24Review of decision on application by affected person—outcomes of reviews

#### 24 Review of decision on application by affected person—outcomes of reviews Merit Protection Commissioner to determine outcome of review (1) The Merit Protection Commissioner must determine whether a selection process resulting in a decision reviewed under this Subdivision: (a) meets the requirements in subsection 23(1); or (b) does not meet those requirements. Outcome of review when decision is not based on merit (2) If the Merit Protection Commissioner determines that the selection process did not meet the requirements in subsection 23(1), the Merit Protection Commissioner must do the following: (a) if the applicant is an APS employee, and the decision that is the subject of the review is a decision to engage or promote a person to the applicable vacancy—determine that that decision does not take effect; (b) if the applicant is an ongoing Parliamentary Services employee, and the decision that is the subject of the review is a decision to engage or promote a person to the applicable vacancy—recommend that that decision should not take effect; (c) subject to paragraph (5)(b), recommend that a merit pool, a ranked merit list or a ranked merit pool created as a result of the selection process should not be used to fill a vacancy; (d) take action under subsection (4) or (5) (as applicable). (3) However, subsection (2) does not apply if the Merit Protection Commissioner is satisfied that, despite the selection process not meeting those requirements, the outcomes of the selection process would not have been materially different had those requirements been met. (4) If the Merit Protection Commissioner has sufficient information to do so, the Merit Protection Commissioner must: (a) if the selection process resulted in the creation of a merit pool or a ranked merit pool—recommend a new merit pool or a new ranked merit pool from which the Agency may engage or promote a person; or (b) if the selection process resulted in the creation of a ranked merit list—recommend a new ranked merit list from which the Agency may engage or promote a person; or (c) if the selection process did not result in the creation of a merit pool, a ranked merit pool or a ranked merit list—recommend a ranking of all candidates for a vacancy in respect of which the Agency may determine who should be engaged or promoted. (5) If the Merit Protection Commissioner does not have sufficient information to make a recommendation under subsection (4), the Merit Protection Commissioner: (a) must inform the Agency of that decision and the reasons for the decision; and (b) must recommend that the selection process should not be used to fill a vacancy, other than a vacancy: (i) that has already been filled; and (ii) in respect of which a determination has not been made under paragraph (2)(a); and (c) if appropriate, may recommend that a new selection process be undertaken. (6) A decision by the Merit Protection Commissioner under paragraph (2)(a) in relation to an APS employee is binding on the Agency.