Public Service Act 1922 (Cth)

Public Service Act 1922

Act No. 21 of 1922 as amended

Consolidated as in force on 5 December 1999

(includes amendments up to Act No. 146 of 1999)

[Note: This Act is repealed by Act No. 146 of 1999]

Prepared by the Office of Legislative Drafting,

Attorney‑General’s Department, Canberra

Contents

An Act to consolidate and amend the Law regulating the Public Service, and for other purposes

Part I—Preliminary

1Short title [see Note 1]

This Act may be cited as the Public Service Act 1922.

2Commencement [see Note 1]

This Act shall commence on a date to be fixed by proclamation.

6Chief object of Act

The chief object of this Act is to constitute a public service for the efficient, equitable and proper conduct, in accordance with sound management practices (including personnel management practices), of the public administration of the Australian Government and this Act shall be construed accordingly.

7Interpretation

(1)
In this Act, unless the contrary intention appears:
Agency means the Merit Protection and Review Agency established by the Merit Protection Act.
authorised medical practitioner means a medical practitioner authorised by the Secretary to the Department of the Commonwealth primarily responsible for public health matters, or the Commissioner, to:
(a)
perform medical examinations under this Act; and
(b)
make recommendations under this Act in relation to redeployment or retirement; and
(c)
make recommendations under this Act in relation to the health and physical fitness of officers whose appointment to the Service on probation has not been confirmed.
classification means:
(a)
in relation to an office (other than an SES office)—a description that identifies the class of offices to which the office belongs, being a class of offices that are of a similar kind, that have responsibilities of a similar level, the performance of the duties of which requires work of similar value and the salary, or range of salaries, applicable to which are the same; and
(aa)
in relation to an SES office—a description that identifies the class of offices to which the office belongs, being a class of offices with the same range of salaries; and
(b)
in relation to an officer who holds an office—the classification of that office; and
(c)
in relation to an unattached officer—the classification that the officer has as an unattached officer determined in accordance with subsections 28(4), 42(2) and 81B(3A).
Commissioner means the Public Service Commissioner.
Commonwealth authority means:
(a)
a body corporate incorporated, whether before or after the commencement of subsection 5(8) of the Public Service Reform Act 1984, for a public purpose by an Act, by regulations made under an Act or by or under a law of a Territory (other than a law of the Australian Capital Territory or the Northern Territory), being a body employing staff otherwise than under this Act;
(b)
an authority or body, not being a body corporate, established, whether before or after the commencement of subsection 5(8) of the Public Service Reform Act 1984, for a public purpose by, or in accordance with the provisions of, an Act, regulations made under an Act or a law of a Territory (other than the Australian Capital Territory or the Northern Territory), being an authority or body employing staff otherwise than under this Act;
(c)
a company or other body corporate incorporated, whether before or after the commencement of subsection 5(8) of the Public Service Reform Act 1984, under a law of the Commonwealth, of a State or of a Territory, being a company or body corporate in which the Commonwealth has a controlling interest; or
(d)
an authority or body established, whether before or after the commencement of subsection 5(8) of the Public Service Reform Act 1984 and whether by, or in accordance with the provisions of, an Act, regulations made under an Act or a law of a Territory or otherwise, and whether a body corporate or not, being an authority or body that is financed in whole or in substantial part, either directly or indirectly, by money provided by the Commonwealth and employs staff otherwise than under this Act.
criminal offence means:
(a)
an offence against the law of the Commonwealth or of a State or Territory; or
(b)
an offence against a law of, or of a part of, a foreign country, being an offence of a kind which, if committed in, or within the jurisdiction of, a State or Territory, would constitute an offence against the law of the Commonwealth or of that State or Territory.
Department means:
(a)
any Department of the Service (other than a Department of the Service that has been abolished or the name of which has been altered) the name of which is specified, or deemed by virtue of section 7A to be specified, in Schedule 2; or
(b)
a branch or part of the Service in relation to which a person has, under this Act or another Act, the powers of, or exercisable by, a Secretary as if that branch or part of the Service were a separate Department.
designated group means any of the following classes of persons:
(a)
members of the Aboriginal race of Australia or persons who are descendants of indigenous inhabitants of the Torres Strait Islands;
(b)
persons who have migrated to Australia and whose first language is a language other than English, and the children of such persons;
(c)
persons who are physically or mentally disabled; and
(d)
any other class of persons declared by the regulations to be a designated group for the purposes of this definition.
Employee means a person employed under Division 10 of Part III.
full‑time office means an office other than a part‑time office.
industrial award means:
(a)
an award under the Workplace Relations Act 1996;
(b)
an award or order under the Conciliation and Arbitration Act 1904; or
(c)
a determination, award or order made by a prescribed person, tribunal or body under a law of the Commonwealth or of a Territory.
Merit Protection Act means the Merit Protection (Australian Government Employees) Act 1984.
national service means:
(a)
service in the Regular Army Supplement rendered under the National Service Act 1951‑1965; or
(b)
service as an officer in that force in pursuance of an appointment referred to in subsection 28(1) or (2) of that Act;
but does not include service (other than service under subsection 27(10), section 30 or subsection 31(6B) of that Act) rendered by a person by virtue of a voluntary undertaking by him to render service for a period for which he is not otherwise bound so to serve under that Act or the Defence Act 1903‑1965.
office of Secretary means:
(a)
an office (other than an office that has been abolished or the name of which has been altered) the name of which is specified, or deemed by virtue of subsection 25(1) to be specified, in Schedule 3; or
(b)
an office the holder of which has, under this Act or another Act, in relation to a branch or part of the Service, the powers of, or exercisable by, a Secretary.
Officer means a person appointed or transferred to the Service, whether before or after the commencement of this Act, but does not include an employee.
overseas means outside Australia and the Territories.
part‑time office means an office in relation to which a declaration under subsection 29B(1) is in force.
relevant Secretary means the Secretary of the Department in connection with which, or in which is employed an officer or employee in connection with whom, the expression is used or is applicable.
relevant staff organization, in relation to an office in a Department, means an organization:
(a)
that is an organisation within the meaning of the Industrial Relations Act 1988;
(b)
for membership of which a person holding the office would be eligible; and
(c)
that is a party to an industrial award that applies in relation to the salary payable in respect of the office, being an industrial award to which the Minister who is responsible for the Department is also a party.
returned soldier means:
(a)
a person who is a member of the Forces (as that term was defined in section 139 of the Re‑establishment and Employment Act 1945 immediately before its repeal); or
(b)
a person who, as a member of the Defence Force, rendered continuous full‑time service outside Australia:
(i)
as a member of a unit of the Defence Force that was allotted for duty, within the meaning of subsection 5B(2) of the Veterans’ Entitlements Act 1986, in an operational area described in item 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 or 14 of Schedule 2 to that Act; or
(ii)
as a person who was allotted for duty, within the meaning of subsection 5B(2) of the Veterans’ Entitlements Act 1986, in an operational area referred to in subparagraph (i).
Secretary means a person for the time being holding, or performing the duties of, an office of Secretary.
Senior Executive Service office or SES office means an office that has a classification declared by the Commissioner under subsection 28(1A) to be a Senior Executive Service classification.
Senior Executive Service officer or SES officer means:
(a)
an officer who holds an SES office; and
(b)
an unattached officer who has a Senior Executive Service classification.
Senior Executive (Specialist) office or SES (Specialist) office means an SES office that has the classification of Senior Executive (Specialist) Band 1, Senior Executive (Specialist) Band 2 or Senior Executive (Specialist) Band 3.
Senior Executive (Specialist) officer or SES (Specialist) officer means:
(a)
an officer who holds an SES (Specialist) office; or
(b)
an unattached officer whose classification is Senior Executive (Specialist) Band 1, Senior Executive (Specialist) Band 2 or Senior Executive (Specialist) Band 3.
specified defence service means:
(a)
continuous full time service in a part of the Emergency Forces or of the Reserve Forces;
(b)
service in a part of those Forces for such periods as are fixed by or in accordance with the regulations under the Defence Act 1903‑1965, the Naval Defence Act 1910‑1965 or the Air Force Act 1923‑1965; or
(c)
national service;
but does not include service rendered by a member of a part of the Emergency Forces or of the Reserve Forces by virtue of a voluntary undertaking by him to render continuous full‑time service for a period for which he is not otherwise bound so to serve under the Defence Act 1903‑1965, the Naval Defence Act 1910‑1965 or the Air Force Act 1923‑1965.
The Emergency Forces has the same meaning as in the Defence Act 1903.
The Minister means a Minister for the time being administering the Department in which is employed or proposed to be employed the officer or person in connexion with whom the term is used or is applicable.
the Reserve Forces has the same meaning as in the Defence Act 1903‑1965.
the Service means the Australian Public Service constituted by section 10.
The Territorial Service means the Public Service of any Territory.
unattached Secretary means a person who:
(a)
is an unattached officer (not having a Senior Executive Service classification or a classification lower than the lowest Senior Executive Service classification); and
(b)
immediately before becoming an unattached officer held an office referred to in paragraph (a) of the definition of office of Secretary.
(2)
In this Act, unless the contrary intention appears:
(a)
a reference to the repealed Officers’ Rights Declaration Act 1928 shall be read as a reference to that Act as amended and in force immediately before 15 March 1981; and
(b)
a reference to the former section 6 of the Trade Commissioners Act 1933 shall be read as a reference to section 6 of that Act as amended and in force immediately before 15 March 1981.
(3)
An officer of a Department is an excess officer for the purposes of a provision of this Act if:
(a)
the officer is included in a class of officers employed in the Department, which class comprises a greater number of officers than is necessary for the efficient and economical working of the Department;
(b)
the services of the officer cannot be effectively used because of technological or other changes in the work methods of the Department or changes in the nature, extent or organisation of the functions of the Department; or
(c)
where the duties usually performed by the officer are to be performed at a different locality and the Commissioner has determined that the provision applies in relation to the re‑location of the performance of those duties—the officer is not willing to perform duties at that locality.

