Public Sector Reform Act 2010 (WA)

Western Australia

Public Sector Reform Act 2010

Western Australia

Public Sector Reform Act 2010

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
Part 2 — Public Sector

administration amendments

Division 1 — Public Sector Management

Act 1994 amended

3.	Act amended	3
4.	Section 3 amended	3
5.	Section 4 amended	4
6.	Section 5 amended	4
7.	Part 2 heading replaced	5
Part 2 — Public Sector principles
8.	Part 2 Division 1 heading deleted	5
9.	Section 8 amended	5
10.	Section 9 amended	5
11.	Part 2 Division 2 deleted	5
12.	Part 2 Division 3 heading replaced	6
Part 3A — Public Sector Commissioner Division 1 — Public Sector Commissioner
13.	Section 16 replaced	6

16.

Public Sector Commissioner

14.	Section 17 amended	6
15.	Section 19 amended	6

Public Sector Reform Act 2010

Contents

16.	Section 20 amended	7
17.	Part 3A Division 2 heading inserted	7
Division 2 — Functions of Commissioner
18.	Section 21A inserted	8

21A.

General functions of Commissioner

19.	Section 21 amended	8
20.	Sections 22A to 22G inserted	10

22A.	Commissioner’s instructions	10
22B.	Disposition of employees and offices	11
22C.	Reports to Ministers	12
22D.	Annual report	12
22E.	Other reports	13
22F.	Reports under section 22D or 22E must
be laid before Parliament	13
22G.	Powers	14

21.	Section 22 amended	14
22.	Section 23 replaced	14

23.

Delegation by Commissioner

23.

Part 3A Division 3 inserted

Division 3 — Reviews, special inquiries

and investigations

Subdivision 1 — Reviews

24A.	Terms used	15
24B.	Reviews	15
24C.	Commissioner may authorise people to
perform functions	16
24D.	Powers of Commissioner and authorised
person	16
24E.	Consultation before exercise of powers	17
24F.	Privileges and other protection	17
24G.	Report on review	18

Subdivision 2 — Special inquiries

24H.	Special inquiries	18
24I.	Powers of person conducting special
inquiry	19
24J.	Procedure and evidence at special
inquiries	19
24K.	Reports on special inquiries	20

Subdivision 3 — Investigations

24.	Section 24 amended	21
25.	Sections 25, 26 and 27 deleted	21
26.	Part 3A Division 4 heading inserted	21
Division 4 — Acting appointments
27.	Section 28 amended	21

Public Sector Reform Act 2010

Contents

28.

Sections 29A and 29B inserted

29A.

Acting Commissioner appointed by

Commissioner

29B.

Matters relevant to all acting appointments

29.	Part 2 Division 4 heading replaced	24
Part 3B — Chief executive officers and

chief employees

30.	Section 29 amended	24
31.	Section 30 amended	25
32.	Section 31 amended	25
33.	Section 32 amended	25
34.	Section 33 replaced	26

33. Delegation by chief executive officer or

chief employee

35.	Section 35 amended	27
36.	Section 36 amended	28
37.	Section 38 amended	28
38.	Section 40 amended	28
39.	Section 42 amended	28
40.	Section 43 amended	29
41.	Section 45 amended	29
42.	Section 46 amended	30
43.	Section 47 amended	31
44.	Section 48 deleted	31
45.	Section 49 amended	32
46.	Section 50 amended	32
47.	Section 51 amended	32
48.	Section 53 amended	33
49.	Section 56 amended	33
50.	Section 63 amended	33
51.	Section 64 amended	34
52.	Section 67 amended	34
53.	Section 70 amended	34
54.	Section 75 amended	35
55.	Section 79 amended	36
56.	Section 93 amended	36
57.	Section 99 deleted	37
58.	Section 100 amended	37
59.	Section 105 amended	37
60.	Section 108A inserted	37

108A.

Delegation by Minister

Public Sector Reform Act 2010

Contents

61.	Section 108 amended	38
62.	Part 9 Division 1 heading inserted	38
Division 1 — *Public Service Act 1978* repeal and

transitional provisions

63.	Part 9 Division 2 inserted	39
Division 2 — *Public Sector Reform Act 2010* Part 2

amendments: transitional provisions

113.

Transitional provisions

64.	Schedule 4 replaced	39
Schedule 4 — Form of declaration
65.	Schedule 5 amended	39
66.	Schedule 7 inserted	40
Schedule 7 — *Public Sector Reform Act 2010* Part 2

amendments: transitional provisions

1.	Terms used	40
2.	Incumbent CEO remains in office as
Public Sector Commissioner	41
3.	Commissioner for Public Sector Standards	41
4.	Approved procedures and other
instruments	41
5.	Reviews, special inquiries and
investigations	42
6.	Special offices	43
7.	Provisions affecting employment of chief
executive officers	43
8.	Continuing effect of things done under
section 97	45
9.	Section 107 directions	45
10.	General savings — Commissioner	45
11.	Power to amend subsidiary legislation	46
12.	Transitional regulations	46
13.	Interpretation Act 1984 not affected	47

67.	Various references to “Minister” amended	47
68.	Various references to “of the Crown” deleted	48
69.	Various cross-references amended	49
70.	Other provisions amended	49
Division 2 — Other Acts amended
71.	Agricultural Practices (Disputes) Act 1995
amended	56
72.	Auditor General Act 2006 amended	56
73.	Constitution Acts Amendment Act 1899 amended	57
74.	Corruption and Crime Commission Act 2003
amended	57

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75.	Electricity Corporations Act 2005 amended	58
76.	Financial Management Act 2006 amended	58
77.	Energy Arbitration and Review Act 1998 amended	59
78.	Interpretation Act 1984 amended	59
79.	Midland Redevelopment Act 1999 amended	59
80.	Parliamentary Commissioner Act 1971 amended	60
81.	Port Authorities Act 1999 amended	60
82.	Public Interest Disclosure Act 2003 amended	61
83.	Salaries and Allowances Act 1975 amended	61
84.	State Administrative Tribunal Act 2004 amended	61
85.	State Records Act 2000 amended	62
86.	Subiaco Redevelopment Act 1994 amended	62
87.	Water Corporation Act 1995 amended	63
88.	Western Australian Land Authority Act 1992
amended	63
89.	Various references to “Minister for Public Sector
Management” amended	64
90.	Various references to “Public Service Board”
amended	72
Part 3 — Public Sector discipline

amendments

Division 1 — Public Sector Management

Act 1994 amended

91.	Act amended	74
92.	Section 3 amended	74
93.	Section 22A amended	74
94.	Section 76 amended	75
95.	Section 78 amended	76
96.	Section 80A inserted	79

80A.

Terms used

97.

Section 81 replaced

81. Employing authority to decide how to deal

with suspected breach of discipline

82A.

Dealing with disciplinary matter

98.

Section 82 replaced

82. Suspension pending decision in relation to

breach of discipline or criminal charge

99.	Sections 83, 84, 85 and 86 deleted	84
100.	Section 87 amended	84
101.	Section 88 replaced	86

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88. Action on receipt of report of special

disciplinary inquiry

102.

Section 89 replaced

89. Dismissal of chief executive officer on

disciplinary grounds

103.	Section 90 amended	87
104.	Section 91 amended	88
105.	Section 92 replaced	89

92. Action if employee convicted of serious

offence

93A.

Implementation of decisions under this

Division

106.	Section 94 amended	90
107.	Part 9 Division 3 inserted	90
Division 3 — *Public Sector Reform Act 2010* Part 3

amendments: transitional provisions

114.

Transitional provisions

108.	Schedule 8 inserted	90
Schedule 8 — *Public Sector Reform Act 2010* Part 3

amendments: transitional provisions

1.	Term used: commencement day	90
2.	Disciplinary proceedings	90
3.	Suspensions	91
4.	Appeals	91
5.	Power to amend subsidiary legislation	91
6.	Transitional regulations	92
7.	Interpretation Act 1984 not affected	93

Division 2 — Other Acts amended

109.	Industrial Relations Act 1979 amended	93
110.	School Education Act 1999 amended	93

Western Australia

Public Sector Reform Act 2010

No. 39 of 2010

An Act to amend the Public Sector Management Act 1994 and for related purposes.

[Assented to 1 October 2010]

The Parliament of Western Australia enacts as follows:

Public Sector Reform Act 2010

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This is the Public Sector Reform Act 2010.

2. Commencement

This Act comes into operation as follows —

(a)	sections 1 and 2 — on the day on which this Act receives the Royal Assent;
(b)	the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

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Public Sector administration amendments Public Sector Management Act 1994 amended

Part 2

Division 1

s. 3

Part 2 — Public Sector administration amendments

Division 1 — Public Sector Management Act 1994 amended

3. Act amended

This Division amends the Public Sector Management Act 1994.

4. Section 3 amended

(1)

In section 3(1) delete the definitions of:

approved

code of ethics

Commissioner

public sector standard

public service notices

special inquirer

special inquiry

(2)

In section 3(1) insert in alphabetical order:

code of ethics means a code of ethics referred to in

section 21(1) and established under the

Commissioner’s instructions;

Commissioner means the person holding the office of

Public Sector Commissioner established by

section 16(1);

Commissioner’s instructions means instructions issued

under section 22A;

improvement action means any one or more of the

following actions by an employing authority in respect

of an employee for the purpose of improving the

performance or conduct of the employee —

(a) counselling;

(b) training and development;

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(c)	issuing a warning to the employee that certain conduct is unacceptable or that the employee’s performance is not satisfactory;
(d)	any other action of a similar nature;

public sector notice means a notice issued by or under the authority of the Commissioner for the purposes of this Act that is published as a public sector notice in

accordance with the Commissioner’s instructions;

public sector standard means a public sector standard

referred to in section 21(1) and established under the

Commissioner’s instructions;

special inquirer means a person or persons appointed

under section 24H to carry out a special inquiry;

special inquiry means a special inquiry held under

section 24H;

(3)	Delete section 3(2).

