Division 2ACreation and abolition of offices

An Act to consolidate and amend the Law regulating the Public Service, and for other purposes ## Part I—Preliminary ##### 1 Short title \[see Note 1\] This Act may be cited as the Public Service Act 1922. ##### 2 Commencement \[see Note 1\] This Act shall commence on a date to be fixed by proclamation. ##### 6 Chief object of Act The chief object of this Act is to constitute a public service for the efficient, equitable and proper conduct, in accordance with sound management practices (including personnel management practices), of the public administration of the Australian Government and this Act shall be construed accordingly. ##### 7 Interpretation (1) In this Act, unless the contrary intention appears: > Agency means the Merit Protection and Review Agency established by the Merit Protection Act. > authorised medical practitioner means a medical practitioner authorised by the Secretary to the Department of the Commonwealth primarily responsible for public health matters, or the Commissioner, to: (a) perform medical examinations under this Act; and (b) make recommendations under this Act in relation to redeployment or retirement; and (c) make recommendations under this Act in relation to the health and physical fitness of officers whose appointment to the Service on probation has not been confirmed. > classification means: (a) in relation to an office (other than an SES office)—a description that identifies the class of offices to which the office belongs, being a class of offices that are of a similar kind, that have responsibilities of a similar level, the performance of the duties of which requires work of similar value and the salary, or range of salaries, applicable to which are the same; and (aa) in relation to an SES office—a description that identifies the class of offices to which the office belongs, being a class of offices with the same range of salaries; and (b) in relation to an officer who holds an office—the classification of that office; and (c) in relation to an unattached officer—the classification that the officer has as an unattached officer determined in accordance with subsections 28(4), 42(2) and 81B(3A). > Commissioner means the Public Service Commissioner. > Commonwealth authority means: (a) a body corporate incorporated, whether before or after the commencement of subsection 5(8) of the Public Service Reform Act 1984, for a public purpose by an Act, by regulations made under an Act or by or under a law of a Territory (other than a law of the Australian Capital Territory or the Northern Territory), being a body employing staff otherwise than under this Act; (b) an authority or body, not being a body corporate, established, whether before or after the commencement of subsection 5(8) of the Public Service Reform Act 1984, for a public purpose by, or in accordance with the provisions of, an Act, regulations made under an Act or a law of a Territory (other than the Australian Capital Territory or the Northern Territory), being an authority or body employing staff otherwise than under this Act; (c) a company or other body corporate incorporated, whether before or after the commencement of subsection 5(8) of the Public Service Reform Act 1984, under a law of the Commonwealth, of a State or of a Territory, being a company or body corporate in which the Commonwealth has a controlling interest; or (d) an authority or body established, whether before or after the commencement of subsection 5(8) of the Public Service Reform Act 1984 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 this Act. > criminal offence means: (a) an offence against the law of the Commonwealth or of a State or Territory; or (b) an offence against a law of, or of a part of, a foreign country, being an offence of a kind which, if committed in, or within the jurisdiction of, a State or Territory, would constitute an offence against the law of the Commonwealth or of that State or Territory. > Department means: (a) any Department of the Service (other than a Department of the Service that has been abolished or the name of which has been altered) the name of which is specified, or deemed by virtue of section 7A to be specified, in Schedule 2; or (b) a branch or part of the Service in relation to which a person has, under this Act or another Act, the powers of, or exercisable by, a Secretary as if that branch or part of the Service were a separate Department. > designated group means any of the following classes of persons: (a) members of the Aboriginal race of Australia or persons who are descendants of indigenous inhabitants of the Torres Strait Islands; (b) persons who have migrated to Australia and whose first language is a language other than English, and the children of such persons; (c) persons who are physically or mentally disabled; and (d) any other class of persons declared by the regulations to be a designated group for the purposes of this definition. > Employee means a person employed under Division 10 of Part III. > full‑time office means an office other than a part‑time office. > industrial award means: (a) an award under the Workplace Relations Act 1996; (b) an award or order under the Conciliation and Arbitration Act 1904; or (c) a determination, award or order made by a prescribed person, tribunal or body under a law of the Commonwealth or of a Territory. > Merit Protection Act means the Merit Protection (Australian Government Employees) Act 1984. > national service means: (a) service in the Regular Army Supplement rendered under the National Service Act 1951‑1965; or (b) service as an officer in that force in pursuance of an appointment referred to in subsection 28(1) or (2) of that Act; but does not include service (other than service under subsection 27(10), section 30 or subsection 31(6B) of that Act) rendered by a person by virtue of a voluntary undertaking by him to render service for a period for which he is not otherwise bound so to serve under that Act or the Defence Act 1903‑1965. > office of Secretary means: (a) an office (other than an office that has been abolished or the name of which has been altered) the name of which is specified, or deemed by virtue of subsection 25(1) to be specified, in Schedule 3; or (b) an office the holder of which has, under this Act or another Act, in relation to a branch or part of the Service, the powers of, or exercisable by, a Secretary. > Officer means a person appointed or transferred to the Service, whether before or after the commencement of this Act, but does not include an employee. > overseas means outside Australia and the Territories. > part‑time office means an office in relation to which a declaration under subsection 29B(1) is in force. > relevant Secretary means the Secretary of the Department in connection with which, or in which is employed an officer or employee in connection with whom, the expression is used or is applicable. > relevant staff organization, in relation to an office in a Department, means an organization: (a) that is an organisation within the meaning of the Industrial Relations Act 1988; (b) for membership of which a person holding the office would be eligible; and (c) that is a party to an industrial award that applies in relation to the salary payable in respect of the office, being an industrial award to which the Minister who is responsible for the Department is also a party. > returned soldier means: (a) a person who is a member of the Forces (as that term was defined in section 139 of the Re‑establishment and Employment Act 1945 immediately before its repeal); or (b) a person who, as a member of the Defence Force, rendered continuous full‑time service outside Australia: (i) as a member of a unit of the Defence Force that was allotted for duty, within the meaning of subsection 5B(2) of the Veterans’ Entitlements Act 1986, in an operational area described in item 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 or 14 of Schedule 2 to that Act; or (ii) as a person who was allotted for duty, within the meaning of subsection 5B(2) of the Veterans’ Entitlements Act 1986, in an operational area referred to in subparagraph (i). > Secretary means a person for the time being holding, or performing the duties of, an office of Secretary. > Senior Executive Service office or SES office means an office that has a classification declared by the Commissioner under subsection 28(1A) to be a Senior Executive Service classification. > Senior Executive Service officer or SES officer means: (a) an officer who holds an SES office; and (b) an unattached officer who has a Senior Executive Service classification. > Senior Executive (Specialist) office or SES (Specialist) office means an SES office that has the classification of Senior Executive (Specialist) Band 1, Senior Executive (Specialist) Band 2 or Senior Executive (Specialist) Band 3. > Senior Executive (Specialist) officer or SES (Specialist) officer means: (a) an officer who holds an SES (Specialist) office; or (b) an unattached officer whose classification is Senior Executive (Specialist) Band 1, Senior Executive (Specialist) Band 2 or Senior Executive (Specialist) Band 3. > specified defence service means: (a) continuous full time service in a part of the Emergency Forces or of the Reserve Forces; (b) service in a part of those Forces for such periods as are fixed by or in accordance with the regulations under the Defence Act 1903‑1965, the Naval Defence Act 1910‑1965 or the Air Force Act 1923‑1965; or (c) national service; but does not include service rendered by a member of a part of the Emergency Forces or of the Reserve Forces by virtue of a voluntary undertaking by him to render continuous full‑time service for a period for which he is not otherwise bound so to serve under the Defence Act 1903‑1965, the Naval Defence Act 1910‑1965 or the Air Force Act 1923‑1965. > The Emergency Forces has the same meaning as in the Defence Act 1903. > The Minister means a Minister for the time being administering the Department in which is employed or proposed to be employed the officer or person in connexion with whom the term is used or is applicable. > the Reserve Forces has the same meaning as in the Defence Act 1903‑1965. > the Service means the Australian Public Service constituted by section 10. > The Territorial Service means the Public Service of any Territory. > unattached Secretary means a person who: (a) is an unattached officer (not having a Senior Executive Service classification or a classification lower than the lowest Senior Executive Service classification); and (b) immediately before becoming an unattached officer held an office referred to in paragraph (a) of the definition of office of Secretary. (2) In this Act, unless the contrary intention appears: (a) a reference to the repealed Officers’ Rights Declaration Act 1928 shall be read as a reference to that Act as amended and in force immediately before 15 March 1981; and (b) a reference to the former section 6 of the Trade Commissioners Act 1933 shall be read as a reference to section 6 of that Act as amended and in force immediately before 15 March 1981. (3) An officer of a Department is an excess officer for the purposes of a provision of this Act if: (a) the officer is included in a class of officers employed in the Department, which class comprises a greater number of officers than is necessary for the efficient and economical working of the Department; (b) the services of the officer cannot be effectively used because of technological or other changes in the work methods of the Department or changes in the nature, extent or organisation of the functions of the Department; or (c) where the duties usually performed by the officer are to be performed at a different locality and the Commissioner has determined that the provision applies in relation to the re‑location of the performance of those duties—the officer is not willing to perform duties at that locality. ##### 7A Schedule 2—Departments (1) Where any Departments specified in Schedule 2 are abolished or any Departments are established in addition to or in lieu of the Departments specified in that Schedule, or an alteration is made in the name of any Department so specified, Schedule 2 shall be deemed to be amended in the following manner: (a) where any Department is abolished or another Department is established in lieu of any Department—by the omission of the reference to the Department which has been abolished or in lieu of which another Department has been established; (b) where any Department is established either in addition to or in lieu of any Department—by the addition of the name of the Department so established; and (c) where an alteration is made in the name of any Department—by a similar alteration of the name of the Department as appearing in that Schedule. (2) As soon as practicable after the occurrence of an event referred to in subsection (1), the Prime Minister shall cause a notice of the event to be published in the Gazette, specifying the date on which the event occurred. ##### 7B Operation of Act This Act applies both within and without Australia and extends to all the Territories. ##### 8 Act not to apply to certain persons This Act does not apply to: (a) a person employed in an honorary capacity; or (b) a person remunerated by fees, allowances or commission only. ##### 8A Exempt officers and employees (1) The Governor‑General may, on the recommendation of the Board, by order in writing under his hand, declare that the provisions of this Act or of the regulations specified in the order shall not apply to an officer or employee, or to the officers or employees included in a class of officers or employees, specified in the order. (2) An order under subsection (1) may be expressed to be in force for a period specified in the order and, in that case, the order shall be in force for that period only. (3) The Board may determine the terms and conditions of employment (excluding rates of payment) of an officer or employee in relation to whom an order is in force under subsection (1) but no such determination shall be made in respect of a matter dealt with in a provision of the Act or of the regulations which the order does not declare not to apply to the officer or employee. (3A) Where: (a) an order under this section is in force in relation to an officer or employee; and (b) a determination under subsection (3) that is applicable in relation to the officer or employee is inconsistent with a provision of a determination in force under subsection 9(7A) or section 82D, not being a provision with respect to terms and conditions of employment overseas; that provision does not apply in relation to the officer or employee. (4) An order under this section shall be deemed not to be in force in relation to an officer or employee while terms and conditions of employment determined under subsection 9(7A) or section 82D with respect to employment overseas are applicable to him. ##### 9 Officers of the Parliament (1) Notwithstanding anything contained in this Act: (a) the appointment of a person to the office of Clerk of the Senate shall be made by the Governor‑General on the recommendation of the President of the Senate; (b) the appointment of a person to the office of Clerk of the House of Representatives shall be made by the Governor‑General on the recommendation of the Speaker; and (c) the appointment of a person to the office of Parliamentary Librarian, Principal Parliamentary Reporter or Secretary to the Joint House Department shall be made by the Governor‑General on the joint recommendation of the President and of the Speaker. (2) Notwithstanding anything contained in this Act: (a) the President of the Senate may appoint persons, or promote officers, to offices in the Department of the Senate (other than the office of Clerk of the Senate); (b) the Speaker may appoint persons, or promote officers, to offices in the Department of the House of Representatives (other than the office of Clerk of the House of Representatives); and (c) the President and the Speaker may appoint persons, or promote officers, to offices in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department (other than the offices of Parliamentary Librarian, Principal Parliamentary Reporter and Secretary to the Joint House Department). (2AA) Subject to this section and section 9AB, unless inconsistent with the context, any action or approval required or authorized by this Act, the regulations or any determinations in force under section 82D to be taken or given by the Commissioner shall or may, so far as officers and offices of the Parliament are concerned, be taken or given by the President or the Speaker, or the President and the Speaker, as the case may be, in substitution for the Commissioner and any action (other than an action referred to in subsection (2)) required or authorized by this Act, the regulations or any determination in force under section 82D to be taken by a Secretary shall or may be taken: (a) in relation to officers of, and offices in, the Department of the Senate—by the Clerk of the Senate; (b) in relation to officers of, and offices in, the Department of the House of Representatives—by the Clerk of the House of Representatives; (c) in relation to officers of, and offices in, the Department of the Parliamentary Library—by the Parliamentary Librarian; (d) in relation to officers of, and offices in, the Department of the Parliamentary Reporting Staff—by the Principal Parliamentary Reporter; and (e) in relation to officers of, and offices in, the Joint House Department—by the Secretary to the Joint House Department. (2A) Subject to this section, unless inconsistent with the context: (a) any action or approval required or authorized by this Act, the regulations or any determinations in force under section 82D to be taken or given by the Commissioner shall or may, so far as employees in the Department of the Senate, the Department of the House of Representatives, the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department are concerned, be taken or given by the President or the Speaker or the President and the Speaker (as the case may be) in substitution for the Commissioner; and (b) any action required or authorized by this Act, the regulations or any determinations in force under section 82D to be taken by a Secretary shall or may be taken by the Clerk of the Senate so far as relates to employees in the Department of the Senate, by the Clerk of the House of Representatives so far as relates to employees in the Department of the House of Representatives, by the Parliamentary Librarian so far as relates to employees in the Department of the Parliamentary Library, by the Principal Parliamentary Reporter so far as relates to employees in the Department of the Parliamentary Reporting Staff and by the Secretary to the Joint House Department so far as relates to employees in the Joint House Department. (3) Any reference in this Act, the regulations or any determinations in force under section 82D to the Minister shall so far as the Departments of the Senate, the House of Representatives, the Parliamentary Library, the Parliamentary Reporting Staff, and the Joint House Department are concerned, be read as a reference to the President or the Speaker or the President and the Speaker (as the case may be). (4) The officers of the Senate, the officers of the House of Representatives, the officers of the Parliamentary Library, the officers of the Parliamentary Reporting Staff, and the officers of the Joint House Department shall be deemed to constitute separate Departments under this Act. (6) The Governor‑General may, on the recommendation of the President or the Speaker or the President and the Speaker (as the case may be), make, in relation to officers and employees of the Parliament, regulations about the same matters for which regulations may be made under subsection 97(1). (7) Any regulation made by the Governor‑General under subsection 97(1) applies to officers and employees of the Parliament unless and until: (a) a regulation is made under subsection (6) inconsistent with, or prescribing matters dealt with in, that first‑mentioned regulation; or (b) the Governor‑General, upon the recommendation of the President or the Speaker or the President and the Speaker (as the case may be), by order, declares that such regulation shall not apply to officers and employees of the Parliament. (7A) Subject to subsection (7B), the President or the Speaker or the President and the Speaker, as the case may be, may, by instrument in writing, determine the terms and conditions of employment (including employment overseas) of officers and employees of the Parliament, being terms and conditions for and in relation to which determinations may be made under section 82D. (7B) Where a determination under subsection (7A) is inconsistent with: (a) a provision of this Act; (b) a provision of the regulations made for the purposes of subsection (6); (c) a provision of the regulations, made by the Governor‑General under subsection 97(1), that apply to officers and employees of the Parliament by virtue of subsection (7); or (d) a provision of another Act; (whether enacted or made before or after the commencement of this subsection), that provision shall prevail and the determination shall, to the extent of the inconsistency, be of no force or effect. (7C) The provisions of Division 10A of Part III (other than subsections 82D(1) and (2)) apply in relation to determinations made under subsection (7A) of this section in like manner as those provisions apply in relation to determinations made under section 82D and, for the purposes of those provisions as so applying, any reference in those provisions to the Commissioner shall be read as reference to the President or the Speaker or the President and the Speaker, as the case may be. (7D) A determination in force under section 82D has effect in relation to officers and employees of the Parliament subject to subsections (7E) and (7F). (7E) Where a determination in force under section 82D is inconsistent with: (a) a provision of the regulations made for the purposes of subsection (6) of this section; or (b) a provision of a determination in force under subsection (7A) of this section; (whether made before or after the day on which the first‑mentioned determination takes effect), the first‑mentioned determination is, to the extent of the inconsistency, of no force or effect in relation to officers and employees of the Parliament. (7F) The President or the Speaker or the President and the Speaker, as the case may be, may, by instrument in writing, declare that a determination, or a provision of a determination, in force under section 82D and specified in the instrument does not apply to officers and employees of the Parliament. (7G) The Governor‑General may, on the recommendation of the President or the Speaker or the President and the Speaker, as the case may be, make regulations providing for and in relation to appeals with respect to any matter arising under a determination under subsection (7A). (7H) The President or the Speaker, or the President and the Speaker, as the case may be, may, by signed writing, delegate to an officer or employee of the Parliament all or any of his, her or their powers, as the case may be, under this Act (other than the powers to make recommendations to the Governor‑General under subsections (1), (6) and (7G)). (8) In this section: (a) a reference to officers of the Parliament shall be read as a reference to officers of the Department of the Senate, the Department of the House of Representatives, the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department; (aa) a reference to offices of the Parliament shall be read as a reference to offices in the Department of the Senate, the Department of the House of Representatives, the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department; and (b) a reference to employees of the Parliament shall be read as a reference to employees performing duties in a Department specified in paragraph (a). ##### 9A Creation etc. of offices in Parliamentary Departments (1) The President may, after obtaining a report from the Clerk of the Senate: (a) create an office in the Department of the Senate; or (b) abolish an office in the Department of the Senate. (2) The Speaker may, after obtaining a report from the Clerk of the House of Representatives: (a) create an office in the Department of the House of Representatives; or (b) abolish an office in the Department of the House of Representatives. (3) The President and the Speaker may, after obtaining a report from the Parliamentary Librarian, the Principal Parliamentary Reporter or the Secretary to the Joint House Department, as the case may be: (a) create an office in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department, as the case may be; or (b) abolish an office in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department, as the case may be. (4) The President may, after obtaining a report from the Clerk of the Senate: (a) raise or lower the classification of an office in the Department of the Senate; or (b) alter the designation of an office in the Department of the Senate; other than the office of Clerk of the Senate. (5) The Speaker may, after obtaining a report from the Clerk of the House of Representatives: (a) raise or lower the classification of an office in the Department of the House of Representatives; or (b) alter the designation of an office in the Department of the House of Representatives; other than the office of Clerk of the House of Representatives. (6) The President and the Speaker may, after obtaining a report from the Parliamentary Librarian, the Principal Parliamentary Reporter or the Secretary to the Joint House Department, as the case may be: (a) raise or lower the classification of an office in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department, as the case may be; or (b) alter the designation of an office in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department, as the case may be; other than the office of Parliamentary Librarian, Principal Parliamentary Reporter or Secretary to the Joint House Department. (7) Where the classification of an office in a Department referred to in subsection (4), (5) or (6) is altered, the office shall be deemed to be vacant and the officer who occupied the office immediately before the alteration becomes an unattached officer. (8) Where the President or the Speaker, or the President and the Speaker, as the case may be, makes or make the same alteration of the classification of all offices having the same designation and classification, the President or the Speaker, or the President and the Speaker, as the case may be, may, by notice published in the Gazette, direct that subsection (7) shall not apply and, in that case, that subsection does not apply. (9) Where: (a) the President or the Speaker, or the President and the Speaker, as the case may be, makes or make an alteration of the classification of an office in a case where there is no other office having the same designation and classification as that office; and (b) the President or the Speaker, or the President and the Speaker, as the case may be, declares or declare, by notice published in the Gazette, that that alteration is related to an alteration in respect of which a notice is or has been published under subsection (8); the President or the Speaker, or the President and the Speaker, as the case may be, may, in that first‑mentioned notice, direct that subsection (7) shall not apply in relation to that first‑mentioned alteration and, in that case, that subsection does not apply. ##### 9AA Certain acting appointments in Parliamentary Departments (1) In this section, responsible authority means: (a) in relation to an office in the Department of the Senate—the President of the Senate; (b) in relation to an office in the Department of the House of Representatives—the Speaker of the House of Representatives; and (c) in relation to an office in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department—the President of the Senate and the Speaker of the House of Representatives. (2) The responsible authority may, in writing, appoint a person who is an officer or employee to act as Clerk of the Senate, Clerk of the House of Representatives, Parliamentary Librarian, Principal Parliamentary Reporter or Secretary to the Joint House Department: (a) during a vacancy in the office; (b) during a period when the holder of the office is suspended from duty under section 57 or 59; or (c) during any period, or during all periods, when the holder of the office is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office; but a person appointed to act during a vacancy shall not continue to act for more than 12 months. (3) The appointment may be expressed to have effect only in specified circumstances. (4) Where: (a) a person is acting in an office under paragraph (2)(b) or (c); and (b) the office becomes vacant; then, subject to subsection (3), the person may continue to act until: (c) the responsible authority otherwise directs, in writing; (d) the vacancy is filled; or (e) a period of 12 months from the day on which the vacancy occurred expires; whichever happens first. (5) A person acting in an office under subsection (2) has all the powers and duties of the holder of the office. (6) The responsible authority may, in writing, at any time terminate an appointment made under subsection (2). (7) Anything done by or in relation to a person purporting to act in an office under subsection (2) is not invalid because: (a) the occasion for the appointment had not arisen; (b) there was a defect or irregularity in connection with the appointment; (c) the appointment had ceased to have effect; or (d) the occasion for the person to act had not arisen or had ceased. ##### 9AB Modifications of certain provisions in relation to officers of the Parliament (1) In this section and in sections 50DAA, 50DA, 50DB, 50DC and 50G as those sections have effect as modified by Schedule 4: > office of the Parliament has the same meaning as in section 9. > responsible authority means: (a) in relation to a promotion to, or the creation of, an office of the Parliament: (i) if the office is, or is to be, an office in the Department of the Senate—the President of the Senate; or (ii) if the office is, or is to be, an office in the House of Representatives—the Speaker of the House of Representatives; or (iii) if the office is, or is to be, an office in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department—the President of the Senate and the Speaker of the House of Representatives; or (b) in relation to a transfer to an office of the Parliament: (i) if the transfer is to an office in the Department of the Senate—the Clerk of the Senate; or (ii) if the transfer is to an office in the Department of the House of Representatives—the Clerk of the House of Representatives; or (iii) if the transfer is to an office in the Department of the Parliamentary Library—the Parliamentary Librarian; or (iv) if the transfer is to an office in the Department of the Parliamentary Reporting Staff—the Principal Parliamentary Reporter; or (v) if the transfer is to an office in the Joint House Department—the Secretary of the Joint House Department; or (c) in relation to action that precedes a promotion or transfer to an office of the Parliament and may involve either a promotion or a transfer—the person or persons who, under paragraph (a), would be the responsible authority in relation to such a promotion and the person who, under paragraph (b), would be the responsible authority in relation to such a transfer. (2) The application of the provisions of this Act referred to in column 1 of Schedule 4 in relation to a promotion or transfer to, or the creation of, an office of the Parliament is subject to the modifications set out in columns 2 and 3 of that Schedule. ##### 9B Annual report to Parliament by Presiding Officers (1) In this section: (a) a reference to a Parliamentary Department shall be read as a reference to the Department of the Senate, the Department of the House of Representatives, the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department; (b) a reference to the relevant Presiding Officer or the relevant Presiding Officers, in relation to a Parliamentary Department, shall be read as a reference to: (i) in the case of the Department of the Senate—the President; (ii) in the case of the Department of the House of Representatives—the Speaker; and (iii) in the case of each other Parliamentary Department—the President and the Speaker; and (c) officer of the Parliament and employee of the Parliament have the same meanings as those expressions have in section 9. (2) The person who is the relevant Presiding Officer, or the persons who are the relevant Presiding Officers, in relation to a Parliamentary Department shall, as soon as practicable after 30 June in each year, cause a report concerning the operation of that Parliamentary Department during the year that ended on that 30 June to be prepared and to be laid before: (a) the Senate, in the case of a report concerning the Department of the Senate; (b) the House of Representatives, in the case of a report concerning the Department of the House of Representatives; and (c) each House of the Parliament, in the case of a report concerning any of the other Parliamentary Departments. (3) Nothing in this section shall be taken to affect any means by which a member of a House of the Parliament might seek information from the President or the Speaker, or the President and the Speaker, concerning any matter related to the administration of a Parliamentary Department. ## Part II—Composition and administration of the Australian Public Service ##### 10 Constitution of the Australian Public Service The Australian Public Service is constituted by: (a) the Secretaries specified in Schedule 3; (b) Senior Executive Service officers; (c) other officers; and (d) employees. ##### 10A Interpretation (1) In: (a) any law of the Commonwealth (other than this Act) or law of a Territory; (b) any instrument having effect under such a law; or (c) any award, order or determination of an authority established by a law of the Commonwealth; whether passed or made before or after the commencement of this section, a reference to the Public Service of the Commonwealth, the Public Service or the Commonwealth Service shall, where the context so admits, be read as a reference to the Australian Public Service. (2) References in this Act to the Commonwealth Service shall be read as references to the Public Service of the Commonwealth as constituted before the commencement of the Public Service Act (No. 4) 1973, and references in this Act to the Service shall, where the context so admits, be read as including references to the Public Service of the Commonwealth as so constituted. ##### 11 Public Service Commissioner (1) There shall be a Public Service Commissioner. (2) The Commissioner shall be appointed by the Governor‑General. (3) The Commissioner shall be appointed on a full‑time basis for such period, not exceeding 5 years, as is specified in the instrument of appointment, but is eligible for re‑appointment. (4) A person who has attained the age of 65 years shall not be appointed as the Commissioner and a person shall not be appointed as the Commissioner for a period that extends beyond the day on which the person will attain the age of 65 years. (5) The Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Prime Minister. (6) Where an officer is appointed as the Commissioner, the person shall be deemed, upon the appointment, to become an unattached Secretary and to remain an unattached Secretary while the person continues to be an officer. ##### 12 Remuneration (1) The Commissioner shall be paid such remuneration as is determined by the Remuneration Tribunal, but if no determination of that remuneration is in operation, the Commissioner shall be paid such remuneration as is prescribed. (2) The Commissioner shall be paid such allowances as are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973. ##### 13 Leave of absence (1) Subject to section 87E of the Public Service Act 1922, the Commissioner has such recreation leave entitlements as are determined by the Remuneration Tribunal. (2) The Prime Minister may grant the Commissioner leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Prime Minister determines. ##### 14 Disclosure of interests The Commissioner shall give the Prime Minister written notice of all direct or indirect pecuniary interests that the Commissioner has or acquires in any business whether in Australia or elsewhere or in any body corporate carrying on such business. ##### 15 Annual report by Commissioner The Commissioner shall, as soon as practicable after 30 June in each financial year, prepare and furnish to the Prime Minister a report in relation to the activities of the Commissioner during that year. ##### 16 Resignation The Commissioner may resign by giving the Governor‑General a signed notice of resignation. ##### 17 Suspension and removal (1) The Governor‑General may remove the Commissioner from office on an address praying for the Commissioner’s 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 the Commissioner from office on the ground of misbehaviour or physical or mental incapacity. (3) Where the Governor‑General suspends the Commissioner from office, the Prime 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 the Commissioner should be removed from office and, if each House so passes such a resolution, the Governor‑General shall remove the Commissioner from office. (5) If, at the expiration of 15 sitting days of a House of Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the suspension terminates. (6) The suspension of the Commissioner from office under this section does not affect any entitlement of the Commissioner to be paid remuneration and allowances. (7) If the Commissioner becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or assigns remuneration for their benefit, the Governor‑General shall remove the Commissioner from office. (8) If the Commissioner is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months, the Governor‑General may remove the Commissioner from office. (9) The Commissioner shall not be removed or suspended from office except as provided by this section. ##### 18 Delegations (1) The Commissioner may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Commissioner, delegate to a person (not being a person engaged as a consultant under section 4 of the Members of Parliament (Staff) Act 1984) any of the Commissioner’s powers or functions under this Act or under any other law, other than this power of delegation. (2) Without limiting the generality of subsection (1), the reference in that subsection to the powers of the Commissioner under this Act shall be read as including a reference to the powers of the Commissioner under section 82D. (3) Where the Commissioner delegates a power or function to a Secretary, the Secretary may, unless the instrument of delegation prohibits it, sub‑delegate the power or function, by instrument in writing signed by the Secretary, to a person other than a person engaged as a consultant under section 4 of the Members of Parliament (Staff) Act 1984. (4) A power or function delegated under subsection (1) or sub‑delegated under subsection (3), when exercised or performed by the delegate or sub‑delegate, shall, for all purposes, be deemed to have been exercised or performed by the Commissioner. (5) A delegation of a power or function under subsection (1): (a) may be absolute or conditional; (b) does not prevent the exercise of the power or the performance of the function by the Commissioner; (c) subject to paragraph (d), continues in force notwithstanding that the person who gave the delegation has ceased to be Commissioner; and (d) may be revoked by instrument in writing signed by the Commissioner for the time being. (6) A sub‑delegation of a power or function under subsection (3) by the Secretary of a Department: (a) may be absolute or conditional; (b) does not prevent the exercise of the power or the performance of the function by the Commissioner or by the Secretary; (c) subject to paragraph (d), continues in force notwithstanding that: (i) the person who gave the delegation has ceased to be Commissioner; or (ii) the person who gave the sub‑delegation has ceased to be Secretary of the Department; and (d) may be revoked by instrument in writing signed by the Secretary of the Department for the time being. (7) Where: (a) the exercise of a power or the performance of a function by the Commissioner is dependent upon the opinion, belief or state of mind of the Commissioner in relation to a matter; and (b) the power or function has been delegated or sub‑delegated under this section; the power or function may be exercised or performed by the delegate or sub‑delegate upon the opinion, belief or state of mind of the delegate or sub‑delegate, as the case may be, in relation to the matter. (8) Where the Commissioner has delegated a power or function under subsection (1): (a) the Commissioner may give directions to the delegate with respect of the exercise of the power or the performance of the function; and (b) if the delegate has sub‑delegated the power or function under subsection (3), the delegate: (i) shall, if the Commissioner has given a direction to the delegate under paragraph (a) with respect to the exercise of the power or the performance of the function, give a corresponding direction to the sub‑delegate; and (ii) may, subject to any direction given to the delegate by the Commissioner under paragraph (a), give directions to the sub‑delegate with respect to the exercise of the power or the performance of the function. (9) If: (a) the Commissioner gives a delegation under subsection (1); and (b) the delegation is expressed to be given to persons each of whom occupies or performs the duties of an office of a kind described in the delegation; the delegation extends to any person who occupies, or performs the duties of, an office of the kind described in the delegation, even though the office does not come into existence until after the delegation is given. (10) Subsection (9) only applies to a delegation that is expressed to be made in reliance on that subsection. ##### 18A Acting Commissioner (1) The Prime Minister may appoint a person to act as Commissioner: (a) during a vacancy in the office of Commissioner; or (b) during any period, or during all periods, when the Commissioner is absent from Australia or is, for any reason, unable to perform the duties of the office of Commissioner. (2) An appointment to act as 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 Commissioner shall not continue so to act for more than 12 months. (4) Where a person is acting as Commissioner otherwise than by reason of a vacancy in the office of 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 Prime Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurs expires, whichever first occurs. (5) While a person is acting as Commissioner, that person may exercise all the powers, and shall perform all the functions, of the Commissioner. (6) The Prime Minister may: (a) determine the terms and conditions of appointment, including remuneration and allowances, of a person appointed to act as Commissioner; and (b) terminate such an appointment at any time. (7) A person appointed to act as Commissioner may resign by giving the Prime Minister a signed notice of resignation. (8) Anything done by or in relation to a person purporting to act under subsection (1) is not invalid on the ground that: (a) the occasion for the person’s appointment had not arisen; (b) there is a defect or irregularity in connection with the person’s appointment; (c) the person’s appointment had ceased to have effect; or (d) the occasion for the person to act had not arisen or had ceased. ##### 18B Staff (1) The staff required to assist the Commissioner in the exercise of the Commissioner’s powers, and the performance of the Commissioner’s functions, or required for the purposes of the Merit Protection Act, shall be persons appointed or employed under this Act. (2) The Commissioner has all the powers of a Secretary under this Act so far as those powers relate to the branch of the Australian Public Service comprising the staff referred to in subsection (1), as if that branch were a separate Department of the Australian Public Service. ##### 19 Powers of Commissioner (1) The Commissioner may at any time: (a) enter any Department for the purpose of carrying out the Commissioner’s functions; (b) summon any person whose evidence appears to be material to the determining of any subject of inspection, inquiry, or investigation being conducted by the Commissioner; (c) take evidence on oath; and (d) require the production of documents. (2) Any officer who, without reasonable cause, neglects or fails to attend in obedience to the summons, or to be sworn, or to answer questions or produce documents relevant to the subject of the inspection, inquiry or investigation, shall be guilty of an offence against this Act. (3) Any person, not being an officer, who, after payment or tender of reasonable expenses, neglects or fails, without reasonable cause, to attend in obedience to the summons, or to be sworn, or to answer questions or produce documents relevant to the subject of the inspection, inquiry or investigation, shall be guilty of an offence. Penalty: Imprisonment for 6 months. (4) Nothing in this section shall be construed as compelling a person to answer any question which would tend to criminate him. ##### 21 Records of officers (1) The Commissioner shall cause to be kept a record of each officer, showing: (a) the date of birth of the officer; (b) the date on which the officer was appointed to the Service; and (c) the classification of the officer. (2) Where, under this Act, a period of service of a person otherwise than in the Service is to be reckoned as service in the Service, the record shall show, in relation to that person, the date on which the first‑mentioned period of service commenced. ##### 22 Australian Public Service Management Advisory Board (1) There is hereby established a body to be known as the Australian Public Service Management Advisory Board. (2) The functions of the Board are: (a) to advise the Commonwealth Government on significant issues relating to the management of the Australian Public Service; and (b) to be a forum for consideration of major management activities affecting the Australian Public Service as a whole. (3) The Board shall consist of the following members: (a) the Secretary to the Department of the Prime Minister and Cabinet; (b) the Commissioner; (c) the Secretary to the Department of Industrial Relations; (d) the Secretary to the Department of Finance; (e) such other Secretaries as are nominated, in writing, by the Prime Minister; (f) at least 2 other persons nominated, in writing, by the Prime Minister. (4) One of the members of the Board nominated under paragraph (3)(f) shall be nominated after consultation between the Prime Minister and the Australian Council of Trade Unions. (5) One of the members nominated under paragraph (3)(f) shall be a person who has management expertise in the private sector. (6) The Secretary to the Department of the Prime Minister and Cabinet shall be the Chairperson of the Board. ## Part IIA—Personnel management ##### 22A Personnel management reviews (1) The Board may, by notice in writing to the Secretary of a Department, require the Secretary to give the Board, within the time specified in the notice, a report in writing on personnel management in the Department. (2) A notice under subsection (1) may specify the particular aspects of personnel management that are to be dealt with in the report. (3) Where, pursuant to a notice under subsection (1), the Secretary of a Department gives a report to the Board, the Board, after considering the report, may make recommendations to the Secretary on the action that should or could be taken to improve personnel management in the Department. (4) If the Secretary does not concur in or adopt a recommendation made by the Board under subsection (3) on the action that should be taken to improve personnel management in the Department, the Secretary shall, within a reasonable time, inform the Minister administering the Department, in writing, of his reasons for not concurring in or not adopting the recommendation and give a copy of a statement of those reasons to the Board. (5) The Board shall, in a report furnished to the Prime Minister in accordance with section 15, report on the operation of this section. ##### 22B Equal employment opportunity programs (1) In this section, unless the contrary intention appears: > employment matters, in relation to a Department, means: (a) the selection of persons for appointment as officers, or for employment as employees, in the Department; (b) the promotion and transfer of: (i) officers to offices in the Department; and (ii) officers in the Department to offices in other Departments; (c) training and staff development for officers and employees in the Department; (d) terms or conditions of service of officers and employees in the Department; and (e) any other matter related to the employment of officers and employees in the Department. > equal employment opportunity program, in relation to a Department, means a program designed to ensure that: (a) appropriate action is taken to eliminate unjustified discrimination against women and persons in designated groups in relation to employment matters in the Department; and (b) measures are taken to enable women and persons in designated groups to: (i) compete for promotion and transfer in the Department and in the Service generally; (ii) pursue careers in the Department and in the Service generally; as effectively as other persons. > program includes: (a) the particular objectives to be achieved by the program; (b) the policies to be adopted, and the procedures to be followed, to achieve those objectives; (c) the quantitative or other indicators against which the effectiveness of the program is to be assessed; and (d) the allocation of staff and other resources to the task of giving effect to the program. > unjustified discrimination includes discrimination that is unlawful under the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984. (2) Without limiting the generality of the definition of equal employment opportunity program in subsection (1), the equal employment opportunity program for a Department shall include provision for action to be taken to: (a) examine practices in relation to employment matters in the Department to identify: (i) any practices that unjustifiably discriminate against women or persons in designated groups; and (ii) any patterns (whether ascertained statistically or otherwise) of inequality of opportunity in respect of women or persons in designated groups; (b) eliminate any practices, and eliminate or ameliorate any patterns, identified in pursuance of paragraph (a); (c) inform officers and employees in the Department, and relevant staff organizations in relation to offices in the Department, of the contents of the program and of the results of any review of the program under subsection (4); (d) collect and record information, including statistical information, relevant to the operation of the program; (e) assess the effectiveness of the program by comparing information collected in relation to the results of the program with the indicators against which the effectiveness of the program is to be assessed; and (f) give effect to any guidelines issued under subsection (10). (3) As soon as practicable after the commencement of this section and, in any event, within 12 months after the commencement of this section, the Secretary of a Department shall: (a) after giving relevant staff organizations in relation to offices in the Department and such other persons as the Secretary considers appropriate an opportunity to put their views, cause to be developed an equal employment opportunity program for the Department; (b) cause to be prepared a statement in writing setting out the program so developed; and (c) give a copy of the statement to the Board. (4) The Secretary of a Department shall: (a) from time to time, after giving relevant staff organizations in relation to offices in the Department and such other persons as the Secretary considers appropriate an opportunity to put their views, cause the equal employment opportunity program for the Department to be reviewed; (b) cause to be prepared a statement in writing setting out the results of any review (including particulars of any alteration to be made to the program); and (c) give a copy of the statement to the Board. (5) The Secretary of a Department shall take any action necessary to give effect to the equal employment opportunity program for the Department and any person who exercises powers in relation to employment matters in the Department shall have regard to the program in exercising those powers. (6) The Board may, by notice in writing to the Secretary of a Department, require the Secretary to give the Board, within the time specified in the notice, a report in writing in relation to the development, implementation or review of the equal employment opportunity program for the Department. (7) A notice under subsection (6) may specify the particular aspects of the equal employment opportunity program for the Department that are to be dealt with in the report. (8) Where the Board receives a statement under subsection (3) or (4) or a report under subsection (6), the Board, after considering the statement or report, may make recommendations to the relevant Secretary on the action that should or could be taken to improve the effectiveness of the equal employment opportunity program for the Department. (9) If the Secretary does not concur in or adopt a recommendation made by the Board under subsection (8) on the action that should be taken to improve the effectiveness of the equal employment opportunity program for the Department, the Secretary shall, within a reasonable time, inform the Minister administering the Department, in writing, of his reasons for not concurring in or adopting the recommendation and give a copy of a statement of those reasons to the Board. (10) The Board may from time to time, by notice in writing to Secretaries, issue guidelines on the provisions to be made by, and the development, implementation and review of, equal employment opportunity programs for Departments. (11) The Board shall, in a report furnished to the Prime Minister in accordance with section 15, report on the operation of this section. (12) Where a Department comes into existence after the commencement of this section, this section applies in relation to the Department as if a reference in subsection (3) to the commencement of this section were a reference to the day on which the Department comes into existence. (13) The regulations may provide that this section shall, subject to such modifications (if any) as are prescribed, apply to and in relation to a Commonwealth authority and, where the regulations so provide, this section applies to and in relation to the Commonwealth authority as if: (a) the Commonwealth authority were a Department; (b) references to the Secretary of a Department were references to the person for the time being holding, or performing the duties of, the office specified in the regulations for the purposes of this paragraph; (c) a reference in subsection (3) to the commencement of this section were a reference to the day on which the regulations came into force; and (d) if the regulations provide that a specified Minister is the prescribed authority for the purposes of the application of this section in relation to the Commonwealth authority—references in subsections (3), (4), (6), (8) and (9) to the Board were references to the Minister so specified. (14) The regulations may provide that the provisions of this section shall, subject to such modifications (if any) as are prescribed, apply to and in relation to the employment of: (a) members of the Australian Federal Police; (c) persons who are employed under section 42 of the Naval Defence Act 1910; (d) persons who are employed under section 10 of the Supply and Development Act 1939; (e) persons employed as officers of the Australian Security Intelligence Organization; or (f) officers appointed in pursuance of section 10 of the Trade Representatives Act 1933. (15) In subsections (13) and (14), modifications includes additions, omissions and substitutions. (16) Regulations made for the purposes of subsection (14) in relation to persons referred to in paragraph (14)(c) or (d) have effect notwithstanding subsection 42C(1) of the Naval Defence Act 1910 or subsection 10(2) of the Supply and Development Act 1939, as the case may be. (17) Where the Minister for Defence, by instrument in writing, declares that, by reason of defence or civil emergency, it is necessary for staff employed under the Naval Defence Act 1910 or the Supply and Development Act 1939 to be engaged in work in circumstances such that regulations made for the purposes of subsection (14) should not apply in respect of those staff, those regulations shall not apply in respect of those staff until that instrument is revoked by the Minister. ##### 22C Industrial democracy plans (1) In this section, industrial democracy plan, in relation to a Department, means a plan designed to achieve appropriate participation by officers and employees in the decision‑making processes of the Department. (2) As soon as practicable after the commencement of this section and, in any event, within 12 months after the commencement of this section, the Secretary of a Department shall: (a) in consultation with relevant staff organizations in relation to offices in the Department and with such other persons as the Secretary considers appropriate, cause to be developed an industrial democracy plan for the Department; (b) cause to be prepared a statement in writing setting out the plan so developed; and (c) give a copy of the statement to the Board. (3) The Secretary of a Department shall: (a) in consultation with relevant staff organizations in relation to offices in the Department and with such other persons as the Secretary considers appropriate, cause the industrial democracy plan for the Department to be reviewed from time to time; (b) cause to be prepared a statement in writing setting out the results of any review (including particulars of any alteration to be made to the plan); and (c) give a copy of the statement to the Board. (4) The Secretary of a Department shall take any action necessary to give effect to the industrial democracy plan for the Department. (5) The Board may, by notice in writing to the Secretary of a Department, require the Secretary to give the Board, within the time specified in the notice, a report in writing in relation to the development, implementation or review of the industrial democracy plan for the Department. (6) A notice under subsection (5) may specify the particular aspects of the industrial democracy plan that are to be dealt with in the report. (7) Where the Board receives a statement under subsection (2) or (3) or a report under subsection (5), the Board, after considering the statement or report, may make recommendations to the relevant Secretary on the action that should or could be taken to improve the effectiveness of the industrial democracy plan for the Department. (8) If the Secretary does not concur in or adopt a recommendation made by the Board under subsection (7) on the action that should be taken to improve the effectiveness of the industrial democracy plan for the Department, the Secretary shall, within a reasonable time, inform the Minister administering the Department, in writing, of his reasons for not concurring in or adopting the recommendation and give a copy of a statement of those reasons to the Board. (9) The Board may from time to time, by notice in writing to Secretaries, issue guidelines on the development, implementation and review of industrial democracy plans for Departments. (10) The Board shall, in a report furnished to the Prime Minister in accordance with section 15, report on the operation of this section. (10A) The Secretary of each Department shall include in the Annual Report of the Department to be laid before each House of the Parliament information on the implementation and operation of industrial democracy plans in that Department. (11) Where a Department comes into existence after the commencement of this section, this section applies in relation to the Department as if a reference in subsection (2) to the commencement of this section were a reference to the day on which the Department comes into existence. (12) The regulations may provide that this section shall, subject to such modifications (if any) as are prescribed, apply to and in relation to a Commonwealth authority specified in the regulations and, where the regulations so provide, this section applies to and in relation to the Commonwealth authority as if: (a) the Commonwealth authority were a Department; (b) references to the Secretary of a Department were references to the person for the time being holding, or performing the duties of, the office specified in the regulations for the purposes of this paragraph; (c) a reference in subsection (2) to the commencement of this section were a reference to the day on which the regulations came into force; and (d) if the regulations provide that a specified Minister is the prescribed authority for the purposes of the application of this section in relation to the Commonwealth authority—references in subsections (2), (3), (5), (7) and (8) to the Board were references to the Minister so specified. (13) The regulations may provide that the provisions of this section shall, subject to such modifications (if any) as are prescribed, apply to and in relation to the employment of: (a) members of the Australian Federal Police; (c) persons who are employed under section 42 of the Naval Defence Act 1910; (d) persons who are employed under section 10 of the Supply and Development Act 1939; (e) persons employed as officers of the Australian Security Intelligence Organization; or (f) officers appointed in pursuance of section 10 of the Trade Representatives Act 1933. (14) In subsections (12) and (13), modifications includes additions, omissions and substitutions. (15) Regulations made for the purposes of subsection (13) in relation to persons referred to in paragraph (13)(c) or (d) have effect notwithstanding subsection 42C(1) of the Naval Defence Act 1910 or subsection 10(2) of the Supply and Development Act 1939, as the case may be. (16) Where the Minister for Defence, by instrument in writing, declares that, by reason of defence or civil emergency, it is necessary for staff employed under the Naval Defence Act 1910 or the Supply and Development Act 1939 to be engaged in work in circumstances such that regulations made for the purposes of subsection (13) should not apply in respect of those staff, those regulations shall not apply in respect