific criminal offences or civil penalties. The republication note states that at the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, section 133). However, the Act does not stipulate what conduct constitutes an offence. There is no provision, for example, that penalises a member who employs a family member in breach of sections 5(2) or 10(2). The prohibition is framed in mandatory language (‘must not’) but no penalty is attached within the Act. Similarly, failing to comply with Chief Minister arrangements or conditions is not expressly stated as an offence.

The absence of penalty provisions in the Act does not mean the prohibitions are unenforceable. Several mechanisms may apply. Firstly, the Chief Minister’s approvals and conditions are disallowable instruments, and if they are not complied with, the Chief Minister could potentially revoke or vary the approval, thereby removing the power to employ or engage. Secondly, since employment is on behalf of the Territory, the Territory may have contractual remedies for breach of the employment agreement if it is in writing and incorporates the Act’s requirements. Thirdly, the family member prohibition, if breached, could lead to the employment being void or voidable, or could give rise to disciplinary action under the PSM Act for the staff member (if they are found to have knowingly participated in the breach). However, the Act does not specify consequences.

The disallowable instrument mechanism provides a form of parliamentary enforcement. If the Chief Minister makes a determination, approval, or direction that is contrary to the Act or to proper process, the Legislative Assembly may disallow it. This is a political rather than a judicial remedy.

It is also possible that regulations made under section 23 could prescribe penalties for contraventions of the Act or of regulations. The Act confers a regulation-making power on the Executive, but no regulations are mentioned in the republication text. If regulations exist, they might create offences with penalties expressed in penalty units. The penalty unit value note in the republication is a general note for any offence against this law, not a specific penalty.

For consultants and contractors, the Act provides that an agreement under Part 5 is deemed to be a contract for services. Breach of the family member prohibition in engaging a consultant or contractor could render the contract void for illegality, though the Act does not expressly state this. The Territory would likely have grounds to terminate the engagement and seek recovery of payments.

Enforcement in practice is likely to be driven by the Chief Minister’s oversight role and by the disallowable instrument process, rather than by court-imposed penalties. The Act is designed as an administrative framework for parliamentary staffing rather than a penal statute.

Public Sector Management Act 1994 (PSM Act). The PSM Act is the most significant interacting law. Sections 6(2) and 11(2) provide that if a matter relating to the employment of a part 2 or part 3 employee is not covered by the Act or by the written employment agreement, the PSM Act applies as if the employee were employed under section 110 of the PSM Act (fixed term temporary employment). This means that the PSM Act fills gaps in areas such as code of conduct, performance management, leave entitlements, and dispute resolution, to the extent those matters are not dealt with in the individual agreement. The PSM Act and the management standards made under it are incorporated by reference. The Dictionary defines ‘PSM Act’ to include those management standards. The Act also references ‘classification’, ‘commissioner’, ‘head of service’, and ‘officer’ as terms defined in the PSM Act dictionary, showing integration with the broader public service framework.

Superannuation Act 1976 (Cwlth). The Commonwealth Superannuation Act 1976 is referenced in sections 7 and 12. The superannuation provisions in the Act apply to a ‘relevant person’, defined as a person other than one who immediately before being employed under Part 2 or Part 3 was an eligible employee within the meaning of the Superannuation Act, or a pensioner (as defined in the Dictionary). The Dictionary defines ‘pensioner’ by reference to invalidity pensions under the Superannuation Act 1976 (Cwlth) and the Superannuation Act 1922 (Cwlth). This means that existing Commonwealth superannuation scheme members are excluded from the Act’s superannuation provisions, and their superannuation arrangements are presumably governed by the Commonwealth Act and their existing scheme rules.

Legislation Act 2001. The Legislation Act 2001 is relevant in several respects. Notes in the Act (sections 2, 3) refer to the Legislation Act for definitions, the legal status of notes, and the effect of disallowable instruments. The Dictionary includes signpost definitions to the Legislation Act for terms such as ‘Chief Minister’, ‘disallowable instrument’, ‘domestic partner’, ‘individual’, ‘Minister’, and ‘Speaker’. The republication note explains that the value of a penalty unit is set under section 133 of the Legislation Act. The disallowable instrument provisions in the Legislation Act govern the tabling and disallowance procedure for determinations, approvals, and directions made under this Act. Also, section 23 of this Act gives the Executive a regulation-making power which is likely to be exercised in accordance with the Legislation Act’s requirements for subordinate legislation.

