Public Service Act 1999

The Act directly governs all APS employees, Agency Heads (Secretaries of Departments, Heads of Executive Agencies and Heads of Statutory Agencies), and the Australian Public Service Commissioner and Merit Protection Commissioner. Statutory office holders prescribed by regulations are also bound by the Code of Conduct (section 14(2) and (3)). Heads of Mission appointed by the Governor-General must be APS employees (section 39(1)). Locally engaged employees engaged overseas under section 74 are subject to the Act but are not APS employees as defined in section 7 (they are engaged under section 74, not section 22). Independent contractors are not covered, though section 6(3) preserves the ability to engage them.

The Act also affects the Prime Minister, who can issue general directions to Agency Heads on management and leadership (section 21), and Agency Ministers, who have limited powers to direct Agency Heads in respect of individual cases (section 19 prohibits direction in relation to the exercise of powers under section 15 or Division 1 or 2 of Part 4 concerning particular individuals).

Duties of APS employees. The Code of Conduct (section 13) imposes mandatory obligations. An APS employee found to have breached the Code may be subject to sanctions by the Agency Head (section 15(1)), including termination of employment, reduction in classification, re-assignment of duties, reduction in salary, deductions from salary by way of fine, or a reprimand.

Duties of Agency Heads. Agency Heads must uphold and promote the APS Values and APS Employment Principles (section 12). They must establish written procedures for determining whether an APS employee or former APS employee has breached the Code of Conduct (section 15(3)), establish a workplace diversity program (section 18), implement measures to enable decisions to be made by APS employees at the lowest appropriate classification (section 19A), and comply with Commissioner’s Directions (section 42(2)). Agency Heads also have all the rights, duties and powers of an employer on behalf of the Commonwealth in respect of APS employees in their Agency (section 20).

Rights of APS employees. An ongoing APS employee may only be terminated on the grounds specified in section 29(3): excess to requirements, loss of essential qualification, non-performance or unsatisfactory performance, physical or mental incapacity, failure to complete an entry-level training course, failure to meet a condition of engagement, breach of the Code, or a prescribed ground. The notice of termination must specify the ground relied on (section 29(2)). An APS employee is entitled to a review of any APS action relating to their employment (other than termination) under section 33, conducted in accordance with regulations. The Merit Protection Commissioner may make recommendations but does not have power to make binding decisions, except as provided by regulations (section 33(5)). An APS employee who resigned to contest an election and was not elected is entitled to be re-engaged (section 32). An APS employee who has reached the minimum retiring age (55 years or as prescribed) is entitled to retire at any time (section 30).

Protection of information. Strict limits apply to the disclosure and use of “protected information” obtained by the Commissioner, the Merit Protection Commissioner, and their staff in connection with certain functions (sections 72A and 72B). Those persons are not compellable to give evidence in court proceedings regarding such information (section 72A(7), section 72B(7)). Information or documents given voluntarily or on request to the Commissioner or Merit Protection Commissioner are generally not admissible in evidence against the person in proceedings (sections 72C and 72D), and the person is not liable to any penalty under another law for providing them. Personal information disclosed is taken to be authorised under the Privacy Act 1988 (sections 72C(5), 72D(5)).

Immunity from civil proceedings. The Commissioner, Merit Protection Commissioner, delegates, staff and committee members are immune from civil action for anything done in good faith in connection with the performance of their functions under specified provisions (section 78A).

The primary enforcement mechanism for the Code of Conduct is the imposition of sanctions by the Agency Head under section 15(1). Regulations may prescribe limitations on the power to impose sanctions (section 15(2)). Additionally, if a person engaged as an APS employee is later found to have provided false or misleading information, wilfully failed to disclose relevant information, or otherwise failed to behave honestly and with integrity in connection with their engagement, they are taken to have breached the Code (section 15(2A)), and sanctions may be imposed while they are still employed.

The Commissioner has the power to inquire into and determine whether an Agency Head or former Agency Head has breached the Code (section 41A) and, at the request of an Agency Head or the Prime Minister, whether an APS employee or former APS employee has breached the Code (section 41B). The Commissioner may recommend sanctions but cannot impose them; sanctions are imposed by the Agency Head (section 41B(9), note). The Merit Protection Commissioner may, with the employee’s written consent, inquire into and determine whether an APS employee has breached the Code (section 50A), and the Agency Head may then impose sanctions.