5. Section 4 amended

Delete section 4(1) and insert:

(1)	The Commissioner is deemed to be the chief executive officer of the department principally assisting in the administration of this Act.

6. Section 5 amended

In section 5(1) in the definition of employing authority

paragraph (a) delete “Minister;” and insert:

Commissioner; or

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7. Part 2 heading replaced

Delete the heading to Part 2 and insert:

Part 2 — Public Sector principles

8. Part 2 Division 1 heading deleted

Delete the heading to Part 2 Division 1.

9. Section 8 amended

After section 8(2) insert:

(3)	For the purposes of this Act a proper assessment of merit in a selection process must be carried out in accordance with the relevant Commissioner’s instructions and does not always require a competitive assessment of merit.

10. Section 9 amended

Delete section 9(a)(ii) and “and” after it and insert:

(ii) the Commissioner’s instructions, public

sector standards and codes of ethics; and

11. Part 2 Division 2 deleted

Delete Part 2 Division 2.

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s. 12

12. Part 2 Division 3 heading replaced

Delete the heading to Part 2 Division 3 and insert:

Part 3A — Public Sector Commissioner

Division 1 — Public Sector Commissioner

13. Section 16 replaced

Delete section 16 and insert:

16. Public Sector Commissioner

(1)

An office of Public Sector Commissioner is

established.

(2)

The office of Public Sector Commissioner is not an

office in the Public Service.

14. Section 17 amended

After section 17(3) insert:

(4)	Before performing the functions of Commissioner for the first time, the Commissioner must make a declaration before the Governor in the form in Schedule 4.

15. Section 19 amended

After section 19(3) insert:

(4)	Subject to any determination under subsection (3), the Commissioner is entitled to leave of absence and other

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conditions of service as applicable to public service

officers.

16. Section 20 amended

Delete section 20(4) and (5) and insert:

(4) If —

(a)	a person immediately before appointment as Commissioner occupied an office, post or position in a department or organisation; and
(b)	the person’s term of office as Commissioner expires by effluxion of time and the person is not reappointed to the office; and
(c)	but for the appointment as Commissioner, the person would still be entitled to hold the office, post or position referred to in paragraph (a),

the person is entitled to be appointed to an office, post

or position in a department or organisation of at least

the equivalent level of classification as the office, post

or position that the person occupied immediately

before appointment as Commissioner.

17. Part 3A Division 2 heading inserted

After section 20 insert:

Division 2 — Functions of Commissioner

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18. Section 21A inserted

Before section 21 insert:

21A.

General functions of Commissioner

The functions of the Commissioner include the

following —

(a)	to promote the overall efficiency and effectiveness of the Public Sector, having regard to the principles set out in section 7;
(b)	to advise Ministers, chief executive officers and chief employees of changes, improvements and management practices which, in the opinion of the Commissioner, should be implemented in
order to improve the efficiency and effectiveness of the whole or any part of the Public Sector;
(c)	to plan for the future management and operation of the Public Sector;
(d)	to perform other functions that are conferred on the Commissioner under this Act or any other Act.

19. Section 21 amended

(1)	In section 21(1):

(a)	in paragraphs (a) and (b) delete “establish” and insert:

issue Commissioner’s instructions establishing

(b)	in paragraph (f) delete “section 97(1)(a);” and insert:

section 97(1)(a).

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(c)	delete paragraphs (g) to (j).

(2)	Delete section 21(4).
(3)	After section 21(8) insert:

(9A)

The Commissioner may by order published in the

Gazette exempt the whole or any part of any public

sector body from compliance with the whole or any

part of a public sector standard or code of ethics.

(9B)

The Commissioner may by order published in the

Gazette repeal or amend an order made under

subsection (9A).

(4)

Delete section 21(11) and insert:

(11)	To the extent that —

(a)	a public sector standard is inconsistent with a code of ethics, a code of conduct or another Commissioner’s instruction, the public sector standard prevails; or
(b)	a code of ethics is inconsistent with a code of conduct or another Commissioner’s instruction (other than a Commissioner’s instruction establishing a public sector standard), the code of ethics prevails.

Note:	The heading to amended section 21 is to read:
Public sector standards, codes of ethics and codes of conduct

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20. Sections 22A to 22G inserted

After section 21 insert:

22A.

Commissioner’s instructions

(1)	The Commissioner may issue written instructions concerning the following —

(a)	the management and administration of public sector bodies;
(b)	the management and administration of the Senior Executive Service;
(c)	human resource management, including the disposition of employees and offices under section 22B;

(d) official conduct;

(e)	the taking of improvement action;
(f)	dealing with suspected breaches of discipline, disciplinary matters and the taking of disciplinary action, under Part 5 Division 3;
(g)	any other matter in respect of which Commissioner’s instructions are required or permitted under this Act;
(h)	any other matter in connection with the functions of the Commissioner in respect of which the Commissioner considers it is necessary or desirable to issue instructions.

(2)

The Commissioner’s instructions must not be

inconsistent with this Act and must have regard to the

principles set out in sections 7, 8 and 9.

(3)

The Commissioner’s instructions may apply —

(a) generally; or

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(b)	to a public sector body or class of public sector body specified in the instructions; or
(c)	to an office or class of office specified in the instructions; or
(d)	to an employee or class of employees specified in the instructions.

(4)	Except as provided in section 21, the Commissioner’s instructions need not be published in the Gazette but must be made publicly available in such manner as the Commissioner thinks appropriate.
(5)	The Commissioner may amend or revoke the Commissioner’s instructions.
(6)	The Commissioner must, before issuing, amending or revoking a Commissioner’s instruction, consult such persons as the Commissioner considers it desirable and practicable to consult.
(7)	The Commissioner’s instructions are not subsidiary legislation for the purposes of the Interpretation Act 1984.

22B.

Disposition of employees and offices

When departments or organisations are established in

place of existing departments or organisations or by the

amalgamation or division of existing departments or

organisations, the Commissioner may effect the

disposition of offices, posts and positions and

employees and such other consequential changes as

appear necessary to give effect to the change in

departments or organisations.

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22C.

Reports to Ministers

The Commissioner may report from time to time to the

Minister responsible for a public sector body on the

compliance or non-compliance by the public sector

body and employees in the public sector body with —

(a)	the principles set out in sections 8(1)(a), (b) and (c) and 9; and
(b)	public sector standards, codes of ethics and codes of conduct.

22D.

Annual report

(1)	The Commissioner must in each year prepare a report on the following —

(a)	the state of administration and management of the Public Sector;
(b)	the compliance or non-compliance by public sector bodies and employees, either generally or in particular, with the principles set out in

sections 8(1)(a), (b) and (c) and 9 and with public sector standards, codes of ethics and codes of conduct;

(c)	any other matters arising out of the performance of the Commissioner’s functions that are, in the opinion of the Commissioner, of such significance as to require reporting in that manner.

(2)	A report required under subsection (1) may be prepared and dealt with in conjunction with any report required under the Financial Management Act 2006 by the Commissioner in his or her capacity as the accountable authority of the department principally assisting in the administration of this Act.

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22E.	Other reports
The Commissioner may, in addition to the annual report required under section 22D(1), at any time prepare a report on a matter referred to in
section 22D(1).
22F.	Reports under section 22D or 22E must be laid before Parliament

(1)	Within 14 days after signing a report prepared under section 22D or 22E, the Commissioner is to transmit a copy of the report to each House of Parliament.

(2) If —

(a)	when the Commissioner is ready to transmit a report under subsection (1), a House of Parliament is not sitting; and
(b)	the Commissioner is of the opinion that that House will not sit during the remainder of the period referred to in subsection (1),

the Commissioner must transmit a copy of the report to

the Clerk of that House.

(3)

Subsections (1) and (2) do not apply in relation to a

report prepared under section 22D if the report is

prepared and dealt with as provided for in

section 22D(2).

(4)

A copy of a report transmitted to the Clerk of a House

of Parliament under subsection (2) is taken to have

been laid before the House.

(5)

The laying of a copy of a report before a House that is

taken to have occurred under subsection (4) is to be

reported to the House by the Clerk, and recorded in the

Votes and Proceedings or Minutes of Proceedings, on

the first sitting day of the House after the receipt of the

copy.

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22G.	Powers
The Commissioner has all the powers that are needed for the performance of the Commissioner’s functions.

21. Section 22 amended

(1)

In section 22 delete “The” and insert:

(1) The

(2)

At the end of section 22 insert:

(2)	In particular, except as provided in this Act, the Commissioner is not subject to direction by the Minister or any other person in the performance of the

Commissioner’s functions.

(3)	Section 32 does not apply to or in relation to the Public Sector Commissioner.

22. Section 23 replaced

Delete section 23 and insert:

23. Delegation by Commissioner

(1)

The Commissioner may delegate to a person any power

or duty of the Commissioner under another provision

of this Act or any other Act.

(2)

A delegation under this section must be in writing and

signed by the Commissioner.

(3)

A person to whom a power or duty is delegated under

this section cannot delegate that power or duty.