Public Sector Management Act 1994 (as amended by consequential amendments). Earlier versions of the Act contained Part 4 (Public servants employed by members) and sections 14 and 15 dealing with rights of officers and employees under the PSM Act. These were omitted by the Public Sector Management Amendment Act 2016 (A2016-52), which removed the interaction with the PSM Act for public servants temporarily employed by members. The history shows that the Act has been amended over time to reduce direct cross-references to the PSM Act as the ACT public service structure changed, but the core gap-filling provisions remain.

Other ACT legislation. The Act does not explicitly reference work health and safety, anti-discrimination, or industrial relations legislation, but those laws would apply to the employment relationship because the employer is the Territory. The gap-filling provision using the PSM Act may bring in those standards indirectly. The family member prohibition operates independently of anti-discrimination law, which would otherwise prohibit discrimination based on family status - the Act creates a specific carve-out or override for nepotism prevention.

Commonwealth law. The superannuation reference is to Commonwealth legislation. Otherwise, the Act is a Territory law with no direct interaction with Commonwealth laws except through the general application of Commonwealth workplace relations laws if applicable.

The Legislative Assembly (Members’ Staff) Act 1989 (A1989-19) has been amended by multiple Acts since its commencement on 14 November 1989. The endnotes in the republication provide the legislation history and amendment history. The key amendments are:

• Public Sector Management (Consequential and Transitional Provisions) Act 1994 (A1994-38) commenced 1 July 1994. It inserted Part 3A (later Part 4) dealing with public servants employed by members, and made amendments to sections 6 and 11 (terms of employment) to incorporate references to the PSM Act.

• Legislative Assembly (Members’ Staff) (Amendment) Act 1997 (A1997-6) commenced 22 April 1997. It amended sections 5 and 10 (employment powers) and inserted section 13D (disallowable instruments, later omitted).

• Legislative Assembly (Members’ Staff) (Amendment) Act 1999 (A1999-15) commenced 14 April 1999. It amended the title, section 9, and inserted Part 3B (which became Part 5) dealing with consultants and contractors.

• Public Sector Legislation Amendment Act 1999 (A1999-70) commenced 5 December 1999. It inserted section 13BA (application of Merit Protection Act, later omitted).

• Public Sector Legislation Amendment Act 2000 (A2000-77) commenced 31 December 2000. It amended section 13BA.

• Legislation (Consequential Amendments) Act 2001 (A2001-44) commenced in stages in 2001. It made numerous amendments throughout the Act to update references and definitions, and omitted section 13D.

• Legislative Assembly (Members’ Staff) Amendment Act 2001 (A2001-57) commenced 13 September 2001. This was a significant amendment that substituted sections 6 and 11 (terms of employment), inserted and omitted sections dealing with rights of officers, and added definitions to the Dictionary. It also inserted the definitions of ‘classification’, ‘commissioner’, ‘officer’, ‘part 2 employee’, ‘part 3 employee’, ‘PSM Act’, and ‘variable term of employment’.

• Statute Law Amendment Act 2007 (No 2) (A2007-16) commenced 11 July 2007. It substituted section 1 (name of Act), relocated definitions from section 3 to the Dictionary, inserted the Dictionary, and made formal amendments.

• Legislative Assembly (Members’ Staff) Amendment Act 2008 (A2008-38) commenced 30 October and 5 November 2008. It amended sections 5, 10, 17, and 20 to insert the family member prohibition, and inserted the definition of ‘family member’ in the Dictionary.

• Administrative (One ACT Public Service Miscellaneous Amendments) Act 2011 (A2011-22) commenced 1 July 2011. It amended the Dictionary to insert the definition of ‘head of service’ and omitted the definition of ‘relevant chief executive’.