7ASchedule 2—Departments

(1)
Where any Departments specified in Schedule 2 are abolished or any Departments are established in addition to or in lieu of the Departments specified in that Schedule, or an alteration is made in the name of any Department so specified, Schedule 2 shall be deemed to be amended in the following manner:
(a)
where any Department is abolished or another Department is established in lieu of any Department—by the omission of the reference to the Department which has been abolished or in lieu of which another Department has been established;
(b)
where any Department is established either in addition to or in lieu of any Department—by the addition of the name of the Department so established; and
(c)
where an alteration is made in the name of any Department—by a similar alteration of the name of the Department as appearing in that Schedule.
(2)
As soon as practicable after the occurrence of an event referred to in subsection (1), the Prime Minister shall cause a notice of the event to be published in the Gazette, specifying the date on which the event occurred.

7BOperation of Act

This Act applies both within and without Australia and extends to all the Territories.

8Act not to apply to certain persons

This Act does not apply to:
(a)
a person employed in an honorary capacity; or
(b)
a person remunerated by fees, allowances or commission only.

8AExempt officers and employees

(1)
The Governor‑General may, on the recommendation of the Board, by order in writing under his hand, declare that the provisions of this Act or of the regulations specified in the order shall not apply to an officer or employee, or to the officers or employees included in a class of officers or employees, specified in the order.
(2)
An order under subsection (1) may be expressed to be in force for a period specified in the order and, in that case, the order shall be in force for that period only.
(3)
The Board may determine the terms and conditions of employment (excluding rates of payment) of an officer or employee in relation to whom an order is in force under subsection (1) but no such determination shall be made in respect of a matter dealt with in a provision of the Act or of the regulations which the order does not declare not to apply to the officer or employee.
(3A)
Where:
(a)
an order under this section is in force in relation to an officer or employee; and
(b)
a determination under subsection (3) that is applicable in relation to the officer or employee is inconsistent with a provision of a determination in force under subsection 9(7A) or section 82D, not being a provision with respect to terms and conditions of employment overseas;
that provision does not apply in relation to the officer or employee.
(4)
An order under this section shall be deemed not to be in force in relation to an officer or employee while terms and conditions of employment determined under subsection 9(7A) or section 82D with respect to employment overseas are applicable to him.

