Commonwealth: Public Service Act 1999 (Cth)

Public Service Act 1999 No. 147, 1999 Compilation No. 22 Compilation date: 11 December 2024 Includes amendments: Act No. 44, 2024 About this compilation This compilation This is a compilation of the Public Service Act 1999 that shows the text of the law as amended and in force on 11 December 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Objects of this Act 4 This Act binds the Crown 5 This Act extends to things outside Australia 6 Engagement of employees in Department or Executive Agency Part 2—Interpretation 7 Interpretation 8 Relationship with Fair Work Acts Part 3—The Australian Public Service 9 Constitution of the APS 10 APS Values 10A APS Employment Principles 11 Commissioner's Directions about APS Values 11A Commissioner's Directions about employment matters 12 Agency Heads must promote APS Values and APS Employment Principles 13 The APS Code of Conduct 14 Agency Heads and statutory office holders bound by Code of Conduct 15 Breaches of the Code of Conduct 18 Promotion of employment equity 19 Limitation on Ministerial directions to Agency Head 19A Agency Heads to implement measures to create a work environment that enables decisions to be made by APS employees at lowest appropriate classification Part 4—APS employees Division 1—APS employees generally 20 Employer powers etc. of Agency Head 21 Prime Minister's directions to Agency Heads 22 Engagement of APS employees 23 Classification Rules 24 Terms and conditions of employment 25 Assignment of duties 26 Voluntary moves between Agencies 27 Compulsory moves between Agencies 28 Suspension 29 Termination of employment 30 Retirement 31 Forfeiture of additional remuneration 32 Right of return for election candidates 33 Review of actions Division 2—The Senior Executive Service 34 SES employees 35 Constitution and role of SES 37 Incentive to retire 38 Commissioner's certificate required for termination of SES employment Division 3—Heads of Mission 39 Heads of Mission Part 5—The Australian Public Service Commissioner Division 1—Commissioner's functions etc. 40 Australian Public Service Commissioner 41 Commissioner's functions 41A Inquiry into alleged breach of Code of Conduct by Agency Head or former Agency Head 41B Inquiry into alleged breach of Code of Conduct by APS employee or former APS employee 41C Systems reviews 41D Special reviews 42 Commissioner's Directions 43 Commissioner's inquiry powers 44 State of the Service report 44A Capability reviews 44B Action plans Division 2—Commissioner's appointment, conditions etc. 45 Appointment of Commissioner 46 Remuneration and other terms and conditions of appointment 47 Removal from office 48 Acting Commissioner Division 3—Special Commissioners 48A Appointment of Special Commissioners 48B Remuneration and other terms and conditions of appointment 48C Termination of appointment Part 6—The Merit Protection Commissioner Division 1—Merit Protection Commissioner's functions etc. 49 Merit Protection Commissioner 50 Merit Protection Commissioner's functions 50A Inquiry into alleged breach of Code of Conduct by APS employee or former APS employee 51 Annual report Division 2—Merit Protection Commissioner's appointment, conditions etc. 52 Appointment of Merit Protection Commissioner 53 Remuneration and other terms and conditions of appointment 54 Removal from office 55 Acting Merit Protection Commissioner Part 7—Secretaries of Departments 56 Creation of offices of Secretary 57 Roles and responsibilities of Secretaries 58 Appointment 59 Termination of appointment 60 Engagement of former Secretaries 61 Remuneration and other terms and conditions of appointment 61A Annual performance review 62 Acting Secretary Part 8—Secretaries Board 64 Secretaries Board 64A Long‑term insights reports Part 9—Executive Agencies 65 Establishment etc. of Executive Agencies 66 Responsibilities of Heads of Executive Agencies 67 Appointment etc. of Head 68 Remuneration and other terms and conditions of appointment 69 Acting Head Part 10—Administrative arrangements and re‑organisations 71 Arrangements with States and Territories 72 Machinery of government changes Part 10A—Protection of information 72A Protection of information—Commissioner's functions etc. 72B Protection of information—Merit Protection Commissioner's functions etc. 72C Giving information or producing documents to Commissioner not admissible in evidence etc. 72D Giving information or producing documents to Merit Protection Commissioner not admissible in evidence etc. 72E Release of personal information Part 11—Miscellaneous 73 Payments in special circumstances 74 Locally engaged employees 75 Attachment of salaries to satisfy judgment debts 77 Positions 78 Delegations 78A Immunity from civil proceedings 78B Australian Public Service Employee Census—results and action plans 79 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to provide for the establishment and management of the Australian Public Service, and for other purposes Part 1—Preliminary 1 Short title This Act may be cited as the Public Service Act 1999. Note: See also the Public Employment (Consequential and Transitional) Amendment Act 1999. 2 Commencement (1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation. (2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period. 3 Objects of this Act The main objects of this Act are: (a) to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public; and (b) to provide a legal framework for the effective and fair employment, management and leadership of APS employees; and (c) to define the powers, functions and responsibilities of Agency Heads, the Australian Public Service Commissioner and the Merit Protection Commissioner; and (d) to establish rights and obligations of APS employees. 4 This Act binds the Crown This Act binds the Crown in right of the Commonwealth, but does not make the Crown liable to be prosecuted for an offence. 5 This Act extends to things outside Australia (1) This Act extends to acts, omissions, matters and things outside Australia (unless the contrary intention appears). (2) This Act extends to all the Territories. 6 Engagement of employees in Department or Executive Agency (1) All persons engaged on behalf of the Commonwealth as employees to perform functions in a Department or Executive Agency must be engaged under this Act, or under the authority of another Act. (2) Subsection (1) does not apply to persons engaged on an honorary basis. (3) This section does not, by implication, affect any power that an Agency Head might otherwise have to engage persons as independent contractors. Part 2—Interpretation 7 Interpretation In this Act, unless the contrary intention appears: acting SES employee means a non‑SES employee who is acting in a position usually occupied by an SES employee. Agency means: (a) a Department; or (b) an Executive Agency; or (c) a Statutory Agency. Agency Head means: (a) the Secretary of a Department; or (b) the Head of an Executive Agency; or (c) the Head of a Statutory Agency. Agency Minister means: (a) in relation to a Department—the Minister who administers the Department; or (b) in relation to an Executive Agency—the Minister who administers the Agency; or (c) in relation to a Statutory Agency—the Minister who administers the provision of the Act that