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Review of actions

An APS employee is entitled to review of actions or decisions that relate to their APS employment.

This page provides general information about review of actions in the Australian Public Service (APS).

This information is also relevant to employees of the Parliamentary Service who have a review scheme that operates in a similar way to the review scheme in the APS.

The Office of the Merit Protection Commissioner has prepared a guide—Not just about process - the review of actions scheme—which provides advice about managing employee complaints and disputes.

What actions or decisions are reviewable?

Under section 33 of the Public Service Act 1999 (the Act), an APS employee is entitled to review of actions or decisions that relate to their APS employment. These review rights are available to all APS employees with the exception of employees in the Senior Executive Service.

The types of employment matters that are reviewable are broad. Public Service Regulation 5.23 and Schedule 1 to the Regulations set out what is or is not a reviewable action.

Making an application for review does not prevent an agency from proceeding with an action, or implementing a decision.

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Primary and secondary review

The legislation requires that an APS employee applies to his or her agency head for review in the first instance for the majority of employment-related decisions and actions. The reviews conducted within agencies are called primary reviews.

When an agency receives a valid review application it is required to:

  • review the action and attempt to resolve the employee's concern
  • advise the employee in writing of the outcome; the reason for the decision; and any action the agency intends to take
  • advise the employee of their right of review by the Merit Protection Commissioner.

If the employee is dissatisfied with the outcome of the agency's review, or the agency advises that the matter is not reviewable, the employee may make an application for secondary review to the Merit Protection Commissioner.

Applications for primary review can be made directly to the Merit Protection Commissioner in the following circumstances. These are:

  • for review of an agency decision that an employee has breached the APS Code of Conduct and/or of the resulting sanction
  • if the employee's agency head was directly involved in the relevant action or decision
  • where it is not appropriate, because of the seriousness or sensitivity of the action, for the agency head to deal with the review application
  • where the employee claims that the relevant action or decision is victimisation or harassment because of having made a previous application for review.

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Time limits for review applications

There are time limits in Public Service Regulation 5.23(4) for making applications for review. Applications received outside the time limits will only be reviewed if the decision maker considers there are exceptional circumstances to explain the delay in making the application for review. These time limits are:

Primary review by an agency

  • 120 days from the date of the action to lodge an application for primary review with an agency

Primary review by the Merit Protection Commissioner

  • 60 days from the determination of a breach of the Code of Conduct (see note below)
  • 60 days from the imposition of the sanction
  • 60 days from the date of the action (in circumstances where the Merit Protection Commissioner is conducting a primary review of something, other than a Code of Conduct breach determination or sanction decision)

For further review information on reviewing Code of Conduct decisions, including the timeframe for making review application, see Review of breaches of the Code of Conduct.

Secondary review by the Merit Protection Commissioner

  • 60 days from the date the agency tells the employee of either the outcome of the primary review or that the matter is not reviewable

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How do you apply for review?

Primary review by the agency

Contact your agency's human resources area for advice on how to make a review application to your agency head or check your agency's intranet.

Primary reviews by the Merit Protection Commissioner

The Merit Protection Commissioner is assisted by staff of the Australian Public Service Commission. Applications for primary review by the Merit Protection Commissioner can be made to the Review team in the Commission's Sydney office.

The Review team has prepared an information sheet for applicants who wish to apply for primary review of:

The information sheets include an application form which can be downloaded and used to submit your request for review.

An application for primary review should be sent to review@apsc.gov.au or mailed to:

Merit Protection Commissioner
Australian Public Service Commission
PO Box 20636
World Square Post Office
SYDNEY NSW 2002

The review application must be made in writing and state:

  • why the review is sought
  • if a particular outcome is sought, the outcome sought.

Secondary review by the Merit Protection Commissioner

Applications for secondary review by the Merit Protection Commissioner must be made through your agency head. This means you need to address the application to your agency head advising that you wish the matter reviewed by the Commissioner. Your agency should then forward your application and the relevant papers to the Merit Protection Commissioner within 14 days. The agency must also give you a copy of any documents given to the Merit Protection Commissioner.

The secondary review application must be made in writing and state:

  • why the review is sought
  • if a particular outcome is sought, the outcome sought.

The Office of the Merit Protection Commission has prepared an information sheet for applicants who wish to apply for secondary review of action. The information sheet includes an application form which can be downloaded and used to submit your request for review.

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How will your application for review be handled?

Reviews conducted by the Merit Protection Commissioner are required to have regard to procedural fairness, be conducted in private and be finished as quickly, and with as little formality, as a proper consideration of the matter allows.

First, staff assisting the Commissioner will acknowledge your application and advise you whether it has been accepted. Then, if papers have not already been received from your agency, the reviewer will ask for copies of all relevant papers. In some cases, it may be possible to conduct the review solely by an examination of the papers. Where necessary, the reviewer may investigate further by seeking additional information from your agency and by interviewing you and/or other persons. Interviews with a reviewer are generally conducted over the telephone.

While you are welcome to have a person support you throughout the review, you are not able to be represented by another person. If you wish to have someone represent you, you will need to make a formal request to the Merit Protection Commissioner stating your reasons.

In most cases, a review by the Merit Protection Commissioner will address the following issues:

  • whether your agency's procedures for dealing with the particular matter in question were substantially complied with in your case
  • whether the requirements of procedural fairness were substantially observed in your case
  • whether the action or decision under review was appropriate or reasonable in the circumstances.

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Outcome of the review

The Merit Protection Commissioner can make recommendations to your agency head about the matters under review. The Merit Protection Commissioner cannot impose an outcome on your agency nor can the Commissioner substitute a different decision from that made by your agency.

When the review is finished you will be advised of the result and the Commissioner's recommendation. If it is concluded the agency has not acted wrongly, the Commissioner will explain to you why that view was reached.

On the other hand, if the Merit Protection Commissioner is satisfied that the decision under review was in some way unreasonable, the Commissioner may recommend that the agency:

  • set aside the decision and consider whether the relevant process should be re-done
  • vary the decision
  • change its procedures
  • take some other appropriate action.

An agency cannot be forced to do what the Commissioner recommends. However:

  • agencies usually act on the Commissioner's recommendations and are required to give reasons for their decisions to the Merit Protection Commissioner
  • if the Merit Protection Commissioner is not satisfied with the response, the Commissioner may report the matter to the relevant Minister, the Prime Minister or the Parliament.

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What if you are still not satisfied?

There is no further right of administrative review under the Act or the Regulations.

To take the matter further, you would need to apply to a court for judicial review, under the general law or the Administrative Decisions (Judicial Review) Act 1977. In such cases, it would be prudent to seek independent legal advice.

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Who to contact

Inquiries should be directed to the Review Team, Australian Public Service Commission Sydney, on phone: 02 8239 5330 or by email to review@apsc.gov.au.

Page ID: 30290

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