Commission Advice 2013/05: Australian Public Service Commissioner’s functions (including appointment of Special Commissioners)

Last updated: 07 Feb 2014

This page is: archived

Role and functions of the Australian Public Service Commissioner
Special Commissioners

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consequence the Public Service Regulations 1999 have been amended and the Public Service Commissioner's Directions 1999 repealed and replaced with the Australian Public Service Commissioner's Directions 2013 (the Directions).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) is developing a series of ‘Advices’ to assist Australian Public Service (APS) agencies implement the changes in the amended legislation and the new Directions. The Advices are available on the Circulars and advices page of the Commission's website.

This Advice provides information on the functions of the Australian Public Service Commissioner (the Commissioner). As a result of amendments to the Act, the Commissioner's functions have been reformulated to clarify the role and its focus. There are also new functions which are described below. The amendments clarify a number of matters relating to the powers available to the Commissioner to carry out the functions of that office.

This Advice also provides information about the role and functions of Special Commissioners.

These new functions come into effect on commencement of the amended Act, amended Regulations and the Directions on 1 July 2013.

Why are these changes being made?

The Amendment Act strengthens the role of the Commissioner as a central authority for APS development and reform, taking a leading part in ensuring that the APS has the organisational and workforce capability to meet future needs.

The Commissioner currently has extensive authority to undertake reviews and inquiries which were introduced in 1999, including an ‘own motion’ power and, in defined circumstances, the Commissioner may exercise the same information-gathering powers as the Auditor-General. The amendments provide more detail on the circumstances in which the Commissioner might be asked by the Government to conduct a review and the matters the Commissioner might be asked to examine. The amendments also provide for the appointment of Special Commissioners to assist with certain types of review, or part of a review. Special Commissioners will report through the Public Service Commissioner. The amendments deliver an improved mechanism for Government to obtain timely reports on specific areas of concern that may arise from time to time.

Complementing these changes, are amendments that provide for the Commissioner to investigate suspected misconduct by employees in any APS agency. It is expected that this function would be exercised infrequently, recognising that agency heads have responsibility for maintaining standards of conduct in their agencies, and that generally agency heads should determine whether their employees have breached the Code of Conduct. However, there may be rare cases where public interest concerns raised by a particular allegation make it desirable that matters are investigated and determined by an authority that is both expert and independent.

What changes are being made?

Section 41 of the PS Act has been amended to provide the Commissioner with three broad functions to:

  • strengthen the professionalism of the APS and facilitate continuous improvement in workforce management in the APS
  • uphold high standards of integrity and conduct in the APS
  • monitor, review and report on APS capabilities within and between agencies to promote high standards of accountability, effectiveness and performance.

Paragraph 41(2)(g) of the amended Act provides for the Commissioner to partner with Secretaries in the stewardship of the APS.

Subsection 41(2) and sections 41A and 41B of the amended Act set out other functions. These include:

  • conducting ‘system reviews’ and 'special reviews
  • inquiring into and determining whether an APS employee, or former APS employee, has breached the APS Code of Conduct.

The Commissioner's functions are set out in full in the attachment.

Reviews, evaluations and inquiries

Paragraphs 41(2)(c), (f), (j), (k), (l), (m) and (o) of the amended Act takes account of the new Employment Principles and broadly replicates existing functions of the Commissioner to:

  • develop, review and evaluate APS workforce management policies and practices and maintain appropriate databases
  • review any matter relating to the APS
  • review any matter relating to the APS referred to the Commissioner by the Public Service Minister, and report on that matter to the Public Service Minister
  • evaluate the extent to which agencies incorporate and uphold the APS Values and the APS Employment Principles
  • evaluate the adequacy of systems and procedures in agencies for ensuring compliance with the Code of Conduct
  • inquire, in accordance with section 41A, into alleged breaches of the Code of Conduct by agency heads
  • inquire, subject to regulations made for the purposes of section 16, into whistleblower reports made to the Commissioner (or a person authorised by the Commissioner) as referred to in that section.

Sections 41 C and 41D of the amended Act introduces 'systems reviews' and 'special reviews' and provides more detail on how the Commissioner will conduct these particular reviews.

Systems reviews

Section 41C provides for the Commissioner to undertake 'systems reviews'. The Prime Minister may direct the Commissioner to conduct a systems review of any matter relating to an agency, including:

  • the processes and or the management and organisational systems, structures or processes in an Agency
  • the functional relationships between two or more agencies.

An Agency Minister or the Secretary of a Department may seek a review but must have the Prime Minister's agreement.

Special reviews

Section 41D provides for the Commissioner to undertake 'special reviews'. The Prime Minister may direct the Commission to conduct a special review of:

  • any matter relating to an agency
  • the functional relationship between two or more agencies.

Special reviews may only be initiated at the direction of the Prime Minister. The Commissioner will have available similar information gathering powers as those available to the Auditor-General to undertake special reviews (paragraph 43(1)(d) of the amended Act).

Special Commissioners

To assist the Commissioner to conduct reviews, section 48A of the amended Act provides for the Governor General to appoint, on the recommendation of the Prime Minister, one or more Special Commissioners to assist the Commissioner in conducting a specified systems review or special review, or a part of such a review.