provides for the appointment of the Head of the Agency. Agency website means a website maintained by an Agency. APS means the Australian Public Service established by section 9. APS employee means: (a) a person engaged under section 22; or (b) a person who is engaged as an APS employee under section 72. APS employment means employment as an APS employee. APS Employment Principles means the principles in section 10A. APS Values means the values in section 10. Australian Fair Pay and Conditions Standard has the same meaning as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Note: See Schedules 4 and 9 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 in relation to the application of the Australian Fair Pay and Conditions Standard. category of APS employee means one of the following categories: (a) ongoing APS employees; (b) APS employees engaged for a specified term or for the duration of a specified task; (c) APS employees engaged for duties that are irregular or intermittent. Classification Rules means rules made under section 23. Code of Conduct means the rules in section 13. Commissioner means the Australian Public Service Commissioner appointed under this Act. Commissioner's Directions means directions issued by the Commissioner under section 11, 11A or 15. Department means a Department of State, excluding any part that is itself an Executive Agency or Statutory Agency. enterprise agreement has the same meaning as in the Fair Work Act 2009. Executive Agency means an Executive Agency established under section 65. fair work instrument has the same meaning as in the Fair Work Act 2009. former Agency Head means a person who was, but is no longer, an Agency Head. former APS employee means a person who was, but is no longer, an APS employee. Head: (a) in relation to an Executive Agency—means the person appointed as the Head of the Agency under section 67; and (b) in relation to a Statutory Agency—means the person declared by an Act to be the Head of the Agency. Head of Mission means the head of: (a) an Australian diplomatic mission; or (b) an Australian consular mission. locally engaged employee means a person engaged under section 74. Merit Protection Commissioner means the Merit Protection Commissioner appointed under this Act. modern award has the same meaning as in the Fair Work Act 2009. National Employment Standards has the same meaning as in the Fair Work Act 2009. non‑ongoing APS employee means an APS employee who is not an ongoing APS employee. non‑SES employee means an APS employee other than an SES employee. ongoing APS employee means a person engaged as an ongoing APS employee, as mentioned in paragraph 22(2)(a). overseas means outside Australia and the Territories. Presiding Officer means the President of the Senate or the Speaker of the House of Representatives. Prime Minister's Department means the Department of the Prime Minister and Cabinet. Public Service Minister means the Minister who administers this Act. Secretaries Board means the Secretaries Board established by section 64. Secretary means the Secretary of a Department. SES means the Senior Executive Service established by section 35. SES employee has the meaning given by section 34. Special Commissioner means a Special Commissioner appointed under section 48A. special review means a review conducted by the Commissioner under subsection 41D(1). State of the Service report means a report referred to in subsection 44(1). Statutory Agency means a body or group of persons declared by a law of the Commonwealth to be a Statutory Agency for the purposes of this Act. systems review means a review conducted by the Commissioner under subsection 41C(1). WR Act collective transitional instrument means an award, a collective agreement or a pre‑reform certified agreement (within the meaning of those terms in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009). WR Act transitional instrument means an award, a workplace agreement, a pre‑reform certified agreement, an AWA or a pre‑reform AWA (within the meaning of those terms in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009). 8 Relationship with Fair Work Acts (1) This Act has effect subject to the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. (2) Subsection (1) is not intended to imply anything about the relationship between this Act and any Act other than the Fair Work Act 2009 or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Part 3—The Australian Public Service 9 Constitution of the APS The Australian Public Service consists of Agency Heads and APS employees. 10 APS Values Committed to service (1) The APS is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Australian community and the Government. Ethical (2) The APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does. Respectful (3) The APS respects all people, including their rights and their heritage. Accountable (4) The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility. Impartial (5) The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence. Stewardship (6) The APS builds its capability and institutional knowledge, and supports the public interest now and into the future, by understanding the long‑term impacts of what it does. 10A APS Employment Principles APS Employment Principles (1) The APS is a career‑based public service that: (a) makes fair employment decisions with a fair system of review; and (b) recognises that the usual basis for engagement is as an ongoing APS employee; and (c) makes decisions relating to engagement and promotion that are based on merit; and (d) requires effective performance from each employee; and (e) provides flexible, safe and rewarding workplaces where communication, consultation, cooperation and input from employees on matters that affect their workplaces are valued; and (f) provides workplaces that are free from discrimination, patronage and favouritism; and (g) recognises the diversity of the Australian community and fosters diversity in the workplace. Decisions based on merit (2) For the purposes of paragraph (1)(c), a decision relating to engagement or promotion is based on merit if: (a) all eligible members of the community were given a reasonable opportunity to apply to perform the relevant duties; and (b) an assessment is made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process; and (c) the assessment is based on the relationship between the candidates' work‑related qualities and the work‑related qualities genuinely required to perform the relevant duties; and (d) the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and (e) the assessment is the primary consideration in making the decision. Note: Commissioner's Directions may determine the scope or application of the APS Employment Principles (see subsections 11A(2) and (3)). 11 Commissioner's Directions about APS Values (1) The Commissioner may issue directions in writing in relation to any of the APS Values for the purpose of: (a) ensuring that the APS incorporates and upholds the APS Values; and (b) determining where necessary the scope or application of the APS Values. Note: See section 42 for general provisions relating to Commissioner's Directions. (2) For the purposes of this Act other than this section, the APS Values have effect subject to the restrictions (if any) in directions made under subsection (1). 