The Act does not create criminal offences, but the regulations may prescribe penalties of not more than 50 penalty units for offences against the regulations (section 79(2)). The Criminal Code is referenced for offences relating to disclosure of information by Commonwealth officers (notes to sections 72A(2) and 72B(2)).

For SES employees, an Agency Head cannot terminate their employment unless the Commissioner has issued a certificate stating that all relevant requirements of Commissioner’s Directions have been satisfied and that the termination is in the public interest (section 38).

The Act has effect subject to the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (section 8). This means that the general employment protections, National Employment Standards, modern awards and enterprise agreements under the Fair Work regime apply to APS employees, subject to the specific provisions of the Public Service Act. Determinations made by an Agency Head under section 24(1) are of no effect to the extent they would reduce a benefit under a fair work instrument or a WR Act transitional instrument (section 24(1A)). The Public Service Minister may override those protections in exceptional circumstances by legislative instrument (section 24(3) to (5)).

The Act interacts with the Public Interest Disclosure Act 2013 in relation to inquiries into public interest disclosures concerning alleged breaches of the Code (section 41(2)(o), section 50(1)(a)). The Privacy Act 1988 applies to personal information handled under the Act, with specific authorisations in sections 72C(5), 72D(5) and 72E. The Auditor-General Act 1997 provisions on evidence-gathering powers are applied to the Commissioner’s special inquiries (section 43) and the Merit Protection Commissioner’s inquiries (section 50(2)). The Remuneration Tribunal Act 1973 governs the remuneration of the Commissioner, Merit Protection Commissioner, Special Commissioners, Secretaries and Heads of Executive Agencies (sections 46, 53, 48B, 61, 68). The Public Governance, Performance and Accountability Act 2013 also imposes responsibilities on Secretaries (see note to section 57(3)).

The Act was originally enacted in 1999 to replace the Public Service Act 1922 and modernise the APS by establishing an apolitical, values-based framework. Since then, several amendments have inserted new provisions. The APS Employment Principles (section 10A) were added to codify merit and fairness in employment decisions. Section 19A, requiring Agency Heads to implement measures enabling decisions to be made at the lowest appropriate classification, was inserted to promote efficiency and empowerment. Part 8 on the Secretaries Board (section 64) and the long-term insights reports (section 64A) were added to strengthen stewardship and strategic foresight. Capability reviews (section 44A) and action plans (section 44B) were introduced to mandate periodic independent assessments of key agencies and require public responses. The Australian Public Service Employee Census provisions (section 78B) were added to enhance transparency and accountability through publication of results and action plans. The protection of information provisions (Part 10A) were introduced to facilitate thorough inquiries while safeguarding sensitive information.

The Act has also been amended to strengthen the role of the Commissioner in evaluating systems, conducting special reviews (section 41D), and inquiring into Code breaches by Agency Heads (section 41A). These changes reflect a continual effort to balance operational effectiveness with accountability and integrity.

The Act itself includes a note referencing the case of Barratt v Howard [1999] FCA 1132 concerning the application of procedural fairness to the termination of a Secretary’s appointment under the predecessor Act (see note to section 59). That case remains relevant to understanding the common law requirements that supplement the statutory scheme for termination of Agency Heads.

The review mechanism under section 33 is limited: the Merit Protection Commissioner and other bodies can make recommendations but cannot make binding decisions. This has been the subject of criticism because employees may be left without effective remedy for adverse actions (other than termination, which is excluded from review). Judicial review under the Administrative Decisions (Judicial Review) Act 1977 is available for findings by the Merit Protection Commissioner under section 50A (see note to that section), providing a potential avenue for challenge.

The prohibition on Ministerial directions to Agency Heads concerning individual cases (section 19) is a structural safeguard against political interference in employment decisions, but may create tension when a Minister seeks to intervene in a matter of public significance. The immunity from civil proceedings under section 78A, while protecting good faith decision-making, could limit accountability in cases of egregious conduct that falls short of bad faith.

Pre-engagement misconduct. Section 15(2A) provides that an APS employee who, before engagement, knowingly provided false or misleading information, wilfully failed to disclose relevant information, or otherwise failed to behave honestly and with integrity in connection with their engagement is taken to have breached the Code. This means conduct predating employment can be sanctioned.