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(4)

A person exercising or performing a power or duty that

has been delegated to the person under this section is

taken to do so in accordance with the terms of the

delegation unless the contrary is shown.

(5)

Nothing in this section limits the ability of the

Commissioner to perform a function through an officer

or agent.

23. Part 3A Division 3 inserted

After section 23 insert:

Division 3 — Reviews, special inquiries

and investigations

Subdivision 1 — Reviews

24A.	Terms used
In this Division —
*authorised person* has the meaning given in section 24C;
*review* means a review conducted under section 24B.
24B.	Reviews

(1)

The Commissioner may on his or her own initiative

conduct a review in respect of part or all of the

functions, management or operations of one or more

public sector bodies.

(2)

The Minister may by written notice direct the

Commissioner to conduct a review in respect of part or

all of the functions, management or operations of one

or more public sector bodies.

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(3)

The text of a direction given under subsection (2) is to

be included in the annual report prepared by the

Commissioner under section 22D.

(4)

The Commissioner must comply with a direction given

under subsection (2) unless, in the Commissioner’s

opinion, there are exceptional circumstances for not

complying.

(5)

If the Commissioner refuses to comply with a direction

given under subsection (2) the Commissioner must

prepare written reasons for the failure to comply and

cause the text of those reasons to be included in the

annual report prepared by the Commissioner under

section 22D.

24C.

Commissioner may authorise people to perform

functions

The Commissioner may, by written notice, authorise a

person (an authorised person) to perform functions

under this Subdivision.

24D.

Powers of Commissioner and authorised person

(1)	The Commissioner or an authorised person may for the purposes of a review —

(a)	enter the premises of a public sector body;
(b)	by written notice direct an employee to produce to him or her any document that is in the possession or under the control of the employee;
(c)	inspect any document produced to him or her and retain it for such reasonable period as he or she thinks fit, and make copies of it or any of its contents;
(d)	direct an employee to answer questions.

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(2)	An employee who, without reasonable excuse, fails to comply with a direction under subsection (1)(b) within 14 days of receiving it commits an offence.
Penalty: a fine of $1 000.
(3)	An employee who, without reasonable excuse, fails to comply with a direction under subsection (1)(d) commits an offence.
Penalty: a fine of $1 000.

24E.

Consultation before exercise of powers

The powers conferred by section 24D are exercisable

in relation to a public sector body only after

consultation with —

(a)	the employing authority of the public sector body; and

(b) the Minister —	(i)	who is responsible for the public sector body; or
(ii)	to whom the administration of the Act under which the public sector body is established or continued is committed.

24F.

Privileges and other protection

(1)

Despite section 24D, an employee has the same

privileges in relation to a requirement imposed under

that section as a witness would have in proceedings in

the Supreme Court.

(2)

Section 24D does not derogate from —

(a)	an enactment that imposes a prohibition or restriction on —

(i) the availability of any information; or

(ii) the production or examination of any document;

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(b)	a privilege or immunity existing by custom or convention and relating to the production of documents or other information of previous Governments of the State.

24G.

Report on review

If a review was conducted on the direction of the

Minister under section 24B(2), the Commissioner must

provide the Minister with a written report on the

conduct and findings of the review.

Subdivision 2 — Special inquiries

24H.

Special inquiries

(1)	The Commissioner may on his or her own initiative —

(a)	arrange for the holding of a special inquiry into a matter related to the Public Sector; and
(b)	appoint a person or persons to carry out the special inquiry.

(2)	The Minister may direct the Commissioner to arrange for the holding of a special inquiry into a matter related to the Public Sector.
(3)	A direction given under subsection (2) must specify the matter to be the subject of the special inquiry.
(4)	The text of a direction given under subsection (2) is to be included in the annual report prepared by the Commissioner under section 22D.
(5)	The Commissioner must —

(a)	comply with a direction given under subsection (2); and
(b)	appoint a person or persons to carry out the special inquiry,

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unless, in the Commissioner’s opinion, there are

exceptional circumstances for not complying.

(6)	If the Commissioner refuses to comply with a direction given under subsection (2) the Commissioner must prepare written reasons for the failure to comply and cause the text of those reasons to be included in the annual report prepared by the Commissioner under section 22D.

24I.

Powers of person conducting special inquiry

(1)	A special inquirer or a person authorised in writing by a special inquirer may for the purposes of a special inquiry —

(a)	enter the premises of a public sector body; and
(b)	by written notice require a person to produce to him or her any document that is in the possession or under the control of the person; and
(c)	inspect any document produced to him or her and retain it for such reasonable period as he or she thinks fit, and make copies of it or any of its contents.

(2)	Schedule 3 applies to and in relation to a special inquirer.

24J.

Procedure and evidence at special inquiries

(1)

An individual, public sector body or other body may be

represented at a special inquiry by a legal practitioner

or other agent.

(2)

A special inquirer must act independently in relation to

the performance of his or her functions.

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(3)	A special inquirer —

(a)	is not bound by the rules of evidence and may be informed as the special inquirer thinks fit; and
(b)	must act according to equity, good conscience and the substantial merits of the case and without regard to technicalities and legal forms.

(4)

To the extent that the practice or procedure of a special

inquirer is not prescribed by or under this Act, it is to

be as the special inquirer determines.

(5)

A special inquirer does not have power to make an

award of costs.

24K.

Reports on special inquiries

(1)	A special inquirer must —

(a)	within such period as the Commissioner requires, prepare a report on the conduct and findings, and any recommendations, of the special inquiry; and
(b)	immediately after preparing the report, provide the Commissioner with a copy of the report.

(2)	If a special inquiry was held on the direction of the Minister under section 24H(2), the Commissioner must provide the Minister with a copy of the report on the special inquiry provided to the Commissioner under subsection (1)(b).

Subdivision 3 — Investigations

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24. Section 24 amended

Delete section 24(2) and insert:

(2)	A person authorised under subsection (1) must —

(a)	within such period as the Commissioner requires, prepare a report on the conduct and findings of, and any recommendations resulting from, an investigation by the person; and
(b)	immediately after preparing the report, provide the Commissioner with a copy of the report.

25. Sections 25, 26 and 27 deleted

Delete sections 25, 26 and 27.

26. Part 3A Division 4 heading inserted

Before section 28 insert:

Division 4 — Acting appointments

27. Section 28 amended

(1)

Delete section 28(1) and insert:

(1)	The Governor may, on the recommendation of the Minister, appoint a person to act in the office of Commissioner during a period when —

(a)	the Commissioner is on leave of absence, or otherwise unable to perform the functions of Commissioner, or is absent from the State; or

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(b)	the Commissioner is suspended from that office under section 18(3) or (4); or

(2)	In section 28(3) delete “Commissioner for Public Sector Standards.” and insert:
Public Sector Commissioner.
(3)	Delete section 28(6) and insert:
(6) If —

(a)	a person immediately before appointment as Acting Commissioner under this section occupied an office in a department or organisation; and
(b)	the person’s period of office as Acting Commissioner ends and the person is not reappointed to the office; and
(c)	but for the appointment as Acting Commissioner, the person would still be entitled to hold the office referred to in paragraph (a),

the person is entitled to be appointed to an office in a

department or organisation of at least the equivalent

level of classification as the office that the person

occupied immediately before appointment as Acting

Commissioner.

(7)

Sections 17(4), 18, 19 and 20(1), (3) and (6) apply to

an Acting Commissioner appointed under this section.

Note:

The heading to amended section 28 is to read:

Acting Commissioner appointed by Governor

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28. Sections 29A and 29B inserted

After section 28 insert:

29A.

Acting Commissioner appointed by Commissioner

(1)

If the Governor has not appointed a person under

section 28, the Commissioner may appoint a person to

act in the office of Commissioner in the circumstances

referred to in section 28(1)(a).

(2)

A person must not be appointed under subsection (1)

for more than 13 weeks in a 12 month period.

(3)

An appointment under this section —

(a)	may be terminated at any time by the Commissioner; and
(b)	may be expressed to have effect only in the circumstances specified in the instrument of appointment.

(4)

If the Commissioner appoints a person under

subsection (1) and the Governor later appoints a person

under section 28 whose term of appointment is to begin

before the term of the Commissioner’s appointee has

ended, the appointment of the Commissioner’s

appointee ceases to have effect on and from the day on

which the term of the Governor’s appointee begins.

(5)

Sections 18(1) and (2), 19 and 20(1), (3) and (6) apply

to an Acting Commissioner appointed under this

section.

29B.

Matters relevant to all acting appointments

While an Acting Commissioner is acting in the office

of Commissioner under section 28 or 29A —

(a)	the Acting Commissioner is to perform all the functions of the Commissioner and any act or

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thing done by the Acting Commissioner in that

performance has the like effect as if it were

done by the Commissioner; and

(b)	any act or thing that is required under a written law to be done to, by reference to or in relation to the Commissioner is taken to be effectually done if done to, by reference to or in relation to

the Acting Commissioner; and

(c)

the Acting Commissioner has the same Commissioner.

