Public Service Amendment Act 1978 (Cth)
An Act to
amend the
BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:
(2) The
(2) The remaining provisions of this Act shall come into operation on a date to be fixed by Proclamation.
“‘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;”.
(a) by omitting sub-sections (1) and (2) and substituting the following sub-sections:
“(1) Notwithstanding anything contained in this Act—
(a) all appointments or promotions of officers of the Department of the Senate shall be made by the Governor-General on the recommendation of the President of the Senate;
(b) all appointments or promotions of officers of the Department of the House of Representatives shall be made by the Governor-General on the recommendation of the Speaker;
(c) all appointments or promotions of officers of the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department shall be made by the Governor-General on the joint recommendation of the President and of the Speaker; and
(d) the President or the Speaker or the President and the Speaker, as the case may be, may from time to time fix the periods of recreation leave which may be granted to officers and employees of the Parliament.
“(2) Subject to this section, unless inconsistent with the context, any action or approval required by this Act or the regulations to be taken or given by the Board may, so far as officers 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 Board, and any action required or authorized by this Act or the regulations to be taken by a Permanent Head or Chief Officer shall or may be taken—
(a) in relation to officers of the Department of the Senate—by the Clerk of the Senate;
(b) in relation to officers of the Department of the House of Representatives—by the Clerk of the House of Representatives;
(c) in relation to officers of the Department of the Parliamentary Library—by the Parliamentary Librarian;
(d) in relation to officers of the Department of the Parliamentary Reporting Staff—by the Principal Parliamentary Reporter; and
(e) in relation to officers of the Joint House Department—by the Secretary to the Joint House Department.”;
(b) by inserting in sub-section (6) “and employees” after “officers”;
(c) by inserting in sub-section (7) “and employees” after “officers” (wherever occurring); and
(d) by omitting sub-section (8) and substituting the following sub-section:
“(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; 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).”.
(a) by omitting sub-sections (1) and (2) and substituting the following sub-sections:
“(1) The Board may, by instrument in writing signed by all, or a majority of, the members of the Board, either generally or as otherwise provided by the instrument, delegate to the Chairman of the Board, to another member of the Board or to an officer or employee any of its powers and functions under this Act or under any other law, whether passed or made before or after the commencement of this sub-section, other than this power of delegation.
“(1a) A power or function so delegated, when exercised or performed by the delegate, shall, for all purposes, be deemed to have been exercised or performed by the Board.
“(2) A delegation of a power or function under this section—
(a) does not prevent the exercise of the power or the performance of the function by the Board;
(b) subject to paragraph (c), continues in force notwithstanding any change in the membership of the Board; and
(c) may be revoked by instrument in writing signed by all, or a majority of, the members for the time being of the Board.
“(2a) Section 34a of the
Acts Interpretation Act 1901 applies in relation to a delegation under this section as if the Board were a person.”; and(b) by adding at the end thereof the following sub-section:
“(4) In this section—
(a) a reference to the Chairman of the Board shall, if another member of the Board is acting as Chairman of the Board, be read as a reference to that member; and
(b) a reference to a member of the Board shall, if a person is acting as the deputy of such a member, be read as including a reference to that person.”.
(2) An instrument of delegation in force under section 16 of the Principal Act immediately before the commencement of this section shall, after the commencement of this section, have effect as if it were an instrument of delegation under section 16 of the Principal Act as amended by sub-section (1).
(2) The amendment effected by sub-section (1) applies to and in relation to any order that the payment be deferred of an increment of salary to which an officer would, but for that order, have been entitled upon the expiration of a period ending on or after the date of commencement of this section, whether or not that order was made on or after that date.
“32. (1)
Where a scale of rates of salary is applicable to an office, or an office
included in a class of offices, the Board may, by instrument in writing
published in the
(a) determine that an officer occupying that office, or an office included in that class of offices, shall, upon compliance with such conditions as are specified in the instrument, be paid salary at such rate in that scale as is specified or referred to in the instrument; and
(b) determine that an officer occupying that office, or an office included in that class of offices, shall not be paid salary at a rate in that scale exceeding such rate as is specified or referred to in the instrument unless he has complied with such conditions as are specified in the instrument.
“(2) A determination under sub-section (1) has effect notwithstanding section 31.”.
(2) An instrument in force under section 32 of the Principal Act immediately before the commencement of this section shall, after the commencement of this section, have effect as if it had been made under section 32 of the Principal Act as amended by sub-section (1).
(a) by omitting from sub-section (1) “Except as otherwise provided by this Act,” and substituting “Subject to sub-section (14) and any other provision of this Act,”;
(b) by omitting sub-section (9) and substituting the following sub-sections:
“(9) The Board shall not—
(a) confirm the appointment of a probationer;
(b) except on the ground that it is not satisfied as to his health, annul the appointment of a probationer; or
(c) direct that a probationer continue on probation,
unless the Board has received—
(d) if he has performed duties as a probationer in a single Department only—a report from the Chief Officer with respect to his service as a probationer; or
(e) in any other case—relevant reports covering the whole of the period of his probationary service.
“(9a) For the purposes of paragraph (9)(e)—
(a) if a probationer performs duties in a Department during a part of the period of his probationary service—a report with respect to the performance of his duties in the Department from a Chief Officer of the Department is a relevant report covering that part of that period;
(b) if a probationer holds a Commonwealth office during a part of the period of his probationary service—a report with respect to the performance of his duties in the office from the Permanent Head of the Department to which he is, by virtue of holding the office, attached for administrative purposes is a relevant report covering that part of that period;
(c) if a probationer is employed by a Commonwealth authority during a part of the period of his probationary service—a report with respect to the performance of his duties for the authority from the authority is a relevant report covering that part of that period; and
(d) if a probationer is engaged in eligible public employment other than eligible Commonwealth employment during a part of the period of his probationary service—a report with respect to the performance of his duties in the employment from such person as the Board considers appropriate is a relevant report covering that part of that period.