• Statute Law Amendment Act 2011 (No 2) (A2011-28) commenced 21 September 2011. It made amendments to sections 4, 5, 6, 8, 10, 11, 13, 16, 17, 18, 20, and 21, and to the Dictionary.

• Public Sector Management Amendment Act 2016 (A2016-52) commenced 1 September 2016. It omitted Part 4 (including sections 14 and 15) and amended sections 6 and 11.

• Statute Law Amendment Act 2025 (A2025-29) commenced 26 December 2025 (the republished date). It made amendments to sections 4, 5, 6, 8, 10, 11, 13, 16, 17, 18, 20, 21, and 23, and to the Dictionary. This is the most recent amending Act reflected in the republished version.

The amendment history also shows the omission of several provisions over time, including Part 4 (public servants employed by members) and various transitional provisions. The Dictionary has been updated multiple times, most recently in 2016 and 2025.

The Act does not refer to any litigation history. No cases are named or cited in the text of the Act or in its endnotes. The republication includes no indication that the Act has been the subject of judicial interpretation. This is consistent with the Act’s nature as a relatively narrow administrative framework governing parliamentary staffing, where disputes are likely to be resolved internally through the Chief Minister’s powers or through the disallowable instrument process rather than through court proceedings.

Nevertheless, several provisions in the Act could potentially give rise to legal disputes. The definition of ‘family member’ is broad and includes categories such as ‘cousin’ and ‘uncle’, which may require factual determination in borderline cases. The phrase ‘necessarily incidental to the performance of his or her ministerial or parliamentary duties’ in sections 17(1) and 20(1) could be contested if an engagement is challenged as falling outside this scope. The automatic termination provisions upon death or cessation of office could generate disputes about the precise time of cessation or about the effect of the deeming provision on continuity of employment for entitlements such as annual leave or long service leave.

The disallowable instrument mechanism may also be the subject of a potential legal challenge if a determination, approval, or direction is alleged to be beyond power or procedurally invalid under the Legislation Act 2001. However, such challenges would typically be brought in the ACT Supreme Court under administrative law principles, and no reported decisions are recorded in the Act.

The gap-filling provision that applies the PSM Act as if the employee were employed under section 110 of that Act may create questions about the precise terms that are imported, particularly if the PSM Act has been amended since the employee’s agreement was signed. The Act does not specify a version of the PSM Act that applies, so the current version presumably applies at any given time.

The family member prohibition was introduced in 2008 and has not been judicially tested. If an office-holder or member were to argue that the prohibition is too broad or that a particular relationship does not fall within the definition, the Dictionary provides the exhaustive list. The prohibition also applies to corporations with family member directors or officers, which could raise questions about the level of control or ownership required to attribute a family relationship to the corporation - the Act does not require the director or officer to hold any particular percentage of shares or control, merely that they be a director or officer.

Overall, the Act appears to have operated largely without reported litigation, likely due to the political context and the availability of internal remedies through the Chief Minister’s powers and through parliamentary scrutiny of disallowable instruments.

Automatic termination on death or cessation of office is immediate and unconditional. Under sections 8(1)-(2), 13(1), 18(1)-(2), and 21(1), employment or engagement terminates automatically when the employing member or office-holder dies or ceases to hold office or ceases to be a member. There is no notice period, no entitlement to payment in lieu of notice, and no requirement for the employer to take any action. The staff member or consultant may only continue if the Chief Minister issues a deeming direction. This direction is discretionary and is a disallowable instrument. If the Chief Minister declines to issue a direction, the relationship ends on the spot. Practitioners should ensure that employment agreements for political staff address this risk, though the Act overrides any contrary contractual provision.

The ‘deemed not to have ceased’ allowance deeming provision has a narrow effect. Sections 8(3), 13(2), 18(3), and 21(2) provide that a member is deemed not to have ceased to be a member while they continue to be entitled to an allowance payable to them as a member. This deeming applies only for the purpose of the automatic termination provisions - it does not confer any other rights of membership, such as voting or speaking in the Assembly. It simply prevents the termination trigger from operating until the allowance entitlement ends. The allowance is likely the basic entitlement under the Legislative Assembly (Members’ Staff) Act or related Acts, and may continue for a short period after the member stops being a member (for example, during a transition after a dissolution). This is a limited window.