29. Part 2 Division 4 heading replaced

Delete the heading to Part 2 Division 4 and insert:

Part 3B — Chief executive officers and

chief employees

30. Section 29 amended

In section 29(1):

(a)	delete paragraph (h)(ii) and insert:

(ii) the relevant Commissioner’s

instructions, if any;

and

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(b)

after paragraph (i) insert:

(ja)	where appropriate, to take improvement action in respect of employees employed in that department or organisation; and

31. Section 30 amended

In section 30(b) after “comply with” insert:

the Commissioner’s instructions,

32. Section 31 amended

(1)	In section 31(1) and (2) delete “guidelines, if any, issued by the Commissioner,” and insert:
the relevant Commissioner’s instructions, if any,
(2)	In section 31(4) delete “relevant annual report referred to in section 21(1)(i)” and insert:
annual report prepared by the Commissioner under section 22D

33. Section 32 amended

In section 32(1)(b) after “any” insert:

Commissioner’s instruction,

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34. Section 33 replaced

Delete section 33 and insert:

33. Delegation by chief executive officer or chief employee

(1)	Subject to any other written law, a chief executive officer or chief employee may delegate any power or duty of the chief executive officer or chief employee under another provision of this Act to —

(a)	a public service officer; or

(b) any other employee; or

(c)	a person who is appointed, employed or holds office in an entity that is —

(i) listed in Schedule 1 column 2; and

(ii) prescribed for the purposes of this section;

(d)	with the approval of the Commissioner, any other person.

(2)	The Commissioner must not approve a delegation under subsection (1)(d) unless the Commissioner is satisfied that the delegation is necessary or convenient having regard to —

(a)	the functions of the department or organisation in relation to which the chief executive officer or chief employee has the power or duty; or
(b)	the specialised knowledge, expertise or resources of the person to whom the power or duty is delegated.

(3)	The delegation must be in writing and signed by the chief executive officer or chief employee.

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(4)	A person to whom a power or duty is delegated under this section cannot delegate that power or duty.
(5)	A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the
delegation unless the contrary is shown.
(6)	If a power or duty is delegated under subsection (1), the power or duty is, when exercised or performed by the delegate, to be taken to be exercised or performed by the person who delegated it.
(7)	Nothing in this section limits the ability of the chief executive officer or chief employee to perform a function through an officer or agent.

35. Section 35 amended

(1)

In section 35(1) delete “Minister —” and insert:

Commissioner —

(2)

After section 35(3) insert:

(4)	The Minister may direct the Commissioner to make a recommendation to the Governor under subsection (1) in respect of a department or departments specified in the direction, and the Commissioner must comply with

the direction.

(5)	The text of a direction given under subsection (4) is to be included in the annual report prepared by the Commissioner under section 22D.

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36. Section 36 amended

(1)	In section 36(1)(c) delete “approved procedures” and insert:
the Commissioner’s instructions
(2)	Delete section 36(4).

37. Section 38 amended

(1)	In section 38:

(a)	delete “For the” and insert:

(1) For the

(b)	delete “Governor may, on the recommendation of the Minister,” and insert:

Commissioner may

(2)

At the end of section 38 insert:

(2)	The Commissioner may amend or revoke a determination made under subsection (1).

38. Section 40 amended

In section 40(1) delete “in public service notices.” and insert: as a public sector notice in accordance with the Commissioner’s instructions.

39. Section 42 amended

Delete section 42(2).

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40. Section 43 amended

In section 43(3) and (4) delete “Minister may from time to time

by notice published in public service notices —” and insert:

Commissioner may from time to time by notice

published as a public sector notice in accordance with

the Commissioner’s instructions —

41. Section 45 amended

(1)	Delete section 45(3) and (4) and insert: (3) If —

(a)	there is a vacancy or an impending vacancy in the office of a chief executive officer; and
(b)	it is not intended to fill the vacancy by transferring a chief executive officer to that office under section 50, or temporarily by directing an employee to act in the office under section 51,

the Commissioner must act under this section to enable

the filling of that vacancy or impending vacancy.

(4)	The Commissioner must, for the purposes of subsection (3), invite —

(a) the Minister; and

(b)	if the Minister is not the responsible authority of the agency concerned, that responsible authority; and
(c)	if the responsible authority of the agency concerned is not the Minister responsible for that agency, that Minister,

to inform the Commissioner of any matters that they

wish the Commissioner to take into account in

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recommending a person for appointment to the office referred to in subsection (3).

(2)

Delete section 45(8) to (12) and insert:

(8)	When the Commissioner decides on a person suitable for appointment to the relevant office, the Commissioner must recommend to the Governor that that person be appointed to the relevant office.

(3)

In section 45(13):

(a)	delete “nominated or”;
(b)	delete “or the Minister, as the case requires,”.

42. Section 46 amended

Delete section 46(1) and insert:

(1)	If the contract of employment of a chief executive officer is about to expire and the chief executive officer has notified the Commissioner that he or she wishes to be reappointed to his or her office of chief executive officer, the Commissioner may —

(a)	recommend to the Governor that —

(i) the chief executive officer be reappointed to the relevant office; or

(ii) if the chief executive officer has been transferred to the performance of other functions under section 50, the chief executive officer be reappointed to perform those functions at the same level of classification; or

(b)	notify the chief executive officer that he or she will not be reappointed.

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43. Section 47 amended

(1)

Delete section 47(1) and (2) and insert:

(1)	A chief executive officer must, on appointment under section 45, and at any time when required to do so under the Commissioner’s instructions, enter in accordance with the Commissioner’s instructions into an agreement with —

(a) the Commissioner; and

(b)	the responsible authority of the agency of the chief executive officer,

concerning the performance criteria to be met by the chief executive officer during the period to which the agreement relates.

(2)	A performance agreement does not take effect until the Minister responsible for the agency concerned (if that Minister is not the responsible authority of the agency) has approved the performance agreement and a note of that approval has been endorsed on the performance agreement.

(2)	In section 47(4) delete “approved procedures,” and insert:
the Commissioner’s instructions,

44. Section 48 deleted

Delete section 48.

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45. Section 49 amended

In section 49 delete “Minister made under section 48,” and

insert:

Commissioner,

46. Section 50 amended

Delete section 50(2) and insert:

(2)	Before making a recommendation referred to in subsection (1) the Commissioner must consult —

(a)

the responsible authority of the agency in which whom the proposed recommendation relates is located; and

(b)	the responsible authority of the agency of destination; and
(c)	if neither of the responsible authorities referred to in paragraphs (a) or (b) is the Minister responsible for the relevant agency, that Minister; and
(d)	the chief executive officer to whom the proposed recommendation relates.

47. Section 51 amended

Delete section 51(3) and insert:

(3)	The Commissioner must, before giving a direction under subsection (1), consult —

(a)	the responsible authority of the agency concerned; and

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(b)	if that responsible authority is not the Minister responsible for that agency, that Minister.

48. Section 53 amended

(1)	In section 53(1) delete “approved procedures” and insert:
the Commissioner’s instructions
(2)	In section 53(3)(a) delete “approved procedures; and” and insert:
the Commissioner’s instructions; and
(3)	In section 53(5) delete “approved procedures” and insert:
the Commissioner’s instructions

49. Section 56 amended

In section 56(3) delete “Subject to sections 48 and 49, a

contract” and insert:

A contract

50. Section 63 amended

In section 63(1)(h) delete “office.” and insert:

office (unless it is an appointment and the

Commissioner authorises the offices being held

concurrently by the executive officer).

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51. Section 64 amended

(1)	In section 64(1) delete “approved procedures” and insert:
the Commissioner’s instructions
(2)	In section 64(2)(a) and 64(3)(a) delete “approved procedures; and” and insert:
the Commissioner’s instructions; and
(3)	In section 64(4) delete “in public service notices” and insert:

as a public sector notice in accordance with the

Commissioner’s instructions

52. Section 67 amended

In section 67(f) delete “position.” and insert:

position (unless it is an appointment and the

Commissioner authorises the offices, posts or

positions being held concurrently by that public

service officer).

53. Section 70 amended

In section 70(1) delete “administration of this Act.” and insert:

administration of this Part.

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54. Section 75 amended

(1)

In section 75(1) delete “assisting the Minister in the

administration of this Act” and insert:

assisting in the administration of this Part

(2)

In section 75(2):

(a)	in paragraph (b) delete “office.” and insert:

office; or

(b)

after paragraph (b) insert:

(c)	an employee in the department principally assisting in the administration of this Part as if the employee were seconded to occupy that office.

(3)	In section 75(3):

(a)	delete “subsection (2)(b) —” and insert:

subsection (2)(b) or (c) —

(b)	delete “by such person or persons as are appointed by the Minister.” and insert:

in accordance with the Commissioner’s instructions by

a person or persons appointed by the chief executive

officer of the department principally assisting in the

administration of this Part.

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55. Section 79 amended

(1)	In section 79(4) delete “an employee —” and insert:
an employee other than a chief executive officer —
(2)	After section 79(4) insert:

(5A)

The Governor may, on the recommendation of the

Commissioner, terminate the employment in the Public

Sector of a chief executive officer whose performance

is, in the opinion of the Commissioner, substandard for

the purposes of this section.

(5B)

The Commissioner must consult the responsible

authority of the agency of the chief executive officer

before making a recommendation under

subsection (5A).

(3)	Delete section 79(6).

56. Section 93 amended

(1)	After section 93(1) insert:

(2A)	The Commissioner must consult with the Minister to whom the administration of the Industrial Relations Act 1979 is committed, before giving an approval
under subsection (1).

(2)	Delete section 93(2).
(3)	Delete section 93(4), (5) and (6).

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57. Section 99 deleted

Delete section 99.

58. Section 100 amended

In section 100(1) and (2) delete “approved procedures” and

insert:

the Commissioner’s instructions

59. Section 105 amended

In section 105(2):

(a)	in paragraph (a)(ii) delete “the Minister in the administration of this Act” and insert:

in the administration of Part 4

(b)	delete paragraph (b)(i) and “or” after it and insert:

(i) the Minister and other Ministers; or

60. Section 108A inserted

After section 107 insert:

108A.