“(9b) Where it is not reasonably practicable for the Board to obtain a relevant report covering a part of the period of probationary service of a probationer, the Board may make such inquiries as it considers reasonable and practicable in the circumstances with respect to the performance of his duties during that part of that period and, if it does so, shall then be deemed to have received a relevant report covering that part of that period.
“(9c) In sub-section (9a), ‘Commonwealth authority’, ‘Commonwealth office’, ‘eligible Commonwealth employment’ and ‘eligible public employment’ have the same respective meanings as they have in Part IV.”;
(c) by inserting in sub-section (13) “performing duties in a Department” after “officer”; and
(d) by adding at the end thereof the following sub-sections:
“(14) The Board—
(a) may appoint a person to the Service without probation; or
(b) may, at any time before the expiration of the period of 6 months from the date as from which a person was appointed to the Service (whether the appointment was made before, or is made after, the commencement of this sub-section) determine that this section shall have effect as if the person had been appointed to the Service without probation.
“(15) A reference in this section to the appointment of a person to the Service shall be read as including a reference to the reappointment of a person to the Service under section 47b, 47c, 63f, 63g, 66b, 87m, 87q or 87r.”.
(a) by omitting sub-section (1) and substituting the following sub-sections:
“(1) Subject to this section, the Board may re-appoint to the Service, under this section, a person who has, whether before or after the commencement of this sub-section, ceased to be an officer.
“(1a) The Board shall not re-appoint a person to the Service under this section—
(a) if the person ceased, or last ceased, to be an officer by reason of his having been dismissed from the Service for misconduct; or
(b) if the person has been engaged in eligible public employment, within the meaning of Part IV, after he ceased, or last ceased, to be an officer and was dismissed from that employment for misconduct.
“(1b) Sub-section (1a) does not apply in relation to a person in relation to whom that sub-section would, but for this sub-section, apply if—
(a) his dismissal was by reason of his having been found by a court to have committed a criminal offence within the meaning of Division 6; and
(b) the finding of the court has been nullified within the meaning of section 63f.
“(1c) For the purposes of sub-section (1a)—
(a) a person shall be deemed to have been dismissed from the Service for misconduct—
(i) if he was dismissed from the Service under section 55 or 62 of the
Public Service Act 1922 as in force at any time before the commencement of this sub-section; or(ii) if he was dismissed from the Service after the commencement of this sub-section under Division 6; and
(b) a person shall be deemed to have been dismissed from eligible public employment, within the meaning of Part IV, for misconduct if he was dismissed from that employment on grounds similar to the grounds on which an officer may be dismissed from the Service under Division 6 of this Part.”; and
(b) by omitting sub-sections (3) and (4).
(a) by omitting sub-section (3); and
(b) by inserting in sub-section (5) “of this Act and of any other Act (other than the
Superannuation Act 1976)” after “purposes”.
(a) by omitting sub-sections (1) and (2) and substituting the following sub-sections:
“(1) Where the current period of employment of an officer is continuous with a period during which he was continuously employed, in a full-time capacity, in a qualifying service, or in 2 or more qualifying services in succession, the Board may, at, or at any time after, the commencement of his employment in the Service, determine that the whole or a part of the second-mentioned period is to be reckoned as a period of service in the Service for such purposes as the Board specifies.
“(2) Where an officer to whom this sub-section applies was, during a period (in this sub-section referred to as the ‘relevant period’) that commenced on 16 September 1975, continuously employed, in a full-time capacity, in—
(a) a service referred to in paragraph (4)(a) or (b); or
(b) 2 or more of the services referred to in paragraphs (4)(a), (b) and (c) in succession,
the officer shall, for the purposes of sub-section (1), be deemed to have been continuously employed in a qualifying service during the period, or during each of the periods, during which he was, during the relevant period, employed, in a full-time capacity, in a service referred to in paragraph (4)(a) or (b).”;
(b) by omitting from sub-section (3) “a person who is an officer of the Australian Public Service and” and substituting “an officer who”;
(c) by omitting from sub-section (5) the definitions of “authority of the Commonwealth or of a State or Territory” and “public employer”; and
(d) by adding at the end thereof the following sub-sections:
“(6) For the purposes of this section—
(a) a person shall be deemed to have been employed, in a full-time capacity, in a qualifying service at any time when he was engaged, in a full-time capacity, in—
(i) employment that, under the
Long Service Leave (Commonwealth Employees) Act 1976, is, or is to be taken into account as if it were, employment in Government Service; or(ii) a service referred to in sub-section 11(2) of that Act; and
(b) where a period of employment of an officer, being—
(i) the current period of employment of the officer; or
(ii) a continuous period of employment of the officer, in a full-time capacity, in a qualifying service,
commenced after, but not more than 2 months after, the expiration of a previous continuous period of employment of the officer, in a full-time capacity, in a qualifying service, those periods shall be deemed to be continuous with one another.
