Prime Minister's Public Service Amendment Directions 2005 (No. 1)

Legislation au F2005L03093 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Public Service Act 1999

Prime Minister’s Public Service Amendment Directions 2005 (No. 1)

Background

The Public Service Act 1999 (the Act) commenced on 5 December 1999.

Section 21 of the Act provides that the Prime Minister may issue general directions in writing to Agency Heads relating to the management and leadership of Australian Public Service (APS) employees.

Subsections 22(1) and (2) of the Act provide that an Agency Head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the Agency and that the engagement must be as an ongoing APS employee; or for a specified term or for the duration of a specified task; or for duties that are irregular or intermittent.

The Prime Minister made the Prime Minister’s Public Service Directions 1999 (the Directions) on 3 December 1999. The Directions came into effect on 5 December 1999. They have not been amended previously.

The Directions are a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA), but are not subject to the disallowance or sunsetting provisions of that Act (as provided by section 44 LIA, item 32 and section 54 LIA, item 37 respectively). In accordance with subsection 56(1) of the LIA, the Prime Minister’s Public Service Amendment Directions 2005 (No. 1) are not required to be published in the Gazette, notwithstanding subsection 21(2) of the Act.

Purpose of these amendments

The purpose of the Prime Minister’s Public Service Amendment Directions 2005 (No. 1) is to:

remove the requirement for an APS Agency Head to grant leave without pay to an APS employee who applies for such leave to take up a full-time statutory appointment. (Leave without pay will continue to be mandatory for APS employees taking up employment under certain provisions of the Members of Parliament (Staff) Act 1984 (MoPS Act) and the Governor-General Act 1974 (G-G Act)). As with leave without pay for a range of other purposes, a decision on whether to grant leave without pay to take up a full time statutory appointment is now at the discretion of an employee’s Agency Head. However, Agency Heads will be encouraged to ensure in making their decision that the removal of the automatic leave without pay provision does not diminish the attractiveness of statutory appointments, particularly at the more junior level;
clarify that the provisions which require an Agency Head to grant leave without pay to an APS employee who applies for such leave to undertake employment for the purposes of sections 13 or 20 of the MoPS Act or section 13 of the G-G Act only apply to ongoing APS employees; and
provide transitional provisions to preserve existing periods of leave without pay that have already been granted to APS employees to take up a full time statutory appointment, and which allow those employees to exercise their right of return to the APS as set out in clause 2.2 of the Directions at any time during, or at the expiration of, the period of approved leave.

Notes on clauses

Clause 1 sets out the name of the amendment.

Clause 2 provides for the amendment to take effect the day after they are registered on the Federal Register of Legislative Instruments.

Clause 3 provides that the amendments to the Prime Minister’s Public Service Directions 1999 are set out in Schedule 1.

Schedule 1

Item 1

Clause 1.3 previously included a definition of ‘statutory appointment’. Item 1 omits this definition as it is no longer necessarya grant of leave without pay to take up a full time statutory appointment is no longer mandatory under the Directions.

Item 2

Item 2 substitutes a new paragraph 2.1(c) in place of former paragraphs 2.1(c) and (d). Former paragraph (c) is no longer necessary as it referred to a full-time statutory appointment. Existing paragraph (d) has been renumbered as paragraph (c) and amended to remove references to former paragraph (c).

Item 3

Item 3 amends clause 2.1 by substituting the words ‘an ongoing APS employee’ for ‘an APS employee’. The effect of this amendment is to clarify that the mandatory leave without pay provisions set out in clause 2.1 only apply to ongoing APS employees and not to APS employees engaged for a specified term, or for the duration of a specified task, or for duties that are irregular or intermittent.

Item 4

Item 4 inserts a note after clause 2.1 which explains that nothing in these Directions prevents an Agency Head from granting leave without pay for a range of other purposes that are not set out in clause 2.1, including to enable an APS employee to take up a statutory appointment.

Item 5

Item 5 excludes the boxed text which was previously located after clause 2.2. This explanatory information, which dealt with access to leave credits for persons taking up employment outside the APS, is now out of date and, in some cases, irrelevant given the changes to the Directions.

Item 6

Item 6 inserts clause 2.3 in the Directions which sets out the arrangements that will apply in the case of persons who are on approved periods of leave without pay to take up a statutory appointment that were granted prior to the commencement of these amendments to the Directions, where the period of leave has not expired.

