Application for review by a Parliamentary Service employee
(1) If an application for review of a promotion decision or an engagement decision was made by a Parliamentary Service employee and a PRC conducts a review of the decision under section 77, the decision of the PRC under subsection 77(2) is binding on the relevant Secretary.
(2) The decision of a PRC is not affected by:
(a) a defect in the nomination of a member of the PRC; or
(b) a failure to comply with instructions issued under section 74.
(3) If the PRC decides that the applicant for review should be promoted to the relevant employment, the applicant is taken to have been promoted to the relevant employment.
Note: See section 45 in relation to the date of effect of a decision to promote an ongoing Parliamentary Service employee if the decision is subject to PRC review.
Application for review by an APS employee
(4) If an application for review of a promotion decision or an engagement decision was made by an APS employee and a PRC conducts a review of the decision under section 77, the recommendation of the PRC under subsection 77(3) is not binding on the relevant Secretary.
(5) The recommendation of a PRC is not affected by:
(a) a defect in the nomination of a member of the PRC; or
(b) a failure to comply with instructions issued under section 74.
(6) If the PRC recommends that the applicant for the review should be engaged to the relevant employment, the Secretary must, as soon as practicable after being informed of the recommendation:
(b) make a decision about the recommendation; and
(c) inform the following persons, in writing, of the decision and the reasons for the decision:
(i) the applicant for the review;
(ii) the Merit Protection Commissioner;
(iii) if the review is of a promotion decision—the person promoted.
(7) Before the Secretary decides to act otherwise than in accordance with the recommendation, the Secretary must seek the views of:
(a) the applicant for the review; and
(b) if the review is of a promotion decision—the person promoted;
about the decision the Secretary proposes to make about the recommendation.
Note: See section 45 in relation to the date of effect of a decision to engage an ongoing APS employee as a Parliamentary Service employee at a higher classification than the employee’s classification as an ongoing APS employee if the decision is subject to PRC review.
Division 3—Review of other Parliamentary Service actions
Subdivision A—Reviewable actions
80 Entitlement to review
(1) For the purposes of subsections 33(1) and (2) of the Act, a non‑SES employee (an affected employee) is entitled to review under this Division of a Parliamentary Service action that relates to the employee’s Parliamentary Service employment if the action is:
(a) by:
(i) a Secretary; or
(ii) a Parliamentary Service employee; and
(b) a reviewable action (including the action of finding that the affected employee has breached the Code of Conduct).
Note: For reviewable action, see section 81.
(2) If an affected employee applies for review under this Division of a Parliamentary Service action, the affected employee ceases to be entitled to review under this Division if, after the application is made:
(a) the employee ceases to be employed; or
(b) the employee is promoted to an SES position; or
(c) the action ceases to be a reviewable action.
(3) A former Parliamentary Service employee is not entitled to review under this Division.
Note: For rights of former Parliamentary Service employees to review, see Subdivision D of Division 2 of Part 10.
81 What Parliamentary Service actions are reviewable actions
(1) A Parliamentary Service action that relates to an affected employee’s Parliamentary Service employment is a reviewable action if:
(a) under subsection 33(1) of the Act, the affected employee is entitled to review of the action; and
(b) the action is not excluded from being, or has not ceased to be, a reviewable action under any of subsections (2) to (6) of this section.
Note: A Parliamentary Service employee is not entitled to review, under section 33 of the Act, of Parliamentary Service action that consists of the termination of the employee’s employment.
(2) A Parliamentary Service action mentioned in an item in the following table is not, or ceases to be, a reviewable action.
Parliamentary Service actions that are not, or that cease to be, reviewable actions—general
Item Non‑reviewable Parliamentary Service actions
General
1 Action about the policy, strategy, nature, scope, resources or direction of the Parliamentary Service or a Department.
2 Action taken, or not taken, in accordance with a direction or referral given by the Presiding Officer under the Act or another Act.Note: A Secretary is not subject to direction by a Presiding Officer in relation to the exercise of powers by the Secretary under section 15 of the Act or Part 4 of the Act in relation to particular individuals (see section 20 of the Act).
3 The issuing of a direction by the Parliamentary Service Commissioner under subsection 15(6) of the Act.
4 Action taken, or not taken, for an inquiry by:(a) the Parliamentary Service Commissioner under subsection 40(1) of the Act; or(b) the Merit Protection Commissioner under subsection 48(1) or 48A(1) of the Act.
