37Fixed‑term appointments

##### 37 Fixed‑term appointments (1) Where a person is appointed to an office of Secretary, the instrument of appointment may provide that the person is appointed to hold office as Secretary for such period (not exceeding 5 years and not extending beyond the day on which the person will attain the age of 65 years) as is specified in the instrument of appointment and, where the instrument of appointment so provides, the appointment is a fixed‑term appointment for the purposes of this section. (2) Where a person who holds an office of Secretary under a fixed‑term appointment (in this subsection referred to as the first appointment) is appointed (otherwise than under subsection (8)) to another office of Secretary, the instrument of appointment to that other office may provide that the person is appointed to hold office as Secretary for such period (not exceeding 5 years, not extending beyond the day on which the person will attain the age of 65 years and not expiring before the expiration of the period for which the first appointment was made) as is specified in the instrument of appointment to that other office and, where the instrument of appointment so provides: (a) the appointment to that other office is a fixed‑term appointment for the purposes of this section; and (b) the first appointment terminates upon the making of the appointment to that other office; and (d) the person ceases to be entitled to benefits under any determination made under subsection (4) in relation to the first appointment. (4) A person appointed to an office of Secretary under a fixed‑term appointment holds the office on such terms and conditions (if any) relating to matters not provided for by or under this or another Act as are determined in writing by the Governor‑General. (4A) A determination under subsection (4) must be in accordance with advice that is consistent with a recommendation by the Commissioner. (5) If: (a) a person holds an office of Secretary under a fixed‑term appointment; and (b) one of the following events occurs: (i) the office is abolished; (ii) the period for which the appointment was made expires; (iii) the Governor‑General directs that the appointment be terminated on a specified day, being a day not earlier than the day on which the direction is given; and (c) immediately after the event referred to in paragraph (b) occurs, the person does not hold another office of Secretary; the person is retired from the Service by force of this subsection. (6) If a person is retired by force of subsection (5), the Prime Minister may direct, in writing, that the person is to be taken: (a) not to have been so retired; and (b) after ceasing to hold an office of Secretary, to have continued, or to continue, as an officer until a specified date not later than the day on which the person will reach the age of 65 years; and, if such a direction is given, the person continues as an officer accordingly. (6A) The Prime Minister may, at any time, in writing, vary a direction under subsection (6) by substituting for the date specified in the direction another date not later than the day on which the person will reach the age of 65 years, and the direction has effect as so varied. (6B) If a direction is given under subsection (6): (a) subsection (5) has effect, in relation to the person to whom the direction relates, as if subsection (5) were expressed to retire the person from the Service on the date specified in the direction; and (b) the terms and conditions on which the person continues as an officer under the direction are those specified in, or ascertained in accordance with, the direction under subsection (6). (7) The Governor‑General shall not direct under subsection (5) that the appointment of a person to the Service be terminated by reason only of the fact that the person has done, or omitted to do, an act or thing in respect of which a charge could be laid against the person under Division 6, or on the ground that a court has convicted the person of a criminal offence within the meaning of that Division or found, without recording a conviction, that the person has committed such an offence. (8) Where a person holds an office (in this subsection referred to as the first office) of Secretary under a fixed‑term appointment, the Governor‑General may, in writing, appoint the person to hold, in addition to the first office, another office (in this subsection referred to as the second office) of Secretary for such period (not expiring after the day on which the period for which the appointment to the first office was made expires) as is specified in the instrument of appointment to the second office and, where an appointment is made under this subsection, the appointment to the second office: (a) is a fixed‑term appointment for the purposes of this section; (b) terminates upon the expiration of the period for which the appointment to the second office is made; and (c) shall not terminate by reason only of the termination of the appointment to the first office. (9) If a person who holds an office of Secretary under a fixed‑term appointment is appointed under subsection (8) to another office of Secretary, the person shall be paid remuneration (whether by way of salary, annual allowance or otherwise) in respect of only one of those offices. (10) Where subsection (9) applies in relation to a person in respect of 2 offices and the remuneration payable in respect of one of those offices is higher than the remuneration payable in respect of the other office, the person shall be paid remuneration in respect of the office in respect of which that higher remuneration is payable. (11) A power of the Governor‑General under this section (other than subsection (4)) shall be exercised only in accordance with advice that is consistent with a recommendation by the Prime Minister. (12) The Prime Minister shall not recommend, for the purposes of subsection (11), the taking of an action under this section unless the Prime Minister has received a written report in relation to the taking of the action from: (a) in the case of action in relation to the office of Secretary to the Department of the Prime Minister and Cabinet—the Commissioner; and (b) in any other case—the Secretary to the Department of the Prime Minister and Cabinet. (15) Division 8A does not apply to: (a) a person who is a Secretary by virtue of a fixed‑term appointment; or (b) a person who continues as an officer under subsection (6).