The family member prohibition is extremely broad and includes step-relatives, in-laws, and cousins. The Dictionary defines ‘family member’ to include domestic partners, parents, step-parents, parents of the domestic partner, children, step-children, children of the domestic partner, siblings, half-siblings, grandparents, uncles, aunts, and cousins. There is no exception for voluntary disclosure, waiver, or for situations where the family member is the most qualified candidate. The prohibition also extends to corporations that have a director or officer who is a family member (sections 17(2)(b), 20(2)(b)). This means that a member could not engage a company where their cousin is a director, even if the cousin is only a non-executive director with no role in the engagement. The prohibition applies regardless of whether the family member is aware of the relationship.

Consultant and contractor engagements have a hard three-year cap unless terminated earlier. Sections 18(6) and 21(5) provide that if an engagement is not terminated earlier by death, cessation of office, or notice, it terminates at the expiration of three years (or such shorter period as specified in the agreement). There is no provision for renewal or extension beyond three years, except through the Chief Minister’s deeming power which can extend only to the original expiry date (sections 18(7)(b), 21(6)(b)). This means that an office-holder or member cannot simply keep re-engaging the same consultant indefinitely under Part 5. A new engagement after a gap may be possible, but the Act does not address that scenario. Practitioners should be aware that the three-year cap runs from the date of the agreement, not from the start of services if there is a gap.

The gap-filling PSM Act provision may import obligations that the parties did not intend. Sections 6(2) and 11(2) apply the PSM Act as if the employee were employed under section 110 (fixed term temporary employment) for any matter not covered by the Act or the agreement. This means that if the employment agreement is silent on, for example, code of conduct obligations, confidential reporting, or grievance procedures, the PSM Act provisions may apply. These may include obligations that are more onerous than those in a standard employment contract. The definition of ‘PSM Act’ includes management standards made under that Act, which may be updated without direct notice to the employee.

Disallowable instruments are subject to political reversal. Many important decisions under the Act - determinations, approvals, conditions, and deeming directions - are disallowable instruments. If the Legislative Assembly disallows an instrument, it ceases to have effect. This could retroactively affect the validity of employment or engagements entered into in reliance on the instrument. For example, if the Chief Minister approves arrangements for employing staff and that approval is later disallowed, the legal basis for employing staff under those arrangements may be undermined. Practitioners should monitor the disallowance status of any relevant instruments.

Authorisation under section 22 must be in writing. While an office-holder or member may authorise another person to exercise their powers under Part 2, 3, or 5, the authorisation must be in writing. An oral authorisation is ineffective. The authorised person can then exercise the power as if they were the office-holder or member, but any exercise that goes beyond the written authorisation may be ultra vires.

No compensation on termination. The Act does not provide for any compensation or severance upon automatic termination, upon termination by notice, or upon expiry of a consultant engagement. The employee or consultant’s rights are limited to whatever the written agreement provides, subject to the PSM Act gap-fill. However, the PSM Act’s section 110 fixed term temporary employment provisions may provide for notice or payment in lieu in certain circumstances, but the Act does not guarantee that.

Compliance with the Legislative Assembly (Members’ Staff) Act 1989 requires attention to procedural steps and ongoing obligations.

Step 1: Confirm eligibility to employ or engage. An office-holder (Minister, Speaker, or a member in respect of whom a Chief Minister determination under section 4 or 16 is in force) may employ staff under Part 2 or engage consultants under Division 5.1. An ordinary member may employ staff under Part 3 or engage consultants under Division 5.2. If the member is not an office-holder and no determination exists, they must rely on Parts 3 and 5.2. The Chief Minister’s determination under section 4 (for employment) or section 16 (for consultants) must be active. Check the ACT legislation register to confirm the determination is in force and has not been disallowed.

