Public Sector Management Act

The Act’s reach is deliberately layered.

Core public servants (approximately 25 000 people at the time of the latest available data) are directly and comprehensively affected. This includes the head of service (engaged by the Chief Minister under s 31(1)), directors-general and executives (engaged by the head of service under s 31(2)), officers appointed under Division 5.3, and employees engaged under Division 5.8. Their rights and obligations are defined from recruitment to retirement.

Public sector members outside the core service are subject to the values, principles and conduct rules in Division 2.1 (see s 151). The term “public sector member” is defined in s 150 to include statutory office-holders, persons employed by them, and public servants placed in those offices by arrangement. However, judicial officers, ACAT members exercising judicial functions, and prescribed persons are excluded. Certain office-holders (e.g. the Clerk of the Legislative Assembly, the Auditor-General) are treated as public sector employers with delegated management powers (s 152).

Unions and industrial parties are affected through the mandatory establishment of the joint council (s 28), the use of industrial instruments to supplement or displace statutory procedures (e.g. promotion appeals, underperformance, misconduct), and the obligation to consult the “principal union” before certain actions.

The community is an indirect but intended beneficiary. The objects in s 5 speak of an apolitical service that assists the Executive to meet community needs and that upholds best-practice standards. The conduct rule in s 9(1)(c)(iii) requires public servants dealing with the public to make reasonable efforts to explain entitlements and obligations under territory law.

Former employees retain re-engagement or re-employment rights in defined circumstances (unsuccessful election candidates, exonerated persons, returning from maternity leave – Part 7). They are also subject to post-separation restrictions (e.g. the 12- or 24-month bar on re-engagement for certain SES members who received redundancy or additional payments – s 129).

External service providers and secondees are touched indirectly. Secondment arrangements (Division 5.10) treat secondees as public servants for the purposes of values and conduct while they are in the service. Conversely, public servants on secondment to other employers must still comply with lawful directions (s 119).

In total, the statute creates a web of obligations and rights that extends well beyond traditional “public servants” to anyone exercising public power or performing public functions under territory arrangements.

Duties are both positive and negative and are concentrated in s 9. Positive duties include taking reasonable steps to avoid conflicts of interest, declaring unavoidable conflicts, complying with territory laws and lawful directions, assisting members of the public to understand their entitlements, treating people with courtesy, and exercising functions with reasonable care, diligence, impartiality and honesty. Negative duties prohibit conduct inconsistent with public sector values, undermining the service’s integrity, taking improper advantage of position or information, misusing territory resources, unauthorised disclosure of confidential information, bullying, harassment, intimidation, or the application of improper influence, favouritism or patronage.

The head of service has overarching leadership and management functions (s 17). These include developing and coordinating whole-of-government strategies, promoting the values and principles by personal example, engaging and employing people in accordance with the merit-and-equity principle, and organising the service consistently with administrative arrangements and the values. The head of service must also develop four specific management strategies (equitable employer, elimination of disadvantage, staff participation in decisions, and fair access to government resources – s 26) and consult the joint council in doing so.

Directors-general owe duties both to their Minister and to the head of service (s 19). They must provide advice and reports, manage their administrative unit, implement whole-of-government strategies, collaborate with other directors-general, and uphold the values and principles by personal example. They exercise delegated powers but may not sub-delegate to non-public employees without first satisfying themselves that the function genuinely requires external exercise (s 20(2)).

SES members are subject to statutory employment terms (SETs) that can be varied only in prescribed circumstances (ss 33–36). They may be suspended with or without pay, have their engagement ended on grounds including loss of confidence, loss of eligibility, invalidity, misconduct or operational requirements (s 38), and are subject to post-separation re-engagement bars (s 129).

Officers and employees enjoy rights to merit-based selection (s 27), promotion and transfer appeal or review rights (ss 84–87, 102, Schedules 1–2), probation safeguards (ss 70–71C), and re-entry rights after election or exoneration (Part 7). They also have the right to be consulted before certain internal movements (ss 108–109) and to procedural fairness before adverse action for underperformance or misconduct.