“(7) For the purposes of paragraph (6)(b), where a person, having ceased to be employed, in a full-time capacity, in a qualifying service, has undertaken a course of full-time training—
(a) under a scheme established by the Commonwealth for the training of persons who have served in the Defence Force; or
(b) under a scheme that is a prescribed training scheme for the purposes of paragraph 12 (6) (b) of the
Long Service Leave (Commonwealth Employees) Act 1976,before resuming employment, in a full-time capacity, in a qualifying service, the resumption of his employment, in a full-time capacity, in a qualifying service shall be deemed to have occurred not more than 2 months after he ceased to be so employed if the period between his ceasing to be so employed and that resumption, less the period of his course of full-time training under that scheme, does not exceed 2 months.”.
(2) A determination under section 47e of the Principal Act made by the Board before the date of commencement of this section in relation to the employment of a person who is employed as an officer on that date has effect, on and after that date, as if it had been made by the Board under that section as amended by sub-section (1) of this section.
(2) The reference in sub-section 50(7a) of the Principal Act as amended by this Act to an officer who is absent on leave granted under section 71, being leave of a kind declared by the regulations to be leave to which that sub-section applies, shall be deemed to include a reference to an officer who is absent on leave granted, before the commencement of this section, in pursuance of section 72 of the Principal Act or in respect of specified defence service.
(a) by omitting from sub-section (1) “in the place of the first-mentioned officer during the period of the absence or unavailability” and substituting “in the office while the first-mentioned officer is absent or unavailable to perform those functions and duties”;
(b) by omitting from sub-sections (4) and (5) “in the place of another officer” and substituting “in an office”; and
(c) by omitting from sub-section (4) “first-mentioned”.
“
“
“55. (1) In this Division, unless the contrary intention appears—
‘Chief Officer’, in relation to a person who—
(a) has been dismissed from the Service under section 63a or 63d;
(b) is deemed, under section 66a, to have retired from the Service; or
(c) is an unattached officer within the meaning of Subdivision D of this Division,
means the officer who, under the regulations, is to be taken to be the Chief Officer in respect of that person;
‘eligible public employment’ has the same meaning as in Part IV;
‘Minister’, in relation to an officer included in the First Division, means—
(a) in the case of an officer who is the Permanent Head of, or is otherwise performing duties in, a Department—the Minister for the time being administering that Department; and
(b) in any other case—the Prime Minister;
‘misconduct’, in relation to an officer, means a failure of the officer to fulfil his duty as an officer;
‘original office’ means—
(a) in the case of a person who has been dismissed from the Service under section 63a or 63d—
(i) if the person held an office immediately before his dismissal—that office; or
(ii) if the person was an unattached officer performing duty in a Department immediately before his dismissal—an office in that Department the duties of which correspond to the duties he was performing, and the classification of which is the same as the classification applicable to him, immediately before his dismissal;
(b) in the case of a person who has been dismissed from the Service under section 63n or has, while he was a person to whom Division 3 of Part IV applied, been dismissed from eligible public employment—
(i) if, at any time after he last performed duty in the Service, he has, in accordance with section 87g, become the holder of an office in the Service—the last office of which he so became the holder;
(ii) if he is not a person to whom sub-paragraph (i) applies but was the holder of an office when he last performed duty in the Service before his dismissal—that office; or
(iii) if he is not a person to whom sub-paragraph (i) applies but was an unattached officer performing duty in a Department when he last performed duty in the Service before his dismissal—an office in that Department the duties of which correspond to the duties he was performing, and the classification of which is the same as the classification applicable to him, when he last performed duty in the Service before his dismissal;
(c) in the case of a person who is deemed, under section 66a, to have retired from the Service—
(i) if the person held an office immediately before he was deemed so to have retired—that office; or
(ii) if the person was an unattached officer performing duty in a Department immediately before he was deemed so to have retired—an office in that Department the duties of which correspond to the duties he was performing, and the classification of which is the same as the classification applicable to him, immediately before he was deemed to have retired; and
(d) in the case of an officer who has been transferred to another office under section 62, 63, 63a or 63d—the office held by the officer immediately before his transfer;
‘salary’ includes such allowances as are prescribed.
“(2) A power conferred by a provision of this Division to re-appoint a person to an office includes a power to re-appoint the person to the Service as an unattached officer to whom there is applicable a salary, or range of salary, equivalent to the salary or range of salary applicable to that office.
“(3) Where the services of an officer have been made available, in accordance with the provisions of an Act, to a body established by or under an Act or Ordinance of a Territory and the officer performs his services for that body by performing the duties of an office in a Department, the officer shall be deemed, for the purposes of this Division, to be performing duty in that Department.
“(4) A reference in this Subdivision or Subdivision B, C or E to an officer shall be read as not including a reference to a person who is an unattached officer for the purposes of Subdivision D.
“56. For the purposes of this Subdivision and Subdivisions B, C and E, an officer shall be taken to have failed to fulfil his duty as an officer if and only if—
(a) he wilfully disobeys, or wilfully disregards, a direction given by a person having authority to give the direction, being a direction with which it is his duty as an officer to comply;
(b) he is inefficient or incompetent for reasons or causes within his own control;
(c) he is negligent or careless in the discharge of his duties; (d) he engages in improper conduct as an officer;
(e) he engages in improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties or brings the Service into disrepute;
(f) he contravenes or fails to comply with—
(i) a provision of this Act or of the regulations, being a provision that is applicable to him; or
(ii) the terms and conditions upon which he is employed; or
(g) he has, whether before or after becoming an officer, wilfully supplied to an officer or another person acting on behalf of the Commonwealth incorrect or misleading information in connexion with his appointment to the Service.
“
“57. (1) Where the Minister has at any time, whether by reason of an allegation made to him or otherwise, reason to believe that an officer of the First Division may have failed to fulfil his duty as an officer, he may, by notice in writing delivered to the officer, suspend the officer from duty and charge him with the failure.
