An Act to provide for the establishment of a Merit Protection and Review Agency and to define its functions and powers, and for related purposes
Part I—Preliminary
1 Short title [see Note 1]
This Act may be cited as the Merit Protection (Australian Government Employees) Act 1984.
2 Commencement [see Note 1]
(1) Sections 1, 2 and 3 shall come into operation on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act shall come into operation on such day as is, or on such respective days as are, fixed by Proclamation.
3 Interpretation
(1) In this Act, unless the contrary intention appears:
Agency means the Merit Protection and Review Agency.
authorized person means:
(a) a person appointed by the Agency to be an authorized person for the purposes of this Act; or
(b) a person included in a class of persons appointed by the Agency to be authorized persons for the purposes of this Act.
Commonwealth authority means:
(a) a body corporate incorporated, whether before or after the commencement of this section, for a public purpose by an Act, by regulations made under an Act or by or under a law of a Territory, being a body employing staff otherwise than under the Public Service Act 1922;
(b) an authority or body, not being a body corporate, established, whether before or after the commencement of this section, for a public purpose by, or in accordance with the provisions of, an Act, regulations made under an Act or law of a Territory, being an authority or body employing staff otherwise than under the Public Service Act 1922;
(c) a company or other body corporate incorporated, whether before or after the commencement of this section, under a law of the Commonwealth, of a State or of a Territory, being a company or other body corporate in which the Commonwealth has a controlling interest; or
(d) an authority or body established, whether before or after the commencement of this section and whether by, or in accordance with the provisions of, an Act, regulations made under an Act or a law of a Territory or otherwise, and whether a body corporate or not, being an authority or body that is financed in whole or in substantial part, either directly or indirectly, by money provided by the Commonwealth and employs staff otherwise than under the Public Service Act 1922;
but does not include the Australian Federal Police;
but does not include:
(a) an enactment authority as defined by section 3 of the A.C.T. Self‑Government (Consequential Provisions) Act 1988, incorporated or established for a public purpose; or
(b) a body corporate incorporated, or an authority or body (not being a body corporate), incorporated or established for a public purpose by or in accordance with a law of the Northern Territory, being a body or authority employing staff otherwise than under the Public Service Act 1922.
Commonwealth employee means a person who is:
(a) an officer or employee within the meaning of the Public Service Act 1922; or
(b) employed by a Commonwealth authority.
Department has the same meaning as in the Public Service Act 1922.
enactment means:
(a) an Act; or
(b) a law that is an enactment within the meaning of the Australian Capital Territory (Self‑Government) Act 1988; or
(c) an Ordinance made under section 12 of the Seat of Government (Administration) Act 1910; or
(d) an instrument (including an industrial award, a determination, rules, regulations or by‑laws) made under a law that is an enactment by virtue of paragraph (a), (b) or (c).
industrial award has the same meaning as in the Public Service Act 1922.
Joint Selection Committee means a Joint Selection Committee referred to in section 50DA or 50DB of the Public Service Act 1922 or a similar committee referred to in any other enactment.
member means a member of the Agency and includes the Merit Protection Commissioner.
officer has the same meaning as in the Public Service Act 1922.
relevant Secretary has the same meaning as in the Public Service Act 1922.
Secretary has the same meaning as in the Public Service Act 1922.
the Service has the same meaning as in the Public Service Act 1922.
(2) A reference in this Act to an action taken or a decision made in relation to a Commonwealth employee in relation to his or her employment as a Commonwealth employee shall be read as including a reference to an action taken or a decision made in relation to the employee in relation to a matter that is incidental or ancillary to that employment.
4 Object
(1) The object for which the Agency is established is to ensure that actions taken and decisions made in relation to a Commonwealth employee in relation to his or her employment as a Commonwealth employee are fair and equitable and are taken or made in accordance with sound personnel management practices and with due regard being had to:
(a) the efficiency of the relevant authority; and
(b) the need to ensure good relations between the relevant authority and its employees.
(2) In subsection (1), relevant authority, in relation to a Commonwealth employee, means:
(a) in a case where the employee is an officer or employee within the meaning of the Public Service Act 1922—the Service; and
(b) in a case where the employee is employed by a Commonwealth authority—the Commonwealth authority.
Part II—Establishment, functions and powers of the Agency
Division 1—Establishment and functions
5 Merit Protection and Review Agency
There is hereby established a Merit Protection and Review Agency.
6 Functions of Agency
(1) The functions of the Agency are:
(a) to arrange for the establishment of, and to ensure the proper and efficient operation of, Review Committees in accordance with Division 2;
(aa) to arrange for the establishment of committees under section 35A to perform functions pursuant to requests referred to in that section;
(b) to review decisions in accordance with Division 3;
(c) to investigate actions in accordance with Division 4;
(d) to conduct inquiries in accordance with Division 5;
(e) to provide advice in relation to grievances and appeals in accordance with Division 6;
(ea) to perform functions under section 57A pursuant to requests referred to in that section;
(f) to review promotions in accordance with section 50DAA of the Public Service Act 1922;
(g) to provide to Secretaries of Departments, and chief executive officers of Commonwealth authorities, services in connection with the establishment, constitution and operation of Joint Selection Committees; and
(h) with the consent of the Minister, to enter into an arrangement with the Australian Capital Territory or an authority of the Territory under which the Agency will perform, for the Territory or the authority, as the case may be, functions conferred by an enactment and similar, or substantially similar, to functions performed by the Agency under this Act.
(1A) The Agency may require a Department or Commonwealth authority to make a payment for the provision of services referred to in paragraph (1)(g).
(2) An arrangement referred to in paragraph (1)(h) may include provisions for payment by the other party to the arrangement for the performance of functions by the Agency in accordance with the arrangement.
Division 2—Review Committees
Subdivision A—Preliminary
7 Interpretation
In this Division, Review Committee means:
(a) a Promotion Appeal Committee established under Subdivision B; or
(b) a Disciplinary Appeal Committee established under Subdivision C; or
(c) a Redeployment and Retirement Appeal Committee established under Subdivision D; or
(d) a Re‑appointment Review Committee established under Subdivision E; or
(e) a Re‑integration Assessment Committee established under Subdivision F; or
(f) a committee established under Subdivision FA.
8 Agency to ensure efficiency of Joint Selection Committees and Review Committees
(1) The Agency shall take reasonable steps to ensure that Joint Selection Committees and Review Committees carry out their functions properly and efficiently.
(2) Without limiting the generality of subsection (1), the Agency shall:
(a) provide staff to assist Review Committees to perform their functions; and
(b) issue guidelines, not inconsistent with this Act or the regulations, in relation to procedure to which Joint Selection Committees and Review Committees may have regard in performing their functions.
Subdivision B—Promotion Appeal Committees
9 Promotion Appeal Committees
The Agency shall, from time to time, arrange for the establishment, in accordance with section 10, of such Promotion Appeal Committees as appear to it to be required for the purposes of determining:
(a) appeals made under section 50B or 50H of the Public Service Act 1922 against the promotion of an officer; and
(b) appeals made under regulations made for the purposes of section 51A of that Act against the selection of an officer to perform temporarily the duties of an office of a classification higher than the officer’s classification.
10 Constitution of Promotion Appeal Committees
(1) A Promotion Appeal Committee shall be constituted by:
(a) a Convenor nominated by the Agency;
(b) a person nominated by the Secretary of the Department in which the promotion or selection that is the subject of the appeal was made; and
(c) a person nominated by the organisation that is, as provided by the regulations, the appropriate organisation or, in the absence of such a nomination, nominated in such other manner as the regulations provide.
(2) A decision of a Promotion Appeal Committee shall not be called in question by reason of a defect or an irregularity in connection with the nomination of a member of the Committee referred to in paragraph (1)(b) or (c).
11 Parties to appeal proceedings
For the purposes of this Subdivision, the parties to particular appeal proceedings are the officer promoted or selected and the appellant or appellants.
12 Member ceasing to act
(1) Where a Promotion Appeal Committee has been constituted for the purposes of an appeal but, before the appeal has been finally determined by the Committee, a member or members of the Committee ceases or cease to be such a member or members or, for any other reason, ceases or cease to take part in consideration of the claims of the respective parties to the appeal proceedings or in the determination of the appeal, the Committee shall be reconstituted by the remaining member or members (if any) and another member or other members appointed or nominated in accordance with subsection 10(1).
(2) Where a Promotion Appeal Committee is reconstituted pursuant to subsection (1), the Committee as reconstituted may, subject to subsection (3), have regard to the evidence given, the arguments adduced and the reasons for any decision given during the proceedings before the Committee as previously constituted.
(3) Subsection (2) does not apply in relation to a Promotion Appeal Committee that is reconstituted pursuant to subsection (1) unless:
(a) 2 of the members of the Committee as reconstituted were members of the Committee as previously constituted; or
(b) the parties to the appeal proceedings agree that the subsection is to apply.
(4) For the purposes of this section, the parties to particular appeal proceedings are the officer promoted or selected and the appellant or appellants.
13 Split decision
For the purposes of the determination of an appeal or any matter arising in the course of hearing an appeal, where the members of the Promotion Appeal Committee do not concur in a decision relating to the determination of that appeal or of that matter:
(a) if a majority of the members concur in a decision—the decision of the majority shall be deemed to be the decision of the Committee; and
(b) in any other case—the decision of the Convenor of the Committee shall be deemed to be the decision of the Committee.
14 Places of sitting of Committee
Sittings of a Promotion Appeal Committee may be held from time to time as required at such places in Australia as are approved by the Agency.
15 Enactment may provide for promotion appeals to be heard by Promotion Appeal Committees
(1) An enactment may provide that appeals of a specified kind in relation to promotions of Commonwealth employees, not being appeals to which section 9 applies, may be made to a Promotion Appeal Committee established in accordance with this Subdivision and where an enactment so provides:
(a) the Agency shall, from time to time, arrange for the establishment of such Promotion Appeal Committees as appear to it to be required for the purposes of hearing appeals of that kind;
(b) in hearing an appeal of that kind a Promotion Appeal Committee has and may exercise the same powers in respect of procedure that it would have or could exercise if it were hearing an appeal to which section 9 applies; and
(c) the enactment may make such modification to sections 10, 11, 12 and 13 and to paragraph (b) of this subsection, in their application to appeals of that kind, as are necessary to enable a Promotion Appeal Committee to be constituted to hear appeals of that kind.
