Commission Advice 2013/13: Review of actions

Last updated: 02 May 2013

This page is: archived

Legislative changes affecting Review of Actions

The Public Service Amendment Act 2013 (the Amendment Act) made significant changes to the Public Service Act 1999 (the Act). As a consequence the Public Service Regulations 1999 have been amended and the Public Service Commissioner's Directions 1999 repealed and replaced with the Australian Public Service Commissioner's Directions 2013 (the Directions).

The Australian Public Service Commission (the Commission) has developed a series of ‘Advices’ to assist Australian Public Service (APS) agencies implement the changes in the amended Public Service Act and Regulations, and the new Directions. The Advices are available on the Circulars and advices page of the Commission's website.

This Advice provides agencies with information on amendments to the Public Service Regulations 1999 (the Regulations) that impact on the review of actions scheme and handling by agency heads and the Merit Protection Commissioner. The changes will come into effect on 1 July 2013.

Why are these changes being made?

The amendments made to Part 5 of the Regulations address issues that have arisen in the experience of agencies and the Merit Protection Commissioner concerning the effective operation of the review regulations. They clarify how reviews operate and provide for more effective processes for conducting reviews. There has also been some minor restructuring of Division 5.3 of Part 5 of the Regulations to make the review provisions clearer and easier to apply.

What changes are being made?

The Review of Actions framework is established by section 33 of the Act which sets out the broad entitlement to review. Part 5 of the Regulations prescribes in detail how the review framework operates both with respect to the review functions of agency heads and of the Merit Protection Commissioner. Division 5.2 of Part 5 of the Regulations details the arrangements for promotion review, and Division 5.3 details the arrangements for general reviews of actions. Schedule 1 of the Regulations prescribes certain actions as non-reviewable.

The amendments to the Regulations relate to reviews of actions affecting agencies in five categories:

  1. entitlement to review
  2. clarifying the intended operation of the Regulations
  3. updating references that are consequential on other amendments to the Regulations and the introduction of the Australian Public Service Commissioner's Directions 2013
  4. conducting of reviews by the Merit Protection Commissioner
  5. handling of promotion reviews by the Merit Protection Commissioner.

I—Entitlement to review

The amendments described below largely clarify the existing entitlements to review. Item 1 is the exception and is a new ground on which agency heads and the Merit Protection Commissioner may decline to review an action.

  1. Regulation 5.23(3) has been amended to add a new ground on which a matter may be considered to be non-reviewable—an agency head or the Merit Protection Commissioner may decline to review an action if they consider the application for review is misconceived or lacking in substance (regulation 5.23(3)(a)). This amendment supplements the existing ground in regulation 5.23(3)(b) of ‘frivolous and vexatious’.
  2. Regulation 5.22(2) has been amended to clarify that if an APS employee has made an application for a review and then ceases APS employment that review lapses on the cessation of employment (Regulation 5.22(2)(a)). A similar change has been made with respect to employees promoted to the Senior Executive Service after making an application for review (Regulation 5.22(2)(b)). In this case the application for review also lapses.
  3. The regulations relating to what is a reviewable action (for the purposes of determining eligibility for review), including the timeframes for making an application, have been consolidated into regulation 5.23. Existing regulation 5.23A, which currently gives the timeframes for making an application, has been repealed.
  4. New regulation 5.23 makes clear that there is no entitlement to secondary review by the Merit Protection Commissioner where the applicant has applied for primary review outside the timeframes set out in regulation 5.23(4), subject to the exceptional circumstances provision in regulation 5.23(5).
  5. Item 10 of Schedule 1 has been amended to clarify entitlements to review relating to the assignment of duties. In most circumstances decisions to assign duties to employees under section 25 of the Act are not reviewable but there are some exceptions to this general rule. These exceptions include promotion to Executive Level classifications where there have been serious defects in the selection process. The wording of this item has been amended for consistency with other Items in Schedule 1 referring to decisions arising from recruitment and selection activities. The item has been redrafted to clarify that not only the decision, but also the process leading up to the decision, is not reviewable.

Amendments relating to entitlement to review are set out at Attachment A.

II—Amendments to clarify the intended operation of the Regulations

  1. An amendment have been made to regulation 5.27(1) to clarify that an agency head is not required to review an action if the agency head considers that the employee is not entitled to review (regulation 5.27(1). A similar amendment has been made to regulations 5.28(2) and 5.31 for the purpose of reviews conducted by the Merit Protection Commissioner.
  2. A new regulation has been made that provides that if an agency head acts in accordance with the recommendation of the Merit Protection Commissioner, the agency head is not required to seek the views of the review applicant (regulation 5.32(2A)). The purpose of this amendment is to help streamline processes and remove uncertainty about whether agency heads need to take an additional procedural step once they receive a recommendation from the Merit Protection Commissioner.

