7Rights under Part IV of the old Act—second tier

7 Rights under Part IV of the old Act—second tier (1) A second‑tier person is entitled to be engaged as an APS employee, in accordance with the regulations, within the time limits prescribed by the regulations. (2) Regulations made for the purposes of subsection (1) may prescribe exceptions to the entitlement. For reference, the definition of second-tier person is: second-tier person means: (a) a person to whom Division 3 of Part IV of the old Act applied immediately before the commencing time; or (b) a person who becomes a second-tier person under subsection 6 (6) of this Act. 3.6 Mobility rights of second-tier persons (1) Section 7 of the Act sets out rights of a second-tier person after the commencing time. (2) These Regulations set out additional rights. (3) A second-tier person has no other rights relating specifically to his or her status as a second-tier person after the commencing time. (4) However, if: (a) the transitional period for a first-tier person is described in subsection 6 (6) of the Act; and (b) the person resigns from the APS, or is taken to have resigned, before the end of that transitional period; the person does not become a second-tier person. Subdivision 3.2.2 End of second-tier status 3.7 Ceasing to be a second-tier person (1) A second-tier person who resumes duties in the APS ceases to be a second-tier person when the person resumes duties. > Note See Subdiv 3.2.3 and 3.2.4. (2) A second-tier person who resigns from his or her eligible public employment ceases to be a second-tier person when the resignation takes effect. (3) A second-tier person who retires from his or her eligible public employment ceases to be a second-tier person when the retirement takes effect. (4) If: (a) a second-tier person’s eligible public employment is related to the Commonwealth having a controlling interest in a body or thing; and (b) the Commonwealth ceases to have the controlling interest; the person ceases to be a second-tier person when the Commonwealth ceases to have the controlling interest. (a) a second-tier person’s eligible public employment is related to the ownership of a body or thing; and (b) the Commonwealth sells or otherwise disposes of the body or thing; the person ceases to be a second-tier person when the Commonwealth sells or otherwise disposes of the body or thing. Subdivision 3.2.3 Return to APS while second-tier person in certain circumstances 3.8 Engagement as APS employee For the purposes of subsection 7 (1) of the Act, a second-tier person who wishes to be engaged as an APS employee must: (a) apply for engagement within the time limit mentioned in regulation 3.9; and (b) be entitled to apply for engagement under regulation 3.10; and (c) be entitled to be considered for engagement under regulation 3.11; and (d) apply for engagement in accordance with regulation 3.12. 3.9 Time limit for engagement For the purposes of subsection 7 (1) of the Act, the period of 3 years, starting at the commencing time, is prescribed as the time limit within which a second-tier person is entitled to be engaged as an APS employee in accordance with this Subdivision. 3.10 Entitlement to apply for engagement A second-tier person is entitled to apply for engagement as an APS employee only if the person has been in the same eligible public employment at all times in the period described in regulation 3.9. 3.11 Entitlement to be considered for engagement (1) A second-tier person is entitled to be considered for engagement as an APS employee if the person’s employment in a public office is to be, or has been, terminated: (a) otherwise than on the ground of the person’s invalidity; and (b) before the expiration of the term for which the person was appointed. (2) A second-tier person is entitled to be considered for engagement as an APS employee if the person’s employment in a public office has been terminated upon the expiration of the term for which the person was appointed, and the person has not been: (a) re-appointed, or offered re-appointment, to the office; (b) appointed, or offered appointment, to another public office; or (c) employed, or offered employment, by a public authority. (3) A second-tier person is entitled to be considered for engagement as an APS employee if the person’s employment by a public authority is to be, or has been, terminated because the person is excess to the authority’s requirements. (4) A second-tier person is entitled to be considered for engagement as an APS employee if the person’s employment by a public authority is to be, or has been, terminated otherwise than on the ground of the person’s invalidity or by reason of the person’s resignation. (5) A second-tier person is entitled to be considered for engagement as an APS employee if a function previously carried out by the APS has been transferred to a public authority, and: (a) the employment that gave him or her the status of second-tier person included functions associated with the transfer; and (b) the person’s employment still includes those functions; and (c) the person’s career has been