These transitional provisions provide that the grant of leave without pay is not affected by the amendments to the Directions. In addition, where such a person notifies their Agency Head of their wish to return to the Agency to undertake duties, the Agency Head must comply with the provisions of subclauses 2.2(2) to (4) of the Directions which set out the rights of return to the APS of persons on leave without pay approved in accordance with subclause 2.1.

The transitional provisions also make it clear that any further grant of leave without pay in order to continue employment in a full time statutory appointment after the commencement of these amendments is at the discretion of the employee’s Agency Head.

Overview

The Public Service Act 1999, enacted by the Parliament of Australia, was designed to establish the framework for the management and administration of the Australian Public Service (APS). This legislation aims to ensure that the public service operates efficiently and effectively, providing a stable and professional workforce to support the government in delivering services to the Australian public. The Act provides the legal foundation for the employment, management, and leadership of APS employees, and includes provisions for the issuance of directions by the Prime Minister to Agency Heads regarding the management and leadership of these employees. The Prime Minister's Public Service Amendment Directions 2005 (No. 1) were introduced to amend the original Prime Minister’s Public Service Directions 1999, with the policy objective of modifying the requirements for granting leave without pay to APS employees who apply to take up full-time statutory appointments. Specifically, these amendments aimed to remove the mandatory requirement for Agency Heads to grant leave without pay for such appointments, clarify the scope of the leave without pay provisions, and provide transitional arrangements for employees who had already been granted leave without pay before the amendments took effect.

Scope and Application

The Public Service Act 1999, along with the Prime Minister’s Public Service Amendment Directions 2005 (No. 1), applies to the management and leadership of Australian Public Service (APS) employees, specifically governing how Agency Heads engage and manage these employees. The Act and its associated directions pertain to the Commonwealth and cover the full range of APS employees, whether they are engaged on an ongoing basis, for a specified term, for the duration of a specified task, or for irregular or intermittent duties. The legislation does not apply to private sector employees or to employees of state or territory governments, except as may be required under specific federal provisions. Notably, the Directions clarify that the mandatory leave without pay provisions only apply to ongoing APS employees and not to those engaged for a specified term, duration of a specified task, or irregular or intermittent duties. The amendments also provide for transitional arrangements to maintain the rights of those who have already been granted leave without pay prior to the amendments. Although the Directions themselves are not subject to disallowance or sunsetting provisions, they can be further refined or extended through subordinate instruments as necessary to adapt to changing public service needs.

Key Provisions

The main operative sections of the Prime Minister’s Public Service Amendment Directions 2005 (No. 1) pertain to the management of leave without pay for Australian Public Service (APS) employees who wish to take up full-time statutory appointments. Section 2.1 of the Directions has been amended to clarify that the mandatory leave without pay provisions now only apply to ongoing APS employees, as opposed to all APS employees. This means that Agency Heads now have the discretion to decide whether to grant leave without pay to APS employees for such appointments, provided that they take into account the potential impact on the attractiveness of statutory appointments, particularly at the junior level. Furthermore, the Directions include transitional provisions to ensure that existing periods of leave without pay are not affected by these amendments, and that employees who have already been granted leave without pay can exercise their right to return to the APS as outlined in clause 2.2 of the Directions. The Prime Minister’s Public Service Amendment Directions 2005 (No. 1) impose certain obligations on Agency Heads in relation to leave without pay for APS employees taking up full-time statutory appointments. Agency Heads must consider the impact of removing the automatic leave without pay provision on the attractiveness of statutory appointments, particularly at the junior level, when deciding whether to grant leave without pay. They must also comply with the transitional provisions outlined in clause 2.3 of the Directions for APS employees who have already been granted leave without pay and wish to return to the APS. Moreover, Agency Heads must ensure that any decision on leave without pay does not diminish the attractiveness of statutory appointments. Breach of the obligations and requirements set out in the Prime Minister’s Public Service Amendment Directions 2005 (No. 1) does not result in specific offences, penalties, or consequences under the Public Service Act 1999. However, failure to comply with the Directions may result in administrative consequences, such as disciplinary action against the Agency Head or the APS employee concerned. The Directions themselves do not specify any maximum penalties for breach. Instead, the Public Service Act 1999 and other relevant legislation may provide for disciplinary or other consequences for non-compliance. It is important for Agency Heads and APS employees to familiarise themselves with the requirements of the Directions and to ensure that they are followed in all relevant circumstances.

Area of Law: Public Service Law
Instrument: Directions
Concepts: Definitions & Interpretation; Offence Provisions; Transitional Provisions

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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