11A Commissioner's Directions about employment matters General (1) The Commissioner may issue directions in writing about employment matters relating to APS employees, including the following: (a) engagement; (b) promotion; (c) redeployment; (d) mobility; (e) training schemes; (f) termination. Note: See section 42 for general provisions relating to Commissioner's Directions. Directions about APS Employment Principles (2) The Commissioner may issue directions in writing in relation to any of the APS Employment Principles for the purpose of: (a) ensuring that the APS incorporates and upholds the APS Employment Principles; and (b) determining where necessary the scope or application of the APS Employment Principles. Note: See section 42 for general provisions relating to Commissioner's Directions. (3) For the purposes of this Act (other than subsection (2)), the APS Employment Principles have effect subject to any restrictions in directions issued under subsection (2). Directions of no effect to the extent of inconsistency with Prime Minister's direction (4) A direction issued under this section has no effect to the extent that it is inconsistent with a direction issued by the Prime Minister under section 21. 12 Agency Heads must promote APS Values and APS Employment Principles An Agency Head must uphold and promote the APS Values and APS Employment Principles. 13 The APS Code of Conduct (1) An APS employee must behave honestly and with integrity in connection with APS employment. (2) An APS employee must act with care and diligence in connection with APS employment. (3) An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment. (4) An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means: (a) any Act (including this Act), or any instrument made under an Act; or (b) any law of a State or Territory, including any instrument made under such a law. (5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction. (6) An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff. (7) An APS employee must: (a) take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee's APS employment; and (b) disclose details of any material personal interest of the employee in connection with the employee's APS employment. (8) An APS employee must use Commonwealth resources in a proper manner and for a proper purpose. (9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment. (10) An APS employee must not improperly use inside information or the employee's duties, status, power or authority: (a) to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or (b) to cause, or seek to cause, detriment to the employee's Agency, the Commonwealth or any other person. (11) An APS employee must at all times behave in a way that upholds: (a) the APS Values and APS Employment Principles; and (b) the integrity and good reputation of the employee's Agency and the APS. (12) An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia. (13) An APS employee must comply with any other conduct requirement that is prescribed by the regulations. 14 Agency Heads and statutory office holders bound by Code of Conduct (1) Agency Heads are bound by the Code of Conduct in the same way as APS employees. (2) Statutory office holders are bound by the Code of Conduct, subject to any regulations made under subsection (2A). (2A) The regulations may make provision in relation to the extent to which statutory office holders are bound by the Code of Conduct. Note: The regulations may make different provision with respect to different statutory office holders or different classes of statutory office holders (see subsection 33(3A) of the Acts Interpretation Act 1901). (3) In this section: statutory office holder means a person who holds any office or appointment under an Act, being an office or appointment that is prescribed by the regulations for the purposes of this definition. 15 Breaches of the Code of Conduct Sanctions that may be imposed (1) An Agency Head may impose the following sanctions on an APS employee in the Agency who is found (under procedures established under subsection (3) of this section or subsection 41B(3) or 50A(2)) to have breached the Code of Conduct: (a) termination of employment; (b) reduction in classification; (c) re‑assignment of duties; (d) reduction in salary; (e) deductions from salary, by way of fine; (f) a reprimand. Note: See sections 29 and 38 in relation to terminating an APS employee's employment. (2) The regulations may prescribe limitations on the power of an Agency Head to impose sanctions under subsection (1). Providing false or misleading information etc. in connection with engagement as an APS employee (2A) A person who is, or was, an APS employee is taken to have breached the Code of Conduct if the person is found (under procedures established under subsection (3) of this section or subsection 41B(3) or 50A(2)) to have, before being engaged as an APS employee: (a) knowingly provided false or misleading information to another APS employee, or to a person acting on behalf of the Commonwealth; or (b) wilfully failed to disclose to another APS employee, or to a person acting on behalf of the Commonwealth, information that the person knew, or ought reasonably to have known, was relevant; or (c) otherwise failed to behave honestly and with integrity; in connection with the person's engagement as an APS employee. Note: If the person is an APS employee at the time a finding referred to in paragraph (2A)(a), (b) or (c) is made in relation to the person, the Agency Head of the employee's Agency may impose sanctions on the person as permitted by subsection (1). Procedures for determining whether APS employee, or former APS employee, has breached the Code of Conduct etc. (3) An Agency Head must establish written procedures in accordance with this section for determining: (a) whether an APS employee, or a former APS employee, in the Agency has breached the Code of Conduct (including by engaging in conduct referred to in subsection (2A)); and (b) the sanction (if any) that is to be imposed under subsection (1) on an APS employee in the Agency who is found to have breached the Code of Conduct (including by engaging in conduct referred to in subsection (2A)). (4) The procedures: (a) must comply with basic procedural requirements set out in Commissioner's Directions; and (b) must have due regard to procedural fairness. (5) In addition, and without affecting subsection (4), the procedures may be different for: (a) different categories of APS employees or former APS employees; or (b) APS employees, or former APS employees, 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. (6) The Commissioner must issue directions in writing for the purposes of paragraph (4)(a). Note: See section 42 for general provisions relating to Commissioner's Directions. (7) An Agency Head must ensure that the procedures established under subsection (3) are made publicly available. (8) Procedures established under subsection (3) are not legislative instruments. 18 Promotion of employment equity An Agency Head must establish a workplace diversity program to assist in giving effect to the APS Employment Principles. 