Public Service Amendment Act (No. 2) 2024

Administered by Department of the Prime Minister and Cabinet

Legislation au C2024A00076 In force Act

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No. 76, 2024

An Act to amend the Public Service Act 1999, and for other purposes

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Amendments

Public Service Act 1999

Schedule 2—Validation and continuation of pre‑commencement reviews

Public Service Amendment Act (No. 2) 2024

No. 76, 2024

An Act to amend the Public Service Act 1999, and for other purposes

[Assented to 26 August 2024]

The Parliament of Australia enacts:

1 Short title

This Act is the Public Service Amendment Act (No. 2) 2024.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. The whole of this Act	The day after this Act receives the Royal Assent.	27 August 2024

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Public Service Act 1999

1 Section 7

Insert:

former Agency Head means a person who was, but is no longer, an Agency Head.

2 Paragraph 41(2)(m)

Repeal the paragraph, substitute:

(m) to inquire into and determine, in accordance with section 41A, whether an Agency Head, or a former Agency Head, has breached the Code of Conduct;

3 Section 41A (at the end of the heading)

Add “or former Agency Head”.

4 Subsection 41A(1)

Omit “an alleged breach of the Code of Conduct by an Agency Head”, substitute “and determine whether an Agency Head, or a former Agency Head, has breached the Code of Conduct”.

5 After subsection 41A(1)

Insert:

Procedures for inquiry

(1A) The Commissioner must establish written procedures for inquiring into and determining whether an Agency Head, or a former Agency Head, has breached the Code of Conduct. The procedures:

(a) must comply with basic procedural requirements prescribed by the regulations; and

(b) must have due regard to procedural fairness.

(1B) In addition, and without affecting subsection (1A), the procedures may be different for:

(a) different categories of Agency Heads or former Agency Heads; or

(b) Agency Heads, or former Agency Heads, who:

(i) have been convicted of an offence against a Commonwealth, State or Territory law in respect of conduct that is alleged to constitute a breach of the Code of Conduct; or

(ii) have been found to have committed such an offence but no conviction is recorded.

(1C) The Commissioner must ensure that the procedures established under subsection (1A) are made publicly available.

(1D) Procedures established under subsection (1A) are not legislative instruments.

Report on results of inquiry

6 Subsection 41A(2)

Omit “an inquiry under subsection (1)”, substitute “an inquiry and determination under this section”.

7 Paragraphs 41A(2)(a) to (d)

After “the Agency Head is”, insert “, or the former Agency Head was,”.

8 Application provisions

Application—conduct of former Agency Head

(1) Subject to subitems (3) and (4), the amendments of the Public Service Act 1999 made by this Schedule apply in relation to a breach, or an alleged breach, of the Code of Conduct by a former Agency Head, whether the conduct by the former Agency Head giving rise to the breach, or alleged breach, occurred before, on or after the commencement day.

Application—inquiries

(2) Subject to subitems (3) and (4), the amendments of the Public Service Act 1999 made by this Schedule apply in relation to an inquiry conducted for the purposes of paragraph 41(2)(m) of the Public Service Act 1999 that:

(a) starts on or after the commencement day; or

(b) was started before the commencement day, but had not been completed at that day.

Application—written procedures for inquiries

(3) The amendments of section 41A of the Public Service Act 1999 made by item 5 of this Schedule apply only in relation to an inquiry conducted for the purposes of paragraph 41(2)(m) of the Public Service Act 1999 that is started on or after the commencement day.

(4) For the purposes of subitem (3), a Code of Conduct review within the meaning of item 1 of Schedule 2 to this Act is taken to have started before the commencement day.

(5) Nothing in subitem (3) or (4) is intended to affect any rights of an Agency Head, or former Agency Head, that arose before the commencement day, in relation to a failure to afford the Agency Head, or former Agency Head, procedural fairness in conducting an inquiry for the purposes of paragraph 41(2)(m) of the Public Service Act 1999.

Application—information or documents

(6) On and after the commencement day, the following may be used or disclosed for the purposes of an inquiry conducted for the purposes of paragraph 41(2)(m) of the Public Service Act 1999:

(a) any information given, or documents produced, to an entrusted person (within the meaning of subsection 72A(1) of the Public Service Act 1999) before the commencement day in the course of the inquiry;

(b) any information or documents created by such an entrusted person before the commencement day in the course of the inquiry.

Definitions

(7) In this item:

commencement day means the day this item commences.

Schedule 2—Validation and continuation of pre‑commencement reviews

1 Validation and continuation of certain pre‑commencement reviews

Scope

(1) This item applies in relation to a review or purported review of a matter under paragraph 41(2)(k) of the Public Service Act if:

(a) the review or purported review began in the period between 7 July 2023 and the day before commencement; and

(b) the matter involved a breach, or an alleged breach, of the Code of Conduct by an Agency Head or former Agency Head.

(2) A review or purported review mentioned in subitem (1) is a Code of Conduct review.

Validation of Code of Conduct reviews

(3) If a Code of Conduct review would not, but for this subitem, be authorised by or under paragraph 41(2)(k) of the Public Service Act, it is taken to be, and to have always been, by force of this subitem, validly conducted.

Continuation of Code of Conduct reviews

(4) On and after commencement, a Code of Conduct review is, by force of this subitem, continued as an inquiry under paragraph 41(2)(m) of the Public Service Act.

