Public Service Act 1999 Advice No. 15: Independent Selection Advisory Committees

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Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.

Introduction

1. This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). The new legislation came into operation on 5 December 1999.

2. The purpose of this advice is to provide information on the arrangements for Independent Selection Advisory Committees (ISACs) under the new PS Act and Part 4 of the Public Service Regulations made under it. This advice is complemented by Advice Number 14 which deals with Promotion Reviews.

Background

3. Under the Public Service Act 1922 (the old Act) Secretaries had the option of making decisions relating to the filling of vacant positions on the basis of the recommendation of a statutorily independent 3 person committee established to consider the merits of the applicants (a Joint Selection Committee or JSC).

4. JSCs were established under either section 50DA or section 50DB of the old Act:

the establishment of a JSC under section 50DA required the consent of the relevant staff organisation. Decisions based on the recommendation of such a JSC were not subject to either promotion appeal under section 50B or review under section 50DAA;
the establishment of a JSC under section 50DB did not require the consent of the relevant staff organisation. Decisions based on the unanimous recommendation of such a JSC were not subject to either promotion appeal under section 50B or review under section 50DAA.

5. In either case, JSCs were constituted by a Convenor nominated by the Merit Protection and Review Agency, a person nominated by the relevant Secretary, and a person nominated by the relevant staff organisation.

Operation of the new legislation

The establishment and function of an ISAC

6. Under the new legislation, where an Agency Head wishes to seek the advice of an Independent Selection Advisory Committee, the Agency Head is now able to request the Merit Protection Commissioner to constitute an ISAC. The function of an ISAC is to make recommendations to an Agency Head about the suitability of candidates for relevant employment in the Agency at APS 1 to 6 levels.

7. Individual ISACs may consider applications in relation to more than one opportunity for relevant employment.

8. The Merit Protection Commissioner may charge a fee to establish and support the ISAC.

Constitution of the ISAC

9. ISACs are constituted by:

a Convenor nominated by the Merit Protection Commissioner; and
a person nominated by the relevant Agency Head; and
an APS employee (the third member) nominated by the Merit Protection Commissioner. The Merit Protection Commissioner is required to be satisfied that this employee has the appropriate qualities and skills to undertake his or her role independently and impartially.

10. When an APS employee is nominated by the Merit Protection Commissioner as the third member of an ISAC then, subject to the operational efficiency of their employing Agency, they must be released to perform that role. ISAC procedures

11. The Merit Protection Commissioner will issue instructions about the general procedures to be followed by an ISAC in performing its functions. Those instructions will be binding on the ISAC.

12. The procedures used by an ISAC in performing its functions are also required to meet the following minimum requirements:

the procedures must have due regard to procedural fairness;
the functions must be carried out in private;
the functions of the ISAC must be finished as quickly, and with as little formality, as a proper consideration of the matter allows.

Action by ISAC

13. When an ISAC is established in respect of relevant employment, it will:

assess the relative merits of the candidates for the relevant employment having regard to the test established in section 10(2) of the new PS Act; and
make a recommendation to the Agency Head as to the applicant (or applicants) it considers to be the most suitable for the relevant employment.

If the ISAC considers that none of the candidates is suitable for the relevant employment, the ISAC must make a recommendation to the Agency Head to that effect.

14. Where the recommendation of the ISAC is not unanimous:

if 2 members agree on a recommendation, that recommendation is the ISAC's recommendation; or
if there is no agreement between any of the members of the ISAC, the Convenor's recommendation is the ISAC's recommendation.

15. The recommendation of an ISAC is not binding on an Agency Head but if it is not accepted then any related promotion decision will be subject to the normal promotion review procedures.

Independence of the ISAC

16. A person is not subject to direction in carrying out his or her duties as a member of an ISAC, except by a Court or in accordance with instructions on procedures issued by the Merit Protection Commissioner.

Use of an ISAC order of merit

17. An order of merit determined by an ISAC in relation to relevant employment may provide the basis for the filling of that opportunity for employment for up to 12 months after the initial filling of the employment opportunity (see also the Public Service Commissioner's Direction 4.6(4) in relation to merit issued under section 11(1)(b) of the new PS Act).

Co-operation of agencies

18. The effectiveness of the new procedures for the operation of Independent Selection Advisory Committees will depend in large part on the co-operation and support of Agencies. The Merit Protection Commissioner will be seeking Agency commitment to encourage interested APS employees to make themselves available to participate as third members of ISACs, including allowing such employees the time for necessary training.

Further advice

19. PSMPC contact is ph: 02 6202 3859.

Boris Budak
Acting Merit Protection Commissioner

16 December 1999