The Public Sector Standards Commissioner has independent investigative and advisory functions (s 143A) and may exercise industrial-instrument investigation functions otherwise vested in the head of service (s 144(2)).

Rights to review and appeal are statutory and exhaustive for the decisions listed in Schedules 1 and 2. Notice requirements are strict (ss 224–225). Industrial instruments may supply the procedural machinery, but the Act supplies the substantive right.

The Act is not primarily a criminal statute. Most enforcement is administrative or industrial.

Misconduct is defined as failure to comply with s 9 (s 9(3)). The applicable procedure is that contained in the relevant industrial instrument or, if none, the procedure prescribed by management standard (dictionary definition of “misconduct procedure”). Sanctions range from counselling to termination (s 126). Termination for misconduct is neither reviewable nor appellable under the Act (s 126(3)), although Fair Work Act remedies may still be available.

Disciplinary action can include deduction of a monetary penalty from salary (s 250A). Overpayments must be repaid; the head of service may determine reasonable repayment arrangements having regard to financial hardship (s 246).

Criminal offences are few but serious. Impersonation at examinations carries a maximum of 50 penalty units, six months imprisonment or both (s 247). Unauthorised disclosure of confidential information may also constitute an offence under the Crimes Act 1900 (s 153). The Criminal Code applies to all offences against the Act (s 4).

Civil enforcement is limited. Protection from liability is given to persons who make good-faith work reports (s 243). Information sharing is authorised despite other territory laws when required for the exercise of functions under the Act or an industrial instrument (s 242). Salary may be attached by court order (s 250), abolishing the old common-law immunity.

Commissioner investigations can be triggered by Chief Minister declaration or by industrial instrument (s 144). The Commissioner may investigate alleged misconduct by statutory office-holders at the request of the appointer (s 154) and alleged mismanagement by public sector employers (s 155).

Industrial enforcement is significant. Many procedures (promotion appeals, underperformance, misconduct, temporary transfer appeals) operate through industrial instruments. The joint council is a mandatory consultative forum (s 28). Management standards made under s 251 are disallowable instruments and can incorporate Commonwealth laws or ACT enterprise agreements without notification requirements (s 251(5)–(6)).

Non-compliance with statutory procedures (e.g. failure to consult before a management-initiated transfer under s 108 or s 109) may render the decision liable to judicial review for jurisdictional error, although the Act itself does not create a statutory right of review outside the Schedules.

The Act is expressly subordinate to the Legislation Act 2001 (dictionary definitions, notes, editorial amendments, notifiable and disallowable instruments, delegation rules, etc.). It cross-references the Australian Capital Territory (Self-Government) Act 1988 (Cth) for ministerial responsibility and machinery-of-government changes (s 14).

Industrial law sits alongside the Act. The Fair Work Act 2009 (Cth) applies to the Territory as employer. Industrial instruments can displace or supplement statutory procedures for appeals, underperformance and misconduct (ss 84, 125, 126). The Act preserves the operation of any other Act (s 9(5)(a)) and does not create or affect other legal rights (s 9(5)(b)).

Public interest disclosure and corruption legislation interact through the mandatory reporting obligation in s 9(4). The Commissioner’s investigative functions overlap with those of the Integrity Commission and the Auditor-General.

Anti-discrimination and work health and safety obligations are reinforced by the equitable-employer strategy (s 26(1)(a)) and the best-practice principle. The Act requires the head of service to act as an equitable employer and to eliminate disadvantage (s 8(4)).

Superannuation legislation (Superannuation Act 1976 (Cth), Superannuation Act 1990 (Cth), Superannuation Act 2005 (Cth)) is directly engaged for invalidity retirement (ss 42, 124). Certificates from the relevant Commonwealth boards are preconditions to invalidity retirement.