9Officers of the Parliament

(1)
Notwithstanding anything contained in this Act:
(a)
the appointment of a person to the office of Clerk of the Senate shall be made by the Governor‑General on the recommendation of the President of the Senate;
(b)
the appointment of a person to the office of Clerk of the House of Representatives shall be made by the Governor‑General on the recommendation of the Speaker; and
(c)
the appointment of a person to the office of Parliamentary Librarian, Principal Parliamentary Reporter or Secretary to the Joint House Department shall be made by the Governor‑General on the joint recommendation of the President and of the Speaker.
(2)
Notwithstanding anything contained in this Act:
(a)
the President of the Senate may appoint persons, or promote officers, to offices in the Department of the Senate (other than the office of Clerk of the Senate);
(b)
the Speaker may appoint persons, or promote officers, to offices in the Department of the House of Representatives (other than the office of Clerk of the House of Representatives); and
(c)
the President and the Speaker may appoint persons, or promote officers, to offices in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department (other than the offices of Parliamentary Librarian, Principal Parliamentary Reporter and Secretary to the Joint House Department).
(2AA)
Subject to this section and section 9AB, unless inconsistent with the context, any action or approval required or authorized by this Act, the regulations or any determinations in force under section 82D to be taken or given by the Commissioner shall or may, so far as officers and offices of the Parliament are concerned, be taken or given by the President or the Speaker, or the President and the Speaker, as the case may be, in substitution for the Commissioner and any action (other than an action referred to in subsection (2)) required or authorized by this Act, the regulations or any determination in force under section 82D to be taken by a Secretary shall or may be taken:
(a)
in relation to officers of, and offices in, the Department of the Senate—by the Clerk of the Senate;
(b)
in relation to officers of, and offices in, the Department of the House of Representatives—by the Clerk of the House of Representatives;
(c)
in relation to officers of, and offices in, the Department of the Parliamentary Library—by the Parliamentary Librarian;
(d)
in relation to officers of, and offices in, the Department of the Parliamentary Reporting Staff—by the Principal Parliamentary Reporter; and
(e)
in relation to officers of, and offices in, the Joint House Department—by the Secretary to the Joint House Department.
(2A)
Subject to this section, unless inconsistent with the context:
(a)
any action or approval required or authorized by this Act, the regulations or any determinations in force under section 82D to be taken or given by the Commissioner shall or may, so far as employees in the Department of the Senate, the Department of the House of Representatives, the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department are concerned, be taken or given by the President or the Speaker or the President and the Speaker (as the case may be) in substitution for the Commissioner; and
(b)
any action required or authorized by this Act, the regulations or any determinations in force under section 82D to be taken by a Secretary shall or may be taken by the Clerk of the Senate so far as relates to employees in the Department of the Senate, by the Clerk of the House of Representatives so far as relates to employees in the Department of the House of Representatives, by the Parliamentary Librarian so far as relates to employees in the Department of the Parliamentary Library, by the Principal Parliamentary Reporter so far as relates to employees in the Department of the Parliamentary Reporting Staff and by the Secretary to the Joint House Department so far as relates to employees in the Joint House Department.
(3)
Any reference in this Act, the regulations or any determinations in force under section 82D to the Minister shall so far as the Departments of the Senate, the House of Representatives, the Parliamentary Library, the Parliamentary Reporting Staff, and the Joint House Department are concerned, be read as a reference to the President or the Speaker or the President and the Speaker (as the case may be).
(4)
The officers of the Senate, the officers of the House of Representatives, the officers of the Parliamentary Library, the officers of the Parliamentary Reporting Staff, and the officers of the Joint House Department shall be deemed to constitute separate Departments under this Act.

(6)
The Governor‑General may, on the recommendation of the President or the Speaker or the President and the Speaker (as the case may be), make, in relation to officers and employees of the Parliament, regulations about the same matters for which regulations may be made under subsection 97(1).
(7)
Any regulation made by the Governor‑General under subsection 97(1) applies to officers and employees of the Parliament unless and until:
(a)
a regulation is made under subsection (6) inconsistent with, or prescribing matters dealt with in, that first‑mentioned regulation; or
(b)
the Governor‑General, upon the recommendation of the President or the Speaker or the President and the Speaker (as the case may be), by order, declares that such regulation shall not apply to officers and employees of the Parliament.
(7A)
Subject to subsection (7B), the President or the Speaker or the President and the Speaker, as the case may be, may, by instrument in writing, determine the terms and conditions of employment (including employment overseas) of officers and employees of the Parliament, being terms and conditions for and in relation to which determinations may be made under section 82D.
(7B)
Where a determination under subsection (7A) is inconsistent with:
(a)
a provision of this Act;
(b)
a provision of the regulations made for the purposes of subsection (6);
(c)
a provision of the regulations, made by the Governor‑General under subsection 97(1), that apply to officers and employees of the Parliament by virtue of subsection (7); or
(d)
a provision of another Act;
(whether enacted or made before or after the commencement of this subsection), that provision shall prevail and the determination shall, to the extent of the inconsistency, be of no force or effect.
(7C)
The provisions of Division 10A of Part III (other than subsections 82D(1) and (2)) apply in relation to determinations made under subsection (7A) of this section in like manner as those provisions apply in relation to determinations made under section 82D and, for the purposes of those provisions as so applying, any reference in those provisions to the Commissioner shall be read as reference to the President or the Speaker or the President and the Speaker, as the case may be.
(7D)
A determination in force under section 82D has effect in relation to officers and employees of the Parliament subject to subsections (7E) and (7F).
(7E)
Where a determination in force under section 82D is inconsistent with:
(a)
a provision of the regulations made for the purposes of subsection (6) of this section; or
(b)
a provision of a determination in force under subsection (7A) of this section;
(whether made before or after the day on which the first‑mentioned determination takes effect), the first‑mentioned determination is, to the extent of the inconsistency, of no force or effect in relation to officers and employees of the Parliament.
(7F)
The President or the Speaker or the President and the Speaker, as the case may be, may, by instrument in writing, declare that a determination, or a provision of a determination, in force under section 82D and specified in the instrument does not apply to officers and employees of the Parliament.
(7G)
The Governor‑General may, on the recommendation of the President or the Speaker or the President and the Speaker, as the case may be, make regulations providing for and in relation to appeals with respect to any matter arising under a determination under subsection (7A).
(7H)
The President or the Speaker, or the President and the Speaker, as the case may be, may, by signed writing, delegate to an officer or employee of the Parliament all or any of his, her or their powers, as the case may be, under this Act (other than the powers to make recommendations to the Governor‑General under subsections (1), (6) and (7G)).
(8)
In this section:
(a)
a reference to officers of the Parliament shall be read as a reference to officers of the Department of the Senate, the Department of the House of Representatives, the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department;
(aa)
a reference to offices of the Parliament shall be read as a reference to offices in the Department of the Senate, the Department of the House of Representatives, the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department; and
(b)
a reference to employees of the Parliament shall be read as a reference to employees performing duties in a Department specified in paragraph (a).

9ACreation etc. of offices in Parliamentary Departments

(1)
The President may, after obtaining a report from the Clerk of the Senate:
(a)
create an office in the Department of the Senate; or
(b)
abolish an office in the Department of the Senate.
(2)
The Speaker may, after obtaining a report from the Clerk of the House of Representatives:
(a)
create an office in the Department of the House of Representatives; or
(b)
abolish an office in the Department of the House of Representatives.
(3)
The President and the Speaker may, after obtaining a report from the Parliamentary Librarian, the Principal Parliamentary Reporter or the Secretary to the Joint House Department, as the case may be:
(a)
create an office in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department, as the case may be; or
(b)
abolish an office in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department, as the case may be.
(4)
The President may, after obtaining a report from the Clerk of the Senate:
(a)
raise or lower the classification of an office in the Department of the Senate; or
(b)
alter the designation of an office in the Department of the Senate;
other than the office of Clerk of the Senate.
(5)
The Speaker may, after obtaining a report from the Clerk of the House of Representatives:
(a)
raise or lower the classification of an office in the Department of the House of Representatives; or
(b)
alter the designation of an office in the Department of the House of Representatives;
other than the office of Clerk of the House of Representatives.
(6)
The President and the Speaker may, after obtaining a report from the Parliamentary Librarian, the Principal Parliamentary Reporter or the Secretary to the Joint House Department, as the case may be:
(a)
raise or lower the classification of an office in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department, as the case may be; or
(b)
alter the designation of an office in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department, as the case may be;
other than the office of Parliamentary Librarian, Principal Parliamentary Reporter or Secretary to the Joint House Department.
(7)
Where the classification of an office in a Department referred to in subsection (4), (5) or (6) is altered, the office shall be deemed to be vacant and the officer who occupied the office immediately before the alteration becomes an unattached officer.
(8)
Where the President or the Speaker, or the President and the Speaker, as the case may be, makes or make the same alteration of the classification of all offices having the same designation and classification, the President or the Speaker, or the President and the Speaker, as the case may be, may, by notice published in the Gazette, direct that subsection (7) shall not apply and, in that case, that subsection does not apply.
(9)
Where:
(a)
the President or the Speaker, or the President and the Speaker, as the case may be, makes or make an alteration of the classification of an office in a case where there is no other office having the same designation and classification as that office; and
(b)
the President or the Speaker, or the President and the Speaker, as the case may be, declares or declare, by notice published in the Gazette, that that alteration is related to an alteration in respect of which a notice is or has been published under subsection (8);
the President or the Speaker, or the President and the Speaker, as the case may be, may, in that first‑mentioned notice, direct that subsection (7) shall not apply in relation to that first‑mentioned alteration and, in that case, that subsection does not apply.