of those staff until that instrument is revoked by the Minister. ##### 23 Joint Council (1) The regulations may make provision for the establishment of a Joint Council. (2) The Joint Council shall be representative of the Commissioner and of Departments and of organisations of officers or employees and shall be constituted in such manner as is prescribed. (3) The Joint Council shall have such functions in relation to the Service as are prescribed. ## Part III—The Australian Public Service ### Division 1—Secretaries of Departments and Constitution etc. of the Senior Executive Service ##### 25 Secretaries of Departments \[see Note 2\] (1) The persons for the time being holding the several offices specified in Schedule 3 shall be Secretaries of Departments. Provided that where any offices specified in Schedule 3 are abolished or any offices are prescribed in addition to or in lieu of the offices specified in that Schedule, or an alteration is made in the name of any office so specified, Schedule 3 shall be deemed to be amended in the following manner: (a) where any office is abolished or another office is prescribed in lieu of any office—by the omission of the reference to the office which has been abolished or in lieu of which another office has been prescribed; (b) where any office is prescribed either in addition to or in lieu of any office—by the addition of the name of the office so prescribed; and (c) where an alteration is made in the name of any office—by a similar alteration of the name of the office as appearing in that Schedule. (1A) As soon as practicable after the occurrence of an event referred to in the proviso to subsection (1), the Prime Minister shall cause a notice of the event to be published in the Gazette, specifying the date on which the event occurred. (2) The Secretary of a Department shall, under the Minister, be responsible for its general working, and for all the business thereof, and shall advise the Minister in all matters relating to the Department. (4) The Auditor‑General and the Commissioner of Taxation shall severally have all the powers of, or exercisable by, a Secretary under this Act, so far as relates to the branches of the Service respectively under their direct control as if those branches of the Service were separate Departments. (4B) The regulations may: (a) specify an office established by an Ordinance of an internal Territory as an office to which subsection (4C) applies; and (b) specify a branch or part of the Service in relation to which the holder of that office is to have the powers of a Secretary under this Act. (4C) The person holding, or acting in, an office specified in the regulations as an office to which this subsection applies has all the powers of, or exercisable by, a Secretary under this Act so far as those powers relate to the branch or part of the Service specified in the regulations in relation to the holder of that office as if that branch or part of the Service were a separate Department. (6) Subject to subsections (8A) and (8B), the Secretary of a Department must, as soon as practicable after 30 June in each year, and in any event not later than 15 October in that year (the due date), prepare and give to the Minister administering the Department a report on the operation of the Department during the year that ended on that 30 June. (7) A report prepared under subsection (6) must be in accordance with requirements from time to time presented to the Parliament by the Prime Minister after approval by the Joint Committee of Public Accounts and Audit. (8) Subject to subsection (8C), the Minister administering a Department must cause a copy of a report given to him or her under subsection (6) to be laid before each House of the Parliament on or before 31 October in the year in which the report is given. (8A) If the Secretary of a Department is of the opinion that it will not be reasonably possible to prepare and give to the Minister administering the Department a report referred to in subsection (6) on or before the due date, the Secretary may, before that date, apply to the Minister for an extension of the period within which the report is to be prepared and given. (8B) If the Secretary makes such an application: (a) the Secretary must give to the Minister a written statement explaining why, in the Secretary’s opinion, it will not be reasonably possible to prepare and give the report on or before the due date; and (b) the Minister may grant any extension that he or she considers reasonable in the circumstances; and (c) the Secretary must prepare and give the report to the Minister within the period of extension. (8C) If the Minister is of the opinion that, having regard to the period of extension, it will not be reasonably possible to cause a copy of the report to be laid before each House of the Parliament on or before 31 October, the Minister must, on or before that date, cause to be laid before each House of the Parliament: (a) a copy of the statement given under paragraph (8B)(a) in respect of the application; and (b) a statement setting out: (i) the period of extension granted; and (ii) the Minister’s reasons for granting the extension; and (iii) the date on or before which the report will be prepared and given; and (iv) the date (which must not be later than 7 days after the date referred to in subparagraph (iii)) on or before which a copy of the report will be laid before that House. (8D) If the Secretary of a Department fails to give a report to the Minister administering the Department on or before the date by which it is required by the preceding provisions to be given: (a) the Secretary must, not later than 14 days after that date, give to the Minister a written statement explaining why the report was not given as required; and (b) the Minister must cause a copy of the statement to be laid before each House of the Parliament within 3 sitting days of that House after the day on which he or she receives the statement. (8E) If: (a) a Minister is required by this section to cause a copy of a report, or a statement, to be laid before a House of the Parliament on or before a particular day; and (b) it is not possible to cause the copy of the report, or the statement, to be laid before the House before that day; and (c) the House is not sitting on that day; and (d) the rules or orders of the House do not allow papers to be presented when the House is not sitting; the Minister must cause the copy of the report, or the statement, to be laid before the House within 5 sitting days of the House after that day. (9) In subsection (6), Department means a Department referred to in paragraph (a) of the definition of Department in subsection 7(1) other than the Department of the Senate, the Department of the House of Representatives, the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff and the Joint House Department. ##### 26 Delegation by Secretaries of Departments (1) Subject to subsection (4), a Secretary may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to a person (not being a person engaged as a consultant under section 4 of the Members of Parliament (Staff) Act 1984) all or any of his powers or functions under: (a) a relevant Act; (b) the regulations made under a relevant Act; (c) a determination under subsection 9(7A) or section 82D; or (d) an industrial award; other than this power of delegation. (2) A power or function so delegated, when exercised or performed by the delegate, shall, for the purposes of the relevant Act, the regulations, the determination or the industrial award, as the case requires, be deemed to have been exercised or performed, as the case may be, by the Secretary. (3) A delegation of a power or function by the Secretary of a Department under subsection (1): (a) may be absolute or conditional; (b) does not prevent the exercise of the power or the performance of the function by the Secretary; (c) subject to paragraph (d), continues in force notwithstanding the appointment of another person as the Secretary of the Department; and (d) may be revoked by instrument in writing signed by the Secretary for the time being of the Department. (3A) Where a Secretary has delegated a power or function to a person under subsection (1), the Secretary may give directions to the delegate with respect to the exercise of the power or the performance of the function. (4) A Secretary is not empowered to delegate a power or function under subsection (1) to a person who is not: (a) an officer or an employee; or (b) a person appointed to an office, under a law of the Commonwealth, by the Governor‑General or a Minister; unless the Board approves, in writing, the delegation of the power or function to that person. (6) In this section, relevant Act means: (a) this Act; or (b) the Merit Protection (Australian Government Employees) Act 1984. ##### 26AA The Senior Executive Service (1) The officers who are Senior Executive Service officers constitute the Senior Executive Service. (2) The Senior Executive Service is established in order to provide for a group of officers who: (a) may undertake higher level policy advice, managerial and professional responsibilities in Departments; and (b) may be deployed so as best to promote the efficiency of the Australian Public Service. ### Division 2A—Creation and abolition of offices ##### 27 Creation and abolition of offices (1) The Secretary of a Department, for the purpose of enabling the Department to perform its functions, may, in writing: (a) create an office in the Department; or (b) abolish an office in the Department. (2) An instrument under subsection (1) creating an office shall specify the classification of the office, being an approved classification under subsection 28(1). ##### 28 Classification of offices and officers (1) A classification is an approved classification for the purposes of this Act if and only if: (a) a determination under section 82D is in force in respect of salary in relation to offices having that classification; or (b) in a case to which paragraph (a) does not apply—the Board declares, in writing, that the classification is an approved classification for the purposes of this subsection. (1A) The Board may, in writing: (a) declare a classification to be a Senior Executive Service classification; or (b) declare all classifications included in a specified class of classifications to be Senior Executive Service classifications. (2) Where the rate of salary, or the maximum rate of salary, as the case requires, payable in respect of 2 offices is the same, the classifications of the 2 offices shall be taken to be equal. (3) Where the rate of salary, or the maximum rate of salary, as the case requires, payable in respect of an office is greater than the rate of salary, or the maximum rate of salary, as the case requires, payable in respect of another office, the classification of the first‑mentioned office shall be taken to be higher than the classification of the second‑mentioned office. (4) Subject to subsections 63K(3A), 63L(3A), 76F(1A), 76L(3) and 76W(3), an unattached officer who held an office immediately before becoming an unattached officer shall, until he ceases to be an unattached officer, have a classification corresponding to the classification of that office. (5) Nothing in subsection (1) shall be taken as limiting in any way the provision that may be made by an industrial award to vary the salary applicable in relation to an office or an officer. ##### 29 Administrative re‑arrangements (1) Where a Department is abolished, the Prime Minister may, in writing: (a) create in another Department, or direct the relevant Secretary of another Department to create in that other Department, an office (in this subsection referred to as the substituted office): (i) that has the same classification as an office (in this subsection referred to as the former office) that existed in the first‑mentioned Department immediately before it was abolished; and (ii) the holder of which is required to perform substantially the same duties as the holder of the former office was required to perform; and (b) declare the substituted office to be, or when created to be, in substitution for the former office. (2) Where, by virtue of administrative arrangements approved by the Governor‑General or the Prime Minister, or by virtue of the establishment, by an Act, of a Department of a kind referred to in paragraph (b) of the definition of Department in subsection 7(1), a matter is to be dealt with by a different Department (in this subsection referred to as the gaining Department) from the Department (in this subsection referred to as the losing Department) by which that matter was dealt with immediately before that approval or establishment, as the case may be, the Prime Minister may, in writing: (a) abolish, or direct the Secretary of the losing Department to abolish, an office (in this subsection referred to as the former office) in the losing Department the holder of which is required to perform duties that: (i) relate wholly or mainly to that matter; or (ii) are, in the opinion of the Prime Minister, ancillary to, or attributable to, that matter; (b) create, or direct the Secretary of the gaining Department to create, in the gaining Department an office (in this subsection referred to as the substituted office): (i) that has the same classification as the former office; and (ii) the holder of which is required to perform substantially the same duties as the holder of the former office was required to perform; and (c) declare the substituted office to be, or when created to be, in substitution for the former office. ##### 29A Re‑classification of offices (1) The Secretary of a Department may, in writing, alter the classification of an office in the Department to the classification specified in the instrument, being a classification that is an approved classification under subsection 28(1). (2) The Board may, by notice in writing to the Secretary of a Department, direct the Secretary to alter the classification of an office in a Department or the classification of offices in the Department, being offices included in a class of offices specified in the notice, to the classification specified in the notice, being a classification that is an approved classification under subsection 28 (1). (3) Subject to subsection (4), where: (a) the classification of an office is altered; and (b) the rate of salary, or the maximum rate of salary, payable in respect of the office immediately after the alteration is different from the rate of salary, or the maximum rate of salary, payable in respect of the office immediately before the alteration; the office becomes vacant and the officer who held the office immediately before the alteration becomes an unattached officer. (4) The Board may, in writing, direct that subsection (3) shall not apply to or in relation to alterations of the classification of offices included in a specified class of alterations of the classification of offices. ### Division 2B—Part‑time offices ##### 29B Part‑time offices (1) An office in a Department (other than the office of Secretary) may, with the consent of the officer (if any) holding the office, be declared by the relevant Secretary, in writing, to be a part‑time office. (2) A declaration under subsection (1) in relation to an office shall not be varied, amended or revoked without the consent of the officer holding the office. (3) Where: (a) an office (in this subsection referred to as the former office) is a part‑time office; and (b) another office (in this subsection referred to as the substituted office) is created in another Department and is declared, under subsection 29(1) or (2), to be in substitution for the former office; the declaration made under subsection (1) in respect of the former office has effect, after the creation of the substituted office, as if it had been made in relation to the substituted office by the Secretary of the Department referred to in paragraph (b). (4) The Board, after consultations with the organizations that are relevant staff organizations in relation to offices in Departments, may, by notice published in the Gazette, notify procedures to be followed in relation to the operation of the provisions of this Act in relation to part‑time employment. ##### 29C Hours of attendance of part‑time officers (1) A declaration under subsection 29B(1) in relation to an office shall specify, subject to subsection (2), the hours of attendance that are to be applicable to the officer who occupies the office. (2) A declaration under subsection 29B(1) in relation to an office shall not specify hours of attendance that are: (a) greater than the hours of attendance prescribed by the regulations, for the purpose of this paragraph, in relation to that office or in relation to a class of offices in which that office is included; or (b) less than the hours of attendance prescribed by the regulations, for the purpose of this paragraph, in relation to that office or in relation to a class of offices in which that office is included. (3) Regulations made for the purpose of paragraph (2)(a) shall not prescribe hours of attendance in relation to an office, or offices included in a class of offices, that are greater than the hours of attendance that would be applicable to the office, or those offices, if a declaration, or declarations, under subsection 29B(1) were not made in relation to the office, or those offices. (4) The hours of attendance applicable to an officer who holds an office in relation to which there is in force a declaration under subsection 29B(1) shall, notwithstanding anything in: (a) the regulations or in a determination under subsection 9(7A) or section 82D; or (b) an industrial award made before the commencement of this section; be the hours of attendance specified in the declaration. ##### 29D Hours of attendance of certain unattached officers (1) Subject to subsection (5), where an officer: (a) becomes an unattached officer; and (b) immediately before becoming an unattached officer, held a part‑time office; the hours of attendance applicable to the unattached officer shall, until he ceases to be an unattached officer, be the hours of attendance applicable to the officer immediately before he became an unattached officer. (2) Subject to subsection (5), where: (a) a person who had previously ceased to be an officer is re‑ appointed to the Service as an unattached officer in pursuance of section 63F, 63G, 87Q or 87R; and (b) the person, immediately before he ceased, or last ceased, to be an officer: (i) held a part‑time office; or (ii) was an unattached officer to whom subsection (1) of this section applied; the hours of attendance applicable to the person shall, until he ceases to be an unattached officer, be the hours of attendance applicable to him immediately before he ceased, or last ceased, to be an officer. (3) Subject to subsection (5), where: (a) a person is appointed under section 42, or re‑appointed under section 47B or 47C, to the Service as an unattached officer; and (b) the Board is satisfied that the person will, when he ceases to be an unattached officer, be appointed to a part‑time office; the Board may declare, in writing, that the hours of attendance that are applicable to the officer shall, until he ceases to be an unattached officer, be those specified in the declaration. (4) The hours of attendance applicable to an officer in relation to whom there is in force a declaration under subsection (3) shall, notwithstanding anything in: (a) the regulations or a determination under subsection 9(7A) or section 82D; or (b) an industrial award made before the commencement of this section; be the hours of attendance specified in the declaration. (5) Where the hours of attendance applicable to a person are ascertained in accordance with subsection (1), (2), (3) or a previous application of this subsection, the relevant Secretary may, with the consent of the person, determine, in writing, that the hours of attendance applicable to the person are those specified in the determination and, where such a determination is made, the hours of attendance that are applicable to the person shall, until he ceases to be an unattached officer, be those specified in the determination. (6) Subsection 29C(2) applies in relation to a determination under subsection (5) in like manner as it applies in relation to a declaration under subsection 29B(1). (7) Subsections (1), (2) and (5) have effect notwithstanding anything in an industrial award made before the commencement of this section. ### Division 4—Appointments, transfers and promotions #### Subdivision A—Preliminary ##### 33AAA Interpretation (1) In this Division, unless the contrary intention appears: > Committee means a Promotion Appeal Committee. > non‑appellable promotion means a promotion under section 50 to an office having: (a) a classification equal to or higher than the classification of Senior Officer Grade C; or (b) a classification equivalent to a classification referred to in paragraph (a), being a classification prescribed, or included in a class of classifications prescribed, by the regulations; being a promotion notified in the Gazette after the commencement of section 20 of the Public Service Legislation (Streamlining) Act 1986. > prescribed day means: (a) in relation to a promotion of an officer under section 49B, 50 or 50DA—the later of: (i) a day ascertained in accordance with the regulations, being a day occurring not earlier than the day on which the promotion is notified in the Gazette; and (ii) the day on which the office to which the officer is promoted becomes vacant; and (b) in relation to a transfer of an officer under section 49, 50 or 50DA—the later of: (i) a day ascertained in accordance with the regulations, being a day occurring not earlier than the day on which the officer is given notice of the transfer under subsection 49(4), 50(5A), 50DA(8) or 50DB(8), as the case requires; and (ii) the day on which the office to which the officer is transferred becomes vacant. > promotion, in relation to an officer other than an SES officer, means a movement of the officer within the Service for the purpose of holding: (a) an office of a higher classification than that of the office held by the officer immediately before the movement took place; or (b) an office in respect of which the rate of salary payable is higher than the rate of salary that was payable in respect of the office held by the officer or, in the case of an unattached officer, to or in respect of the officer, immediately before the movement took place. > promotion, in relation to an SES officer, means a movement of the officer within the Service for the purpose of holding an office of a higher classification than that of the office held by the officer immediately before the movement took place. > Promotion Appeal Committee means a Promotion Appeal Committee established under Subdivision B of Division 2 of Part II of the Merit Protection (Australian Government Employees) Act 1984. (2) In this Division, unless the contrary intention appears, a reference to a vacant office includes a reference to an office that is expected to become vacant and a reference to a vacancy includes a reference to a vacancy that is expected to occur. (3) In this Division, a reference to the determination of an appeal against the promotion of an officer is a reference to the allowing or disallowing of the appeal under section 50D. (4) For the purposes of this Division, an appeal shall be taken to become inoperative if: (a) the appeal is withdrawn; (b) the appeal lapses by virtue of section 50F or 50G; (c) the appellant or the officer against whose promotion the appeal was made ceases to be an officer, otherwise than by virtue of his or her becoming a person to whom Division 3 of Part IV applies; (d) the appellant or the officer against whose promotion the appeal was made ceases, by reason of his or her promotion to another office having taken effect or for any other reason, to be eligible for promotion to the office concerned; or (e) the promotion against which the appeal was made lapses under regulations made under section 50E. (5) For the purposes of this Division, the parties to particular appeal proceedings are the officer promoted under section 50 and the appellant or appellants. ##### 33 Application of merit principle, prohibition of patronage etc. (1) Powers under this Act in respect of appointment shall be exercised in accordance with procedures that ensure that, in each case where an appointment to the Service is to be made: (a) all persons who are eligible for appointment to the Service have, so far as is practicable, a reasonable opportunity to apply for the appointment; and (b) the appointment is made on the basis of an assessment of the relative suitability of the applicants for the appointment, having regard to: (i) the nature of the duties to be performed by the person appointed; and (ii) the abilities, qualifications, experience, personal qualities and potential for development of each applicant that are relevant to the performance of those duties. (2) Without limiting the generality of subsection (1), powers under this Act shall be exercised without patronage or favouritism. (3) Without limiting the generality of subsection (1), powers under this Act in respect of appointments, transfers and promotions shall, subject to subsection (4), be exercised without: (a) discrimination on the ground of political affiliation, race, colour, ethnic origin, social origin, religion, sex, sexual preference, marital status, pregnancy, age or physical or mental disability; (b) discrimination that is unlawful under the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984; or (c) any other unjustified discrimination. (4) The reference in subsection (3) to discrimination in relation to a power in respect of appointment, transfer or promotion shall be read as not including a reference to: (a) discrimination that is essential for the effective performance of the duties to which the appointment, transfer or promotion relates, is not unlawful under the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984 and is declared by the regulations not to be discrimination for the purposes of subsection (3); or (b) discrimination in relation to appointment, transfer or promotion that is not unlawful under the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984 and is in accordance with a program to encourage the appointment of women or persons in a designated group to the Service, being a program that is declared by the regulations to be an approved program for the purposes of this paragraph. (5) Where the exercise of a power in respect of appointment is, by virtue of paragraph (4)(b), not discrimination for the purpose of subsection (3), the power shall be taken to have been exercised in accordance with procedures of the kind referred to in subsection (1). (6) A reference in this section to the exercise of a power under this Act includes a reference to the making of a report or recommendation in relation to the exercise of such a power. ##### 33A Notification of certain matters related to appointment, transfer, promotion or advancement (1) The Board may from time to time, by notice published in the Gazette, notify: (a) the manner in which applications for appointment to the Service will be invited; (b) the manner of ascertaining the order in which appointments of persons who apply for appointment to specified vacancies or to vacancies included in a specified class of vacancies will be made; (c) the academic or other qualifications required, or the conditions to be satisfied, for appointment to the Service; (d) the academic or other qualifications required, or the conditions to be satisfied, for appointment, transfer or promotion to a specified office or to an office included in a specified class of offices, or for appointment as an unattached officer of the Service; (da) for the purpose of section 53, an examination or test in relation to offices included in a specified class of offices; (e) the circumstances in which a vacancy may be filled by a transfer or promotion under section 50DB or 53; or (f) such other matters with respect to appointments, transfers or promotions as the Board considers desirable. (1A) Where a scale of rates of salary is applicable to an office, or offices included in a class of offices, the Board may, by instrument in writing published in the Gazette: (a) determine that an officer occupying that office, or an office included in that class of offices, shall, upon compliance with such conditions as are specified in the instrument, be paid salary at such rate in that scale as is specified or referred to in the instrument; and (b) determine that an officer occupying that office, or an office included in that class of offices, shall not be paid salary at a rate in that scale exceeding such rate as is specified or referred to in the instrument unless the officer has complied with such conditions as are specified in the instrument. (2) A qualification or condition set out in a notification under paragraph (1)(c) or (d), or a condition set out in an instrument under subsection (1A), may be a qualification or condition that is defined or expressed by reference to the opinion of the Board, or the opinion of a person specified in the notification or instrument, in relation to a particular matter. ##### 33AA Notification of vacancies in SES offices (1) Where a vacancy exists, or is expected to occur within the period prescribed by the regulations for the purposes of this subsection, in a Senior Executive Service office in a Department, the relevant Secretary shall give notice in writing to the Commissioner of the vacancy or expected vacancy. (2) Where the relevant Secretary proposes that a vacancy in a Senior Executive Service office be filled, within the period prescribed by the regulations for the purposes of this subsection, otherwise than by the exercise of a power under subsection 49(1A) or paragraph 49(1B)(a), (b) or (ba) to transfer an officer to the office, the relevant Secretary shall: (a) cause notification of the vacancy to be published in the Gazette; and (b) take such other action (if any) as the Secretary thinks necessary to advertise the vacancy. (3) Subsections (1) and (2) do not apply to a vacancy in a Senior Executive Service office in a case where the Commissioner directs that the vacancy is to be filled by the re‑appointment of a person in accordance with section 47C. (3A) Subsections (1) and (2) do not apply to a vacancy in a Senior Executive Service office in a case where the vacancy occurred, after a previous vacancy in the office was filled by the appointment, promotion or transfer of a person to the office, without that person having started to perform the duties of the office but, if the Commissioner so directs, the relevant Secretary shall comply with subsection (2) in relation to the vacancy. (4) Where a vacancy in a Senior Executive Service office is notified in the Gazette in pursuance of subsection (2): (a) any person (not being an officer) who is eligible for appointment to the Service may apply for appointment to the office; and (b) any officer may apply for promotion or transfer to the office. ##### 33B Board may arrange for tests and examinations The Board may, from time to time, for the purposes of this Division, arrange for the taking of tests or examinations: (a) by applicants for appointment to the Service, or by applicants for appointment to the Service included in a particular class of such applicants; or (b) by officers who wish to become eligible for promotion or transfer to particular offices, or to offices included in a particular class of offices. ##### 33C Unattached officers (1) The Secretary of a Department may, with the consent in writing of an officer who holds an office in the Department, declare, in writing, that the officer shall, on a day specified in the declaration, become an unattached officer and, if the Secretary does so, the office so held by the officer becomes vacant on the day so specified. (2) Except as otherwise directed by the Board under this or another provision of this Act, a person who is, or is deemed to be, an unattached officer of the Service is included in the Department in which the person last held an office. ##### 34 Eligibility for appointment to the Service A person is not eligible for appointment to the Service unless the Board is satisfied that the person is a fit and proper person to be an officer of the Service. #### Subdivision B—Appointment of Secretaries of Departments ##### 35 Interpretation In this Subdivision, unless the contrary intention appears: > appointment includes re‑appointment. > office of Secretary means an office referred to in paragraph (a) of the definition of office of Secretary in subsection 7(1), but does not include an office to or in relation to which section 9 applies. ##### 36 Appointment of Secretaries of Departments (1) The Governor‑General may, in writing, appoint a person to an office of Secretary. (2) The power of the Governor‑General to appoint a person to an office under subsection (1) shall be exercised only in accordance with advice that is consistent with a recommendation by the Prime Minister. (3) The Prime Minister shall not recommend, for the purposes of subsection (2), that a person be appointed under subsection (1) to an office of Secretary unless the Prime Minister has received a written report in relation to the filling of the vacancy or expected vacancy from: (a) in the case of 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. (4) A report under subsection (3) in relation to an appointment of a person as Secretary of a Department shall be disregarded for the purposes of that subsection unless the person preparing the report has, before preparing the report, consulted with the person who is the Minister administering that Department at the time when the appointment is made. (5) The appointment of a person to an office of Secretary is not invalidated, and shall not be called in question, by reason of a defect or irregularity in or in connection with the appointment. ##### 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). ##### 38 Superannuation benefits for fixed‑term Secretaries of Departments (1) In this section: > pensioner means: (aa) a person to whom an invalidity pension within the meaning of the Superannuation Act 1990 is payable; or (a) a person to whom an invalidity pension within the meaning of the Superannuation Act 1976 is payable; or (b) a person to whom a pension under the Superannuation Act 1922 is payable, being a person who was retired on the ground of invalidity or of physical or mental incapacity to perform the person’s duties. > relevant person means a person other than: (a) an eligible employee within the meaning of the Superannuation Act 1976; or (ab) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or (b) a pensioner. (2) For the purposes of the Superannuation Act 1976, a person who holds a fixed‑term appointment, within the meaning of section 37, to an office of Secretary and was a relevant person immediately before being given the appointment is not, by reason only of his holding that appointment, an eligible employee within the meaning of that Act. (2A) For the purposes of the Superannuation Act 1990, a person who holds a fixed term appointment, within the meaning of section 37, to an office of Secretary and was a relevant person immediately before being appointed is not, by reason only of his or her holding that appointment, a member of the superannuation scheme established by deed under that Act. (3) The Board may: (a) at the time when a relevant person is appointed to an office of Secretary under a fixed‑term appointment within the meaning of section 37; or (b) as soon as practicable after the making of the appointment; make a determination in writing in relation to the provision to the person of superannuation benefits or benefits in the nature of superannuation benefits. (4) Without limiting the generality of subsection (3), a determination under that subsection in relation to a relevant person may provide that, if the relevant person was appointed before 1 July 1990, the Superannuation Act 1976 applies in relation to the person as if the person became an eligible employee within the meaning of that Act on a specified day, which may be on or after, or not earlier than 3 months before, the date of the determination, and where a determination so provides, the Superannuation Act 1976 has effect accordingly. (4A) Without limiting subsection (3), a determination under that subsection in relation to a relevant person appointed after 30 June 1990 may provide that the Superannuation Act 1976 applies in relation to the person as if the person became an eligible employee within the meaning of that Act on a specified day if: (a) immediately before the person was appointed, deferred benefits were applicable to him or her under the Superannuation Act 1976 or the Superannuation Act 1922; or (b) the person became, by virtue of his or her being so appointed, a re‑employed former contributor with preserved rights within the meaning of the Superannuation Act 1976; and where a determination so provides, the Superannuation Act 1976 has effect accordingly. (4B) The day specified in the determination may be on or after, or not earlier than 3 months before, the date of the determination. (4C) Without limiting subsection (3), a determination under that subsection in relation to a relevant person may provide that the Superannuation Act 1990 applies in relation to the person as if the person became a member of the superannuation scheme established by deed under that Act on a specified day if the person: (a) is appointed after 30 June 1990; and (b) is not a person to whom paragraph (4A)(a) or (b) applies; and where a determination so provides, that Act has effect accordingly. (4D) The day specified in the determination may be on or after, or not earlier than 3 months before, the date of the determination, but is not to be before 1 July 1990. (5) Notwithstanding anything in the Superannuation Act 1976 or any other Act, the Superannuation Act 1976: (a) does not apply in relation to a person who holds a fixed‑term appointment, within the meaning of section 37, to an office of Secretary and was a relevant person immediately before being given the appointment unless the application of that Act is expressly provided for, in accordance with subsection (4) or (4A), in a determination under subsection (3) in relation to the person; and (b) does not apply in relation to the person except as provided by subsection (4) or (4A). (5A) The Superannuation Act 1990 applies in relation to a person referred to in paragraph (5)(a) if the person makes a declaration and election under subsection 244(1) of the Superannuation Act 1976. (5B) If the person revokes, under section 247 of the Superannuation Act 1976, the declaration and election made under subsection 244(1) of that Act, subsection (5) applies in relation to the person as if he or she had not made the declaration and election. (5C) Subject to subsection (5A), in spite of anything in the Superannuation Act 1990 or any other Act, the Superannuation Act 1990: (a) applies in relation to a person who holds a fixed‑term appointment, within the meaning of section 37, to an office of Secretary and was a relevant person immediately before being appointed only if the application of that Act is expressly provided for in a determination under subsection (3) in relation to the person; and (b) applies in relation to the person only as provided by subsection (4C). (6) The Board is not empowered to make a determination for the purposes of subsection (3) except in accordance with arrangements approved by the Minister for Finance. ##### 39 Acting appointments of Secretaries of Departments (1) The Prime Minister may, in writing, appoint an officer or employee to act in an office of Secretary: (a) during a vacancy in the office, whether or not an appointment has previously been made to the office; (b) during a period (if any) when the holder of the office is suspended from duty under section 57 or 59; or (c) during a period, or during all periods, when the holder of the office is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his office. (2) An appointment under this section by reason of a vacancy in an office shall not be made, or continue to have effect, after the expiration of a period of 12 months from the date of the occurrence of the vacancy. (3) An appointment of an officer or employee under subsection (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment. (4) The Prime Minister may at any time, in writing, terminate an appointment under subsection (1). (5) Where an officer or employee is acting in an office in accordance with paragraph (1)(b) or (c) and that office becomes vacant while that officer or employee is so acting, then, subject to subsection (3), that officer or employee may continue so to act until the Prime Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens. (6) While an officer or employee is acting in an office in accordance with subsection (1), he has and may exercise all the powers, and shall perform all the functions, of the holder of that office under this Act or any other law. (7) The validity of anything done by or in relation to an officer or employee purporting to act under subsection (1) shall not be called in question on the ground that: (a) the occasion for his appointment had not arisen; (b) there is a defect or irregularity in or in connection with his appointment; (c) the appointment had ceased to have effect; or (d) the occasion for him to act had not arisen or had ceased. ##### 40 Dual appointment of Secretaries of Departments (1) Where a person who holds an office of Secretary is appointed to hold another office of Secretary, the person shall, unless the instrument of appointment to the second‑mentioned office otherwise provides, cease to hold the first‑mentioned office upon being so appointed. (2) Subsection (1) does not apply in relation to a person who holds an appointment to an office of Secretary that is a fixed‑term appointment within the meaning of section 37. (3) A person who at any time holds an office of Secretary may be appointed to act in another office of Secretary and shall not, by reason only of being so appointed, cease to hold the first‑mentioned office. (4) Where a person who holds an appointment to act in an office of Secretary is appointed to act in another office of Secretary, the person shall, unless the instrument of appointment to act in the second‑mentioned office otherwise provides, cease to hold the first‑mentioned appointment upon being so appointed. (5) If a person who holds, or holds an appointment to act in, an office of Secretary is appointed under subsection (1), (3) or (4) to hold, or to act in, another office of Secretary and does not cease to hold, or to hold the appointment to act in, the first‑mentioned office, he shall be paid remuneration, whether by way of salary, annual allowance or otherwise, in respect of his holding, or holding the appointment to act in, only one of those offices. (6) Where subsection (5) applies in relation to a person in respect of 2 or more offices and the remuneration payable in respect of one or more of those offices is higher than the remuneration payable in respect of the other office or other offices, the person shall be paid remuneration in respect of his holding, or holding an appointment to act in, the office or one of the offices in respect of which that higher remuneration is payable. (7) This section has effect notwithstanding anything contained in any other section of this Act or in the Remuneration Tribunal Act 1973. (8) Nothing in this section shall be construed as excluding the application of subsection 19B(3) of the Acts Interpretation Act 1901 in relation to any provision of this section. ##### 41 Certain provisions not to apply to appointments under this Subdivision Sections 33 and 34 do not apply in relation to an appointment (including an appointment to act in an office) under this Subdivision. #### Subdivision C—Appointment of officers other than Secretaries of Departments ##### 42 Appointment of officers other than Secretaries of Departments (1) Subject to this Part, the Board may appoint a person to a particular office in the Service (not being an office of Secretary) or as an unattached officer in the Service. (2) An unattached officer appointed under subsection (1) shall have such classification as the Board determines to be appropriate to his duties. (3) A person shall not be appointed as an unattached officer unless he is qualified for appointment to an office having a classification corresponding to his classification as an unattached officer. ##### 42A Appointment of certain continuing employees (1) Where the Prime Minister, by notice in the Gazette, declares that this section applies to a specified class of persons employed under section 82AC, the Board may appoint to an office in the Service (other than the office of Secretary) a person included in that class. (2) An appointment of a person under subsection (1) may be made: (a) on probation or otherwise; (b) in accordance with such procedure (whether or not complying with paragraph 33(1)(a)) as the Board thinks fit; and (c) whether or not the person is ineligible for appointment by reason of section 34. ##### 43 Special appointments (1) Subject to this section, if in a special case it appears to the Board to be desirable in the public interest to do so, the Board may, under this section, appoint to an office in the Service (other than an office of Secretary) a person who is not ineligible for appointment by reason of section 34 but does not have the academic or other qualifications required for appointment to the office by virtue of a notification under subsection 33A(1). (2) An appointment of a person under this section to an office shall not be made unless the Board certifies that it is satisfied that there is no officer available in the Service who is as capable as that person of filling the office. (3) Where the Board makes an appointment under this section, it shall cause a statement containing particulars of the appointment, together with a copy of the certificate referred to in subsection (2), to be laid before each House of the Parliament within 15 sitting days of that House after the making of the appointment. ##### 44 Fixed‑term appointments to Senior Executive Service (1) Where a person is appointed under section 42 as a Senior Executive Service officer, the Commissioner may determine, in writing, that the person is appointed to the Service to hold office as a Senior Executive Service officer for such period (not exceeding 5 years and not extending beyond the date on which the person will attain the age of 65 years) as is specified in the determination and, where such a determination is made in relation to an appointment, the appointment is a fixed‑term appointment for the purpose of this section. (1A) If: (a) the period of a person’s fixed‑term appointment under subsection (1) is less than 5 years; and (b) the relevant Secretary recommends to the Commissioner that the period of the fixed‑term appointment should be extended; the Commissioner may extend, by written determination, the period of the fixed‑term appointment for a further period. (1B) An extension under subsection (1A) of the period of a fixed‑term appointment must be made before the end of the fixed‑term appointment. (1C) If the period of a fixed‑term appointment is extended, the appointment has effect as if it was for the original period of the fixed‑term appointment as so extended. (1D) The Commissioner must not extend the period of a fixed‑term appointment of a person so that the period as so extended: (a) ends later than 5 years after the appointment started; or (b) ends after the day on which the person turns 65. (2) The Commissioner may, at the time when a person is given a fixed‑term appointment under subsection (1), or the fixed‑term appointment is extended under subsection (1A), determine, in writing, that, subject to the conditions (if any) specified in the determination, if the person is retired from the Service under subsection (3) before the end of the period of the appointment or the extension, the person is entitled to such compensation as is specified in, or ascertained in accordance with, the determination. (3) Where a person is a Senior Executive Service officer by virtue of a fixed‑term appointment, the appointment of the person to the Service terminates and the person is deemed to be retired from the Service if: (a) the period for which the appointment was made expires; or (b) the Commissioner, before the expiration of the period for which the appointment was made, directs, in writing, that the appointment of the person to the Service is terminated on a day specified in the instrument of direction, being a day not earlier than the day on which the direction is given. (4) The Commissioner shall not direct under subsection (3) 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. (5) A person who is retired from the Service under subsection (3) is eligible for re‑appointment to the Service (whether by way of fixed‑term appointment or otherwise). (6) Division 8B does not apply to or in relation to a person who is a Senior Executive Service officer by virtue of a fixed‑term appointment. ##### 45 Superannuation benefits for fixed‑term Senior Executive Service officers (1) In this section: > pensioner means: (aa) a person to whom an invalidity pension within the meaning of the Superannuation Act 1990 is payable; or (a) a person to whom an invalidity pension within the meaning of the Superannuation Act 1976 is payable; or (b) a person to whom a pension under the Superannuation Act 1922 is payable, being a person who was retired on the ground of invalidity or of physical or mental incapacity to perform the person’s duties. > relevant person means a person other than: (a) an eligible employee within the meaning of the Superannuation Act 1976; or (ab) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or (b) a pensioner. (2) For the purposes of the Superannuation Act 1976, a person who is a Senior Executive Service officer by virtue of a fixed‑term appointment, within the meaning of section 44, and was a relevant person immediately before being given the appointment is not, by reason only of his holding that appointment, an eligible employee within the meaning of that Act. (2A) For the purposes of the Superannuation Act 1990, a person who is a Senior Executive Service officer by virtue of a fixed‑term appointment, within the meaning of section 44, and was a relevant person immediately before being appointed is not, by reason only of his or her holding that appointment, a member of the superannuation scheme established by deed under that Act. (3) The Board may, at the time when a relevant person is given a fixed‑term appointment, within the meaning of section 44, as a Senior Executive Service officer, make a determination in writing in relation to the provision to the person of superannuation benefits or benefits in the nature of superannuation benefits. (4) Without limiting the generality of subsection (3), a determination under that subsection in relation to a relevant person may provide that, if the relevant person was appointed before 1 July 1990, the Superannuation Act 1976 applies in relation to the person as if the person became an eligible employee within the meaning of that Act on a specified day, which may be on or after, or not earlier than 3 months before, the date of the determination, and where a determination so provides, the Superannuation Act 1976 has effect accordingly. (4A) Without limiting subsection (3), a determination under that subsection in relation to a relevant person appointed after 30 June 1990 may provide that the Superannuation Act 1976 applies in relation to the person as if the person became an eligible employee within the meaning of that Act on a specified day if: (a) immediately before the person was appointed, deferred benefits were applicable to him or her under the Superannuation Act 1976 or the Superannuation Act 1922; or (b) the person became, by virtue of his or her being so appointed, a re‑employed former contributor with preserved rights within the meaning of the Superannuation Act 1976; and where a determination so provides, the Superannuation Act 1976 has effect accordingly. (4B) The day specified in the determination may be on or after, or not earlier than 3 months before, the date of the determination. (4C) Without limiting subsection (3), a determination under that subsection in relation to a relevant person may provide that the Superannuation Act 1990 applies in relation to the person as if the person became a member of the superannuation scheme established by deed under that Act on a specified day if the person: (a) is appointed after 30 June 1990; and (b) is not a person to whom paragraph (4A)(a) or (b) applies; and where a determination so provides, that Act has effect accordingly. (4D) The day specified in the determination may be on or after, or not earlier than 3 months before, the date of the determination, but is not to be before 1 July 1990. (5) Notwithstanding anything in the Superannuation Act 1976 or any other Act, the Superannuation Act 1976: (a) does not apply in relation to a person who is a Senior Executive Service officer by virtue of a fixed‑term appointment, within the meaning of section 44, and was a relevant person immediately before being given the appointment unless the application of that Act is expressly provided for, in accordance with subsection (4) or (4A), in a determination under subsection (3) in relation to the person; and (b) does not apply in relation to the person except as provided by subsection (4) or (4A). (5A) The Superannuation Act 1990 applies in relation to a person referred to in paragraph (5)(a) if the person makes a declaration and election under subsection 244(1) of the Superannuation Act 1976. (5B) If the person revokes, under section 247 of the Superannuation Act 1976, the declaration and election made under subsection 244(1) of that Act, subsection (5) applies in relation to the person as if he or she had not made the declaration and election. (5C) Subject to subsection (5A), in spite of anything in the Superannuation Act 1990 or any other Act, the Superannuation Act 1990: (a) applies in relation to a person who is a Senior Executive Service officer by virtue of a fixed‑term appointment, within the meaning of section 44, and was a relevant person immediately before being appointed only if the application of that Act is expressly provided for in a determination under subsection (3) in relation to the person; and (b) applies in relation to the person only as provided by subsection (4C). (6) The Board is not empowered to make a determination for the purposes of subsection (3) except in accordance with arrangements approved by the Minister for Finance. ##### 47 Appointments to be on probation (1) Subject to subsection (2), the appointment of a person to the Service as an officer (other than a Secretary) shall, in the first instance, be an appointment on probation. (2) The Commissioner may appoint a person to the Service without probation, but: (a) shall not so appoint a person who is not an Australian citizen, except in accordance with arrangements approved by the Prime Minister; and b) shall not so appoint a person unless the Commissioner is satisfied: (i) after the person has undergone a medical examination approved by the Commissioner, as to the officer’s health and physical fitness; or (ii) that in the circumstances it is unnecessary to require the person to undergo a medical examination. (3) The Commissioner may, at any time within the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment. (4) The relevant Secretary may, at any time after an officer (other than an SES officer) is appointed to the Service on probation and before the appointment is confirmed, terminate the appointment. (4A) The Commissioner may, at any time after an SES officer is appointed to the Service on probation and before the appointment is confirmed, terminate the appointment. (5) The relevant Secretary may, at any time after the end of the period of 6 months after an officer is appointed to the Service on probation, confirm the appointment. (6) Where, at the end of the period of 12 months after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated: (a) in the case of an officer other than an SES officer—the relevant Secretary must, as soon as practicable, confirm or terminate the appointment; and (b) in the case of an SES officer whose appointment the relevant Secretary intends to confirm—the relevant Secretary must, as soon as practicable, confirm the appointment; and (c) in any other case—the relevant Secretary must, as soon as practicable, give written notice to the Commissioner that he or she does not intend to confirm the appointment. (6A) As soon as practicable after the Commissioner receives a notice mentioned in paragraph (6)(c), the Commissioner must confirm or terminate the appointment. (7) Where, at the end of the period of 2 years after an officer is appointed to the Service on probation, the appointment has been neither confirmed nor terminated, the appointment shall (unless the officer is not an Australian citizen) be deemed to have been confirmed. (8) Where an officer appointed to the Service on probation holds a training office: (a) the reference in subsection (5) to the period of 6 months after an officer is appointed to the Service shall be read as a reference to the period starting when the officer is appointed and ending when the officer completes the course of training concerned; (b) the reference in subsection (6) to the period of 12 months after an officer is appointed to the Service shall be read as a reference to the period starting when the officer is appointed and ending 6 months after the officer completes the course of training concerned; and (c) the reference in subsection (7) to the period of 2 years after an officer is appointed to the Service shall be read as a reference to the period starting when the officer is appointed and ending 12 months after the officer completes the course of training concerned. (9) The Commissioner shall not, under subsection (3) or (6A), and the Secretary shall not, under subsection (5) or (6), confirm the appointment to the Service of an officer unless the Commissioner or Secretary, as the case may be, is satisfied, after the officer has undergone a medical examination approved by the Commissioner, as to the officer’s health and physical fitness. (10) The Commissioner shall not, under subsection (3) or (6A), and the Secretary shall not, under subsection (5) or (6), confirm the appointment to the Service of an officer who is not an Australian citizen, except in accordance with arrangements approved by the Prime Minister. (11) The Commissioner may, under subsection (4A) or (6A), and the relevant Secretary may, under subsection (4) or paragraph (6)(a), terminate an officer’s appointment to the Service on any of the following grounds: (a) that he or she is not satisfied, after receiving a report from an authorised medical practitioner, as to the officer’s health and physical fitness; (b) that he or she considers, after receiving a report from the officer’s supervisor or another appropriate officer, that the manner of the officer’s performance of duties has not been satisfactory; (c) that he or she considers that the officer is not a fit and proper person to remain an officer of the Service; (d) that he or she is satisfied that the officer is an excess officer; (e) in the case of an officer who is not an Australian citizen, that he or she is satisfied: (i) that the person has been refused Australian citizenship; or (ii) that the person is unlikely to be granted Australian citizenship within a reasonable time; or (iii) that the person is not seeking a grant of Australian citizenship with appropriate diligence. (12) An officer whose appointment has been terminated is not, unless the Commissioner otherwise determines, eligible for appointment to the Service within the period of 12 months immediately after the termination. (13) In this section: > appointment includes re‑appointment. > training office means an office that is specified in a determination made by the Commissioner under subsection 53A(1) as an office the occupant of which is required to undergo a course of training lasting at least 12 months for the purpose of enabling the occupant to perform duties that require professional, technical or other knowledge. ##### 47A Special provisions relating to appointment of returned soldiers (1) Where, in relation to any proposed appointments to the Service, an applicant who is a returned soldier and an applicant who is not a returned soldier are placed equal in the order in which, in accordance with a notification under section 33A, appointments to the Service are to be made, the applicant who is a returned soldier shall be preferred for appointment to the other applicant. (3) Notwithstanding anything contained in this Act, a returned soldier may be appointed to the Service or to any office in the Service, although he is not free from physical defects due to service by virtue of which he is a returned soldier, if the Board is satisfied, after such medical examination as it requires, that the returned soldier is free from such physical defects as would incapacitate him for the efficient discharge of the duties that he would, on appointment, be required to perform. ##### 47AA Appointment and confirmation of appointment of certain officers on specified defence service (1) An officer who was on specified defence service on the date on which he was appointed as an officer shall be deemed, for the purposes of section 47, to have commenced duties in pursuance of his appointment on that date. (2) In the case of a probationer who is absent on specified defence service, subsection 47(9) does not apply in relation to confirmation of the appointment of the probationer. ##### 47B Re‑appointment of retired officers (1) Subject to this section, the Board may re‑appoint to the Service, under this section, a person who has, whether before or after the commencement of this subsection, ceased to be an officer. (1A) The Board shall not re‑appoint a person to the Service under this section: (a) if the person ceased, or last ceased, to be an officer by reason of his having been dismissed from the Service for misconduct; or (b) if the person has been engaged in eligible public employment, within the meaning of Part IV, after he ceased, or last ceased, to be an officer and was dismissed from that employment for misconduct. (1B) Subsection (1A) does not apply in relation to a person in relation to whom that subsection would, but for this subsection, apply if: (a) his dismissal was by reason of his having been found by a court to have committed a criminal offence; and (b) the finding of the court has been nullified within the meaning of section 63F. (1C) For the purposes of subsection (1A): (a) a person shall be deemed to have been dismissed from the Service for misconduct: (i) if