“(2) Where the Minister suspends an officer from duty under sub-section (1) and charges him with having failed to fulfil his duty as an officer, the Minister—
(a) shall specify in the notice delivered to the officer under that sub-section particulars of the matters alleged to constitute the failure; and
(b) shall forthwith report the suspension and charge to the Board.
“(3) Where an officer has been charged with misconduct under sub-section (1), the officer may, within 7 days, or such longer period as the Board allows, after delivery to him of the notice charging him with the misconduct—
(a) submit to the Board, in writing, that the charge should be dismissed on either or both of the following grounds, that is to say—
(i) that some or all of the matters alleged to constitute the misconduct are untrue; or
(ii) that the matters alleged to constitute the misconduct are, even if true, incapable in law of constituting the misconduct for the purposes of this Act; or
(b) furnish to the Board a notification in writing admitting the truth of the matters alleged to constitute the misconduct and containing particulars of any matters which the officer wishes the Board to consider under sub-section (7).
“(4) An officer who has been charged with misconduct under sub-section (1) shall not, by reason only of having failed to deny the truth of a matter included among matters alleged to constitute the misconduct, be taken to have admitted the truth of that matter.
“(5) Where an officer does not furnish a notification referred to in paragraph (3) (b) in relation to the misconduct with which he has been charged, a Board of Inquiry shall inquire into the charge and report to the Board whether it finds the charge to be proved and its reasons for its finding.
“(6) For the purposes of sub-section (5), a Board of Inquiry shall consist of a Chairman and 2 other members, all of whom shall be appointed by the Governor-General.
“(7) Where an officer furnishes to the Board a notification of the kind referred to in paragraph (3) (b) or a Board of Inquiry finds a charge of misconduct in respect of the officer to be proved, the Public Service Board shall, after consideration of the notification made by the officer or of the report of the Board of Inquiry, as the case may be, recommend to the Governor-General—
(a) that he take, in respect of the misconduct of the officer, action by way of—
(i) admonishing the officer;
(ii) transferring the officer to a specified office in the same or a lower Division (whether at the same or a different locality), being an office for which he is qualified and, if there is a salary range applicable to the office so specified, determining that he be paid a specified salary within that range; or
(iii) dismissing the officer from the Service; or
(b) that he take no action in respect of the misconduct of the officer.
“(8) The Board shall furnish to the Governor-General with a recommendation under sub-section (7) in relation to a charge—
(a) particulars of its reasons for making the recommendation;
(b) a copy of any notification furnished to the Board in pursuance of paragraph (3) (b), or of any report furnished to the Board in pursuance of sub-section (5), in relation to the charge; and
(c) any submission that is furnished to the Board in pursuance of sub-section (9) in relation to the recommendation.
“(9) Before furnishing a recommendation to the Governor-General under sub-section (7) with respect to an officer, the Board shall inform the officer of the recommendation it proposes to furnish and afford the officer an opportunity to furnish to it any submission that the officer wishes the Governor-General to consider in relation to the recommendation.
“(10) Where a recommendation under sub-section (7) has been furnished to the Governor-General, the Governor-General may, after consideration of the recommendation and of any documents furnished with it in pursuance of sub-section (8)—
(a) take, in respect of the misconduct of the officer, action of a kind specified in paragraph (7) (a), whether or not the Board recommended that he take action of that kind; or
(b) decide not to take any action in respect of the misconduct of the officer, whether or not the Public Service Board so recommended.
“(11) Where the Governor-General decides not to give effect to a recommendation furnished to him under sub-section (7) in relation to the misconduct of an officer, a copy of a statement setting out his reasons for not giving effect to the recommendation shall be laid before each House of the Parliament within 14 sitting days of that House after he so decides.
“58. (1) Where—
(a) a court has, within the period of 6 months immediately preceding, or succeeding, the commencement of this section, convicted an officer included in the First Division of a criminal offence or found, without recording a conviction, that such an officer has committed such an offence; and
(b) the Board, after giving the officer an opportunity to furnish to it, in writing, any statement that he desires to furnish in relation to the offence, is of the opinion that, having regard to the nature and seriousness of the offence, the circumstances in which it was committed and the nature of the duties of the officer, it is justified in doing so in the interests of the Service,
the Board may recommend to the Governor-General that he take, in respect of the officer, action by way of—
(c) transferring the officer to a specified office in the same or a lower Division (whether at the same or a different locality), being an office for which the officer is qualified, and, if there is a salary range applicable to the office so specified, determining that he be paid a specified salary within that range; or
(d) dismissing the officer from the Service.
“(2) The Board shall furnish to the Governor-General with a recommendation under sub-section (1) in relation to a criminal offence—
(a) particulars of its reasons for making the recommendation;
(b) a copy of any statement furnished to the Board in pursuance of paragraph (1)(b) in relation to the offence; and
(c) any submission furnished to the Board in pursuance of sub-section (3) in relation to the recommendation.
“(3) Before furnishing a recommendation to the Governor-General under sub-section (1) with respect to an officer, the Board shall inform the officer of the recommendation it proposes to furnish and afford the officer an opportunity to furnish to it any submission that the officer wishes the Governor-General to consider in relation to the recommendation.
“(4) Where a recommendation has been furnished to the Governor-General under sub-section (1), the Governor-General may, after consideration of the recommendation and of any documents furnished with it in pursuance of sub-section (2)—
(a) take action of a kind specified in paragraph (1)(c) or (d) in respect of the officer, whether or not the Board recommended that he take action of that kind; or
(b) decide not to take any action in respect of the officer.