Limited grounds for classification reduction without consent. An Agency Head may reduce an APS employee’s classification without consent only in the circumstances listed in section 23(4), including as a sanction under section 15, for excess employees, loss of essential qualification, non-performance, incapacity, or as prescribed. Failure to follow any applicable industrial instrument procedures renders the reduction of no effect (section 23(5)).

No review of termination decisions. Section 33(1) expressly excludes from the review entitlement any APS action that consists of termination of employment. While general protections under the Fair Work Act 2009 may apply, the internal APS review system does not cover termination.

SES termination requires a Commissioner’s certificate. Section 38 prevents an Agency Head from terminating an SES employee unless the Commissioner certifies that relevant directions have been satisfied and the termination is in the public interest. This is a mandatory pre-condition.

Merit Protection Commissioner inquiry requires employee consent. Under section 50A, the Merit Protection Commissioner may only inquire into an alleged breach of the Code by an APS employee if the employee agrees in writing. Without consent, the matter must be dealt with by the Agency Head or referred to the Commissioner under section 41B.

Agency Head determinations cannot reduce benefits under fair work instruments. Section 24(1A) makes any determination by an Agency Head that would reduce a benefit under a fair work instrument or WR Act transitional instrument of no effect to that extent. This is a critical protection for terms and conditions derived from enterprise agreements or modern awards.

Non-citizen engagement. Section 22(8) prohibits an Agency Head from engaging a person who is not an Australian citizen as an APS employee unless the Agency Head considers it appropriate to do so. This creates a default preference for citizens.

Delegation to outsiders requires Commissioner consent. Under section 78(8), an Agency Head cannot delegate powers or functions to an “outsider” (a person who is not an APS employee, an office-holder under a Commonwealth law, or a member of the Australian Defence Force) without the prior written consent of the Commissioner.

Agencies and their legal advisers should ensure compliance with several mandatory requirements:

• Code of Conduct procedures: Agency Heads must establish written procedures for determining whether an APS employee or former APS employee has breached the Code, and for imposing sanctions (section 15(3)). The procedures must comply with basic procedural requirements set out in Commissioner’s Directions and have due regard to procedural fairness (section 15(4)). They must be made publicly available (section 15(7)).

• Commissioner’s Directions: Agency Heads and APS employees must comply with all directions issued by the Commissioner under sections 11, 11A and 15 (section 42(2)). These directions are legislative instruments and can cover the APS Values, APS Employment Principles, and employment matters including engagement, promotion, redeployment, mobility, training schemes and termination.

• Workplace diversity program: Each Agency Head must establish a program to assist in giving effect to the APS Employment Principles (section 18).

• Lowest appropriate classification: Agency Heads must implement measures to create an environment enabling decisions to be made by APS employees at the lowest appropriate classification, having regard to work level standards in the Classification Rules (section 19A).

• Capability review action plans: Where a capability review is undertaken under section 44A, the Agency Head must prepare and publish a written action plan within 90 days responding to the findings (section 44B).

• Employee Census action plan: After each Australian Public Service Employee Census, the Agency Head must prepare an action plan responding to the results and publish the results and plan after the State of the Service report is tabled (section 78B). Material that could identify individuals must be removed (section 78B(6)).

• Protection of information: All persons who are entrusted persons under sections 72A or 72B must handle protected information strictly in accordance with the Act and regulations. Disclosure is only permitted for the purposes of performing functions under the Act, or where the Commissioner or Merit Protection Commissioner authorises it in the public interest and it is not likely to interfere with a review or inquiry (sections 72A(3)-(5), 72B(3)-(5)).

• Merit-based selection: All decisions on engagement and promotion must comply with the merit principle in section 10A(2). This requires a competitive selection process, assessment against genuine work-related qualities, and the assessment being the primary consideration.

• Termination of ongoing employees: Agency Heads must specify the ground for termination in the notice and ensure it is one of those listed in section 29(3). For SES employees, a Commissioner’s certificate under section 38 must be obtained.

Regular training on the APS Values, Code of Conduct, and APS Employment Principles is essential. Agencies should maintain up-to-date written procedures, ensure compliance with all legislative instruments, and document decisions in accordance with procedural fairness and the requirements of Commissioner’s Directions.