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Legislative framework

This topic is to assist agencies in interpreting the legislative provisions for review. It does not cover reviews of promotions under Division 5.2 of the Public Service Regulations (the Regulations). Nor is it intended to be a prescriptive guide or a substitute for legal advice.

Policy framework

One of the APS Values at sub-section 10(1)(o) of the Public Service Act 1999 (the Public Service Act) is;

The APS provides a fair system of review of decisions taken in respect of APS employees.

This "fair system of review" is in practice the review of actions scheme and is set out in section 33 of the Public Service Act 1999 (the Act) and Part 5 of the Regulations. While the Act provides the basic entitlement to review, much of the detail of the scheme is contained in Division 5.3 of the Regulations.

A statement of the policy intent of the review of actions scheme is in Regulation 5.1 that requires agencies to have in place arrangements that encourage productive and harmonious working environments where:

  • employees concerns are dealt with quickly, impartially and fairly
  • review processes are consistent with alternative dispute resolution methods.

Two tiers of review

There are two tiers of review. The first tier involves an internal review by the employee's agency known generally as a primary review (Regulation 5.24). If the employee is dissatisfied with the outcome of that process, he or she has access to a second tier of review known as 'secondary review' (Regulation 5.29) conducted by the Merit Protection Commissioner, an independent statutory officer located with the Australian Public Service Commission.

Employees may make an application for primary review in the first instance to the Merit Protection Commissioner in the circumstances prescribed in Regulation 5.24. These are:

  • for review of a decision that an employee has breached the APS Code of Conduct and/or of the resulting sanction
  • if the employee's agency head was directly involved in the relevant action or decision
  • where it is not appropriate, because of the seriousness or sensitivity of the action, for the agency head to deal with the review application
  • where the employee claims that the relevant action or decision is victimisation or harassment because of having made a previous application for review.

Responsibilities of the agency when conducting reviews

In accordance with Regulation 5.27(1), if an agency head receives an application for review of an action, the agency head must review the action unless:

  • the agency head refers the application for review to the Merit Protection Commissioner or
  • the action is not, or ceases to be, reviewable.

The agency head must attempt to resolve the employee's concerns about the action (Regulation 5.27(1)).

The review may be conducted in any manner the agency head thinks fit (Regulation 5.27(2)). There is however the requirement to give reasons in writing for any decision (Regulation 5.27(5)). This implies an evidence gathering process to support the decision which might take the form of an inquiry but need not. Most agencies appoint someone to conduct an inquiry to make recommendations to a delegate.

An agency head may confirm, vary or set aside the action under review (Regulation 5.27(3)). However, consistent with the requirement to attempt to resolve the employee's concerns, this is not the limit of what an agency head can do in response to a review of actions. The agency head can take any action, within the limits of his or her employment powers, to rectify an action or restore the employee to the position they would have been in, but for the action (Regulation 5.27(4)).

Regulation 5.33 requires that the procedures used to conduct a review comply with some minimum requirements:

  • the procedures must have due regard to procedural fairness
  • the review must be conducted in private
  • the review must be finished as quickly, and with as little formality, as proper consideration of the matter allows.

Making an application under the scheme is an entitlement for APS employees under the Public Service Act. There is an implied prohibition on victimisation or harassment of an employee for making an application for review as employees have the entitlement to seek a primary review by the Merit Protection Commissioner under Regulation 5.24(3)(c) on this basis.

Responsibilities of agency when the application is referred to the Merit Protection Commissioner

Under Regulation 5.29, an employee may apply to the Merit Protection Commissioner for secondary review where the agency head:

  • declines to conduct a primary review for the reasons set out in Regulation 5.23(3) or
  • reviews the matter and the employee is dissatisfied with the outcome.

The employee must submit the application for secondary review through the agency (Regulation 5.29(2)).

Upon receiving the application, the agency must give the Merit Protection Commissioner the application and any documents relevant to the primary review within 14 days of receipt of the application (Regulation 5.30(1)).

The agency must provide copies of all the documents given to the Merit Protection Commissioner to the employee (Regulation 5.30(2)). This provision compels agencies to provide this information to the employee and is the authority for the disclosure of any personal information in these documents in accordance with the Privacy Act 1988.

Agencies may sometimes be concerned about releasing information to the employee if it was gathered "confidentially" or is subject to legal professional privilege. Even where information was gathered 'confidentially' , agencies will be required to provide it to the employee seeking secondary review, in accordance with Regulation 5.30(2), if it is a 'relevant document relating to the primary review'. Agencies should avoid giving undertakings of confidentiality when conducting reviews.

Where agencies have concerns about the releasing information subject to legal professional privilege they should raise them with the Office of the Merit Protection Commissioner or consider seeking legal advice.

Agencies should note that Regulation 5.30(2) does not apply in the case of primary reviews conducted by the Merit Protection Commissioner. In this circumstance, agencies are asked to provide the documents relevant to the review to the employee. It will generally be necessary for the employee to have the documents provided to the Merit Protection Commissioner, or the substance of the information relied upon by the Merit Protection Commissioner, in order to be accorded procedural fairness. Where agencies are concerned about the confidentiality of such information or that it may be subject to legal professional privilege, they should raise these concerns with the Merit Protection Commissioner.