he was dismissed from the Service under section 55 or 62 of the Public Service Act 1922 as in force at any time before the commencement of this subsection; or (ii) if he was dismissed from the Service after the commencement of this subsection under Division 6; and (b) a person shall be deemed to have been dismissed from eligible public employment, within the meaning of Part IV, for misconduct if he was dismissed from that employment on grounds similar to the grounds on which an officer may be dismissed from the Service under Division 6 of this Part. ##### 47C Re‑appointment of unsuccessful election candidates (1) Where the Board is satisfied that: (a) a person who was an officer: (i) resigned in order to become a candidate for election as a member of a House of the Parliament of the Commonwealth or of a State, of the Legislative Assembly for the Australian Capital Territory, of the Legislative Assembly for the Northern Territory or of a prescribed legislative or advisory body for another Territory; (ii) was a candidate at the election; and (iii) failed to be elected; and (b) the resignation took effect not earlier than 6 months before the date on which nominations for the election closed; the Board shall, upon application by the person within 2 months after the declaration of the result of the election, re‑appoint the person to the Service to fill the office occupied by the person immediately before resigning or an equivalent office or, if such an office is not available, as an unattached officer having the same classification as the person had immediately before resigning. (1A) Where the Commissioner is satisfied that: (a) a person who was an officer holding an office in the Aboriginal and Torres Strait Islander Commission or the Torres Strait Regional Authority: (i) resigned in order to become a candidate for election as a member of a Regional Council established under section 92 of the Aboriginal and Torres Strait Islander Commission Act 1989 or as a member of the Torres Strait Regional Authority established under Part 3A of that Act; (ii) was a candidate at the election; and (iii) failed to be elected; and (b) the resignation took effect not earlier than 6 months before the date on which nominations for the election closed; the Commissioner shall, upon application by the person within 2 months after the declaration of the result of the election, re‑appoint the person to the Service to fill the office occupied by the person immediately before resigning or an equivalent office or, if such an office is not available, as an unattached officer, having the same classification as the person had immediately before resigning. (2) The reference in subsection (1) to the declaration of the result of the election shall, in relation to an election the result of which is challenged, be read as a reference to the determination of the challenge by a court of disputed returns or the lapsing of the challenge, whichever happens first. (2A) The reference in subsection (1A) to the declaration of the result of the election shall, where an election petition has been addressed to the Federal Court of Australia under Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act 1989, be read as a reference to the giving of a final decision on the election petition by the Federal Court. (3) Where: (a) a person who resigned from the Service as mentioned in subparagraph (1)(a)(i) or (1A)(a)(i) was appointed to the Service on probation and, at the time of the resignation, the person’s appointment had not been confirmed; and (b) the person is re‑appointed to the Service under this section; section 47 applies in relation to the person as if the person had not resigned but, for the purpose of calculating periods for the purposes of that section, the period between the person’s resignation and the re‑appointment under this section shall be disregarded. (4) In this section, officer does not include a Secretary or an unattached Secretary. ##### 47D Exchange of officers between Australian Public Service and Territorial Service (1) The Board may make arrangements with the appropriate authority of a Territory for the transfer, for a specified period, of an officer of the Australian Public Service to an office in the Territorial Service or of an officer of the Territorial Service to an office in the Australian Public Service and may do such things as are necessary to carry out the arrangement. (2) Where an officer of the Service is so transferred, the Board may declare his office to be vacant and he shall thereupon be deemed to be an unattached officer. (3) An officer of the Service so transferred whose office has been declared to be vacant is, upon completion of the period for which he was transferred, unless he has been dismissed for misconduct or has attained the maximum age for retirement fixed by this Act, entitled to be appointed to an office in the Service of such status and salary as are determined by the Board, having regard to his former office and the period for which he was transferred. #### Subdivision CA—Transfers and promotions of Senior Executive Service officers ##### 49 Transfer of SES officers (1) For the purposes of subsection 26AA(2), a Senior Executive Service officer in a Department may be transferred to a vacant SES office in accordance with this section. (1A) The Secretary to a Department may transfer: (a) an SES (Specialist) officer in the Department to an SES (Specialist) office within the Department; and (b) an SES officer (other than an SES (Specialist) officer) in the Department to an SES office (other than an SES (Specialist) office) within the Department. (1B) The Commissioner may transfer: (a) an SES (Specialist) officer in a Department to an SES (Specialist) office in another Department; and (b) an SES officer (other than an SES (Specialist) officer) in a Department to an SES (Specialist) office in the Department or to an SES office in another Department; and (ba) an SES (Specialist) officer in a Department to an SES office (other than an SES (Specialist) office) in the Department or another Department if: (i) the officer has spent not more than 3 years in total performing the duties of SES (Specialist) offices at the same or a higher classification, whether as an occupant or otherwise; and (ii) the officer has occupied an SES office, other than an SES (Specialist) office, at the same or a higher classification; and (c) an SES (Specialist) officer in a Department, other than an SES (Specialist) officer to whom paragraph (1B)(ba) applies, to an SES office (other than an SES (Specialist) office) in the Department or another Department. (2) Where it is proposed that an officer be transferred under subsection (1A) or paragraph (1B)(a), (b) or (ba), the relevant Secretary or the Commissioner, as the case requires, shall have regard to: (a) the effect that the proposed transfer would have on: (i) the efficiency of the Service; and (ii) the career development of the officer; and (b) the views of the officer in relation to the proposed transfer. (3) The Commissioner must not transfer an officer in a Department to an office in another Department unless the Commissioner has consulted with each of the relevant Secretaries in relation to the proposed transfer. (4) An officer who is transferred under subsection (1A) or (1B) must be given notice in writing of the transfer. (5) Where 2 or more officers hold Senior Executive Service offices and it is proposed to transfer each of those officers to the office held by the other or to an office held by another of those officers, the relevant Secretary or the Commissioner, as the case requires, may, in writing, declare the offices to be offices to which this subsection applies and, upon the making of such a declaration, each office to which the declaration relates shall, for the purposes of subsection (1) in giving effect to the proposed transfers, be deemed to be vacant. ##### 49AA Certain transfers only after merit selection (1) The Commissioner must not exercise a power under paragraph 49(1B)(c) in relation to an office in a Department except in accordance with a recommendation in writing made by the relevant Secretary. (2) Where the relevant Secretary recommends in writing that the Commissioner transfer an SES (Specialist) officer to an SES office (other than an SES (Specialist) office), the Commissioner must transfer the officer unless he or she is satisfied that: (a) the procedures followed by the Secretary in relation to notification of the vacancy in the office, or in relation to the examination of applications for promotion, transfer or appointment to the office, were not adequate; or (b) it is desirable, in the interests of the Service, that the vacancy be further notified or advertised; or (c) the officer is not suitable for the performance of the duties of that office; or (d) the officer is not suitable for the performance of the duties of SES offices of the same or equal classification; or (e) the transfer of another officer to the office is required for the purposes of section 76F or 76L or would otherwise better promote the efficiency of the Service. (3) If: (a) a vacancy in an office has been filled by the appointment, promotion or transfer of a person to the office; and (b) the office becomes vacant again before the person has started to perform the duties of the office; then, in applying paragraph (2)(a) in relation to the later vacancy, the Commissioner may have regard to the procedures followed in relation to the earlier vacancy instead of those followed in relation to the later vacancy. (4) A transfer of an officer under paragraph 49(1B)(c) must be notified in the Gazette. ##### 49A Duties to be performed by Senior Executive Service officers (1) For the purposes of subsection 26AA(2), a Senior Executive Service officer of a particular classification in a Department may: (a) be directed by the relevant Secretary: (i) to perform the duties of any Senior Executive Service office of the same or equal classification in the Department; or (ii) to perform specified duties in the Department, being duties that would be appropriate for a Senior Executive Service office of the same or equal classification; and (b) be directed by the Commissioner: (i) to perform the duties of any Senior Executive Service office of the same or equal classification in another Department; or (ii) to perform specified duties in another Department, being duties that would be appropriate for a Senior Executive Service office of the same or equal classification. (2) Where it is proposed to give a direction to an officer under subsection (1), the relevant Secretary or the Commissioner, as the case requires, shall have regard to: (a) the effect that the proposed direction would have on: (i) the efficiency of the Service; and (ii) the career development of the officer; and (b) the views of the officer in relation to the proposed direction. (2A) Where a Secretary or the Commissioner proposes to give a direction under subsection (1) which involves directing: (a) an SES officer (other than an SES (Specialist) officer) to perform the duties of an SES (Specialist) office or to perform specified duties, being duties that would be appropriate for an SES (Specialist) office of equal classification; or (b) an SES (Specialist) officer to perform the duties of an SES office (other than an SES (Specialist) office) or to perform specified duties, being duties that would be appropriate for an SES office (other than an SES (Specialist) office) of equal classification; the Secretary or the Commissioner, as the case requires may give the direction only if, in addition to having regard to the matters in subsection (2), he or she is satisfied that the officer to be given the direction is capable of performing the duties of the office in which the officer is directed to act or the specified duties the officer is directed to perform, as the case may be. (3) Where a Senior Executive Service officer in a Department is directed by the Commissioner under subsection (1) to perform the duties of an office in another Department or to perform specified duties in another Department: (a) the Secretary of the first‑mentioned Department ceases to have power to give a direction to the officer under subsection (1) until the officer resumes performing duties in that Department; and (b) the Secretary of the second‑mentioned Department may give a direction to the officer under subsection (1) as if the officer were a Senior Executive Service officer in that Department until the officer ceases to perform duties in that Department. (4) The Commissioner shall not direct a Senior Executive Service officer in a Department to perform the duties of an office in another Department or to perform specified duties in another Department unless the Commissioner has consulted each of the relevant Secretaries in relation to the proposed direction. (5) Nothing in this section shall be taken to limit, by implication, the regulations that may be made for the purposes of section 51A. (6) This section applies to and in relation to an employee: (a) who is employed in a Department; and (b) the agreement for whose employment specifies that he is employed to perform duties appropriate to an office having a specified Senior Executive Service classification; as if the employee were a Senior Executive Service officer of that classification in the Department. ##### 49B Promotions to Senior Executive Service offices (1) The Commissioner may, in writing, promote an officer to a vacant Senior Executive Service office. (2) The Commissioner must not exercise its powers under subsection (1) in relation to an office in a Department except in accordance with a recommendation in writing made by the relevant Secretary. (3) Where the relevant Secretary recommends in writing that an officer be promoted to a Senior Executive Service office of a particular classification, the Commissioner must promote the officer to the office unless he or she is satisfied that: (a) the procedures followed by the Secretary in relation to notification of the vacancy in the office, or in relation to the examination of applications for promotion, transfer or appointment to the office, were not adequate; (b) it is desirable, in the interests of the Service, that the vacancy be further notified or advertised; (c) the officer is not suitable for the performance of the duties of that office; or (ca) where the Secretary has recommended the promotion of an officer to an SES office (other than an SES (Specialist) office), the officer is not suitable for the performance of the duties of SES offices of the same or equal classification; or (d) the transfer of another officer to the office is required for the purposes of section 76F or 76L or would otherwise better promote the efficiency of the Service. (3A) For the purpose of satisfying himself or herself in relation to the matters specified in paragraph (3)(a), the Commissioner may, if he or she considers it appropriate, in relation to a vacancy in an office occurring, after a previous vacancy in the office was filled by the appointment, promotion or transfer of a person to the office, without that person having started to perform the duties of the office, have regard to the procedures followed in relation to the previous vacancy and, where he or she does so, the Commissioner need not have regard to any procedures followed in relation to the first‑mentioned vacancy. (4) A promotion of an officer under subsection (1) shall be notified in the Gazette. ##### 49C Selection of officers for promotion to Senior Executive Service offices (1) In the selection of an officer for promotion, or transfer under paragraph 49(1B)(c) to a vacant Senior Executive Service office consideration shall be given only to the relative efficiency of the officers available. (2) For the purposes of subsection (1), efficiency, in relation to an officer, means the suitability of the officer for the discharge of: (a) the duties of the vacant office; and (b) in the case of an SES office (other than an SES (Specialist) office)—the duties of SES offices having classifications the same as or equal to the classification of the vacant office; having regard to the following matters: (c) the purposes specified in subsection 26AA(2) as the purposes for which the Senior Executive Service is established and the need to ensure that the experience, training, qualifications and relevant personal qualities of Senior Executive Service officers in the Department in which the vacancy exists are such as to enable the Department, in both the short term and the long term, efficiently and economically to perform its functions; (d) in the case of the promotion of an officer, or the transfer of an SES officer under paragraph 49(1B)(c), to a vacant SES office (other than an SES (Specialist) office)—the capability of the officer to discharge the duties referred to in paragraph (b); (da) the capability of the officer to discharge the duties of the vacant office; (e) the standard of work performed by the officer in other offices; (f) any experience possessed by the officer relevant to the discharge of those duties; (g) the training and educational qualifications of the officer; (h) any personal qualities of the officer relevant to the discharge of those duties; (j) the potential for further career development of the officer in the Senior Executive Service; (k) in the case where the vacant office concerned is a part‑time office—the willingness of the officer to undertake the duties of the office on the basis that the hours of attendance applicable to him will be those specified in the declaration under subsection 29B(1) in relation to the office; (m) in a case where the vacant office concerned is a full‑time office—the willingness of the officer to undertake the duties of the office on a full‑time basis. ##### 49D Day on which transfer or promotion takes effect (1) The transfer of an officer under section 49 takes effect on the prescribed day, and salary at the rate applicable to the office concerned is payable to the officer on and from that day. (2) The promotion of an officer under subsection 49B(1) takes effect on the prescribed day, and salary at the rate applicable to the office concerned is payable to the officer on and from that day. ##### 49DA Cancellation of transfer or promotion Before the transfer or promotion of an officer to a vacant Senior Executive Service office takes effect, the Commissioner may cancel the transfer or promotion. ##### 49E Application of Subdivision D The provisions of Subdivision D (other than sections 51, 51AA and 51A) do not apply in relation to a promotion or transfer to a Senior Executive Service office. #### Subdivision D—Promotions and transfers of officers other than Secretaries of Departments and Senior Executive Service officers ##### 50 Transfers and promotions (1) The Secretary of a Department shall not, except in prescribed circumstances, fill, by promotion, a vacant office in the Department (other than an office of Secretary or a Senior Executive Service office) unless the Secretary has caused notification of the vacancy to be given in the Gazette. (3) The Secretary of the Department in which a vacant office to which subsection (1) applies exists may, subject to this Act, transfer or promote an officer to fill the vacant office. (4) Where an office to which subsection (1) applies is an office in relation to which there is in force for the time being a notice in writing given by the Board to the Secretary of the Department in which the office exists that the office is an office in relation to which this subsection is to apply, an officer shall not be transferred or promoted under subsection (3) or section 50DA to fill the vacant office unless the Board has approved the filling of the vacant office. (5) A promotion of an officer under subsection (3): (a) shall be notified in the Gazette; and (b) is subject to appeal under section 50B. (5A) An officer who is transferred under subsection (3) shall be given notice in writing of the transfer. (5B) Where: (a) a promotion of an officer purports to be notified in the Gazette; (b) the notification in the Gazette is inaccurate in a material respect; and (c) the Board approves, in writing, the taking of action under this subsection in relation to the promotion; the promotion may, within 21 days after the notification referred to in paragraph (a), be notified again in the Gazette and, where a promotion is so notified, the notification has effect for all purposes as if it had been made on the day on which the notification referred to in paragraph (a) occurred. ##### 50A Selection of officers for promotion (1) For the purpose of exercising the power under subsection 50(3) or section 50DA or 50DB to promote an officer to fill a vacant office, a Secretary shall select the officer who is, in the opinion of the Secretary, the most efficient of the officers who have applied for promotion to the vacant office. (2) For the purpose of forming an opinion as to the most efficient of the officers who have applied for promotion to a vacant office, the Secretary shall have regard to: (a) the abilities, qualifications, experience, standard of work performance and personal qualities of each officer, to the extent that the Secretary considers that those matters are relevant to the performance of the duties of the office; and (b) the potential of each officer for further career development in the Service, and the ability of each officer to perform the duties of other offices in the Department of the same or equal classification, to the extent (if any) that the Secretary considers that those matters are relevant to the selection of an officer to hold the office. (3) A reference in subsection (2) to the abilities, qualifications, experience, standard of work performance, personal qualities, potential for further career development in the Service, or ability to perform the duties of other offices in a Department is, in relation to an officer who is a returned soldier or who is or has been absent on specified defence service, a reference to the abilities, qualifications, experience, standard of work performance, personal qualities, potential for future career development in the Service, or ability to perform the duties of the offices concerned that, in the opinion of the Secretary, the officer would have had but for the absence of the officer on active service or on specified defence service. ##### 50B Appeals (1) An officer who considers that he is more entitled than another officer to promotion to the vacant office to which the other officer has been promoted under section 50 may, subject to subsections (1A) and (1B), appeal against the promotion of the other officer to that office. (1A) Except in prescribed circumstances, an officer is not entitled to appeal against a particular promotion unless the officer applied for that promotion. (1B) An officer is not entitled to appeal against a non‑appellable promotion. (2) The only ground of appeal under subsection (1) shall be the greater efficiency of the officer making the appeal. (3) An appeal under subsection (1) shall be made in such manner, and within such period after the notification of the promotion in the Gazette, as is prescribed. (4) Where the Board considers it appropriate to do so, the Board may, before the expiration of the period prescribed under subsection (3), extend that period. ##### 50D Determination of appeals (1) Where an appeal is or appeals are made under section 50B in respect of a promotion, the Committee shall form an opinion as to the most efficient of the officers concerned, namely the officer promoted and the officer or officers who has or have appealed. (2) For the purpose of forming an opinion as to the most efficient of the officers concerned, the Committee shall have regard to: (a) the abilities, qualifications, experience, standard of work performance and personal qualities of each officer, to the extent that the Committee considers that those matters are relevant to the performance of the duties of the office; and (b) if and only if the Secretary who made the promotion has indicated that, for the purpose of forming an opinion under section 50A, the Secretary had regard to the potential of officers for further career development in the Service, or the ability of officers to perform the duties of other offices in the Department of the same or equal classification—that matter. (3) A reference in subsection (2) to the abilities, qualifications, experience, standard of work performance, personal qualities, potential for further career development in the Service, or ability to perform the duties of other offices in a Department is, in relation to an officer who is a returned soldier or who is or has been absent on specified defence service, a reference to the abilities, qualifications, experience, standard of work performance, personal qualities, potential for future career development in the Service, or ability to perform the duties of the offices concerned that, in the opinion of the Committee, the officer would have had but for the absence of the officer on active service or on specified defence service. (4) Where the Committee has formed an opinion as to the most efficient of the officers concerned, the Committee shall: (a) unless paragraph (b) applies—allow or disallow the appeal or appeals so as to give effect to its opinion; or (b) if the Committee has also formed the opinion that none of the officers concerned is capable of efficiently performing the duties of the office—disallow the appeal or appeals and cancel the promotion. (5) Where an appeal against a promotion is allowed: (a) the promotion is, by force of this subsection, cancelled; and (b) the officer whose appeal is allowed is, by force of this subsection, promoted to the office. (6) Where a promotion is cancelled under subsection (4) or by force of subsection (5), or an officer is promoted to an office by force of subsection (5), the relevant Secretary shall cause notification of the cancellation, or of the promotion, to be given in the Gazette. ##### 50DAA Review of non‑appellable promotion decisions by Merit Protection and Review Agency (1) An officer who applied unsuccessfully for a non‑appellable promotion may, within the prescribed period, apply to the Agency for review of the promotion on the ground that it would be unreasonable for the promotion to stand because of: (a) a breach of section 33 in connection with the making of the promotion; or (b) a serious defect in the selection process. (2) An application for review of a promotion shall be in writing and shall include particulars of the alleged breach of section 33 or the alleged defect in the selection process. (3) Where an application is made to the Agency for review of a promotion, the Agency shall: (a) make such inquiries as it considers necessary to determine whether a recommendation should be made under subsection (4) in relation to the promotion; and (b) make a decision in writing either: (i) affirming the promotion; or (ii) making a recommendation under subsection (4) in relation to the promotion. (4) Where an application is made to the Agency for review of a promotion, the Agency shall, if it is satisfied that it would be unreasonable for the promotion to stand because of: (a) a breach of section 33 in connection with the making of the promotion; or (b) a serious defect in the selection process; recommend to the Secretary who made the promotion that the promotion be cancelled. (5) The Agency shall cause a copy of its decision to be given to: (a) the officer who made the application; (b) the officer promoted; and (c) the Secretary who made the promotion. (6) Where the Agency recommends to the Secretary that a promotion be cancelled, the Secretary: (a) shall, having regard to the recommendation, reconsider the promotion; and (b) may cancel the promotion. (7) Where a Secretary cancels a promotion under subsection (6): (a) the officer promoted shall, for all purposes, be treated as having held the office concerned during the period beginning when the promotion took effect and ending when the promotion is cancelled; and (b) upon the cancellation of the promotion, the Secretary shall transfer the officer to an office in the Secretary’s Department having a classification that is the same as, or equal to, the classification that the officer had immediately before the promotion took effect, and, if necessary, the Secretary shall create such an office for the purpose. (8) The Agency shall refuse to consider or further consider an application for review of a promotion if the Agency is satisfied that the application is frivolous or vexatious or was not made in good faith. (9) Where 2 or more applications are made to the Agency for review of the same promotion, the Agency may consider those applications concurrently. (10) Division 7 of Part II of the Merit Protection Act applies in relation to a review under this section of a promotion in the same manner as it applies to a review of a decision under Division 3 of Part II of that Act. ##### 50DA Transfer or promotion on advice of Joint Selection Committee (1) Subject to subsection (4) and to subsection 50(4) and section 50J, the Secretary of a Department in which an office (other than an office of Secretary or a Senior Executive Service office) is vacant may, instead of transferring or promoting an officer to fill the vacant office under section 50, transfer or promote an officer to fill the vacant office under this section. (2) A transfer or promotion of an officer under this section shall be a transfer or promotion made in accordance with the advice of a Joint Selection Committee. (3) Where a Secretary proposes that a vacant office be filled by a transfer or promotion under this section, the Secretary shall: (a) give notice in writing of the proposal to the organisation that is, in accordance with the regulations, the principal relevant staff organisation in relation to the office; and (b) if there is another relevant staff organisation or there are other relevant staff organisations—give notice in writing of the proposal to the other relevant staff organisation or organisations, such notice to include a statement to the effect that a relevant staff organisation may, by notice in writing to the Secretary before the expiration of the period prescribed by the regulations for the purposes of this paragraph, object to the proposal. (4) Where the principal relevant staff organisation consents to the proposal and: (a) there is no other relevant staff organisation; or (b) in a case to which paragraph (a) does not apply—no other relevant staff organisation objects to the proposal before the expiration of the period referred to in paragraph (3)(b); the Secretary shall: (c) cause notification of the vacancy, being a notification indicating that the Secretary proposes that the vacant office be filled by a transfer or promotion under this section, to be given in the Gazette; and (d) arrange for the establishment of a Joint Selection Committee for the purpose of giving advice to the Secretary with respect to the filling of the vacant office. (5) A Joint Selection Committee shall be constituted for the purposes of this section by: (a) a Convenor nominated by the Agency; (b) a person nominated by the Secretary of the Department in which the vacant office exists; and (c) a person nominated by the organisation that is, in accordance with the regulations, the principal relevant staff organisation in relation to the office. (6) If, for any reason, a Secretary: (a) is unable to arrange for the establishment of a Joint Selection Committee for the purpose of giving advice to the Secretary with respect to the filling of the vacant office; or (b) having arranged for the establishment of a Joint Selection Committee for such a purpose, is unwilling to transfer or promote an officer in accordance with the advice of the Committee; the Secretary may transfer or promote an officer to fill the vacant office under section 50. (7) A promotion of an officer under this section in accordance with the advice of a Joint Selection Committee: (a) shall be notified in the Gazette as a promotion made in accordance with the advice of a Joint Selection Committee; and (b) is not subject to appeal under section 50B or review under section 50DAA. (8) An officer who is transferred under subsection (1) shall be given notice in writing of the transfer. (9) Where a Joint Selection Committee has been constituted for the purpose of giving advice to a Secretary with respect to the filling of a vacant office under this section but, before the Committee gives advice with respect to the filling of that vacant office, a member of the Committee ceases to take part in the deliberations of the Committee, the Committee shall be reconstituted by the remaining 2 members and another member appointed or nominated in accordance with subsection (5). (10) For the purpose of giving advice to a Secretary with respect to the filling of a vacant office under this section, where the members of the Committee do not concur in advice: (a) if a majority of the members concur in the advice—the advice of the majority shall be deemed to be the advice of the Committee; and (b) in any other case—the advice of the Convenor of the Committee shall be deemed to be the advice of the Committee. (11) If: (a) a Joint Selection Committee has given advice to the Secretary in accordance with this section with respect to the filling of a vacant office (in this section referred to as the original office); and (b) either: (i) the person recommended by the Committee for promotion or transfer to the original office is not able to be promoted or transferred to the office; or (ii) within 6 months after the original office was filled in accordance with the advice of the Committee, the original office again becomes vacant or an identical office in the same Department becomes vacant; and (c) the advice of the Joint Selection Committee was that 2 or more applicants were suitable for promotion or transfer to the original office; and (d) the advice indicated an order of merit of those applicants; the Secretary may promote or transfer to the original office or the identical office, as the case may be, the applicant next in order of merit according to the advice. (12) Offices are identical for the purposes of subsection (11) if the classification, duties and location of the offices are the same. (13) For the purposes of subsection (7), the promotion of an officer under subsection (11) is to be taken to be in accordance with the advice of the Joint Selection Committee. ##### 50DB Transfer or promotion on advice of management‑initiated Joint Selection Committee (1) Subject to subsections (2) and (3), subsection 50(4) and section 50J, the Secretary of a Department in which an office (other than an office of Secretary or a Senior Executive Service office) is vacant may, instead of transferring or promoting an officer to fill the vacant office under section 50 or 50DA, transfer or promote an officer to fill the vacant office under this section. (2) A vacant office shall not be filled by a transfer or promotion under this section except in circumstances of a kind specified by the Board in a notification under paragraph 33A(1)(e). (3) Where a Secretary proposes that a vacant office be filled by a transfer or promotion under this section, the Secretary shall: (a) cause notice of the vacancy, and of the Secretary’s proposal that the office be filled by a transfer or promotion under this section, to be given in the Gazette; (b) notify the organisation that is, under the regulations, the principal relevant staff organisation of the Secretary’s proposal that the office be filled by a transfer or promotion under this section; and (c) arrange for the establishment of a Joint Selection Committee for the purpose of giving advice to the Secretary with respect to the filling of the office. (4) A Joint Selection Committee shall be constituted for the purposes of this section by: (a) a Convenor nominated by the Agency; (b) a person nominated by the Secretary of the Department in which the vacant office exists; and (c) if, within the prescribed period after being notified under paragraph (3)(b), the principal relevant staff organisation nominates a person—that person. (5) A promotion or transfer of an officer made in accordance with the unanimous advice of the members of a Joint Selection Committee constituted for the purpose of this section shall be deemed to have been made under section 50DA, and a promotion so made is not subject to appeal under section 50B or review under section 50DAA. (6) Where a Joint Selection Committee constituted for the purposes of this section gives advice to a Secretary with respect to the filling of a vacant office and: (a) the Secretary promotes or transfers an officer to fill the vacant office otherwise than in accordance with the advice; or (b) the advice is not unanimous, but the Secretary transfers or promotes an officer to fill the vacant office; the promotion or transfer shall be deemed to have been made under section 50, and a promotion so made is subject to appeal under section 50B or review under section 50DAA, as the case requires. (7) A promotion of an officer under this section shall be notified in the Gazette, and the notice in the Gazette shall state whether or not the promotion is subject to appeal under section 50B or review under section 50DAA. (8) An officer who is transferred as mentioned in this section shall be given notice in writing of the transfer. (9) Where a Joint Selection Committee has been constituted for the purpose of giving advice under this section but, before the Committee gives that advice, the Convenor ceases to take part in the deliberations of the Committee, the Committee shall be reconstituted by the remaining members or member and another Convenor nominated by the Agency. (10) Where a Joint Selection Committee has been constituted for the purpose of giving advice under this section but, before the Committee gives that advice, the member of the Committee nominated under paragraph (4)(b) ceases to take part in the deliberations of the Committee: (a) if, within the prescribed period after the member so ceases to take part, the Secretary nominates another person—the Committee shall be reconstituted by the remaining members or member and that other person; or (b) in any other case, if there are 2 members of the Committee remaining—the Committee shall be reconstituted by the remaining members. (11) Where a Joint Selection Committee has been constituted for the purpose of giving advice under this section but, before the Committee gives that advice, the member of the Committee nominated under paragraph (4)(c) (if any) ceases to take part in the deliberations of the Committee, the Secretary shall notify the principal relevant staff organisation that the member has ceased to take part in those deliberations and: (a) if, within the prescribed period after being so notified by the Secretary, the principal relevant staff organisation nominates another person—the Committee shall be reconstituted by the remaining members and that other person; or (b) in any other case—the Committee shall be reconstituted by the remaining members. (12) If: (a) a Joint Selection Committee has given advice to a Secretary in accordance with this section with respect to the filling of a vacant office (in this section referred to as the original office); and (b) either: (i) the person recommended by the Committee for promotion or transfer to the original office is not able to be promoted or transferred to the office; or (ii) within 6 months after the original office was filled in accordance with the advice of the Committee, the original office again becomes vacant or an identical office in the same Department becomes vacant; and (c) the advice of the Joint Selection Committee was that 2 or more applicants were suitable for promotion or transfer to the original office; and (d) the advice indicated an order of merit of those applicants; the Secretary may promote or transfer to the original office or the identical office, as the case may be, the applicant next in order of merit according to the advice. (13) Offices are identical for the purposes of subsection (12) if the classification, duties and location of the offices are the same. (14) For the purposes of this section, the promotion of an officer under subsection (12) is to be taken to be in accordance with the advice of the Joint Selection Committee. ##### 50DC Procedure of Joint Selection Committee (1) A Joint Selection Committee established for the purpose of giving advice to a Secretary with respect to the filling of a vacant office under section 50DA or 50DB shall assess the claims of the applicants for promotion or transfer to the office in such manner as the Committee considers necessary to establish their relative efficiency. (2) A Joint Selection Committee shall conduct its proceedings with as little formality and technicality, and as quickly, as a proper consideration of the applications permits. (3) Where a Joint Selection Committee is reconstituted pursuant to subsection 50DA(9) or 50DB(9), (10) or (11), the Committee as reconstituted may have regard to the evidence given, the argument adduced and the reasons for any decision given during proceedings before the Committee as previously constituted. (4) A transfer or promotion made under section 50DA or 50DB shall not be called in question because of a defect or irregularity in connection with the nomination of a member of the Joint Selection Committee. (5) A member of a Joint Selection Committee, while acting as such, is not subject to direction by any other person or by any body or authority other than a court. ##### 50E Taking effect etc. of promotions and transfers (1) A promotion or transfer of an officer to an office takes effect as provided by the regulations. (2) Where a promotion under section 50 or 50DA of an officer to an office takes effect, salary at the rate applicable to that office is payable to the officer on and from the prescribed day. (3) Where, upon the determination of an appeal against the promotion under section 50 of an officer to an office, another officer is promoted to that office by force of subsection 50D(5), salary at the rate applicable to that office is payable to that other officer on and from the prescribed day in respect of the first‑mentioned promotion. ##### 50F Death of officer before appeal determined Where, before an appeal under section 50B against the promotion of an officer has been determined, the officer dies, the appeal shall be deemed to lapse on the date of his death but the promotion shall not take effect unless the death occurred on or after the prescribed day in respect of the promotion. ##### 50G Cancellation of promotion or transfer (1) Before the promotion or transfer of an officer to a vacant office in a Department takes effect, the Board, or the Secretary of the Department, may cancel the promotion or transfer. (2) If a promotion of an officer under section 50 or 50DA that has not taken effect ceases, by reason of a change in rates of salary, to be a promotion of that officer, the promotion shall be deemed to be cancelled. (3) Where a promotion is cancelled by or under this section, any appeal under section 50B against the promotion shall be deemed to lapse on the date of the cancellation. ##### 50H Promotion appeal rights of certain officers (1) This section applies to an officer who has been told by the relevant Secretary that the relevant Secretary is satisfied that the officer is an excess officer. (2) An officer to whom this section applies has a right under this section to appeal against the promotion under section 50 of another person to a vacant office the classification of which is equal to or lower than the classification of the office occupied by the officer to whom this section applies. (2A) Subsection (2) does not apply in relation to a promotion that, under this Act, is not subject to appeal under section 50B. (2B) An officer is not entitled to appeal against the promotion of a person to a vacant office unless: (a) the vacancy in the office was notified in the Gazette and the officer had applied for a transfer that would have had the effect of filling the notified vacancy; or (b) the promotion was made without the vacancy in the office having been notified in the Gazette. (3) Where an officer to whom this section applies is an unattached officer, the reference in subsection (2) to a vacant office the classification of which is equal to or lower than the classification of the office occupied by the officer to whom this section applies shall be read as a reference to a vacant office the maximum rate of salary applicable to which is equal to or lower than the salary, or the maximum rate of salary, applicable to the officer to whom this section applies as an unattached officer. (4) Subsections 50B(2), (3) and (4) apply in relation to an appeal under this section as if the appeal were an appeal under subsection 50B(1). (5) Where an officer to whom this section applies appeals under this section against the promotion of another officer, then, for the purposes of this Act in relation to that appeal: (a) references in this Act to promotion shall, in relation to the officer to whom this section applies, be read as references to the transfer of the officer; and (b) references in this Act to an appeal under section 50B shall be read as references to an appeal under this section. (6) The making of an appeal under this section or section 50B by an officer to whom this section applies does not affect the operation of Division 8C. ##### 50J Transfer of officers by Secretary from one Department to another (1) Where: (a) an officer whom it is proposed to transfer to a vacant office under section 50 or 50DA is an officer performing duties in a Department other than the Department in which the vacant office exists; and (b) the officer or the Secretary of the first‑mentioned Department does not approve of the transfer being made; the transfer shall not be made unless the relevant approving authority has approved the making of that transfer. (2) The relevant approving authority shall not approve the transfer of an officer performing duties in a Department to a vacant office in another Department unless: (a) a reasonable opportunity has been given to the Secretary of each Department and to the officer to furnish submissions to the authority either in support of or against the making of the transfer; and (b) the authority has considered any submissions so furnished. (3) For the purposes of this section, a reference to the relevant approving authority in relation to the transfer of an officer performing duties in a Department to a vacant office in another Department shall be read as a reference to: (a) in the case of the transfer of an officer performing duties in the Department of the Senate—the President of the Senate; (b) in the case of the transfer of an officer performing duties in the Department of the House of Representatives—the Speaker of the House of Representatives; (c) in the case of the transfer of an officer performing duties in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department—the President of the Senate and the Speaker of the House of Representatives; and (d) in the case of the transfer of an officer performing duties in any other Department—the Board. ##### 50K Simultaneous transfers within a Department Where 2 or more officers hold offices in the one Department having the same classification and it is proposed to transfer each of those officers to the office held by the other officer or to an office held by another of those officers, the relevant Secretary may, by instrument in writing, declare the offices to be offices to which this section applies and, upon the making of such a declaration, each office to which the declaration relates shall, for the purposes of the application of sections 50 and 50DA and any regulations made for the purposes of those sections in giving effect to the proposed transfers, be deemed to be vacant. ##### 51 Transfers of officers and employees between Departments (1) Where, in the opinion of the Board, it is necessary in the interests of the Service to transfer an officer temporarily from one Department to another, the Board may direct that that officer be so transferred and as from such date (if any) as the Board specifies. (2) The Board shall notify in writing the Secretary of each of the Departments concerned of any direction under subsection (1) and, upon being so notified, the Secretary of the Department from which the officer is to be transferred temporarily shall forthwith release the officer. (3) Where, in the opinion of the Board, it is necessary in the interests of the efficient administration of the Service to do so (including in a case to which section 76W applies), the Board may, after consulting with the Secretary of each of the Departments concerned: (a) transfer an officer who holds an office, or is included, in a Department: (i) to a specified office in another Department; or (ii) to another Department as an unattached officer; or (b) direct that an employee who is employed in a particular capacity in a Department be employed in an equivalent capacity in another Department. (4) Notwithstanding sections 49D and 50E, a transfer under paragraph (3)(a) takes effect as specified by the Board. ##### 51AA Abolition of Department or changed administrative arrangements (1) Where, under subsection 29(1) or (2), an office (in this section referred to as the substituted office) is declared to be in substitution for another office (in this section referred to as the former office), the following provisions of this section have effect in relation to the filling of the vacancy in the substituted office. (2) Where the former office was, at the time when it ceased to exist, occupied by an officer, the officer is, by force of this section, transferred to the substituted office. (3) Where the former office was, at the time when it ceased to exist, a vacant office in respect of which an act had been done or a thing had occurred in relation to the filling of the vacancy, that act shall be deemed to have been done or that thing shall be deemed to have occurred in relation to the filling of the vacancy in the substituted office. ##### 51A Temporary performance of duties (1) The regulations may make provision for or in relation to the temporary performance of the whole or a part of the duties of an office (whether vacant or not) in a Department other than an office of Secretary by an officer performing duties in that Department or another Department, including provision for or in relation to: (a) the selection of an officer to perform temporarily the duties of an office; and (b) appeals by officers in relation to such a selection of an officer. (1A) Regulations under subsection (1) may make different provision in respect of different periods of temporary performance of the duties of an office or in respect of different circumstances in which the selection of an officer to perform temporarily the duties of an office may be made. (3) Subsection (1) applies in relation to the temporary performance of the whole or a part of the duties of a Senior Executive Service office as if paragraph (1)(b) were omitted. ##### 52 Officer may apply to decline transfer within Department etc. (1) Where a decision is made to transfer an officer of a Department to another office in the Department, the officer may apply for permission to decline the transfer: (a) where the relevant Secretary made, or was personally involved in the making of, the decision—to the Board; or (b) in any other case—to the relevant Secretary; and the Board or the Secretary may permit the officer to decline the transfer without prejudice to the officer’s right of future promotion or transfer. (2) An application under subsection (1) shall be made in writing and within the prescribed period. (3) Where the Board or the relevant Secretary permits an officer to decline a transfer, the transfer shall be deemed not to have been made. (4) Except as expressly provided by Divisions 6, 8A, 8B and 8C, an officer of a particular classification shall not be transferred to an office of lower classification unless the officer consents in writing to the transfer. (5) An officer who holds a full‑time office shall not be transferred or promoted to a part‑time office unless the officer consents in writing to the transfer or promotion. (6) An officer who holds a part‑time office shall not be transferred or promoted to a full‑time office unless the officer consents in writing to the transfer or promotion. ##### 53 Transfers and promotions to specified offices may be made in accordance with order of passing examinations (1) Where: (a) in circumstances specified in a notification under paragraph 33A(1)(e) in relation to a class of offices, there is a vacancy in an office or offices included in that class; and (b) an examination is specified in a notification under paragraph 33A(1)(da) in relation to that class of offices; then, if the Secretary of the Department in which the vacant office exists or the vacant offices exist: (c) if only one officer has passed the examination and is otherwise eligible for transfer or promotion to that office—transfers or promotes that officer to that office or to one of those offices; or (d) if 2 or more officers have passed the examination and are otherwise eligible for transfer or promotion to that office or those offices—transfers or promotes those officers to that office or those offices in accordance with the order of merit in which they passed the examination; the transfer or promotion, or each of the transfers or promotions, shall be deemed not to have been made under section 50 but to have been made under this section. (1A) For the purposes of subsection (1): (a) an officer who holds a part‑time office shall be taken not to be eligible for transfer or promotion to a full‑time office; and (b) an officer who holds a full‑time office shall be taken not to be eligible for transfer or promotion to a part‑time office. (3) The promotion of an officer to an office under this section takes effect on the day on which the promotion is made, and salary at the rate applicable to that office is payable to the officer on and from that day. (4) In this section: (a) examination includes a test; and (b) a reference to passing an examination includes a reference to completing satisfactorily any task required to be performed for the purposes of assessment. ##### 53A Promotion of officers who complete courses of training for special positions (1) The Board may, by notice in writing published in the Gazette, determine that: (a) a specified office (in this section referred to as a training office) is an office the occupant of which is required to undergo a course of training for the purpose of enabling him to perform duties that require professional, technical or other knowledge; and (b) an officer who has completed that course of training to the satisfaction of the Board is entitled to occupy an office (in this section referred to as the relevant higher office) having a classification that is specified in the notice. (2) If an officer is transferred or promoted under section 50 to a training office other than a training office that is an office of the Parliament within the meaning of section 9, another officer: (a) who holds an office the classification of which is not higher than the classification of the relevant higher office; or (b) who, being an unattached officer, performs duties in respect of which there is payable to him a salary that is, or the maximum rate of which is, not higher than the salary or the maximum rate of salary applicable to the relevant higher office; may appeal against the transfer or promotion of that first‑mentioned officer to the training office. (3) An appeal referred to in subsection (2) shall be made under section 50B and, for all purposes of that appeal: (a) in a case where the appeal is an appeal against the transfer of an officer to a training office: (i) references in this Act to the promotion of that officer shall be read as references to the transfer of that officer to the training office; (ii) references in this Act to the cancellation of the promotion of that officer shall, in a case where, immediately before that officer was transferred to the training office, he occupied another office, be read as references to the transfer of that officer back to that other office; and (iii) references in this Act to the cancellation of the promotion of that officer shall, in a case where, immediately before that officer was transferred to the training office, he was an unattached officer performing specified duties in a Department, be read as a reference to that officer’s being deemed again to have become an unattached officer and to his being required to perform those duties in that Department; and (b) in a case where the appeal is an appeal by an officer in relation to whom it would constitute a transfer for him to occupy the training office—references in this Act to promotion of that officer, shall be read as references to the transfer of that officer to the training office. (4) Subject to subsection (4A), where there is a vacancy in an office that is, in relation to a training office, a relevant higher office, the Secretary of the Department in which the relevant higher office exists shall: (a) if, at the time when that relevant higher office becomes vacant, an officer who has completed that course of training is, by virtue of the operation of subsection (7), an unattached officer—transfer that officer to that office under this section; (b) if, at the time when that relevant higher office becomes vacant, 2 or more officers who have completed that course of training are, by virtue of the operation of subsection (7), unattached officers—transfer to that office under this section whichever of those officers was the first so to become an unattached officer; or (c) if, at the time when the relevant higher office becomes vacant, no officer who has completed that course of training is, by virtue of the operation of subsection (7), an unattached officer—subject to subsection (8), promote to that office under this section the first officer to complete that course of training. (4A) Subsection (4) does not entitle: (a) an officer who holds a part‑time office to be transferred or promoted to a full‑time office; or (b) an officer who holds a full‑time office to be transferred or promoted to a part‑time office. (5) The promotion of an officer to an office under paragraph (4)(c) takes effect on the day on which the promotion is made and salary at the rate applicable to that office is payable to the officer on and from that day. (6) Where 2 or more officers complete a course of training at the one time or become, by virtue of the operation of subsection (7), unattached officers at the one time, they shall be treated, for the purposes of subsection (4), as having completed that course of training, or as having become unattached officers, as the case requires, in a sequence of time corresponding to the order of merit in which, on the assessment of the person or body conducting the course of training, those officers completed the course. (7) Where an officer who is entitled, upon completion of a particular course of training to the satisfaction of the Board, to occupy a relevant higher office so completes that course of training but there is, at the time when he completes that course, no vacant relevant higher office, or no vacant relevant higher office to which he is entitled under paragraph (4)(c) to be promoted: (a) he becomes forthwith, by force of this subsection, an unattached officer who is required to perform duties corresponding to the duties of such an office; and (b) he shall have the classification appropriate to the occupant of such an office and shall be entitled to be paid the salary that would, from time to time, be payable to him if he were the occupant of such an office. (8) Nothing in subsection (4) shall be taken to prevent a Secretary from promoting or transferring an officer under section 50 to an office to which that subsection relates at any time when there is no officer immediately entitled to occupy that office in accordance with a determination under subsection (1). (9) A transfer of an officer under section 50 to a vacant training office shall be notified in the Gazette. (10) Where an officer is transferred under section 50 from an office held by him to a training office, no person shall be appointed or transferred to that first‑mentioned office, and no promotion to that first‑mentioned office shall take effect, until: (a) if paragraph (b) does not apply—the period for appealing against the transfer of that officer to the training office expires without any appeal having been made; or (b) if any such appeal is, or 2 or more such appeals are, made within that period—that appeal or each of those appeals has been determined or has become inoperative. ### Division 6—Discipline #### Subdivision A—Preliminary ##### 55 Interpretation (1) In this Division, unless the contrary intention appears: > Disciplinary Appeal Committee means a Disciplinary Appeal Committee established in accordance with Subdivision C of Division 2 of Part II of the Merit Protection Act. > eligible public employment has the same meaning as in Part IV. > misconduct, in relation to an officer, means a failure of the officer to fulfil his duty as an officer. > original office means: (a) in the case of a person who has been dismissed from the Service under section 62 or 63: (i) if the person held an office immediately before his dismissal—that office; or (ii) if the person was an unattached officer performing duty in a Department immediately before his dismissal—an office in that Department the duties of which correspond to the duties he was performing, and the classification of which is the same as the classification applicable to him, immediately before his dismissal; (b) in the case of a person who has been dismissed from the Service under section 63M or has, while he was a person to whom Division 3 of Part IV applied, been dismissed from eligible public employment: (i) if, at any time after he last performed duty in the Service, he has, in accordance with section 87G, become the holder of an office in the Service—the last office of which he so became the holder; (ii) if he is not a person to whom subparagraph (i) applies but was the holder of an office when he last performed duty in the Service before his dismissal—that office; or (iii) if he is not a person to whom subparagraph (i) applies but was an unattached officer performing duty in a Department when he last performed duty in the Service before his dismissal—an office in that Department the duties of which correspond to the duties he was performing, and the classification of which is the same as the classification applicable to him, when he last performed duty in the Service before his dismissal; (c) in the case of a person who is deemed, under section 66A, to have retired from the service: (i) if the person held an office immediately before he was deemed so to have retired—that office; or (ii) if the person was an