adversely affected because of a reduction in, or an alteration of, the functions or activities of the public authority. (6) However, a second-tier person is not entitled to be considered for engagement as an APS employee in any of the following circumstances: (a) the person’s employment by a public authority is to be, or has been, terminated on the ground of the person’s invalidity or by reason of the person’s resignation; (b) the person has received, or become entitled to, the payment of a redundancy benefit from an eligible public employer; (c) the person has ceased the employment that gave him or her the status of second-tier person because the person has reached the maximum age for that employment; (d) the person is to cease the employment that gave him or her the status of second-tier person because the person will reach the maximum age for that employment; (e) the person’s employment in a public office or by a public authority was terminated on a ground of misconduct, and the Agency Head is satisfied that the same conduct, if committed in the Agency Head’s Agency, would be a ground for termination under subsection 29 (3) of the new Act; (f) any other circumstance not mentioned in subregulations (1) to (5). 3.12 Form of application (1) A second-tier person must apply for engagement to the Agency Head of the Agency that corresponds to the Department in which the person last performed duties as an officer. (2) The application must: (a) be in writing; and (b) state the reason why the person claims to be entitled to be considered for engagement; and (c) include any additional information or statements required by this regulation; and (d) identify: (i) the person’s classification before the person started the person’s eligible public employment; and (ii) the place where the person last performed duties as an officer. (3) If the person is entitled to be considered for engagement because of subregulation 3.11 (1) or (2), the application must: (a) state whether the person’s employment in a public office is to be, or has been, terminated on the ground of the person’s misconduct; and (b) be made within: (i) 30 days after the day on which the person’s employment is terminated; or (ii) a further period that the Agency Head allows. (4) If the person is entitled to be considered for engagement because of subregulation 3.11 (3), the application must be made not later than 28 days after the later of: (a) the day on which the person became excess to the authority’s requirements; and (b) the day on which the person was notified that he or she was excess to the authority’s requirements. (5) If the person is entitled to be considered for engagement because of subregulation 3.11 (4), the application must: (a) state whether the person’s employment by a public authority is to be, or has been, terminated on the ground of the person’s misconduct; and (b) be made not later than 30 days after the later of: (i) the day on which the person’s employment is terminated; and (ii) the day on which the person was notified that the person’s employment was to be terminated. (6) If the person is entitled to be considered for engagement because of subregulation 3.11 (5), the application must be made within 30 days after the day on which the reduction in, or alteration of, the functions or activities of the public authority happened. 3.13 Decision on application (1) An Agency Head who receives an application by a second-tier person for engagement must decide the application within 28 days after receiving it. (2) However, if a second-tier person who makes an application resigns or retires from his or her eligible public employment, the Agency Head is to treat the application as having no effect. (3) The Agency Head must approve the application if the Agency Head is satisfied that the person: (a) applied for engagement within the time limit mentioned in regulation 3.9; and (b) is entitled to apply for engagement; and (c) is entitled to be considered for engagement; and (d) applied in accordance with regulation 3.12. (4) If the Agency Head is not satisfied about 1 or more of the matters in subregulation (3), the Agency Head must refuse the application. (5) The Agency Head must, as soon as practicable, notify the person in writing whether the application has been approved or refused. (6) The notification must also include the following information: (a) the nature of the duties that the person will perform on engagement; (b) the classification that the person will have on engagement; (c) the place where the person is to report for duty; (d) the day when the person is to report for duty; (e) the proposed salary rate applicable to the person. 