Section 4: Ministerial powers
The PS Act provides for a number of powers or functions to be exercised by the Prime Minister and the Public Service Minister (that is, the Minister who administers the PS Act). It also enables the Prime Minister and Public Service Minister to delegate powers and functions.
Section 78(1) of the PS Act, together with section 34AAB of the Acts Interpretation Act 1901 (AI Act), enables the Prime Minister to delegate other Ministers to perform on their behalf, the powers and functions they have under the PS Act.
Public Service Minister
Section 78(2) of the PS Act, together with section 34AAB of the Acts Interpretation Act 1901 (AI Act), enables the Public Service Minister to delegate other Ministers to perform on their behalf, the powers and functions they have under the PS Act.
The Public Service Minister’s power provided in section 24 of the PS Act cannot be delegated.
Public Service Minister - Payments in special circumstances power
The Public Service Minister has the power under section 73 of the PS Act to make payments to persons in special circumstances. Section 73 of the PS Act allows the Public Service Minister to delegate their powers to a "senior official". A senior official is defined in subsection 78(12) as:
- a person who holds any office or appointment under an Act
- a Senior Executive Service (SES) employee or acting SES employee.
The Public Service Minister has delegated this power only to Agency Heads, who may not subdelegate this power.
Section 73 of the PS Act and regulation 9.4 of the PS Regulations provide the terms for such payments as follows:
- payments may be made in one or more specific amounts, or by way of periodical payments as specified in the authorisation, and may be authorised even though the payments would not otherwise be authorised by law or required to meet a legal liability
- an authorisation cannot be made if it would involve, or would be likely to involve, a total amount of more than $250,000 (see Regulation 9.4 of the PS Regulations)
- conditions can be attached to any payment and if a condition is breached, the payment may be able to be recovered by the Commonwealth in a court.
- It is suggested that legal advice be sought if agencies propose to attach conditions to any such payment.
- Payments under this section must be made from money appropriated by the Parliament. Generally a payment can be debited against an Agency’s annual appropriation, providing that it relates to some matter that has arisen in the course of its administration (see note under section 73 of the PS Act).