9AACertain acting appointments in Parliamentary Departments

(1)
In this section, responsible authority means:
(a)
in relation to an office in the Department of the Senate—the President of the Senate;
(b)
in relation to an office in the Department of the House of Representatives—the Speaker of the House of Representatives; and
(c)
in relation to an office in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department—the President of the Senate and the Speaker of the House of Representatives.
(2)
The responsible authority may, in writing, appoint a person who is an officer or employee to act as Clerk of the Senate, Clerk of the House of Representatives, Parliamentary Librarian, Principal Parliamentary Reporter or Secretary to the Joint House Department:
(a)
during a vacancy in the office;
(b)
during a period when the holder of the office is suspended from duty under section 57 or 59; or
(c)
during any period, or during all periods, when the holder of the office is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office;
but a person appointed to act during a vacancy shall not continue to act for more than 12 months.
(3)
The appointment may be expressed to have effect only in specified circumstances.
(4)
Where:
(a)
a person is acting in an office under paragraph (2)(b) or (c); and
(b)
the office becomes vacant;
then, subject to subsection (3), the person may continue to act until:
(c)
the responsible authority otherwise directs, in writing;
(d)
the vacancy is filled; or
(e)
a period of 12 months from the day on which the vacancy occurred expires;
whichever happens first.
(5)
A person acting in an office under subsection (2) has all the powers and duties of the holder of the office.
(6)
The responsible authority may, in writing, at any time terminate an appointment made under subsection (2).
(7)
Anything done by or in relation to a person purporting to act in an office under subsection (2) is not invalid because:
(a)
the occasion for the appointment had not arisen;
(b)
there was a defect or irregularity in connection with the appointment;
(c)
the appointment had ceased to have effect; or
(d)
the occasion for the person to act had not arisen or had ceased.

9ABModifications of certain provisions in relation to officers of the Parliament

(1)
In this section and in sections 50DAA, 50DA, 50DB, 50DC and 50G as those sections have effect as modified by Schedule 4:
office of the Parliament has the same meaning as in section 9.
responsible authority means:
(a)
in relation to a promotion to, or the creation of, an office of the Parliament:
(i)
if the office is, or is to be, an office in the Department of the Senate—the President of the Senate; or
(ii)
if the office is, or is to be, an office in the House of Representatives—the Speaker of the House of Representatives; or
(iii)
if the office is, or is to be, an office in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department—the President of the Senate and the Speaker of the House of Representatives; or
(b)
in relation to a transfer to an office of the Parliament:
(i)
if the transfer is to an office in the Department of the Senate—the Clerk of the Senate; or
(ii)
if the transfer is to an office in the Department of the House of Representatives—the Clerk of the House of Representatives; or
(iii)
if the transfer is to an office in the Department of the Parliamentary Library—the Parliamentary Librarian; or
(iv)
if the transfer is to an office in the Department of the Parliamentary Reporting Staff—the Principal Parliamentary Reporter; or
(v)
if the transfer is to an office in the Joint House Department—the Secretary of the Joint House Department; or
(c)
in relation to action that precedes a promotion or transfer to an office of the Parliament and may involve either a promotion or a transfer—the person or persons who, under paragraph (a), would be the responsible authority in relation to such a promotion and the person who, under paragraph (b), would be the responsible authority in relation to such a transfer.
(2)
The application of the provisions of this Act referred to in column 1 of Schedule 4 in relation to a promotion or transfer to, or the creation of, an office of the Parliament is subject to the modifications set out in columns 2 and 3 of that Schedule.

9BAnnual report to Parliament by Presiding Officers

(1)
In this section:
(a)
a reference to a Parliamentary Department shall be read as a reference to the Department of the Senate, the Department of the House of Representatives, the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department;
(b)
a reference to the relevant Presiding Officer or the relevant Presiding Officers, in relation to a Parliamentary Department, shall be read as a reference to:
(i)
in the case of the Department of the Senate—the President;
(ii)
in the case of the Department of the House of Representatives—the Speaker; and
(iii)
in the case of each other Parliamentary Department—the President and the Speaker; and
(c)
officer of the Parliament and employee of the Parliament have the same meanings as those expressions have in section 9.
(2)
The person who is the relevant Presiding Officer, or the persons who are the relevant Presiding Officers, in relation to a Parliamentary Department shall, as soon as practicable after 30 June in each year, cause a report concerning the operation of that Parliamentary Department during the year that ended on that 30 June to be prepared and to be laid before:
(a)
the Senate, in the case of a report concerning the Department of the Senate;
(b)
the House of Representatives, in the case of a report concerning the Department of the House of Representatives; and
(c)
each House of the Parliament, in the case of a report concerning any of the other Parliamentary Departments.
(3)
Nothing in this section shall be taken to affect any means by which a member of a House of the Parliament might seek information from the President or the Speaker, or the President and the Speaker, concerning any matter related to the administration of a Parliamentary Department.

Part II—Composition and administration of the Australian Public Service

10Constitution of the Australian Public Service

The Australian Public Service is constituted by:
(a)
the Secretaries specified in Schedule 3;
(b)
Senior Executive Service officers;
(c)
other officers; and
(d)
employees.

10AInterpretation

(1)
In:
(a)
any law of the Commonwealth (other than this Act) or law of a Territory;
(b)
any instrument having effect under such a law; or
(c)
any award, order or determination of an authority established by a law of the Commonwealth;
whether passed or made before or after the commencement of this section, a reference to the Public Service of the Commonwealth, the Public Service or the Commonwealth Service shall, where the context so admits, be read as a reference to the Australian Public Service.
(2)
References in this Act to the Commonwealth Service shall be read as references to the Public Service of the Commonwealth as constituted before the commencement of the Public Service Act (No. 4) 1973, and references in this Act to the Service shall, where the context so admits, be read as including references to the Public Service of the Commonwealth as so constituted.