3.14 Effect of approval (1) If an Agency Head approves an application for engagement under regulation 3.13, the second-tier person to whom the approval relates is entitled to be engaged, by the Agency Head, as an ongoing APS employee: (a) if the person reports for duty in accordance with regulation 3.17; and (b) with effect from the time worked out in accordance with that regulation. (2) The Agency Head, and the Agency, have no liability for any salary, allowances or other remuneration in respect of the person for the period before the person reports for duty. 3.15 Duties (1) If an Agency Head approves an application by a second-tier person for engagement, the Agency Head must comply with this regulation as part of determining the person’s duties for the purposes of section 25 of the new Act. (2) The Agency Head must determine the person’s duties on the basis of: (a) the person’s corresponding classification for the purposes of section 5 of the Act; or (b) if the classification no longer exists — an equivalent classification determined by the Agency Head. (3) However, subregulation (4) applies if: (a) a second-tier person was entitled to be considered for engagement as an APS employee because the person’s employment by a public authority was to be, or had been, terminated because the person is excess to the authority’s requirements; and (b) an Agency Head accepts the person’s application for engagement. (4) The Agency Head: (a) is to regard the person as excess to the Agency’s requirements at the time the person is engaged; and (b) is not required to determine the person’s duties in the Agency, for the purposes of section 25 of the new Act, until the Agency Head is satisfied that there is an operational requirement that justifies determining duties. 3.16 Person excess to requirements (a) a second-tier person was entitled to be considered for engagement as an APS employee because the person’s employment by a public authority was to be, or had been, terminated because the person is excess to the authority’s requirements; and (b) an Agency Head accepts the person’s application for engagement; and (c) the Agency Head does not determine the person’s duties in the Agency, for the purposes of section 25 of the new Act, because the Agency Head is satisfied that there is an operational requirement that justifies determining duties. (2) For the period during which the person’s duties are not determined, the person is subject to the procedures in force in the Agency for dealing with APS employees who are excess to the Agency’s requirements. (3) Despite subregulation (2), if the person: (a) was offered a redundancy package, or an arrangement of similar effect, as part of the person’s employment by a public authority; and (b) declined to accept the offer; the person is not entitled to be offered a redundancy package, or an arrangement of similar effect, by or on behalf of the Agency Head. (4) Despite subregulation (2), the period during which the person was excess to the authority’s requirements is to be counted as time during which the person is taken to be excess to the Agency’s requirements. (5) Despite subregulation (2), if: (a) the period during which the person is taken to be excess to the Agency’s requirements is greater than the period allowed under the procedures in force in the Agency for dealing with APS employees who are excess to the Agency’s requirements; or (b) there is no minimum period for the person to be excess to the Agency’s requirements under the procedures; the Agency Head is entitled to terminate the person’s engagement as an APS employee in accordance with section 29 of the new Act and the procedures in force in the Agency. 3.17 Reporting for duty (1) A second-tier person who is engaged as an APS employee must report for duty in accordance with this regulation. (2) The person is not entitled to report for duty until the person has ceased his or her eligible public employment. (3) The person must report for duty within 28 days after the day on which the person is notified under subregulation 3.13 (5) that his or her application for engagement has been approved. (4) If the person: (a) ceases his or her eligible public employment; and (b) reports for duty within the 28 days; the person is entitled to be engaged as an ongoing APS employee. (5) The engagement takes effect as follows: (a) the person is taken to have been engaged with effect from the day after the day when the person ceased his or her eligible public employment; (b) the person is taken to have been engaged at the classification mentioned in the notification under subregulation 3.13 (5); (c) the person is taken to have been granted leave without pay for the period: (i) starting when the person is taken to have been engaged; and (ii) ending immediately before the day when the person reports for duty. (6) The person’s entitlement to accrued recreation leave credits and sick leave credits, and to future credits, is to be worked out in accordance with: (a) the certified agreement or Australian workplace agreement in force in the Agency; or (b) if there is no agreement — a determination by the Agency Head. (7) The person ceases to be entitled to be engaged as an ongoing APS employee if: (a) the person: (i) does not cease his or her eligible public employment by the end of the 28 days mentioned in subregulation (3); or (ii) does not report for duty within the 28 days; and (b) the person has not been granted leave by the Agency Head for the period starting after the 28 days. Subdivision 3.2.4 Return to APS