19 Limitation on Ministerial directions to Agency Head A Minister must not direct an Agency Head in relation to the exercise of powers by the Agency Head under section 15 or Division 1 or 2 of Part 4 in relation to particular individuals. 19A Agency Heads to implement measures to create a work environment that enables decisions to be made by APS employees at lowest appropriate classification (1) The Agency Head of an Agency must implement measures that create a work environment within the Agency that enables decisions to be made by APS employees with classifications that the Agency Head considers are the lowest appropriate for those decisions. (2) For the purposes of subsection (1), an Agency Head must have regard to: (a) the work level standards for classifications (if any) that are referred to in the Classification Rules; and (b) any other matter the Agency Head considers relevant. (3) A failure to comply with subsection (1) does not affect the validity of a decision. Part 4—APS employees Division 1—APS employees generally 20 Employer powers etc. of Agency Head (1) An Agency Head, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of APS employees in the Agency. (2) Without limiting subsection (1), an Agency Head has, in respect of APS employees in the Agency, the rights, duties and powers that are prescribed by the regulations. 21 Prime Minister's directions to Agency Heads (1) The Prime Minister may issue general directions in writing to Agency Heads relating to the management and leadership of APS employees. (2) A direction issued under subsection (1) is a legislative instrument. Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the direction (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act). 22 Engagement of APS employees (1) An Agency Head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the Agency. (2) The engagement of an APS employee (including an engagement under section 72) must be: (a) as an ongoing APS employee; or (b) for a specified term or for the duration of a specified task; or (c) for duties that are irregular or intermittent. Note: The usual basis for engagement is as an ongoing APS employee (see paragraph 10A(1)(b)). (4) The regulations may prescribe the circumstances in which persons may be engaged as mentioned in paragraph (2)(b) or (c). (5) An engagement for a specified term may be extended, subject to any limitations prescribed by the regulations. (6) The engagement of an APS employee (including an engagement under section 72) may be made subject to conditions notified to the employee, including conditions dealing with any of the following matters: (a) probation; (b) citizenship; (c) formal qualifications; (d) security and character clearances; (e) health clearances. (7) Subsection (6) does not, by implication, limit the conditions that may be applied to the engagement of an APS employee. (8) An Agency Head must not engage, as an APS employee, a person who is not an Australian citizen, unless the Agency Head considers it appropriate to do so. 23 Classification Rules (1) The Commissioner may, by legislative instrument, make rules about classifications of APS employees. Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the Classification Rules (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act). (2) The Classification Rules may apply, adopt or incorporate, with or without modification, any of the provisions of: (a) a modern award, as in force at a particular time or as in force from time to time; or (b) a transitional APCS, as in force at a particular time or as in force from time to time. (3) Agency Heads must comply with the Classification Rules. (4) An Agency Head may reduce the classification of an APS employee, without the employee's consent, only in the following circumstances: (a) as a sanction under section 15; (b) in the case of an SES employee—in accordance with Commissioner's Directions issued under subsection 11A(1); (c) on the ground that the employee is excess to the requirements of the Agency at the higher classification; (d) on the ground that the employee lacks, or has lost, an essential qualification for performing duties at the higher classification; (e) on the ground of non‑performance, or unsatisfactory performance, of duties at the higher classification; (f) on the ground that the employee is unable to perform duties at the higher classification because of physical or mental incapacity; (g) in other circumstances prescribed by the regulations. (5) If a relevant industrial instrument, determination under this Act or written contract of employment contains procedures to be followed when reducing the classification, then a reduction is of no effect unless those procedures are followed. (6) In this section: industrial instrument means: (a) a modern award; or (b) an enterprise agreement; or (c) a workplace determination; or (d) a WR Act transitional instrument; or (e) a transitional APCS. transitional APCS has the meaning given by Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. workplace determination has the same meaning as in the Fair Work Act 2009. 24 Terms and conditions of employment (1) An Agency Head may from time to time determine in writing the terms and conditions of employment applying to an APS employee or APS employees in the Agency. Note 1: Certain terms and conditions of employment are applicable to an APS employee under the Australian Fair Pay and Conditions Standard or the National Employment Standards. Note 2: Other Commonwealth laws deal with matters such as superannuation, compensation, long service leave and maternity leave. (1A) A determination under subsection (1) is of no effect to the extent that it would reduce the benefit to an APS employee of an individual term or condition applicable to the employee under: (a) a fair work instrument; or (b) a WR Act transitional instrument. Note: A determination under subsection (1) would also be of no effect to the extent that it would reduce the benefit to an APS employee of a term or condition applicable to the employee under the Australian Fair Pay and Conditions Standard or the National Employment Standards. (2) A determination under subsection (1) may apply, adopt or incorporate, with or without modification, any of the provisions of: (a) a fair work instrument; or (b) a WR Act collective transitional instrument; as in force from time to time. Note: A determination under subsection (1) may apply, adopt or incorporate, with or without modification, any of the provisions of the Australian Fair Pay and Conditions Standard or the National Employment Standards. However, any modification of the provisions of those Standards by a determination under subsection (1) would be of no effect to the extent that it would reduce the benefit to an APS employee of a term or condition applicable to the employee under those Standards. (3) The Public Service Minister may, by legislative instrument, determine the terms and conditions of employment applying to APS employees, if the Public Service Minister is of the opinion that it is desirable to do so because of exceptional circumstances. Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the determination (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act). (4) The limitation in subsection (1A) does not apply in relation to a determination under subsection (3). (5) A determination under subsection (3) overrides the following, to the extent of any inconsistency: (a) a determination under subsection (1); (b) the Australian Fair Pay and Conditions Standard; (c) the National Employment Standards. 