Delegation by Minister

(1)

The Minister may delegate to any person any power or

duty of the Minister under another provision of this

Act.

(2)

A delegation under this section must be in writing

signed by the Minister.

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(3)

A person to whom a power or duty is delegated in

accordance with this section cannot delegate that power

or duty.

(4)

A person exercising or performing a power or duty that

has been delegated to the person in accordance with

this section is taken to do so in accordance with the

terms of the delegation unless the contrary is shown.

(5)

Nothing in this section limits the ability of the Minister

to perform a function through an officer or agent.

61. Section 108 amended

(1)	After section 108(1) insert:

(2A)

The regulations may make provision for or with respect

to any matter for which the Commissioner’s

instructions can provide.

(2B)

A reference in this Act to a Commissioner’s instruction

is taken to include a reference to a regulation referred

to in subsection (2A).

(2)	In section 108(2) after “inconsistent with a” insert:
Commissioner’s instruction,

62. Part 9 Division 1 heading inserted

After the heading to Part 9 insert:

Division 1 — Public Service Act 1978 repeal and

transitional provisions

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63. Part 9 Division 2 inserted

After section 112 insert:

Division 2 — Public Sector Reform Act 2010 Part 2

amendments: transitional provisions

113. Transitional provisions

Schedule 7 sets out transitional provisions.

64. Schedule 4 replaced

Delete Schedule 4 and insert:

Schedule 4 — Form of declaration

[s. 17(4)]

I, ..................................................................................,

sincerely promise and declare that, according to the best of

my skill and ability, I will faithfully, impartially and truly

execute the office and perform the functions of Public

Sector Commissioner according to law.

.........................................

.........................

(Signature of declarant)

(Date)

65. Schedule 5 amended

(1)	In Schedule 5 clause 2(1) delete “Any” and insert:
Subject to Schedule 7 clause 4(6), any

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(2)	Delete Schedule 5 clause 5(1)(a) and (b) and “or” after paragraph (b) and insert:

(a)	a Commissioner’s instruction; or

(3)	In Schedule 5 clause 5(2) delete “Minister in public service
notices.” and insert:

Commissioner in a notice published as a public sector notice

in accordance with the Commissioner’s instructions.

66. Schedule 7 inserted

After Schedule 6 insert:

Schedule 7 — Public Sector Reform Act 2010 Part 2 amendments: transitional provisions

[s. 113]

1. Terms used

In this Schedule —

amended Act means this Act as amended by the Public

Sector Reform Act 2010;

commencement day means the day on which the Public Sector Reform Act 2010 section 13 comes into operation;

former Commissioner means the person holding the office

of Commissioner for Public Sector Standards under this Act

immediately before the commencement day.

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2. Incumbent CEO remains in office as Public Sector Commissioner

(1)

In this clause —

former office means the office of chief executive officer of the department principally assisting in the administration of Part 3 immediately before the commencement day.

(2)

Despite section 17, if a person held the former office

immediately before the commencement day (other than in

an acting capacity), that person is to hold office as

Commissioner subject to Part 3A Division 1 for a term of

5 years beginning on the commencement day as if appointed

under section 17, and is eligible to be reappointed to that

office.

3. Commissioner for Public Sector Standards

(1)

The former Commissioner is entitled to be employed in the

Public Service at the same level of classification as the

former Commissioner held immediately before the

commencement day until the end of the period for which the

former Commissioner was last appointed under this Act to

hold office.

(2)

The former Commissioner retains existing and accruing

entitlements in respect of leave of absence as if service in

the Public Service were a continuation of service in the

office of the Commissioner of Public Sector Standards.

(3)

If a person is acting in the office of the Commissioner of

Public Sector Standards under section 28 immediately

before the commencement day, section 20 as in force before

the commencement day continues to apply to that person.

4. Approved procedures and other instruments

(1)	Any procedure or classification system approved under section 3(2) as in force before the commencement day and of effect immediately before that day is to be taken to be, with any necessary modifications, a Commissioner’s instruction.

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(2)	Any public sector standard or code of ethics established by the former Commissioner under this Act and of effect immediately before the commencement day is to be taken to be, with any necessary modifications, a public sector standard or code of ethics for the purposes of the amended Act.
(3)	Any order published under section 25(1)(a) as in force before the commencement day and of effect immediately before that day is to be taken to be, with any necessary modifications, an order published under section 21(9A) of the amended Act.
(4)	Any guidelines issued by the former Commissioner for the purposes of section 31 as in force before the commencement day and of effect immediately before that day are to be taken to be, with any necessary modifications, Commissioner’s instructions.
(5)	Any direction given under section 42(2) as in force before the commencement day and of effect immediately before that day is to be taken to be, with any necessary
modifications, a Commissioner’s instruction.
(6)	Any public service notice of effect immediately before the commencement day is to be taken to be a public sector notice.
(7)	Any approval given by the Minister under section 93(1) as in force before the commencement day and of effect immediately before that day continues to be of effect as if it were an approval given by the Commissioner.

5. Reviews, special inquiries and investigations

(1)	If immediately before the commencement day —

(a)	a review was being carried out under an arrangement by the Minister under section 10 as in force immediately before the commencement day; and
(b)	any employee had been authorised by the Minister to perform functions for the purpose of the review,

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the review is to be continued as if it were a review the

Minister had directed the Commissioner to conduct under

section 24B of the amended Act and the employee had been

authorised for the purpose of that review by the

Commissioner.

(2)

If immediately before the commencement day, a special

inquirer was carrying out a special inquiry under this Act,

the special inquirer is to continue to carry out the inquiry as

if the special inquirer were appointed under section 24H of

the amended Act to carry out the special inquiry.

(3)

If immediately before the commencement day —

(a)	an investigation was being carried out under section 24 as in force immediately before the commencement day;
(b)	any person had been authorised to perform functions for the purpose of the investigation,

the investigation is to be continued as if it were an

investigation the Commissioner had commenced under

section 24 of the amended Act and the person had been

authorised for the purpose of that investigation by the

Commissioner.

6. Special offices

A special office created under section 36 as in force before the commencement day for the purposes of section 75(1) as in force before that day and in existence immediately before that day continues in existence after that day as if it were

created by the chief executive officer of the department

assisting in the administration of Part 4.

7. Provisions affecting employment of chief executive officers

(1)

If —

(a)	before the commencement day the Minister requested the former Commissioner to act under section 45 as in force before the commencement

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day to fill a vacancy or impending vacancy in the

office of a chief executive officer; and

(b)	the vacancy or impending vacancy is not filled before the commencement day,

any actions taken by the former Commissioner under that

section are to be taken to have been taken by the

Commissioner, and the Commissioner may continue to act

under section 45 of the amended Act to fill the vacancy.

(2)

If —

(a)	before the commencement day the Minister acted on a matter under section 48 for the purposes of section 46(1) or 49 (as those sections were in force immediately before the commencement day); and
(b)	on the commencement day further action remains to be taken under section 46 or 49 in relation to that matter,

the Commissioner may continue to act under section 46 or

49 of the amended Act as the case requires.

(3)

Any performance agreement of effect immediately before

the commencement day continues to be of effect under

section 47 of the amended Act.

(4)

If —

(a)	before the commencement day the Minister took action under section 50(2) for the purpose of making a recommendation under section 50(1) (as those provisions were in force before the commencement day); and
(b)	the recommendation has not been made before the commencement day,

the action referred to in paragraph (a) is to be taken to have

been taken by the Commissioner, and the Commissioner

may continue to act under section 50 of the amended Act in

relation to the recommendation.

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(5)

If —

(a)	before the commencement day the Minister took action under section 51(3) for the purpose of giving a direction under section 51(1) (as those provisions were in force before the commencement day); and
(b)	the Minister has not given the direction before the commencement day,

the Commissioner may give the direction under

section 51(1) of the amended Act as if the action referred to

in paragraph (a) had been taken by the Commissioner.

(6)

A direction given under section 51(1) as in force before the

commencement day and of effect before the commencement

day is to be taken to have been given under section 51 of the

amended Act by the Commissioner.

(7)

On the commencement day the Commissioner is substituted for the Minister as a party to the contract of employment of each chief executive officer.

8. Continuing effect of things done under section 97

A thing done or omitted to be done by the former

Commissioner under section 97 as in force before the

commencement day has the same effect after that day as if it

had been done or omitted under section 97 of the amended

Act.

9. Section 107 directions

A direction given under section 107(1) as in force before the

commencement day and of effect on that day is to be taken

to be a direction of the Commissioner.

10. General savings — Commissioner

(1)

A thing done or omitted to be done by, to or in relation to the former Commissioner before the commencement day, whether under this Act or any other written law, has the

same effect after the commencement day, to the extent that

it has any force or significance after that day, as if it had

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been done or omitted by, to or in relation to the Commissioner.

(2)	Subclause (1) does not apply if a contrary intention appears or the context otherwise requires.

11. Power to amend subsidiary legislation

(1)

The Governor, on the recommendation of the Minister, may

make regulations amending subsidiary legislation made

under any Act.

(2)

The Minister may make a recommendation under

subclause (1) only if the Minister considers that each

amendment proposed to be made by the regulations is

necessary or desirable as a consequence of the enactment of

the Public Sector Reform Act 2010 Part 2.

(3)

Nothing in this clause prevents subsidiary legislation from being amended in accordance with the Act under which it was made.