“(5) Where the Governor-General does not give effect to a recommendation furnished to him under sub-section (1), a copy of a statement setting out his reasons for not giving effect to the recommendation shall be laid before each House of the Parliament within 14 sitting days of that House after he so decides.
“(6) The fact that action is, or is not, taken against an officer under this section in respect of a criminal offence shall not be taken to preclude the Board or another body, or a Permanent Head or another person, from having regard to the conviction or finding, to the nature and seriousness of the offence and to the circumstances in which the offence was committed in the course of exercising a power or performing a function conferred on it or him by this Act or by the regulations if those matters are relevant to the manner in which the power should be exercised or the function should be performed.
“(7) Nothing in sub-section (6) shall be taken to authorize the charging of an officer under section 57, and the taking of action in respect of the officer under this section, in relation to the same matter.
“59. (1) Where an officer included in the First Division has been charged with having committed a criminal offence and the Minister is of the opinion that it would be prejudicial to the effective operation of the Service, to the interests of the public or to the interests of the officer or his fellow officers if the officer were to continue to perform the duties of his existing office pending the hearing and determination of the charge, the Minister may, by notice in writing delivered to the officer—
(a) direct the officer to perform temporarily other duties that he is qualified to perform (whether at the same or at a different locality); or
(b) suspend the officer from duty.
“(2) Except as provided by sub-section (3), an officer who has been suspended from duty under section 57 or under this section is not entitled to be paid salary in respect of the period during which he is so suspended.
“(3) Where an officer is suspended from duty under section 57 or under this section—
(a) the Board may, at any time, whether upon application by the officer or otherwise, if it is satisfied that the officer is suffering or has suffered hardship, direct that the officer be paid salary during the whole, or a specified part, of the period of the officer’s suspension; and
(b) the Board shall, if the suspension continues for more than 30 days, forthwith after the suspension has continued for more than 30 days, consider whether a direction should be given under paragraph (a).
“60. (1) Where an officer has been suspended from duty under section 57 or 59, the suspension may be removed in accordance with this section, but, subject to paragraph 63r (1) (e), shall not otherwise be removed, revoked or rescinded.
“(2) Where an officer is suspended from duty under section 59—
(a) the Minister may, at any time, whether upon application by the officer or otherwise, remove the suspension; and
(b) the Minister shall, if the suspension continues for more than 30 days, forthwith after the suspension has continued for more than 30 days, consider whether the suspension should be removed.
“(3) Where—
(a) an officer has been suspended under section 57; and
(b) the charge, or each charge, in connexion with which he has been so suspended—
(i) is found by the Board of Inquiry established to inquire into it not to have been proved; or
(ii) is withdrawn,
the Minister shall remove the suspension.
“(4) Where—
(a) an officer has, by reason of his having been charged with a criminal offence, or with 2 or more criminal offences, been directed to perform temporarily other duties, or has been suspended from duty, under section 59; and
(b) a condition specified in sub-section (5) is fulfilled in respect of the charge, or of each of the charges, as the case may be,
the Minister shall, if the direction has not previously been revoked or the suspension has not previously been removed, revoke the direction or remove the suspension, as the case requires.
“(5) For the purposes of paragraph (4)(b), the conditions are—
(a) the condition that, upon the hearing of the charge, the officer neither pleads guilty to the charge nor is found guilty of the criminal offence with which he is charged or of any other criminal offence established by the evidence given upon the hearing of the charge; and
(b) the condition that the charge is not proceeded with.
“(6) Where the suspension of an officer who had, after having been suspended under section 59, sought and been granted leave of absence for a part of the period of suspension, is required to be removed under sub-section (4) or would have been required to be so removed if it had not previously been removed, the officer is entitled to a credit of a period of leave of absence equal to that part of the period of suspension.
“(7) Where an officer who has been suspended from duty under section 57 or 59 is dismissed from the Service, the period during which the officer is suspended from duty does not count as service for any purposes.
“(8) Where an officer retires from the Service or dies while he is suspended from duty under section 57 or 59, the Board shall determine whether the whole, or any part, of the officer’s period of suspension is to form part of the officer’s period of service for any purpose under this Act or any other Act, and, if so, the purposes for which it is to form part of his period of service.
“(9) Where an officer is under suspension from duty in respect of misconduct or a criminal offence immediately before the Governor-General takes action, or decides not to take action, with respect to the misconduct or offence, the suspension ceases upon the Governor-General taking that action or deciding not to take any action.
“(10) The revocation of a direction under sub-section 59 (1) that an officer perform other duties, or the removal of the suspension under that sub-section of an officer from duty, in circumstances (other than circumstances where the direction is required to be revoked or the suspension is required to be removed) does not prevent the officer from being directed to perform other duties, or being suspended from duty, in accordance with that sub-section, as if the previous direction or suspension had not taken place.
“
“61. (1) If a supervisor of an officer included in the Second, Third or Fourth Division has reason to believe that the officer may, at any time, have failed to fulfil his duty as an officer, the supervisor may require the officer to furnish to the supervisor, in writing, an explanation of the matters alleged to constitute the failure and may, after consideration of any explanation furnished by the officer, if he is of the opinion that the officer has failed to fulfil his duty as an officer—
(a) counsel the officer; or
(b) furnish a report concerning those matters, together with any explanation furnished to him, to an officer authorized for the purposes of sub-section (2).