25 Assignment of duties An Agency Head may from time to time determine the duties of an APS employee in the Agency, and the place or places at which the duties are to be performed. 26 Voluntary moves between Agencies (1) An Agency Head may enter into an agreement in writing with an APS employee for the employee to move to the Agency Head's Agency from another Agency. (2) Subject to Commissioner's Directions issued under subsection 11A(1), the agreement has effect according to its terms, by force of this section. 27 Compulsory moves between Agencies (1) The Commissioner may, by direction in writing, move an excess APS employee to another Agency, without anyone's consent. (2) For the purposes of this section, an APS employee is an excess APS employee if, and only if, the Agency Head has notified the Commissioner in writing that the employee is excess to the requirements of the Agency. 28 Suspension The regulations may make provision in relation to the suspension from duties of APS employees, with or without remuneration. 29 Termination of employment (1) An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency. Note 1: The Fair Work Act 2009 has rules and entitlements that apply to termination of employment. Note 2: Commissioner's Directions issued under subsection 11A(1) may set out procedures to be followed in terminating the employment of an APS employee. (2) For an ongoing APS employee, the notice must specify the ground or grounds that are relied on for the termination. (3) For an ongoing APS employee, the following are the only grounds for termination: (a) the employee is excess to the requirements of the Agency; (b) the employee lacks, or has lost, an essential qualification for performing his or her duties; (c) non‑performance, or unsatisfactory performance, of duties; (d) inability to perform duties because of physical or mental incapacity; (e) failure to satisfactorily complete an entry‑level training course; (f) failure to meet a condition imposed under subsection 22(6); (g) breach of the Code of Conduct; (h) any other ground prescribed by the regulations. (4) The regulations may prescribe the grounds for the termination of the employment of non‑ongoing APS employees. (5) Subsection (4) does not, by implication, limit the grounds for termination of the employment of a non‑ongoing APS employee. 30 Retirement (1) An APS employee who has reached the minimum retiring age is entitled to retire at any time by notice in writing to the Agency Head. (2) The minimum retiring age is 55 years, or such higher or lower age as is prescribed by the regulations. 31 Forfeiture of additional remuneration (1) If an APS employee receives any non‑Commonwealth remuneration for performing duties as an APS employee, then the Agency Head may give a notice in writing to the employee in relation to the whole, or a specified part, of the remuneration. (2) The amount notified by the Agency Head: (a) is taken to have been received by the employee on behalf of the Commonwealth; and (b) may be recovered by the Commonwealth from the employee as a debt in a court of competent jurisdiction. (3) If an Agency Head receives any non‑Commonwealth remuneration for performing duties as an Agency Head, then the Agency Minister may give a notice in writing to the Agency Head in relation to the whole, or a specified part, of the remuneration. (4) The amount notified by the Agency Minister: (a) is taken to have been received by the Agency Head on behalf of the Commonwealth; and (b) may be recovered by the Commonwealth from the Agency Head as a debt in a court of competent jurisdiction. (5) In this section: non‑Commonwealth remuneration means any remuneration from a person other than the Commonwealth. 32 Right of return for election candidates (1) This section applies to a person if: (a) the person resigned as an APS employee in order to contest an election specified in Commissioner's Directions issued under subsection 11A(1); and (b) the resignation took effect not earlier than 6 months before the closing date for nominations; and (c) the person was a candidate in the election but failed to be elected. (2) The person is entitled to be again engaged as an APS employee, in accordance with Commissioner's Directions issued under subsection 11A(1) and within the time limits provided by those Directions. 33 Review of actions (1) An APS employee is entitled to review, in accordance with the regulations, of any APS action that relates to his or her APS employment. However, an APS employee is not entitled to review under this section of APS action that consists of the termination of the employee's employment. (2) The regulations may prescribe exceptions to the entitlement. Note: For example, the regulations might provide that there is not entitlement to review if the application for review is frivolous or vexatious. (3) Without limiting subsection (1), regulations made for the purposes of that subsection may provide for the powers available to the Merit Protection Commissioner, or any other person or body, when conducting a review under the regulations. (4) Regulations for the purposes of subsection (1): (a) may provide for an initial review to be conducted within the responsible Agency; and (b) may provide that applications for review of particular kinds of APS action are to be made directly to the Merit Protection Commissioner; and (c) must provide for an application for review to be referred to the Merit Protection Commissioner if the applicant is not satisfied with the outcome of an initial review within the responsible Agency; and (d) in the case of a review following an application or referral to the Merit Protection Commissioner—must provide for the review to be conducted by: (i) the Merit Protection Commissioner; or (ii) a person nominated by the Merit Protection Commissioner; or (iii) a 3 member committee constituted in accordance with the regulations. (5) A person or body that has conducted a review under this section may make recommendations in a report on the review but does not have power to make any binding decision as a result of the review, except as provided by the regulations. (6) If the Merit Protection Commissioner is not satisfied with the response to recommendations contained in a report on a review under this section, the Merit Protection Commissioner may, after consulting the Public Service Minister, give a report on the matter to the Agency Minister of the responsible Agency and to either or both of the following: (a) the Prime Minister; (b) the Presiding Officers, for presentation to the Parliament. (7) In this section: action includes a refusal or failure to act. APS action means: (a) action by a person in the capacity of an Agency Head or APS employee; or (b) action by the Commissioner under section 41B (including a finding that an APS employee has breached the Code of Conduct). responsible Agency, in relation to APS action, means the Agency in which the person who did the action was at the time of the action. Division 2—The Senior Executive Service 34 SES employees SES employees are those APS employees who are classified as SES employees under the Classification Rules. 