11Public Service Commissioner

(1)
There shall be a Public Service Commissioner.
(2)
The Commissioner shall be appointed by the Governor‑General.
(3)
The Commissioner shall be appointed on a full‑time basis for such period, not exceeding 5 years, as is specified in the instrument of appointment, but is eligible for re‑appointment.
(4)
A person who has attained the age of 65 years shall not be appointed as the Commissioner and a person shall not be appointed as the Commissioner for a period that extends beyond the day on which the person will attain the age of 65 years.
(5)
The Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Prime Minister.
(6)
Where an officer is appointed as the Commissioner, the person shall be deemed, upon the appointment, to become an unattached Secretary and to remain an unattached Secretary while the person continues to be an officer.

12Remuneration

(1)
The Commissioner shall be paid such remuneration as is determined by the Remuneration Tribunal, but if no determination of that remuneration is in operation, the Commissioner shall be paid such remuneration as is prescribed.
(2)
The Commissioner shall be paid such allowances as are prescribed.
(3)
This section has effect subject to the Remuneration Tribunal Act 1973.

13Leave of absence

(1)
Subject to section 87E of the Public Service Act 1922, the Commissioner has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2)
The Prime Minister may grant the Commissioner leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Prime Minister determines.

14Disclosure of interests

The Commissioner shall give the Prime Minister written notice of all direct or indirect pecuniary interests that the Commissioner has or acquires in any business whether in Australia or elsewhere or in any body corporate carrying on such business.

15Annual report by Commissioner

The Commissioner shall, as soon as practicable after 30 June in each financial year, prepare and furnish to the Prime Minister a report in relation to the activities of the Commissioner during that year.

16Resignation

The Commissioner may resign by giving the Governor‑General a signed notice of resignation.

17Suspension and removal

(1)
The Governor‑General may remove the Commissioner from office on an address praying for the Commissioner’s removal on the ground of misbehaviour or physical or mental incapacity being presented to the Governor‑General by each House of the Parliament in the same session of the Parliament.
(2)
The Governor‑General may suspend the Commissioner from office on the ground of misbehaviour or physical or mental incapacity.
(3)
Where the Governor‑General suspends the Commissioner from office, the Prime Minister shall cause a statement of the grounds of the suspension to be laid before each House of the Parliament within 7 sitting days of the House after the suspension.
(4)
Where such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the Commissioner should be removed from office and, if each House so passes such a resolution, the Governor‑General shall remove the Commissioner from office.
(5)
If, at the expiration of 15 sitting days of a House of Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the suspension terminates.
(6)
The suspension of the Commissioner from office under this section does not affect any entitlement of the Commissioner to be paid remuneration and allowances.
(7)
If the Commissioner becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or assigns remuneration for their benefit, the Governor‑General shall remove the Commissioner from office.
(8)
If the Commissioner is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months, the Governor‑General may remove the Commissioner from office.
(9)

The Commissioner shall not be removed or suspended from office except as provided by this section.

18Delegations

(1)
The Commissioner may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Commissioner, delegate to a person (not being a person engaged as a consultant under section 4 of the Members of Parliament (Staff) Act 1984) any of the Commissioner’s powers or functions under this Act or under any other law, other than this power of delegation.
(2)
Without limiting the generality of subsection (1), the reference in that subsection to the powers of the Commissioner under this Act shall be read as including a reference to the powers of the Commissioner under section 82D.
(3)
Where the Commissioner delegates a power or function to a Secretary, the Secretary may, unless the instrument of delegation prohibits it, sub‑delegate the power or function, by instrument in writing signed by the Secretary, to a person other than a person engaged as a consultant under section 4 of the Members of Parliament (Staff) Act 1984.
(4)
A power or function delegated under subsection (1) or sub‑delegated under subsection (3), when exercised or performed by the delegate or sub‑delegate, shall, for all purposes, be deemed to have been exercised or performed by the Commissioner.
(5)
A delegation of a power or function under subsection (1):
(a)
may be absolute or conditional;
(b)
does not prevent the exercise of the power or the performance of the function by the Commissioner;
(c)
subject to paragraph (d), continues in force notwithstanding that the person who gave the delegation has ceased to be Commissioner; and
(d)
may be revoked by instrument in writing signed by the Commissioner for the time being.
(6)
A sub‑delegation of a power or function under subsection (3) by the Secretary of a Department:
(a)
may be absolute or conditional;
(b)
does not prevent the exercise of the power or the performance of the function by the Commissioner or by the Secretary;
(c)
subject to paragraph (d), continues in force notwithstanding that:
(i)
the person who gave the delegation has ceased to be Commissioner; or
(ii)
the person who gave the sub‑delegation has ceased to be Secretary of the Department; and
(d)
may be revoked by instrument in writing signed by the Secretary of the Department for the time being.
(7)
Where:
(a)
the exercise of a power or the performance of a function by the Commissioner is dependent upon the opinion, belief or state of mind of the Commissioner in relation to a matter; and
(b)
the power or function has been delegated or sub‑delegated under this section;
the power or function may be exercised or performed by the delegate or sub‑delegate upon the opinion, belief or state of mind of the delegate or sub‑delegate, as the case may be, in relation to the matter.
(8)
Where the Commissioner has delegated a power or function under subsection (1):
(a)
the Commissioner may give directions to the delegate with respect of the exercise of the power or the performance of the function; and
(b)
if the delegate has sub‑delegated the power or function under subsection (3), the delegate:
(i)
shall, if the Commissioner has given a direction to the delegate under paragraph (a) with respect to the exercise of the power or the performance of the function, give a corresponding direction to the sub‑delegate; and
(ii)
may, subject to any direction given to the delegate by the Commissioner under paragraph (a), give directions to the sub‑delegate with respect to the exercise of the power or the performance of the function.
(9)
If:
(a)
the Commissioner gives a delegation under subsection (1); and
(b)
the delegation is expressed to be given to persons each of whom occupies or performs the duties of an office of a kind described in the delegation;
the delegation extends to any person who occupies, or performs the duties of, an office of the kind described in the delegation, even though the office does not come into existence until after the delegation is given.
(10)
Subsection (9) only applies to a delegation that is expressed to be made in reliance on that subsection.

18AActing Commissioner

(1)
The Prime Minister may appoint a person to act as Commissioner:
(a)
during a vacancy in the office of Commissioner; or
(b)
during any period, or during all periods, when the Commissioner is absent from Australia or is, for any reason, unable to perform the duties of the office of Commissioner.
(2)
An appointment to act as Commissioner may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.
(3)
A person appointed under subsection (1) to act during a vacancy in the office of Commissioner shall not continue so to act for more than 12 months.
(4)
Where a person is acting as Commissioner otherwise than by reason of a vacancy in the office of Commissioner and the office becomes vacant while the person is so acting, then, subject to subsection (2), the person may continue so to act until the Prime Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurs expires, whichever first occurs.
(5)
While a person is acting as Commissioner, that person may exercise all the powers, and shall perform all the functions, of the Commissioner.
(6)
The Prime Minister may:
(a)
determine the terms and conditions of appointment, including remuneration and allowances, of a person appointed to act as Commissioner; and
(b)
terminate such an appointment at any time.
(7)
A person appointed to act as Commissioner may resign by giving the Prime Minister a signed notice of resignation.
(8)
Anything done by or in relation to a person purporting to act under subsection (1) is not invalid on the ground that:
(a)
the occasion for the person’s appointment had not arisen;
(b)
there is a defect or irregularity in connection with the person’s appointment;
(c)
the person’s appointment had ceased to have effect; or
(d)
the occasion for the person to act had not arisen or had ceased.