The Prime Minister must consult the Commissioner about the appointment before making a recommendation (subsection 48A(2)).

Special Commissioner's report through the Commissioner.

Code of Conduct investigations

Currently, the power to determine whether an APS employee has breached the Code of Conduct rests wholly with the head of that employee's agency, or a person appointed for that purpose by the agency head. Amendments have been made to allow for the Commissioner to conduct an investigation into suspected misconduct by one or more employees in an APS agency.

Section 41B establishes the capacity for the Commissioner to inquire into and determine whether an APS employee, or a former APS employee, in an agency has breached the Code of Conduct. The Commissioner's investigatory function may be triggered by a request from the Prime Minister or the relevant agency head. The Commissioner may decline to conduct an investigation.

Regulation 6.4 of the amended Regulations sets out the procedures the Commissioner must follow in undertaking an investigation. Regulation 6.5 provides that the Commissioner may discontinue an investigation if he or she reasonably believes that it would not be appropriate in all the circumstances to continue the inquiry.

For the purposes of inquiring into and determining whether an APS employee, or a former APS employee, in an agency has breached the Code of Conduct, the Commissioner may exercise the same powers as an agency head may exercise in making such a determining (subsection 41B(7)).

A determination by the Commissioner that a non-SES employee has breached the Code of Conduct will be subject to review by the Merit Protection Commissioner, recognising that, in effect, the Commissioner is standing in the shoes of the agency head in making the determination.

Where an employee has been found by the Commissioner to have breached the Code of Conduct, the Commissioner may recommend sanctions if requested to do so by the Prime Minister, or the relevant agency head. The sanctions that the Commissioner may recommend are those set out in subsection 15(1) of the Act.

As is currently the case, sanction decisions taken by an agency head about a non-SES employee will be reviewable by the Merit Protection Commissioner, unless the sanction is termination of employment. As is currently the case, a person may apply to the Fair Work Commission for a remedy if their employment has been terminated.

Agency heads

Currently the Act provides that the Commissioner may inquire into alleged breaches of the Code of Conduct by agency heads and report to the appropriate authority on the results of such inquiries. Section 41A of the amended Act sets out the authorities to whom the report must be provided in particular circumstances (essentially replicating a similar provision in the existing Act), and provides a regulation making power to prescribe the circumstances in which the Commissioner may decline to conduct an inquiry, or to discontinue an inquiry, without invoking the reporting requirements.

Subregulation 6.3(2) prescribes matters to which the Commissioner must have regard in deciding to decline or discontinue an inquiry into a breach of the Code of Conduct by an agency head.

What do agencies need to do?

Agencies need to review existing policies and procedures to include or update references, where necessary, to the Commissioner's amended functions and powers.

See also Advice 6 on changes to the Merit Protection Commissioner's functions and Advice 7 on changes to handling misconduct.

Transitional arrangements

There are no transitional arrangements necessary. The Commissioner's new functions and powers start on 1 July 2013.

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.

Enquiries from agencies’ corporate services staff can be made by email at ethics@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: Public Service Amendment Act 2013

16 Section 41

Repeal the section, substitute:

41 Commissioner's functions

  1. The Commissioner has the following functions:
    1. to strengthen the professionalism of the APS and facilitate continuous improvement in workforce management in the APS;
    2. uphold high standards of integrity and conduct in the APS;
    3. to monitor, review and report on APS capabilities within and between Agencies to promote high standards of accountability, effectiveness and performance.
  2. Without limiting subsection (1), the Commissioner's functions include the following:
    1. to foster, and contribute to, leadership, high quality learning and development and career management in the APS;
    2. to lead the thinking about, provide advice on and drive reforms to workforce management policies so that the APS is ready for future demands;
    3. to develop, review and evaluate APS workforce management policies and practices and maintain appropriate databases;
    4. to foster an APS workforce that reflects the diversity of the Australian population;
    5. to promote the APS Values, the APS Employment Principles and the Code of Conduct;
    6. to evaluate the extent to which Agencies incorporate and uphold the APS Values and the APS Employment Principles;
    7. to partner with Secretaries in the stewardship of the APS;
    8. to provide advice and assistance to Agencies on public service matters;
    9. to work with other governments (including foreign governments) on matters relating to public sector workforce management, leadership and career management;
    10. to review any matter relating to the APS;
    11. to review any matter relating to the APS referred to the Commissioner by the Public Service Minister, and report on that matter to the Public Service Minister;
    12. to evaluate the adequacy of systems and procedures in Agencies for ensuring compliance with the Code of Conduct;
    13. to inquire, in accordance with section 41A, into alleged breaches of the Code of Conduct by Agency Heads;
    14. to inquire into and determine, in accordance with section 41B, whether an APS employee, or a former APS employee, has breached the Code of Conduct;
    15. to inquire, subject to regulations made for the purposes of section 16, into whistleblower reports made to the Commissioner (or a person authorised by the Commissioner) as referred to in that section;
    16. such other functions as are conferred on the Commissioner by this Act, the regulations or any other law;
    17. such other functions as the Prime Minister, by legislative instrument, directs the Commissioner to perform;
    18. to do anything incidental to or conducive to the performance of any of the Commissioner's functions.