Amendments clarifying the intended operation of the Regulations are set out at Attachment B.

III—Amendments to update references or that are consequential on other amendments to the Regulations and the introduction of the Australian Public Service Commissioner's Directions 2013

  1. There are consequential amendments to Schedule 1 to reflect new functions of the Australian Public Service Commissioner and the Merit Protection Commissioner (items 3, 4A and 11) and to update references to other Acts of Parliament referred to in the Schedule (item 6).
  2. As a result of the consolidation of provisions concerning a range of employment matters in the Directions, references in regulation 5.20 to the provisions relating to the gazettal of engagements, movements and promotions have been changed and now refer to the Directions. Regulations 3.8 and 3.8A have been repealed and the provisions (unchanged) incorporated into Chapter 2 of the Directions.
  3. All references to the electronic APS Employment Gazette have been changed to Public Service Gazette (Regulation 5.9).

IV—Amendments to the conduct of reviews by the Merit Protection Commissioner

  1. Amendments to regulations 5.28(2)(b) and 5.31(b) have been made to provide for the Merit Protection Commissioner to conduct a review in any manner the Merit Protection Commissioner thinks fit. This gives the Merit Protection Commissioner the same flexibility that agency heads have in deciding how to conduct primary reviews. It does not affect eligibility for review by the Merit Protection Commissioner.
  2. Paragraph 33(4)(d) of the Act has been amended to clarify that the Merit Protection Commissioner is able to conduct reviews in his or her own capacity. This has resulted in consequential amendments to regulation 5.28 (conduct of a primary review by the Merit Protection Commissioner) and regulation 5.31 (conduct of secondary review by the Merit Protection Commissioner). As the Merit Protection Commissioner conducts reviews in his or her own capacity, there is no longer any requirement for the Commissioner to issue binding instructions to a nominated person or a committee. As a result regulation 5.34 (Review procedures - Merit Protection Commissioner's Instructions) has been repealed. In addition, the amendment to subsection 33(4)(d) has resulted in consequential amendments to references to nominated persons and committees in regulations 5.23, 5.33, 5.35 and 5.37.

V—Amendments to the regulations for promotion reviews

Regulation 5.12 has been amended (Attachment C) to provide that the parties to a promotion review are not entitled to access to the statements of other parties provided to the Promotion Review Committee (PRC). These statements detail the individual employee's claim for promotion against the selection criteria for the vacant position(s).

The purpose of this amendment is to help decrease the adversarial nature of promotion reviews and promote the efficient handling of reviews by the Merit Protection Commissioner. 

The amendment does not change the obligations on a PRC to afford procedural fairness as required by regulation 5.14(1)(a).

This amendment does not affect the information that agencies are required to provide the PRC under Regulation 5.17. Agencies are usually asked to make this information available to all parties to the review.

What do agencies need to do?

Agencies must do the following before the legislation commences on 1 July 2013.

1. Review and revise their policies and procedures relating to Review of Actions to reflect the changes to the Regulations

Agencies should review and revise their guidance material relating to the Review of Actions scheme, as appropriate, to ensure all materials reflect the changes to the Review of Actions procedures.

2. Communicate the changes to their managers and delegates

Agencies need to communicate the changes to managers or delegates responsible for Review of Actions matters.

What transitional arrangements need to be put in place?

Applications for review made before 1 July 2013 must be decided in accordance with the regulations in place at the date of application. The new ground for non-review must only be considered for applications for review made after 1 July 2013 to agency heads and to the Merit Protection Commissioner.

Applications made to agency heads or to the Merit Protection Commissioner after 1 July 2013 regarding selection decisions that take place before 1 July 2013 (and within the relevant timeframes for lodging a review application) must be reviewed under the old Regulations.

Further information

The Amendment Act, the Public Service Amendment Regulation 2013 and the Australian Public Service Commissioner's Directions 2013 are available on the Comlaw website.

The Advices are available from the Circulars and advices page. This advice should be read in conjunction with:

Enquiries from agencies' corporate services staff can be made by email at PSAmendmentAct2013@apsc.gov.au or by telephone on 02 6202 3737.

APS employees who have queries about how the changes will affect them are asked to contact the HR area in their agency.

Karin Fisher
Group Manager, Ethics
Australian Public Service Commission

April 2013


Attachment A: Public Service Amendment Regulation 2013

Division 5.3—Application by APS employees for review of other actions

31 Regulation 5.22

Repeal the regulation, substitute:

5.22 Entitlement to review

  1. A non‑SES employee (the affected employee) is entitled to review of APS action under this Division if the action is:
    1. action by:
      1. an Agency Head; or
      2. an APS employee; or
      3. the Australian Public Service Commissioner under section 41B of the Act; and
    2. reviewable action (including the action of finding that the affected employee has breached the Code of Conduct).
      Note: A locally engaged employee is not an APS employee and, therefore, is not entitled to review of action under this Division.
  2. If the affected employee makes an application for review under this Division, the affected employee ceases to be entitled to review under this Division if, after the application is made:
    1. the employee ceases to be employed; or
    2. the employee is promoted to an SES position.
  3. A former APS employee is not entitled to review under this Division.
    Note: For rights of former APS employees to review, see Part 7.