12. Transitional regulations

(1)	If there is no sufficient provision in this Schedule for dealing with a transitional matter, regulations may prescribe all matters that are required or necessary or convenient to be prescribed for dealing with the matter.
(2)	In subclause (1) —
*transitional matter* means a matter that needs to be dealt with for the purpose of effecting the transition from an Act (including this Act) as enacted immediately before the commencement day to the Act as amended by the Public Sector Reform Act 2010 Part 2.
(3)	Regulations made under subclause (1) may provide that specified provisions of this Act as in force after the commencement of the Public Sector Reform Act 2010, or of subsidiary legislation made under this Act, or of an Act amended by the Public Sector Reform Act 2010 —

(a)	do not apply; or

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(b)	apply with specified modifications,

to or in relation to any matter.

(4)	If regulations under subclause (1) provide that a specified state of affairs is to be taken to have existed, or not to have existed, on and from a day that is earlier than the day on which the regulations are published in the Gazette but not earlier than the commencement day, the regulations have effect according to their terms.
(5)	In subclauses (3) and (4) —
*specified* means specified or described in the regulations.
(6)	If regulations contain a provision referred to in subclause (4), the provision does not operate so as to —

(a)	affect in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the day of publication of those regulations; or
(b)	impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the day

of publication of those regulations.

13. Interpretation Act 1984 not affected

The provisions of this Schedule are additional to and do not

prejudice or affect the application of the Interpretation

Act 1984 Part V.

67. Various references to “Minister” amended

In the provisions listed in the Table delete “Minister” (each

occurrence) and insert:

Commissioner

Public Sector Reform Act 2010

Part 2	Public Sector administration amendments
Division 1	Public Sector Management Act 1994 amended
s. 68

Table

s. 41(a)(i)	s. 43(8)
s. 44(3)	s. 45(1)
s. 46(2)	s. 50(1)
s. 51(1) and (2)	s. 59(2)
s. 63(1)(g)	s. 77(a)(i)
s. 89(1) and (2)	s. 93(1)
s. 94(3)	s. 107(1)(a)

68. Various references to “of the Crown” deleted

In the provisions listed in the Table delete “of the Crown” (each

occurrence).

Table

s. 3(1) def. of *political office*	s. 3(4)
*holder* par. (g), def. of *responsible authority* par. (b)
s. 5(2)(a)(i)	s. 8(2)
s. 41(b)	s. 58(7) def. of *statutory office*
s. 74(1)	s. 77(b)
s. 79(4) and (6)	s. 105(2)(b)(ii)

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Public Sector administration amendments Public Sector Management Act 1994 amended

Part 2

Division 1

s. 69

69. Various cross-references amended

Amend the provisions listed in the Table as set out in the Table.

Table

Provision

Delete

Insert

s. 24(1)	sections 12 and 13	sections 24I and 24J
s. 31(3)	section 25(1)	section 21(9A)
s. 87(1)	sections 12 and 13	sections 24I and 24J
Schedule 3	[s. 12(2),	[s. 24I(2),

70. Other provisions amended

Amend the provisions listed in the Table as set out in the Table.

Table

Provision

Delete

Insert

s. 3(1) def. of	department	a department
*agency* par. (a)
s. 3(1) def. of	SES	a SES
*agency* par. (b)
s. 3(1) def. of *breach*	means breach	means a breach
*of discipline*
s. 3(1) def. of *chief*	chief employee	a chief employee
*employee* par. (a) and (b)
s. 3(1) def. of *chief*	organisation;	organisation; or
*employee* par. (a)

Public Sector Reform Act 2010

Part 2	Public Sector administration amendments
Division 1	Public Sector Management Act 1994 amended
s. 70

Provision

Delete

Insert

s. 3(1) def. of *chief*	person	a person
*employee* par. (c)
s. 3(1) def. of *chief*	person	a person
*executive officer* par. (a) and (b)
s. 3(1) def. of	means system	means a system
*classification system*
s. 3(1) def. of *code*	means code	means a code
*of conduct*
s. 3(1) def. of *compensation* after par. (a)	or
s. 3(1) def. of	means department	means a department
*department*
s. 3(1) def. of	includes tape,	includes a tape,
*document*
s. 3(1) def. of	means person	means a person
*employee*
s. 3(1) def. of	means chief	means a chief
*executive officer*
s. 3(1) def. of	means Minister of	means the Minister
*Minister*	the Crown
s. 3(1) def. of	means person	means a person
*ministerial officer*

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Division 1

s. 70

Provision

Delete

Insert

s. 3(1) def. of	means entity	means an entity
*non-SES* *organisation*
s. 3(1) def. of	means non-SES	means a non-SES
*organisation*
s. 3(1) def. of	means agreement	means an agreement
*performance* *agreement*
s. 3(1) def. of	means person	means a person
*permanent officer*
s. 3(1) def. of	Minister of the	a Minister
*political office*	Crown
*holder* par. (a)
s. 3(1) def. of	Parliamentary	the Parliamentary
*political office holder* par. (b)
s. 3(1) def. of	Parliamentary	a Parliamentary
*political office holder* par. (c)
s. 3(1) def. of	Government	the Government
*political office holder* par. (d)
s. 3(1) def. of	Leader	the Leader
*political office* *holder* par. (e) and (f)

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Part 2	Public Sector administration amendments
Division 1	Public Sector Management Act 1994 amended
s. 70

Provision

Delete

Insert

s. 3(1) def. of	person	a person
*political office holder* par. (g)
s. 3(1) def. of *political office* *holder* after each of par. (a), (b), (c), (d) and (e)	or
s. 3(1) def. of *Public* *Sector* after par. (a)	and
s. 3(1) def. of *public*	agency,	an agency,
*sector body*
s. 3(1) def. of *Public*	means Public	means the Public
*Service*
s. 3(1) def. of *public*	means executive	means an executive
*service officer*
s. 3(1) def. of	means Public	means the Public
*repealed Act*
s. 3(1) def. of	means person	means a person
*respondent*
s. 3(1) def. of	board,	a board,
*responsible* *authority* par. (a)
s. 3(1) def. of	Minister	the Minister
*responsible* *authority* par. (b)

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Division 1

s. 70

Provision

Delete

Insert

s. 3(1) def. of	means responsible	means a responsible
*responsible* *authority*
s. 3(1) def. of *senior*	means member	means a member
*executive officer*
s. 3(1) def. of *Senior*	means Senior	means the Senior
*Executive Service*
s. 3(1) def. of *SES*	means entity	means an entity
*organisation*
s. 3(1) def. of *special*	means special	means a special
*disciplinary inquiry*
s. 3(1) def. of *term*	means person	means a person
*officer*
s. 3(5)	Crown	State
(each occurrence)
s. 5(1) def. of *employing authority* after each of par. (b) and (c)(i)	or
s. 8(1) after each of par. (a), (b) and (c)	and
s. 9 after each of par. (a)(i) and par. (a)	and

Public Sector Reform Act 2010

Part 2	Public Sector administration amendments
Division 1	Public Sector Management Act 1994 amended
s. 70

Provision

Delete

Insert

s. 21(1) after each of par. (a) to (e)	and
s. 29(1) after each of par. (a) to (g) and (i) to (m)	and
s. 30 after each of par. (a) and (b)	and
s. 32 after par. (a)	and
s. 35(1) after each of par. (a) and (b)	and
s. 36(1) after par. (a)	and

s. 45(1)	Crown	State
s. 45(13) after each of par. (a), (b) and (c)	and
s. 46(2)(a)	Crown	State
s. 51(2)	is valid	is as valid
s. 53(1)	Crown	State
s. 56(2) after par. (a)	and
s. 56(6)	Crown	State
s. 57(1) after par.(a)	and

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Part 2

Division 1

s. 70

Provision

Delete

Insert

s. 57(2) def. of	means Salaries	means the Salaries
*Tribunal*
s. 58(7) def. of *right*	means entitlement	means the
*of return*	entitlement
s. 58(7) def. of	means office,	means an office,
*statutory office*
s. 59(5)	Crown.	State.
s. 63(1) after each of par. (a) to (f)	or
s. 64(1)	Crown	State
s. 67 after each of par. (a) to (d)	or
s. 70(7)	Crown	State
s. 86(13) def. of	means person	means a person
*directed person*
s. 86(13) def. of	means disciplinary	means a disciplinary
*disciplinary inquiry*
s. 91	Crown.	State.
s. 93(3) def. of	means department	means a department
*affected department* *or organisation*
s. 94(2) after each of par. (a) and (b)	and

Public Sector Reform Act 2010

Part 2	Public Sector administration amendments
Division 2	Other Acts amended
s. 71

Provision

Delete

Insert

s. 94(3)	provide for —	provide for the following —
s. 94(3) after par. (f)	and
s. 94(6)	means office,	means an office,
s. 94(6) after par. (a)	and
s. 99(1) after par. (a)	and

Division 2 — Other Acts amended

71. Agricultural Practices (Disputes) Act 1995 amended

(1)	This section amends the Agricultural Practices (Disputes) Act 1995.
(2)	In section 19(1) delete “Minister to whom the administration of the Public Sector Management Act 1994 is committed.” and insert:
Public Sector Commissioner.
(3)	In section 19(2) delete “Minister to whom the administration of that Act is committed,” and insert:
Public Sector Commissioner,

72. Auditor General Act 2006 amended

(1)

This section amends the Auditor General Act 2006.

