33Review of actions

#### 33 Review of actions (1) An APS employee is entitled to review, in accordance with the regulations, of any APS action that relates to his or her APS employment. However, an APS employee is not entitled to review under this section of APS action that consists of the termination of the employee’s employment. (2) The regulations may prescribe exceptions to the entitlement. > Note: For example, the regulations might provide that there is not entitlement to review if the application for review is frivolous or vexatious. (3) Without limiting subsection (1), regulations made for the purposes of that subsection may provide for the powers available to the Merit Protection Commissioner, or any other person or body, when conducting a review under the regulations. (4) Regulations for the purposes of subsection (1): (a) may provide for an initial review to be conducted within the responsible Agency; and (b) may provide that applications for review of particular kinds of APS action are to be made directly to the Merit Protection Commissioner; and (c) must provide for an application for review to be referred to the Merit Protection Commissioner if the applicant is not satisfied with the outcome of an initial review within the responsible Agency; and (d) in the case of a review following an application or referral to the Merit Protection Commissioner—must provide for the review to be conducted by: (i) the Merit Protection Commissioner; or (ii) a person nominated by the Merit Protection Commissioner; or (iii) a 3 member committee constituted in accordance with the regulations. (5) A person or body that has conducted a review under this section may make recommendations in a report on the review but does not have power to make any binding decision as a result of the review, except as provided by the regulations. (6) If the Merit Protection Commissioner is not satisfied with the response to recommendations contained in a report on a review under this section, the Merit Protection Commissioner may, after consulting the Public Service Minister, give a report on the matter to the Agency Minister of the responsible Agency and to either or both of the following: (a) the Prime Minister; (b) the Presiding Officers, for presentation to the Parliament. (7) In this section: > action includes a refusal or failure to act. > APS action means: (a) action by a person in the capacity of an Agency Head or APS employee; or (b) action by the Commissioner under section 41B (including a finding that an APS employee has breached the Code of Conduct). > responsible Agency, in relation to APS action, means the Agency in which the person who did the action was at the time of the action.