unattached officer performing duty in a Department immediately before he was deemed so to have retired—an office in that Department the duties of which correspond to the duties he was performing, and the classification of which is the same as the classification applicable to him, immediately before he was deemed to have retired; and (d) in the case of an officer who has been transferred to another office under section 62, 63 or 63D—the office held by the officer immediately before his transfer. > salary includes such allowances as are prescribed. (2) A power conferred by a provision of this Division to re‑appoint a person to an office includes a power to re‑appoint the person to the Service as an unattached officer to whom there is applicable a salary or range of salary equivalent to the salary or range of salary applicable to that office. (3) Where the services of an officer have been made available, in accordance with the provisions of an Act, to a body established by or under an Act or Ordinance of a Territory and the officer performs his services for that body by performing the duties of an office in a Department, the officer shall be deemed, for the purposes of this Division, to be performing duty in that Department. (4) A reference in this Subdivision or Subdivision C or E to an officer shall be read as not including a reference to a person who is an unattached officer for the purposes of Subdivision D. ##### 56 Meaning of failure to fulfil duty as officer For the purposes of this Subdivision and Subdivisions B, C and E, an officer shall be taken to have failed to fulfil his duty as an officer if and only if: (a) he wilfully disobeys, or wilfully disregards, a direction given by a person having authority to give the direction, being a direction with which it is his duty as an officer to comply; (b) he is inefficient or incompetent for reasons or causes within his own control; (c) he is negligent or careless in the discharge of his duties; (d) he engages in improper conduct as an officer; (e) he engages in improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties or brings the Service into disrepute; (ea) the officer engages in conduct (including patronage, favouritism or discrimination) in breach of section 33; (f) he contravenes or fails to comply with: (i) a provision of this Act, of the regulations or of a determination in force under subsection 9(7A) or section 82D, being a provision that is applicable to him; or (ii) the terms and conditions upon which he is employed; or (g) he has, whether before or after becoming an officer, wilfully supplied to an officer or another person acting on behalf of the Commonwealth incorrect or misleading information in connexion with his appointment to the Service. #### Subdivision B—Secretaries of Departments and certain unattached officers ##### 56A Interpretation In this Subdivision, unless the contrary intention appears: > Minister, in relation to an officer, means the Minister for the time being administering the Department in which: (a) in the case of an officer who is a Secretary—the officer holds office; or (b) in any other case—the officer is included by virtue of a direction under subsection 33C(2). > officer means a Secretary or unattached Secretary. > Secretary means a person holding, or performing the duties of, an office referred to in paragraph (a) of the definition of office of Secretary in subsection 7(1). ##### 57 Disciplinary action in respect of Secretaries of Departments etc. (1) Where the Minister has at any time, whether by reason of an allegation made to him or otherwise, reason to believe that an officer may have failed to fulfil his duty as an officer, he may, by notice in writing delivered to the officer, suspend the officer from duty and charge him with the failure. (2) Where the Minister suspends an officer from duty under subsection (1) and charges him with having failed to fulfil his duty as an officer, the Minister: (a) shall specify in the notice delivered to the officer under that subsection particulars of the matters alleged to constitute the failure; and (b) shall forthwith report the suspension and charge to the Board. (3) Where an officer has been charged with misconduct under subsection (1), the officer may, within 7 days, or such longer period as the Board allows, after delivery to him of the notice charging him with the misconduct: (a) submit to the Board, in writing, that the charge should be dismissed on either or both of the following grounds, that is to say: (i) that some or all of the matters alleged to constitute the misconduct are untrue; or (ii) that the matters alleged to constitute the misconduct are, even if true, incapable in law of constituting the misconduct for the purposes of this Act; or (b) furnish to the Board a notification in writing admitting the truth of the matters alleged to constitute the misconduct and containing particulars of any matters which the officer wishes the Board to consider under subsection (7). (4) An officer who has been charged with misconduct under subsection (1) shall not, by reason only of having failed to deny the truth of a matter included among matters alleged to constitute the misconduct, be taken to have admitted the truth of that matter. (5) Where an officer does not furnish a notification referred to in paragraph (3)(b) in relation to the misconduct with which he has been charged, a Board of Inquiry shall inquire into the charge and report to the Board whether it finds the charge to be proved and its reasons for its finding. (6) For the purposes of subsection (5), a Board of Inquiry shall consist of a Convenor and 2 other members, all of whom shall be appointed by the Governor‑General. (7) Where an officer furnishes to the Board a notification of the kind referred to in paragraph (3)(b) or a Board of Inquiry finds a charge of misconduct in respect of the officer to be proved, the Public Service Board shall, after consideration of the notification made by the officer or of the report of the Board of Inquiry, as the case may be, recommend to the Governor‑General: (a) that he take, in respect of the misconduct of the officer, action by way of: (i) admonishing the officer; (ii) transferring the officer to a specified office (whether at the same or a different locality), being an office for which he is qualified and, if there is a salary range applicable to the office so specified, determining that he be paid a specified salary within that range; or (iii) dismissing the officer from the Service; or (b) that he take no action in respect of the misconduct of the officer. (8) The Board shall furnish to the Governor‑General with a recommendation under subsection (7) in relation to a charge: (a) particulars of its reasons for making the recommendation; (b) a copy of any notification furnished to the Board in pursuance of paragraph (3)(b), or of any report furnished to the Board in pursuance of subsection (5), in relation to the charge; and (c) any submission that is furnished to the Board in pursuance of subsection (9) in relation to the recommendation. (9) Before furnishing a recommendation to the Governor‑General under subsection (7) with respect to an officer, the Board shall inform the officer of the recommendation it proposes to furnish and afford the officer an opportunity to furnish to it any submission that the officer wishes the Governor‑General to consider in relation to the recommendation. (10) Where a recommendation under subsection (7) has been furnished to the Governor‑General, the Governor‑General may, after consideration of the recommendation and of any documents furnished with it in pursuance of subsection (8): (a) take, in respect of the misconduct of the officer, action of a kind specified in paragraph (7)(a), whether or not the Board recommended that he take action of that kind; or (b) decide not to take any action in respect of the misconduct of the officer, whether or not the Public Service Board so recommended. (11) Where the Governor‑General decides not to give effect to a recommendation furnished to him under subsection (7) in relation to the misconduct of an officer, a copy of a statement setting out his reasons for not giving effect to the recommendation shall be laid before each House of the Parliament within 14 sitting days of that House after he so decides. ##### 58 Conviction by courts of Secretaries of Departments etc. (1) Where: (a) a court has, after 15 September 1980, convicted an officer of a criminal offence or found, without recording a conviction, that such an officer has committed such an offence; and (b) the Board, after giving the officer an opportunity to furnish to it, in writing, any statement that he desires to furnish in relation to the offence, is of the opinion that, having regard to the nature and seriousness of the offence, the circumstances in which it was committed and the nature of the duties of the officer, it is justified in doing so in the interests of the Service; the Board may recommend to the Governor‑General that he take, in respect of the officer, action by way of: (c) transferring the officer to a specified office (whether at the same or a different locality), being an office for which the officer is qualified, and, if there is a salary range applicable to the office so specified, determining that he be paid a specified salary within that range; or (d) dismissing the officer from the Service. (2) The Board shall furnish to the Governor‑General with a recommendation under subsection (1) in relation to a criminal offence: (a) particulars of its reasons for making the recommendation; (b) a copy of any statement furnished to the Board in pursuance of paragraph (1)(b) in relation to the offence; and (c) any submission furnished to the Board in pursuance of subsection (3) in relation to the recommendation. (3) Before furnishing a recommendation to the Governor‑General under subsection (1) with respect to an officer, the Board shall inform the officer of the recommendation it proposes to furnish and afford the officer an opportunity to furnish to it any submission that the officer wishes the Governor‑General to consider in relation to the recommendation. (4) Where a recommendation has been furnished to the Governor‑General under subsection (1), the Governor‑General may, after consideration of the recommendation and of any documents furnished with it in pursuance of subsection (2): (a) take action of a kind specified in paragraph (1)(c) or (d) in respect of the officer, whether or not the Board recommended that he take action of that kind; or (b) decide not to take any action in respect of the officer. (5) Where the Governor‑General does not give effect to a recommendation furnished to him under subsection (1), a copy of a statement setting out his reasons for not giving effect to the recommendation shall be laid before each House of the Parliament within 14 sitting days of that House after he so decides. (6) The fact that action is, or is not, taken against an officer under this section in respect of a criminal offence shall not be taken to preclude the Board or another body, or a Secretary or another person, from having regard to the conviction or finding, to the nature and seriousness of the offence and to the circumstances in which the offence was committed in the course of exercising a power or performing a function conferred on it or him by this Act or by the regulations if those matters are relevant to the manner in which the power should be exercised or the function should be performed. (7) Nothing in subsection (6) shall be taken to authorize the charging of an officer under section 57, and the taking of action in respect of the officer under this section, in relation to the same matter. ##### 59 Suspension of Secretaries of Departments etc. (1) Where an officer has been charged with having committed a criminal offence and the Minister is of the opinion that it would be prejudicial to the effective operation of the Service, to the interests of the public or to the interests of the officer or his fellow officers (whether officers within the meaning of this Subdivision or not) if the officer were to continue to perform the duties of his existing office pending the hearing and determination of the charge, the Minister may, by notice in writing delivered to the officer: (a) direct the officer to perform temporarily other duties that he is qualified to perform (whether at the same or at a different locality); or (b) suspend the officer from duty. (2) Except as provided by subsection (3), an officer who has been suspended from duty under section 57 or under this section is not entitled to be paid salary in respect of the period during which he is so suspended. (3) Where an officer is suspended from duty under section 57 or under this section: (a) the Board may, at any time, whether upon application by the officer or otherwise, if it is satisfied that the officer is suffering or has suffered hardship, direct that the officer be paid salary during the whole, or a specified part, of the period of the officer’s suspension; and (b) the Board shall, if the suspension continues for more than 30 days, forthwith after the suspension has continued for more than 30 days, consider whether a direction should be given under paragraph (a). ##### 60 Removal and variation of suspension relating to Secretaries of Departments (1) Where an officer has been suspended from duty under section 57 or 59, the suspension may be removed in accordance with this section, but, subject to paragraph 63R(1)(e), shall not otherwise be removed, revoked or rescinded. (2) Where an officer is suspended from duty under section 59: (a) the Minister may, at any time, whether upon application by the officer or otherwise, remove the suspension; and (b) the Minister shall, if the suspension continues for more than 30 days, forthwith after the suspension has continued for more than 30 days, consider whether the suspension should be removed. (3) Where: (a) an officer has been suspended under section 57; and (b) the charge, or each charge, in connexion with which he has been so suspended: (i) is found by the Board of Inquiry established to inquire into it not to have been proved; or (ii) is withdrawn; the Minister shall remove the suspension. (4) Where: (a) an officer has, by reason of his having been charged with a criminal offence, or with 2 or more criminal offences, been directed to perform temporarily other duties or has been suspended from duty, under section 59; and (b) a condition specified in subsection (5) is fulfilled in respect of the charge, or of each of the charges, as the case may be; the Minister shall, if the direction has not previously been revoked or the suspension has not previously been removed, revoke the direction or remove the suspension, as the case requires. (5) For the purposes of paragraph (4)(b), the conditions are: (a) the condition that, upon the hearing of the charge, the officer neither pleads guilty to the charge nor is found guilty of the criminal offence with which he is charged or of any other criminal offence established by the evidence given upon the hearing of the charge; and (b) the condition that the charge is not proceeded with. (6) Where the suspension of an officer who had, after having been suspended under section 59, sought and been granted leave of absence for a part of the period of suspension, is required to be removed under subsection (4) or would have been required to be so removed if it had not previously been removed, the officer is entitled to a credit of a period of leave of absence equal to that part of the period of suspension. (7) Where an officer who has been suspended from duty under section 57 or 59 is dismissed from the Service, the period during which the officer is suspended from duty does not count as service for any purposes. (8) Where an officer retires from the Service or dies while he is suspended from duty under section 57 or 59, the Board shall determine whether the whole, or any part, of the officer’s period of suspension is to form part of the officer’s period of service for any purpose under this Act or any other Act, and, if so, the purposes for which it is to form part of his period of service. (9) Where an officer is under suspension from duty in respect of misconduct or a criminal offence immediately before the Governor‑General takes action, or decides not to take action, with respect to the misconduct or offence, the suspension ceases upon the Governor‑General taking that action or deciding not to take any action. (10) The revocation of a direction under subsection 59(1) that an officer perform other duties, or the removal of the suspension under that subsection of an officer from duty, in circumstances (other than circumstances where the direction is required to be revoked or the suspension is required to be removed) does not prevent the officer from being directed to perform other duties, or being suspended from duty, in accordance with that subsection, as if the previous direction or suspension had not taken place. #### Subdivision C—Officers other than Secretaries of Departments ##### 60A Interpretation In this Subdivision, unless the contrary intention appears, officer means an officer other than an officer within the meaning of Subdivision B. ##### 61 Disciplinary action (2) Where an officer authorized by the relevant Secretary for the purposes of this subsection is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorized officer shall, as soon as practicable, decide whether he should be charged and: (a) if he decides that the officer should not be charged—may counsel the officer or cause a supervisor of the officer to counsel the officer; or (b) if he decides that the officer should be charged—shall, by writing under his hand delivered to the officer, charge the officer with the failure. (3) An officer charged under subsection (2) may request the relevant Secretary to furnish copies of the charge to either or both of the following, that is to say: (a) to an organisation specified by the officer, being an organisation within the meaning of the Workplace Relations Act 1996; or (b) to a person specified by the officer, being a person whom the officer wishes to assist him in relation to the charge; and, if the officer makes such a request, the relevant Secretary shall comply with the request. ##### 62 Inquiries into misconduct (1) Subject to subsection (2), where an officer is charged with misconduct under section 61, an inquiry shall, without undue delay, be held into the charge by the relevant Secretary or an officer appointed for the purpose by the relevant Secretary. (2) An inquiry into a charge shall not be held: (a) by an officer who has furnished a report in respect of any of the matters alleged to constitute the misconduct to which the charge relates; or (b) by the officer who laid the charge. (3) In an inquiry for the purposes of subsection (1), a formal hearing is not required, but the officer shall be notified that an inquiry is to be held into the alleged misconduct and given an opportunity to state, in writing, within 7 days or such longer period as the officer holding the inquiry may allow after the notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters, including a statement submitting that the matters alleged to constitute the misconduct are, even if true, incapable in law of constituting the misconduct for the purposes of this Act. (4) Where an officer has furnished a statement in relation to the matters alleged to constitute misconduct, the officer shall, if he so requests, be given the opportunity of making a further oral statement to the officer holding the inquiry and, if he does so, a written record of his further statement shall be made by that officer. (5) An officer who has been charged with misconduct under section 61 shall not, by reason only of having failed to deny the truth of a matter included among matters alleged to constitute the misconduct, be taken to have admitted the truth of that matter. (6) Where the officer holding an inquiry into a charge is satisfied that the officer charged has failed to fulfil his duty as an officer, he may counsel the officer, or cause the officer to be counselled by another officer, or, if he is of the opinion that other action is necessary: (a) may direct that there be taken, in respect of the officer, action by way of: (i) admonishing the officer; (ii) causing a sum not exceeding $500 to be deducted from the salary of the officer; (iii) if the officer occupies an office to which a range of salary is applicable and the salary payable to him is not the minimum salary in that range—reducing the salary of the officer to a specified salary and then, upon the expiration of a specified period, being a period of 12 months or less, increasing the salary of the officer to the salary that would have been payable to him if his salary had not been so reduced, or to a lesser salary specified in the direction; (iv) transferring the officer to a specified office (whether at the same or a different locality), being an office for which he is qualified and which has the same classification as the classification of the office held by him; (v) transferring the officer to a specified office (whether at the same or a different locality), being an office for which he is qualified and which has the same classification as the classification held by him and causing a sum, not exceeding $500, to be deducted from his salary; (vi) if the officer occupies an office to which a range of salary is applicable and the salary payable to him is not the minimum salary of that range—transferring the officer to a specified office (whether at the same or a different locality), being an office for which he is qualified and which has the same classification as the classification of the office held by him, reducing the salary of the officer to a specified salary and then, upon the expiration of a specified period, being a period of 12 months or less, increasing the salary of the officer to the salary that would have been payable to him if his salary had not been so reduced, or to a lesser salary specified in the direction; or (vii) transferring the officer to a specified office (whether at the same or a different locality), being an office for which he is qualified and which has a lower classification than the classification of the office held by him, and, if there is a salary range applicable to the officer so specified, determining that he be paid a specified salary within that range; or (b) may direct that the officer be dismissed from the Service. (9) Where the officer holding an inquiry into a charge gives a direction of a kind referred to in paragraph (6)(a) or (b) in respect of the officer charged, he shall furnish to the officer particulars of his reasons for giving that direction. (10) A direction under this section in respect of an officer takes effect: (a) if the officer has no right of appeal against the direction—on the day on which the officer is furnished with particulars of the reasons for the giving of the direction; or (b) if the officer has a right of appeal against the direction and appeals—on the lapsing or withdrawal of the appeal or on a Disciplinary Appeal Committee confirming the direction, whichever happens first; or (c) in any other case—at the end of the period within which the officer may appeal against the direction to a Disciplinary Appeal Committee. ##### 63 Convictions by courts (1) Where: (a) a court has, after 15 September 1980, convicted an officer of a criminal offence or found, without recording a conviction, that such an officer has committed such an offence; and (b) the relevant Secretary, after giving the officer an opportunity to furnish to him, in writing, any statement that he desires to furnish in relation to the offence, is of the opinion that, having regard to the nature and seriousness of the offence, the circumstances in which it was committed and the nature of the duties of the officer, he is justified in so doing in the interests of the Service; the relevant Secretary may counsel the officer or may: (c) direct that there be taken, in respect of the officer, action by way of: (i) transferring the officer to a specified office (whether or not at the same or a different locality), being an office for which he is qualified and which has the same classification as the classification of the office held by him; or (ii) transferring the officer to a specified office (whether or not at the same or a different locality), being an office for which he is qualified and which has a lower classification than the classification of the office held by him and, if there is a salary range applicable to the office so specified, determining that he be paid a specified salary within that range; or (d) direct that the officer be dismissed from the Service. (4) Where the relevant Secretary gives a direction of a kind referred to in paragraph (1)(c) or (d) in respect of an officer, he shall furnish to the officer particulars of his reasons for giving that direction. (5) A direction under this section in respect of an officer takes effect: (a) if the officer has no right of appeal against the direction—on the day on which the officer is furnished with particulars of the reasons for the giving of the direction; or (b) if the officer has a right of appeal against the direction and appeals—on the lapsing or withdrawal of the appeal or on a Disciplinary Appeal Committee confirming the direction, whichever happens first; or (c) in any other case—at the end of the period within which the officer may appeal against the direction to a Disciplinary Appeal Committee. (6) The fact that an officer is, or is not, counselled, or that other action is, or is not, taken against an officer, under this section, in respect of a criminal offence shall not be taken to preclude the Commissioner, a body, a Secretary or another person, from having regard to the conviction or finding, to the nature and seriousness of the offence and to the circumstances in which the offence was committed in the course of exercising a power or performing a function conferred on it or him by this Act or by the regulations if those matters are relevant to the manner in which the power should be exercised or function should be performed. (7) Nothing in subsection (6) shall be taken to authorize the charging of an officer under section 61, and the taking of action in respect of the officer under this section, in relation to the same matter. ##### 63B Suspension (1) Where: (a) an officer has been charged with having committed a criminal offence; or (b) an officer authorized for the purposes of subsection 61(2) has informed the relevant Secretary that he is of the opinion that an officer may have failed to fulfil his duty as an officer; and the relevant Secretary is of the opinion that it would be prejudicial to the effective operation of the Service, to the interests of the public or to the interests of the officer or his fellow officers if the officer were to continue to perform the duties of his existing office pending the hearing and determination of the criminal charge, the taking of a decision not to charge the officer with misconduct or the hearing and determination of any charge of misconduct laid against the officer, as the case may be, the relevant Secretary may, by notice in writing delivered to the officer: (c) direct the officer to perform temporarily other duties that he is qualified to perform (whether at the same or a different locality); or (d) suspend the officer from duty. (1A) Where: (a) either: (i) an officer has been convicted of a criminal offence; or (ii) without recording a conviction, a court has made a finding that an officer has committed a criminal offence; and (b) the officer is not subject to a direction or suspension under subsection (1); the relevant Secretary may, by written notice given to the officer: (c) direct the officer to perform temporarily other duties that he or she is qualified to perform (whether at the same or a different locality); or (d) suspend the officer from duty. (1B) A Secretary is not authorised to suspend an officer under paragraph (1A)(d) unless the Secretary is of the opinion that it would be prejudicial to: (a) the effective operation of the Service; or (b) the interests of the public, the officer or other officers; if the officer were to continue to perform the duties of his or her existing office pending the making of a decision under section 63 in relation to the officer. (1C) A Secretary is not authorised to suspend an officer under paragraph (1)(d) or (1A)(d) unless: (a) the Secretary has first given the officer an opportunity to be heard; or (b) the Secretary is of the opinion that it would not be appropriate, in the particular circumstances, to give the officer such an opportunity. (2) Except as provided by subsection (3), (4) or (5) or by section 63C, an officer who is suspended from duty under this section is not entitled to be paid salary in respect of the period during which he is so suspended. (3) Where an officer is, by reason of circumstances referred to in paragraph (1)(b), suspended from duty under this section before a decision is made whether or not he is to be charged with misconduct, he shall be suspended with salary: (a) in a case where an officer authorized for the purpose of subsection 61(2) decides that he should not be so charged—until that decision is made; or (b) in any other case—until he is charged. (4) Where an officer is suspended from duty under this section at a time when he is absent on leave of absence, the suspension does not prevent his receiving any salary to which he is entitled in respect of that period of leave of absence. (5) The suspension of an officer from duty under this section does not prevent the granting to the officer of leave of absence with salary. (6) An officer who is suspended from duty under this section is entitled to engage in employment outside the Service during any period of suspension from duty other than a period during which the officer is receiving salary. ##### 63C Removal and variation of suspension (1) Where an officer has been suspended from duty under section 63B, the suspension may be removed in accordance with this section, but, subject to paragraph 63R(1)(e), shall not otherwise be removed, revoked or rescinded. (2) Where an officer is suspended from duty under section 63B: (a) the relevant Secretary may: (i) at any time, upon application by the officer or otherwise, remove the suspension; or (ii) if the relevant Secretary is satisfied that the officer is suffering or has suffered hardship—subject to any determination under section 82D, direct that the officer be paid the whole or part of the officer’s salary for the whole or part of the period of the officer’s suspension; and (b) the relevant Secretary shall, if the suspension continues for more than 30 days, forthwith after the suspension has continued for more than 30 days, consider whether the suspension should be removed, or a direction should be given, under paragraph (a). (3) Where, after an officer has been directed to perform temporarily other duties, or has been suspended from duty, in circumstances referred to in paragraph 63B(1)(b): (a) the officer is charged with a failure, or with 2 or more failures, to fulfil his duties as an officer and the charge or each charge is found not to have been proved by the officer holding the inquiry or by a Disciplinary Appeal Committee or is withdrawn; or (b) an officer authorized for the purposes of subsection 61(2) decides that the officer should not be charged with any such failure; the relevant Secretary shall, if the direction has not previously been revoked or the suspension has not previously been removed, revoke the direction or remove the suspension, as the case requires. (4) Where: (a) an officer has, by reason of his having been charged with a criminal offence or with 2 or more criminal offences, been directed to perform temporarily other duties, or been suspended from duty, under subsection 63B(1); and (b) a condition specified in subsection (5) is fulfilled in respect of the charge, or of each of the charges, as the case may be; the relevant Secretary shall, if the direction has not previously been revoked or the suspension has not previously been removed, revoke the direction or remove the suspension, as the case requires. (5) For the purposes of paragraph (4)(b), the conditions in respect of a charge are: (a) the condition that, upon the hearing of the charge, the officer neither pleads guilty to the charge nor is found guilty of the criminal offence with which he is charged or of any other criminal offences established by the evidence given upon the hearing of the charge; and (b) the condition that the charge is not proceeded with. (6) Where: (a) an officer has been suspended from duty under subsection 63B(1); (b) an amount of salary that would otherwise have been paid to the officer in respect of the whole, or a part, of the period of the suspension was not payable to him; and (c) the suspension is required to be removed under subsection (3) or (4) or would have been required to be so removed had it not previously been removed; the relevant Secretary shall, subject to subsection (7), authorize payment to him of an amount equal to the amount of salary referred to in paragraph (b). (7) Where the relevant Secretary is satisfied that an officer to whom subsection (6) applies has engaged in employment outside the Service during the whole, or a part, of the period of his suspension, the amount payable to him under that subsection shall be reduced by an amount equal to the total of the amounts of the earnings that the relevant Secretary is satisfied were received or are receivable by him in respect of that employment or work. (8) A relevant Secretary may request an officer to whom subsection (6) applies to furnish to him, in writing: (a) particulars of any employment outside the Service in which the officer has engaged during the whole, or a part, of the period of his suspension; and (b) particulars of the total amounts of the earnings that were received or are receivable by the officer in respect of that employment; and may defer authorizing payment to the officer under subsection (6) until these particulars have been furnished to him. (9) Where the suspension of an officer who had, after being suspended under section 63B, sought, and been granted, leave of absence for a part of the period of suspension, is required to be removed under subsection (3) or (4) or would have been required to be so removed had it not previously been removed, the officer is entitled to a credit of a period of leave of absence equal to that part of the period of suspension. (10) Where an officer who has been suspended from duty under section 63B is dismissed from the Service, the period during which the officer is suspended from duty does not count as service for any purpose. (11) Where an officer retires from the Service or dies while he is, under section 63B, suspended from duty, the Board shall determine whether the whole, or any part, of the officer’s period of suspension is to form part of the officer’s period of service for any purpose under this Act or any other Act, and, if so, the purposes for which it is to form part of his period of service. (12) Where an officer retires from the Service or dies while he is, under section 63B, suspended from duty without salary, the Board may, in its discretion, authorize payment to the officer, or to the estate of the deceased officer, of an amount equal to the amount of salary that would otherwise have been paid to the officer in respect of the period of his suspension without salary less the total of the amounts (if any) of the earnings that the Board is satisfied the officer received or was entitled to receive in respect of any employment or work engaged in by him while so suspended. (13) Where an officer is performing temporarily other duties in accordance with a direction under section 63B, or is under suspension from duty under that section, in connexion with any misconduct or offence, immediately before: (a) a direction in respect of the officer in relation to that misconduct or offence takes effect under section 62 or 63; or (c) a Disciplinary Appeal Committee sets aside a direction given under subsection 62(6) in relation to the misconduct or under subsection 63(1) in relation to the offence; the direction that the officer perform temporarily those other duties shall be deemed to have been revoked or the suspension of the officer from duty shall be deemed to have been removed, as the case requires, upon the direction referred to in paragraph (a) taking effect or the setting aside of the direction referred to in paragraph (c), as the case may be. (14) The revocation of a direction under subsection 63B(1) or (1A) that an officer perform other duties, or the removal of the suspension under that subsection of an officer from duty, in circumstances other than circumstances where the direction is required to be revoked or the suspension is required to be removed, does not prevent the officer from being directed to perform other duties, or suspended from duty, in accordance with that subsection, as if the previous direction or suspension had not taken place. ##### 63D Appeals (1) A reference in this section to a decision in respect of an officer shall be read as a reference to a direction given in respect of the officer under subsection 62(6) or 63(1), not being: (a) a direction under subsection 62(6) that there be taken, in respect of the officer, action by way of: (i) admonishing the officer; (ii) causing a sum not exceeding $50 to be deducted from the officer’s salary; or (iii) transferring the officer to an office at the same locality, being an office for which the officer is qualified and which has the same classification as the officer; or (b) a direction under subsection 63(1) that there be taken, in respect of the officer, action by way of transferring the officer to an office at the same locality, being an office for which the officer is qualified and which has the same classification as the officer. (2) An officer may appeal to a Disciplinary Appeal Committee against a decision made in respect of him: (a) if the decision relates to a charge of misconduct—on either or both of the following grounds: (i) that the charge should have been dismissed; or (ii) that the action directed to be taken in relation to the charge is unduly severe; or (b) in any other case—on the ground that the action directed to be taken in respect of him is unduly severe. (3) A Disciplinary Appeal Committee shall hear each appeal submitted to it under subsection (2) and may confirm, vary or set aside the decision against which the appeal is made. (4) Where a decision in respect of an officer is varied by a Disciplinary Appeal Committee in such a manner as to direct the taking of action of a kind referred to in paragraph 62(6)(a) or 63(1)(c), the direction takes effect in respect of the officer immediately it has been given. (6) Where an officer appeals to a Disciplinary Appeal Committee under subsection (2) against a decision on the ground that the action directed to be taken in respect of him is unduly severe, the Committee shall take into consideration any evidence given on the hearing of the appeal: (a) of matters relating to the previous employment history and general character of the appellant; (b) if the officer was, under section 63B, suspended without salary in respect of the misconduct or offence to which the decision relates—of any loss of earnings arising from that suspension; and (c) if the officer is to be transferred to another office—of the expenses that will be incurred by the officer in connexion with that transfer. (7) A Disciplinary Appeal Committee shall give reasons, in writing, for its decision on an appeal under this section. ##### 63F Nullification of conviction (1) For the purposes of this section, a finding of a court in relation to an offence shall be regarded as having been nullified: (a) where a person has been convicted on the basis of that finding—if the conviction has subsequently been quashed or otherwise nullified or the person convicted has received a pardon or has been released from prison as a result of an inquiry into the conviction; or (b) in any other case—if the finding has been set aside. (2) Where, after a person has been dismissed from the Service under section 63 or 63M by reason of his having been found by a court to have committed a criminal offence, the finding of the court is nullified, the person may apply to the Board, in writing, for re‑appointment to the Service. (3) Where, after an officer has been transferred to another office under subsection 63(1) or 63D(4) by reason of his having been found by a court to have committed a criminal offence, the finding of the court is nullified, the officer may apply to the Board, in writing, for transfer to an appropriate office. (4) A person who: (a) has been dismissed from the Service, or has, while he was a person to whom Division 3 of Part IV applied, been dismissed from eligible public employment, by reason of his having been found by a court to have committed a criminal offence; and (b) has subsequently been re‑appointed to the Service; may, if the finding of the court is nullified, apply to the Board, in writing, for transfer or promotion to an appropriate office at any time after the finding is nullified and before he ceases to be an officer or, if he becomes a person to whom Division 3 of Part IV applies upon ceasing to be an officer, before he ceases to be such a person. (5) The Board shall refer an application made to it under subsection (2), (3) or (4) to the Secretary who is, in the opinion of the Board, appropriate to consider it. (6) Where an application is referred to a Secretary under subsection (5), the Secretary shall consider the application and: (a) if he is satisfied that it is, in all the circumstances reasonable that the applicant be re‑appointed to the Service, or transferred or promoted to an appropriate office, as the case may be—shall recommend to the Board that the applicant be so re‑appointed, transferred or promoted; or (b) if he is not so satisfied—shall recommend to the Board that the application be refused. (7) Where the Secretary recommends to the Board that an application under subsection (2), (3) or (4) be refused: (a) he shall notify the applicant, in writing, accordingly and furnish to him and to the Board the reasons for his recommendation; and (b) the applicant may appeal to a Disciplinary Appeal Committee against the recommendation. (8) A Disciplinary Appeal Committee shall hear each appeal made to it under subsection (7) and may: (a) confirm the recommendation appealed against; or (b) recommend to the Board that the appellant be re‑appointed to the Service, or be transferred or promoted to an appropriate office, as the case may be; and shall furnish to the appellant and to the Board the reasons for its decision on the appeal. (9) Upon receipt of a recommendation of the Secretary in pursuance of subsection (6), or of a decision on appeal of a Disciplinary Appeal Committee under subsection (8), the Board may, subject to subsection (10): (a) where the recommendation or decision relates to an application under subsection (2): (i) if the applicant was dismissed under section 63—appoint the applicant to the Service to fill an appropriate office or, with the consent in writing of the applicant, another office; (ii) if the applicant was dismissed under section 63M but is engaged in eligible public employment—appoint the applicant to the Service as an unattached officer on leave without pay, having such rights with respect to appointment, promotion or transfer to an office in the Service as he had at the time of his dismissal; or (iii) if the applicant was dismissed under section 63M but is not engaged in eligible public employment—appoint the applicant to the Service to fill an appropriate office or, with the consent in writing of the applicant, another office; (b) where the recommendation or decision relates to an application under subsection (3)—transfer the applicant to an appropriate office; or (c) where the recommendation or decision relates to an application under subsection (4): (i) if the applicant is an officer—transfer the applicant to an appropriate office; or (ii) if the applicant is a person to whom Division 3 of Part IV applies—transfer or promote the applicant under that Division to an appropriate office. (10) Where a Secretary in pursuance of subsection (6), or a Disciplinary Appeal Committee under subsection (8), recommends that a person be re‑appointed to the Service or that an officer be transferred to an appropriate office, the Board shall re‑appoint the person to the Service or transfer the officer, as provided in subsection (9). (11) Where a person who had, under this Division, been dismissed from the Service, is re‑appointed to the Service under this section, the person shall be deemed, during the period commencing on the day immediately following the day on which he was so dismissed and ending on the day immediately preceding the day on which he was so re‑appointed, to have continued in the Service and to have been absent from duty on leave of absence without pay, and the Board shall determine whether that period, or any part of that period, is to form part of the officer’s period of service for any purposes under this Act or any other Act (other than the Superannuation Act 1976 or the Superannuation Act 1990) and, if so, the purposes for which it is to form part of the period of his service. (12) In this section, appropriate office, in relation to a person or to an officer, means the original office occupied by that person or officer, an equivalent office, or, if such an office is not available, an office determined by the Board to be as nearly as possible equivalent to the original office occupied by that person or officer. ##### 63G Review of findings (1) Where, upon the holding of an inquiry into a charge laid against a person under subsection 61(2), section 63K or 63L, or upon the hearing by a Disciplinary Appeal Committee of an appeal in connexion with such a charge, the charge is found to have been established and: (a) in a case where the charge was laid under subsection 61(2): (i) a sum was deducted from the salary of the person; (ii) the salary of the person was reduced; (iii) the person was transferred to another office; or (iv) the person was dismissed from the Service; or (b) in a case where the charge was laid under section 63K or 63L—the person was dismissed from the Service; the person may, at any time, request the Merit Protection and Review Agency, in writing, to review the finding, or the action taken in respect of the charge, on the ground that evidence that was not given, and could not reasonably be expected to be given, on behalf of the person in the course of the investigation of the charge is now available and that the evidence might, if it had been given, have resulted in the charge being found not to have been established, or in less severe action being taken in respect of the charge, as the case may be. (2) A request under subsection (1) shall set out particulars of the evidence that has become available. (3) Where the Merit Protection and Review Agency is satisfied that the ground of the request is established, the Agency shall refer the request to a Disciplinary Appeal Committee. (4) Where the request of a person for the review of a finding is referred to a Disciplinary Appeal Committee, the Disciplinary Appeal Committee: (a) shall review the finding; (b) shall: (i) if it is satisfied, in the light of the evidence given when the charge was being investigated and of the evidence given before it in connexion with the review, that the person failed to fulfil his duty as an officer, or failed to fulfil his duty as an unattached officer within the meaning of Subdivision D, as the case requires—affirm the finding; or (ii) in any other case—quash the finding and recommend to the Public Service Board that it take such action, by way of recompensing the person, as is, in the opinion of the Public Service Board, reasonable and practicable in all the circumstances; and (c) shall furnish to the person and to the Public Service Board its reasons for making its decision. (5) Where the request of a person for the review of action taken in respect of a charge is referred to a Disciplinary Appeal Committee, the Disciplinary Appeal Committee: (a) shall review the action so taken; (b) shall: (i) if it is satisfied, in the light of the evidence given when the charge was being investigated and of the evidence given before it in connexion with the review, that the action so taken was not too severe—affirm the action; or (ii) in any other case—recommend to the Public Service Board that it take such action to mitigate the severity of the action as is, in the opinion of the Public Service Board, reasonable and practicable in all the circumstances; and (c) shall furnish to the person and to the Public Service Board its reasons for making its decision or recommendation. (6) The Public Service Board shall consider the recommendation given to it by a Disciplinary Appeal Committee upon a review under this section and the reasons for the recommendation and may, in its discretion: (a) where the recommendation relates to a review of a finding under subsection (4)—take such action by way of recompensing the person to whom the finding relates as is, in the opinion of the Board, reasonable and practicable in all the circumstances; or (b) where the recommendation relates to a review of action taken in respect of a charge under subsection (5)—take such action to mitigate the severity of the action as is, in the opinion of the Board, reasonable and practicable in all the circumstances. (7) Without limiting the power of the Board to take action under subsection (6), the Board may, if it considers it appropriate to do so: (a) in relation to a person who had been dismissed from the Service: (i) re‑appoint the person to the Service to fill his original office or an equivalent office, or, if such an office is not available, an available office as nearly as possible equivalent to his original office; (ii) if, at the time of his dismissal from the Service, he was a person to whom Division 2 of Part IV applied— re‑appoint the person to the Service as an unattached officer on leave without pay, having such rights with respect to promotion or transfer to an office in the Service as he had at the time of his dismissal; or (iii) if he is engaged in eligible public employment within the meaning of Part IV—declare him to have become a person to whom Division 3 of that Part applies; or (b) in relation to a person who had been transferred—direct that he be transferred to his original office or an equivalent office, or, if such an office is not available, an available office as nearly as possible equivalent to his original office. (8) Where, in pursuance of subsection (7), the Board declares a person to have become a person to whom Division 3 of Part IV applies, the person shall be deemed to have become such a person on the date on which the declaration is made. (9) Where a person who had, under this Division, been dismissed from the Service, is re‑appointed to the Service under this section, the person shall be deemed, during the period commencing on the day immediately following the day on which he was so dismissed and ending on the day immediately preceding the day on which he was so re‑appointed, to have continued in the Service and to have been absent from duty on leave of absence without pay, and the Board shall determine whether that period, or any part of that period, is to form part of the officer’s period of service for any purposes under this Act or any other Act (other than the Superannuation Act 1976 or the Superannuation Act 1990) and, if so, the purposes for which it is to form part of the period of his service. (10) In this section: (a) a reference to the investigation of a charge shall be read as a reference: (i) if the person charged appealed to a Disciplinary Appeal Committee—to the investigation of the charge by the Disciplinary Appeal Committee; or (ii) in any other case—to the investigation of the charge by the officer holding the inquiry; (b) a reference to the giving of evidence includes a reference to the submission or production of statements or other material; and (c) a reference to the taking of less severe action in respect of a charge shall be read as including a reference to counselling in respect of the charge. #### Subdivision D—Officers employed otherwise than in a Department ##### 63J Interpretation (1) In this Subdivision, unless the contrary intention appears: > misconduct in relation to an unattached officer, means a failure by the officer to fulfil his duty as an unattached officer. > unattached officer means: (a) an officer who, whether or not he holds an office in a Department: (i) is, notwithstanding that he is employed under this Act, also employed by the Commonwealth otherwise than under this Act, whether as the holder of an office of appointment or otherwise; (ii) is employed by another person or body (including a State), whether as the holder of an office or appointment or otherwise; or (iii) is engaged in employment on his own account or in partnership with another person or other persons; but does not include an officer who is performing duty in a Department; (c) an officer who is on leave of absence from the Service, not being leave of absence for recreation or on account of illness, and does not hold an office in a Department. (2) For the purposes of this Subdivision, an unattached officer shall be taken to have failed to fulfil his duty as an unattached officer if, and only if, while he is an unattached officer, he engages in improper conduct, being conduct which brings the Service into disrepute. (3) Subsection (2) applies to conduct engaged in by an unattached officer whether he engages in the conduct in, or in connexion with, the employment (if any) in which he is engaged or otherwise. ##### 63JA Suspension (1) The regulations may make provision for and in relation to the application, subject to such modifications and adaptations (if any) as are specified, of sections 63B and 63C to unattached officers. (2) In subsection (1), modification includes the addition or omission of a provision or the substitution of a provision for another provision. (3) For the purposes of subsections 63K(8), 63L(8) and (9) and 63M(5) and (6), sections 63B and 63C, in their application by virtue of subsection (1), are to be regarded as included in this Subdivision. ##### 63K Misconduct committed before becoming an unattached officer (1) An unattached officer may, as provided in the regulations, be charged with misconduct committed by him before he became an unattached officer. (2) The regulations may make provision for and in relation to the holding of an inquiry into a charge against an unattached officer under subsection (1). (3) If the person holding an inquiry into a charge under subsection (1) is satisfied that the unattached officer committed misconduct before he or she became an unattached officer, the person may cause the officer to be counselled by another officer. (3A) If the person is of the opinion that counselling is not sufficient, he or she may give one of the following directions: (a) a direction that the officer be admonished; (b) a direction that an amount not exceeding $500 be deducted from money due by the Commonwealth to the officer; (c) a direction that the officer’s classification be reduced to a specified lower classification and, if a range of salary is applicable to the lower classification, specifying the rate at which salary payable to the officer is to be paid; (d) a direction that the officer be dismissed from the Service. (3B) The reference in paragraph (3A)(b) to money due by the Commonwealth to an officer is to be read as follows: (a) if, when the direction is given, the officer is performing duties in a Department, the reference is to salary due to the officer; (b) in any other case, the reference is to any money due, or that becomes due, by the Commonwealth to the officer: (i) under this Act or under regulations or a determination under this Act; or (ii) under the Long Service Leave (Commonwealth Employees) Act 1976. (4) Where the person holding an inquiry into a charge under subsection (1) is satisfied that the unattached officer committed misconduct, he shall furnish to the officer particulars of his reasons for being so satisfied, and, if he gives a direction under subsection (3A) in respect of the misconduct, he shall also furnish to the officer particulars of his reasons for giving the direction. (5) Where a finding is made under this section that an unattached officer committed misconduct before he became an unattached officer, the fact that the officer is, or is not, counselled, or that other action is, or is not, taken against the officer, in respect of the misconduct shall not be taken to preclude the Board or another body, or a Secretary or another person, from having regard to the finding in the course of exercising a power or performing a function conferred on it or him by this Act or by the regulations if the finding is relevant to the manner in which the power should be exercised or function should be performed. (6) A reference in subsection (5) to a finding does not include a reference to a finding that has been set aside by a Disciplinary Appeal Committee. (7) In this section, a reference to misconduct shall be read as a reference to misconduct as defined by section 55. (8) If: (a) a person is charged under this section; and (b) before the charge is determined, the person ceases to be an unattached officer but remains an officer; this Subdivision continues to apply to the person in relation to the charge, and any action may be taken by or against the person under this Subdivision in relation to the charge, as if the person were still an unattached officer. ##### 63L Misconduct while unattached officer (1) An unattached officer may, as provided in the regulations, be charged with misconduct committed by him while he is or was an unattached officer. (2) The regulations may make provision for and in relation to the holding of an inquiry into a charge against an unattached officer under subsection (1). (3) If the person holding an inquiry into a charge under subsection (1) is satisfied that the unattached officer committed misconduct while an unattached officer, the person may cause the officer to be counselled by another officer. (3A) If the person is of the opinion that counselling is not sufficient, he or she may give one of the following directions: (a) a direction that the officer be admonished; (b) a direction that an amount not exceeding $500 be deducted from money due by the Commonwealth to the officer; (c) a direction that the officer’s classification be reduced to a specified lower classification and, if a range of salary is applicable to the lower classification, specifying the rate at which salary payable to the officer is to be paid; (d) a direction that the officer be dismissed from the Service. (3B) The reference in paragraph (3A)(b) to money due by the Commonwealth to an officer is to be read as follows: (a) if, when the direction is given, an officer is performing duties in a Department, the reference is to salary due to the officer; (b) in any other case, the reference is to any money due, or that becomes due, by the Commonwealth to the officer: (i) under this Act or under regulations or a determination under this Act; or (ii) under the Long Service Leave (Commonwealth Employees) Act 1976. (4) Where the person holding an inquiry into a charge under subsection (1) is satisfied that the unattached officer committed misconduct, he shall furnish to the officer particulars of his reasons for being so satisfied, and, if he gives a direction under subsection (3A) in respect of the misconduct, he shall also furnish to the officer particulars of his reasons for giving the direction. (5) Where a finding is made under this section that an unattached officer has committed misconduct as an unattached officer, the fact that the officer is, or is not, counselled, or that other action is, or is not, taken against the officer, in respect of the misconduct shall not be taken to preclude the Board or another body, or a Secretary or another person, from having regard to the finding in the course of exercising a power or performing a function conferred on it or him by this Act or by the regulations if the finding is relevant to the manner in which the power should be exercised or function should be performed. (6) A reference in subsection (5) to a finding does not include a reference to a finding that has been set aside by a Disciplinary Appeal Committee. (7) An unattached officer may be charged under this section in relation to a matter whether or not action has been or is being taken in respect of the matter otherwise than under this Act. (8) If: (a) a person is charged under this section; and (b) before the charge is determined, the person ceases to be an unattached officer but remains an officer; this Subdivision continues to apply to the person in relation to the charge, and any action may be taken by or against the person under this Subdivision in relation to the charge, as if the person were still an unattached officer. (9) If a person ceases to be an unattached officer but remains an officer: (a) the person may be charged under this section with any misconduct committed while the person was an unattached officer; and (b) this Subdivision applies to the person in relation to the charge; and (c) any action may be taken by or against the person under this Subdivision in relation to the charge; as if the person had remained an unattached officer. (10) Subsection (9) applies to a person who ceases to be an unattached officer, whether or not the cessation occurs after that subsection commences. (11) Subsection (9) applies to misconduct, whether or not the misconduct was committed after that subsection commences. ##### 63M Criminal offences (1) Where: (a) a court has, after 15 September 1980, convicted an unattached officer of a criminal offence, or found, without recording a conviction, that an unattached officer has committed such an offence; and (b) a person selected by the Board from among the persons specified in a prescribed class of persons is of the opinion that, having regard to the nature and seriousness of the offence and to the circumstances in which it was committed he is justified in doing so in the interests of the Service; the person referred to in paragraph (b) may counsel the officer or may give one of the following directions: (c) a direction that the officer’s classification be reduced to a specified lower classification and, if a range of salary is applicable to the lower classification, specifying the rate at which salary payable to the officer is to be paid; or (d) a direction that the officer be dismissed from the Service. (2) Where a person gives a direction under subsection (1) in relation to an officer, he shall furnish to the officer particulars of