(2) In subsection (1), promotion includes the selection of a Commonwealth employee to perform temporarily the duties of an office or position of a classification higher than the classification of the office or position held by the Commonwealth employee.
15A Frivolous or vexatious appeals etc.
(1) A Promotion Appeal Committee shall refuse to consider or further consider an appeal if each member of the Committee is satisfied that the appeal is frivolous or vexatious or was not made in good faith.
(2) Where a Promotion Appeal Committee refuses to consider or further consider an appeal, the appeal shall thereupon be deemed to have been withdrawn.
Subdivision C—Disciplinary Appeal Committees
16 Disciplinary Appeal Committees
The Agency shall, from time to time, arrange for the establishment, in accordance with section 17, of such Disciplinary Appeal Committees as appear to it to be required for the purposes of Divisions 6 and 6A of Part III of the Public Service Act 1922.
17 Constitution of Disciplinary Appeal Committees
(1) A Disciplinary Appeal Committee established for the purpose of an appeal under section 63D, 63F or 63P of the Public Service Act 1922, or of a request under section 63G of that Act, shall be constituted by:
(a) a Convenor nominated by the Agency;
(b) a person nominated by the relevant Secretary in relation to the person who appealed or made the request; and
(c) a person nominated by the organisation that is, as provided by the regulations, the appropriate organisation or, in the absence of such a nomination, nominated in such other manner as the regulations provide.
(2) A person shall not be appointed as the Convenor of a Disciplinary Appeal Committee unless the person is or has been a Magistrate or is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory and has been so enrolled for not less than 5 years.
(3) The person first referred to in paragraph (1)(b) and the person referred to in paragraph (1)(c) shall be nominated for the purposes of a particular appeal only and a person concerned in the laying of, or in the inquiry held in respect of, a charge under section 61 of the Public Service Act 1922, or in the making of a direction under subsection 63(1) of that Act, shall not be nominated for the purpose of an appeal relating to that charge or for the purpose of an appeal against that direction or against a decision made in pursuance of that direction, as the case may be.
(4) If a Disciplinary Appeal Committee is of the opinion that a person who appealed to it under section 63D, 63F or 63P of the Public Service Act 1922 had no reasonable grounds for that appeal, and that the appeal was frivolous or vexatious or was not made in good faith, it may order that the person pay such sum, not exceeding the cost of the hearing, as it specifies in the order and the sum so ordered to be paid may, where the person is still an officer, be recovered by deductions from the salary of the person under section 65 of that Act.
(5) A reference in this section to the relevant Secretary, in relation to a person who has been dismissed from the Service under Division 6 of Part III of the Public Service Act 1922, is a reference to the Secretary of the Department in which the person held an office, or was included, immediately before being dismissed or, if that Department has ceased to exist, the Secretary of such Department as the Public Service Commissioner directs.
18 Conduct of hearings
For the purposes of hearing an appeal or request a Disciplinary Appeal Committee may take evidence on oath or affirmation and, for those purposes, a member of the Committee may administer an oath or affirmation.
19 Member ceasing to act
(1) Where the hearing of an appeal or request has been commenced before a Disciplinary Appeal Committee but, before the appeal or request has been finally determined, a member of the Committee has ceased to be such a member or, for any other reason, is unable to take any further part in the determination of the appeal or request, the 2 remaining members of the Disciplinary Appeal Committee may, with the consent of the Agency, constitute the Committee for the purpose:
(a) if the hearing has not been completed—of completing the hearing; and
(b) if both members concur in the decision—of determining the appeal or request.
(2) If, for any reason, a Disciplinary Appeal Committee constituted in accordance with subsection (1) by the remaining members of a Disciplinary Appeal Committee established under section 16 to hear and determine an appeal or request does not complete the hearing and determine the appeal or request, a new Disciplinary Appeal Committee constituted in accordance with subsection 17(1) shall hear and determine the appeal or request and, for that purpose, may have regard to the evidence given, the arguments adduced and the reasons for any decision given during the previous hearing.
20 Split decision
Except as provided by subsection 19(1) in relation to the determination of an appeal or request, for the purposes of determining an appeal or request or any matter arising in the course of hearing an appeal or request, where the members of the Disciplinary Appeal Committee do not concur in a decision relating to the determination of that appeal or request or of that matter:
(a) if a majority of the members concur in a decision—the decision of the majority shall be deemed to be the decision of the Committee; and
(b) in any other case—the decision of the Convenor of the Committee shall be deemed to be the decision of the Committee.
21 Enactment may provide for disciplinary appeals to be heard by Disciplinary Appeal Committees
An enactment may provide that appeals of a specified kind in relation to disciplinary action in relation to Commonwealth employees, not being appeals to which section 16 applies, may be made to a Disciplinary Appeal Committee established in accordance with this Subdivision and where an enactment so provides:
(a) the Agency shall, from time to time, arrange for the establishment of such Disciplinary Appeal Committees as appear to it to be required for the purpose of hearing appeals of that kind;
(b) in hearing an appeal of that kind a Disciplinary Appeal Committee has and may exercise the same powers in relation to procedure that it would have or could exercise if it were hearing an appeal to which section 16 applies; and
(c) the enactment may make such modification to sections 17, 18, 19 and 20 and to paragraph (b) of this section, in their application to appeals of that kind, as are necessary to enable a Disciplinary Appeal Committee to be constituted to hear appeals of that kind.
Subdivision D—Redeployment and Retirement Appeal Committees
22 Redeployment and Retirement Appeal Committees
The Agency shall, from time to time, arrange for the establishment, in accordance with section 23, of such Redeployment and Retirement Appeal Committees as appear to it to be required for the purposes of appeals under Divisions 8B and 8C of Part III of the Public Service Act 1922.
23 Constitution of Redeployment and Retirement Appeal Committees
(1) A Redeployment and Retirement Appeal Committee shall be constituted by:
(a) a Convenor nominated by the Agency;
(b) a person nominated by:
(i) where the Committee is constituted for the purpose of an appeal under Division 8B of Part III of the Public Service Act 1922 or an appeal under Division 8C of Part III of that Act against the giving of a notice by the Public Service Commissioner—the Public Service Commissioner; or
(ii) where the Committee is constituted for the purpose of any other appeal by an officer under Division 8C of Part III of the Public Service Act 1922—the relevant Secretary; and
(c) a person nominated by the organisation that is, under the regulations, the appropriate organisation or, in the absence of such a nomination, a person nominated as provided by the regulations.
(2) In this section, officer has the same meaning as in Division 8C of Part III of the Public Service Act 1922.
24 Conduct of hearings
For the purpose of hearing and determining an appeal of the kind referred to in section 22, a Redeployment and Retirement Appeal Committee may take evidence on oath or affirmation and, for those purposes, a member of the Committee may administer an oath or affirmation.
25 Member ceasing to act
(1) Where the hearing of an appeal has been commenced before a Redeployment and Retirement Appeal Committee but, before the appeal has been finally determined, a member of the Committee has ceased to be such a member or, for any other reason, is unable to take any further part in the determination of the appeal, the 2 remaining members of the Committee may, with the consent of the Agency constitute the Committee for the purpose:
(a) if the hearing has not been completed—of completing the hearing; and
(b) if both members concur in the decision—of determining the appeal.
(2) If, for any reason, a Committee constituted in accordance with subsection (1) by the remaining members of the Committee established under section 22 to hear and determine an appeal does not complete the hearing and determine the appeal, a new Committee constituted in accordance with subsection 23(1) or (2), as the case requires, shall hear and determine the appeal and, for that purpose, may have regard to the evidence given, the arguments adduced and the reasons for any decision given during the previous hearing.
26 Split decision
Except as provided by subsection 25(1) in relation to the determination of an appeal, for the purposes of determining an appeal or any matter arising in the course of hearing an appeal, where the members of the Redeployment and Retirement Appeal Committee do not concur in a decision relating to the determination of that appeal or of that matter:
(a) if a majority of the members concur in a decision—the decision of the majority shall be deemed to be the decision of the Committee; and
(b) in any other case—the decision of the Convenor of the Committee shall be deemed to be the decision of the Committee.
26A Enactment may provide for other appeals to be heard by Redeployment and Retirement Appeal Committees
An enactment may provide that appeals of a specified kind in relation to redeployment or retirement of Commonwealth employees, not being appeals to which section 22 applies, may be made to a Redeployment and Retirement Appeal Committee established in accordance with this Subdivision and, where an enactment so provides:
(a) the Agency shall, from time to time, arrange for the establishment of such Redeployment and Retirement Appeal Committees as appear to it to be required for the purposes of hearing appeals of that kind;
(b) in hearing an appeal of that kind a Redeployment and Retirement Appeal Committee has and may exercise the same powers in relation to procedure that it would have or could exercise if it were hearing an appeal to which section 22 applies; and
(c) the enactment may make such modification to sections 23, 24, 25 and 26 and to paragraph (b) of this subsection, in their application to appeals of that kind, as are necessary to enable a Redeployment and Retirement Appeal Committee to be constituted to hear appeals of that kind.
Subdivision E—Re‑appointment Review Committees
27 Re‑appointment Review Committees
The Agency shall, from time to time, arrange for the establishment, in accordance with section 28, of such Re‑appointment Review Committees as appear to it to be required for the purposes of Division 3 of Part IV of the Public Service Act 1922.
28 Constitution of Re‑appointment Review Committees
(1) A Re‑appointment Review Committee shall consist of:
(a) a Convenor nominated by the Agency;
(b) a person nominated by the Public Service Commissioner; and
(c) a person nominated by the organization that is, as provided by the regulations, the appropriate organization or, in the absence of such a nomination, nominated in such other manner as the regulations provide.