by application for employment opportunity 3.18 Return (1) Nothing in this Division prevents a first-tier person or a second-tier person from applying for engagement in the APS to perform duties other than those that the person would perform if the person returned to the APS in accordance with Subdivision 3.1.4 or 3.2.3. (2) The application is to be considered on its merits, without any regard to the person’s status as a first-tier person or a second-tier person. (3) However, the person is not entitled to be engaged until the person has ceased his or her eligible public employment. Part 4 Transitional provisions relating to the application of the Merit Protection Act 4.1 Definition for Part 4 In this Part: > Agency means the Merit Protection and Review Agency established under section 5 of the Merit Protection Act. 4.2 Continued application of the Merit Protection Act for certain purposes (1) This Part provides for the Merit Protection Act to continue in force after the commencing time for certain purposes. (2) However, the functions of the Merit Protection and Review Agency under the Merit Protection Act as it is continued in force are to be performed by: (a) the Merit Protection Commissioner appointed, or taken to be appointed, under the new Act; or (b) a delegate of the Merit Protection Commissioner. (3) If a provision of this Part (other than subregulation (2)) refers to the Merit Protection Commissioner, the reference includes a reference to a delegate of the Merit Protection Commissioner. (4) The Merit Protection (Australian Government Employees) Regulations are continued in force to the extent necessary for the continued operation of the Merit Protection Act under this Part. 4.3 Promotion Appeal Committee matters (1) This regulation applies if an appeal mentioned in paragraph 9 (a) of the Merit Protection Act: (a) was made, but not completed, before the commencing time; or (b) was made after the commencing time under these Regulations. (2) This regulation also applies if an appeal mentioned in paragraph 9 (b) of the Merit Protection Act: (a) was made, but not completed, before the commencing time; or (b) relates to a direction notified under regulation 116B of the old Regulations not more than 14 days before the commencing time. (3) The Merit Protection Act continues in force to allow for the determination of the appeal. 4.4 Disciplinary Appeal Committee matters The Merit Protection Act continues in force to allow for the determination of any appeals, under Division 6 of Part III of the old Act, in relation to disciplinary matters to which the old Act continues to apply. > Note See Pt 2 for disciplinary matters to which the old Act continues to apply. 4.5 Redeployment and Retirement Appeal Committee matters The Merit Protection Act continues in force to allow for the determination of any appeals, under Division 8C of Part III of the old Act, in relation to redeployment and retirement matters to which the old Act continues to apply. > Note See Pt 2 for redeployment and retirement matters to which the old Act continues to apply. 4.6 Re-appointment Review Committee matters The old Act and the Merit Protection Act continue in force to allow for: (a) the determination by a Re-appointment Review Committee of any application referred to the committee under Division 3 of Part IV of the old Act; and (b) any related re-appointment. 4.7 Re-integration Assessment Committee matters (application for determination made before commencing time) (1) This regulation applies if, before the commencing time, a person employed under the Members of Parliament (Staff) Act 1984 (the MoPS Act) applied for a determination to be made under section 17 or 24 of the MoPS Act. (2) Despite the repeal of sections 17 and 24 of the MoPS Act by Schedule 1 to the Act: (a) the determination may be made as if the MoPS Act were still in force; and (b) the Merit Protection Act continues in force to allow for the determination of the application by a Re-integration Assessment Committee. (3) A determination made in respect of the application takes effect, or is taken to have taken effect, when the employment to which it relates terminates, or was terminated, under section 16 or 23 of the MoPS Act. (4) Section 5 of the Act has effect in accordance with the determination. > Note See para 14 (3) (a) of the Act. 4.8 Re-integration Assessment Committee matters (no application for determination made before commencing time) (a) a person’s employment under the MoPS Act was terminated under section 16 or 23 of the MoPS Act; and (b) the person had not applied for a determination to be made under section 17 or 24 of the MoPS Act. (2) Despite the repeal of sections 17 and 24 of the MoPS Act by Schedule 1 to the Act: (a) the person may apply for a determination to be made; and (b) the determination may be made as if the MoPS Act were still in force; and (c) the Merit Protection Act continues in force to allow for the determination of the application by a Re-integration Assessment Committee. (3) However, the application must be made to the Merit Protection Commissioner: (a) before the end