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Stakeholder engagement, business improvement and governance

Working with stakeholders

In 2018–19 we continued our outreach to APS agencies, human resources practitioners and employees regarding lessons learnt from the review caseload. The aim of working with internal and external stakeholders is to improve employment-related decision making in the APS.

During 2018–19:

  • The Merit Protection Commissioner or her staff had 70 contacts with stakeholders—either through meetings or presentations.
  • The Merit Protection Commissioner undertook a series of meetings with senior staff in agencies when she started in the role.
  • The Merit Protection Commissioner and senior staff met with senior executives and practitioners in agencies to discuss specific case outcomes, including outcomes that raised broader issues about agency policy and practice. These included the largest agencies—the Australian Taxation Office, Department of Defence and Department of Human Services.
  • The Sydney-based Review of Action and Code of Conduct Community of Practice for APS practitioners continued to meet. The group held three meetings in 2018–19 (November, February and May), one of which was chaired by the Merit Protection Commissioner. Issues of interest discussed by group members included consistency of sanctions, managing mental health, handling unreasonable complainants, and alternative dispute resolution.
  • The Merit Protection Commissioner made a presentation to a Working Together Conference conducted by the Australian Taxation Office in March 2019 and also met with a delegation from Taiwan in November 2018.
  • In March 2019 a senior employee represented the Merit Protection Commissioner at three APS-wide graduation development programs focusing on recruitment and staff engagement. The sessions were part of the Australian Public Service Commission’s APS graduate program. In April 2019 another staff member gave a presentation to the APS Small Agencies Forum on performance management and the Code of Conduct.

The Merit Protection Commissioner contributes to the ethics and integrity framework as a member of the Integrity Agencies Group. The group enables information sharing and collaboration between statutory office holders and agencies with responsibility for integrity matters. The Merit Protection Commissioner attended two meetings in 2018–19.

Staff also attend the Ethics Contact Officer Network meetings run by the Integrity, Performance and Employment Policy Group within the Australian Public Service Commission. The network promotes the Government's ethical agenda, which focuses

on enhancing ethics and accountability in the APS and is another forum we can use to encourage good decision making.

We also worked with agencies to help them manage promotion review processes and provide feedback on the effectiveness of their selection processes. The focus was agencies conducting bulk promotion exercises, such as the Department of Home Affairs. In addition, we discussed matters related to promotion review with the policy teams in the Australian Public Service Commission, to ensure consistency of advice to agencies.

Business improvements

During the reporting year, the Merit Protection Commissioner began reviewing our strategy and operations. While last year’s report stated this should have been completed by this financial year, this work was still ongoing at the end of the reporting period. We held an employee planning day in December 2018, and have done preliminary work to develop a strategic plan and business plan. A marketing and communications strategy was also drafted during the relevant period.

Staff performance and activities

We have worked on documenting role descriptions and standards of performance to strengthen the performance management procedures within our office. We are making greater use of technology in monitoring attendance and leave, and processes for recording staff training and participation in meetings and presentations.

Review procedures manual

In early 2019 we began a project to update our procedural guides and develop decision making tools to support review advisers.

Merit Protection Commissioner’s website

The Merit Protection Commissioner’s website was moved to the GovCMS platform during the reporting year. As part of this process we reviewed and updated our website content.

Improving papers distribution for Promotion Review Committees

During the year we moved to using Govteams, a collaborative working space administered by the Department of Finance. Govteams facilitates the exchange of information and documents electronically between APS agencies and the office of the Merit Protection Commissioner. Importantly, Govteams allows papers to be provided to Promotion Review Committee members.

Changes to review case management processes

At the start of 2019, we introduced changes to case handling to improve efficiency and timeliness in handling reviews, and to promote a risk management approach to handling reviews.

We introduced a system of triage for handling review cases, which involves a prima facie assessment of the significance and risk attached to particular review matters to inform who the case is allocated to and the way it is handled.