18BStaff

(1)
The staff required to assist the Commissioner in the exercise of the Commissioner’s powers, and the performance of the Commissioner’s functions, or required for the purposes of the Merit Protection Act, shall be persons appointed or employed under this Act.
(2)
The Commissioner has all the powers of a Secretary under this Act so far as those powers relate to the branch of the Australian Public Service comprising the staff referred to in subsection (1), as if that branch were a separate Department of the Australian Public Service.

19Powers of Commissioner

(1)
The Commissioner may at any time:
(a)
enter any Department for the purpose of carrying out the Commissioner’s functions;
(b)
summon any person whose evidence appears to be material to the determining of any subject of inspection, inquiry, or investigation being conducted by the Commissioner;
(c)
take evidence on oath; and
(d)
require the production of documents.
(2)
Any officer who, without reasonable cause, neglects or fails to attend in obedience to the summons, or to be sworn, or to answer questions or produce documents relevant to the subject of the inspection, inquiry or investigation, shall be guilty of an offence against this Act.
(3)
Any person, not being an officer, who, after payment or tender of reasonable expenses, neglects or fails, without reasonable cause, to attend in obedience to the summons, or to be sworn, or to answer questions or produce documents relevant to the subject of the inspection, inquiry or investigation, shall be guilty of an offence.
Penalty: Imprisonment for 6 months.
(4)
Nothing in this section shall be construed as compelling a person to answer any question which would tend to criminate him.

21Records of officers

(1)
The Commissioner shall cause to be kept a record of each officer, showing:
(a)
the date of birth of the officer;
(b)
the date on which the officer was appointed to the Service; and
(c)
the classification of the officer.
(2)
Where, under this Act, a period of service of a person otherwise than in the Service is to be reckoned as service in the Service, the record shall show, in relation to that person, the date on which the first‑mentioned period of service commenced.

22Australian Public Service Management Advisory Board

(1)
There is hereby established a body to be known as the Australian Public Service Management Advisory Board.
(2)
The functions of the Board are:
(a)
to advise the Commonwealth Government on significant issues relating to the management of the Australian Public Service; and
(b)
to be a forum for consideration of major management activities affecting the Australian Public Service as a whole.
(3)
The Board shall consist of the following members:
(a)
the Secretary to the Department of the Prime Minister and Cabinet;
(b)
the Commissioner;
(c)
the Secretary to the Department of Industrial Relations;
(d)
the Secretary to the Department of Finance;
(e)
such other Secretaries as are nominated, in writing, by the Prime Minister;
(f)
at least 2 other persons nominated, in writing, by the Prime Minister.
(4)
One of the members of the Board nominated under paragraph (3)(f) shall be nominated after consultation between the Prime Minister and the Australian Council of Trade Unions.
(5)
One of the members nominated under paragraph (3)(f) shall be a person who has management expertise in the private sector.
(6)
The Secretary to the Department of the Prime Minister and Cabinet shall be the Chairperson of the Board.

Part IIA—Personnel management

22APersonnel management reviews

(1)
The Board may, by notice in writing to the Secretary of a Department, require the Secretary to give the Board, within the time specified in the notice, a report in writing on personnel management in the Department.
(2)
A notice under subsection (1) may specify the particular aspects of personnel management that are to be dealt with in the report.
(3)
Where, pursuant to a notice under subsection (1), the Secretary of a Department gives a report to the Board, the Board, after considering the report, may make recommendations to the Secretary on the action that should or could be taken to improve personnel management in the Department.
(4)
If the Secretary does not concur in or adopt a recommendation made by the Board under subsection (3) on the action that should be taken to improve personnel management in the Department, the Secretary shall, within a reasonable time, inform the Minister administering the Department, in writing, of his reasons for not concurring in or not adopting the recommendation and give a copy of a statement of those reasons to the Board.
(5)
The Board shall, in a report furnished to the Prime Minister in accordance with section 15, report on the operation of this section.