of 30 days after the employment is terminated; or (b) if the Merit Protection Commissioner allows a longer period, before the end of the longer period allowed. (4) If the person applies for a determination, the determination takes effect, or is taken to have taken effect, when the employment to which it relates terminates, or was terminated, under section 16 or 23 of the MoPS Act. (5) Section 5 of the Act has effect in accordance with the determination. > Note See para 14 (3) (a) of the Act. 4.9 Other appeals The Merit Protection Act continues in force until the end of 4 December 2000 to allow for the determination of an appeal mentioned in any of the following provisions of the Merit Protection Act, made before or after the commencing time: (a) section 15 (certain promotion appeals); (b) section 21 (certain disciplinary appeals); (c) section 26A (certain redeployment or retirement appeals). 4.10 Matters before other committees (a) a committee was established under section 35A of the Merit Protection Act to perform stated functions; and (b) the committee had not fully performed the functions. (2) The Merit Protection Act continues in force to allow the committee to continue in existence and perform the functions. (a) a request was made to the Agency under section 35A of the Merit Protection Act to perform stated functions; and (b) a committee had not been established in relation to the request; and (b) if the request is approved, the performance of the functions by the Merit Protection Commissioner. 4.11 Joint Selection Committees (1) This regulation applies if a Joint Selection Committee is: (a) in existence immediately before the commencing time; or (b) established after the commencing time. > Note See r 2.11 for circumstances in which a Joint Selection Committee may be established after the commencing time. (2) The Merit Protection Act continues in force until the end of 4 December 2000 to allow the committee to continue in existence and perform its functions. 4.12 Review of decisions under Division 3 of Part II of the Merit Protection Act (application made before commencing time) (a) an application for review of a decision under Division 3 of Part II of the Merit Protection Act was made under section 39 of the Merit Protection Act; and (b) the application had not been determined. (2) The Merit Protection Act continues in force to allow for the review and implementation of the decision under Division 3 of Part II of the Merit Protection Act by the Merit Protection Commissioner. 4.13 Review of decisions under Division 3 of Part II of the Merit Protection Act (application authorised after commencing time) (1) This regulation applies if, under these Regulations, an application for review of a decision under Division 3 of Part II of the Merit Protection Act may be made under section 39 of the Merit Protection Act after the commencing time. (2) The Merit Protection Act continues in force to allow for the review and implementation of the decision under Division 3 of Part II of the Merit Protection Act by the Merit Protection Commissioner. 4.14 Review of other decisions under Division 3 of Part II of the Merit Protection Act (a) an application for review of a decision under Division 3 of Part II of the Merit Protection Act may be made under section 39 of the Merit Protection Act; and (b) the application is authorised in a way that is not described in regulation 4.12 or 4.13. > Note Review under the Merit Protection Act may be authorised by an enactment other than the Merit Protection Act or these Regulations. (2) The Merit Protection Act continues in force until the end of 4 December 2000 to allow for the review and implementation of the decision under Division 3 of Part II of the Merit Protection Act by the Merit Protection Commissioner. 4.15 Grievances (old Regulations) (a) a request was made under regulation 83 of the old Regulations for investigation of an action by an authority; and (b) the investigation had not commenced or, if commenced, had not been completed. (2) The old Regulations continue in force to allow for the completion of the investigation by the relevant Agency Head (including the taking of any action mentioned in subregulations 83 (5), (6) and (7) by the Agency Head or the Merit Protection Commissioner). (a) an application for investigation of an action was made under regulation 83 of the old Regulations by an officer aggrieved by the action; and (b) an application was made under regulation 84 of the old Regulations for the investigation of that action because the officer remained aggrieved by the action; and (c) the investigation for the purposes of regulation 84 had not been completed. (4) The old Regulations, and the Merit Protection Act, continue in force to allow for any of the following matters: (a) the giving of documents mentioned in paragraph 85 (a) of the old Regulations by an Agency Head to the Merit Protection Commissioner; (b) the giving of documents mentioned in paragraph 85 (b) of the old Regulations by an Agency Head to the applicant; (c) the obligation under regulation 86 of the old Regulations to carry