his reasons for giving the direction. (3) The fact that an unattached officer is, or is not, counselled, or that other action is, or is not, taken against the officer, under this section, in respect of a criminal offence shall not be taken to preclude the Board or another body, or a Secretary or another person, from having regard to the conviction or finding, to the nature and seriousness of the offence and to the circumstances in which the offence was committed in the course of exercising a power or performing a function conferred on it or him by this Act or by the regulations if those matters are relevant to the manner in which the power should be exercised or function should be performed. (4) Nothing in subsection (3) shall be taken to authorize the charging of an unattached officer under section 63L, and the taking of action in respect of the unattached officer under this section, in relation to the same matter. (5) If: (a) a court: (i) convicts a person who is an unattached officer of a criminal offence; or (ii) without recording a conviction, finds that a person who is an unattached officer has committed a criminal offence; and (b) before a decision is made in relation to the person under subsection (1), the person ceases to be an unattached officer but remains an officer; this Subdivision continues to apply to the person in relation to the conviction or finding, and any action may be taken by or against the person under this Subdivision in relation to the conviction or finding, as if the person were still an unattached officer. ##### 63N Date of effect of directions (1) This section applies to the following directions: (a) a direction referred to in paragraph 63K(3A)(b), (c) or (d); (b) a direction referred to in paragraph 63L(3A)(b), (c) or (d); (c) a direction referred to in paragraph 63M(1)(c) or (d). (2) Unless it is set aside on appeal, a direction that is subject to appeal under section 63P takes effect as follows: (a) if an appeal under that section against the direction lapses, the direction takes effect on the lapsing of the appeal; (b) if the direction is confirmed by a Disciplinary Appeal Committee under that section, it takes effect on the confirmation of the direction; (c) if there is no appeal against the direction under that section, it takes effect at the end of the period within which an appeal may be instituted. (3) A direction that is not subject to appeal under section 63P takes effect when it is given. (4) If, when a direction referred to in paragraph 63K(3A)(b) or 63L(3A)(b) takes effect, there is no money, or insufficient money, in relation to which the direction may be fully put into effect, the direction continues in force and may be put into effect: (a) at any time at which it is able fully to be put into effect; or (b) by the deduction of instalments from money to which the direction relates until the whole of the money directed to be deducted has been deducted. ##### 63P Appeals (1) Subject to subsection (1A), an unattached officer may appeal to a Disciplinary Appeal Committee: (a) against a finding under section 63K or 63L in respect of a charge that he has committed misconduct—on the grounds that the charge should have been dismissed; or (b) against a direction referred to in: (i) paragraph 63K(3A)(b), (c) or (d); or (ii) paragraph 63L(3A)(b), (c) or (d); or (iii) paragraph 63M(1)(c) or (d); on the ground that the giving of the direction is, in relation to the finding or conviction concerned, unduly severe. (1A) An unattached officer is not entitled to appeal under subsection (1), and is not to be deemed to have appealed under subsection (2), against a direction under paragraph 63K(3A)(b) or 63L(3A)(b) if the amount directed to be deducted does not exceed $50. (2) Where an unattached officer has appealed against a finding of a kind referred to in paragraph (1)(a) and a direction of a kind referred to in paragraph (1)(b) was given in relation to the finding, the officer shall be deemed to have appealed also against that direction on the ground specified in paragraph (1)(b). (3) Subject to subsection (4), a Disciplinary Appeal Committee may confirm or set aside a finding or a direction appealed against. (4) Where a Disciplinary Appeal Committee sets aside the finding in respect of a charge under section 63K or 63L, being a finding in relation to which a direction of a kind referred to in paragraph (1)(b) was given, the direction shall be deemed to have been set aside. ##### 63Q Reasons to be given for finding or direction Where a person makes a finding under section 63K or 63L, or gives a direction under subsection 63K(3A), 63L(3A) or 63M(1), or a Disciplinary Appeal Committee confirms a finding so made or a direction so given, the person or the Committee shall give reasons, in writing, for making the finding or giving the direction or for confirming the finding or direction, as the case requires. #### Subdivision E—Miscellaneous ##### 63R Imprisonment (1) Where an officer is imprisoned by reason of his having been convicted of an offence or is in custody awaiting trial for an offence: (a) he shall be deemed, for the duration of his imprisonment or custody, unless and until he is dismissed, to be on leave of absence without pay; (b) except where he is dismissed in relation to the offence—any service before that period of imprisonment or custody shall, for all purposes, be regarded as being continuous with any service after that period; (c) the period of his imprisonment or custody shall not, unless the Board otherwise determines, be regarded as service for any purposes under this Act or any other Act; (d) he shall not, during that period of imprisonment or custody, be suspended from duty under this Act; and (e) any suspension from duty under this Act that was in force in relation to him immediately before that period of imprisonment or custody commenced shall be deemed, upon that period’s so commencing, to have been removed. (2) Where an officer is imprisoned by reason of having been convicted of an offence or is in custody awaiting trial for an offence, the relevant Secretary or, in the case of an officer referred to in Subdivision B, the Board may, subject to any determination under section 82D, if the relevant Secretary or the Board, as the case may be, is satisfied that the officer is suffering or has suffered hardship, direct, notwithstanding subsection (1), that the officer be paid the whole or part of the officer’s salary for the whole or part of that period of imprisonment or custody. ##### 63S Application to unattached officers performing duty in Department (1) In this section, a reference to an unattached officer shall not be taken to include a reference to a person who is an unattached officer for the purposes of Subdivision D. (2) Without prejudice to their effect in relation to unattached officers apart from this section, Subdivisions A, B and C and this Subdivision also have effect in relation to an unattached officer as provided by this section. (3) Subdivisions A, B and C and this Subdivision have, by force of this subsection, the effect that they would have if: (a) an unattached officer who is performing duties in a Department were occupying an office in that Department; (b) the duties of that office were duties corresponding to the duties that he is performing in the Department as an unattached officer; and (c) the office had a classification corresponding to his classification as an unattached officer. (4) In addition to the effect that Subdivisions A, B and C and this Subdivision have in relation to unattached officers as provided by subsection (2), those Subdivisions have, by force of this subsection, the effect they would have if: (a) there were included among the kinds of action specified in paragraph 57(7)(a) and among the kinds of action specified in subsection 58(1) the following kind of action, namely, action by way of causing the officer to perform specified duties in the same or another Department (whether at the same or a different locality), being duties that he is qualified to perform, and determining the salary, or range of salary, that is to be applicable to him as an unattached officer while he is performing those duties and, if a range of salary is to be so applicable, that he be paid a specified salary within that range; (b) there were included among the kinds of action specified in paragraph 62(6)(a) the following kinds of action, namely: (i) action by way of causing the officer to perform specified duties in the same or another Department (whether at the same or a different locality), being duties that he is qualified to perform and in relation to the performance of which there is applicable a salary or range of salary that is the same as the salary or range of salary applicable to him as an unattached officer; (ii) action by way of causing the officer to perform specified duties in the same or another Department (whether at the same or a different locality), being duties that he is qualified to perform and in relation to the performance of which there is applicable a salary or range of salary that is the same as the salary or range of salary applicable to him as an unattached officer and causing a sum, not exceeding $500, to be deducted from his salary; (iii) if a range of salary is applicable to the officer and the salary payable to him is not the minimum salary of that range—action by way of causing the officer to perform specified duties in the same or another Department (whether at the same or a different locality), being duties that he is qualified to perform and in relation to the performance of which there is applicable a salary or range of salary that is the same as the salary or the range of salary applicable to him as an unattached officer, reducing the salary of the officer to a specified salary and then, upon the expiration of a specified period, being a period of 12 months or less, increasing the salary of the officer to the salary that would have been payable to him if his salary had not been so reduced, or to a lesser salary specified in the direction; and (iv) action by way of causing the officer to perform specified duties in the same or another Department (whether at the same or a different locality), being duties that he is qualified to perform and in relation to the performance of which there is applicable a salary or range of salary that is lower than the salary or range of salary applicable to him as an unattached officer and, if there is a range of salary applicable to the performance of those duties, determining that he be paid a specified salary within that range; and (c) there were included among the kinds of action specified in paragraph 63(1)(c) the following kinds of action, namely: (i) action by way of causing the officer to perform specified duties in the same or another Department (whether at the same or a different locality), being duties that he is qualified to perform and in relation to the performance of which there is applicable a salary or range of salary that is the same as the salary or range of salary applicable to him as an unattached officer; and (ii) action by way of causing the officer to perform specified duties in the same or another Department (whether at the same or a different locality), being duties that he is qualified to perform and in relation to the performance of which there is applicable a salary or range of salary that is lower than the salary or range of salary applicable to him as an unattached officer and, if there is a range of salary applicable to the performance of those duties, determining that he be paid a specified salary within that range. ##### 63T Application to certain employees The regulations may make provision for and in relation to the application of the preceding provisions of this Division to and in relation to: (a) an employee who is employed in a Department and has been employed in that Department continuously for a period of not less than 1 year; (b) an employee who is employed in a Department and has been employed in 2 or more Departments for periods that are continuous with one another and with his current period of employment and aggregate not less than 1 year; and (ba) a person who has been engaged under section 82AE, where: (i) the period of engagement (including the period as extended under subsection 82AE(7)); (ii) any other period of employment of the person under Division 10 of Part III; and (iii) any period of service of the person as an officer; being periods that are continuous with one another, aggregate not less than 1 year; and (c) an employee who has been engaged by a Department to serve for a period of not less than 1 year; including provision modifying and adapting the preceding provisions of this Division in relation to such an employee. ##### 64 Attachment of salaries of officers (1) Where judgment has been given for the payment of a sum of money, the person in whose favour the judgment is given (in this section referred to as the judgment creditor) may serve on the Paying Officer of the Department in which the officer against whom the judgment was given is employed a copy of the judgment, certified under the hand of the Registrar or other appropriate officer of the Court by which the judgment was delivered, and a statutory declaration stating that the judgment has not been satisfied by the officer, and setting out the amount due by the officer under the judgment. (2) Upon the service on him of a copy of a judgment and a statutory declaration in pursuance of this section, the Paying Officer shall, as soon as practicable, notify the officer against whom the judgment was given, in writing, of the service of the copy of the judgment and statutory declaration, and require him to state, in writing, within a time to be specified by the Paying Officer, whether the judgment has been satisfied, and, if so, to furnish evidence in support thereof, and, if the judgment has not been satisfied, to state the amount then due under the judgment. (3) If an officer fails, within the time specified in the notice given to him under subsection (2), to satisfy the Paying Officer of his Department that the judgment debt has been satisfied, the Paying Officer shall, subject to subsection (15), in respect of each pay‑day, cause to be deducted from the salary becoming payable to the officer on that pay‑day an amount equal to the normal deduction in respect of the officer and the pay‑day, or such lesser amount as is, in the opinion of the Paying Officer, sufficient to satisfy the balance of the judgment debt. (4) There is payable to the Commonwealth, by a judgment creditor who causes a copy of a judgment to be served on a Paying Officer under this section, an administration fee, at the prescribed rate, in respect of the making of such deduction as is, or such deductions as are, made under this section in relation to the judgment debt. (5) Where an amount is deducted in respect of a judgment debt, under subsection (3), from the salary becoming payable to an officer on a pay‑day, the Paying Officer shall, subject to subsection (6), cause the amount so deducted to be paid to the judgment creditor. (6) Where an amount is deducted in respect of a judgment debt under subsection (3) and the whole or part of the administration fee payable in relation to the debt has not been paid, the Paying Officer shall: (a) apply, in or towards payment of that fee, the amount of the deduction or so much of the amount of the deduction as is equal to the amount payable by way of, or in respect of, that fee; and (b) if the whole of the amount of the deduction is not applied in accordance with paragraph (a)—pay an amount equal to the balance to the judgment creditor. (7) Upon the application, in or towards payment of the administration fee payable in relation to that judgment debt, of an amount deducted in respect of a judgment debt from the salary becoming payable to an officer on a pay‑day: (a) the judgment creditor shall be deemed to have paid the amount so applied to the Commonwealth in satisfaction, or partial satisfaction, as the case requires, of the administration fee; (b) an amount equal to the amount so applied shall be deemed to have been paid by the Commonwealth to the officer on account of salary payable to the officer on that pay‑day; and (c) an amount equal to the amount so applied shall also be deemed to have been paid by the officer to the judgment creditor in respect of the judgment debt. (8) Upon payment being made, in relation to a deduction from the salary becoming payable to an officer on a pay‑day, of an amount to a judgment creditor under subsection (5) or (6): (a) an amount equal to the amount so paid shall be deemed to have been paid by the Commonwealth to the officer on account of salary payable to the officer on that pay‑day; and (b) an amount equal to the amount so paid shall also be deemed to have been paid by the officer to the judgment creditor in respect of the judgment debt. (9) Where more than one judgment and statutory declaration are served on a Paying Officer in respect of the one officer, the judgments shall be satisfied in the order in which copies of the judgments are served on the Paying Officer. (10) A person to whom any payment has been made in pursuance of this section shall notify the Paying Officer immediately a judgment debt in respect of which payment was made is satisfied. Penalty: 10 penalty units. (11) If any payment deemed to have been made to a judgment creditor under paragraph (7)(c) or (8)(b) by an officer in respect of a judgment debt exceeds the amount due under the judgment, the excess shall be repayable by the judgment creditor to the officer, and, in default of payment, may be recovered by the officer from the judgment creditor in any Court of competent jurisdiction. (12) Where an amount is deemed to have been paid by an officer to a judgment creditor in respect of a judgment debt under paragraph (7)(c) in relation to a deduction made from the salary becoming payable to the officer on a pay‑day and an amount is also deemed to have been paid by the officer to the judgment creditor in respect of the judgment debt under paragraph (8)(b) in relation to that deduction, for the purposes of subsection (11), the second‑mentioned payment shall be deemed to have been made after the first‑mentioned payment. (13) Where an officer ceases to be employed in a Department after a copy of a judgment given against the officer has been served on the Paying Officer of the Department or has been forwarded to him under a previous application of this subsection and before the Paying Officer of the Department has been notified that the judgment debt has been satisfied: (a) the Paying Officer shall forthwith after the officer ceases to be employed in the Department inform the judgment creditor, in writing, that the officer has ceased to be so employed and of the date on which he has ceased to be so employed; and (b) if the officer, upon ceasing to be employed in that Department, becomes employed in another Department: (i) the Paying Officer shall also inform the judgment creditor of the name of the Department in which the officer has become employed, of the fact that deductions will be made, in respect of the judgment debt, by the Paying Officer of that Department, and of the address of that Paying Officer in order that the judgment creditor may comply with any obligation imposed upon him by subsection (10); and (ii) the Paying Officer of the first‑mentioned Department shall forward to the Paying Officer of the other Department all documents held by him in relation to the judgment debt, together with a statement containing particulars of the deductions (if any) made in relation to the judgment debt. (14) Where documents relating to a judgment given against an officer are forwarded to the Paying Officer of a Department (in this subsection referred to as the relevant Paying Officer) in accordance with subsection (13): (a) if the time specified in the notice given to the officer under subsection (2) in respect of the judgment had expired before the documents were so forwarded and the officer had failed, within that time, to satisfy the Paying Officer concerned at that time that the judgment debt had been satisfied: (i) the relevant Paying Officer shall, subject to subsection (15), in respect of each pay‑day, cause to be deducted from the salary becoming payable to the officer on that pay‑day an amount equal to the normal deduction in respect of the officer and the pay‑day or such lesser amount as is, in the opinion of the relevant Paying Officer, sufficient to satisfy the balance of the judgment debt; and (ii) subsections (4), (5), (6), (7) and (8) apply to and in relation to those deductions in like manner as they apply to and in relation to deductions made in accordance with subsection (3); or (b) in any other case—subsections (3), (4), (5), (6), (7) and (8) apply as if the copy of the judgment and the statutory declaration concerned had been served on the relevant Paying Officer and any notice given to the officer in relation to that judgment under subsection (2) had been given by the relevant Paying Officer. (15) Where a Paying Officer is satisfied that the deduction of the amount that he would, but for this subsection, be required to deduct from the salary of an officer under subsection (3) or (14), as the case requires, would cause severe hardship to that officer, he may deduct a lesser amount. (16) If, under subsection (13), more than one judgment and statutory declaration are forwarded to the Paying Officer of a Department in respect of the one officer, the Paying Officer forwarding them shall indicate to the Paying Officer to whom they are forwarded the order in which they were served under this section, and, for the purposes of subsection (9), they shall be treated as if they had been served upon the first‑mentioned Paying Officer in that order. (17) The foregoing provisions of this section shall not apply in relation to any officer whose estate the Paying Officer is satisfied has been sequestrated either voluntarily or compulsorily for the benefit of his creditors, and who has not yet obtained a certificate of discharge. (17A) Where the judgment creditor is the Commonwealth, this section has effect as if: (a) subsections (4), (6), (7), (10) and (12) and subparagraph (13)(b)(i) were omitted; and (b) “, subject to subsection (6),” were omitted from subsection (5); and (c) “or (6)” were omitted from subsection (8); and (d) “(7)(c) or” were omitted from subsection (11); and (e) “, (6), (7)” were omitted from subparagraph (14)(a)(ii) and paragraph (14)(b). (18) In this section, unless the contrary intention appears: > net salary, in relation to an officer and to a pay‑day, means the amount of salary becoming payable by the Commonwealth to the officer on the pay‑day after deduction from that salary of: (a) any sum deducted from that salary under Division 2 of Part VI of the Income Tax Assessment Act 1936; (b) any sum deducted from that salary under Part IV of the Superannuation Act 1976 or under Part 4 of the Superannuation Act 1990; and (c) any other sum deducted from that salary for a prescribed purpose. > normal deduction, in relation to an officer and to a pay‑day, means an amount equal to 20% of the net salary of the officer in respect of that pay‑day or such greater amount as the officer has, by instrument in writing delivered to his Paying Officer, specified as the normal deduction for the purposes of this section. > officer includes employee. > pay‑day means a day on which salary becomes payable to an officer. > Paying Officer, in relation to a Department, means such officer as the Secretary of that Department appoints as Paying Officer for the purposes of this section. > salary, in relation to an officer, means any moneys payable by the Commonwealth to the officer by way of salary or wages, and includes any moneys payable by the Commonwealth to the officer by way of an allowance that is a prescribed allowance for the purposes of this section but does not include any moneys payable to the officer by way of a weekly payment of compensation under the Commonwealth Employees’ Rehabilitation and Compensation Act 1988. ##### 65 Deduction of pecuniary penalty from salary (1) Where the officer who pays the salary of an officer or employee is notified that, under the authority of this Act, a pecuniary penalty has been imposed upon the officer or employee, an order for the payment of money has been made against the officer or employee or a direction has been given for the deduction of an amount from the salary of the officer or employee, he shall deduct from the salary payable to the officer or employee the amount of the penalty, the sum ordered to be paid or the amount directed to be deducted, as the case may be, unless he is satisfied that payment of that amount has been made by the officer or employee. (2) The deduction may be made by instalments equal as nearly as practicable to one‑fourth of the salary due from time to time to the officer or employee. (3) All fines and penalties imposed under this Act shall be paid into and form part of the Consolidated Revenue. ### Division 6A—Forfeiture of office ##### 66A Forfeiture of office (1) Where an officer is absent from duty without permission, and has been so absent for a continuous period of not less than 4 weeks, the relevant Secretary may send to him by security post addressed to him at his address last known to the Secretary a notice informing him that unless within a period of 2 weeks from and including the date on which the notice was sent: (a) he returns to duty; or (b) he explains his absence and seeks the permission of the Secretary for any further period of absence that may be necessary having regard to that explanation; he will be deemed to have retired from the Service upon the expiration of that period of 2 weeks. (2) Where an officer to whom a notice under subsection (1) has been sent does not, within the period of 2 weeks from and including the date on which the notice was so sent: (a) return to duty; or (b) explain his absence and seek the permission of the Secretary for a further period of absence; and the notice has not been revoked under subsection (5), he shall be deemed to have retired from the Service on the day following the expiration of that period of 2 weeks. (3) Where a notice has been sent to an officer under subsection (1) and, within the period of 2 weeks after that notice was so sent, the officer explains his absence and seeks the permission of the Secretary for a further period of absence, the Secretary shall, as soon as practicable, consider the matter and may, by notice in writing sent to him by security post addressed to him at his address last known to the Secretary, inform him: (a) that he has been granted leave of absence for such period and on such conditions as are specified in the notice; or (b) that he is required to return to duty and that, unless he returns to duty within a specified period (being a period of at least 2 weeks from and including the date on which the notice is sent) he will be deemed to have retired from the Service upon the expiration of the period so specified. (4) Where an officer who is required by a notice sent to him under subsection (3) to return to duty does not return to duty within the period referred to in the notice and the notice is not revoked under subsection (5), he shall be deemed to have retired from the Service on the day following the expiration of that period. (5) The Board may, at any time before an officer is to be deemed to have retired from the Service under this section, by notice in writing sent to the officer by security post addressed to him at his address last known to the Board, revoke a notice previously sent to the officer under this section, and the notice is then void and of no effect. ##### 66B Re‑appointment of officers deemed to have retired under section 66A (1) A person who is deemed to have retired from the Service in accordance with subsection 66A(2) or (4) may apply to the relevant Secretary, in writing, for re‑appointment to the Service. (2) A Secretary to whom an application is made under subsection (1) shall: (a) if the Secretary is satisfied that the applicant had, in all the circumstances, reasonable grounds for being absent, re‑appoint the applicant to the Service to fill: (i) the office occupied by the applicant immediately before the applicant was deemed to have retired from the Service, or an equivalent office; (ii) if such an office is not available—an available office as nearly as possible equivalent to the office occupied by the applicant as mentioned in subparagraph (i); or (iii) with the consent in writing of the person—another office; or (b) if the Secretary is not so satisfied—refuse the application. (3) Where a Secretary refuses an application: (a) the Secretary shall notify the applicant in writing accordingly, and furnish to the applicant and the Board the reasons for the refusal; and (b) an application may be made to the Agency for review of the decision of the Secretary to refuse the application. (4) A decision under subsection (2) to refuse an application may be reviewed under section 43 of the Merit Protection Act. (5) Where a person who is deemed to have retired from the Service in accordance with subsection 66A(2) or (4) is re‑appointed to the Service under this section, the person shall be deemed, during the period commencing on the day immediately following the day on which the person is so deemed to have retired from the Service and ending on the day immediately preceding the day on which the person was so re‑appointed, to have continued in the Service and to have been absent from duty on leave of absence without pay, and the relevant Secretary shall determine whether that period, or any part of that period, is to form part of the officer’s period of service for any purposes under this Act or any other Act (other than the Superannuation Act 1976 or the Superannuation Act 1990) and, if so, the purposes for which it is to form part of the period of the officer’s service. (6) In this section, relevant Secretary in relation to a person who is deemed to have retired from the Service in accordance with subsection 66A(2) or (4), means the Secretary of the Department in which the person held an office, or was included, immediately before being deemed to have so retired or, if that Department has ceased to exist, the Secretary of such Department as the Board directs. ### Division 8—Leave of absence ##### 68E Liability of officers in respect of excess recreation leave in certain cases (1) Where a person, being an officer to whom section 68A applied immediately before the commencement of this section, has been granted leave of absence for recreation by virtue of, or in anticipation of, a recreation leave credit that accrued to him on 1 January in the year in which he ceases to be an officer, and the period of that leave exceeds that credit as deemed to have been reduced in accordance with determinations in force under subsection 9(7A) or section 82D: (a) if the officer has received salary in respect of any part of that period of leave that is included in the excess—the Commonwealth is entitled to recover from the person, as a debt due by him to the Commonwealth, the amount of that salary; and (b) if the officer has not received salary in respect of any part of that period of leave that is included in the excess—salary is not payable to the officer in respect of that part of that period of leave. (2) Paragraph (1)(a) does not apply in relation to an officer who ceases to be an officer by reason of his death. (3) A reference in subsection (1) to a recreation leave credit shall be read as including a reference to an addition to a recreation leave credit. (4) A determination made under subsection 9(7A) or section 82D may provide that allowances of a specified kind, or such portions of allowances of a specified kind as are ascertained in accordance with the determination, are to be included in salary for the purposes of this section. ##### 70 Leave of absence on account of illness (1) The relevant Secretary may grant leave of absence to an officer, on account of illness: (a) for a continuous period not exceeding 3 months; or (b) with the approval of the Board, and subject to such conditions as are prescribed, for a continuous period not exceeding 12 months. (2) If, at the expiration of a period of leave granted to an officer under subsection (1), the Board is satisfied that the officer is unable to resume his duties, the Board may, if it does not retire him under section 67, grant to the officer leave of absence without pay for a period not exceeding 6 months. (4) The regulations may empower the relevant Secretary to direct that an officer who is ill shall absent himself from duty and shall comply with such conditions as are prescribed. ### Division 8A—Retirement and redeployment of Secretaries of Departments ##### 76A Interpretation In this Division, unless the contrary intention appears: > office of Secretary means an office referred to in paragraph (a) of the definition of office of Secretary in subsection 7(1). > Secretary means a person holding an office of Secretary and includes an unattached Secretary. ##### 76B Retirement upon or after attaining minimum retiring age (1) Subject to subsection 76F(1B), a Secretary who has attained his minimum retiring age is entitled to retire from the Service at any time at which he desires to do so. (2) In subsection (1), minimum retiring age, in relation to a Secretary, means: (a) if the Secretary is included in a class of Secretaries in respect of whom a minimum retiring age is fixed by the regulations—the age so fixed; or (b) in the case of any other Secretary—the age of 55 years. ##### 76C Retirement on ground of age (1) Subject to subsection (2), a Secretary shall, by force of this subsection, be retired from the Service upon attaining his maximum retiring age. (2) Where the relevant authority is of the opinion that it is desirable, in the interests of the Commonwealth, that a Secretary who has not attained his maximum retiring age should continue, after he has attained that age, in his employment, and the Secretary is able and willing so to continue, the relevant authority may determine, in writing, that subsection (1) does not apply to the Secretary. (3) A relevant authority may, at the time when it makes, or at any time after it has made, a determination under subsection (2) in respect of a Secretary, determine that the Secretary shall retire from the Service upon attaining a specified age or upon the expiration of a specified period, and, where such a determination is made, the relevant authority may, at any time before the Secretary attains that age or before the expiration of the period so determined, vary such a determination. (4) In this section: > maximum retiring age, in relation to a Secretary, means: (a) if the Secretary is included in a class of Secretaries in respect of whom a maximum retiring age, being an age less than 65 years, is fixed by the regulations—the age so fixed; or (b) in the case of any other Secretary—the age of 65 years. > relevant authority means: (a) in relation to a Secretary who holds an office of Secretary—the Governor‑General; and (b) in relation to an unattached Secretary—the Board. ##### 76D Retirement of Secretaries of Departments on grounds of inefficiency or incapacity (1) If the Board, after investigation into the circumstances, reports to the Governor‑General that a Secretary is inefficient or incompetent, or is, because of physical or mental incapacity, incapable of performing his duties, the Governor‑General may retire the Secretary from the Service with effect on and from a day to be specified by the Governor‑General. (2) In the case of a retirement of a Secretary under subsection (1) by reason of a report that he is, because of physical or mental incapacity, incapable of performing his duties, the day on and from which he is retired may, with the consent of the Secretary, be a day that is earlier than the date on which the decision by the Governor‑General to retire him was made. (3) In spite of anything contained in this section, a Secretary 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. (4) In spite of anything contained in this section, a Secretary 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. ##### 76E Termination of appointment (1) The Governor‑General may, by instrument signed by him, terminate the appointment of a person to an office of Secretary. (2) The power of the Governor‑General to terminate an appointment under subsection (1) shall be exercised only in accordance with advice that is consistent with a recommendation by the Prime Minister. (3) The Prime Minister shall not recommend, for the purposes of subsection (2), that an appointment to an office of Secretary be terminated unless the Prime Minister has received a written report in relation to the termination from: (a) in the case of 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. (4) Where the appointment of a person to an office is terminated under subsection (1), the office becomes vacant and, unless the person continues to hold another office of Secretary, the person becomes an unattached officer. (5) In subsection (1), office of Secretary does not include an office to or in relation to which section 9 applies. ##### 76F Redeployment of unattached Secretaries of Departments (1) Where an unattached Secretary does not hold an office or employment outside the Service having a salary that is, in the opinion of the Board, comparable with that of the office of Secretary last held by the unattached Secretary, the Board shall: (a) take all reasonable steps to: (i) identify relevant offices that are vacant or about to become vacant; and (ii) bring to the attention of the person or body having the power of appointment in relation to each office referred to in subparagraph (i) the availability of the unattached Secretary for appointment, and the qualifications of the unattached Secretary that make him suitable for appointment, to the office; and (b) take all reasonable steps to ensure that appropriate duties are assigned to the unattached Secretary while he remains an unattached Secretary. (1A) Where the Board is satisfied that it is likely that an unattached Secretary referred to in subsection (1) will not be appointed, within a reasonable time, to a relevant office, the Board may: (a) give notice in writing to the unattached Secretary that it intends to redeploy him into the Senior Executive Service as soon as practicable after the expiration of the period of 28 days commencing on the day on which the notice is given to the unattached Secretary; and (b) after the expiration of that period: (i) transfer the unattached Secretary to an office having a classification that is the highest Senior Executive Service classification; or (ii) direct that the unattached Secretary’s classification as an unattached officer be reduced to the classification that is the highest Senior Executive Service classification. (1B) If an unattached Secretary who is given notice under subsection (1A) elects, by notice in writing given to the Board within the period referred to in paragraph (1A)(a), to retire from the Service, the unattached Secretary shall not be redeployed into the Senior Executive Service but shall be deemed for all purposes to have been compulsorily retired from the Service at the expiration of the period referred to in paragraph (1A)(a) or on such earlier day (not being earlier than the day next following the day of the election) as is specified in the notice of election. (2) In this section, unless the contrary intention appears: > relevant office, in relation to an unattached Secretary, means: (a) an office of Secretary (including an office referred to in paragraph (b) of the definition of office of Secretary in subsection 7(1)); or (b) an office or employment outside the Service for which the unattached Secretary is qualified, being an office or employment having a salary that is, in the opinion of the Board, comparable with that of an office of Secretary of equal classification to the office of Secretary last held by the unattached Secretary. > unattached Secretary does not include an unattached Secretary who, immediately before he became an unattached Secretary, held an office of Secretary to or in relation to which section 9 applied. ##### 76FA Special benefits available to retiring unattached Secretaries (1) The Board may give notice in writing to an unattached Secretary that if the unattached Secretary retires from the Service within the period specified in the notice he or she will be entitled to a specified benefit in accordance with a determination under section 82D. (2) Where notice is given to an unattached Secretary under subsection (1): (a) the unattached Secretary may retire from the Service within the period specified in the notice notwithstanding that he or she is not entitled to retire from the Service under section 76B; and (b) if the unattached Secretary retires from the Service within the period specified in the notice: (i) he or she becomes entitled to the benefit specified in the notice; and (ii) he or she shall be deemed for all purposes to have been compulsorily retired from the Service. (3) In this section, unattached Secretary does not include an unattached Secretary who, immediately before becoming an unattached Secretary, held an office of Secretary in relation to which section 9 applied. ##### 76G Secretaries of Parliamentary Departments recommended for retirement on medical grounds may be declared unattached (1) Where a medical practitioner employed in the Department of Health has, whether before or after the commencement of this section, recommended in writing that a Secretary who holds an office of Secretary to or in relation to which section 9 applied be retired on the ground that he is, by reason of physical or mental incapacity, incapable of performing his duties, the Governor‑General may, upon report by the relevant Presiding Officer or relevant Presiding Officers, within the meaning of section 9B, declare, in writing, that the Secretary shall, on a day specified in the instrument, become an unattached officer and, if the Governor‑General does so, the office held by the Secretary becomes vacant on the day so specified. (2) As soon as practicable after a declaration is made under subsection (1) in respect of a Secretary: (a) a copy of the declaration shall be furnished to the Secretary; and (b) a copy of the declaration shall be published in the Gazette. ### Division 8B—Retirement and redeployment of Senior Executive Service officers ##### 76H Interpretation In this Division, Appeal Committee means a Redeployment and Retirement Appeal Committee constituted under Subdivision D of Division 2 of Part II of the Merit Protection Act. ##### 76I Retirement of Senior Executive Service officers upon or after attaining minimum retiring age (1) A Senior Executive Service officer who has attained his minimum retiring age is entitled to retire from the Service at any time at which he desires to do so. (2) In subsection (1), minimum retiring age, in relation to a Senior Executive Service officer, means: (a) if the Senior Executive Service officer is included in a class of Senior Executive Service officers in respect of whom a minimum retiring age is fixed by the regulations—the age so fixed; or (b) in the case of any other Senior Executive Service officer—the age of 55 years. ##### 76J Retirement on ground of age (1) Subject to subsection (2), a Senior Executive Service officer shall, by force of this subsection, be retired from the Service upon attaining his maximum retiring age. (2) Where the Board is of the opinion that it is desirable, in the interests of the Commonwealth, that a Senior Executive Service officer who has not attained his maximum retiring age should continue, after he has attained that age, in his employment, and the officer is able and willing so to continue, the Board may determine, in writing, that subsection (1) does not apply to the officer. (3) The Board may, at the time when it makes, or at any time after it has made, a determination under subsection (2) in respect of an officer, determine that the officer shall retire from the Service upon attaining a specified age or upon the expiration of a specified period, and, where such a determination is made, the Board may, at any time before the officer attains that age or before the expiration of the period so determined, vary such a determination. (4) In this section maximum retiring age, in relation to a Senior Executive Service officer, means: (a) if the officer is included in a class of Senior Executive Service officers in respect of whom a maximum retiring age, being an age less than 65 years, is fixed by the regulations—the age so fixed; or (b) in the case of any other Senior Executive Service officer—the age of 65 years. ##### 76L Redeployment and retirement of SES officers (1) Where, in relation to a Senior Executive Service officer of a particular classification, the Commissioner, after having taken reasonable steps to identify Senior Executive Service offices: (a) that are of the same or equal classification; (b) to which the officer could be transferred or the duties of which the officer could be directed to perform; and (c) the duties of which the officer could, in the opinion of the Commissioner, perform efficiently; is satisfied that the services of the officer cannot reasonably be used in the Service in the performance of the duties of, or duties appropriate to, a Senior Executive Service office of the same or equal classification, the Commissioner may give notice to the officer under subsection (3). (1A) The Commissioner must not make a decision for the purposes of subsection (1) unless: (a) the Commissioner has given the officer written notice that the Commissioner is considering whether the services of the officer can reasonably be used in the Service in the performance of the duties of, or duties appropriate to, an SES office of the same or equal classification; and (b) the notice invites the officer to give to the Commissioner his or her views in relation to the matter being considered by the Commissioner within a specified period; and (c) the specified period has expired. (1B) The period to be specified in a notice under subsection (1A) is a period of 14 days commencing on a specified day not earlier than the day on which the notice is given. (1C) A notice under subsection (1A) may be given by post. (2) In determining for the purposes of subsection (1) whether an officer could perform the duties of an office in a Department efficiently, the Commissioner shall have regard to: (a) the standard of work performed by the officer as a Senior Executive Service officer (including any relevant appraisal of the performance of the officer); (b) the experience possessed by the officer relevant to the performance of those duties; (c) the training and educational qualifications of the officer; (d) any personal qualities of the officer relevant to the performance of those duties; (e) any physical or mental incapacity of the officer relevant to the performance of those duties; (f) any views of the officer in relation to the matter to be determined given by the officer to the Commissioner in accordance with a notice given to the officer under subsection (1A); (fa) the views of the relevant Secretary in relation to that matter; and (g) any other matter that the Commissioner considers relevant. (3) Where subsection (1) applies in relation to an officer, the Commissioner may give notice in writing to the officer that: (a) the officer is assigned to a specified office of a lower classification; (b) the officer is to become an unattached officer of a lower classification or, being an unattached officer, is to have a lower classification and, in either case, that the officer is included in the Department specified in the notice; or (c) the officer is to be retired from the Service. (3A) An officer may, before being given a notice under subsection (3), consent, by notice in writing given to the Commissioner, to the giving of the first‑mentioned notice. (3B) Where subsection (1) applies in relation to an officer, the Commissioner may give written notice to the officer that the Commissioner is considering giving the officer notice under subsection (3) and specifying the effect of the proposed notice. (3C) A notice under subsection (3B) must invite the officer to whom it is given to give to the Commissioner his or her views in relation to the proposed notice under subsection (3) within a specified period. (3D) The period to be specified for the purposes of subsection (3C) is a period of 14 days commencing on a specified day not earlier than the day on which the invitation under that subsection is given to the officer. (3E) The Commissioner must not give notice under subsection (3) unless he or she has given the officer concerned notice under subsection (3B) and the period specified in the notice has expired. (3F) A notice under subsection (3B) may be given by post. (4) In determining whether to give an officer notice under subsection (3), the Commissioner shall have regard to: (a) the need to ensure the efficiency of the Service; (b) the period within which the officer may reasonably be expected to retire under section 76I, 76J or 76N; (c) any views in relation to the proposed action under subsection (3) given by the officer to the Commissioner in accordance with an invitation under subsection (3B); and (d) any other matter that the Commissioner considers relevant. (5) Subject to subsection (5A), a notice to an officer under subsection (3) shall state that: (a) the officer has a right to appeal, within the period prescribed for the purposes of this paragraph, to an Appeal Committee under section 76M against the giving of the notice; and (b) the notice will, subject to any appeal under section 76M, take effect on a specified day, being a day not earlier than the expiration of the period referred to in paragraph (a). (5A) A notice under subsection (3) to an officer who has, under subsection (3A), consented to the giving of the notice shall state that the notice will take effect on a specified day, being a day not earlier than the day on which the notice is given to the officer. (6) For the purpose of giving effect to a notice given under subsection (3), the Commissioner may: (a) by notice in writing given to the Secretary of a Department in which a specified office exists, or in which any offices included in a specified class of offices exist, direct that, until the notice is revoked, a transfer or promotion of an officer to fill a vacancy in the office, or in an office included in the class of offices, shall not be made under section 50 or 50DA unless the Commissioner has approved the filling of the vacancy; (b) determine, in writing, that a promotion that has been notified under section 50 or 50DA but has not taken effect shall not take effect while the determination is in force; and (c) cancel a promotion that has been notified under section 50 or 50DA but has not yet taken effect, whether or not, in the case of a promotion notified under section 50, an appeal has, or appeals have, been made against the promotion. (7) A notice given to an officer under subsection (3) takes effect as provided by the regulations. (9) The power conferred on the Commissioner by paragraph (6)(a) is in addition to, and not in substitution for, the power conferred on the Commissioner by section 50G. (10) This section applies in relation to a person who becomes a Senior Executive Service officer under subsection 76F(1A) as if paragraph (3)(a) and subsection (6) were omitted and as if “, in consequence of physical or mental incapability of the officer,” were inserted in subsection (1) after “is satisfied that”. (11) Where, in pursuance of paragraph (6)(b), the Commissioner determines that a promotion shall not take effect while the determination in relation to that promotion is in force, the Commissioner may, at any time while the determination is in force, cancel the promotion in pursuance of paragraph (6)(c). (12) If the Commissioner revokes a determination under paragraph (6)(b), the promotion to which the determination relates takes effect on the day on which it would have taken effect if the determination had not been made, but the Commissioner may, in the instrument of revocation, determine that salary at the rate applicable to the office to which the promotion was made is payable to the officer concerned on and from a day (not being a day after the day on which the instrument of revocation was made) after the prescribed day in respect of the promotion. (13) Where the Commissioner, in a determination under paragraph (6)(b), specifies a day on and from which salary at a particular rate is payable to an officer, salary at that rate is payable on and from that day notwithstanding section 50E. (14) In this section, prescribed day, in relation to a promotion has the same meaning as in Division 4. ##### 76M Appeal to Appeal Committee (3) A Senior Executive Service officer to whom notice under subsection 76L(3) has been given (other than an officer who has, under subsection 76L(3A), consented to the giving of the notice) may appeal, within the period prescribed by the regulations for the purposes of this subsection, to an Appeal Committee against the giving of the notice. (4) Where an officer appeals to an Appeal Committee under subsection (3) against the giving of a notice under subsection 76L(3), an Appeal Committee shall hear and determine the appeal and may: (a) confirm the notice; or (b) revoke the notice. ##### 76N Retirement with consent of officer on grounds of invalidity (1) Where the Board is satisfied that an officer should, because of physical or mental incapacity, be retired from the Service, the Board may, with the consent of the officer, retire the officer from the Service on a day to be specified by the Board. (2) Where an officer is retired under subsection (1), the day as from which he is retired may, with the consent of the officer, be a day that is earlier than the day on which the action to retire him was taken. ##### 76P Unattachment of Senior Executive Service officers (1) Where an authorised medical practitioner has recommended that an officer should, because of physical or mental incapacity, be redeployed to perform other duties or retired from the Service, the Board may, by instrument in writing, declare that the officer shall, on a specified day, become an unattached officer and, if the Board does so, the office held by the officer becomes vacant on that day. (2) As soon as practicable after a declaration is made under subsection (1) in respect of an officer, a copy of the instrument of declaration shall be given to the officer. ##### 76R Special benefits available to retiring officers (1) The Board may give notice in writing to a Senior Executive Service officer that if the officer retires from the Service within the period specified in the notice the officer will be entitled to a specified benefit in accordance with a determination under section 82D. (2) Where notice is given to an officer under subsection (1): (a) the officer may retire from the Service within the period specified in the notice notwithstanding that he is not entitled to retire from the Service under section 76I; and (b) if the officer retires from the Service within the period specified in the notice: (i) the officer becomes entitled to the benefit specified in the notice; and (ii) the officer shall be deemed for all purposes to have been compulsorily retired from the Service. ##### 76RA Retirement on ground of invalidity under the Superannuation Acts (1) In spite of anything contained in sections 76L and 76N, a Senior Executive Service officer 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 76L and 76N, a Senior Executive Service officer 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. ### Division 8C—Redeployment and retirement of officers other than Secretaries of Departments and Senior Executive Service officers ##### 76S Interpretation (1) In this Division, unless the contrary intention appears: > Appeal Committee means a Redeployment and Retirement Appeal Committee constituted under Subdivision D of Division 2 of Part II of the Merit Protection Act. > continuing employee has the same meaning as in Division 10. > excess officer includes a person who would be an excess officer as defined in subsection 7(3) if references in that subsection to officers included references to persons who are officers within the meaning of this Division. > fixed‑term employee has the same meaning as in Division 10. > officer means an officer, other than a Secretary, an unattached Secretary or a Senior Executive Service officer, and includes a continuing employee who has been an employee for more than one year, but does not include an officer whose appointment to the Service on probation has not been confirmed. > overseas employee has the same meaning as in Division 10. > short‑term employee has the same meaning as in Division 10. (2) For the purposes of this Division, an officer is inefficient if and only if the officer fails, in the performance of the duties that he or she is required to perform, to attain or sustain a standard of efficiency that a person may reasonably be expected to attain or sustain in the performance of those duties. (3) Without limiting the generality of the matters to which regard may be had for the purpose of determining whether an officer has failed, in the performance of the duties that he or she is required to perform, to attain or sustain the standard of efficiency referred to in subsection (2): (a) regard shall be had to: (i) any written selection criteria or job specifications applicable to those duties; (ii) any duty statement describing those duties; and (iii) any written work standards or instructions relating to the manner of performance of those duties; and (b) regard may be had to: (i) any written selection criteria or job specifications applicable to similar duties; (ii) any duty statements describing similar duties; and (iii) any written work standards or instructions relating to the manner of performance of similar duties. (4) A reference in subsection (3) to similar duties, in relation to an officer holding an office or included in a Department, is a reference to similar duties that other officers of that Department are required to perform. (5) For the purposes of this Division, an officer is not qualified to perform his or her duties if and only if, in relation to those duties: (a) the officer ceases to hold, or becomes unable or ineligible to hold or to use and enjoy, an essential qualification; or (b) a court, person, authority or body that is competent to do so suspends, cancels, revokes, rescinds or otherwise withdraws an essential qualification held by the officer. (6) A reference in subsection (5) to an essential qualification, in relation to an officer, is a reference to any statutory, professional, academic, commercial, technical, trade, health or other qualification the holding of which is a prerequisite to the practice of a profession, trade or occupation, the exercise of a right or the performance of a function or duty, being a profession, trade, occupation, right, function or duty that it is necessary for that officer to practise, exercise or perform in the course of his or her employment. ##### 76T Power to reduce officer’s classification (1) The power conferred by this Division on a Secretary to reduce an officer’s classification is a power: (a) in the case of a person who holds an office, or is included, in the Secretary’s Department—to assign the person to an office of a lower classification in the Department; or (b) in the case of a continuing employee employed in a particular capacity in the Secretary’s Department—to employ the employee in a lower capacity in the Department. (2) The power conferred by this Division on the Board to reduce an officer’s classification is a power: (a) in the case of a person who holds an office, or is included, in a Department: (i) to assign the person to an office of a lower classification in that or another Department; or (ii) to declare the person to be an unattached officer of a lower classification or, being an unattached officer, to have a lower classification and, in either case, to direct that the person is included in that or another Department; or (b) in the case of a continuing employee employed in a particular capacity in a Department—to direct that the employee be employed in a lower capacity in that or another Department. ##### 76U Retirement upon or after attaining minimum retiring age (1) An officer who has attained the minimum retiring age is entitled to retire from the Service at any time at which the officer desires to do so. (2) In subsection (1): > minimum retiring age, in relation to an officer, means: (a) if the officer is included in a class of officers in respect of whom the minimum retiring age is fixed by the regulations—the age so fixed; or (b) in the case of any other officer—the age of 55 years. > officer includes: (a) an officer whose appointment to the Service on probation has not been confirmed; and (b) a short‑term employee, a fixed‑term employee or an overseas employee. ##### 76V Retirement on ground of age (1) Subject to subsection (2), an officer shall, by force of this subsection, be retired from the Service upon attaining the maximum retiring age. (2) Where the relevant Secretary is of the opinion that it is desirable, in the interests of the Commonwealth, that an officer who has not attained the maximum retiring age should continue, after attaining that age, in employment, and the officer is able and willing so to continue, the relevant Secretary may determine, in writing, that subsection (1) does not apply to the officer. (3) The relevant Secretary may, at the time of making, or at any time after making, a determination under subsection (2) in respect of an officer, determine that the officer shall retire from the Service upon attaining a specified age or upon the expiration of a specified period and, where such a determination is made, the relevant Secretary may, at any time before the officer attains that age or before the expiration of the period so determined, vary the determination. (4) In this section: > maximum retiring age, in relation to an officer, means: (a) if the officer is included in a class of officers in respect of whom a maximum retiring age, being an age less than 65 years, is fixed by the regulations—the age so fixed; or (b) in the case of any other officer—the age of 65 years. > officer includes: (a) an officer whose appointment to the Service on probation has not been confirmed; and (b) a short‑term employee, a fixed‑term employee or an overseas employee. ##### 76W Powers of Secretary and Board (1) Where the relevant Secretary is satisfied of a relevant matter in relation to an officer, the relevant Secretary may, having considered whether it would be in the interests of the efficient administration of the Secretary’s Department to transfer the officer under section 50, subject to subsection (2), by notice in writing given to the officer, reduce the