The Merit Protection Commissioner has also expanded the number of staff with delegations to perform her functions. Previously only officers at the EL2 were given delegations. However, EL1 officers who have demonstrated an ability to independently conduct reviews have now also been given delegations. We introduced a supervision model in which less experienced delegates are supervised by more experienced delegates.

We also introduced fortnightly case management meetings of review staff to share learnings and identify agency-specific and systemic issues, which were fed back to agencies.

Training for Merit Protection Commissioner’s casual staff and Merit Protection Commissioner nominees

The Merit Protection Commissioner maintains registers of suitably qualified non-ongoing (casual) staff to undertake statutory functions, including convening Promotion Review Committees and Independent Selection Advisory Committees and conducting inquiries into alleged breaches of the Code of Conduct. New contracts were issued to non-ongoing employees in January 2019.

On every Promotion Review Committee there must be a nominee of the Merit Protection Commissioner. These nominees are agency staff from across the APS who have the necessary knowledge and expertise to participate in a promotion review process. The role is important as the Merit Protection Commissioner nominee is, and is seen to be, an impartial and independent APS employee. The APS employees undertake this role on a voluntary basis and their agency head makes them available to perform the role. Our register of Merit Protection Commissioner nominees had not been reviewed or updated for a considerable period of time, and during 2018–19 we refreshed this list.

During November and December 2018 we sought applications from APS employees wanting to be placed on the register of qualified Merit Protection Commissioner nominees, through direct communication to agency heads and other senior executives, and by advertising in the APS Gazette. We received 67 applications, which we assessed for experience and suitability. All applicants were registered as suitable to be a Merit Protection Commissioner nominee on future Promotion Review Committees. We also sought interest from existing nominees to continue to perform the role, and 50 APS employees decided to continue in the voluntary role.

All nominees must be trained by Merit Protection Commissioner or her staff before they can undertake the role on a Promotion Review Committee. The Merit Protection Commissioner and her staff conducted this training across Australia for new and existing nominees during April to June 2019 as set out in Table 1.

Table 1: Attendees at training sessions for Merit Protection Commissioner nominees on Promotion Review Committees

Date

Location

Number of attendees

30 April 2019

Sydney

10

14 May 2019

Canberra

30

15 May 2019

Hobart

5

16 May 2019

Melbourne

18

17 May 2019

Adelaide

2

20 May 2019

Perth

4

22 May 2019

Brisbane

6

5 June 2019

Sydney

7

The Merit Protection Commissioner is grateful to the Australian Taxation Office, the Department of Human Services and the Office of the Australian Information Commissioner for making training rooms available in their premises for the nominee training.

We also provided training to five Independent Selection Advisory Committee panels and to a new employee engaged to conduct Code of Conduct inquiries. The Independent Selection Advisory Committee training was held in March 2019 and involved four sessions for 13 people located in five states, and a discussion with the agency delegate.

Governance and management

The Australian Public Service Commission is included in the Department of the Prime Minister and Cabinet’s Portfolio Budget Statements. The Australian Public Service Commissioner, as head of the Commission, is responsible for the Commission’s financial and human resources and for assessing the level of the Commission’s achievement against its outcome.

During 2018–19 the Merit Protection Commissioner had managerial responsibility for the work of the Commission employees made available to work in the Office of the Merit Protection Commissioner.

In 2018–19 the Merit Protection Commissioner was a member/observer of the Australian Public Service Commission’s Executive, a senior management group chaired by the Australian Public Service Commissioner.

Staffing and office locations

The staff who support the Merit Protection Commissioner’s work are made available by the Australian Public Service Commissioner in accordance with section 49 of the Public Service Act.

The Merit Protection Commissioner is based in the Commission’s Sydney office and has staff in the Australian Public Service Commission’s Sydney and the Canberra offices. During 2018–19 the Merit Protection Commissioner was supported by 12 staff in 11 ongoing positions. Of these:

  • three positions are at the EL2 level with one job-share arrangement
  • five positions are at the EL1 level
  • one position is at the APS 5 level
  • two positions are at the APS 4 level.