“(2) Where an officer authorized by the Chief Officer for the purposes of this sub-section is of the opinion, whether by reason of his consideration of a report furnished under sub-section (1) or otherwise, that an officer included in the Second, Third or Fourth Division may have failed to fulfil his duty as an officer, the authorized officer shall, as soon as practicable, decide whether he should be charged and—
(a) if he decides that the officer should not be charged—may counsel the officer or cause a supervisor of the officer to counsel the officer; or
(b) if he decides that the officer should be charged—shall, by writing under his hand delivered to the officer, charge the officer with the failure.
“(3) An officer charged under sub-section (2) may request the Chief Officer to furnish copies of the charge to either or both of the following, that is to say—
(a) to an organization specified by the officer, being an organization within the meaning of the
Conciliation and Arbitration Act 1904; or(b) to a person specified by the officer, being a person whom the officer wishes to assist him in relation to the charge,
and, if the officer makes such a request, the Chief Officer shall comply with the request.
“62. (1) Where an officer is charged with misconduct under section 61, an inquiry shall, without undue delay, be held into the charge—
(a) subject to paragraph (b), by the Chief Officer; or
(b) if the Chief Officer is, under sub-section (2), ineligible to hold an inquiry into the charge—by another officer eligible to hold the inquiry who is authorized for the purpose by the Permanent Head.
“(2) An inquiry into a charge shall not be held—
(a) by an officer who has furnished a report in respect of any of the matters alleged to constitute the misconduct to which the charge relates; or
(b) by the officer who laid the charge.
“(3) In an inquiry for the purposes of sub-section (1), a formal hearing is not required, but the officer shall be notified that an inquiry is to be held into the alleged misconduct and given an opportunity to state, in writing, within 7 days or such longer period as the officer holding the inquiry may allow after the notice is furnished to him, whether he admits or denies the truth of the matters alleged to constitute the misconduct and to furnish a statement in relation to those matters, including a statement submitting that the matters alleged to constitute the misconduct are, even if true, incapable in law of constituting the misconduct for the purposes of this Act.
“(4) Where an officer has furnished a statement in relation to the matters alleged to constitute misconduct, the officer shall, if he so requests, be given the opportunity of making a further oral statement to the officer holding the inquiry and, if he does so, a written record of his further statement shall be made by that officer.
“(5) An officer who has been charged with misconduct under section 61 shall not, by reason only of having failed to deny the truth of a matter included among matters alleged to constitute the misconduct, be taken to have admitted the truth of that matter.
“(6) Where the officer holding an inquiry into a charge is satisfied that the officer charged has failed to fulfil his duty as an officer, he may counsel the officer, or cause the officer to be counselled by another officer, or, if he is of the opinion that other action is necessary—
(a) may direct that there be taken, in respect of the officer, action by way of—
(i) admonishing the officer;
(ii) causing a sum not exceeding $40 to be deducted from the salary of the officer;
(iii) if the officer occupies an office to which a range of salary is applicable and the salary payable to him is not the minimum salary in that range—reducing the salary of the officer to a specified salary and then, upon the expiration of a specified period, being a period of 12 months or less, increasing the salary of the officer to the salary that would have been payable to him if his salary had not been so reduced, or to a lesser salary specified in the direction;
(iv) transferring the officer to a specified office in the same Division (whether at the same or a different locality), being an office for which he is qualified and which has the same classification as the classification of the office held by him;
(v) transferring the officer to a specified office in the same Division (whether at the same or a different locality), being an office for which he is qualified and which has the same classification as the classification held by him and causing a sum, not exceeding $40, to be deducted from his salary;
(vi) if the officer occupies an office to which a range of salary is applicable and the salary payable to him is not the minimum salary of that range—transferring the officer to a specified office in the same Division (whether at the same or a different locality), being an office for which he is qualified and which has the same classification as the classification of the office held by him, reducing the salary of the officer to a specified salary and then, upon the expiration of a specified period, being a period of 12 months or less, increasing the salary of the officer to the salary that would have been payable to him if his salary had not been so reduced, or to a lesser salary specified in the direction; and
(vii) transferring the officer to a specified office in the same or a lower Division (whether at the same or a different locality), being an office for which he is qualified and which has a lower classification than the classification of the office held by him, and, if there is a salary range applicable to the officer so specified, determining that he be paid a specified salary within that range; or
(b) may recommend to the Board, in writing, that action be taken to dismiss the officer from the Service.
“(7) The officer holding the inquiry into a charge shall not direct that there be taken action of a kind specified in sub-paragraph (6)(a)(vii), being action by way of transferring an officer included in the Third Division to an office in the Fourth Division if the office in the Fourth Division has the same designation and classification as the designation and classification of an office in the Third Division.
“(8) Where the officer holding the inquiry into a charge makes the recommendation referred to in paragraph (6)(b) in respect of the officer charged, he shall furnish to the Board, with his recommendation, a copy of any statement furnished to him in pursuance of sub-section (3).
“(9) Where the officer holding an inquiry into a charge gives a direction of a kind referred to in paragraph (6)(a), or makes a recommendation to the Board of the kind referred to in paragraph (6)(b), in respect of the officer charged, he shall—
(a) in a case where he gives such a direction—furnish to the officer particulars of his reasons for giving that direction; and
(b) in a case where he makes such a recommendation—furnish to the officer and to the Board particulars of his reasons for making that recommendation.
“(10) A direction under this section in respect of an officer takes effect—
(a) if the officer appeals against the direction—upon the lapsing or withdrawal of the appeal or upon a Disciplinary Appeal Board confirming the direction; or
(b) in any other case—upon the expiration of the period within which the officer may appeal to a Disciplinary Appeal Board against the direction,
but not otherwise.