officer’s classification or retire the officer from the Service. (2) Where: (a) a Secretary: (i) has been unable to find alternative suitable employment for an excess officer in the Secretary’s Department; and (ii) proposes to exercise the power under subsection (1) in relation to the officer; and (b) the officer has not consented to the exercise of that power; the Board shall take such action as is reasonable to find alternative suitable employment for the officer in the Service, and the Secretary shall not exercise the power under subsection (1) in relation to the officer unless the Board is satisfied that it would not be in the interests of the efficient administration of the Service to transfer the officer under section 51 to another Department. (3) Where the Board is: (a) satisfied of a relevant matter in relation to an officer; and (b) satisfied that it would be in the interests of the efficient administration of the Service to do so; the Board may, having considered whether it would be in the interests of the efficient administration of the Service to transfer the officer under section 51, by notice in writing given to the officer, reduce the officer’s classification. (4) The powers conferred on a Secretary or the Board by this section are subject to any applicable industrial award. (5) A notice given to an officer under this section takes effect as provided by the regulations. (6) In this section, relevant matter, in relation to an officer, means any of the following matters: (a) that an officer is unable to perform his or her duties, or other duties appropriate to the officer’s classification, because of physical or mental incapacity; (b) that an officer is inefficient; (c) that an officer is not qualified to perform his or her duties; (d) that an officer is an excess officer. ##### 76WA Retirement on ground of invalidity under the Superannuation Acts (1) In spite of anything contained in section 76W, an officer 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 section 76W, an officer 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. ##### 76X Board may issue administrative instructions and directions (1) The Board may cause to be published in the Gazette written administrative instructions, not inconsistent with this Act, in relation to the exercise of powers conferred on Secretaries by this Division. (2) The Board may, by notice in writing, give to a Secretary directions in relation to the exercise of powers conferred on Secretaries by this Division. (3) A Secretary exercising, or proposing to exercise, a power conferred by this Division: (a) shall comply with any administrative instructions expressed to be binding on Secretaries and with any directions given to the Secretary under subsection (2) that are expressed to be binding; and (b) shall have regard to any other administrative instructions, and to any other directions given to the Secretary under subsection (2). ##### 76Y Unattachment of officers (1) Where an authorised medical practitioner has recommended that an officer should, because of physical or mental incapacity, be redeployed to perform other duties or retired from the Service, the relevant Secretary may, by instrument in writing, declare that the officer shall, on a specified day, become an unattached officer and, if the relevant Secretary does so, the office held by the officer becomes vacant on that day. (2) As soon as practicable after a declaration is made under subsection (1) in respect of an officer, a copy of the instrument of declaration shall be given to the officer. ##### 76Z Appeals (1) An officer to whom a notice under section 76W has been given (not being an officer who, before receiving the notice, consented in writing to the giving of the notice) may, within the prescribed period after receiving the notice, appeal to an Appeal Committee against the giving of the notice, on the ground that the reduction in the officer’s classification, or the retirement of the officer, as the case requires, would be unreasonable. (2) Where an officer appeals to an Appeal Committee against the giving of a notice, an Appeal Committee shall hear and determine the appeal and may: (a) confirm the notice; or (b) revoke the notice. ### Division 9—Reciprocal services of officers of the Service and State officers ##### 77 Interpretation In this Division, State includes a Territory. ##### 77A State officer not disqualified from employment in the Service The fact that a person is an officer of the Public Service of a State shall not disqualify the person from also executing the duties of an office in the Australian Public Service. ##### 78 Arrangements with State for services of State officer (1) The Prime Minister may arrange with an appropriate authority of any State for the performance or execution by an officer in the Public Service of the State, for the Government of the Commonwealth, of any work or services, or of the duties of any office in the Australian Public Service. (2) In any such case, the Prime Minister may, by agreement with an appropriate authority of the State or otherwise, make arrangements for determining: (a) the rate of payment to be made by the Government of the Commonwealth for the work or services to be performed or the duties to be executed for the Commonwealth by the officer; and (b) any matters which may require to be adjusted with regard to the performance of the work or services, or the execution of the duties, by the officer. ##### 80 Agreement with State for performance of State duties by officer of the Service The Prime Minister may, at the request of an appropriate authority of a State, authorize and cause any work or services to be performed for the Government of the State; and the Prime Minister may, by agreement with an appropriate authority of the State or otherwise, make arrangements for determining: (a) the rate of payment to be made by the Government of the State for the performance of the work or services; and (b) any matters which may require to be adjusted with regard to the performance of the work or services. ##### 81 Arrangements with State as to pension etc. where officer employed in dual capacities In any case arising under this Division the Prime Minister may, by agreement with an appropriate authority of the State concerned or otherwise, make arrangements for determining, in respect of any officer so employed on behalf of the Commonwealth and of a State, the respective shares of each Government in any pension, retiring allowance, or allowance to dependants which may become payable, under the laws of the State or of the Commonwealth, in respect to the officer. ### Division 9A—Transfer or reintegration of persons into or out of the Service ##### 81A Interpretation In this Division, unless the contrary intention appears: > officer includes an employee. > terms and conditions includes terms or conditions relating to salary, pay or allowances, appointment on probation, long service leave or other leave, or tenure, but does not include terms or conditions relating to superannuation. ##### 81B Appointment or employment of persons where functions to be performed by Commonwealth etc. (1) Where the Prime Minister certifies in writing that a function that has been performed otherwise than by persons appointed or employed under this Act is to be performed by persons appointed or employed under this Act, the Commissioner may, notwithstanding any other provision of this Act, appoint to the Service, or direct the employment in the Service of, persons who have been involved in the performance of the function. (2) Where the Prime Minister certifies in writing that a function that has been performed on behalf of the Commonwealth or a Commonwealth authority otherwise than by persons appointed or employed under this Act is to be performed on behalf of the Commonwealth or a Commonwealth authority by persons appointed or employed under this Act, the Commissioner may, by declaration in writing published in the Gazette, declare that specified persons or classes of persons who have been involved in the performance of that function are appointed as officers of the Service or employed as employees in the Service. (3) Where, after having received a report from the Commissioner, the Prime Minister certifies in writing that it is in the interests of the Commonwealth for specified persons, or a specified class of persons (being persons employed by or on behalf of the Commonwealth otherwise than under this Act, or employed by a Commonwealth authority), to be available for appointment to or employment in the Service under this section, the Commissioner may, by declaration in writing published in the Gazette, declare that persons specified in the declaration, or included in a class of persons so specified (being some or all of the persons specified, or included in a class of persons specified, in the Prime Minister’s certificate), are appointed as officers of the Service or employed as employees in the Service. (3A) Where, after receiving a report from the Commissioner, the Prime Minister certifies in writing that it is in the interests of the Commonwealth that a person: (a) to whom Division 2 of Part IV applies; or (b) to whom the repealed Officers’ Rights Declaration Act 1928 applies; resumes duties in the Service, the Commissioner may, by determination, reintegrate the person into the Service. (3B) A determination under subsection (3A) may, notwithstanding anything in any other provision of this Act or in any other law, provide: (a) in the case where the person is not to resume duties in a particular office—the classification that the person is to have as an unattached officer in the Service; or (b) in any other case—that the person is to resume duties in a particular office in the Service. (4) A declaration under subsection (2) or (3) has effect according to its terms on and from the day specified in the declaration for the purposes of this subsection. (5) For the purpose of facilitating: (a) a transfer of a person into the Service under subsection (1), (2) or (3); or (b) a reintegration of a person into the Service under subsection (3A); the Commissioner may, notwithstanding anything in any other provision of this Act or in any other law (other than an industrial award), determine any special terms or conditions of employment that are to apply to the person. ##### 81C Transfer of persons where functions to be performed by Commonwealth authority (1) Where the Prime Minister certifies in writing that a function that has been performed by persons appointed or employed under this Act is to be performed by a Commonwealth authority, the Board may, by declaration in writing published in the Gazette, declare that specified officers or classes of officers are in the employment of the Commonwealth authority. (2) An officer specified, or included in a class of officers specified, in declaration under subsection (1): (a) on the day specified in the declaration for the purpose of this subsection, ceases to be an officer; and (b) from and including that day, is employed by the Commonwealth authority specified in the declaration. (3) For the purpose of facilitating a transfer of persons into the employment of a Commonwealth authority, the Commonwealth authority may, notwithstanding anything in any other law (other than an industrial award), determine any special terms or conditions of employment that are to apply to the persons. ### Division 10—Employees ##### 82 Interpretation (1) In this Division, unless the contrary intention appears: > ability, means skills, aptitude, qualifications or experience, or any combination of any of them. > continuing employee means a person employed under section 82AC. > fixed‑term employee means a person employed under section 82AE. > overseas employee means a person employed under section 82AF. > short‑term employee means a person employed under section 82AD. (2) For the purposes of this Division: (a) the definition of relevant staff organization in subsection 7(1) has effect as if references in that definition to an office were references to employment in a particular capacity; and (b) a reference to the principal relevant staff organization, in relation to employment in a particular capacity, is a reference to the relevant staff organization that is declared by the regulations to be the principal relevant staff organization in relation to employment in that capacity. ##### 82AA Categories of employees Subject to section 82AG, a person employed under this Division shall be employed in one of the following categories of employees: (a) continuing employees; (b) short‑term employees; (c) fixed‑term employees; (d) overseas employees. ##### 82AB Declaration of classes of continuing employees (1) Subject to this section, the Board may, by instrument published in the Gazette, declare a specified class of employees (not being persons engaged overseas to perform duties overseas) to be a class of employees for the purposes of section 82AC. (2) A declaration made in pursuance of this section (including a declaration referred to in paragraph (a) or (b)) shall not continue in operation for a period exceeding 3 years, but this subsection does not prevent the making of: (a) a further declaration; or (b) a declaration extending the period of operation of an existing declaration. (3) The Board shall not declare a class of employees under subsection (1) unless: (a) it is satisfied that the provisions of this Act relating to the appointment, promotion and transfer of officers are not appropriate to be applied to persons in the proposed class of employees; and (b) if there is or are one or more relevant staff organizations—it has obtained the agreement of the principal relevant staff organization. (4) Subsection (3) does not apply in relation to the declaration, at a particular time, of a class of employees, if the duties of the employees in that class are to be the same as the duties of the employees in one or more classes previously declared under this section, being a class or classes that existed immediately before that time. ##### 82AC Employment of continuing employees (1) Subject to this section, the Secretary of a Department may engage persons as continuing employees in the Department. (2) A Secretary shall not engage a person as a continuing employee unless the person is engaged in a class of employees declared under section 82AB. (3) A Secretary shall not engage a person as a continuing employee unless the Secretary is satisfied that the person has the ability necessary for the performance of the relevant duties. (4) Where: (a) a person is employed as a continuing employee in a particular class of employees declared under section 82AB; and (b) the declaration lapses at any time; the lapse of the declaration does not prevent the continuation of the employment of the person as a continuing employee. ##### 82AD Employment of short‑term employees (1) Subject to this section, the Secretary of a Department may engage persons as short‑term employees in the Department. (2) The Secretary of a Department shall not employ a person under subsection (1) unless satisfied: (a) that the Department requires assistance of a temporary nature in the performance of particular duties; (b) having considered the need to maintain the Service as a career service—that it would not be appropriate to use the services of an officer to perform those duties; and (c) having considered the need to maintain a stable work‑force—that it would not be appropriate to use the services of a continuing employee to perform those duties. (3) A person who is to be employed as a short‑term employee: (a) shall, subject to subsection (10), be selected from a register of applicants for short‑term employment; or (b) if no suitable person is available from such a register—shall be a person who the Secretary is satisfied has the ability necessary for the performance of the relevant duties. (4) Subject to subsection (7), the period of engagement of a short‑term employee shall not exceed: (a) if a period (being less than 12 months) is approved by the Board in relation to the class of employee in which the person is included—that period; or (b) in any other case—3 months. (5) If: (a) for the purposes of paragraph (4)(a), the Board proposes to approve, in relation to a class of short‑term employees, a period exceeding 3 months; and (b) there is or are one or more relevant staff organizations; the Board shall not approve the period except after consultation with the principal relevant staff organization or organizations. (6) Where the period of engagement of a short‑term employee in a Department expires, the employment of the employee is not thereby terminated, but the Secretary of the Department shall: (a) if the Department no longer requires assistance of a temporary nature in the performance of the duties of the employee—terminate the employment of the employee; or (b) in any other case—recommend to the Board that the employment be extended. (7) On receipt of a recommendation under paragraph (6)(b) in relation to the employment of a short‑term employee, the Board shall: (a) if it is satisfied: (i) having considered the need to maintain the service as a career service—that it would not be appropriate to use the services of an officer to perform the duties of the employee; and (ii) having considered the need to maintain a stable work‑force—that it would not be appropriate to use the services of a continuing employee to perform those duties; extend the period of engagement of the employee for such further period as it thinks appropriate; and (b) in any other case—terminate the employment of the employee with effect from such date as it thinks fit and, if the period of the engagement of the employee has expired, or would expire before that date, extend the period of engagement until that date. (8) The Board may, at a particular time, extend a period of engagement under subsection (7) notwithstanding that the period has expired before that time. (9) Where at any time: (a) as a result of an extension of the period of engagement of a person under subsection (7), the person is employed as a short‑term employee; and (b) the period of engagement of the person (including the period as so extended) has subsisted for the period of 1 year immediately preceding that time; any continuation of the employment of the person from that time shall be deemed to be employment as a continuing employee. (10) The Board shall, by notice published in the Gazette, notify: (a) the manner in which persons shall be selected under paragraph (3)(a); and (b) the manner in which registers of applicants for short‑term employment shall be kept for the purposes of that paragraph. ##### 82AE Employment of fixed‑term employees (1) Subject to this section, the Secretary of a Department may, with the approval of the Board, engage persons as fixed‑term employees in the Department. (2) A person shall not be employed as a fixed‑term employee in a Department except where: (a) the person is required to perform duties in connection with a project or task that has a fixed duration (whether or not its duration is known at the relevant time) and: (i) the duties require ability that cannot be made available from within the Service; and (ii) the services of the person are not likely to be required after the project or task is completed; or (b) the person could be appointed as an officer or engaged as a continuing employee in the Department, but employment as a fixed‑term employee is preferred by the person. (3) A Secretary shall not employ a person as a fixed‑term employee unless the Secretary is satisfied that the person has the ability necessary for the performance of the relevant duties. (4) A person shall not be employed by virtue of paragraph (2)(a) as a fixed‑term employee in a particular capacity in a particular component of a Department unless the principal relevant staff organization has been consulted in connection with employment of persons as fixed‑term employees in that capacity in that component. (5) Subject to subsection (7), the period of engagement of a fixed‑term employee shall not exceed 5 years. (6) Subject to subsection (7), on the expiration of the period of engagement of a fixed‑term employee (including the period as extended or further extended under that subsection), the employment of the employee is terminated. (7) On the expiration of the period of engagement of a fixed‑term employee (including the period as extended or further extended under this subsection), the relevant Secretary may, subject to subsection (2), extend or further extend the period for a period not exceeding 5 years. ##### 82AF Employment of overseas employees (1) Subject to subsection (2), the Secretary of a Department may engage persons overseas to perform duties overseas. (2) A Secretary shall not employ a person as an overseas employee unless the Secretary is satisfied that the person has the ability necessary for the performance of the relevant duties. (3) This section shall not be taken to prevent the engagement in Australia, under another provision of this Division, of a person to perform duties overseas. ##### 82AG Special employment programs The Secretary of a Department may employ persons in the Department to perform duties under a prescribed scheme, being a scheme for enabling persons to gain ability for the purpose of participating in the Australian work‑force. ##### 82AH Termination of employment (1) Subject to this section, the Secretary of a Department may at any time terminate the employment of an employee in the Department. (2) Where, under the regulations, Division 6 of Part III applies in relation to an employee in a Department, the Secretary shall not terminate the employment of the employee under this section: (a) by reason only of the fact that the employee has done, or omitted to do, an act or thing in respect of which a charge could be laid against the employee; or (b) on the ground that a court has convicted the employee of a criminal offence within the meaning of that Division, or found, without recording a conviction, that the employee has committed such an offence. (3) The employment of an employee who is an officer within the meaning of Division 8C shall not be terminated under this section except on the ground that the employee: (a) has wilfully disobeyed, or wilfully disregarded, a direction given by a person having authority to give the direction, being a direction with which it is the employee’s duty to comply; (b) is inefficient or incompetent for reasons or causes within the employee’s own control; (c) is negligent or careless in the discharge of the employee’s duties; (d) has engaged in improper conduct as an employee; (e) has engaged in improper conduct otherwise than as an employee, being conduct that adversely affects the performance of the employee’s duties or brings the Service into disrepute; (f) has contravened: (i) a provision of this Act, of the regulations or of a determination in force under subsection 9(7A) or section 82D; or (ii) the terms and conditions upon which the employee is employed; (g) has, whether before or after becoming an employee, wilfully supplied to an officer or another person acting on behalf of the Commonwealth incorrect or misleading information in connection with the employee’s being accepted as an employee; or (h) is an employee to whom subsection (4) applies. (4) An employee is an employee to whom this subsection applies if: (a) a court has, after 15 September 1980, convicted the employee of a criminal offence or found, without recording a conviction, that the employee has committed such an offence; and (b) the nature and seriousness of the offence, the circumstances in which it was committed and the nature of the employee’s duties are such that it is in the interests of the Service that the employment of the employee should be terminated. ##### 82AJ Unauthorised absence from employment to be taken as retirement (1) This section applies to the following employees: (a) a continuing employee; (b) an employee whose employment is deemed to be employment as a continuing employee under subsection 82AD(9). (2) Where an employee is absent from his or her employment in a Department without permission, and has been so absent for a continuous period of not less than 4 weeks, the relevant Secretary may send to the employee a notice informing the employee that unless within a period of 2 weeks from and including the day on which the notice was sent: (a) he or she returns to his or her employment in the Department; or (b) he or she explains his or her absence and seeks the permission of the Secretary for any further period of absence that may be necessary having regard to that explanation; the employee will be taken to have retired from the Service at the end of that period of 2 weeks. (3) Where the employee does not, within the period of 2 weeks from and including the day on which the notice was sent to him or her: (a) return to his or her employment in the Department; or (b) explain his or her absence and seek the permission of the Secretary for a further period of absence; and the notice has not been revoked under subsection (6), the employee is taken to have retired from the Service on the day following the end of that period of 2 weeks. (4) Where the notice has been sent to the employee and, within the period of 2 weeks after that notice was so sent, the employee explains his or her absence and seeks the permission of the Secretary for a further period of absence, the Secretary must, as soon as practicable, consider the matter and may, by notice, inform the employee: (a) that he or she has been granted leave of absence for such period and on such conditions as are specified in the notice; or (b) that he or she is required to return to his or her employment in the Department and that, unless he or she returns to his or her employment within a specified period (being a period of at least 2 weeks from and including the day on which the notice is sent) the employee is to be taken to have retired from the Service at the end of the period so specified. (5) Where the employee who is required by the notice sent to him or her to return to his or her employment does not return to the employment within the period referred to in the notice and the notice is not revoked under subsection (6), the employee is taken to have retired from the Service on the day after the end of that period. (6) The Commissioner may, at any time before the employee is taken to have retired from the Service, by notice, revoke a notice previously sent to the employee under this section, and the notice is then of no effect. (7) Where: (a) the Secretary under subsection (2) may send a notice to the employee; or (b) the Secretary under subsection (4), and the Commissioner under subsection (6), may exercise a power in relation to the employee by notice; the notice must be in writing and sent to the employee by security post addressed to the employee at the address last known to the Secretary or Commissioner, as the case may be. ##### 82AK Employment of employee taken to have retired under section 82AJ (1) An employee who is taken to have retired from the Service under section 82AJ may apply to the relevant Secretary, in writing, for employment in the Department. (2) The Secretary must: (a) if the Secretary is satisfied that the applicant had, in all the circumstances, reasonable grounds for being absent, employ the applicant in the Department in the same or a similar capacity with the same rate of pay as that payable to the applicant immediately before he or she was taken to have retired; or (b) if the Secretary is not so satisfied—refuse the application. (3) Where the Secretary refuses the application: (a) the Secretary must notify the applicant in writing accordingly, and give to the applicant and the Commissioner the reasons for the refusal; and (b) an application may be made to the Agency for review of the decision of the Secretary to refuse the application. (4) A decision under subsection (2) to refuse an application may be reviewed under section 43 of the Merit Protection Act. (5) Where a person who is taken to have retired from the Service under section 82AJ is employed under this section: (a) the person is taken, during the period commencing immediately after the day of the retirement and ending immediately before the day on which the person was so employed, to have continued his or her employment and to have been on leave of absence without pay; and (b) the relevant Secretary must determine whether that period, or any part of that period, is to form part of the employee’s period of service for any specified purposes under this Act or any other Act (other than the Superannuation Act 1976 or the Superannuation Act 1990). (6) In this section, relevant Secretary in relation to a person who is taken to have retired from the Service under section 82AJ, means the Secretary to the Department in which the person was employed immediately before being taken to have so retired or, if that Department has ceased to exist, the Secretary to such Department as the Commissioner directs. ##### 82B Employment of unsuccessful election candidates (1) Where the Board is satisfied that: (a) a person who was an employee: (i) resigned in order to become a candidate for election as a member of a House of the Parliament of the Commonwealth or of a State, of the Legislative Assembly for the Australian Capital Territory, of the Legislative Assembly for the Northern Territory or of a prescribed legislative or advisory body for another Territory; (ii) was a candidate at the election; and (iii) failed to be elected; and (b) the resignation took effect not earlier than 6 months before the date on which nominations for the election closed; the Board shall, upon application by the person within 2 months after the declaration of the result of the election, employ the person in the same or a similar capacity with the same rate of pay as that payable to the person immediately before resigning. (1A) Where the Commissioner is satisfied that: (a) a person who was an employee and was employed in the Aboriginal and Torres Strait Islander Commission or the Torres Strait Regional Authority: (i) resigned in order to become a candidate for election as a member of a Regional Council established under section 92 of the Aboriginal and Torres Strait Islander Commission Act 1989 or as a member of the Torres Strait Regional Authority established under Part 3A of that Act; (ii) was a candidate at the election; and (iii) failed to be elected; and (b) the resignation took effect not earlier than 6 months before the date on which nominations for the election closed; the Commissioner shall, upon application by the person within 2 months after the declaration of the result of the election, employ the person in the Aboriginal and Torres Strait Islander Commission or the Torres Strait Regional Authority, as the case requires, in the same or a similar capacity with the same rate of pay as that payable to the person immediately before resigning. (2) The reference in subsection (1) to the declaration of the result of the election shall, in relation to an election the result of which is challenged, be read as a reference to the determination of the challenge by a court of disputed returns or the lapsing of the challenge, whichever happens first. (3) The reference in subsection (1A) to the declaration of the result of the election shall, where an election petition has been addressed to the Federal Court of Australia under Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act 1989, be read as a reference to the giving of a final decision on the election petition by the Federal Court. ##### 82BA Administrative re‑arrangements (1) Where: (a) a Department is abolished; or (b) by virtue of administrative arrangements approved by the Governor‑General or the Prime Minister, or by virtue of the establishment, by an Act, of a Department of a kind referred to in paragraph (b) of the definition of Department in subsection 7(1), a matter is to be dealt with by a different Department (in this section referred to as the gaining Department) from the Department (in this section referred to as the losing Department) by which that matter was dealt with immediately before that approval or establishment, as the case may be; subsection (2) has effect. (2) The Board may direct in writing that: (a) where paragraph (1)(a) applies—a person who was employed in the abolished Department immediately before the time of the abolition is to be employed in another Department; or (b) where paragraph (1)(b) applies—a person who was employed in the losing Department immediately before the time of the approval or establishment, as the case may be, referred to in that subsection is to be employed in the gaining Department; and thereupon the person shall be deemed as from that time to be employed as so directed, in the same capacity and subject to the same conditions as were applicable immediately before that time. ### Division 10A—Determination of certain terms and conditions of employment ##### 82C Interpretation In this Division, unless the contrary intention appears: > award of a State industrial authority means an award, order, decision or determination of a State industrial authority. > determination means a determination made under section 82D. > salary includes wages. > State industrial authority means a State industrial authority within the meaning of the Workplace Relations Act 1996. ##### 82D Determinations (1) Subject to subsection (2), the Board may, by instrument in writing, determine the terms and conditions of employment (including employment overseas) of officers and employees. (2) Subject to paragraph (3)(b), where a determination under this section is inconsistent with: (a) a provision of this Act or the regulations; (b) a provision of, or a determination under, the Remuneration Tribunal Act 1973; or (c) a provision of another Act; (whether enacted or made before or after the commencement of this Division), the provision or determination referred to in paragraph (a), (b) or (c) prevails and the determination under this section is, to the extent of the inconsistency, of no effect. (3) A determination: (a) shall not be taken to be inconsistent with section 97 by reason only that it makes provision for or in relation to a matter for or in relation to which regulations may be made under that section; and (b) to the extent that it makes provision for or in relation to terms or conditions of employment overseas, has effect notwithstanding anything contained in the regulations. (3A) A determination that makes provision for or in relation to the matters referred to in subparagraph (4)(a)(xii), (xiii) or (xiv) shall not be taken to be inconsistent with a determination under subsection 7(3) of the Remuneration Tribunals Act 1973. (4) Without limiting the generality of subsection (1), a determination: (a) may make provision for and in relation to: (i) the salaries and allowances of officers and employees; (ii) the hours of attendance of officers and employees, and the recording of attendances; (iii) the performance of overtime; (iv) the reckoning as service in the Service, for specified purposes of this Act or of any other Act, of the whole or part of any period of service performed in specified employment, or of any period of specified full‑time training undertaken, by persons before they become officers or employees; (iva) the reckoning as service in the Service, for specified purposes of this Act or any other Act other than the Superannuation Act 1976 or the Superannuation Act 1990, of the period between the resignation of an officer or employee as mentioned in subparagraph 47C(1)(a)(i) or 82B(1)(a)(i) and the re‑appointment or employment of the officer or employee under subsection 47C(1) or 82B(1), as the case may be; (v) leave of absence of officers and employees, including provision for and in relation to: (A) the requiring of an officer or employee, in specified circumstances, to absent himself from duty during a period of leave of absence for recreation or on account of illness that has been, or is, under the determination, to be deemed to have been, granted to him; and (B) the circumstances in which, and the persons to whom, payment in lieu of leave of absence for recreation may be made; (vi) the forfeiture of salary of officers and employees in respect of periods of absence not authorized by this Act, the regulations or the determinations; (via) the payment of the whole or part of an officer’s salary during a period while the officer is suspended, imprisoned or in custody; (vii) the courses of study, instruction or training for which recognition may be given for the purposes of this Act, the regulations or a determination, including provision for and in relation to the reimbursement, or partial reimbursement, of fees or expenses paid in connection with such courses; (viia) the rent to be paid by officers and employees occupying, for residential purposes, premises owned or occupied by the Commonwealth; (viii) the provision of residential accommodation for officers and employees performing duties overseas and for persons who are, for the purposes of the determination, dependants of such officers and employees, and the payment of allowances to such dependants; (ix) the welfare of officers and employees, including provision in accordance with which payments may be made to officers, employees and other persons in connection with the welfare of officers and employees; (x) the payment of expenses in special circumstances arising in relation to the death of a person who is or has been an officer or employee; (xi) in the case of an officer who commenced duties as an officer before 26 October 1966 and has continued in the Service since so commencing duties—the reduction of a period or periods of leave of absence for recreation for which the officer would otherwise become eligible after the date on which the determination takes effect by a period or periods ascertained in accordance with a method specified in the determination, being a period or periods that the Board considers appropriate having regard to the periods of leave of absence for recreation for which the officer became eligible during the years 1966, 1967 and 1968; (xii) the provision of benefits to officers whose salary would, but for the determination, be reduced by reason of action taken under Division 8A, 8B or 8C of Part III or to persons who cease to be officers or cease to perform duties in the Service by reason of action taken, or retirement in accordance with, a provision of one of those Divisions; and (xiv) the provision of benefits (including benefits by way of additional salary and allowances for such period as is specified in the determination) to an officer who holds an office (in this subparagraph referred to as the relevant office) of the kind referred to in paragraph (a) of the definition of office of Secretary in subsection 7(1) where: (A) at some time before being appointed to the relevant office, the officer held another office of the kind referred to in paragraph (a) of the definition of office of Secretary in subsection 7(1), the salary in respect of which is higher than the salary in respect of the relevant office; or (B) the salary in respect of the relevant office would, but for the determination, be reduced during the period during which the officer holds the relevant office; (b) may specify terms and conditions subject to which leave of absence for recreation or on account of illness may be granted, including terms and conditions: (i) having effect after the time at which leave of absence commences; and (ii) as to the inclusion of the whole or part of specified allowances in salary for the purposes of any payment in respect of, or in lieu of, leave of absence for recreation, or of any payment in respect of leave of absence on account of illness; and (c) may specify terms and conditions subject to which leave of absence, or leave included in a specified class of leave of absence, not being leave of absence for recreation or on account of illness, may be granted to an officer or employee, including terms and conditions: (i) as to the remuneration (if any) payable to him during the period of the leave; (ii) for the reduction of a recreation leave credit that would otherwise subsequently accrue to him; (iii) as to the purposes (if any) of this Act or of any other Act for which the period of the leave is to form part of his period of service or employment; (iv) by virtue of which, where a period of leave granted to him forms part of his period of service or employment under this Act for the purposes of leave of absence for recreation or on account of illness, deductions may be made from his recreation leave credit or sick leave credits, as the case requires, in respect of any periods of leave in the nature of leave of absence for recreation or on account of illness, as the case may be: (A) granted to him; or (B) in lieu of the grant of which a payment has been made to him; otherwise than under this Act, in respect of other service or employment during the period, or a part of the period, during which he was absent from duty in the Service on leave of absence; and (v) in the case of an officer—as to the declaration of his office to be vacant. (5) For the purposes of a determination with respect to employment overseas, an officer or employee who: (a) is proceeding from Australia to perform duties overseas; (b) is proceeding to Australia after having performed duties overseas; or (c) is proceeding from a place overseas to perform duties at another place overseas; shall, while he is so proceeding, be deemed to be performing duties overseas. (6) Determinations may be made either generally or with respect to a particular case or a particular class of cases. (7) Without limiting the generality of subsection (1), (2) and (4), the terms and conditions of employment of officers or employees determined under subsection (1): (a) may have regard to the service of officers or employees, as the case may be, in the Service before or after the making of the determination; and (b) may, in the case of terms and conditions with respect to leave of absence, have regard to leave of absence granted before the making of the determination. (8) A determination takes effect: (a) on the day on which it is made; or (b) where another day (which may be a day earlier than the day on which it is made) is specified for the purpose in the determination, on the day so specified. (9) A determination shall not be expressed to take effect on a day earlier than the day on which it is made in any case where, if the determination so took effect: (a) the rights of a person (other than the Commonwealth) existing immediately before the last‑mentioned day would be affected in a manner prejudicial to that person; or (b) liabilities would be imposed on a person (other than the Commonwealth) in respect of anything done or omitted to be done before that last‑mentioned day; and where, in a determination, any provision is made in contravention of this subsection, that provision shall be void and of no effect. (10) The determinations made in each calendar year (including determinations amending or revoking other determinations) shall, subject to subsection (10A), be numbered in regular arithmetical series, beginning with the number 1, as nearly as possible in the order in which they are made. (10A) The Board may, if it thinks fit, number determinations relating to different subject matters in separate regular arithmetical series, each beginning with the number 1. (11) A determination may, without prejudice to any other manner of citation, be cited by reference to its number and the calendar year in which it was made. (12) The Board shall cause to be published in the Gazette, in respect of each determination, notice of: (a) the fact that the determination has been made; and (b) the place or places where copies of the determination can be obtained. ##### 82E Determination of matters by reference to other instruments (1) A determination may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification: (a) any of the provisions of an Act, of any regulations or rules under an Act, of an industrial award, or of an award of a State industrial authority, as in force at a particular time or as in force from time to time; or (aa) any of the provisions of another determination as in force at a particular time or as in force from time to time; or (b) any matter contained in any other instrument or writing as in force or existing at the time when the determination takes effect; or (c) in the case of a determination relating to the terms and conditions of employment of persons engaged under section 82AF, the law, or any part of the law, of another country as in force at a particular time or as in force from time to time; but a determination shall not, except as provided by this section, make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. ##### 82F Determination is a disallowable instrument (1) Subject to subsection (2), a determination under this Division is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. (2) Paragraphs 48(1)(a) and (b) and subsection 48(2) of the Acts Interpretation Act 1901, and subsections 5(3) to (3C) (inclusive) of the Statutory Rules Publication Act 1903, do not apply to a determination under this Division. ## Part IV—Officers holding public offices or employed by public authorities ### Division 1—Preliminary ##### 87 Interpretation \[see Note 3\] (1) In this Part, unless the contrary intention appears: > commencing day means the day on which this Part comes into operation. > Commonwealth authority means: (a) a body, whether incorporated or not, established for a public purpose by a law of the Commonwealth or of a Territory (not being the Australian Capital Territory or the Northern Territory) other than such a body that is declared by the regulations not to be a Commonwealth authority for the purposes of this Part; or (b) a body corporate incorporated under a law of the Commonwealth or of a State or Territory, being a body corporate in which the Commonwealth has a controlling interest and which is declared by the regulations to be a Commonwealth authority for the purposes of this Part. > Commonwealth office means: (a) an office or appointment the holder of which is appointed by the Governor‑General or by a Minister under a law of the Commonwealth (including this Act) or a law of a Territory other than the Australian Capital Territory or the Northern Territory; or (b) any other office or appointment the holder of which is appointed by the Governor‑General, or by a Minister, being an office or appointment declared by the regulations to be a Commonwealth office, or included in a class of offices or appointments declared by the regulations to be a class of Commonwealth offices, for the purposes of this Part; but does not include: (c) an office of Justice or Judge of a federal court or of a court of a Territory; (d) an office the holder of which has, by virtue of an Act, the status of a Justice or Judge of a court referred to in paragraph (c); (e) the office of Auditor‑General; (f) an office or appointment in the Service or in the public service of a Territory; (g) an office or appointment the duties of which are performed by the holder of an office in the Service the designation of which is the same as the designation of that first‑mentioned office or appointment; (h) an office or appointment in the Australian Federal Police (other than the office of Commissioner of Police) or in the Police Force of a Territory; (j) an office or appointment connected with an undertaking established, or declared to have been established, in pursuance of the Supply and Development Act 1939; (k) an office or appointment in the Defence Force; (m) the office of Chief Magistrate, or an office of Magistrate, in the Australian Capital Territory or in the Northern Territory; or (n) an office or appointment declared by the regulations not to be a Commonwealth office, or included in a class of offices or appointments declared by the regulations not to be a class of Commonwealth offices, for the purposes of this Part, > eligible Commonwealth employment means: (a) employment as the holder of a Commonwealth office; or (b) employment by a Commonwealth authority. > eligible public employment means: (a) employment as the holder of a public office; or (b) employment by a public authority. > employment means: (a) employment in a full‑time capacity; or (b) employment in a part‑time capacity where: (i) the person employed does not also perform duties in the Service; (ii) the number of ordinary hours of duty per week applicable to the person in respect of the employment is greater than the number of hours prescribed by the regulations for the purposes of this subparagraph; and (iii) the employment is not employment of a kind that the Board has declared, in writing, to be non‑qualifying part‑time employment for the purposes of this subparagraph. > promotion has the same meaning as it has in Division 4 of Part III. > public authority means: (a) a Commonwealth authority; (b) a body corporate, other than a Commonwealth authority, in which the Commonwealth or a Commonwealth authority has a direct or indirect pecuniary interest, being a body corporate prescribed by the regulations for the purposes of this paragraph; (c) a body corporate established for a public purpose by a law of a State, of the Australian Capital Territory, of the Northern Territory, of a country other than Australia or of a part of such a country, being a body corporate prescribed by the regulations for the purposes of this paragraph; (d) any other body corporate prescribed, or included in a class of bodies corporate prescribed, by the regulations for the purposes of this paragraph; or (e) an unincorporated body prescribed, or included in a class of unincorporated bodies prescribed, by the regulations for the purposes of this paragraph. > public office means: (a) a Commonwealth office; (b) an office or appointment the holder of which is appointed: (i) by the Governor of a State or by a Minister of a State; or (ia) by the Australian Capital Territory Executive or by the Chief Minister or a Minister for the Australian Capital Territory; or (ii) by the Administrator of the Northern Territory or by an Executive Member of the Legislative Assembly for the Northern Territory; being an office or appointment prescribed, or included in a class of offices or appointments prescribed, by the regulations for the purposes of this paragraph; or (c) any other office or appointment prescribed, or included in a class of other offices or appointments prescribed, by the regulations for the purposes of this paragraph; but does not include an office or appointment in the public service of a State, of the Australian Capital Territory or of the Northern Territory. > Public Service Redundancy Award means the Australian Public Service Redeployment and Retirement (Redundancy) Award 1987 as amended and in force from time to time. > retention period, in relation to a person’s employment, means a period during which the employing authority is not entitled, without the consent of the person, to retire or retrench the person from that employment on the ground that the person is excess to the requirements of that authority. (1A) In this Part: (a) a reference to a person electing to be retired from his or her employment is a reference to a person notifying the employing authority (whether pursuant to a right conferred by an industrial award or otherwise) to the effect (however the notification is expressed) that the person is willing to be voluntarily retired or voluntarily retrenched from his or her employment; and (b) a reference to an employing authority accepting an election by a person to be retired from the person’s employment is a reference to an employing authority notifying a person to the effect (however the notification is expressed) that the person is to be voluntarily retired or voluntarily retrenched from his or her employment. (1B) In this Part: (a) a reference to a person becoming excess in relation to his or her employment is a reference to a retention period beginning to apply to the person in respect of that employment and a reference to the date on which the person became excess in relation to that employment is a reference to the date of commencement of that retention period; and (b) a reference to a person ceasing to be excess in relation to his or her employment is a reference to a retention period ceasing to apply to the person in respect of that employment. (2) A reference in this Part to employment by a Commonwealth authority shall be read as including a reference to: (a) employment as the holder of an office the holder of which has, by virtue of an Act, the status of a Justice or Judge of a federal court or of a court of a Territory other than the Australian Capital Territory or the Northern Territory; (b) employment as the holder of the office of Auditor‑General; (d) service as a member (other than as Commissioner of Police) or staff member of the Australian Federal Police; (e) employment as a member of the Police Force of a Territory other than the Northern Territory; (f) employment under the Naval Defence Act 1910, other than employment in an office or appointment in, or as a member of, the Australian Navy; (g) employment in the Australian Security Intelligence Organization, other than employment in the office of Director‑General of Security; (h) employment under section 10 of the Supply and Development Act 1939; (j) employment in the Public Service of a Territory other than the Australian Capital Territory or the Northern Territory; (ja) employment as a member of, or as the holder of an office or appointment in the service of, the Joint Coal Board; (jb) employment as a member of the staff of the Australian Defence Force Academy; or (m) employment as the holder of an office or appointment (not being an office or appointment referred to in a preceding paragraph or a public office) in the service of the Commonwealth, being an office or appointment prescribed for the purposes of this paragraph. (3) A reference in this Part to employment by a public authority shall be read as including a reference to: (a) employment as the holder of an office or appointment in the Public Service of a State, being an office or appointment prescribed, or included in a class of offices or appointments prescribed, by the regulations for the purposes of this paragraph; or (b) employment as the holder of an office or appointment (not being an office or appointment referred to in paragraph (a), an office or appointment in the Australian Capital Territory Government Service or the Public Service of the Northern Territory or a public office) the holder of which is appointed: (i) by the Governor of a State or by a Minister of a State; or (ia) by the Australian Capital Territory Executive or by the Chief Minister or a Minister for the Australian Capital Territory; or (ii) by the Administrator of that Territory or by an Executive Member of the Legislative Assembly for that Territory; being an office or appointment prescribed, or included in a class of offices or appointments prescribed, by the regulations for the purposes of this paragraph. (4) The regulations may declare that this Part shall apply to and in relation to employment as the holder of an office or appointment in the Public Service of the Northern Territory as if that employment were employment by a public authority. (5) Notwithstanding that regulations have not been made for the purposes of subsection (4), where a person becomes a person to whom Division 3 applies by virtue of subsection 87K(3) or (4), this Part applies to and in relation to him, while he continues to be employed in the Public Service of the Northern Territory, as if employment in that Service were employment in eligible public employment. (6) Where a person becomes a person to whom Division 3 applies by virtue of subsection 87K(9) or (10), this Part applies to and in relation to him while he continues to be employed by an approved legal aid commission, or as the holder of an approved statutory office, within the meaning of the Commonwealth Legal Aid Act 1977 as if any employment by such a commission or in such an office that is not eligible public employment were eligible public employment in relation to him. (6AA) Subsection (6) continues to apply despite the repeal of the Commonwealth Legal Aid Act 1977 as if: (a) section 3 and Part IV of that Act had not been repealed; and (b) any arrangement under subsection 21(1) of that Act that ceased to be in force only because of that repeal had not ceased to be in force because of that repeal. (6A) Where: (a) at any time (whether before, on or after the commencing day), in pursuance of an arrangement under subsection 21(1) of the Commonwealth Legal Aid Act 1977, a person who was an officer employed in the Australian Legal Aid Office has become a member of the staff of an approved legal aid commission; and (b) at a later time, the person has become the holder of a statutory office within the meaning of that Act; then, for the purposes of this Part, the person shall be deemed to have become, at that later time, the holder of an approved statutory office within the meaning of that Act. (7) Regulations made for the purposes of paragraph (b) of the definition of Commonwealth authority in subsection (1) may be expressed to have effect in respect only of employment by a specified body on or after, or before, a particular date, which may be a date before the commencing day, or during a particular period, which may be, or may include, a period before the commencing day. (8) Regulations made for the purposes of the definition of Commonwealth office in subsection (1) may be expressed to have effect in respect only of employment in: (a) a specified office or appointment; or (b) in an office or appointment included in a specified class of offices or appointments; on or after, or before, a particular date, which may be a date before the commencing day, or during a particular period, which may be, or may include, a period before the commencing day. (10) For the purposes of this Part, a person shall be deemed to have been dismissed from eligible public employment for misconduct if he was dismissed from that employment on grounds similar to the grounds on which an officer may be dismissed from the Service under Division 6 of Part III. (11) For the purposes of this Part, a finding of a court in relation to a criminal offence shall be regarded as having been nullified: (a) where a person has been convicted on the basis of that finding—if the conviction has subsequently been quashed or otherwise nullified or the person convicted has received a pardon or has been released from prison as a result of an inquiry into the conviction; or (b) in any other case—if the finding has been set aside. (12) This Part does not apply to a person in relation to his or her employment in an office or position specified in the regulations for the purpose of this subsection. (13) An office or position may only be specified in the regulations for the purpose of subsection (12) if the relevant salary rate in respect of the office or position is equal to or greater than the minimum rate at which salary is payable to the occupant of an office having a classification of Senior Executive Band 2. (14) The reference in subsection (13) to the relevant salary rate in respect of an office or position is to be read as follows: (a) in the case of an office or position to which a range of salary is applicable, the reference is a reference to the minimum rate at which salary is payable to a holder of the office or position; (b) in any other case, the reference is a reference to the rate at which salary is payable to a holder of the office or position. (15) Subsection (12) has effect in spite of any other provision of this Part. ##### 87A Officers employed by body that ceases to be Commonwealth authority etc. Where: (a) by virtue of regulations made for the purposes of the definition of Commonwealth authority in subsection 87(1), a body ceases to be a Commonwealth authority for the purposes of this Part; (b) by virtue of regulations made for the purposes of the definition of Commonwealth office in subsection 87(1), an office or appointment ceases to be a Commonwealth office for the purposes of this Part; or (c) by virtue of regulations made for the purposes of paragraph 87(2)(m), an office or appointment ceases to be prescribed for the purposes of that paragraph; this Part continues, notwithstanding those regulations, to apply to and in relation to a person to whom Division 2 or 3 applied immediately before the day on which the regulations take effect, being a person who was, immediately before that day, employed by the body, or in the office or appointment, as if he were, while he continues to be so employed, engaged in eligible Commonwealth employment. ##### 87B Restriction on prescription of public authorities etc. (1) For the purposes of this section, a person employed by a body, or employed as the holder of an office or appointment: (a) is a prescribed employee if he is an officer of the Service who is, by virtue of section 87C, absent from the Service on leave of absence without pay; and (b) is a relevant employee if he is: (i) a prescribed employee; or (ii) a person to whom Division 3 applies. (1A) Regulations shall not be made: (a) prescribing, for the purposes of paragraph (c) of the definition of public authority in subsection 87(1), a body corporate established for a public purpose by a law of a State; (b) prescribing, for the purposes of paragraph (e) of the definition of public authority in subsection 87(1), an unincorporated body established for a public purpose by a law of a State or a class of unincorporated bodies which includes any such bodies; (c) prescribing, for the purposes of paragraph (b) of the definition of public office in subsection 87(1): (i) an office or appointment the holder of which is appointed by the Governor of a State or by a Minister of a State; or (ii) a class of such offices or appointments; or (d) prescribing, for the purposes of paragraph 87(3)(a): (i) an office or appointment in the Public Service of a State; or (ii) a class of offices or appointments in the Public Service of a State; unless the Premier of the State has informed the Prime Minister, in writing, that he has agreed to the making of the regulation. (2) Regulations shall not be made: (a) for the purposes of the definition of public authority or public office in subsection 87(1); or (b) for the purposes of subsection 87(3) or (4); unless the conditions specified in subsection (3) of this section are fulfilled in respect of the body, office or appointment, or each body, office or appointment, to which the regulation relates. (3) The conditions that are required by subsection (2) to be fulfilled in respect of a body, office or appointment are the following: (a) that the Board is satisfied that the terms and conditions of employment that will be applicable to the employment of relevant employees by that body, or as the holders of that office or appointment, as the case may be, (other than relevant employees