Review of actions
Role of the Merit Protection Commissioner
The Merit Protection Commissioner is an independent statutory office holder established under section 49 of the Public Service Act 1999 (the Act). Among other functions, the Merit Protection Commissioner conducts reviews of employment-related decisions and other actions affecting individual Australian Public Service (APS) employees.
The Merit Protection Commissioner is assisted by staff of the Australian Public Service Commission.
What actions or decisions are reviewable?
Under section 33 of the Act, APS employees are 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 the Senior Executive Service.
The types of employment matters that are reviewable are not significantly limited by legislation. However the Act and Public Service Regulations exempt certain employment actions from review, including termination of employment.
For further information on the limits on review see Public Service Regulation 5.23 and Schedule 1 to the Regulations.
Making an application for review does not prevent an agency from proceeding with an action, or implementing a decision.
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. Applications for primary review are made under Public Service Regulation 5.24.
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 has advised that the matter is not reviewable, the employee may make an application for secondary review to the Merit Protection Commissioner. Applications for secondary review are made under Public Service Regulation 5.29.
Applications for primary review can be made directly to the Merit Protection Commissioner in certain circumstances prescribed in Regulation 5.24. These are:
- for review of a decision that an APS employee has breached the APS Code of Conduct and/or of the resulting sanction (see Review of Breaches of the APS Code of Conduct)
- 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.
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 Merit Commissioner or the agency head 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 (for example where the agency head was directly involved in the action)
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.
A decision by an agency to accept an out of time primary review application does not oblige the Merit Protection Commissioner to accept a subsequent request for a secondary review even if it is within 60 days from the agency decision. The two decisions are separate ones and the exceptional circumstances consideration must be met on both occasions.
Note: The Merit Protection Commissioner has observed that employees who are under investigation for suspected misconduct frequently wait until they have received a sanction decision before making an application for review. The decision that an employee has breached the Code of Conduct and the sanction decision are separate decisions and a separate time limit for review applies to each decision.
If there is a delay between the agency’s breach decision and sanction decision, an application for review of the breach decision may be outside the 60 day time limit. In this case, the Merit Protection Commissioner may only be able to review the sanction decision and not the decision that the employee has breached the Code of Conduct.
How do you apply for review?
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.
Applications for primary review by the Merit Protection Commissioner can be made directly to the Commissioner. These should be addressed to:
Merit Protection Commissioner
Australian Public Service Commission
PO Box 20636
World Square Post Office
SYDNEY NSW 2002
or by email to email@example.com.
Applications for secondary review by the Merit Protection Commissioner must be made through your agency head. This means that 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 agency papers to the Commissioner.
All applications must:
- be made in writing
- state why the review is sought
- if a particular outcome is sought, state the outcome sought.
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 usually done 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 of the case.
Amendments have been made to the Public Service Regulations that will come into effect on 1 July 2013. These include some minor changes to review eligibility and transitional arrangements have been made in the Regulations to provide clarity.
These and other changes are explained in Commission Advice 2013/13—Review of actions and Commission Circular 2013/6—Public Service Amendment Regulation 2013 (No. 2).
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 incorrect, unfair or inappropriate, 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
- 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.
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.
- Not just about process: the review of actions scheme
- Policy on exercise of discretion in review of the action “is not otherwise justified in all the circumstances”
- Primary review for agency HR staff
- Primary review for applicants
- Secondary review for agency HR Staff
- Secondary review for applicants