32 Subregulation 5.23(3)

Omit “or committee that”, substitute “who”.

33 Paragraph 5.23(3)(a)

Repeal the paragraph, substitute:

  1. the application by the affected employee for review of the action is misconceived or lacking in substance;

34 At the end of regulation 5.23

Add:

  1. Also, an action mentioned in an item of the table is not, or ceases to be, reviewable action if a circumstance mentioned in the item applies.
Actions that are not, or cease to be, reviewable
Item Action Circumstance
1 An application for primary review of an APS action made to an affected employee's Agency Head under subregulation 5.24(1) The application is not made within 120 days of the APS action
2 An application for primary review of an APS action made to the Merit Protection Commissioner under paragraph 5.24(2)(a) The application is not made within 60 days of the determination that the affected employee has breached the Code of Conduct
3 An application for primary review of an APS action made to the Merit Protection Commissioner under paragraph 5.24(2)(b) The application is not made within 60 days of the sanction for breach of the Code of Conduct being imposed
4 An application for primary review of an APS action made to the Merit Protection Commissioner under subregulation 5.24(3 The application is not made within 60 days of the APS action
5 An application made to the Merit Protection Commissioner for secondary review of an APS action if the Agency Head has told the affected employee under regulation 5.26 that the APS action is not reviewable The application is not made within 60 days of the affected employee being told that the APS action is not reviewable
6 An application made to the Merit Protection Commissioner for secondary review of an APS action if:
(a) the Agency Head has told the affected employee of the Agency Head's decision under subregulation 5.27(5); and
(b) the affected employee is dissatisfied with the decision
The application is not made within 60 days of the affected employee being told of the Agency Head's decision
7 An application made to the Merit Protection Commissioner for secondary review of an APS action The application for primary review of the action was an application referred to in item 1
  1. However, an action mentioned in an item of the table in subregulation (4) is reviewable action if the person who is, or would be, conducting the review considers that there are exceptional circumstances explaining the failure to make an application within the period in the item.

35 Regulation 5.23A

Repeal the regulation.


Attachment B: Public Service Amendment Regulation 2013

37 Subregulation 5.27(1)

Repeal the subregulation, substitute:

  1. If an Agency Head:
    1. does not refer an application for review to the Merit Protection Commissioner; and
    2. considers that the employee is entitled to review under this Division;
    the Agency Head must review the action and attempt to resolve the employee's concerns about the action.

38 Subregulations 5.28(2), (3), (4) and (5)

Repeal the subregulations, substitute:

  1. If the Merit Protection Commissioner considers that the employee is entitled to review under this Division, the Merit Protection Commissioner:
    1. must review the action; and
    2. may, subject to the minimum requirements mentioned in subregulation 5.33(1), conduct the review in any manner the Merit Protection Commissioner thinks fit; and
    3. must make a recommendation to the Agency Head, in writing, about the action; and
    4. must tell the Agency Head, in writing, the reasons for the recommendation; and
    5. must tell the employee, in writing, of the recommendation and reasons given to the Agency Head.

39 Regulation 5.31

Repeal the regulation, substitute:

5.31 Conduct of review

If the Merit Protection Commissioner considers that the employee is entitled to review under this Division, the Merit Protection Commissioner:

  1. must review the action; and
  2. may, subject to the minimum requirements mentioned in subregulation 5.33(1), conduct the review in any manner the Merit Protection Commissioner thinks fit; and
  3. must make a recommendation about the action; and
  4. must tell the Agency Head, in writing, the recommendation and reasons for the recommendation; and
  5. must tell the employee, in writing, of the recommendation and reasons given to the Agency Head.

40 After subregulation 5.32(2)

Insert:

  1. If the Agency Head acts in accordance with the recommendation, the Agency Head is not required to seek the view of the employee before acting on the recommendation.
    Note: The views of the APS employee have already been sought by the Merit Protection Commissioner during the review in accordance with the principles of procedural fairness.

Attachment C Public Service Amendment Regulation 2013

25 At the end of regulation 5.12

Add:

  1. Subject to paragraph 5.33(1)(a):
    1. a person mentioned in subregulation (1) is not entitled to have access to a statement mentioned in subregulation (1) or (1A) that is given to the Merit Protection Commissioner by another person mentioned in subregulation (1) or (1A); and
    2. a person mentioned in subregulation (1A) is not entitled to have access to a statement mentioned in subregulation (1) or (1A) that was given to the Merit Protection Commissioner by another person mentioned in subregulation (1) or (1A)