who were engaged in that employment immediately before the commencement of the regulation) will make provision as set out: (i) in the case of relevant employees who are prescribed employees—in subsection (6); or (ii) in the case of any other relevant employees—in subsection (7); (b) that arrangements, satisfactory to the Minister for the time being administering the Superannuation Act 1976 or to an officer authorized by that Minister for the purposes of this paragraph, have been made for and in relation to the provision of superannuation benefits under that Act in respect of relevant employees who: (i) are employed by that body or as the holders of that office or appointment, as the case may be; and (ii) are persons to whom section 14A of that Act applies; (c) that arrangements satisfactory to the Minister for the time being administering the Superannuation Act 1990 or to an officer authorised by that Minister for the purposes of this paragraph, have been made in relation to the provision of superannuation benefits under that Act for relevant employees who: (i) are employed by that body or as the holders of that office or appointment, as the case may be; and (ii) are members of the superannuation scheme established by deed under that Act by force of paragraph 6(1)(h) of that Act. (4) Where a change occurs in the terms and conditions of employment applicable to the employment of a relevant employee: (a) by a body, or by a body included in a class of bodies, prescribed by a regulation referred to in subsection (2); or (b) as the holder of an office or appointment, or as the holder of an office or appointment included in a class of offices or appointments, prescribed by such a regulation; and it appears to the Board that those terms and conditions of employment no longer make provision as set out in subsection (6) or (7), as the case requires, the Board shall, subject to the approval of the Governor‑General, make a regulation repealing that regulation, or repealing that regulation in so far as it relates to that body, class of bodies, office, appointment, or class of offices or appointments, as the case may be. (5) Notwithstanding the repeal of a regulation of a kind referred to in subsection (2), this Part continues to apply to and in relation to a relevant employee who was, immediately before the repeal of the regulation, employed by a body, or in an office or appointment, to which the regulation related as if he were, while so employed, engaged in eligible public employment. (6) The provision to be made for the purposes of subsection (3) in respect of the employment of a prescribed employee is provision: (a) for the employee to retain, in respect of the employment, such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as had accrued to him, immediately before he becomes such an employee, in respect of the employment or other employment; (b) for recreation leave credits and sick leave credits to accrue to the employee in respect of the employment on the respective dates on which, and at the respective rates of accrual at which, they would accrue to him if his service in the employment were service in the Service; (c) for the recreation leave credit that first accrues to him in respect of the employment: (i) if he becomes engaged in the employment on 1 January in a year—to accrue to him on that day and be calculated as if he were employed on that day in the employment in which he was engaged immediately before that day; (ii) if he becomes engaged in the employment after 1 January in the year in which he became, or last became, an officer—to be calculated as if he had been continuously engaged in the employment since he became, or last became, an officer; or (iii) if he becomes engaged in the employment after 1 January in a subsequent year—to be calculated as if he had been continuously engaged in the employment from and including that 1 January; (d) for the sick leave credits that first accrue to him in respect of the employment to accrue to him on the day on which they would accrue to him if, and to be calculated as if, the whole of his service in employment since the date on which his last preceding sick leave credits accrued to him had been service in that first‑mentioned employment; (e) for the employee, if he ceases, otherwise than by reason of his death, to be engaged in the employment and, at the same time, to be an officer, to have substantially the same entitlement to payment in lieu of leave of absence for recreation as he would have under this Act if he were retiring from the Service and his service in the employment were service in the Service, unless, upon so ceasing, he becomes engaged in other eligible public employment; (f) for payment of amounts in lieu of leave of absence for recreation to be made in relation to the employee if: (i) he dies; or (ii) the Board certifies, after consideration of all the circumstances, that it would, if his service in the employment had been service in the Service, direct, for the purposes of a determination under section 82D with respect to payments in lieu of leave of absence for recreation, that he should be presumed to have died on a particular date; being amounts equal to the amounts that would be payable under this Act if his service in the employment were service in the Service, unless he had ceased to be an officer before his death or before that date, as the case may be; (g) for the employee to be entitled to a period or periods of long service leave, and for payment in lieu of long service leave to be made to or in relation to the employee, in respect of the employment as if his service in the employment were service in the Service; and (h) for the employee if he or she is: (i) an eligible employee for the purposes of the Superannuation Act 1976; or (ii) a member of the superannuation scheme established by deed under the Superannuation Act 1990; immediately before he or she becomes engaged in the employment, to be exempted from liability to contribute for superannuation benefits otherwise than under the Superannuation Act 1976 or the Superannuation Act 1990 in respect of the employment. (7) The provision to be made for the purposes of subsection (3) in respect of the employment of a relevant employee, being a person to whom Division 3 applies, is provision: (a) for the employee to retain, in respect of the employment, such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as had accrued to him, immediately before he becomes such an employee, in respect of the employment or other employment; (b) for the employee to be entitled to a period or periods of long service leave, and for payment in lieu of long service leave to be made to or in relation to the employee, in respect of the employment as if his service in the employment were service in the Service unless, within 3 months after he becomes a person to whom Division 3 applies or becomes engaged in that employment, whichever last occurs, he elects, in writing, for those entitlements to be determined otherwise; and (c) for the employee, if he is contributing for benefits under the Superannuation Act 1976, or the Superannuation Act 1990, immediately before the day on which he becomes a person to whom Division 3 applies or the day on which he becomes engaged in that employment, whichever is the later day, to be exempted from liability to contribute for superannuation benefits otherwise than under the Superannuation Act 1976 or the Superannuation Act 1990 in respect of the employment unless, within 3 months after that later day, he elects, in writing, to contribute for those other benefits. (8) A reference in this section to a body shall, unless the contrary intention appears, be read as including a reference to the Public Service of the Northern Territory. ### Division 2—Officers engaged in certain public employment ##### 87C Officers engaged in eligible public employment (1) Subject to this section, an officer (including an unattached officer) becomes an officer to whom this Division applies: (a) on the day on which he becomes engaged in eligible public employment; (b) if the repealed Officers’ Rights Declaration Act 1928 ceases to apply to him under section 87TA while he is engaged in eligible public employment but he continues, by force of subsection 87V(1), to be an unattached officer—upon that Act so ceasing to apply to him; or (d) if he is an officer to whom section 87Z applies—on the day immediately following the day at the expiration of which he is, under subsection 87Z(2), to be deemed to have ceased to be absent from the Service on leave of absence granted under section 71. (2) A person who: (a) becomes an officer by reason of his being re‑appointed to the Service under section 63F or 63G as an unattached officer on leave without pay; (b) was not, immediately before he ceased, or last ceased, to be an officer, an officer to whom the Officers’ Rights Declaration Act 1928, the repealed Officers’ Rights Declaration Act 1928 or the former section 6 of the Trade Commissioners Act 1933 applied; and (c) is, at the time of his re‑appointment, employed in a public office or by a public authority; becomes an officer to whom this Division applies upon his being re‑appointed under that section. (3) An officer (including an unattached officer) becomes an officer to whom this Division applies on the commencing day: (a) if, on the commencing day, he is engaged in eligible Commonwealth employment and, at the expiration of the day immediately preceding the commencing day, he is, under subsection 87Y(2), to be deemed to have ceased to be absent from the Service on leave of absence granted under section 71; (b) if, on the commencing day, he is engaged in eligible Commonwealth employment and is, by virtue of section 87ZA, to be deemed to have been appointed to the Service on that day; or (c) if, on the commencing day, he is employed as the holder of an office of Commissioner or member of a Board under the Repatriation Act 1920 and is not an officer to whom section 8A of that Act applies. (4) Subsection (1) does not apply to an officer who becomes engaged in eligible public employment: (a) if he becomes so engaged by reason of being transferred to the Public Service of the Northern Territory under section 84A; (b) if the repealed Officers’ Rights Declaration Act 1928 applies to him in respect of that employment; (c) if he becomes, under section 87J, upon becoming so engaged, an eligible person in relation to a declared Commonwealth function; or (e) if, upon becoming so engaged, he is absent from the Service on leave of absence granted under this Act for the purpose of enabling him to become engaged in that employment, being leave of absence that was granted: (i) if that employment became eligible public employment after the commencing day by virtue of the making of a regulation for the purposes of section 87—before the day on which the regulation was made or the day as from which that employment became eligible public employment, whichever was the later day; or (ii) in any other case—before the commencing day. (5) Where an officer becomes, by reason of his becoming engaged, or while he is engaged, in particular employment, an officer to whom this Division applies, he continues to be such an officer until he ceases to be engaged in that employment or he ceases to be an officer, whichever first occurs. (6) While an officer is, by reason of being engaged in particular employment, an officer to whom this Division applies, he shall be deemed to be absent from duty from the Service on leave of absence without pay, but his service in that employment while he is deemed to be so absent shall be taken into account as if it were service in the Service. ##### 87D Cessation of leave without pay (1) Subject to subsections (6) and (7), where an officer (other than an officer to whom section 87V, 87Y 87Z, or 87ZA applies) who is employed by a public authority: (a) has been continuously employed by that authority, or by that authority and another public authority or other public authorities in succession, for the relevant period; and (b) was, throughout the relevant period, an officer to whom this Division applies; he ceases to be an officer at the expiration of the relevant period. (3) The Board may, by instrument in writing, fix a period, being a period in excess of 3 years, in respect of officers included in a specified class of officers for the purposes of this section. (4) The Board may, on application made by an officer (either before or after he has been continuously employed, as set out in paragraph (1)(a), for a period of 3 years, or for such longer period (if any) as is applicable to him under subsection (3)), by instrument in writing, fix a specified period, being a period in excess of 3 years, or of the period so applicable to him, as the case may be, in respect of the officer for the purposes of this section if it is satisfied that there are special reasons justifying it in doing so. (5) For the purposes of subsection (1), the relevant period in respect of an officer is: (a) in the case of an officer included in a class of officers in respect of whom a period has been fixed under subsection (3)—the period so fixed or the period (if any) fixed in respect of the officer under subsection (4), whichever is the longer period; or (b) in the case of any other officer: (i) if a period has been fixed in respect of the officer under subsection (4)—the period so fixed; or (ii) in any other case—the period of 3 years. (6) Where an officer makes application under subsection (4) before the date on which he would, unless a period were fixed under that subsection in respect of him, cease to be an officer but the Board does not make a decision in respect of the application before that date, notwithstanding subsection (1), he ceases to be an officer on the date on which the Board makes a decision in respect of the application unless the Board, by that decision, fixes a period in respect of him for the purposes of this section. (7) Where the Board, on application made by a person after the date on which he would, but for this subsection, have ceased to be an officer, makes a decision fixing a period in respect of him for the purposes of this section, subsection (1) applies, and shall be deemed at all times to have applied, in relation to him as if the decision had been made immediately before that date. (8) An application to the Board under this section shall be in writing signed by the officer and shall set out the reasons for the application. ##### 87E Preservation of rights in respect of leave (1) Where: (a) an officer becomes, by virtue of subsection 87C(1), an officer to whom this Division applies by reason of his becoming engaged in eligible Commonwealth employment; (b) a person who is engaged in eligible Commonwealth employment is re‑appointed to the Service under section 63F or 63G and becomes, by virtue of subsection 87C(2), an officer to whom this Division applies; or (c) an officer who is engaged in eligible Commonwealth employment becomes, by virtue of subsection 87C(3), an officer to whom this Division applies upon his ceasing to be absent from the service on leave of absence granted under section 71; he retains, in respect of that employment, such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as had accrued to him immediately before he becomes such an officer. (2) Where: (a) an officer becomes, by virtue of subsection 87C(1), an officer to whom this Division applies upon his ceasing to be a person to whom the repealed Officers’ Rights Declaration Act 1928 applies; or (b) an officer who is the holder of an office of Commissioner, or member of a Board, under the Repatriation Act 1920 becomes, by virtue of subsection 87C(3), an officer to whom this Division applies; there shall be ascertained, in a manner determined by the Public Service Board, the period (if any) of leave of absence for recreation, and the periods (if any) of leave of absence on account of illness, that is or are applicable to him on his becoming such an officer, and, if such a period is applicable to him, he shall be credited with that period. (3) Subject to subsections (4) and (5), while an officer to whom this Division applies is engaged in eligible Commonwealth employment: (a) recreation leave credits and sick leave credits accrue to him in respect of that employment on the respective dates on which, and at the respective rates of accrual at which, they would accrue to him if his service in that employment were service in the Service; and (b) determinations in force under section 82D that make provision for or in relation to the matters referred to in clause 82D(4)(a)(v)(A) apply to and in relation to him subject to such modifications and adaptations (if any) as the Public Service Board determines. (4) The recreation leave credit that accrues to an officer referred to in subsection (1) or (2): (a) if he becomes an officer to whom this Division applies on a 1 January—on that 1 January; or (b) in any other case—on the 1 January immediately following the date on which he becomes such an officer; shall be calculated in such manner as the Board determines. (5) Where an officer referred to in subsection (1) or (2) becomes an officer to whom this Division applies by reason of his becoming engaged in eligible Commonwealth employment, the sick leave credits that first accrue to him in respect of that employment shall accrue to him on the day on which they would accrue to him if, and shall be calculated as if, the whole of his service in employment since the date on which his last preceding sick leave credits accrued to him had been service in that first‑mentioned employment. (6) Where an officer to whom this Division applies who is engaged in eligible Commonwealth employment ceases, otherwise than by reason of his death, to be engaged in that employment and, at the same time, to be an officer, he is entitled to be paid, in respect of leave of absence for recreation, an amount equal to the amount (if any) that would be payable to him under this Act in lieu of leave of absence for recreation if he were retiring from the Service and his service in that employment were service in the Service, unless, upon so ceasing, he becomes engaged in other eligible public employment. (7) Where an officer to whom this Division applies who is engaged in eligible Commonwealth employment dies while engaged in that employment or the Board directs, after consideration of all the circumstances, that an officer to whom this Division applies shall be presumed to have died on a particular date, there are payable in relation to the officer such amounts as would be payable under this Act in lieu of leave of absence for recreation if his service in that employment were service in the Service, unless he had ceased to be an officer before his death or before that date, as the case may be. (8) Where an officer to whom this Division applies resumes duty in the Service in consequence of his ceasing to be engaged in eligible Commonwealth employment: (a) upon resuming duty in the Service, he retains, in respect of his service in the Service, such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as had accrued to him immediately before he resumed duty in the Service; (b) the recreation leave credit that accrues to him: (i) if he resumes duty in the Service on a 1 January—on that 1 January; or (ii) in any other case—on the 1 January immediately following the date on which he resumes duty in the Service; shall be calculated in such manner as the Board determines; and (c) the sick leave credits that first accrue to him in respect of his service in the Service after he so resumes duty shall accrue to him on the day on which they would accrue to him if, and shall be calculated as if, the whole of his service in employment since the date on which his last preceding sick leave credits accrued to him had been service in the Service. (9) Where an officer to whom this Division applies who is engaged in eligible Commonwealth employment ceases to be an officer but does not also cease to be engaged in eligible Commonwealth employment, he retains, in respect of the employment in which he is engaged, such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as had accrued to him immediately before he ceased to be an officer. (10) Notwithstanding the provisions of any other Act, or of the terms and conditions of employment, that would, but for this subsection, be applicable to an officer to whom this Division applies who is engaged in eligible Commonwealth employment, but subject to subsection (11), the officer is not entitled, while engaged in that employment: (a) to be absent from that employment on leave of absence for recreation, or to be granted leave of absence for recreation, for a period that exceeds his recreation leave credit immediately before the commencement of the leave; (b) to be absent from that employment on leave of absence on full pay on account of illness, or to be granted leave of absence on full pay on account of illness, for a period that exceeds his credit of sick leave on full pay immediately before the commencement of the leave; or (c) to be absent from that employment on leave of absence on half pay on account of illness, or to be granted leave of absence on half pay on account of illness, for a period that exceeds his credit of sick leave on half pay immediately before the commencement of the leave. (11) Where the period from the date on and from which an officer to whom subsection (10) applies is to be absent from his employment on leave of absence for recreation to the end of the maximum period for which, but for this subsection, he could be so absent, includes, or ends immediately before, 1 January in any year, the maximum period for which he may be absent on leave of absence for recreation, or may be granted any such leave, is increased by a period equal to the addition to the recreation leave credit of the officer that will, if he continues in the employment and to be an officer, accrue on that 1 January. ##### 87F Long service leave (1) Where an officer to whom this Division applies is engaged in eligible Commonwealth employment but the period of that employment would not, but for this subsection, be a period of employment in Government Service for the purposes of the Long Service Leave (Commonwealth Employees) Act 1976, that Act applies to him in respect of that period of employment in eligible Commonwealth employment as if it were a period of employment in Government Service for the purposes of that Act. (2) Where an officer to whom this Division applies or has applied: (a) is employed in Government Service or in eligible Commonwealth employment referred to in subsection (1); and (b) was, prior to his current period of employment and while he was a person to whom Division 2 or 3 applied, employed for a period in eligible public employment that would not, but for this subsection, be a period of employment in a qualifying service for the purposes of the Long Service Leave (Commonwealth Employees) Act 1976; that Act applies to and in relation to him as if that period of employment in eligible public employment were a period of employment in other relevant service for the purposes of paragraph 11(2)(f) of that Act. (3) This section does not apply to an officer to whom the Long Service Leave (Commonwealth Employees) Act 1976 does not apply by virtue of subsection 10(3) of that Act. ##### 87G Office to become vacant in certain circumstances (1) Subject to this section, where: (a) an officer to whom this Division applies was, immediately before he became such an officer, the holder of an office in the Service; or (b) is promoted or transferred to an office in the Service, but does not commence to perform the duties of that office within the period of 30 days after the promotion or transfer takes effect; the office becomes vacant upon his becoming such an officer or upon the expiration of that period, as the case may be, and the officer thereupon becomes an unattached officer. (2) Where an officer to whom this Division applies is promoted or transferred to an office in the Service, the Board may, on application made by the officer before the expiration of the period of 30 days after the promotion or transfer takes effect, determine that subsection (1) shall have effect in relation to the promotion or transfer as if the reference in that subsection to a period of 30 days were a reference to such longer period as is specified in the determination. (3) An application under subsection (2) shall be: (a) in writing; (b) addressed to the Secretary of the Department in which the office is included; and (c) lodged at, or sent by post to, any office of the Department. (4) Where: (a) an officer to whom this Division applies is promoted or transferred to an office in the Service; and (b) at the time when the promotion or transfer takes effect, the officer is absent from his eligible public employment for a period on leave of absence granted before that time; the reference in subsection (1) to the period of 30 days after the day on which the promotion or transfer takes effect shall be read as a reference to the period of 30 days after the expiration of the first‑mentioned period. ##### 87H Application of sections 49B, 50, 50DA and 53 to certain unattached officers In the application of section 49B, 50, 50DA or 53 to an unattached officer to whom this Division applies, the officer shall be deemed to be the holder of an office: (a) subject to paragraph (b)—the classification of which is equivalent, or is as nearly as possible equivalent, to the classification of the office held by him immediately before he became, or last became, such an officer; or (b) if he was not the holder of an office immediately before he became, or last became, such an officer—the classification of which corresponds, or corresponds as nearly as possible, to his classification as an unattached officer immediately before he ceased, or last ceased, to perform duty in the Service. ##### 87J Employment of officers by certain authorities etc. upon transfer of functions (1) In this section: > prescribed authority means a body, whether incorporated or not, established for a public purpose by a law of a State. > prescribed function means a function that is declared, by a declaration under this section that is in force, to be a prescribed function corresponding to a declared Commonwealth function. > prescribed office means an office or appointment the holder of which is appointed by the Governor of a State or by a Minister of a State. > statutory authority means: (a) a body, whether incorporated or not, established for a public purpose by a law of the Commonwealth or of a Territory; (b) a body corporate incorporated under a law of a State or of a Territory, being a body corporate in which the Commonwealth has a controlling interest; or (c) a prescribed authority. > statutory office means: (a) a Commonwealth office; (b) an office or appointment other than a Commonwealth office that could be declared by the regulations to be a Commonwealth office for the purposes of this Part; or (c) a prescribed office. > Territory does not include the Australian Capital Territory or the Northern Territory. (2) A reference in this section to employment by a statutory authority shall be read as including a reference to: (b) service as a member (other than as Commissioner of Police) or staff member of the Australian Federal Police; (c) employment as a member of the Police Force of a Territory other than the Northern Territory; (d) employment under the Naval Defence Act 1910, other than employment in an office or appointment in, or as a member of, the Australian Navy; (e) employment in the Australian Security Intelligence Organization, other than employment in the office of Director‑General of Security; (f) employment under section 10 of the Supply and Development Act 1939; or (g) employment in an office or appointment that is prescribed for the purposes of paragraph 87(2)(m). (2A) A reference in this section: (a) to a State must be read as including the Australian Capital Territory and the Northern Territory; and (b) to a Governor of a State must be read as including the Australian Capital Territory Executive and the Administrator of the Northern Territory; and (c) to a Minister of a State must be read as including a Minister for the Australian Capital Territory and an Executive Member of the Legislative Assembly of the Northern Territory; and (d) to a Premier of a State must be read as including the Chief Minister for the Australian Capital Territory and the Chief Minister of the Northern Territory. (3) Subject to this section, where the Board notifies the Prime Minister that it is satisfied that officers included in a class of officers are performing duties connected with the performance of a function, the Prime Minister may, by declaration published in the Gazette, declare that function to be a declared Commonwealth function and the duties of officers included in that class of officers to be connected with the performance of that declared Commonwealth function. (4) Subject to subsection (7), where the Board notifies the Prime Minister that it is satisfied: (a) that persons employed, or to be employed, in offices included in a class of statutory offices; or (b) that persons employed, or to be employed, or included in a class of persons employed, or to be employed, by a statutory authority, by a State or in the Public Service of a Territory; are performing, or will perform, duties connected with the performance of a function that is the same as, or is similar to, a function that is being, or has been, declared to be a declared Commonwealth function, the Prime Minister may, in the declaration published in the Gazette under subsection (3) declaring that function to be a declared Commonwealth function, or in a subsequent declaration published in the Gazette, declare: (c) that first‑mentioned function to be a prescribed function corresponding to that declared Commonwealth function; and (d) employment: (i) in the offices included in that class of statutory offices; or (ii) by that statutory authority, by that State or in the Public Service of that Territory on duties connected with the performance of that prescribed function; to be employment connected with the performance of that prescribed function. (5) For the purposes of this Act, where a person, being an officer included in a class of officers whose duties have been declared to be connected with the performance of a declared Commonwealth function becomes engaged in employment that has been declared to be connected with a prescribed function that corresponds to that declared Commonwealth function: (a) the person becomes, upon becoming engaged in that employment, an eligible person in relation to that declared Commonwealth function; (b) the person continues to be such a person until he ceases to be engaged in employment that is declared to be connected with the performance of a prescribed function that corresponds to that declared Commonwealth function; (c) if, at any time while he continues to be such a person, the employment in which he is engaged is not eligible public employment, this Part applies to and in relation to him as if that employment were eligible public employment; and (d) if the first‑mentioned employment is employment in a statutory office other than a prescribed office or employment by a statutory authority other than a prescribed authority, the person retains, in respect of the first‑mentioned employment, such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as had accrued to him immediately before he became engaged in the first‑mentioned employment. (6) Where an officer becomes an eligible person in relation to a declared Commonwealth function, he shall, notwithstanding any other provision of this Act, be deemed to have ceased to be an officer at the expiration of the day immediately preceding the day on which he becomes such a person. (6A) A declaration shall not be made under this section declaring: (a) employment in an office or appointment the holder of which is appointed by the Governor of a State or by a Minister of a State; (b) employment in an office included in a class of such offices; (c) employment by a body, whether incorporated or not, established for a public purpose by a law of a State; or (d) employment by a State; to be employment that is connected with the performance of a prescribed function that corresponds to a declared Commonwealth function, unless the Premier of the State has informed the Prime Minister, in writing, that he has agreed to the making of the declaration. (7) A declaration shall not be made under this section declaring employment in a statutory office (being a prescribed office), in an office included in a class of statutory offices (being prescribed offices), by a statutory authority (being a prescribed authority) or by a State to be employment that is connected with the performance of a prescribed function that corresponds to a declared Commonwealth function unless, in relation to that employment, the conditions specified in subsection (8) are fulfilled. (8) The conditions required by subsection (7) to be fulfilled, in relation to employment that will, upon the making of a declaration under this section, be employment that is connected with the performance of a prescribed function that corresponds to a declared Commonwealth function, are as follows: (a) that the Board is satisfied that the terms and conditions of employment that will be applicable to the service in that employment of a person who is, by virtue of that declaration, an eligible person in relation to that declared Commonwealth function will be such that: (i) the person retains, in respect of the employment, such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as had accrued to him immediately before he became engaged in the employment; (ii) the person is entitled to a period or periods of long service leave, and payment in lieu of long service leave shall be made to or in relation to the person, in respect of the employment, as if his service in the employment were service in the Service unless, within 3 months after he becomes engaged in the employment, he elects, in writing, for those entitlements to be determined otherwise; and (iii) if the person is contributing for superannuation benefits under the Superannuation Act 1976, or the Superannuation Act 1990, immediately before the day on which he becomes engaged in the employment, he shall be exempted from liability to contribute for superannuation benefits otherwise than under the Superannuation Act 1976 or the Superannuation Act 1990 in respect of the employment unless, within 3 months after that day, he elects, in writing, to contribute for those other benefits; (b) that arrangements satisfactory to the Minister for the time being administering the Superannuation Act 1976 or to an officer authorized by that Minister for the purposes of this paragraph have been made for and in relation to the provision of superannuation benefits under that Act in respect of persons engaged in that employment who: (i) are eligible persons in relation to that declared Commonwealth function; and (ii) are persons to whom section 14A of that Act applies; (c) that arrangements satisfactory to the Minister for the time being administering the Superannuation Act 1990 or to an officer authorised by that Minister for the purposes of this paragraph, have been made in relation to the provision of superannuation benefits under that Act for persons engaged in that employment who: (i) are eligible persons in relation to that declared Commonwealth function; and (ii) are members of the superannuation scheme established by deed under that Act by force of paragraph 6(1)(h) of that Act. (9) Where: (a) while a declaration that declares employment to be connected with the performance of a prescribed function that corresponds to a declared Commonwealth function is in force, a change occurs in the terms and conditions applicable to the employment of persons engaged in that employment who are eligible persons in relation to that declared Commonwealth function; and (b) it appears to the Board that those terms and conditions are no longer such that the conditions set out in subsection (8) are fulfilled; the Board shall, subject to the approval of the Prime Minister, by instrument published in the Gazette, revoke that declaration, or revoke that declaration in so far as it relates to that employment. (10) Where the Board revokes a declaration that declares employment to be connected with the performance of a prescribed function that corresponds to a declared Commonwealth function, or revokes such a declaration in so far as it relates to any such employment, notwithstanding the revocation, this Part continues to apply to and in relation to a person who, immediately before the revocation, was engaged in that employment and was an eligible person in relation to that declared Commonwealth function as if, while he continues to be engaged in that employment: (a) he were an eligible person in relation to that declared Commonwealth function; and (b) he were engaged in eligible public employment. ##### 87JA Officer electing to be retired (1) This section applies to an officer to whom this Division applies and who, after the commencement of this section, elects to be retired from the employment because of which he or she is an officer to whom this Division applies. (2) Unless the officer resigned from the Service before the election is accepted by the employing authority, he or she is taken, for the purposes of this Act, to have resigned from the Service when the election is accepted. (3) Despite subsection 87K(1), the officer does not become a person to whom Division 3 applies by being engaged in eligible public employment on the day after the day on which he or she resigned from the Service. ##### 87JB Excess officer failing to resign from employment (1) This section applies to an officer to whom this Division applies and who: (a) after the commencement of this section, becomes excess in relation to the employment because of which he or she is an officer to whom this Division applies; and (b) is notified, as prescribed, by the employing authority of the effect in relation to the officer of the operation of this section; and (c) does not, before the end of 60 days after the date on which he or she so became excess or the date on which he or she was so notified, whichever is the later date, resign from that employment. (2) Unless the officer resigned from the Service before the end of the period referred to in paragraph (1)(c), he or she is taken, for the purposes of this Act, to have resigned from the Service at the end of that period. (3) Despite subsection 87K(1), the officer does not become a person to whom Division 3 applies by being engaged in eligible public employment on the day after the day on which he or she resigned from the Service. (4) If the officer ceases to be excess in relation to his or her employment as mentioned in paragraph (1)(a) and continues in that employment, the preceding provisions of this section do not apply, and are taken never to have applied, to the officer because of his or her having so been excess. ##### 87JC Excess officer resigning from employment (1) This section applies to an officer to whom this Division applies and who: (a) after the commencement of this section, becomes excess in relation to the employment because of which he or she is an officer to whom this Division applies; and (b) is notified, as prescribed, by the employing authority of the effect in relation to the officer of the operation of this section; and (c) before the end of 60 days after the date on which he or she so became excess or the date on which he or she was so notified, whichever is the later date, resigned from that employment. (2) Any act or thing validly done by the employing authority in relation to the employment referred to in paragraph (1)(a) in respect of the compulsory or voluntary retirement or retrenchment, or possible compulsory or voluntary retirement or retrenchment, of the officer from that employment is to be treated as if it had been the corresponding act or thing done by the relevant Secretary in respect of the officer’s employment in the Service and had been validly done under the Public Service Redundancy Award. (3) Without limiting the generality of subsection (2), the retention period provided for by the Public Service Redundancy Award in relation to the officer’s employment in the Service is taken to have begun on the date on which he or she became excess as mentioned in paragraph (1)(a). ### Division 3—Rights of certain former officers ##### 87KAA Interpretation In this Division, Re‑appointment Review Committee means a Re‑appointment Review Committee established in accordance with Subdivision E of Division 2 of Part II of the Merit Protection Act. ##### 87K Persons to whom Division applies (1) Where an officer to whom Division 2 applies who is engaged in eligible public employment: (a) resigns from the Service; or (b) ceases to be an officer in accordance with subsection 87D(1), 87V(2), 87Y(3), 87Z(3) or 87ZA(5); but continues to be engaged in that employment, he becomes a person to whom this Division applies upon so resigning or so ceasing to be an officer, as the case may be. (2) Where a person who: (a) is deemed by subsection 87J(6), 87Y(2) or 87Z(2) to have ceased to be an officer; or (b) ceases, under subsection 87V(1) or 87ZC(2), to be an officer; is engaged in eligible public employment on the day after the day at the expiration of which he is so deemed to have ceased, or so ceased, to be an officer, he becomes a person to whom this Division applies on the first‑mentioned day. (2A) An officer specified, or included in a class of officers specified, in a declaration under subsection 81C(1) becomes a person to whom this Division applies on the day specified in the declaration for the purposes of subsection 81C(2). (3) An officer who is transferred to the Public Service of the Northern Territory under section 84A becomes a person to whom this Division applies on the day on which he is so transferred. (4) Where a person who, before the commencing day, ceased, under subsection 84A(3) to be an officer has, throughout the period that commenced on the day immediately following the day on which he so ceased to be an officer and ends on the commencing day, been engaged in employment in the Public Service of the Northern Territory or in that employment and other employment, being: (a) eligible Commonwealth employment; or (b) employment, other than eligible Commonwealth employment, of such a kind that the Officers’ Rights Declaration Act 1928 would have applied to him in respect of that employment if, immediately before he became engaged in that employment, he had been an officer or a person to whom that Act applied; the person becomes a person to whom this Division applies on the commencing day. (5) Where: (b) a person who was deemed to have been appointed to the Service of such a Commission under section 16 or subparagraph 19(2)(b)(iv) of the Postal and Telecommunications Commissions (Transitional Provisions) Act 1975; or (c) a person who, not less than 3 years before the commencing day, resigned or retired from the Service for the purpose of becoming engaged in employment as the holder of such an office or by such a Commission and became engaged in such employment; has, throughout the period that commenced on the day on which he was so appointed, was deemed to have been so appointed or became so engaged, as the case may be, and ends on the commencing day, been engaged in employment as the holder of such an office or by such a Commission or in that employment and other employment, being: (d) eligible Commonwealth employment; or (e) employment, other than eligible Commonwealth employment, of such a kind that the Officers’ Rights Declaration Act 1928 would have applied to him in respect of that employment if, immediately before he became engaged in that employment, he had been an officer or a person to whom that Act applied; the person becomes a person to whom this Division applies on the commencing day. (6) A person who: (a) became the holder of a magisterial office in the Australian Capital Territory before the commencing day; (b) was an officer immediately before he became, or first became, the holder of a magisterial office in the Australian Capital Territory; and (c) was, throughout the period that commenced on the day on which he became, or first became, the holder of a magisterial office in the Australian Capital Territory and ends on the commencing day, engaged in employment as the holder of a magisterial office in that Territory or in that employment and other employment, being: (i) eligible Commonwealth employment; or (ii) employment, other than eligible Commonwealth employment, of such a kind that the Officers’ Rights Declaration Act 1928 would have applied to him in respect of that employment if, immediately before he became engaged in that employment, he had been an officer or a person to whom that Act applied; becomes, on the commencing day, a person to whom this Division applies. (7) Where magisterial offices in the Northern Territory become public offices by virtue of a regulation made for the purposes of paragraph (b) of the definition of public office in subsection 87(1), a person who: (a) became the holder of a magisterial office in the Northern Territory before or after the commencement of this subsection, but before the day (in this subsection referred to as the relevant day) on which that regulation takes effect; (b) was an officer immediately before he became, or first became, the holder of a magisterial office in the Northern Territory; and (c) was, throughout the period that commenced on the day on which he became, or first became, the holder of a magisterial office in the Northern Territory and ends on the relevant day, engaged in employment as the holder of a magisterial office in the Northern Territory or in that employment and other employment, being: (i) eligible Commonwealth employment; or (ii) employment, other than eligible Commonwealth employment, of such a kind that the Officers’ Rights Declaration Act 1928 would have applied to him in respect of that employment if, immediately before he became engaged in that employment, he had been an officer or an officer to whom that Act applied; becomes, on the relevant day, a person to whom this Division applies. (8) In subsections (6) and (7), magisterial office means the office of Chief Magistrate or an office of Stipendiary Magistrate (not being, in either case, an office in the Service). (9) An officer who becomes an eligible person for the purposes of Part IV of the Commonwealth Legal Aid Act 1977 becomes a person to whom this Division applies on the day on which he becomes an eligible person for the purposes of that Part. (10) Where a person who, before the commencing day, ceased, under section 22 of the Commonwealth Legal Aid Act 1977, to be an officer has, throughout the period that commenced on the day immediately following the day on which he so ceased to be an officer and ends on the commencing day, been engaged in employment as a member of the staff of an approved legal aid commission, or as the holder of an approved statutory office, within the meaning of that Act or in that employment and other employment, being: (a) eligible Commonwealth employment; or (b) employment, other than eligible Commonwealth employment, of such a kind that the Officers’ Rights Declaration Act 1928 would have applied to him in respect of that employment if, immediately before he became engaged in that employment, he had been an officer or a person to whom that Act applied; the person becomes a person to whom this Division applies on the commencing day. (11) A person in respect of whom a declaration under subsection 63G(7) is made becomes a person to whom this Division applies on the day on which the declaration is made. (12) Subject to subsections 87SA(2) and 87SB(2), where a person becomes a person to whom this Division applies, he continues to be such a person until he ceases to be engaged in eligible public employment or attains the age of 65 years, whichever first occurs. (13) If: (a) an officer to whom Division 2 applies and who is engaged in eligible public employment resigns from the Service; and (b) before resigning from the Service, the officer has given to the Commissioner written notice that the officer elects not to be a person to whom this Division applies; the officer does not become, on his or her resignation from the Service, a person to whom this Division applies. ##### 87L Long service leave (1) Subject to subsection (2), where a person to whom this Division applies is engaged in eligible Commonwealth employment but the period of that employment would not, but for this subsection, be a period of employment in Government Service for the purposes of the Long Service Leave (Commonwealth Employees) Act 1976, that Act applies to him in respect of that period of employment in eligible Commonwealth employment as if it were employment in Government Service for the purposes of that Act unless: (a) if he became such a person while he was engaged in that employment—within 3 months after he became such a person; or (b) in any other case—within 3 months after he became engaged in that employment; he elects, in writing, for his long service leave entitlements to be determined otherwise. (2) Where: (a) a person to whom this Division applies is engaged in eligible Commonwealth employment; and (b) on the day on which he ceased, or last ceased, to be an officer: (i) section 75A, 81K or 81V of this Act or section 14 of the Statistics (Arrangements with States) Act 1956 applied to him; or (ii) a determination under section 81ZV of this Act, or under section 12 of the Aboriginal Affairs (Arrangements with the States) Act 1973, relating to long service leave applied to him; that section or that determination, as the case may be, applies to him as if he had continued in the Service since that day, unless he makes, or has made since that day, an election under subsection (1). (3) Where a person to whom this Division applies or has applied: (a) is employed in Government Service or in eligible Commonwealth employment referred to in subsection (1); and (b) was, prior to his current period of employment and while he was a person to whom Division 2 or 3 applied, employed for a period in eligible public employment that would not, but for this subsection, be a period of employment in a qualifying service for the purposes of the Long Service Leave (Commonwealth Employees) Act 1976; that Act applies to and in relation to him as if that period of employment in eligible public employment were a period of employment in other relevant service for the purposes of paragraph 11(2)(f) of that Act. (4) This section does not apply to a person to whom the Long Service Leave (Commonwealth Employees) Act 1976 does not apply by virtue of subsection 10(3) of the Act. ##### 87M Right to re‑enter Service by way of transfer or promotion (1) Division 4 of Part III applies, subject to this section and to such modifications (if any) as are prescribed, in relation to a person to whom this Division applies as if the person were an officer and: (a) unless paragraph (b) applies—were the holder of an office the classification of which is equivalent, or is as nearly as possible equivalent, to the classification of the office held by him immediately before he ceased, or last ceased, to be an officer; or (b) if he was an unattached officer immediately before he ceased, or last ceased, to be an officer—were the holder of an office the classification of which corresponds, or corresponds as nearly as possible, to his classification as an unattached officer immediately before he ceased, or last ceased, to be an officer. (2) Subject to subsection (7), where a person to whom this Division applies commences to perform the duties of an office in the Service to which he has been transferred or promoted: (a) he shall be deemed to have been re‑appointed to the Service as an officer on the day on which he commences to perform those duties; (b) he shall be deemed to have been so re‑appointed to the Service without probation unless the Board, by instrument in writing, otherwise determines; and (c) he is entitled to be paid salary and allowances as the holder of the office from and including that day, and not otherwise. (3) Subject to subsections (4) and (6), where a person to whom this Division applies who has been transferred or promoted to an office in the Service: (a) does not commence to perform the duties of that office within the period of 30 days after the day on which the transfer or promotion takes effect; or (b) notifies the Board, in writing, before the expiration of that period, that he declines the transfer or promotion; the transfer or promotion, as the case may be, is of no force or effect. (4) Where a person to whom this Division applies is transferred or promoted to an office in the Service, the Board may, on application made by the person before the expiration of the period of 30 days after the day on which notice of the transfer is published in the Gazette or the promotion takes effect, determine that subsection (3) shall have effect in relation to the transfer or promotion as if the reference in that subsection to a period of 30 days were a reference to such longer period as is specified in the determination. (5) An application under subsection (4) shall be: (a) in writing; (b) addressed to the Secretary of the Department in which the office is included; and (c) lodged at, or sent by post to, any office of the Department. (6) Where: (a) a person to whom this Division applies is transferred or promoted to an office in the Service; (b) at the time when the transfer or promotion takes effect, the person is absent from the eligible public employment in which he is employed on leave granted before that time; and (c) the Board has not made a determination under subsection (4) in relation to the transfer or promotion; the reference in subsection (3) to the period of 30 days after the day on which the transfer or promotion takes effect shall be read as a reference to the period of 30 days after the expiration of the period of the leave so granted to him. (7) Where: (a) by virtue of the operation of subsection (1), a person to whom this Division applies: (i) has been promoted to fill a vacant office in the Service; or (ii) has appealed under section 50B against the promotion of another person to fill such an office; and (b) the person ceases to be a person to whom this Division applies before the promotion takes effect or is cancelled; then, subject to subsections (8) and (8A): (c) the preceding provisions of this section continue to apply to and in relation to the promotion or appeal as if he had not ceased to be a person to whom this Division applies; and (d) if he commences to perform the duties of the office as a result of his promotion to the office having taken effect: (i) he shall be deemed to have been re‑appointed to the Service as an officer on the day immediately following the day on which he ceased to be a person to whom this Division applies and to have been absent from the Service on leave of absence without pay from the day on which he is to be deemed to have been so re‑appointed until he commences to perform the duties of the office; and (ii) the period during which he is to be deemed to have been absent from the Service on leave of absence without pay shall form part of his period of service under this Act for all purposes of this Act and of the Long Service Leave (Commonwealth Employees) Act 1976. (8) Subsection (7) does not apply to a person who ceased to be a person to whom this Division applies upon the termination of his employment by reason of: (a) his resignation, invalidity or misconduct; (b) the annulment of his appointment while he was a probationary employee; or (c) his having attained the age of 65 years. (8A) Subsection (7) does not apply to a person who ceased to be a person to whom this Division applies because of subsection 87SA (2). (9) A reference in this section (other than in subsection (7)) to a promotion is a reference to a promotion that has taken effect. ##### 87N Application for re‑appointment to the Service (1) Where a prescribed condition of re‑appointment is fulfilled in respect of employment in which a person to whom this Division applies is engaged, the person may, while he is a person to whom this Division applies or, subject to subsection (3), after he ceases to be such a person, make application to the Commissioner for re‑appointment to the Service on the ground that that condition has been so fulfilled. (2) Each of the following conditions is a prescribed condition of re‑appointment in respect of employment in which a person is engaged: (a) that his employment in a public office is to be, or has been, terminated, otherwise than on the ground of his invalidity, before the expiration of the term for which he was appointed; (b) that his employment in a public office has been terminated upon the expiration of the term for which he was appointed and he has not been: (i) re‑appointed, or offered re‑appointment, to that office; (ii) appointed, or offered appointment, to another public office; or (iii) employed, or offered employment, by a public authority; (c) that his employment by a public authority is to be, or has been, terminated otherwise than on the ground of his invalidity or by reason of his resignation; (d) that, in the case of a person whose employment in a public office or by a public authority was terminated by reason of his having been found by a court to have committed a criminal offence: (i) the finding of the court has been nullified; and (ii) if the person was employed by a public authority, he has made application for re‑appointment to the service of that authority but has been refused re‑appointment; (e) that, in the case of a person to whom this Division became applicable, in accordance with subsection 87K(2), when he became an eligible person in relation to a declared Commonwealth function: (i) he is employed by a statutory authority, by a State or in the Public Service of a Territory other than the Northern Territory and is, and has, at all times since he became such a person, continued to be, an eligible person in relation to that declared Commonwealth function; and (ii) his career in employment declared to be connected with a prescribed function corresponding to that declared Commonwealth function has been adversely affected by reason of a reduction or reductions in, or an alteration or alterations to, the activities of the body by or in which he is employed connected with the performance of that prescribed function; (f) that, in the case of a person to whom this Division became applicable, in accordance with subsection 87K(2) or (2A), when he became engaged in employment by a Commonwealth authority in accordance with a declared offer of employment within the meaning of section 87ZC or became employed by a Commonwealth authority by force of subsection 81C(2): (i) the person is, and has at all times since becoming engaged in that employment or becoming so employed, as the case may be, continued to be, engaged in that employment or so employed; and (ii) his career in employment connected with the performance of the functions of that authority has been adversely affected by reason of a reduction or reductions in, or an alteration or alterations to, the functions or activities of that authority; (g) that, in the case of a person to whom this Division became applicable, in accordance with subsection 87K(3) or (4), when he became an employee of the Public Service of the Northern Territory: (i) he is, and has, at all times since he became such an employee, continued to be, engaged in employment in that Public Service that is connected with the performance of the function in connexion with the performance of which he performed duties immediately after he became such an employee; and (ii) his career in that Public Service in employment that is connected with the performance of that function has been adversely affected by reason of a reduction or reductions in, or an alteration or alterations to, the activities of that Public Service connected with the performance of that function; (h) that, in the case of a person to whom this Division became applicable in accordance with subsection 87K(5) when he became engaged in employment by the Australian Postal Commission or the Australian Telecommunications Commission: (i) he is, and has, at all times since he became engaged in that employment, continued to be, engaged in employment by such a commission; and (ii) his career in employment that is connected with the performance of the functions of the commission by which he is employed has been adversely affected by reason of a reduction or reductions in, or an alteration or alterations to, the functions or activities of that commission; and (j) that, in the case of a person to whom this Division became applicable, in accordance with subsection 87K(9) or (10), when he became an eligible person within the meaning of the Commonwealth Legal Aid Commission Act 1977: (i) he is, and has, at all times since he became such a person, continued to be, such a person; and (ii) his career in employment that is connected with the performance of the functions of the body by which he is employed has been adversely affected by reason of a reduction or reductions in, or an alteration or alterations to, the functions or activities of that body. (2A) If this Division applies to a person because of subsection 87K(2A), this section has effect, in relation to the person, as if the expression Commonwealth authority had the same meaning in this section as in section 7. (3) A person is not entitled to make application under subsection (1) on the ground that a prescribed condition of re‑appointment has been fulfilled: (a) if he has attained the age of 65 years; or (b) if the employment in respect of which that condition has been fulfilled is to be terminated and he will attain the age of 65 years on or before the day on which employment is to be terminated; or (c) if the employment in respect of which that condition has been fulfilled is to be, or has been, terminated by reason of his resignation or invalidity; or (d) if the person has ceased to be a person to whom this Division applies because of subsection 87SA(2) or 87SB(2). (4) Where a person to whom this Division applies: (a) has made an application under subsection (1); and (b) attains the age of 65 years while engaged in the eligible public employment in respect of which a prescribed condition of re‑appointment is specified in the application as having been fulfilled; the application lapses, and this section ceases to apply to and in relation to him, upon his attaining that age. (4A) If: (a) a person to whom this Division applies has made an application under subsection (1); and (b) the person ceases to be a person to whom this Division applies because of subsection 87SA(2); the application lapses, and this section ceases to apply to and in relation to the person, upon