(2) Where a Re‑appointment Review Committee is established to inquire into an application by an applicant whose employment has been, or, in the opinion of the Public Service Commissioner, may have been, terminated on the ground of his or her misconduct, or into an application made under section 87P of the Public Service Act 1922, a person shall not be appointed as Convenor of the Committee unless he or she is or has been a Magistrate or is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory and has been so enrolled for not less than 5 years.
29 Member ceasing to act
(1) Where a Re‑appointment Review Committee has been constituted for the purposes of inquiring into an application but, before the application has been finally determined by the Committee, a member or members of the Committee ceases or cease to be such a member or members or, for any other reason, ceases or cease to take part in the determination of the application, the Committee shall be reconstituted by the remaining member or members (if any) and another member or other members appointed or nominated in accordance with subsection 28(1).
(2) Where a Re‑appointment Review Committee is reconstituted pursuant to subsection (1), the Committee as reconstituted may, subject to subsection (3), have regard to the evidence given, the arguments adduced and the reasons for any decision given during the proceedings before the Committee as previously constituted.
(3) Subsection (2) does not apply in relation to a Re‑appointment Review Committee that is reconstituted pursuant to subsection (1) unless:
(a) 2 of the members of the Committee as reconstituted were members of the Committee as previously constituted; or
(b) the parties to the appeal proceedings agree that the subsection is to apply.
30 Split decision
For the purposes of the determination of an application or any matter arising in the course of hearing an application, where the members of the Re‑appointment Review Committee do not concur in a decision relating to the determination of that application or of that matter:
(a) if a majority of the members concur in a decision—the decision of the majority shall be deemed to be the decision of the Committee; and
(b) in any other case—the decision of the Convenor of the Committee shall be deemed to be the decision of the Committee.
application means an application under subsection 17(2) or 24(2) of the relevant Act.
relevant Act means the Members of Parliament (Staff) Act 1984.
32 Re‑integration Assessment Committees
The Agency shall, from time to time, arrange for the establishment, in accordance with section 33, of such Re‑integration Assessment Committees as appear to it to be required for the purposes of Parts III and IV of the relevant Act.
33 Constitution of Re‑integration Assessment Committees
A Re‑integration Assessment Committee shall consist of:
(a) a Convenor nominated by the Agency;
(b) a person nominated by the Public Service Commissioner; and
(c) a person nominated by the organization that is, as provided by the regulations, the appropriate organization or, in the absence of such a nomination, nominated in such other manner as the regulations provide.
34 Member ceasing to act
(1) Where a Re‑integration Assessment Committee has been constituted for the purposes of an inquiry into an application made by an officer but, before the application has been finally determined by the Committee, a member or members of the Committee ceases or cease to be such a member or members or, for any other reason, ceases or cease to take part in the determination of the application, the Committee shall be reconstituted by the remaining member or members (if any) and another member or other members appointed or nominated in accordance with section 33.
(2) Where a Re‑integration Assessment Committee is reconstituted pursuant to subsection (1), the Committee as reconstituted may, subject to subsection (3), have regard to the evidence given, the arguments adduced and the reasons for any decision given during the inquiry by the Committee as previously constituted.
(3) Subsection (2) does not apply in relation to a Re‑integration Assessment Committee that is reconstituted pursuant to subsection (1) unless:
(a) 2 of the members of the Committee as reconstituted were members of the Committee as previously constituted; or
(b) the officer agrees that the subsection is to apply.
35 Split decision
For the purposes of the determination of an application or any matter arising in the course of an inquiry, where the members of the Re‑integration Assessment Committee do not concur in a decision relating to the determination of that application or of that matter:
(a) if a majority of the members concur in a decision—the decision of the majority shall be deemed to be the decision of the Committee; and
(b) if any other case—the decision of the Convenor of the Committee shall be deemed to be the decision of the Committee.
Subdivision FA—Other committees
35A Establishment of other committees
If:
(a) the Secretary of a Department or the chief executive officer of a Commonwealth authority; and
(b) the organisation that is, as provided by the regulations, the appropriate organisation;
both request the Agency in writing to arrange for the performance of functions stated in the request in relation to matters so stated that:
(c) affect the employment of Commonwealth employees by the Department or authority; and
(d) relate to the administration of the Department or authority;
the Agency may arrange for the establishment of a committee to perform those functions.
35B Constitution of committee
For the purpose of performing the requested functions, the committee is to be constituted by:
(a) a Convenor nominated by the Agency; and
(b) a person nominated by the Secretary of the Department or the chief executive officer of the authority; and
(c) a person nominated by the organisation.
35C Member ceasing to act
If, before the committee completes the performance of the requested functions, a member or members of the committee cease to be such a member or members or, for any other reason, cease to take part in the activities of the committee, the committee is to be reconstituted by the remaining member or members (if any) and another member or other members nominated in accordance with section 35B.
Subdivision G—Miscellaneous
36 Members of certain Committees not subject to direction
A member of a Joint Selection Committee or Review Committee, while acting as such, is not subject to direction by any other person or by any body or authority other than a court.
37 Procedure of Joint Selection Committees and Review Committees
(1) In proceedings before a Joint Selection Committee or Review Committee:
(a) the Committee shall make such inquiries as it considers necessary into the matter before the Committee;
(b) the procedure of the Committee is, subject to this Act and the relevant Act and to the regulations made under those Acts, within the discretion of the Committee;
(c) the proceedings shall be conducted with as little formality and technicality, and as quickly, as a proper consideration of the matter before the Committee permits; and
(d) the Committee is not bound by rules of evidence.
(2) In subsection (1), relevant Act means:
(aa) in relation to a Joint Selection Committee—the enactment under which the Committee was established; and
(a) in relation to a Promotion Appeal Committee, Disciplinary Appeal Committee, Redeployment and Retirement Appeal Committee or Re‑appointment Review Committee—the Public Service Act 1922; and
(c) in relation to a Re‑integration Assessment Committee—the Members of Parliament (Staff) Act 1984.
37A Enactments to be laid before Parliament
Where, in pursuance of subsection 15(1), section 21 or 26A, or subsection 39(1) or 47(1), an enactment (other than an Act) provides that:
(a) certain appeals may be made to a Review Committee; or
(b) applications may be made to the Agency for the review of certain decisions or the investigation of certain actions;
and the enactment is not otherwise required to be laid before either House of the Parliament, the Minister shall cause the enactment to be laid before each House of the Parliament as soon as practicable after the enactment is made.
Division 3—Review of certain decisions
38 Interpretation
In this Division, decision means a decision made in relation to a Commonwealth employee in relation to his or her employment as a Commonwealth employee.
39 Agency may review certain decisions
(1) An enactment may provide that applications may be made to the Agency for review of decisions specified in the enactment.
(2) Where an enactment makes provision in accordance with subsection (1), the enactment:
(a) shall specify the person or persons to whose decisions the provision applies;
(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c) may specify conditions subject to which applications may be made.
(3) Where an enactment makes provision in accordance with this section for the making of applications to the Agency for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power:
(a) by any person to whom that power has been delegated;
(b) in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment—by any person for the time being acting in, or performing any of the duties of, that office or appointment; or
(c) by any other person lawfully authorized to exercise that power.
(4) Where an enactment makes provision in accordance with subsection (1) for the review of a decision, the enactment shall specify either:
(a) that the decision may be reviewed under section 42; or
(b) that the decision may be reviewed under section 43;
and, if the enactment does not so specify, the enactment shall be deemed to specify that the decision may be reviewed under section 43.
(5) The Agency has power to review any decision in respect of which application is made to it under any enactment.
(6) For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Agency for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, or by an industrial award as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.
(7) Where:
(a) a person has made a decision in respect of which an application may be made to the Agency;
(b) the person made the decision in the performance or purported performance of the duties of an office or appointment; and
(c) the person no longer holds or performs the duties of the office or appointment;
this Division has effect as if the decision had been made by:
(d) the person for the time being holding or performing the duties of that office or appointment; or
(e) if there is not a person for the time being holding or performing the duties of that office or appointment or the office no longer exists—such person as the Merit Protection Commissioner, or another member authorized by the Merit Protection Commissioner, specifies.
40 Persons who may apply to Agency
Where an enactment provides that an application may be made to the Agency for a review of a decision, the application may be made by:
(a) the Commonwealth employee in relation to whose employment the decision was made;
(b) an organisation within the meaning of the Workplace Relations Act 1996 that has been requested by the employee to make the application on behalf of the employee; or
(c) in a case where the employee has died—the legal personal representative of the employee.
41 Procedure of Agency in conduct of reviews
Where a Commonwealth employee applies to the Agency in accordance with this Division for review of a decision made by a person, the Agency shall give the employee and that person a reasonable opportunity to put their views in relation to the decision to the Agency and shall take those views into account in considering the application for review.
42 Review by Agency that may give rise to new decision
(1) For the purpose of reviewing a decision that may be reviewed under this section, the Agency may exercise all the powers and discretions that are conferred by any relevant enactment or industrial award on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Agency.
(2) The Agency shall cause a copy of its decision to be given to the person applying for review and the person who made the decision under review.
(3) Subject to subsection (4), a decision of the Agency comes into operation forthwith upon the giving of the decision.
(4) The Agency may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.
(5) A decision of a person as varied by the Agency, or a decision made by the Agency in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Agency for a review), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Agency, unless the Agency otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
43 Review by Agency that may give rise to recommendation only
(1) For the purpose of reviewing a decision that may be reviewed under this section, the Agency shall make a decision in writing:
(a) affirming the decision under review; or
(b) making a recommendation in relation to the decision under review or in relation to the matter in respect of which the decision under review was made.
(2) The Agency shall cause a copy of its decision to be given to the person applying for review and the person who made the decision under review.
(3) Where the Agency, pursuant to paragraph (1)(b), makes a recommendation in relation to the decision under review, the person who made the decision shall, having regard to that recommendation, reconsider the matter in relation to which the decision under review was made.