5 A determination by the Merit Protection Commissioner under section 48A of the Act.
6 Action arising under any of the following Acts:(a) the Australian Security Intelligence Organisation Act 1979;(b) the Safety, Rehabilitation and Compensation Act 1988;(c) the Superannuation Act 1976;(d) the Superannuation Act 1990;(e) the Superannuation Act 2005.
Parliamentary Service actions relating to employment and conditions
7 Action relating to the engagement of a Parliamentary Service employee.
8 Action of a PRC.
9 Action relating to the promotion of an ongoing Parliamentary Service employee as an SES employee (whether or not the employee is already an SES employee).
10 Action relating to the determination of the duties of a Parliamentary Service employee, unless the action involves:(a) a reduction in classification; or(b) a relocation to another place; or(c) a promotion that meets the following criteria:(i) the employee was a candidate for the promotion;(ii) the promotion was to employment at a classification mentioned in Group 7 or 8 in Schedule 1 to the Parliamentary Service Classification Rules;(iii) there were serious defects in the selection process; or(d) the assignment to the employee of duties that the employee could not reasonably be expected to perform.
11 Action relating to a decision by a Secretary, under subsection 43(4), not to include the name of an employee in a notice published in the Public Service Gazette.
(3) A Parliamentary Service action is not, or ceases to be, a reviewable action if:
(a) the affected employee has applied to have the action reviewed or dealt with by a court or tribunal; and
(b) the court or tribunal has jurisdiction to review or deal with the action.
(4) A Parliamentary Service action is not, or ceases to be, a reviewable action if the person who is, or would be, conducting the review considers that the action should not be reviewable for any of the following reasons:
(a) the application by the affected employee for review of the action is misconceived or lacking in substance;
(b) the application by the affected employee for review of the action is frivolous or vexatious;
(c) the affected employee has previously applied for review of the action under this Division;
(d) the affected employee has applied to have the action reviewed under Division 2 of this Part;
(e) the affected employee has applied, or could apply, to have the action reviewed by an external review body and review by the external review body would be more appropriate than review under this Division;
(f) the affected employee does not have sufficient direct personal interest in review of the action;
(g) review, or further review, of the action is not otherwise justified in all the circumstances.
Note 1: For the purposes of paragraph (e), examples of external review bodies include the Commonwealth Ombudsman, the Australian Information Commissioner and the Australian Human Rights Commission.
Note 2: For the purposes of paragraph (g), a review may not be justified because the applicant did not respond to a request under section 92 for further information about why the review is sought.
(5) A Parliamentary Service action mentioned in column 1 of an item in the following table is not, or ceases to be, a reviewable action if a circumstance mentioned in column 2 of the item applies in relation to the Parliamentary Service action.
Parliamentary Service actions that are not, or that cease to be, reviewable actions in particular circumstances
Item Column 1Parliamentary Service action Column 2Circumstance
1 Parliamentary Service action in relation to which an application for primary review was made to an affected employee’s Secretary under subsection 82(1) The application was not made within 120 days of the Parliamentary Service action occurring
2 Parliamentary Service action in relation to which an application for primary review was made to the Merit Protection Commissioner under paragraph 82(2)(a) The application was not made within 60 days of the determination that the affected employee has breached the Code of Conduct
3 Parliamentary Service action in relation to which an application for primary review was made to the Merit Protection Commissioner under paragraph 82(2)(b) The application was not made within 60 days of the sanction for breach of the Code of Conduct being imposed
4 Parliamentary Service action in relation to which an application for primary review was made to the Merit Protection Commissioner under subsection 82(3) The application was not made within 60 days of the Parliamentary Service action occurring
5 Parliamentary Service action in relation to which an application for secondary review was made to the Merit Protection Commissioner under paragraph 87(1)(a) The application was not made within 60 days of the affected employee being told that the Parliamentary Service action is not a reviewable action
6 Parliamentary Service action in relation to which an application for secondary review was made to the Merit Protection Commissioner under paragraph 87(1)(b) The application was not made within 60 days of the affected employee being told of the Secretary’s decision
7 Parliamentary Service action in relation to which an application for secondary review was made to the Merit Protection Commissioner The application for primary review of the action was an application referred to in item 1
(6) However, a Parliamentary Service action mentioned in column 1 of an item in the table in subsection (5) is a reviewable action if the person who is, or would be, conducting the review considers that there are exceptional circumstances explaining the failure to make an application for review of the Parliamentary Service action within the period mentioned in column 2 of the item.