(5) Subitem (4) applies regardless of whether the Code of Conduct review:

(a) was continuing immediately before commencement; or

(b) had concluded before commencement.

(6) In conducting the inquiry on and after commencement, the Commissioner may use or disclose any of the following:

(a) information given, or documents produced, to the Commissioner by any person in the course of the Code of Conduct review;

(b) information or documents created by the Commissioner in the course of the Code of Conduct review.

Procedural fairness

(7) Nothing in this item is intended to affect any rights of a person, that arose before commencement, in relation to a failure to afford the person procedural fairness in relation to the Code of Conduct review.

Definitions

(8) In this item:

Code of Conduct has the same meaning as in the Public Service Act.

commencement means the day that this item commences.

Commissioner has the same meaning as in the Public Service Act.

Public Service Act means the Public Service Act 1999.

References to the Commissioner

(9) A reference in this item to the Commissioner includes:

(a) a delegate of the Commissioner; and

(b) an entrusted person (other than the Commissioner or a delegate of the Commissioner) within the meaning of subsection 72A(1) of the Public Service Act.

[Minister’s second reading speech made in—

House of Representatives on 14 August 2024

Senate on 21 August 2024]

(91/24)

Overview

The Public Service Amendment Act (No. 2) 2024 was enacted by the Parliament of Australia to amend the Public Service Act 1999, addressing gaps in the oversight and accountability mechanisms for former Agency Heads within the Australian Public Service. This legislation ensures that former Agency Heads are subject to the same scrutiny and disciplinary processes as current ones for breaches of the Code of Conduct. The Act was introduced to provide comprehensive oversight and to ensure that public service standards are maintained consistently, irrespective of an individual's current employment status. By extending the scope of inquiries and disciplinary actions to former Agency Heads, the Act aims to uphold integrity and accountability within the public service framework. The policy objective of the Public Service Amendment Act (No. 2) 2024 is to enhance the accountability of former Agency Heads by subjecting them to the same rigorous Code of Conduct review processes as current Agency Heads. This ensures that any breaches of conduct, whether occurring during or after their tenure, are thoroughly investigated and appropriately addressed. The Act also mandates the establishment of written procedures for inquiries, which must be made publicly available, thereby promoting transparency and fairness in the disciplinary process. Furthermore, the Act validates and continues any pre-commencement Code of Conduct reviews, ensuring continuity and fairness in the handling of existing investigations.

Scope and Application

The Public Service Amendment Act (No. 2) 2024 amends the Public Service Act 1999, introducing several changes aimed at improving the oversight and accountability of Agency Heads within the Australian Public Service. The Act applies to all current and former Agency Heads, extending the scope of inquiries into potential breaches of the Code of Conduct to include both current and former Agency Heads. The amendments ensure that the Public Service Commissioner can inquire into and determine whether an Agency Head, or a former Agency Head, has breached the Code of Conduct. This includes establishing written procedures for such inquiries, which must comply with prescribed regulations and basic procedural fairness, with potential variations for different categories of Agency Heads or former Agency Heads. The Act also validates and continues certain pre-commencement reviews of Code of Conduct breaches, ensuring they are treated as inquiries under the amended provisions. These amendments apply to conduct and inquiries occurring both before and after the Act's commencement on 27 August 2024. The Act’s provisions extend to the entire Commonwealth, affecting all public service entities and officials within its jurisdiction.

Key Provisions

The Public Service Amendment Act (No. 2) 2024 introduces significant amendments to the Public Service Act 1999. Section 7 of the Act introduces a new definition for "former Agency Head," referring to any individual who previously held the position of an Agency Head but no longer does. This new definition is crucial for understanding the scope of the Act's amendments, particularly those affecting the conduct and inquiries related to former Agency Heads. Paragraph 41(2)(m) is amended to expand the functions of the Commissioner to include inquiries into whether an Agency Head or a former Agency Head has breached the Code of Conduct. Section 41A is expanded to include former Agency Heads, and subsection 41A(1) is modified to clarify that the determination process applies to both current and former Agency Heads. Furthermore, the Act mandates the establishment of written procedures for inquiries, ensuring these procedures comply with basic procedural requirements and consider procedural fairness. These procedures must be made publicly available. The obligations imposed by the Act require the Commissioner to establish and adhere to specific written procedures for inquiries into breaches of the Code of Conduct by both current and former Agency Heads. These procedures must be transparent and comply with prescribed basic procedural requirements, ensuring due regard is given to procedural fairness. The Commissioner is also required to ensure that these procedures are made publicly available, thereby increasing accountability and transparency in the public service. Additionally, the Act allows for differentiated procedures based on the categories of Agency Heads or former Agency Heads and those who have been convicted or found to have committed offences related to the alleged breach of the Code of Conduct. The Act outlines several potential consequences for non-compliance with its provisions. While the Act does not explicitly state criminal or civil penalties for breaches, the seriousness of the conduct under investigation, particularly involving breaches of the Code of Conduct, could lead to disciplinary actions, including potential dismissal from public service roles. The Act's focus on ensuring procedural fairness and transparency suggests a strong emphasis on maintaining the integrity and accountability of the public service. Furthermore, the failure to adhere to the prescribed procedures or to ensure procedural fairness could result in legal challenges or reviews, although specific penalties are not detailed within the Act itself.

Area of Law: Public Law
Instrument: Act
Concepts: Commencement Provisions; Repeal & Amendment; Definitions & Interpretation; Enforcement Powers; Regulatory Standards

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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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