(4) Where, pursuant to paragraph (1)(b), the Agency recommends that:
(a) the decision under review be varied; or
(b) the decision under review be set aside and:
(i) a specified decision be made in substitution for the decision so set aside; or
(ii) a decision be made, in accordance with specified directions, in substitution for the decision so set aside;
the person who made the decision under review has, by virtue of this subsection, power to take any action necessary to give effect to the recommendation of the Agency.
(5) Where the Agency, pursuant to paragraph (1)(b), makes a recommendation and action that is, in the opinion of the Agency, adequate and appropriate in the circumstances is not taken with respect to the recommendation within a reasonable time after the Agency makes the recommendation, the Agency may inform the Prime Minister accordingly in writing.
(6) Where the Agency has, in accordance with subsection (5), furnished information to the Prime Minister in relation to a recommendation, the Agency may also forward to the President of the Senate and the Speaker of the House of Representatives, for presentation to the Senate and the House of Representatives, respectively, copies of a report prepared by it concerning the recommendation for presentation to both Houses of the Parliament.
44 Agency may seek views of Public Service Commissioner
(1) Where a Commonwealth employee applies to the Agency in accordance with this Division for review of a decision made by a person other than the Public Service Commissioner, the Agency may, if it thinks fit, request the Public Service Commissioner to give comments to the Agency in relation to the decision.
(2) Where the Agency receives comments from the Public Service Commissioner under subsection (1), the Agency shall inform the Commonwealth employee of the comments received.
45 Applications by former Commonwealth employees
A person who ceases to be a Commonwealth employee shall be deemed for the purposes of this Division to continue to be a Commonwealth employee in relation to decisions that were or are made in relation to the person in relation to his or her employment as a Commonwealth employee.
Division 4—Grievances
46 Interpretation
(1) In this Division, unless the contrary intention appears:
action means action taken by a Department or Commonwealth authority in relation to a Commonwealth employee in relation to his or her employment as a Commonwealth employee.
officer means:
(a) in relation to a Department:
(i) an officer or employee, within the meaning of the Public Service Act 1922, in the Department (including the principal officer of the Department); or
(ii) any other person (not being a Minister) authorized to exercise powers or perform functions of the Department on behalf of the Department; and
(b) in relation to a Commonwealth authority:
(i) the person who constitutes, or is acting as the person who constitutes, the authority;
(ii) a person who is, or is acting as, a member of the authority or is a deputy of such a member;
(iii) a person who is employed in the service of, or is a member of the staff of, the authority, whether or not he or she is employed by the authority; or
(iv) a person authorized by the authority to exercise any powers or perform any functions of the authority on behalf of the authority.
principal officer means:
(a) in relation to a Department—the Secretary of the Department; and
(b) in relation to a Commonwealth authority:
(i) if the regulations declare an office to be the principal office in respect of the authority—the person holding, or performing the duties of, that office; or
(ii) in any other case—the person who constitutes, or is acting as the person who constitutes, that authority or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which he or she is present.
(2) Where:
(a) a person who is not an officer of a Department, or of a Commonwealth authority, for the purposes of this Division takes action in the exercise of a power or the performance of a function that the person is authorized to exercise or to perform, as the case may be, by reason of his or her holding an appointment made by, or by reason of authority given by, the Governor‑General, a Minister or the Secretary of a Department; and
(b) the person does not exercise the power or perform the function by reason of his or her holding, or performing the duties of, an office established by, or in accordance with the provisions of, an enactment or by reason of his or her being a Judge of a court of, or a magistrate of, a State or Territory;
the action shall be deemed to be taken, for the purposes of this Division, by the Department responsible for dealing with the matter in connection with which the action is taken.
(3) Notwithstanding subsection (2), where a person is authorized to exercise a power or perform a function by reason of his or her holding an appointment made by, or by reason of authority given by, the Governor‑General, a Minister or the Secretary of a Department otherwise than under an enactment, the regulations may provide that action taken by the person in the exercise of that power or the performance of that function shall not be deemed to be taken, for the purposes of this Division, by the Department responsible for dealing with the matter in connection with which the action is taken.
(4) For the purposes of this Division, action that is taken by an officer of a Department shall be deemed to be taken by the Department:
(a) if the officer takes, or purports to take, the action by virtue of his or her being an officer of the Department, whether or not:
(i) the action is taken for or in connection with, or as incidental to, the performance of the functions of the Department; or
(ii) the taking of the action is within the duties of the officer; or
(b) if the officer takes, or purports to take, the action in the exercise of powers or the performance of functions conferred on him or her by an enactment.
(5) For the purposes of this Division, action that is taken by an officer of a Commonwealth authority shall be deemed to be taken by the authority:
(a) if the officer takes, or purports to take, the action by virtue of his or her being an officer of the authority whether or not:
(i) the action is taken for or in connection with, or as incidental to, the performance of the functions of the authority; or
(ii) the taking of the action is within the duties of the officer; or
(b) if the officer takes, or purports to take, the action in the exercise of powers or the performance of functions conferred on him or her by an enactment.
(6) In this Division, unless the contrary intention appears, a reference to the taking of action includes a reference to:
(a) the making of a decision or recommendation;
(b) the formulation of a proposal; and
(c) failure or refusal to take any action, to make a decision or recommendation or to formulate a proposal.
47 Agency may inquire into certain grievances
(1) An enactment may provide that applications may be made to the Agency for the investigation, in accordance with this Division, of actions of a kind specified in the enactment.
(2) Where an enactment makes provision in accordance with subsection (1), the enactment may specify conditions subject to which applications may be made.
(3) The Agency has power to investigate, in accordance with this Division, any action in respect of which application is made to it under any enactment.
(4) For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Agency for investigation of actions taken by a Department or Commonwealth authority, a failure by a Department or Commonwealth authority to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, or by an industrial award as the period within which the Department or Commonwealth authority is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by the Department or Commonwealth authority at the expiration of that period not to do that act or thing.
48 Persons who may apply to Agency
Where an enactment provides that an application may be made to the Agency for investigation of an action, the application may be made by:
(a) the Commonwealth employee in relation to whose employment the action was taken;
(b) an organisation within the meaning of the Workplace Relations Act 1996 that has been requested by the employee to make the application on behalf of the employee; or
(c) in a case where the employee has died—the legal personal representative of the employee.
49 Discretion not to investigate
(1) Where a Commonwealth employee has made an application to the Agency with respect to action taken by a Department or Commonwealth authority, the Agency may, in its discretion, decide not to investigate the action or, if it has commenced to investigate the action, decide not to investigate the action further:
(a) if the Agency is satisfied that the employee became aware of the action more than 12 months before the application was made to the Agency; or
(b) if, in the opinion of the Agency:
(i) the application is frivolous or vexatious or was not made in good faith;
(ii) the employee has a right to apply to another person or authority in relation to the action and it is more appropriate that the action be dealt with by that person or authority rather than by the Agency; or
(iii) an investigation, or further investigation, of the action is not warranted having regard to all the circumstances.
(1A) Where:
(a) an application has been made to the Agency with respect to particular action; and
(b) because the Agency is of the opinion that it is more appropriate that the action be dealt with by the Privacy Commissioner in the performance of the functions referred to in paragraph 27(1)(a) or 28(1)(b) or (c) of the Privacy Act 1988, the Agency decides, under subparagraph (1)(b)(ii) of this section, not to investigate the action, or not to investigate the action further;
the Agency shall:
(c) transfer the application to the Privacy Commissioner;
(d) forthwith give notice in writing to the applicant stating that the application has been so transferred; and
(e) give to the Privacy Commissioner any information or documents that relate to the application and are in the possession, or under the control, of the Agency.
(1B) An application transferred under subsection (1A) shall be deemed to be a complaint made in writing to the Privacy Commissioner under Part V of the Privacy Act 1988.
(1C) In subsections (1A) and (1B), Privacy Commissioner means the Privacy Commissioner within the meaning of the Privacy Act 1988.
(1D) The Agency may decide to transfer an application to the Ombudsman if the Agency is of the opinion:
(a) that the application could have been made to the Ombudsman as a complaint under section 7 of the Ombudsman Act 1976; and
(b) that the subject‑matter of the application could be more conveniently or effectively investigated by the Ombudsman.
(1E) If the Agency makes a decision under subsection (1D), the Agency must:
(a) transfer the application to the Ombudsman as soon as is reasonably practicable; and
(b) give the Ombudsman any information or documents relating to the application that are in the possession, or under the control, of the Agency; and
(c) as soon as is reasonably practicable, give the applicant written notice that the application has been transferred to the Ombudsman.
(1F) An application transferred under subsection (1E) is to be taken to be a complaint made to the Ombudsman under section 7 of the Ombudsman Act 1976.
(2) Where a Commonwealth employee has exercised, or exercises, a right to cause action to which his or her application relates to be reviewed by a court or by a tribunal constituted by or under an enactment, the Agency shall not investigate, or investigate further, as the case may be, the action unless the Agency is of the opinion that there are special reasons justifying the investigation of the action or the investigation of the action further.
(3) Where a Commonwealth employee has made an application to the Agency with respect to action taken by a Department or Commonwealth authority and:
(a) the Agency decides under subsection (1) not to investigate the action, or not to investigate the action further, and subsection (1A) does not require the Agency to transfer the application; or
(b) the Agency decides that, by reason of subsection (2), it is not permitted to investigate the action, or to investigate the action further;
the Agency shall inform the employee in writing of its decision.
50 Employee may apply to Agency for investigation of certain grievances
(1) In addition to any right that a Commonwealth employee may have to apply to the Agency under section 47, a Commonwealth employee may apply to the Agency for investigation, in accordance with this Division, of an action taken by a Department or Commonwealth authority:
(a) on the grounds that:
(i) the action constitutes harassment of the employee for having applied to have other action (in this paragraph referred to as the original action) investigated (whether by the Agency under section 47 or this section or by some other person or authority); and
(ii) the original action was action in respect of which the employee:
(A) made an application to the Agency under section 47 or this section; or
(B) was entitled to make an application to the Agency under section 47 or this section; or
(b) on the grounds that:
(i) the action is action in respect of which the employee would be entitled to make an application to the Agency under section 47 if the alleged action were first considered by some other person or authority; and
(ii) it is not appropriate, because of the seriousness or the sensitivity of the action, for that person or authority to consider the action.
