9. Review of actions and other review options

Last updated: 09 Jun 2015

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9.1 Fair employment decisions

9.1.1 One of the Australian Public Service (APS) Employment Principles is that the APS makes fair employment decisions with a fair system of review. Under s33 of the Public Service Act 1999 (PS Act), APS employees are entitled to review of actions or decisions that relate to their APS employment, with some exceptions. The Public Service Regulations 1999 (the PS Regulations) provide limits and exceptions to the right of review.

9.1.2 Division 7.3 of the PS Regulations extends that review right to former employees found after separating from the APS to have breached the Code.

9.2 Eligibility for review

Current APS employees

9.2.1 Non-Senior Executive Service (SES) employees who have been found to have breached the Code of Conduct (the Code) and who wish to challenge either the determination that a breach has occurred, or the sanction imposed, or both, may lodge an application for review with the Merit Protection Commissioner under Division 5.3 of the PS Regulations.

9.2.2 In addition to these decisions, other decisions relating to the investigation for suspected misconduct may also be reviewable including, for example, a decision to suspend an employee from duties or to re-assign an employee's duties temporarily while a Code investigation is underway. These decisions are reviewable in the first instance by the relevant agency head.

Former APS employees

9.2.3 A former non-Senior Executive Service APS employee may also seek a review of a determination that they breached the Code where the determination was made after the employee ceased APS employment. The relevant provisions are in Division 7.3 of the PS Regulations. As no sanction can be imposed on a former employee, there is no provision for former employees to have review rights in relation to sanction decisions.

9.3 Other avenues for review

Termination of employment

9.3.1 An employee whose APS employment has been terminated for misconduct cannot apply for review of that decision under s33 of the PS Act but may have access to the remedies under the Fair Work Act 2009 by making an application to the Fair Work Commission.

Other grounds for review by the Fair Work Commission

9.3.2 Employees and former employees may have other grounds for seeking review for seeking remedy under the Fair Work Act, including the general protections provisions in the Act. Further information is available from the Fair Work Commission at www.fwc.gov.au.

Judicial review

9.3.3 Employees and former employees may also have access to review by the courts, generally on a question of law, rather than the merits of the decision. For example, under the Administrative Decisions (Judicial Review) Act 1977, the Federal Circuit Court of Australia and the Federal Court of Australia have the power to review certain decisions. Generally, the courts' role is to ensure that decision-makers acted fairly and within the law and followed proper procedures in coming to a decision. The time limit for such applications is usually 28 days from being notified of the relevant decision. The websites for the courts are at www.federalcircuitcourt.gov.au and www.federalcourt.gov.au.

9.4 Key points for agency guidance material

9.4.1 It is good practice to include information about review rights in agency guidance material and advice in letters advising employees of Code decisions. In particular it would be helpful for guidance material to:

  • advise employees, and former employees, of their rights of review under s33 of the PS Act and to link to the relevant information on the Australian Public Service Commission's website www.apsc.gov.au/merit
  • advise employees whose employment has been terminated of their right of review by the Fair Work Commission and to link to the relevant information on the Fair Work Commission website.

9.4.2 In relation to decisions about suspension, agency guidance material will need to include advice that regulation 5.27(5) of the PS Regulations requires an agency head to tell an employee of their right of review to the Merit Protection Commissioner following any internal review by the agency head in accordance with s33 of the PS Act.

9.4.3 Agencies may wish to consider whether to include advice about the general protections provisions in the Fair Work Act and the option of judicial review.

9.5 Further information on reviews by the Merit Protection Commissioner

9.5.1 Further information on reviews of Code of Conduct decisions under the PS Act, including the role of the Merit Protection Commissioner, are on the Australian Public Service Commission website at www.apsc.gov.au/merit.