out an official direction; (d) the making of a decision by the Merit Protection Commissioner not to investigate, or not to investigate further; (e) the completion of the investigation, and the making of a report, under Division 4 of Part II of the Merit Protection Act by the Merit Protection Commissioner. (5) Subregulation (6) applies if, before the commencing time: (a) an application for investigation of an action was made under regulation 83 of the old Regulations by an officer aggrieved by the action; and (b) an application had not been made under regulation 84 of the old Regulations for the investigation of that action. (6) The old Regulations, and the Merit Protection Act, continue in force to allow for any of the following matters: (a) the making of an application under regulation 84; (b) the giving of documents mentioned in paragraph 85 (a) of the old Regulations by an Agency Head to the Merit Protection Commissioner; (c) the giving of documents mentioned in paragraph 85 (b) of the old Regulations by an Agency Head to the applicant; (d) the obligation under regulation 86 of the old Regulations to carry out an official direction; (e) the making of a decision by the Merit Protection Commissioner not to investigate, or not to investigate further; (f) the completion of the investigation, and the making of a report, under Division 4 of Part II of the Merit Protection Act by the Merit Protection Commissioner. 4.16 Grievances (Merit Protection Act) (a) an application was made under section 50 of the Merit Protection Act for investigation of an action; and (b) the investigation had not been completed. (2) The Merit Protection Act continues in force to allow for: (a) the making of a decision by the Merit Protection Commissioner not to investigate, or not to investigate further; or (b) the completion of the investigation, and the making of a report, under Division 4 of Part II of the Merit Protection Act by the Merit Protection Commissioner. 4.17 Other grievances (a) an application for review in accordance with Division 4 of Part II of the Merit Protection Act may be made; and (b) the application is authorised in a way that is not described in regulation 4.15 or 4.16. > Note Review under the Merit Protection Act may be authorised by an enactment other than the Merit Protection Act or these Regulations. (2) The Merit Protection Act continues in force until the end of 4 December 2000 to allow for the review in accordance with Division 4 of Part II of the Merit Protection Act by the Merit Protection Commissioner. 4.18 Inquiries (a) an inquiry was commenced under section 56 of the Merit Protection Act; and (b) the inquiry had not been completed. (2) The Merit Protection Act continues in force to allow for the conduct and completion of the inquiry by the Merit Protection Commissioner. (a) a request was made to the Agency under section 56 of the Merit Protection Act to conduct an inquiry; and (b) the inquiry had not commenced; and (b) if the request is approved, the conduct of the inquiry by the Merit Protection Commissioner. 4.19 Provision of advice on grievances and appeals (1) The Merit Protection Act continues in force until the end of 4 December 2000 to allow the Merit Protection Commissioner to provide advice that was requested under subsection 57 (1) of the Merit Protection Act before the commencing time. (2) The Merit Protection Act continues in force until the end of 4 December 2000 to allow for: (a) the making of requests to the Merit Protection Commissioner for advice under subsection 57 (1) of the Merit Protection Act after the commencing time; and (b) the provision of the advice. 4.20 Performance of functions on request (a) functions were being performed in response to a request made to the Agency under section 57A of the Merit Protection Act; and (b) the functions had not been fully performed. (2) The Merit Protection Act continues in force to allow for the performance of the functions by the Merit Protection Commissioner. (a) a request was made to the Agency under section 57A of the Merit Protection Act to perform stated functions; and (b) the functions had not been performed; and (b) if the request is approved, the performance of the functions by the Merit Protection Commissioner. 4.21 Merit Protection Commissioner (1) This regulation applies to the person who is, under subsection 5 (3) of the Act, the Merit Protection Commissioner under the new Act. (2) Until a determination is made under section 53 of the new Act, the appointment is taken to be subject to the terms and conditions applying to the person’s appointment under the Merit Protection Act immediately before the commencing time (including those provided for under Remuneration Tribunal Determination 1999/05). 