35 Constitution and role of SES (1) The Senior Executive Service consists of the SES employees. (2) The function of the SES is to provide APS‑wide strategic leadership of the highest quality that contributes to an effective and cohesive APS. (3) For the purpose of carrying out the function of the SES, each SES employee: (a) provides one or more of the following at a high level: (i) professional or specialist expertise; (ii) policy advice; (iii) program or service delivery; (iv) regulatory administration; and (b) promotes cooperation within and between Agencies, including to deliver outcomes across Agency and portfolio boundaries; and (c) by personal example and other appropriate means, promotes the APS Values, the APS Employment Principles and compliance with the Code of Conduct. 37 Incentive to retire (1) An Agency Head may give a notice in writing to an SES employee in the Agency, stating that the employee will become entitled to a payment of a specified amount if the employee retires within a period specified in the notice. (1A) A notice may be given to an SES employee under subsection (1) whether or not the employee has reached the minimum retiring age under section 30. (2) If the employee retires within the specified period, by notice in writing to the Agency Head: (a) the employee is entitled to be paid the specified amount; and (b) the employee is taken, for all purposes, to have retired involuntarily from the APS. 38 Commissioner's certificate required for termination of SES employment An Agency Head cannot terminate the employment of an SES employee unless the Commissioner has issued a certificate stating that: (a) all relevant requirements of Commissioner's Directions made under subsection 11A(1) have been satisfied in respect of the proposed termination; and (b) the Commissioner is of the opinion that the termination is in the public interest. Division 3—Heads of Mission 39 Heads of Mission (1) The appointment of a Head of Mission by the Governor‑General cannot take effect unless the person is an APS employee. (2) An Agency Head must comply with any direction in writing by the Agency Minister: (a) directing the Agency Head to engage a particular person as an APS employee so that the person can become a Head of Mission; or (b) directing the Agency Head to assign particular duties to an APS employee who has been appointed as a Head of Mission. (3) The APS Employment Principles do not apply to giving, or carrying out, a direction referred to in subsection (2). Part 5—The Australian Public Service Commissioner Division 1—Commissioner's functions etc. 40 Australian Public Service Commissioner (1) There is to be an Australian Public Service Commissioner. (2) The staff necessary to assist the Commissioner must be persons engaged under this Act. (3) For the purposes of this Act: (a) the Commissioner and the APS employees assisting the Commissioner together constitute a Statutory Agency; and (b) the Commissioner is the Head of that Statutory Agency. (4) The Commissioner may, on behalf of the Commonwealth, engage consultants to assist in the performance of the Commissioner's functions. 41 Commissioner's functions (1) The Commissioner has the following functions: (a) to strengthen the professionalism of the APS and facilitate continuous improvement in workforce management in the APS; (b) to uphold high standards of integrity and conduct in the APS; (c) to monitor, review and report on APS capabilities within and between Agencies to promote high standards of accountability, effectiveness and performance. (2) Without limiting subsection (1), the Commissioner's functions include the following: (a) to foster, and contribute to, leadership, high quality learning and development and career management in the APS; (b) to lead the thinking about, provide advice on and drive reforms to workforce management policies so that the APS is ready for future demands; (c) to develop, review and evaluate APS workforce management policies and practices and maintain appropriate databases; (d) to foster an APS workforce that reflects the diversity of the Australian population; (e) to promote the APS Values, the APS Employment Principles and the Code of Conduct; (f) to evaluate the extent to which Agencies incorporate and uphold the APS Values and the APS Employment Principles; (g) to partner with Secretaries in the stewardship of the APS; (h) to provide advice and assistance to Agencies on public service matters; (i) to work with other governments (including foreign governments) on matters relating to public sector workforce management, leadership and career management; (j) to review any matter relating to the APS; (k) to review any matter relating to the APS referred to the Commissioner by the Public Service Minister, and report on that matter to the Public Service Minister; (l) to evaluate the adequacy of systems and procedures in Agencies for ensuring compliance with the Code of Conduct; (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; (n) to inquire into and determine, in accordance with section 41B, whether an APS employee, or a former APS employee, has breached the Code of Conduct; (o) to inquire, subject to the regulations, into public interest disclosures (within the meaning of the Public Interest Disclosure Act 2013), to the extent that the disclosures relate to alleged breaches of the Code of Conduct; (p) such other functions as are conferred on the Commissioner by this Act, the regulations or any other law; (q) such other functions as the Prime Minister, by legislative instrument, directs the Commissioner to perform; (r) to do anything incidental to or conducive to the performance of any of the Commissioner's functions. Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to a direction given under paragraph (2)(q) of this section (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act). Reports may include recommendations (3) A report made by the Commissioner in the performance of his or her functions may include recommendations. Fees (4) The regulations may authorise the Commissioner to charge fees (on behalf of the Commonwealth) for the performance, on request, of the Commissioner's functions. 41A Inquiry into alleged breach of Code of Conduct by Agency Head or former Agency Head (1) The Commissioner may, for the purposes of paragraph 41(2)(m), inquire into and determine whether an Agency Head, or a former Agency Head, has breached the Code of Conduct. 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 (2) The Commissioner must report on the results of an inquiry and determination under this section (including, if relevant, recommendations for sanctions) to: (a) if the Agency Head is, or the former Agency Head was, a Secretary—the Prime Minister; or (b) if the Agency Head is, or the former Agency Head was, the Head of an Executive Agency—the Agency Minister; or (c) if the Agency Head is, or the former Agency Head was, the Head of a Statutory Agency that is prescribed by the regulations for the purposes of this paragraph—the Presiding Officers; or (d) if the Agency Head is, or the former Agency Head was, the Head of a Statutory Agency that is not prescribed by the regulations for the purposes of paragraph (c)—the Agency Minister. (3) The regulations may prescribe circumstances in which the Commissioner: (a) may decline to conduct an inquiry under subsection (1); or (b) may discontinue such an inquiry without making a report under subsection (2). 