22BEqual employment opportunity programs

(1)
In this section, unless the contrary intention appears:
employment matters, in relation to a Department, means:
(a)
the selection of persons for appointment as officers, or for employment as employees, in the Department;
(b)
the promotion and transfer of:
(i)
officers to offices in the Department; and
(ii)
officers in the Department to offices in other Departments;
(c)
training and staff development for officers and employees in the Department;
(d)
terms or conditions of service of officers and employees in the Department; and
(e)
any other matter related to the employment of officers and employees in the Department.
equal employment opportunity program, in relation to a Department, means a program designed to ensure that:
(a)
appropriate action is taken to eliminate unjustified discrimination against women and persons in designated groups in relation to employment matters in the Department; and
(b)
measures are taken to enable women and persons in designated groups to:
(i)
compete for promotion and transfer in the Department and in the Service generally;
(ii)
pursue careers in the Department and in the Service generally;
as effectively as other persons.
program includes:
(a)
the particular objectives to be achieved by the program;
(b)
the policies to be adopted, and the procedures to be followed, to achieve those objectives;
(c)
the quantitative or other indicators against which the effectiveness of the program is to be assessed; and
(d)
the allocation of staff and other resources to the task of giving effect to the program.
unjustified discrimination includes discrimination that is unlawful under the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984.
(2)
Without limiting the generality of the definition of equal employment opportunity program in subsection (1), the equal employment opportunity program for a Department shall include provision for action to be taken to:
(a)
examine practices in relation to employment matters in the Department to identify:
(i)
any practices that unjustifiably discriminate against women or persons in designated groups; and
(ii)
any patterns (whether ascertained statistically or otherwise) of inequality of opportunity in respect of women or persons in designated groups;
(b)
eliminate any practices, and eliminate or ameliorate any patterns, identified in pursuance of paragraph (a);
(c)
inform officers and employees in the Department, and relevant staff organizations in relation to offices in the Department, of the contents of the program and of the results of any review of the program under subsection (4);
(d)
collect and record information, including statistical information, relevant to the operation of the program;
(e)
assess the effectiveness of the program by comparing information collected in relation to the results of the program with the indicators against which the effectiveness of the program is to be assessed; and
(f)
give effect to any guidelines issued under subsection (10).
(3)
As soon as practicable after the commencement of this section and, in any event, within 12 months after the commencement of this section, the Secretary of a Department shall:
(a)
after giving relevant staff organizations in relation to offices in the Department and such other persons as the Secretary considers appropriate an opportunity to put their views, cause to be developed an equal employment opportunity program for the Department;
(b)
cause to be prepared a statement in writing setting out the program so developed; and
(c)
give a copy of the statement to the Board.
(4)
The Secretary of a Department shall:
(a)
from time to time, after giving relevant staff organizations in relation to offices in the Department and such other persons as the Secretary considers appropriate an opportunity to put their views, cause the equal employment opportunity program for the Department to be reviewed;
(b)
cause to be prepared a statement in writing setting out the results of any review (including particulars of any alteration to be made to the program); and
(c)
give a copy of the statement to the Board.
(5)
The Secretary of a Department shall take any action necessary to give effect to the equal employment opportunity program for the Department and any person who exercises powers in relation to employment matters in the Department shall have regard to the program in exercising those powers.
(6)
The Board may, by notice in writing to the Secretary of a Department, require the Secretary to give the Board, within the time specified in the notice, a report in writing in relation to the development, implementation or review of the equal employment opportunity program for the Department.
(7)
A notice under subsection (6) may specify the particular aspects of the equal employment opportunity program for the Department that are to be dealt with in the report.
(8)
Where the Board receives a statement under subsection (3) or (4) or a report under subsection (6), the Board, after considering the statement or report, may make recommendations to the relevant Secretary on the action that should or could be taken to improve the effectiveness of the equal employment opportunity program for the Department.
(9)
If the Secretary does not concur in or adopt a recommendation made by the Board under subsection (8) on the action that should be taken to improve the effectiveness of the equal employment opportunity program for the Department, the Secretary shall, within a reasonable time, inform the Minister administering the Department, in writing, of his reasons for not concurring in or adopting the recommendation and give a copy of a statement of those reasons to the Board.
(10)
The Board may from time to time, by notice in writing to Secretaries, issue guidelines on the provisions to be made by, and the development, implementation and review of, equal employment opportunity programs for Departments.
(11)
The Board shall, in a report furnished to the Prime Minister in accordance with section 15, report on the operation of this section.
(12)
Where a Department comes into existence after the commencement of this section, this section applies in relation to the Department as if a reference in subsection (3) to the commencement of this section were a reference to the day on which the Department comes into existence.
(13)
The regulations may provide that this section shall, subject to such modifications (if any) as are prescribed, apply to and in relation to a Commonwealth authority and, where the regulations so provide, this section applies to and in relation to the Commonwealth authority as if:
(a)
the Commonwealth authority were a Department;
(b)
references to the Secretary of a Department were references to the person for the time being holding, or performing the duties of, the office specified in the regulations for the purposes of this paragraph;
(c)
a reference in subsection (3) to the commencement of this section were a reference to the day on which the regulations came into force; and
(d)
if the regulations provide that a specified Minister is the prescribed authority for the purposes of the application of this section in relation to the Commonwealth authority—references in subsections (3), (4), (6), (8) and (9) to the Board were references to the Minister so specified.
(14)
The regulations may provide that the provisions of this section shall, subject to such modifications (if any) as are prescribed, apply to and in relation to the employment of:
(a)
members of the Australian Federal Police;
(c)
persons who are employed under section 42 of the Naval Defence Act 1910;
(d)
persons who are employed under section 10 of the Supply and Development Act 1939;
(e)
persons employed as officers of the Australian Security Intelligence Organization; or
(f)
officers appointed in pursuance of section 10 of the Trade Representatives Act 1933.
(15)
In subsections (13) and (14), modifications includes additions, omissions and substitutions.
(16)
Regulations made for the purposes of subsection (14) in relation to persons referred to in paragraph (14)(c) or (d) have effect notwithstanding subsection 42C(1) of the Naval Defence Act 1910 or subsection 10(2) of the Supply and Development Act 1939, as the case may be.
(17)
Where the Minister for Defence, by instrument in writing, declares that, by reason of defence or civil emergency, it is necessary for staff employed under the Naval Defence Act 1910 or the Supply and Development Act 1939 to be engaged in work in circumstances such that regulations made for the purposes of subsection (14) should not apply in respect of those staff, those regulations shall not apply in respect of those staff until that instrument is revoked by the Minister.

22CIndustrial democracy plans

(1)
In this section, industrial democracy plan, in relation to a Department, means a plan designed to achieve appropriate participation by officers and employees in the decision‑making processes of the Department.
(2)
As soon as practicable after the commencement of this section and, in any event, within 12 months after the commencement of this section, the Secretary of a Department shall:
(a)
in consultation with relevant staff organizations in relation to offices in the Department and with such other persons as the Secretary considers appropriate, cause to be developed an industrial democracy plan for the Department;
(b)

Merit Protection Commissioner
(3)
At the commencing time, the person holding office as the Merit Protection Commissioner under the Merit Protection (Australian Government Employees) Act 1984 becomes the Merit Protection Commissioner under the new Act, as if he or she had been appointed as the Merit Protection Commissioner under the new Act for a period equal to the unexpired part of his or her term under the Merit Protection (Australian Government Employees) Act 1984.
Fixed‑term SES officer
(4)
At the commencing time, a fixed‑term SES officer becomes an SES employee:
(a)
in the corresponding Agency; and
(b)
with a corresponding classification;
as if he or she had been engaged as an APS employee under the new Act for a period equal to the unexpired part of the fixed term.
Continuing SES officer
(5)
At the commencing time, a continuing SES officer becomes an SES employee:
(a)
in the corresponding Agency; and
(b)
with a corresponding classification;
as if he or she had been engaged as an ongoing APS employee under the new Act.
Non‑SES officers
(6)
At the commencing time, a non‑SES officer becomes a non‑SES employee:
(a)
in the corresponding Agency; and
(b)
with a corresponding classification;
as if he or she had been engaged as an ongoing APS employee under the new Act.
Term employees
(7)
At the commencing time, a term employee becomes a non‑SES employee:
(a)
in the corresponding Agency; and
(b)
with a corresponding classification;
as if he or she had been engaged as an APS employee under the new Act for a period equal to the unexpired part of the period of engagement under the old Act.
Continuing employees
(8)
At the commencing time, a continuing employee becomes a non‑SES employee:
(a)
in the corresponding Agency; and
(b)
with a corresponding classification;
as if he or she had been engaged as an ongoing APS employee under the new Act.
Overseas‑engaged employees
(9)
At the commencing time, an overseas‑engaged employee becomes a non‑SES employee:
(a)
in the corresponding Agency; and
(b)
in an equivalent capacity;
as if he or she had been engaged as a locally engaged employee under the new Act.
New Act applies
(10)
Except where this Act expressly provides otherwise, the new Act applies to a person who is taken, under this section, to have been appointed or engaged under the new Act in the same way as it applies to persons actually engaged or appointed under the new Act.

6Rights under Part IV of the old Act—first tier

(1)
During the transitional period, a first‑tier person is taken to be absent from duty as an APS employee, on leave without pay.
(2)
Service by a first‑tier person in eligible public employment during the transitional period is counted, for the purposes of accrual of recreation leave credits and sick leave credits, as if it were service as an APS employee.
(3)
A first‑tier person is taken to have resigned as an APS employee at the end of the transitional period unless, before the end of the transitional period:
(a)
the person has given notice in writing to the Agency Head, stating that the person intends to resume duties as an APS employee on the first working day after the end of the transitional period; or
(b)
the person has been granted leave for a period that consists of, or includes, the first working day after the end of the transitional period.
(4)
If a person:
(a)
gives a notice under paragraph (3)(a) of this section; and
(b)
is absent from duty without leave on the first working day after the end of the transitional period;
the person is taken to have resigned as an APS employee at the end of that first working day.
(5)
If a person would have ceased to be an officer under the old Act at a particular time because of section 87JA or 87JB of the old Act (if the old Act had not been repealed), then the person is taken to have resigned as an APS employee at that time.
(6)
If the transitional period for a first‑tier person ends at the end of the relevant period (as defined in subsection 87D(5) of the old Act), then the person becomes a second‑tier person at the end of that relevant period.