(2) Where a Commonwealth employee applies to the Agency under subsection (1) in relation to an action, the Agency may, if it thinks fit, investigate the action.
(3) Where a Commonwealth employee applies to the Agency under subsection (1) for investigation of an action, the Agency shall, if it decides not to investigate the action, inform the employee in writing of its decision.
51 Agency to inquire into grievances
(1) Subject to section 49, where a Commonwealth employee applies to the Agency under section 47 or 50 in relation to action taken by a Department or Commonwealth authority, the Agency shall:
(a) inquire into the circumstances relating to the action; and
(b) attempt to resolve the dissatisfaction of the employee with the action by such of the following means as the Agency considers appropriate:
(i) counselling separately the employee and relevant officers of the Department or Commonwealth authority;
(ii) conciliating between the employee and relevant officers of the Department or Commonwealth authority;
(iii) making a finding of fact under subsection (2);
(iv) making a report under subsection (4).
(2) Where a Commonwealth employee applies to the Agency under section 47 or 50 in relation to action taken by a Department or Commonwealth authority and the Agency is satisfied that:
(a) a question of fact is in dispute between the employee and the Department or Commonwealth authority; and
(b) the making of a finding under this subsection would promote the resolution of the dissatisfaction of the employee with the action;
the Agency may make a finding in relation to that question of fact and, where the Agency makes such a finding, it shall give a written statement setting out the terms of the finding to the employee and to the Department or Commonwealth authority.
(3) Where a Commonwealth employee applies to the Agency under section 47 or 50 in relation to action taken by a Department or Commonwealth authority and the Agency is satisfied that the making of a report to the Department or Commonwealth authority under subsection (4) would promote the resolution of the dissatisfaction of the employee with the action, the Agency may make such a report under that subsection.
(4) Where, after an investigation under this Division into action (in this subsection referred to as the relevant action) taken by a Department or Commonwealth authority has been completed, the Agency is of the opinion, having regard to the objects referred to in subsection 4(1), that the relevant action was wrong and that:
(a) a decision, recommendation, act or omission comprised or included in the relevant action should be referred to the appropriate authority for further consideration;
(b) some particular action could be, and should be, taken to rectify, mitigate or alter the effects of a decision, recommendation, act or omission comprised or included in the relevant action;
(c) a decision comprised or included in the relevant action should be cancelled or varied;
(d) a rule of law, provision of an enactment or industrial award or practice on which a decision, recommendation, act or omission comprised or included in the relevant action was based should be altered;
(e) reasons should have been, but were not, given for a decision comprised or included in the relevant action; or
(f) any other thing should be done in relation to a decision, recommendation, act or omission comprised or included in the relevant action;
the Agency may report accordingly, in writing, to the Department or Commonwealth authority concerned.
(5) The Agency:
(a) shall include in a report under subsection (4) its reasons for the opinions specified in the report; and
(b) may also include in such a report any recommendations it thinks fit to make.
(6) Where the Agency makes a report under subsection (4) in relation to action taken by a Department or Commonwealth authority in relation to a Commonwealth employee, the Agency shall give to the employee a copy of the report.
(7) The Agency may request the Department or Commonwealth authority to which the report is made to furnish to it, within a specified time, particulars of any action that it proposes to take with respect to the matters and recommendations included in the report.
(8) Where the Agency reports under subsection (4) to a Department or Commonwealth authority, the Department or authority may furnish to the Agency such comments concerning the report as it wishes to make.
52 Reports to Prime Minister
(1) Where action that is, in the opinion of the Agency, adequate and appropriate in the circumstances is not taken with respect to the matters and recommendations included in a report to a Department or Commonwealth authority under section 51 within a reasonable time after the Agency made the report to the Department or Commonwealth authority, the Agency may, in writing, inform the Prime Minister accordingly.
(2) Where the Agency furnishes information to the Prime Minister in accordance with subsection (1) in relation to a report, the Agency shall furnish to the Prime Minister with the information:
(a) a copy of the report; and
(b) if the Department or Commonwealth authority to which the report was made has furnished comments concerning the report to the Agency—a copy of those comments.
(3) In considering whether to furnish information in relation to a report to the Prime Minister in accordance with subsection (1), the Agency shall have regard to any comments furnished to it by the Department or Commonwealth authority to which the report was made.
53 Special reports to the Parliament
Where the Agency has, in accordance with subsection 52(1), furnished information to the Prime Minister in relation to a report concerning an investigation made by the Agency, the Agency may also forward to the President of the Senate and the Speaker of the House of Representatives, for presentation to the Senate and the House of Representatives, respectively, copies of a report prepared by it concerning the investigation for presentation to both Houses of the Parliament, being a report that sets out any comments furnished to the Agency under subsection 51(8) by the Department or Commonwealth authority concerned.
54 Conduct of investigations
(1) Before commencing to investigate action taken by a Department or Commonwealth authority, the Agency shall inform such officer in the Department or authority as the Agency considers appropriate that the action is to be investigated.
(2) It is not necessary for the applicant or any other person to be afforded an opportunity to appear before the Agency or any other person in connection with an investigation by the Agency under this Division.
55 Applications by former Commonwealth employees
A person who ceases to be a Commonwealth employee shall be deemed for the purposes of this Division to continue to be a Commonwealth employee in relation to actions that were or are taken in relation to the person in relation to his or her employment as a Commonwealth employee.
Division 5—Inquiries
56 Inquiries by Agency
(1) The Minister or the Public Service Commissioner may request the Agency, in writing, to conduct an inquiry into:
(a) a decision made, or an action taken, in relation to a Commonwealth employee in relation to his or her employment as a Commonwealth employee; or
(b) decisions of a specified kind made, or actions of a specified kind taken, in relation to Commonwealth employees included in a specified class of Commonwealth employees in relation to their employment as Commonwealth employees.
(2) Where the Agency is requested under subsection (1) to conduct an inquiry into a matter, the Agency may conduct an inquiry into that matter and, where it conducts such an inquiry, shall provide to the Minister or the Public Service Commissioner, as the case requires, and, in a case where the matter is a matter referred to in paragraph (a), to the Commonwealth employee concerned, a report in writing setting out the results of the inquiry.
Division 6—Provision of advice on grievances and appeals
57 Agency to provide, on request, advice on grievance and appeal rights
(1) Where a Commonwealth employee requests the Agency for advice in relation to the employees’ rights in relation to a decision or action, the Agency shall inform the employee of any relevant right of review the employee may have in relation to the decision or action.
(2) In subsection (1):
action has the same meaning as in Division 4.
decision has the same meaning as in Division 3.
relevant rights of review means a right:
(a) to apply for review of a decision under Division 3;
(b) to apply for an investigation of an action under Division 4; or
(c) to appeal or apply to a Review Committee within the meaning of Division 2.
Division 6A—Performance of functions on request
57A Agency to perform functions on request
If:
(a) the Secretary of a Department or the chief executive officer of a Commonwealth authority; and
(b) the organisation that is, as provided by the regulations, the appropriate organisation;
both request the Agency in writing to arrange for the performance of functions stated in the request in relation to matters so stated that:
(c) affect the employment of Commonwealth employees by the Department or authority; and
(d) relate to the administration of the Department or authority;
the Agency may perform those functions.
Division 7—Procedure and powers
58 Procedure
(1) A review under Division 3, an investigation under Division 4 and an inquiry under Division 5 shall be conducted in private and, subject to this Act and the regulations, in such manner as the Agency thinks fit.
(2) Subject to this Act and the regulations, the Agency may, for the purposes of a review, investigation or inquiry referred to in subsection (1), obtain information from such persons, and make such inquiries, as it thinks fit.
58A Certain purported appeals against non‑appellable promotions in the Service may be treated as applications for review
(1) In this section:
non‑appellable promotion has the same meaning as in Division 4 of Part III of the Public Service Act.
Public Service Act means the Public Service Act 1922.
(2) If:
(a) an officer purports to appeal under section 50B of the Public Service Act, within the period prescribed for the purposes of subsection (3) of that section or within any extension of that period under subsection (4) of that section, against a promotion; and
(b) the officer was not entitled to appeal merely because the promotion was a non‑appellable promotion;
the Agency may direct in writing that this section is to apply in respect of the purported appeal.
(3) If the Agency gives such a direction, it must give written notice to the officer telling the officer that the direction has been given and requiring the officer, if he or she wishes the purported appeal to be treated as an application for review of the promotion under section 50DAA of the Public Service Act, to give the Agency, within the period of 14 days after the day on which the notice is given, a written notice:
(a) requesting that the purported appeal be treated as such an application for review; and
(b) stating whether the ground for the review is that it would be unreasonable for the promotion to stand because of:
(i) a breach of section 33 of the Public Service Act in connection with the making of the promotion; or
(ii) a serious defect in the selection process; and
(c) giving particulars of the alleged breach or alleged defect.
(4) If the officer gives the Agency a notice as required by subsection (3), the purported appeal is taken, for the purposes of the Public Service Act and this Act, to be an application for review of the promotion duly made in accordance with section 50DAA of the Public Service Act.
58B Certain purported appeals against non‑appellable promotions outside the Service may be treated as applications for review
(1) In this section:
non‑appellable promotion means a promotion that is not subject to appeal.
(2) If:
(a) a person purports to appeal under a provision of an enactment (the relevant enactment), within the period prescribed for the purpose by or under the relevant enactment, against a promotion; and
(b) the person was not entitled to appeal merely because the promotion was a non‑appellable promotion; and
(c) the person would have been entitled to apply to the Agency for review of the promotion;
the Agency may direct in writing that this section is to apply in respect of the purported appeal.
(3) If the Agency gives such a direction, it must give written notice to the person telling the person that the direction has been given and requiring the person, if he or she wishes the purported appeal to be treated as an application for review of the promotion by the Agency, to give the Agency, within the period of 14 days after the day on which the notice is given, a written notice:
(a) requesting that the purported appeal be treated as such an application for review; and
(b) stating the grounds for the review; and
(c) giving particulars of the matters alleged to support those grounds.