41B Inquiry into alleged breach of Code of Conduct by APS employee or former APS employee Request for inquiry (1) The Commissioner may, for the purposes of paragraph 41(2)(n), inquire into and determine whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct if: (a) the Agency Head or the Prime Minister requests the Commissioner to do so; and (b) the Commissioner considers it would be appropriate to do so. (2) The Prime Minister may make a request under paragraph (1)(a) in relation to an alleged breach of the Code of Conduct of which the Prime Minister has become aware as a result of, or in the course of, a systems review or a special review. Procedures for inquiry (3) The Commissioner must establish written procedures for inquiring into and determining whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct (including by engaging in conduct referred to in subsection 15(2A)). The procedures: (a) must comply with basic procedural requirements prescribed by the regulations; and (b) must have due regard to procedural fairness. (4) In addition, and without affecting subsection (3), the procedures may be different for: (a) different categories of APS employees or former APS employees; or (b) APS employees, or former APS employees, 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. (5) The Commissioner must ensure that the procedures established under subsection (3) are made publicly available. (6) Procedures established under subsection (3) are not legislative instruments. Commissioner's powers (7) For the purposes of inquiring into and determining whether an APS employee, or a former APS employee, in an Agency has breached the Code of Conduct, the Commissioner may exercise the same powers as the Agency Head may exercise in determining whether an APS employee, or a former APS employee, in the Agency has breached the Code of Conduct. Report on results of inquiry (8) The Commissioner must report on the results of an inquiry and determination under this section (including an inquiry that is discontinued) in relation to an APS employee, or a former APS employee, in an Agency to: (a) the Agency Head; and (b) if the Prime Minister requested the inquiry—the Prime Minister. Recommendation of sanctions (9) If: (a) the Commissioner finds that an APS employee in an Agency has breached the Code of Conduct; and (b) the Commissioner is requested to recommend sanctions in respect of the breach by: (i) the Agency Head; or (ii) if the Prime Minister requested the inquiry—the Prime Minister; the Commissioner may recommend any of the sanctions referred to in subsection 15(1). Note: A sanction referred to in subsection 15(1) would be imposed on the APS employee by the Agency Head, not by the Commissioner. Discontinuation of inquiry (10) The regulations may prescribe circumstances in which the Commissioner may discontinue an inquiry under this section. 41C Systems reviews (1) The Prime Minister may direct the Commissioner to conduct a review (a systems review) of any matter relating to an Agency, including: (a) the management and organisational systems, structures or processes in an Agency; and (b) the functional relationships between 2 or more Agencies. (2) An Agency Minister may request the Prime Minister to make a direction under subsection (1) that relates to an Agency. (3) The Secretary of a Department may request the Prime Minister to make a direction under subsection (1) that relates to the Department or any other Agency in the same portfolio as the Department. (4) The Commissioner must give a report on the review to: (a) the Prime Minister; and (b) if the review was conducted because of a request by an Agency Minister or a Secretary—the Agency Minister or the Secretary. (5) If a direction under subsection (1) is given in writing, the direction is not a legislative instrument. 41D Special reviews (1) The Prime Minister may direct the Commissioner to conduct a review (a special review) of: (a) any matter relating to an Agency; or (b) the functional relationships between 2 or more Agencies. (2) The Commissioner must give a report on the review to: (a) the Prime Minister; and (b) the Agency Minister of each Agency to which the review relates. (3) If a direction under subsection (1) is given in writing, the direction is not a legislative instrument. 42 Commissioner's Directions (1) Commissioner's Directions cannot create offences or impose penalties. (2) Agency Heads and APS employees must comply with Commissioner's Directions. (3) Commissioner's Directions may apply, adopt or incorporate (with or without modifications) any matter contained in the Classification Rules or a direction issued by the Prime Minister under section 21, either: (a) as in force or existing at a particular time; or (b) as in force or existing from time to time. (4) Commissioner's Directions are legislative instruments. 43 Commissioner's inquiry powers (1) Each of the following is a special inquiry for the purpose of this section: (a) an inquiry that is conducted by the Commissioner for the purpose of paragraph 41(2)(c), (f) or (l) and is notified by the Commissioner in the Gazette; (b) an inquiry that is conducted by the Commissioner for the purpose of paragraph 41(2)(m) or (o); (c) an inquiry on a matter referred to the Commissioner under paragraph 41(2)(k) by the Public Service Minister, by notice in the Gazette; (d) an inquiry that is conducted by the Commissioner for the purposes of a special review. (2) The following provisions apply in relation to a special inquiry (with references to the Auditor‑General being replaced by references to the Commissioner): (a) sections 32, 33 and 35 of the Auditor‑General Act 1997; (b) any other provisions of the Auditor‑General Act 1997, or of regulations under that Act, that are relevant to the operation of section 32, 33 or 35 of that Act. 44 State of the Service report (1) As soon as practicable after the end of each financial year, the Commissioner must give a report to the Agency Minister, for presentation to the Parliament, on the state of the APS during the year. (2) An Agency Head must give the Commissioner whatever information the Commissioner requires for the purpose of preparing the report referred to in subsection (1). (3) The Agency Minister must cause a copy of the report given to the Minister under subsection (1) to be laid before each House of the Parliament by 30 November after the financial year to which the report relates. 