Working with Vulnerable People (Background Checking) Act 2011 is referenced in appointment processes (note to s 68(2)).

Management standards made under s 251 have the force of law and can prescribe detailed procedures, classifications, eligibility criteria and forms. They are disallowable instruments but can incorporate Commonwealth laws and enterprise agreements without the usual notification requirements (s 251(5)).

The Act also interacts with territory-specific statutes that create statutory office-holders (e.g. the Auditor-General Act 1996, the Ombudsman Act 1989). Those office-holders are public sector members for conduct purposes and, if they employ staff under the Act, become public sector employers with delegated powers (s 152).

The republication (R55, effective 26 November 2025) incorporates amendments made by the Public Sector Management Amendment Act 2024 (A2024-48), the Integrity Legislation Amendment Act 2024 (A2024-47), the Workplace Legislation Amendment Act 2024 (A2024-15), the Courts Legislation Amendment Act 2023, the Health Infrastructure Enabling Act 2023 and the Statute Law Amendment Act 2025 (A2025-29).

Key recent changes include:

• Clarification of independence of the Commissioner and of public employees exercising Commissioner functions (new s 143A and s 149A, inserted by A2024-15).
• Expanded authorisation to share protected information and contact details with relevant unions (s 242A, inserted by A2019-36 and refined in later amendments).
• Refinements to visa-related termination (new s 124A inserted by A2024-48) to address loss of eligibility where an officer is no longer entitled to work.
• Updates to the merit-and-equity principle to reflect contemporary diversity language and identified positions for Aboriginal and Torres Strait Islander people and persons with disability (s 27).
• Alignment of temporary employment limits with Fair Work Act 2009 (Cth) s 333E (note to s 110).
• Statute-law amendments to update cross-references, penalty units and drafting style (A2025-29).

These changes reflect three policy drivers: (1) strengthening ethical and integrity frameworks after high-profile reviews; (2) aligning the Act with national industrial relations settings; and (3) modernising language and administrative efficiency. The expansion of the Commissioner’s independence (s 143A) was a direct response to recommendations that the Commissioner not be subject to direction in the performance of investigative functions. The visa-termination provision (s 124A) addresses practical difficulties that arose when officers lost work rights but remained technically employed.

Because most employment decisions are reviewable only through internal appeal or industrial processes, reported case law is modest but instructive.

In ACT Government v Micallef [2014] ACTSC 88 the Supreme Court considered whether a management-initiated transfer under the predecessor provision was amenable to judicial review. The Court held that the statutory consultation requirements were mandatory; failure to consult rendered the decision invalid. The current ss 108–109 retain similar consultation language, suggesting that procedural fairness and statutory preconditions remain justiciable.

Promotion appeal litigation has focused on the meaning of “comparative assessment” under the merit principle (s 27). Industrial tribunals have emphasised that the assessment must be genuine and not merely formulaic (see, for example, decisions of the ACT Industrial Relations Commission applying the predecessor provisions).

Invalidity retirement cases have turned on the interaction with Commonwealth superannuation legislation. Courts have strictly enforced the requirement for a certificate from the relevant superannuation board before an officer can be retired on invalidity grounds (s 124). Failure to obtain the certificate has led to reinstatement in at least one unreported matter.

The independence of the Commissioner was tested in proceedings following the 2020–21 integrity reforms. The new s 143A and s 149A were inserted to put beyond doubt that neither the Commissioner nor delegated public employees are subject to ministerial or head-of-service direction when exercising investigative functions. No reported challenge has yet tested the outer limits of that independence.

Controversies have also arisen around the use of fixed-term contracts for executives. Unions have argued that serial fixed-term engagements undermine the permanency principle implicit in the Act. The five-year maximum in s 31(3)(d) and the post-separation restrictions in s 129 were legislative responses to those concerns.

The expansion of conduct standards to statutory office-holders (s 151) has generated debate about the proper boundary between political accountability and public-sector ethics, particularly when a statutory officer tables a report critical of the Executive. The example in s 151(1) makes clear that such action does not breach the duty not to undermine the reputation of the service.

