I, Annwyn Claire Godwin, Merit Protection Commissioner, hereby:

(a) issue the following instructions under regulation 5.34 of the Public Service Regulations 1999 to commence on 25 November 2011; and
(b) revoke all instructions previously issued under regulation 5.34 of the Public Service Regulations 1999 when these instructions commence.

23 November 2011
Merit Protection Commissioner

Background to Instructions

1. Under regulation 5.34 of the Regulations, the Merit Protection Commissioner must issue instructions about the procedures to be followed by a person or committee nominated by the Merit Protection Commissioner to conduct a review of action under Division 5.3 of the Regulations. The instructions must not be inconsistent with the Act, the Regulations or the Public Service Commissioner’s Directions.
2. Under regulation 5.33 of the Regulations, the procedures used for a review under Division 5.3 must meet the following minimum requirements:
   • (a) the procedures must have due regard to procedural fairness;
   • (b) the review must be conducted in private;
   • (c) the review must be finished as quickly, and with as little formality, as a proper consideration of the matter allows.

Obligation to comply

1. Under subregulation 5.34(3) of the Regulations, a person or committee nominated by the Merit Protection Commissioner to conduct a review of action must comply with these instructions.
2. By Direction of the Merit Protection Commissioner, any person assisting a person or committee referred to in paragraph 3 above to conduct a review must also comply with these instructions.

Definitions

In these instructions:

applicant means an APS employee who has lodged a request for review of an action under Division 5.3 of the Regulations

Act means the Public Service Act 1999

Committee means a three person committee nominated by the Merit Protection Commissioner to conduct a review of action under Division 5.3 of the Regulations

Merit Protection Commissioner means the Merit Protection Commissioner identified in section 49 of the Act and includes a person authorised for the relevant purpose

Person means:
(a) a person nominated by the Merit Protection Commissioner to conduct a review of action under Division 5.3 of the Regulations
(b) a member of a committee nominated by the Merit Protection Commissioner to conduct a review of action under Division 5.3 of the Regulations
(c) a person assisting either of the above to conduct a review of action under Division 5.3 of the Regulations

Principal Advisor means the APS employee performing the functions and duties of Principal Advisor to the Merit Protection Commissioner in the Australian Public Service Commission

Public Service Commissioner’s Directions means the directions made by the Public Service Commissioner under section 11 of the Act which apply at the time that the review is conducted

Regulations means the Public Service Regulations 1999

Review means a review of action under Division 5.3 of the Regulations.

Instructions

1. Knowledge of relevant legislation

Each person conducting or assisting a review must inform him or herself about:

• (a) the Public Service Act 1999
• (b) the Public Service Regulations 1999
• (c) the Public Service Commissioner’s Directions on the APS Values and Code of Conduct
• (d) these Merit Protection Commissioner’s Instructions on procedures to be followed by persons or committees conducting reviews of actions
• (e) any legislation applicable to the matters under review
• (f) the principles of lawful administrative decision making including procedural fairness.

2. APS Code of Conduct and Values

A person conducting or assisting a review must, in conducting that review, behave in a way which upholds the APS Values and is consistent with the APS Code of Conduct.

3. Impartiality

Where a person conducting or assisting a review becomes aware of an issue which might raise a reasonable apprehension of bias in relation to the review, they must advise the Merit Protection Commissioner or the Principal Advisor of the relevant issues.

4. Privacy

A person conducting or assisting a review must acknowledge in writing the obligation not to, directly or indirectly, make a record of, or divulge or communicate to any other person except for the purposes of completing the review, any information that was acquired while he or she was undertaking the review.

Note: This obligation applies both during the life of the review and after the review is completed.

5. Objection to reviewer

1. A person conducting or assisting a review must make a written record of any objection to their conducting or assisting a review.
2. The written record must specify:
   • (a) the date when the objection was made
   • (b) the name of the person who made the objection
   • (c) the reasons for the objection.

1. A person conducting or assisting the review must advise the Merit Protection Commissioner or the Principal Advisor of the objection.

Note: The Merit Protection Commissioner will decide on appropriate action to resolve the objection.

6. Determining Whether an Action is Reviewable

1. A person conducting or assisting a review must determine whether the action constitutes reviewable action within the meaning of Regulation 5.23 (including Schedule 1 to the Regulations).
2. Having complied with subsection (1), a person conducting or assisting a review must write to the affected employee and advise them of the decision and their reason(s) for it.

7. Alternative Dispute Resolution

1. Having regard to the general policy specified in regulation 5.1, a person conducting or assisting a review must consider which method for resolution of the employee’s concerns, including methods of alternative dispute resolution such as counselling, conciliation and mediation, is most appropriate to achieve a productive and harmonious working environment.
2. Where the employee’s concern giving rise to an application for review of action has been settled using some form of alternative dispute resolution the achievement of the resolution must, as soon as practicable, be reported in writing to the Principal Advisor.

8. Representation

1. Where a person who has lodged an application for review seeks to have representation, a person conducting or assisting the review must refer the request to the Merit Protection Commissioner.
2. A person conducting or assisting the review must advise the affected employee of the Merit Protection Commissioner’s decision in relation to their application for representation.

Note: Under Regulation 5.33(2) a person appearing before a person or committee conducting a review must do so without representation unless the Merit Protection Commissioner decides that, in all the circumstances, it would be reasonable to allow the person to be represented. The requirement in Regulation 5.1(c) that a review be conducted quickly is a relevant consideration for the merit Protection Commissioner in considering representation.

9. No discrimination

In conducting a review, a person conducting or assisting the review must ensure that all Commonwealth anti-discrimination laws are complied with.

Note: See, for example, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1991 and the Human Rights and Equal Opportunity Act 1986.

10. Handling adverse information

1. Where a person conducting or assisting a review proposes to take into account in his or her deliberations any adverse information of which an applicant is unaware, the substance of that information must be conveyed to the applicant.
2. A person conducting or assisting the review must give the applicant a reasonable opportunity (whether orally or in writing) to provide comment.
3. Where a person conducting or assisting the review:

• (a) receives information in relation to the applicant for review which, in the view of a reasonable bystander, is likely to be highly prejudicial to the interests of the applicant; and
• (b) proposes not to take that information into account in his or her deliberations

the person conducting or assisting the review must advise the applicant of the nature of the information which it has received and provide the applicant with an assurance, orally or in writing as is appropriate to the circumstances, that the information will not be taken into account in the review of the action.