(2)

In section 9(2) delete “sections 21(1)(e) and (g) to (i),” and

insert:

Public Sector Reform Act 2010

Public Sector administration amendments

Part 2

Other Acts amended

Division 2

s. 73

sections 21(1)(e), 22C, 22D, 22E,

73. Constitution Acts Amendment Act 1899 amended

(1)	This section amends the Constitution Acts Amendment Act 1899.
(2)	In Schedule V Part I Division 2:

(a)	delete the item relating to the Commissioner for Public

Sector Standards;

(b)	insert in alphabetical order:

Public Sector Commissioner appointed under the Public

Sector Management Act 1994.

74. Corruption and Crime Commission Act 2003 amended

(1)

This section amends the Corruption and Crime Commission

Act 2003.

(2)

In section 3(1):

(a)	in the definition of *independent agency* delete paragraph (e) and insert:

(e) the Public Sector Commissioner;

(b)	after each of paragraphs (a), (b) and (c) insert:

and

(3)	Delete section 90(6) and insert:

Public Sector Reform Act 2010

Part 2	Public Sector administration amendments
Division 2	Other Acts amended
s. 75

(6)	A report about a person proposed to be appointed as a chief executive officer may be given to —

(a)	the Public Sector Commissioner; and
(b)	any Minister that the Public Sector Commissioner considers has a relevant interest in the report.

75. Electricity Corporations Act 2005 amended

(1)	This section amends the Electricity Corporations Act 2005.
(2)	In section 3(1) delete the definition of *Commissioner for Public* *Sector Standards*.
(3)	In the provisions listed in the Table delete “Commissioner for Public Sector Standards” (each occurrence) and insert:
Public Sector Commissioner

Table

s. 21(1), (5) and (6)	s. 22(1) and (3)
s. 31(2) and (4)	s. 32(1) and (3)
s. 33(2)

76. Financial Management Act 2006 amended

(1)	This section amends the Financial Management Act 2006.
(2)	In section 51(3) delete “sections 12 and 13” and insert:
sections 24I and 24J

(b)

delete paragraph (b) and insert:

(b)	who is aggrieved by —

(i) a decision made under section 82 to suspend the employee on partial pay or without pay; or

(ii) a finding made in respect of the person referred to in section 82A(3)(a), 87(3)(a)(i) or 88(a),

(c)	delete “the decision” and insert:

the decision or finding

(d)	delete “that decision” (each occurrence) and insert:

that decision or finding

(4)	In section 78(4) delete “decision” (each occurrence) and insert:

direction

(5)

After section 78(4) insert:

(5)	If it appears to the Industrial Commission or the Public Service Appeal Board that the employing authority failed to comply with a Commissioner’s instruction or the rules of procedural fairness in making the decision

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Public Sector Management Act 1994 amended

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s. 96

or finding the subject of a referral or appealed against,

the Industrial Commission or Public Service Appeal

Board —

(a)	is not required to determine the reference or allow the appeal solely on that basis and may proceed to decide the reference or appeal on its merits; or
(b)	may quash the decision or finding and remit the matter back to the employing authority with directions as to the stage at which the disciplinary process in relation to the matter is to be recommenced by the employing authority if the employing authority continues the disciplinary process.

96. Section 80A inserted

At the beginning of Part 5 Division 3 insert:

80A.

Terms used

In this Division —

disciplinary action, in relation to a breach of discipline

by an employee, means any one or more of the

following —

(a) a reprimand;

(b)	the imposition of a fine not exceeding an amount equal to the amount of remuneration received by the employee in respect of the last 5 days during which the employee was at work as an employee before the day on which the finding of the breach of discipline was made;
(c)	transferring the employee to another public sector body with the consent of the employing authority of that public sector body;

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Division 1

Public Sector Management Act 1994 amended

s. 96

(d)	if the employee is not a chief executive officer or chief employee, transferring the employee to another office, post or position in the public sector body in which the employee is employed;
(e)	reduction in the monetary remuneration of the employee;
(f)	reduction in the level of classification of the employee;

(g) dismissal;

section 94 breach of discipline means a breach of

discipline arising out of disobedience to, or disregard

of, a lawful order referred to in section 94(4);

serious offence means —

(a)	an indictable offence against a law of the State (whether or not the offence is or may be dealt with summarily), another State or a Territory of

the Commonwealth or the Commonwealth; or

(b)	an offence against the law of another State or a Territory of the Commonwealth that would be an indictable offence against a law of this State if committed in this State (whether or not the
offence could be dealt with summarily if committed in this jurisdiction); or
(c)	an offence against the law of a foreign country that would be an indictable offence against a law of the Commonwealth or this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this jurisdiction); or
(d)	an offence, or an offence of a class, prescribed under section 108.

Public Sector Reform Act 2010

Public Sector discipline amendments

Part 3

Public Sector Management Act 1994 amended

Division 1

s. 97

97. Section 81 replaced

Delete section 81 and insert:

81. Employing authority to decide how to deal with suspected breach of discipline

(1)	If an employing authority of an employee is made aware, or becomes aware, by any means that the employee may have committed a breach of discipline, the employing authority may —

(a)	decide to deal with the matter as a disciplinary matter under this Division in accordance with the Commissioner’s instructions; or
(b)	decide that it is appropriate —

(i) to take improvement action with respect to the employee; or

(ii) to take no action.

(2)

If the Minister, in his or her capacity as employing

authority of a ministerial officer, decides to act under

subsection (1)(a), the Minister must direct another

person to submit to the Minister a report as to whether

there has been a breach of discipline and a

recommendation as to any decision to be made under

section 82A(3).

(3)

A direction must not be given under subsection (2) to

the Commissioner.

(4)

A person directed under subsection (2) —

(a)	must comply with the direction of the Minister; and
(b)	for that purpose, has the functions of an employing authority under section 82A(1) and under the Commissioner’s instructions.

Public Sector Reform Act 2010

Part 3	Public Sector discipline amendments
Division 1	Public Sector Management Act 1994 amended
s. 97

82A.

Dealing with disciplinary matter

(1)	In dealing with a disciplinary matter under this Division an employing authority —

(a)	technicality as this Division, the

must proceed with as little formality and circumstances of the matter permit; and

(b)	is not bound by the rules of evidence; and
(c)

may, subject to this Division and the procedure to be followed.

(2)	Even though an employing authority decides to act under section 81(1)(a), the employing authority may, at any stage of the process, decide instead that it is appropriate —

(a)	to take improvement action with respect to the employee; or
(b)	that no further action be taken.

(3)	Subject to subsection (4) and section 89, after dealing with a matter as a disciplinary matter under this Division —

(a)	if the employing authority finds that the employee has committed a section 94 breach of discipline, the employing authority must take disciplinary action by dismissing the employee; and
(b)	if the employing authority finds that the employee has committed a breach of discipline that is not a section 94 breach of discipline, the employing authority must decide —

(i)

to take disciplinary action, or both action, with respect to the employee; or

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Public Sector Management Act 1994 amended

Division 1

s. 98

(ii) to take improvement action with respect to the employee; or

(iii) that no further action is to be taken.

(4) The Minister —

(a)	is bound by any finding in a report submitted as directed under section 81(2); and
(b)	must, when making a decision under subsection (3)(b), have regard to, but is not bound by, a recommendation submitted as directed under section 81(2).

98. Section 82 replaced

Delete section 82 and insert:

82. Suspension pending decision in relation to breach of discipline or criminal charge

(1) If —

(a)	an employing authority has decided to act under section 81(1)(a) in relation to an employee; or
(b)	an employee is charged with having committed a serious offence,

the employing authority may, in accordance with the

Commissioner’s instructions, suspend the employee on

full pay, partial pay or without pay.

(2)	Subject to subsection (3) —

(a)	a suspension arising from a decision referred to in subsection (1)(a) has effect until a decision is made under section 82A(2) or (3) or 88 in

respect of the suspected breach; or

(b)	a suspension arising from a charge referred to in subsection (1)(b) has effect until the criminal

Public Sector Reform Act 2010

Part 3	Public Sector discipline amendments
Division 1	Public Sector Management Act 1994 amended
s. 99

charge or any action that the employing

authority is considering taking under section 92

has been finalised.

(3)

The employing authority may at any time remove, or

vary the terms of, the suspension.

(4)

Unless the employing authority otherwise directs, any

pay withheld under subsection (1) is forfeited to the

State if —

(a)	it is decided to take disciplinary action with respect to the employee for the breach of discipline; or
(b)	the employee is convicted or found guilty of the offence concerned or another serious offence.

(5)	An employee is entitled to have any pay of the employee that is withheld under subsection (1) and not forfeited under subsection (4) restored to the employee.

99. Sections 83, 84, 85 and 86 deleted

Delete sections 83, 84, 85 and 86.

100. Section 87 amended

(1)	Before section 87(1) insert:

(1A)	The Commissioner may at any time before a decision is made under section 81(1)(b) or 82A(2) or (3) in respect of a suspected breach of discipline direct that —

(a)	a special disciplinary inquiry be held into the suspected breach; or
(b)	an investigation by the employing authority or a person directed under section 81(2) into the suspected breach be continued as a special disciplinary inquiry.

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Part 3

Public Sector Management Act 1994 amended

Division 1

s. 100

(1B)	A direction under subsection (1A) may be made on the request of the employing authority of the employee suspected to have committed the breach of discipline or on the initiative of the Commissioner.

(2)

Delete section 87(3) and insert:

(3)	A person who holds a special disciplinary inquiry must, at the conclusion of the inquiry —

(a)	make a finding that the employee —

(i) has committed a section 94 breach of discipline; or

(ii) has committed a breach of discipline other than a breach referred to in subparagraph (i); or

(iii) has not committed a breach of discipline;

and

(b)	prepare a report on the conduct and finding, of the special disciplinary inquiry; and
(c)	if the finding is that the employee has committed a breach of discipline other than a section 94 breach of discipline, include in the report a recommendation as to any disciplinary action and improvement action that should be taken by the employing authority; and
(d)	provide the employing authority and the Commissioner with a copy of the report.