(4) If the person gives the Agency a notice as required by subsection (3), the purported appeal is taken, for the purposes of the relevant enactment and this Act, to be an application to the Agency for review of the promotion duly made in accordance with that enactment.
58C Certain purported applications for review of appellable promotions in the Service may be treated as appeals
(1) In this section:
appellable promotion means a promotion that is not a non‑appellable promotion within the meaning of Division 4 of Part III of the Public Service Act.
Public Service Act means the Public Service Act 1922.
(2) If:
(a) an officer purports to apply to the Agency under section 50DAA of the Public Service Act, within the period prescribed for the purposes of that section, for review of a promotion; and
(b) the officer was not entitled to make such an application for review merely because the promotion was an appellable promotion;
the Agency may direct in writing that this section is to apply in respect of the purported application.
(3) If the Agency gives such a direction, it must give written notice to the officer telling the officer that the direction has been given and requiring the officer, if he or she wishes the purported application for review to be treated as an appeal against the promotion under section 50B of the Public Service Act, to give the Agency, within the period of 14 days after the day on which the notice is given, a written notice requesting that the purported application for review be treated as such an appeal.
(4) If the officer gives the Agency a notice as required by subsection (3), the purported application for review is taken, for the purposes of the Public Service Act and this Act, to be an appeal against the promotion duly made in accordance with section 50B of the Public Service Act.
58D Certain purported applications for review of appellable promotions outside the Service may be treated as appeals
(1) In this section:
appellable promotion means a promotion that is subject to appeal.
(2) If:
(a) a person purports to apply to the Agency under a provision of an enactment (the relevant enactment), within the period prescribed for the purpose by or under the relevant enactment, for review of a promotion; and
(b) the person was not entitled to make such an application for review merely because the promotion was an appellable promotion; and
(c) the person would have been entitled to appeal against the promotion;
the Agency may direct in writing that this section is to apply in respect of the purported application.
(3) If the Agency gives such a direction, it must give written notice to the person telling the person that the direction has been given and requiring the person, if he or she wishes the purported application for review to be treated as an appeal against the promotion, to give the Agency, within the period of 14 days after the day on which the notice is given, a written notice requesting that the purported application for review be treated as such an appeal.
(4) If the person gives the Agency a notice as required by subsection (3), the purported application for review is taken, for the purposes of the relevant enactment and this Act, to be an appeal against the promotion duly made in accordance with that enactment.
59 Power to obtain information and documents
(1) Where the Merit Protection Commissioner has reason to believe that a person is capable of furnishing information or producing documents or other records relevant to:
(a) a decision being reviewed by the Agency in accordance with Division 3;
(b) an action being investigated by the Agency in accordance with Division 4; or
(c) an inquiry being conducted by the Agency in accordance with Division 5;
the Merit Protection Commissioner may, by notice in writing served on the person, require that person, at such place, and within such period or on such date and at such time, as are specified in the notice:
(d) to furnish to the Merit Protection Commissioner, by writing signed by that person or, in the case of a body corporate, by an officer of the body corporate, any such information; or
(e) to produce to the Merit Protection Commissioner such documents or other records as are specified in the notice.
(2) Where documents or other records are produced to the Merit Protection Commissioner in accordance with a requirement under subsection (1), the Merit Protection Commissioner:
(a) may take possession of, and may make copies of, or take extracts from, the documents or other records;
(b) may retain possession of the documents or other records for such period as is necessary for the purposes of the review, investigation or inquiry to which the documents or other records relate; and
(c) during that period shall permit a person who would be entitled to inspect any one or more of the documents or other records if they were not in the possession of the Merit Protection Commissioner to inspect at all reasonable times such of the documents or other records as that person would be so entitled to inspect.
(3) Where the Merit Protection Commissioner has reason to believe that a person is able to give information relevant to:
(a) a decision being reviewed by the Agency in accordance with Division 3;
(b) an action being investigated by the Agency in accordance with Division 4; or
(c) an inquiry being conducted by the Agency in accordance with Division 5;
the Merit Protection Commissioner may, by notice in writing served on the person, require the person to attend before him or her, on such date and at such time and place as are specified in the notice, to answer questions relevant to the decision, action or inquiry, as the case may be.
(4) Where the Attorney‑General furnishes to the Merit Protection Commissioner a certificate certifying that the disclosure to the Merit Protection Commissioner of information concerning a specified matter (including the furnishing of information in answer to a question) or the disclosure to the Merit Protection Commissioner of the contents of any documents or records would be contrary to the public interest:
(a) by reason that it would prejudice the security, defence or international relations of the Commonwealth;
(b) by reason that it would involve the disclosure of communications between a Minister and a Minister of a State, of the Australian Capital Territory or of the Northern Territory, being a disclosure that would prejudice relations between the Commonwealth Government and the Government of a State, of the Australian Capital Territory or of the Northern Territory, as the case may be;
(c) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or
(d) by reason that it would involve the disclosure of deliberations or advice of the Executive Council;
the Director is not entitled to require a person to furnish any information concerning the matter, to answer questions concerning the matter or to produce those documents or records to the Merit Protection Commissioner.
(5) A person is not liable to any penalty under the provisions of any other enactment by reason of his or her furnishing information, producing a document or other record or answering a question when required to do so under this Act.
(6) The reference in subsection (1) to an officer, in relation to a body corporate that is not a Commonwealth authority, includes a reference to a director, secretary, executive officer or employee of the body corporate.
60 Power to examine witnesses
The Merit Protection Commissioner may administer an oath or affirmation to a person required to attend before him or her in pursuance of section 59 and may examine the person on oath or affirmation.
61 Power to enter premises
(1) For the purposes of:
(a) a review under Division 3;
(b) an investigation under Division 4; or
(c) the conduct of an inquiry under Division 5;
an authorized person may, at any reasonable time of the day, enter any place occupied by a Department or Commonwealth authority and may carry on the review, investigation or inquiry at the place.
(2) Subsection (1) does not authorize a person to enter, or carry out a review, investigation or inquiry at:
(a) a place referred to in paragraph 80(c) of the Crimes Act 1914;
(b) a place that is a prohibited place for the purposes of the Defence (Special Undertakings) Act 1952 by virtue of section 7 of that Act; or
(c) an area of land or water or an area of land and water that is declared under section 14 of the Defence (Special Undertakings) Act 1952 to be a restricted area for the purposes of that Act;
unless the Minister administering that Act, or another Minister acting for and on behalf of that Minister, has approved his or her entering the place or area and he or she complies with any conditions imposed by the Minister giving the approval in relation to his or her entering that place or area and the manner in which the review, investigation or inquiry is to be carried out at that place or area.
(3) Where the Attorney‑General is satisfied that the carrying out of a review, investigation or inquiry at a place might prejudice the security or defence of the Commonwealth, the Attorney‑General may, by notice in writing delivered to the Merit Protection Commissioner, declare the place to be a place to which this subsection applies and, while the declaration is in force, subsection (1) does not authorize a person to enter, or carry out a review, investigation or inquiry at, the place unless a Minister specified in the declaration, or another Minister acting for and on behalf of that Minister, has approved his or her entering the place and he or she complies with any conditions imposed by the Minister giving the approval in relation to his or her entering the place and the manner in which the review, investigation or inquiry is to be carried out at that place.
(4) For the purposes of a review, investigation or inquiry under this Act, an authorized person is entitled to inspect any documents relevant to the review, investigation or inquiry kept at premises entered by him or her under this section, other than documents in respect of which the Attorney‑General has furnished a certificate under subsection 59(4), at a reasonable time of the day arranged with the principal officer of the Department or Commonwealth authority concerned.
(5) Subsection (4) shall not be taken to restrict the operation of section 59.
(6) A reference in this section to an authorized person includes a reference to the Merit Protection Commissioner.
62 Powers of delegates
Where the Agency delegates to a person its powers and functions in relation to:
(a) a review under Division 3;
(b) an investigation under Division 4; or
(c) an inquiry under Division 5;
sections 59, 60 and 81 apply in relation to the review, investigation or inquiry, as the case may be, as if references in those sections to the Merit Protection Commissioner were a reference to that person.
Part III—Constitution and organization of Agency
63 Constitution of Agency
(1) The Agency shall consist of the following members, namely:
(a) the Merit Protection Commissioner; and
(b) not less than 2, and not more than 4, other members.
(2) The Merit Protection Commissioner and the other members shall be appointed by the Governor‑General.
(3) The Merit Protection Commissioner must only be appointed after consultations, by the Minister or his or her representative, with the Australian Council of Trade Unions and the Public Service Commissioner.
(4) Any other member must only be appointed after consultations by the Minister or his or her representative, with the Australian Council of Trade Unions, the Public Service Commissioner and the Merit Protection Commissioner.
(5) The Merit Protection Commissioner must be appointed on a full‑time basis. Any other member must be appointed on a part‑time basis.
(7) The Merit Protection Commissioner and the other members hold office on such terms and conditions (in respect of matters not provided for by this Act) as are determined by the Minister by writing.
(8) The performance of the functions, and the exercise of the powers, of the Agency are not affected by reason only of there being a vacancy or vacancies in the membership of the Agency.
(9) The reference in subsection (3) or (4) to a representative of the Minister shall be read as a reference to a person appointed by the Minister, in writing, to be his or her representative for the purposes of that subsection.
64 Period of appointment of members
(1) Subject to this Part:
(a) the Merit Protection Commissioner holds office for such period, not exceeding 7 years, as is specified in the instrument of his or her appointment, but is eligible for re‑appointment; and
(b) a member (other than the Merit Protection Commissioner) holds office for such period, not exceeding 5 years, as is specified in the instrument of his or her appointment, but is eligible for re‑appointment.
(2) A person who has attained the age of 65 years shall not be appointed as a member and a person shall not be appointed as a member for a period that extends beyond the day on which he or she will attain the age of 65 years.