“63. (1) Where—
(a) a court has, within the period of 6 months immediately preceding, or succeeding, the commencement of this section, convicted an officer included in the Second, Third or Fourth Division of a criminal offence or found, without recording a conviction, that such an officer has committed such an offence; and
(b) the Chief Officer, after giving the officer an opportunity to furnish to him, in writing, any statement that he desires to furnish in relation to the offence, is of the opinion that, having regard to the nature and seriousness of the offence, the circumstances in which it was committed and the nature of the duties of the officer, he is justified in so doing in the interests of the Service,
the Chief Officer may counsel the officer or may—
(c) direct that there be taken, in respect of the officer, action by way of—
(i) transferring the officer to a specified office in the same Division (whether or not at the same or a different locality), being an office for which he is qualified and which has the same classification as the classification of the office held by him; or
(ii) transferring the officer to a specified office in the same or a lower Division (whether or not at the same or a different locality), being an office for which he is qualified and which has a lower classification than the classification of the office held by him and, if there is a salary range applicable to the office so specified, determining that he be paid a specified salary within that range; or
(d) recommend to the Board, in writing, that action be taken to dismiss the officer from the Service.
“(2) The Chief Officer shall not direct that there shall be taken action of a kind specified in sub-paragraph (1)(c)(ii), being action by way of transferring an officer included in the Third Division to an office in the Fourth Division, if the office in the Fourth Division has the same designation and classification as the designation and classification of an office in the Third Division.
“(3) Where a Chief Officer makes the recommendation referred to in paragraph (1)(d) in respect of an officer, he shall furnish to the Board, with his recommendation, a copy of any statement furnished to him by the officer in pursuance of paragraph (1)(b).
“(4) Where the Chief Officer gives a direction of a kind referred to in paragraph (1)(c), or makes a recommendation to the Board of the kind referred to in paragraph (1)(d), in respect of an officer, he shall—
(a) in a case where he gives such a direction—furnish to the officer particulars of his reasons for giving that direction; and
(b) in a case where he makes such a recommendation—furnish to the officer and to the Board particulars of his reasons for making that recommendation.
“(5) A direction under this section in respect of an officer takes effect—
(a) if the officer appeals against the direction—upon the lapsing or withdrawal of the appeal or upon a Disciplinary Appeal Board confirming the direction; or
(b) in any other case—upon the expiration of the period within which the officer may appeal to a Disciplinary Appeal Board against the direction,
but not otherwise.
“(6) The fact that an officer is, or is not, counselled, or that other action is, or is not, taken against an officer, under this section, in respect of a criminal offence shall not be taken to preclude the Board or another body, or a Permanent Head or another person, from having regard to the conviction or finding, to the nature and seriousness of the offence and to the circumstances in which the offence was committed in the course of exercising a power or performing a function conferred on it or him by this Act or by the regulations if those matters are relevant to the manner in which the power should be exercised or function should be performed.
“(7) Nothing in sub-section (6) shall be taken to authorize the charging of an officer under section 61, and the taking of action in respect of the officer under this section, in relation to the same matter.
“63a. Where a recommendation that an officer be dismissed from the Service has been made to the Board under paragraph 62(6)(b) or 63(1)(d) and—
(a) if the officer has appealed against the recommendation—the appeal has lapsed or been withdrawn or a Disciplinary Appeal Board has confirmed the recommendation; or
(b) in any other case—the period within which the officer may appeal to a Disciplinary Appeal Board against the recommendation has expired,
the Board, after consideration of the reasons for making the recommendation, and of any statement of the officer furnished to it under sub-section 62(8) or 63(3), as the case requires, and, if the recommendation has been confirmed by a Disciplinary Appeal Board, of the reasons given by the Disciplinary Appeal Board for its decision, may cause the officer to be counselled or, if it considers that other action is necessary, may—
(c) in a case where the recommendation was made under paragraph 62(6)(b)—
(i) take action in respect of the officer of a kind specified in paragraph 62(6)(a); or
(ii) dismiss the officer from the Service; or
(d) in a case where the recommendation was made under paragraph 63(1)(d)—
(i) take action of a kind specified in paragraph 63(1)(c); or
(ii) dismiss the officer from the Service.
“63b. (1) Where—
(a) an officer included in the Second, Third or Fourth Division has been charged with having committed a criminal offence; or
(b) an officer authorized for the purposes of sub-section 61 (2) has informed the Chief Officer that he is of the opinion that an officer included in the Second, Third or Fourth Division may have failed to fulfil his duty as an officer,
and the Chief Officer is of the opinion that it would be prejudicial to the effective operation of the Service, to the interests of the public or to the interests of the officer or his fellow officers if the officer were to continue to perform the duties of his existing office pending the hearing and determination of the criminal charge, the taking of a decision not to charge the officer with misconduct or the hearing and determination of any charge of misconduct laid against the officer, as the case may be, the Chief Officer may, by notice in writing delivered to the officer—
(c) direct the officer to perform temporarily other duties that he is qualified to perform (whether at the same or a different locality); or
(d) suspend the officer from duty.
“(2) Except as provided by sub-section (3), (4) or (5) or by section 63c, an officer who is suspended from duty under this section is not entitled to be paid salary in respect of the period during which he is so suspended.
“(3) Where an officer is, by reason of circumstances referred to in paragraph (1)(b), suspended from duty under this section before a decision is made whether or not he is to be charged with misconduct, he shall be suspended with salary—
(a) in a case where an officer authorized for the purpose of sub-section 62(2) decides that he should not be so charged—until that decision is made; or
(b) in any other case—until he is charged.
“(4) Where an officer is suspended from duty under this section at a time when he is absent on leave of absence, the suspension does not prevent his receiving any salary to which he is entitled in respect of that period of leave of absence.