4.22 Final annual report (1) The Merit Protection Act continues in force to allow for the preparation of a report on the Agency’s operations during the period starting on 1 July 1999 and ending at the commencing time. (2) The information required by subsection 83 (3) of the Merit Protection Act to be included in a report as at 30 June in a year, is to be included in the report as at the commencing time. (3) The report must be given to the Minister no later than the time the Merit Protection Commissioner gives the first report under section 51 of the new Act to the Public Service Minister. Part 5 Continuity of certain delegations, authorisations and instruments after commencing time 5.1 Purpose of Part 5 (1) This Part makes arrangements to preserve the effectiveness of delegations made under Commonwealth laws. (2) This Part also makes arrangements to preserve the effectiveness of authorisations given in respect of powers and functions conferred by Commonwealth laws. (3) This Part also makes arrangements to preserve the effectiveness of other instruments relating to delegations and authorisations. 5.2 Definitions for Part 5 In this Part: > Commonwealth law includes: (a) an Act or regulation; and (b) another instrument issued under or created pursuant to an Act or regulation; and (c) a State or Territory law under which powers or functions could be delegated to a Commonwealth officer or employee before the commencing time. > delegation includes a sub-delegation. > Secretary has the meaning given by subsection 7 (1) of the old Act. > Note Under the old Act, a Secretary was a person for the time being holding, or performing the duties of: > Note: (a) an office (other than an office that was abolished or the name of which was altered) the name of which was specified, or deemed by virtue of subs 25 (1) of the old Act to be specified, in Sch 3 to the old Act; or > Note: (b) an office the holder of which had, under the old Act or another Act, in relation to a branch or part of the Service, the powers of, or exercisable by, a Secretary. 5.3 Delegations by persons who are Agency Heads or delegates (a) a Secretary of an old Act Department delegated a power or function, under a Commonwealth law; and (2) At the commencing time, the delegation is taken to have been made by the person who was, at that time, the Agency Head of the corresponding Agency. (3) Subregulation (4) applies if a Secretary issued an instrument, before the commencing time, that: (a) purports to have been issued under the new Act; and (b) relates to the preservation of a delegation mentioned in subregulation (1). (4) The instrument continues in force, and is taken to have been issued by the person in the capacity of an Agency Head. (a) a person delegated a power or function as the delegate of a Secretary of an old Act Department; and (b) the delegation is described in paragraph (1) (b); the delegation is taken to have been made by the person at the commencing time. 5.4 Authorisations by persons who are Agency Heads or delegates (a) a Secretary of an old Act Department gave an authorisation, in respect of a power or function conferred by a Commonwealth law; and (2) At the commencing time, the authorisation is taken to have been given by the person who was, at that time, the Agency Head of the corresponding Agency. (3) Subregulation (4) applies if a Secretary issued an instrument, before the commencing time, that: (a) purports to have been issued under the new Act; and (b) relates to the preservation of an authorisation mentioned in subregulation (1). (4) The instrument continues in force, and is taken to have been issued by the person in the capacity of an Agency Head. (a) a person gave an authorisation as the delegate of a Secretary of an old Act Department; and (b) the authorisation is described in paragraph (1) (b); the authorisation is taken to have been given by the person at the commencing time. 5.5 Delegations by reference to offices or positions created under the old Act (a) a delegation was made under a Commonwealth law other than the Maternity Leave (Commonwealth Employees) Act 1973 or the Long Service Leave (Commonwealth Employees) Act 1976; and (c) the delegation identifies a delegate who was an old Act officer, or an old Act employee other than an overseas engaged employee; and (d) the delegation identifies that delegate by reference to holding, or performing the duties of, or words of similar effect: (i) an office, in an old Act Department, created under the old Act (however described); or (ii) a position (the old position) in an old Act Department (however described). (2) The reference to the office or old position is taken to be a reference to a position (the new position) in the corresponding Agency that is taken to have been created by the Agency Head under subsection 77 (1) of the new Act at the commencing time. (3) If the office or old position was identified by a number, the new position has the same number. (4) If the office or old position was identified by a title or another unique identifier, the new position has the same title or identifier. (5) The person who held the office, performed the duties of the office, or performed the duties of the old position, immediately before the commencing time is taken to be the person nominated under subsection 77 (2) of the new Act to occupy the new position. 