44A Capability reviews Capability review of Agencies other than the Australian Public Service Commission (1) The Commissioner may, at any time, cause a capability review of an Agency (other than the Australian Public Service Commission) to be undertaken under this subsection. (2) However, the Commissioner must cause a capability review of each Department, Services Australia and the Australian Taxation Office to be undertaken under subsection (1) at least once every: (a) 5 years; or (b) if the Commissioner determines, in writing, another number of years in relation to the Agency—that other number of years. Capability review of Australian Public Service Commission (3) The Secretary of the Prime Minister's Department must cause a capability review of the Australian Public Service Commission to be undertaken under this subsection at least once every: (a) 5 years; or (b) if the Secretary determines, in writing, another number of years—that other number of years. Capability review requirements (4) If a person causes a capability review of an Agency to be undertaken under subsection (1) or (3), the person must: (a) notify the Agency Head of the Agency, in writing, of the review; and (b) appoint one or more persons, in writing, to undertake the review; and (ba) ensure that the person or persons who undertake the review consult the Agency Minister of the Agency in undertaking the review; and (c) ensure that the person or persons who undertake the review give a written report of the review to: (i) the person who caused the review to be undertaken; and (ii) the Agency Head of the Agency; and (ca) decide whether to do either of the following under subsection (11): (i) remove material from the copy of the report that is to be published; (ii) not publish the report; and (cb) give the Public Service Minister: (i) the report; and (ii) notice of the decision mentioned in paragraph (ca); and (iii) if material is removed as mentioned in subparagraph (ca)(i)—the copy of the report that is to be published; and (d) unless a decision not to publish the report is made under subsection (11)—ensure that the report or the copy mentioned in subparagraph (ca)(i) of this subsection (as the case may be) is published on an Agency website as soon as practicable after the report is given to the Public Service Minister. (5) The Agency Head of an Agency must cooperate with a capability review of the Agency under subsection (1) or (3). (6) A report of a capability review under subsection (1) or (3): (a) must include one or more findings; and (b) may include one or more recommendations. (7) If one person is appointed under paragraph (4)(b) to undertake a capability review, the person must not be: (a) an APS employee; or (b) an Agency Head. (8) If more than one person is appointed under paragraph (4)(b) to undertake a capability review, at least one of the persons must not be: (a) an APS employee; or (b) an Agency Head. Report to be tabled (8A) Subject to subsections (8B) and (8C), the Public Service Minister must cause a copy of a report of a capability review under subsection (1) or (3) to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister. (8B) If the person who caused the capability review to be undertaken has removed material under subsection (11), the copy of the report that the Public Service Minister must cause to be tabled for the purposes of subsection (8A) is the copy that is, or is to be, published. (8C) Subsection (8A) does not apply if the person who caused the capability review to be undertaken has decided under subsection (11) not to publish the report. Determinations of longer or shorter review periods (9) A person must not make a determination under paragraph (2)(b) or (3)(b) unless satisfied that there are exceptional circumstances. (10) A determination made under paragraph (2)(b) or (3)(b) is not a legislative instrument. Exception to requirement to publish (11) For the purposes of paragraph (4)(ca), a person who causes a capability review into an Agency to be undertaken under subsection (1) or (3) and receives a written report of the review may: (a) remove material from the copy of the report that is to be published; or (b) decide not to publish the report; if publishing the material or the report (as the case may be) would, or could reasonably be expected to, damage: (c) the security of the Commonwealth; or (d) the defence of the Commonwealth; or (e) the international relations of the Commonwealth. Other capability reviews (12) This section does not prevent the Agency Head of an Agency from conducting a capability review otherwise than under subsection (1) or (3). 44B Action plans (1) If: (a) a capability review of an Agency is undertaken under subsection 44A(1) or (3); and (b) a written report of the review is given to the Agency Head of the Agency under subparagraph 44A(4)(c)(ii); then the Agency Head must, within 90 days after the report is given to the Agency Head: (c) prepare a written action plan that includes the Agency Head's response to the findings included in the report; and (d) publish the action plan on an Agency website. (2) However, the person who caused the capability review into the Agency to be undertaken may, by writing: (a) authorise the Agency Head to remove specified material from the copy of the action plan that is published; or (b) exempt the Agency Head from publishing the action plan; if publishing the material or the action plan (as the case may be) would, or could reasonably be expected to, damage: (c) the security of the Commonwealth; or (d) the defence of the Commonwealth; or (e) the international relations of the Commonwealth. Division 2—Commissioner's appointment, conditions etc. 45 Appointment of Commissioner The Commissioner is to be appointed by the Governor‑General on a full‑time basis for a period of up to 5 years specified in the instrument of appointment. 46 Remuneration and other terms and conditions of appointment Remuneration and allowances (1) The Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is prescribed by the regulations. (2) The Commissioner is to be paid the allowances that are prescribed by the regulations. (3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973. Leave of absence (4) The Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal. (5) The Agency Minister may grant the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Agency Minister determines. Other terms and conditions (6) The Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Agency Minister. 47 Removal from office (1) The Governor‑General may remove the Commissioner from office if each House of the Parliament, in the same session of the Parliament, presents an address to the Governor‑General praying for the removal of the Commissioner on the ground of misbehaviour or physical or mental incapacity. (2) The Governor‑General must remove the Commissioner from office if the Commissioner does any of the following: (a) becomes bankrupt; (b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; (c) compounds with his or her creditors; (d) assigns his or her remuneration for the benefit of his or her creditors. 48 Acting Commissioner The Agency Minister may appoint a person to act as Commissioner: (a) if there is a vacancy in the office of Commissioner, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the Commissioner is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. Division 3—Special Commissioners 48A Appointment of Special Commissioners (1) The Governor‑General may, by written instrument, on the recommendation of the Prime Minister, appoint one or more Special Commissioners to assist the Commissioner in conducting a specified systems review or special review, or a part of such a review. (2) The Prime Minister must not recommend that a person be appointed as a Special Commissioner unless the Prime Minister has consulted the Commissioner about the appointment. (3) A Specia