“(5) The suspension of an officer from duty under this section does not prevent the granting to the officer of leave of absence with salary.
“(6) An officer who is suspended from duty under this section is entitled to engage in employment outside the Service during any period of suspension from duty other than a period during which the officer is receiving salary.
“63c. (1) Where an officer has been suspended from duty under section 63b, the suspension may be removed in accordance with this section, but, subject to paragraph 63r(1)(e), shall not otherwise be removed, revoked or rescinded.
“(2) Where an officer is suspended from duty under section 63b—
(a) the Chief Officer may, at any time, whether upon application by the officer or otherwise, remove the suspension or, if he is satisfied that the officer is suffering, or has suffered, hardship, direct that the officer be paid salary during the whole, or a specified part, of the period of the officer’s suspension; and
(b) the Chief Officer shall, if the suspension continues for more than 30 days, forthwith after the suspension has continued for more than 30 days, consider whether the suspension should be removed, or a direction should be given, under paragraph (a).
“(3) Where, after an officer has been directed to perform temporarily other duties, or has been suspended from duty, in circumstances referred to in paragraph 63b(1)(b)—
(a) the officer is charged with a failure, or with 2 or more failures, to fulfil his duties as an officer and the charge or each charge is found not to have been proved by the officer holding the inquiry or by a Disciplinary Appeal Board or is withdrawn; or
(b) an officer authorized for the purposes of sub-section 61 (2) decides that the officer should not be charged with any such failure,
the Chief Officer shall, if the direction has not previously been revoked or the suspension has not previously been removed, revoke the direction or remove the suspension, as the case requires.
“(4) Where—
(a) an officer has, by reason of his having been charged with a criminal offence or with 2 or more criminal offences, been directed to perform temporarily other duties, or been suspended from duty, under section 63b; and
(b) a condition specified in sub-section (5) is fulfilled in respect of the charge, or of each of the charges, as the case may be,
the Chief Officer shall, if the direction has not previously been revoked or the suspension has not previously been removed, revoke the direction or remove the suspension, as the case requires.
“(5) For the purposes of paragraph (4)(b), the conditions in respect of a charge are—
(a) the condition that, upon the hearing of the charge, the officer neither pleads guilty to the charge nor is found guilty of the criminal offence with which he is charged or of any other criminal offence established by the evidence given upon the hearing of the charge; and
(b) the condition that the charge is not proceeded with.
“(6) Where—
(a) an officer has been suspended from duty under section 63b;
(b) the amount of salary that would otherwise have been paid to the officer in respect of the whole, or a part, of the period of the suspension was not payable to him; and
(c) the suspension is required to be removed under sub-section (3) or (4) or would have been required to be so removed had it not previously been removed,
the Chief Officer shall, subject to sub-section (7), authorize payment to him of an amount equal to the amount of salary referred to in paragraph (b).
“(7) Where the Chief Officer is satisfied that an officer to whom sub-section (6) applies has engaged in employment outside the Service during the whole, or a part, of the period of his suspension, the amount payable to him under that sub-section shall be reduced by an amount equal to the total of the amounts of the earnings that the Chief Officer is satisfied were received or are receivable by him in respect of that employment or work.
“(8) A Chief Officer may request an officer to whom sub-section (6) applies to furnish to him, in writing—
(a) particulars of any employment outside the Service in which the officer has engaged during the whole, or a part, of the period of his suspension; and
(b) particulars of the total amounts of the earnings that were received or are receivable by the officer in respect of that employment,
and may defer authorizing payment to the officer under sub-section (6) until these particulars have been furnished to him.
“(9) Where the suspension of an officer who had, after being suspended under section 63b, sought, and been granted, leave of absence for a part of the period of suspension, is required to be removed under sub-section (3) or (4) or would have been required to be so removed had it not previously been removed, the officer is entitled to a credit of a period of leave of absence equal to that part of the period of suspension.
“(10) Where an officer who has been suspended from duty under section 63b is dismissed from the Service, the period during which the officer is suspended from duty does not count as service for any purpose.
“(11) Where an officer retires from the Service or dies while he is, under section 63b, suspended from duty, the Board shall determine whether the whole, or any part, of the officer’s period of suspension is to form part of the officer’s period of service for any purpose under this Act or any other Act, and, if so, the purposes for which it is to form part of his period of service.
six months | 6 months | |
Section 97(2)........................ | fifteen sitting days | 15 sitting days |
NOTES—continued
No. 31, 1951; No. 58, 1952; No. 69, 1953; No. 31, 1954; No. 39, 1955; Nos. 68 and 97, 1956; No. 44, 1957; No. 47, 1958; No. 58, 1959; No. 44, 1960; No. 46, 1961; Nos. 75 and 91, 1962; No. 47, 1963; Nos. 62 and 105, 1964; No. 64, 1965; No. 42, 1966; No. 64, 1967; No. 66 and 120, 1968; No. 95, 1969; Nos. 4 and 60, 1970; Nos. 17 and 68, 1971; Nos. 15, 82 and 139, 1972; Nos. 2, 27, 104 and 216, 1973; Nos. 3, 24 and 90, 1974; Nos. 35, 56 and 111, 1975; Nos. 27, 91 and 112, 1976; and No. 56, 1977.
7. No. 31, 1976, as amended. For previous amendments
see Act No. 51, 1976; and No. 80, 1977.8. Act No. 74, 1933, as amended. For previous amendments
see Act No. 64, 1936; and No. 216, 1973.
9. Act No. 80, 1977.
0
0
0