7Rights under Part IV of the old Act—second tier

(1)
A second‑tier person is entitled to be engaged as an APS employee, in accordance with the regulations, within the time limits prescribed by the regulations.
(2)
Regulations made for the purposes of subsection (1) may prescribe exceptions to the entitlement.

8Retirement and redeployment of Secretaries

Subject to any modifications prescribed by the regulations, Division 8A of Part III of the old Act continues to apply (as if the old Act had not been repealed) to a person who was an unattached Secretary under the old Act immediately before the commencing time.

9Determinations under section 82D of the old Act

(1)
At the commencing time, each Agency Head is taken to have made a determination (a continued determination) under section 24 of the new Act containing the terms of each transitional 82D determination.
(2)
A continued determination may be amended or revoked by the Agency Head in the same way as if it had actually been made under section 24 of the new Act.
(3)
Unless it is sooner revoked, a continued determination (including any amendments made by an Agency Head under section 24 of the new Act) ceases to be in force on the third anniversary of the commencing time.

10Misconduct

(1)
An Agency Head may, under section 15 of the new Act, impose the same sanctions on an APS employee in the Agency for pre‑commencement misconduct as the Agency Head could have imposed on the employee for that conduct under that section if the conduct had happened after the commencing time.
(2)
Subsection (1) does not apply to conduct for which a person was charged under the old Act before the commencing time.
(3)
For the purposes of this section, the procedures referred to in section 15 of the new Act apply in determining whether:
(a)
conduct was misconduct for the purposes of Subdivision C, D or E of Division 6 of Part III of the old Act; and
(b)
conduct would have been a breach of the Code of Conduct if the conduct had happened after the commencing time.

11Secretaries of core Departments

(1)
At the commencing time, the name of each Secretary of a core Department is amended by changing “Secretary to” to “Secretary of”.
(2)
In any statutory instrument:
(a)
a reference to the Secretary to a Department includes a reference to the Secretary of a Department; and
(b)
a reference to the Secretary to a specified Department includes a reference to the Secretary of the specified Department.

12Parliamentary Departments

(1)
The Parliamentary Departments continue in existence, and the old Act, the Merit Protection Act and other Acts continue to apply in relation to the Parliamentary Departments as if the old Act and the Merit Protection Act had not been repealed.
(2)
In any Act (other than the Privacy Act 1988):
(a)
a replacement reference to an Agency is to be read as including a reference to a Parliamentary Department; and
(b)
a replacement reference to an Agency Head (not including a reference to the Agency Head of a particular Agency) is to be read as including a reference to the Secretary (within the meaning of the old Act) of a Parliamentary Department.
(3)
This section has effect subject to any modifications prescribed by the regulations.
(4)
This section does not, by implication, limit section 14.
(5)
In this section:
replacement reference means a reference that resulted from an amendment made by this Act or by regulations under this Act.

13References in statutory instruments to “officer” etc.

(1) In any statutory instrument (other than the Acts Interpretation Act 1901), unless the contrary intention appears:
(a)
references in general terms to an officer include references to a new Act Secretary or an APS employee; and
(b)
references to an officer of the Commonwealth include references to a new Act Secretary or an APS employee; and
(c)
references to an officer or employee of a particular Department or Statutory Agency include references to an APS employee in that Department or Statutory Agency; and
(d)
references to a person occupying, holding or performing the duties of an office in a particular Department or Statutory Agency include references to an APS employee in that Department or Statutory Agency; and
(e)
references to an employee of a particular Department include references to a locally engaged employee in that Department; and
(f)
references in general terms to an office include references to a position occupied by an APS employee; and
(g)
references to an office in a particular Department or Statutory Agency include references to a position occupied by an APS employee in that Department or Statutory Agency.
(2)
If a reference in a statutory instrument to “the Department” is read as a reference to a particular Department because of subsection 19A(3) of the Acts Interpretation Act 1901, then that reference to “the Department” is a reference to a particular Department for the purposes of this section.

14Regulations

(1)
The Governor‑General may make regulations prescribing matters:
(a)
required or permitted by this Act to be prescribed; or
(b)
necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)
The following subsections do not, by implication, limit subsection (1).
(3)
Regulations may be made:
(a)
in relation to the continuation of the following things under the old Act or the Merit Protection Act, and their effects under the new Act:
(i)
processes relating to appointment, re‑instatement, transfer, promotion, advancement, classification or retirement;
(ii)
inquiries into pre‑commencement misconduct for which a person was charged under the old Act before the commencing time;
(iii)
appeals against disciplinary directions;
(iv)
the performance of functions under Subdivision FA of Division 2 of Part II of the Merit Protection Act;
(v)
the review of decisions under Division 3 of Part II of the Merit Protection Act;
(vi)
the investigation of grievances under Division 4 of Part II of the Merit Protection Act; and
(b)
in relation to the continuation under the new Act of suspensions that were in force under the old Act immediately before the commencing time; and
(c)
in relation to:
(i)
the review of decisions made under the old Act before the commencing time; and
(ii)
the effects, under the new Act, of those reviews; and
(iii)
the powers available to a person or body conducting such a review; and
(d)
providing for the powers available to a person conducting a review referred to in paragraph (c); and
(e)
in relation to arrangements, agreements and other things under Division 9 of Part III of the old Act; and
(f)
for other matters of a transitional or saving nature arising from:
(i)
the repeal of the old Act or the Merit Protection Act; or
(ii)
the transition from the old Act to the new Act;
including such matters arising from the amendments made by a Schedule to this Act or from amendments made by regulations under this section.
(4)
Regulations made under subsection (3):
(a)
may provide for the old Act or the Merit Protection Act to continue in force for the purposes of the regulations, even though those Acts are repealed by this Act; and
(b)
prevail over the old Act, the new Act, the Merit Protection Act and section 13 of this Act, to the extent of any inconsistency.
(5)
The regulations may:
(a)
amend other Acts, by making amendments of a kind that are consequential on the repeal of the old Act and its replacement by the new Act; and
(b)
make provision of a transitional or saving nature in relation to amendments made under paragraph (a).
(6)
For the purposes of the Amendments Incorporation Act 1905, amendments made by regulations under paragraph (5)(a) are to be treated as if they had been made by an Act.
(7)
Regulations made under this section within one year after the commencement of this section may commence on a day earlier than the day on which they are made, but not earlier than the commencement of this section.
(8)
This section does not, by implication, limit any other section of this Act that provides for the making of regulations.