5.6 Delegations by reference to classifications (a) a delegation was made under a Commonwealth law other than the Maternity Leave (Commonwealth Employees) Act 1973 or the Long Service Leave (Commonwealth Employees) Act 1976; and (c) the delegation identifies a delegate by reference to the delegate’s classification and Department under the old Act. (2) The reference to the delegate is taken to be a reference to an APS employee: (b) with a corresponding classification. > Note Delegations identified by classification will be preserved whether or not a delegate was employed prior to the commencing time. 5.7 Authorisations by reference to offices or positions created under the old Act (a) an authorisation was given to a person in respect of a power or function conferred by a Commonwealth law; and (c) the authorisation identifies an authorised person who was an old Act officer, or an old Act employee other than an overseas engaged employee; and (d) the authorisation identifies that authorised person by reference to holding, or performing the duties of, or words of similar effect: (i) an office created under the old Act (however described); or (ii) a position (the old position) (however described). (2) The reference to the office or old position is taken to be a reference to a position (the new position) that is taken to have been created by the Agency Head under subsection 77 (1) of the new Act at the commencing time. (3) If the office or old position was identified by a number, the new position has the same number. (4) If the office or old position was identified by a title or another unique identifier, the new position has the same title or identifier. (5) The person who held the office, performed the duties of the old office, or performed the duties of the old position, immediately before the commencing time is taken to be the person nominated under subsection 77 (2) of the new Act to occupy the new position. 5.8 Authorisations by reference to classifications (a) an authorisation was given to a person in respect of a power or function conferred by a Commonwealth law; and (c) the authorisation identifies an authorised person by reference to the person’s classification and Department under the old Act. (2) The reference to the authorised person is taken to be a reference to an APS employee: (b) with a corresponding classification. > Note Authorisations identified by classification will be preserved whether or not an authorised person was employed prior to the commencing time. 5.9 Delegations to overseas engaged employees (a) a power or function was delegated under a Commonwealth law to an overseas engaged employee in an old Act Department; and (2) The employee continues to hold the delegation, in the capacity of a locally engaged employee, until: (a) the delegation is revoked; or (b) he or she ceases to be a locally engaged employee in the corresponding Agency. > Note At the commencing time, an overseas engaged employee is treated as if he or she were a locally engaged employee under the Public Service Act 1999: see subs 5 (9) of the Public Employment (Consequential and Transitional) Amendment Act 1999. 5.10 Authorisations to overseas engaged employees (a) an authorisation was given to an overseas engaged employee in an old Act Department in respect of a power or function conferred by a Commonwealth law; and (2) The employee continues to hold the authorisation, in the capacity of a locally engaged employee, until: (a) the authorisation is revoked; or (b) he or she ceases to be a locally engaged employee in the corresponding Agency. > Note At the commencing time, an overseas engaged employee is treated as if he or she were a locally engaged employee under the Public Service Act 1999: see subs 5 (9) of the Public Employment (Consequential and Transitional) Amendment Act 1999. Part 6 Other transitional provisions 6.1 Amendments of Acts For subsection 14 (5) of the Act: (a) the Administrative Decisions (Judicial Review) Act 1977 is amended as set out in Part 1 of Schedule 1; and (b) the Australian Capital Territory Government Service (Consequential Provisions) Act 1994 is amended as set out in Part 2 of Schedule 1; and (c) the Commonwealth Authorities and Companies Act 1997 is amended as set out in Part 3 of Schedule 1; and (d) the Commonwealth Electoral Act 1918 is amended as set out in Part 4 of Schedule 1; and (e) the Director of Public Prosecutions Act 1983 is amended as set out in Part 5 of Schedule 1; and (f) the Federal Magistrates Act 1999 is amended as set out in Part 6 of Schedule 1; and (g) the Members of Parliament (Staff) Act 1984 is amended as set out in Part 7 of Schedule 1; and (h) the Remuneration Tribunal Act 1973 is amended as set out in Part 8 of Schedule 1; and (i) the Safety, Rehabilitation and Compensation Act 1988 is amended as set out in Part 9 of Schedule 1; and (j) the Superannuation Act 1976 is amended as set out in Part 10 of Schedule 1. 6.2 Continued operation of section 80 of Merit Protection (Australian Government Employees) Act 1984 Section 80 of the Merit Protection (Australian Government Employees) Act 1984 continues to apply to any action taken under that section before the commencing time, as if that Act had not been repealed.