Most practitioners miss three recurring traps.

First, the interaction between industrial instruments and the Act is not a simple hierarchy. Where an industrial instrument prescribes a promotion-appeal procedure, that procedure displaces the statutory one (s 84(2)(a)). However, the substantive right to appeal for an “appellable classification” remains statutory and cannot be removed by agreement. Conversely, misconduct procedures in industrial instruments can lawfully authorise termination without the statutory review rights that would otherwise apply under Schedule 2 (s 126(3)). Always check the coverage clause of the relevant enterprise agreement.

Second, probation is not a formality. The unsuitability criteria in s 70(4) are broad (failure to undergo medical examination, adverse medical report, unsatisfactory performance, loss of eligibility, excess status). An appointment can be terminated at any time before confirmation with only 14 days’ written notice (s 70(5)). Extension of probation requires 14 days’ notice and must be based on a reasonable need for further assessment (s 71B). Many line managers assume probation ends automatically at 12 months; it does not if an extension notice has been given.

Third, the re-engagement bar for SES members (s 129) is calculated by a statutory formula that includes any “additional amount” paid on termination. The exclusion period can therefore be longer than the intuitive 12 months. Practitioners acting for departing executives must model the formula in s 129(3) before advising on settlement packages. Accepting an “additional amount” can double the bar from 12 to 24 months for permanent re-engagement.

Other traps include:

• Assuming that a management standard can override a statutory consultation requirement (it cannot).
• Failing to obtain a Commonwealth superannuation certificate before invoking invalidity retirement (the decision is a nullity).
• Treating the Commissioner’s functions under an industrial instrument as delegable without regard to s 144(3) limitations.
• Overlooking that temporary transfers to higher duties for more than six months in an appellable classification must be notified in the gazette and are appealable (ss 101–102).

Compliance begins with culture but ends with process.

Organisations should:

• Embed the values and conduct rules in position descriptions, performance agreements and induction programs (ss 7–9).
• Maintain an up-to-date register of SETs for every SES member and ensure variations comply with ss 33–36.
• Use the joint council for genuine consultation on management strategies (s 26) and before major machinery-of-government changes.
• Publish all required gazette notices for appointments, promotions, transfers and temporary higher duties (s 29).
• Ensure that every reviewable or appellable decision is accompanied by written notice identifying the statutory right of review or appeal and the relevant Schedule item (ss 224–225).
• Keep the four mandatory management strategies under review and refreshed at least every three years.
• Maintain records required by ss 32, 69 and 113 (date of birth, position, commencement and cessation dates, visa details, previous service).

Individual public servants should:

• Declare and manage conflicts of interest in writing at the earliest opportunity.
• Refuse to comment officially without authority (s 9(2)(d)(ii)).
• Seek prior approval for any outside employment or board membership (s 244).
• Understand that “misconduct” is broader than serious wrongdoing; repeated failure to meet the standard of care required by s 9(1)(d) can trigger the process.
• Exercise appeal rights within the time limits set by the applicable industrial instrument or prescribed procedure.

Legal and HR practitioners should maintain a decision-making checklist that asks:

1. Is the person an eligible person (s 31(3), dictionary)?
2. Has the merit-and-equity principle been applied (s 27)?
3. Has consultation occurred where required (ss 108–109, s 26)?
4. Has notice been given to the correct officer and does the notice identify appeal rights?
5. If termination is proposed, is the ground one that attracts review or appeal rights?
6. Are superannuation certificates in place for any invalidity action?
7. Does the proposed action comply with any applicable industrial instrument?

Regular audits against the management standards made under s 251, combined with targeted training on the conduct rules in s 9, are the most cost-effective ways to minimise litigation and reputational risk. The Act is not a document to be consulted only when something goes wrong; it is the operating system for the entire ACT Public Service and should be treated as such. (Word count: 3,012)