Step 2: Obtain Chief Minister approval for arrangements and comply with conditions. Before exercising the power to employ or engage, the office-holder or member must have arrangements approved by the Chief Minister (sections 5(3), 10(3), 17(4), 20(4)). These arrangements may specify limits on numbers, budgets, or classifications. The exercise of the power is also subject to conditions determined by the Chief Minister. These approvals and conditions are disallowable instruments - obtain copies and ensure compliance. If conditions change, update internal practices accordingly.

Step 3: Check family member prohibition. Before employing any individual or engaging any consultant or contractor (individual or corporation), verify that the person or corporation is not a family member as defined in the Dictionary. For individuals, check against the broad list including domestic partner, parents, step-parents, parents of domestic partner, children, step-children, children of domestic partner, siblings, half-siblings, grandparents, uncles, aunts, and cousins. For corporations, check that no director or officer of the corporation is a family member. Obtain a written declaration from the proposed staff member or consultant/contractor confirming no family relationship exists. Maintain records of these checks.

Step 4: Execute a written agreement. The Act requires that employment be under an agreement in writing (sections 5(1), 10(1)) and that consultant/contractor engagements be under an agreement in writing (sections 17(1), 20(1)). The agreement should clearly state that the employment or engagement is on behalf of the Territory. For consultants, the agreement must state that it is a contract for services (the Act deems this, but express is prudent). The agreement should specify any terms not covered by the Act, including salary, duties, and duration. For employees, the agreement should indicate the term of employment, as the PSM Act gap-fill references section 110 (fixed term temporary employment) - this suggests employment is intended to be for a fixed term.

Step 5: Address matters not covered by the Act or agreement. For employees, if a matter is not covered by the Act or the agreement, the PSM Act applies as if the employee were employed under section 110 of that Act (sections 6(2), 11(2)). To avoid uncertainty, ensure the employment agreement covers key terms such as hours of work, leave entitlements, code of conduct, and termination notice. If the agreement is silent, the PSM Act provisions may fill the gap - these may be found in the Public Sector Management Act 1994 and its management standards. Provide the employee with a copy of the relevant PSM Act provisions or a summary.

Step 6: Superannuation arrangements. For employees who are not already eligible employees under the Commonwealth Superannuation Act 1976 and are not pensioners, the employment agreement may include superannuation provisions determined by the office-holder or member (sections 7, 12). Such determinations must be in accordance with arrangements approved by the Chief Minister. Ensure compliance with those arrangements. For employees who are eligible employees or pensioners, superannuation is likely governed by the Commonwealth Act and no additional terms are needed.

Step 7: Monitor termination triggers. Be aware that employment or engagement will automatically terminate if the employing member or office-holder dies or ceases to hold office or ceases to be a member (sections 8, 13, 18, 21). The deeming provision in the allowance entitlement (sections 8(3), 13(2), 18(3), 21(2)) provides a short transition. If the Chief Minister issues a deeming direction, the employment or engagement continues as specified. If not, the relationship ends with no further obligation. Have a contingency plan for staff continuity in the event of a change in government or member resignation.

Step 8: Maintain records of all disallowable instruments. The Chief Minister’s determinations, approvals, conditions, and deeming directions are disallowable instruments. Keep copies and monitor the ACT legislation register for any disallowance motions. If an instrument is disallowed, its effect may be retroactively removed, potentially affecting the legal basis of employment or engagements.

Step 9: For consultant and contractor engagements, adhere to the three-year maximum. Ensure the agreement specifies the term, which must not exceed three years (sections 18(6), 21(5)). The engagement will expire at the end of that term unless earlier terminated. There is no provision for automatic renewal. If a new engagement is contemplated, consider whether a gap is needed and whether the services still satisfy the ‘necessarily incidental’ test.

Step 10: Authorise delegates in writing if needed. If the office-holder or member wishes to delegate their employment or engagement powers to another person (such as a chief of staff), they must provide a written authorisation under section 22. The authorisation should specify the powers being delegated and any limits. The authorised person can then exercise those powers on behalf of the office-holder or member.

Step 11: Monitor regulation-making. The Executive may make regulations under section 23. Any regulations may impose additional obligations or procedures. Check the ACT legislation register periodically for any regulations under this Act.