65 Remuneration and allowances of members
(1) A member shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of the remuneration by the Tribunal is in operation, the member shall be paid such remuneration as is prescribed.
(2) A member shall be paid such allowances as are prescribed.
(3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.
66 Leave of absence
(1) Subject to section 87E of the Public Service Act 1922, the Merit Protection Commissioner has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may:
(a) grant the Merit Protection Commissioner leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines; and
(b) grant any other member leave of absence from a meeting or meetings of the Agency.
67 Outside employment
Except with the consent of the Minister, the Merit Protection Commissioner must not engage in paid employment outside the duties of his or her office.
68 Resignation
A member may resign his or her office by writing signed by the member and delivered to the Governor‑General.
69 Acting Merit Protection Commissioner
(1) The Minister may appoint a member (other than the Merit Protection Commissioner) or another person:
(a) to act as Merit Protection Commissioner during a vacancy in the office of Merit Protection Commissioner, whether or not an appointment has previously been made to the office; or
(b) to act as Merit Protection Commissioner during any period, or during all periods, when the Merit Protection Commissioner is absent from duty or from Australia or is for any reason, unable to perform the duties of his or her office.
(2) An appointment to act as Merit Protection Commissioner may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.
(3) A person appointed under subsection (1) to act during a vacancy in the office of Merit Protection Commissioner shall not continue so to act for more than 12 months.
(4) Where a person is acting as Merit Protection Commissioner otherwise than by reason of a vacancy in the office of Merit Protection Commissioner and the office becomes vacant while the person is so acting, then, subject to subsection (2), the person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the day on which the vacancy occurs expires, whichever first occurs.
(5) While a person is acting as Merit Protection Commissioner, he or she has and may exercise all the powers, and shall perform all the duties, of the Merit Protection Commissioner.
(6) The Minister may:
(a) determine the terms and conditions of appointment, including remuneration and allowances, of a person appointed to act as Merit Protection Commissioner; and
(b) terminate such an appointment at any time.
(7) A person appointed to act as Merit Protection Commissioner may resign his or her appointment by writing signed by the person and delivered to the Minister.
(8) The validity of anything done by or in relation to a person purporting to act as Merit Protection Commissioner shall not be called in question on the ground that the occasion for his or her appointment had not arisen, that there was a defect or irregularity in or in connection with his or her appointment, that the appointment had ceased to have effect or that the occasion for the person to act had not arisen or had ceased.
70 Acting member
(1) The Minister may appoint a person:
(a) to act as a member during a vacancy in the office of a member, whether or not an appointment has previously been made to the office; or
(c) to act as a member during any period, or during all periods, when the member is absent from Australia or is, for any reason, unable to perform the duties of his or her office.
(2) An appointment to act as a member may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.
(3) A person appointed under subsection (1) to act during a vacancy in the office of a member shall not continue so to act for more than 12 months.
(4) Where a person is acting as a member otherwise than by reason of a vacancy in the office of a member and the office becomes vacant while the person is so acting, then, subject to subsection (2), the person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the day on which the vacancy occurs expires, whichever first occurs.
(5) While a person is acting as a member, he or she has and may exercise all the powers, and shall perform all the duties, of a member.
(6) The Minister may:
(a) determine the terms and conditions of appointment, including remuneration and allowances, of a person appointed to act as a member; and
(b) terminate such an appointment at any time.
(7) A person appointed to act as a member may resign his or her appointment by writing signed by the person and delivered to the Minister.
(8) The validity of anything done by or in relation to a person purporting to act as a member shall not be called in question on the ground that the occasion for his or her appointment had not arisen, that there was a defect or irregularity in or in connection with his or her appointment, that the appointment had ceased to have effect or that the occasion for the person to act had not arisen or had ceased.
(9) In this section, member does not include the Merit Protection Commissioner.
71 Meetings of Agency
(1) The Agency shall hold such meetings as are necessary for the efficient performance of its functions.
(2) The Merit Protection Commissioner may, at any time, convene a meeting of the Agency.
(2A) Meetings of the Agency may be held in one, or in a combination of more than one, of the following ways:
(a) in person;
(b) by telephone;
(c) by closed‑circuit television;
(d) by any other electronic means of communication.
(3) The Merit Protection Commissioner shall preside at all meetings of the Agency at which he or she is present.
(4) Where the Merit Protection Commissioner is not present at a meeting of the Agency, the members present shall appoint one of their number to preside at the meeting.
(5) At a meeting of the Agency, not less than one‑half of the members constitute a quorum.
(6) Questions arising at a meeting of the Agency shall be determined by a majority of the votes of the members present and voting.
(7) The person presiding at a meeting of the Agency has a deliberative vote and, in the event of an equality of votes, also has a casting vote.
(8) A reference in this section to the Merit Protection Commissioner is, if there is an acting Merit Protection Commissioner, a reference to the acting Merit Protection Commissioner.
(9) A reference in this section to a member includes, unless the contrary intention appears, a reference to an acting Merit Protection Commissioner who is not a member and to an acting member.
72 Disclosure of interests of member in relation to reviews and inquiries
(1) Where:
(a) the Agency is reviewing, or is to review, a decision in accordance with Division 3 or is conducting, or is to conduct, an inquiry in accordance with Division 5; and
(b) a member has or acquires an interest, pecuniary or otherwise, that could conflict with the proper performance of his or her functions in relation to the matter;
the member:
(c) shall disclose the interest to the parties to the proceeding; and
(d) except with the consent of all the parties to the proceeding, shall not take part in the proceeding.
(2) Where the Minister becomes aware that:
(a) the Agency is reviewing, or is to review, a decision in accordance with Division 3 or is conducting, or is to conduct, an inquiry in accordance with Division 5; and
(b) a member has, in relation to the matter, such an interest as is mentioned in subsection (1);
then:
(c) if the Minister considers that the member should not take part, or should not continue to take part, in the proceeding—he or she shall give a direction to the member accordingly; or
(d) in any other case—he or she shall cause the interest of the member to be disclosed to the parties to the proceeding.
(3) In this section:
(a) a reference to a proceeding shall be read as a reference to a proceeding by way of a review by the Agency of a decision in accordance with Division 3 or an inquiry by the Agency in accordance with Division 5;
(b) a reference to a party to a proceeding, being a review of a decision by the Agency in accordance with Division 3, shall be read as a reference to the Commonwealth employee applying for review of the decision and the person who made the decision; and
(c) a reference to a party to a proceeding, being an inquiry by the Agency in accordance with Division 5, shall be read as a reference to a person or organization recognized by the Agency as a party to the inquiry.
73 Disclosure of interests of members in relation to other matters
(1) A member who has a direct or indirect pecuniary interest in a matter being considered, or about to be considered, by the Agency (not being a matter to which section 72 applies) shall, as soon as possible after the relevant facts have come to his or her knowledge, disclose the nature of his or her interest at a meeting of the Agency.
(2) A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the Agency and the member shall not, unless the Minister or the Agency otherwise determines:
(a) be present during any deliberation of the Agency with respect to that matter; or
(b) take part in any decision of the Agency with respect to that matter.
(3) For the purpose of the making of a determination by the Agency under subsection (2) in relation to a member who has made a disclosure under subsection (1), a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not:
(a) be present during any deliberation of the Agency for the purpose of making the determination; or
(b) take part in the making by the Agency of the determination.
74 Retirement
The Governor‑General may, with the consent of a member, retire the member on the ground of physical or mental incapacity.
75 Suspension and removal of member
(1) The Governor‑General may remove a member from office on an address praying for his or her removal on the ground of misbehaviour or physical or mental incapacity being presented to the Governor‑General by each House of the Parliament in the same session of the Parliament.
(2) The Governor‑General may suspend a member from office on the ground of misbehaviour or physical or mental incapacity.
(3) Where the Governor‑General suspends a member from office, the Minister shall cause a statement of the grounds of the suspension to be laid before each House of the Parliament within 7 sitting days of the House after the suspension.
(4) Where such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that a member should be removed from office and, if each House so passes such a resolution, the Governor‑General shall remove the member from office.
(5) If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House had not passed such a resolution, the suspension terminates.
(6) The suspension of a member from office under this section does not affect any entitlement of the member to be paid remuneration and allowances.
(7) If:
(a) a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(b) the Merit Protection Commissioner:
(i) engages, except with the approval of the Minister, in paid employment outside the duties of his or her office; or
(ii) is absent from duty, except on leave of absence, for 14 consecutive days or 28 days in any 12 months;
(c) any other member is absent, except on leave of absence granted by the Minister, from 3 consecutive meetings of the Agency; or
(d) a member fails, without reasonable excuse, to comply with his or her obligations under section 72 or 73;
the Governor‑General shall terminate the appointment of the member.
(8) A member shall not be removed or suspended from office except as provided by this section.
76 Removal taken to be retirement on ground of invalidity
(1) If a member is removed from office under section 75 of this Act following his or her suspension from office on the ground of physical or mental incapacity, then, for the purposes of the Superannuation Act 1976, he or she is taken to have been retired on the ground of invalidity within the meaning of Part IVA of that Act.
(2) In spite of subsection (1), section 54C of the Superannuation Act 1976 applies in relation to the member.
(3) If a member is removed from office under section 75 of this Act following his or her suspension from office on the ground of physical or mental incapacity, then, for the purposes of the Superannuation Act 1990, he or she is taken to have been retired on the ground of invalidity within the meaning of that Act.
(4) In spite of subsection (3), section 13 of the Superannuation Act 1990 applies in relation to the member.
76A Retirement on ground of invalidity under the Superannuation Acts
(1) In spite of anything contained in sections 74 and 75, a member who:
(a) is an eligible employee for the purposes of the Superannuation Act 1976; and
(b) has not reached his or her maximum retiring age within the meaning of that Act;
is not capable of being retired from office on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under section 54C of that Act.
(2) In spite of anything contained in sections 74 and 75, a member who:
(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and
(b) is under 60 years of age;
is not capable of being retired from office on the ground of invalidity within the meaning of that Act unless the Commonwealth Superannuation Board of Trustees No. 1 has given a certificate under section 13 of that Act.