The small number of staff means we are organised along functional lines, with staff performing more than one function and reporting to one or more supervisors. The main functional/team areas are: review of action and promotion review casework; policy and projects; fee for service casework; and Merit Protection Commissioner inquiries.

The Merit Protection Commissioner also maintains a register of suitably skilled people who are engaged as casual employees at the EL2 or EL1 level. These staff may be engaged as required for irregular or intermittent duties (for example, to chair a Promotion Review Committee or undertake fee for service activities). There were 14 employees listed as casual employees during 2018–19. Throughout the year, casual employees undertook work equivalent to approximately one ASL.

Financial arrangements and corporate support

The Merit Protection Commissioner is neither a Commonwealth entity nor an accountable authority for the purposes of the Public Governance, Performance and Accountability Act 2013. Rather, she is a statutory officer appointed by the Governor-General under section 52 of the Public Service Act 1999. Section 49(2) of the Act requires that the staff necessary to assist the Merit Protection Commissioner must be persons engaged under that Act and be made available by the Australian Public Service Commissioner. Consequently the Merit Protection Commissioner does not have a separate budget allocation and depends on the Australian Public Service Commission for its staffing levels and resources more generally to undertake its functions.

For 2018–19 the Merit Protection Commissioner was allocated an annual budget (excluding corporate costs) of $1.76 million.

The Merit Protection Commissioner and the Australian Public Service Commissioner have a memorandum of understanding for the provision of staff and corporate services. The current memorandum of understanding took effect in June 2015.

Interaction of the roles of the Merit Protection Commissioner and the Australian Public Service Commissioner

The respective responsibilities of the Merit Protection Commissioner and the Australian Public Service Commissioner are established in the Public Service Act. The roles are complementary, particularly in relation to maintaining confidence in public administration.

The Australian Public Service Commissioner is responsible for upholding high standards of integrity and conduct in the APS. The Merit Protection Commissioner assists by ensuring consistent standards of decision making and people management practices across the APS, and also provides an important assurance role for the APS. This assurance is provided by reviewing individual actions or decisions for consistency with the APS Values and other administrative law requirements, and through reviews of determinations of breaches of the Code of Conduct and/or sanctions.

Judicial review of Merit Protection Commissioner reviews

In November 2018 an employee sought review by the Merit Protection Commissioner of a decision to suspend him from employment. We reviewed the case and recommended the agency’s decision be upheld. The employee sought review under the Administrative Decisions (Judicial Review) Act 1977. The matter was heard in the Federal Circuit Court of Australia and the application was dismissed (Smith v Australian Criminal Intelligence Commission & Anor [2019] FCCA 1811 (28 June 2019)).

Freedom of information and privacy

We handled six applications under the Freedom of Information Act 1982 during 2018–19. Five related to access to review or inquiry papers, including one request from a third party for review of a decision to release their personal information. The remaining application related to the Merit Protection Commissioner’s attendance at an event. One decision was made to release information, one staff selection matter was transferred to the employing agency, no papers were located in one case, and three requests were withdrawn after the information was released outside the Freedom of Information scheme.

The Australian Information Commissioner released one review of a Merit Protection Commissioner’s decision in 2019 ('PU' and Merit Protection Commissioner (Freedom of information) [2019] Aim 4 (18 January 2019). Following a request for documents by a review applicant, the Merit Protection Commissioner decided that a draft review of actions report prepared for a delegate would not be provided in full. The Australian Information Commissioner upheld this decision, considering that the factors against disclosure outweighed the factors in favour of disclosure.

A second review was lodged with the Australian Information Commissioner in 2018–19, and as at 30 June 2019, that review had not been finalised.

Information publication scheme

Information on the Merit Protection Commissioner and her role and functions is available on her website: www.meritprotectioncommission.gov.au.

Information is also in the Australian Public Service Commission’s plan, which is available at: www.apsc.gov.au/information-publication-scheme-ips