Public Sector Reform Act 2010

Part 3	Public Sector discipline amendments
Division 1	Public Sector Management Act 1994 amended
s. 101

101. Section 88 replaced

Delete section 88 and insert:

88. Action on receipt of report of special disciplinary inquiry

On receiving a report under section 87(3), the

employing authority must, subject to section 89, accept

the finding in the report and —

(a)	in the case of a finding that the employee has committed a section 94 breach of discipline, take disciplinary action by dismissing the

employee; or

(b)	in the case of a finding that the employee has committed a breach of discipline other than a breach referred to in paragraph (a) —

(i)	improvement action, or both disciplinary action and improvement

decide to take disciplinary action or accordance with the recommendation in the report; or

(ii)	the report and decide to take such other disciplinary action or improvement action, or both disciplinary action and improvement action, in relation to the

decline to accept the recommendation in recommended in the report;

(c)	in the case of a finding that no breach of discipline was committed by the employee, notify the employee of that finding and that no further action will be taken in the matter.

Public Sector Reform Act 2010

Public Sector discipline amendments

Part 3

Public Sector Management Act 1994 amended

Division 1

s. 102

102. Section 89 replaced

Delete section 89 and insert:

89. Dismissal of chief executive officer on disciplinary grounds

(1)

If a chief executive officer is the subject of a finding

under section 82A(3)(a) or a finding under

section 87(3)(a)(i) in respect of a section 94 breach of

discipline, the Commissioner must recommend to the

Governor that the chief executive officer be dismissed,

and the Governor must dismiss the chief executive

officer.

(2)

If a chief executive officer —

(a)	section 82A(3)(b) or a finding under

is the subject of a finding under discipline other than a section 94 breach of discipline; and

(b)	the Commissioner considers that the chief executive officer ought to be dismissed,

the Commissioner must recommend to the Governor that the chief executive officer be dismissed, and the Governor must dismiss the chief executive officer.

103. Section 90 amended

In section 90:

(a)	delete “a respondent” and insert:

an employee

Public Sector Reform Act 2010

Part 3	Public Sector discipline amendments
Division 1	Public Sector Management Act 1994 amended
s. 104

(b)	delete “notify the respondent —” and insert:

notify the employee —

(c)	in paragraph (a) delete “the respondent” and insert:

the employee

(d)	in paragraph (b) delete “the respondent,” (each occurrence) and insert:

the employee,

(e)

delete “within the prescribed period after the making of that finding or the taking of that action, as the case requires.” and insert:

within the period prescribed in the Commissioner’s

instructions.

Note:

The heading to amended section 90 is to read:

Employing authority to notify employee of outcome of

disciplinary matter

104. Section 91 amended

In section 91:

(a)	delete “a respondent” and insert:

an employee

(b)	delete “Division, the respondent” and insert:

Division, the employee

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Division 1

s. 105

(c)	delete “the respondent does” and insert:

the employee does

105. Section 92 replaced

Delete section 92 and insert:

92. Action if employee convicted of serious offence

(1)	Despite the Sentencing Act 1995 section 11, if an employee is convicted or found guilty of a serious offence, the employing authority may take disciplinary
action or improvement action, or both disciplinary action and improvement action, with respect to the employee.
(2)	Before any disciplinary action or improvement action is taken with respect to an employee under this section, the employee must be given an opportunity to make a submission in relation to the action that the employing authority is considering taking.
(3)	If an employee is dismissed under this section, for the purposes of sections 58(4) and 59(1) the employee is taken to have been dismissed for breach of discipline.

93A.

Implementation of decisions under this Division

A decision of an employing authority to take

disciplinary action or improvement action with respect

to an employee may be carried into effect at any time.

Public Sector Reform Act 2010

Part 3	Public Sector discipline amendments
Division 1	Public Sector Management Act 1994 amended
s. 106

106. Section 94 amended

In section 94(2)(d) delete “section 86(3)(a) or (9)(b)(i),

88(1)(b)(i) or 89(1).” and insert:

section 82A(3)(a), 88(a) or 89(1).

107. Part 9 Division 3 inserted

Before Schedule 1 insert:

Division 3 — Public Sector Reform Act 2010 Part 3

amendments: transitional provisions

114. Transitional provisions

Schedule 8 sets out transitional provisions.

108. Schedule 8 inserted

At the end of the Act insert:

Schedule 8 — Public Sector Reform Act 2010 Part 3 amendments: transitional provisions

[s. 114]

1. Term used: commencement day

In this Schedule —

commencement day means the day on which the Public Sector Reform Act 2010 section 97 comes into operation.

2. Disciplinary proceedings

(1)	If a proceeding (including an investigation, disciplinary inquiry or special disciplinary inquiry) commenced under

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Part 3

Public Sector Management Act 1994 amended

Division 1

s. 108

Part 5 Division 3 before the commencement day has not been finalised under that Division before that day, Part 5 Division 3 as in force immediately before that day continues

to apply to and in relation to that proceeding as if the Public the proceeding is finalised.

(2)

Section 78 as in force immediately before the

commencement day continues to apply to a decision made

in a proceeding referred to in subclause (1).

(3)

Except as provided in subclauses (1) and (2), Part 5 as amended by the Public Sector Reform Act 2010 Part 3 applies in relation to any act, omission or conduct that occurred before or after the commencement day.

3. Suspensions

(1)

A suspension that is of effect under section 82 immediately before the commencement day continues to be of effect for the remainder of the period for which it would, but for the Public Sector Reform Act 2010 Part 3, have been of effect.

(2)

Section 82 as in force immediately before the

commencement day continues to apply to a suspension

referred to in subclause (1).

4. Appeals

An appeal pending under section 78 immediately before the commencement day is to be dealt with under that section as in force before the commencement day.

5. Power to amend subsidiary legislation

(1)

The Governor, on the recommendation of the Minister, may

make regulations amending subsidiary legislation made

under any Act.

(2)

The Minister may make a recommendation under

subclause (1) only if the Minister considers that each

amendment proposed to be made by the regulations is

Public Sector Reform Act 2010

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Division 1	Public Sector Management Act 1994 amended
s. 108
necessary or desirable as a consequence of the enactment of the Public Sector Reform Act 2010 Part 3.

(3)	Nothing in this clause prevents subsidiary legislation from being amended in accordance with the Act under which it was made.

6. Transitional regulations

(1)	If there is no sufficient provision in this Schedule for dealing with a transitional matter, the regulations may prescribe all matters that are required or necessary or convenient to be prescribed for dealing with the matter.
(2)	In subclause (1) —
*transitional matter* means a matter that needs to be dealt with for the purpose of effecting the transition from an Act (including this Act) as enacted immediately before the commencement day to the Act as amended by the Public Sector Reform Act 2010 Part 3.
(3)	Regulations made under subclause (1) may provide that specified provisions of this Act as in force on or after the commencement of the Public Sector Reform Act 2010, or of subsidiary legislation made under this Act, or of an Act amended by the Public Sector Reform Act 2010 —

(a)	do not apply; or
(b)	apply with specified modifications,

to or in relation to any matter.

(4)

If regulations under subclause (1) provide that a specified

state of affairs is to be taken to have existed, or not to have

existed, on and from a day that is earlier than the day on

which the regulations are published in the Gazette but not

earlier than the commencement day, the regulations have

effect according to their terms.

(5)

In subclauses (3) and (4) —

specified means specified or described in the regulations.

Public Sector Reform Act 2010

Public Sector discipline amendments

Part 3

Other Acts amended

Division 2

s. 109

(6)	If regulations contain a provision referred to in subclause (4), the provision does not operate so as to —

(a)	affect in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the day of publication of those regulations; or
(b)	impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the day

of publication of those regulations.

7. Interpretation Act 1984 not affected

Unless the contrary intention appears in this Schedule, the

provisions of this Schedule are additional to and do not

prejudice or affect the application of the Interpretation

Act 1984 Part V.

Division 2 — Other Acts amended

109. Industrial Relations Act 1979 amended

(1)	This section amends the Industrial Relations Act 1979.
(2)	In section 80I(1):

(a)	in paragraph (b) after “decision” insert:

or finding

(b)	in paragraph (d) after “decision” insert:

or finding

110. School Education Act 1999 amended

(1)	This section amends the School Education Act 1999.

Public Sector Reform Act 2010

Part 3	Public Sector discipline amendments
Division 2	Other Acts amended
s. 110

(2)

In section 239(1)(b) delete “that is not the Minister (within the

meaning in that Part)”.

(3)

Delete section 239(2) and insert:

(2)	In addition to —

(a)	the actions that may be taken under section 79(3) of the PSMA; and
(b)	any disciplinary action or improvement action that may be taken under section 82A(3)(b) or 88(b) of the PSMA,

the chief executive officer may under those provisions

make a determination under section 238(1)(a) in

respect of a member of the teaching staff.

(4)	In section 240(1):

(a)

in paragraph (a) delete “is guilty of an act or omission that comes within” and insert:

may have committed a breach of discipline as referred to

(b)

delete paragraph (c)(ii) and “or” after it and insert:

(ii) in the case of a suspected breach of discipline dealt with under Part 5 of the PSMA — a decision is made under section 81(1)(b), 82A(2) or (3) or 88 of the PSMA; or