78 Delegation by Agency
(1) The Agency may, by resolution, either generally or as otherwise provided by the resolution, delegate to a person any of its powers or functions under this Act or any other enactment, other than this power of delegation.
(2) A power or function so delegated, when exercised or performed by the delegate, shall be deemed to have been exercised by the Agency.
(3) A delegation of a power or function under this section:
(a) may be revoked by a resolution of the Agency (whether or not constituted by the persons constituting the Agency at the time when the power or function was delegated);
(b) does not prevent the exercise of the power or the performance of the function by the Agency; and
(c) continues in force notwithstanding a change in the membership of the Agency.
(4) Without limiting the generality of subsection (1), the reference in that subsection to a function of the Agency under this Act includes a reference to the function of the Agency:
(a) to review a decision under Division 3;
(b) to investigate an action under Division 4; or
(c) to conduct an inquiry under Division 5.
(5) Section 34A of the Acts Interpretation Act 1901 applies in relation to a delegation under this section as if the Agency were a person.
79 Delegation by Merit Protection Commissioner
(1) The Merit Protection Commissioner may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him or her, delegate to a person any of the Merit Protection Commissioner’s powers under this Act, other than this power of delegation.
(2) A power so delegated, when exercised, by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Merit Protection Commissioner.
(3) A delegation under this section does not prevent the exercise of a power by the Merit Protection Commissioner.
(4) Without limiting the generality of subsection (1), the reference in that subsection to a power of the Merit Protection Commissioner includes a reference to the power of the Merit Protection Commissioner under section 60.
Part IV—Miscellaneous
79A Agency not subject to direction
Neither the Agency, nor a member of the Agency while acting as such, is subject to direction by any other person or by any body or authority other than a court.
80 Agency not to be sued
The Agency, a member or a person acting under the direction or authority of the Agency or a member is not liable to an action, suit or proceeding for or in relation to an act done or omitted to be done in good faith in exercise or purported exercise of any power or authority conferred by this Act.
81 Offences
(1) A person shall not refuse or fail, without reasonable excuse:
(a) to attend before the Merit Protection Commissioner;
(b) to be sworn or make an affirmation; or
(c) to answer a question or produce a document or record;
when so required in pursuance of this Act.
Penalty: Imprisonment for 6 months.
(2) A person shall not furnish information or make a statement to the Agency, a member or an authorized officer that is, to the knowledge of the person, false or misleading in a material particular.
Penalty: Imprisonment for 1 year.
(3) A person must not:
(a) obstruct or hinder:
(i) the Agency or a member or acting member in the performance of the Agency’s functions; or
(ii) a Review Committee or a member of a Review Committee (within the meaning of Division 2 of Part II) in the performance of the Committee’s functions; or
(b) disrupt a hearing of the Agency or such a Review Committee.
Penalty: Imprisonment for 6 months.
(4) An offence against subsection (1), (2) or (3) is punishable on summary conviction.
82 Protection from civil actions
(1) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person by reason of:
(a) the making of an application to the Agency under this Act; or
(b) the making of a statement to, or the furnishing of a document or information to, an officer for the purposes of this Act.
(2) In subsection (1), officer means:
(a) a member; or
(b) a person appointed or employed, under section 18B of the Public Service Act 1922, for the purposes of this Act; or
(c) a person, not being a person referred to in paragraph (b), to whom the Agency has delegated any of its powers or functions under section 78, to whom the Merit Protection Commissioner has delegated any of his or her powers under section 79 or who is an authorized person.
83 Annual Report
(1) The Agency shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report of the operations of the Agency during that year.
(2) The Minister shall cause a copy of a report furnished to him or her under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
(3) Without limiting the generality of subsection (1), a report by the Agency of its operation during a year shall include:
(a) lists of those Commonwealth authorities in relation to which, as at 30 June of that year, the Agency has responsibilities by reason of the respective operation of section 15, 21, 39 or 47; and
(b) particulars of the kinds of decision that, as at 30 June in that year, were decisions in relation to which applications could be made to the Agency under Division 3 of Part II.
84 Officers to observe secrecy
(1) In this section, officer means:
(a) a member; or
(aa) a member of a Joint Selection Committee; or
(ab) a member of a Review Committee within the meaning of Division 2 of Part II; or or
(b) a person appointed or employed, under section 18B of the Public Service Act 1922, for the purposes of this Act; or
(c) a person, not being a person referred to in paragraph (b), to whom the Agency has delegated any of its powers or functions under section 78, to whom the Merit Protection Commissioner has delegated any of his or her powers under section 79 or who is an authorized person.
(2) Subject to this section, an officer shall not, directly or indirectly, and either while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate to any person, any information acquired by the officer by reason of his or her being an officer, being information that was disclosed or obtained under the provisions of this Act.
Penalty: Imprisonment for 6 months.
(3) Subsection (2) does not prevent an officer:
(a) from making a record of, or divulging or communicating to any person, information acquired by the officer in the performance of his or her duties as an officer for purposes connected with the exercise of the powers and with the performance of the functions of the Agency under this Act; or
(b) from divulging or communicating information to a person:
(i) if the information was furnished by an officer of a Department or Commonwealth authority in the performance of his or her duties as such an officer—with the consent of the principal officer of the Department or authority or of the responsible Minister; or
(ii) if the information was furnished by a person otherwise than as set out in subparagraph (i)—with the consent of the person who furnished the information.
(4) Subsection (2) does not prevent the Agency from disclosing, in a report made under this Act, such matters as, in its opinion, ought to be disclosed in the course of setting out the grounds for the conclusions and recommendations contained in the report.
(4A) Subsection (2) does not prevent the Agency, or an officer acting on behalf of the Agency, from giving information or documents under paragraph 49(1A)(e).
(5) A person who is or has been an officer is not competent and may not be required, in any proceedings before a court (whether exercising federal jurisdiction or not) or before a person authorized by a law of the Commonwealth or of a State or Territory, or by consent of parties, to hear, receive or examine evidence, to disclose any information acquired by the person by reason of his or her being or having been an officer, being information that was disclosed or obtained under the provisions of this Act.
(6) Subject to subsections (7) and (8), nothing in this Act shall be taken to preclude the Merit Protection Commissioner from disclosing information, or making a statement, to any person or to the public or a section of the public with respect to the performance of a function of the Agency under this Act if, in the opinion of the Merit Protection Commissioner, it is in the interests of any Department, Commonwealth authority or person, or is otherwise in the public interest, so to disclose that information or to make that statement.
(7) The Merit Protection Commissioner shall not disclose information or make a statement under subsection (6) with respect to a particular review, investigation or inquiry where the disclosure of that information, or the making of that statement, is likely to interfere with the carrying out of that review, investigation or inquiry or of any other review, investigation or inquiry.
(8) The Merit Protection Commissioner shall not, in disclosing information or making a statement under subsection (6) with respect to a particular review or investigation, disclose the name of an applicant or any other matter that would enable an applicant to be identified unless it is fair and reasonable in all the circumstances to do so.
85 Regulations
(1) The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Without limiting the generality of the matters that may be prescribed under subsection (1), regulations may be made under that subsection prescribing:
(a) the procedure of the Agency;
(b) the manner in which, and the time within which, applications may be made to the Agency under section 50;
(c) the procedure and duties of Promotion Appeal Committees;
(d) the procedure of Disciplinary Appeal Committees including, without limiting the generality of the foregoing:
(i) the procedure for summoning witnesses and requiring the production of documents; and
(ii) the procedure for the service of documents upon persons;
(e) the circumstances in which, and the procedure by which, the evidence of a person appealing to a Disciplinary Appeal Committee or of a witness concerned in that appeal may be taken by a person (other than a member of that Committee) who is authorized to take that evidence;
(f) matters in relation to costs in appeals made to Disciplinary Appeal Committees and the assessment of those costs;
(g) penalties, not exceeding a fine of $500, for a failure of a person to attend, or to answer questions, before, or to produce documents to, a Redeployment and Retirement Appeal Committee or a Disciplinary Appeal Committee, in obedience to a summons issued by that Committee or by a member of that Committee;
(ga) penalties, not exceeding a fine of $1000, for a failure of a person to comply with an order of a Disciplinary Appeal Committee:
(i) in relation to the persons who may be present at a review or hearing of an appeal by the Committee; or
(ii) giving directions prohibiting or restricting the publication of evidence given before the Committee or of matters contained in documents lodged with, or received in evidence by, the Committee;
(h) matters in relation to the procedure of Redeployment and Retirement Appeal Committees, including, without limiting the generality of the foregoing:
(i) the manner by which, and the circumstances in which, 2 or more appeals may be consolidated and heard together;
(iii) the procedure for summoning witnesses and requiring the production of documents; and
(iv) the procedure for the service of documents upon persons;
(j) the circumstances in which, and the procedure by which, the evidence of a Commonwealth employee appealing to a Redeployment and Retirement Appeal Committee, or of a witness concerned in an appeal to a Redeployment and Retirement Appeal Committee, may be taken by a member of the Committee, or a person other than a member of the Committee, who is authorized by the Committee to take that evidence;
(ja) penalties, not exceeding a fine of $1000, for a failure of a person to comply with an order of a Redeployment and Retirement Appeal Committee:
(i) in relation to the persons who may be present at a proceeding before the Committee; or
(ii) giving directions prohibiting or restricting the publication of evidence given before the Committee or of matters contained in documents lodged with, or received in evidence by, the Committee;
(k) the application of the provisions of this Act, subject to such modifications (if any) as are prescribed, to and in relation to:
(i) members and staff members of the Australian Federal Police;
(iii) persons who are employed under section 42 of the Naval Defence Act 1910;
(iv) persons who are employed under section 10 of the Supply and Development Act 1939;
(v) persons employed as officers of the Australian Security Intelligence Organization; or
(vi) officers appointed in pursuance of section 10 of the Trade Representatives Act 1933.
(3) In subsection (2), modifications includes additions, omissions and substitutions.