Note: Neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to a direction given under paragraph (2)(q) (see sections 44 and 54 of that Act).

Reports may include recommendations

  1. A report made by the Commissioner in the performance of his or her functions may include recommendations.

Fees

  1. The regulations may authorise the Commissioner to charge fees (on behalf of the Commonwealth) for the performance, on request, of the Commissioner's functions.

41A Inquiry into alleged breach of Code of Conduct by Agency Head

  1. The Commissioner may, for the purposes of paragraph 41(2)(m), inquire into an alleged breach of the Code of Conduct by an Agency Head.
  2. The Commissioner must report on the results of an inquiry under subsection (1) (including, if relevant, recommendations for sactions) to:
    1. if the Agency Head is a Secretary—the Prime Minister; or
    2. if the Agency Head is the Head of an Executive Agency—the Agency Minister; or
    3. if the Agency Head is the Head of a Statutory Agency that is prescribed by the regulations for the purposes of this paragraph—the Presiding Officers; or
    4. if the Agency Head is the Head of a Statutory Agency that is not prescribed by the regulations for the purposes of paragraph (c)—the Agency Minister.
  3. The regulations may prescribe circumstances in which the Commissioner:
    1. may decline to conduct an inquiry under subsection (1); or
    2. may discontinue such an inquiry without making a report under subsection (2).

41B Inquiry into alleged breach of Code of Conduct by APS employee or former APS employee

Request for inquiry

  1. The Commissioner may, for the purposes of paragraph 41(2)(n), inquire into and determine whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct if:
    1. the Agency Head or the Prime Minister requests the Commissioner to do so; and
    2. the Commissioner considers it would be appropriate to do so.
  2. The Prime Minister may make a request under paragraph (1)(a) in relation to an alleged breach of the Code of Conduct of which the Prime Minister has become aware as a result of, or in the course of, a systems review or a special review.

Procedures for inquiry

  1. The Commissioner must establish written procedures for inquiring into and determining whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct (including by engaging in conduct referred to in subsection 15(2A)). The procedures:
    1. must comply with basic procedural requirements prescribed by the regulations; and
    2. must have due regard to procedural fairness.
  2. In addition, and without affecting subsection (3), the procedures may be different for:
    1. different categories of APS employees or former APS employees; or
    2. APS employees, or former APS employees, who:
      1. have been convicted of an offence against a Commonwealth, State or Territory law in respect of conduct that is alleged to constitute a breach of the Code of Conduct; or
      2. have been found to have committed such an offence but no conviction is recorded.
  3. The Commissioner must ensure that the procedures established under subsection (3) are made publicly available.
  4. Procedures established under subsection (3) are not legislative instruments.

Commissioner's powers

  1. For the purposes of inquiring into and determining whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct, the Commissioner may exercise the same powers as the Agency Head may exercise in determining whether an APS employee, or a former APS employee, in the Agency has breached the Code of Conduct.

Report on results of inquiry

  1. The Commissioner must report on the results of an inquiry and determination under this section (including an inquiry that is discontinued) in relation to an APS employee, or a former APS employee, in an Agency to:
    1. the Agency Head; and
    2. if the Prime Minister requested the inquiry—the Prime Minister.

Recommendation of sanctions

  1. If:
    1. the Commissioner finds that an APS employee in an Agency has breached the Code of Conduct; and
    2. the Commissioner is requested to recommend sanctions in respect of the breach by:
      1. the Agency Head; or
      2. if the Prime Minister requested the inquiry—the Prime Minister;
      the Commissioner may recommend any of the sanctions referred to in subsection 15(1).

Note: A sanction referred to in subsection 15(1) would be imposed on the APS employee by the Agency Head, not by the Commissioner.

Discontinuation of inquiry

  1. The regulations may prescribe circumstances in which the Commissioner may discontinue an inquiry under this section.

41C Systems reviews

  1. The Prime Minister may direct the Commissioner to conduct a review (a systems review) of any matter relating to an Agency, including:
    1. the management and organisational systems, structures or processes in an Agency; and
    2. the functional relationships between 2 or more Agencies.
  2. An Agency Minister may request the Prime Minister to make a direction under subsection (1) that relates to an Agency.
  3. The Secretary of a Department may request the Prime Minister to make a direction under subsection (1) that relates to the Department or any other Agency in the same portfolio as the Department.
  4. The Commissioner must give a report on the review to:
    1. the Prime Minister; and
    2. if the review was conducted because of a request by an Agency Minister or a Secretary—the Agency Minister or the Secretary.
  5. If a direction under subsection (1) is given in writing, the direction is not a legislative instrument.

41D Special reviews

  1. The Prime Minister may direct the Commissioner to conduct a review (a special review) of:
    1. any matter relating to an Agency; or
    2. the functional relationships between 2 or more Agencies.
  2. The Commissioner must give a report on the review to:
    1. the Prime Minister; and
    2. the Agency Minister of each Agency to which the review relates.
  3. If a direction under subsection (1) is given in writing, the direction is not a legislative instrument.