his or her so ceasing to be a person to whom this Division applies. (5) An application by a person under subsection (1): (a) shall be in writing; (b) shall be made: (i) if his application is on the ground that a prescribed condition of re‑appointment referred to in paragraph (2)(a), (b) or (c) has been fulfilled in relation to him—before, or within the period of 30 days, or such further period as the Board allows, after, the day on which his employment is terminated; (ii) if his application is on the ground that the prescribed condition of re‑appointment referred to in paragraph (2)(d) has been fulfilled in relation to him—within the period of 30 days, or such further period as the Board allows, after the day on which his application for re‑appointment is refused; or (iii) if his application is on the ground that the prescribed condition of re‑appointment referred to in paragraph (2)(e), (f), (g), (h) or (j) has been fulfilled in relation to him—within the period of 30 days, or such further period as the Board allows, after the day on which the reduction or last reduction in, or the alteration or last alteration to, the functions or activities concerned occurs; (c) shall specify the prescribed condition of re‑appointment that he alleges has been fulfilled in relation to him and, if he specifies the prescribed condition of re‑appointment referred to in paragraph (2)(a) or (c), state whether his employment is to be terminated, or was terminated, on the ground of his misconduct; (d) shall specify the kind of employment in the Service in which he seeks to be engaged; and (e) shall, in a case where, by virtue of the operation of subsection 87M(1): (i) he had been promoted under section 50 to fill a vacant office in the Service, or had appealed under section 50B against the promotion of another person to fill such an office, before the day on which his employment is terminated; and (ii) the promotion had not taken effect or had not been cancelled before that day; set out particulars of the promotion or of the appeal, as the case may be. (6) The Board shall refer an application made to it under subsection (1) to a Re‑appointment Review Committee. (7) The Re‑appointment Review Committee to which an application under subsection (1) is referred shall inquire into the application and: (a) if it is satisfied that a prescribed condition of re‑appointment has been fulfilled in relation to the applicant: (i) determine that the applicant is eligible for re‑appointment to the Service with a specified classification and at a specified rate of salary; (ii) determine whether, having regard only to the period of the applicant’s service in the Service and in eligible public employment, the applicant should, in its opinion, be re‑appointed on probation; and (iii) if that prescribed condition is the condition referred to in paragraph (2)(d)—determine whether the period commencing on the day immediately following the day on which his employment was terminated and ending on the day immediately preceding the day on which he reports for duty in the Service or, if he furnishes a notification under paragraph 87Q(4)(b), on the day on which he attains the age of 65 years, or any part of that period, is to form part of his period of service for any purposes under this Act or any other Act (other than the Superannuation Act 1976 or the Superannuation Act 1990) and, if so, the purposes for which it is to form part of his period of service; and (b) if it is not so satisfied—determine that the applicant is not eligible for re‑appointment to the Service. (8) Where the Re‑appointment Review Committee that inquires into an application under subsection (1) is satisfied that the employment of the applicant was terminated on the ground of his misconduct, it shall not determine that he is eligible for re‑appointment to the Service unless it is satisfied that: (a) if the applicant had committed that misconduct while employed as an officer in the Service, it is likely that he would not have been dismissed from the Service; or (b) if the applicant had been dismissed from the Service by reason of that misconduct and had made application under section 63F for re‑appointment to the Service or under section 63G for the review of his dismissal from the Service, as the case may be, it is likely that a Disciplinary Appeal Committee would recommend his re‑appointment to the Service. (9) The Re‑appointment Review Committee that inquires into an application under subsection (1) by an applicant whose employment is to be, or has been, terminated in consequence of the annulment, for any reason, of his appointment while he is or was a probationary employee shall not determine that the applicant is eligible for re‑appointment to the Service unless it is satisfied that, if the applicant had been serving as an officer in the Service on probation, it is likely that his appointment to the Service would not have been annulled for that reason. (10) In making a determination under subsection (7), the Re‑appointment Review Committee shall have regard to: (a) the classification of the office occupied by the officer; or (b) in a case where the officer was an unattached officer—the classification of the officer as an unattached officer; immediately before he ceased, or last ceased, to be an officer and to all other relevant matters. (11) The Re‑appointment Review Committee that inquires into an application referred to it under subsection (6) may, under subsection (7): (a) determine that the applicant is eligible for re‑appointment to the Service whether or not the applicant is eligible for appointment to the Service under section 34; and (b) determine that the applicant is eligible for re‑appointment with a specified classification whether or not he has the academic or other qualifications (if any) applicable, in accordance with a notification in force under paragraph 33A(1)(d), to an office having that classification. (12) A determination of a Re‑appointment Review Committee shall be reduced to writing and a copy of the determination shall be furnished to the Board. (13) Where a Re‑appointment Review Committee determines, under subsection (7), that an applicant is not eligible for re‑appointment to the Service, the Board shall, as soon as practicable after it receives a copy of the determination, furnish a copy of the determination to the applicant. ##### 87P Application for re‑instatement as person to whom Division applies (1) Where: (a) a person: (i) has, on a day, ceased to be a person to whom this Division applies by reason of his employment in a public office or by a public authority having been terminated on the ground that he has been found by a Court to have committed a criminal offence (being a finding that has subsequently been nullified); and (ii) is engaged in eligible public employment; or (b) a person: (i) has, on a day, ceased to be a person to whom this Division applies by reason of the termination of his employment in a public office or by a public authority; (ii) is engaged in employment in that office, or in an office that is equivalent to, or as nearly as possible equivalent to, that office, or any employment of that authority, as the case may be; and (iii) became so engaged in circumstances similar to the circumstances in which a person may be re‑appointed to the Service under section 63G; this section applies to the person. (2) A person to whom this section applies may, subject to subsection (3), make application to the Board for re‑instatement as a person to whom this Division applies. (3) A person to whom this section applies is not entitled to make an application under subsection (2) if he has attained the age of 65 years. (4) An application under subsection (2): (a) shall be in writing; (b) in the case of an application made by an applicant in relation to whom the finding of a court has been nullified: (i) shall be made within the period of 30 days, or within such further period as the Board allows, after the day on which the finding of the court was nullified; (ii) shall set out particulars of the criminal offence to which the finding related; and (iii) shall contain a statement whether the applicant has made an application under subsection 87N(1) in connexion with the finding; and (c) in the case of an application made by an applicant who has become engaged in employment in circumstances similar to the circumstances in which a person may be re‑appointed to the Service under section 63G: (i) shall be made within the period of 30 days, or within such further period as the Board allows, after the day on which he became so engaged in the employment; and (ii) shall contain a brief statement of the circumstances in which he ceased, or last ceased, to be a person to whom this Division applies. (5) The Board shall refer an application made to it under subsection (2) to a Re‑appointment Review Committee. (6) Where a person who has made an application under subsection (2) attains the age of 65 years before a determination is made under subsection (7) in respect of the application, the application lapses upon his attaining that age. (7) The Re‑appointment Review Committee to which an application under subsection (2) is referred shall inquire into the application and: (a) if it is satisfied that it is, in all the circumstances, reasonable that this Division should apply in relation to the applicant—determine that the applicant shall be deemed not to have ceased, on the day referred to in subparagraph (1)(a)(i) or (1)(b)(i), as the case may be, to be a person to whom this Division applies; and (b) if it is not so satisfied—dismiss the application. (8) A determination of a Re‑appointment Review Committee under this section shall be reduced to writing and copies of the determination shall be furnished to the Board and to the applicant. ##### 87Q Re‑appointment to Service (1) Where a Re‑appointment Review Committee determines, under subsection 87N(7), that an applicant is eligible for re‑appointment to the Service, the Board shall, as soon as practicable after it receives a copy of the determination, furnish a copy of the determination to the applicant together with a notice, in writing, informing the applicant that he is eligible for re‑appointment to the Service in a specified Department as an unattached officer with the classification specified in the determination. (2) A notice given by the Board under subsection (1) shall specify: (a) the place at which the applicant should report for duty; and (b) the nature of the duties on which he will be engaged upon commencing to perform duty in the Service. (3) Where a person who has made an application under subsection 87N(1): (a) has received a notice under subsection (1) of this section; and (b) attains the age of 65 years while engaged in the eligible public employment in respect of which a prescribed condition of re‑appointment is specified in the application as having been fulfilled; this section ceases to apply to and in relation to him upon his attaining that age. (4) Subject to subsection (3), where, within the period of 21 days, or within such further period as the Board allows, after a person receives a notice under subsection (1), the person: (a) if he has not attained the age of 65 years—reports for duty at the place specified in the notice; or (b) if he has attained, or will, within that period or further period, attain, the age of 65 years—notifies the Board, in writing, that he wishes to be re‑appointed to the Service in accordance with the notice; the person shall be deemed: (c) to have been re‑appointed to the Service under this section on the day (in this subsection referred to as the day of re‑appointment) immediately following the day on which his employment by the relevant public authority or as the holder of the relevant public office, as the case may be, was terminated or ceased; (d) to have been so re‑appointed as an unattached officer with the classification specified in the notice; and (e) to have been absent from the Service on leave of absence without pay during the period (if any) from and including the day of re‑appointment to and including the day immediately preceding the day on which he reports for duty in the Service, or attains the age of 65 years, as the case may be. (5) A person who has made an application under subsection 87N(1) and is deemed to have been re‑appointed to the Service under this section shall be deemed to have been so re‑appointed without probation unless the Re‑appointment Review Committee that inquired into his application has determined that the applicant should be re‑appointed on probation. (6) Where a person is, under subsection (4), to be deemed to have been re‑appointed to the Service on an application made under section 87N on the ground that a prescribed condition of re‑appointment, other than the condition referred to in paragraph 87N(2)(d), had been fulfilled in relation to him, the period during which he is, by virtue of that subsection, to be deemed to have been absent from the Service on leave of absence without pay shall form part of his period of service under this Act for all purposes of this Act and the Long Service Leave (Commonwealth Employees) Act 1976. (7) A person who receives a notice under subsection (1) ceases to be entitled to be re‑appointed to the Service under this section if he does not report for duty or notify the Board in accordance with subsection (4). ##### 87R Re‑appointment in special circumstances (1) Notwithstanding any other provision of this Act, the Board may re‑appoint a person to whom this Division applies to the Service if it is satisfied that there are special circumstances justifying it in doing so. (2) A person who is re‑appointed to the Service under subsection (1) shall be re‑appointed: (a) as an unattached officer; (b) without probation, unless the Board, by instrument in writing, otherwise determines; (c) with the same classification as he had immediately before he ceased, or last ceased, to be an officer or, if there is no longer such a classification, with such classification as the Board considers appropriate; and (d) at the salary payable to the holder of an office having that classification or, if a range of salary is applicable to that office, at such salary within that range as the Board considers appropriate. ##### 87S Rights of officers upon re‑appointment (1) This section applies to a person who: (a) is deemed to have been re‑appointed to the Service under section 87M or 87Q; or (b) is re‑appointed to the Service under section 87R. (2) There shall be ascertained, in a manner determined by the Board, in writing, the period (if any) of leave of absence for recreation and the period (if any) of leave of absence on account of illness that is applicable to a person to whom this section applies on his re‑appointment and, if such a period is applicable to him, he shall be credited with that period. (3) Where, on the day on which a person to whom this section applies ceased, or last ceased, to be an officer: (a) section 75A, 81K or 81V of this Act or section 14 of the Statistics (Arrangements with States) Act 1956 applied to the person; or (b) a determination under section 81ZV of this Act, or under section 12 of the Aboriginal Affairs (Arrangements with the States) Act 1973, relating to long service leave applied to the person; that section or that determination, as the case may be, applies to him as if he had continued in the Service since that day, unless, since that day, he has made an election under subsection 87L(1). (6) Where a person to whom this section applies, being a person whose employment by a Commonwealth authority was terminated otherwise than on the ground of his misconduct, is, under subsection 87Q(4), to be deemed to have been absent from the Service on leave of absence without pay for a period immediately following his re‑appointment under section 87Q, he is entitled to be paid by the authority, in consequence of the termination of his employment, an amount equal to the amount of salary and allowances (if any) that would have been payable to him by the authority if, during that period, he had continued to be employed by the authority and to perform the duties that he was performing immediately before the termination of his employment. (7) An amount payable by a Commonwealth authority to a person under subsection (6) is payable: (a) if the authority has funds under its control that are lawfully available to pay the remuneration and allowances payable to the persons employed by it—out of those funds; or (b) in any other case—by the Commonwealth out of moneys lawfully available for the purpose. ##### 87SA Person electing to be retired (1) This section applies to a person to whom this Division applies and who, after the commencement of this section, elects to be retired from the employment because of which he or she is a person to whom this Division applies. (2) Unless the person resigned from the employment before the election is accepted by the employing authority, he or she ceases to be a person to whom this Division applies when the election is accepted. (3) If, immediately after the employment ceases, the person is engaging in any other employment, he or she does not, by engaging in that other employment, continue to be a person to whom this Division applies. ##### 87SB Excess employee failing to apply for re‑appointment (1) This section applies to a person to whom this Division applies and who: (a) after the commencement of this section, becomes excess in relation to the employment because of which he or she is a person to whom this Division applies; and (b) is notified, as prescribed, by the employing authority of the effect in relation to the person of the operation of this section; and (c) does not, before the end of 28 days after the date on which he or she so became excess or the date on which he or she was so notified, whichever is the later date, apply to the Commissioner for re‑appointment to the Service. (2) Unless the person ceased to be a person to whom this Division applies before the end of the period referred to in paragraph (1)(c), he or she ceases at the end of that period to be a person to whom this Division applies. (3) If the person ceases to be excess in relation to his or her employment as mentioned in paragraph (1)(a) and continues in that employment, the preceding provisions of this section do not apply, and are taken never to have applied, to the person because of his or her having so been excess. ##### 87SC Excess employee applying for re‑appointment to Service (1) This section applies to a person to whom this Division applies and who: (a) after the commencement of this section, becomes excess in relation to the employment because of which he or she is a person to whom this Division applies; and (b) is notified, as prescribed, by the employing authority of the effect in relation to the person of the operation of this section; and (c) applies to the Commissioner, before the end of 28 days after the date on which he or she so became excess or the date on which he or she was so notified, whichever is the later date, for re‑appointment to the Service; and (d) is so re‑appointed. (2) Any act or thing validly done by the employing authority in relation to the employment referred to in paragraph (1)(a) in respect of the compulsory or voluntary retirement or retrenchment, or possible compulsory or voluntary retirement or retrenchment, of the person from that employment is to be treated as if it had been the corresponding act or thing done by the relevant Secretary in respect of the person’s employment in the Service and had been validly done under the Public Service Redundancy Award. (3) Without limiting the generality of subsection (2): (a) the retention period provided for by the Public Service Redundancy Award in relation to the person’s employment in the Service is taken to have begun on the date on which he or she became excess as mentioned in paragraph (1)(a); and (b) if the employing authority in relation to the employment referred to in paragraph (1)(a) makes a valid decision to pay to the person an amount in lieu of his or her continuing in that employment for the relevant retention period applicable in relation to that employment, then, upon the making of the decision, the retention period provided for by the Public Service Redundancy Award in relation to the person’s employment in the Service is taken to have expired. ### Division 4—Officers to whom Officers’ Rights Declaration Act or Trade Commissioners Act applies ##### 87TA Preservation of rights of certain officers Where: (a) on the commencing day, an officer is engaged in eligible Commonwealth employment; and (b) the repealed Officers’ Rights Declaration Act 1928, or the former section 6 of the Trade Commissioners Act 1933, applied to him in respect of the employment (if any) in which he was engaged immediately before that day; then, notwithstanding the repeal of the Officers’ Rights Declaration Act 1928: (c) that Act as amended and in force immediately before that day continues to apply, or applies, as the case requires, on and after that day, by force of this section, to and in relation to him, and he retains his existing and accruing rights, until the expiration of the day on which: (i) he becomes engaged in employment other than eligible Commonwealth employment; (ii) he is appointed to an office in the Service; (iii) he ceases to be an officer; or (iv) he makes an election, or appeals against the promotion of another person to fill a vacant office in the Service, under subsection 87U(2); whichever first occurs; and (d) for the purpose of determining those rights, his service in eligible Commonwealth employment during the period during which the first‑mentioned Act so continues to apply, or so applies, as the case requires, shall be taken into account as if it were service in the Service. ##### 87U Rights of officers to whom repealed Officers’ Rights Declaration Act applies (1) This section applies to an officer engaged in eligible public employment to whom the repealed Officers’ Rights Declaration Act 1928 applies by virtue of section 87TA. (2) An officer to whom this section applies: (a) may elect, by notice in writing delivered to the Board, that the provisions of the repealed Officers’ Rights Declaration Act 1928, shall cease to apply to him; or (b) may appeal under section 50B of this Act against the promotion of another person to fill a vacant office in the Service. (3) Where an officer who appeals under subsection (2) against the promotion of another person to fill a vacant office in the Service becomes, under subsection 87C(1), an officer to whom Division 2 applies in consequence of his so appealing, that Division applies to and in relation to him in respect of the appeal as if he had appealed against that promotion immediately after he became an officer to whom that Division applies. (4) Where an officer who appeals under subsection (2) against the promotion of another person to fill a vacant office in the Service ceases, under subsection 87V(1), to be an officer in consequence of his so appealing and becomes, under subsection 87K(2), a person to whom Division 3 applies, that Division applies to and in relation to him in respect of the appeal as if he had appealed against that promotion immediately after that Division commenced to apply to him. ##### 87UA Officer electing to be retired (1) This section applies to an officer to whom the repealed Officers’ Rights Declaration Act 1928 applies because of section 87TA and who, after the commencement of this section, elects to be retired from the employment because of which he or she is an officer to whom that repealed Act applies. (2) Unless the officer resigned from the Service before the election is accepted by the employing authority, he or she is taken, for the purposes of this Act, to have resigned from the Service when the election is accepted. (3) If, before the election is accepted, the officer elects that the provisions of that repealed Act are to cease to apply to him or her, section 87SA applies to the officer as if he or she were a person to whom Division 3 applied when the election was made. ##### 87UB Excess officer failing to apply for appointment to an office in the Service (1) This section applies to an officer to whom the repealed Officers’ Rights Declaration Act 1928 applies because of section 87TA and who: (a) after the commencement of this section, becomes excess in relation to the employment because of which he or she is an officer to whom that repealed Act applies; and (b) is notified, as prescribed, by the employing authority of the effect in relation to the officer of the operation of this section; and (c) does not, before the end of 60 days after the date on which he or she so became excess or the date on which he or she was so notified, whichever is the later date, apply to the Commissioner to be appointed to an office in the Service. (2) Unless the officer resigned from the Service or made an election referred to in subsection (3) before the end of the period referred to in paragraph (1)(c), he or she is taken, for the purposes of this Act, to have resigned from the Service at the end of that period. (3) If, within the period referred to in paragraph (1)(c), the officer elects that the repealed Officers’ Rights Declaration Act 1928 is to cease to apply to him or her, subsection 87SB(1) has effect as if he or she had been a person to whom Division 3 applied when he or she became excess in relation to his or her employment as mentioned in paragraph (1)(a). (4) If the officer ceases to be excess in relation to his or her employment as mentioned in paragraph (1)(a) and continues in that employment, the preceding provisions of this section do not apply, and are taken never to have applied, to the officer because of his or her having so been excess. ##### 87UC Excess officer applying for appointment to an office in the Service (1) This section applies to an officer to whom the repealed Officers’ Rights Declaration Act 1928 applies and who: (a) after the commencement of this section, becomes excess in relation to the employment because of which he or she is an officer to whom that repealed Act applies; and (b) is notified, as prescribed, by the employing authority of the effect in relation to the officer of the operation of this section; and (c) applies to the Commissioner, before the end of 60 days after the date on which he or she so became excess or the date on which he or she was so notified, whichever is the later date, to be appointed to an office in the Service; and (d) is so appointed. (2) If, within the period referred to in paragraph (1)(c), the officer elects that the repealed Officers’ Rights Declaration Act 1928 is to cease to apply to him or her, subsection 87SC(1) has effect as if he or she had been a person to whom Division 3 applied when he or she became excess in relation to his or her employment as mentioned in paragraph (1)(a). (3) If the office to which the officer is appointed is abolished within 14 days after the officer is appointed to that office: (a) any act or thing validly done by the employing authority in relation to the employment referred to in paragraph (1)(a) in respect of the compulsory or voluntary retirement or retrenchment, or possible compulsory or voluntary retirement or retrenchment, of the officer from that employment is to be treated as if it had been the corresponding act or thing done by the relevant Secretary in respect of the officer’s employment in the Service and had been validly done under the Public Service Redundancy Award; and (b) without limiting the generality of paragraph (a): (i) the retention period provided for by the Public Service Redundancy Award in relation to the officer’s employment in the Service is taken to have begun on the date on which he or she became excess as mentioned in paragraph (1)(a); and (ii) if the employing authority in relation to the employment referred to in paragraph (1)(a) makes a valid decision to pay to the officer an amount in lieu of his or her continuing in that employment for the relevant retention period applicable in relation to that employment, then, upon the making of the decision, the retention period provided for by the Public Service Redundancy Award in relation to the officer’s employment in the Service is taken to have expired. ##### 87V Effect of repealed Officers’ Rights Declaration Act ceasing to apply to officer (1) Where the repealed Officers’ Rights Declaration Act 1928 ceases to apply to an officer (otherwise than by reason of his ceasing to be an officer or by reason of his resuming duty in the Service) at the expiration of a day (in this section referred to as the relevant day): (a) if the officer has, at the expiration of the relevant day, been continuously employed by a public authority, or by 2 or more public authorities in succession, for a period of not less than 3 years and that Act has applied to him throughout the whole of that period—the officer also ceases, by force of this subsection, to be an officer at the expiration of the relevant day; (b) if the officer has, on or before the relevant day, made an election under section 5 of that Act in respect of the employment in which he is engaged on that day—the officer also ceases, by force of this subsection, to be an officer at the expiration of the relevant day; or (c) in any other case—the officer continues, by force of this subsection, to be an unattached officer until: (i) his promotion to an office in the Service takes effect; (ii) he is transferred to such an office under section 49, 50, 50DA or 53; (iii) he ceases to be an officer; or (iv) he resumes duty in the Service; whichever first occurs. (2) If a person who is an unattached officer by virtue of subsection (1) is employed by a public authority, or 2 or more public authorities in succession, for a continuous period of 3 years, he ceases to be an officer at the expiration of that period. (3) In the application of subsection (1) or (2) in relation to a person who is employed by a public authority on the relevant day, any period (which may be, or may include, a period before the commencing day) ended on the day immediately preceding the relevant day during which the Officers’ Rights Declaration Act 1928 applied to him in respect of his employment by a body shall be deemed to be a period during which he was employed by a public authority. (4) The Board may, if it thinks fit, determine that this section shall have effect in relation to an officer, or officers included in a class of officers, as if references in this section to 3 years were references to such longer period as the Board specifies in the determination. (5) Where an officer who is engaged in eligible Commonwealth employment ceases, under subsection (1), to be an officer upon his ceasing to be a person to whom the repealed Officers’ Rights Declaration Act 1928 applies, but does not also cease to be engaged in eligible Commonwealth employment, he retains, in respect of the employment in which he is engaged, such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as had accrued to him immediately before he so ceased to be an officer. ### Division 5—Special provisions relating to certain persons ##### 87X Interpretation In this Division, unless the contrary intention appears: > Commission means the Australian Postal Commission or the Australian Telecommunications Commission. > prescribed employment means: (a) employment as the holder of the office of Managing Director or Chief General Manager of a Commission, or of an office of Chairman of a Promotions Appeal Board, under the Postal Services Act 1975 or the Telecommunications Act 1975; or (b) employment as an officer or employee in the service of a Commission. ##### 87Y Provisions relating to certain officers on leave under section 71 and engaged in prescribed employment (1) This section applies to an officer who: (a) on the commencing day, is engaged in prescribed employment; and (b) on the day immediately preceding the commencing day, was: (i) engaged in prescribed employment; and (ii) absent from the Service on leave of absence granted under section 71, in respect of a period ending on or after the commencing day, for the purpose of enabling him to engage in that employment. (2) An officer to whom this section applies shall: (a) if he has, at the expiration of the day immediately preceding the commencing day, been continuously engaged in prescribed employment for a period of not less than 3 years and has throughout that period, been absent from the Service on leave of absence granted under section 71, be deemed to have ceased to be an officer at the expiration of that day; or (b) in any other case—be deemed to have ceased to be absent from the Service on leave of absence granted under section 71 at the expiration of the day immediately preceding the commencing day. (3) If an officer to whom this section applies who is not deemed, by reason of subsection (2), to have ceased to be an officer at the expiration of the day immediately preceding the commencing day is employed by a public authority, or by 2 or more public authorities in succession, for a continuous period equal to the relevant period, being a period commencing on the commencing day, he ceases to be an officer at the expiration of that continuous period. (4) For the purposes of subsection (3), the relevant period, in relation to an officer to whom this section applies, is the period ascertained by subtracting from 3 years a period equal to the continuous period that ended on the day immediately preceding the commencing day during which the officer was employed as an officer or employee in the service of a Commission and was absent from the Service on leave of absence granted under section 71 for the purpose of enabling him to become so employed. (5) Where a person ceases to be an officer under subsection (3), the Board shall cause notice in writing of the cessation to be given to the person and to be given to the public authority by which he is employed, or, if he is to be taken to be employed by a public authority by virtue of the operation of subsection 87(2), (3) or (4), to such other person as the Board considers appropriate. ##### 87Z Provisions relating to certain officers on leave under section 71 and employed in Northern Territory Public Service (1) This section applies to an officer who: (a) on the day (in this section referred to as the prescribed day) on which regulations made for the purposes of subsection 87(4) in respect of the Public Service of the Northern Territory take effect, is engaged in employment in that Public Service; (b) on the day immediately preceding the prescribed day, was: (i) engaged in employment in that Public Service; and (ii) absent from the Service on leave of absence granted under section 71, in respect of a period ending on or after the prescribed day, for the purpose of enabling him to engage in that employment; and (c) immediately before the prescribed day, the officer is absent from the Service on leave of absence so granted under section 71 in respect of a period ending on or after the prescribed day. (2) An officer to whom this section applies shall: (a) if he has, at the expiration of the day immediately preceding the prescribed day, been continuously employed in the Public Service of the Northern Territory for a period (which may be, or may include, a period before the commencing day) of not less than 3 years and has, throughout that period, been absent from the Service on leave of absence granted under section 71, be deemed to have ceased to be an officer at the expiration of that day; or (b) in any other case—be deemed to have ceased to be absent from the Service on leave of absence granted under section 71 at the expiration of the day immediately preceding the prescribed day. (3) If an officer to whom this section applies who is not deemed, by reason of subsection (2), to have ceased to be an officer at the expiration of the day immediately preceding the prescribed day is employed by a public authority, or by 2 or more public authorities in succession, for a continuous period equal to the relevant period, being a period commencing on the prescribed day, he ceases to be an officer at the expiration of that continuous period. (4) For the purposes of subsection (3), the relevant period, in relation to an officer to whom this section applies, is the period ascertained by subtracting from 3 years a period equal to the continuous period (which may be, or may include, a period before the commencing day) that ended on the expiration of the day immediately preceding the prescribed day during which the officer was employed in the Public Service of the Northern Territory and was absent from the Service on leave of absence granted under section 71 for the purpose of enabling him to become so employed. (5) Where a person ceases to be an officer under subsection (3), the Board shall cause notice in writing of the cessation to be given to the person and to be given to the public authority by which he is employed, or, if he is to be taken to be employed by a public authority by virtue of the operation of subsection 87(2), (3) or (4), to such other person as the Board considers appropriate. ##### 87ZA Provisions relating to former officers who resigned to join certain commissions (1) This section applies to a person who resigned or retired from the Service for the purpose of becoming engaged in prescribed employment if: (a) the person has, throughout the period that commenced on the day on which he became engaged in that employment and ends on the commencing day, been engaged in that employment, or in that employment and other employment, being: (i) eligible Commonwealth employment; or (ii) employment, other than eligible Commonwealth employment, of such a kind that the Officers’ Rights Declaration Act 1928 would have applied to him in respect of that employment, if, immediately before he became engaged in that employment, he had been an officer or a person to whom that Act applied; (b) the person has not, on the commencing day, attained the age of 65 years; and (c) the period referred to in paragraph (a) does not exceed 3 years. (2) A person to whom this section applies shall be deemed to have been appointed to the service on the commencing day: (a) as an unattached officer; and (b) without probation, unless the Board, by instrument in writing, otherwise determines. (3) A person to whom this section applies retains the rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness that had accrued to him immediately before he resigned or retired from the Service and, for the purpose of ascertaining his credits of leave of absence for recreation and leave of absence on account of illness, respectively: (a) his service during the period referred to in subsection (1) shall be treated as if it had been service in the Service; and (b) if he received, upon resigning or retiring from the Service, a payment in lieu of his recreation leave credit, his credit of leave of absence for recreation shall be reduced by a period equal to that leave credit. (4) Where, immediately before a person to whom this section applies resigned or retired from the Service as set out in subsection (1): (a) section 75A, 81K or 81V of this Act or section 14 of the Statistics (Arrangements with States) Act 1956 applied to him; or (b) a determination under section 81ZV of this Act, or under section 12 of the Aboriginal Affairs (Arrangements with the States) Act 1973, relating to long service leave applied to him; that section or that determination, as the case may be, applies to him as if he had not so resigned or retired from the Service and as if his service during the period referred to in that subsection were service in the Service. (5) If a person to whom this section applies is employed by a public authority, or by 2 or more public authorities in succession, for a continuous period equal to the relevant period, being a period commencing on the commencing day, he ceases to be an officer at the expiration of that continuous period. (6) For the purposes of subsection (5), the relevant period, in relation to a person to whom this section applies, is the period ascertained by subtracting from 3 years a period equal to the continuous period ended on the day immediately preceding the commencing day during which the person was engaged in employment of a kind or kinds referred to in subsection (1). (7) Where a person ceases to be an officer under subsection (5), the Board shall cause notice in writing of the cessation to be given to the person and to be given to the public authority by which he is employed, or, if he is taken to be employed by a public authority by virtue of the operation of subsection 87(2), (3) or (4), to such other person as the Board considers appropriate. ##### 87ZC Status of certain persons engaged in eligible Commonwealth employment (1) The Board may, with the approval of the Governor‑General, declare, by declaration published in the Gazette: (a) a branch of the Service to have been a declared Branch of the Service for the purposes of this section during a specified period, being a period that ended before the commencing day; and (b) offers of employment: (i) as holders of specified Commonwealth offices or of offices included in a specified class of Commonwealth offices; or (ii) by a specified Commonwealth authority; that have, during that period, been made to: (iii) officers who held, who were performing the duties of, offices in that branch; or (iv) unattached officers who were performing duties in that branch; to have been declared offers of employment that related to the officers of that branch for the purposes of this section. (2) Where: (a) an officer who held, or was performing the duties of, an office in, or an unattached officer who was performing duties in, a declared branch of the Service became, during the period specified in the declaration under subsection (1) that relates to that branch, engaged in employment: (i) as the holder of a Commonwealth office; or (ii) by a Commonwealth authority; in accordance with the terms of a declared offer of employment that related to officers of that branch; and (b) the officer has been engaged in eligible Commonwealth employment throughout the period that commenced on the day on which he became so engaged in employment and ends on the commencing day, or, if the declaration is published in the Gazette after the commencing day, on the day on which the declaration is so published; he ceases to be an officer at the expiration of the day immediately preceding the last day of that period. (3) Where a person ceases to be an officer under subsection (2), the Board shall cause notice in writing of the cessation to be given: (a) in the case of a person who is the holder of a Commonwealth office—to the Secretary of the Department to which he is, by virtue of holding that office, attached for administrative purposes; and (b) in the case of a person who is employed by a Commonwealth authority—to that authority; and the Secretary or that authority, as the case may require, shall, as soon as practicable after receiving the notice, cause a copy of the notice to be given to the person. ##### 87ZCA Postponement of effect of resignation in certain circumstances (1) If: (a) a person who is an officer to whom Division 2 applies makes an election under subsection 87K(13) and resigns from the Service; and (b) when he or she resigns, the person holds a Commonwealth office; and (c) one of the following events occurs: (i) the Commonwealth office is abolished; (ii) the period for which the appointment was made expires; (iii) the appointment is terminated before the end of the period for which it was made; the Prime Minister may direct, in writing, that the person is to be taken not to have resigned from the Service but to have continued as an officer until a specified date. (2) If a direction is given under subsection (1), the person is to be taken to have continued, or to continue, as an officer according to the direction. (3) The Prime Minister may, at any time, in writing, vary a direction under subsection (1) by substituting for the date specified in the direction another date, and the direction has effect as so varied. (4) The terms and conditions on which a person is to be taken to have continued, or to continue, as an officer are those specified in, or ascertained in accordance with, the direction under subsection (1). (5) If a direction is given under subsection (1): (a) the resignation from the Service of the person to whom the direction relates is to be taken to have had effect on the date specified in the direction; and (b) subsection 87K(13) has effect as if the resignation had taken effect on the date specified in the direction. ### Division 6—Miscellaneous ##### 87ZD Promotion of certain former officers (1) Where: (a) a person (in this section referred to as the former officer) who ceases to be an officer by reason of subsection 87D(1), 87V(2), 87Y(3), 87Z(3), 87ZA(5) or 87ZC(2), or is deemed, by reason of subsection 87J(6), to have ceased to be an officer: (i) had, on or before the day (in this section referred to as the relevant day) on which he was so deemed to have ceased to be an officer, been promoted under section 49B, 50 or 50DA to fill a vacant office in the Service; (ii) had, on or before the relevant day, appealed under section 50B against the promotion of another person to fill such an office; or (iii) would, if he had continued to be an officer on the relevant day, have had, on that day, a right to appeal under section 50B against the promotion of another person to fill such an office, being a promotion made before that day; and (b) the promotion had not taken effect, or had not been cancelled, before the relevant day; the relevant provisions of this Act apply to and in relation to the promotion as if: (c) the former officer had, on the day on which the promotion was made, been a person to whom Division 3 applies; and (d) anything done in relation to the former officer for the purposes of the promotion before the relevant day had been done under the relevant provisions of this Act. (2) In subsection (1), relevant provisions of this Act means the provisions of sections 49B, 50 to 50H (inclusive), 51AA and 53 or, if those provisions are, for the purposes of Division 3, modified by the regulations, those provisions as so modified. ##### 87ZE Continuity of employment by public authorities (1) Where a continuous period of employment of an officer by a public authority has commenced after, but not immediately after, the expiration of a continuous period of previous employment of the officer by such an authority, those periods of employment shall, for the purposes of this Part, be deemed to be continuous with one another if the officer was, throughout the period that commenced on the expiration of the second‑mentioned period of employment and ended immediately before the commencement of the first‑mentioned period of employment, the holder of a public office or the holder of 2 or more public offices in succession. (2) Where: (a) a continuous period of employment of an officer by a public authority has commenced after, but not more than 3 months after, the expiration of a continuous period of previous employment of the officer in eligible public employment; and (b) the officer was, throughout the period that commenced on the expiration of the second‑mentioned period of employment and ended immediately before the commencement of the first‑mentioned period of employment, performing duty in the Service; those periods of employment shall, for the purposes of this Part, be deemed to be continuous with one another unless the Board, being satisfied that it is in all the circumstances fair to do so, declares, by instrument in writing, that those periods shall not be so deemed to be continuous with one another. (3) Where: (a) a continuous period of employment of an officer by a public authority is followed immediately by a period throughout which he: (i) was not engaged in eligible public employment; (ii) was not performing duty in the Service; and (iii) was not absent from the Service on leave of absence granted under this Act; and (b) upon the expiration of the second‑mentioned period, if he has not ceased to be an officer, he becomes employed by a public authority; the first‑mentioned continuous period of employment and his continuous period of employment by that public authority or in the Service, as the case may be, that followed the second‑mentioned period shall be deemed to be continuous with one another. (4) Where: (a) a person who was a person to whom Division 2 applied: (i) ceased to be such a person by reason of his having retired from employment by a public authority in order to become a candidate for election as a member of a House of the Parliament of the Commonwealth or of a State or of the Legislative Assembly for the Australian Capital Territory or of the Legislative Assembly of the Northern Territory or a prescribed legislative or advisory body for another Territory; (ii) retired also from the Service; (iii) was a candidate at the election; and (iv) failed to be elected; (b) those retirements took effect not earlier than 1 month before the date on which nominations for the election closed; and (c) the person has, upon applications made within 2 months after the declaration of the result of the election, been re‑employed by that public authority and re‑appointed to the Service under section 47C; he shall be deemed to have continued in the employment of that public authority as if he had not retired and had been on leave of absence without pay during the period from and including the day on which his retirement became effective to and including the day on which he was so re‑employed. (5) Where: (a) a person who was a person to whom Division 3 applied: (i) ceased to be such a person by reason of his having retired from employment by a public authority in order to become a candidate for election as a member of a House of the Parliament of the Commonwealth or of a State or of the Legislative Assembly for the Australian Capital Territory or of the Legislative Assembly of the Northern Territory or a prescribed legislative or advisory body for another Territory; (ii) was a candidate at the election; and (iii) failed to be elected; (b) the retirement took effect not earlier than 1 month before the date on which nominations for the election closed; and (c) the person has been re‑employed by that public authority upon application made within 2 months after the declaration of the result of the election; he shall be deemed to have continued in the employment of that public authority as if he had not retired and had been on leave of absence without pay during the period from and including the day on which his retirement became effective and to and including the day on which he was so re‑employed. ##### 87ZF Service of documents (1) A document required by this Part to be given or furnished to a person shall be given or furnished: (a) by delivering the document to that person personally; (b) by prepaying and posting the document as a letter addressed to that person at his last known place of abode; or (c) by leaving the document at the last known place of abode of that person with some person apparently an inmate of that place and apparently not less than 16 years of age. (2) Where a document required by this Part to be given or furnished to a person is posted as a letter in accordance with this section, the document shall, unless the contrary is proved, be deemed to have been given or furnished at the time at which the letter would have been delivered in the ordinary course of post. ##### 87ZG Revocation of determinations by Board Where the Board has made a determination under this Part, the Board may at any time revoke the determination. ## Part V—Miscellaneous ##### 88 Performance of duties of officer in absence (1) Where by any Act, Order in Council, rule, regulation, by‑law, contract, or agreement, any duty, obligation, right, or power is imposed or conferred upon the officer holding an office in Her Majesty’s Service (other than the office of a Minister or a judicial office), that duty, obligation, right, or power may be performed or exercised by any officer directed by the Governor‑General to perform and exercise the duties, obligations, rights, and powers of the first‑mentioned officer while the first‑mentioned officer is absent or not available to perform his duties or during a vacancy in the office, in the same manner and to the same extent in all respects as it might have been performed or exercised by the first‑mentioned officer, and everything so done under the provisions of this section shall be as good and effectual for all purposes, and against all persons whatsoever, as if done by the first‑mentioned officer. (2) Where an office referred to in subsection (1) is an office in a Department, an officer temporarily performing the duties of that office under this Act may perform or exercise any duty, obligation, right or power that he would have been able to perform or exercise if the Governor‑General had given a direction to him under subsection (1) in relation to that office. ##### 88A Powers of Prime Minister A power conferred on the Prime Minister by this Act may be exercised on the Prime Minister’s behalf by another Minister authorised by the Prime Minister to do so. ##### 89 Conditions of occupancy of residential premises Where premises owned or occupied by the Commonwealth are occupied for residential purposes by an officer or employee, the occupation of those premises by the officer or employee, as the case may be, shall be subject to such conditions (if any) as are determined, by instrument in writing, by the Minister administering the Department controlling the premises. ##### 89A Protection of persons in respect of work reports on officers or employees (1) An action or proceeding does not lie against a person for or in respect of any oral or written report made in good faith by the person on or in connection with: (a) work performed, or proposed to be performed, by an officer or employee; or (b) conduct of an officer or employee. (2) A report shall be deemed to have been made in good faith if the person by whom the report was made was not actuated by ill will to the officer or employee affected or by any other improper motive. (3) Subsection (1) does not apply in relation to a report unless: (a) the person who made the report believed on reasonable grounds that it was the function or duty of the person to whom the report was made to receive the report; and (b) in the case of a report containing matter that was false or misleading in a material respect, the person who made the report did not know, and could not with reasonable diligence have ascertained, that the report contained matter that was so false or misleading. ##### 90 Payments to officers (1) Nothing in this Act shall authorize the expenditure of any greater sum out of the Consolidated Revenue Fund, by way of payment of any salary, than is from time to time appropriated by the Parliament for the purpose. (3) Payments of money to officers or employees, other than for salary or for allowances or expenses which may be paid under the regulations or under determinations in force under subsection 9(7A) or section 82D, shall be made only under the authority of the Board. ##### 90A Staff Suggestions Schemes (1) The Secretary of a Department may formulate and operate a Staff Suggestions Scheme to encourage officers and employees to make suggestions for achieving any of the following objects: (a) the promotion or improvement of efficiency, or the effecting of economies, in the management and working of the Department; (b) the improvement of the standard of safety in the operations of the Department. (2) Without limiting the generality of subsection (1), a Staff Suggestions Scheme may make provision for the Secretary to authorize the making of payments to officers and employees who make suggestions which, in the opinion of the Secretary, have resulted, or are likely to result, in the achievement of an object referred to in subsection (1). (3) A Secretary may vary or discontinue a Staff Suggestions Scheme. ##### 91 Performance of work outside the Service (1) Except with the express permission of the Secretary of the Department, which permission may at any time be withdrawn, an officer of a Department shall not: (a) accept or continue to hold an office in or under the Government of any State, or in or under any public or municipal corporation; (b) accept or continue to hold or discharge the duties of, or be employed in a paid office in connexion with, any banking, insurance, mining, mercantile, or other commercial business whether carried on by any corporation, company, firm or individual; (c) engage in or undertake any such business, whether as principal or agent; (d) engage or continue in the private practice of any profession occupation or trade, or enter into any employment, whether remunerative or not, with any person, company or firm who or which is so engaged; (da) act as a director of a company or incorporated society, otherwise than in accordance with the requirements of the duties of the officer’s office or otherwise on behalf of the Commonwealth; or (e) accept or engage in any remunerative employment other than in connexion with the duties of his office or offices under the Commonwealth. (2) Nothing herein contained shall be deemed to prevent an officer from becoming a member or shareholder only of any incorporated company, or of any company or society of persons registered under any law in any State or elsewhere. ##### 91A Officers receiving remuneration additional to salary (1) Where an officer receives, in addition to the salary payable to him under this Act, any other amount by way of remuneration or allowance for the performance of services, and the Board directs, by notice in writing given to that officer, that this section shall apply to that remuneration or allowance, this section shall apply accordingly and that officer shall be deemed to receive that remuneration or allowance on behalf of the Commonwealth and shall pay to the Commonwealth any amount of that remuneration or allowance received by him. (2) The amount of any remuneration or allowance received by an officer to which, by virtue of a notice given to that officer under the last preceding subsection, this section applies, shall be any amount received by the officer for the performance of services during such period (whether before or after the commencement of this section but not being earlier than 1 July 1947) as is specified in that notice. ##### 92 Effect of appointments etc. by Board etc. (1) Every appointment, promotion, transfer, retirement, or dismissal of an officer made by the Board or a Secretary under this Act shall for all purposes have the same force and effect as if made by the Governor‑General. (2) Notice of every appointment, promotion, retirement, or dismissal of officers, of every transfer of officers to whom Division 2 of Part IV applies, of every promotion or transfer of persons to whom Division 3 of that Part applies and of all Orders in Council or proclamations under this Act, shall be published in the Gazette. ##### 96 Personation etc. at examinations (1) A person shall not: (a) personate another person at an examination held under this Act; (b) permit another person to personate him at an examination held under this Act; or (c) before the time at which an examination is to be held under this Act: (i) improperly obtain possession of; or (ii) except with proper authority, furnish to a person, an examination paper that has been set for that examination or particulars relating to such an examination paper. Penalty: Imprisonment for 12 months. (2) In subsection (1), examination includes a test. ##### 97 Regulations (1) The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters: (aa) required or permitted by this Act to be prescribed; or (ab) necessary or convenient to be prescribed for carrying out or giving effect to this Act; and in particular for the following: (a) for defining the seniority of officers; (b) for defining, in relation to the officers included in a class of officers, the seniority of those officers for the purpose of transfer or promotion within that class; (c) for regulating the appointment of persons to the Service; (d) for regulating transfers and promotions of officers; (e) for regulating the holding and conduct of tests or examinations referred to in section 33B; (ea) for determining the allowances in respect of travelling expenses that are to be paid to members of the Joint Council who are not officers or employees; (g) for regulating the manner in which, and the time within which, appeals may be made to a Disciplinary Appeal Committee; (ga) for regulating the procedure of Boards of Inquiry, including, but without limiting the generality of the foregoing: (i) the procedure for summoning witnesses and requiring the production of documents; (ii) the procedure for the service of documents upon persons; (gc) for providing for the payment of costs in inquiries made by Boards of Inquiry and for the assessment of those costs; (h) for making provision in relation to the determining of appeals against promotions; (k) for making provision about the duties and conduct of officers; (n) for regulating the granting of leave of absence to officers and employees; (q) for providing for the notification to the Commissioner of action taken in respect of officers or employees under, or by virtue of the application to those officers or employees of, sections 57, 58, 62, 63, 63D, 63K, 63L, 63M and 63S and for the keeping, for such periods as are specified in the regulations, of records of action so taken; (r) for regulating the notification of vacancies by the Commissioner and the method of applying for such vacancies; (s) for regulating the method of lodging appeals of officers against promotions or deprivation of increment; (sa) for providing for appeals against temporary transfers; (sb) for providing for appeals with respect to any matter arising under a determination under section 82D; (t) for requiring officers to take oaths or affirmations of secrecy in relation to the matters coming to their knowledge in the course of their employment, and for prescribing the form of such oaths or affirmations; (u) for determining the dates, times, or periods of time at or within which shall be done all things or acts required or permitted by this Act to be done, and in respect of which no dates, times, or periods of time are specifically provided; (v) for prescribing, where there is no provision or no sufficient provision in this Act, in respect to any matter or thing necessary to give effect to this Act, in what manner and form the want of provision or insufficient provision shall be supplied. (3) Regulations made pursuant to the foregoing provisions may make provision for or in relation to any matter authorized by those provisions by applying, adopting or incorporating, with or without modification, any of the provisions of a determination made under section 82D, or of an industrial award, as in force at a particular time or as in force from time to time.